History of Santa Clara County, California, with biographical sketches of the leading men and women of the county who have been identified with its growth and development from the early days to the present, Part 10

Author: Sawyer, Eugene Taylor, 1846-
Publication date: 1922
Publisher: Los Angeles : Historic Record Co.
Number of Pages: 1928

USA > California > Santa Clara County > History of Santa Clara County, California, with biographical sketches of the leading men and women of the county who have been identified with its growth and development from the early days to the present > Part 10

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Early in 1847 the Ayuntamiento and the alcalde directed William Campbell to survey a plat of land a mile square to be laid out in building lots. Assisted by his brother Thomas, he did this work, the tract so surveyed lying between the following boundaries: On the north by Julian Street, on the east by Eighth Street, south by Reed Street and west by Mar- ket. This tract was intended to exclude all questions relating to suerte claims. John Bur- ton, who was then alcalde and had resided in San Jose for twenty years, stated that the result of his investigation was that no suerte claims, except the Gongora claim, extended farther south than Julian Street, or farther east than Market Street. This is the original plat of San Jose and from this survey may be dated the existence of the city. The streets were located through this tract, making nine blocks from Julian to Reed and eight blocks from Market to Eighth. The exact course of the streets running north and south was at 45 deg. west, magnetic variation, 15 deg. 22 min. east. The length of these streets was 5,607 feet. The cross streets were laid out at right angles to these.

The survey having been completed and a map filed, the alcalde gave notice to all per- sons claiming land within the limits of the survey to present them to him for investiga- tion, and, if found valid, he would issue them a new title. Burton, who was no lawyer, seemed to possess a remarkably level head. Notwithstanding persistent litigation on the part of contesting claimants, all the alcalde grants under the Campbell survey have been held by the Supreme Court to be valid. In Campbell's survey four blocks were reserved for a public square. This was named Wash- ington Square and is the present location of the State Teachers' College, the high school and the Carnegie Library.

The pueblo having been thus located, its limits and boundaries of its blocks and lots defined, the settlers from the states resolved to secure a portion of the outside lands belonging to the pueblo. A meeting was called, the prop-

osition to make the survey into lots of 500 acres each was adopted and J. D. Hutton ap- pointed to make the survey. This was done in July of the same year. The lots were num- bered consecutively and corresponding num- bers placed in a hat. The head of each family was permitted to draw one number, this en- titling him to choose a lot, his choice being in the order of the numbers drawn-that is, the person drawing number one was entitled to first choice, and so on. After the drawing the alcalde gave to each party a certificate of title. These alcalde titles were afterwards declared invalid by the Supreme Court.

In May, 1848, another survey of the town was made, this time by C. S. Lyman. He was a practical surveyor and possessed all the nec- essary implements for practical work. By this survey the limits were extended easterly to Eleventh Street. He enlarged Washington Square to its present dimensions, 1,160 by 1,005 feet. He laid out St. James Square, which is 610 by 550 feet. Market Square, the site of the city hall, he fixed at 1,160 by 259 feet. Market, Santa Clara and Fifth streets were made each 100 feet wide, and all the streets running north and south, except Fifth, were made 80 feet wide. The system adopted by the survey is the one now in use. San Fer- nando Street is the base line and the ranges are counted easterly from Market Street. Other surveys have been made as additional territory was taken into the city limits.

The tract of land lying west of Market Street and along the Guadalupe River, was used for cultivation and was not surveyed into town lots for several years after the admission of California into the Union. It was held as suertes and was watered by an acequia, or ditch, leading from the Canoas Creek south of town. This ditch furnished water to the peo- ple for some time after California became a state; but gradually the foreigners acquired this land from the Mexicans and streets were opened from time to time as the population increased.

Public Treasury Robbed

Before the first month of the year 1853 had been brought to a close, the entire county was startled by the news that the public treasury had been robbed. The treasurer, William Aikenhead, declared that he had been knocked down in the darkness of night and robbed of his keys, and that the unexpectedness of the attack prevented him from recognizing the robber. His story of the assault was this: Hearing a noise in the rear of the building about eight o'clock in the evening, and not long afterward a step on the front porch and a calling of his name, he opened the door to

HISTORY OF SANTA CLARA COUNTY

ascertain who it was. Instantly he received a blow on the head that laid him prostrate; he was then choked, his pockets emptied and the key of the safe taken. The office was then entered and several thousand dollars were car- ried away. The board of supervisors placed full credence in Aikenhead's story, and after investigation made a report exonerating him from neglect or blame. In the month of Feb- ruary, Aikenhead disappeared. A committee of three, in company with the district attorney, was appointed to examine all the books and papers in the treasurer's office and file a re- port with the clerk. The committee was com- posed of J. M. Murphy, W. R. Bassham and WV. L. Smith, and their report made Aikenhead a defaulter in an amount approximating $20,000.

