USA > California > Bench and bar in California. History, anecdotes, reminiscences > Part 2
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"Here, then, long years ago, I took my stand by freedom, and where, in youth, my feet were planted, there my manhood and age shall march. And, for one, I am not ashamed of freedom. I know her power; I rejoice in her majesty; I walk beneath her banner; I glory in her strength. I have seen her struck down on a hundred chosen fields of battle. I have seen her friends fly from her. I have seen her foes gather around her. I have seen them bind her to the stake. I have seen them give her ashes to the winds, regathering them again that they might scatter them yet more widely. But when they turned to exult I have seen her again meet them, face to face, clad in complete steel, and brandishing in her strong right hand a flaming sword, red with insufferable light !"
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The natural grace, the manly animation of the speaker, the way he suited the action to the word, were peculiarly his own and full of fascination. He appeared to brandish in his own "strong right hand," the "flaming sword red with insufferable light ;" and his audience, tossed on the mountain waves of his eloquence, seemed to see him standing, unconquerable, the especial champion of Freedom, who, no more to be bound to the stake, was to exult in majesty and triumph forever. The daily papers, reporting the occasion, told of one individual in the audience, who, in the exuberance of his enthu- siasm, leaped on the stage, and cheered as he waved the flag of freedom before the throng. This was no other than Bret Harte, then "a youth to for- tune and to fame unknown."
During his short term in the Senate he delivered a few great speeches, in one of which occurred his oft-quoted tribute to the press. He also quickly won a high reputation for skill in debate, while his reply to Benjamin, in January, 1861, evidenced great logical power as well as majesty of expression.
It surprised the country when Baker left the Senate for the "tented field." It was thought an unnecessary sacrifice. But Baker was under an uncontrollable impulse. He once told Samuel B. Bell that eloquence was not his forte. Bell, in astonishment, said: "If you can beat yourself as an orator, in another direction, you are certainly an extraordinary man." "Well, think what you may," replied Baker, "my real forte is my power to com- mand, rule and lead men. I feel that I can lead men anywhere." He raised a regiment, and went into this his third warfare as a Colonel. His career in the field was even shorter than his time in the Senate. He fell in his first fight, on the 21st day of October, 1861-gallantly, gloriously, and was commissioned Major-General after his death. Brilliant, restless and checkered life! These lines close a pathetic little poem, "To a Wave," written by him twelve years before his death :
" I, too, am a wave on a stormy sea ; I, too, am a wanderer, driven like thee ; I, too, am seeking a distant land, To be lost and gone ere I reach the strand; For the land I seek is a waveless shore, And they who once reach it shall wander no more."
Baker's delivery was rapid, his voice melodious, his diction polished, his gesture free and full of grace. He had a splendid person, an eye full of fire, a noble forehead; and nose and mouth and chin were finely chiseled. His hair had long been very gray. On the platform his manner was marked by perpetual animation. He loved all arts, all sciences. His imagination was rich, his reading wide, his memory extraordinary. His countenance and bearing and his gray locks recalled the picture of Thorwaldsen, of whom it was said that when he moved in the midst of a crowd, it would separate as
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if it felt the presence of a superior being. His disposition was the perfection of amiability. In his most heated forensic and political contests he was never betrayed into saying an unmanly thing of an adversary. He was a giant before a jury. So great were his gifts of oratory that his knowledge of law has been underestimated. But he was learned in the profession of his choice -a profession that opened so broad a field for the display of his varied powers.
