USA > California > Bench and bar in California. History, anecdotes, reminiscences > Part 5
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The famous "Wilmot Proviso" came before Congress while Colonel Hoge was a member of the lower House, and he voted for it. He has been censured therefor by many of his party. Owing to the subsequent events it has been a very long while since his vote on this measure has been criticised however. The "Wilmot Proviso" was one of the entering wedges which split the old Democratic party in two. On August 8, 1848, while the House was considering the bill to place $3,000,000 in the hands of President Polk, to negotiate a peace with Mexico, Mr. David Wilmot, of Pennsylvania, a Democrat, but a Free Soiler, offered his celebrated amendment: "provided, that, as an express and fundamental condition to the acquisition of any terri- tory from the Republic of Mexico by the United States, by virtue of any
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treaty which may be negotiated between them, and to the use by the execu- tive of the moneys herein appropriated, neither slavery nor involuntary servitude shall ever exist in any part of said territory, except for crime, whereof the party shall first be duly convicted." This was adopted in the House by, a good majority, every Northern man voting for it, except two of Colonel Hoge's colleagues, Stephen A. Douglas and Jno. A. McClernand. It was being debated in the Senate when the hour arrived for the final adjournment of the session. When Congress next met, Mr. Wilmot again offered his proposition, and, after a long and heated struggle, which spread excitement and alarm throughout the country, the House again adopted it, and again it went to the Senate.
The Senate now struck out the Wilmot Proviso from the $3,000,000 bill just mentioned and sent the bill back to the House. The House, in Committee of the Whole, March 3, 1847, again tacked on the proviso by a vote of 90 to 80. But, strange to say, right afterwards, in the House, after the report of the Committee of the Whole, the previous question being ordered, and recruits summoned, the proviso was defeated by 102 to 97. Colonel Hoge did not vote on this motion. Mr. Wilmot then moved to lay the bill on the table. This was negatived-ayes 87, noes 114. The bill then passed without the Wilmot proviso-ayes 115, 110es 81, Hoge voting with the Free Soilers in the negative. Allen G. Thurman, of Ohio, Demo- crat, voted for the Free Soil proviso in Committee of the Whole and in the House, but when the House rejected it he voted for the Three Million bill, with the proviso left off.
It is a curious fact that, while Colonel Hoge, who has through thick and thin, steadfastly to date preserved his allegiance to the Demo- cratic party, voted for this celebrated proposition, it was yet opposed by Stephen A. Douglas, General John A. McClernand and even Daniel Webster.
At the close of the second session of the Twenty-ninth Congress, il 1846, Colonel Hoge resumed law practice at Galena. He had kept his office open while in public life, and during his second term in Congress had formed a partnership with Mr. Samuel M. Wilson, who removed from Ohio to take charge of his business. The firm of Hoge and Wilson practiced in Galena until 1853, when the two partners came to San Francisco in company and continued their business association here until 1864, when they "parted friends," always to remain such.
Colonel Hoge's life in California has been a very active one, politically and professionally. He has been conspicuous in State conventions, and was Mr. Casserly's chief opponent when that gentleman was elected to the United States Senate in 1869. He is the acknowledged sage of his party. He was President of the Constitutional Convention of 1878, and also pre-
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sided over the body of Fifteen Freeholders of San Francisco, which prepared the defeated charter of 1879.
In his profession the Colonel has been eminently successful, having amassed a fortune of $100,000. In 1880 I found by consulting the Supreme Court reports, that, either by himself or in connection with his long-time partner, S. M. Wilson, he had appeared in the Supreme Court of this State oftener than any other member of the bar, with four exceptions.
In arguing a cause, Colonel Hoge is always animated, his countenance full of expression and his eyes full of speech. His ideas are expressed with wonderful clearness. He argues a law question like a master. Bench and bar go to him for instruction. He is restive, however, in argument. He doesn't like to be interrupted by counsel or even by the court.
In the matter of business location, this veteran has shown rare conserva- tism : he still looks out to the south and west from the same sunny offices in Montgomery Block where he has prepared his briefs for thirty-four years !
In personal appearance he is striking. Only his gray hairs tell of his age. He is very lively in his movements. So also, his conversation is viva- cious, and readily turns into a channel of play. Considering his age, his alertness of mind and body are remarkable.
