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 12

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 12

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"The next great case in which Lockwood was engaged and tried in San Jose was the case of Metcalf vs Argenti. The suit arose in this wise: Argenti was a banker in San Fran- cisco and was prominent among the members of the first Vigilance Committee. Metcalf was an arrival from Australia, who for some reason fell under suspicion and was rough- ly treated by the Vigilantes. He brought suit against the leading men composing that body and employed Lockwood and Edmund Ran- dolph as his attorneys. The case was tried first in San Francisco and resulted in a mis- trial by reason of the strong prejudice in fa- vor of the Vigilance Committee of that city. It was then transferred to Santa Clara Coun- ty for a second trial and came on in 1852. Lockwood was very much opposed to the methods of the Vigilance Committee and went into this case with more than his usual zeal and vigor. Those who heard his speech to the jury in that case say that it surpassed all of the speeches they have ever heard before or since. It was published in pamphlet form and may still be found occasionally in the li- braries of the lawyers of that time.

"The abilities which Lockwood displayed in the trial of these great cases gave him a state reputation as being the greatest lawyer on the Coast. Doubtless he was and would have died secure in that reputation, but for that strain approaching insanity in his nature, which led him to such extremes in conduct and experi- ence. Many stories are told of his skill in the court room where he was the wonder and ad- miration of the bar. In fact every one who came in contact with him had imprinted on his mind a vivid picture of the man ; of his facial

expression, of his physical movements and of his original style, and a strong remembrance of his powerful voice, which, to use the lan- guage of Judge Moore, 'was like the growl of a grizzly bear.' Walking down the street the other day I met J. H. Flickinger who told me that of all the pioneers of California his recol- lection of Lockwood, was perhaps the earliest and the most pleasing. He was a fellow pas- senger with Lockwood when he first came to California around the Horn in 1849. For the first month out from New York Lockwood never left his cabin, but after that he began to mingle with the rest. Before the voyage was ended the passengers became aware of the fact that they had on board the most sin- gular, brilliant and versatile genius they had ever known. The range of his reading and of his experience; his knowledge of human character ; his command of language, of liter- ature and the infinite variety of his moods, were a revelation to his shipmates. After the voyage was ended and during the whole of Lockwood's career in California he retained his friendship for Mr. Flickinger, and when- ever he was in San Jose was pleased to spend a while with his "shipmate" and live over again their mutual past.

"Elias L. Beard, of San Jose Mission, was a long and strong friend of Lockwood. Beard was an aggressive character and was involved in lawsuits of various kinds in all of which he had Lockwood for his attorney. One time a fellow whose name has escaped immortality, sued Beard for slander and employed E. K. Sanford as his attorney. The case came on for trial before Judge Watson, with Lockwood for the defense. Sanford made his opening speech to the jury, and it was very flowery. He quot- ed elaborately from the poets as to the value of a man's character and the outrage of slan- derous assaults upon it. 'Who steals my purse steals trash, etc.,' came in the climax, and San- ford sat down well pleased at his burst of ora- tory. Then Lockwood arose, and, addressing the jury, also took the subject of character for his theme. He dwelt upon the value of char- acter more eloquently than his opponent, quot- ed again all of the poetic passages which San- ford had done, and adding to their number, built up his speech to the very summit of a splendid consummation and then capped it all with this anti-climax, which won his case. 'Gentlemen of the jury, remembering all that I have said to you of the value of human character, I solemnly declare that if you will give a down-Eåst Yankee a jack-knife and a cedar stick he'll whittle out a better char- acter in five minutes than has ever been es- tablished yet in any court of justice.'

