USA > California > Bench and bar in California. History, anecdotes, reminiscences > Part 10
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practical mining, and owns valuable mining interests scattered over many districts.
It is to be recorded of this gentleman, that, having done a vast amount of business for women of all conditions for many years, he has never yet charged a woman a fee, whether she was rich or poor. His beneficence has been widely felt and is unfailing in many lines. He has accumulated a large fortune, but his expenses and charities are a constant and serious drain upon it. To the yellow fever fund of the last decade, he made a princely contribution, and had it credited to "cash. " In person he is diminutive, with small hands and feet, dark hair and complexion, a kind eye, well shaped head and finely chiseled features. His weight is suited to his stature, he is well preserved, and possesses distin- guished dignity of manner. A man universally esteemed, he yet holds him- self aloof from the people. He is not a man of the masses. I once heard him on the stump addressing a multitude of the "unterrified." He was out of place. He dislikes all gloss, and glitter, and tinsel, yet is void of arrogance or affectation. He has known sorrow, borne the burden of care, and has been thrown amid all the snares of pioneer adventure, yet his have been the mood and habit of the philosopher, and he has steadily preserved his peace of soul, and the purity of his private, public and professional life.
Judge Heydenfeldt is a widower, having been twice married. The eld- est of his children, an accomplished gentleman of middle age, bears the same name and dignifies the same profession.
In the Supreme Court, sitting at San Jose, in 1853, Solomon A. Sharp of San Francisco, in the midst of an argument, was given to understand by Judge Heydenfeldt that the Court did not agree with him. He continued his argument in spite of admonitions from the bench, until finally told in plain terms that the Court was confirmed in its opinion, when he ceased to struggle, remarking, "Well, it's an honest difference of opinion." "Yes," said Judge Heydenfeldt, in his polite and quiet way, "but it's a very material one." The learned counsel showed no further sign of life.
It so happened that Solomon A. Sharp, of whom I have another laughable incident to give in another chapter, in connection with Hon. E. D. Wheeler, met that gentleman for the first time on the occasion just mentioned. These names will supply me with pleasant themes, but, not following them now, the occurrence in the Supreme Court at San Jose recalls another worth the telling. A young lawyer was arguing his first demurrer. It was in the old Twelfth District Court, and Hon. Edward Norton, afterwards a Supreme Judge, was on the bench. An adverse decision followed the young attorney's argument; still, he would not sit down. For some minutes he wrestled with the bench as if determined to change the judicial mind. "Young man," said Judge Norton, some what sternly for one so kind, "do you want to quarrel with the
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court." "Not at all, sir," was the quick answer. "Very well; that is right," said the Judge gently. "You might as well learn right now that it is folly for a lawyer to quarrel with the court, for in controversies of that kind the court always has the advantage." The young man thereupon accepted the situation. He always liked Norton, and followed his advice.
Justice Alexander Anderson, who has been referred to, was an able jurist, who had, before coming to California, represented Tennessee in the United States Senate. Another Alexander Anderson, a Virginian, was once a bright light of the bar in northern California. He arrived here in May, 1854, and only seven months later, in his forty-sixth year, perished, with a large num- ber of victims, at the most terrible boiler explosion that has ever occurred in this State-that of the steamboat Pearl, at Sacramento. His law business had called him to the Supreme Court at the Capital. His brother, John Anderson, is a lawyer at Nevada City.