I must tell a story of the Colonel before I part with him. If it is not true, it is yet perfectly harmless, and I get it from a warm admirer of his. The Colonel, ever since his arrival in California, and for some years previous thereto, has been distinguished for his habitual neatness of dress and his absolute purity of linen. It was not always thus, they say. During the first years of his practice among the rough miners of Galena, he is represented to have been very loose and careless in this respect. It chanced that, about the year 1843, he visited Philadelphia, where he heard a legal argument by that advocate of national renown, David Paul Brown. Brown was very graceful and impressive in his delivery, and always studiously faultless in his attire. Some friends who had accompanied Colonel Hoge into court asked him, as they left the chamber, what he thought of the great lawyer's effort. The Colonel replied that he could make a better speech himself. There seemed to be something on his mind, but he said nothing more. Upon his return to Galena a striking change was observed in his exterior, and ever since then he has been one of the best dressed of men.
I will close this chapter with an incident which illustrates the Colonel's love of fun :
In the Supreme Court, in December, 1876, while an argument was being addressed to the bench, Colonel Hoge, Judge Cope, and another leading law- yer were carrying on a conversation in a subdued tone, but not subdued enough, and Chief Justice William T. Wallace concluded to subdue it altogether. Not caring to openly rebuke such eminent counsel, one of whom
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had once occupied a seat on that very bench, the Chief Justice beckoned to the bailiff and whispered something in the ear of that functionary, who then softly approached the talking trio, and in his turn whispered to each : "Judge Wallace says stop talking." Colonel Hoge, who was the last to hear the gentle command, straightened up in his chair, motioned the bailiff back and said to him, in a tone just loud enough to be heard by his fellow culprits : "You tell Chief Justice Wallace to ." The bailiff reddened up, glanced hastily at the Chief Justice, then, with a bewildered expression, moved to his regular station. There, for some time, he seemed lost in deep thought. Suddenly he brightened, and turned his eyes toward Colonel Hoge, with a look which plainly said : "May be you think I won't tell Judge Wal- lace ?" Did he? I never heard ; but I hope he didn't.
CHAPTER V.
Samuel M. Wilson-Association With Joseph P. Hoge in Illinois and California-A Broad Practice and Princely Revenue-The Broderick Will Case-The Nitro-Glycerine Explo- sion, 1866-The Mining Debris Litigation-A Striking Instance of the Law's Delay- The Conflict Between State and United States Land Patents-A Seat on the Supreme Bench Declined-Meeting the Giants of the Eastern Bar.
As I turn to this bar leader, an observation of Prof. Max Muller recurs. It was in the address on Freedom before the Birmingham and Midland Institute, October 20, 1879: "If there is one among the leaders of English thought, who, by the elevation of his character and the calm composure of his mind, deserved the often misplaced title of 'Serene Highness,' it was, I think, John Stuart Mill." If there is one among the leaders of this bar, who, by the elevation of his character and the calm composure of his mind, deserves this title, it is Samuel Mountford Wilson. In him we behold no meteor of brief career, speeding along its dazzling track, but an orb of massive momen- tum, pursuing with stately motion an orbit well defined. Happily, as Starr King once said of the sun, "he has no French ambition for display." In him we see character,
"Constant as the northern star, Of whose true, fixed and resting quality There is no fellow in the firmament."
This gentleman was born in Steubenville, Ohio. When he placed his name on the San Francisco great register, June 2, 1866, he gave his age as 42 years-making him 63 in 1887. When he was four years old his father died. He attended Grove Academy a few years, but never received a college diploma, being compelled to maintain himself from the time he had the physical strength to do so. He read law in the office of General Samuel Stokely, a member of Congress from Ohio, pursuing Latin and other studies at the same time. After his admission he practiced at the bar in Steubenville a short time, when Colonel J. P. Hoge, who had a good law practice in Galena, Illinois, and who was then in Congress, invited him to Galena and offered him a partnership, which he accepted. This was in 1845. Colonel Hoge was thirteen years older than Mr. Wilson. They had known each other well in Ohio, where Colonel Hoge was also born, and where the Colonel's sister and Mr. Wilson's brother intermarried. While at Galena the District Attorney of the county resigned and Mr. Wilson was
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appointed to fill the vacancy. The only criminal law business which he ever attended to, devolved upon him during his fragment of a term as District Attorney of Jo Daviess county. He never liked this branch of law practice.
