USA > California > Bench and bar in California. History, anecdotes, reminiscences > Part 3
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As I turn from this commanding figure, his "chariot rolls on fortune's wheel" as ever. Though his triumphs are many and enduring ; his name scattered all over our seventy volumes of Supreme Court Reports, beginning with the case af Payne vs. Pacific Mail Steamship Company in volume I ; he continues to work as might one who felt the sharp spur of want. Possessing a powerful constitution, mindful of the laws of health, and retaining all his first love for his profession, he is destined, in the ordinary course of nature, to hold his place at this bar for yet a considerable period. He is one of the men who labor through life. He will die in harness.
CHAPTER III.
John B. Felton-College Days-Early Partnership with Edward J. Pringle-Celebrated Cases-The Great Limantour Conspiracy -The Local Option Question -"Mortgage Tax " - The "City Slip" History-Felton's Enormous Fees-His Learning, Genial Nature and Sparkling Conversation-The Bulkhead Bill-Allusions to Professor C. C. Felton, Judge Lorenzo Sawyer, Judge T. W. Freelon, Levi Parsons, Gov. John G. Downey, and others.
John B. Felton's professional life began and ended in San Francisco. He was born in Saugus, Essex county, Massachusetts, in 1827, and died at his home in Oakland, May 2, 1877. His father was superintendent of an alms- house in Cambridge, and lived and died in very poor circumstances, leaving three sons, all of whom became men of mark. One was President of a rail- road company in Pennsylvania. Another was the great scholar, lecturer and writer, C. C. Felton. The father managed to get this son into Harvard, and lived to see him attain great literary fame. C. C. Felton was connected with Harvard from the time she received him as a scholar until his death. After graduating he became successively a Latin tutor, a Greek tutor, Professor of Greek, Eliot Professor of Greek Literature, and President of the College. Dearly he loved "the bright clime of battle and of song" and was said to dwell in "the atmosphere of ancient thought." Some of the most instructive and entertaining pages of the New American Cyclopedia are from his pen- the articles on Agassiz, Athens, Attica, Demosthenes, Euripides, Greece and Homer.
Professor Felton educated his brother, John B., who was many years his- junior, and who upon graduating from Harvard in the class of 1847, obtained through the Professor's influence a position as Greek tutor. He had proved himself to be one of the best Greek scholars of his time. He did not long pursue this vocation, having determined to read law. Among his classmates at Harvard were E. R. Hoar and Horace Gray.
While at his law studies John B. Felton was sent by his brother, the Pro- fessor, to Paris, where he remained a year, studying the Civil Code, indulging in the amusements of the gay capital, and making himself thoroughly acquainted with the French language, which he ever after spoke with great ease and correctness. He also obtained a good knowledge of Spanish, having made up his mind to settle in San Francisco, and knowing this tongue would
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be of service to him professionally, as it proved to be more than once-notably in the Limantour case, to be noticed.
It had been agreed at college between Felton and Mr. E. J. Pringle that they would commence the practice of law in partnership, in San Francisco. The two young men were in college together two years, Mr. Pringle being the elder and graduating two years before his friend. This was an alliance between Massachusetts and South Carolina. Mr. Pringle, who is still in active practice here, came to San Francisco by the Nicaragua route, arriving in December, 1853. Felton sailed around the Horn, in order that he might thoroughly acquaint himself with the structure of seagoing vessels and with nautical terms, hoping to profit by it in admiralty practice. He never had much admiralty practice, however. He arrived here in the spring of 1854, and immediately formed a partnership with Mr. Pringle and commenced law practice. Both gentlemen had been admitted to the bar in the East. Felton came to San Francisco a young man, but thoroughly equipped as a lawyer. He had large resources of mind, great breadth of comprehension, wonderful inventive power as applied to principles, and astonishing quickness and exact- ness of observation. The faculty was his of finding out what the law ought to be, and what, therefore, it is, unless fettered by technicalities ; and the adroit- ness and subtlety to use technicalities when they suited his purpose ; but he preferred broad, catholic views upon all questions of right and wrong between man and man.
