USA > California > Bench and bar in California. History, anecdotes, reminiscences > Part 9
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Judge Sawyer's latest public address was that delivered at the laying of the corner-stone of the Leland Stanford, Junior, University. The act of placing the stone was done by Senator Stanford, the founder of the University, at the site at Palo Alto, Santa Clara County, May 14, 1887. Judge Sawyer's name had led the list of the honored and worthy men whom the founder had selected as trustees of the institution, and at the organization of these gentle- men as a Board of Trustees the Judge was unanimously chosen as President of the Board. By virtue of that office he was called upon to make the address on the occasion stated. A lengthy extract from this address will fitly close this chapter.
The little grove in the suburbs of Athens, which Academus presented to the Athenians, constituted the academy in which Socrates, and Plato, and their disciples, taught their pupils philosophy, rhetoric, logic, poetry, oratory, mathematics, the fine arts and all the sciences so far as then developed. The influence emanating from those schools, notwith- standing their limited resources, has been largely felt through all succeeding ages; and it has, to this day, given direction to thought, and contributed largely to mould the charac- ters and the civil institutions of all the peoples of Europe, and their descendants in America, and wheresoever else they may be found on the face of the earth. The peo- ple of that little Republic of Attica-the whole area of whose territory was only about two-thirds as large as that of the county of Santa Clara, in which our coming University is located-exercised a greater influence over the civilization, institution and destinies of modern nations, than any other people, however great.
The groves of Palo Alto-the Tall Tree-are much larger than "Academus' Sacred Shade." These sturdy, unbrageous oaks, with Briarean arms; these stalwart spreading laurels, and these tall eucalypti, are much grander, and more imposing, than the arbor- tenants of the grove at Athens. The soil of Palo Alto is far richer, and more productive than that of Attica ; it yields as fine wheat, as delicious figs, grapes, olives and other
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fruits. Its scenery is almost as grand, and awe-inspiring and quite as picturesque. Its climate is as dry, equable, and delightful. The arroyo de San Francisquito is as flush, and turbulent, in winter, if-while abundantly supplied for all purposes of the University above-as waterless in its lower reaches, in summer, as the two rivulets Cephissus and . Ilissus. The transparent clearness and coloring of our sky is as "matchless " as that of Attica; and the azure doine above our heads, by |day or night, is as pure and as brilliant as the "Violet Crown of Athens." All our conditions are equally favorable to health, to physical and mental development, and to physical and mental, enjoyment. Not an hour in the year is so cold as to interfere with mental or physical labor, not an hour so hot as to render one languid, indisposed to physical or mental exertion, or as to dull the edge of thought. There is not a place in our broad land, outside our own beloved State, where one can perform so much continuous physical or mental labor without weariness or irksomeness. Should the plans of the founders of the Leland Stanford, Junior, University be carried out, in accordance with their grand conceptions, with such advantages as the location and climate afford, why should not students be attracted to its portals, not only from California, but from all other States of our vast country, now containing 60,000,000 of people and even from foreign lands? What should prevent this University from becoming, in the great future, the first in this or any other land? When fully developed, who can estimate its influence for good upon the destinies of the human race ?
A word to the founders of the Leland Stanford, Junior, University. It is fit that the corner-stone of this edifice should be laid on the anniversary of the birth of him, who, while yet a mere youth, first suggested the founding of a university-a suggestion upon which you have nobly acted, and to the establishment of which you have devoted so large a portion of the accumulations of a most energetic, active, and trying life. It is, eminently fit, that an institution founded and endowed on that suggestion should bear his name. The ways of Providence are inscrutable. Under Divine guidance, his special mission on earth may have been to wake and set in motion those slumbering senti- ments and moral forces which have so grandly responded to the impetus given, by devoting so large a portion of your acquisitions, and the remainder of your lives, to the realization of the objects thus suggested. If so, his mission has been nobly performed, and it is fit that both his name and the names of those who have executed his behests should be enrolled high upon the scroll of fame, and of the benefactors of the human race. You have wisely determined, during your lives, to manage and control for your- selves the funds of the foundation; to supervise and direct the arrangement and con- struction of the buildings, and the required adjuncts, and to superintend and give direc- tion to the early development and workings of the new University. This is well. He who conceives is the one to successfully execute. May you remain among us, to manage and control this great work, until you shall see the institution founded by your bounty, firmly established on an immovable basis, enjoying a full measure of prosperity, afford- ing the citizens of your adopted State the educational advantages contemplated, and dis- pensing to all the blessings and benign influences that ought to flow from such institu- tions. Long may you enjoy the satisfaction afforded by hopes fully realized-Seri in coelum redeatis.