Mr. Wilson first met at Galena the lady who became his wife. Having studied for his profession in the office of a Congressman, afterwards having effected a business partnership with a Congressman, it very curiously coincided that he should form a matrimonial alliance with the family of another M. C. His wife was a Missouri lady, daughter of John Scott, delegate to Congress from Missouri Territory, and the first Representative to Congress after the admission of Missouri as a State. Messrs. Hoge & Wilson remained in part- nership in Galena until 1853, when they came together to San Francisco, closing their Galena business and continuing their partnership here. I do not recall another instance of such a far translation of an entire law firm at one time.
The old Galena firm held together in San Francisco, having offices in Montgomery Block and conducting a large business until in 1864, when it was "dissolved by mutual consent," over eighteen years after its formation. The old law partners have since steadily continued their friendship for each other, and each frequently takes counsel of the other in the conduct of impor- tant cases.
Upon the separation of Messrs. Hoge and Wilson the latter formed a partnership with his brother, David S. Wilson, which continued about one year and a half, when David S. removed to Iowa, where he was afterwards elected a Circuit Judge. In 1866, Mr. A. P. Crittenden joined Mr. Wilson, and the firm of Wilson & Crittenden continued until the death of Mr. Critten- den in 1870. From 1870 to 1874 Mr. Wilson had no partner, but retained Judge W. W. Cope to assist him in his business. In January 1874, Mr. Wil- son and his second son, Russell J. Wilson, became associated in business, and the firm of Wilson & Wilson has since continued without change, other than the admission of another son, M. S. Wilson. Russell J. Wilson had been admitted to the bar by the California Supreme Court in October, 1873, and had not long before returned from Knox county, Ohio, a graduate of Kenyon College, from which college had graduated Judge David Davis, Judge Stanley Matthews, Henry Winter Davis, the peerless orator of Maryland, and many other men since prominent in the national councils.
Mr. Wilson has a larger income from his regular practice than is enjoyed by any other lawyer in California. He is attorney for a score of millionaires; also, for many of our most prosperous mining companies; for the Safe Deposit Company; for Wells, Fargo & Co., which corporation, by the way, is organized under the laws of Colorado; also, for the Bank of California, the original articles of incorporation of which he drew when the institution was located at the southwesterly corner of Washington and Battery streets, in
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1864. He also frequently appears as attorney for the Central Pacific Railroad Company.
Mr. Wilson is a methodical, patient, tireless worker and investigator. With the aid of his sons he wields his immense practice without difficulty. While perfectly unassuming, he has the fullest confidence in his capacity, as may be inferred by his opposing, single-handed, as he has done, the giants of the eastern bar before the most august bench in the land. He equips himself in complete armor for every encounter. His library is well selected, and in utility and number of volumes is not exceeded by any private law library in the State. He has what is called a legal mind-a well balanced mind. He is a lawyer clear through, and makes law his constant study. He loves the science. He has a genius for work. His habits are excellent-his life blameless. He has a reflective cast of mind, a fine judgment, a vast fund of common sense. His success, therefore, is not at all surprising. Success was his destiny.
I have heard some good lawyers assert that Mr. Wilson was at his best before a jury, while others say his place is before the court. The truth is, he is good in either position, but not being a magnetic or eloquent speaker his jury addresses are not powerful appeals. His delivery is quiet and deliberate, his speech plain. He very rarely touches ornament, and, while always earnest does not often warm up. Simple in his tastes and dress, free from haughtiness and affectation, he yet possesses a more magisterial air than any bar leader here. He enjoys the unqualified respect of the entire bench and bar. Both in and out of court you recognize in him the thoughtful counselor and well bred gentleman. And the high esteem in which he is held by the profession is due not more to his legal ability than to the uniform gentility which marks his treatment of his brethren.