HISTORY OF SANTA CLARA COUNTY

"Rufus A. Lockwood was once the defend- ant in an action brought by one named Harlan in our District Court, and involving the title to a piece of land adjacent to San Jose. Lock- wood was his own lawyer and did not have a fool for a client, in spite of the old legal saw. The case turned upon the validity of a certain deed which made its appearance at the trial and was offered in evidence by the plaintiff. It appeared to be entirely in the handwriting of Lockwood and to convey the premises in question. If valid and so found by the court, Lockwood would have stood be- smirched with having acted dishonorably to- ward Harlan. The case was hotly contest- ed on both sides, and Lockwood's blood was up. When the deed was produced and offered in evidence Lockwood looked it over careful- ly and then arose in court, and in a voice of thunder declared it a forgery. William T. Wal- lace was attorney for the plaintiff, and seeing Elias L. Beard in the court room, called him suddenly to the witness stand to testify as to Lockwood's signature. Beard didn't want to testify against his friend, but after carefully examining the instrument he was obliged to swear that he believed it to be in Lockwood's hardwriting. Lockwood cross-examined him as follows: 'Elias, you think that I wrote that deed, do you?' 'Yes, Rufus,' reluctantly stam- mered Beard, 'I think that's your handwrit- ing.' 'Now, Elias,' said Lockwood (who prid- ed himself on his spelling), 'if I was going to write a deed, do you think that I would spell 'indenture' with two tt's?' Beard hastily scanned the deed, and there, sure enough, was 'indenture' spelled with two tt's. 'No, Ru- fus,' said Beard, exultingly, 'I don't believe you would, and I think this deed is a forgery.' And so it proved to be, for after the case was end- ed it was discovered that a fellow who was staying at Harlan's house, and who was an ex- pert penman and given to imitating handwrit- ing, had written the deed."

Judge Richards' graphic and interesting pic- ture of Lockwood gives the historian oppor- tunity to supplement it with the following review of the distinguished lawyer's checkered career :

Rufus A. Lockwood was born in Stamford, Conn., in 1811. His true name was Jonathan A. Jessup. At eighteen he was a student at Yale but left in the middle of the term to enlist on a United States man-of-war. In his first cruise he saw one of his shipmates tied up and brutally flogged for a trivial offense. Shocked by the sight he deserted and changed his name to Lockwood. It was not long be- fore he was in Chicago. After teaching a country school, studying first medicine and then law, he was admitted to practice in the

courts of the state. In 1836 he opened a law office in Lafayette, Ind. An opportunity to show his merit soon came. Engaged for the defense in a celebrated murder case he made such an impression on the jury that a ver- dict of acquittal was rendered. The speech was such a masterly effort as to warrant its publication in pamphlet form. This historian saw a copy in the late '60s. It was the prop- erty of Joseph Patton, then a member of the police force and a brother of the second wife of J. J. Owen, then the editor of the Mer- cury. Patton had been present at the trial and he said that the perusal of the speech could give no adequate conception of its liv- ing effect. It was, in his opinion, the best jury speech ever delivered on this continent. Lockwood's victory brought him into the full blaze of popular attention and applause. For a few years his professional business was large, but through dissipation and unfortunate land speculations his debts at last accumulated be- yond his ability to pay. He raised what money he could for the benefit of his creditors, then went to Mexico and there entered upon a course of riotous living interspersed with periods of study in which he obtained mas- tery of the Spanish language and Spanish civil law. When his funds grew low he worked his way back to the United States and re- sumed his law practice in Lafayette. While the California gold excitement was at its height he joined in the rush; arrived in San Francisco low in pocket and for six months was clerk in a law office where he not only furnished the law, but swept out the office, made fires, etc. He received his wages every evening ; every night found him in a gambling house ; every morning found him penniless. He afterward entered into a law partnership but soon threw up the business on account of his unfortunate habits and as a penance hired himself out as a day laborer, shoveling sand, coaling steamers, doing anything that came to hand. This fit lasted a month or two. Then with a clear brain he opened a law office and was soon in possession of a lucra- tive practice.

His professional gains only increased his passion for gambling and drinking and again at war with himself and the world he sailed for Australia, remaining there two years. One time he was clerk in a law office, but was discharged because he refused to copy into a brief a paragraph that was not law. His last occupation in Australia was that of herd- ing sheep. After his return to San Francisco he was engaged to argue a famous land case before the U. S. Supreme Court. By his ef- fort in that court he showed himself to be the equal of the best lawyer in the land. He

HISTORY OF SANTA CLARA COUNTY

returned from Washington in 1856. In the fall of 1857 he sailed for the Isthmus en route to New York, on professional business. At Aspinwall he connected with the Central America on her last voyage. She was wrecked in a storm and not a single passenger was saved.

