Santa Clara County CA Archives History - Books .....Chapter IV 1922
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Book Title: History Of Santa Clara County

CHAPTER IV.

The Early Bar of San Jose-Alcalde Burton's Common Sense-The Eccentricities 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 American
alcalde was James Stokes, who was appointed by Captain Fallon when Dolores
Pacheco 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 natives called him, was appointed to
office by Captain Montgomery, military commander of the Northern District of
California, on October 19, 1846, about three months after Captain Thomas Fallon
had hoisted the Stars and Stripes in front of the Juzgado. The old alcalde 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 reputed 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 conducted with a freedom from the
formalities of jurisprudence which was primitive in the extreme. Alcalde Burton
continued to exercise the jurisdiction of his predecessors with much the same
laxity in forms. No fusty lawryers 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 interesting as it was unique. Every
grievance which a complainant had against a person, for which he had, or hoped
to have, a legal remedy, 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 defendant 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 parties. 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, however, the parties were too wide apart for compromise, 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 hombres and decided
the case himself. So ran the wheels of justice in Alcalde Burton's court.

  "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 recollection of our
pioneers a few more remain to illustrate the unique character of primitive
justice 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 curious to note that Alcalde Burton records
himself as 'weighing the case and taking the testimony.' 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 formality, '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 disagree. 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 entered 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 1st. 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
succeeded 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 Burton 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, might well be made so. In 1847 P. Real complained 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 established 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 succeeded 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. Lockwood
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
themselves, upon their clients and upon 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 plaintiff 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 witnesses, 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 that the mule was branded with a diamond on
its hip. The court was sitting in the old Juzgado 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 obeyed the order.'
The scene was ludicrous in the extreme; the sober face of the facetious sheriff;
the still more sober aspect of the innocent mule; the judge's withered face pale
with indignation, and the countenances of the spectators 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 lawyers who were its members to increase
and adorn our local bar. Of the many bright minds who practiced law before
Judges Watson and Redman and their successors, the following are a few: Freeman
McKinney, William T. Wallace, F. B. Murdoch, William Matthews, A. L. Yates, E.
K. Sanford, Horace Hawes, Rufus A. Lockwood, J. Alexander Yoell, John H. Moore,
Judge Almond, William Stafford, William D. Harvard, C. T. Ryland, George B.
Tingley, Alexander Campbell, A. P. Crittenden, James M. Jones, Lawrence Archer,
Thomas Bodley and Judge R. F. Peckham. These were not all, but they will example
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 estimated. 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 physician, 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 business to stock traders
who were going to the mines. Dean was one of these traders and he bought from
McKinley a stock of goods, promising 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 District Court was organized Dean, incited
thereto 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 attorneys. 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 returning 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 surround 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, 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
expression. Some of the lawyers of his court he had a great liking for, and
toward others he manifested dislike without any apparent reason. 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 idolatry.' 'What would not be
idolatry?' asked 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 forgotten 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
anything 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. Murdoch had a case of J. H. Moses against
somebody and got a judgment. One of the witnesses 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.
Murdoch, 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 reluctantly gave up the slug. 'Now,' said McKinney, 'as a matter of fact,
you stole that horse: didn't you?' The prisoner admitted to his attorney that he
did. 'In that case,' said McKinney, '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?' inquired 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
attorney 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
absence. Freeman McKinney called the bar to 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 stentorian 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 Johnson 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 infirmities, 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. Conscious 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 began 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 Redman 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 persuading Moore to submit the case without argument 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 frequency. 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 Redman'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
stealing 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 confession seemed to seal her fate. She was tried
before Judge Redman and convicted. The verdict of the jury was recorded and the
moment 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 Mindy's attorneys, arose, and with much dignity
moved the court for arrest of judgment upon the grounds that it had been shown
in evidence that Mindy was brought to California by a man named Clarkson as a
slave and had never been manumitted. That as a slave she was property and that
as a property she could not commit grand larceny. '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 counsel 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 legislature 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 belonging to a Spaniard, who,
discovering the offender, 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 attorney. 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 Redman, 'this court does not act upon what everybody knows in
depriving itself of a jurisdiction 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 jurisdiction. 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 Redman sent the sheriff after the district attorney 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 Redman, 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 lawyer 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 vocations and other fields of labor. Among
these was a lawyer named William M. Stafford- a great big, jovial fellow who
could not somehow 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
struggle 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. Howard, a very bright and witty lawyer of the time. I extract
from it a few stanzas for the purpose of illustrating the humor and merit 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 forlorn, 
He has gone to the land where the big "praties" grow,
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 appear. 
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 repose, 
On his cot in the house or the ground out of doors, 
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 return? 
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 appears. 
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 about
opposite what was then Archer, but is now Fountain Alley. The lower 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
building and in that portion were located the offices 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. Melone 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 primitive 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 custom, 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 arguments of
counsel long drawn out, what else could be expected than that the expert
whittlers on the jury would perhaps unconsciously 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 sheriff 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. When the judicial duties of the day were over it
was the Judge's habit to go to his chambers 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 possession of lots in the
growing city. In consequence 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 bailiff of the
court and asked him what had become 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 ordered that the bailiff of this court
do forthwith 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 reminiscences 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 dying verified the truth, 'Great minds to madness closely are
allied.' I refer to Rufus A. Lockwood.

