USA > California > Bench and bar in California. History, anecdotes, reminiscences > Part 6
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general government, as before stated, May 15, 1869, four months after the State of California had issued its patent to D. S. K. Buick. Sherman offered to prove these facts in the District Court, but the court excluded the evidence as immaterial, holding that at the time of his settlement the title to the land was vested in the State. On appeal to the Supreme Court, the judgment in favor of Buick was affirmed by a unanimous bench (45 Cal., 656).
The case was taken to the Supreme Court of the United States. Mr. Wilson, with whom were associated Mr. P. Phillips and Mr. George A. Nourse, representing the twice defeated plaintiff, and Mr. Montgomery Blair, the defendant, the latter took the ground that the grant of sections sixteen and thirty-six was a grant in præsenti, and that, no settlement on the lands in con- troversy having been made by the plaintiff at the date of the act, or within one year thereafter, they were not excepted from the grant. Of eighteen authorities cited by this eminent counsel, nine were from the California Supreme Court. Mr. Wilson contended that the title to sections sixteen and thirty-six did not vest in the State until they were marked out and defined by survey ; that until that was done, the grant was in the nature of a float ; that the settlement of Sherman, having been made before survey, was within the exception contained in the seventh section of the act of 1853; that, accordingly, the grant did not embrace the lands covered by that settlement, and the State patent was an absolute nullity. The opinion of the court (by Justice Miller) held that there was no real conflict between sections six and seven of the act of 1853-that the apparent conflict (one provision being that settlements shall be protected if made before survey, the other providing that no settlement shall be protected unless made within one year after the passage of the act) was reconciled " by holding to the natural construction of the language and the reasonable purpose of Congress by which the limitation of one year to the right of pre-emption, in the sixth section, is applicable alone to the general body of the public lands not granted away, and not excepted out of the operation of the pre-emption law of 1841, as the school lands were, by the very terins of the previous part of the section ; while section seven is left to control the right of pre-emption to the school sections, as it purports to do." (93 U. S. Reports, 209.)
The judgment of the Supreme Court of California was, therefore, reversed.
The case of The Ivanhoe Mining Company vs. The Keystone Consoli- dated Mining Company (102 U. S., 167) involved the title to all the real estate and mines of the flourishing mining town of Amador City, California. Here was another conflict between two patents, one issued by the State the other by the United States. Mr. Peter Van Clief and Mr. Oliver D. Barrett appeared for the plaintiff ; Mr. Samuel M. Wilson and Mr. George A. Nourse for the defendant ; Mr. Benjamin F. Butler for the State of California, and the Attorney General for the United States. Mr. Wilson was again success- ful, the court holding that the grant of the sixteenth and thirty-sixth sections
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of land to California by act of Congress of March 3, 1853, did not cover min- eral lands-that it was the settled policy of the general government to exclude mineral lands from all grants.
John Parrott, the well known. San Francisco millionaire, brought suit against Wells, Fargo & Co., in the United States Circuit Court in San Fran- cisco to recover damages for injuries to the granite structure on the north- westerly corner of Montgomery and California streets, caused by the explosion of a case of nitro-glycerine in the charge of that company on the sixteenth of April, 1866. The dangerous explosive was brought here with other express matter April 14th, 1866, from New York City, by way of Panama. On the wharf here it was discovered that the contents of the box, which resembled sweet oil, were leaking, and on the sixteenth, in accordance with custom, the box was carried to the building mentioned for examination in the presence of the agents of the express company and the Pacific Mail Steamship Company, that it might be ascertained, if possible, which company should repair the loss. An employee of the express company, under instructions, with mallet and chisel, was in the act of opening the box when the contents exploded, instantly killing all present, among them Mr. Knight, a brother-in-law of Governor Haight, and Mr. Webster, a well-known citizen, the two gentlemen being agents of the two companies. Supervisor Bell, of the eighth ward, who was passing the building on the California street side, was also killed instantly. The building was badly damaged, and windows were shattered in a large number of other edifices within a circuit of two blocks. It cost Wells, Fargo & Co. $6,000 to repair the damages to the part of the building occu- pied by them, Parrott's suit being for injuries to other parts of the same structure. Mr. Wilson, appearing for Wells, Fargo & Co., won this case in the Circuit Court and also on appeal. In the United States Supreme Court he was alone on his side, and, as the reporter states, he "argued the case thoroughly, on the precedents English and American." He had for antagonists Mr. R. M. Corwine and Mr. Benjamin R. Curtis, the latter, in the judgment of many, the foremost lawyer of the country. The court held that there was no negligence on the part of either the steamship or express company, nor of any of their agents or employees-that they had no knowledge of the contents of the box, and no means of knowledge; that nitro-glycerine was not then known as an article of commerce ; and that the companies named, as common carriers, were not bound to inquire concerning the contents of the box, having no reason to have their suspicions awakened.
