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Book No. ^ — liLl-gjjg^''^ Accession

328.794 Cj2:i3- 104830

NOT TO BE TAKEN FROM THE LIBRARY

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3 1223 90189 0484

OCUMENTS DEPARTMENT

APPENDIX

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SACRAMENTO:

BENJ. F. AVEHY. STATE PKIXTER

1862.

104830

BOUND BY F. FOSTER SACBAMKSTO.

CONTENTS.

1. — Annnii! Rcpor; if f""ntr.ller of tState for the \cht 1861.

2.— Aniniiil Rt|><>rt i»f Troii.''nri.T "f State f-r the vcar 1S«1.

.'{. — Anniiiil Keport of StirveviT-tiiniriil for the year ISfil.

4. — Annual Ki'|iiirt of Stviini|i Liunl ('oninii!i!<ionors lor the yoar IPtll.

J. — Annual Uoport of Superintendent of PuUlio In-^tnirtinn for the yenr If-tW.

ft. — Anninil Keport of Tru.<to»-» ol In.xano A.«yluin for the year IStll.

7. — Annual Keport of A'ljiitant-lfi-ncral for the year 1S61.

>>. — Annual Report of Stnte I'rison l)irect<ir:< for Ihe year 1861.

V. — Annual Report of Atiorncy-ttcucral for the year IHfil.
Itt. — Annual Report of Sec-retiiry of Stuti* for the year ISfil.
11. — .Annual Report of Trli:<tOf.- of State Lilirary for the yeuv ISBl.
12. —Report of ('oniniii!(tioiier.i on the Culture and Iniprovenunt of thr (•rnpe-Xiniv
i;i. — I'rofii.'jgor Whitney'* .XciilrrnM on tleolojry, lH.«forc the l,«>j;ii'lnture of IS()2.
14. — Reports of Joint C'oniiuitiL'i: relative to un alle);eil Frauilulcnt Interpolation in .^eiinto Bill

No. 73.
1.1. — Report? of the (.'oniniittee on Public Moral.^ of .AMicnihly relative to the .'»un>lay Law.
I rt.— Report of the State Pontrolli-r relative I" the Finan-'ial Condition of the Htate.
17. — J^talenient of the Stnte Trvacureron the Fiiian'ial l'ou<lition of the i^lstc.
IS.— Report of the Tru-xees of the .'^tnte Reform Sehool.
19. — Report of Superintendent of the State Reform Seho<d.

20. — Report of Ati-temhly Committee relative to the Condition of the J^tnte Prison.
21. — Report of Surveyor-General in re!<pon*o to a Remilittion of the A(<iieml>ly.
22. — Report of .Spucial Committee of the Assembly on Con.xtitutional Amendrnvnt'.
2.'!. — Report of Joint .Select Coutnittce relative to Chinese Population.
■J 1. — Report of S|ivoial ConiDiittee of the .*»enate to visit .*!tale ln-<Hiiu Ai<ylum.

26. — Report of .**tate Ilotipit-tl Committee.-" on the C lition of the Initane .A.«ylum.

2fi. — Report of As.'eiably Committee on iiofipitalx relative to the Insane A.-ylum.

27. — Report <d' Assembly Committee on the Culture an<l Improvement of the drape-Vine.

28. — Report of Trustee.i of the In!<tituti<>n for the l>eaf, Uumb, and Blind.

29. — Letter of Stale (teologi.st relative to Progress of the (ieological Survey.

30. — Report of Board of War Kxaminer:<.

XI. — Report of .Adjutant-ttencral upon the Indian War Debt.

.H2. — Report of Controller of State relative to .Sehool Land .Moneys!.

[i'.i. — Report of Board of Managers of the State Ajfricultural Soeiety.

'M. — Report of Superioress of the .San Franoiseo R. C. Orphan .Aj-ylum.

3.>. — Report of Trustees of the R. C. Orphan Asylum of Los Augeles.

36. — Report of Proceedings iu the Trial of James H. Hardy. Judge of the Sixleeutb Judicial

District.
37. — Report of Testimony taken before the Committee on LUctiont! of the Senate, in the con-
tested Election Case of Cavis i». Quiut.
38. — Report of Committee on Election? of the .Assembly in the Mnrin contested Election.
39. — Report of Assembly Committee on Elections relative to the contested Election Case of Orr
t«. Davis.

ANNUAL KEPOirr

THE COiXTROLl.ER OF STATE,

FOR

THE YEi^R 1801.

BEN J. P. AVERY STATE PRINTER.

A::Nr>N^IT^VL REP»OIlT.

Office of State Controller, |
Sacramento, Cal., December 16th, 1861. )
To His Excellency,

John G. Downey,

Governor of California:

Sir: — In compliance with an Act concerning the office of Controller,
aj>i»rovtMl January nineteenth, cit^hteen luunlred an«l fitly. I heij^ leave to
subnut hcTOwith a rcj)*»rt of the comlition of the State Finances at the
close of tho Tweltth t iscal Year, ending; June thirtieth, eighteen hundred
and sixty-one. I have endeavored to make the report as full and com-
prehensive as the data at my command would permit.

The tabular statements and general statistics will be found arranged
jis fnjlows :

Statement of the receipts into the State Treasury, during the twelfth
fiscal year.

Statement of the expenditures during the twelfth fiscal year.

Table, showing the revenue received during the first, second, third,
fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth,
fiscal years.

Table, sho\ving the expenditures during the first, second, third, fourth,
fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth, fiscal
years.

Annual assessment of the value of real and personal property, from
the organization of the State government to the year eighteen hundred
and sixty-one, inclusive.

Abstract statement of the assessment of the value of property of all
kinds, for the year eighteen hundred and sixty-one, and the amount of
State tax due thereon.

Tabular statement of the amount of each appropriation made by law,
the amounts paid under the same, respectively, and the balances unex-
pended, June thirtieth, eighteen hundred and sixty-one.

Statement of the condition of the several funds, June thirtieth, eighteen
hundred and sixty-one.

Condensed statement of the balances in the several funds, June thirtieth,
eighteen hundred and sixty-one.

Estimate of the receipts, from all sources of revenue, during the
thirteenth fiscal year, ending June thirtieth, eighteen hundred and
sixty-two.

Estimate of the expenditures, for all purposes, during the thirteenth
fiscal year, ending June thirtieth, eighteen hundred and sixty-two.

Statement of warrants issued by the Controller, from July first to
December fifteenth, eighteen hundred and sixty-one.

Statement of the receipts into the State Treasury, from July first to
December fifteenth, eighteen hundred and sixty-one.

Statement of the transactions of the Stamp Office, during the year
ending December fifteenth, eighteen hundred and sixty-one.

Statement of the Funded Debt of eighteen hundred and fifty-seven.

Statement of the Funded Debt of eighteen hundred and sixty.

E.
Statement of the War Debt.

It will be fjratifyin^ to your Exeelloncy, at the close of your adminis-
tration, to observe the ^roM-in-; prosperity of the State, as evinced by
the annual aufjmentation of tlie assessed value of real and personal
property, and the correspondin<^ enlargement of the revenue. The re-
ceipts of the twelfth fiscal year amount to nearly one hundred thousand
dollars more than those of the preceding year.

This increase is derived chiefl}* frf)m the tax on real and ]»ersonal
projd'rty. and foreiijn miners, and sales of swamp and overflowed lands.

The extraordinary exjtenditure occasioned by the surrinder of the
State Prison property to the State, and the ])rofuse libn-aiity of the
Lci;islature, have, it must be confessed, temporarily exiiaiistfil the Gen-
eial Fund, and cause<l some deLjree of financial embarrassment. This
will, howfver. be of short duration, and the exercise of reasonable econ-
omy by the Lei;islative branch of the Government will soon inablo the
State to meet all <leman<ls in cash.

The amount of audited claims unpaid, AUmI in this office to date,
ineludin<; salaries of State offlcei-s and cmployi^s, is, in round numbers,
two hundi-«.'d and ninety-five thousand dollars.

The inti'ri'st on the Civil Funded Dclit has beon promptly paid when
due, and a lari^e surplus of the Sinkinir Fund has been a|»plit'd to the
redemption of (he bonds. The amount borrowed from the Swamj) Land
Fund (one hundred an«l ninety-three thousand six luwulred and sixty-
six dollars and forty-three cents) to pay the current expenses of the
Government, has been returned, and a lari;e sum is thus ma<le available
for the reclamation and segregation of swamp and overflowed lands.

The Revenue Law of eighteen hundred and sixty-one has /xono into
partial operation, and the result is satisfactory. The law may be
amended and simplified with jrrcat benefit, ami the cost of collecting the
revenue still further reduced.

For the details of the fiiuuicial transactir>ns of the State Government,
I bejx h'ave to refer you to the accom])anyin<; documents.

I di'sire to acknowledi^e the obli<^ati(jn im])ose(l by the courtesy of the
State Treasurer in supplyim;, in part, the inf )rmation contained in the
exhibit of State indebtedness, marked P, Q, and R.

I have the honor to remain,

Very respectfully, your obedient servant,

JAS. S. GILLAX,

Controller.

[ B ]

EXPKNDITUKES
Durinj ihr Twelfth Fiscal Year^ cndinj June 30, 18G1.

EXECUTIVK hKl'AKT.MKNT.

Stat*: Officers.

Sjiluiy of Governor 85,000 00

Saliiry of ControlK-r 2,910 00

Salary of TreasurtT 2,016 00

Salary of Sicrotury of State 2,«J10 00

Salary of Su]»orintcii(k'nt of Pul»lic Iiisiriutif»ii. 2,010 00

Salary of Attorney-General 1,000 00

Salary of Surveyor-General 1, ()<■>() 00

Salary of (Quartermaster-General 1,0()() 00

Salary of Kei^ister State Land Office 1,333 30

Salary of Governor. Menilier Board Examiners. 833 30
Salary of Secretary of State. Member Board

Examiners 833 30

Salary of Attorney-General, Member Board Ex-
aminers 1 .250 00

Total.

f^U'rks, Secretaries and Porters.

Salary of Deputy Controller

Salary of Private Secretary to Governor

Salary of Clerk to Attorncy-CJeneral

Salary of Clerk to Board of Examiners

Salary of Clerk to Superintendent of Public

Instruction ,

Salary of Draughtsman to Surveyor-General ....

Salary of Clerks to Secretary of State

Salary of Clerks to Controller

Carried forward

82.000 00

1,000 00

«33 30

1.000 00

500 00
2,000 00
5,700 00
8.000 00

825.010 10

Expenditures — Continued.

Brought forward

Salary of Clerks to Treasurer 6,000 00

Salary of Clerks in State Land Office 2,000 00

Salary of Additional Clerks State Laud Office... 2,000 00

Pay of Porter in Governor's Office 500 00

Pay of Porter in Secretary of State's Office 250 00

Pay of Porter in Controller's Office 250 00

Pay of Porter in Surveyor-General's Office 250 00

Pay of Porter in Attorney-General's Office 150 00

Pay of Watchman, Treasurer's Office 2,000 00

Pav of Porter to Governor for Eleventh Fiscal

Year 25 00

Total

Contingent Expenses.

Contingent Expenses Governor, Special 83,880 70

Contingent Expenses Governor's Office 244 70

Contingent Expenses Treasurer, Eleventh Fis-
cal Year 109 05

Contingent expenses Controller, Eleventh Fis-
cal Year 198 91

Contingent Expenses Surveyor-General, Elev-
enth Fiscal Year 31 25

Contingent Expenses Attorney-General, Elev-
enth Fiscal Year 33 88

Contingent Expenses Governor, Eleventh Fis-
cal Year 27 55

Contingent Expenses State Land Office, Elev-
enth Fiscal Year 26 14

Continscent Expenses Governor, Special, Elev-

entirPiscal Year 360 25

Contingent Expenses Controller's Office 286 39

Contingent Expenses Treasurer's Office 119 73

Contingent Expenses Secretary of State's Office 168 24

Contingent Expenses Surveyor-General's Office. 186 65

Contingent Expenses Attorney-General's Office. . 116 85

Contingent Expenses Sta%e Land Office 218 08

Postage Secretary of State, Eleventh Fiscal Year 562 50

Postage Secretary of State, Twelfth Fiscal Year 1,184 85

Postage Superintendent Public Instruction 600 00

Stationery, etc., for Superintendent Public In-
struction 137 31

Expressage for Controller's Office 750 00

Eepairs in Treasurer's Office 6 00

Total

Carried forward

$25,916 10

$35,124 90

89,249 03

870,290 03

Expenditures — Continued,

Brought forward

Rents of Offices.

l?cnt of State IIouho

Rent of Governor's Office

Rent of Superintendent of Public Instruction's

Office

Rent of Sun-eyor-Genei-al's (Office

Rent of (iuartermastcr-lieneral's Office

Rent of Attorney-General's Office

RiMit of Governor's Office, Eleventh Fiscal Year
Ri'iit or(^iiartermaster-(fencral'8 Office, Eleventh

Fiscal Year

Total

SS.fiOO 0(1
750 00

800 00
OOO (10
100 00
400 00
25 00

HO 00

JUDICIAL DEPARTMENT.

Salaries.

Salaries of Justices Supreme Court Slfi.tJGO GO

Salaries of District Judijes 70.005 70

Salary of .Supreme Court Rej>orter '.i.HHli Hi)

Salary of Suj)renie Court Secretary 1.500 00

Pay of porter to Supreme Court 24H (io

Total

( '(intimji nt Kxjnnsrs.

Contingent expenses Supreme Court, Eleventh

Fiscal Y'ear S14 60

Contingent expenses Supreme Court, TAvelfth

Fiscal Year 400 15

F?eiit of Supreme Court Rooms 1,166 66

Reporting and Publishing certain Decisions of

the Supremo Court 5,333 30

Payment for Volumes Fourteen and Fifteen of

Supreme Court Reports 4,0?0 00

Purchase of Cai-pet and Furniture for Supreme

Court 293 87

Total

Carried forward.

870,290 03

85,915 00

892.414 31

SI 1,268 58

8179,887 92

Expenditures — Continued.

Brought forward

LEGISLATIVE DEPARTMENT.

Per Diem and Mileage of Lieutenant-Governor

and Senators §41,993 40

Per Diem and Mileage of Assemblymen 94,970 80

Total

Officers and Clerics.

Pay of Officers and Clerks of Senate S14.059 00

Pay of Officers and Clerks of Assembly 15,320 00

Total

Contingent Expenses.

Contingent expenses of the Senate 816,553 43

Contingent expenses of the Assembly 19J78 71

Cop3'ing for the Senate 8,547 81

Copying for the Assembly 9,626 80

Postage and exj^ressage for the Legislature 2,975 00

Stationery etc. for the Legislature 14,133 64

Total.

EXPENDED FOR STATE PRINTING.

Printing paper and official advertising $30,829 96

Pay of Expert to examine printing accounts.... 350 00

Total.

EXPENDED FOR STATE PRISON. PURPOSES.

Support of State Prison 872,938 90

Transportation of prisoners Eleventh Fiscal

Year 596 75

Transportation of prisoners Twelfth Fiscal Year 15,395 25

Cancellation of State Prison contract 275. OUO 00

Total

Carried forward.

L79,887 92

8136,964 20

829,379 00

871,615 39

831,179 96

8363,930 90
8812,957 37

Expenditures — Continued.

Brought forward

EXPENDED FUR STATE LIBKAHY.

Purchase of books, papers, etc 81,737 G9

Rent ol" Lil)rary ]{ooms 833 30

Shelviui^and furnishing State Library Eleventh

Fiscal Yoar 25 46

Shelving and furnishing State Library Twelfth

Fiscal Year 271 00

Contingent expenses State Library o7 40

Pay of Porter 500 00

Contingent expenses State liibrary Eleventh

Fiscal Year lOO 00

Salary of State Librarian 312 33

Total

EXPENDED FOR THE SUPPORT OF THE INSANE.

Sup])ort and niuintenance of Insane A.syliiiu §77.000 00

Salaries of Physicians at Insane Asylum 0,444 43

Purchase of dairy for Lisane Asylum 200 00

Total

EXPENDED FOR SCHOOL PURPOSES.

Support of Schools. Alanuxla County 82,480 85

Su])port of Schools, Amador County 2,385 10

Suj. port of Schools, Butte County 2^144 00

Suj)port of Schools, Calaveras County 2,323 75

Support of Schools, ColusaCounty 007 90

Suj)port of Schools, Contra Costa County 1,835 25

Su})])ort of Sehools, Del Norte County 87 00

Supi)ort of Sciiools. El Dorado County 3.659 65

Support of Schools, Fresno county

Support of Sehools, Humboldt County 810 70

Support of Schools, Klamath County

Su[)port of Schools, Los Angeles County 3,205 25

Su})port of Schools, Marin County ". 49 00

Support of Schools, Mariposa County 795 50

Support of Schools, Mendocino County 853 20

Support of Schools, Merced County 231 00

Support of Schools, Monterey County 1,917 50

Carried forward

8812,957 37

83,S37 is

883,644 43

8900,438 98

ExPENDlTtFRES — Continiied.

Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo
Suppo

rought forw
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,
of Schools,

ard

Napa County

Nevada County

Placer County

Plumas Count}'

Sacramento County

San Bernardino County

San Diego County

San Francisco County 1

San Joaquin County

San Luis Obispo County....

San Mateo County

Santa Barbara County

Santa Clara County

Santa Cruz County

Shasta County

Sierra County

Siskij'ou County

Solano County

Sonoma County

Stanislaus County

Sutter County

Tehama County

Trinity County

Tulare County

Tuolumne County

Yolo County

Yuba County

1,956

3.075

1,974

377

5,764

1.446

365

3,496

3,348

731

946

1,773

4,836

1,743

1,504

833

924

2.604

5.294

363

936

509

350

944

2,387

1,601

2.352

§900,438 98

Totah

EXPENDED FOR HOSPITAL PURPOSES.

Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,
Indigent Sick,

Alameda County

Amador County

Butte County

Calaveras County

Colusa Coiinty

Contra Costa County.
Del Norte County...'..

El Dorado County

Fresno County

Humboldt Count}'

Klamath County

Los Angeles County..

Marin County

Mariposa County

873 05

116 66

141 68

169 26

26 00

44 07

40 36

213 04

13 35

30 67

148 85
21 93
60 56

§85,776 34

Carried forward §986,215 32

13
Expenditures — Continued.

]Jrouglit forward

Indij^ont Sick, ^[endocino County 20 74

Indii^t'Tit Sick. Merced County 1> oU

Indiijeiit Sick, Monterey County 2;') 78

Indigent Sick, Napa County 112 70

Indigent Sick, Nevada County

Indigent Sick, Placer County 15G 22

Indigent Sick, Pluraan County 62 07

Indigent Sick, Sacramento County •

Indigent Sick, San Bernardino County 20 78

Indigent Sick, San Diego County 9 98

Indigent Sick, San Francisco County 385 87

Indigent Sick, San Joaquin C(;unty 104 10

Indigent Sick, San Luis Oljispo County

Indigent Sick, San ^lateo County 3o 95

Indigent Sick, Santa Barbai-a County 10 78

Indigent Sick, Santa Clara County 80 41

Indigent Sick, Santa Cru;^^ County 39 50

Indigent Sick, Shasta County.....* 08 20

Indigent Sick, Sierra County 171 92

Indigent Sick, Siskiyou County 120 21

Indigent Sick, Solano County 75 15

Indigent Sick, Sonoma County 114 97

Indigent Sick, Stanislaus County 18 29

Indigent Sick, Sutter County

Indigent Sifk, Tehama County 197 54

Indigent Sick, Trinity County 70 27

Indigent Sick, Tulare County

Indigent Sick, Tuolumne County

Indigent Sick, Yolo County '. 50 09

Indigent Sick, Yuha County 150 04

Total

ERECTION OF STATE REFORM SCHOOL.

Building and materials

y EXPENDED FOR INTEREST ON STATE DEBT.

^Payment of Coupons No. 5, due January 1,

m 1861 ei33.840 00

■Payment of Coupons No. 6, due July 1, 1801... 133,840 00

^ Total

Carried forward

8980,215 32

83,248 20

817.091 40

8207,080 00

81,274,835 04

Expenditures — Continued.

Brought forward .

EXPENDED FOR PURCHASE OF BONDS.

Paid for 818.000 Civil Bonds, purchased for

School Fund 616,570 00

Paid for 860,500 Civil Bonds 58.142 75

Total

EXPENDED FOR SUPPRESSION OF INDIAN HOSTILITIES.

Suppression of Indian Avars in Tehama, Shasta,

and Butte Counties 8540 56

Suppression of Indian wars in Mendocino County 571 49

81,274,835 04

Total,

EXPENDED FOR MILITARY PURPOSES.

Salaries of Members Board War Examiners 82.000 00

Salary of Clerk Board AVar Examiners 750 00

Paid for transportation of arms 1J25 00

Paid C. ^y. Tozer and others 6,150 00

Paid Denver. Smith, and Phelan, Commission-
ers of AVar Debt 9,000 00

Paid cleaning and repairing arms...., 927 25

Total

EXPENDED FOR RELIEF PURPOSES.

Education and care of deaf, dumb, and blind... 810,000 00
Paid E. Johnson jg qO

Total.

EXPENDED FOR MISCELLANEOUS PURPOSES.

r:xpenses of the Stamp Act, eleventh fiscal vear. 8393 00
Expenses of the Stamp Act, twelfth fiscal year.. 4,239 50

Carried forward.

874,712 75

81,112 05

820,552 25

810,016 00

81,381,228 09

ExPENDiirRES — Continued.

Brought forward

Costs iind cxjKMiscs ol" State suits 2.0;U 75

Salaries of Stamp Ins|»cctors l.ltSC) G6

Establishment of Eastern Boundary HM\'2 OD

Survey of Eastern Boundary 2.SoO 00

Construction of the State Capitol 24.175 82

Purchase of ma])s. eleventh fiscal year IMO 00

Translation of laws, eleventh fiscal year 1.572 50

Purchase of maps, twelfth fiscal year 50 00

I'lii-chase and repairintj instruments Surveyor-

(Jeneral '. 125 00

Construction of wa^on road in Santa Barbara

County 15.0(10 00

Aid in erection of Washington Monument 1,000 00

Purchase of burial place for State 2.000 00

Prosecution of delinquents 450 00

Fxpensos of Geolof^ical Survey 15.000 00

Completion of wells on Colorado Desert 5.000 00

Expenses of ]ireparinij Bonds. (Civil) ^^12 00

Per diem and mileai^e Presidential Klectors 100 HO

Paid services segregating swamp lands 210 00

Total Expenditures .'

»1, 381, 228 09

8.«<1,462 72

81,462,090 81

ExPENDi TURES — Continued.

KECAPITULATION.

Executive Department 876,205 03

Judicial Department 103,682 89

Legislative Department 237,958 59

Expended for State Printing 31.179 96

Expended for State Prison purposes 363,930 90

Expended for State Library 3,837 18

Expended for Support of the Insane 83,644 43

Expended for Support School purposes 85,776 34

Expended for Hospital purposes 3,248 26

Expended for erecting State Reform School 17,691 46

Expended for Interest on State Debt 267,680 00

Expended for purchase of Bonds 16,570 00

Expended for redemption of Bonds 58,142 75

Expended for Suppression of Indian wars 1,112 05

Expended for Military pui-jioses 20,552 25

Expended for Relief purposes 10,016 00

Expended for Ikliscellaneous purjDOses 81,462 72

Total Expenditures

ei,462,690 81

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[ E ]

EXHIBIT,
Showinij the Annual Assessments of Real and Personal Property, from tJie Organimtion of the State Government to the Tear 1861 mchsioe

Alameda

Amador

Butte

Calaveras

Colusa

Contra Costa

Del Norte

El Dorado

Fresno

Humboldt

Klamath

Lake

Los Angeles

Marin

Mariposa

Mendocino

Merced

Mono

Monterey

Napa

Nevada

Placer

Plumas .

Sacramento

San Bernardino...

San Diego

San Francisco

San Joaquin

San Luis Obispo...

San Mateo

Santa Barbara ....

Santa Clara

Santa Cruz

Shasta

Sierra

Siskiyou

Solano

Sonoma

Stanislaus

Sutter

Tehama

Trinity

Tulare

Tuolumne

Yolo

Tuba

$268,294 00
266,078 00

2,002,410 00
" 572,410 00

1,931,403 00
1,006,893 00

3,621,213 00
918,164 00

8,947,454 00

396,810 00

21,621,184 00

1,821,489 00

577,618 00

992.676 00
4,883,295 00

2,709,246 00
1,187,672 00

269,702 00
2,374,060 00

$57,670,689 00

8633,952 00

367,661 00
1,753,648 00

2,187,992 00
756,375 00
160,435 00

1,638,308 00
803,140 00
686,080 00
304,192 00

6,331,024 00

820,811 00

17,794,711 00

1,715,189 00

460,530 00

821,000 00
2,934,183 00
1,184,821 00

497,025 00

1,178,756 00
1,627,572 00

741,732 00
215.812" 00

504,927 00

599.343 00

1,894,412 00

849,231,052 00

8853,955 00
808,450 00
966,840 00

3,236,198 00

1,831^801 bo

65,370 00

2,256,125 00

932,192 00

1,216,557 00

1,546,920 00

1,289,048 00

956,925 00

1,365,985 00

7,232,026 00

424,637 00

18,481,737 00

2,843,404 00

512,324 00

989,686 00

3,292,153 00

1,095,094 00

645,545 00

657,976 00

478,988 00

2,896,795 00

1,657,091 00

617,894 00

1,620,911 00
1,321,969 00
2,280,906 00

864,579,375 00

83,472,837 00

"2,024,142"()"b
2,129,966 00
1,470,131 00
1,995,192 00

3,660,309 00

1,681,422 00

1,607,168 00
1,527,902 00

1,196,975 00

8,252,920 00
304,086 00

32,377,893 00

4,943,891 00

421,750 00

1,136,654 00

4,428,976 00

1,085,400 00

968,584 00

777,784 00

917,190 00

3,851,048 00

2,880,309 00

755,304 00

526,615 00

199,914 00

2,374,861 00

1,177,625 00

3,695,267 00

895,335,046 00

84,383,179 00
1,038,443 00
1,895,526 00

1,505,178 00
2,330,084 00

'3,'278]324"b6

826,119 00
393,218 00

1,763,787 00

1,404,206 00

1,750,810 00

1,551,757 00

311,003 00

8,775,966 00

305,232 00

699,859 00

35,796,475 00

4,174,708 00

516,441 00

952,065 00

6,582,062 00

1,470,878 00

1,064,362 00

1.389,042 00

1,120,763 00

4,580,498 00

4,098,630 00

577,973 00

1,243,148 00

477,055 00

193,137 00

2,463,986 00

1,990,576 00

4,945,517 00

8111,191,030 00

83,558,360 00

2,267,209 "oO
1,927,977 00
1,259,053 10
1,710,408 00

'2]530,488 bb

467,161 00

2,561,359 00

901,589 00

1,262,987 00

495,017 00

1,189,875 00
2,125,615 00
2,304,019 00
1,804,089 00

9,297,634 00
312,778 19

32,841,027 70

4,064,470 00

380,228 00

837,035 00

5,443,780 00

1,004,971 00

1,658,401 00

2,218,481 00

2,794,372 00

3,941,173 00

642,988 00

1,703,647 00

642,077 50

2,4.53,510 00
2,205,610 00
5,109,804 00

18 5 0.

82,599,751 00

1,740,326 00

2,347,719 00

1,975,067 00

1,476,317 49

1,580,136 00

3,bl8,398"bb
406,413 50
642,355 00

1,005,315 00
1,931,647 00

667,672 00

1,800,182 00

2,015,205 00

2,558,515 00

2,173,362 87

10,585,821 00

30,368,254 00

3,814,968 00

498,476 11

1,320,333 00

5,771,417 00
1,148,249 00
1,806,470 00

642,422 00
1,817,104 00
1,004,075 00

2,.564,318 00
'5,667,152 00

895,007,440 9'

185'

83,020,836 00
2,258,494 .34
3,944,862 00
2,485,798 00

1,869,405 "bb
507,165 00

3,129,518 00
383,730 00
834,650 00

1,473,187 00
2,037,589 00

811,721 00

881,188 00

2,255,401 00

3,037,946 00

2,226,236 38

1,333,605 00

11,193,945 00

39,706,105 00

4,102,815 00

666,870 50
1,385,217

1,034,643 00

4,504,328 00

1,986,864 00
2,218.026 00
2,801,370 00
2,-502,432 00
4.-346,320 00

665,182 00
1,-536,716 00
1,741,331 00
1,231,056 00

488,821 00
2,894,950 00
2,2-35,6-50 00
6,335,488 bO

8126,059,401 82

18 5!

83,020,836 00
2,258,494 00
4,307,21)2 00
2,421,390 00

2,536,617 bb
519,151 00

2,817,699 00
579,830 00

1,068,908 00

2,370,523 00
1,473,187 00
1,185,762 00

811,721 00

1,066,234 00

3,015,911 00

3,037,946 00

2,226,236 00

1,333,608 00

12,053,245 00

30,725,950 00
5,019,295 00
649,882 00
1,432,161 00
1,090,442 00
5,131,582 00

1,986,864 00

2,375,932 00

2-801,370 00

2,502,432 00

4,346,320 00

730,662 00

2,104,501 00

1,939,092 00

1,320,901 00

796,978 00

3,073,578 00

2,235,650 00

5,587,725 00

8123,955,877 00

1860,

83,020,836 00
2,303,240 00
4,047,362 50
2,185,097 00

2,426,625 bb
647,093 00

2,817,699 00
6-53,845 00

1,068,908 00

2,370,523 00

1,473,187 00

1,246,210 00

1,641,671 75

822,431 00

1,066,234 00
3,281,489 00
3,037,946 00
2,998,219 00
786,332 00
12,053,245 00

528,130 8
33,777,075 00
5,251,248 00
1,030,352 75
1,490,407 00
1,090,442 00
5,131,582 00
1,139,649 87
1,986,864 00
2,184,576 00
2,480,838 00
2,502,432 00
5,048.299

736,662 00
2,308,908 00
1,620,343 00
1,134,905 00

796,978 00
2,712,280 00
2,273,388 00
5,881,725 00

8131,060.279 49

84,381,580 00
2,395,684 30
3,868,474 00
2,427,795 00
2,643,X09 80
2,324,866 36

628,009 00
3,603,727 00

931,007 50
1,368,517 00

305,487 00

3,065,330 00
2,084,575 09
1,410,,S47 00
1,122,541 00
1,116,994 00

1,475,094 75

3,455,658 00

4,062,673 00

3,078,831 00

900.418 50

12,283,767 00

417.238 00

528,130 87

35,967,499 00

4,938,400 00

1,296,915 80

1,596,408 00

1,038,645 00

5,707,796 00

1,290,046 00

1,986,864 00

2,640,956 11

2,882.392 00

3,882.700 98

4,(i95,4K3 00

969. S70 00

2,293,759 00

2,086,213 00

1.335,815 00

1,-589,529 00

3,312,497 00

2,416,921 00

6,419,276 00

8148,193,540 02

1861

84,169,834 00
2,607,071 00
3,851,833 00
1,934,971 00
2.643.SII!! 85
1,980,297 75

483,707 00
3,804,820 00
1,02k;i.S7 00
1.36,x..il7 00

365,487 00

373,401 37
3,065,330 00
1,796,425 00
1,367,823 00

646,469 00
1,092, .SU3 00

310,S96 00
1,475.094 75
3,147,0S1 00
4,225,0S5 00
3,225, 24S 90

904,41. S 50
12,070,1103 00

417. 23S 00

528,130 S7
41,845,119 00
4,938,400 00

805,006 13
1,401,711 00
1,038,646 00
6.012.(i70 00

7I3,S95 00
1,564,998 28
2,580,705 00
2,404,199 00
3.882,700 98
4,119„574 00

S(U.912 00
2,090,o5K 00
2,141.137 00
1.325.167 00
1,034,341 72
2,583,125 00
2,150,140 00
6,419,276 00

8147,811,617 16

i-i

i~5:

State Tax thereon at
60 cts. on $100....

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[ H ]

STATEMENT

Of the Condition of the Several Funds June 30, 1861.

Br.

GENEEAL FUND.

July 1, 1860
June 30. 1861

To balance in Fund

To receipts during Twelfth Fiscal Year

To amount transferred from Swamp Land
Fund

§95,652 90
824,013 19

193,666 43

ei,113..332 52

Dr.

SCHOOL FUXD.

July 1, 1860
June 30, 1861

To balance in Fund

834,258 19

To receipts during Twelfth Fiscal Year

To receipts from Interest on Civil Bonds of
1857

43,541 57
4.270 00

To amount transferred from General Fund...

17,178 61

899,248 37

[ H ]

STATEMENT
Of the Condition of the Several Funds June 30, 1861.

GENEEAL FUND.

C'r.

Juno 30, 1861

By "Warrants issued Twelfth Fiscal Year

By anumut transferred to Interest and Sink-
ing Fund of l!:<57

By amount transferred to School Fund

By amount transferred to School Land Fund
By amount transferred to Swamp Land Fund

By amount transferred to Military Fund

By amount transferred to Library Fund

By Balance in Fund

81,029,398 h'l

62,475

17.178 61

77 60

10,112

184 05

575

3.331

81,113,332

SCHOOL FUKD.

Cr.

June 30, 1861

By "Warrants issued Twelfth Fiscal Year.
By Balance in Fund

585,776 34
13,472 03

899.248 37

Dr.

Statement H — Continued.
STATE SCHOOL LAND FUND.

July 1, 1860
June 30, 1861

To balance in Fund

To receipts during Twelfth Fiscal Year

To amount transferred from General Fund.

$10,058 71

10,849 74

77 60

^20,986 05

Dr.

HOSPITAL FUND.

July 1, 1860
June 30, 1861

To balance in Fund

$3,563 54

To receipts during Twelfth Fiscal Year

3,466 00

$7,029 54

Dr.

MILITAEY FUND.

June 80, 1861

To receipts during Twelfth Fiscal Year

To amount transferred from General Fund...

$1,613 70
184 05

$1,797 75

Statement II — Continued.
STATE SCHOOL LAND. FUND.

Cr.

June 30, 1861

By amount paid for Civil Bonds of 1857

By balance in Fund

816,570 00
4,416 05

820,986 05

HOSriTAL FUND.

Cr.

June 30, 1861

By Warrants issued Twelfth Fiscal Year

By balance in Fund

83,248 26
3,781 28

87,029 54

MILITAEY FUND.

Cr.

June 30, 1861

By Warrants issued Twelfth Fiscal Year

By balance in Fund

8927 25
870 50

81,797 75

Dr.

Statement H — Continued.
LIBEAEY FUND.

July 1, 1860
June 30, 1861

To balance in Fund

To receipts during Twelfth Fiscal Year

To amount transferred from General Fund.

$178 04

3,316 05

575 00

§4,069 09

Dr.

INTEREST AND SINKING FUND OF 1857.

July 1, 1860
June 30, 1861

To balance in Fund

To receipts during Twelfth Fiscal Year

To amount transferred from General Fund.

§58,206 63

311,547 74

52,475 17

§422,229 54

Statement H — Contimied.
LIBEAEY FUND.

Cr.

June 30, 1861

By "Warrants issued Twelfth Fiscal Year.
By balance in Fund

$1,737 69
2,331 40

§4.009 09

INTEEEST AND SINKING FUND OF 1867.

June 30, 1861

By "WaiTants issued in payment of Interest..
B)' amount paid for re,demption of Civil Bonds
By balance in Fund

S207.680 00
58,142 75
96,406 79

$422,229 54

Dr.

Statement H — Continned.

swa:mp land fund.

July 1, 1860
June 30, 1861

To balance in Fund

To receipts during Twelfth Fiscal Year

To amount transferred from General Fund.

$116,527 31
90,100 64
10,112 44

$216,740 39

Dr. estates DECEASED PERSONS— (G. Brock.)

Statement H — Continued.
SWAMP LAND FUND.

Cr.

June 30, 18G1

Bj' Warrants issued Twelfth Fiscal Year
By amount transferred to General Fund
By balance in Fund

S210 00

193.666 43

22,863 96

0216,740 39

ESTATES DECEASED PEESONS— (G. Brock.)

[I]

CONDENSED STATEMENT

Of the Balances in the several Funds, June 30, 1861.

General Fund

vSehool Fund

State School Land Fund

Hospital Fund

Military Fund

Library Fund

Interest and Sinking Fund of 1857

Swamp Land Fund

Estates of Deceased Persons

Totals

$3,331 13

13,472 03

4,416 05

3,781 28

870 50

2,331 40

96,406 79

22,863 96

89 09

$147,562 23

[ K ]

ESTIMATE

Of Receipts from aU sources of Revenue durinij the Thirteenth Fiscal Year,

ending June 30, 1862.

From Property Tax

From Poll Tax

From Foreign Miners' License Tax

From State and County Licenses

From Passenger Brokers' Licenses

From Stamp Tax

J'rom Commutation Tax

From Swamp and Overflowed Lands

From State School Lands

From District Court Fees

From Fees from Secretaiy of State

From Commissions from Adjutant-General

Totals

§050,000 00

50,000 00

120,000 00

40,000 00

12,000 00

80,000 00

4,000 00

40,000 00

30,000 00

20,000 00

3,000 00

1,000 00

gl, 050)000 00

ESTIMATE OF EXPENDITURES
For the Thirteenth Fiscal Year, ending June 30, 1862.

$6,500 00

3,750 00

3,500 00

3,000 00

2,000 00

1,600 00

2,000 00

19,000 00

4,000 00

1,800 00

2.500 00

85,000 00

8,000 00

1,750 00

1,200 00

2,100 00

7,500 00

5,400 00

4,650 00

4,200 00

900 00

600 00

750 00

1,800 00

2,100 00

1,900 00

1,800 00

900 00

600 00

150 00

300 00

600 00

SALARIES.

For Salary of Governor

For Salary of Controller

For Salary of Treasurer

For Salary of Secretary of State

For Salary of Superintendent of Public Instruction

For Salary of Attorney-General ..

For Salary of Surveyor-General

For Salary of Eegister of Land Office

For Salary of Adjutant-General

For Salary of Justices of Supreme Court

For Salary- of Reporter of Supreme Court

For Salary of Secretary of Supreme Court

For Salary of State Librarian

For Salary of District Judges

For Salary of Pliysicians of Insane Asylum

For Salary of Members Board of Examiners

For Salary of Members Board of War Examiners

For Salary of Deputy Controller

For Salary of Clerks to Controller

For Salary of Clerks to Treasurer

For Salary of Clerks to Secretary of State

For Salary of Clerks to Land Office

For Salary of Clerks to Board of Examiners

For Salary of Clerks to Board of War Examiners

For Salary of Clerks to Attorney-General

For Salary of Clerks to Superintendent of Public Instruc

tion

For Salary of Draughtsman ,

For Salary of Private Secretary of Governor

For Pay of Watchmen of Treasury

For Pay of Bailiff of Supreme Court

For Pay of Porter to Governor

For Pay of Porter to Controller

For Pay of Porter to Secretary of State

For Pay of Porter to Surveyor-General

For Pay of Porter to Attorney-General

For Pay of Porter to Supreme Court

For Pay of Porter to State Library

Carried forward

$189,800 00

Estimate of Expenditures — Continued.

Brought forward

RENTS.

For llent of Governor's Office

For Eent of Office of Superintendent Public Instruction

For Eent of Surveyor-General's Office

For Eent of Adjutant-General's Office

For Eent of Supreme Court Eooms

For Eent of State Library Eooms

For Eent of State House

CONTINGENT EXPENSES.

For Governor's Office, Special

For Governor's Office

For Controller's Office

For Treasurer's Office

For Secretary of State's Office

For Surveyor-General's Office

For Land Office

For Adjutant-General's Office

For Attorney-General's Office

For Boai"d of Examiners

For Supremo Court

For State Library

For Senate

For Assembly

MISCELLANEOUS.

For Expenses of Stamp Act

For Support of Insane Asylum

For Support of State Prison

For Support of Common Schools

For Support of Indigent Sick

For Expenses of State Suits

For Prosecution of Delinquents

For Transportation of Prisoners

For Printing, Paper, and Official Advertisements.

For Stationery, Fuel, and Lights

For Cancellation of Capitol Contract

For Construction of State Capitol

For Completion of State Eeform School

For Exj^enses of Geological Survey

§189.800 00

900 00

300 00

720 00

360 00

2,000 00

LOOO 00

7,200 00

5,000 00
300 00
300 00
300 00
300 00
300 00
500 00
300 00
200 00
200 00
GOO 00
300 00
2,000 00
3.000 00

Carried forward.

6,000 00

84,000 00

50.000 00

80,000 00

4.000 00

1,000 00

20,000 00

50,000 00

20,000 00

20.000

100,000

37.000

15.000

00
00
CO
00

§703,880 00

Estimate of Expenditures — Continued.