  "In the early part of the year 1850 an important 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 lawyer of great
experience in the practice of the civil (or Spanish) law and a linguist
perfectly 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 room and soon saw that Moore and
Ryland were getting worsted in their case by reason of Jones' superior knowledge
of the Spanish law. He went over to Moore and suggested 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 Lockwood.' When the day for the trial of the case
came on there walked into Judge Kincaid'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 immediate manifestation of
power, but listened closely while the pleadings were read, the jury impaneled,
and the trial of the cause begun. He saw that the case involved one of those
clashings between the American and Mexican people so common in those early
times. He noticed that the jury was a 'Missouri' jury, whose sympathies would
naturally be with the plaintiff. 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
resistless 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 learnedly, 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 he could not check with all his talent and industry. He worked the
night out to win his case, but in vain. 'This man Lockwood is killing 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 description of
the Battle of Buena Vista, which occurred 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 himself at once as the greatest lawyer who had ever
shaken the walls of the Juzgado with the thunders of his eloquence.

  "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 Francisco 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 roughly treated by the Vigilantes. He brought suit
against the leading men composing that body and employed Lockwood and Edmund
Randolph as his attorneys. The case was tried first in San Francisco and
resulted in a mistrial by reason of the strong prejudice in favor of the
Vigilance Committee of that city. It was then transferred to Santa Clara County
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
libraries 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 experience. Many stories are told of his skill in the court room where he
was the wonder and admiration 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 language 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
recollection of Lockwood, was perhaps the earliest and the most pleasing. He was
a fellow passenger 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
singular, 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 literature 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 whenever
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 quoted elaborately from the poets as to the value of a
man's character and the outrage of slanderous assaults upon it. 'Who steals my
purse steals trash, etc.,' came in the climax, and Sanford sat down well pleased
at his burst of oratory. Then Lockwood arose, and, addressing the jury, also
took the subject of character for his theme. He dwelt upon the value of
character more eloquently than his opponent, quoted again all of the poetic
passages which Sanford 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-East Yankee a jack-knife and a cedar stick he'll whittle out a
better character in five minutes than has ever been established yet in any court
of justice.'

  "Rufus A. Lockwood was once the defendant 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. Lockwood 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 besmirched with having acted dishonorably toward Harlan. The
case was hotly contested on both sides, and Lockwood's blood was up. When the
deed was produced and offered in evidence Lockwood looked it over carefully and
then arose in court, and in a voice of thunder declared it a forgery. William T.
Wallace 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 stammered
Beard, 'I think that's your handwriting.' 'Now, Elias,' said Lockwood (who
prided 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, Rufus,' 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 ended it was discovered
that a fellow who was staying at Harlan's house, and who was an expert penman
and given to imitating handwriting, had written the deed."