Following is the list of the various tracts of land in Santa Clara County to which title was granted by the Spanish and Mexican govern- ments :

Arroyo de los Pilarcitos, one square league, to Candelario Miramontes. Canada del Corte de Madera, to Domingo Peralta. Canada de San Felipe Las Animas, two square leagnes, to Charles M. Weber ; patented August 9, 1866. Canada de Pala, 8,000 by 1,200 varas, to Jose de Jesus Bernal et al. : patented August 9, 1863. Canada de los Capitancillos, to Guadalupe Min- ing Company. El Corte de Madera, two square leagnes, to Maximo Martinez; patented June 14, 1858. El Pasito de las Animas, 3,042 acres, to Robert Walkenshaw. Embarcadero de Santa Clara, 1,000 varas, to Barcelia Bernal. Juristae, one square league, to Antonio and Fausten German. La Polka, one square leagne, to Bernard Murphy ; patented March 3, 1860. La Purissima Concepcion, one square league, to Juana Briones. Los Tularcitos, to Antonio Hignora et al., heirs of Jose Hignora ; patented July 8, 1870. Las Animas, or Sitio de la Brea,

to Jose Maria Sanchez. Las Coches, one-half square league, to Antonio Sunol et al .; pat- ented December 31, 1857. La Laguna Seca, four square leagues, to Liberata Cesena Bull et al. ; patented November 24, 1865. Los Capi- tancillos, three-quarters of a square league, to Charles Fosset; patented February 3, 1865. Las Animas to Frederic E. Whiting. Milpitas, one square league, to Jose Maria Alviso. Mis- sion of Santa Clara to James C. Galindo. Mission of Santa Clara, 13.13 acres, church property ; patented March 3, 1858. Ojo de Agua de la Coche, two square leagues, to Ber- nard Murphy ; patented Jannary 4, 1860. Po- trero de Santa Clara, one square league, to Robert F. Stockton. Pastoria de las Borregas, 320714 acres, to Martin Murphy ; patented De- cember 15, 1865. Pueblo de San Jose, to Mayor and Common Council; confirmed October 8, 1866. Pala, one square league, to Ellen White et al., widow and heirs of Charles White. Quito, three square leagues, to Manuel Alviso ; patented May 14, 1866. Rincon de San Fran- cisquito, one-half square league, to Maria An- tonia Mesa, widow of Rafael Soto. Rancho de Refugio, or Pastoria de las Borregas, three square leagues, to Tomas Pacheco and Augus- tin Alviso. Rincon de los Esteros to Francisco Berryessa et al., heirs of G. Berryessa. Rin- con de los Esteros to Rafael Alviso et al. Rincon de los Esteros, two thousand acres, to Ellen E. White. Rinconada de los Gatos, one and one-half square leagues, to Sebastian Per- alta and Jose Hernandez ; patented March 19, 1860. Santa Ana y Quien Sabe, seven square leagues, to Juan Miguel Angas and Manuel Larios; patented May 1, 1860. San Ysidro, one square league, to Quentin Ortega et al .; patented September 27, 1869. San Francisco de las Llagas, six square leagues, to Bernard, Daniel, James and Martin Murphy ; patented March 19, 1868.

CHAPTER IV.

The Early Bar of San Jose-Alcalde Burton's Common Sense-The Eccen- tricities of Judge Redman-Strange Career of Rufus A. Lockwood- Irrepressible J. Alexander Yoell-Change in Court System.

Courts of First Instance had no existence in San Jose until after the American occupation. The first court was organized in 1849 and held its last session in March, 1850, when the County and District courts were organized. Prior to this period justice was administered in San Jose by the alcaldes. The first Ameri- can alcalde was James Stokes, who was ap- pointed by Captain Fallon when Dolores Pa- checo was deposed. He was succeeded by John Burton, and of Burton Judge John E. Richards of the Appellate Court, and one of San Jose's ablest and most respected citizens, writes as follows in his entertaining booklet. "The Early Bench and Bar of San Jose":