Now and then, and here and there, has been heard the promise of a publication of Baker's Speeches, Lectures, etc., in book form. So engaging a volume may never appear. There has been issued, however, a "Sketch of the Life and Public Services of Edward D. Baker," by Joseph Wallace, (Spring- field, Illinois, 1870). Those interested will find Baker's best political speeches in our libraries, in the files of the old Sacramento Union under dates of June 9-10; July 2-13-15; August 23-24; September 22-30-all in the year 1859; and October 26, and November 5, 1860. His "Atlantic Cable Oration," beautiful beyond eulogium, is the opening piece in my "California Scrap Book" (1869). His moving address at the burial of State Senator William I. Ferguson (who fell in a duel) September 16, 1858, his nobler "Broderick Oration," September 18, 1859, the imperishable words of Gen. James A. McDougall on the death of Baker, delivered in the United States Senate, Gov. Stanly's Oration at Baker's burial, and Thos. Starr King's brief but thoughtful address at the great man's newly opened grave, are all given in full . in my "Representative Men of the Pacific" (1870). The address last referred to is a masterly assertion of the soul's immortal life. The declaration "Paul goes to an immense service still as an Apostle; Newton to reflect from grander heavens a vaster light," never fails to stir me when I see the preacher's marble tomb.
A broad street in San Francisco, not open at Baker's death but now lined with dwellings, bears his name. It will recall his fame when the ceme- tery where his mortality lies has long ceased to be the city of the dead and been added to the domain of throbbing life.
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CHAPTER II.
Hall McAllister-The Veteran of the Bar-Scion of a Line of Lawyers-A Name Scattered Through Seventy Volumes of Reports-Personal Description-A Practice of Widest Range-Extraordinary Capacity for Work-Manner of Trying Cases-A Contrast with Edmund Randolph-Anecdotes-Judge Lake's Estimate of His "Muse"-Mr. Papy's Pleasantry.
Glance at the date on the title-page of this volume, and reflect that Hall McAllister has been in continuous practice at the San Francisco Bar since the year 1849 ! If there have been some in whose variable radiance his steady light has been dimmed now and then, he has illustrated the happily expressed truth that the prolonged sunshine is better than a flash of lightning.
Through all this stretch of years he has kept faith with his profession in all its branches. The tide of his practice has known no ebb since its first swell in the middle of the century, and it has had an exceptionally extended range. Moreover, his indefatigable industry in preparation, his serene patience in the elucidation of intricate facts, the remarkably thorough way in which he tries his whole case, and the freedom with which he is consulted by lawyers generally, are qualities and considerations that lift him to the distinction of primus inter pares.
Is he as old in years as all this implies? No. His step is light, his mind clear and strong as ever, and, besides doing a great deal of work at night, he is regularly in his office long before "office hours" open. He was born in 1826. A native of Georgia, of remote Scotch extraction, he comes of a line of American lawyers. His grandfather, Matthew McAllister, held under Washington the office of United States District Attorney for the southern district of Georgia. His father, Matthew Hall McAllister, held the same position by appointment of John Quincy Adams, and in 1855 became, by appointment of President Pierce, the first United States Circuit Judge of California.
Hall McAllister arrived in San Francisco in June, 1849, a year before his father came, and by way of the Straits of Magellan and Valparaiso. He took his place at this bar in August of that year, a novice among experienced men. He was a wary observer, in love with his calling, and entered the lists with that resolute purpose, which, if stubbornly adhered to, rarely fails to bring to the legal practitioner a fair measure of success.
That period of probation from which lawyers-even those of the brightest
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parts and promise- seldom find exemption, was with Hall McAllister exceptionally brief. Several favorable circumstances conspired with his native bent and energy of character to cut his probation short, and to launch him auspiciously into the full tide of practice. Of an honorable and talented family, courted by society, enjoying the affectionate help of a father distin- guished in his own profession, anxious and able to assist and advance him; of fine person, robust health, resolute purpose, vigorous mind and a fixed ambition, he stepped into the arena of professional life with the air of one who feels he has a hold upon the future, and with the almost absolute assurance of success. It is most true that he owed much to fortuitous circumstances; much to paternal promptings and guidance, "which nursed the tender thought to reason, and on reason build resolve-that column of true majesty in man;" but it is just as true that even without such aids he was born to be what he long ago became, one of the few unchallenged leaders of a large and able bar. He has never known what it is to be poor, or without friends, although he is nobody's hero, and has never wielded great wealth. But even if he had set forth upon his brilliant career without the advantages of competency, friendship and a liberal education, he would surely . have arrived at the desired goal by slower marches but in good season. If we attribute his auspicious entry into professional life chiefly to good fortune, we must give him credit for the unsurpassed zeal and industry which have distinguished his progress. He might have builded on his father's fame, but instead thereof he laid his own foundations, and the superstructure which he has erected is entirely his own. He has a more vigorous and comprehensive legal mind than his father possessed.