It would be tedious to briefly glance at one-half of the more important causes in which Mr. Wilson has appeared at this bar. In the mortgage tax cases, the Beale street cases, the New City Hall case, the case of Sill vs. Reese, the Black will contest, and many others which excited deep interest in the public mind, he was conspicuous, and generally led the successful side. The case of Cunningham vs. Ashley et. al., tried here at an early day, involved the title to the lot of land on which Platt's Hall stands. The plaintiff was D. O. Mills' father-in-law, who built and owned the Nucleus Building. The defendants were Delos R. Ashley and Jesse D. Carr, the latter now a wealthy farmer in Monterey county, and Ashley afterwards becoming State Treasurer of California and Member of Congress from Nevada. Mr. Wilson was for Cunningham, and prevailed over John B. Felton, D. P. Barstow and John Garber. The case of Porter vs. Woodward, et. al. was brought to recover a part of Woodward's Gardens and adjacent grounds of large area. There were many defendants and some twenty-five attorneys appeared on their
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behalf, but the defense was chiefly conducted by Messrs. Wilson and J. R. Jarboe. The plaintiff's attorneys were William H. Patterson and B. S. Brooks. The case was ably contested and was taken to the Supreme Court. The defendants were successful in the District Court and on appeal.
Mr. Wilson has done well to eschew criminal practice. In the line of civil business, he keeps farther from the people, his name is less before the public eye, he is seen less, but he is felt more. He is not suited to the bustle and excitement of criminal trials. His deliberation and judicial cast of mind, keep him off the stage where guilt and justice mneet. He is 110t strong in appealing to the feelings, the passions.
" He has not learned the mystery of awaking Those chorded keys that soothe a sorrow's aching, Giving the dumb heart voice, that else were breaking."
But in the wide domain, which he has been so industriously exploring for so many years, his capacity for investigation, his powers of argument, his poise of judgment, have found a congenial field. They impress his mind upon the jurisprudence of the State. In court Mr. Wilson is of easy bearing, but not courtly. He keeps full notes and never mistakes evidence. He uses his books with much discrimination. His authorities are in point. He talks forcibly, but not finely. He is cool, clear, eminently practical, concise, cogent, logical. His style is strictly argumentative; there is no hurry, no fretfulness, no impatience. Having improved his office hours he enters the court-room "strong in the assured sense of present skill, in the calm knowl- edge that the hours will bear good fruit."
In our Superior Court, Department 2, 1880-Calhoun Benham appearing for plaintiff, Mr. Wilson for defendant-a jury being impaneled, Benham wanted to amend his complaint and proceed with the trial. , Mr. Wilson objected, and insisted that if the amendment was allowed the trial should be postponed. "I prepare my cases," he said. "I have analyzed this com- plaint. I know just what the plaintiff will be permitted to prove under each count (holding up a list of his authorities). If this amendment is allowed I may desire to demur; or I may move to strike out; or I may answer it; I prepare my cases, so that when I come into court I may be able to assist the court and jury."
John M. Burnett (sotto voce)-And to beat the other side.
The oldest short-hand reporter in California, the late A. J. Marsh, gave it as his opinion that Mr. Wilson was the most subtle cross-examiner he ever heard, except Durant, of Boston, a contemporary of Choate. Speaking of Choate, who was never properly reported, the reporter whom I have just named, stated that there were a dozen short-hand gentlemen in San Fran- cisco who could report Choate's speeches verbatin. This he said in 1881.
Mr. Wilson has appeared in the Supreme Court of the United States
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more frequently than any member of the California bar. One of the most interesting of the causes which took Mr. Wilson to the highest tribunal of the nation was the Broderick will case. Broderick, United States Senator from California, shot in a duel by Judge David S. Terry, September 12, 1859, died four days later, as Harry Byrne afterwards died, without wife, parents, children, brother or sister. A paper, purporting to be the last will of Broderick, dated at New York City, January 2, 1859, was admitted to pro- bate in our Probate Court, October 8, 1860. Under his alleged will John A. McGlynn received $10,000, and the remainder of the estate went to George Wilkes, of New York City. McGlynn, Wilkes and A. J. Butler were named executors. The estate, consisting chiefly of land now in the heart of San Francisco, was sold to several hundred purchasers in 1861, under order of court.