The city slip litigation was what first brought Felton fame and fortune. A. C. Whitcomb, now a wealthy resident of Paris, was then a member of the firm, its style being Whitcomb, Pringle & Felton. How Felton's name seems out of place at the tail end of a firm! This firm seems to have stood on its head. The eastern part of San Francisco had been laid off into water lots of uniform size, 25x59.9-12, except a slip now embraced within Clay, Sacramento, Davis and East streets, which had been left open for purposes of navigation. In December, 1853, the city sold this slip at auction to many purchasers-in lots 25x59.9-12. There was a great boom in real estate then, and the property brought enormous prices ; terms, twenty-five per cent cash, fifty per cent in sixty days, and twenty-five per cent in four months. When most of the purchasers had made the second payment, but before any had made the last, there was a sudden collapse in the real estate market, the lots in question depreciating some fifty per cent. One of the purchasers consulted Felton, to see if there was not some way to repair the loss. After examina- tion, he replied that the purchasers could recover their money from the city ; one after another of the unhappy men went to Felton, until his firm became attorneys of record for every purchaser. About one million of dollars was at stake. Felton discovered that the ordinance of the Board of Aldermen, under which the lots were sold, was passed by a majority of those present, but not
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by a majority of a full Board, while the city charter declared that every ordi- nance must be passed by a majority of a full Board. One of the Board had resigned, leaving only seven members. The ordinance was passed by a vote of four against three. Felton took the ground that the ordinance was invalid, and consequently that the sale was void; and that the purchasers could recover their money. The pioneer case in the long litigation that followed was The City of San Francisco vs. Hazen (5 Cal., 169). The city sued Kelsey Hazen, a real estate operator, to recover on his promissory note, given for a deferred payment. Judge Lorenzo Sawyer was then City Attorney. The case was very elaborately argued in the Twelfth District Court, by Sawyer for the city and Felton for the defendant. The lower Court gave judgment for the city, but on appeal the Supreme Court sustained Felton's position and reversed the judgment, with costs. But, as Judge M. C. Blake once said from the bench : "No man knows the law ; only the Supreme Court can tell it." And the Supreme Court sometimes takes back its decisions. In the second city slip suit-Nathaniel Holland vs. the City of San Francisco (7 Cal., 361) the plaintiff sought to recover back the purchase money. The city called Hoge & Wilson into the case, and the District Court decided for the plaintiff. The city appealed. In the Supreme Court Messrs. Hoge & Wilson made the point that the sale of the lots was valid, because the city had ratified it ; that the ratification consisted in the city's receiving the money, and by a sub- sequent Board of Aldermen making appropriations of the same. This view prevailed in the Supreme Court which stated that its decision was not in conflict with the prior one in The City vs. Hazen, inasmuch as the second, or ratifying ordinance, had not been cited to the Court on the appeal in that case.'
In the case of McCracken vs. the City, reported in 16 Cal., 591, Judge Field ably and patiently reviewed the whole question. He held that the law was not properly laid down in Holland vs. The City. (The opinion in the Holland case was by Judge Burnett, Judge Terry concurring and Judge Murray dissenting). Judge Field held that the subsequent ordinance was not a ratification of the sale-that the city had not conveyed any title to the purchasers-that the city still owned the property and must refund the sums collected. Judge Cope, in a separate opinion, held that a purchaser, in order to maintain an action for money had and received, must first make a recon- veyance to the city. Acting upon this all the purchasers made deeds to the city and got judgment against the city for their several sums. The Legis- lature, on April 17, 1862, passed an act providing that the purchasers should take the lots at an appraised value, they to be credited with all payments made, and the city to issue to them its bonds for the amount of the difference between what they had paid and what the lots were worth. In pursuance of this law the Supervisors, in 1863, passed an ordinance, under which the lots
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were sold to the original purchasers on these terms.
All of these cases were argued elaborately and with great power by Mr. Felton. His connection with them made him very widely known and created for him a vast constituency of clients.