Fellow-members of the Board of Trustees of the Leland Stanford, Junior, University in accepting this grand trust you have assumed the most weighty responsibilities, not only to the founders of the University, but to the children and youth of the Common- wealth, and to their posterity, in all time to come. You have assumed the guardianship of the vast inheritance, to which they have fallen heirs. In the near future, and thence- forth till time shall be no more, the duty will devolve upon us and our successors to
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administer this inheritance in such manner as to accomplish its great end. I call to mind no instance where so large an estate has, at one time, been devoted by the same persons to the foundation of a single institution of a similar character-certainly, none to take effect during the lifetime of the donors. Since our organization, other lands' with ample water rights and facilities, have been added to the estate at Palo Alto especially dedicated as the situs and future home of the University; so that the tract now embraces about eight thousand four hundred acres. The estate at Vina, set apart for all time, as a source of revenue, embraces about fifty-five thousand acres, of which some four thousand acres are planted in vines, already in bearing, and the remainder is devoted to various other agricultural and grazing purposes. The Gridley estate, at this time devoted largely to the production of grain, embraces an area of about twenty-two . thousand acres. Since our organization, at an expense of nearly $100,000, a winery has been erected at Vina, and furnished with vats, casks and other appliances for making and handling 300,000 gallons of wine-the product of the vineyards-and other wineries and their necessary adjuncts are now in course of construction, sufficient to afford facilities for the manufacture and handling of 1,000,000 gallons. These improvements are in pursuance of the statement, made in their address, upon the organization of the Board of Trustees, wherein the founders of the Leland Stanford, Junior, University say : "As a further assurance that the endowment will be ample to establish and maintain a University of the highest grade, we have, by last will and testament, devised to you and your successors additional property. We have done this as a security against the uncertainty of life, and in the hope, that, during our lives, the full endowment may go to you." The aggre- gate of the domain thus dedicated to the founding of the University is over eighty-five thousand acres, or more than one hundred and thirty-three square miles, among the best improved and most valuable lands in the State.
The contemplation of these facts will suggest some idea of the magnitude of the responsibilities resting upon us and our successors.
CHAPTER VIII.
Solomon Heydenfeldt-An Oracle of Quiet Counsel-His Only Criminal Case-The Senatorial Contest of 1851-On the Supreme Bench and Resignation Therefrom-Other Early Supreme Judges, Hugh C. Murray, Alexander Wells, Alexander Anderson and the Patriarch, Peter H. Burnett-Reminiscences and Anecdotes'of John C. Fremont, T. Butler King, John B. Weller, Wilson Flint, Henry S. Foote, Tod Robinson, Newton Booth, Solomon A. Sharp, E. D. Wheeler and Edward Norton-The Roll of Governors of California.
In another chapter has been given the incident of the lawyer who, on entering Court one day, found the McAllister family in sole but not adverse possession. They held the bench, the clerk's seat, and the bar. The lawyer withdrew softly-he didn't want to intrude. A feeling akin to his is mine, as the pensive face of another sage comes impressively into the field of view. I would not intrude into so quiet a life. The features we now see testify to serious problems solved by untiring effort, but they show lines of tenderness and sympathy that have held their place beside the imprint of absorbing thought. They speak, too, of reputation won, not in forensic encounter but in council. "Cautious, silent and laborious, " as Macaulay pictured Godolphin, here is a mind that has kept tranquil amid the severest em- ployments reaching through a long flight of time. Here is one whose lifework has been done apart from public observation. I would have to go into his office to study him. But, like Mr. Papy (in Chapter II), I don't like to intrude. However, it must not be understood that this prime character has lived and labored as a recluse. Some open views, even of him, are to be had now and then.
