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 11

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

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Wallace. 'It would not be idolatry to bow down and worship him,' said the Judge in the same reflective way. 'Worship whom?" asked Wallace. 'It would not be idolatry to fall down and worship Yoell,' responded Redman. 'And why not?' asked Wallace. 'Billy, my boy,' said the Judge solemnly, 'have you for- gotten the commandment which says, "Thou shalt not bow down and worship the likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the waters under the earth"? Now, Yoell is not like any- thing that is in the heaven above, nor in the earth beneath, nor in the waters under the earth, and therefore I'll be dashed if it would constitute idolatry to fall down and worship him.'

"Another member of the early bar whom Judge Redman disliked was F. B. Murdoch, who later went into local journalism. Mur- doch had a case of J. H. Moses against some- body and got a judgment. One of the wit- nesses in the case was named Moses Scott, and when Murdoch came to write his decree he wrote the name of the witness in it by mistake for that of the plaintiff. Discovering his error later on, he made a motion before Judge Redman to set aside the decree and have entered an amended one, and when he had concluded Judge Redman said: 'Mr. Mur- doch, your motion is denied. It has long been the well settled rule of this court that when an attorney comes before this court with a case and burns himself he will be compelled to sit on the blister.'

"Among the attorneys who practiced before Judge Redman was Freeman McKinney, whom all the early pioneers will remember. He was a little fellow with a long red beard which came down to his waist, and withal a man of a good deal of force and dignity. One day a fellow was arraigned before Judge Redman for horse-stealing. He had no attorney. The Judge appointed Free Mckinney to defend him, with this instruction: 'Mr. Mckinney, the court appoints you to act as attorney for this defendant. You may retire with him and get his statement of the case. You will give the prisoner the best advice and assistance you are able in view of the law and of the facts he may give you.' Mckinney went out with the prisoner to the door of the Court House and asked him if he had any money. The fellow said he had a fifty-dollar slug. ‘Give it to me,' said Mckinney. The fellow reluct- antly gave up the slug. 'Now,' said McKin- ney, 'as a matter of fact, von stole that horse didn't you?' The prisoner admitted to his at- torney that he did. 'In that case,' said Mc- Kinney, 'I advise you to get into the brush as fast as the Lord will let you.' The prisoner 'got,' and presently Mckinney wandered back into the court room and sat down. Soon the case of the horsethief was called. 'Where is your client, the prisoner, Mr. Mckinney?' in- quired Judge Redman. 'I don't know, your honor,' answered Mckinney, with the utmost sang-froid. 'The last time I saw him he was making for the brush about as fast as he could go.' 'Is it possible, sir,' thundered the court, 'that you have permitted the prisoner to escape?' 'Your honor,' said Mckinney, calmly, 'I have obeyed to the letter the order of this court. Your honor appointed me as the at- torney for the defendant with the instruction that I should give him the best advice I was able in view of the law and the facts. The facts were, as the defendant admitted to me, that he stole the horse. The best advice I could give him was to get into the brush.' 'Humph!' snorted Judge Redman with dignity. 'Call the next case.'

"The story of how Jo Johnson summoned Judge Redman into court one morning, and the penalty therefor, is fresh in the minds of more than one member of the bar. Judge Redman liked his tipple and would also 'buck the tiger' on occasion. The County Court was held for a season in a building which stood near the corner of Santa Clara Street and Lightston Alley. A saloon was across the street in which Judge Redman spent much of his time and where he often lingered beyond the hour for convening his court. One day the assembled bar grew impatient at his ab- sence. Freeman Mckinney called the bar to

HISTORY OF SANTA CLARA COUNTY

order and gravely moved that the bailiff be instructed to call 'old' Redman at the door of the court three times, and that if he failed to answer he be fined for contempt of court. The bailiff was Jo Johnson, and taking the matter in all seriousness, he went to the door and in a powerful voice called out: 'Old Redman! Old Redman! If you fail to answer you will be fined for contempt of court.' The sten- torian tones of Bailiff Johnson penetrated to the room where Judge Redman was seated at his game of cards. He deliberately finished the game and the lawyers heard the uneven thump of the Judge's wooden leg as he crossed the street. He entered the court slowly, ascended the bench with dignity, and then said with judicial severity: 'Mr. Clerk, enter a fine of seventy-five dollars against Jo John- son for contempt of this court.' When Jo Johnson afterwards told this story he always ended it in an injured tone: 'The worst of it was that the blanked old fool made me pay that fine.'