The very extraordinary case of Limantour, in which Mr. Felton made a fine struggle against fate, will attract theattention of times remote, on account of the unparalleled audacity and magnitude of the plaintiff's claim and the criminal romance which invests it. Jose Yves Limantour was a Frenchman, who, before coming to California to prosecute the largest claim ever presented to our courts, had lived some twenty years in Mexico, where he was a gov- ernment contractor and dealer in arms. In the pursuit of that business he had greatiy prospered, fattening on the misfortunes of the country, which was generally convulsed with civil wars. In 1841 he visited California and remained a year at Yerba Buena, now San Francisco. He met here the traveler and author, Duflat de Mofras, who was his countryman, and who advised him to buy land on this peninsula. In 1844 he made a second visit, and a third in 1847, his business in the latter year being to supply arms to the California forces then feebly struggling to save their native land from the grasp of Uncle Sam. Hisvessel, loaded with munitions of war, was overhauled at San Pedro by the United States sloop-of-war Warren, under Commodore Biddle, but a search revealed nothing contraband. He had learned that he was pursued and had thrown his cargo into the sea. Being allowed to proceed, he returned to Mexico, where he remained five years. In November, 1852, he came again on a mission of peaceful conquest, not as the representative of a foreign gov- ernment, but as his own embassador ; not vi et armis, but with pockets full of parchments wherewith to subject the richest, and most populous part of the country to his legal dominion. Congress, in 1851, had passed "An act to settle land claims in California," and had established at San Franciscoa Land Commission to pass upon all land claims based on Mexican titles. It was provided that no claim should be heard that should not be pre- sented before the third day of March, 1853. In February, 1853, Limantour filed with the Land Commission eight claims to land, which, by reason of their magnitude and the profound ignorance of everybody concerning them up to that time, created consternation throughout the city and the adjacent country affected.
Limantour claimed, First-Four square leagues, comprising over 15,000 acres, covering the city of San Francisco, except a strip off the northern end. Second-Yerba Buena, Alcatraz and the Farallones Islands and Tiburon Point, which commands the strait between Angel Island and the Marin main land. Third-The Laguna de Tache, covering eleven square leagues. Fourth- The tract of eleven square leagues called Lup Yomi. Fifth-Eighty square leagues near Cape Mendocino. Sixth-The yineyard of San Francisco
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Solano. 3 Seventh-Six square leagues called Cahuenga. Eighth- The Cienega de Gabilan of eleven square leagues, which embraced the city of Stockton. The claims aggregated about 620,000 acres, and a money value which exceeds to-day, and did even then, the combined wealth of all the railroad magnates of the United States. A protracted judicial inquiry followed. Limantour asserted that the lands claimed by him were granted him at different dates in the years 1843 and '44 by Governor Micheltoreno in satisfaction of and reward for his services to the Mexican government in advances of money and military supplies. The Land Com- mission confirmed the first and second claims-those covering the city of San Francisco and the islands named-and rejected the other six.
An appeal was taken to the United States District Court, where Edwin M. Stanton was specially employed to assist the United States District Attorney, and Whitcomb, Pringle & Felton appeared for Limantour. Pend- ing this appeal, a card was published by one Augustus Jouan, agent of Limantour, who had accompanied the latter from Mexico to San Francisco, setting forth that Limantour had broken faith with him, and that for a con- sideration, he, Jouan, would make a revelation that would defeat the Liman- tour claims. The citizens "saw" him, and he revealed. He said Limantour had frequently told him that his grants were fabricated; he had himself, at Limantour's request, altered figures to reconcile dates; that Limantour had shown him a letter from Robin-Limantour's partner-in which Robin, in consequence of a quarrel with Limantour, threatened to expose the latter as a forger of title papers; that Francois Jacomet, a clerk of Limantour, had declared that one Letanneur wrote one of the grants in 1852-nine years after its alleged execution. He suggested that Jacomet be sent for. Jacomet was prevailed upon to come from Mexico, and, in 1856, he gave testimony corroborative of that of Jouan. Letanneur, who was here in the city "on business," was taken before the grand jury, and there testified that he had written one of the alleged grants.