Solomon Heydenfeldt was born at Charleston, South Carolina, in 1816. When he was eight years old his father died, having been a teacher of ancient languages, and having been completely stripped of a considerable estate during his absence from home, by the defalcation of an agent who held his power-of-attorney. Being fortunately reared with maternal care, Solomon Heydenfeldt was sent to a college in Pennsylvania, where he studied Latin and Greek and mathematics; but he left college without graduating. Returning to Charleston he studied law in the office of the eminent advocate De Saussure, son of the great Chancellor of the Palmetto State. In the year 1837, at the age of twenty-one, he removed to Alabama, first stopping at
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Montgomery, where he was admitted to the bar. He soon afterwards settled in Russell county, near the Georgia line, and practiced law in both Georgia and Alabama. In this region he married, and passed thirteen years of his life in active and successful law practice. This period of his career was, however, marked with no events of public interest. He removed to California in the spring of 1850, settling at San Francisco, and opening an office in what is now the Old City Hall. His excellent habits and business assiduity,. his generous disposition, broad legal knowledge and dignified presence quickly made him a man of mark, in that era of reckless activity. He acquired a fine practice in civil business.
The only criminal case he ever had in his life was tried in the fall of 1851. For this reason it is worthy of note. Furthermore, it gives a glimpse of the loose mode of judicial procedure at that time, and presents a ludicrous instance of a jury's sense of propriety. Samuel Gallagher had killed Lewis Pollock on the night of June 22, 1851. Gallagher was tried for murder in the Fourth District Court, Delos Lake presiding, August 12, 1851. His counsel were Solomon Heydenfeldt, John B. Weller (afterwards Governor and United States Senator) and Colonel Barton. It may be said that Barton was a "Philadelphia lawyer," a beautiful speaker, a brilliant fellow, but cursed by the greatest infirmity of genius. His career was brief; he was sud- denly missed at the bar, and a rumor came back that he perished at sea, a fate which some years later befell Lockwood, another legal genius with riot in his blood, who will be noticed in a subsequent chapter. The case of Gallagher was a hard one to defend. Harry Byrne, District Attorney, made a strong prosecution. Judge Heydenfeldt had the general management of the prisoner's cause, but did not address the jury. The speaking was done by Weller and Barton, the latter coming out strong and fervid. The jury disagreed. At the second trial, which occurred on November 14, 1851, Gallagher insisted that Judge Heydenfeldt should speak for him, and the Judge complied, closing the argument for the defense. The case was given to the jury at about six o'clock in the evening, the court taking a recess and Judge Heydenfeldt going into his office, which adjoined Judge Lake's court- room, to "wait for the verdict." At nine o'clock that night the bailiff entered Judge Heydenfeldt's office and informed him that he was directed by the jury to state to him, Heydenfeldt, that they stood, firmly, seven for con- viction of murder in the first degree and five for acquittal, but that if it pleased him (Heydenfeldt) they would agree upon a verdict of manslaughter ? Judge Heydenfeldt quickly returned an expression which he afterwards had occasion many times to use while Supreme Judge, "I concur." Judge Lake was sent for, and a verdict of manslaughter was brought in. The prisoner was sentenced to three years' imprisonment and was fined $500. Fining prisoners in capital cases, in addition to imprisonment, was quite the fashion
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here in early days. The law and the courts never got so far advanced, how- ever, as to fine a man and hang him, too. After Gallagher had been in jail- there was no State Prison then-about six months, he was pardoned by the Governor.
After the sentence of Gallagher, Judge Heydenfeldt told his friends gen- erally of the communication between himself and the jury. Judge Lake did not learn of it until the sentence had been imposed, or, it is safe to say, there would have been a signal exhibition of judicial wrath.
The legislature which met at San Jose in January, 1851-the first session after the admission of California into the Union-was nearly evenly divided between Democrats and Whigs. On joint ballot the Democrats had a slight supremacy. When the two Houses met in convention to ballot for a United States Senator to succeed John C. Fremont, Solomon Heydenfeldt was the Democratic caucus candidate, and T. Butler King, then Collector of this port, was the Whig nominee. Fremont, it may be explained, had been elected for the short term by the legislature which met previous to the admission of the State, on the happening of which event (September 9, 1850) he took his seat in the United States Senate, to serve until the following March. In January, 1851, in the contest now to be noticed, he was a candidate for the succession, and received seven votes, his supporters being native Californians, (not Native Sons of the Golden West, so-called, but of Spanish and Mexican extraction). Judge Heydenfeldt, being Southern in his politics, three or four Northern Democrats, all of whom had participated in the Democratic caucus, " bolted " the caucus nomination, refusing persistently to vote for him. They voted for John W. Geary, who was afterward Governor of Pennsylvania. The legislature took 110 less than one hundred and forty-two ballots without an election. There was danger during the protracted struggle that Fremont's native sons would vote for King, and end the fight, in which event the Demo- cratic bolters would not have accomplished anything of extra value, inasmuch as King was himself a proud Southron. That legislative session closed with- out an election of Senator. At the next session John B. Weller was chosen. But for this unexpected miscarriage, Judge Heydenfeldt would have entered the Senate in his 35th year.