The personal appearance of some men conveys a false idea of their ability and standing. Some really little fellows are unduly exalted in the mind of the stranger, by their Websterian heads, and countenances cast in the very mold of wisdom. Others, who possess abilities of the first order, attract attention only when deep emotion lights up their else expressionless faces, or when some great cause or occasion stirs their sluggish blood. But the features and presence of McAllister certainly deal honestly by the observer. His very build and bearing give to the beholder a correct sugges- tion of his capacity. The impression is not that of greatness or genius, but of strength. Whether we meet him in the street, in the court-room or in his office, we feel that we are in the presence of a strong man, to grapple with whom in his chosen calling must be serious business. We look upon him generally as a leader among men, and in the court-room, especially, we see in him the monarch of the local bar.
He has a large, square face, an unusual proportion of it below the eyes; a forehead neither full nor high, and lower than the average of men of ability, with no corrugations to betray the earnest study he concentrates upon his
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causes; a head thick through and noticeable chiefly for its peculiar and irregular shape; the whole suggesting the seat of a practical mind, highly endowed with the powers of analysis and conclusion. His large and heavy frame lends to him the aspect of solidity and power, but his movements of body, notably lively for a man of his stature, militate somewhat against this impression. This alertness of movement corresponds with the action of his mind; and, like the latter, never runs into haste. Thoroughness and dispatch exercise joint and harmonious control over his whole being.
I have alluded to McAllister's custom of bringing out his case in all its strength and symmetry. In the trial of a cause his manner is, on the whole, admirable. He is cautious, but caution never fetters him. He is rapid, but is never carried beyond his object. Whether he goes over, around or through the chosen position of an adversary, he opens up a broad road, and leaves that position harmless behind him. One of his most noticeable habits is to take down with his own hand all the evidence of witnesses. He is eternally writing. St. Augustine said of that "most learned of the Romans," Marcus Terentius Varro, that he had read so much that we must feel astonished that he found time to write anything, and he wrote so much that we can scarcely believe that any one could find time to read all that he had composed. It may be said of McAllister, that he reads so much, it seems hardly possible he can write much; yet it would engross the time of almost any person to read, not what he composes, but what he writes down in court. What he writes would hardly prove as entertaining as the critical, philosophical and other treatises of Varro, for what drops from his pen is testimony. This, however interesting to him as bearing on his cause, would be dry, cold and barren enough to others.
This habit of taking down testimony, although the short-hand reporter is doing the same task more accurately, is very advantageous to an advocate. And it loses half its benefit when done by proxy, for the evidence is then the less impressed upon the advocate's mind. This duty is generally shirked, because it is hard work, and is unjustly regarded as merely manual. Successful lawyers usually turn aside from the clerical details of their busi- ness. In McAllister this habit of which we speak is in keeping with his unflagging industry.
The late Edmund Randolph was the opposite of McAllister in this as in some other respects. These two advocates, opposed in the trial of a cause, presented an interesting contrast. Randolph's wonderful memory was one of the most noticeable of his brilliant faculties. No matter how lengthy the trial, how numerous the witnesses, or how important the testimony, he disdained the use of notes, even though McAllister were opposed to him, urging his tireless pen through the whole trial.
When a motion was made in the Twelfth District Court to adjourn as a
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mark of respect for Randolph's memory, the then Judge of that tribunal, called attention to this practice of the deceased, of trying his causes without taking notes, and urged the junior members of the bar to imitate the example as, a means of strengthening the memory. It is to be hoped that this advice though given by a very excellent judge and lawyer, has not borne its legiti mate fruit. Few men have remarkable memories; none have perfect mem- ories. To strengthen the memory is commendable, and it is feasible, but to make it entirely reliable is hardly possible. Randolph could trust to this splendid faculty; but, generally, the advocate who imitates him will fall far short of his success. Whoso relies implicitly upon his memory is usually more showy than safe.