The youngest Justice and the youngest Chief-Justice of all who have ever sat upon our Supreme bench, was Hugh C. Murray. Born in St. Louis, Missouri, April 22, 1825, of Scotch extraction, he was reared at Alton, Illinois, where he received a limited education and read law in a lawyer's office. When twenty-one he joined the army, and served during the Mexican war as lieutenant in the Fourteenth Regular Infantry. After that war he returned home and was admitted to the bar, but at once set out for California. Going to Panama by steamer, then, unable to get a better passage, he took a sailing vessel for San Francisco. The sailer proving intolerably slow he got off with others at Cape St. Lucas and walked the long distance thence to his destination, which he reached in September, 1849. He at once commenced the practice of law. Quite soon he was very busy, but, in a few months, the legislature elected him one of the associate justices of the Superior Court of the city of San Francisco, a court that after dispensing justice for a few years, was itself dispensed with by act of law. Murray had brought with him from the east no fame or influence or means, but on the bench of the old Superior Court he displayed so broad a knowledge of law and such superior qualities as a Judge that his appointment to the Supreme bench by Gov. McDougal in October, 1851, in place of Nathaniel Bennett, resigned, was a fulfillment of the hearty wish of the bar. He became Chief Justice upon the resignation of Hon. H. A. Lyons in 1852 and was elected his own successor by the Democracy. In 1855 he was re-elected Chief Justice by the Native American party. He died of consumption, in Sacramento, while still Chief Justice, on September 18, 1857. He had reached that high station at the age of twenty- eight, having become an Associate Justice two years earlier. Murray pos- sessed a patient and powerful mind, capable of the severest investigation. Judge W. T. Wallace, who was Attorney-General when Murray died, declared
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that the latter was gifted with an intellect that could grasp the mightiest subject; an analysis that solved, as if by intuition, the most intricate legal problems. His associate on the Supreme bench, who succeeded him as Chief Justice, testified to his quick perception, his moral courage, his justness, his frankness and fidelity, and declared that his loss was irreparable. He was, withal, a dignified and impressive speaker on the stump. In his day candi- dates for the bench were not exempted from the custoni of active, open electioneering in behalf of their party and themselves. I heard Murray on the stump at Sacramento in 1855. His utterance was distinct, deliberate; his voice strong and very agreeable to the ear and he wore an easy dignity that seemed to reconcile his candidacy to his surroundings. He was then speaking for the new American party then about to sweep the State. "Fellow citizens," he said, "the Whig party is dead, and has been dead for ages; and the Democratic party, if not dead, is in the last throes of expir- ing agony." This sounded very well, indeed, and the "agony" part was given in a way that evoked loud laughter. But I felt like calling on the ermined orator to explain. His words, rolled out so grandly, were neither true of the one party, which wasn't quite dead then, nor of the other, which isn't dead yet.
Judge Murray's most elaborate opinion was his last-that in Welch vs. Sullivan, reported after his death, in 8 Cal., 155. Judges Terry and Burnett, who concurred in the judgment, slightly modified it at the next term-see 8 Cal., 51I.
"Can you tell me who is that elderly man in the party opposite ?"
".Ah, yes. And my answer will be a surprise."
We were having an after-dinner chat in the parlor of a city hotel-my friend being a distinguished man of affairs from the East. The "elderly man in the party opposite " had been talking with some gentlemen for quite a while, all standing by an open fire, and, by his tranquil bearing and benevolent aspect, had attracted the attention of the stranger.
"Well, tell me who he is?" I was asked again.
"That is Peter H. Burnett, the first Governor of the State of California," was the reply.
"Indeed ! Let's see-how long has California been a State ?"
" We were admitted in '50-September 9th."
" A long time ago," mused my friend, "and there stands your first Governor !"
"Yes. Did you ever see a better preserved man ? He is eighty years of age, full of years and full of honors. He has also been a successful lawyer and a Supreme Judge."
"What can you tell me of him ?"
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"A great deal. If you can spare the time I will promise to interest you." "Go on," he said, and I proceeded leisurely.
"I have to speak of a man who has been pre-eminently the architect of his. own fortune, and who enjoys a spotless fame. The State has had sixteen Governors. These have been, naming them, not in the order of merit, but according to their periods, Peter H. Burnett (whom you are now observing) John McDougal (with one '1,' mind you), John Bigler, J. Neely Johnson, John B. Weller, Milton S. Latham, John G. Downey, Leland Stanford, Frederick F. Low, Henry H. Haight, Newton Booth, Romualdo Pacheco, William Irwin, George C. Perkins, George Stoneman and Washington Bartlett. The list, on the whole, is creditable to a young common- wealth of heterogeneous elements, and shows two or three strong and well equipped intellects. McDougal-"
"I knew him," interrupted my friend. "Where?" "In Washington." "Not so, dear sir; you confound Governor McDougal with the accomplished Senator. Didn't I tell you to mark the single '1?' McDougal, Downey and Pacheco were elected Lieutenant-Governors, and filled out the vacated places of Burnett, Latham and Booth. Governor Burnett was the only one who ever stepped voluntarily from that high post to private life. Latham, after an incumbency of ten days, was accredited by the legislature to serve out the remainder of the senatorial term, made vacant by the tragic deatlı of David C. Broderick. He had lately beaten the then Governor, John B. Weller, for the Democratic nomination for Governor, and now again prevailed against him in the short, sharp fight for Broderick's vacant seat. Pacheco became Governor when Booth went to the Senate for a full term, after having been Governor for two years."