Mr. Wilson was also on the prevailing side-for the defendants-in the case of McGarraghan vs. The New Idria Mining Company. In this case he was opposed by Montgomery Blair and Matthew H. Carpenter. He was lead- ing counsel for the hydraulic mining companies in their great contest with the farming interests upon the debris question-a great contest, indeed, and
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a protracted one, 1880-1886. Many farms had been ruined by the flow of "slickens " from the mines, and the farmers, combining, sought to have the miners enjoined from committing further injury of this nature. In such a conflict Mr. Wilson's usual good fortune could not attend him. The issue marked the end of the long domination of the mining interests over those of orchard, and vineyard, and farm.
The case of the Giant Powder Company against the Vulcan Powder Company involved the constitutionality of the patent laws, so far as the same are designed to extend or renew patent rights. On the trial before Judges Field and Sawyer, U. S. Circuit Court, Mr. Wilson raised the point that the time for which a patent is originally issued cannot be extended, and the point was sustained by both of the sitting Judges. Mr. M. A. Wheaton was asso- ciated with Mr. Wilson on this trial, while Mr. Causten Browne was opposed. Mr. Browne is a Boston lawyer of repute, author of an approved work on the Statute of Frauds. He came out from "the hub " with much promise and confidence, to measure swords with Wilson, but was badly wounded and his retreat was precipitate. This recalls a refreshing memory of the great New Almaden case, tried in the same court. Our Eastern friends sent out three of the greatest lawyers of the country to present one side of that case; but they found our Randolph on the other!
It is worthy of especial mention that of the many causes in which Mr. Wilson has appeared in the highest tribunal of the United States, he met defeat in but one. This was the case of Eureka Consolidated Mining Com- , pany vs. Richmond Mining Company-error to the Circuit Court of the United States for the State of Nevada. This was an action of ejectment for mining ground of great value. Having met the ablest lawyers of the East in the argument of great causes, it was remarkable that in the only case he lost in the United States Supreme Court, he should have been vanquished by an attorney of his own local bar. His adversary was Harry I. Thornton, who is represented to have made a magnificent argument. The Eureka-Richmond case is reported in the 103d volume of United States Reports, page 839.
Mr. Wilson has not been active in politics, but has several times been a member of local conventions. Governor Haight once tendered him a seat on the Supreme bench, and wrote him a letter, earnestly pressing him to don the ermine, but he declined. With his old partner, Colonel Hoge, he was a - member of the body of Fifteen Freeholders of San Francisco who prepared the defeated charter of 1879, and also of the State Constitutional Convention of 1878. Of the latter body Colonel Hoge was president, and Mr. Wilson was Chair- man of the Judiciary Committee. He refused to sign the new constitution. He rarely addresses the people. Among the few occasions when he has done so may be mentioned his Fourth of July oration at Sacramento in 1860, and his address at the laying of the corner-stone of the State Capital. His latest
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production outside of his profession was also his best-his eulogy upon Samuel J. Tilden, before the State Democratic Club, at San Francisco, shortly after the statesman's death in 1886. This he had written out, and he read it with fine emphasis and effect before a large and select audience. It was excellent in thought and expression, and is preserved in pamphlet form.
It may be added, that Mr. Wilson has husbanded an ample competence, and owns one of the most valuable and commodious private residences in the city. He is of fine personal presence, of medium stature, with dark features and high forehead. Having raised a large family, and become a grand-father, he still seems to "wear the rose of youth upon him," and at three-score-and- three he securely holds the proud eminence which has long been his of right.
CHAPTER VI.