"Apropos of Judge Redman's social infirmi- ties, the following story is told as an actual fact: The bar became tired of the Judge's lapses and eccentricities, and at last felt called upon to request him to resign. The request was signed by every member of the bar in the county and was served one evening upon the Judge. The next morning his court room was full of lawyers to see what effect their petition would have upon Judge Redman. The Judge entered the room, perfectly sober and with a sad and contrite expression upon his face. He walked with halting step down the aisle and awakened a feeling of pity in the breasts of several who had signed the request. The court opened with the customary 'Hear ye,' and then the venerable form of the Judge arose from the bench. He looked timidly around as though searching for a friend, and then in faltering tones addressed the bar. 'Gentlemen of the bar,' he said, 'last night I received a petition from you, signed by all of your number, couched in respectful language and setting forth reasons why I should tender my resignation as judge of this court. Con- scious of my many infirmities and realizing the necessity of a pure judiciary, throughout the silent hours of the past night I have given to your petition painful and, I may add, prayerful consideration. I feel, gentlemen, that you have acted from a high sense of duty in this matter (here the eyes of the members of the bar be- gan to moisten with tears), and in responding to your petition requesting my resignation, I would simply say (here the Judge straightened up and altered his tone) that I will see you all in hell first, and then I won't resign. Mr. Clerk, call the next case.'

"It was one of Judge Redman's infirmities, if it be such, to be fond of horse-racing and to bet freely on his favorite. Horse-races were very frequent in the early '50s and Judge Red- man generally contrived to make the sessions of his court conform to the time of the race. One day a cause was on for argument wherein John H. Moore represented one side and a San Francisco attorney the other side of the controversy. A race was coming off that day. Judge Redman had little difficulty in per- suading Moore to submit the case without ar- gument in order that both court and counsel might attend the race. The San Francisco attorney, however, insisted on arguing his side of the case. During the first portion of his speech Judge Redman listened patiently, but as the hour for the race approached the Judge became fidgety and cast anxious glances at the hands of the clock with increasing fre- quency. At last, when the hands of the clock had all but reached the hour of the race, the attorney closed his speech. As he sat down the court hurriedly arose and without a break uttered the following sentence: 'I will take this case under advisement until 10 o'clock tomorrow morning. This court is adjourned. Moore, I'll bet you $100 the black filly wins the race.'

"One of the most celebrated cases in Red- inan's court was the trial of a mulatto girl named Mindy Johnson for grand larceny in 1852-53. Mindy was a very good-looking girl of ripe charms and quite popular among the bloods of the bar. It was even reported that Judge Redman had a weakness for Mindy. She was by vocation a cook and washerwoman and one day fell from grace to the extent of steal- ing some articles of clothing and a carpet sack with $300 in money from the premises of a man named White. The theft was discovered and Mindy was arrested and indicted. In those days grand larceny was a capital offense. The evidence was clear and the girl's own confes- sion seemed to seal her fate. She was tried before Judge Redman and convicted. The verdict of the jury was recorded and the mo- ment for her sentence came. Judge Redman was at his wit's end for an excuse to save her, but he had none. 'Mindy,' said the Judge with assumed severity, 'stand up.' Mindy stood up. 'Have you any cause to show why judgment of the court should not be pronounced against you?' At this moment Freeman Mckinney, who with William T. Wallace, had been Min- dy's attorneys, arose, and with much dignity moved the court for arrest of judgment upon the grounds that it had been shown in evi- dence that Mindy was brought to Cali- fornia by a man named Clarkson as a slave and had never been manumitted. That

HISTORY OF SANTA CLARA COUNTY

as a slave she was property and that as a property she could not commit grand lar- ceny. 'Ah!' said Judge Redman, with a sigh of infinite relief, that's the point which the court had in mind during the whole trial of this case, but did not want to suggest to coun- sel for the defendant. I am glad to see, young man, that you have not forgotten your early training in law nor failed to burn the midnight oil in this case. The point is well taken; the defendant is discharged, the jury is dismissed and the court is adjourned.' District Attorney Moore protested, but his protest availed naught. The court remained adjourned and Mindy went on her way rejoicing." The record of this remarkable case, if anyone is curious enough to consult it, is to be found in Record Book H, Court of Sessions, among the musty files of the office of the County Clerk.