Brought forward

For Postage and Expressage of Controller's Office

For Postage and Expressage of Secretary of State

For Postage and Expressage of Superintendent of Public

Instruction

For Postage and Expressage of State Library

For Stationery, Fuel, and Lights of Superintendent of Pub-

li c Instruction

For Purchase of Majjs United States Surveyor-General

For Copying of Maps United States Surveyor-General

For Purchase of Instruments Surveyor-General

For Education and Care of Indigent Deaf, Dumb, and

Blind

For Aid for Orphan Asylums

For Aid for Benevolent Associations

For Translating Laws

For Annual Reports of Supreme Court

For Per Diem and Mileage of Lieutenant-Governor and

Senators

For Per Diem and Mileage of Assemblj^men

For Pay of Officers and Clerks of Senate

For Pay of Officers and Clerks of Assembly

For Payment of Interest on State Debt ,

For Redemption of Civil Bonds

For Relief of Agricultural Societies

For General Relief Purposes

For Improvement of State Burial Grounds

For Cancelling Vouchers of State Treasurer's Office

For PaymentV Troops of 1856

For Reclamation and Segregation of Swamp Lands

For Purchase of Real and Personal Property at State

Prison

For Transportation of Arms to Utah ,

For Establishment of Eastern Boundary Line ,

For Aid in Erection of "Washington Monument

For Printing Report of State Agricultural Society

For Payment of Rewards offered by Governor ,

Total.

^703,880 00
1,500 00
1,200 00

600 00

200 00

200 00
500 00
250 00
250 00

17,500 00

13,000 00

4,790 00

2,000 00

4,000 00

45,000 00

90,000 00

15,000 00

20,000 00

281,000 00

150,000 00

15,300 00

19,356 78

1,000 00

1,200 00

25,000 00

50,000 00

12,000
2,209
2,400
1,000
3,400
5,000

00
62
00
00
00
00

$1,488,736 40

[ INI ]

STATEMENT

Of Warrants issued from July 1 to December 15, 1861.

Drawn on General Fund

Drawn on School Fund ,

Drawn on Military Fund

Drawn on Library Fund ,

Drawn on Interest and Sinking Fund of 1857
Drawn on Interest and Sinking Fund of 1860
Drawn on vSwamp Land Fund

Totals

8185,885 51

32,573 59

203 90

2,049 12

130,462 50

12,009 68

22.005 76

8384,690 06

Note. — A number of warrants which have been issued by the Con-
troller of State, (including the warrants drawn on the Interest and
Sinking Funds for the pajinent of the semi-annual interest on the Civil
Bonds of 1857 and 1860, falling due on the first day of January next,)
do not appear in the expenditures as reported by the State Treasurer,
as they have not j'et been paid by him.

[N]

Alameda

Amador

Butte

Calaveras

Colasa

Contra Costa....

Del Norte

£1 Dorado

Fresno

Hnmboldt

Klamath

Lake

Los Angeles ....

Harin

Mariposa

Mes^ocmo

i£er<y

Mono^

ilontereyV

Xapa.-

Xevada...

Placer ...."r^.^

Plumas _

Sacramento

San Bernardino

San Diego

.San Francisco

San Xoaqoin

San Lois ObiKpo

San Mateo

.Santa Barbara

Santa Clara

Santa Cmz

Shasta

Sierra

Sjskiyoa

.Solano

-Sonoma

Stanislaus

■Sntter ....!....""

Tehama

Trinity

Toolamne

Yolo !!;!!!!!!!!

Yuba

Treasurer of State

•Secrctarj- of State

Superintendent of Immigration

Aojutjint-General

Sundrj- Pernon.s [[[[_

Totals

1 (5 '■ 155 '87

81,024 6:
Wdb

2,077 4.3

"i',726 81
' 699 48
3.132 45

3,410 10

941 15

8,992 29

3,317 51

15,943 40

8.3"05

183,217 99
3,883 37

979 19
3,776 83
9,209 13
1,509 09
5,473 03
10,659 24
2,063 58
8,624 57
7,241 55
529 07
194 12
9,266 55
4,801 82
3,026 33

$1,089 4'9'

S503 90

1,663 18

2,380 43

1,284 45

446 08

\ 393 65

381 79

5,236

160 56

287 08

563 60

104 86

46 91

2,62;

233 61

""■ir,i"i;

363" 88
420 88
847 94

1,632 17

1,717 17
67 66

1,233 66
394 3:
323 86
470 26

1,259 95

2,480 . 5.5

001 01

1,.506 3!l

84,002 14
4,194 14
7,102 27

974 45
16,253 24
1,862 40

1,521 93

3,084 94
2,069 81
2,949 27

3,329 71

146 66

1,793 14

14 55
26i'96

14 55
"29"l0

887 31
'509"25

85 48
'43 65

894 58
30 34
196 43

12 1
'l37"73

81,839 71

48 50
41 21
16 16

53 20
43 66
29 10
356 70
130 95
55 26
29 10
43 6,

145 50
43 65
•^6 10

19 40

9 70

9 70
"9 "76

6 00
"4 85

il 64
' 4 85
"8"73
"5"82

REC

FROM JULY 1 TO DEC

846 50
37 36
88 56

106 08
4 85

13 58

14 55
184 79

12 61
26 19
41 55

«83,S13 75

■»^j. nLwa^'^t^^ff

RECEIPTS

FROM JULY 1 TO DECEMBER 15, 1861, INCLUSIVE.

I
1

s
1

i
1

1
1

S
I

1
k

1
1

1
i
■3
2

i
1

1
f

1
I
1
p.

L
1

§■

1
1

............

8801 53

24"83

1.906 85
258 79

" "4.826 "i'a
211 03

' 'S165"2'6

'as'so

698 40

""'s'l'24"i'6

261'7'G

07 00

'is'w

1,834 05

8261 90
101 85
325 92
154 23
26 10
90 21

226"98

2 91

8103

sii'

65
27

Slio 62
14 35
21 82

16 97

^41944(0

%%Vi

-si

844-W*t!i ?

"ssss'so
i

'"zi'ib

14 98
59913

boi'ii

73"9G

246 44

260 '74

8,063 98

'9,955 '24
' "i',5'22"9'4
391'i's

'"3',8'66"7'2

631 61

500 79

1,552 34

OT'a'e

" "i',5ii"3e

r::::::::::::

aw'i'o

""i'i'os'M

(i'oi'i'o

" "i.i'eb'bs)

wi'io

'm'oo

ii 76

" "i'Sb'i"i'i

" 'z.on'ii'o

26i"76

644 "43

'ih'i'n

' "3,036"73

" "2,589 "I'g
31 04
31 04

"73'72

i'43'56

1,958 64

"oo'n

122 36

178 48

"si'w

""i',070"8S
106 44

"29""l6

'6305

276 45
212 43

445 23

" "iii'os'n

"'"2,642 "28
17 46

"sTS

258"08

32 01

M.s'gg

296 82
i"37'74

"si'i's

145 .50
2Mi"82

"81,034 '00

x::::

"SUI 86

16 50
65 48

"" "i2"l2

4""i"5

'""i.5'00
2 43
4 85
21 83
78 80
38 80

12 12

7"'27

" ""2l'82

'.".!".

868 87

:::::::::

\""'::.

27
28

83,955 24

"li9"22

'812,717 "ii

•••*

"15 '5

"s2',oii)"6"o

"26',5sl.8"^'

;i5r::

82,765 00

......s.

♦533 50

88,965 24 $196 09

■«?3,3i3 72

838,612 01

82,765 00

812,360 26

812,946 69

87,589 82

8103 50

829 09

8" O'n f;"

8141 86

8194 00

S217 38

S68 S7

844 '1"

<:U 0

■

;•;•

860 02
14 35
21 8:

4 S5
21 83
73 80

$141 86

30 S963 391 S152 77|S12 12

S590 001 S923 03

cl HI

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J/J

r*.

STATEMENT
Of the Funded Debt of 1857.

Amount of Bonds issued by the State Treasurer, under

the Act of April 28, 1857

Less amount of Bonds redeemed

Amount of Bonds outstanding

$3,900,000 00
172,500 00

$3,727,500 00

[Q]

STATEMENT
Of the Funded Debt of 1860.

Amount of Bonds issued by tho State Treasurer, under the
Act of April 30, 1860

Total.

8197,500 00
8197,500 00

[ R]

STATEMENT
Of the War Debt of the State.

Amount of "War Bonds issued by the State Treasurer, under
the Act of April 25, 1857

Total

$319,148 33

••) -T -

A N X U A L l\ E P O l\ T

PHE TKEASlUEll OF STATE,

FOR

THE YE^VIl IHGI.

BKNJ. P. AVERY STATE PRINTER.

^]S^^TJ-zVT. I^EPOHT.

Statk (IF Cai.ikouma. Tkkam kv Dkpartmext, ]
Sacianu'uto, Decciubur lUtli, l^Gl. j

To His Exeellenty,

JdHN G. DoWNKY.

Governor of the State of California :

Sir: — ITorewith I have tlic pleanure to phxco in 3-onr liands mj- fourlli
annual report, as required by law. A full and detailed statement of all
moneys received into and ]uiid out of the Treasury from the sixteenth
(laj- of Deeemher. eighteen hundred and sixty, to December fourteenth,
eighteen humlred and sixty-one, inelu.>ive.

Very respectfully, your obedient servant,

THOMAS FINDLEY,

Treasurer of State.

The balance remaining in the Treasury at the close of
business, December 15, 1860, belonging to the various
funds, was ?

Total amount received from December 16, 1860, to De
cember 14, 1861, inclusive

Total.

Total amount disbursed during the above named period.....
Balance on hand at close of business, December 14, 1861...

To the credit of the various Funds, viz:

General Fund 812,015 54

School Fund 30.824 77

Hospital Fund 4.815 28

^lilitaryFund 803 29

Library Fund 2.891 78

. Interest and Sinking Fund of 1857 186.618 46

Swamp Land Fund 233.725 33

State School Land Fund 17.940 94

Estates of Deceased Persons! S9 09

8643,338 29
1,095,020 01

81,738,358 30
1,248,573 82

8489,784 48

Of the disbursements made during the past year, the following named
items are not properly chargeable to the support of the Government:

Interest on State Debt under Act of 1857

Bonds redeemed under Act of 1857

Bonds redeemed out of State School Land Fund

Total

8267,680 00
96,379 37
16,570 00

8380,629 37

There has also been paid during the year, in addition to the amount
before stated, for the erection of the State Eeform School, construction
of State Capitol, cancelling State Prison Contract, support of Common
Schools, reclamation of Swamp Lands, State Geologist, etc., viz:

Erection of State Eeform School

Construction of State Capitol

Cancelling State Prison Contract

Eeclaiming Swamp Lands

Support of Schools

State Geologist

Carried forward

824.831 31

42,268

137.500 00

21.657

81.713

10,000

8317.970

Amount broufifht forward

i-eial appropriations made by Legislature and paid to
date

A'ld the amount above

Total

§317,970 18
86,367 79

404,337 97
3S0,629 37

§784,967 34

Making a total of $71^4.007 34. which, deducted from the entire dis-
bursements of the year, (Sl.24s.573 S2,) leaves a balance of S4tj3,606 48
cover all other expenses of the State; including the expenses of the
i^islature, the salaries of Judges, and all public otficers. support of In-
16 As^dum and State Prison. With the exception of salaries of offi-

rs and support of public institutions, have not been paid since the first

y of July, as follows:

I aries, about

support of State Insane Asylum

Support of State Prison

"- : :ite Print er

S80,000 00
42,000 00
30,000 00
33,000 00

The balance of amounts due and not paid are special appropriations.

The semi-annual interest on the civil bonded debt of the State, issued
luider Act of 1S57, has been jjromptly i)aid as presented.

A surjjlus having remained in the Interest and Siidcing Fund of 1857,
< the tirst da}' of Jul}- last (after paying the interest.) advertisement
was made for the space of ten da^'s in one daily paper. ])ui»lished in New
York city, and for two months in one daily paper puhlished in this city,
and ninety-six thousand live hundred dollars, in bonds, purchased as
follows:

From A. K. Grim, 896,500 in bonds, at 09i

§96.379 37

Total amount of bonds redeemed out of the Interest and Sinking
Fund of 1857, to wit:

In September, 1861.

One bond redeemed under Act of April 10, 1860.

Total amount redeemed to date

In September, 1859 §15,000 00

In September, 1860 60,500 00

' " " 96,500 00

500 00

§172.500 00

These bonds, to^^ether with tlie coupons, have been canceUed. and re-
duce the semi-annual interest to one hundred and thirty thousand, four
hundred and sixty-two 50-100 doHars.

Total amount of bonds redeemed out of the State School Land Fund
and deposited in this otRce, marked ••School Fund," is seventy-nine thou-
sand dollars.

The intevest accruinii; on these bonds amounts yearly to five thousand
five hundred and thirty dollars, and is credited to the School Fund for
the support of Common Schools.

Under the provisions of the law authoi'izin<^ the Treasurer of State to
issue bonds for the payment of expenses incurred, and losses sustained,
in the suppression of Indian hostilities in this State, twent3'-six thou-
sand nine hundred and five dollars and seventy-seven cents, in bonds,
have been issued since my last annual report, makinu; the total amount
issued to date, three hundred and nineteen thousand one luiii«]red and
forty-eight dollars and thi]'t3--three cents.

I have the honor to be your obedient servant,

THOS. FIXDLFY,

Treasurer of State.

For particulars sec statements and tables annexed.

1PERATI0XS OF THE STATE TREASURY

FROM

DEC. 16, 1800, TO DEC. 15, 1861.

• MOXTHLY EECEIPTS,
From December 16, 1860, to June 30, 1861.

Balance on hand, December 16, 1860, (see last report)

Eeceivcd from December 16 to Dec. 31, 1860 830,013 13

Eeeeivcd from January 1 to January 31, 1861... 12,272 38
Received from February 1 to February 28, 1861. .189.377 51

Received from March fto March 31, 1861. 3^030 39

Eeceivcd from April 1 to April 30, 1861 5,198 31

Received from May 1 to May 31, 1861 224,858 80

Eeceived from June 1 to June 30, 1861 5.572 96

8643.338 29

8470.323 4h

81,113.661 77

From July 1 to Dcccmhcr 14, 1861, inclusive.

Balance on band June 30, 1861

Eeceived from July 1 to July 31, 1S61 814.770 72

Eeceived from Aui^ust 1 to August 31, 1861 126.366 39

Eeceived from September I'to Sept. 30, 1861 3.917 24

Eeceived from October 1 to October 31, 1861 .... 4,911 37

Eeceived from Xovember 1 to Xov. 30, 1861 459127 48.

Eeceived from December 1 to Dec. 16, 1861 15,603 33

8285,478 03

8624,696 53

8910,169 56

RECAPITULATION.

Balance on haml December 16, 1860 8643,338 29

Eeceipts from December 16, 1860, to Decem-
ber 14, 1861 1,095,020 01

81,738,3.58 30

MONTHLY EXPENDITURES,
From December 16, 1860, to June 30, 1861.

Disbursed from December 16 to Dec. 31, I860.. .8194,033 Q2
hisbiirsed from January 1 to January 31. 1861. 88.104 33

Disbursed from FeKruary 1 to Feb. 28, ls(>l 264.370 05

Disbursed from Marcb 1 to Mareb 31. ISUl 107,01)8 07

Disbursed from April 1 to April 30, ISGI 33.;)S3 63

Disbursed from May 1 to May 31, 1S61 81.724 24

TMsbursed from June 1 to June 30, 1861 03.778 80

I balance on band June 30, 1861

$828,188 74
285,473 03

$1,113,661 77

From Juli/ 1, to December 14, 1861, inclusive.

Disbursed from July 1 to July 31, inclusive $153,453 09

Disbursed from Auij^ust 1 to Aug. 31, inclusive.. 35,446 91

Disbursed from Sept. 1 to Sept. 30. inclusive.... 157,541 21

Disbursed from October 1 to Oct. 31, inclusive.. 6,793 20

Disbursed from Nov. 1 to Nov. 30, inclusive 54,910 07

Disbursed from Dee-. 1 to Dec. 14, inclusive 12,240 60

Balance, December 15, 1861

$420,385 08
489.784 48

8910,169 5(i

RECAPITULATION.

Disbui'sed from December 16, 1860, to Decem-
ber 15, 1861 $1,248,573 82

Balance on band at the close of business, De-
cember 14, 1861 489.784 48

$1,738,358 30

[ ^V ]

COUNTIES.

5
1

1
S

Alanu'.la

819,120 27
10,683 83
19,573 29
10,060 61
12,745 36
10,238 67

$3,094 43
170 86
182 62
303 36

81,110 98

2,319 77

4,145 91 .

1,792 46

580 52

699 .8,S

Ama.lur

Buttf

Sl,177 97
282 44

Colusa

33 64

812 43

DolNurti'

El Dorado

20 08

13,372 82
3,489 45
6,719 03

69l'6o
858 94

9,110 76
309 84

Fresno . ., ,

::::;:

Humboldt

179 07

1,733 69

117 23

587 15

Klamath

Lms Angeles

12,375 91
2,900 76
5,344 73

10,641 78
8,004 46
5,333 56

18,790 95

18,611 11

13,988 09
3.290 06

56,003 22

250 65

1,104 63

188,342 96

25,725 00
3,197 61
7,766 28
2,090 4X

25,224 92
5,lin m
7.6011 06

10,91. ■; 21;

14,012 60
18,3XS IK
22,339 03
4,318 46
10,700 78
8,538 98
5,210 90
5.312 57
l.'),996 86
10,506 82
27,778 86

639 50
149 96

MinJocino

S169 93

2,766 22

Mrr.t-d

2 86

.47 70

"si',169'33

"§312 '34

ioi'gs

945 50
3,870 44

336 76
5,102 75

145 97

8"73

63 00

1816 86

MnoUv :::;:::;:::::;:;;:;:;::

345 47

\;i].a.....".

> iada

1,266 71
599 35

2,696 00

5,401 14

1,240 24

2,725 14

71 40

146 74

2,095 11

1,691 07

207 60

326 08

I'la> -

I'iiinias..

273 47

6,693 75

71 54

2,865 42

-a, Bernaro-.-.o

662 71
21 92

43 23

^un Frant-isco

>;iri Luis Obispo "■,'"■

1,041 62
153 49

40 50

.^iirila Barbara V

121 88
174 96
502 19

973"64

170 14
1,188 66

1,080 17

601 52

1,979 90

3,095 28

145 08

709 61

.-.Wila Cruz

- hn.o

683 39
588 11
739 57

281 20

1,815 28
248 24
440 46
244 51.

148 50

103 24

T. Iiama

T L,ro. :.

44 14

381 46
3,5.50 77
1,109 56
2,606 32

- ' ictarj- of State

1 r.asnrer of State

.-Mijifrintendent of Immigration

J. J. Tomlinson and Associates

BrookB, Treasurer of Yolo County

436 74

Totals

81,100 38

?312 34

$3,838 27

828,583 49

8683,748 15

810,289 26

8337 1-

„ t;;^, IQ

■

BECElfTS

F O 11 THE TWELFTH FISCAL Y E A K, ENDING JUNE 30, 1861.

i
1

1
1

i
1

1
S
1

I
f

L
1

f
i

2.
5

81
45
37
62

7fi
85

'91

S185 27
419 22
187 00
425 15
41 71
61 30

816 04

$002 32

$381 21
299 73
838 08
448 14
34 92
192 06

829 11
418 31

$62 08
17 07
93 12

$139 68

$7 0

1,155 47
2,221 Go

53 08

52« 71
32 02
32 01
72 75
235 71
- 5 82

li'i'oo

77 60
909 92

607 46
14 54

19 20

81 85

10,837 99
S25 47

93 12
3,074 00

20 37

20 09
77 12

318 1(
2,156 Oh
2,465 96

77 7S

882 71

U 54
78 57

4ii
94
83

67
21.1

'w
"ii

"41;
67

21 34

290 K
167 81
117 87
378*30
679 09

291 00
90 21
13 68
17 46

1,581 11
39 78
43 65
72 75
24 25

70 80
163 26
249 29
967 49

443 29
197 88
145 50

00 14
46 56

71 78
363 75

41 97

444 26
17 46

324 95

24 25

105 49

405 OS
3,464 84

137 74
468 51
957 39
663 48
165 86
2,415 3(1

9 71

111 76

67 94

110 30

2,212 9lj

932 26

770 OC

520 78

20,101 81

1,338 60

3,815 71

21 61

5 81

6,461 54

407 38

82,437 13

812,743 32

845,642 67

2 42

478 30
2 42
20 03

11,525 6»

2,983 68
776 00
194 00

9,858 4t

2 43

129 Ot

31 0-1

192 06

145 51
238 61
130 71
563 11
579 08

46 5C
753 68

87 31

9 70
38 80

42 39

209 51

611 43
233 04

3,614 4'
388 11

4 85

10,904 51
2,688 3t
1,579 It-
8,339 5-

322 11

449 61
271 SC
410 8C

14 76

73 OS

2 43

887 3-
188 3.'
317 ]'
590 7.'
125 ll
733 81

10,053 1:

77 OC

373 8-
62 Of

7,««0 7

4 85

335 9C

84,270 00

67,864 76

«8i

.1..

'.'.'.'.'.Z'.'.'.'.'.'.'.

t»,481 18

8540 86

$2,437 13

«12,743 32

$1,922 12

$113,407 33

$100,150 6J

84,270 00

$8,680 5C

$25,725 61

819,687 31

$7 C

1
1

1
•I-

1
1

5.
t

•

r
%
T

1
>

5'
%

1
1

I?1

836 37
20 61
58 92

■

160 36

!W!

^i,,.,mW

"'832"95

8620 80

8403 62

820 79

575 29

Sloli 14

8109 00

■1

53 36

]

S9 70

0 41

132"90

101 85
19 40
167 62

77 60

31 04

363 38

1,838 91

853 47

43 66

77 60
461 11

31 04

:::::::::::;:;:::;;:::::

60 63
16 98
65 47
94 75

89 72

178 48

HI 65

12 12

7 28

4 85

31 63

Ss'i's

262" 87

""'3r04

»3<466 00

"jsiie 05

«3,31« 05

"■I

5 11

87 30

95 7t

104 29

%-iti"(\y

"si'.548"9L

"82

853 47

S'J 70

84 1

81,340 95

81,988 97

82,745 90

845 ll|s20 79

875 29| 8251 93

8140 OJ

8144 50

820 OC

81,548 9:

TO WHOM AND FOR WHAT PUEPOSE PAID.

For Salary of Governor

Bent of Governor's office

Pav of Porter in Governor's office

ContinEcent expenses of Governor's office

Special Contingent. Governor's office

Salary of Govei-nor's Private Secretary

Salary of Secretary of State

Salaries of Clerks "in office of Secretary of State

Postage for office of Secretary of State

Pay of Porter in office of Secretary of State

Contingent expenses in office of Secretary of State

Salary of Controller of State

Salaries of Clerks in Controller's office

Salary of Deputy Controller ■•

Pay of Porter in Controller's office

Expressage for office of Controller

Contingent expenses of ControUei-'s office

Salary of Treasurer of State

Salaries of Clerks in office of Treasurer of State

Pay of Watchman in Treasurer's office

Coiatiugent expenses of Treasurer's office

Salary of Superintendent of Public Insti'uction

Pent of office of Superintendent of Public Instruction

Postage and Expressage for office of Superintendent Public Instruction

Stationery, lights, fuel, etc., for Superintendent Public Instruction ,

- Palary of Snrveynr-GcTicTa! r.

Salary of Draughtsman Surveyor-General's office ■

Bent of office of Surveyor-General

Purchase of maps from U. S. Surveyor-General's office

Pay of Porter in office of Sur\ieyor-General

Contingent expenses of office Surveyor-General

Salary of Quartermaster-General

Bent of office of Quartermaster-General and Armory

Three hundred copies Annual Beports Supreme Court

Salary of Attorney-General

Salary of Clerk in office of Attorney-General

Pay of Porter in office of Attorney-General

Bent of office of Attorney-General

Contingent expenses of office Attorney-General

Salary of Governor as member ot Board of Examiners

Salary of Secretary of State as member of Board of Examiners

Salaiy of Attorney-General as member of Board of Examiners

Salary of Clerk of Board of Examiners „

Compensation of Experts for Board of Examiners

Salaries of Justices of the Supreme Court

Pay of Porter to Supreme Court

Bent of Supreme Court Booms

Salary of Secretary of Supreme Court

Contingent expenses of Supreme Court

Salaries of District Judges

Per diem and mileage of Lieutenant-Governor and Senators

Pay of officers and Clerks of the Senate

Contingent expenses of Senate

Per diem and mileage of members of Assembl}'

Pay of Officers and Clerks of the Assembly

Contingent expenses of the Assembly

Stationery, blank books, lights, fuel, etc., for Legislature

Printing, papers, and official advertisements

Sunport of State Insane As3-lum

Salary of Resident Physician State Insane Asylum

Salary of Visiting Physician State Insane Asylum

Bent of State House

Kent State Library Booms

Pay of Porter for State Library Booms

fv„..;,,..,.„t ,.v, ,,.„.,..,. «,.,,„ ],;i,.nry

i:Jy,l.l;!M\Ofl'jJ±Jm,li%

$3,500 00 .

52.5 00 .

350 00 .

98 25 .

2,65« 50 .

1,166 70 .

2,041 70 .

3,500 00 .

1,091 90 .

175 00 .

94 74.

2,041 70 .

5,600 00 .

1,400 00 .

175 00 .

750 00 .

212 SI .

2,041 70 .

4,200 00 .

1,400 00 .

173 38 .

3,208 84 .

180 00 .

500 00 .

187 81 .

1,160 70 .

1,400 00 .

420 00 .

90 00.

175 00 .

110 75 .

1,666 68 .

67 00 .

2,000 00 .

1,166 70 .

1,083 35 .

105 00 .

280 00

98 86 .

583 35 .

875 00 .

700 00 .

350 00 .

11,666 70 .

148 65 .

1,000 00 .

1,050 00 .

250 55 ,

40,333 74 .

41,993 40 .

14,059 00 .

13,053 86 .

94,970 SO

15,320 00 .

16,299 88 .

9,305 59 .

17.568 82 .

42,000 00 .

8,750 00 .

2,250 00 .

1,800 00 .

583 35 .

350 00 .

MS 151.

i^amry ui v^iuriv iii oiwte ±jiiuu wuiue

Salary of additional Clerk in Land Office ,

Contingent expenses of State Land Office

Purchase of carpet for Sujireme Court rooms

Transportation of prisoners to the State Prison

Salary of Treasurer and Controller as members of War Board

Salary of the Clerk of the Board of War-bond Commissioners

Support of State Prison ■■<

Aiding in the erection of Washington Monument

Prosecution of delinquents

Establishing Eastern Boundary Survey under Act of 1860

Construction of State Capitol

Salaries of Stamp Inspectors under Act April, 1860

Erection of State Eeform School

Cancelling State Prison Contract

Education and care of indigent deaf, dumb and blind

Appropriation to pay Gregory Yale, approved April 15, 1861

Pay of State Geologist

Appropriation to pay Commissioners War Debt

Appropriation to pay balance due for translation of laws into Spanish

Copying for the Assembly

Copying for the Senate

Postage and Expressage for the Legislature

Appropriation to pay B. F. Hastings, ajjproved May 14, 1861

Expenses preparing bonds under Act of 1860 .•..•is

Appropriation to pay Joseph Kern, under Act March 26, 1861.....<.'.*.-,...
Appropriation to pay C. W. Tozer et al., made March 19, 186]b'.'.'.'.....

Salary of State Librarian _.,•..;.•.■

Per diem and mileage Presidential Electors -Iv''

Establishing Eastern Boundary Survey under Act Mareh;4861

Copying laws for State Printer .';

Appropriation to pay I. & S. Wormser, approved April, 1861

Appropriation to pay B. J. Saunders et al., approved April, 1861

Appropriation to pay L. B. Richardson

Appropriation to pay I. & S. Wormser, approved April 8, 1861

Appropriation to pay B. Brady, approved May 18, 1861.. ..»

Appropriation to pay M. Brannan, approved April 15, 186f'.I.,

Appropriation for the payment of certain claims, approved JI^y.8, 1861.

Appropriation to pay Lucy Melony, approved 1801 '.'.•'. .i,...

Support of District and County Agricultural Societies .'.•'.'v'..

Appropriation to John Center, ajjproved May 18, 1861 tt'.'.i

Appropriation for pay of troops, approved May 18, 1861 .'.•.

Eeports and publication certain decisions Supreme Court

Expenses of Teachers' Convention

Suppression Indian hostilities, eleventh fiscal year

Suppression Indian hostilities, tenth fiscal year-

Per diem and mileage members Assembly, tenth flscal year

Transportation prisoners, tenth fiscal year

County Treasurers for support of schools

County Treasurers for support of indigent sick

Expenses transportation arms, pi-inting tax receipts, etc., etc

Purchase of books, newspaper tiles, etc

Interest on Civil Bonds, due January 1st, 1861

Interest on Civil Bonds, due July 1st, 1861

Eedemp'n of State Civil Bonds from excess of Int'st and Sinking Fund

Salaries of Commissioners Surveys, etc., etc

Purchase of State Civil Bonds on account State School Land Fund

Totals..

44.
1,

42!

24.
137.

1
10.

!,400
117

97
!,474
.,400

,119

,000
450
,548
,268
,400
,831
,500
,350
,100-
,000
,'Q0.0

■:n

,626
,547
,975
378
812
,725
,1.50
729
136
,950
500
,747
,7.50
209
190
152
128

12
841
,000
,000
,307
,744
390

11
236
-..15

81,713 62 .

$759,199 44

1,713 62

1 1

|2|S3

3|g2£||tgSS5SS

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E.lnk. .r Dw.Mrf

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Slolo Sohool L»nil

o : : : :

3:1:1

:::::: 1 :: o.

(-"

.SwiLiu|i Land Fund...

1 M M

s : i

Inlornt nd Sinking
Fnnd of 185!

i M M

llPIrl

:oio : ; ""' I : 1 :

i£l3

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Nn.coniToii.r'.ori„| " '' " " " ° -* " S S S S 3 S S S S S S S ?! S 31 S g S g S S 3 S S 3 S S S S g S 5 S? 5 5 S S 5 S ? S S 3-

■H ;i= :
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aS-ll :

Kit!

NjliilL
ylliljfi

iiiii

3 2

3
1

•Si

t
■ i

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1
1 =

;

s s s

i j : ; ;

lis

55.

OT ^

3;§

SiiTT; ;

ii'

Ir Mr T'

;!;•*!

-si i-j

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s.?i

I >.a J s ?>•

- 4^o

^^d*-J I-

«"=•=■-••■> - ■-i;sA;;iia3aa3a5-'^

«■

Stitto School Land

Swamp Land Fmifl. ..

Interest, ami Sinking

1 Military FunJ

Hospital Fund

?n3 00

10 00
368 00
117 30
644 00

55 20
151 07
743 92
276 00
184 00

SO 80
368 00

50 60
19,400 00
5,522 24
2,000 00

" "2,349"68
92 00
414 00
234 60
199 64
956 80

ss^s

1 No.CoDtroUer'B Order

lit

o t-H 'r

f?^

;T^ ^ ;;^ ;^

^ s s s ?

SSSKSSSSSSSS

i
§

,!
^

:Hl£

OS.

3 ;

0 :

1 ff

=1:

Morris Speyer, for stamp.s

B. Davidson, for stamps

E. W. Hont, for stamps

Al.sop & Co.. for stamps

H. C. Hyde, for stamps

Thomas Findley, State Treasurer

W. S. Fitch, for stamps

jS3

: lo

-1*

O 'i'

' : : ; o

o og

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3000000 :o
:;ooo5i-t-o -Qc

- ^ ^ ;:::; !.-£' r^ ,-t | y

10 00
10 00
46 00

110 40
92 00
10 00

730 00

1,509 42

400 00

100 08

2,948 97

10,240 90

1,118 72

184 00

40,261 26

4,782 42

2,ei3 04

4,121 26

10 00

920 00

184 00

7,222 78

5,591 80

965 08

165 60

460 00

10 00

7.158 94

2,398 88

5,089 32

45 52

1,045 18

299 00

2,746 87

181 70

10 00

200 56

140 30

115 00

10 00

10 00
10 00
10 00
10 00
69 00

270 00
10 00
10 00
10 00
10 00

805 00
73 60
10 00

10 00
10 00

r-o c

TC:ir-C;C^£=^C--OOOOOOOOOOOr-<I^;^i-Hi^r-^.-H.->-^^l?37^'i^^
^l !M Ol C-l Cl Ol C-l C-l ■M M CO CO e« CO CC CC CO «) so CO CC ^O CO CO CC CO CC M CO «i CO c-

?^^0M02^C^SiOTCQ

'^%

334
335
336
337
3;j8
839
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
356
356

1 mill

: : ; : "c;

_: : rt :

■S 5

:0 i >
Jill

O
3

- ■ 1

m
o

'3 i

nil

'-' j « -^ 5 - W " " i^

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: : : : ■ j'"'

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■::::: : : '""^ :::::: ^ :: *'

—--____

: : ; CO : x : co -t< : ^ (m u^ o cc o : : :
: : :<=> : i- : o t- : o co co o o ■-< -" : :

■ ■ :<=> : I- ; CO o : ci (X o -I' CO 00 : ; :
: : . 00 : ri . ci_.-. . co^oi -i^^co go, m - ; ;

: : ^
: : o

1,420 23

858" 27

451 90

345 50

1.547 21

8,029 57

1,576 01
924 03

CJ : _-1*-t*COiftOOiCjaOt^ .i-HOCO :<M -OOCOCOCOCit-
rH ; ;.-i»-»-^if5iCa3-HO-t* lOj zz> tyj :0 icni-^i^cocoo^jc-
"^*~ : •■-^'^^i i-H oi r-i (m" j CO i-T J 1 oft-T i-T

M MmiH M mMMMgM:-;

: : : T-H : : c: c^: t- :

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: : cj :

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■

Jjjjj L^:^J. JJJJ ^ ^ = = ^^, j. J.,_. ^._ J ,. _ .. , — .__, . J

^S3 =3S

:::::: O g
: : : I : : I o !") ; -g' s 5

M;Mm|| jlffll^flf j^li

'ill iil II s^ sl2-f £ lit i| I £ p M i'^

; H -< w K ^ >? ti f? i£ £ cefe &: •::; is ;

k'm^V -J » *■■

r^^^iS p ffi 5^ ^ *' '

Dr.

GENERAL EUXD.

1860andl86l!To Cash paid for the redemption of Warrants
I (liawn on this Eund from Docomber 10.
1800, to June 30, 1«01, (see Tabular State-
ment)

Feb. 20. 1801
June 10. 1861

To transfer, (see ControUer's order to trans-
fer)

To transfer made to Library Fun<l for 115
Members of the Lej^ishiture

Bahmce in this Fund Juno 30, 1801.

8625,450 25

21,801 05

575 00
7.101 93

8655,018 23

1861.

To Cash paid for the redemption of Warrants
drawn on this Fund from July 1 to De-
cemlier 15, 1801, imhisive, (see Tabuhir
Statement)

AuiT. 20. 1861

To transfer made to School Fund on account
of semi-annual Interest, approved April
30. 1800

Auor. 23, 18GliTo transfer to School Fund in full of semi-
annual Interest, as per appropriation April
30, 1800

Xov. 21, 1801

Xov. 25. 1861

Nov. 26, 1861

To transfer to Swamp Land Fuml. in compli-
ance with the Act of January 20, 1801

To transfer to Swamp Land Fund, in compli
ance with the Act of March 15, 1801 ,

To transfer to the State School Land Fund,
to correct error in the apportionment of
funds received from Humboldt Count}'
November 21, 1801

Balance, December 14, 1861.

8133,749 19

4,118 50

. 12,350 40

100,000 0'»

93,666 4:;

99 60

12.015 54

8356,005 96

fJKNKRAL Frxr>.

Cr.

[flUCtO i.> lijtlancc in this Fund December 15, 1860.

iKGOandlHGl

By Ca-^h ! ; into tliiw Fund from Do-
eemln-r lo June 30. iMOl, (sec Tab-
ular .Stttlcitlvliij

7an. 26, 18G1 By tran^fiT Ironj Swamp Land Fund, (see
Controller's onler to IranHler)

Mar. 15, 1861

By tranHfer ft-om Swamp Land Fund, (see
Controller's ordi-r Ut transfer)

$102,250 41

299,095 39

100,000 00

93.GGG 43

$055,018 28

1861.

By Balanee in this Fund June 30, 1861. (see
Statenunt of Balances)

By Cawh ro«»eive<l into thin Fund from July 1
to I' r 15. 18G1, inelusive, (see Tabu-
lar Ml;

$7,191 93

348,814 03

$350,005 96

Balance in this Fund December 15, 1861.
(see Statement of Balances)

$12,015 54

Db.

SCHOOL FUXD.

ISGOandlRGl

To Cash paid for the redemption of "Warrants
drawn on this Fund from Docomher 10.
1^60, to June 30, 18()1, (see Tabuhir State-
ment)

840.207 1-

Balance in this Fund. June 30. ISOl

1:1472 > .

SGi.670 21

18G0

To Casli paid f(»r the redemptir»n of Warrants
drawn on this Fund from July 1 to Decem-
ber 15, 18G0, inchisive, (sec Tabular State-
ment)

832.500 44

Balance. December 1;') ISGI

30,824 77

803.331 21

SCHOOL FUND.

Cr.

Balance on hand, December 15, 1800, (w>c
Tubular Statement)

1 'and 1801 By Ca-**!! received into this Fund from Decem-
*ber Ui. 1«»»0. to Juno 80, IHOI. (see Tubular
Statement)

26. ISOTBy trnn'ifer from rjenerul Fund, (see Con-
troller's order to truuMlur;

$41. VM G'J

14J81 11
703 41

8G2.G70 21

ll^-'il

An:,'. 20, 18C1

Balance on hand, June 30, 1801

By Cash riM'i'ivi'd into thin Fiind fri»m July
1. to iK'cemlK'r 15, 1801, inclu!*ivo, (see
Tubular Statement)

By tranMfer from (ienerul Fund on account
of Hi'ini-unnuul Interest, approved A]»ril 80.
1800

23. l^Ol'By tninsfor from Generul Fund in lull of
Miiiiannuul Inten*st. approved April 30.
lst;o

30, 1^01 By transfer from State .'School Land Fund to
correct error of transpo^tition in the settle-
ment made by the Tn-asurer of Sun Joa-
quin County, Augu.st 22, 1801

Balance in this Fund Di-ceinber 15. 1801, (see
Statement of Balances)

$13,472 03

32,520 1>1

4,118 80

12.350 40

803 07

S03,331 21

830,824 77

Dr.

. HOSPITAL FUXD.

1860 and 1861

To Cash paid for the redemj)tion of "Warrants
drawn on this Fund, from Dec. 16, 1860, to
June 30, 1861. inclusive, (see Tabular State-
ment)

6456 37

Balance in this Fund June 30, 1861

3,781 28

§4,237 65

Balance in this Fund December 15, 1861

84,815 28

HOSPITAL FUND.

Cr.

ls60

By Balance in this Fund December 15, 18G0,
(see Tabular Statement)

$2 688 15

!-'■." und ISGl

By Ca-sh received into this Fund from Dc-
cciuIkt UJ. 1S(;0. to June 30, 1801, inclusive,
(see Tubular Sltttement)

1 .S49 50

?4,237 65

18C1 iKnlanpo in thin Fun.l Juno 30 Iftfil

$3 781 28

1861

By Cash received into this Fund from July
1 to I>ocoml»er 15, 1861, inclusive, (see
Tabular Statement)

1 034 00

Balance in this Fund December 15, 1861, (see
Statement ol' Balances)

$4,815 28

•4,815 28

Dr.

MILITARY FUND.

1860 and 18C1

To Cash paid for the redemption of "Warrants
drawn on this Fund from December lO,
1860. to June 30, 1861, inclusive, (see Tabu-
lar Statement)

8027 25

Balance in this Fund June 30 1861

870 50

ei,797 75

18G1

To Cash paid for the redemption of Warrants
drawn on this Fund from July 1 to Decem-
ber 15, 1861, inclusive, (see Tabular State-
ment)

$203 90

Balance. December If). 1861

863 20

81.067 19

MILITARY FUND.

Cr.

isoo

Bv Balaiui' ill tliis Fund December 15, 1800.

(wee Tabular Staleiucnt)

81,008 04
545 00

I-'-.l

By C'aMh reccivoil into this Fund from De-

Vember 10. ISOO, to Juno 30, li<01, inclu-

nivo, (soo Tabular Statement)

\\-h. 20, 1801

By transfer fnjm General Fund, (sec Con-
troller's order)

184 05

§1,71)7 75

1801

Balance in thi» Fund June 30. 18G1

8870 50

1800

By Canh received into this Fuml from July 1
to iH'ci'mbfr 15, 1800. inelu.HJve, (sco Tabu-
lar Statement )

190 09

Balance in this Fund December 15, 1801, (see
Statement of Balances)

81,007 19

8863 29

Dr.

LIBRARY FUND.

1860 and 1861

To Cash paid for the redemption of "Warrants
drawn on this Fund, from December 16.
1860. to June 30, 1861, inclusive, (see Tab-
ular Statement)

ei,737 69

Balance in this Fund June 30 1861

2,331 40

84,060 01)

1861

To Cash paid for the redemption of Warrants
drawn on this Fund from J"h' 1 to Decem-
ber 15, 1861, inclusive, (see Tabular State-
ment)

82,049 12

Balance, December 15 1861

2,891 78

LIHRAIIV rrxD.

