USA > California > Bench and bar in California. History, anecdotes, reminiscences > Part 8
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In 1852 he was counsel for the defense in one of the strangest criminal cases on record. A woman of the world, "Old Harriet," kept a saloon on Broad street. A mountain stream, Deer creek, dashed by in the rear of her house-right through the heart of the town. It was an early day, and she had a business which "paid." At the foot of the street there had been a bridge, which was the highway of communication between the two divisions of the settlement. On Little Deer Creek, a mile off, on the other side of the main creek, was the mining camp of Pat Berry, a prosperous miner. Right across the street from " Harriet's " there was, perhaps, the liveliest dance- house to be found in " the mines." It was nightly visited by men of all con- ditions, who made night, and sometimes morning, "hideous " with their revelry. Among these festive arrivals were many who came from across the creek-from mining camps, here, there and everywhere.
During one rainy season a freshet broke down the bridge across the raging creek, but a tree was felled so as to afford a passage to footmen. At the time referred to the creek was a turbulent torrent, and went roaring and dashing and crashing through the town, cutting it in two, with only the fallen tree for a footway between the two sections. On one Saturday Pat Berry came to town. He had made money during the week, and brought it with him. Arrived in town he bought an entire new outfit of outer and under- clothing. After dinner he went to the dance-house, and spent an hour. Then he crossed the street to "Old Harriet's." He was seen at the latter place at a late hour. But thereafter he was never seen alive.
A cry of "murder !" rang out upon the air that night, but not being repeated those whom it aroused gave it little thought.
But where was Pat Berry ? His nude body was found in an eddy of the creek, about six miles below, a few days afterward. A trifling scratch was upon the abdomen, but on the forehead was a large, extravasated wound, which, according to medical testimony, must have been inflicted upon the victim while he was still alive. On the following day Harriet was accused of the crime of murder and arrested-also a stalwart Cornishman, her " fighting- man," so-called. In those days gold dust, instead of stamped money, was the medium of exchange. Everybody who was in business kept a pair of scales
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to weigh and determine the value of gold dust. Harriet had such a pair of scales ; and there was a large iron weight used with it, which, the prosecution said, was the instrument of the death of Pat Berry.
On the trial of the woman and her fellow, John R. McConnell, a bright but eccentric and erratic leader of our bar, who died in Colorado in 1879, prosecuted, and Lorenzo Sawyer defended. Justice John Anderson, brother of one of the earliest and ablest of California lawyers, and who, thirty years later was a Justice of the Peace in the same old town, heard the preliminary examination of the case. This consumed two or three days. It was estab- lished by the prosecution that Berry had money upon his person when he visited Nevada City on that fatal night. His movements were traced ; the time and manner of the recovery of his body were shown ; that the wound on his head was given in life was made clear, and it was also proved that this wound was inflicted with a round, blunt weapon.
The theory of the prosecution was that Berry had been murdered for his money in the brothel of Harriet by the latter and her "friend," then stripped of his clothing, which, as stated, was all new, and thrown into the convenient creek at the rear of the house.
Against so plausible a theory Lorenzo Sawyer had to contend. It is to be regretted, from a strictly legal standpoint, that Justice Anderson did not decide this case as it was at first submitted to him. It is to be regretted that the highest tribunal of our country had not been called upon to pass on this very case. It would have furnished a fine test of the certainty of human judg- ment. It would be decidedly interesting to know what would have been the issue of that trial, if the evidence mentioned below had not been elicited.
Judge Sawyer's theory for the defense was that Berry had started about midnight from the woman's house for home; that he was heavy with alcohol when he set forth upon his dark, homeward journey ; that in crossing the creek he fell off the narrow log ; and that, in falling, his head struck upon a rock-there were plenty of rocks in that vicinity-and thence received the wound from which he died some minutes later, thus accounting for the extravasation of blood. The missing clothes were a puzzler, but the counsel sought to account for their absence by invoking certain principles of natural philosophy as to the action of the roaring torrent of water, rocks, trees, etc., in the bed of the stream.
Justice John Anderson, did not know what to do with the case as sub- mitted to him. He took it under advisement for a week.