Judge Richards continues his reminiscences by the following story: "The account of Lockwood's death recalls the manner of dy- ing of another member of our early bar, of whom I have written-Freeman Mckinney. When Henry A. Crabbe conceived his fatal filibustering expedition into Sonora in 1857 he attracted a number of brilliant but adven- turous characters to his company, and among these was Freeman Mckinney. Doubtless the expedition was entered upon in good faith by many of Crabbe's followers, who were led to believe that an actual revolution was in prog- ress in Sonora. Mckinney was captured and shot. He met death like a brave man.

"Still another story has been told of Judge Redman. One day as he sat in his court room, with his clerk, H. C. Melone, writing below him, J. Alexander Yoell entered. His business was with Melone, who was a large man of strong likes and dislikes, and of quick temper -- a typical border character. Between himself and Yoell a misunderstanding oc- curred, which on Melone's part ripened at once into a row and he pitched into Yoell. The Judge sat quietly viewing and enjoying the tussle and making no effort to stop it until some gentlemen entered and separated the combatants. Then turning to the Judge, with some indignation, he said, 'You're a pretty specimen of a Judge to sit there and permit a personal encounter to go on in your court.' 'My friend,' said Judge Redman, calmly, 'What could I do? The Legislature in its wisdom has not seen fit to provide my court with a bailiff, and hence I could not order them into custody. The clerk, you see was en- gaged, and I could not have entered a fine; and if I had descended from the bench to interfere I would cease to be Judge and would be no better than any other fool in the court room.' I am told that when this yarn was told to Stephen J. Field of the Supreme Court, the eminent jurist laughingly declared that Judge Redman's po- sition was correct.

"It may be gathered from some of these sketches that the lawyers of our early times did not always have their law books, either when out of court in the day time, or be- tween days when they burned the midnight oil. Nearly all of the pioneers of the bar played cards and often enjoyed the game greater when the pot was a big one and the

bets were high. Here is an incident of one of those heavy earthquakes which visited the Coast and struck terror to the heart of its denizens during the '50s, and before the aver- age man grew accustomed to 'temblors'. One day William T. Wallace, John H. Moore, J. A. Moultrie and a layman or two were having a quiet game in one of the adobes near the court house. The pot was large, the bets were made and ended, and a show-down was about to be made when the earthquake came. Every- body made for the street as earthquake-shaken people only can. After the danger was over, the players remembered their game and re- turned to the adobe. The 'pot' was still there, but every player, save one, had lost his hand somewhere in the panic. That one was 'Bill' Wallace, who, with a presence of mind which was characteristic, produced the cards he had clung to throughout the earthquake, and claimed the pot. The hand was a low one, but he dared the rest to show a higher, and when none of them could, he raked the pot.

"When Judge Redman resigned his office of county judge in 1852, C. E. Allen was appoint- ed to serve out his unexpired term, which he did with great credit to himself and to the court. After him came R. B. Buckner, who was elected in 1853. We all remember Judge Buckner and his quaint ways of dispensing justice from his bench as justice of the peace in modern days. On the old-time county bench he was much the same in method, as the following incident will illustrate: One party had leased a piece of land to another for a term, which ended, and he removed from the land leaving behind him a quantity of compost, which later he tried to remove, but was prevented by the owner of the land. The tenant brought a replevin suit against his former landlord for possession of the compost, in Judge Buckner's court. The case dragged on while the lawyers disputed in briefs and arguments about the law of fixtures, and the principles governing the change of personal into real property. At last the actual trial came on, when the defendant proved that since the case was commenced his chickens had so scattered the compost that it had lost its identity and become mingled with the soil of his land. Judge Buckner chewed his in- variable 'quid' calmly until the time for pro- nouncing judgment came. He then rendered his decision as follows: 'This case has been argued learnedly by the lawyers on both sides, who have drawn fine distinctions between per- sonal and real property. The court does not, however, deem it necessary to draw any such nice distinctions, for the reason that the evi- dence shows that while the action has been pending the defendant's chickens have scat-

HISTORY OF SANTA CLARA COUNTY

tered the property in controversy beyond identification, and have thereby literally scratched the plaintiff's case out of court.'