"Old John Burton, Capitan Viejo, the na- tives called him, was appointed to office by Captain Montgomery, military commander of the Northern District of California, on Octo- ber 19, 1846, about three months after Captain Thomas Fallon had hoisted the Stars and Stripes in front of the Juzgado. The old al- calde was a pioneer of the pioneers. He had deserted from a New England merchantman in 1830 and. coming to the pueblo of San Jose, had married a Mexican woman, assumed the title of captain and lived an easy existence among the natives until disturbed by the American occupation. He was a native of Massachusetts, but he seems to have neglected those opportunities for book learning which that home of culture afforded. He was a man, however, of considerable common sense, is re- puted to have been very honest and to have had the esteem and confidence of the native population. The office of alcalde required these qualities in an eminent degree just at that time when the loose garments of Mexican rule were being replaced with the close-fitting fabric of American institutions. The alcaldes' courts of California had, prior to the change in government, possessed a very wide and quite undetermined jurisdiction, and had been con- ducted with a freedom from the formalities of jurisprudence which was primitive in the ex- treme. Alcalde Burton continued to exercise the jurisdiction of his predecessors with much the same laxity in forms. No fusty lawyers ever profaned the sacred precincts of Alcalde Burton's Juzgado, either to hinder or hasten his judgments with pleas of writs sustained by

musty precedents. There was a patriarchal simplicity about the administration of justice in Alcalde Burton's court. The old Juzgado stood in the center of what is now known as Market Street, at its intersection with El Dorado Street. It was a low adobe building, divided into three compartments-the alcalde's court, the smaller room for the clerk of the court, and the calaboose. There old Captain Burton sat and administered justice in his own. original way, following somewhat loosely the forms of the Mexican law relating to alcaldes' courts. The method of procedure was as in- teresting as it was unique. Every grievance which a complainant had against a person, for which he had, or hoped to have, a legal rem- edy, he carried to the alcalde and openly stated his case. Thereupon Alcalde Burton called his alguazil, or constable, and delivering to him his silver-headed cane, as the symbol of his authority, directed him to bring the person against whom the complaint was urged before the alcalde. The cane was an important part of the judicial system. It was the vara de justicia, of 'staff of justice,' and in the hands of the alguazil symbolized the state. Bearing the alcalde's silver-headed cane before him, the alguazil sought out the defendant and, holding up the staff, delivered his oral summons to appear immediately at the juzgado. The de- fendant never disobeyed the command of the alcalde, but at once came before him. When he arrived the complainant was sent for and the parties met in the presence of the alcalde. What was technically called, what was in fact, an 'altercation,' then ensued between the par- ties. The alcalde sat and heard their dispute and endeavored to adjust their differences and strike a balance of justice between them upon their own statement of facts. Very frequently he was successful and a sort of compromise judgment was rendered at once. When, how- ever, the parties were too wide apart for com- promise, the case proceeded as follows: Each party chose an arbitrator and these two buenos hombres, as they were termed, sat with the alcalde and heard the evidence in the case. If then they and the alcalde could agree upon a judgment, it was rendered accordingly ; but if not, the alcalde dismissed the buenos hom- bres and decided the case himself. So ran the wheels of justice in Alcalde Burton's court.

HISTORY OF SANTA CLARA COUNTY

"The record which old John Burton kept of his cases was a very meager one, and hence a large mass of interesting court notes have been lost with the passage of years. Some few recorded cases there are, and in the recollec- tion of our pioneers a few more remain to illustrate the unique character of primitive jus- tice here. From among the ancient documents reposing in our city archives the following case has been exhumed and translated for this sketch. Pedro Mesa was accused of stealing Thomas Jones' horse. The record reads:

"'Territory of California vs. Pedro Mesa- May 1, 1847. The parties having appeared and the case entered into, after weighing the case and taking testimony, judgment is rendered that defendant shall pay a fine of $5, and $9 for saddling the horse, and costs of court taxed at $4.75: $2 for the guard.' Alcalde Burton evidently did not regard horse-stealing as a very serious offense, and does not seem to have visited upon it a sufficient penalty to make the avocation unprofitable. It is curi- ous to note that Alcalde Burton records him- self as 'weighing the case and taking the tes- timony.' It would appear from all we can learn that it was the mental habit of the old captain to weigh the case first and make up his mind about it, and then, as a mere form- ality, 'take the testimony.'