  Judge Richards' graphic and interesting picture of Lockwood gives the
historian opportunity 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
before 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 verdict 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 property 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 Mercury. Patton had been present at the trial
and he said that the perusal of the speech could give no adequate conception of
its living 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 beyond 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 mastery
of the Spanish language and Spanish civil law. When his funds grew low he worked
his way back to the United States and resumed 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 lucrative 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 herding sheep. After his return to San
Francisco he was engaged to argue a famous land case before the U. S. Supreme
Court. By his effort in that court he showed himself to be the equal of the best
lawyer in the land. He 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 dying 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 adventurous 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 progress 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 occurred, 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 engaged, 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 position 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 between 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 average 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. Everybody made for the street as
earthquake-shaken people only can. After the danger was over, the players
remembered their game and returned 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 appointed 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 invariable 'quid' calmly until the time for
pronouncing 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 personal and real property. The court does not, however,
deem it necessary to draw any such nice distinctions, for the reason that the
evidence shows that while the action has been pending the defendant's chickens
have scattered 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 Monterey
constituted the Third Judicial District under this statute, and John H. Watson
was appointed its judge. Judge Watson was a man of considerable ability, but of
not a very vast fund of legal knowledge. He it was who delivered the famous and
humorous charge to the jury at Monterey in the case of Dean vs. McKinley, and
which has heretofore been recorded. 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 question,
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 justice between the
parties, and after I have settled that presumption I next presume that the law
is what it ought to be, and give judgment accordingly.'

  "Here is another instance of Judge Watson'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 Spanish
text and after awhile he said: 'Mr. Jones, the Court has no doubt that you are
correctly 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 presume that the law you are citing has been
repealed.' Of course such presumption was indisputable and Jones lost his case.

  "The term of Judge Watson's service on the district bench was ended in 1851 by
his sudden resignation and return to the practice of law. John H. Moore was then
district attorney, and being a young, vigorous and prosperous 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
advised 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 offense was at that time capital unless the jury
fixed a lesser punishment, but District Attorney Moore, not believing in the
harsh law, had never yet asked a jury to permit the extreme penalty. When Judge
Watson, however, volunteered to defend this horse-thief, Moore told him that he
had a bad case and that his client might hang. The Judge, however, was confident
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
professional and personal honor. His appointment in 1859 to Judge Watson's
vacant seat gave general satisfaction and when the general election 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 recently
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 Lockwood and Randolph and Baker and other brilliant men from the bar of the
State.

  "When the judicial term of Judge Hester expired 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 degrees 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 success made other
lawyers of less studious habits jealous, and as the time for another election
came on, they spread the campaign rumor that this trio of lawyers 'owned' Judge
Hester 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
Twentieth 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. Alexander Yoell. He was one of
the ablest lawyers of the early days but his peculiar disposition kept him
continually in hot water. He was fiery, impetuous and quick to take offense and
could not control his tongue. If the number 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 Southerner, polite,
precise, dignified and of undoubted 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 frequent spats was C. C. Stephens, now a
resident 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 witness was
advised by Yoell hot to testify until after he had received his fee. Yoell
believed that Stephens was short of money and that the demand of the witness
would not be complied with. Therefore the trial would either be delayed or
valuable testimony for the proponent would be lost. The witness promised 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 something. 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 witness." 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 justice 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 people. After he left San Jose, he
went to Nevada, 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 fiery and irrepressible and paid not
the slightest regard to the orders and rules of the Court. One day Stewart's
wrath at Yoell's actions exceeded all bounds. One fine for contempt was
succeeded by another until the amount reached a thousand dollars. Then Stewart
used language unfit for print. The attorney replied by throwing an ink bottle at
the Justice's head. Stewart dodged the missile, then got to his feet. "I will
adjourn Court five minutes," he said, "while I lick the" (the words are
unprintable). Putting on his hat and grasping his cane he started for the bench.
Yoell, realizing that Stewart meant business went out of the door like a flash
and tore up the street. Stewart, raging like a mad bull plunged after him and
business on Santa Clara street was suspended while the chase continued. But
Yoell was the better sprinter and a physical conflict did not take place.