It so happened, that, during the week, at midday in view of several wit- nesses, two men started across the creek aforesaid-to walk the famous log in company. In the middle of the riotous stream one of them pitched off. He was never seen alive. His companion and others-for this was in the day- time-ran down the banks of the creek, and, some miles below, found his
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dead body in the very same eddy in which Pat Berry's body had been found a few days before. An extravasated wound was found upon the head, just like that which was on the head of Pat Berry. There were no other wounds on the body, but all the clothes were stripped off except the undershirt, which, turned inside out, and drawn over his head, was clasped around the wrist, and held by a single button.
This last mishap coming to Judge [Sawyer's knowledge, he moved the court to reopen the case. It was so ordered, and new evidence of the circum- stances just related being submitted, the defendants were discharged.
When informed of the circumstances of the second death, "Harriet " lifted her hands and eyes towards heaven and in tones and manner intensely tragic, but with manifest sincerity, exclaimed : "God himself has interposed to save an innocent woman !"
There was tried, in 1851, at Rough and Ready, Nevada county, before E. W. Roberts, Justice of the Peace (since a County Judge and State Senator) a case which involved the possession of a mining claim on Industry Bar, valued at $100,000. It was the case of the period. The parties to the suit were many and prominent, and fully supplied with the sinews of war. Lorenzo Sawyer was leading counsel for the plaintiffs. It was agreed that the hotel bill, wines, cigars, tobacco, etc .; for both sides, should go into the bill of costs in the case, and be paid by the losing party. After a three days' trial the jury disagreed. A second trial, lasting ten days, resulted in a victory for Judge Sawyer's clients. The bill of costs, recovered against and paid by the defendants, was $1,992. The hotel bills were probably twice as much more.
Among Judge Sawyer's leading cases are Taylor vs. Hargous (4 Cal., 268), and Eddy vs. Simpson (3 Cal., 251). These cases are "leading," not only in the sense that they are important, but that they first established, in this State, the principles therein laid down. In Eddy vs. Simpson, the plaintiffs sued to recover damages for interference with their water rights. One Artemas Rogers was the heavy man of the defendants. He was a very active, positive character, and anticipating the suit, he visited Sawyer at his office to retain him. Sawyer had prevailed against Artemas in a hot legal conflict a few months before, and he remembered it. He now wanted his help. Having stated his case, he asked :
"Can you win it ?"
"I don't think I can," said Sawyer.
"By -, sir; you are not the man for me, then," exclaimed Rogers. "I don't think I am," said Sawyer, quietly.
Rogers then narrated a chapter from his experience in Sawyer's native State. He said he had once consulted a lawyer in an important cause in that State, who did not think he could win. He thereupon declined to retain him, employed another lawyer, who thought he could win, and he did.
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"I had rather be against you than for you in this matter," said Sawyer. " As you do not want me, you will not object if I accept employment from the other side. I know they will call on me.
"Not at all," replied Rogers. "If I do not employ a lawyer, I will not keep him out of the case. Do what you can for them, and charge a d- big fee. But you can't win."
Within an hour Sawyer was retained on the other side. The trial soon came off before the District Court. Barbour, the Judge, having recently been elected was disqualified in many cases, and Judge A. C. Monson, of Sacramento, who afterwards became one of the richest men in the State, presided at that term. Judge Monson instructed the jury as requested by Sawyer. There was a dis- agreement, only one obstinate juror favoring the Rogers party. A change of venue was had to Marysville and the case was tried again before Judge W. T. Barbour. John R. McConnell conducted the plaintiff's case, Sawyer being unable for various reasons to attend. Judge Barbour refused to give the instructions which Judge Monson had given on the first trial but gave instructions directly the reverse, and a jury brought in a verdict for the defen- dants. Then Artemas Rogers took particular pains to wait upon Sawyer and announce the result.
"You laugh too early," said Sawyer; "I'll show my hand in the Supreme Court. We will meet again at Phillippi."
Rogers afterwards discovered that he had laughed too soon. The plaintiffs were the men who laughed last and who laughed best. The Supreme Court reversed the judgment, in a very brief decision written by Justice Wells, one of the very few opinions penned by that Justice.