One of the best teachers in the public schools of this State, Andrew R. Jackson, then principal of the Sacramento High School, once told his scholars of a man who, many years previously, had been Clerk of the National House of Representatives, and who possessed a memory so extraor- dinary that he was able to write up accurately the minutes of the most busy and stormy session, without having taken notes. He did this day after day and week after week, until it was generally known how he got through with his work, when, although the fidelity of his journals could not be impeached, he was removed from his responsible trust. I am satisfied that my old preceptor believed this story, though he may never have investigated it more than I did. If it is true, the House of Representatives acted wisely in dismissing their brilliant and lazy servitor, because in his position he was unconsciously a dangerous man. McAllister has a good memory, but had he succeeded to that of Randolph he would yet adhere to his practice of taking copious notes. Without this practice he could try his causes well, but with- out it he does not seem to feel that he could try them thoroughly. This habit has so grown upon him that he sometimes goes through the motion of writing, even when listening intently to the court or opposing counsel.
In trying a jury cause, he sits usually facing the jury, and rarely rising from his chair. His table is covered with books and papers, and a boy is generally waiting to make fresh drafts upon his well-stocked library and his plethoric pigeon-holes. The court-room is for him a place of earnest work. He rests only when court takes a recess, and not often then. From the beginning to the end of the trial, he is writing, reading, questioning, object- ing, arguing, appealing. The observer is constantly impressed with his industry and watchfulness.
In eliciting testimony, McAllister exhausts the information, without exhausting the patience of the witness. He never bores or insults. He never plays the tyrant over a timid witness, and never leads a rash one to his undoing, just for the love of the thing ; never figures in any of the discred- itable scenes in which lawyers and witnesses grapple in wordy combat.
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McAllister, like every thoroughly trained lawyer, is politic, and therefore polite -alike courteous to court, counsel, jury and witness. To counsel associated with him in the trial of a cause he is uniformly deferential, but will not play second fiddle. He always leads his side. He is not troubled with the idea, which haunts so many legal small fry, that to be respectful to an adversary is to succumb to him, or that to listen decently to a postulate is to admit its soundness. He never sneers at a proposition, and never states one dogmatically. He meets the tyro with his hesitating step, and the veteran with his measured stride, with the same air of respect.
With all his dispatch, it is yet in the fullness of time, and, with a clear comprehension of his cause, that McAllister rises to address his familiar and favorite auditory-the jury. He is now in the house of his friends, and in speech and manner he shows that he is conscious of it. Having omitted nothing as regards introduction of evidence, so now he leaves nothing unsaid which the jury should hear. He speaks smoothly, exhaustively, yet avoids prolixity. The jury have witnessed his patient management, his shrewd generalship, the evidences of his careful preparation, and if, when he rises before them, they have not already recognized the fact that he knows his case to the utmost details, he soon convinces them of it. They appreciate his address to their reason, admire his methodical arrangement of facts, and find entertainment in his argument. Without betraying any effort to subject them to any personal influence; always respectful without being patronizing; ever earnest, but never inflamed; fluent, yet not verbose; easy in manner, yet a stranger to dramatic effect, the challenges respect for himself, even when he fails to elicit sympathy for his cause. His voice and physique, as well as the cast of his mind, are more suited to the argumentative than the pathetic style. At times, however, in capital cases, he approaches eloquence, drawing on the classics to give point and polish to his appeals. In quoting Shakespeare and , the Bible he is quite happy. His elocutionary powers belong neither to the first nor the second order. Nothing can be said for his gesticulation; his metaphors are few and not striking, and, as to apostrophe, that perfect flower of Baker's'oratory, he rarely calls it to his aid.
This Bar leader has no specialty. Great lawyers are often distinguished for specialties ; too often the public assign them to specialties, when, in truth, they have none. McAllister has never suffered from this popular propensity. Not only has he no specialty, but the fact is acknowledged by all. Whether his case involves land titles, inheritance, patent right, private franchises, personal liberty, human life, or constitutional law, he is equal to the occasion. A prominent member of this bar-a former Judge of one of our District Courts* -once took occasion to bear public testimony to this fact.