"There is another story of Judge Redman in which John H. Moore figures in his capacity as District Attorney. In 1852 the state legis- lature passed a law depriving the county court of jurisdiction to try certain offenses, of which grand larceny was one. It took some time in those days to get the official copies of the statutes distributed about the state. There was pending in Judge Redman's court about that time a peculiar case of grand larceny. A somewhat lawless limb of the law had gone out deer hunting, and failing to find deer had shot and carried home a fine young heifer be- longing to a Spaniard, who, discovering the of- fender, had the lawless lawyer indicted. He retained Lawrence Archer and William T. Wallace to defend him and the case came on for trial. Of course Archer and Wallace wished to clear their client both because he was such and also because he was a fellow at- torney. Possibly Judge Redman shared in this desire. It was a hot May morning some weeks after the legislature had adjourned that the case was called in Judge Redman's court. District Attorney Moore arose and asked that the case be certified to the District Court in consequence of the statute recently passed which took away the jurisdiction of the county court. 'Mr. Moore,' said Judge Redman, 'what evidence have you to offer showing that the court has no jurisdiction to try this case?' Mr. Moore respectfully called the attention of the Court to the statute which the legislature had passed. 'But what proof do you present of the passage of any such statute?' asked the judge. 'Why, everybody knows that the statute was passed,' said Moore, 'and here is a newspaper containing the statute in full,' answered the district attorney. 'Mr. Moore,' said Judge Red- man, 'this court does not act upon what every- body knows in depriving itself of a jurisdic- tion so often exercised, and, furthermore, I

will inform you, sir, that a newspaper is not evidence of anything in this court. Proceed with the trial.' In vain the district attorney protested that the court had lost its jurisdic- tion. The court insisted on going on with the case, until at last the district attorney, in a rage at the court, left the room. This stopped the case and the attorneys for the defendant wanted it to go on. After a while Judge Red- man sent the sheriff after the district attor- ney and again demanded that he either go on with the case or produce a certified copy of the statute. Mr. Moore would not do the one and could not do the other and went off again inwardly (and I suspect outwardly) cursing the court. Again and again he was sent for and again and again the procedure was gone through by the Judge, and so the hours of a sweltering day moved on in the old adobe court house until at last Judge Red- man, after a last attempt to get Moore to try the case, commanded the clerk to enter upon the minutes of the court that the case having been called and the district attorney having been ordered to proceed with the trial, and having both refused to do so and failed to show by proper evidence that the court had lost jurisdiction of the case, the prisoner was discharged. So the lucky dog of a law- yer escaped justice and Messrs. Archer and Wallace won a bad case without a struggle.

"Among the lawyers who sought success at the San Jose bar in the early '50s there were some who found it not and who were compelled at last to seek it in other voca- tions and other fields of labor. Among these was a lawyer named William M. Stafford- a great big, jovial fellow who could not some- how succeed and had a hard time to get along. He lived in the southern portion of the city in a tumble-down tenement and came to be known among his fellow lawyers as 'The Lord of Hardscrabble.' At last he gave up the strug- gle for success at the bar, and going down into Pajaro Valley, engaged in farming. His departure was celebrated by the publication of a poem written by Col. William D. M. How- ard, a very bright and witty lawyer of the time. I extract from it a few stanzas for the purpose of illustrating the humor and mer- it of Colonel Howard's production :

'THE LORD OF HARDSCRABBLE.

'The Lord of Hardscrabble. Oh! where has he gone ?

He has vamoosed his rancho and left us for- lorn,

He has gone to the land where the big "praties" grow,

HISTORY OF SANTA CLARA COUNTY

In the rich, loamy valley of the Rio Pajaro. No more shall his presence enliven our hall In spring and in summer, in autumn and fall, No longer his eloquent counsel we'll hear,

When the wise City Fathers in conclave ap- pear.

No more will we gather those gems of debate He let fall when discussing affairs of the state, With a broadcast of "palabros" scattered around

Like the ripe fruit of autumn strewn over the ground.

The Lord of Hardscrabble, Oh! what will he do.

Where the Locos abound and the Whigs are so few;

For he's gone where the cocks of Democracy crow.

O'er the crestfallen coons of Rio Pajaro.

'In the good old Whig cause he was valiant and stout,

Was never yet conquered and never backed out.

