Personal Reminiscences of Early Days in California with Other Sketches Part 4

I do not give these details as having any importance in themselves; but they ill.u.s.trate the semi-barbarous condition of things in those early days, and by comparison show out of what our existing condition has been evolved, and how far we have advanced. I give them also for the reason that Barbour afterwards wrote a letter to Turner, which the latter published, referring to the affair, in which he boasted of having given me a "whipping." How far his boast was warranted the above facts show.

For a long time afterwards he expressed his bitterness towards me in every possible way. He did not take Turner's plan of expelling me from the bar; but he manifested his feelings by adverse rulings. In such cases, however, I generally took an appeal to the Supreme Court, and in nearly all of them procured a reversal. The result was that he suddenly changed his conduct and commenced ruling the other way. While this was his policy, there was hardly any position I could take in which he did not rule in my favor. At last I became alarmed lest I should lose my cases in the appellate court by winning them before him.

About a year afterwards he sent one of his friends to ask me if I was willing to meet him half-way--stating that my conduct in court had always been courteous, and he was satisfied that he had done me injustice. I answered that I was always willing to meet any one half-way, but in this case it must be without explanations for the past. This condition was accepted; accordingly we met, and taking a gla.s.s of wine, I said, "Here is to an act of oblivion, but no explanations." For a long time no allusion was made by either to the old difficulties. But at last he insisted upon telling me how tales had been brought to him, and how they exasperated him; and he expressed great regret for what had taken place; and to make amends, as far as he was able, for what he had written about me, he sent me the following letter:

"MARYSVILLE, _Dec. 22, 1856_.

"Hon. S.J. FIELD.

"DEAR SIR: On yesterday I learned through our mutual friend Charles S. Fairfax, Esq., that Judge W.R. Turner has recently issued a publication which contains a letter of mine, written him some four years ago. I have not been able to procure a copy of this publication, and I have entirely forgotten the language used; in truth I do not remember to have written him on the subject of yourself or otherwise; but I suppose I must have done so, and have given expressions of opinion that I have long since ceased to entertain, and to invectives that I have no disposition to justify. You will recall that, at the time referred to, there unfortunately existed between us feelings of deep hostility; and I may at the time have used harsh terms indicative of my then feelings, which I regret and do not now approve, if they are as represented by others."

"Judge Turner has taken an unwarranted liberty in publis.h.i.+ng the letter, be it of what character it may. He never requested my permission for this purpose, nor did I know that it was his intention."

"Trusting that this explanation may be satisfactory, I remain,"

"Very respectfully yr. obt. servant,"

"WM. T. BARBOUR."

He ever afterwards, as occasion offered, spoke of me in the highest terms as a gentleman and lawyer. My resentment accordingly died out, but I never could feel any great regard for him. He possessed a fair mind and a kindly disposition, but he was vacillating and indolent.

Moreover, he loved drink and low company. He served out his second term and afterwards went to Nevada, where his habits became worse, and he sunk so low as to borrow of his acquaintances from day to day small sums--one or two dollars at a time--to get his food and lodging. He died from the effects of his habits of intemperance.

In stating the result of the intended hostile meeting with him, I mentioned that when he proceeded on his way to Sacramento, he left his second, Mr. Fairfax, standing alone on the ground, and that I invited the latter to take a seat in my carriage. From this time the intercourse between Mr. Fairfax and myself became more frequent than it had been previously, and a friends.h.i.+p followed which continued as long as he lived. He was not sparing in his censure of the conduct of his princ.i.p.al, whilst his language was complimentary of mine. In a few months I became quite intimate with him, and I found him possessed of a n.o.ble and chivalric spirit. With great gentleness of manner, he had the most intrepid courage. His fidelity to his friends and devotion to their interests attached them strongly to him. He was beloved by all who knew him. No man in the State was more popular. He represented the county of Yuba in the Legislature two or three times, and at one session was Speaker of the a.s.sembly. When the land office at Marysville was established in 1855, he was appointed Register; and in 1856, he was elected Clerk of the Supreme Court of the State. It was my good fortune to aid him in securing both of these positions. At my suggestion, Mr. McDougal, a Member of Congress from California, urged the establishment of the land office, and obtained for him the appointment of Register. In 1856, when he sought the clerks.h.i.+p of the Supreme Court of the State, I became a delegate from Yuba County to the State Convention, and made his nomination for that office my special object, and with the aid of the rest of the delegation, succeeded in obtaining it.