Cr.

18C0

By Balance in this Funrl December 15, 1860.
(nee Tabular Stntonient)

and 1801
10, 1861

Sl,910 09

1 :.<4 00

isGOi

By Ca.Hh receivi'd into this Fund fi*om Pocem-

'bcr H). isr.u. to June 30, ISOl, inclusive,

(see Tubular Statoinent)

.lum*

Hy transfer fn>m (ioneral Fund for 11.') moni-
bers of the I^cirisluture

575 00

84.069 09

isoi

Balance in this Fund June 30, IHGl

82.331 40

IMGI

ny Cash received into this Fund from July 1
to Deecmbor 15, 1M61. inclusive, (see Tabu-
lar Statement)

2.609 60

Balance in this Fund December 15. 1861, (see
Statement ol liulanccs) .T

82,891 78

•

Dr.

INTEREST AND SINKING FUND OF 1857.

18G0 and 1861

Doc. 31. 18G0

To Cash paid for the redemption drawn on
this P'und from December 10, 18G0, to June
30, 1861, inclusive, viz:

To Controller's "Warrants drawn on this Fund
to pay coupons for interest on State Civil
Bonds due January 1, 1861, (see Tabular
Statement)

Balance in this Fund June 30, 1801.

8133,840 00
230.246 79

§364,086 79

1861.

July 1, 1861

Sept. 7, 1861

To Cash paid for the redemption of Warrants
drawn on this Fund from July 1 to Decem-
ber 15, 1801, inclusive, (see Tabular State-
ment,) viz:

To Controller's "Warrants drawn on this Fund
to pay coupons for interest on State Civil
Bonds due July 1. isoi. (see Tabular State-
ment)

To CanJi paid for the redemption of State
Civil Bonds, as follows:

$96,500 in bonds to A. K. Grim at 99J

Balance December 15, 1801

$133,840 00

96,379 37
186,618 46

S410.837 83

INTEREST AND siXKIXf; FrXD OF is:)7.

Cr.

1^60

I'^GO and 1861

By Balance in thiH Fund December 15, 1860,
(see Tabular Htatonu-nt)

By Cash received into this Fund from Decem-
ber 16, IXIJO. to June 30, 18G1, indusive,
(see Tabular Statonunt)

8240,489 59

112.87:J (55

IVb. 26. isni

lU" t i-an-ftT from (iiiui:il Fiiih!

10,72:1 r.r.

$364,086 70

1861

Balance in this Fund June 30. 1861

$230,246 79

By Cash received into this Fund from July 1.
to Dfcembor 15, 1><61, inclusive, (see Tabu-
lar Statement)

186 591 04

Balance in this Fund December 15, 1861,
(see Tabular Statement of Balances)

$416,837 83

$186,618 46

Dr.

SWAMP LAXD FU:^D.

Jan. 26, 18G1

To transfer to General Fund, (see Controller's
order to transfer^

S100,000 00
93.666 43

Mar. 15, 1861

To transfer to General Fund, (see Controller's
order to transfer)

T^silinfo in this Fund .Tune 30 1861

23.073 96

^216,740 39

1861

To Cash paitl for the redt'inplion of Warrants
drawn on this Fund, from July 1 to De-
ceniher 15, 1861, inclusive, (see Tabuhir
Statement)

821,657 06
233,725 83

Balance December 15, 1861

8255.382 39

SWAMP J.AM) FUND.

Cb.

^ao.

By balunco in tlus Fund Doeomber 15, 1860,
(see Tabular Staloment )

l»00andl8Gl;By Casli rocoiviMl into \h\A Fund from Do-
conibor hi, IHGO. to June 30, ISGI, (see
Tabular Statement)

$170,701 52

45,978 87

SJ 10,740 39

1801 Balance in this Fund Juno 30, 1801

1*^01 By Cash received into this Fund from July 1

to I)orenilH'r 15, iMOl, inclufiive, (see Tabu-
lar Statement)

Nov. 21. 1>*01 By transfer fn»m (ii'mrul Fund, in compli-
anie with Act of January 21). iStJl

,. 2sov. 25. IsGl By tran.sfi'r from General Fund, in compli-

aneo with the Act of March 15, 1^01.

Balance in thin Fund December 15, 1801, (soo
Statement of Balances)

$23,073 90

38,042 00

100,000 00

93,000 43

$255,382 39

$233,725 33

Dr.

STATE SCHOOL LAXD FUND.

18G0andl8Gl

To Cash paid for the redemption of "Warrants
drawn on this Fund from Decemlfer 10,
1^60, to Juno 30, 1801, inchisive, (see Tabu-

hir Statement)

ei6,570 00

The followinii; are the numbers and amount

of Bonds redeemed for above Warrants:

No. Bond.

Ain't of Bond.

To whom Pnid.

Rate.

Wlion Accepted.

1.3S0

$2,000 00

H.C. Wheeler...

Dec. 24, 1S60.

221

l.OtlO 00

Jno. Pcrrv, Jr.

Dec. 24, 1800,

227

1,000 00

Jno. Pvrrv, Jr.

Dee. 24, IStiO.

228

1,000 00

Jug. Perry, Jr.

Dee. 24, IStJO.

229

1,000 00

Juo. Perry, Jr.

Dec. 24, ISDO.

230

1,000 00

Jno. Perrv, Jr.

Dee. 24, ]S(>0.

231

1,000 00

Jno. Perrv, Jr.

Dec. 24, IStiO.

2.32

1,000 00

Juo. Perry, Jr.

Dec. 24, 1800,

2.33

1,000 00

Jno. Pcrrv, Jr.

Dee. 24, 1800.

234

1,000 00

Jno. Perry, Jr.

Dec. 24, 18(50.

235

1.000 00

Jno. Perrv, Jr.

Dec. 24, ]8fi0.

236

1,000 00

Jdo. Perrv, Jr.

Dec. 24, 1800.

237

1,000 00

Juo. Perrv, Jr.

Dec. 24, 18(50.

238

1,000 00

Juo. Perry, Jr.

Dec. 24, 18C0.

239

1,000 00

Jno. Perrv, Jr.

Dec. 24, 1S()0.

240

1,000 00

•Jno. Pcrrv, Jr.

Dec. 24, 1800.

241

1,000 00

Juo. Terry, Jr.

Dec. 24, 1860.

Balance in this Fund June 30, 186

S4,416 05

^20,986 05

Aug. 29, 1861

To transfer to School Fund to correct error
of transposition in settlement made b}' the
Treasurer of San Joaquin County, Auj^ust

22,1
Balanc

801

S863 07

e, December 15, 1861

17,940 04

S18.804 01

STATE SCHOOL LAM) FU:SD.

Ck.

l-tiO

I 18G0andl8Gl

I Feb. 26, 1861.

By Balance in this Fund Deoember 15, 1860,
(sec Tubular Slatcuiont)

By Cash roeeivod into tliis Fund from Docem-

*l>er Hi. ISfW, to June :iU, IS61, inclusive,

(see Tabular Statoniont)

By tmnsfer from (icni'rnl F'und, (wee Control-
ler's order to translcrj

ei6,S>*0 71

4,027 74

77 t'tO

820,986 05

ISGl.
1861.

I Nov. 26, 1861

Balance in tliis Fund June 30, 1^01

By Cash rotiMvod into this Fund from July
1 to DtM-embor 15, 1x61, inilusivo, (see
Tabular Statement)

By transfer from General Fund to con-ect
error in the a])portir)nnient of funds re-
ceived from Humboldt County

Balance, December 15, 1861, (see Statement
of Balances)

84,410 05

14,288 36

99 60

S1H.804 01

817,940 94

Dr.

ESTATES OF DECEASED PERSONS.

ESTATES OF DECEASED TERSOXS.

Cr.

By Balance in thiH Fund December 15, 1861,
(8ce Tabular Statement)

889 09

•

889 09

BALANCES

III the fuUomnfj Funds, June 30, 18G1.

(u'lioral Fund

School Fund

Hospital Fund

jM ilitary Fund

Library Fund

Interest and Sinkin;i^ Fund of \Xh~

Swani]) Land Fund

State School Land Fund ,

Estates of Deceased rers<jns

Total

S7,191 93

13,-172 03

3,781 28

870 50

2,331 40

230.240 79

23.073 96

4,416 05

89 09

8285,473 03

BALANCES
In the j'Mjwinj Funth, Dixtmher 15, 1861.

' iierni Fund

S< hool Fu lul

1 1 < >spi t hI Fu 1 u 1

-M ilitary Fuiul

I.ihrury Finn I

Interest ami Sinkin;^ Fund f>f 1S57

Swamp Lan«l Fund

State School Land Fund

Kstates of Deceased Pei-soii!*

Total in Treasurj*, Deeeniher 15, 18G1

$12,015 54

30.S24

4.8L5

803

2.801

180.r,18

2.{:3.72o

17.1)40

$489,784 48

COPIES OF CONTROLLER'S ORDERS TO TRANSFER FUNDS.

Office of Controt.lkr of State, "I

Sacramento, January 26th, 1861. j
Hon. Thomas Findley,

State Treasurer, Sa< rainento, California :

Sir : — In compliance with an Act of the Lcicislature, approved .Tana
ary twenty-sixth, ei^^hleen hundred and sixty-one, you will please trana
fer from tlie Swam]) Laiul Fund to the General Fund the yum of one'
hundred thousand dollars, (^S 1 00, UOU.)

Very respectfully, your obedient servant,

S. 11. BROOKS,

State Controller.
By J. S. GiLLAN, Clerk.

]

Office of Controller of State, )

Sacramento, February 26th, 1861. j

Ilon. Thomas Findley,

State Treasurer, Sacramento. California:

Sir : — You Avill please transfer from the General Fund to the School
Fund the sum of one hundred and sixty-tive dollars and eight cents,
(8165 08 ;) to the Interest and Sinking Fund, three hundred and fifty-
three dollars and forty-two cents. (§8o3 42 ;) and to the Swamp Lam I
Fund four thousand four hundred and fifty dollars and nine cents,
($4,450 09.) on account of moneys ])aid into the General P'und by Tulare
County December thirty-first, eighteen hundred and sixty, and January
fifteenth, eighteen hundred and sixty-one. Also, from the General Fund
to the School Fuiul, thirty-one dollars and four cents. (§31 04 j) to the
State School Land Fund, seventy-seven dollars and sixty cents, ($77 60 ;)
and to the Interest and Sinking Fund, nine hundred and sixty-eight dol-
lars and forty-four cents, (8968 44;) on account of moneys paid into the
General Fund by San Luis Obisp^ County December thirty-first, eight-
een hundred and sixty, and February twenty-fourth, eighteen hundred
and sixty-one. Also, from the General Fund to the School Fund, five
hundred and seven dollars and twenty-nine cents. (8507 29 ;) to the Mili-
tary Fund, one hundred and eighty-four dollars and five cents (8184 05 ;)
to the Interest and Sinking Fund, nine thousand four hundred and one
dollars and sixtj'-nine cents, (89,401 69 ;) and to the Swamp Land Fund,
five thousand six hundred and sixty-two dollars and thirty-five cents,

'12 IloO on account ol" momvH |»ni(| into the CJcnernl FjmkI Ity Sat--
iito City niul County hiMcniliiT tliirtv-Hrst. citjiitoon liumlivtl anil
*cty,aiul Ffhrmiry twcnly-Htlh, eighteen lunulred und sixty-ono.

Very respectfully, your ohcdient servant,

S. ir. BROOKS.

Stale Controller.
Ih .1 S. GiLLAN. Clerk.

OlFlCK OF Co.NTIUd.I.KR OF St.\TF. )

Satranunto, Marili l.'»th. 1801. |

Ion. TlIoMA.S FlM)|,».Y,

State Treasurer, Saeraniento. California:

^>h: — In coniiiiiance with an Art of the Legislature, apjirovetl -Mar< ii

nth, eighteen hundred and si\ty-<uie. you will please transfer fnnn

MM .*>wainp Land Fund to the tieneral I'und the huu) rtf ninety-three

ihou-iand si.\ hundred and nixtv nix i|.»ll:u-s and fortvthree cents,

($9:ii;«(J 4:1.)

Very re-^j^ect fully, your ohidicni **eivani,

S. II. HUOOKS,

State Controller.

Office of Co.mkom.kr of Statk. )

Sacranjento, June lUth, istjl. J

lion TlIOMA.S Fl.NDI.KV.

Slate Trea.>urer, Sai ramenlo, California:

^iK : — You will jilease to transfer ft'om the (Jencral Fund to tin-
Lil»i-ary Fund the sum of live lunnlred and seventy-five dollars, ($'u'}.)
lC the amount due IVoni the per diem ol' the Le<^islalure, due April
I. eighteen hundred and sixty-one.

\'ri"y res])ettfullv voiir oln duiit M^ivaiil.

.S. 11. Illi(JOlvS,

State Controller.

Office of Controllf.r of State, )

Sacramento, August 20tli, 1801. j
lion. Thomas Findi.ey,

State Treasurer, Sacramento. California:

Sir : — You will ])lea.se transfer from the General Fund to the School

Fund the sum of four thousand one hundred and eighteen dollars and
5

eio-lity cents, (^4,118 80,) on account of semi-annual interest, as per appro-
priation of April thirtieth, eighteen hundred and sixty.

Eespectfullyi'your obedient servant,

S. 11. BEOOKS,

State Controller.
By J. S. GiLLAN, Clerk.

Office of Controller of State,

Sacramento, August 23d, 1861
Hon. Thomas Findley,

State Treasurer, Sacramento. California:

Sir: — You Av ill ])lease transfer from the (Jenoral Fund to the School
Fund the sum of twolve thousand three hundred and filthy-six dollars and
forty cents. (812,85G 40.) in full of semi-annual interest, as per approjtria-
tion of Api-il thirtieth, eighteen hundred and sixty.

Respcctfull}', your oltcdionl servant,

S. II. BROOKS,

State Controller.
By J. S. GiLLAN, Clerk.

Office of Controller of State, 1^

Sacramento, August 29th, 1861. )
lion. Thomas Findley,

State Treasurer, Sacramento, California :

Sir: — You will ])leasc transfer from the State School Land Fund to
the School Fund the sum of eight hundred and sixty-three dollars and
seven cents, (S8G3 07,) to correct error of transposition in the settlement
made by the Treasurer of San Joaquin County with the State, August
twenty-second, eighteen hundred and sixty-one.

Very respectfully, your obedient servant,

S. H. BROOKS,

State Controller.

Office of Controller of State, }

Sacramento, November 21st. 1861. j
Hon. Thomas Findley,

State Treasurer, Sacramento, California :

Sir: — You will please transfer from llie General Fund to the Swamp
Land Fund the sum of one hundred thousand dollars, (§100,000.) in com-

]iliance with tbo Act of January twenty -sixth, eighteen hiuulreii an-J
^ixty-onc.

Kesipcetfiilly. your obedient servant,

S. II. BKOOKS,

State Controller.
Hv J. S. Gii.L.vx, Clerk

OrrrcK or Controller of St.\te, )

Sacramento, November 25th, 1861. j

11<»U. TllO.MAS FlXOLKY.

State Treasurer, Sacramento, California :

Sir: — Yon will please trau'^fer from the General Fund to the Swamp
I,:uid Fund the sum of ninety-thrr*- thousand six hundred and sixty-six
dollar* and forty-three cents. (?".•;>.«;«;«; 43) in compliance with the Act of
March tifteenth. eighteen hundred and sixty-one.

Kc^pect fully, your obedient servant,

JAMKS S. GILL AX,

Controller.

Office or Controller of St.\te, |

Sacramento, Novemlier 2Cth, 1861. )

II'»n. TlIOMA-S FlNOLEV.

State Treasurer. Sacramento. California:

Sir: — You will jilease transfer from the General Fund to the State
School Land Fund the sum of ninety-nine dollai-s and sixty cents. ($99 60)
to correct error in the app<»rtionment of funds received from Humboldt
County, Xuvember twenty-one, eighteen hundred and sixty-one.

Respectfully, your obedient servant,

JAMES S. GILLAN,

Controller.

TIIKASIKKUS llKroiiT

rL'M)L\(i TIIK STAT!' DEBT,

TJISriDER A.CX OF" A.'PKTIL. GO. 18GO.

STATE TnEASUEEHS

r.r.i'iiirr on itndinc tiii: iii;iri' of thi:: state.

r'.VI.lFORNIA. I

TiiEAsiRY Department. SArRAMFNTo.

.laiiuarv 1
Ili.H Excel lency.

John (J. Downey,

(iovornor of the State ol' Culilornia:

A«;rt'OrtMc to the prnvisionn of an Act to provido for payini^ cortaia
|uital)lo claims a;;ainst the State of C'alitornia. and to contract a
^lr^<lc(l Dcitt for tliat piirjHi^o. apjirovcd April iUHh, ISOO. I jjcrcwith
raii'^init a .stateincnl
lid Act.

Iiat piir])o*t\ approved April iUHh, ISOO. I Jjcrcwith
it of all procco«liniC'* "^ ^'''^ office iiad l>y authority of

INDEBTEDNESS RECEIVED AND FUNDED.

ivil Boiwl.s inmiod under Act of April 20, D^ol

ivil Bonds issued under Act of May. l>»i'»2 ami 1H53

ivil Bonds issiu'fl umler Act of Manii 1<5. iHno

ivil lJon<ls issued under Act of April l'.». l><5(j

"iroo Bonds redeeincvl under Act <»f April 24. ISOI, dattd
January In. lHn7, and were not entered on the books

of this Department

iterost on the above Jionds. as appeared by the coupons

presented

)nt roller's Warrants

lims audited by Le<rislaturo of ISoH

iims auilited b}- Le«;i.slature of ISnO

lims audited by Leirislature of IHIJO

laims au«lited by T.ci^islature of IstH

Jrtiticates of Balance issued by B. Rouian. Treasurer

jrtiticates of lialanco issued by S. A. McMeans, Treasurer
irtificates of Balance issued by Henry Bates, Treasurer.,
trtifieates of Balance issued by Thomas Findley, Treasurer

Inct amount of Certificates of Balance issued in bond-
iuif Debt of 18G0, and now outstantling

Total amount of Bonds issued.

S4,500 00
r>4,000 00
Ki.dOO 00
ll.oOO 00

1,500 00

25,620 50

4,977 03

1,91>3 70

12.046 65

10,.sl2 51

31,463 09

1 30

425 00

344 03

23,016 46

8198,806 33
306 33

§198,500 00

'Ml reference to the books of this Department, I find of equitable
•iainis. still outstanding, as follows:

Civil Bonds issued under Act of April 20, 1851
Civil Bonds issued under Act of April 19, 185G..

Interest on above Bonds

Claims audited by Lcffislature of 1857

Claims audited by Legislature of 1858

Claims audited by Legislature of 1850

Claims audited by Legislature of 1861

Certificates of Balance issued in 1858

Certificates of Balance issued in 1861

Total

$5,000

6,000

3,850

120

203

827

1,546

306

ei7,979

Fifteen hundred dollars of the above amount could have been funded
under the Funding Act of 1860, had they been presented prior to this
date, as the amount authorized to be funded was two hundred thousand
dollars.

All the Bonds issued under the Funding Acts of 1852 and 1855 have
been redeemed.

Under the Funding Act of 1851. as a])pears by the books, there is still
outstanding §5.000. In my annual report of 1S58. I rejiorted in bonds
outstanding under this Act to be 810.000; redeemed in ISGI. 84.500;
Avhich would show, according to botli i-eports, still outstanding. $5,500;
but while entering up and cancelling old vouchers, I found one bond lor
8500. redeemed, that was not entered up on any of the books of this De-
partment. This bond being deducted, will leave the balance 85,000.

All these bonds may be outstanding. l)ut in all probability part of
them have been redeemed, as the Governor and (controller, in 1855,
burned one hundred and thirty-six bonds of 1851. and I have been unable
to find a receipt showing the number and date of each bond so destroyed.

In my report of 1858 I stated the amount of bonds out-
standing, issued in 1852, at

854.500 00

Bonds outstanding, issued in 1855

15.500 00

Total

870.000 00

It should have been as follows:

Bonds issued in 1852
Bonds issued in 1855

■Total

The amount being the same.

Yery respectfully, your obedient sei-vant,

854.000 00
16,000 00

870,000 00

THOS. FIXDLEY,

State Treasurer.

ANNUAL in:i»()irr

Tin: sri{vi:voii-(;EXEi{AL,

F<»R

THE YK^VR 1801.
I

BENJ. P. AVERY STATE "pRfNTERT

^ N N XJ ^ T. TJ T^ 1^ O Tl T

State Land Office, )

Sacramento, Decuraber 23d, 18G1. |

I UiH Excflloncy.

JcJil.N (i. DuWNKY,

Goverijor of California :

Sir : — In afconlanco with the requirements of the Act concerning the
ofTice of the Surveyor-rjfiu'ral, I have the honor to sulniiit the following
annual report of this oftico for the past year.

Respectfully.

U. A. llltiLKV.
Surveyor-General, and Register of State Land Otfice.

SEGREGATION AND RECLAMATION OF SWAMP LANDS.

The Legislature of last winter passed an Act providing for the segre-
gation and reclamation of the swamp lands — the segregation returns
to be returned to this office, the reclamation being under the sole control
of the Board of Swamp Land Commissioners.

It was made the duty of the Surveyor-General to comi)ile Ironi the
returns of the County Surveyors a general map, showing the swamp
lands, etc., a list of these lands, which, together with the affidavits, he
was to transmit to the Governor. I have received returns from the
following counties: Sacramento, San Joaquin. Sutter, Placer, Colusa,
Yolo, Monterey. Humboldt. Sonoma. Napa. S<jlano. Lake, and Alameda.
The County Surveyor of Santa Clara informs me that lie will make his
returns in a few daj's. These are all llie counties where we are likely
to conflict with the United States surveys, except Contra Costa. No
returns have been sent from tliat county, from the fact that they have
no County Surveyor.

Ilad the Surveyors been more prompt, my portion of the woi-k wouhl
have been completed some time ago ; as it is, I will transmit to you full-
returns by the tirst of January, in the form already submitted to you
and approved.

SAVAMP AND OVERFLOWED LANDS.

Surveys returned to the Surveyor-General's Office and ap])roved, dur-
ing the year ending Decemlier tifteenth, eighteen hundred and sixty-
one :

Counties.

Acres.

Alameda

1,983.43

Del Norte

645.49

Colusa

2,400.00

Contra Costa

018.23

Fresn o

23,459.16

Humboldt

1,658.44
3.31

Los An feles

Marin

473.00

Mendocino

4,161.16

Merced

4,853. "s

Monterey

482.!)6

Napa

5,055.91

Placer

7,550.56

Sacramento

42,722.52

San Joaquin

57,542.38

San Mateo

10,087.89

Santa Clara

3 605.72

Solano

21 175.37

Sonoma

579.30

Sutter

13,499.80

Comities.

Acre*.

Stuni.slaiis j .')24.31

Tularo I It;. 427.06

Yolo lii.ssii.85

TotuI

23(;,uy().73

< >r tho tthovo amount, thirty-throe thouhund ami thirty tour aiul seven
(in«.'-hundrudth8 acres are rv«ur\-fVH of tbrfuited laiuis.

i ittl amonnt of Swamp and Overflowed Lands surveyed
and apjirovi'il in the Survfyor-Ctenerarx ottice since tht
pas'+n*;!' of the first Swanip I^and Act in lsr)5 (acres)

Dim|u( t rcsurveys in 1X;')'.». Ist5t», and Ist'il (acres)

!t74.150

7;mwi

si»4.169

Total amount of Tide Iwinds suncyod ami approved in Surveyor-
(li'neral's office since the passnije of the Act i)rovidin«; for tiicir sale, in
eighteon Inindred and tit\y-t'i;^lit. two thousaml tive hundred and I'ourtcon
and eighty-seven one-hundredlhs acres.

TIDK LANDS.

Surveys returned to the Surveyor-fienerarfl office, and np])roved, dur-
ing tho year ending December titleenth, eighteen hundred and Hixty-ono :

Coaiiticfl.

Acroi,

Santa Barhara
Total ...

480.00

8WAM V J.AN D.S— ( Frontaoe.)

I would suir;;est but one chani^e in the swamp land laws, and that is in
regard to frontage. I copy from my report of last year:

• Tlie restriction to a frontage of one-half mile on bays and navigable
streams, has eauscfl much eoni]>laiiit among ap])licants for pureliase of
swam[i lands. I now recommend what I had tho honor to submit in my
report of last year, which is as follows :

' The Swamp Land Act, passed April twenty-first, eighteen hundred
and fifty-eight, authorized the purchase of three hundred and twent}'
aeres of land hy one person, but restricted the purchaser to a frontage of
one half mile. In' legal subdivision, on any bay, lake, or navigable stream.

The Act of eighteen hundred and fifty-nine authorizes the sale of six
hundred and forty acres to one individual, but makes no provision for a
greater frontage. The object of the restriction was to jirovent the mo-
nopoly of the narrow strip of land along tlie margin of water courses,
which is generally higher and more valual)le tlian that back of it. and
probably also to prevent the settler on the margin of the water courses
from shutting out those purchasing in the rear from communication with
the water. The law. so far as it applies to such cases, should not, in my
opinion, be changed. In many of the large tracts of swamj) land, espe-
cially those near the junction of the Sacramento and San .Ioa(|uin rivers,
there are innumerable sloughs, many of which are navigable. In conse-
quence of their sinuosity, it often occui'S that when a ])crson desires to
purchase six hundred and forty acres, in the locality in which he wishes
to select the same, it is impossible for him to get one hundivd and sixty
acres, even, without having a greater frontage than is allowed by law.
There are often islands foi-mcd by tiavigable sloughs, containing, perhaps,
not more than three hundred and twenty acres, and yet having a frontage
of two miles. The cost per acre of reclaiming swamp lands, by levees
or ditches, depends upon the amount reclaimed. It is very evident that,
the smaller the tract, the greater will be the cost of reclamation per acre ;
consequently the purchaser who is compelled to take up his three hun-
dred and twenty, or six hundred and forty acres, in separate tracts,
labors under a great tlisadvanlage. To avoid this ditticulty. 1 would sug-
gest that the law be so amended as to allow the purcbaser. in such cases,
to take six hundred and Ibrty acres, with the a<lditional frontage requisite
to secure that amount; pron't/n/. {hut tlie Sui-veyor-CJeneral is satisfied
that the interests of the State do not sufter thereby, and tliat the rights
of individuals are not interfered with.

It will be seen, by reference to the report of Mr. Beaumont, Surveyor
of San Joaquin County, for last year, the im])ortance of having the law
amended so as to do away with tbis diflficultv.'

SCHOOL LANDS— FIVE HUNDKED THOUSAND ACEE GEANT.

No additional sales of these lands have been made since the date of my
report of eighteen hundred and sixty. I repeat from it the disposition
that has been made of this grant :

Description.

Acres.

Sold under School Land Warrants issued prior to the passage

of the Act of April 23, 1858

Sold for cash since the passage of the Act of April 23, 1858...

Total disposed of.

237.760.00
261.197.83

498,957.83

liCavin^ a balance of one thouKand aiul t'oity-two and seventeen one-
hiirnlri'<liljs acres, which is reserved as a niart^in to correct errors in the
tiiial adjustment of the ^nint.

W«' have received payments, however, upon three thousand one hun-
dred and seventy acres, which reiiiaineij unpaid for on the hands of the
State. an<l whifdi have heen rehieated durini; the ])ast year Tliere are
Htill between six thousand and seven thousand acres of tliese forfeited
lands; they can be speedily <lisposed of.

The ]»aymentH of interest have, in j^eneral. been made regularly, and
in some instaiiceH the principal has been paid and patents issued.

SCHOOL LAM) WARRANTS.
htt'iitrit uruhr A- f of AprU 23, 1858.

Where Localed.

Acres.

In the Marvsville District three looationR have been made,
two of which have been approved, for

In San Francisco District two have been made and one ap-
proved, tor

Amount herett^fore located and embrace*! in Rej)ort of 1H<JU...

Total

640

320
15,200

10.160

Patents have been issued tor many of tlieso Warrant locations. In
the list of Warrants locati-d. j)ul>lished in my Report of eighteen hundred
and tifly-eight. Nos. 27<> and -75. for three hundrecl and twenty acres
each, wen* not mentioiuMl. They were located by Archibald ('. (iodwin,
on the (ieysers in Sonoma County, on the twi-nty-tirst of Ajiril, eighteen
humlred and fitly-four. and a cojn- of the certificate of location has been
tiled in this office.

STATE SCHOOL LAM» WARRANTS,

/jfjcntfff iij}0)t f'nsiiriiyri/ Jjninls umfrr f/n' Act of Ajiri/ 18, 1859.

There have been returned to this office during the past year, twenty-
nine «iurv».'vs. as follows:

Countieii.

Acres.

Alameda

4 surveys ai)i)rovcd

1.280

Contra Costa

Humboldt

2 surveys a])proved

1 survey ai)proved

640
320

Los Ano'cles. ..

8 surve\'s ai)])roved

960

San Mateo

1 survey withdrawn

320

AerM.

Santa Clara 2 survevs approved

Santa Cruz 1 survey approved

Sonoma- - surveys approved

Sutter 1 survey approved

Tehama- ■ 1 survey approved

Yuba I 2 surveys approved

Mendocino... .[6 surveys unapproved,

San Joaquin i 1 survey unapproved..

Santa Clara ' 1 survey unapproved..

Salter [1 survey unapproved..

L: vated under mis Act at date of Report of 1860.
Total

4:3.52'

SEMINAET LAXQS.

I>m.iii>o— -

A<tTtS.

Amount of Grant
Total l'>«.ate«l at •. .
Located in Humboidt
Located in San Franci

:i«:>ns

'■" ^f 1H60.

•ince-

8.«.846.82
4^.00
.320.00

Total returned to this oiSce at date.
Balance unretumed-

-t6,080.0<:>

59.6K5.R2

6.433.1^

The Locating Agents of the several Land Districts have informed me
that they have received applications fear the entire amount thej were
instructed to locate. I have re$<^rve*i a margin of nineteen hundred acres.
to correct errors.

PUBLIC BUDLDES^G LA2a)3,

In the YisaHa. Humboldt and Stockton Districts^ are all sold ; three
hundred and twenty acres in the MarysviUe. and nine hundred and axty
acres in the San Francisco District, although ap^ied for, have not, as
yet, been returned to this <^ce.

GRANT OF THE SIXTEEXTII AXD TniRTY-SIXTII SECTIONS,
FUR SCUOOL PURPOSES,

Sfthl/or Catih, under Art of April 22, 1861.

The total amount of this <;rant is over six millions of acres. The area
of the State heini; estimutetl t«) be near one hundred and ten millions of
acres, we can only apjiroximate at the i)rolnihle amount reserve<l by
the General (Jovernment throui;hout the State for which we are entitled
to select other lands; exelusive of the mineral lands. I estimate it to be
near three hun<lred thousan<l acres. Li.sts furnished me by the agents
of the Stoekton. MurysvilK-, and Humboldt Districts, show that we have
already seieeted in tlM»se districts t<» the full extent that the United States
otticers arc authorizetl to allow. A lari;e number of loeations can still
bo made; the ])rivate grants in the San Franciseo District alone include
certainly one hundred and twenty thousand acres of these lands, for
which we should be permitted to »elect in part in other districts.

Steps should be taken at f»nce to induce Congress to give us lands, in
lieu (»f those sixteenth and thirty-sixth sections, that contain mineral, as
well as for the waste lands of the C<dorado Desert.

The sah's of these lands, since the passage of the law, to date, are ex-
hibited in the following tables:

Descriptioo.

Acres.

A])proved locations, surveyed lands 73.062.18

Approved locations, unsun'eyed lai^ls 21.sn0.00

Received and on file in this office awaiting the ox-
jtiration of the time reiiuircil by section fifth of
the Act :

Ajtplications on surveyed land.s for 44.770.00

Applications on unsurveyed lands for 28.129.00

05,558.13

67,005.00

Total located | 163,463.13

Amount sold in the different Land Districts u])on the sixteenth and
thirty-sixth sections proper:

District.

AcreB.

In Stockton District, surveyed 12,708,00

In Stockton District, unsurveyed 060.00

In Humboldt District, surveyed 2.428.00

In San Francisco District, surveyed 1,440.00

Description.

Aeres.

In Marrsville District, survered

In Visalia District, surveyed.

9.000.00
900.00

27.490.00
0.1G9.<;>0

In Maryisville and San Francisco, unapproved ....

Total

:i3.665.00

Lands taken in lieu of sections sixteenth and thirty-sixth, reserved or
disposed of by the United States:

DeseriptXMi.

ACTM.

Stockton District, appmved. surveyed 15.094.22J

Stockton District. :v ' unsurveyed Is.Ulti uii

St«xkton District, r. <.-d. unsurveyed 2.72

St^xkton District, u I li'.;: ved. surveyed

Stockton District, uhuijr'ved. contested

Stockton District, approved, surveyed 11.415.91

Stockton District, approved, unsurveyed 1.4'*0.00

Stockton District, unapproved, unsurveyed 7.2^0.(K)

Stockton District, unapproved, surveyed 5.445.0(»

Stockton District, contested, surveyed 1 .040.00

41.219.22

San Francisco, approved, surveyed 3.720.00

.San Francisco, approved, unsurveyed 1.44(t.(K»

San Francisco, unapproved, unsurveyed S.640.00

MarysviUe District, approved, surveyed 16.896.00

Marysville District, unapproved, surveyed. 26.464.00

Mar'vsville District, contested 320.00

26,658.91

Los Angeles District, unapproved, unsurveyed.

43,680.00

129.79H.13
Of the Sixteenth Section proper ] 33.665.00

Total amount located. 163,46:^.13

From information obtained from the County Auditors of several coun-
ties. I learn that the sale* of these lands, by order of the Boards of
Supervisors, under the provisions of the Act of April twenty-sixth,
eighteen hundred and fillty-eight. until its repeal, have been eighteen
thousand seven hundred and twentv acres, as follows :

ACTM.

Merced ....
Uamboldt.
Placer

Sacrmmento .
San Joaquin

Shasta

SiKkiyoo

Solano

Stanislaus ...

Tehama

Tulare

Total. %» far a» reported.

680

1.031
6.433

721»
2 320

1»30

280

1.4H0

18.720

lllfiU-

Mosi of
intere?*! ; -
steps -

selves : • , - . ■. lo pur-

chase from tl In Amador. Butte. Colusa. El L»orado. Fresno.

Napa. Nevada. -.. . . .iinciitco. Yolo, and Yuba, the county officers report
that no sale?i have been made.

SCHOOL, SEMINARY. AND PUBLIC BUILDING LANDS SOLD
TO DATE. FOR CASH

A««.

School 500 OCK» Acre Grant.

261.197.R3

-. J - ]^ ^

39.W6.H2

5.120.00

'».' " ' •v ' :^

-Lsih Sections.....

»■,"

Under Warranto '•urveyed lands ...

469 427 >3

1- •

TTnd*»r Wiirr&ntA nnsnrvpv*^ l&n<i)«.

4-^ .

Total

529,107.83

COUNTY BOUNDARIES.

At the request of the Board of Supervisors of Napa and Sonoma Coun-
I last summer established the boundary line between the tiw>

i±

n->tmties ; and afeo » portioa of the fine Iwtwcea ^i^ awi SofaoMiL A»

1 itmud difficulty im exe««tioig; tlie trcvk, ansiiiig Idhmk tke «»-

aad carefaag wordnig of the steinrtcg detiaan^ bowadMiea. TkeiM-

-„^:a.:c:i dMMdd Ite icrued. The tssfeascs of amxrej wexe iMMrae bj t&e

STATLSTICSl

Bat five refMHtft bare bee* icccitcil fivMi Coaatf SarrcyonL IWy

an? tT!*!!!. —

A- D. Ea.-k'»t ..XIiMntjSarrcjoraf Marfn '".--.nny

•'r R Turner Comktj Smrcjor of S«i V^HMi^^' • -iqcV.

_ CovBtv Svrrejov- of S«b J««quBi C<Qiaif}r,

a,~ IXi|wtj Coamtv Sctrv^yoT of SoaitJi Clmni Cvmmty.

•^vnaa^i -'• rii<--v^ Co«B,tv Sovrror of i^tkijoa Covntj'.

M IV rttspcctiiK^ road*

art ■ .' J^^*" attcaitionL JBb

V -hie Hill I win of <«f bJMfciiigtfco

M~ TVevof S«UD Jooqaiiii pv«9eBt»hi»Tie«s

jokds. br ioWng tbe wat«r oa tbe

- .t of sedjieat- H» plaai if a i»ood

oae. ia ■^onie i:.- - - swerve Ott tb« knrm- waien oiT the

Sacrum - He abo poiatft ovt nH|i«HSMtioa*

ia the . Certificates of Pncbaae. apficofvd

Mj nmd reeo— f wiif it* repeat

utT- AaaeaMirs ; and ia adifi-
ti-»u i '-'«- of tbe- State.

ti>rm.'. - - i^rta tbey are

CO rv-p..rt- :*iii<»ni. to tibe aercial

tv>!iarie- ..-rreil to tbisoflee.

I atm - . tweaty-e^iit

oaiy ; J.

Alameda """' -^ _r- ?

Amatio-T-^ -

Batte_ _ _ ^. n-AP. i.»e^cLij AiiieiBBer-

CalaTera^ JL W. Dovli^g. .AaseiM»r.

C*>lnsa _ TTwigPKd.

Cotttra Co^ta „ X J. White; fliwiii

EI Dii>Tado _ Xewi» Foster, Ajmrnmrn:

Fresiko _ Wm. FajvonriDe. AawoMir.

HmaboMt : h. W. Hanna^ Clcfk of Board Siqjcrrifors.

^^wMtb _ J. H. Sector. Amemttfr

y*»™ — J- R Jacobev Aaseasoir

Merced- _ .Fa«gaeii

^Ta^ia JBobest Ciowh^ Cleik Board of 9«pcrri«H>

S«c»»ento - .B. R Byaa. A«»>r.

S*n Diego Jame« McCoy, Ames^or.

San Francixo Charles R. Bond, Ame«sor.

San Joaqoin W. H. Xtal. Amessor.

Santa Clara W. R. Davis Assessor.

Shaota B. Gartland. Assessor.

Sierra James Taylor. As.<e»<»r.

^ Charleii C. Snider. Assessor.

■* E. B. Beard. A»K<*.«4.'44)r.

>'i't r R.A.Clarke

Tehama L. B. Shaw

T F. D. Kotchuiii

i le David Hay;. :

Yoio. .James McCaulay. Assessor.

Tub* John Rule, Aisse&swr.

In addition to the tabl»-^ ■ • ♦• •: • , Messrs. McGrath of Amador. J.
Bean of Butte, R. W. 1 veras. J. J. White o!" Contra

Costa. L. F' - ' ' ' ' .J, IV >!iaw of Tehama. F. D. Ketohum

of Trinity u ay «»f Yolo, furnished interesting reports.

^^ rcuiiL traii?>Uiiued. and to which I would respectfully call

I; the a."' n»ll shows an increase in amount

<>i t i f t\v.. ; and twenty-two thousand seven

htm r-s over that of la.st year.

lu ;-. .' .V has been a corresprjnding increase of two

handre«i ^ : and in Tehama of tifty-six thout^and eit;ht

hun-lre-l "irs. In Y<^»lo County there is a del ' xi

of two . ree thousand two hundiv<i and .r

; and sixty-ei«;ht tho ^*

.e ai^^essed value foi n

I. \'.

- 'f Sutter and Butte Counties mention the necessity of
•he line between their resj>ective counties. Mr. Bean, of
that thi-s should ^ • ■' ■' • ••'>" between Colusa. Plumas, and
M-i* i I inir experience*! ty in accomplishinji: his duties

ill i! • t - • ♦■ a IT' ;• rlv . lary. he urges that the line be

mn I r : ' • : : -• : M;i I • county line between Alameda

ani • Mr. White informs me that

i!.ai. •••* pot a-~ essed at all.

Mr "^ .1 - : '* body to take some

-t.-p" t ' !. i ;<••• • Xome Lackee reserva-

tion to -. 'v.-rs. It contains some twenty-rive thou.sand acres. The soil
is rich aiil {.nxiuotive. and the land can be readily sold to enterprising
citizens, thus inireasinir materially the resources of the county.
All of which is resj>ectfully submitted.

H. A. HIGLEY.
Sorvevor-General. and Register of State Land Office.

HFPOItTS OF COUNTY SURVEYORS.

MARIN COUNTY.
Alfrki) I). Kahkoot County Surveyor.

OfFICK CorNTY Si RVKYOU, )

Sun liufuol, Nov. 29th, 1861. \
Hon. 11. A. lli.iLKV,
I Surveyor-General :

Sir : — In oboilionce to the law, and in complianoo with your instruc-
tions, I have the honor to Hubniit the following report of this county:

SWAMP AND OVKRFLOWED LANDS.

The number of surveys mn«le f)n swiuup an<l overflowed hinds since
my lust report ure three, numbering from 70 to H2. Number of acres,
four hundred un<i seventy-three and thirty-eight one-huiidredths; No.
82 being a resurvey of No. 68, so the uctual number of acres surveyed
are only three hundred and six and ninety-seven one-hundredths. The
number of acres of swamp land remaining unsurveyed aio about one
thousund. No surveys muile on s(d>ool or tide lunds.