A little over eight years elapsed, when, on the 16th of December, 1869, a suit in equity was instituted in the United States Circuit Court in San Francisco to set aside the probate of Broderick's will and have the same declared a forgery, and to recover the estate. The complainants were John Kieley and Mary, his wife, George Wilson, and Ann, his wife, and Ellen Lynch, all residents of Sydney, New South Wales. The bill alleged that , the three women named were daughters of Catherine, deceased sister of Broderick's father, Thomas, and were the only heirs at law. The com- plainants excused their long delay in asserting their rights by declaring that they lived in a remote and secluded region in Australia; that they were illiterate and did not hear of Broderick's death until eight years after the probate of his alleged will.
The high position of Broderick, the tragedy of his death, his great popularity at the time, and the extensive possessions he left behind him, drew wide attention to this contest in the Circuit Court. The history of this con- troversy is replete with interesting facts and incidents. Mr. Wilson appeared with other leading counsel in support of the genuineness of the will, and interposed a demurrer, which was sustained, and the complainant's bill was. dismissed. The complainants appealed, securing the services of I. T. Williams, who made an oral argument, and S. H. Phillips, who filed a brief. In the Supreme Court of the United States Mr. Wilson was alone for the defendants. He contended that a court of equity had no jurisdiction of the subject matter of the suit, the same being vested exclusively in the San Francisco Probate Court, and that the action was barred by the several California statutes of limitations. He made other points, but upon these just stated he obtained an affirmation of the decree of the Circuit Court. Considering the interests involved in this controversy, and the large number of persons affected, Mr. Wilson must have received a princely fee.
The case of Meeks vs. Olpherts, Sharon et. al., in which Mr. Wilson
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appeared for the defendants, was won by him in the United States Circuit Court in this city; and the plaintiff appealing, the judgment was affirmed. Mr. Wilson had Montgomery Blair against him in the United States Supreme Court. The action was to recover possession of a hundred-vara lot back of the Palace Hotel. This case reveals a striking instance of the law's delay. George Harlan, who once owned the property in dispute, died at San Fran- cisco, intestate, July 8, 1850. Henry C. Smith took charge of the estate, as administrator, August 19, 1850, and afterwards resigning, Benjamin Aspinall was appointed in his stead, June 15, 1855. Aspinall settled up and was dis- charged May 12, 1864, having meanwhile sold the lot in question, under order of the Probate Court. At the time of the decision by the United States Supreme Court in Meeks vs. Olpherts (100 U. S. Reports, 564), A. D. 1879, the Harlan estate was still in court, where it had been twenty-nine years, Joel Harlan and Lucien B. Huff being then administrators.
The defense in Meeks vs. Olpherts was the statute of limitations, and the United States Supreme Court held: (1) The statute of California which provides that no action for the recovery of real estate sold by order of a Pro- bate Court, shall be maintained by any heir or other person claiming under the intestate, unless brought within three years after such sale, applies to the administrator who made the sale as well as to the heirs. (2) When by lapse of time the action is barred against him, it is also barred against theni, because the right of possession is, by the law of California, in him and he represents their interests.
In the official report of this case Mr. Wilson is presented to the world in italicized type as Mr. S. M. Watson. But, perhaps, Mr. Wilson was not working for glory altogether. S. M. Watson did not get the fee.
The case of Sherman vs. Buick (93 U. S. Reports, 209), was the initial fight of the conflicts between State and Federal patents for lands in the sixteenth and thirty-sixth sections, under the act of Congress of March 3, 1853. This case was instituted in 1872, in the Third District Court, Santa Clara county, to recover possession of the southwest quarter of section thirty- six, township five south, range one east, Mount Diablo meridian. The plaintiff claimed under a United States patent, issued May 15, 1869, while the defendant relied upon a State patent, issued January 6, the same year. The act of Congress referred to having granted to the State the six- teenth and thirty-sixth sections of public lands within the State, provided (section seven) that the State should respect the claims of persons settling in such sections before survey, the State to select other lands in lieu of those so settled upon ; while section six declared that no settlement should be protected unless made within one year after the passage of the act. Samuel J. Sherman had settled on the land in dispute December 20, 1862. The land was surveyed by the United States in August, 1866, and Sherman received his patent from the
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