His discomfiture recalls a similar fate which befell Henry S. Foote in 1856. The California legislature in that year had a large native American or Knownothing majority in the Assembly, and a majority of one in the Senate. Governor Foote, who had been Governor' of Mississippi, and United States Senator from that State, was the caucus nominee for the United States Senate. But the present act of Congress governing the mode of electing Senators was not then a law, and it required the concurrence of both branches of the legislature to bring on an election. The Knownothings were not able to bring the two branches together, because
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Wilson Flint, one of their party in the Senate, voted steadily with the Demo- crats against a joint convention. Flint was a hold-over Senator from San Francisco, an Independent, but had after his election joined the Knownothings, and, in the Fall campaign of 1855, had made speeches on the stump in behalf of that party, in company with Governor Foote. The Knownothings had intended to go into joint convention without first holding a caucus, but Flint said a caucus must be held, and one was held accordingly. Foote being nominated, Flint refused to vote for him. He was very patient under the anathemas which William I. Ferguson and others poured upon him. One reason assigned for his bolting was that in the canvass of the preceding Fall Governor Foote had written to the Knownothing State Central Committee to call Flint home, as his prosaic speeches were repelling instead of persuading the dear people. Flint heard of this letter and took his revenge. Newton Booth, elected by the Independents United States Senator in 1873, narrowly escaped the fate of Heydenfeldt and Foote. A most zealous friend of Judge Heydenfeldt in his contest for the United States Senate was Judge Stephen J. Field, then a member of the Assembly.
It was the general belief among Democrats, after the legislature adjourned, in 1851, that Judge Heydenfeldt would be the party candidate for United States Senator at the next session, one year later. But before that session opened he was nominated by the State Convention of his party for Judge of the Supreme Court. As will be readily believed, he was enthusiastically urged for this position by all the other leading men of his party who had their eyes upon the United States Senate. When the legisla- ture next met the Democrats had a majority, and John B. Weller was sent to Washington as Fremont's successor.
Judge Heydenfeldt was elected in the Fall of 1851 a Justice of the Supreme Court, his Whig opponent being Hon. Tod Robinson, father of the well known lawyer Cornelius P. Robinson. Judge Robinson had been Judge of the Sixth Judicial District at Sacramento. He was a North Carolinian, and a lawyer of fine ability. This was the first election for Supreme Judges under the State government, the first Justices of the Supreme Court having been chosen by the legislature previous to the admission of the State. Judge Heydenfeldt succeeded Judge S. C. Hastings, and his term was for six years, commencing January 1, 1852. After only two months' service he left the State on a visit to Alabama, where he had left his family. This departure of a Supreme Judge from the State precipitated a judicial controversy, which was certain to arise sooner or later-in consequence of the inadvertence of the first constitutional convention-and which resulted in one of the most in- teresting adjudications to be found in all the Reports. The legislature had, a few weeks before, by a joint resolution of the two Houses, granted the judge leave of absence for six months. A month after his departure the legislature
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passed an act authorizing the Governor to fill the " vacancy " by appoint- ment; and the Governor, Bigler, immediately appointed Alexander Wells. On April 12, 1852, six days after presenting his commission, Justice Wells stated to the court that a doubt having been expressed as to the constitutionality of the act of the legislature authorizing executive appointments to supply vacancies caused by temporary absence, he would absent himself from the bench until the validity of his appointment should be adjudicated, and sug- gested that the Attorney General be directed to institute proceedings in the nature of a quo warranto, in order to test the question. The court directed an order to that effect to be entered on the record. The proper writ was soon afterwards issued out of the Fourth District Court, judgment was entered in favor of Justice Wells, and an appeal, upon an agreed statement in writing, was taken to the Supreme Court, where the question was argued on the part of the people by the Attorney General, who was ex-Chief Justice S. C. Hast- ings, while Justice Wells himself, aided by Gregory Yale and R. A. Lock- wood, presented the other side. The only brief on file was Lockwood's. This brief has been retained in the new edition of the old Reports. It is a strong, logical paper-one of the very few testimonials that Lockwood left on record of his legal knowledge and acumen. The temporary retirement of Justice Wells left only two Justices on the bench-Chief Justice Murray and Justice Anderson. They disagreed in deciding the question involved. Both filed elaborate opinions, Murray holding that Justice Wells was not entitled to a seat upon the Supreme Bench, the law under which he was appointed being unconstitutional, inasmuch as the temporary absence of Judge Heydenfeldt created 110 vacancy in the office. Justice Anderson declared that Justice Wells' appointment was constitutional, and that he ought to take his seat upon the bench. These two early opinions are models of cogent reasoning, and engage the intelligent reader by their vigor of expression and eloquence of style; probably, in these respects, they are not eclipsed by any decision to be found in the California Reports. (Vide 2 Cal., 198.)