There has not l>ien any of the swamp luml reclaimed in this county,
to my knowledge, although some of tfie claimants have made a com-
mencement. A hirge botly of swamp land in this county could bodrained
and made valuable for grazing or even agricultural jturposcs. In order
to do this, a ditch shoulii bo cut along the bays and navigable creeks,
about four feet deep and about five feet wide, and then there should bo
an embankment made on the outside of the ditch, about four feet high by
tive feet wide; the small creeks should have a dam made across thcra,
connecting with the embankment, with a gate so as to keep out the tide
water and let out the water that may run into the creeks from the
mountain streams, or what tide water may leak through the embank-
ment ; then by cutting some smaller ditches through these lands, so as
to lead the water to the creeks, the land will become drained, and in a
short time it would be suitable for cultivation or grazing. But to do this.

I think, it would cost more than one dollar per acre. This should be
done by large companies or the State.

ROADS AND HIGHWAYS.

The law of eighteen hundred and sixty-one, on Eoads and Highways,
gives the Supervisors of the county the whole control of the roads and
highways, which, I think, is entirely wrong, for as long as the Super-
visors have the power to appoint viewers on roads there will not be any
roads in this county. In the tirst place, the Supervisors have enough to
do without attending to roads ; and in the second place, they are not very
particular who they appoint as viewers, for many times men are appointed
who are interested in the lands where the roads are to go through, and
as they have not qualified nor given bonds, they view out the roads to
suit themselves or their friends, and look but very little to the interest
of the public, and every year there are petitions to make some altera-
tions in the roads, and all the mone}' that has been expended on these
roads will not be of any benefit to the public, when if the roads had been
viewed out ])roporly in the first place, and made where they should have
been made, it would not have been necessary to have them altered, and
the work that has been done on them would have been of some use to
the count}'. If the county must pay for the lands that are taken for
roads, let them be laid out where they should be, and have the right kind
of men to lay them out. Xow if the Legislature would pass a law that
every county should elect two Road Commissioners, who should qualify
and give bonds for the faithful performance of their duties, and that
these two Commissioners, in connection with the County Surveyor, should
form a Board of Road Commissioners, whose duty should be to lay out all
roads, and to meet once ii» every three months for the jnirpose of receiving
petitions for roads, and when any petition is presented to them praying
for a new road or an alteration in any road, the Commissioners should
go and examine said proposed roads, and if in their opinion the ])ublic
good requires a new road or alteration, they should have the road sur-
veyed and marked out, and have it made a permanent location, then
what money the county raises for roads let it be expended within the
line of said roads, then by changing the name of the poll tax, and call
it a road tax. I think that in a short time we would have some roads
that could be travelled in the winter season without endangering the
lives of both man and beast.

I have not finished the map of swamp land surveys in this county.

The total value of taxable property in this county is one million seven
hundred and ninety-six thousand four hundred and twenty-five dollars.

Total tax, twenty-eight thousand seven hundred and seventy-seven
dollars and seventy-two cents.

ALFRED D. EASKOOT,

Surveyor of Marin County.

SISKIYOU COUNTY.
Samuel S. Rice County Sui-vcyor.

Oro Fine, 2sov. 12th, 1861. j

Hon. n. A. HioLEY,

Office County Survf.yor.
Survt'vor-Gcncral :

Slit: — In a(((»nlun(e with tho law ilotinin^ the duties of County
Surveyorn, I n'spi-ctrully suhmit tho lollowin^. my renort of all surveys
made by mc durin;^ my term of otlico, be;;iiinini; OctoV*. r, eii^hleen hun-
dred and fifty nine. an<l endini^ (October. ei;;hteen hundred and sixty-ono.
Owin^ to the small amount oi buniness transueted. I did not rejjort the
survey rt of the la^t year, and will embraee them in this report.

SURVEYED LANDS.

The wlnde number of acroH surveyed in this department amounts to
eight hun<lred and eighty, om follows, viz:

Survey No. 157. — Tlie southeast quarter an<l the northeast quarter of
tho southwest quarter of Section No. '11; the west half of the south-
west <juarter of Section No. 2.*i ; an<l the n<»rth\vest tpmrter of the north-
west quarter of Section No. U(», of Township No. 4.1, North. an<l Han^o
No. 9. West. Mount I)iablo base and n>eridi:in. embraciiii^ three hundred
and twenty acres — surveyed November fourth, eii^hteeii hundred and
fit^y-ninc, for K. F. Ileroy.

Survey No. 100. — The southwest quarter of the northwest quarter of
Section No. 23, of Township No. 42. North, and Han:;e No. 0, west of
Mount Diablo base and meridian, containing two hunilre<l acres — sur-
veved December tilteenth, eighteen hundred aufl titty-nine, for Feenaghty
& iJrother.

Survey No. 173. — Tho west half of the southeast quarter of Section
No. 21, of Township No. 42. North, and Hange No. 9, west of Mount
Diablo base and meridian, including eighty acre.«< — surveyed 3Iarch
twenty-seventh. eiglUeen hundred and sixty, for Smith ifc Bros.

Survey' No. 179. — The north half and the southwest quarter of tho
southeast quarter of Section No. 15; and the west half of the northeast
quarter, and the west half of the southeast quarter of Section No. 22, of
Township 42. North, and Range No. 9, west of Monte Diablo base and
meridian, containing two humlred and eighty acres — surveyed October
fifteenth, eighteen hundred and sixt}', for Thomas Widdess.

UN8URVEYED LANDS.

The whole number of acres surveyed in this department amounts to
six hundred and foitv acres, as follows, viz:

Survey No. 174. — 'the north half of Section No. 3, of Township No.
43, North; and the southeast quarter of Section No. 34, of Township
No. 44. North, and Range No. 9. west of Monte Dial)lo base and me-
dian, containing four hundred and eighty acres — sui-veyed Augu.st ninth,
aighteen hundred and sixt}', for J. S. Mathews.

Survey No. 17S. — The southwest quarter of Section No. 28, of Town-
ship No. 42, North, and Range No. 9, west of Monte Diablo base and

meridian, including one hundred and sixty acres — surveyed September
twenty-sixth, eighteen hundred and sixty, for Morris Priddy.

SWAMP AND OVERFLOWED LANDS.

From the records of ray predecessors, I am unable to determine
whether any lands of this character have been surve^'cd or not.

I have had no a])plications for surveys of this kind, and am of opinion
that there arc but few. except in the vicinity of Klamath and Tule Lakes,
where, I understand, there are large tracts.

I shall proceed as early as practicable, in the spring, to survey any
lands of this denomination in that vicinity.

SCHOOL AND SEMINARY LANDS.

I have made no surveys under this head, there being no applications
for lands of this character.

As to the table of statistics required by your instructions, I shall have
to refer you to the report of the County Assessor, since my business does
not call me from home enough to collect materials for a report of my
own.

• All of which is respectfully submitted.

SAMUEL S. RICE.

Surveyor of Siskiyou County.

SANTA CLARA COUNTY.
Charles T. IIealy County Surveyor.

}

Office County Surveyor,

San Jose, Sept. 24th, 1861
lion. II. A. Higley,

Surveyor-Crcneral :

Dear Sir : — Inclosed j^ou will find the map, etc., of the segregation of
the swamp lands in this county, and I herewith give you a general
description of said land.

The hind lying between the Penitentia creek and Steamboat slough
is generally of a sandy or gravelly soil, which is easily reclaimed. But
the Rancho de los Esteros has spread itself over it, thereby frightening
off people wishing to locate the same. It is overflowed by the Peniten-
tia and Coyote creeks — on both of which there are embarcaderos —
and by Steamboat and several minor sloughs. The tide very seldom
overflows to much extent, so that it could be very easily reclaimed.
Captains John and Thomas West have ditched and reclaimed about three
hundred acres, near Steamboat slough, and it is now very good grain
land. They found that by a plentiful irrigation of artesian water the
alkali was entirely driven from the soil. Salt grass still springs up in
some places, but does no damage. There is a thin-bladed grass growing
upon the higher portion of this land, which cattle and horses seem to
hke very well. Between the Penitentia and Coyote creeks, the soil is
almost entirely of sand, and a very good crop of grass grows upon it,

but it overflows bo late in the year that no crop can be raised until
properly ditebed. The town of Alviso is rtituated at the head of Steam-
boat filoiii;h, and upon swamp lamls. The jaoporty owners there have
just conjjdeted a dam and lock aeross the Guaduiiiiie, and a small canal
from the head of Sti-andjoat sloui^h to the (JiuKhilupe, llius beini^ able,
when the tide is ui», to turn the whole volume of water into Steamboat
slouch. This will add very much to the facility of navigating that
slough.

Tlie (luadalupo. although it has two or three warehouses on its banks,
is not navigated now at all, on account of its being very crooked. From
there west, the land can be reclaimed, although no one has as yet at-
tempted HU«-h a thing. Thi-re are two or three minor sloughs making up
into it, but are of not mu(di consi'(|uence until you come to Wliistman's
slough, which is immediately north of the Yrigo ]{ancho. Upon this
slough there is a landing, and vessels regularly jily to and fro. It was
once located at this lantling by Hotlgers, but Im* aflcrwanls abandoned
the location. Hunning thence west, we pass over some very good land,
and numerous small sloughs, besides two or three quite large ones, until
we come to the San Framisquito creek, the boundary between this and
San Mateo County. At this place is situated au embartadero, which is
of soiuo importance, as there is much trade at this place.

The lands cmbraeed in my survey are all tide lands, and, e.xcept where
imj)roved, are covered with a thick gr<nvth of salt weed. J am told,
however, that bog-* like this kind of gra.ss very much.

There have been but three locations in this county, ])reviouH to the
passage of the Act of May thirteenth, eighteen hundred and sixty-one,
vi7. :

Kii-st location, by Martin Murjdiy, Jr., by Act of April twenty -eighth,
eighteen hunrlred and fifty-tive ;

Second location, bv Patrick W. Murphy, by Act of .Vprii twenty-
eiglith, eighte»>ji hun<Ire<l and fifty-five ;

Third iocati«»n, by Paul, by Act of April twenty-eighth,

ditcen hundred and fifty-tive;

All (jf which. 1 believe,*have been completed and patents obtained.

1 have made a few locations lately, and have applications for about
twenty more, which I will complete as fast as I can.

The railroad coming into this county enhances the value of the swamp
hinds very much, and the mr)iieyed men of San Francisco are beginning
1) look out for it. I think 1 have applications enough to take up all in
the county.

All of which is respectfully submitted.

Your obedient servant.

Hy S. WoRSLEY S.MiTU, Deputy

CKARLES. F. HEALY,

County Surveyor.

SAN FEANCISCO COUNTY.

George E. Turner County Surveyor,

Office op City and County Surveyor, \

San Francisco, October 5th, 1861. J
Hon. H. A. HiGLEY,

Surveyor-General of California :

Sir : — In compliance with the law, I herewith present to you my an
nual report :

The County of San Francisco bein<i; small in area, and the larger por-
tion of it occupied by the city and several Spanish grants, there remains
but a small extent of lands for the County Surveyor to work upon. This
land has been owned or held by parties in possession, for the past ten
years, and there are but few surveys necessary.

The majority of my work is in the city, mid it is of such a character
that it would be impossible to embody it in a report suitable for your
office.

I have made but few surveys in the count}' during the past year.
With one exception, tluy have all been confined to work under the six-
teenth and thirty-Hixth section Act, which locates land for school purposes.
I have returned them to your office as fast as surveyed. The exception
was a small piece located near the Seal Rock House, on land supposed to
belong to the United States Government, (containing one hundred and
eighteen acres,) located by II. H. Toland and Andrew Glassell.

It will give me great pleasure to return to your office, in a few days, a
map of the City and County of San Francisco, showing the survej'S made
by me during the past four years.

I would again call your attention to the necessity of having the
boundar}^ line located between the Counties of San Francisco and San
Mateo.

I would also call your attention to the fact of a public want of a re-
survey of the city of San Francisco, as, there being no initial point, and
no defined width to the streets, determined by law, there necessarily
arises a great deal of confusion in regard to the lines of the blocks, which,
one day, will result in a serious loss to the city.

Hoping you will act upon my suggestions. I have the honor to remain,

Your obedient servant,

GEO. R. TURNER,

City and County Surveyor.

SAN JOAQUIN COUNTY.

George E. Drew County Surveyor.

Office County Surveyor, I

Hon. H. A. Higley, Stockton, Dec. 14th, 1861. j

Surveyor-General :

Sir : — In compliance with the law, and instructions received from your
office, I have the honor to submit herewith my report for the two months

have been in office. The short term whi<h I havo oceiijiled the posi-
ion of County Surveyor, oiiahlos me to present hut a. iiu'a«rre report;
•ut lest it inij^lit he const rued as a nei^h'ct (»t' my duties, or want of
vspret for your offiee. I present you witii a npoVt of my official acts
lurinj^j my term :

SWAMP AND OVKHFLOWKD LANDS.

I tind, hy reference to the books in this office, tl»at tluTt' iiavc hcen nuidt-
n this loiinty. citjht hundred and nine surveys of swamp and ovrrtlowcd
iinds. The hirj^e numhcr of surveys made hy my predecessor during
he past four years K'aves me but little to do. I have surveyed and
eturned to your office seven Hurveys of swamp and overflowed lands,
luhracin^ an area of seven hundred and twenty-one and ei^hty-tive
»ne-hundredths acres.

In addition to this I have made three sun'eys of land forfeited to the
^tate. embracing five hundred and four an<l tit\y-nine one-hundretlths
icres.

1 have also located three school land warrants, of one hundreil and
lixtv acres each, which location has been returned to your <»ffice.

My opinion is that some iniportant chan;;es should be made in the
)resent swamp land laws; the Act to provide for the annidling of certiti-
'ates«»f purchase of lands sold on a credit. ap|>roved Ajiril ninth, eighteen
lumlred and sixty-one, should be repealed. Tnder that Act, tens of
hoiisands of acres of swamp land are now held in the name of ])arties.
vhere the interest remiiins unpaid for three or four years. The pay-
nent of one year's interest enables a jtarty to hold jiossession of the
and for tive years, as agairist otlu-r j)arties who wish to |)urchase the
and. The remedy is too much on the circumlocution ollice style of
loing business.

1 am forced to differ with the Swamjt Land Commissioners, and the
sngineers appointed by them, in their indiscriminate system of reclaim-
ng the swamp lands. So far as I know, in this section the universal
)ractice is to levee the water oti'. Now there are thousands of acres of
laml in this county which I would reclaim by leveeing the water on.
I'ou may perhajts a^k, how? and why ' I answer: by buiMing a levee
f sutKcient height and strength at the lower end or side ot the land
)Ught to be reclaimed, thus j»ermitting the water to flow on and become
cad water, liy this means a large amount of deposit or sediment from
IV rivers is obtained yearly — at least an average of from lour to six
i» lies, and in many places much niore. The land could be used each
car for grazing purposes By this process, in a few years the lands
oidd be etlectually reclaimed, then build a light levee to provide against
\ unusual height of water, and the work is done. By the j)resent sys-
Mn a large amount of labor and money is required at once, an annual
cj)ense must be incurred to kccj) the levees in repair, and the land is
ways below high water and subject to inundation. You have an ex-
ni)le at Sacramento of the strength of levee required to keep the
ters within the river banks — so it is in the tule lands; if you atteinjit
confine the water to the channels, immense levees will be required,
im satisfied that the present system is one that will cause the expen-
ture of immense sums of money and be finally abandoned; space, bow-
er, will not permit me to go into detail in this matter.

COUNTY ROADS.

In the improvement of county roads we are making little or no
wro^rress A vote of our county last Fall refused to pay a Bpecial road
taxf consequently we are enjoying the privilege of dragging through
the mud. I am in hopes the next generation will see the necessity of
having good roads, hut I have no hopes of the present.

Truly, your ohedient servant,

GEORGE E. DEEW,

County Surveyor.

REPORTS OF roi NTY ASSESSORS.

AMADOR COUNTY.

Francis McGrath County Assossor.

OriKK ('•(LNTY Assessor, )

Jttckson, Novombor 19th, 1861. j
lion. II. A ilKil.KY,

Surveyor-General :

^m: — In i-otnpliancc with the law and the instructions contained in
your circular, I respectfully submit the following report :

The blanks supplied ine from your office have made tho taking of
•tatistics so niuch more easy, simple, ami convenient, than heretofore,
that I hav<' been enabled to make tne report full and accurate.

FRUIT TREES AND VINES.

lie increase in the number of certain kinds of fruit trees and vines iff
^vn in the following table:

DoacripUon.

No. in 1860.

No. in 1881.

fAiiple Trees

32,263

35,596

5.951

15!>.902

40.S06

Pouch Trees

44,007

0,819

1 jrrupe Vines

201.r,(J6

Hop Vines

500

It is plea.'iin«^ to see the attention and care that our citizens are giving
O the cultivation of fruit trees and vines; that they succeed well ia
♦roved by the size, flavor, and ((uality of fruit.

Mr. Pardee, of lone Valley, gathered this fall, eight hundred pounds of
Tapes from a vine of only nix years growth.

Among our heaviest fruit growers I mention Messrs. Palmer & Co.,
Jeretich & Jordan, Dr. Page, Chuyron & Bro., B. Burt, C. Peters, Maj.
Barbour, and J. H. Milton.

STOCK.

Stock of most kinds have decreased in number and value, yet many of
our farmers having seen the necessity of improving the quality of their
stock, have already secured many horses, bulls, rams, and jacks, of fine
blood. Mr. II. S. Woodward, of lone Valley, (the owner of Young Bat-
tler, half brother of California's favorite, Jerome C. Davis's Battler,) has
during the last summer added seventy-five fine American horses and
marcs to his band. Mr. J. P. Martin, a large owner of stock, has much
increased the value of his herd by the great pains he has taken in im-
proving the breed. Messrs. Castle <fc Barrett, Crowningshield & Brother,
H. Watters, A. Sollars, and many others whom I could mention, have
expended large amounts of money in their successful endeavors to
improve the quality of their stock.

MISCELLANEOUS.

We have three distilleries, manufacturing four thousand gallons of
spirits per year, and the demand for the article manufactured steadily
increasing.

Wo have one tan yard, which is in a very flourishing condition, pro-
ducing leather of a most durable and excellent kind.

My predecessor, in his annual rejtort, mentioned a coal mine in this
count}-. It is situated one and a quai-ter miles southwest of lone City,
and owned by Mr. F. C. llall. lie has alread}' driven in a tunnel to the
distance of three hundred feet; the vein averaging in thickness about five
and a half feet. The coal is worth, at the mine, five dollars per ton.

In comparing the assessment of last year with that of the present, it
will be perceived that there has been a gratifying increase ; the assess-
ment of last year amounting to two million three hun<lred and ninety
five thousand one hundred and thirt^'-eight dollars, ($2,305,138,) while
that of the present is two million six hundred and sixteen thousand eight
hundred and seventy-two dollars, (82.G1G,872.) This increase is owing ^
more. ]>erhaps, to the location and imjiroveraent of land that has hereto-
fore remained unoccupied, than to any other cause. I also find, from an
investigation of the books of last year, the whole number of assessments'
to have been sixteen hundred and twenty-five; those of the present year
run up to nineteen hundred and fifty — showingtheinereaseof the number
of taxable inhabitants of the county to be three hundred and twenty-five/^

Hoping that the report will meet with your approbation, I subscribe;
myself,

Your obedient servant,

FEANCIS McGEATH,

Assessor of Amador County.

BUTTE COUNTY.

W. D. Vantine County Assessor.

Office County Assessor, |

Orovillo, Au^'ust 10th. 18G1. j

lion. J I. A. lIlULEY,

Surveyor-Gonoral :

Sir: — I horowith i-nclosc a Htuti'mcnt of the ai^ricultunil and other
Hlatislies of Huttf County. eunipiliHl from the a.ssessnient hooks for the
year eighteen humhvti uiul sixty-one. as al.Ko an abstract of the assessed
value of real and [»en.onal i>roj)erty, with the amount of taxes for .State
and county j)urjM»ses levietl thereon.

Farmers, generally speaking, have reaped an averaije crop, thouijh
prices are h)W for j^rain. stock, etc.

The several hranthcs of industry in this county, to wit: agricultural,
mercantile, and niinin;^'. appear to he in a prosperous condition. One
ditticulty we exjjerience is. that such a numher of disputes, followed by
suits at law, arise from lands claime«l by possession, and covered by
S|iani>h grants, that there have not been the improvements made that
w.iuhi have been made had these matters been settled.

The breed of stock of all kinds in this county is improving slowly, but
idily.

I ruit growing increased during the present year, and the greater part

: I lie finer fruits are ot excellent flavor. I will here mention the

<!'' Iiardsof Messrs. Hidwell. Hriggs. llt-n.^haw. Woolen and l)iirham.

riie facilities for the <ultivation of grape vines in this county, in many

itions, are g(j<»d. an<l >c»me of the ditlerent classes of grapes areas tine

a-^ any raisc<l in the State.

The mercantile business in this county is in, I think, a pr(jsj)erous
)ndition. though for some time past not so extensive as we could have
ished ; however, the trade with Oroville is slowly jjrogressing, and as
wv have a railroad being built to connect Oroville with tide-water, we
tiave no doulit »)f future prosperity, and within a short period of time.
Within the past year we have ha*! considerable iniprovements made at
)ur county seat, in good and substantial buildings, and will, undoubtedly,
^'ithin the incoming year, witness much more.

The jirincipal seats of mining enterprise are at Oroville. Inskip, Dog-

>wn, Cherokee Flat. Yankee Hill, and Forbestown. Kiver mining I

lo not think is carried on to such an extent as in former years, although

lere are many claims being worked in Main, Middle, Isorth and South

orks of Feather river, above Oroville.

In quartz mining there is consi<lcrable work, and but few claims pay-
ag well. The heaviest mining operations in the county, successtully
rosecuted, are located near i)ogtown, on the hills of Big and Jjittle
lutte creeks, it being generally tunnel mining, and as a general thing,
©qiiiring the outlay of much capital.
The nuniiier of" miles boundary necessary to be run in this county, at
last, prior to .March tirst, eighteen hundred and sixty-two. I sliould say
^Ould be about sixty miles; the said lines to be run between Butte and
utter Counties, Butte and Colusa Counties, and Butte and Plumas Coun-
, there being much difficulty experienced by the Assessors of the
eral counties in making their assessments.

Of electro-magnetic telegraphs in this county, we iiave but one;
itB value is five thousand dollars, and extends about fifty-four miles in
length.

Of timber of the county, the greater part is cedar and pine; oak is to
be found generally in the vallo}-, but the lands are heavily timbered.

The assessment of the present year, you will perceive, is not so large
as in eighteen hundred and sixty. This may be accounted for by the
decrease in the valuation of stock since last year.

Tax of eighteen hundred and sixty-one, proportioned in the different
funds, as follows:

Fund.

Amount.

State Fund

General County Fund

School Fund

Eoad Fund

Indigent Sick Fund

Special Fund

Railroad Fund

Total Tax for 1801

822,866 71

19,055 00

3,811 11

1,905 56

13,838 92

9,527 80

19,055 00

889,561 30

I am. Sir, very respectfully, your obedient servant,

W. D. VANTINE,

Assessor of Butic County.
By J. Bean. Deputy.

CALAVERAS COUNTY.

Robert W. Dowlinxj County Assessor.

Hon.

H. A. HiGLEY,

Surveyor-General

Office County Assessor,
Mokelumne Hill, November, 1861.

Sir : — I beg leave herewith to transmit my annual report, in comJ
pliance with an Act of the Legislature of the State of California, passei
April seventeenth*, eighteen hundred and sixty.

AGRICULTURE, HORTICULTURE AND LIVE STOCK.

It is gratif3-ing to state that this county, although making no preten-
sions to agriculture — as, in fact, she was not designed by Nature, by reason]
of the unevenness of her surface, to excel to any great extent in thatj
branch of industry — is yet showing those evident 'marks of progress evenj
m that particular, as to probably place her upon an equalit}^ Avith many!
of her more favored sister counties in the State. Cereals of divers kinds]
are cultivated wherever practicable, but, as it cannot be expected that

our bill siflcH will ever vie with the rich lowlands of the valleys, a ^<liu;ht
fallin«r off in the number f)f' arres and consequent decrease of the number
of busbels of wheat. compare<l witb last year, will not be very surprising;,
altboui^b till' ai^i^re-^atr number of acres under cultivation this year. i8
over ei^'bteen bun<ired lar^rr tban that of tbe precedinir vear. This dif-
ference, bowever, i.s mainly attributable to tbe marked increase in the
yield of bay, viz. : a i^ain of nearly twenty-four bundretl tons, or about
seventy per cent, over tbe pn»duct of last year. Hut if we have no
Bpecial cause of self-adulation in the way of farm products — horticulture,
on tbe other baml. has received an impetus bi<^bly laudatory to the
enterprise and in<luHtrv of our citizens. Fruit trees and vines of all
kinds, have nearlv. in all eases, been doubled in number this year, but in
no particular is tlie increase so surnrisini; as in tbe aui;mentat ion of the
niMiibtr <»f apple trees; for wbile these summe<l up in eii^btei'n bundred
and hi.xty. twenty tbousan<l nine hundred and ninety-two. tbe ai;<;re^ate
for this year presents tbe astouisbin;; array of two bundred and ninety-
tbree thousand and si.xty-si.x. (tr fourteen tifnes the number of last year.
(Jrape vin»'s bave more tban doubled tbeir yield, increased in about the
same ratio ; whilst the number of gallons of wine is nearly treble.

Tbe extraordinary denreciation in tbe value of all sorts of horned
cattle has not failed to i)e sensibly felt in this county, as well as else-
wbere, hence tbe small increase of tbe number of this kind of property
over last year. And to the inereased demand of draft and ridiiii; stock
in the nei;;bborin^ Territory of Nevada, is j)robably owin^ the decrease
of horses and mules, as compared witb tbe returns of last year.

MINI. NO INTKRKSTS.

The mines, tbe principal souree of revenue of this county, continue to

yield l>ountifuIly. Tbis remark is, however, not applicable alike to all

*' ditlerent Im-alities. but to be taken in an avera^je sense. Those locali-

in whieb the ^«dd yield is <le|>eiident solely on tbe produce of surface

iind. bave seen, or will ultitnately see. tbeir sources refuse to yield the

'•w stream; but those favored sections, where deejt di^^/^in^s jirevail.

'', i^enerally. an undisturbed and bui:^ future before them. an<l tbere

fortunately, many sin-b in this (Mniuty. Tbe untirini^ enercry and

everaru«> of the miner bave. within the past year. develo]»ed and

, lied up some vast tracts of subterraneous ^old fields, thus securing

rt iiiunerative employment to a large number of workmen. The most

' ' iiiinent among these discoverit's is, probably, the region extending

1 Mokelumne Hill to the Calaveras River, for some six miles along

it is known as Chile CJulcb. The quartz mining intei'csts are duly

esented in tbis county, although not to that extent as in other por-

is of the State. The regions about Angels and West Point, are the

es where tbe most remunerative veins are worked at present. This

iicb of niiiiing has not rcceivi'd. since the memorable days of eighteen

I lre<l an<l tifty-one. that share of attention which its imjiortance enti-

I' •> it to, but is, nevertheless, generally working its way into tbe puldic

:iv(»r and enlarging its number of votaries. It would be superfluous

"iiiuilly and methodically to announce here the discovery of extensive

"l'l>er mines in tbe southeastern portion of this county, even if I had

i"t alluded to it already in my last annual report. Tbe fact of the cx-

■-1* nee of these mines is .so well known, not only in this State, Init,

lnougb sbijjments of tbe ore to tbe Atlantic States and Europe, also in

bosc remote countries, that it would be entirely useless to adduce any

testimony in their behalf. But. considering that it is mj province to re-
port more minutely upon this suVtjeet, from its importance, both present
and prospective, I deem it proper to enlarge here upon it. In my last
annual report, when referring to these then only lateh' discovered mines,
the following sentence occurs : •' I am confident in the undoubted min-
eral wealth of this section of our county." The experience of the last
twelve months shows that I was not mistaken in my conclusions, and I
take occasion here to reassert every particular of the above sentence.
Practical experiments and the application (^though to a limited extent as
vet) of science, has led. since the above was written, to vast discoveries
of new leads and the tracing up of the old ones. But, extensive as the
discoveries of the past twelve months have been, the extent of the cop-
per fields in this county is far from being explored or even traced yet.
and I here venture to predict, from actual personal observation resulting
from extensive explorations in these regions, that copper fields will, be-
fore long, be discovered east of the Bear Mountains, in what I call the
Cherokee range, lying north of east of, and running parallel Avith the
Copperopolis mines. Still further east, another of these mineral belts i-
found, and mining laws established by the miners for their government.
But these discoveries (on the San Domingo) are of a too recent date to
enable me to report intelligt-iitly in regard to their extent or richness;
but enough of them is known, however, to wari'ant the belief that that
whole region will, ere long, be sul»jected to a thorough exploration. I
will here refer again to my last rej)ort for tlie following ])assage : -li
would amply repay the State for all the outlay that a State Mineralogist
might make in giving this section a thorough scientific investigation, not
only in connection with the discoveries already made, but to inaugurat*
a system of researches which will, as I am satisfietl, lead to the discover}
of other minerals, such as sulphur, antimony, and tin, traces of whidi
have already been found by prospectors, unaided as they were by
those indi.spensable guiiles — arts and science." The State Geologist ha.-
visited the copper region, and ])robably Mill make his oflicial report in
regard to it. But if. for some reason or other, he may have been hamp
ered or restricted in his investigations, I- would again respectfully re})rr
sent, through you, the desirabilit}' and necessity of a systematic an(
thorough scientific exploration. Our miners and capitalists possess th€
energy and perseverance to work and develop any mine or region thai
promises even a distant return ; but where, as in this kind of mining,
science must be added to practical application, in order to be successful!
it evidently becomes the duty of the State to lend a helping hand, and
this the more so, when, as in the present case, the prospect is so encour-
aging, and only needs the fostering care of the State to insure, at no dis
tant day. an inexhaustible mine of wealth to the whole country. Il
would be imjiossible. and certainly too uninteresting in a document like
the present, to give a detailed description and statistics of the ditfereni
leads and claims; but, in order to present some general and tangible ide:
of copper mining. I propose to append here an extract of a letter writtei
to me by Mi*. Hiram Hughes, an intelligent miner, and the original dis
coverer of copper ore in this county :

" Gopher Mines, October 24th, 1861.

Our ^^^apoleon Lead, on Hog Hill, is proving Kumber One ; we ar.
down thirty-five feet on a lead of copper ore, varying from two to threi
feet in width. It is of the gray copper. Tavo men raise two tons pei

day, besides doinp the timberinff. The assay's from the different quali-
ties of 8ulphnre»s. up to the best ore. run from sixteen to twi-nty
and eii;hty-rivf one-hundredths of metallic topper, tive dollars in silver,
arid u trarr ..f ^r,,!.! per ton. Wc have al.so the auriferous tellurium,
whitli a.-'-'UX - a^ l^llows. per ton :

A88AY8 OP TELLURIUM.

24.30 ounces Silver $\ 30 per ounce.

1 '^'J ounces Ciold [ 20 07 iH?r ounce.

Total per ton.

$31 59
37 61

$69 20

We hare shipped sixty-Hix tons of copper ore from this claim, and
have forty more ready for saekin^. The tellurium lead is seven feet in
ith. between two copper leads."

TIMBER.

\-* rej^rds timber, for lumlK.'rini; and other purposes, our supply is
!idant, and consists chiefly of the ditferent varieties of pine ; and
ikin^ of thi?*. I should not forget to inform you that within the past
! an(»ther Mammoth (irove has been found in this county, and a
; claim, which includes the ^rove. has been taken up by Mr. Hutch-
of .Mai;a/.ine n«»toriety. so that we are likely to have opposition,
:i in Maiiuiiulh tiroves, liii' Trees, etc.

IMPROVEME.NTS, ETC.

1 or the number of saw mills, number of feet of lumber manufactured,
land other improvement*, I refer you to the following table :

Dweripdoa.

^ttam Saw Mills

\iVater Power Saw Mills

'•'tal number of Saw Mills

Number feet of Lumber Sawed

team (Quartz Mills

Vater Power (Quartz Mills

?otal number of Quartz Mills..

lining Ditches

liles of Mining Ditches

nches of Water discharged

"oil Bridges

erries

ilacksmith Shops

mtcher Shops

oundries

"^eweries

No.

Value.

829,750 00

7,320,000

215,120 00

64,6.30 00

583

271,400 00

9.731

27,800 00

5,300 00

18,400 00

18,2.50 00

2,.500 00

23,200 00

Description.

Gallons Beer Brewed last year @ 6Ue "^ gal

Soda Factories

Stage Lines

Telegraph Line

Catholic Ch urchcs

Protestant Churches

Theatres

School Houses

Hospitals

No.

Value.

144,800

86,880 00

4,520 00

12,000 00

1,000 00

12,200 00

5,000 00

3,800 00

7,630 00

5,000 00

And to show you that we are "some" on billiards, we have in use
sixt3'-six tables, valued at seventeen thousand five hundred and ninety
dollars.

I find a steady increase in the number of taxable inhabitants since
eighteen hundred and fifty-nine. The increase in eighteen hundred and
sixty was two hundred and thirty-five ; of this year about the same, or
over four hundred in two years, and consequently an increase in the
total value of property.

TAXABLE PROPERTY.

The taxable property, personal and real estate, for this year, sums up<
as follows, viz :

Eeal Estate

Personal Property

Against that of 1860

Real Estate

Personal Property

8991,760 00
1,745,948 00

8813.034 00
1,614,761 00

82,737,708 00

82,427,795 00

Leaving a balance in favor of eighteen hundred and sixty-one of three
hundred and nine thousand nine hundred and thirteen dollars, or a gain
of about eleven and one third per cent, over last year.

All of which is respectfully submitted.

ROBEET W. BOWLING,

Assessor of Calaveras County.

Hon. II.

CONTRA COSTA COUNTY.
J. J. White County Assessor.

Office County Assessor, |

Martinez. Novonihcr 20th, 1^61. j
A. IIkiLky,

Surveyor-Ciencral :

Sir: — In compliance with your cinular. and in conformity with the
law. I herewith res|K'ctfully Huhinit tlu- followini; as my annual report :

1 his county was organize*! in the year ei;^hteen hunclred ami tilt}
It.-* hountiaries are. North hy San Tahlo Hay ami Sacramento River, Eas
bv San Joaquin, South hy Alameda, and West hy the Bays of San Frai
CISCO and San Pablo.

orricKas.

ast

Ofloe.

Reaidenoe.

iThomas A. Brown

iM. .Shepard

L. <' NN itt«"nmyre

J. J. McKwen

Obid F. Alloy

^N. .1. Clark...'.

K. Barber

I O'hoherty 'County Sur\'cyor

II. Fassett iCoroner

County Ju<l^o .Martinez...

District Attorney Martinez..

County Clerk & Kecorder. Martinez...

Sherift Martinez...

Treasurer | Martinez...

Assessor jSan Pablo.

Martinez...

I'ublic Administrator.

I . Barrett '.Supervi.'ior First Township;

.1 . True JSupervisor Sec'd Township

r. Walker SupervisorThird Township

.M. Warmcastle 'Senator Ki^hth District....

yharles B. Porter As.Homblyman

TERMS OF COURTS.

S'-nntli Ditfrirf Court — Hon. K. W. McKinstry, Judge. First Mondays
f January, May, and Seiilember.

County Court — Hon. Tliomas A. Brown, Judge. First Mondays of
ugust. November and February, and third Monday of May.

Court of S*:Mi'ms-^\hn\. Thomas A. Brown, Judge; E. F. Weld and
7m. (iivan. Associates. First Mondays of August, November and Feb-
ry, ami third Mondav of May.

Prolnitc Court — Hon. 'T. A. Brown. Judge. Fourth Monday of every
lOnth.

Boanl of Su/nrrisorg — Regular meetings first Monday of February, May,
iQgust, and November.

AGRICULTURE.

This county is in quite a flourishing condition, financially and other-
wise; large tracts of land are cultivated in every direction. The follow-
ing is the number of acres enclosed and cultivated :

Number of acres enclosed 31 ,327

Number of acres cultivated o5,564

There are vast quantities of land still uncultivated, (remarkably fertile
and most advantageously located.) owing to the unsettled condition of
Mexican claimants. It is the great curse and drawback to not only the
prosperity of this county but the jirosperity of the State at large.

The amount of tillable and grazing land in this county, according to
the best information 1 can gut. is about one hundred and ninety-tive
thousand acres. The swamj) and overflowed lands, about forty-nine
thousand acres. The latter is attracting considerable attention. Since
the year eighteen hundred and fitty-seven. I am informed, about fif-
teen thousand acres have been secured.

The valle3's in this county extend all the way from fifteen to twenty
miles, and are well watered. Even on the hills and mountains innumer-
able springs are found, affording excellent pasturage the whole year :
round for stock of all kinds. Cattle and sheep have done very well;
the prices for them are very low and discouraging. Considerable im-
provement is continually going on in all desciM])tions of stock-i-aisiiig in
this county — particularly in sheeji and horses; the latter, as exbibited
at our county Fair, showed that no little attention or ])ains were taken '
to improve the breed. In the business of sheep-raising it is certainly
difficult to select a better locality, both as to climate and advantage of
pasturage, and several persons have taken advantage of the same, us ^p
can be seen by the numerous herds that are grazing in the different vaI-4
leys all over the county. Nor have I heard of anj^ disease existing."
among them, other than what can be easily remedied by proper care and
attention.

In the l)usiness of farming this year. I find that in San Ramon and
vicinity, for miles around in fact, about an average crop has bee^
harvested — principally wheat, and of a very good, clean quality. Thi
locality is very much favored for producing Avheat; seldom, if ever, iij
there a failure of the crop, and producing from fort}" to seventy-fivi
bushels to the acre.

How different is it in the valley of San Pablo and its vicinity ? where
a large quantity of land has been put into cultivation, without producing
an average crop, and that, too, of an inferior kijid, particularly tl^
vv'heat ; barley and oats have produced better, and the quality fair. JmE
a general thing, our farmers here in San Pablo are not practical men..'
They go in for cultivating large tracts of land, and plough their laud ,
rather in a slovenly manner, and skimming it over, scarcely turning over |
enough of the soil^to cover the seed. In my neighborhood, (San Pablo ,
valley.) all those who farmed in this wa}' are bankrupt; tho.se of my
neio'hbors who are practical men. and even pay for their land from four
to five dollars per acre rent, and farm small quantities, have invariably
made money every year, and are comparatively comfortable and inde-

pt'iident. I 800 plainly, fpom my experience, that farniinj^ little land
and cultivating; it well is what will jmy.

A«JRICILTIRAL I'ROIH CTS.

Product'* this y«'ar art* a** follows : Twcnty-tive thousand one hundred
and forty-sfViMi ams of wluat ; eleven thousand nine hundreil and thirty-
six acres of harlev ; ei;;ht thousand one hundred and ninety-six acres of
oats; one hun<lred and five acres of rve ; two hundred and sixty-nine
acres of corn ; neventy-two acres huek wheat ; tifty-nine acres of peas;
four hundred and thirteen acres of heans ; ninety-nine acres of sweet
potatoes; thirteen acres (»f onions ; nine thousan<l three hundred atid
teen acres of hay ; three acres of flax ; eleven acres of tohacco ; forty-
HiTi's i>f alfalta ; twenty-tive acres of hroom corn; Ht\y-one thou-
-of hutter; thirty-nine thousand one hundred and ninety-
.■« of (dieese ; two hundre<l and ninety-one tiiousand eiftjs ;
ly-Hoven thouHand ]»oundM of wim>I ; one hundred and sixty pounds

mi; IT TRKEM ASH VINKS.

: uit of every deHcription in not eultivate<l in as i^reat quantities, per-

- as in other counties in the State, hut the «)uality is not excelled of

i|es<'ription : and as for the ;;rape culture, this climate is unsur-

•d. as is proven hy the (juality and perfe<'ti«»n of the different varie-

<'ultivated. as well as the <|uality of the diflerent descriptions of

wrine produced.

Ill the orchanl of I)r. Streutzel. in Alhanihra valley, within two miles

iie county seat. (Martiner. ) five dilTerent varieties of the ^rajie were

vated to fprvat perfection, fmm wlu<di was manufactured white, red.

I I inie. and An^eliea wino. considered l»y epicures an<i connoisseurM su-

-r t«» any wines of the kind in the .State ; als«». et|ually as hi^di flavored

')st forei^fii wines of the same d»'scription. The hoetor's orchard is

liidy an exception. The extent <»f it is ahout twelve or fourteen

-. There are ten thousand irrape. two thousan<l apple, two thou-

: peach, one thousand pear, six hundre<l plum. Ave hinnlred apricot.

oran;;e. lenuMi and citron, trees, in a very flourishing; state; two

live. ei;;hty ponie^raiuite trees, and numerous other «lescriptions of

ruit to he found in this ortdmrd. all in a heautifid state of cultivation,

nd located in the most rtimantic valleys in the State. In other districts

f the county, all around the hase of M«)unt Diahlo, there are numerous

mall valleys where the vine is ctdtivated also extensively, and yields

bundantly.