Two or three incidents which I will relate will ill.u.s.trate the character of the man. It was either in the session of 1854 or 1855, I forget which, that a pet.i.tion was presented to the a.s.sembly of California on the part of some of the colored people of the State, requesting that the laws then in force, which excluded them from being witnesses in cases where a white person was a party, might be repealed so as to allow them to testify in such cases. At that time there was a great deal of feeling throughout the country on the subject of slavery, and any attempt to legislate in behalf of the colored people was sure to excite opposition, and give rise to suggestions that its promoter was not sound on the slavery question. The presentation of the pet.i.tion accordingly stirred up angry feelings. It created a perfect outburst of indignation, and some one moved that the pet.i.tion should be thrown out of the window; and the motion was pa.s.sed almost unanimously. If I recollect aright, there was but a single vote in the negative. I was standing by Mr. Fairfax when he was informed of the proceeding. He at once denounced it, and said, in energetic terms--"This is all wrong--the pet.i.tion should have been received. If my horse or my dog could in any way express its wishes to me I would listen to it. It is a shame that a pet.i.tion from any one, black or white, should not be received by the Legislature of the State, whether it be granted or not." I was greatly impressed at that time with the manliness of this expression in a community which looked with suspicion on any movement in favor of extending any rights to the colored race.

On another occasion, some years afterwards, when I was Judge of the Supreme Court of the State and he was the clerk of the court, there was a good deal of complaint against Harvey Lee, the reporter of the court, who was appointed to the office by Governor Weller. I believe that Lee was instrumental, but of this I am not certain, in getting a law pa.s.sed which took the appointment of the reporter from the court and gave it to the Governor. He was an inferior lawyer, and, of course, had very little practice. The appointment, therefore, to which a fair salary was attached, was eagerly sought by him. His reports, however, were so defective that an effort was made by the judges to get the law repealed and have the appointment restored to the court.

This led to a bitter feeling on his part towards the judges, and in a conversation with Mr. Fairfax he gave vent to it in violent language.

Mr. Fairfax resented the attack and an altercation ensued, when Lee, who carried a sword-cane, drew the sword and ran it into Fairfax's body. Fortunately it entered the chest above the heart. Withdrawing the sword Lee made a second lunge at Fairfax, which the latter partially avoided so as to receive only a flesh wound in the side. By this time Fairfax had drawn his pistol and covered the body of Lee, as he was raising his sword for a third thrust. Lee, seeing the pistol, stepped back and threw up his arms exclaiming, "I am unarmed"--though he had only that moment withdrawn his sword from the body of Fairfax, and it was then dripping with blood. "Shoot the d.a.m.ned scoundrel,"

cried the latter's friend, Samuel B. Smith, then standing by his side.

But Fairfax did not shoot. Looking at Lee, whose body was covered with his pistol, while the blood was trickling from his own person, he said, "You are an a.s.sa.s.sin! you have murdered me! I have you in my power! your life is in my hands!" And gazing on him, he added, "But for the sake of your poor sick wife and children I will spare you." He thereupon unc.o.c.ked his pistol and handed it to his friend, into whose arms he fell fainting. He had known the wife of Lee when a young girl; and, afterwards, in speaking of the affair to a friend, he said, "I thought my wife would be a widow before sundown, and I did not wish to leave the world making another." All California rang with the story of this heroic act. It has its parallel only in the self-abnegation of the dying hero on the battle-field, who put away from his parched lips the cup of water tendered to him, and directed that it be given to a wounded soldier suffering in agony by his side, saying, "His need is greater than mine."

During the war his sympathies, as was the case with most Southerners in California, were with his people in Virginia. He told me on one occasion that he could not but wish they would succeed; but, he said; "Though I am a Virginian by birth, I have adopted California, and whilst I live in a State which has taken her stand with the Northern people, I cannot in honor do anything, and I will not, to weaken her attachment to the Union. If my health were good I should leave the State and return to Virginia and give my services to her; but, as that is impossible, I shall remain in California, and, whilst here, will not be false to her by anything I do or say."