In the case of Taylor vs. Hargous, which was commenced after Judge Sawyer's removal to San Francisco, and which he won both in the old Superior Court and on appeal, the Supreme Court declared that when a homestead has been duly selected, and occupied as a residence, and the hus- band executes thereafter a deed of the property and removes with his wife therefrom, but the wife does not join in signing the deed, the homestead is not abandoned and the deed is void. Justice Heydenfeldt, who wrote the opinion, said: "If the husband can sell at pleasure, and remove to another place, without the consent or approbation of the wife, then the design of the statute to protect her against the improvidence, misfortunes or miscon- duct of the husband, would be totally nugatory."
While in Nevada City, Judge Sawyer practiced law in partnership, first with E. F. W. Ellis and afterwards with Judge Stanton Buckner. It was announced in a local print recently that a certain lawyer was the author of the Sole Trader Act. It was an error. E. F. W. Ellis wrote and secured the passage of that measure, its necessity being suggested to him by the circum-
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stances of a certain female friend of his in Nevada City. 6 It is one of the wisest acts on our statute books, although it has often been made the cover of gross fraud.
Ellis was in the lower house of the California Legislature in 1852. He was an able lawyer; but, like Baker, he was restive in harness, and thirsted for glory. He went back to his State and Baker's State, and, during the war, was Colonel of the fifteenth Illinois regiment, one of the earliest to volunteer on the first call. He fell in a charge at Shiloh. "Catch mne, boys !" were his last words. While criticising the evidence of a witness, on one occasion, in a Nevada City court, Ellis glanced at the subject of his remarks just in time to see him draw a pistol. Ellis drew a long knife, which he carried, and leaping over the bar table, rushed upon his enemy, who at once fled into the street. Ellis then returned and concluded his argument. Judge Stanton Buckner was from Missouri, to which State he returned. Sargent, in his hasty history of the Nevada bar, tells this of Buckner: To demur was his strong forte. He was a kind and gentlemanly man, but disagreeable to practice with, by reason af his prolixity and slow- ness. In arguing a petty criminal case one day before Justice Endicott, who was very thin and bony, and who had a very hard seat to sit upon, Buckner, after a long talk, assumed a certain attitude peculiar to him, and which indicated that he had a great deal more to say. "I will now show your honor," he said, "that a man is presumed to be innocent until he is proved guilty." "The court admits that," said Endicott, interrupting; "the court is with you in that; but there is no presumption that the court's bottom is made of cast-iron."
In the autumn of 1853, Judge Sawyer removed to San Francisco, and he has ever since resided there. During his short stay there in 1851, he was in partnership with Roderick N. Morrison, then County Judge and Presiding Judge of the Court of Session, and Frank M. Pixley. Judge Morrison was Mr. Pixley's uncle. His name is upon many pages of our earlier Supreme Court Reports.
San Francisco has always been a very easy city to get acquainted with. At least a hundred men have won substantial honors there before they were well acquainted with a hundred men in the city. Judge Sawyer had not been there a year when he was elected City Attorney. Litigation was very heavy at that time; the city, too, was involved in many suits. During his term of office, no judgment was obtained against the city, and of the judg- ments which were rendered in her favor only one-Hazen vs. San Francisco- was reversed on appeal. In the case of the San Francisco Gas Company vs. the City of San Francisco (9 Cal. 433), Judge Sawyer, then having passed out of the service of the city, appeared against the city. He conducted the plaintiff's case in the District Court, and, on appeal, made an argument and
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prepared an elaborate brief. The final decision in this case, which was in his favor, overturned principles upon which many judgments in favor of the city rested.
In 1855 he was a candidate before the State Convention of his party for the nomination of Supreme Judge, and was defeated by six votes. At that election a nomination was equivalent to an election. In the spring of 1861 he formed a partnership with General Charles H. S. Williams, which con- tinued until his appointment to the bench of the Twelfth District Court.