LIVK STOCK.

In enunieratini; the quantity of live stock. I find that there are. of
or>esof all kinds, ahout ei^ht "thousand one hundred an<l nineteen head;
f American, three thousand tive hundred ami nineteen; tame and wild
alt-hreeds and Spanish, four thousan«l six hundred; mules, five hundred
nd thirty-flve; asses, five; cows, five thousand and sixty-nine; calves,
Mir thousand one hun«lred and thirty-six; stock cattle, eleven thou.sand
ine hundred and sixteen ; heef cattle, five thousand and thirty-seven;
xen. seven hundred; sheep, twenty-one thousand; ^oats. one thou-
md nine hundred; ho^s. thirty thousand. Iurj;e and small; chickens,
lirty-nine thousand; turkeys, \wenty-one thousand; ducks, one thou-

suud three hundred ; geese, one thousand seven hundred ; bee hives, one
hundred and twelve.

The county also boasts of an inexhaustible supply of coal, particularly
in the region of Mount Diablo, where several mines are now open and
working, from which large quantities are being exported to market.
Shafting and tunnelling is going on extensively, and a large amount of
capital is being invested in further developments of the kind. Very
recently, otlier coal mines have been discovered in the neighborhood of
San Pablo creek, within four or tive miles of the village of San Pablo.
I confidently prognosticate that when the proper encouragement is given, i
by the settlement of land titles, the resources of the county, when more '
thoroughly developed, will really be astonishing. In short, the progress
and prosperity and marked improvements in agriculture, the mechanic
arts, and business generally, is very encouraging.

The roads throughout the county are in a very bad condition, particu-
larly the road from San Pablo to tiie county seat. Travellers on this
route run risksof their lives in going to and from these places in any kind
of vehicle. The journey most of the way — a distance of eighteen miles —
is very mountainous, and it will refjuire the sum of three or four thou-
sand dollars to put it in travelling condition.

The importance of establishing more clearly the boundary line between
this county and Alameda, is very necessary, owing to the difficulty of
making the necessary assessments. Very many persons in the vicinity
of this line are not assessed at all. or prefer being assessed in Alameda
County, as the tax levied in that county is much less than in this.
Therefore, it is to be hoped that the Legislature will order a proper sur-
vey of this line.

It will be seen, by referring to my statistical re])ort, that comparing
the value of property in the county for the year eighteen hundred an(
sixty-one with the value of ]iroperty for the year eighteen hundred and
sixtj'. the amount falls far below for the year eighteen hundred and
sixty-one, in personal property a little over three hundred and twenty-
three thousand dollars, owing to the great depreciation in the value of
stock of all kinds.

TOTAL VALUE OF ALL KI.NDS OF PROPERTY, FOR THE YEAR 1861.

Description.

Real Estate

Improvements

Personal Propert}'

Total

Value.

8679.129 00
322,352 00
950,914 00

81,952,395 00

Al of which is respectfully submitted.

J. J. WHITE,

Assessor Contra Costa County.

}

EL DORADO COUNTY.

Lkuis Fustkh County Assessor.

Office County Assf,ss(>r,

Placervillc, Oct. 5th, 18G1.
Hum II. A. IIi.ii.KY.

Surveyor-General :

De.\r Sir: — In conformity with law. I have the honor to transmit the
following, my annual report, as Assessor of El Dorado County :

For the past three years I have found it extremely ditticult to meet, in
full, the requirenu'nt« of the law, in my reports. And an experience of
four years as Af»sf.H.sor. has UtI me to the belief that the detailed state-
ments of most til' the County Assessors who pretend to he at all accurate,
are mere matters of speculatic^n. and n<»t foundetl upon c«)rre(tly ascer-
tained data. Your desire bein^ t"»ly to obtain j'nru, J shall make no
draw upon the imagination to purticularly answi-r all tin- inquiries made
in your circular to County A^se^sors. but rather continin^ myself to
actual stati^ti* s obtained, than to any apitraranct- of otlicial exactness,
which all A.N."*essors, of any ex]>orieneu, must know is the merest pretence
and i;uesH w«>rk.

Althoui;h Kl Dorado nmy be strictly called a mining county, yet nearly
every available spot, whether hill or valley, is pre-empted for a«4ricultural.
horticultural, or ^razin^ purjtoses. The total amount of land claimed
is two hundred and five thousand nine huntlred and twenty-three acres;
of whi«-h there are umler cultivation twcnty-ci^ht thousand seven han-
dled and titty-ei^ht acres — leavin;^ for j^ra/.in;^ purposes one hundred and
<nty-Keven th«)U.sand one hun<lred and sixty-tive acres. Tlie amount
j.. .-empted since my report of last year, is over fifty thousand acres.
This is a striking; indication that the heretofore mij^ratory miners who
* " of late have made California but a temporary abiding place, are now
in^ the foundation for pernmnenl and hajipy homes in the future.
iliis is not to be wondered at. since a well cultivated acre or two, even
in our mountainou>« re;^ions, in many instances prove as remunerative as
lari^e I'ariMs in the older States.

The tpiantity «tf ifrain ^rown is not lar^c, the greater portion of which
is cut for hay — this beini; the most j>ntfitable farm crop raised, especially
on lands not favorably located for irri','ation. Nearly all who are engaged
iit agriculture are, more or less, interested in fruit growing, in which they
succeed as well, if not better, than in most of the agricultural counties.
At least, fruit raised in this county brings as fair, if not a higher price,
than that in any other location in the State.

Coloma. the primitive county seat of El Dorado, is as renowned for its
fruit as it is tor being the place where gold was first discovered. The
gardens there are ami)ng the oldest in the county, and. from peculiarity
of htcation and climate, are probably not excelled by any in the State.
Other locations of our county are fully equal to that of C«doma in the
production of quality and quantity of fruit, but it is not quite so early in
ripening.

FRUIT TREES, ETC.

The number of fruit trees, as appears from the statistics of the present
year, is as follows :

Description. | Number.

Apple I 84,965

Peach I 77,103

Plum 4,900

Cherry ! 2,497

8,832
1,816

1,787

Pear

Apricot ..
Nectarine

Almond I 496

Fig 485

Quince | 3.303

Grape-vines ! G 1 7 ,028

Much interest is manifested in the cultivation of the i^rape. as appears
from tlie increased nunibci- reported Last year the number reported
was three hundred and titty thousand. This year it aiiiounts. in round
numbers, to six hundi-ed and seventeen thousand, the i;reater numl)er of
which are but two years old. There are quite a numhei* of vines, liow-
ever, tluit are from tour to seven years old, whicli have already borne
sufficient to test the wine-making qualities of the grape — proving, beyond
doubt, that wine-making, at no tlistant day, will do an important branch
of California industry.

In the eastern portion of the county, the various species of pine is
found in great abundance, consisting of the sugar, pitch, and spruce, of
which the best of lumber is ma<le and shijiped. in immense ([uantities, to
the valleys below.

There are in the county twenty-one steam and nineteen water-power
saw mills — all doing a flourishing business. There are also tive steam
and seven water-power quartz mills — not more than one third in
operation. Also, one water-power grist mill, four soda factories, one dis-
tillery, twelve breweries, one machine shop, eight cement mills, fourteen
toll roads, tifteen toll bridges, five marble quarries, and over two hun-
dred miles of telegraph line.

There are sixty-four ditches, being in the aggregate, six hundred and v
forty-seven miles in length, the ])rincipal of which are the South Fork
canal, the Eureka, and the Pilot and Hock creek. The South Fork is
taken out of the South Fork of the American Kiver, and furnishes water
t" Placerville. Gold Hill, and surrounding country. Tlie Eureka canal
t:,kes up the waters of the North Forks of the Cosumnes Iiiver, and sup-
p ies the county from Diamond Springs to the southwestern line of the
c unty. The Pilot and Eock creek takes up the w^ater of Pilot and
IJ )ck creek, and furnishes Georgetown, Greenw-ood, Spanish Flat, and,
ir fact, the whole divide between the South and Middle Forks of the
A nerican River.

LIVK STOCK.

The increase in the number of live stock during the past vear is not
hii-ge. resulting from the fact that all small dealers are getting" out of the
business, at almost any sacrifice, while large dealers — with the present
low prices— have had little to stimulate them to increase their bands.

The number, as appears from my statistics, is as follows :

Description.

HorsoH

('olt8

Muks

.lufks

Cows

Calvi'H

Oxon

Stuck Cttttlc

JIo^s

Shet'p

<ioaU

Number.

2,277
421

1.1 :}0

4.U21
1 .;H)5
l.r)M4
4.7;}2

7,«;.'{2

H.2S5
510

In ('"inimriiijf the asHoHMiiuMit of la.><t y^ar willi tliis. it will Ik' soom that
thiTc has lu'cii a stca'ly iiicivjisf in the valiii- of" n-ai i-state ainl iinnrovc-
inciits. The total amount of" iiroporty assi'sm'd is throo million .sovon
hundriMl and nincty-t'oiir thousand our hundrofl and twenty djdIai'H. The
total valiif of real ontati* in tiw hiindri'd and lorty-six thousand throe
hundred ih>llarH. The value of iniprovemontH is one million two hun-
dred and tive thousand and eighty dollars. The amount of ]»ersonal
jtmperty is tw<» million forty-two thousand seven hundred and forty d<d-
lars. An increa.se over last year's assessment of two hundiiil thousand
dollars.

\vry respectfully,

LKWIS FOSTER.

County Asso.s.sor.

TKHAMA COCNTV.
li. H. Shaw County Assessor.

OFKICK ColNTV ASSKSSOR. ")

Ue.j Hlutr. Xovemhcr 20th, 18G1. j
lion. II. A. iliiJi.KY.

Survej'or-General :

Sir : — In comi)liance with law. and your circular of the fourth ftf
March last, to Count v Assessors. 1 herewith transmit to you the follow-
ini; as my ollicial report of the statistics of Tehama County for the cur-
rent year :

The many ditticulties in the way of an Assessor's obtainini^ the infor-
mation you desire, and which is of so much interest to the State at
large, are suthciently ohvious to serve as an explanation for what may
be considered inaccuracy or neirlcct. As. for instance, in the quantity of
hay and i^rain, which can only he approximated, for the reason that the
Assessor conunences the dischari^e of his duties in the month of March,
• when the crop is growing, and according to law not liable to taxation ;

while in the course of three months, his neighbor, who has harvested
his hay and grain, may be assessed for the same.

COUNTY BOUNDARIES AND AREA OF SQUARE MILES.

For the boundaries of this county I refer j'ou to an Act of the Legisla-
ture entitled an Act to alter and define the boundaries of Tehama County,
approved April nineteenth, eighteen hundred and fifty-nine, and inas-
much as you require suggestions relative to tlic necessary alteration of
county boundaries, it may not be inappropriate in me hero to remark
that the Act above referred to was against the well known wishes of a
large majority of the people of Tehama County, and its immediate
repeal would meet their hearty approbation, and be nothing but a simple
act of justice to all concerned.

The area of square miles can hardly be approximated, for the reason
that the most of the boundaries of this county are natural and have
never been surve3'e(l. As, I'or instance, first — the line beginning at a
point on the Sacramento IJiver, on a section line, and running west to
the summit of the coast range of mountains. Second — the line begin-
ning at the mouth of Battle creek and following its middle channel to
tbe wc'sterji line of Plumas County. The two other lines are equally
indefinite.

AGRICULTURAL LANDS.

There are about two hundred thousand acres of tillable land, most of
which is admirably ada])ted to the production of grains and fruits of
almost every variety, and vegetables of every description, and in the
greatest abundance. With reference to vegetables this is particularly
the case on the east bank of the Sacramento liiver, where the beautiful
mountain streams of Antelope, Battle, Mill, and Deer creeks, all afford,
the year round, bountiful suftplies of water for purposes of irrigation.

As shown b}' the Assessor's books, there are deeded from the United
States and Mexico, in this county, one hundred and twenty-tiiree thousand
and fiftj'-eight acres of land, ninety-one thousand one hundred and
eighty-nine of which are contained within the surveys of six Mexican
grants, to wit : the Soucos liancho, the Rio de los Molinos Rancho, the
Bosque Eancho, the Boranco Eancho, the Eancho de los Flores, and
El Eancho del Primer Canon. These immense grants of land, after
being for years in litigation — which necessarily prevented their improve-
ment and cultivation — have all been finally confirmed, and I believe,
patented to their respective owners ; since which time they have been
constantly disposing, to good and industrious farmers, at moderate prices,
and on easy terms, homes for themselves and their families, affording
the purchaser an opportunity of pa3'ing. within a few years, for the
land, from a mere surplus of productions from the soil.

The remaining thirty-one thousand eight hundred and sixty-nine
acres are generally along the low foot-hills and in the small valleys
on creeks which empty into the Sacramento Eiver ; and while the lands
are somewhat broken and not of the best quality for agricultural pur-
poses, yet thev produce ftiir crops of hay, grain and vegetables, and
afford better range for stock of all kinds "^ than the low lands along the
Sacramento Eiver.

NOME LACKEE INDIAN RESERVATION.

One of the most imj)ortant subjects to which it is ray duty to call
your attention, is this Kesorve ; located in the southwestern portion of
this county, hetwocn and near the head waters of Elder ami Thames
creeks, and coiitaiiiiiiLj twenty-five thousand acres of land, it has ceased
to he of any henctii whatever to the Indians or in any manner heneticial
to the interests ot' the (lovernment. This place was estahlislieii in
ei;;hteeii hundred and fifty-four, antl at that time the hjcation and
ol»je<-ts of the Reserve were calculated to ^ive protection to the citizens
an<l their property in that portion of our county. Then that section of
country, which at that time was in Colusa County — it beini; l)eforo the
formation of this — was sparsely settled with whites, wliile it was
crowded with Indians who were constantly committing dejiredations.
The purposes for which the Heservutiou was established have been
altaine<l. and there is no loiitjer any necessity for its existence.

Witliin the limits of this Hest-rvation is some excellent aijricultural
lantl. while it affords tlu* best tirazin^; ranije in all this section of country.
It is now of no practical benefit to the Indians, as it is not cultivated for
their subsistence and furnishes them neither a home nor protection.

This tract of land, if cut up or divided into small ])arcels, say one
liundred and sixty or three hundred and twenty acres each, and sold to
iir citizens, would o|H»n to industry and enterj)riso a rich and produc-
tive section of our county, arid add greatly to our taxable pi-operty.

In view of all the circumstances, it is su^^este<l that our next Legisla-
ture take some steps by whi«h the (Jetieral (Jovernment may be induced
to make some dispositioji of it to our citizens, either tor cash or on time
— respecting; no one's ritfht to pre-emption; as parties who have i;oiie on
the reserve<l lands of tlie (Jovernment as mere trespassers, should not
now be allowed to reap benefits resultint; from tluir wron^ doing, in
preference to those who havt* always respected the lieserve.

.MINERAL SPRIN«38.

The celebrated Tuscan Sj»riniis are situated within seven miles of the
town of Red jilutf. in a beautiful caiioii completely surrounded by moun-
tains, presentinj; an ajtpearance romantic in the extreme. They are
about thirty in number, and what is most remarkable, each ditferin^ in
some ]iarticular. The waters of these springs are thrown to the surface
by the action of the hydrogen gas, through the fissures of the rocks, and
all endiraced in an area of one acre of ground.

The watei-s contain sulphur, .suit, suljihuric acid, muriatic acid, boracic
acid, magnesia, strongly imjiregnated with iron and iodine, and many
other minerals. They have proven themselves beneficial to most of the
disea>es to which the human system is heir, especially in rheumatism,
syphilis ill all its forms and stages, colds, coughs, inflammation of the eyes,
and diseases of the throat and lungs. Mr. M. Meador. the ])roprietor of
these wonderful sjirings. has erecterl steam or va]K)r baths. |»roduced by
the burning of the gases which escape from the springs, wliich perhaps
render them suj>erior to any other baths on the Pacific coast. The gas
■which heats the water is taken from the same springs which supply the
bath tubs. The country around these springs abounds with game, and
"With a small ex])enditu're of money this could be made one of the most
beautiful and jjleasant watering places in the world.

MILLS.

We have four grist mills now in operation :

1. The Eed Bluff Mill, which is owned by Messrs. Williams & Co., cf
Sacramento; it has three run of stone, is propelled by steam, and was
built in 1854. at a cost of tliirty thousand dollars. It has iji-ouiid durinij;
the present jQnr thirty-tivo thousaiul bushels of wheat, three hundred
bushels of r3'e, and three hundred bushels of Indian corn; making; in all
thirty-tive thousand six hundred bushels of <;rain.

2. The Battle Creek Mill, which is owned by W. C. Carver ; it has two
run of stone, is proj^elled by water, and has ^jround during the past year
twenty-five thousand bushels of grain.

3. i)ye & Butler's ^lill, which is situated on Antelope creek, opposite
and within four miles of the town of Ked Bluff, is a large and splendid
frame building, with one run of stone, to whieh they expect to a<ld two
more by the next year ; it is jtropelled by water, and has just coninienced
grinding.

4. The Tehama Mill, is situated o]>])osite and wit bin one mile of the
village of Teluuna. It has just been com])leted at a cost of about thirty
thousand dollars; is of immense size, built of pebble stone, with four
run of stone. Has ground with one run of stone, in fourteen hours and
ten minutes, sixty barrels of flour, and has ground since its completion,
about five thousand bushels of wheat. This mill is owned by Samuel
Jaynes, Esq., and the estate of the late I*. L. .Miner, and is u < reilit to
Tehama County as well as its builders.

There is also a grist mill now being erected on Deer creek, which is
intended to be propelled by water, and to have two run of stone. It is
the property of W. P. Mayhew. Esq.

We have now but one saw mill, which is situated on the head waters
of Thames creek, is owned by Messrs. Gillman iS: Paten, and has sawed
during the present year, seven hundred thousand feet of lumber.

The Antelope Mill, which was destroyed by fire in August last — before
which time it had sawed alxuit four hundreil thousand feet of lumlier —
was owned by J. F. Dye, Esq.

BRIDOES AND FERRIES.

We have but two bridges, both of which are located on Cottonwood
creek. We have five ferries — all located on the Sacramento River.

TELEGRAPH.

We have in this county forty-two miles of electro-magnetic telegraph,
with two offices, which have taken in during the year four thousand dol-
lars.

LIVE STOCK.

There is a large increase since last year in stock of ever}" description ;
but, owing to the unprecedented depreciation in value, the assessment
on stock alone is not so large as it was last year. So low, in fact, is it,
that our farmers and stock raisers are, many of them, disposing of all
but sufficient to answer their individual uses, and are turning their
attention to various other industrial pursuits. The only branch of stock
raising which offers any inducements to stock raisers is that of sheep ;
and I believe there has been more attention paid to, and interest taken

in tlifm durintj the past year, than any other. There are now in this
county many iinitorteil bucks of the French Merino and Soutlidown
breeds. As will ho seen hy reference to the statistics, we have in this
count V :

DMcription.

Number.

Horses

1 *.M)S

\IuK>s

1 (»24

( attU'

3s,i»47

Sh«M-j»

h\ SoO

IIoi^s

22 407

A88E8MMK.NT oF I'RiU'KRTY.

AsHcssini-nt for the |»re«ont year
AtwcsriUient lawt year

IncreaHv of aMoetMinoul

82.14:5.070 00
2,US(;,213 00

850,863 00

Thus will be »ecn, by refereneo to the statiHticH of our county since
its formation, a steady increase from year to year in wealth unrl
prosperity.

You will please find cnclo.sed schedule of statistics.

All of which is respectfully submitted.
By A. il. Wkhh. Deputy.

L. B. SIIAW,

Assessor.

TKIMTY COUNTY.

F. 1). IvKTciiAM County Assessor.

Offick County Assessor,

County Assessor, )

Weavervilie. October 7th, 1801. )

lion. II A. IIic.i.KY.

Siirvevor-tiencral

Siu: — In compliance with your request, I have the honor to submit
my report for the current year. The report is not as full in many j)ar-
ticulars as I could have wi.shed. I find it almost impossible to comply
strictly with the requirements of the law, but have done so to the. best of
my ability. Our county is principally a miniiif; county, our ])opulation
is rather migratory. There is a decided advance in general impj-ove-
uients, and in our prosperity, although the assessment list does not show

that way, property is given in at lower rates than heretofore. Cattle,
in particular, have fallen in price at least thirty per cent, from last year's
rates; the cause, I think is, that the supply is increasing very fast.
People are giving the rearing of stock more attention than heretofore.

The area of our county I have no means of arriving at correctly; its
boundaries are irregular, mostly natural land-marks, by mountain and
stream. Trinity has a large proportion of mineral lands ; what agricultu-
ral land there is, is located in mountain valleys and benches, and occa-
sionally river bottoms, and generally very productive. "We have an abun-
dance of vegetables for our own home consumjjtion. Of grain and tiour
we import a large proportion. As it is more profitable to cut grain green,
for hay, than to let it ripen for grain, by this course we have plenty of
hay for home use. Corn does well in some portions of the county. On
the farm of Mr. Henry Allen, at Hyampom, a valley on the South Fork
of Trinity Eiver, fifteen acres produced sixty-five bushels ])er acre. Our
mountain sides and valleys are well adapted to grazing purposes, except
in winter, on account of the deep snow, when we drive most of our
stock to the Sacramento valley.

Of timber, it is generally abundant, and in many localities inexhaustible.
The varieties are sugar, pitch, and spruce pines, several species of oak,
and some ash, which last is scarce. We have the cottonwood, alder,
madrona, manzanita, which are not thought to be of much value except
for fuel.

Our mines are river, surface, and tunnel diggings, which pay fair aver-
age wages; some very rich. Of quartz we have no mines developed.

Of fruits, we have many small orchards, but they do not meet the
expectations of their growers, exce])t in favored localities. We have
very late frosts in the spring, which Mast most of the fruit in elevated
and exposed positions. In the western portion of the county, on the
Trinity River bottoms, the orchards are very productive. The fruit
mostly raised is the peach and api)le. The grape is somewhat cultivated,
but does not seem to be a source of much profit.

Bees have been introduced into our county this year, and seem to be
doing well.

Our roads, until the last few years, were the hardest kind of pack-mule
trails, but now we have in the more populous portion of the county good
wagon roads, for which we are more indebted to individual exertion than
to our road laws. We have two turnpike roads, on which tolls are taken,
but our roads are still far from being what they should be for safety and
comfort.

Of schools, we have district schools four in number, three of which are
quite small, the other will compare favorably with the best district
schools. Our population is scattered over a large extent of country, and
in many places sparsely settled; not over two thirds of the children can
attend schools.

Of manufacturing establishments, we have none of importance. Two
tanneries on a small scale, four breweries, and a few shops for repairing,
are about all we have.

For further particulars I refer you to accompanying schedule. Hoping
this will meet with your approbation, ' -

This is respectfully submitted. d

F. D. KETCHAM,

County Assessor.

TUOLUMNE COUXTY.

David Hays County Assessor.

Office County Assf.ssor, )

Sonora, October 7th, 1861. j
Hon II A. IIniLEY,

Surveyor-General :

Dear Sir: — In acconlance with the laws of this State concerning; the
duties of County AsMvsorn. I herewith return you the following statistical
report of the value and resources of this county for the year eit;hteen
hundred and sixty-one. According to the report, you will find that our
county is not in an flourishing a condition as when I suhniitted my last
report. The causes are various ; the principal one heing the continued
breaking and destroying of two of t)ur largest ditches last fall and winter,
which threw out of employ njent a large number <»f miners, causing
many to remove from the county, in which there seemed to be but little
protection to property ; also, atl'ecting all branches of business, depre-
ciating the value of real estate, and all kinds of improvements. Another
cause has been the erecting of large and costly quartz mills, some of
•which have failed to pay, causing a large depreciation in that kind of
])roperty. as you will see by comparing this with my former report.

Our placer mining is as extensive and in as flourishing condition as
formerly, since the settlement of our ditch troubles. Itiver mining is
still good, II larger number being engaged in that branch of mining than
at any other p«»riod during the last three years.

The fruit culture is on the increase, but the value of all kinds is much
less than last year. The grape culture is improving yearly; more on
account of the manufacture of wine than for any other use, some being
of as fine a (juality as any made in the State.

The lumber interest of our county is as extensive and as prosperous as
in ])ast vears. All kinds of live stock have depreciated in value about
one third les.** than last year.

The assesse<l value of real estate is one hundred and fifty-one thousand
four hundred and twentv-tive dollars ; of improvements, one million three
hundred and sixty-five thousand nine humlred and twenty-tive dollars;
of persotial property, one milli«»n two hundred and twenty-tive thousand
one hundred dollars ; and a total value of two million seven hundred and
forty-four thousand four hundred and tiftv dollars, or a depreciation of
five hundred and sixty-eight thousand five liundred and forty-seven dol-
lars from the as.'^essed value for the year eighteen hundred and sixty.
For more and full particulars, please refer to schedule enclosed.

All of which is respectfully submitted.

DAVID HAYS,

County Assessor.

•18

YOLO COUNTY.

James McCauley County Assessor.

Office County Assessor, ")

Washington, Oct. 5th, 1861. j
Son. H. A. HiGLEY.

Surveyor-General :

Sir: — In conformity with the law, and in compliance with your cir-
cular, I respectfully submit the following report of the Htatistics of Yolo
County for the present year. And, if in commenting upon any of its
subject matter, I am not as elaborate as could be desired, 1 hope you will
attribute it to those intervening ditticulties that are so apparent to every
one who is acquainted with the duties of an Assessor.

Yolo County is located in the heart of the great Sacramento valle}',
lying between thirty-eight degrees twenty minutes and thirty-eight
degrees fifty minutes north latitude, and between one hundred and
twenty-one degrees twenty-eight minutes and one hundred twenty-two
degrees ten minutes longitude west from Greenwich; bounded on the
north and cast by the Sacramento Hiver. on the south by the Rio de los
Putos, and on the west by the dividing ridge of mountains known as
the Coast Range. Its county seat (unfortunately for its citizens, a
very migrator}' thing, ) is at present located at the town of Washington,
on the Sacramento River, and dii-cctly (»]>j)osite the city of Sacramento.

Yolo is an agricultural and grazing county, and as such, possesses, per-
haps, one of the most desirable localities in the State, as it already finds
a competent market for its productions in the city of Marysville at a
convenient distance on the one side, and the city of Sacramento on the
other; together with the Marysville and Benicia Railroad (in prospec-
tive) running directly through its centre.

It contains, according to the census of eighteen hundred and sixty-
one, a population of four thousand seven hundred and forty-seven;
being an increase over eighteen hundred and fitty-two of three thousand
four hundred and forty.

LANDS.

The greater portion of the lands of this county are covered by
Spanish grants, to wit :

First. The Rancho de Carmel, or Knight ; comprising eleven leagues,
and covering the young and prosperous town of Knight's Landing.

Second. The Laguna de Santos Calla ; comprising ten leagues, and
lying on the north side of the Rio de los Putos, or Putah Creek.

Third. The Rancho Cafiiada de Capay ; comprising seven leagues, i
covering the vallej- lands of the Cache Creek canon and surrounding
hills.

Fourth. The Rancho Jesus Maria; comprising six leagues, and lying
on both sides of the Rio Jesus Maria or Cache Creek — covering the little
village of Cacheville. formerly county seat.

Fifth. The Guessisose, or Gordon, containing two leagues, lying
immediately on the north bank of Cache Creek, and owned by William
Gordon & Sons.

41>

Sixth. The JJiuu-ho los Putos, or Wolfskill, lying on both sides of
Putuh Creek, adjacent to the foot hills ol' the Coast Kange of moun-
tains.

Of the swamp and overflowed land of the county I have hut little
practical knowledge, and as it comes more directly undvr the notice of
the County Surveyor, I ])rcsuine that he will giVe in his report all
information that I could give.

Of the agricultural larnls it is necessary t<> sa}- hut little. Like all
other lands in the Sacramento valley, their fertility and fruitfulness are
well known throughout the State. Practical experience has proven
them capable of producing in abundance all the grains and fruits indi-
geiums to almost every clime and zone. Wheat, barley, rye, oats, corn,
broonicoru, buckwheat, beans, beets, peas, potatoes, pumpkins, onions,
meloHH, etc., yield up to the husbanilman an aluuulant harvest ; whilst the
growing of tobacco, liops, hemji, flax, etc., is no longer an ideal sjiecula-
tion, but a jiroven fact. And from my own praclicai knowledge of their
cultivation in the Atlantic States, I am well satisfied that, with a proper
knowleilge of their cultivation, they can be grown, • not only as speci-
mens of possibility," but more profitably than in the Atlantic States.
From what I have seen of the growing ^>i' tobacco in the county, I am
satisfied that it can be grown to advantage wherever the land can be
irrigated, and cured in our September and October sun with but little
I fear of fn>st or rain. SuL'ar cane, alfalfa and herdsgrass, flourish well j
aUo, cotton and rice, jlere the aj>ple. j»ear, jieacli. plum, and their
i kindred varieties, grow in such ricn luxuriance as well might tempt
I another Adam to iall from grace.

Wo have, according to statistics :

l>AND UNDER CULTIVATION.

DHOvipttoik

Acres.

'jand enclosed

Land cultivated

Wiieat

Barley

H ay lands

Ryo

orn

Broom Corn

Potatoes

eas

Scans

)nion s

iuck wheat

d cultivated in Fruit Trees, about

100,000

50,795

12,000

28,000

9,000

100

200

400

9,960

Of Fruit Trees and Vines we have as follows ;

FRUIT TREES.

Description.

Number.

Apple

Peach

Pear

Plum

Cherry....
Nectarine
Apricot...
Quince

50,000
98,000
11,456
23,076

2,760
20,423

6,248
500

VINES, ETC.

Description.

Number.

Grape Vines

Strawberry Vines

Wine, gallons manufactured

Peach Brandy, gallons manufactured

24,623

25,000

500

200

Thus you will see that our farmers have a partial eye to the luxuries i

as well as the comforts of life, and, whenever the titles to land are set- i

tied, you see at once the evidences of thrift and c-omfort — those indica- H

tive precursors of a happj' home. i)

MINERAL LANDS.

As I have already denominated this an agricultural county, therefore,
little will be expected under this head, but I will digress a very little.'
Gold has been found in the southwestern part of the county. Flattering|
prospects of quicksilver have also been discovered, and bids fair to be^
come an item of interest.

TIMBER.

The timber of Yolo consists chiefly of the scrub oak and cottonwood,
growing upon the margins of streams, and upon the hills a rough pine is
found in limited quantities, all of which is useful only for fuel. Much
inconvenience is experienced by our farmers in the unequal distribution
of timber, as one man's land is cumbered too much, while another has
none.

IMPROVEMENTS,

( )or churches, school houses and dwellings are fast assuming the ap-
j)eanin(o of stahility and comfort. Siiltstantiai plank fences follow
quickly in the footsteps of a substantial title to the land.

KAILlHtAD.

The Marysville and ])enicia Railroad is located and graded through
the centre of the <-rjunly, running through the towns of Knight's Land-
ing and Yolo City. Length ol' road, fit'toon miles; graded at a cost of
about one thousand dollars per mile.

CACnKVILLE AORiri'LTl RAL DITCH.

fhis «liteh. twenty feet wide hy six <leep. was ctmstructed about two
years since, by Messrs. Hum!. Ilutton. Uo|)pin, Lowe. Yerby. and othei*s,
at a eost of about three thousand <lollars per mile. The water is taken out
of Caehe Creek, five miles above the town of Cacheville, running directly
thnuigh the town, and thenee, by branch ditches, to the various farms
iti the Hurroun<ling vieinity. Froni the favorable location of the lands,
several thousand acres ean be irrigated by it. It is an institution, cer-
tainly, deserving the notice of agrieiilf ural patrons, as by its means,
trees, vines, grains, grasses, and ve;;etabli's ot every kind. Itesides the
many flowers that ornament the dwellint^ round about, are made to
flourish in profuse luxuriance. This ditch also presents an admirable
site for a flouring mill, or a woollen factory, as tne surplus di.schargc of
water is adequate to the pro|)elling of any desired force.

ORIST MILLS.

Of this cla.Hfl of improvements, we have three; the first, the FJaglo
Mills, situated in the town of Knight's Fianding. is a first class institu-
tion, taking a premium at the .State Fair in eighteen hundred and sixty.
It was luiilt and i>< <»wned by Z. (Jardner. Of the other two. one is
owned by William Plait, and eitnated on Putah creek; the other, owned
Iby J. S. Cook, and situated near Yolo City, both built at a cost of about
five thousand dollars, each ; propelled by steam power, and doing a
)rutitable business.

SAW MILLS.

^Ve have one. situated in the town of Washington, erected about one
year since, b}- the Messrs. Hunt, at a cost of about six thousand ilollars.
IThis mill procni'^ it-^ lumber b}' rafting down the 8acraiiietit<» IJivor.

LIVE STOCK.

The pi*ogress in this industrial pursuit is gratifving to evcr\ one who
has either y)ride or interest in this branch of husliandry. The best
iblood horses, cattle and sheep, are Ijcing imported at marvellous rates,

d already their issue are seen to grace almost every farm. The Span-
ish cow and horse are being supiTseded by the best breeds of Europe and
the Atlantic States. Judging from the interest now taken in this

interesting and profitable pursuit, wc may readily presume that the qual-
ity of our stock will soon compare favorably with the best in the older
States.

We have as follows :

Description.

Number.

Horses....

Mules

Asses

Cattle

Sheep

Hogs

Chickens,
Turkeys,.

Ducks

Grecse

Wool, lbs

4,641

457

21,779

84,0S7

17,000

35,000

3,500

500

220

17,000

BUTTER AND EGGS.

This is an item of no little iiii])ortanco to many farmers in our county.
It is quite a proniinent currciu y upon the cash books of our country
stores, and man}- a landlady may be seen financiering over her dozens of
eggs and yards of calico. Instances are not unfrequcnt among our
farmers where they support themselves entirely from the receipts from
butter and eggs.

BEES.

We have in this county about one thousand stands of bees, which are
in a thriving condition, doing well even in the dryest parts of the
county.

The assessed valuation of property in the county, you will find to be
two hundred and sixty-three thousand four hundred and forty-four dol-
lars less than last year. This is owing to the depreciation in cattle,
sheep, and hogs, which is shown by the following table :

RECAPITULATION.

Description.

Value I860.

Value 1861.

Hoffs

854.994 00
114.055 00
419,526 00

842,500 00

Sheep

68,174 00
217 790 00

Cattle

Totals....

8588,575 00

8328,464 00

Difference of totals, two hundred and sixty thousand one hundred and

eleven.

f)3

ASSESSMENTS, 1861.

D«aoriptioD.

Amounts.

Assessed Value of Laml

Assessed Vului' of Impntveinciits

Assessed Value (jf PtTsonal I'ropcrty

Total

8510.286 00

371.0r)0 00

1,275,140 00

82,156,482 00

TAXES.

State Tax on each $100

Tax for County (ieneral Fund on eaeh $100

Inlorest Tax, 1S55. on each $100

School Tax on each $1<M(

Hospital Tax on ea<h $100

Koad Tax on each $10o

Total Tax on eaeh $100..

$0 62

0 45

0 10

0 15

0 05

$1 42

In conclusion, I would urt;e the more definite location of the line be-
tween this county and the new County of Lake, as there is iinuh difTi-
ty exjierienced hy the (dlieers in ascertaining the true limits of their
|)ective counties, and a numher of the settlers have had their property
assessed in hoth counties this year.

Enclosed plea.se find my statistical tahle, which, if not literally correct,
il hope is near enoui^h for all practical purposes, and trusting, at least,
that it will meet with your a])prohation,

1 subscribe myself, yours respectfully,

JAMES MrCAULEY,

Assessor of Yolo County.

FIRST ANNUAL WKVOKY

^iDamp K'i\\\^ (Lommissioiuri

DECEMBKK 15, 1861

"ben j7 PrAVERY.'. . . . .STATE PRINTER.

SWAMP LAM) (OMMISSIOX

A M WINN. Pri'Hidfiit. .lAMKS C. I'KMBEKTON,

T. T. HolLIHN. H. H. IJKDDIXG,

W -M J llUOTEN, Secretary.

c (> N T v: X r s

VMIt.

Prf.iitlciit'^ Letter to the Govfrimr 7

Donation Act tr) State of Arkan^ur 9

Taxinj; Swainjj Lands for UuclnmatiDii 10

Lands on the linnks of Rivitk 10

Act urganixin^ Board of Swauip Lund ('uiiunisgiontTfi 10

Board cstnblisth Di«trict.'< 11

Necessity of Distrietji II

Rule for Petitioners^ 12

Pay of Cngiuecrt) and A.-f^intantd 12

Engineer!< to Report Monthly 12

Dnifonuity of Reports required 12

Report of District No. 1 13

Report of Di^■trict No, U l.'-

Report of Di.-trict No. ;} 15

Report of District No. 1 15

Report of District No. 6 16

Report of District No. fi 16

Report of District No. 7 17

Report of District No. s 18

Report of District No. 9 1-S

Report of District No. 10 19

Report of District No. 11 20

Report of District No. 12 20

Report of District No. l.J 20

Report of District No. U 21

Report of District No. li> 21

Report of District No. 17 2;i

Report of District No. IS 2:!

Report of District No. 19 21

Report of District No. 20 :J 1

Report of District No. 21 24

PAOE.

Report of r>i:<tritt No. 22

Report I if District No. 2;i ^•>

Report of District No. 24 26

Report of District No. 2a 2(5

Report of District No. 2(5...! 2(5

Report of District No. 27 27

Report of District No. 28 27

Amount of SwMinp Liiml in the Districts 27

Amount s<>!d in the Districts 27

Amount vacant in the Districts 27

Protection of Lcvccs 2S

Instructions to County Surveyors 28

What Certificates rcquirctl 29

In(iuiries iiihlressed to the Survcyor-tTeneral liO

Services of Dejiartm'-nts and Attorncy-Geueral rcipiired free of charge 30

Table of Accounts of District No. 1 .32

Table of Accounts of District No. 2 34

Table of Accounts of District No. 3 36

Table of Accounts of District No. 4 37

Tabic of Accounts of District Xo. 3 38

Table of Accounts of District No. 7 31)

Table of Accouut.s of District No. S 40

Table of Accounts of District No. 9 41

Table of Accounts of District No, 10 42

Table of Accounts of District No. 13 43

Table of Accounts of District No. 14 44

Table of Accounts of District No. lit 45

Table of Accounts of District No. 21 46

Table of Accounts of District No. 23 47

Accounts approTcd by Board 48

General District Table 52

Aggregate Items 53

A. N N TIT A T. R K I > O r^ T .

Orriri: Swamp Lano CnMMissinNKRs, |
•< •■ rjuiHUlo. !>«>(•. l.'>(li. isoi. )

To HJM Excellency.

John G. Dowm "i

(lovrruor <>i iiir State «»f ( 'alirurnia :

Sir: — In a<ri»nIninH» \vitl> the thin! .'*t'<'ti<>n of an Act t<t )Mv»vi«le for
the Heclainatioii of Swamp aiul Overflowed, aii<i Salt Marsli. atui Tide
Land^<. donate<l to the State of California hy Act of ('on<;ress. wliich
your Kxcelleney appnived May thirfccnf li. riirlitet'n hinnirfd and sixty-
one, we Hubmit our annual re)H>rt

Ver}' reHpeetfully. your olu'dicnt servant.

A. M. WINN.

PreHJdent Swamp Land Commissioners.

li i: 1* c> \i T .

ACTS (»F rONORESH IN RELATION TO SWAMP AND OV KIlH.oWKD LANDS.

Con^ri'ss pasm'd an A<t on the t\vi'nty-t'i;;l>tli of So])ti'n>lii'i'. oii^litron
iin<lri<i| aii<i titty, in ivlation to Swainn ami OvorHowrd Lan<ls in the
tati' i»t" Arkansas, tlio proviHions of wliicli extend to all otluT States,
ml. tlieret'ore. it it* lunler that Act that we elaini title to the Swamp an»l
• vertlowetl LaniJH of C'uliforniu.
The Alt rt'ads ihuH :

*' To enaihle the .State of ArkannuH to eonstnut the nete.ssary loveos
iiid ilrainn to reclaim the .*^wamp anil Overflowed Lands therein, the
hole of tho«<e .Swamp and ( )\ i-rtloweil I.iand.s. made until theivhy for
idtivation. whieh nhall renuiin unsold at the pa.ssa^e of this Aet, shall
<• and are herehy ;^ranted to said .State."
In this, the first section of the A<t. all of the Swamp l>ands in this
.>iate are actually nn«l ahs«dutely granted, to enahle this .State to reclaim
thoni, and for no «>ther purp<»se. And. if there was an adverse opinion
upon tiiat suliject, the next section clears it up heyond a douht. It says :
*• It shall he the duty of the .Secretary of the Interior, as soon as may
be ]»racticahle after the passai;e of this Act, to make out an account list
and plats of the lan<ls dcscrihed as aforesaid, and transmit the same
to the (iovernorof the State of Arkansas, and. at the request of said
Governor, cause a patent to 1k' issued to the .State therefor, and on that
patent the fee simple shall vest in the said State of Arkansas, suhject to
the disposal of the Letjislature thereof; j,n>i !dnl. however, that the pro-
ceeds of said lands, whether from sale or direct appropriation in kind,
shall he applied exclusively, as far as nccessar}-, to the purj)0.so of
reelaiminj; said lands, by means of the levees and drains aforc.sai<i."