"The first legislature of California, which met in the fall of 1849 in San Jose, provided the state with a judicial system, consisting of a Supreme Court and nine District Courts, which met in as many judicial districts throughout the State. The counties of Santa Clara, Contra Costa, Santa Cruz and Monte- rey constituted the Third Judicial District un- der this statute, and John H. Watson was ap- pointed its judge. Judge Watson was a man of considerable ability, but of not a very vast fund of legal knowledge. He it was who de- livered the famous and humorous charge to the jury at Monterey in the case of Dean vs. Mc- Kinley, and which has heretofore been record- ed. One day while the Judge was traveling from San Jose to Santa Cruz (to held court there) in company with several members of the bar of his district, among whom was R. F. Peckham, the latter began to poke fun at Judge Watson for his charge to the jury in the Mckinley case. 'Now, Peckham,' said the Judge, 'don't you think I do about as well as any one else who don't know any more law than I do?' 'Before I can answer that ques- tion, Judge,' answered Peckham, 'I would have to ascertain just how much law you do know.'

"'Well, to tell the truth, Peckham, 'I don't know any, for I never read a law book in my life.' 'Well,' laughed Peckham, 'I must say that for a judge who never read a law book you do remarkably well, but how do you manage to get along with your cases?' 'I'll tell you the secret, Peckham,' said Judge Watson, 'I make use of two presumptions in the trial of my cases. When I have heard the evidence I first presume what the law ought to be to do jus- tice between the parties, and after I have set- tled that presumption I next presume that the law is what it ought to be, and give judg- ment accordingly.'

"Here is another instance of Judge Wat- son's affection for presumptions. One day James M. Jones was arguing a case before Watson, which involved some proposition of the old Spanish law. Watson didn't understand Spanish, and hence Jones had to both read and translate the law which he claimed would sustain his case. Judge Watson didn't like the law which Jones was evolving from the Span- ish text and after awhile he said: 'Mr. Jones, the Court has no doubt that you are correct- ly translating that statute and that it at one time was the Spanish law; but that statute is so absurd and unjust as applied to the facts in this case that the Court is going to pre- sume that the law you are citing has been re-

pealed.' Of course such presumption was in- disputable and Jones lost his case.

"The terms of Judge Watson's service on the district bench was ended in 1851 by his sud- den resignation and return to the practice of law. John H. Moore was then district attor- ney, and being a young, vigorous and prosper- ous attorney, he gained many convictions. Judge Watson saw this criminal business growing in his court, and saw also Moore's success. He had some abilities as an orator, had the Judge, and he conceived the idea that he could make a fortune defending criminals. So one day he resigned and at once opened a law office. Meeting Moore afterward he told him of his plans and rather boastingly informed the young district attorney that the day of his success as a prosecutor was passed. Moore ad- vised him not to be too confident until he had won a case or two. The very next case which came up for trial was the case of one Basquiz for horse stealing. The penalty for this of- fense was at that time capital unless the jury fixed a lesser punishment, but District Attor- ney Moore, not believing in the harsh law, had never yet asked a jury to permit the extreme penalty. When Judge Watson, however, vol- unteered to defend this horse-thief, Moore told him that he had a bad case and that his client might hang. The Judge, however, was confi- dent of his power before a jury, and the case came on. Upon the argument Judge Watson spread himself in a wild flight of oratory, but all in vain, for the jury stayed with Moore and brought in a prompt verdict for conviction without limitation, and Judge Watson's first client was hanged.

"Upon the retirement of Judge Watson, Craven P. Hester, Esq., was appointed in his stead. Judge Hester was a native of Indiana, where he studied law and practiced it for some years before coming to San Jose. He brought to the bar of San Jose a fine reputation as a lawyer and as a man of high sense of profes- sional and personal honor. His appointment in 1859 to Judge Watson's vacant seat gave general satisfaction and when the general elec- tion came a year later he was chosen to serve for a term of six years as district judge. A great many important cases were tried before Judge Hester and the ablest lawyers in the state of California practiced in his court. The sessions of the District Court were held in the State House until it was destroyed by fire in 1853, when the county provided them with quarters in the frame building which was re- cently removed from the southeast corner of Second and San Fernando streets. There for several years Judge Hester held his court. There occasionally came such lawyers as Lock-

HISTORY OF SANTA CLARA COUNTY

wood and Randolph and Baker and other bril- liant men from the bar of the State.