This firm established a branch office at Virginia City, Nevada, where Judge Sawyer was temporarily engaged, when, in May, 1862, Governor Stanford appointed him Judge of the Twelfth District Court, Judge Alexander Campbell having resigned. Crossing the snow-wrapped mountains on horse- back, he reached San Francisco on Saturday night, and on the next Monday, June 2, 1862, he opened court at Redwood in San Mateo County-the coun- ties of San Francisco and San Mateo comprising the Twelfth Judicial District. He was elected at the next election for a full term without opposition, both parties having put him in nomination. Under our reorganized judicial sys- tem, pursuant to our second State Constitution, in 1863, Judge Sawyer was elected on the Republican ticket a Justice of the Supreme Court. On cast- ing lots, as required by the constitution, he drew the middle term, six years. During the last two years of his term he was Chief Justice. In 1869, as his term as Supreme Judge was drawing to a close, Judge Sawyer was appointed by President Grant, Judge of the United States Circuit Court of the Ninth Circuit, embracing the Pacific States. The Senate confirmed the nomination without dissent, and he entered upon the office in the beginning of 1870.
At the bar and on the bench Judge Sawyer has always been distinguished for industry and honesty. He never laid claim to brilliancy or genius. He is a man of business, richly endowed with common sense, practical, prudent. Truth and duty are his watch words. In investigation he dives to the bottom and explores with rare patience and application. He always made it a habit to investigate thoroughly whatever might be the subject of his study. His staying qualities are great. The eccentric Lockwood, whose logical power was universally acknowledged, once found Sawyer opposed to him. It was the first case in which Sawyer appeared in San Francisco. Lockwood made an ingenious argument, and sat down, giving to Sawyer, whom he had never met before, a glance which said, "Who are you, I wonder?" Sawyer was well prepared, and made an argument full, forcible, conclusive. He had the right side of the case, too. When he closed, Lockwood, who had followed. him closely, arose and told the court that Sawyer's argument was sound, and he felt it his duty to surrender: A few minutes afterwards Lockwood seeing Sawyer in the corridor, approached him with extended hand, and said: “I don't know who you are, or where you came from, but you laid me out as
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cold as a wedge." After some further complimentary remarks, he sug- gested a partnership.
Judges Field, Sawyer and Hoffman, Federal Judges in California, are of one mind on the Chinese question. That is, while they might differ as to the kind of legislation appropriate to the subject, they agree perfectly as to where the power of legislation lies. They believe this undesirable immigration should be checked, but hold that all the State can do in the premises is by way of agitation and petition to Congress. In the case of Tiburcio Parrott on habeas corpus, Judge Sawyer has given his views at length.
Mr. Parrott, who was President and a Director of the Sulphur Bank Quicksilver Mining Company, a California corporation, was arrested, and held to answer bfore the proper State court for having employed, in the busi- ness of the corporation, certain Chinamen. He was taken on habeas corpus before Judges Sawyer and Hoffman, when elaborate arguments were made by able counsel, pro and con, on the question of the validity of the State law pro- hibiting the employment of Chinamen in certain cases, and of the article in our new constitution upon which that law was based. Judge Sawyer held that the constitutional and statutory provisions were in conflict with the con- stitution and laws of the United States, and of the Burlingame treaty between this country and China. In dealing with the question he threw out these suggestions :
Holding, as we do, that the constitutional and statutory provisions in question are void for reasons already stated, we deem it proper again to call public attention to the fact, however unpleasant it may be to the very great majority of the citizens of Califor- nia, that, however undesirable, or even ultimately dangerous to our civilization, an unlimited immigration of Chinese may be, the remedy is not with the State, but with the general government. The Chinese have a perfect right, 'under the stipulatious of the treaty, to reside in the State and enjoy all privileges, immunities and exemptions that may be enjoyed by the citizens and subjects of any other nation; and under the four- teenth amendment to the national constitution, the right to enjoy life, liberty and property, and the equal protection of the laws, in the same degree and.to the same extent as these rights are enjoyed by our own citizens. To persist in State legislation in direct violation of treaty stipulations and of the constitution of the United States, and to endeavor to enforce such void legislation, is to waste efforts in a barren field, which, if expended in the proper direction, might be productive of valuable fruit; and, besides, it is little short of incipient rebellion."
Unlike his brother Hoffman, Judge Sawyer sometimes makes public addresses. At the fifth annual meeting of the Associated Alumini of the Pacific coast, held in Oakland, June 3, 1868, the Judge responded to the toast, "The Judiciary" at some length. He was then the Chief Justice of our State Supreme Court. In this speech he said, among many quotable passages :
The bar is the fountain from which the judiciary is to be continually replenished; and, as it is a well established principle in natural philosophy, that the stream can never
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rise higher than the fountain which supplies it, so the bench can never rise far above the level of the bar.