The Swamj> Lan<l Act*, as passed hy our Le-^islature, on the thirteenth
day of May, eii^hteen hundred and .s*ixty-one. seems to us just what the
Congress of the United States desired the several States should do in
jjelation to the Swamp Lands. We are to reclaim the lands, " h}- means
the levees and drains aforesaid ;" hut we are told that one dollar per
ire will not reclaim the land. That is true as to some small J)istricts
the most valuable laud in the State, Init it does not appear to us to be

true as to some of the larger Districts, as will more fully appear to you
by reference to another part of this report.

*But the land was given to enahle us to reclaim it. and Avhere large
tracts of land (when reclaimed) are worth from live to one hundred
dollars per acre, there can be no good reason assigned why that land
should not be taxed, to complete its permanent reclamation.

"VVe therefore recommend the passage of a law for taxing the laiul in
each District, enough to complete its reclamation, when the sum of one
dollar per acre will not do it.

LANDS ox THK BANKS OF RIVERS.

Along the banks of all the rivers in this State, there is a strip of land
called •high lands," and so returned l»y the United States Surveyors, all
of which overtiows at high water, and on which we must put our levees.
We are entitled, under the law. to •• the whole of the Swamp and Over-
flowed Lands made unfit thereby for cultivation," and, certainly, the land
that is liable to be overflowed ixt any time during the winter, is unfit for
cultivation. In* reason of such uncertainty. We must have the i-ight of
way through such lands before we can build levees to reclaim the land
back of it ; ii>i<l if the United States insist ujion the right to retain it as
high lands, it may cost us a very large sum of m(»ney to juirehasc the
right of way through it. We therefore recommend that immediate
steps be taken by the State (Jovernment to secure such land as Swamp
and Overflowed Lands, under the Act of Congress, passed September
eighth, eighteen hundred an<l fifty.

Parties who have i)urchased such lands from the United States, may
object to such a course, but such cases are fully ])rovitled for by an Act
of Congress, passed March second, eighteen hundred and fifty-five, which
says:

"Upon due proof by the authorized agents of the State or States,
before the Commissioner of the (leneral Land Office, that any of the
lands purchased were Swanij) Lands, within the true intent and meaning
of the Act aforesaid, the ]»urehase money shall be paitl over to said State
or States, and where the lamls have been located \)y warrants or scrip,
the said States shall lie authorized to locate a quantity of like amount
upon any of the public lands subject to entry, at one dollar per acre, or
less, and patents shall issue therefor u])on the terms and conditions enu-
merated in the Act atbresuid."

It Avill therefore be seen at once, that those who have purchased from
the L"'nited States are still secure in title, while the State or Swamp Land
Fund is to be indemnified. AVe have a j)recedent for believing that the
United States Government may render such an act of justice to this
State, for when tlie Swamp Lands were listed to the State of Arkansas,
it was found that the higher lands along the banks of the river were
actually necessary to reclaim the lands back of it, and were, therefore,
included with the other Overflowed Lands.

ORGANIZATION.

On the thirteenth day of May, eighteen hundred ami sixty-one, the
Governor approved an Act to provide for the Eeclamation and Segre-
gation of Swamp. Overflowed. Salt Marsh, and Tide Lands, 'donated to
the State of California by Act of Congress.

The Act creates a Board of Commissioners to carry into effect its pro-

iHionn. P" * V' *^^<^»»0'-i"'.u'l«th .lay of Mav. ei-hteen huiuhv.l and sixtv-

110. the H«mr.l met aiui oi-^raniyA-d l.v eloc-tin^r All.ort M Wimi PivCi-

-nt. and W illmni J. Unotcn, Seeretarv— all of the nunil.trs l.oin.r

lit. '^

tliiH -ection of the Act requires that the Board sl.al! keep a full

■ninfall it> transaetions. and tran.sniit to the (lovernor

nt ill d<*tail. shuwiiijr —

/Vr*/.— The loeatioii and quantity «.f land rec laimed. and its cost i.er

. • r« • .

V ,.,„/.^Tho hK-atinn and quantity of land in pro^ri-esa .)f reehunation

' Mtraet.

loeation and quantity of land for the roelaniation of
reeeived.

.1 information, Hu^ruestions, and roconinienda-

.oiutvvu*! \\n\t tiu- purpoheH of the C'ommis.sion. a*' thcv mav ileem

■ r. ■ '

I |» to this time no land hnn hoen roelainied. nor have we anv un<ler

enitiMrf -.. tl.Mt our report miiHt la* eontined to Kliowim; tlie loeation

»i nd for whieh jietitionn have heen reeeived. and now in

r • ■' • lititmtion. Htuti!»lieal infornuitii>n. suggestions, and reeom-

"n. .-I the fir-e thiiiLT^ tii.-it we had to determine was. what should
conttitut*' n hisirin I d. law >:i\s:

II I . Whent'ver a petition Hhall he reeeive*! hy the Hoard ot"
< .nei*s. from the holders of patents, or (ertificates of purehase

ol Swamp Lantis, on a tnic t of Swamp and Overflowed liand suseeptihle
of one mode or hv^tt-m of ivelamation. whieh petition shall represent
one third, in aens ..f ~:iid iraet o|' land, asking for tin- drainage and re-
"lamation of naid lano it shall he the duty of the Hoard of Commission-
rs to appoint an Kh-rimer, whose duty it shall he to make an exam-
ination a ' traet of land."

You wi •• law d«'..- not strietly require that a District

shall eml.j.it , .til '.• of one mode or system of reela-

nialioii. Hill th. I -t creating Oistriets with artilieial

hoiindaries. Udieving it t«» have l»een the intention of the Legislature to
hav. .iii!.i:.<.l ill one Pi>trict all of the laml suseejitihlc of heing
r r, and ri>ntainod within natural houndaries. Had we

U'l-j'.-i .1-1 -J jM-itt« rule, v«ry great injustice would have hccn done to
the Stale, as well iiH to indivitiiial interest.s.

Our eili/.eiis. in '. ' ^' a amp Lands, of course secured the host of

them, leaving tho ;iie covered liy the deepest water, still in

pos.sessi<»n of the .Siaie. Miuli of the hest Swamp T.,ands need nothing
more than a dyke, made hy the earth from a ditch enclosure, whirli
Would Ik- «iit!icieiit to «l!ectually reilaim it ; hut such a course wouhl
leave ihi- nl<•.>^t of the land still suhject to overflow, and in a worse contli-

»n to reclaim than it was originally.

To illuHtrato. *lt a pureha.ser owned four sections of Swamp Land.

)rdering the ed^e of a tule swamp, that overflowed one toot deep each

•ar. and suppose he desired to enchise it with a ditch, wiiich wfiuid

•st less than one dollar per acre, he wt*uld petition, asking for its
' clamation. The Hoard is compelle<l hy the law to .send an Kngineer to
xamine and to survey il. The result would ho, that he would pav the
Slate one dollar per acre for the land, and get it ha<k for reclamalion.
and that. too. without doing a jiartide of good, toward reclaiming, to land
f equal value, when once reclaimed, hy some general system applicahle

to a tract embracing all of the land that coiiM l>e reclaimed in one body.
The levee around such a tract of land would be ei£r;ht miles lonjr. six miles
of which might just as well be used in some genei-al system of reclama-
tion. We are more minute in this explanation, because we are frequently
importuned to make such Districts, so as to meet individual interests,
which we have in every instance refu.sed.

The verv next day after our organization, a petition was presented,
askino- for the reclamation of all that tract of country lying north of the
American IJiver, east of the Sacramento and Feather Ivivers. and south
of Bear River, including about sixty thousand acres of 8wam)» Land.
Nothing before us for our guide, we had. in great haste, to organize and
put to work a new, expensive, and most important .Mstem of reclaiming
the best, and, therefore, the most valuable lands in oui- State. To do the
work before us, and guard the funds effectually, were the chief objects
of our most earnest consideration.

According to law, those who hold certificates of jnirchase, or ])atents.
for Swamp J. and, ai-e the oidy qualified jtetitioners for reelamation. The
([uestion presented itself to our mind, how are we to know that the peti-
tioners are the holders of the legal evidence of the right to jietition ?
for we found that the l>arty entering, and the jtarty resident on the land,
each supjtosed they were the ))ropc'i- ju-rsons to >i<;n ])i'titions; when, in
fact, neither of them were entitled to do so, uidess tlu-y hold the certifi-
cate of jMirchase, or the ])atent.

Therefore, we found it necessary to adojit some rule upon the subject.
We prepared, and caused to be printed, a form for jietitions, wliich we
sent out among the ])arties interested. In «loing so, we have secured
uniformity, so desii-able in the establishment of Districts.

The Li'gislatuie ]»i-ovided for thr jtayment of Kngineirs. not exceeding
eight dollars per day. and their assistants, n<»t exceeding four dollars ]»ei'
day. Many supposi-d that Kngiiu-ers would hire hands at a less pi-iee,
and receive for themselves the full ]tay as authori/.ed by law. We soon
discovered that some specific price and method of payment had to be
adopted l»y the Board, so as to guard fraudulent speculations ofi" of the
Swamp Land Fund. The whole subject was referred to a committee,
which resulted in a report and adoption of rules and regulations, fixing
the sum of eight dollars ]»er day foi* the Engineers, and for their assist-
ants, three and a half and four doUai's per ilay ; and requiring the En-
gineer to nutke an affidavit that they were actually and necessarily em-
ployed on the work the number of days charge<l. and that the Engineer
is not directly or indirectly interested in the amount to be received by
his assistants — requiring the Engineer, in all cases, to re]»ort nwmthly.

Having required the Engineers to rej)ort a copy of their work monthly,
the next thing to be done was to adopt some i)lan b}' which we would se-
cure a uniformity of reports.

The Engineers were assembled to determine upon the most intelligible
and simple form. They reported a system of work, which Avas adopted,
and the President authorized to procure the necessary books. In these
books we require the Engineers to report monthly, before we allow their
accounts. In this way, we always have their worlyln-fore we pay for it,
so that if. from any cause, an Engineer should not finish his work, we
can give it to another, who can commence Avhere his predeces.sor left oflf,
without confusion or loss to the State.

This brings us up to the time when we were fairl}' ready to do our
work systematically. Let us now consider what has been done, which
will be better understood by considering the Districts separately, under
their own appropriate heads.

T>ISTU1CT No. 1.
Gkoruk 11. t.....,..viiD Kiiiriiioer.

^Vl•l■ 1 III

• .1.-. I iiji>»- wviii riJiiiirmiMi m ur. .-MutiT (iniiit. Iniviii«; tor IV-

. purpM^fH. ni uiMli«|nitf(| Swamp \a\w\. tiltv-tliive tri(.usaii.l

iii<lri'«| iiiul •.ixtyiiiiif juiH's.

Tlu- KiiL'iiH-.T iiit'onn^i »> that in two thousand sov»ii liiiii.lrf.l and

! thf Aiufricaii hivision thnv will ho iioci'ssarv for re-

thouMiiiil two iiiiii.irt'.l and titty-niiu' vanls ofc'iuhjinlv-

iito and KfathiT Uiwr hivision. one luindri'd and

1 thn-o hiunlrvd and HlloiMi yards of enil»an!vnKMit ;

lakin^ Olio liiiiMlrtMl mil I'orty-Hvo tliousan«l Hvi* hnndn-d and ninetv-

""'"■' ii>..-f. ... -i.j niiU'H un<I lour (diains, whitdi (inciiidiiii,' tlu'

: ort* thf sfi'paiji* wator an<l drainaiji' from thf
• 'U1III-. .III. r in.- II " is I'stiiiiatod t«» I'ost thirty-.sovon thousand

">•' luindri'd jind »hi •lollars. Thi> amount of rochinnitioii fund

i livi- hiindrt'il and Mixty-sfVi'U (hdlars. there
itM'ii thousand six hundred ami thirty-one dol-
1 •»••♦ " in to warrant u« in saying this District may I>e

idy and \ ivelaimed.

ri»e Ki IIS u^ that he will he ready to nmke his tinal rej)ort

iIkhU ill* • •^.>. I > -'^. nth of this month.
The I)i*«triet eun Ik« reeluimed hy u levee aloiiij the Itanks of tlu-
II the K' reports, we will at once act upon it, hy

!te iilan i : hy him. or some other plan hascd upon

\Ve arc iopurid to advertise thirty dayw to receive
work, and it is estimated that the w<»rk can he done in
yw more. In hIx months the District ought t(^ he jiermancntly
i i.
Fnnii the Surveyor-Cfenenil's HeiM>rt. there ha** heen sold forty thou-
sand aereM of Swamp liund within the District. whi( h would leave thir-
icon thoiisuiul five hundred and si.\ty-nine acres vacant and suhjeet to
entry. The punhu-crs of the land have paid into the TreaMirv twenty-
tive ihoi|.,iin.| t«iit \ ..lirlit dollars and twenty-two cents, which l»clongs to
the I' -lilt ot' this there has lu'i-n allowed and |>aid to the Kngineci'

and li lilts, the sum ot' two thou-iand six hundred and eighty-seven

(lollarH and tweiitv-Hve cents.

DISTHK T No. 2.
li. (t. Lekt Engineer.

The petitions for this District were tiled May thirtieth, eighteen hun-
dred an<l sixty-one. It lies in Sacramento County, hounded on the north

by the Ajiu-ricaii Eiver. soutli hy Tyler's sloui^li. ]\rokoluiniie River and
Blu-loii's s|(r.ii!;h, east hy tlie liii^li lands, and west by the Saei-anicnto

Eiver.

From the Eni!;ineer's montlily report, avc learn that the District eon-
tains forty-one thousand seven hundred and ninety acres olSwani]* Land,
of Avhieh ei^ht thousand three hundred and eighty-five acres are claimed
]>v the Unitc'l States, and which will, no douht, he proven hy attidavits
to be the pro])erty of the State. After deductini,' that amount, however,
there ivmains thirty thousand four hundred and three acres, ijivini; us. for
reclamation pui-j>oses, thirty-three thousand four luindi'ed and three dollars.
The total cost for survey, salaries of Kn<;ineers and assistants, computa-
tion ol' eartliAVoi-k, preparations of maps and ]»rotileH, for the use (»f the
Board and conti-actors. an<l ot her inciilental exj)enKes. up to date, amounts
to two thousand foui- hundred and fourteen dollars and thirty-seven cents,
which shows a cost of sixty-five dollars \)vv mile of levee, or seven cents
and two mills per acre.

The reported lenii;th of the levee will be thirty-seven and thirty-five one-
huiidredths miles ; of which five and three one-hundreths of a mile will be
tw<» and a half feet hi:;h ; twenty-eiiiht and fifty one-hundredths of a mile
will be three feet hii^h ; three and nine-tenths of a mih> will lie three
and a half feet hii;h ; one and thirteen one-hundredth^ of a mile will lie foui"
feet hiirh ; two and forty-five one-hundredths of a mile will be five feet hiixh ;
thirty one-hundri-dths of a nule will be six feet hii^h. and fifty-tour one-
hun<lredths of a mile will be eiijht feet hii;h — maUini; the total amount of
earthwork two hundred and seven thou.sand nine hundred and seventy-
six cubic yanls ; which is estimated to eost twenty-six thousan<l four
hundred and forty-one dollai-s and six cents. The dam. and f1(»od-<xate
will cost three thousand five hundred dollars. Thus it will appear
that thirty-two thousan<l three huntlred an<l forty-five dollai's and forty-
three cents would be the t<jtal cost of reclamation ; which, when de-
ducted from the whole amount, would leave one thousand fifty-seven
dollars and fifty-seven cents for future incidentals.

A levee alon<^ the baidvs of the streams, with a f1o(»d-:;ate to let out
the seei)au;e water after the rivers fall, will very etfectuallv reclaim this
District.

This District will ])i*operly include the City of Sacramento, and will
eost less than to reclaim that part below the city, in a tract by itself
The Eni:;ineer. in his re])ort thus far, has not considere<l that the Ameri-
can Eiver must be leveed, and the water kept out,V)efore his District can
be reclaimed; and in making a final estimate, it may l»e found that one
dollar per acre, for tlie Swamp Laml in the District, will not be sufficient
to reclaim it ; but the City of .Sacramento can easily raise the balance
by suViscription ; after which, the reclamation can be completed in ninety
days of u;ood weather, if a sufficient nundjcr of hands can be had to d(j
the labor required. Cross levees, from the river to the hi;i:h land, can
only serve as so many dams to hold the water when it comes in from the
American River, back of Sacramento City, and would f|o more harm
than if no work had been performed, as was the ease in the late and
disastrous overflow of Sacramento City.

DISTUU'T Xo. ;i.
AbdLi'Utii Li. Winn Kn'Mnoer.

li..- p.-tition for thin Di-*!!-!*! WHS tilc.l June rirst, oi^rhtcon Imiidiva
tiul M\«v..ii,.. It IS in SacranK'nto C.Minty. on (;ran<l Island, wliich is

!•> HiviT and Sti-atnlMiat .sloiii^h. It tontains

• liundri'd ami sixty-nine aeies. The State

■ n tif.if,ahd and Keventy-lour a<Tes, leavinjr two tliouHand

1 uikI iiiiK'ty-live aeren vaeaiit. There has" heen |)aid into

in- i>«'aHiirv, lour thoiiNund Hixty-thrtH* dollars and rorty-ei«;lit cents,

^•|'''' '"■' " '" *''*' nintriel. Out ol" this, there has heen allowed and

)'!»•''•»">■ I rand HMHihiantH, twelve liundred and eii,dity-seven dol-

hirn and i n > i> uve cents.

Th»' Kn-iMcer inrornis us that he will l>c ready to make his tinal report
»t our next I to .lollar per acre will reclaim it; the

.vvM«T^ .»t' ]»• to «ontra<t lor the work ot" rechmm-

ond and ample security tor the completion

' limed with a levee around the Island, and

urei- iIwhI i^'ales to let oU the Keei.a;;e alter the fall of the river. Its

• ' '^ ^^ - •'•"!» the title and the hi^h water of the Sacramento

oat slouch.

• '•• ' iho lK>t»t land on the Island are wealthy, and deter-

'ine«I to the re<-lamation at any co>i it may retjuire. The land

' !- at the niouthof tin' San Joaipiin and Sacramento

is one. I are Very similar in <piality. all heing of

L;ieul vuiui* lor u^ru-ultural pur|Nisvs.

I)lSTi:i(T No. 4.
Anukkm II. J.v('KS4t.\ Engineer.

The pititl-'U for this District was filed on the sixteenth day of .Inly.
eighti-en Imndred anil sixty-«>ne. It is in Sacramento County, hounded
by tieorgiana Hloui;h.' Mokelumne liiver. and Tyler's slough, and is
known by the nante of Tylers Island. It embraces eight thousand acres,
all sold. There has been paid into the Treasury two thou.sand and tift}-
six dollars and Hcventy-two cents, which belongs to the District. There
has been allowed and |»aid. to the Kngineer and assistants, the sum of
nine bun' torty-«Mght dollars and seventy-Hve cents.

From I I leers report, we gather the information that the Island

is low. and nearly level. elevate«l above high tide an average of only two
feet — tlie first five miles from the north gradiuilly falling from an eleva-
tion of seven or eight feet down to the geneial level. The surface is
highest at the wator. and gradually sinks towards the interior; the
streams retain their depth clo.se up to the banks, which rise almost per-
pendicular out of the water; the soil is loam}' clay, not easily washe<l ;
the currents, except in the greatest floods, depend on the tides passing
up and down, as thevebb and fl<»w. There are no roads, and the ranchos
do not avenige more than forty nxls in width. Kvery indi of this is
highly valued ; eighty acres, half tule, sold not long since for six thou-

sand dollars. Mr. Tj'ler estimates his raneho at forty thousand dollars —
less than two hundred acres of it is now fit for cultivation.

The^<e facts alone will insure the speedy- reclamation of this District.
The Eno;ineer has coni])leted his field work. and. by the ne.xt meeting,
we expect his final report, with all the maps, profiles, estimates, and
plans, for the entire work of permanent reclamation.

DISTEICT No. 5.
G. C. HoLMAN Engineer.

The petition for this District was filed July sixteenth, eiiihteen hun-
dred and sixty-one. It is in San .loaijiiin County, in Townshij) four north,
Rani^es four aiul five east, and Townshij) five noi-th. iiaui^es foui* and five
east, Blount Diahlo meridian; extending from a slough near the south
line of Township four, to Mokelumne liiver, and east of the South Fork
of said ^Mokelumne Itiver. It embraces twenty thousand acres of Swamp
Land; of which the State has sold thirteen thousand one hundred and
twenty-four acres; leaving vacant, six thousand eight hundred and
seventy-six acres.

The sum paid into the Treasury, belonging to this District, amounts to
five thousand nine hun<lred dollars and seventy-seven cents. Out of this
there has been allowed and ]tai<l to the Engineer and bis assistants, the
sum of five huiulred and eleven dollars.

The P]ngineer says: "This i)istrict may be regarded as a simple j)lain,
without ineijualities of surface, being mostly Tide Lands, and conse(iuently
not recjuiring strictly that class of engineering requisite to tlelineate con-
tour of surface, or the meander of rivei-x. In fact, so uniform is the level,
and so distinct is the high wati-i* mark, that a peixiii with an ordinary
correct eye, though unskilled in engineering, could coi»struct the neces-
sary embankment ami levees. For a distance of ten miles irom the ])oint
of beginning, embankments have been, for the most jtart. constructed;
so that in ordei- to save expenses, and, also, in practicability, 1 have fol-
lowed and ado])ted them as jtart of the work."

The land in this District is ver}- rich, and equally as valuable as that
in District Numl»er Four.

The final report of the Engineer, with the maps, profiles, and plans,
with the estimates necessary for the Board to determine uj)on some plan
for reclamation, is expecteil at the next meeting.

We see nothing to prevent the speedy reclamation of this District.

DISTEICT Xo. 6.

W. B. Powell Engineer*-

The petition for this District was filed July sixteenth, eiichteen hun-
dred and sixty-one. It lies in Tulare County, and is described in the
petition as : " All the Swamp Land lying east' of Section sixteen. Town-
ship eighteen. Range twenty-six east. Mount Diablo meridian, on each
side of the Kaweah Eiver, and between said Section sixteen and the
Sierra Xevada Mountains."

Tl.o District ernhraoes nhout six thousand five InuKlml acres all of
. Inch has hcen s.,|.l. ami the iMirchase.-s have pai.l iuto the Treasury
the sum ot two th.Misaiid four Inmdrcl and ei.rhtv-two dcdiars The
Kni,nneer says in his report, date.l Decnnher eleventh •

• Nearly the whole of n.y District is covered with a dense .r.-owth of

illow. trom two to forty feet hiirh. filled with hrier hushes aiul -rape

ries. tormina an almost iiui.ciK.trahle thi.kct. in c.nseouence of which
1 am <-omiK-Iled to use all my assistants us axemen, to make reas.,nahlo
|.n.i;,vss riic plan I a.h.pt 1 loiMoive to he the most practical to
ol.iain the Ifvel-* o| tlie District with the least expense."

Tlifrc have Ik-.mi no accounts present. •■! ,,r :.ll..vv,.d for the services of

igineer and as*«iKtttnts in thiH District

DISTRICT Xo. 7.

John F. I'KARonv Kn<«-ineer.

The petition for thix District was filed June twentieth, citjhtccn hun-

•d and sixty-oiuv It lien in Solano County, and is houlidcd on the

rth l.y Liixla slouj^h. nuutU hy Tlpinos Hanch. east hv Cache sloujrh,

I went by hiirh land. It einhmces four thousand five hun<lie<l and

rhty aercH of Swamp Land, all of which has heen sold, and the pur-

isers have paid int<» the Treasury two thousand thirty-one dollars

I twenty-six cents, whi.h heloiiirs to the I)istrict. Out'of this there

.. \uu'u allowed and paid to the Kiii;ineer and his assistants, two hun-

ty-two dollars. .\l theAu^^ust meetini; of i he Hoard, the

• his final report, from which we learn that the cost of

ition will he nine thousund one humlred and twelve clollars. giving

I'orlion of one <lollar and niiiety-ei^ht and a half cents to the acre.

that fiMir thousand five hundred ami twenty-three dollars, and the

-t of survey, is the «lift'erence hetween th«' amount to the credit of the

I ' -trict. and the amount re<piired to reclaim it. This amount, according

the Her' Act. must he suhserihed niid paid into the Treasury

''»re wi' ■ I- ill) order for reclamation.

riie KiiiiiiKiT in his report says: -The land is pt-rfectly level, and only

indated hy hii;h spriii:; tides, whij-h cover it to the depth of ahout six

lies, and inteiHeeted hy .several sloughs, as shown in the ni:ij>. The

liter rains have very little effect in raisini; the water on this land, on

!i count of (.'acho h1oui;Ii, which acts as a <lrain for tjie waters coming

' m Cache creek and the Sacnimento Hiver. Therefore, to reclaim said

I. it will only he necessary to raise a levee on the hanks of Linda and

he sloui^hs. and at the north and south ends, and to dam the sloughs

lining the land, and wlii< h empty into the first named sloughs. The

whole to he done in the following manner: the levees to he raised hy

digLjiiii; a trench or ditch the whole length of said levees, and at least

Bixteeii inches from the hase of said levees, and inside. At every slough

there should he estahlished through the levees, and on one side the slouglxs,

a hox culvert, with outMide flood-gates, to drain the surplus rain water

and seepage."

There is nothing to prevent the j>ernianent reclamation of this District,
AS the owners of the laiul have exj>ressed a willingness to complete the
work for the sum due to their District from the State Treasury.
3

DISTRICT No. 8.
Andrew R. J ackson Engineer.

The ])etition for this District was HIlmI July sixteenth. ei<^hteen Imn-
dred and sixty-one. It lies in Saeraniontu County, and is Ixjunded on
the north l)y the Old Sacramento River, east by Geoi-i^iana slouu;h. south
by the .San Joaquin River, and west by Jackson sloui^ii, and is known as
*' Andres Island." It lies alongside of Tyler Island, embraces seven
thousand six hundred and twenty-four acres, all of which have been sold,
and the purchasers have |)aid into the Treasury', one thousand nine hun-
dred and seventy-two dollars and forty cents, which belongs to the Dis-
trict. Out of this there has been allowed and ])aiil to the Engineer and
his assistants the sum of nine hundred an<l seventy-nine dollars and
twenty-five cents.

The Kngineer. in his monthly rejjoi't, says:

" Tiie low ](laees on the Sacramerito bank are ne:irly all leveed, a dis-
tance of nine miles, to Jackson slough. The tirst half mile along that
slough is a willow thicket, and the ground is sutticiently firm and high to
make a good emViankment, but the next seven miles (to the mouth of the
Mokelumne.) is low and wet. and will be wry ex])ensive work. I ran
courses as near parallel as ])ossible to the bank, and trust that the level
will enable me to find a better location for the line of levee.

'" The Island, you ])erceive by the map. is long, inirrow. and crooked, and
I think by running a few contour lines across. I shall be able to find some
less expensive means of ilraining it. 1 am unable, before levelling, to
ado])t the above seven miles; the i-i'maindei- is good. The Island is
thirty-three miles in circumference ; it has three large sloughs, but they
do not promise to be of much benefit as drains."

The Engineer is now done with his field work, and his final rej)ort is
expected at the next meeting.

There will be nothing in the way of reclaiming this District, as the
owners are determined to have it done.

The present estimate of the Engineer shows that there are thirty-two
miles of levee. re(|uiiMng sixty-three thousand nine hundred aiul twenty-
nine cubic yards of embankment, which, together with all the labor
necessary to reclaim the Islaiul. will cost nine thousand six hundred and
seventy-two dollars and twenty-one cents. From this sh(jwing, we con-
clude that it will cost about one dollar and fifty cents per acre.

DISTRICT No. 9.

John T. Peabody Engineer.

The petition for this District was filed July seventeenth, eighteen hun-
dred and sixty-one. It lies in Solano County, and is described as •• com-
mencing at the southeast corner of the northwest quarter of Section
twenty-six; thence, extending down the water front, to the northwest
corner of the northeast quarter of Section eight; thence, following the
line of segregation, to the place of beginning ;" all in Township three
north. Range one east, Mount Diablo ineridian. It embraces nineteen
hundred and twenty-five acres, all of which has been sold ; and the pur-

r.'

chnsirs have paid into the Tivasurv fourteen hundred and thirteen dol-

hii-s and titty i-ents. whiili hohMi^s to this l)istriet. Out of that sum,

there lia«« heeii ulh)wed and paid to the En«;ineer and his assistants, ono

hundred and forty-five (h>lUirs. At the August meetin^^ of tlie Board,

En;rineer nnide his tinal report, from whieli we learn that the cost

reehinmtion will he three thousand eii;ht huiulred ami forty dollars,

most two dollars per aero.) so that nineteen humlred an<l t\venty-one

~ and the eo^»t of survey must he sul.scrihed and paid into tho

ry hefon* we ean enter an order for reclaniation.

11. 1- Knj^ineer says, in relation to this District, that the " land is en-

. ly level, and inundated at stroni; sjirin^' tides, which cover it to the

'.. pth of ahout six in(dies. and is intersecte«l hy severtil small sloui^hs, as

' '.wn hy the map. The winter rains have very little etfect in raising

water on this land, and its proxinuty to Suisun Buy prevents its

ii;^ atliM'teil hy the rise of the Sacramento Kiver. Therefore, to ro-

im said land, it will only Ik> necessary to raise a levee alonj^ the hanks

Suisun lUiV and the Montexumn slouirh, and to dam the small sloui^hs

ptyinjr into ."sujxin Hay and Monte/.unni sloui^h ; the whole to he done

the fo||owiii<i manner, to wit : the levee to he raised hy diiiixini; a

nch itr dit«h the whole leni;th of the levee, at least sixteen inches

m the hasf of the leve«'. and inside."

This will an-wer the purpose, with the necessary flood-;;ates. There
il he no «louht alM>ut the speedy reclamation of this tract of land,
soon a** the owners have a^jreed (as they will) to complete the work
the money Indongin^ to the District.

IHSTIMCT No. 10.

L. r. MAKhiiAi Kni^ineer.

I il.' jutition for this District was file«l July seventeenth, eitrhtcen hun-
d and sixtv-one. h is in Solano Tounty. and joins nuinher nine in the
itre of Section tw«'nty-six. Township three north. Hans,^' one east,
lint DiaMo meridian.'thence up and aloni; the Sacramento Hiver to
termination of the Swanip Lands s(d<l hy the State. It contains
-•Ive hundred and twenty-eii;ht and t\i\y one-hundrcdths acres, all sold.
ere has lieen paid into the Treasury nine hundred ayd ei«^hty-five dol-
s and eiirhtv-one cents. whi< h helongs to the District. Out of this
- heen allowed and |mid two hundred and eleven dollars for Engineer
1 assistants.

At the Septemhor meeting of the Board, the Engineer made his final

i.ort. The cost of reclamation will he two thousand and seventy-nine

lars. J»eing one dollar and sixty-eii;ht cents per acre. The sixty-eight

cents per acre, and the cost «»f survey, must he raised and i»aid into the

Trea-urv heforc we can enter an order for reclamation.

The Engineer in his report says: •• The overflow never rises higher than
two feet, and fixes the levee at four feet high. The line of levee is cut
hy five sloughs; one. thirty-three feet wide and eight feet deep; one,
tilteen feet wide and five feet deep; one, six feet wide an»l five feet deep;
one. eight feet wide and four feet deep. The eastern extremity is seven
inches hiudier than the western; yet. owing to the narrowness of tho

river at the eastern boundar}', the levee at this point must not be less in
heifijht than the western.

There is nothing in the way of reclaiming this tract, as the owners of
the land have expressed a willingness to do the work for the money prop-
erly belonging to the District.

DISTKICT No. 11.

NO E N' <} I N E K R E L E C T E I) .

The petition for this District was filed with the Board on the seven-
teenth dav of July, eighteen hundred and sixty-one. It lies in San
Joaquin County. l>etween the San Joaquin ]?iver and Black slough, in
Township two north, Kangc five east, einliracing fourteen huiidri'd and
ei*ditv-seven acres, all (»f which has heen sold, and four huiidi-ed and
sixteen dollars and thirty-nine cents paid into the Ti'casui'y, which l>el<)ngs
to tlie District.

This is one of those cases where the ]>etition docs not ini-hide ail of the
land susceptible of one mode of reclamation. From the jietition. it a])-

Ssars to be an island, and the ])arties jirojiose to <livide it. to which the
oard will not agree, and therefore it must wait until our rules are com-
plied with by the ]>etitioners in olitaining the names of the owners of
one third of the land included in the whole island.

DISTRICT X.>. IL'.

X O E N G 1 .N E E II E L E C T E I) .

This District is in San Joaquin County, lying between .Middle Hiver
and Latham's slough. To\vnshi]»s one and two north. Range four east.
It a]>pears to he an island, and as the petition did not include all of the
land susce|itibie of one mode of I'cciamation, it was sent Ijack for further
action. an<l has not vet been returned.

DISTRICT Xo. 13.
Charles C. Tracy Engineer.

The petition for this District was filed on the twenty-second day of
August, eighteen hundred and sixty-one. It lies in Sacramento County,
Townships four, live and six north. Ranges five and six east. .Mount Dia-
blo meridian. It is situated in the forks of the Cosumnes and Mokcl-
umne Rivers, running back east to the east line of Swamp Lands, and em-
braces eight thousand four hundred acres, all of whicli has been sold.
The purchasers have paid into the Treasury three thousand one hundred
and tifty-four dollars and ninety-two cents, which belongs to the District.
Out of this has been allowed and paid to the Engineer and his assistants,
one thousand seven hundred and fifty-four dollars and fifty cents.

The petition for Xumber Fifteen was presented to the "Board on the

twi-niy-sixth iluy of Aus^ust, eii^liU'cn Iniiidrcd and sixty-one. It is in
SacraniiMitf) <'<>nnty. on the nortli side of the C'osmnn».'s IJivor, below
llitks' Hiidije, and l»el«)n^s to Thomas MeConnel. It only embraces
eii;lit hundred a«res. and thouifh srt ajtart as a District, it'was subse-
quently titund t«. br part of District Number Thirteen, and by resolution,
wa« added to it. and the Engineer tlirected to rejiort accordint^l}-. There-
fore, the District now contains nine thousand two lumdred acres.

The Kn^ineer has eompleted his field work, and expects by the next

etin^ to have his final report ready for examination. lie is now satis-

II. d that one dollar per aere will nt)t reclaim the land. thou«;h he has

asHurances from parti«'s owning the land, that the necessar\- sum will be

• •scribed to coiiiplete the permanent reclamation of the District. The

. ee in this Di.ntrict will be about thirty miles in leiiirth.

i>isii:icr No. 14.

T. .1. I »» u<"'in Kn«fineer.

rin- petition for thin District was tiled with the ( 'ommissioners on tho
cnty-flr«*l daiy of Aujjust, eii;hteen hundreil and sixty-one. It is situ-
d in Napa and .Sonoma ('oinities. and is an island, bounded by Sonomti
ek and an unnanu'd slou;;h, embra«-in^ lands in jtarts ot' Sect ions eight,
le. ten. sixteen, and neventeen. in Township tour north. I{an<re five
A, Mount Diablo meridian. The land is all sold, amounting to twelve
iidre«l and forty-three and seventy one-liundredths acres. The j>ur-
isers have paid into tin- Treasury five hundred and forty dollars and
i-ty ••ents; of this amount there has been alloweil and paid to the En-
leer and his ttH.siMttints the sum of one hundred and ideven tlolhirs and
:y cents.

\t the October nieetint; of the lioard. the Engineer made his final
I'ort, fnMu which we learn that the co.st of reclamation will be five
•usanil five hundred and eighty-six dollars and lighty-foui- cents, or
•ut four dollars per acre; so that the sum of four thousand three hun-
• <l and forty-seven dollars, and the cost of survey, must be subscribed
I paid into' the State Treasury before we can enter an order for re-
iination.
rUe land, h«iwevor, is valuable. an<I may be reclaimed by the owners.

DISTRICT N... l'»
Added to District No. V.i.

DISTKICT No. IG.
A. J. Atwki.i Enginccf,

The petition was filed for this District August twenty-second, eighteen
hundred and sixty-one. It is in Tulare County, on Kaweah and Cross
creeks. It embraces all of Townshij) eighteen south, Range twenty-four

east; Township eighteen south, Eange twenty-three east; Sections thirty-
three, thirt3--four.''thirty-tivc, thirty-six. twenty-six. and twenty-tive. in
Township seventeen south, Kange tweut^-three east; Sections nineteen,
twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-tive,
twenty six, twenty-seven, twenty-eight, twenty-nine, thirty, tliirty-one,
thirty two, thirty-three, thirty-lour, thirty-tive, tiiirty-six. in Township
seventeen south. Kange twenty-four east ; Section thirty-one. in Town-
ship seventeen south. Kango twenty-tive east ; Sections six. seven, eight,
nine, tifteen. sixteen, seventeen, eighteen, nineteen, twenty, twenty-one,
twenty-two. an<l the south halt' of Section fourteen, in Township eigh-
teen south. Range twenty-tive east ; north lialf of Section twent^'-three,
in Township eighteen soutii. liange twenty-tive east ; Sections one. two,
three, four, in Township nineteen south. Kange twenty-three east; Sec-
tions thirteen, twenty-four, twenty-tive. aiui thirty-six. in Town.ship eigh-
teen south, Range twenty-three east. Mount Dialdo meridian.

It contains tliirty-four thousaiul seven hundred and sixty-tive acres.
There has been jiaid into the Treasury six thousand six hundred and
forty-two doUars and tifty-six cents, which l>clongs to the District, and
nothing as yet allowed for Kngineci- and assistants.

We iiave a rei)ort from thi- Kngineer. from which we learn that he has
been engaged in making a pi-climinary survey, for the purpose of arriv-
ing at what is necessary to L)e done in reclaiming his District.

He says: "We find almost insurmountable barriers to obtaining a full
and correct topography of our District. The country in many i)laces is
covered with water, to such a depth and extent as to render it ditticult to
ford it ; ami with trees, brush, tule, etc.. to such an extent, as to render a
boat wholly useless."

This swamp is formed entirely of the waters of Visalia creek, and is
overtloweil in winter only, say from November and December to June
and July, varying with the season. The sole cause ot" the overfiow is the
want of sutticient channel to carry oti" the waters of \'isalia creek; tliis
creek being generally al)out forty feet in width, and trom tive to ten feet
deep, tiows about two and a half miles through the lands i-epresented as
Swam]) Lands, overflowing its banks in ])laces where the passage has
been obstructed by trees, etc., which in many places form natural dams
and turn the water from its channel.

On Section twenty-nine. Town.ship eighteen south, Range twenty-four,
it loses its channel, and pours its waters over the surface of the ground
some two miles in width and seven miles in length. The proper mode
of reclaiming this tract is: tirst clearing the chaniiel of Visalia creek of
all obstructions, and erecting levees in such places as may be necessary,
to the point where it crosses the Section line between Sections twenty-
eight and twenty-nine. Township eighteen south, Range twenty-four
east, from which point its waters must be taken in a southwesterly di-
rection, a distance of two and three-quarters miles, by an artificial chan-
nel, to the bed of a deep slough, apparently the bed of a former stream.

The Engineer thinks he will be ready to report his field work in full tit
the next meetiuir.

•SA

I'lSTKlcT Nc. 17.

IM.AN liKAlMONT HllgiuCCr.

for Ihi^ Di^trirt was liled on the iiinoteeiitli ilay of Sop-

11 huti.liv*! uimI sixty-one. It lies in San .loaciuin County,

tiie »a-i M.le ol' tlie San Joa«|uin Hiver, between Walthal sloui;li and

eneh {'n'.u\> eivek, einl.nuinj; ten thou.santl nix liundivd andlitteen

run. Tlu- ownoPH have paid into the Treasury. si.\ thousand live Imn-

.'d and Hity-three dollars, which l)elon;;s to the District.

We have H rtnal rojM.rt from the Kn^jineer. dated Deceniher ninth,

).'- en hundrt'tl uinl «ixty-one. with all the required inajts. protiles and

iii's. From his report we harn that the cost of reclamation will

hundred and ninety-six dollars and eii,dit cents

1 :ii!d sixty. two dollars and titty-six cents I'or en-

ven cents p^r acre. The levee will he sixteen

ihs miles Ion;;. The pe«»|)le are already at

•rk. lillih:,' up the sloui^li on their own responsihility. This District

11 he rral;. lor letting, as soon as the HoanI adopt the plan, andean

•oive proposttiM for the work, Thero is n(»thin^ in the way of the iin-

< diate reclamation of thi.s District.

DISTKKT No. 18.

Amos Matiikws En/rincer.