These incidents, better than any elaborate description, ill.u.s.trate the character of the man. He was a lineal descendant of the great Fairfax family which has figured so conspicuously in the history of England and of Virginia. He was its tenth Baron in a direct line. But notwithstanding the rank of his family he was a republican in his convictions. He loved his country and its inst.i.tutions. He was himself more n.o.ble than his t.i.tle. He came East to attend the National Democratic Convention in 1868 at the head of the delegates from California. After the Convention, he spent some months among his friends and relatives at the old family residence in Maryland. At this time the seeds of consumption, which had long been lurking in his system, began to be developed, and he was taken down with a severe illness which proved fatal. He became so ill as to be unable to walk, and was conveyed to Baltimore to procure the best medical attendance; and there he died on the 4th of April, 1869, in the arms of his devoted wife, who had come from California to be with him in his last hours. His body was brought to Was.h.i.+ngton and interred within sight of the Capitol, near Hock Creek Church, in which his ancestors had wors.h.i.+pped.

I have mentioned that when Fairfax was stabbed by Lee he fell into the arms of Mr. Samuel B. Smith. This gentleman I had known slightly before my difficulty with Judge Barbour; but the intimacy which sprung up between Fairfax and myself, after that affair, brought me more in contact with Mr. Smith, who was his constant companion. Mr. Smith came to California from New Jersey in 1849, and pa.s.sed through some stirring scenes during that and the following year. He came with Mr.

John S. Hagar, who was afterwards State Senator, District Judge, and United States Senator, and was engaged with him in the mines in the winter of 1849-'50. In 1850 he settled in Sutter County; and in the fall of 1852 was elected State Senator from that county. Having become more intimately acquainted with him after he was elected Senator, I requested him to introduce a bill into the Legislature, revising and amending the one which I had originally drawn concerning the courts and judicial officers of the State; and he cheerfully consented to do so, and took great interest in securing its pa.s.sage. Indeed, it was through his influence that the bill became a law. Many circ.u.mstances threw us together after that, and I learned to appreciate his manly character, his generous disposition, and his great devotion to his friends. Finally, in the fall of 1854, we agreed to form a partners.h.i.+p after my return from the Eastern States, which I then proposed to visit. After the Barbour affair the course of my professional life was much the same as that of any other lawyer. My business was large and I gave to it my unremitting attention. In 1854 I determined to go East to see my parents and brothers and sisters, who had never been out of my mind a single day since I left them in 1849. Accordingly, I went East, and after pa.s.sing a few months with them I returned to California in January, 1855. After that I continued to practice my profession, with Mr. Smith as my partner, until the spring of 1857, though during this period he went to Was.h.i.+ngton as Commissioner of the State to obtain from Congress the payment of moneys expended by her in suppressing the hostilities of Indians within her borders, and was absent several months. In April of that year we dissolved our partners.h.i.+p. A few months afterwards I was nominated for the bench of the Supreme Court of the State, and was elected by a large majority.

There were two candidates besides myself for the position, and 93,000 votes were polled. Of these I received a majority of 36,000 over each of my opponents, and 17,000 over them both together.[3] The term to which I was elected was for six years, commencing January 1st, 1858.

In September, 1857, Hugh C. Murray, then Chief Justice, died, and a.s.sociate Justice Peter H. Burnett was appointed to fill the vacancy.

This left the balance of Judge Burnett's term of service to be filled, and I was urged by the Governor of the State to accept his appointment to it, as it was for less than three months, and immediately preceded my own term. At first I refused, as I desired to revisit the East; but being a.s.sured by the judges that taking the place need not prevent my intended visit, I accepted the appointment, and on the 13th of October, 1857, took my seat on the bench.

[1] See Letter of Judge Mott detailing the particulars of the affair; Exhibit H, in Appendix.

[2] See Exhibit I, in Appendix.

[3] The exact vote was as follows: For myself 55,216 For Nathaniel Bennett 18,944 For J.P. Ralston 19,068 ------ Total vote 93,228

Majority over Bennett 36,272 Majority over Balston 36,148 Majority over both 17,204

REMOVAL FROM MARYSVILLE--LIFE ON THE SUPREME BENCH.--END OF JUDGE TURNER.

The day following my acceptance of the Governor's appointment to the Supreme Court of the State, I returned to Marysville to close my business before taking up my residence in Sacramento, where the court held its sessions. I had gone to Sacramento to argue some cases before the court when the appointment was tendered to me; and, of course, did not expect to remain there very long. In a few days I arranged my affairs at Marysville and then removed permanently to Sacramento.