Henry H. Byrne-A Picture of The Man and the Advocate-A Popular Idol But Dis- trustful of the Poor-Four Terms as District Attorney of San Francisco-Bouts with Baker and the Elder Foote-The Unfortunate Marriage with Matilda Heron-The Con- test of the Actress for his Estate-Her Pathetic Story Told in Her Own Words- Explanation of the Last Will-Amusing Anecdotes aud Reminiscences.
Henry Herbert Byrne whose period at the San Francisco Bar covered the eventful years 1850-71, was born in New York City. His father was Irish and his mother English. He was well educated at a French Catholic college in Canada. Admitted to the bar in his native city, he came to San Francisco at the age of twenty-six, without money or reputation. He soon formed a partnership with T. W. Freelon, and during all his professional life afterward was associated with that gentleman, except when the latter was on the bench. Byrne was District Attorney of San Francisco, for two terms 1851-52, 1853-54 and also two terms, 1858-69, 1870-71. In that responsible office he brought many distinguished rogues to justice, some of whom "felt the halter draw." He won encomiums from bench, bar, the community and the press. He was an able, faithful and diligent minister of the people. He was known only as a criminal lawyer. It is to be wondered at that he accepted the District Attorneyship for his last two terms, well knowing the arduous duties of the place, and having since he first occupied the office attained considerable reputation and wealth.
The most important trial in which he appeared was that of Mrs. Fair, charged with the murder of the prominent lawyer, A. P. Crittenden. He was then District Attorney. The trial was opened March 27, and closed April 26, 1871. Byrne made the closing argument for the prosecution, consuming two days, and this was published in full by Marsh & Osbourne, the official short- hand reporters, with all the proceedings of the trial. It was certainly an admirable effort, a fine exhibition of his power of invective, his unimpeded flow of speech, his subtle reasoning, the precision of his ideas and his varied learn- ing. It is full of interest and attractive for all classes of readers. His quota- tions were many, but not lengthy, and not unduly frequent, considering the great length of his speech. He was, however, corrected several times by Mr. Cook, his chief opponent, in statements of the evidence. To give edge to his
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points, beauty to his periods and emphasis to his conclusions, he quoted from, or made allusions to, Byron's "Don Juan," Pollock's "Course of Time," Byron's "Childe Harold," Lord Brougham's "Opinions on Politics, Law, Science, Education, Literature, etc.," "The Confessions of Rousseau," Sappho, "The Monk," of Matthew Lewis; "Little's Poems;" Mohammed, Milton, Shake- speare, Esculapius, Hippocrates, Locke, Jeremy Bentham, Edwards, Kant, Aristotle, Thackeray, Dickens, Michelet's "L'Amour," Marc Antony, Cleo- patra, Lord Nelson, Lady Hamilton, Telemachus, Diana, Cæsar, Lucrezia Borgia and Daniel Webster. This address abounds with beautiful periods and striking passages, but it must not be supposed that because of its orna- ment it was not logical. It was argumentative, forcible, convincing. In reminding the jury of their responsibility, he said : "The juror's oath is not a by-play. It is held most solemn by all Christian communities where the jury system prevails. It is that chain"which binds the integrity of man to the throne of eternal justice. And when that chain is broken, conscience swings from its moorings and society is again in a condition to resolve itself back into the original chaos out of which it was carved."
In examining the testimony of the medical experts for the defense which was to the effect that the accused was insane, he declared : "If these theories are correct, why, the mothers of posterity will produce nothing but a band of fools. I am rather inclined to think, after hearing the testimony of some of these physicians, that they have read "L'Amour," of Michelet, a crazy Frenchman, who, in the first instance, idealizes women, taking from them their blood and their brains, and then turns around and bows down before them as an idolater. There is no practical sense in the theories advanced. It is a reflection upon our mothers, upon our wives, and will send down to pos- terity a nation of fools, if these theories are correct." His most forcible and eloquent passages were hurled directly at the prisoner, and it would be out of place, probably, to repeat them here. Alexander Campbell was associated with Byrne in this case, and made the opening argument for the prosecution. The prisoner was convicted and sentenced to be hanged, but secured a new trial, and before she was again placed at the bar Byrne had gone out of office and passed away from earth.