"Another of Alcalde Burton's decisions has survived the tooth of time. Juan Lesaldo and his wife did not agree and yet had hardly reached that point where they agreed to dis- agree. Juan, therefore, laid before the alcalde a complaint, of which, with the subsequent proceedings, the following record remains: Juan Lesalda vs. Maria de los Naves. On complaint of plaintiff, that defendant, his wife. he believes, is about to abscond, he therefore claims that she be brought before the court to show cause why she will not live with him. The parties having appeared and the case en- tered into, April 27, 1847, it is directed that they be united again, and if not they shall be imprisoned until they consent to live together. May Ist. A letter was sent to the priest at Santa Clara, who ordained that they should be compelled to live together. After three days' time was given she refused to comply. May 4, 1847. Defendant was put in prison until she should comply with the order of the court.' Here the record ends, and whether Maria de los Naves was ever brought back to the arms of her spouse by the stern rigor of the law remains a problem which may well be submitted with 'The Lady or the Tiger' to our modern dames for a solution. So far as known the precedent set by Alcalde Burton has not been followed by those who have suc- ceeded him in a judicial effort to adjust the

differences which have ever arisen in domestic life. There are, however, a few fragmentary records of Burton's decisions which show that he foreshadowed at least some phases of our modern law. On March 7, 1847, Alcalde Bur- ton dismissed a complaint brought by Gabriel Castro against Antonio Hernairo to recover plaintiff's winnings in a horse-race. It does not appear whether Hernairo was the loser in the wager, or only the stakeholder, but if the cause had been tried before our present courts instead of before the old alcalde, the same rule would be applied.

"There are a few other cases preserved in scant records, which, if not yet precedents, inight well be made so. In 1847 P. Real com- plained before the alcalde of 'men who stand in the church doors to look at the women as they come from mass.' The alcalde judged that it was a 'practice which should be stopped in the interests of religion, morality and public tranquility.' In another case a Mexican was complained of for selling liquor and was tried without a jury, as the alcalde naively explains that the 'native element of the juries in such cases failed to convict.'

"The Court of the First Instance was estab- lished in San Jose in the spring of 1849. R. M. May was the first occupant of the bench as judge of the court. He was shortly suc- ceeded by Judge Kincaid, who remained on the bench until the court was abolished by the formation of the state. The pioneer members of the bar were Peter O. Minor, C. T. Ryland, Craven P. Hester, James M. Jones, William Van Voorhies, Judge Almond, William T. Wallace, George B. Tingley, Rufus A. Lock- wood and others, some of whom lived in San Jose and some of whom came down from San Francisco when cases required. The yarns which those old 'Nestors' told upon them- selves, npon their clients and npon each other, would fill a volume. One of the earliest cases tried before Judge Kincaid was the famous mule case of Caldwell vs. Godey. The plain- tiff sued the defendant for the possession of a mule which he averred was his property. The defendant denied the allegation and the case came on. Caldwell produced a dozen or more reputable witnesses who swore that they had known the plaintiff in Missouri, where he had owned the mule; that they had crossed the plains with him when he brought the mule to California ; that there was no doubt as to the identity of Caldwell's mule. On the other hand, the defendant produced as many wit- nesses, equally reputable, who swore they had known the defendant, Godey, and his mule in Texas, and that they had come to California with the mule, and there was no earthly doubt that this was Godey's mule. They also swore

HISTORY OF SANTA CLARA COUNTY

that the mule was branded with a diamond on its hip. The court was sitting in the old Juz- gado and was in a quandary indeed. At this point John Yontz, the sheriff, came into court and asked his honor if he should bring in the witness. The judge, all innocent, told the sheriff to 'bring him in.' The sheriff brought 'him' in and the witness was the mule. He filled the courtroom with his presence and the court with righteous indignation. 'Mr. Yontz,' said his honor, sternly, 'take that mule out of here, sir.' 'But your honor ordered me to bring him in,' responded Yontz, 'and I obeved the order.' The scene was ludicrous in the ex- treme; the sober face of the facetious sheriff ; the still more sober aspect of the innocent mule : the judge's withered face pale with in- dignation, and the countenances of the specta- tors red with mirth. The witness was taken out, but his introduction won the case for the defendant, for there upon his newly-shaven hip appeared the diamond brand to which the other witnesses had sworn."