"Let me ask," my friend inquired, " the politics of these men ?"
"Governors Burnett, McDougal, Bigler, Weller, Latham, Downey, Haight, Irwin, Stoneman and Bartlett were put in office by the Democratic party; Stanford, Low, Booth, Pacheco and Perkins by the Republicans, and Johnson by the Americans, or Knownothings.
"The patriarch standing there has always been cautious, reflectives laborious, and in morals stainless. His age I have told you. The majority of the restless, chafing spirits who helped to make politics in our early days an excitable and perilous pursuit, were from the Southern States. As if in compensation, it would appear, Providence gave the State in the person of it, first pilot, a Southern man of pacific soul, who through business vicissitudes,. party strife and social upheavals, ever kept the even tenor of his way.
"Governor Burnett is a native of Tennessee. His father was a farmer and carpenter. The name for generations had been Burnet; the Governor was the first of the family to add a t, and all his brothers followed suit. His. motive was to make the name more complete and emphatic. In youth the
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precepts of one of his ancestors were imbedded in his moral being, namely: 'Pay your honest debts; never disgrace the family; help your honest and industrious kin.' His early manhood was spent in Missouri, chiefly in mercantile pursuits, in which he failed and which involved him in large indebtedness. That he might be able to cancel his obligations and restore his wife to health, he looked to the new Northwest as far back as 1843, in which year he took his wife and six children in ox teams to Oregon when the right to that territory was disputed by the United States and Great Britain. He lived in Oregon five years, aided in establishing the provisional government and cultivated land. He came to California in 1848, and after working in the northern mines for a few weeks settled at Sacramento and entered on law practice. He had been admitted to the bar in Tennessee. He became soon after his arrival the lawyer and agent of General John A. Sutter, the great landlord of Central California, and found the employment very profitable. Removing to San Francisco, where his family rejoined him, he opened a law office. His profession, his manners, his business judgment and habits of life made him speedily and favorably known. In the first Gubernatorial campaign the candidates were not nominated by regular conventions, but put forward by public meetings. Colonel J. D. Stevenson called a Democratic meeting on Portsmouth Square, and upon his nomination Peter H. Burnett was declared the Democratic nominee for Governor. Other meetings pro- claimed John W. Geary (Democrat), W. S. Sherwood (Whig), John A. Sutter and W. N. Steuart (Independents). The people gave Burnett 6,716 votes, Sherwood, 3,188, Sutter 2,201, Geary 1,475, Steuart 619. Governor Burnett was inaugurated in December, 1849. Public life proved distasteful to him and he resigned in January, 1851, when the legislature was sitting at San Jose. He then resumed law practice in partnership with William T. Wallace and C. T. Ryland, who were destined to be his sons-in-law and dis- tinguished in the history of the State. In 1852 he paid to his old business partners in Missouri the last dollar of his debts, which had aggregated $28,740, and has never since been financially embarrassed."
"How was he as a Governor ?"
" His admistration was quiet and prudent. I recall nothing of striking interest which marked it. He was a business Governor. I now recollect that his last message closed with a recommendation that the law be repealed which provided that no action should be maintained for criminal conversa- tion or seduction. He urged its entire repeal, in order, he said, that the law might throw around the chastity of our wives and daughters that protection which ought to be afforded by every civilized country. He was the first to urge the exemption of homesteads from forced sale and attachment."
" I presume he is the Nestor of your bar ?"