Mr. Limantour (whose name should not be given the French pronuncia- tion, but should be called in broad English, Lie-man-tour-that's the way most of our citizens pronounce it), was tapped on the shoulder by a federal officer and locked up. The grand jury indicted him for forgery and perjury. He gave bail in $10,000. One of his friends was willing and able to qualify on his bond, but a second surety was requisite. Messrs. Whitcomb, Pringle & Felton persuaded Michael Reese to come to the rescue. But Michael required a written obligation of indemnity from Whitcomb, Pringle & Felton before he would sign the bond. So great was the faith of these gentlemen in the validity of their client's title, that they promptly agreed to indemnify Reese. This is good enough proof that the insinuation against their integ- rity in this cause was baseless. The Land Commission did not find out any
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fraud. The United States Court discovered no fraud. The villainy of the claimant was uncovered by an accomplice. After it was revealed, it was clear enough. Everybody wondered that it was not sooner found out. John B. Felton enlisted his great abilities in the cause, because he honestly believed it to be a great cause and a good cause. Its fraudulency was brought to light by a mere accident, and the most astonished man in the community was John B. Felton. To quote the Hon. Jeremiah S. Black:
"The genuineness of Limantour's title was attested by the signature of a Mexican Secretary of State, who had previously been a foreign Minister, and was afterwards (even after the fraud was shown) a Judge of the Supreme Court. It was sworn to by a Mexican statesman, who had a reputation as high as any of his class, and it was certified under the hand of the President of the Republic in a communication addressed from the National Palace at Mexico to the Land Commissioners. But all these seeming marks of authenticity were placed there to cheat and defraud. It was afterwards demonstrated and solemnly adjudged that Bocanegra's attestation was a shameless falsehood; Castanares was perjured; and Arista, the President, was engaged with the others in a scandalous conspiracy to impose on the courts of the United States."
Limantour, after a few months absence, returned to San Francisco with additional "proofs," and had his cause tried. Mr. Felton felt reassured, and made out what was considered a perfect case. But in the very first fruition of hopes long deferred, it was hinted that the impression on the alleged "grant" should be compared with the government seal ! This was done, and at once many differences were apparent. The end then came soon, and Limantour was revealed as a gigantic forger and conspirator. Mr. Felton declined to argue the case. Limantour succeeded in getting safely out of the country. The government brought suit on his former bail bond for $10,000, and recovered judgment against Michael Reese and his co-surety for the amount. An appeal was taken to the United States Supreme Court, Messrs. Whitcomb, Pringle & Felton being the real parties interested, as they had contracted to hold Reese harmless. They succeeded in getting out of it, but paid Hon. Eugene Casserly $1,000 for arguing the case at Washington, he then being a United States Senator. The Supreme Court held that Mr. Casserly's point was good-that the sureties were released from liability, because the United States District Court had once continued the Limantour criminal case against his consent ! There is a lawyer in San Francisco who is in the habit of referring, now and then, to a Supreme Court decision as "a beautiful decision." This was a "beautiful" decision. It takes a lawyer, though, to detect the beauty. A man outside the profession might be excused for insisting that Uncle Sam was entitled to this $10,000. He was not suffering for it, however. He could lose it better than Whitcomb, Pringle & Felton could.
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It would be tedious to go over the list of celebrated causes with which Mr. Felton was connected. Two of the most important of them were the mortgage tax case and the local option case. On the first the court, in a model opinion by Judge Mckinstry, took Mr. Felton's view-that to tax a mortgage and also the mortgaged property as though it were not incumbered, is double taxation, and in some cases may be manifold taxation. In the local option case the question was whether the law was constitutional, which provided that the people of any city, town or township might by vote decide whether spirituous liquors should be sold in such city, town, or township. In the Supreme Court S. W. Sanderson and Lloyd Baldwin appeared for the temperance men, and John B. Felton and W. H. Patterson for the other side. None of these survive. Sanderson (an ex-Supreme Judge) and Felton were the men who studied and argued the case. It was another great triumph for Felton. He contended that the law was in direct opposition to the natural rights of man. The constitution of California, said he, declares these rights to be inalienable. The rights of property, life, liberty and the pursuit of happiness precede government, and the only limitation of these rights is the rule that they shall not be used to the injury of others. A man has the right of using or abusing his own property, provided that in so doing he does no injury to another. His natural rights can only be bounded, limited or restricted by the natural rights of others. The acts which a man can be prohibited from exercising over himself or his property must be directly and necessarily injurious to others. He cannot be prevented from using or abusing his own property merely because other individuals, or the community, are indirectly injured thereby. The right to use wines, beers, liquors, etc., is a natural right of property. It can only be limited or restricted by the Legislature, and then only so far as the exercise of that right interferes directly with the rights of others. If a man uses these articles! in excess- to his own injury only, and not to the injury of others-he is exercising the right of abusing his own property, and, though blameworthy, is not within the prohibitory power of the law. If, through such excess, he becomes dan- gerous to the lives or property of others, he then becomes amenable to the law. But, the article, the abuse of which has led to his thus becoming dan- gerous, cannot be taken away from others, who are capable of using it in a proper manner. When an article capable of proper and legitimate use is also capable of being used to excess, and thus produce misery, the simple possi- bility of its being used to 'excess does not prevent it from being property. The Legislature can regulate the use of it, but cannot prohibit the use of it. The Local Option law prohibited the use of liquors. It was, therefore, void.