Tho iMJtitiou for thiH District was Hied on the nineteenth day of Sop-

iiiher. I ' ' ' hundred and sixty-one. It lies in Yolo and Solano

unties on the north hy Svcamore slou;^h and Knight's Land-

i hy the Saeramt-nto iJiver, Sutter s|ou«;h and Sf»:nul»oat

southwest hy Caehi' creek, ami west hy the liiirli lands —

oiK> hundred and sixteen thousand three hunrlred and thirty-

>ot Swamp Land; of which there have heen sold ahotit ei;;;hty-

\ thousand ocres, leuviii;; vacant and suliject to entry, about thirty

•usand three hundred and thirty-ei^ht acres. The jiurchasers have

id into till- State Treasury tlurty-seven thousand seven hundiud and

:hty-eiLjlit <hdlars and twonty-ei^ht cents, which helon;.js to the Dis-

'•t.*

It is helievid that this District shouhl en<l at the Miners' slouirh, on

'• south. The Kn^ineer lias heen directed to examine it and make an

iicial report, which may result in forinin;^ other Districts, helow

i lid's' slouch.

This is the largest and most important I)istrict j'et estal»lislied hy tlie

' "mmis8ionei*s. It is overflowed, not only from tho 8acrament(; iiiver

d tho sloughs along its boundary, but from the Coast IJange, on the

•St ; torrents of water ])our down into the District, through I'utah and

' ache creeks.

We do not thiidv that we ought, at this time, to advance any definite
i<lea of how it should be reclaimed, for an opinion of ours, now slia<lowed
forth, wouUI only serve to agitate the subject, and might confuse the
Engineer in the course of his survey and examination. From tho infor-
mation now before us, wc think ono dollar per aero for the Swamp Land

will pcrmaiientl}' reclaim it. But the tact can only be determined from
the Engineer's report.

No report from the Engineer.

DISTRICT No. 19.
Aaron Van Dorn Engineer.

The petition for this District was tik-cl September nineteenth,
ei(>-hteen hundred aud sixty-one. It is in San Mateo County, bouiuled on
the east by the Bay of San Francisco, and on the west by the Kanciio
Buri ]5uri, being ])arts of Townships three soutli. Range tive west. It
contains two thousand seven hun(lrt.'<l acres, of wiiich the State has sold
two thousand two hundred and twenty-four acres, leaving vacant four
hundred and seventy-six acres.

There has been paid into the Treasury two thousand and forty dollars
and eighty-nine cents, which belongs to the District ; out of this there
has been allowed and ])aid for Kngineer and assistants the sum of tive
hundred and twenty dollars.

From the report of the Engineer we learn that thi-ee thousand rods of
levee, and thirty-six dams, will be neeessary to reclaim this District,
which will cost six thousand six hundred dollars, making nearly three
dollars per acre ; but the land is exceedingly valuable, and owned by men
who are able, willing and determined to take the contract for reclaiming
the District at the price that will lie covered by the amount of money
due to the District, and, therefore, we can see no rea.son why this Dis-
trict may not be imme(liately reclaimed.

At the next meeting, all of the maps, charts, profiles, plans, and esti-
mates, will be before the Board.

DISTRICT No. 20.
Phillip E. Dresciier Fngineer.

The petition for tliis District was tiled October twenty-second,
eighteen hundi-ed and sixty-one. It lies in Sutter County, between Butte
Creek slough and the Saci-amento River, and north of the line between
Townships fourteen and fifteen noi'th. Range one east. It embraces ten
thousand acres, the most of which has been purchased ; and the sum of
four thousand two hundred and sevent}' dollars has been paid into the
State Treasury, which belongs to the District.

We understand that the high water has prevented the Engineer from
commencing his labors up to this time, and as we have no report from
him, there is no other information in our possession.

DISTRICT No. 21.

Clement B. Ellis Engineer. P

The petition for this District was filed October twenty-third, eighteen
hundred and sixty-one. It embraces two thousand six hundred and fif-

:io

toeii acres, all sold ; and the purthaiJers have n«ul ,nt« ♦> t

i:,:;:;:'u::!^i^Lr;;:'..''''"--'-' «'"""- -^^^^^^^^^^^^^

irLk'V ''^^^'•!-^'P"'"tof the marsh. I meandered

= ^" '^"^ Ju'Ktion with the San Antonio ;

-an Antonio, to the head of naviga-

velhn^r a distance of ten and forty

• hundred and thirty-ei-ht and ninety-three

\'''' l*^'""^' I»'u<ed from two to four chains di».

^n n-quired. and numU-red e.,n.^ecutivelv from one

. • ; i/''>s'hty-n.ne. with the numhcr of the District on

•-• |. «t numUr one representing, the necessary height of em

J !'<»" the same level."

ii report, hut he ha-i completed

u lev .iu\ , Will U- ahh- to make his return, and be

. ol the Hoard m adopting a plan of reclamation.

'• r and aH^,^tants. four hundred and .six dollars

. ; '^"'.^- "thers, contains valuable information in rela-

T ,n '^*'""*'. *^'*>' '*"^''- ^"^ ^^ fe''^*«^' t»'*^^n» JiH in lull.

^""'*' " 1 'i to an infonvenient lenL'th.

I'lSTIiirT Xo. 22.

rU'xr.ix Beai'Moxt Engineer.

The petition for thii. Di-trict \*-as filed Oetobe^wentv-seeond. ei.diteen
I"-'"'"! and sixtv-one. It i^ in San Joa.piin Onintv: an.l d.'scriled an
ing at the mouth of the .Mokelunine HiveV; thence up said
n.vr. i.. the south fork th.r.-..f; tiMMire. „p .aid south fork, to the head of
I otato Hh.ut'h : t!..-n... .l-.u,, wM H-.t •<. the place of beginning.
. ' '-ighteen and eighty-eight one-

,"" ' " paid into the Treasurv six

' tiily-ijight dollars and rort3-.«even cents, which belongs to

The Kngineer has made no rep<irt on this District, and we suppose he
has iKin busily engaged in the completion of Number seventeen, on
which he ha-s made a very satisfactory report.

[ XoTK.— .Since writing thv ;.' ".• k-arn that the Enirineer has com-

pleted his field work, and wil . with his final rerxjrt at the next

meeting.]

DISTRICT X.. 2r.

Aaros Vax Dor.n Enorineer

The petition for this District was filed October twentv-first. eighteen
hundred and sixty-one. It lies in San Mateo County, bounded T^i the
north and t-ast by the Bay of San Francisco, west b^' the high land of
the Pulgas Hancho. and on the south by Angelo creek, being part of
Township four north. Range fi.ur west. Mount Diablo meridian f embrac-
ing five thousand two hun<lred and twenty-eight and twelve one-hun-
dredths acres, all sold. The purchasers have paid into the Treasury

eleven hundred and ninety-eight dollars and fifty-four cents, which be-
longs to the District.

We have a report from the Engineer. He informs us that the distance
run ^\ith the transit is eight miles and tift^'-two and twenty-five one-hun-
dredths chains, crossing twent^'-tive considerable sloughs over two rods
in width, besides fifteen or twenty of a less size ; five of these sloughs
are quite large ; they average six chains wide, and one of them is nine
chains wide. Their average depth below the proposed embankment is
sixteen feet, and the cost will not be less than five dollars per acre.

This is tide land, and is nearly level, seldom varying a foot anywhere,
and the average depth of overflow does not exceed six inches, requiring
a slight levee, but the sloughs will be very expensive. Notwithstanding
the heavy expense of reclaiming these lands, they are so valuable that
we may reasonably concludi' that the District will eventually be re-
claimed.

Expenses of Engineer and assistants, one hundred and sixty -four dol-
lars and fitty cents.

DISTRICT No. 24.
Adolphus G. Winn Engineer.

The petition for this District was filed November first, eighteen
hundred and sixty-one. It is in Volo and Solano Counties, on '"Sutter
Island." which is formed by Sutter slough and the Sacramento River; it
embraces eighteen hundred and forty-one acres, of which twelve hun-
dred and one and twenty-one one-hundredths acres have been sold, and
the pui'chasers have paid into the Treasur}- thirteen hundred and sixty-
eight dollars, which belongs to the District.

Tiie Engineer had just iairly commenced his labors on this District
when the liood drove him and his corps from the field. We have no fur-
ther particulars in relation to it.

DISTRICT No. 2f>.
Clement B. Ellis Engineer.

The petition for this District was filed November twentieth, eight-
een hundred and sixty-one. It lies in Marin Count}', and is bounded
north by Timothy Murphy's rancho, east liy San Francisco Bay, south
and west by Punta de Qucntin Rancho, and embraces two thousand
acres, all sold. The purchasers have paid in seven hundred and fifty
dollars, which belongs to the District.

We have no report from the Engineer, and, therefore, can give no fur-
ther particulars.

DISTRICT No. 26.

Clement B. Ellis Engineer.

The petition for this District was filed November twentieth, eighteen
hundred and sixty-one. It lies in Marin County, and is bounded north
by Punta de San Quentin Rancho, east by San Francisco Bay, south and

west by Cortc Mivlera Rancho. pulilit- lands, and Piinta do San Queiitin ;
i-mbrafint; alumt two thousand aires, of which, eight Imn.lred and lorty-
rtve m-res have been sold. The imrchasers have paid into the Treasury
two hiin<Ired and eighty-tbur dollars, whieh belonj^'s to the District.

Having; no report from the Knj^Mneer. we are unable to give anv more
j)arlicularH in relation U> this District.

DISTHKT No. L'7.
John T. I'kahouy Knginoer.

Thr potition for this District was filed November twenty-second,
eighteen hundred and sixty-one. h lies in Solano County, and \»
described in the petition as -A portion of Townshij)s lour and live
north. Hango one west, enclo.sed by the high lands on the south, east,
and north, and on the west by a line a little west of the Kange line,
between I{jinges one and two west," embracing about eleven hundred
acres, all sold.

The punhasers have paid into tho Treasury six hundred and thirty-
three dollars and seventy-seven cents, whieh belongs to the District.

No report from the Kngineer.

DISTRICT No. 28.
John T. PK.\iu»r»Y Engineer.

The petition for this District was filed November twenty-second, eight-
een hun<lrcd and sixty-<»ne. It lies in Solano County, and is bounded on
the north and eant by Cache c-reek slough, on the west In' the high lands,
and on the south by Linda >b»ugh ; eml>racing four thousand two hundred
and twenty acres of Swamp Land. We are not informed as to how much
has been s«d«l, but the petitioners represent seventeen hundi-e*! and cightj-
tliree acres o!" it. The purchasers have paid into the Trea.sury ten hun-
dre<i and ninety-six dollars, which belongs to the District.

\" r. port from the Engineer.

In summing up the detaile*! accounts of the several Districts that we
have established in this State, we find they embrace three lunnJreii and
eighty-one thousand and thirty-five acres of Swamj) Land, in a fair way
for complete and permanent reclamation. Of this, the State has sold two
hundred and eighty-seven thousand four hundred and ninety-ouc acres;
leaving vacant and subject to entry, ninety-three thousand five hundred
and forty-four acres.

The purchasers of those lands have paid into the State Treasury the
sum of one hundred and forty-four thousand three hundred and ninety-
two dollars and ninety-two cents. This estimate is made up from tho
Surveyor-Cieneral's lleport on each petition as it was presented for our

consideration; so that it does not include the amonnt that has been paid
in since; or the amount of hind that has been sokl since our action on the
petitions. The increased sale of Swamp Lands and receipts therefor will
not fall short of twenty per cent, up to this time, and if the Legislature
will pass such amendments as the Act may require, and leave the fund
undisturbed, the balance will very soon be taken up.

According to the plain spirit, intent and meaning of the law, the one
hundred and forty thousand three humlred and ninety-two dollars and
ninety-two cents belongs to the District we have establif^hed ; while that
and all other money that may be collected for lands in those Districts, is
in effect appropriated, and must remain in the State Treasury as a nu-
cleus for the further sum that may be subscribed and paid in to complete
the permanent reclamation. The people now look \i\um the Swamp J^and
Act as an express contract between them and the State, and wait with
patience to see the Legislature contirm or adhere to tho article of
agreement.

PROTECTION OF LKVEES.

When the reclamation of a District is completed it must still be taken
care of; lor this j)urpose we recommend tlie passage of a Levee Law,
allowing the voters or holders of land within each District to elect a
Board of Levee Supervisors, who may hold their ollice for some conve-
nient length of time, and have complete control over the levee, under
some uniform system to be adoptetl oy the Legislature, or the Board of
Supervisors in each county. The most stringent laws should be passed
for the ])rotection of levees and other reclamation impr(n'ements, so as
to ])revent mischievous persons from cutting or otherwise injuring such
public property.

THE SE(JREGATIO.N (»F SW.V.Ml' I.A.M).

The segregation of Swamji Land has proved to be a much more impor-
tant part of our duty than we at tirst imagined. In the nineteentli sec-
tion of the Act it is provided, that it shall be discretionary with the
'' Board of Swamp Land Commissioners whether land already surveyed
and segregated under any former Act for the sale and reclamation of
Swamp and Overflowed Lands, shall be resegregated or suiweyed under
this Act; and, provided, fnrihev, that they shall determine whether the
segregation may be made by a comj)lete survey of all such Swamp and
Overtlowed Lands into Sections, or by running the line of divisi«^n be-
tween the Swamp and United States Land, and make said maps from
said survey."

Accordingly the Board issued the following instructions, which, to-
gether with the blank affidavits required, were printed with the Act
itself and sent to all the Comity Survej'ors in the State.

The County Surveyors of this State, in making the segregation re-
quired under the provisions of the nineteenth section of the Act of the
Legislature of this State, approved May thirteenth, eighteen hundred
and sixty-one, entitled an Act to provide for the reclamation and segre-
gation oV the Swamp and Overflowed, and Salt Marsh, and Tide Lands,
donated to the State of California by Act of Congress, will make such
segregation hj running only the line of division between the Swamp and
"United States Lauds, and make the required maps from such surveys.
They will not resurvey or resegregate any lands already surveyed or
segregated under any former law of this State ; provided, that the County

Survejoni shall return no lands as Swamp and Overflowed for whith thoy
do not procMiro affidavits in the lorni and manner required by the Com-
nii.HsionerH of the (Kiieral Land OtHce of the United States.

,Si,o«./. — When the lands have lu-en correctly so«,'reir:itod hv tho I'^nited
Stat.>. Surveyors no actual resurvey is necessarv. aiul no aliidavits will
bo required, nor will they be jmid'for; but if 'the line of so-rregation
Hhown by su«h Nur\-ev is incorrect, to the prejudice of the State, the
Countv Survcvoi-s will make no resurvey. but will ])n)cure all necessary
ttffitlavitH, in the form and manner required by the Commissioners of tho
General Land Office, at Washiu^rton City, concernin«r the lands claimed
an Swamp and Overflowed Latnls. and .shown on tlie township maps as
hij^h lands, and makr proper returns thereof to the Survevor-(Jeneral of
this State.

T/,ir»/. — No neeount will bo certified to tho Board of Slate Examiners
for runnii; le not absolutely neces-sary or required to complete

the line ol - ■ ion.

Fnttrih. — No account will be certified to for any work performed under
the Haid Art and these instructions, which shall exceed twenty cents per
acre for anv -rparate survey.

Fifth. — No account will be certified to for work on ma]>s that the Sur-
veyor-* Ji-neral nniy deem unnecessary or irrelevant, nor will any account
be ccrthied to until thi« ."survey or-tioneral shall approve of the niajt and
report of the Count v .Surveyon*.

At^er the tninsnns.sion of the pamphlets containini; the law, blanks.
and our instrtictions. wi- had nothini; more to do in relation to sct^i'ejLja-
tion until the accounts of the County Surveyors were ]>reBent('d for ap-
proval. We had, ne<'esHarily. to adopt some rule for the examination of
thorn ; thenfore, we demanded the Surveyor-Cieneral's certificate of tho
approval «»f the work; the certificate f)f the County Recorder that ho
had the tabular statement re«piired to be fih-d with him by the County
Survey<»r; the certificate of the County Surveyor that lie had the copy
of the map require«l ; that the accounts should be matle out in the name
of the party who ilid tho work; and then required the lollowiii;^ oath to
bo nuidf by the Kn^im-er or County Surveyor, which has to be attached
to tho accounts prcHcntod :

"I, A B. on oath saith. that I have been actually and necessarily em-
ployed on the work the number of days charged for in the above ac-
counts, and that the number of assistants employed by me, and whose
accounts are herewith returiH-d. were necessary for the woi-k, and were
actually ••mployed therein durini; the ti?ne charged for by them, respec-
tively, and that I am not. directly or indirectly, neither l»y ai^reement
nor implied understanding; ln-tween us. or otheiwise, interested in the
money to bo roi'cived by thoni, or either of them."

Ilavin;; first made and established the rule that '■ The County Sur-
veyor shall be entitlcl to. and shall receive the sum of ei^ht dollars per
day. an«l shall be entitled to five assistants, when necessary, as follows :
one ttamster. ( with horse and wai,'on, or boat,) at four dollars ])er day ;
two Chainnun and one Flagman, each at three dollars and fifty cents per
da}-, and that the Kni^ineers and County Surveyors will employ their
own assistants, and dismiss them at pleasure. And each Engineer and
County Surveyor will be held responsible for the faithful performance of
dutv on the part of their assistants."

We desired to nuike a showing to your Excellency of what labor had

been done for the mone\- we were allowing to the County Surveyors.
The information could only be obtained from the Survt'yor-(TonerarH
office ; we therefore requested him to answer the following questions :

Flr^it. — What is the aggregate amount of Swamj) I^and returned by
each County Surveyor ?

Second. — How much of it is returned as Swamp Land by the United
States Surveyors ?

Third. — How much of it has been sold l)y the Stater*

Fourth. — IIow much of the land sold by the State is claimed by the
United States ?

Fifth. — IIow much of the land s(»ld by the State, and clainuMl by the
United States, has been proved as Swamp Land l>y the affidavits re-
turned b}' tiie County Surveyors '*

Sixth. — What is the length of the line of segregation, including the
meanders of navigable streams?

Scvf-nth. — What jiortion of the line of segregation was established by
the United States Surveyors, including the line of grants as surveyed by
the United States, and as appears on the County Surveyors' returns as
Swamp Land '.

Eiijhth. — What number of allidavits have been tiled by the County
Surveyors to jjrovc up the Swain]) Land returned, ami Imw many names
are used as witnesses ?

Ninth. — What number of affidavits have been returned, exclusively
covering lands already awarded to the State as Swamp Lands by the
United States Surveyors ?

Tnitli. — Does any unnecessary or indifferent work appear upon the
maps returned ';* If so. what time ought it to have taken to have done
that portion of the work 'i

To which the Surveyor-Ceneral made no reply in w riting. but said to
one of the members Ik- would make such a return to the Legislature.
There is no law requiring him to furnish us such information, and in his
report will be the ])roper place to find it. We only make this statement
to account for the reason that f)ur re])ort does not aj)pear more in detail
upon the subject of Segregation.

We have necessarily had to obtain information from the Surveyor-
General in relation to the quantity of land embraced, and the quantity
represented, in eacli ])etition, and also the amount jtaid on the lands
described in the petition, and for such information we have had to pay a
Clerk, in the office. The defect a]>j>ears to be in the law. In future, all
of the offieers in the difterent departments of the (Jovei-nment sh(juld be
required to furnish this Board witii all the official infoi-mation to be
obtained from the records of their office that we require, tree of charge.
And more particularly should the Attornej'-General be required to act
as the Attorney for the Board, as we will frequently need such services
in condemning lands for the right of way.

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52;

DISTRICT TABLE,

ShowiiKj the numher of acres in each District, the tiumbcr of acres sold hi/ tJu
State, the numher of acres racant and suhject to entri/, the amount paid int'
the State Treasury/, and the names of Engineers.

Engineers.

No.

Total Area. Acres Sold.

Vacant.

Piiiil in.

George II. Goddard.

B. F. Leet

Adolphus G. Winn...
Andrew E. Jack.son..

G. C. Ilolnian

W. S. Powell

John T. Pe:il)«)dy

Andrew R. .lackson..

John T. Pealjody

L. P. Marshall.:

No Eni^ineer elected.

Charles C. Traev

T. J. Dewoody/.

A. J.Atwell

Duncan Beaumont...

Amos Mathews

Aaron Van Dorn

Philip Drescher

Clement B. Ellis

Duncan Beaumont...

Aaron Van Dorn

Adolphus G. Winn...

Clement B. Ellis

John T. Peahodv

John T. PeahodV

Total

60,000

43,000

17,369

8,000

20,000

6.500

4.580

7,624

1,925

1,228

1,487

9,200

1,243

34,765

10,911

116.320

2.700

10,000

2,615

6,218

4,200

1,841

2,000

1,100

4,200

381,035

40,000

35,000

15,074

8,000

13,124

5.000

4,5S9

7.624

1,925

1 ,228

1,4S7

9.200

1 .243

24.7()5

10.911

76,09S

2.224

io!ooo

2,615
0.218
3.020
1.201
2.000
845
1.100
3.000

287.491

20.000
8,000
2,295

6,876
1,500

10.000

40,222
476

1,1 SO
640

1,155

1,2001

00
26
40
57
81
39

825,048 22
27,773 00
4,063 48
2,156 72
5,900 77
2,442
2,031
1,972
1,413

985

416
3,154 92

540 30
6,642 56
6,553 57
37,788 28
2,046 89
2,071 00
1,232

658
1,198
1,268

750

284

633
1,096

89
47
04
05
00
00
77
00

935.5441 8141J.392 92

AGGREGATE ITEMS,

lUltng the total amount of Monnj rxpniifnl hy the Simvip Land Conimis-
tionrrs, /mm thr onjanization of the Board up to November 30, 1861.

nmissionen*' Salaries 63.441 50

iitin;; laws and hlunks S71 88

J iii«>nnation tVoiii Siirvoyor-liom-ral 52 5(j

Map of Swamp Land in Tiilaiv County 25 00

till' pap»'r tor Kn;;ineerK ];").', OQ

ro ront. tiirnituro, fuel, otc 241 50

SKiiKKilATION OF SWAMP I.A.Sn.

In San .loiujuin County 8025 25

In .'^acranu-nio County (jS5 75

" Colusa County 1.(505 00

Moiiti'rry County ;')))!> 00

In Suitor C«»unty 855 00

III .Sonoma County 202 50

llumlioldt County 25(5 00

SWAMP I.AND I)I.STRICT«.

1, In Sacramento, Phuer. and Sutter Counties 82,687 25

2, In Sacrament*! County 2,414 87

3, In Saeramento County 1,2S7 40

4, In Saeramento County 1)48 25

5, In San Joaquin County 1.511 00

\ '. 7, In Solano County 272 00

8, In Saeramento County.. 070 25

0, In Solano Countv.....'. 145 00

10. In Solano County 211 00

13. In Saeramento County 1.754 50

14. In Napa and Sononui Counties Ill 50

^ ■ 10. In San Mateo County 520 00

21. In .Marin County 400 00

23, In San Mateo County 164 50

Total

84,787 38

85,188 50

813.412 52

823.389 05

;i,!;\ FATII ANNUAL REPORT

OF THE

STATK SUIM'KIXTEXDENT

Pin^T.IC HSrSTHUCTION.

BENJ. P. AVERY STATE PRINTER.

A.]sr:Nru^L report

To THE Senate and Assembly of tue State of California :

The Superintondonl of PuMic Instruction lias tlie honor to submit the
Blevonth Annual Reix>rt fn>ni tho Department of Instruction, as required
by Act of May third, eighteou hundred and tift3-five.

Respectfully,

ANDREW J. MOULDER,

Superintendent of Public Instruction.

REPORT.

WliiK" thf -^ of our Schools (lurin<; tho past year furnishes

f^rounds lor 1 , ii thoy may oiil* «hiy nu-ot the requirements of our

peo|»le. thai ilav, it in ai»|>areiit from (»ur rate <»f proi^resw, must ho far
distant. IJut that rate may ami ou^lit to he greatly aceelerate<l hy tho
ado]ition of a liberal and enlightened policy hy the People's Koprc-
Hentativeri.

The increaMo in tho number and efficiency of our Schools during tho
pa-xt four «ir five yiMirs, ha^ intlueed many even of their earnest friends
and supporters to fold their hands in stupid content, and to console them-
selves with the rtdlectioii that wc have attained a very fair position in
educational mattcn* for a State so youn^.

IJut the true friend of iiroirn-ss rei;ards not so much, how much bettor
thin^ are than they used to be. as how much worse they are than they
ou^ht to be. Hirt Htandard is not California in eighteen hundred and
fifty-six. but New York, or Massachusetts, or Michigan, in eighteen hun-
dred and sixty-one.

Measured by this standard, how lamentable are our deficiencies — how
-ad our neglect of the great interests committeil to our charge I

Hut it may be urged in extenuation of this neglect, that ours is but a
young State — that we cannot reasonably ex]»ect in ten years to rival the
instituti«»ns of «)ther States of thirty or forty years growth.

The apology carries some weight, but it does not cover the broad
::round claimed for it. While other States, admitted into the Union
-ince the ado]»tion of the Federal Constitution, were slowly settled by

ladual accessions of immigrants, many of them possessing but the
rudiments of an education, who were comj)elled to wrest a home from
the savage and the wilderness, California reached her maturity at a
boun«l.

By slow toil, and amid many mishaps, other States carved out of their
scant surrounilings the materials for their social and ])olitical fabric —
ours were imp(»rted ready-maile. fitted and jointed by the highest intel-
ligence of the most enlightene«l conununities. Our people brought with
them tho civilization, the arts and the institutions of eighteen hundred
and forty-nine and fifty.

In most of these, they have since kept pace with the progress of tho
world. Why should our educational facilities, of the last moment to the

welfare and prosperity of the State, prove an exception ? The fiuilt
does not lie in our system of Public Schools, for as the Superintendent
has had occasion to remark, that system is admirably adapted to the
wants of a young and growing State like ours.

It combines, as far as the scant means doled out by preceding Legis-
latures Avill admit, all the most valuable features which experience,
learning- and zeal have embodied in the educational systems of tbe old-
settled States. All that is necessary to give life and spirit to this skele-
ton structure is a liberal appropriation of means by the I^egislature.

Without larger means than heretofore placed at the disposal of School
officers, it is unreasonal>le to expect any rapid increase in the number,
or marked improvement in the character of our Public Schot>ls.

During the past year, the numerous officers connected with the De-
partment of Instruction have exhibited increased interest and zeal in
the discliarge of their duties.

Their I'eports have been made with punctuality, and in full compliance
with the instructions of this Department.

By means of these Ilej)orts, the State Superintendent is made ac-
quainted with the condition and the wants of each of the six hundred
and eight School Districts into which the State is divided.

They enable him to present the following exhibit of the progress of
the Schools during the School year ending October thirty-first, eighteen
hundred and sixty-one.

The returns show :

Number of children in the State under twenty-one years of age
Total number last year

107,637
92,^^14

Increase during the year 14,.S23

Number of children between four and eighteen years of age
Number last year

Increase

68,395
57,917

10,478

Number of boys between four and eighteen years of age
Number last year

Increase in number of boys

Number of girls between four and eighteen years of age
Number last year

Increase in number of girls

35.667
29,940

5,727

32,728
27,977

4.751

Xuniher f»f children under four years of a<fQ
Number lust jear

Increa-se

35.334
30,932

4,402

Number of youths between eighteen and twenty-ono years

Number la«it year *.

3,908
3 9tj5

Decrea**e

Total number children (under twenty-one) born in California.
Nuniber last year

Increa«c-.

50,644
51 .301

8,283

Number r»f doaf and dum!) in the State
Number re|K>rted last year

Increase..

Number of blind persons in the State
Namber reported last year

Increase

50
30

Total number of children attending Public Schools :
Bovs

....17.512

GirN

.... 14.274

Total

31,786

Number last year :

Boys 1O-049

Giii 11-0-^-^

Total

Increase in number of pupils during the year:

Boys 2,463

GiHs 2,330

Total increase

Average number of Pupils in dail}' attendance

Average numl)er of Pupils last year

Increase

Total
In

number of Children
Private :
Public Schools

att

ending

all

Schools-

-P

ultlic and

. 31J.%
0.306

Private Schools

Total

38,092

Last
In
In

year :

Public Schools

Private Schools

. 20.993
5.438

Total

32,431

Increase

5,061

Number of School Districts in the State.
Number last year

Increase .

This increase has taken place in the following Counties

608
523

Ania<li)r

Hutti'

' iluverurt

L ilusu

Contra Costa.

El Dorado

Fresno

T.:ike

1. )S An^oloM..,

Marin

MiMuioi'ino

MiHV.l

Xtva<la

I'hu'i'r

' Mtiiua.t

,')

5
>>

10
3
1

1
1

u-rainento.

San Joaquin
San Matoo...
Santa Clara.
Santa Cruz..

Shasta

Sierra

Solano

Sonoma

Stanislaus ...,

Sutter

Tehama

Trinity

Yolo .'.

Yuba

Total

12
6
2

1
1
1
3
7
1
2

1
1
3

In the following Counties the number of Districts has decreased:

Humboldt

Napa

SMKiyou...

Net increase of School Districts in the State 85

Number of Public Schools in the State
Number last year.

Increase

This increase has taken place in the following Counties;

Alameda 2

Ama<lor 5

Butte 6

( 'alaveras 5

Colusa 1

L'ontra Costa 1

Del Norte 1

Kl Dorado 2

Fresno 1

lluinholdt 2

Lake 5

Los Angeles 3

Marin

Mariposa —
Mendocino....

Nevada

Placer

Plumas

Sacramento .
San Joaquin
San Mateo,,.
Santa Clara .
Santa Cruz..
Shasta

684
593

i»l

3
11

7
1
1.

In the following Counties the number of Schools has decreased during
the year :

Napa

San Francisco.
Siskiyou

Net increase of Schools during the 3'ear lU

Number of Private Schools in tiie State
Number reported last year

Increase

208
157

Public School-Houses built of brick.

Public School-Houses l»uilt of wood.

Public School-Houses built of adobe
Last year :

Number built of brick

Number built of wood

Number built of adobe

Increase during the year :

In numlier built of brick

In number built of wood

577

495

Grade of Schools :

Number of High Schools

Number of Grammar Schools ....
Number of Intermediate Schools

Number of Mixed Schools

Number of Primary Schools

292

321

.ast year :

XumloT <»f Iliifli Sdiuols

NiiMitxT ot" (iraiiunar Si-hools

Nuiiil'. r of Iiitirin.<liate ScIkkjIs

NuiiiImt of .Mix»'i| Schools

Xumbv'r of Primary Schools

.<Tea«e in numbor of (iraminar Schools

<Ti*aisc in niunlKT of IiitiTiiu>(liate Schools
• roawo ill numlK-r of Mixivl Schools

'fcreaso in numU'r of i'riinarv Schools

219

329

9
17
73

Kamber of Toacherw finnloyed in Public Schools

Male :...

Female

Total
Last vcur :

Male

Female ....

Total

Increase in number of Male Teachers

Increase in numln'r of Female Teachers.

Total increase.

552
380

932

526

305

831

26
75

101

" 'f the Teachers employe*! in the Public Schools the number
\vlu> declare their intenticm to make Teachini; a permanent |
jirofession. is I 396

Number who made fb.* -ame declaration last year I 265

Increase , 131

As the remainin«>: Teachers, (five hundred and thirty-six in number,)
ne<;lect or decline to state tlieir intentions, it ma}' be k'<;itimately in-
ferred that they consider teaching' only a temporary occupation.

During the School year ending October 31. 1861, the number of

Schools that kept open for three months only, was

For more than three and less than six months

For six months

For more than six and less than nine months

For nine months or over

Last year the number that kept open for three months only,

was •

For more than three and less than six months

For six months

For more than six and less than nine months

For nine montlis or over

Increase in tiie number that kept open three mnutlis only

From three to six months

From nine to twelve months

Decrease in number that kept open six montlis

From six to nine months

127

205

122

144

107
139
85
125
136

20
6()

];!

Average number of months during which
kept o]>en during the year

all the Schools were

Last year ,.

6 8-30

•/

Decrease

8-30

The following are the counties in which the average duration o'f the
Schools exceeded the average in the State :

County.

Months.

San Francisco

Monterey

wSan Diogo

Santa Ci-uz

Sacramento ....
Santa Clara....

Alameda

San Mateo

Napa

Santa Barbara

Yuba

Yolo

4-5

1-2

1-4

1-2

1-5

1
6

2-3

1-2

Connty.

Month?.

Del Norto

LoH A ngelt's

Ttilaro ...............[^^..\^"....

't«-«- 1 (J i3_o()

iiims g I I

' tlavcra« (j i_5

6 1-2
() 1-2
G 1-2

In oftoh of tho rcmftiiiins^ conntios the avern«50 duration of the Scliools
wa.H leHH than hix nionlhH.

Number of SehooIn in wliich loss than twenty-five pupils were
tau)(ht

XiMnher of Schools in whith more than twonty-fivi- and loss

ilian fitly were taught

iinherof Sehools in which more than fifty and loss than a
liunilred were taught

N unhcr of Schools in which umvc than a hnndrod and loss than
a hundred and fit^y wore taught

NinnlKT of Schools in which nw»ro than a hundred and fifty and
loss than two hundred wore taught

N timber of SehooU in which more timn two Innulrod were taught

240

232

123

Tho average salary, per month, paid Teachers thron;^liout the State,
was si.xty-two dollars and thirty-five cents. Last year, si.xty-si.K dollars
and seventy-two cents.

As far a.s roporteil, tho average ago of tho Teachers oinplo^td in the
Public Sch(M»ls, waM twenty-eight years and six months.

The Toachoro have had an experience in teaching, averaging four

:irs and nine months.

riio total valimtion of School-houses and furniture in this

State is

I 'tal valuation of Scho(»l-houses and furniture last year....

I ncrease

8030,418 08
480,570 10

8155,848 58

Amount of State School Moneys apportioned during the

year

Amount of State School Moneys apportioned last year

Increase

$81,461 34

81.118 80

§342 54

Amount of School Fund received from County Taxes,
Amount received from County Taxes last year

Increase

«241,882 85
230,529 70

811,353 15

Amount raised by District Tax, Rate-Bill, and Private Sub-

scri])t ion

Amount raised last year from same sources

Decrease

8165,613 02
168,849 71

83,236 69

Total Receipts for School purposes

Total Receipts for School purposes last year

Increase

8486,272 64
474,749 05

811,523 59

Amount paid for Teachers' Salaries

An increase over last j'ear of

Amount Expended in Erection and Repair of School-houses

A decrease compared with last year of.

Amount Expended for School libraries and apparatus

Amount Expended for all other purposes

Total Expenses for School purposes

8311.501 91

336 53

101,818 38

8.534 48

2.299 28

40.721 39

470,113 56

The essentials of an efficient system of Public Instruction are good
Teachers, good School-houses, good text-books, good School libraries, and
apparatus.

In all those essentials, it is needless to say California is more or less
defitient.

ll(»w shall we secure them — how n-jiair our «k'ficieneies? arc the i)rao-
tical (iiu-stions which require consideration at the hands of the friends
of Puhlic S(luM>Js.

The experience of the most accomiilished Kducators in the Eastern
States an<l in Kurope. has suggested a variety of expedients to secure
ahle and etticient instructors.

To this end. Normal Schu(»ls have heen estahlished. Teachers' Insti-
tutes organized, and a thorough system of examination instituted.

STATE NORMAL SCHOOL.

The neoeHRitv of supporting a Normal School, in eonnection with our

I em of Public Instruction, has heen frecpiently urged by the 8uj)erin-

, lent.

The subject was brought before the State Educational Convention in
' le last, and received full consideration.

\ conimittee wus appointed to examine and report upoii the subject.

Ill confornuty with their instruetions, they have addressed the lollow-
:: ' eommunii-Htion to the .Superintendent, which he earnestly commends
lie *-*iii.sidfration of the Legislature.

\u appropriation of tivo thousand dollars would be suflScient to estab-
lish the School, and put it into successful operation.

I Hon. A. J. MoiLUKR.

Superintendent of Public Instruction:

Sir: — The undersigned were aytpointed a Committoo upon a State
Normal Scluwd. by the recent E«lucational ('onventi<»n.

In part performance of the duty thus devolved upon us, we desire,
thr«*ugh you, to present t() the next Legislature, some considerations
favoring the eHtaldishment of such a Sehool, and respectfully solicit
your co-operation with us. In so doing, we are actuated by the opinion
that such a measure would do much t<» advance the educational interests
of this State, and that while it is deferred, our Public School system
will fail to secure to us the greatest benefits of Education, or the largest
return for the money expended in its support.

In the Normal Sehool the principles of teaching are considered, both
as a science and an art. Its subjects are the powers, capacities, and
laws of Lrrowth of the mind ; the order, as to time, in which the different
faculties are to be addressed and developed; the best modes of their
development ; the special adajttation of each school study to the par-
ticular necessities and faculties of the juvenile mind ; the laws of bodily
health as to ventilation, posture, school calisthenics and gymnastics;
and the moral natures of children. It also considers the best methods
of School organization, classification, programmes of daily exerci.ses,
. and modes of teaching, as exempliried in the best systems and best
Schools in the world ; and the knowledge so acquired is practically
applied in the model or ex|)eriinental School, (a necessary part of a
. Kormal School,) in ])resence of competent and experienced teachers.

This statement of the objects of such a School, forces the mind to the
conclusion, that a teacher thus educated and trained, thus taught how to
teach, must be incomparably superior to one who lacks such advant:iges.
The possession of knowledge is one thing, ability to teach is another and

a far different thing. The most limited observer in aware that a verj-
learned man may profoundly understand a subject himself, and yet fail
eo-regiously in elucidating it to others. The profession of a teacher
imperatively demands a special School for instruction in its appropriate
science and methods.

How to teach, and ichnt to tench, are classes of knowledge equal in import-
ance to the teacher, and absolutel}' necessary to the proper progress
of the scholar. Both must be acquired somehow. It may well be asked
why this should be reseiwed for the common school-room ; wliy the
time of the School and the public money should be squandered by em-
pirics rather than husbanded by adepts.

No one would entrust a steam engine to a man who was acquainted
with that machine only through l)Ooks. The danger antl folly of thus
risking life, time and money in educating an engineer would not be ques-
tioned ; universal opinion would force him to an a]>prentieesliij) uiuler a
competent master. Is there less ol" folly or danger in entrusting the
mysterious and subtle mechanism of the mind to teachers unlearned in
the practical duties of their ]in)fession ? Such is the ])rinciple insisted on
in all the common occujnitions ot life. The gardener, for instance, we
should all insist, must have a practical acquaintance with the nature of
different soils; the habits of different plants; the best modes of culti-
vating and training them, and soil and position suitable for each. In his
case, no amount of book knowledge would compensate for his want of
such pi-actical knowledge. So of the farmer, and the mechanic, the State
fosters and endows societies which constantlv reward their best ]»ractical
skill.

Are not the best methods of performing the highest social dut}'. the
intellectual, moral and jdiysical training of our children, equally worthy
of the attention of the State ?

Horace Mann, widely and justly celebrated as an eminent Educator,
expressed " his amazement that a parent will of^en entrust the educa-
tion of his children to a ])erson of whose e.xjierience and qualifications
he knows nothing, when he would not allow him to mend a watch with-
out first ascertaining that he possessed the re(piisite practical skill."

Such then being the design of a Normal School, to afford to those who
design to become teachers that previous training which for any other
business is deemed indispensable, we need not say more of its importance
to California, than to call attention to the f:ict, that the large number of
our citizens, male and female, who are looking to the profession of
teaching as an employment for life, compete at a great disadvantage
with those who come hither, educated in the Normal Schools of other
States. Our citizens should not be longer subjected to such disadvan-
tages.

The plans pursued elsewhere, authorize the free instruction of a lim-
ited number to be selected by local Educational Boards in different
counties, others being charged a moderate fee for tuition. In several
places this School has been made a part of the University system, and
we think is appropriately so. as through no other channel can the ben-
efits of a State University be more directly and widely diffused among
the people than b}' thoroughly trained teachers of our Common Schools.

The number of these Schools in European countries, is regarded by re-
cent and high authorities as the secret of the excellence of their Com-
mon School systems. In France there are more than ninety ; in Prussia,
fifty; in Switzerland, thirteen. They exist wherever systems of public
instruction are inaugurated, and their establishment is uniformly colempo-

raneouttcith that of the fyttim itself. Tho idea no more obtains in those
countries, olallowin^r a teacher to bo einj)l.)ved as sueh. before he is pre-
pared by tt i.nictieal ethuation in the seienVe and art of teaching than
-Iocs that of eilueatin^r a maehinist in his biisiiu-ss, without the iiraetieal
^I)oneneeo^a niaehine sliop. h, l»russia. ( \vh..se system is cited b3'
ihe brst authorities, as a fittin;( m<»(K'l in all that ])ertanis to its teachers.
and thfir moib-s of teaching), the (Jovi-rnnient lirst selects those who
are deemed adaj.ted by natural <lisposition and tact to become teachers,
and those only who are thus selected are allowed to study the i)rofession
: teachint^. The ntprit ,lu mrpt engendered by such a system, its tend-
MV to invite to the profession, as a permanent business, talent of the
:,'hest onler. and also its direct influence in elevatiuir the character, and
imulatin^ the ertV»rt» of those en^a^nm; in its duties are evirlent, and
e fully sustained by the results.