  While Stewart was holding court on South Market street, Jo Johnson, a
Southerner, who had been bailiff of Judge Redman's court, was administering
justice on the lower floor of the old city hall on North Market street. J.
Alexander Yoell and W. H. Collins were legal rivals in a petty case. Yoell's
exasperating tactics so wrought upon Collins' nerves that the two attorneys soon
came to blows. While they were rolling upon the floor like two angry cats
Johnson left the bench, cane in hand, and standing over the combatants regarded
them for a moment with an amused smile. Then he raised his cane and whack! it
came down on Yoell's head. Yoell ceased to struggle and lay still. Then Collins
got to his knees and was about to speak when whack! from the cane and Collins
straightened out and for a time ceased to take any interest in court room
affairs. Later, when heads had been bandaged fines were imposed only to be
remitted when humble apologies had been made.

  The County Court went out of existence with the adoption of the new
constitution in 1879. The judges were as follows: J. W. Redman, R. B. Buckner,
John H. Moore, Isaac N. Senter, Lawrence Archer, R. I. Barnett and D. S. Payne.

  The first grand jury of the county was composed of the following persons:
Charles White, foreman; James F. Reed, William Campbell, David Dickey, William
Higgins, G. W. Bellamy, Jeptha Osborn, J. W. McClelland, Arthur Shearer, C.
Campbell, Lewis Cory, W. G. Banden, James Murphy, R. M. May, James Appleton,
Carolan Matthews, F. Lightston, W. Hoover, C. Clayton, J. D. Curd.

  The first court house was the old Juzgado, fronting the plaza, which at that
time extended north to or beyond First Street. It was not well adapted to the
purpose and in 1850 the court was removed to a two-story adobe building on the
west side of First Street opposite Fountain Alley. It occupied this building
until the latter part of 1851, when it was for a short time held in the Bella
Union building on Santa Clara Street. From there it went to the State House
building, near the corner of Market and San Antonio streets, where it remained
until that building was burned down. It then went into temporary quarters at the
city hall, then located on Lightston Street, between Santa Clara and El Dorado.
In the meantime the county had purchased a lot at the southeast corner of Second
and Santa Clara Streets and the buildings were fitted up to accommodate the
county offices and courts. Here the department of justice rested until 1868,
when it took quarters in the Murphy block at the southeast corner of Market and
Santa Clara Streets. Its stay here was only for a few weeks, for in the same
year the present court house was completed and ready for occupancy.

  The Third Judicial District bench was occupied by Judges Watson, Hester and
Sam Bell McKee. The legislature of 1871-72 created a new judicial district,
which was called the Twentieth and composed of the counties of Santa Clara,
Santa Cruz and Monterey. Hon. David Belden "was appointed judge of the new
district and he remained in the position until the reorganization of the
judicial system in 1880. Under the new system Santa Clara county was allowed two
judges, and at the election in 1879 David Belden and Francis E. Spencer were
chosen. The great learning and sound reasoning of these two jurists gave the
bench of Santa Clara County a reputation second to none in the Union. Many times
had these learned judges been called upon to preside at trials of important
cases elsewhere, and hardly ever was the calendar called that it did not
disclose some suit of magnitude sent to them for adjudication from other
counties. Judge Belden died May 14, 1888, and a few years later Judge Spencer
passed to his reward. At Judge Belden's death the whole state mourned. While his
wonderful learning excited admiration and his strict integrity induced respect,
no less did his warm, sympathetic nature command the affection of all with whom
he came in contact. He was simple in his habits and unostentatious in his
appearance. Any one could approach him and draw at will on his great stores of
knowledge, while neither his heart nor his purse was closed to a tale of
distress. Judge Spencer said of him: "He was a truly remarkable man. Many have
gone before him whose legal attainments have been equal to his. Others may have
equally possessed the treasure of masterly eloquence, but it has never been my
fortune to find combined in any other person so many rare and glowing qualities
of heart, brain and personal accomplishments. As an orator it has been truly
said of him that he possessed 'a tongue of silver'; his command of language was
wonderful, his selections beautiful and most happy. He was wont at times with
his bursts of eloquence to hold his listeners delighted and entranced. Although
his delivery was rapid, he never hesitated for an apt word or sentence. His
words came skipping rank and file almost before he would. As a jurist he had few
superiors. Well grounded in the elements of law, and conversant with the mass of
judicial precedents, he added that rare perception of principles applicable to
any given set of facts, and that peculiarly incisive power of reasoning that
makes the true lawyer. He was a just judge, a wise interpreter of the law and
evidence, and withal simple and unassuming in manner and sympathetic almost to a
fault."