He died at San Francisco, March 1, 1872, a few months after the close of his last term as District Attorney, aged forty-eight years. He had no rela- tives in California, and no immediate kinsfolk anywhere. A younger brother, Lafayette M. Byrne, died before him in this city. He had long enjoyed a valuable practice and had made some judicious investments in city real estate. His estate was appraised at $77,798. It proved, before final settlement, to be worth $90,000. All of this, after making a few small legacies, he bequeathed to his personal friend and brother lawyer, already well off, E. R. Carpentier.
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The minor legacies were : To David Scannell, Elijah Nichols and H. H. Byrne Ciprico, a little son of George Ciprico, the barber, $1,000 each, and to Mary Cross $5,000. David Scannell had been Sheriff in the days of the great Vigilance Committee, and has now been for many years Chief Engineer of the Fire Department of San Francisco. Three of Byrne's nieces-Mary E. Holcomb, Catherine F. Holcomb and Julia H. Howard, daughters of a deceased sister -came from Connecticut and contested the will on the grounds of unsound ness of mind and undue influence. They were offered, and accepted from Mr. Carpentier, $2,500, in full settlement, before trial.
Excepting James King of William, David C. Broderick, General E. D. Baker, and Thomas Starr King, no man was ever buried in San Francisco amid such genuine manifestations of popular sorrow as was Byrne. An immense concourse of mourners attended at St. Mary's Cathedral, where Father Speckels delivered a discourse at once impressive and ornate. Byrne had had Catholic doctrines instilled into his young mind, but through life after his maturity he claimed to be a freethinker, being a close reader and ~ admirer of Darwin, Spencer, and others of that school. His partner used to tell him his freethinking was only skin deep, and, reminding him of Napoleon's saying : "Scratch a Russian and you'll find a Tartar," said he, "Scratch Byrne, and you'll find a Catholic." Byrne dwelt apart from all churches, creeds and religious forms, but as the supreme hour approached, after stoutly holding out against many friendly importunities, he permitted a visit from a Catholic clergyman, to whom he made confession. Personally, he was perhaps the most popular man who ever lived in our metropolis-more popular than Baker. Baker dazzled the multitude from an eminence; Byrne thrilled them by actual contact. He had the faculty-not faculty, but fortune, because it was an attribute unconsciously possessed-of enlisting the affections of those with whom he conversed. Mention his name in San Francisco to-day, in any knot of men, and some one will say, "I knew Byrne intimately." The average man, after having two or three interviews with him, seemed to feel that he had been admitted unreservedly to his confidence. His funeral procession embraced hundreds of the poorer classes, in humble vehicles and on foot. In the Supreme Court the death of Byrne was announced to the Supreme Bench on July 11, 1872, by the Attorney General, John Lord Love, who made a brief address, and moved an adjournment of the court. Chief Justice Wallace, who had himself, as Attorney General, in earlier times, announced to our highest tribunal, the deaths of leading advocates, responded as follows :
The court recognizes the propriety of the motion submitted by the Attorney General. When a professional man, distinguished in the battle of life, exchanges his armor for the tomb, it is becoming that his surviving comrades pause and pay deserved tribute to his memory.
Mr. Byrne held repeatedly and for a long period of time, the responsible and im-
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portant office of District Attorney of San Francisco. In the discharge of the duties of that position, he exhibited rare and admirable qualities. In that branch of professional learning peculiarly within the province of his public labors, he exhibited a profound knowl- edge of the law, accompanied with a forensic ability and eloquence rarely equaled at any bar, and which, together, advanced him to the front rank of the advocates of the country. That he filled his office to the satisfaction of the community and the benefit of the public, is attested by the general voice, and by his repeated elections to the place.
Firm, yet courteous, he endeared himself to his brethren at the bar, and won their admiration and respect for his talents and integrity, while we are assured of the affection inspired by his social virtues by the universal manifestations of sorrow at his grave. As a lawyer, he was learned, and as an advocate, eloquent and persuasive; as a public officer, he never faltered in the pathway of duty ; as a man, he was unasuming, true and unselfish.
It is ordered that the proceedings of this occasion be entered at large upon the records, and, as a further testimony of respect to the memory of the deceased, the court will now adjourn.