I cannot believe it possible that one endowed with fair natural abilities, a sound and unbiased judgment, who has cultivated his talents with diligence and care, and become well grounded in the ethics of the law-who has risen to a true conception of the magni- tude, and become thoroughly penetrated with the vast importance of the mission of the judiciary in its relation to the well-being of man, and to the stability of good govern- ment-can make a bad judge. Such a man may not attain the summit of judicial great- ness; he may not be a brilliant luminary, shedding his light afar, imparting aliment and warmth to nourish and promote the administration of justice in distant lands; but he cannot fail to be a worthy judge and useful in the immediate sphere of his influence; he cannot fail to contribute, in some degree, to the perpetuity of free institutions.
In 1879, Judge Sawyer was the Grand Orator of the Masonic Order in1 California, and on October 13th of that year he delivered the annual oration before the Grand Lodge of this State. It was mainly historical, commenc- ing in the misty dawn of architecture, and tracing the course of operative Masonry through many centuries, pointing the while to the many monu- mental splendors that yet attest its handiwork, down to the time, when, reorganized upon the speculative basis, and using its implements as symbols only, the craft entered the field of charity and free inquiry. Then, following his enlarged theme down to the present day, he said :
Masonry is not, and it does not profess to be, a religion, or a substitute for religion; but it inculcates a system of the purest morals, which is an essential element and neces- sary concomitant of all true religion. There are certain elements or principles which are universally accepted as essential to all systems of faith worthy the name of religion- such as a belief in a Supreme Being; a recognition of the moral distinction between right and wrong; the obligation to recognize and cultivate the practice of all the virtues, suclı as temperance, sobriety, chastity, fortitude, prudence, justice and, chief of all, charity. On these principles all must and do agree. There are other points of faith upon which the reason may and does pause, inquire, doubt: and yet it is upon these latter that zealots and enthusiasts dogmatize most confidently, dispute most furiously, and hate most implacably. It is upon these very points where we should be most distrustful of the correctness of our judgment, and most charitable towards the views of others, that man is most confident, most obstinate, most uncompromising; and it is upon these that he consigns his fellow man to the dungeon, stretches him upon the rack and burns him at the stake. Into that disputed territory Masonry does not enter. Its leading tenet, charity, forbids it-all its principles prohibit it. It accepts and plants itself upon those self-evident and universally accepted principles which lie at the foundation of all true religion and all morality, and upon the recognition and practice of which all human happiness must rest.
On March 17, 1869, at a banquet at the Brooklyn Hotel, San Francisco, at which many had gathered to commemorate, in that agreeable manner, the life and services of Ireland's patron saint, Judge Sawyer spoke for "The Judiciary of California and of the United States." The specimens of his humor in his remarks on public and social occasions are so few that it may
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be well to give the following a place in this sketch. In closing his response on the occasion just alluded to, he thus sought to call out Judge Crockett, his- venerable associate on the bench of the State Supreme Court:
Mr. President: I see near me my distinguished associate, Mr. Justice Crockett. The law and the Gospel are intimately connected, and it has often happened that the minis- ters of the one were alike the ministers of the other. In former times it not infrequently occurred that the Lord Chief Justice of England was also a bishop. Even I, myself, Mr. President, have occasionally been set down by careless observers for a priest, but my dis- tinguished friend here never passes among strangers for anything less than a bishop. That severe and dignified gravity, which sits so gracefully on my friend here, is well calculated to produce an impression of superior sanctity. I am told, sir, that it has even become dangerous for him to venture abroad unattended; and that on his last excursion from home an expectant cavalcade of pious people, in the southern part of the State, mistaking him for your very eminent and worthy Archbishop, captured my distinguished brother, and, before he could fully comprehend the situation, whisked him off to the Mission Church. What they did with him, and how he escaped, I have never been able to learn. Perhaps he will inform you. Can you wonder at this mistake? Is it possible to contemplate that benignant countenance, and doubt that, had he lived in the year of grace 492, the mantle of St. Patrick would have fallen on his sanctified shoulders? It seems to me eminently fitting that he should be present at this festival of St. Patrick.
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