And Democracy will find itself in a bad box,

For he'll rally the coons and be down on the cocks,

The Lord of Hardscrabble's a gallant old blade, As the sex will bear witness, both matron and maid :

But somehow or other he lived "an old bach,"

Till the roof of his head has disposed of its thatch.

Oh! why has he ventured to go forth alone With "no flesh of his flesh," no bone of his bone?

May some kind-hearted maiden his loneliness bless.

And his fine portly shadow may it never grow less.

And when of warm evenings he seeks his re- pose,

On his cot in the house or the ground out of floors.

May there be no mosquitoes around him in flocks,

No flies on his nose and no fleas in his socks; May his dairy be filled with butter and cheese And his acres abound with "frijoles" and peas, Grain. onions, potatoes, whatever will grow And advantage him most in Rio Pajaro.

'The Lord of Hardscrabble, when will he re- turn?

His absence both daily and nightly we mourn, And a greeting of joy will resound in his ears, When his well-known "cabeza" among us ap- pears.

Roll on, happy day, when his jolly old face,

All radiant with smiles, shall illumine this place ;

With his purse full of cash and his heart full of joy,

Success to Hardscrabble, the jolly old boy.'

"The first court house of the county of Santa Clara was located on the west side of First street between Santa Clara and El Dorado streets, and abont opposite what was then Archer, but is now Fountain Alley. The low- er part of this building was adobe and was used as the court room of both the District and County Courts. The upper part was frame with the stairway on the outside of the build- ing and in that portion were located the of- fices of the sheriff and clerks of the court. "Judge Watson was the first district judge, Judge Redman the first county judge, E. K. Sanborn the first district attorney, H. C. Me- lone the first clerk, and John Yontz the first sheriff of the county of Santa Clara. In this old court house during the years 1850-1, these dignitaries with the assistance of the members of the bar, dispensed justice in their own primi- tive but rather vigorous way. A great many of the cases were tried with the aid of the jury, and out of this fact arose a curious cus- tom, which, as is perhaps well known. has gone out of date. In the early '50s whittling was a great accomplishment in the average citizen, who idled his time away about the stores or saloons or in the plaza of the village of San Jose. It was probably from this class of citizen that the early juries were mainly drawn. When trials were tedious and argu- ments of counsel long drawn out, what else could be expected than that the expert whit- tlers on the jury would perhaps unconscious- ly display their skill on the benches, posts and railing of the jury box. Sheriff Yontz, soon after his official duties began thought that the redwood and pine of the jury box in the court room was growing grotesque in form and beautifully less beneath the expert jack knives of his juries. He was at a loss for a time for a remedy, but presently he found it, and thereafter at every session of the court, when a jury was to be drawn, Sheriff Yontz gravely brought into the court room and placed on the jury box a large bundle of white pine sticks cut to a size and shape to suit a whittler's fancy. By this expedient the sher- iff saved the pillars and benches of the jury box from a destruction that was more rapid than the tooth of time.

"Among the lawyers who practiced at the bar of our District Court was William B. Almond, who had been Judge of the Court of First Instance in San Francisco before the organization of the state. Judge Almond was a genial gentleman of the old school, who loved his tipple and always kept a demijohn of cognac in the chambers adjoining the court.

HISTORY OF SANTA CLARA COUNTY

When the judicial duties of the day were over it was the Judge's habit to go to his cham- bers and enjoy a glass of cognac. The Court of First Instance was a very busy tribunal during Judge Almond's term, owing to the many cases which arose in '49 over the pos- session of lots in the growing city. In con- sequence Judge Almond had a great many papers in the form of orders and decrees to sign and in the hurry his signature often became a very hasty and formal act. Among the attorneys who practiced in Judge Almond's court was Gregory Yale, who loved joking and brandy with equal fervor. On one of Judge Almond's busiest days Gregory Yale gravely presented an order for the Judge to sign. The signature was attached and Yale went away. Presently the court adjourned and Judge Almond went to his chambers for his wonted glass. The demijohn was gone and in high dudgeon Judge Almond called the bail- iff of the court and asked him what had be- come of it. The bailiff answered that he had taken it over to the office of Gregory Yale. 'Who ordered you to do that?' said the Judge in a rage. 'Your Honor did,' responded the bailiff, and straightway drew from his pocket the following order signed by the Judge :

"'Good cause appearing therefor, it is or- dered that the bailiff of this court do forth- with convey to the office of Gregory Yale, Esq., that certain demijohn of cognac, now lying and being in and upon those certain premises known and more particularly described as the Chambers of the Honorable Judge of this Court.' It was the order he had signed that morning. Judge Almond never saw nor tasted his cognac again, but the flavor of this joke remained with him for many a day.