"No; it has been many years since he was identified with our bar. He
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stopped law practice in 1854 and entered on a wide course of reading. He made his first sea voyage in 1856, visiting New York City in company with his son-in-law, Mr. Ryland. He has since made two other visits to the East by sea. His last two public speeches were made in opposition to the great Vigilance Committee in 1856. In 1857 he was appointed a Supreme Judge by Governor Johnson, and filled out an unexpired part of a term, nearly two years. In 1863 he, with others, founded the Pacific Bank. For many years he was its President, resigning a year or two ago. He then laid down all business cares, and he has since led a life of strict privacy."
"Is he wealthy ? "
" He has an ample fortune ?"
" I judge he is entitled to it ?"
" Truly so. He published in book form a few years ago the recollections of his life. In it you will find this rule laid down for the guidance of bankers and all business men. 'If a man once goes through insolvency or bankruptcy, or compromises with his creditors, or indulges in unreasonable expenses, he is unworthy of credit.' He says the exceptions to this rule are about one in ten. He thinks, also, that in banking the temptation to do wrong is less than in almost any other secular pursuit."
"As to his political views?"
" His father was a Whig, but the son was in boyhood made a Democrat by Duff Green's editorials. But, as he grew older, he records, in the book alluded to, and studied more deeply the science of government, he found cause to doubt the practical result of our republican theory as it now exists. He has always desired to give our theory a full and fair trial, being satisfied that so long as it can be honestly and efficiently administered, it is the best form of government for the greatest number. It is especially adapted to a young people free from extreme want, and therefore independent and virtuous. But when the population becomes dense, dependent and suffering, and for that reason more corrupt, then will come the genuine test of our existing theory ; and he thinks that, without a thorough and radical amendment, it must fail ; that the three principles of universal suffrage, elective officers and short terms, in their combined legitimate operation, will in due time politically demoralize any people, and that the masses will never permit a sound con- servative amendment of our theory, except by revolution, which he believes will occur within the next fifty years. It may require several revolutions in succession. This he considers most probable.
"He expressed these views in 1880. In 1861, he had issued a pamphlet on the condition of the country, in which it was evident that the 'sunset of life gave him mystical lore.' He voted for Abraham Lincoln at his second election."
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In turning away from this venerable, retired lawyer and banker, let me give a few passages from his book mentioned in the foregoing conversation:
If an intelligent stranger from another planet, were to visit the earth, and were the flags of all nations placed before him, he would unhesitatingly select the Stars and Stripes as the most brilliant and magnificent of them all. No one can ever look upon that flag and forget it. Besides, it is the symbol of the first great nation that ever estab- lished civil and religous liberty in its fullness and perfection. Whatever defects may exist in our theory or government can be corrected even at the expense of revolution, but the unity and integrity of the nation can never be destroyed. The day of weak, defenseless States has passed away forever. Only great Governments can succeed now or hereafter. If our country should err for a time and commit temporary injustice, we must trust her still, and patiently and lovingly wait for her returning sense of justice, as a dutiful son would for that of his father or mother. He who trusts the ultimate justice of his country will seldom be disappointed.
I never would engage in newspaper controversies or personal squabbles. If I was unjustly censured, I paid no attention to it, and gave myself no trouble about it. In this way I have mainly led a life of peace among my fellow men. I have very rarely had the sincerity of my motives called in question. The general course of the press toward me has been impartial and just. I have never claimed to be a liberal man, as most people construe that most indefinable term ; but I have scrupulously sought to be just to all men. The character of a just man is enough for me. I esteem and reason- ably desire the approbation of good mien, but I love the right more. I can do without the first, but not the last.
All the close observations of a long and active life, have satisfied me beyond a doubt of the wisdom and truth of the sentiment, written some thousands of years ago, and found in the grand old Bible, " Give me neither poverty nor riches."
CHAPTER IX.
Niles Searls-A Career to Animate the Young and Poor-A Start at the Bottom of the Ladder-Unloading a River Steamboat in '49-"Waiting" for an Opportunity at the Bar-On the Bench of Nevada County-Settling the Law of Mining Claims and Water Rights-A Succession of Honors-Chief Justice of the Supreme Court-Personal Notes and Pleasantries.