"When the judicial term of Judge Hester ex- pired he was not re-elected, and as I am told, for a peculiar reason. In the district of Judge Hester there were many lawyers of several de- grees of merit. The leader of the San Jose bar was William T. Wallace during the '50s. The leader of the Monterey bar was D. R. Ashley, and of the Santa Cruz bar was R. F. Peckham during the same period. This trio of lawyers each worked hard at their cases, tried them well, and in consequence, were very successful each at his own bar. Their suc- cess made other lawyers of less studious hab- its jealous, and as the time for another elec- tion came on, they spread the campaign rumor that this trio of lawyers 'owned' Judge Hes- ter and that he always decided their way. The opposition nominated Samuel Bell McKee upon this issue and succeeded in electing him. Accordingly Judge McKee became district judge in 1858. and remained so until the change in the district made in 1872, by which the old Third with some variations became the Twen- tieth Judicial District and David Belden, Esq., was elected as judge."

This concludes the excerpts from Judge Richards' article. There are, however, more stories about that eccentric character, J. Alex- ander Yoell. He was one of the ablest law- yers of the early days but his peculiar dis- position kept him continually in hot water. He was fiery, impetuous and quick to take offense and could not control his tongue. If the num- ber of times he was fined for contempt of court could be ascertained it would take up a whole page of this history. William Matthews was another old time attorney. He was a South- erner, polite, precise, dignified and of undoubt- ed courage. Once he and Yoell opposed each other in a court case. During the trial Yoell became angry at some remark of Matthews' and made a vitriolic reply. The next instant an ink bottle caromed on Yoell's forehead, the ink running in little rivulets down his face. His right hand went quickly toward his hip pocket, but before the hand reached the pocket, the muzzles of two derringer pistols were pointed at his head. "Hands up!" sternly commanded Matthews. Yoell's hands went up immediately. Then he said in a shaking voice as he spat out the ink which had dribbled over his upper lip: "Good God, Matthews, won't you let me get out my handkerchief?"

Another lawyer with whom Yoell had fre- quent spats was C. C. Stephens, now a resi- dent of Los Angeles. A will case was on trial before Judge Belden. Stephens appeared for the proponent, Yoell for the respondent. One

of Stephens' witnesses met Yoell on the street and after a short talk about the case the wit- ness was advised by Yoell not to testify un- til after he had received his fee. Yoell be- lieved that Stephens was short of money and that the demand of the witness would not be complied with. Therefore the trial would ei- ther be delayed or valuable testimony for the proponent would be lost. The witness prom- ised to follow the advice and in due time was called to the stand. Before taking the oath he said to Stephens: "I want my fee before I testify." Stephens fished out a handful of loose change and then said: "Be sworn and then I talk turkey." The witness took the oath and then waited for the payment of the fee. "One moment," said Stephens, "I've got to figure this out. You live in Berryessa and the mileage is-hold on, I've forgotten some- thing. Before we go any further, I must make sure you are the witness I want. Were you present when the will was signed?" "Yes," replied the unsuspecting witness. "Did you witness the signature?" "Yes, of course I did." "Then you are the man and that's all I want of you. Mr. Yoell, you may have the wit- ness." So saying Stephens put back his money and grinned at Yoell, whose face was black with rage. "You're a pettifogger," Yoell shouted. "Mr. Yoell," admonished the Court, "I can not permit the use of such language." "But he's a pettifogger," raved Yoell, "and he's cheating this witness." "Sit down," was the stern command from the bench. "Mr. Yoell, you are fined fifty dollars for contempt of court. Mr. Sheriff take him into custody and keep him confined until the fine is paid."

In the late '60s W. Frank Stewart, as jus- tice of the peace, held court in a small room on South Market street near Santa Clara street. Stewart was a queer genius and no one who ever saw and talked with him will ever forget him. He was over six feet in height and bony and angular. In many respects he bore a marked resemblance to Abraham Lincoln, though his features were of a sterner type. He was a Southerner, with the sensitiveness of a woman and the fearlessness of a crusader. His life had been an adventurous one. He had fought in the Mexican war, filibustered in Mexico with Walker, been editor, miner, poet, geological expert, saloon-keeper, merchant and justice of the peace and was quite capable of filling any office within the gift of the peo- ple. After he left San Jose, he went to Ne- vada, became state senator, afterward state mineralogist and died in the early '80s. As a justice he was just in his decisions but very testy and severe with lawyers who attempted pettifogging. J. Alexander Yoell was a source of constant annoyance to Stewart. Yoell was

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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 12

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