"Throughout all my gleanings of fact and fancy there has been constantly presented to me the outlines of a gigantic figure; the rem- iniscences of a character vast and strange; the recollections of a genius more powerful, more original and yet more eccentric than any other which ever flashed its light across the history of California; the memories of a man and of a lawyer whose living and whose dy- ing verified the truth, 'Great minds to mad- ness closely are allied.' I refer to Rufus A. Lockwood.

"In the early part of the year 1850 an im- portant case came on for trial in the Court of First Instance at San Jose. It was the case of Hepburne vs. Sunol et al., involving the title and right of possession of a portion of the Los Coches Rancho. C. T. Ryland and John H. Moore represented the plaintiff and James M. Jones appeared for the defendants. The plaintiff's attorneys were then young men, recently from the East and not yet versed in

the Spanish language or law. The attorney for the defendant, on the contrary, was a law- yer of great experience in the practice of the civil (or Spanish) law and a linguist perfect- ly familiar with the Spanish language. He was, moreover, one of the deepest students and most brilliant men of the time, and in the case at issue had the young attorneys for the plaintiff at a disadvantage. One day while some phase of the case was up before Judge Kincaid for argument, E. L. Beard, of the San Jose Mission, happened into the court

om and soon saw that Moore and Ryland were getting worsted in their case by rea- son of Jones' superior knowledge of the Span- ish law. He went over to Moore and sug- gested that he ought to have the assistance of a lawyer who could read Spanish and cope with Jones in the application of the law. 'Where can we find such a man?' asked Mr. Moore. 'I have the very man you need at the Mission,' answered Beard, 'and I'll send him down to assist you. His name is Lock- wood.' When the day for the trial of the case came on there walked into Judge Kin- caid's court room in the old Juzgado a large, awkward and roughly dressed man and took his seat with the plaintiff's attorneys. It was Rufus A. Lockwood. He made no immedi- ate manifestation of power, but listened close- ly while the pleadings were read, the jury im- paneled, and the trial of the cause begun. He saw that the case involved one of those clash- ings between the American and Mexican peo- ple so common in those early times. He no- ticed that the jury was a 'Missouri' jury, whose sympathies would naturally be with the plain- tiff. He quietly waited for his opportunity to cope with the only dangerous element in the case, viz., the learning and ability of James M. Jones, the defendant's attorney. Presently a question of law arose and Jones began to argue it with the aid of the Spanish statutes, which he read and then translated to the court. He made an argument clean cut and strong, as was his wont, and sat down confidently. Then Lockwood arose, and with one sweep of re- sistless logic destroyed the whole fabric of Jones' speech. He turned to the very statute from which Jones had quoted, read it with the facility of a master of the Spanish tongue, translated it luminously, expounded it learned- ly, and from it showed to court and jury that the law was with the plaintiff in the case. The whole court room gaped with astonishment, while the plaintiff and his attorneys hugged themselves with delight at the possession of such an ally. Every one felt and saw. that they were in the presence of a master mind. The expected victory of Jones was turned into a rout, which during the remainder of the trial

HISTORY OF SANTA CLARA COUNTY

he could not check with all his talent and in- dustry. He worked the night out to win his case, but in vain. "This man Lockwood is kill- ing me,' said Jones to Moore as the case drew to its close. The last day of the trial was February 22, 1850, when Lockwood's speech to the jury was delivered. Brief snatches of that splendid burst of oratory still linger in the memories of our pioneers who were privileged to hear it. They tell of Lockwood's descrip- tion of the Battle of Buena Vista, which oc- curred on February 22, 1846, and of which this day was the anniversary. He pictured General Taylor's victory over the 'greasers' to that jury of Missourians and called upon them to celebrate it today with a victory for the American plaintiff and against the 'greaser' defendant in the case. Such an appeal was irresistible and Lockwood not only won his case but established hinself at once as the greatest lawyer who had ever shaken the walls of the Juzgado with the thunders of nis elo- quence.

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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 11

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