I left Marysville with many regrets. I had seen it grow from a collection of tents with a few hundred occupants to a town of substantial buildings with a population of from eight to ten thousand inhabitants. From a mere landing for steamers it had become one of the most important places for business in the interior of the State. When I left, it was a depot of merchandise for the country lying north and east of it; and its streets presented a scene of bustle and activity.

Trains of wagons and animals were constantly leaving it with goods for the mines. Its merchants were generally prosperous; some of them were wealthy. Its bankers were men of credit throughout the State. Steamers plied daily between it and Sacramento, and stages ran to all parts of the country and arrived every hour. Two daily newspapers were published in it. Schools were opened and fully attended. Churches of different denominations were erected and filled with wors.h.i.+ppers.

Inst.i.tutions of benevolence were founded and supported. A provident city government and a vigorous police preserved order and peace.

Gambling was suppressed or carried on only in secret. A theatre was built and sustained. A lecture-room was opened and was always crowded when the topics presented were of public interest. Substantial stores of brick were put up in the business part of the city; and convenient frame dwellings were constructed for residences in the outskirts, surrounded with plats filled with trees and flowers. On all sides were seen evidences of an industrious, prosperous, moral, and happy people, possessing and enjoying the comforts, pleasures, and luxuries of life.

And they were as generous as they were prosperous. Their hearts and their purses were open to all calls of charity. No one suffering appealed to them in vain. No one in need was turned away from their doors without having his necessities relieved. It is many years since I was there, but I have never forgotten and I shall never forget the n.o.ble and generous people that I found there in all the walks of life.

The Supreme Court of the State then consisted of three members, the senior in commission being the Chief Justice. David S. Terry was the Chief Justice and Peter H. Burnett was the a.s.sociate Justice. Both of these gentlemen have had a conspicuous career in California, and of both I have many interesting anecdotes which would well ill.u.s.trate their characters and which at some future day I may put upon paper.

They were both men of vigorous minds, of generous natures and of positive wills; but in all other respects they differed as widely as it was possible for two extremes. Mr. Terry had the virtues and prejudices of men of the extreme South in those days. His contact and larger experience since with men of the North have no doubt modified many of those prejudices, and his own good sense must have led him to alter some of his previous judgments. Probably his greatest regret is his duel with Mr. Broderick, as such encounters, when they terminate fatally to one of the parties, never fail to bring life-long bitterness to the survivor. A wiser mode of settling difficulties between gentlemen has since been adopted in the State; but those who have not lived in a community where the duel is practiced cannot well appreciate the force of the public sentiment which at one time existed, compelling a resort to it when character was a.s.sailed.

Mr. Burnett was one of the early settlers in Oregon, and had held positions of honor and trust there before settling in California. He came here soon after the discovery of gold, took an interest in public affairs, and was elected the first Governor of the State, when the const.i.tution was adopted.

Judge Terry resigned his office in September, 1859, when he determined to send a challenge to Mr. Broderick, and I succeeded him as Chief Justice; and W.W. Cope, of Amador, was elected to fill the vacant place on the bench. I was absent from the State at the time, or I should have exerted all the power I possessed by virtue of my office to put a stop to the duel. I would have held both of the combatants to keep the peace under bonds of so large an amount as to have made them hesitate about taking further steps; and in the meantime I should have set all my energies to work, and called others to my aid, to bring about a reconciliation. I believe I should have adjusted the difficulty.

Mr. Cope, who filled the vacant place on the bench, possessed a superior mind and a genial nature. He made an excellent Judge. He studiously examined every case and carefully prepared his opinions. He remained on the bench until January, 1864, when the new const.i.tutional amendments, reorganizing the court, went into effect. He is now in practice in San Francisco, and has a large clientage.

Judge Burnett continued in office until the election of his successor in the fall of 1858. His successor was Joseph G. Baldwin, a lawyer of distinction and a gentleman of literary reputation. He was the author of "The Flush Times of Alabama and Mississippi," and of "Party Leaders." The first is a work full of humor and a great favorite in the section of the country whose "times" it portrays with such spirit and glee as to excite roars of laughter in the reader. The latter is a thoughtful history of the character and influence upon the country of Jefferson, Hamilton, Jackson, Clay, and Randolph. His portraitures present these men in the fullness and freshness of living beings, whom we see and hear, and whose power we feel.