Continuing Felton's argument, if a man takes his own life by eating or drinking things that are unhealthy, so long as he is the only one injured,
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the law cannot reach him. There is no power in the Legislature, if he is sick, to lend its sanction to the prescription of the physician. Though assured that what he is about to eat is sure death to him, the law cannot interfere. His actions are a source of grief and woe to his family, the grief may be a source of disease or death to his father or mother, but society has no correctives to apply and no punishment to inflict. The injury, though great, is indirect. His opinions are so perverted and backed with so much plausibility that, through their influence, another loses his faith in all religion, becomes a profligate or murderer, yet he is not an accomplice.in the crime or a sharer of the punishment.
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The minister who bought the place of Shakespeare, cut down the mulberry tree planted by the poet's own hands. The civilized world still execrates him for it. If Shakespeare had left the single copy of "Macbeth," or "Hamlet," or "Lear," to a friend, that friend could have destroyed it and caused incalculable damage to the world. The owners of the collections of Raphael, of Rubens and Titian, can destroy them and cause more evil than if an army were slaughtered. I may make such use of my land that property in the neighborhood will lose all its value. Yet the law is powerless. I may so conduct myself in my family that my wife and children cannot live with me. I may promulgate opinions which set society on fire. Yet, inasmuch as the injury resulting from all these things is not the necessary consequence, but only an indirect one-inasmuch as I have exercised a natural right without directly hurting another-I cannot be punished. I deserve punish- ment, but there is no one possesses the right to inflict it.
The natural rights that belong to the citizen cannot be taken from him without vesting absolutely despotic power in some one or somebody. Force, ยท ignorance, the pride of caste, may ignore them, but, if suppressed, they will rend asunder any government. An able, bold judiciary must stand forever on the frontier which separates natural rights from civil rights. Spirituous liquors are property in all civilized countries. Their use is general. A very great class of persons make a good use of them. The Local Option law practically denies their use to the man of melancholy disposition, the man of impoverished blood, those enfeebled by disease and to the temperate man who can use the good things of this life. Why not regulate love ? If I use ardent spirits discreetly, I do no harm to society, to my family or to myself. Why, then, interfere with me because another man uses them indiscreetly ? It would be as reasonable to prohibit me from keeping horses, because my neighbor, a bad driver, may be killed by his; as reasonable to prohibit me from begetting children, because my neighbor is guilty of debauchery, adultery or rape; as reasonable to prohibit me from indulging in love, because an ill-regulated love in another leads to jealousy and crime. Love is the cause of more crime than drink.
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I give the foregoing as a specimen of Felton's argumentative style, without reference to the moral aspect of the question.
Felton confined himself to civil practice. He probably took in larger fees than any other lawyer here. For their successful effort to break the Lick deed of trust, on behalf of Lick himself, he and Mr. T. H. Hittell received $100,000. In the local option case he and Mr. Patterson received the same amount. He was the chosen counselor of Michael Reese and many other citizens who had great property interests. He paid little attention to politics, but on one occasion had aspirations for the United States Senate. It was in the campaign which resulted in the election of Newton Booth, as the exponent of a new, independent, shortlived party. The Republicans had settled upon Felton for Senator, in the event of their success. In that can- vass Felton showed great power on the stump. He sometimes spoke for three hours or more without notes, and was most happy in thought and diction. He had a memorable controversy with Gov. Booth in that contest. The letters of the two rivals make fine reading. Chaste, classic, learned, trenchant-it would be difficult to surpass them in these respects.
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