The constitution ordained and the first legislature established a complete system of courts which should supersede the courts of the Alcalde and the First Instance. These were District, County and Justice's courts, and they were put into operation during the year 1850. Judge John H. Watson was appointed the first district judge of the Third Judicial District, which included the counties of Contra Costa, Santa Clara, Santa Cruz and Monterey. J. W. Redman was our first county judge. The influx of population into the state had brought lawyers of all degrees of excellence from all quarters of the globe. The session of the first Legislature had left a number of law- yers who were its members to increase and adorn our local bar. Of the many bright minds who practiced law before Judges Wat- son and Redman and their successors, the fol- lowing are a few: Freeman Mckinney, Wil- liam T. Wallace. F. B. Murdoch, William Mat- thews, A. L. Yates. E. K. Sanford, Horace Hawes, Rufus A. Lockwood, J. Alexander Yoell, John H. Moore, Judge Almond, Wil- liam Stafford, William D. Harvard, C. T. Ry- land, George B. Tingley, Alexander Campbell, A. P. Crittenden, James M. Jones, Lawrence Archer, Thomas Bodley and Judge R. F. Peck- ham. These were not all, but they will exam- ple the local bar, and while many of these are gone forever from our vision, from those who remain the quality of the rest may be esti- mated. I will tell the stories of the early bar in much the same order that they have been told to me:

"Judge Watson was, by profession, a physi- cian, who had learned a sufficient smattering of the law to secure a seat upon the bench, for

which place there was little competition among lawyers, for the reason that the salary was comparatively small, while the fees at that time were large to the lawyer who was competent to be judge. The style of Judge Watson's charges to his juries was, therefore, often free from legal verbiage and of legal principles as well, as the following story of the case of Dean vs. Mckinley will illustrate: The case was tried in Monterey County and took its origin in this wise: Mckinley was a merchant at Monterey in the '40s. It was part of his busi- ness to stock traders who were going to the mines. Dean was one of these traders and he bought from Mckinley a stock of goods, prom- ising to pay him when he returned. Several years passed and Dean did not return until after the American occupation. He came back 'broke,' and showed no disposition to pay Mckinley for his goods. Finally the latter went before Alcalde Mariano Malarin and had Dean arrested and imprisoned for the debt. The Monterey jail at that time was in no condition to keep a prisoner long against his will, but it suited shiftless William Dean to stay there. He was his own jailer and when evening came he would pull the plug out of the jail door and go to the fandangoes or other places of amusement, and after the fun was over would go back to the jail, lock himself in and go to sleep, swearing he would make old Mckinley pay for this false imprisonment of an American citizen.' Well, when the Dis- trict Court was organized Dean, incited there- to by several lawyers on contingent fees, sued Mckinley for large damages for his alleged 'false imprisonment.' The case came on for trial with a cloud of attorneys on either side. It was a prolonged case and when concluded was argued at great length by all of the attor- neys. When finally the cause was submitted to the jury, Judge Watson squared himself about pompously, and delivered the following charge:

"'Gentlemen of the jury, as the mariner re- turning to his post after a long sea voyage is enabled to catch a faint and fleeting glimpse of the land through mists and fog which sur- round it, so you, gentlemen of the jury, may be able, by the aid of the court, to catch a dim conception of the facts in this case through the obscurity which the arguments of counsel have thrown around it. I will illustrate the merits of this case with a simile. I will liken this case to a railroad train. The court is the track, the attorneys are the engine, and the client is the grease. You all know, gentlemen of the jury, how an engine will run when it is well greased. In fact, I have seen engines so well greased as to cause them to "play such fantastic tricks before high heaven as made angels weep." To carry the simile further,

HISTORY OF SANTA CLARA COUNTY

gentlemen, suppose that a railroad train runs over and kills a man. Who is to blame? The engine, the track or the grease? I think, the engine. Gentlemen of the jury you will bring in a verdict for the defendant.'

"Judge Redman, who presided over the County Court, was a good lawyer, but was also a man of many peculiarities, of strong prejudices and of eccentric modes of expres- sion. Some of the lawyers of his court he had a great liking for, and toward others he manifested dislike without any apparent rea- son. Among the former class was William T. Wallace, for whom he had a strong affection, and always, out of court, called him "Billy, my boy.' Among the latter was J. Alexander Yoell, against whom, frequently and unjustly, Redman showed his feeling. One day after the trial of a hotly contested case in which Yoell took a vigorous part, Judge Redman limped (he had a wooden leg) out of the courtroom, leaning on Wallace's arm. Presently he said, in a reflective and solemn way, as though speaking to himself: 'It would not be idola- try.' 'What would not be idolatry?' asked

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History of Santa Clara County, California, with biographical sketches of the leading men and women of the county who have been identified with its growth and development from the early days to the present, Part 10

Author: Sawyer, Eugene Taylor, 1846- Publication date: 1922 Publisher: Los Angeles : Historic Record Co. Number of Pages: 1928

Author: Sawyer, Eugene Taylor, 1846-
Publication date: 1922
Publisher: Los Angeles : Historic Record Co.
Number of Pages: 1928