My friends.h.i.+p for Mr. Baldwin commenced long before he came to the bench, and it afterwards warmed into the attachment of a brother. He had a great and generous heart; there was no virtue of humanity of which he did not possess a goodly portion. He was always brimful of humor, throwing off his jokes, which sparkled without burning, like the flashes of a rocket. There was no sting in his wit. You felt as full of merriment at one of his witticisms, made at your expense, as when it was played upon another. Yet he was a profound lawyer, and some of his opinions are models of style and reasoning. He remained on the bench until January, 1862, when he was succeeded by Edward Norton, of San Francisco. This gentleman was the exemplar of a judge of a subordinate court. He was learned, patient, industrious, and conscientious; but he was not adapted for an appellate tribunal. He had no confidence in his own unaided judgment. He wanted some one upon whom to lean. Oftentimes he would show me the decision of a tribunal of no reputation with apparent delight, if it corresponded with his own views, or with a shrug of painful doubt, if it conflicted with them. He would look at me in amazement if I told him that the decision was not worth a fig; and would appear utterly bewildered at my waywardness when, as was sometimes the case, I refused to look at it after hearing by what court it was p.r.o.nounced.

It is not my purpose to speak of my own career on the Bench of the Supreme Court of California. It is only for reminiscences of my previous life that you, Mr. Hittell, have asked.[1] I am tempted, however, to hand to you a letter of Judge Baldwin, my a.s.sociate for over three years, in which he presents, in terms exaggerated by his friends.h.i.+p, the result of my labors there.[2]

There is only one scene to which I wish to refer.

About a year and a half after I went upon the bench, a contested election case came up from Trinity County. It appeared that Judge Turner, who had been sent to the district composed of the counties of Trinity and Klamath, by the act concerning the courts and judicial officers of the State, at the end of his term offered himself for re-election as Judge of that district. When the vote was counted there appeared to be a majority of one against him, and his opponent was declared elected. He inst.i.tuted a contest for the office, and, being defeated in the court below, appealed to the Supreme Court. He then became very much exercised over his appeal, because I was one of the Justices. There were not wanting persons who, out of sheer malice, or not comprehending any higher motives of conduct than such as governed themselves, represented that I would improve the opportunity to strike him a blow.

When his case came on for hearing, I left the bench to my a.s.sociates, Judges Terry and Baldwin, and they decided in his favor. At this action of mine Turner was amazed. It was something wholly unexpected and surprising to him. Soon after the decision he sent one of his friends, named Snowden, to know if I would speak to him if he should make the first advance. I answered that under no circ.u.mstances would I ever consent to speak to him; that he had done me injuries which rendered any intercourse with him impossible; that the world was wide enough for us both, and he must go his own way. This answer Snowden communicated to him. The next morning he stationed himself at the foot of the stairway leading up to the Supreme Court rooms, which was on the outside of the building, and, as I pa.s.sed up, he cried out; "I am now at peace with all the world; if there is any man who feels that I have done him an injury, I am ready to make him amends." I turned and looked at him for a moment, and then pa.s.sed on without saying a word. On the following morning he took the same position and repeated substantially the same language. I stopped and gazed at him for a moment, and then pa.s.sed on in silence. This was the last time I saw him. He returned to Trinity, and held his office for the balance of his term, six years, under the decision of the Supreme Court, and was re-elected in 1863. But his character and habits unfitted him for a judicial position. He was addicted to gambling and drinking, and he consorted with the lowest characters; and the same tyrannical temper and conduct which he had exhibited towards me in Marysville, were displayed in his new district. Accordingly measures were taken by citizens of Trinity to secure his impeachment by the Legislature.