It was in the middle of October, 1849. The place was Sacramento. The present Chief Justice of the State of California had just found employment at unloading a river steamboat. And at that salient point the eye is first arrested in glancing along a career so eloquent of encouragement for honest youth.
He was a lawyer, even then ; but very young, and had come by the Pioneer Stage Line of Turner & Allen, from St. Louis, with just money enough to see him through to the land of gold. Dr. R. H. McDonald and Louis Sloss were among his fellow-passengers. He walked along the streets of the rudely-built "City of the Plains " in as serious study as he has ever betrayed, even on the bench of justice. What was he to do ! He inquired. curiously, the rental of vacant rooms, and found that $250.00 a month was the lowest figure at which he could obtain a law office. Lacking that sum by just $249.50 he concluded to defer to a more auspicious season resumption of professional business. Then he wandered along the river levee, until he found this "job," where he has just challenged our attention.
His pay was one dollar per hour. Three months earlier John Bigler, afterwards Governor of the State for two terms, had done the same service in the same town at two dollars per hour. Bigler gave better satisfaction. At the expiration of Mr. Searls' first hour the boss approached him and said : "You don't understand this business ; here is your dollar for what you have done." His occupation gone, he went about the city front in pursuit of some new industry. He was struggling for life. Just then he was not thirst- ing for professional fame. Approaching a restaurant which bore in front the legend, " Waiter wanted," he entered. One hour thereafter he was installed. In this capacity the constant young man, forgetting his past dreams, and all unlettered as to his destiny, worked steadily away for some six months.
"Give me some pork and beans," said a strapping stalwart from the mines, as he took his seat in the restaurant one day, "and what will you
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have," he asked his companion in the same breath. As they partook of their substantial meal they engaged in lively conversation. Said one of them: "If I had a lawyer worth a d-, I could win that suit." The waiter did not fail to hear this. He approached the pair as they arose, and said : "I have heard what you have been remarking about your law matters. I would like to try that case for you. I am a lawyer myself, and am waiting for a chance to get into business." The astonished stranger, impressed with his manner, engaged him in conversation, and the quick result was the transla- tion of Niles Searls from the restaurant to the courtroom. He tried that case and won it, and received a fee of $300. He had got leave of absence for a day, without acquainting his employers with the reason for his departure. The next morning he presented himself at the caravansary and announced that he desired to quit work. "What is the matter?" he was asked. "We like you very much. Anything wrong?" "On the contrary," he answered; "everything is all right, but I want to go up country." And he went, his employers throwing an old shoe after him, for luck.
This paragraph in Mr. Searls' history was not without many parallels in the lives of California pioneers. Daniel Webster Virgin, while attend- ing the Sacramento High School, maintained himself by waiting on the table at the Casco House. He afterwards became a District Judge of Douglas County, Nevada. . His fellows at the old High School will remember him, and of these are Judge John K. Alexander, Auguste Comte, Joseph M. Nougues, and other prominent lawyers. Another leading lawyer, who attained a District Judge ship in California, had worn the white apron in Sacramento. The Hon. Charles L. Scott, who so long ago represented California in Congress, and is now United States Minister to Venezuela, once kept a mush and milk stand at Campo Seco. A leading merchant, and one of the richest men living in San Francisco, once manufactured pies at a crossing of the American River, as told me by one of his customers, Dr. Washington Ayer.
With the greater part of his three hundred dollars in his pocket, Mr. Searls went to Nevada City and commenced the practice of law. Some years later when occupying a high position on the bench, and trying a case with a jury, he noticed one of the panel eyeing him intently. When the trial closed, the juror with the inquisitive eye approached him, and asked : "Judge, ain't you the feller that used to "serve" us in Sac- ramento?" "I'm the man," said the Judge; and they went out and cele- brated.
Judge Searls had been in Nevada city only five days when he found him- self a candidate for Alcalde. Two days later the election came off. Both honors and emoluments were attached to this office. Its jurisdiction, how- ever, was vaguely defined, though very broad. Charles Marsh, a leading citizen who had brought water into the town, warmly espoused the cause of
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Judge Searls in this contest for Alcalde. But our candidate was defeated by ten votes out of several thousand cast.
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