The concurrence of two Justices being necessary to pronounce a judg- ment, the Chief Justice remarked that, on the subject of resuming his seat, Justice Wells must exercise his own discretion. Justice Wells, who had brought the question into Court, "exercised his own discretion" very promptly-he took his seat on the bench. Justice Heydenfeldt returned and relieved him at the expiration of the six months' leave of absence, and immediately filed the following opinion in the case :
"When this case was first argued, opinions were delivered by the Chief Justice and Mr. Justice Anderson, and their opinions being in conflict with one another, it was neces- sary, in order that the case should be decided, that there should be a reargument or sub- mission. The counsel for the respondent (Justice Wells) insists that, as the term of office in dispute has already ended, there is 110 necessity for a decision, and it is unusual
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in such cases to make one. His position is entirely true ; but, at the same time, it is always a matter of discretion with the court, whether it will be influenced by those rea- sons. In this case we consider the question involved as one of vast importance, and, governed by that consideration, we have determined to decide.
"The Chief Justice has advised me that his opinion already on file will be adhered to ; that he will make no alteration, and considers it unnecessary to prepare any other. I have examined that opinion carefully and concur fully in its reasonings and conclusions. The whole subject has been fully examined by him, and he has so well demonstrated the unconstitutionality of the law under which the appointment of the respondent was made, that it would be supererogation to enter into any future discussion. -
"The judgment of the court below is reversed ; and, as we are judicially notified that the term of the respondent has expired, it is, therefore, ordered that the proceedings in the district court be dismissed."
At the new election, Justice Wells was chosen by the Democracy a Supreme Judge. He served through the year 1853, and nearly all of the year following, dying October 31, 1854. His opinions were remarkably few, nearly all the decisions of the court during his term being written by Judge Murray or Judge Heydenfeldt. He was a New Yorker and a wife and daughter survived him.
On January 6, 1857, having served five years on the bench, only one year of his term remaining, Judge Heydenfeldt resigned. His opinions are con- tained in volumes two to seven, inclusive, of the Reports. He left the bench because the salary did not enable him to support himself and family and other dependent relatives. He has had, ever since he came to this State, a large number of persons to provide for. Resuming practice in San Francisco, he followed it with activity and success until the Test Oath Act was passed by the legislature, which required all lawyers, as a condition precedent to the right of practice in the courts in civil cases, to take and subscribe a strongly worded oath of loyalty. A few Southern lawyers, among them Judge Hey- denfeldt, Gregory Yale and E. J. Pringle, could not conscientiously subscribe" to this, and accordingly withdrew from the courts. Gregory Yale had the question of the constitutionality of this act adjudicated by the Supreme Court, and that tribunal decided in favor of its constitutionality (Vide 24 Cal., 242). Hon. John F. Swift had filed an objection to Mr. Yale's appearing in the Supreme Court without taking the oath. The act was repealed several years later, but by that time Judge Heydenfeldt had obtained a lucrative office business as advisory counsel to many large firms, capitalists and cor- porations, and he has since steadily adhered to that department of the pro- fession. He tried a few large mining cases in the District Court of Storey county, Nevada, at a time when a test oath act, similar to the California statute, was in operation in that State, but he was not required to take the oath, the act being treated as a dead letter. He has long been counsel for large mining corporations, is learned in mining law, as well as informed in
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