Mr. Westmoreland, a member of the a.s.sembly from that county in 1867 offered a resolution for the appointment of a committee to inquire whether articles of impeachment should be presented against him for high crimes and misdemeanors, with power to send for persons and papers and report articles if warranted by the evidence. In offering the resolution Mr. Westmoreland charged, that during the time Turner had held the office of District Judge he had been grossly tyrannical; that he had imprisoned citizens, depriving them of their liberty without process of law; that he had neglected and refused to perform the duties inc.u.mbent upon him by statute; that by a standing rule he allowed no witness to be called in a case unless he was subpoenaed and in attendance on the first day of the term; that he had used the power of his position for the furtherance of his own ends of private hate; that he was an habitual drunkard, with rare intervals of sobriety, and had upon occasions come into the court-room to sit upon the trial of causes so intoxicated as to be unable to stand, and had fallen helplessly upon the floor, whence he had been removed by officers of the court; that upon one occasion, when engaged in a trial, he had in the presence of jurors, witnesses, and other persons attending the court, deliberately gone out of the court-room and openly entered a house of ill-fame near by; and that by his disgraceful conduct he had become a burden upon the people of that district too grievous to be borne. These things Mr. Westmoreland stated he stood prepared to prove, and he invoked the interposition of the Legislature to protect the people of the Eighth Judicial District who were suffering from the deportment and conduct of this officer. The resolution was pa.s.sed. Finding that articles of impeachment would be presented against him, Turner resigned his office. After this his habits of drinking became worse, and he was sent to the Asylum for Inebriates, where he died.

In thinking over my difficulties with Turner at this distant day, there is nothing in my conduct which I in the least regret. Had I acted differently; had I yielded one inch, I should have lost my self-respect and been for life an abject slave. There was undoubtedly an unnecessary severity of language in two or three pa.s.sages of my answers to his attacks; and some portion of my answer in court to his order to show cause why I should not be re-expelled from the bar might better have been omitted. I have since learned that one is never so strong as when he is calm, and never writes so forcibly as when he uses the simplest language. My justification in these particulars, if they require any, must be found in the savage ferocity with which I was a.s.sailed, the brutal language applied to my character and conduct, and the constant threats made of personal violence. Malignity and hate, with threats of a.s.sa.s.sination, followed me like a shadow for months. I went always armed for protection against a.s.sault. I should have been less or more than man had I preserved at all times perfect calmness either in my language or conduct.

In the contest with this man I was cheered by the support of the best men of the State. But of all of them no one aided me so much, and so freely, as the editor of the Marysville Herald, Mr. Robert H. Taylor, a gentleman still living, in the full strength of his intellect, and honored and trusted as a learned member of the legal profession in Nevada. May length of years and blessings without number attend him.

* * * * *

Here my narrative of "Personal Experiences" must for the present end.

I could have given you, Mr. Hittell, more interesting matter. I could have given you sketches of Fremont, Halleck, Gwin, Broderick, Weller, Geary, Sherman, Bigler, McDougal, Bennett, Heydenfeldt, Murray, and others, with many striking anecdotes ill.u.s.trative of their characters.

They were all remarkable men, and the history of their lives would be full of interest and instruction. I could have related the story of the Vigilance Committees of 1851 and 1856, and shown how the men of order and virtue acquired and maintained ascendency over the irregular and disorderly elements of society. I could have told you of the gradual development of the industries of the State until her yearly products have become one of the marvels of the world. I could have described the wild excitement produced by the supposed discoveries of gold in boundless quant.i.ties on Fraser River; and the later but more substantial movement upon the development of the silver mines of Nevada. I could have recounted the efforts made in 1860 and 1861 to keep the State in the Union against the movements of the Secessionists, and the communications had with President Lincoln by relays of riders over the Plains. I could have described the commencement, progress, and completion of the Pacific railroad, and the wonderful energy and unfailing resolution of its constructors. I could have told you stories without number, full of interest, of the Judges of California, State and Federal, who preceded me on the bench, and of members of the profession; of Hastings, Bennett, Lyons, Wells, Anderson, Heydenfeldt, and Murray, of the State Supreme Court; of Hoffman and McAllister of the Federal bench; of Robinson, Crittenden, Randolph, Williams, Yale, McConnell, Felton, and others of the Bar, now dead, and of some who are at its head, now living; composing as a whole a bar not exceeded in ability, learning, eloquence, and literary culture by that of any other State of the Union. But you asked me merely for personal reminiscences, of occurrences at Marysville and during the days preceding my going there. I will, therefore, postpone until another occasion a narrative which I think will be more interesting than anything I have here related.

[1] These sketches were in the main dictated to a short-hand writer at the request of Mr. Theodore H. Hittell, of San Francisco.

[2] The letter is printed at the end of this narrative at page 135.