Byrne was of short stature, but compactly built, with his head set firmly on his shoulders. His eyes and beard and hair were jet black, the latter abun- dant and curly. He walked with his head and shoulders thrown back, and his carriage was somewhat stiff. One hand was invariably pocketed. He had the aspect of great physical strength and solidity. He did not look the lawyer at all. His dress was plain and in good taste. His voice was most peculiar ; it was harsh, sharp, screeching, a great impediment to his popularity as a speaker. No man with such a voice could attain distinction on the stump or in the lecture room, unless endowned with abilities of the very first class, as well as all the graces and magnetism of person. Yet he made the most of it. He had severely cultivated it under the ablest professors of voice culture, and it had these compensations: he never tired in speech, was never hoarse, and was always distinct. Nor did his voice steadily repel, but the auditor, on hearing him a second time, would gradually become accustomed to its tone and forget its oddity. Music hejhad studied con amore. He knew how to sing, and yet could not sing-his voice would not permit it. As to correct- ness of rendition, he could give you almost any popular air from any leading opera. He was quick, bright, apt at repartee, convivial, and a lover of fun.
He spoke off-hand always-that is, he never wrote out anything ; but he marshaled his Ideas and prepared his plans. He was a powerful prosecutor- watchful, all-seeing, intrepid, not afraid of man or devil. His invective was scathing-it made you shudder at times. Before a jury he was very rarely eclipsed. In force, animation, beauty of imagery and illustration, his jury addresses yield to Baker's only. While he could not stand against the silver tongue* orator before the masses, or on the stump, or in great conventions, yet
*The first use of this expression "silver tongue," so far as my researches have dis- closed, was made by the poet Quintus Ennius, who has been styled "The Father of Roman Literature " [239-169 B. C.] Ennius referred to Cornelius Cethegus as "The Orator with the Silver Tongue." According to Forsyth, Cornelius Cethegus was the first Roman whose reputation for eloquence rests upon positive testimony.
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did he at times burst into eloquence as lofty and impassioned as that of Baker himself.
Our advocate was in his speeches too fond of quotation-too fond of talk- ing about the old Greeks and Romans, too fond of airing his stores of infor- mation. In quoting, he was sometimes inexact (several times so, in the Fair case), but generally he was correct and happy. He overfed his mind on books, and possessing a good memory (notwithstanding he had also a strong under- standing and an original intellect), he found it difficult, now and then, to repel the stirring thoughts of great minds which pressed upon him, bringing " news from the empyrean."
Many anecdotal reminiscences of Byrne are preserved. One day in Judge Freelon's court, in 1852 or 1853, when he was District Attorney, Governor Henry S. Foote, then a practicing lawyer here, demurred to an indictment written with Byrne's puzzling pen, on the ground that it could not be read, and did not appear to be in the English language. Judge Freelon called for Foote's demurrer, and, examining it, observed that its chirography was, if possible, more of an enigma than that of Byrne's indictment. Solomon could hardly have done better than the Judge in this perplexity. He directed each counsel to read his own pleading, which being done, the demurrer was over- ruled. If Governor Foote thought the indictment was expressed in Irish he heard Byrne perform the feat of reading it in English, with uninterrupted flow of language from beginning to end.
In a half jocular way, Byrne was in the habit of boasting that he was descended from an Irish king. He was wont to attach to himself certain per- sons, who accompanied him in his pleasures at table, etc., and whom he made his butts-whose flattery, however, was not altogether distasteful to him, but was taken as return for their entertainment. One of these was a certain well known "count." Lafayette Byrne said, one happy night, that he had never really believed in his descent from an Irish king until he saw that his distin- guished brother kept a fool-a practice, he understood, of royalty in the old times.
A man was indicted for mayhem-gouging out an eye, and Byrne, as District Attorney framed the indictment. This was demurred to, and on the argument, Byrne's attention was called to the fact that he had left an " i " out of a word. He replied, "Well, my offense is the same as the defendant's- each of us has put out an eye." "But," remarked a brother lawyer, "your offense is the greater in degree-you destroyed the whole sense of your victim ; the defendant only partially destroyed one sense of his." "And this is the first time," added Byrne's partner (striking the District Attorney while he was down), "that I ever heard Byrne leave 'I' out."
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