*Address of E. D. Sawyer to the jury, in Tyler vs. Holladay, Twelfth District Court, April, 21, IS75. The parties to this suit were lawyers.
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As a pleader-a writer of pleadings-our friend is careful and correct, evincing an intimate acquaintance with English forms and precedents. Although he probably does more work than any member of the California Bar, there is no one who takes things easier, or whom work hurts less. He owes this in a great measure to his powers of endurance-a splendid auxiliary to close mental application-and to his habit of investigating and methodiz- ing at the same time. He is full of life and energy , has naturally a high temper, which he has under good control ; seems to have schooled himself to be slow to anger ; is not combative ; has few intimates.
This advocate has one habit, which some commend and some condemn-that of interjecting into his arguments doggerel of his own manufacture. Perhaps it ought not to be condemned, because he generally turns it to account. It is at least better than punning, and an advocate per- force often indulges in pleasantry of some kind to cause a laugh and give sur- cease from the monotony of argument.
"A little nonsense now and then Is relished by the wisest men."
It may be said of McAllister's poetry, that it is more pleasing to the ear when spoken by its author in court than it would be to the eye if in print. At any rate I shall not print any of it. Occasionally he receives punishment for his temerity in this line-or rather in these lines. In his argument in the case of the Hibernia Savings and Loan Society vs. Mahoney et al., Fourth District Court, 1877, he let go some verses on which issue was joined by the opposing counsel, Judge Delos Lake. The latter, recalling the stereotyped expression "more truth than poetry," declared that his adversary's verses contained "more poetry than truth," and added that "that was not saying anything for the poetry."
Among this advocate's minor resources is an unfailing vein of humor, not noteworthy for its richness, yet not to be omitted in this sketch. On one occasion he was called at the eleventh hour, into a case in which he had a colleague who was well prepared. While the latter was examining a witness, his memorandum of authorities fell under McAllister's eye, and was soon copied on a fresh sheet of paper, and, in a short time, a messenger laid the books on the table. The time for argument arriving, McAllister's colleague called on him to open, which he did by reading from his own books his asso- ciate's authorities. In closing, he said his associate would supplement what he had said by further argument. The "associate" arose, with serious front, and observed, poor man ! that he had intended to address the court, but that Mr. McAllister had covered the ground so thoroughly that he deemed it unnecessary to add anything.
A certain lame lawyer had a certain lame client. The two resembled each other strongly in their awkward gait and clumsy locomotion. The
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litigant, while looking for his attorney on the street one day, hobbled up to McAllister and asked : "Have you seen lawyer - going along this way?" "I never saw him go along any other way," was the reply.
Among the more important of the law causes in which McAllister has won renown worthy of special note was that of Tompkins vs. Mahoney, tried in San Francisco in the year 1865. The plaintiff, a lawyer, recovered judg- ment against the defendant for some $30,000, including interest for legal ser- vices rendered during a period of several years. McAllister was his attorney, and his excellent address to the jury so pleased liis client that the latter declared, in his enthusiasm, that he would have given one-half of the amount of the verdict for a verbatim copy of the speech. (The courts had no official stenographers at that time.)
Mr. McAllister married a lady of rare accomplishments, a daughter of the late Samuel Hermann, and has raised a large family. He owns a city residence, a beautiful summer home in Marin County, and is in comfortable circumstances. Reference to family recalls a scene which occurred in the early days in the United States Circuit Court, of which tribunal Hall's father was judge, Hall's brother was clerk, and Hall himself the chief practitioner. It happened one day, so goes the story, that as McAllister was presenting an ex parte motion, no one being in the court-room but the father and the two sons-judge, clerk and counselor-J. J. Papy, a well known attorney, now deceased, having business in the court, opened the court-room door, and, after a hasty glance, was about to withdraw, when the judge said : "Come in, Mr. Papy." The latter bowed his acknowledgments to the bench, and said : "Your honor will pardon me ; I hate to intrude into a family meeting." The punctillous Mr. Papy then silently stole away, and the argument was resumed ;
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