  Judge Spencer was a man of profound legal attainments. He was admitted to the
bar in 1858 and in 1863 was appointed city attorney, a position he held for
seventeen years. Here he made a record that established his reputation for legal
learning and as a man of great resource. In two suits he not only relieved the
city from indebtedness but removed the last cloud from the title of every foot
of land in the city. He held the office of district attorney for two terms and
refused a nomination for a third. In 1871 he was elected a member of the
Assembly and was made chairman of the judiciary committee of that body. One
notable peculiarity of his work was the care with which he prepared his cases
for trial. No point was too insignificant to be thoroughly investigated and the
law and the authorities thoroughly collated. All his knowledge, which included
anatomy, engineering, geology, metallurgy and mechanical appliances, he carried
with him to the bench. Besides his great learning and sound judgment, two other
qualities stood out prominently in his administration of justice-the firmness
and dignity with which the affairs of his tribunal were conducted and the
uniform courtesy which was extended from the Bench to the Bar and to all others
who appeared in his court. When the Leland Stanford Jr. University was
established, Judge Spencer was selected as a member of the board of trustees and
how well he served the university every person of intelligence in Santa Clara
County knows.

  At the death of Judge Belden, John Reynolds, one of the leaders of the San
Jose bar, was appointed in his place. He, too, has been dead for many years. He
was methodical, painstaking and careful, while his learning and high character
eminently fitted him for his appointment to the bench.

  In 1897 another change in the judicial system of Santa Clara County took
place. The Superior Court was given three judges, instead of two. Upon
inauguration of the new system, the business was divided so that one court did
all the probate business, A second the criminal business and the third, the
civil business, though each department could handle business of either of the
other two departments, in case of overflow. The judges of the Superior Court
under the newest system are as follows: A. S. Kittredge, Judge A. L. Rhodes, W.
G. Lorigan, S. F. Leib, H. D. Tuttle, John E. Richards, J. R. Welch, M. H.
Hyland, P. F. Gosbey and W. A. Beasly. Kittredge was appointed by the governor
as the first judge of the new department. At his death in 1899 Judge Rhodes was
appointed to the position and held it until he resigned. His place was filled by
John E. Richards, who administered justice from the bench until promoted to be
judge of the Appellate Court. Leib and Tuttle served each but short terms to
fill a vacancy in Department 1, caused by the election of Judge Lorigan to the
Supreme Bench in 1903. The judges on the bench at this writing (1922) are J. R.
Welch, P. F. Gosbey and F. B. Brown.

  Judge A. L. Rhodes, who died in 1919, aged ninety-seven years, was one of the
ablest jurists in the state. As the oldest member of the California bar he
enjoyed the love and admiration not only of the bar but also of his
fellow-citizens, irrespective of class, condition or religion. He was a pioneer
lawyer in San Jose when he was elevated to the State Supreme Bench, a position
he held for several terms. He had gone into retirement when he was called upon
to assume judicial duties in the Santa Clara County Superior Court and he could
have held the position to an indefinite period if his age had permitted. The
whole bar of the state went into mourning when his death was announced.

  Judge Lorigan, who died in 1918, while holding office as a supreme judge, was
one of the most popular jurists Santa Clara County ever produced. He was a
graduate of Santa Clara College, studied law in San Jose, did newspaper work on
the side, served as justice of the peace and superior judge and established such
a record for probity and learning that his appointment to the Supreme Bench was
generally applauded. Honest, faithful and well-beloved, he met death bravely.


Additional Comments:
Extracted from:

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

HISTORY BY
EUGENE T. SAWYER

ILLUSTRATED COMPLETE IN ONE VOLUME

HISTORIC RECORD COMPANY
LOS ANGELES, CALIFORNIA 
1922


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