In America, the first Normal Scliool was opened in Lexini^ton. >rassa-
' husetts, July third, eighteen hundred and t liirty-nine. Th7it State has
w four Normal Schools, with four thousand two hundred and sixty-
ven members. New York has N(»rmal Schools of hi^rl, standini;. For
<• one l«M-ated at Albany, the animal a|>propriation is tburteen thousand
\ hundred dollars. Rhode Island. Connecticut, Michiiran, New Jersey,
l.linois. South Carolina. Pennsylvania. Minnesota, Wisconsin, Iowa,
K.-ntucky. and Ohio, have similar institutions, liberally endowed. The
^vn of Hhiomin^ton, Illinois, it is stated, in eighteen liundrcd :ind fifty-
ven, otVered the sum of one hundred aixl forty-one thousand dollars to
I are the loeation of the S<hool there. It has an annual api)ropiMation
ol ten thousand dollars for its support. The grounds comprise tilty-six
acres, laid out in the best style ot landscape ;;ardeninir. adi>rned with
flowers and shrubbery. ( »n this coast, so far back as eii^hteen hundred
and forty-three, a Normal School was established in Chile, which has tho
best system of common schools in the South American States. The
"••hool of Toront<». Canada, was organized at a cost, for grounds, build-
:^H, and furniture, of one hundred thousand dollars, and is supported at
an anntml cost of ten thousand dollars. City Normal Schools — so
termed — have Ikh-u supported for years, in New York. Hrooklyn, Phila-
delphia. Boston, Ciiieinnati, St. Louis, and San Francisco; they meet
weekly — but necessarily lack the comprehensiveness of true Nf)rmal
Schools.

Tlie amounts stated, as the annual expense of these Schools in r»ther

ites. are ret'erred to here, as showing the estimation in which they are

111, but tlo not constitute a criterion for judgin^^ the amount neccssarv

t" the establishment of such a School here. We believe, a sum much

less than either of those named, will suffice to secure its opening, upon

a plan sutliciently extended to meet the present wants of our citizens.

Hoping that these views may meet your approval, wc remain. Sir,

Very respectfully,

Your obedient servants,

IIKXRY B. JANES.
(JKoKiJK \y. MINNS,
ELLIS H. HOLMES,

Committee on State Normal Schools.

San Fra.\ci.sco. Jan. 2d. 1862.
3

STATE teachers' INSTITUTE.

California has taken one important step in the right direction.

By an Act of April twenty-eighth, eighteen hundred and sixty, the
Superintendent of Public Instruction was authorized to convene one or
more Teachers' Institutes each year, at such times and places as he
should see fit. In accordance with this Act, a State Institute was organ-
ized in the City of San Francisco on the twenty-seventh of May last,
and continued in session until the first of June.

It was attended by nearly three hundred and fifty delegates, consist-
ing of Teachers and School Olficers from all parts of the State. Its
object was to disseniinate intelligence uj)on the most ajipruved methods
of teaching — to give all the Teachers of the State the benefit of the
experience and study of the ablest and most successful of their profes-
sion, and thereby to increase the value of their services in the school-
room.

To effect this, competent instructors, selected for their proficiency in
some branch of their profession, were engaged to lecture each day
during the session of the Institute, and whenever practicable, to illus-
trate their views by classes taken from the bod}' of the assembly.

These instructions were highly interesting, and placed the art of
teaching in a new light l)efore many of the members. They embodied
the reading and study of learned Educators, ami jxjinted out all the
great improvements which had been made abroad during the ])ast ten
years. They exjdained the many valuable adjuncts and useful appli-
ances placed in the hands of the modern Teacher by those who had
made teaching their study for many years.

The members of the Institute were thus ])laced in possession of a
large amount of valuable information, which they could j)robably have
obtained in no other way in this State — an exprit </u corps was established,
a higher standard of (pialification encouraged, and a s|)irit of incjuir}'
and investigation aroused which cannot but bear fruitful results here-
after.

At the close of the session of tlie Institute each da}', the delegates
present organized into a State Educational Convention, in which the
subject of the morning's instruction was discussed, and thus the views
and experience of the many intelligent Teachers in attendance were
elicited. This comparison of views proved highly useful, and attorded
many valuable hints to those who.se experience had been limited. By
this means, all present became familiar with the most successful features
in the plan of instruction adojjted by the most eminent of their number,
and to that extent became more fitted for the intelligent discharge of
their duties in the school-room.

The Superintendent was highly gratified by the interest exhibited, and
is contident that happ}' results must flow from this — the first meeting of
the California Teachers' Institute. Other meetings will be held from
time to time, and experience will suggest valuable improvements in the
conduct of the exercises.

One good effect of our State Institute has been to arouse the Teachers
to the importance of establishing auxiliary associations in each county.
In several of the counties local institutes have already been organized,
and it is hoped that the movement will extend until every county can
boast its Educational Association.

BOARDS OF EXAMINATION.

To Becure compotent Instructors no feature in a Public School system
IS more important than the estahlishnient otcum])etent Boards of Exam-
ination. For many years the duty ofexaminin^r ai.i)licants was imposed
ui»on District Trustees, hut as it was found that many of these otticers
were eleited or appointed for their zeal in the cause ot" education ratlier
than for their scholastic attainments, and as a consequence, that many
incompetent persons manai;ed to secure positi<ms in our schools, the
I.e^isjature. hy Act of April twenty-eighth. ei<,'hteen hundred and sixty,
j.royided for the estahlishment of State and County Boards of Examina-
tion—the former insisting of the Superintendent'of Pul.lic Instruction
and at least three of the ('«Minty Superintendents, the latter of the
County Superintendent and at least three qualitied Teachers, or, if their
preH..|ici. ...uld not he conycniently secured, throe citizens selected for
their learning and ahility.

The law further granted to applicants rejected hy a County Board the
right to appeal to the Sup<'rintendent of Puhlic In.struction.

Certificates gnuite<l hy County Boartls hold good for one year from
■late, unless sooner reyoke<i for cause, hut have no force or effect beyond
he county in which they are granted. Certificates issued by the State
iioanl are valid for two years, and entitle the holders to be einployed in
any of the Schools of the State without further examimition. This
hange in the law has met with general approval, and although so re-
• fitly mad»', has already pn>duced a decided imjtrovement. The Exam-
mis, as at present composed, consist of exj)erts who ought to
ir with the duties and «pialifications of competent Teachers.
I lie Teachers themselves have a controlling voice in these Boards, and
>r the honor of their jtrofession they fix upon a much higher standard
I (pialification than previously adopted under the old system.
By this means it is in their power to protect themselves from the
inJurioUH com|H'tition of illiterate quacks, who have, in too many
iistaiK-i"". •'Mcceeded in excUnling able and efficient gentlemen by offers of
iieap -«T\ it *•. The only recommendation of these ignorant pretenders
is their cheapness — like damage<l auction goods bought 'at a bargain,"
they always turn out to be dear at any price. In a majority of instances
the really good Teacher who .succeeds one of these, finds his labor doubled
from the necessity of making his pupils unlearn much of what they have
l>een taught.

It is confidently ho])cd that our present S3'stem of examination will
eyate the standard of the j)rofession. and. in time, secure for all our
"^rh<»oIs the services of able and accomplished Instructors.

The Su|»erintendent would recommend but one chan;^e in the law upon
this subject — that certificates of qualification granted by County Boards
have force and effect for two years, instead of for one only, as now pro-
vided. There is no necessity to repeat the examination of a Teacher
every year, if he has been once examined and found qualified, especially
if he has been constantly engaged in teaching during the year. It
imposes unnecessary labor upon the Examining Board, and oftentimes
puts applicants who live at a distance to an expense which they can ill
spare from their scant earnings.

COMPENSATION OF TEACHERS.

Biit neither Normal School nor zealous Examining Boards will secure
efficient Teachers, if the funds be not provided to pay them a reasonable
amount for their services. The Teacher, such as we need, must have
devoted many years of labor and incurred a heavy expense to acquire
his education and fit him for his profession.

He is. therefore, justly entitled to the compensation ordinarily paid
for educated talent. Tiiis compensation has not heretofore been paid in
California. The returns innn all the Districts in the State show that
the avera,<!;e salary paid during; the past year does not exceed the piti-
ful sum of sixty-two dollars and thirty-five cents per month, and even
this is a reduction compared with last year, when the average was sixty-
six dollars and seventy-two cents ])er month.

This scarcely exceeds the compensation \k\'h\ for unskilled labor in this
State.

No class perform more laborious service than the faithful Teacher. IIo
is entitled to a fair comjiensation, and he does not receive it. It rests
with you. gentlemen of the Legislature, to remedy this, by increasing
the resources of the Schools. aTul thus enabling Sdiool officers to com-
mand the best talent in the profession, of which there is no lack in the
State.

scnooL-nousES.

Our second great need is good school-houses. I)uring the past year
we have made a decided im])rovement both in the number and in the
character of our school-houses.

Five of brick anil eiglity-two of wood have been erected since my
last report.

Many of them are substantial and commodious structures, containing
many of the modern im]>r<tvc'inents and conveniences suggested by long
experience in the P^astcrn Schools, but a large number of those erected
in former years are rough and forbidding shanties, utterly unfit for the
occupation of the children. Jn his remarks u})on School Architecture,
which have been widely distributed throughout the State, in connection
with his Commentaries on the School Law, tlie State Superinten<lent has
endeavored to point out the true principles which should guide Trustees
and Building Committees in the Construction of school-houses, and in
their internal arrangements. These principles, it is believed, have exer-
cised a salutary influence upon recent constructions, but they have had
little effect in improving the condition of old school-houses.

Man}- of these are too small for the accommodation of the number of
pupils crowded into them, are badlj- ventilated, badly lighted, and
roughly furnished.

The health of the children suffers in consequence, and the seeds of
many a lingering disease are implanted in the youthful system, so sus-
ceptible to evil influences, by the foul air and torturing arrangement of
seats and desks.

In relation to this subject, the State Superintendent addressed the fol-
lowing communication, 'in July last, to several distinguished members
of the medical profession :

DePARTMKNT (IF I.N.STRUCTIOX, ")

San Francisco, July 11th, 1861. j
To Dr.

Dear Sir:— A spirit of inquiry luis heen aroused by the discussions,
in our State Kducatioiial Convention, recently iield. as to the minimum ai^e
at wliich ehililren should he adniiited into our Puhlic Schools — the time
<lurin<^ which they should he contined — the frequency and duration of
recess — the mode of seating' — of heatiriir and ventilatini; the school-
room—the expediency of giving younj,' pupils lessons to bo learned at
honu" — and other matters bearing ujion the health and physical develop-
ment of school fhildren.

Will you be kind onoui^h to assist me in effecting such reforms as the
laws of health demand, by givini,' me your views, as a PhvsiolojL^ist, upon
thf points intlicaied, and upon such other coi^nate matters as your
knowled;;e of our Seho<>|s nniy sui^ijest ^

It is my an.xious desire to remove from the school-room all influences,
and to abolish all practices, calculated tt) atfect injuriously the constitu-
tion or bodily vigor of plastic, impressible childhood.

The matured views of one s«) distinguisheil in his profession as your-
Nidf will have great weight, and will materially aid my etforts to reform
any abu.Hcs that may exist in our Public Schools.

I am, very truly, yours,

ANDREW J. MOULDER,
Superintendent of Public Instruction.

The following reply from one of the gentlemen addressed, contains
tood for most seriou.s reflection :

Sa.n Francisco, July 12th, 18G1.
\. .1. Moulder, Esq.

1>karSir: — Yours of the eleventh instant has been received. The
importance of the subjects to which you refer, and the evils which I see
daily, resulting from errors connected with the present School s\'stem,
induce me to reply without delay, though, from lack of leisure, my reply
must be brief, and relate only the m«»st prominent points of observation.

It may be remarked, that I am writing almost exclusively in relation
to the female pupils. The greater amount of robust vigor in the boys,
ind their comparative constitutional freedom from nervous irritability,
ren«ler them much le.-,s liable to receive injury from the causes under
consideration.

I. lV«/i7<i/.V/7j.— This is placed tirst. becau.se it lies as a foundation for
most of the evils to which I wish to direct your attention. Were the
children, during school hours, breathing a pure and healthful atmos-
phere, other cau.ses which now are of moment would become almo.st
insigniticant. But unless I am misinformed, very few of the school-
rooms of the city furnish the pupils with healthful air. In many, the
only ventilation is atfonled by lowering the windows, thus pouring a
cold current on the heads ot" the poor little mortals below, while the
contaminations of the air which has been respired are only very imper-

fectly removed. Day after day I am called upon to proscribe for the
relief of ailments which have their ori«i;in in this source alone.

Ko system of ventilation for a school-room shoukl. in nn' judgment,
be deemed satisfactory which is not constantly and insensibly changing
the atmosphere of the entire apartment, and this can emnmonly be
attained in no other way so well as by a tube conveying an ascending
current of air to the summit of the building, with a proper ejecting
orifice. Mere openings from the room to the external air are entirely
inadequate.

The benefits of correct ventilation are shown with great promptness
in the deportment of the pupils, and the ease of government. Many
and manv a case of discijiline. esj)ecially towards the close of the day, is
due to the foul air of the school-room. "With tlie lu-nin ojiprossed, the
stomach irritalile. and the lungs in a state of excitement from the unnat-
ural labor to which they are forced, it is almost impossible for children
to preserve order, and the}' sutler often from that which is more their
misfortune than their fault. And while the system is thus disturbed is
the principal time when injury is received from the following cause :

II. Se<tt-s. — The seats are of such construction and so small as to allow
very little of freedom or ease in sitting. They keep the entire lower
portion of the body in a cramjted and constrained contlition, very wea-
rying to the muscle, and what is of vastly more moment, very injurious
to the nervous system. I believe that this is one of the frecpient sources
of agirravation. and often one of the exciting causes of tho.se forms of
spinal irritation whicii are so lamentably pi-evalent among the younger
mothers of our communities, and the ohU'r girls in our schools, and which
can be traced even to those who are still in the lower classes. No ]>hy-
sician can see this dreadful source of nervous exhaustion manifesting
itself in a girl just develojting into maturity, without shuddering for the
train of enteebled healtlj, and its accompanying bodily and mental suffer-
ings, which are her certain inheritance. Anil believing, as I do, that a
portion of this inheritance is justly to be charged upon evils of our
schools, and that at the same time these evils can readily be removed, I
desire most earnestly to raise my V(uce against them.

III. Pusitions. — As though the seats were not of themselves bad enough,
they are in some of the schools rendered much worse by the require-
ments of the teachers. Of course, for the preservation of order it is
necessary that the pupils should sit still. But it is not possible for any
child to sit still any great length of time without inconvenience and
suffering. No matter how easy the position, it must be changed, and
changed frequenth-. To prevent confusion this must be done at the
word of the teacher, and this of course involves constant thought and
watchfulness on his or her part, in addition to the already multifarious
cares. Still it is an attention to the pupil's comfort and health which
should never be neglected ; and yet I know that it is neglected, for I see
frequent cases of suffering from such neglect. Children of seven to ten
years of age are compelled to sit with their arms folded behind the
body — a bad position at the best — for a longer period than an adult
could do the same without suffering. It is an evil to which the atten-
tion of teachers should be called.

TV. Excess of Studies. — Very great injury arises from this cause. Of
course no absolute rule can be given, but in general it is safe to affirm that
a greater length of mental application than five hours daily is unsafe for
a child under the age of fourteen years. A pupil who, after the confine-
ment of the school sessions, devotes one hour or two hours of the evening

. Rtudy, incurs the risk of so far cxhaustiiii; tlio noi-vo toire as to i»re-
vont its full recuporation in season tor the labors of tl»e lollowiiiir day,
and of course, therefore, of serious and probably pernKinent injury U) the
health.

It \v«»nld ;,'ive ine ifreat pleasure to present mv vicAvs in relation to
vera! additional points, hut tho.se which have been already mentioned
.m to me of more immediate importance than any others, and the
.-ssure of my daily duties eompels me to leave the subject thus untin-
iied.

With much respect,

1 am yours, truly,

W. O. AYEES.

In the construction of our School-houses we have unfortunately, in too
many instances, copied the faults of the old States, and but seldom the
many ^reat intprovenients they have made in modern times.

The State Sup»rintendent of Rhode Island even yet finds the same
iiise of eompluint as the Superint«'ndeiit of California. On this subject
iir remarks :

"One ^rent fault, in many of o»ir schoobhouses, is that they are too
'ill. Tliey arc not only deticient in len<;th and breadth, but esj)e(ially
heijjht. Ah I cntere<l many of them, they <;ave me the impression
at the building committees had ascertaine<l the exact number of schol-
•* in the district — had computed into how imrnnr a 8)>ace they could be
• we<I.an«i had them built accordingly. Parents should remember, that
tlie cn»wdini; so many healthy. a<'tiye lun;xs into such limiteil s|)aces, soon
vitiates the air \u spite of the best arranged ventilation. Circulation is
disturbed, the cheeks Imm ome flushed, the hands and the feet are too hot
or too ccdd, and restles^iu-*s and inattention are the inevitable results.
Pale faces and withered forms every day tell us how sadly we neglect the
physical comfort of our children. Narrow limits compel too compact an
arnin^ement of the desks, so that the children cannot have that freedom
of nioticm so essential to ease and comfort. durin<; a half-day's confine-
ment to a sittini; p<»sture." ♦*♦*****
« * « * «

'• The most of our school-houses are placed too near the pulilic way.
occasioning^ a constant annoyance, both to the teacher and the tau/.jht.
>Vhen we consider how lar^e a portion of the most impressilde j)eriod
the lives of our children is jmssed within the walls of the school-
house, and how closely their history and destiny are connected with
early impressions, we can hardly be too solicitous that these places of
their resort shall be so located. an<l so constructe<l. as to exert the most
favorable intlut'iues upon their nioral. intellectual, and social nature.
The habits, tastes, and sentiments of the chiMren. are. in a few years,
io btM-ome the manners, the institutions, and the laws of a nation." ^
*******
■' I would have every school-house placed upon some dry and rrdrcd
spot, where this is j)racticable. as it is in all our rural districts. Let it
be properly elevated, of ample dimensions for the p(tsi/ accomm«jdation of
the number designated to occupy it. Let taste and culture characterize
all its external and internal arrangements. Let it present a fnhhnl ap-

pearanc'O — the grounds spacious, well arniii<];ed,and neatly enclosed, and
if the grateful shade of trees does not already fall u])()n the spot, do not
fail to set them — of sueh kinds and in such a manner, as shall secure a
rapid and permanent growth. The school-house should he the most
attractive place in the district. Parents, Trustees, and School Commit-
tees, have yet to learn what a mighty moral agency lies in the character
and condition of the school-house." ,»:******

* * ^: :|« * *

'' Besides, good school-houses invite, if they do not create, good Teach-
ers. Every such Teacher knows that a miserahle. tottering, tilthy l)uil<l-
ing, with its gaping, uneven floor, broken and dirty ceiling, clattering
windows, shrunken and unhinged doors, backless and sliamefully dis-
tigured seats — is not the place to elevate the minds, the morals, or the
iiuinners of ])U]>i!s. who are cruelly degraded by any such associations.
J am glad to he able to say, that there ai"e only a few such relics of by-
gone (hiys remaining, a disgi-ace to the district, the town. an<l the State.
JMiserabli- and c()nti'actc<l liuildings. that ha<l long ago outlived their
usefulness, are fast yielding to substantial, amjde, and often elegant
structiii-es. The ])eople are liecoming more and more alive to the im-
portance of this changi' ; and iittnirtirriiiss, ]ut{\i in location and structure,
is beginning to sci-urc a pi'opcr consideration. Bald buihiings and sites,
innocent of everything but rocks, ferns, and barberry bushes, are getting
out of demand for educational purposes."

TEXT-KOOKS.

The Act of A])i'il twenty-eighth, eightei-n hun<lred and sixty, em])Ow-
ered the State BoanI of Ivlucation to ti.\ ujton a uniform system of Text-
books to be used in the I'ulilic Schools.

The Board, after full considci'ation, dclciMiiincd to submit the whole
subject to the Teacliers and School Otticers in Convention assembled, and
thus to obtain the views of a large and influential body of exj)erts.

It was deemed that this was a comi)liment due to those who had ])rac-
tical ac<iuaintance with the subject, and who were to be chiefly aftected
by the pi'(i|>osed change.

The Board further resolved to adopt whatever books might be recom-
mended by the Convention, uidess special objections should be dis-
covered.

The Teachers were accordingly convened in San P^rancisco on the
twenty-seventh of May last, when it was unexpectedly found that the
law had been changed ten days before Avithout the knowledge of the
members of the Board, and. it is believed by the Superintendent, against
the wishes of a large majority' of tliosc to be aftected.

The amended law simply authorized the Board to recommend the
Text-books to be used in our Schools — a right which they possessed be-
fore in common with every intelligent friend of education in the State.

Teachers and Trustees could adopt the recommendations or not, just
as it might suit their ])leasure or convenience, and the crying evils of fre-
quent changes of books, involving heav}- expense to parents, and a reck-
less disregard of uniformity, even in the same school, were thereby per-
petuated.

The subject was, however, submitted to the State Educational Conven-
tion, composed, as before stated, of nearly three hundred and fifty dele-
gates. Committees were appointed upon each branch of study usually

laufjht in ihe schools, with instructions to examine the numerous Text-
books relating to those branches — to compare their merits, and report
those which, in their opinion, should be found most valuable and best
adapted for use in our schools. The various Committees otcupicd nearly
a week in this examinati»»n. and tinally reported, settini; forth at lenirth
the reasons for their recommendations of oach work. For want of time,
tlie ('"• M failed to act uiM)n these Reports, but tinally appointed a

f^tate ' :»'e. consi«»tin;^ of one from each county represented and

nuMiibcrf% at lartje. with instructions to consider the whole subject

lefiilly. and report to the next C'f»nvention.

Phe Stale Superintendent is satisfied that no mere recommendation

* .iher of the Convention or the Hoard of Education will procure the
adontion of a uniform system of Text-books in our schools.

lie is further satisfied that the restoration of the law re|)ealed will

meet the ap|iroval of a lari;e majority of the Teachers and j>arents, who

'• chief suffrrrr- fnun the ehani;es so constantlv made.

ft law is not fwx tptibb- of ubuse, and cannot be hooked upon as

n the j;reat body of the Teachers themselves are per-

l, to recommend the books to be preserilied by the Board

Education.

SCHOOL LIBRARIES AND APrA&ATLS.

^ 'm of instruction can be complete without some provision for

tt. 'hmenl <tf M-hool lihraries. anil ohtainin^ the necessary charts,

.ips. globes, bloekri, and apparatus to illustrate the ideas sought to be
inntunicated. It would be a waste of words to dwell upon the valua-
• u.ses of a well selected stock of books, open to all the children of a

• ii-'lrict.

It is sufficient to say that laws have been passed in almost all of the
'St advaficed Ea«*t«Tii Stuii-s providing a means for procuring a good
nunon School lil>rar\ in «V(.ry district, and the unanimous verdict of
perience proclaim- the windoin of these laws.

The plan most approved, and which the Sujierintendent would there-

;e most earnestly re«ommend, is to offer a bount}* (»f fifteen or twenty

. diars from the State Treasury to every school district that will raise

an equal amount, for the purchase of a school library and indispensable

pparatus. When this system was first adopted in Xew York, in cight-

u humlred an*l thirty-eight, the sum <it fifty-five thousand dollars was

Impropriated for this jiurpose by the Legislature for three 3'ears. But a

•■ w thoii-ands would enable us to make a promising beginning in Cali-

AME.NDMENTS TO SCHOOL LAW.

Our present School Law works well. In some minor details, however,
an improvement could be made.

No provision is made for the distribution of the funds belonging to a
district in case it is divided into two or more new districts after the
thirty-first of October — the close of the School year. Difficulties and
di>j)utes constantly occur in consequence, greatly to the injury of the
schools and much t»> the disgust of many zealous friends of education
who eonceive that they have been unjustly dealt with by the officers con-
trolling the funds.

It is important that this defect should be remedied at once, and it is
therefore recommended that in case of the division of a School District,

the funds to its credit shall be distributed among the new districts on the
basis of the number of cliildren between four and oii^iiteen years of ai;e
residing in each, or in case a school is niaintainctl in each of the new dis-
tricts, on the basis of the averai:;e number of })U[)ils dail>- attending each.
This would at once remove all cause of dis]»ute or complaint.

COUNTY APrORTIONMENTS.

Further legislation is needed upon another point, upon which difficul-
ties often arise. The law docs not tix the times when the Count}' Super-
intendent shall apportion the School moneys received, among the several
districts. No district is entitk'd to the benefits of an aj»i»ortionment,
which failed to maintain a Publie School for three months during the
lireceding School year, ending October thirty-first.

The County Sujicrintendent is l)ound l»y law to conform his a]>por-
tionments to that of tiie State Superintendent last received; from which
has sometimes rcsultetl this state of affairs : School District Number
One neglected to maintain a School lor three months during the year
ending October thirty-first, eighteen hundred and sixty. In conse-
quence, it was not entitled to any share of the funds distributed during
the year ending October thirty-first, eighteen hundred and sixt^'-one ;
but during that year it supported a School for the re([uired i)eriod, and
performed all the acts necessary to entitle it to tlie benefits of tiie aj»por-
tionment made by the State Superintendent towards the close of the
montii of December, eighteen hundred and sixty-one. In November,
eighteen hundi'ed and sixty-one, there was a considerable amount in the
School Fund derived from county taxation. This was to be api)ortioned
among the several districts by the County Sujierintendent. The ques-
tion was whether District Number One should receive the benefit of this
apportionment.

As the only guide for the County Su]>erinten(lent was the aytportion-
ment made l»y the State Sii])erintendent in Decembei". eighteen hundred
and sixty, or in .June, eighteen hundred and sixty-one. which was based
on the same census returns, and as ])istrict Number One was excluded
from that apportionment, it followed that it must be excluded from the
benefits of the county funds distributed in November, eighteen hundred
and sixty-one. This is clearly unjust.

To remedy the difficulty, it is recommended that County Superin-
tendents be required to make their apportionments quarterly — on the first
of February, first of May, first of August, and first of November of
each year.

By the first of Februar}', they would receive the State apportionment
made about the twenty-seventh of December preceding, and that appor-
tionment would include all the districts that had complied with the law
during the school year ending October thirty-first.

SCHOOL LANDS.

By the Act of April twentj'-second, eighteen hundred and sixty-one, a
very important change was made in the management and disposition of
the sixteenth and thirty-sixth sections of School lands.

Up to the time of the passage of that Act, these lands had been recog-
nized as the exclusive property of the inhabitants of the particular Town-
ships in which they happened to lie.

For various reasons many of the Townships— perhaps a majority in the

;ito— had no School lands, and in the Minin^r Districts they never could
luivc any. under the decision of tlio Commissioner of the General Land
Otficf and tlii- Socri'tary of the Interior.

The old law i)rovidiMl a most eomj»lic-ated and unwieldy machinery for
the sale of tla-so lands. an<l under it hut a few thousand'acres were sold
during; the thrte years of its operation.

The chan<;e that has hecu made, not only secures equal rii>;hts and
privileges to all the sehooluhle children of the State, hut has Ibeen the
means of rapidly extendini; the sale of the lands.

Under the system now in operation, the ])roceed8 of the sales arc paid
into the (Jeneral Seh<»<)| Fund, instead of the Township Fund, and the
interest thereof is semi-annually api)«)rtione<l anionic the several School
I>istriets of the State, on the hasis of the numher of ehildren hetween
four and eighteen years of a;;e. residini? therein. By this means, the
children of those Townshios whieh possess no School hinds, receive their
Tiir proportion of the fund donated to the State for the education of all,

I'rom the Sur\-eyor-(»eneral. I learn that the followini; amounts of

iiool lands have heen sold under the several Acts of the Legislature:

THE FIVE III'NDREI) THOUSAND ACRES.

Prior to the passage of the Act of eighteen hundred and fifty-eight,
Sehool I>and \\ arrants were issued for two hundred and thirty-seven
thousand seven hundred and si.xly acres. These lands were sold for
two dollars per aere. payahle in cash or Controller's Warrants. Under
the Ai't of eighteen hundred and tifty-eight. two hundred and si.xty-one
thousand one hundred and ninety-seven acres were sold. Total acres
Hold. f«»ur hundred and ninety-eight thousand nine hundred and tifty-
. en ; leaving unsold, one thousand an<l forty-three acres. The two
;. judred and sixty-one thousand one hundretl and ninety-seven acres dis-
posed of under the Act of eighteen hundred and fifty-eight, were sold
* '■ one d«»llar and twenty-five cents per acre.

I'ayments have heen re<-eived for ahout two hundred and fifty-three
•usand a«res oidy. The law permits the purchaser to pay twenty per
it. of the principal in cash, and one year's interest upon the remain-
der, in a<lvatue. at the rat<' ot" ten per cent, per annum. When paid up,
the procee<ls are investeil in State Honds. hearing hut seven per cent,
interest per annum. The School Fund gains, therefore, three per cent.
per annum upon the amount for which credit is allowed.

Of the Seminary or University Lands, thirty-nine thousand six hun-
dred and forty-six' acres have heen sold, leaving six thousand four hun-
dretl and thirty-four acres to be disposed of.

SIXTEKXTH A.ND THIRTY-SIXTH SECTIONS.

Within eight months after the passage of the Act of April twenty-
ond. eighteen hundred and sixty-one, locations to the amount of
ninety-five thousand five hun<lred and fifty-eight acres of the Sixteenth
and thirty-sixth Section grant were approved by the Surveyor-General,
and on the twenty-fourth of December last applications were pending
for sixty-nine thousand nine hundred and five acres more, making a total
of one hundri'd and sixtv-five thousand four hundred and sixty-three
acres sold or about to bo scjld.

The first instalment, including twenty per cent, of the principal, and
ten per cent, interest upon tlio remainder, has been paid upon nearly the
whole amount actually sold.

Section eight of the Act providing for the sale of the sixteenth and
thirty-sixth sections declares that '• all moneys heretofore derived, as
principal, for the sale of the lands herein designated, and sold under the
Act for the sale of the sixteenth and thirty-sixth sections, ap]>roviMi
April twenty-sixth, eighteen hundred and fifty-eight, shall be jiaid by the
counties in which sucli lands have been sold, into the State School Fund;
and if not so paid, such counties shall have a sum deducted from the pro
rata they would be entitled to under this Act, equal to the amount re-
tained l)y them." In several of the counties a number of school sections
have been sold under the Act of April twenty-sixth, eighteen hundred
and fifty-eight, and the ])roceeds have been paiti into the County Treasu-
ries. The Superintendent has no means of ascertaining, otficially, in
what counties such lands have been disposed of, how many acres have
been sold, or to what sum the proceeds amount. Nor can he determine
whether these counties have ])aid the proceeds into the State School Fund
or not. It is impossible for him, thei'efore, " to deduct fivun the pro rata
such a county would be entitled to, a sum equal to the amoutit retained
by it." There is no means of ascertaining this amount. Jiut if there
were, another dittieulty would arise. The jiroceeds of the sale of the
sixteenth and thirty-sixth sections belong exclusively, under the Act of
April twenty-second, eighteen hundred and fitty-eight, to the inhabitants
of the township in which they happen to lie, not to the inhabitants of
the county at large.

Even in the same county, certain townships possess school sections,
while others have not an acre of land.

The State Superintendent, under existing laws, aj)j)ortions the School
Fund among the several districts of the State, not among ti»e counties.
Certain districts, and in many instances, only fragments of districts,
included within the l»oun<ls of favored townshij)s, receive the benefits of
the fund dei-ived from the sale of the townships' lands, while others
are excluded from those benefits.

It would be manifestly unjust to deduct an}' sura from a county's pro
rata, when such deduction would operate equally to the injury of the
favored and the excluded districts.

To remedy the dittieulty, the law should be so amended as to require
the Trustees to report what amount of lunds their district received from
the Township School Fund, and to empower the State Superintendent to
deduct an equivalent amount from the tlistrict'spro rata.

As heretofore stated, the Secretary of the Interior has decided that
the State has no right to School sections in the mineral districts. The
eflect of this is to deprive us of nearly two million acres of land.

It is therefore urgently recommended that application be made to
Congi-ess to repair the injustice done us, by permitting the State to
select other lands in lieu of those of which we have been deprived in
the mining regions.

If this permission is granted, California will have the means of cre-
ating a magnificent School Fund, ample, in a few years, to make all our
Schools in fact, as well as in name. Free Schools.

STATE rVIVKRSITT AXD MILITARY INSTITUTE.

For several years the State Superintendent has urgently recommended
ueorpuuzatH.n of the State University provided for bv the Constitu-

on, on the hasis of a Military Institute, simihir to West Point.

The arguments in supjx.rt' of this rec-omnien.hvtion have been fre-
,iiently set forth in the Superinteink'nt's previous annual reports to
which he would respectfully refer. '

Should the Legislature see fit to adopt the Superintendent's views, he
will be happy to furnirth such details as hie experience and study enable
him to otler.

Respectfully stibmitted.

AN1»I:K\V J. MOULDER,
Superintendent of Public Instruction.

Dkpartment of Instruction.
January 4th. lxf»L'.

STATISTICAL TABLES.

Number Built of Adobe.

Xumbcr Built of Wood.,

>— 1 c^ M ^H .— 1 1— 1 ci

Number Built of Briik .

Number of Schools..

Total Number of Girls Taught in the County...

cc«p^>n^"OCMOQO'tt~'~

Total Number of Boys taught in the County.,

' t -^ <-• n

Average Number of Pupils in Daily Attend-
ance

-* -^ in -^ 1-1 c>5

Total Number of Children attending Schools..

w e-i ft t^ M '.T i~ Oi es c cr.
1^ cc X 1- M <c 1— e^ ec

Number of Blind, Irrespective cf A;

Number of Deaf and Duml>, Irrespective of
Age

eo »-i i-i es pH 11

Total Number of Children of all Ages, under
Twenty-One Years, born in California

Number of ChiMn-n between Eighteen and
Twenty-One years of Age

t~'*«0O'>»'e<5ni-> lO M

2 ^

Number of Children under Four Years of Age.

'^ e

c <

b o

3 m

s » r;

3 — —

Total

CCCJ-CMtC— — CO i-<

h/^o^^HooaDOdcc*oaooocc

— — -> ^ — w

Number of Oirls..

00 t— t- Ci c^ <s

CI M i1

Number of Boys

I 0CI-.O — t-tte-^'OCi-'oo
o»oooco»M«oi-ipC n 1-1

Total Number of Children of all Ages under
Twenty-One Years

Number of School Districts.

»~ -™ e-i oc «>- o t- e-i o t^ M o>

ec CI es M M CO

X
'c

;

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ri ^ m. 9* •m 9t —W ^-C^ rmn wm

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ciwc«e»«"««rtr»t» — o«M«ei- — •««rs«'r«eco-*f-«-* — w<c«^

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— i-oe-fl — ©*X'^Kd'>»soc»c-: = «^w<=

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»« — »«0'^«"-r« "♦"♦«« ~i «o«««oeiflacoe«««CM X — r-ciao»'*e'

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— **«—»- — —

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c»aac» — « — *;«c>rt>o«-r-TC-ft-ccciO»-rci-" — ctCfTCiorty. XX

n — — ci — .-^c* io~ f«T „„u-, — — ^^Pto -^ — ci^cs

I-

i-c«o'*»-'e»'*c«cc« — ^«fr«os;^i~t~o»ec«'*t«ao'rt'*coc«

•^^ «^0«e« .^ r^ e^ ^ ^ rm <i r^ i-lMPI

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Average Age of Teachers — Yearss ,

f— I c^ tr^ in cc ■

i,. ,™ ^- ^« r- I

e^ .-1 '.I

»~ M »- O 1^ «

M sc M r: iM w

Average of Teachers' Experience — Year:*

r-^'

Average Salary per Month i)aid Teachers

Uow many Design to make Teaching a Perma-
nent Profession

Cucc

Female

o>as«aoceoQcoc4 -coi^ ■•nt~>o

Male.

Kumbcr of Pupils in Private Schools.,

Number of Private Schools.

» 50 K 1-1

Over 200 Pupils.

I i

Over 100 and less than 'JOO Pupils | " • *"

Over 50 and loss than 100 Pupils .

Over 26 and loss than 60 Pupils.

cc n n e^ r^ t^ :o

^ Oi t^ C^

*^ •— e^ *» w e>j

Less than 26 Pupils

«OMC>«<oacwco»-ie<5 :i-ie<so'^

Average Duration of School Session — Months..

5 M. «»

|..

.5 te

»>->oo«e'C'0«ior5'0'*'>o«o^iO

Nine Months and over

«o«««e<x»-'fl>

: : : >« : '^

Over Six and less than Nine Mos.

t«»trH'^rt^rHa>

»4 ; N : --"^

Six Months

-N'^NO've^i-He>s

e^ :i-i :eo FH

Over Three and less than Six Mos

«Oioo»"»ie>5t-»--»'

J5r-< :e4 i-rn

Threo Months.

ttSiMOCO .t">-iC^ -MC^t'

Primary

Mixed ,

Intermediate-
Grammar

High.....T.~

as— ii^oj-^-oi—M

es ; M : CO

ii > i I ^ |i •

X .= 3

eo r« M e< r« M

: « "-I ^J CC M -N ts

I -" — »^ F— -^ »-» o

M — — ri ^

— •* — oe

« 1^ 04 ^ Ml

r9 n « r« «

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o*«iO«»wt»r-

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: ^ o e

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;m i»«»«M« t : at aQ M i«'<«iM.o

; « : 11 •«»• I a:

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— :MM*0*9

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; e< w ■^ es t^

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;*««'«'««'«'V'^Mtoi

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2-S

• II iiiii 1^ • »jiii

>o M « n «• Ok t — r-Oi :«"«*«« . -« :^« :m : -h « « m o»

•X C4 ac M « : a :

l« M M v" 00 «Q •« -w^^e^ipse* ; •-< w ao

; >« :«e«M :«e»*f'N^ : r — w i m

^ : iQ M Oe : ^ « CQ M ^> ri^ •« n M i-1 CO <D CO

e^ •«c>3^>«^^« : :•*-" : ••"««e»"<<»>o-»'«»-<e<sN :«m's< »~

ccmMt-MeMM ivHOktQMco :r-Mr>»akeocoi-<e>t^-f-ie<ioao-^ li

e<c9^<oxi-— na t :«

I- C< CI -o

•o rt ■«♦ cj : I M

— ■ ^ ^ 'X

S ««) S ;^ ;<£: Ph &< y. X t: xi x x x x cc xi cc x ti m cc cfi oi H H H r^ .^ ^

'w>

If.

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f— 1

E. ^^5t: =

2- t/i ;:

r- -/■- ;i 5 _:: — ■— -r ■- ?■ J -= J= ^ "s* f
- „- = ^ 5 5 ^ = r ^ X t: c/: = -^ ^

t-s X '—: — -'■ -^ »—

^02

Total Expenditures ff)r School
Purposes

oc- o

M O r- ^

^ r-l ^ OC

r-i ~ -t -t CO -t C?

CO X

CO Ol
».t CO

1-1 M

i) o ^

S £^

'->-><!

O i~- o
O -^ CO

'.C Ol 1^

o CO i^
. ^„'*^*^^

O Ol

o o

Amount Expended for all
other PurpoKce, including
llcnt, etc

X r- O 01 C Ol "-O ;;i-

OC r- T— 1- i.O CO '^ f—

I- -O 'C O Ol — o ir

CO »— • Ca OI r- 1 -t

Amount Expended for School
Libraries and Apparatus....

O C' O Ol o o
CI o o o o o

O t- O 'C Ol
!-• t 1 Ol r-i

Amount Expended in Erection
or Kepairii uf Schuul Houses.

CO '~ I- «-0 O O
I- -t X I- O O

01 I~ CO Ol X o

: 0)

■M OI CO r; o ic

• Oi

".o i-o i-o CO I— " 1— 1

. o

«'^-

OI o

CO o

OI CO

o CO

o o
oo

o o

O <-H

O X o o o
O ^ O O lO

O CO 01 OI »o
O OI O OI C5

X CO O I— I CO

.- rr :r "^ ~ ;- ii ~ i; .■-' n; 'j- rr -5 "t »^ •'• >"- X ^ -c o I.-: o -t 3c -^i

. . ^ X ^ . I -_ ^ ^ ^ '- - -f '-^ r: ?i — . - X ■?! M i- ct o 5o 5 i cc

-f -^ ^ »r; — ri -Ji

-t 1^ o
t^ w o

X -M «0 — O

X in -^ — t?

i-l -f X

C -M

o o o • w o • o '.': o
O' o -r . o o : o t- o

M X I-

o o o o o

O O O i-t o

O O O O -M
X ».t CC X — .

O r-H

lO o o

MOO

I^O o

•M iC O

;= — . -^ o ?! -^ : X X lO r: re o OM X o -o o • r; o -t

«" ^" X u- „ ^? • — o X I- r: o *c '.': « ir: cc o ; i^ o -t

•-< •.': "M M :r "it : r: X in r. — •-•.': r? x ^ r; t- : c^ o o

rii-o r-x :v: T. -r ~ s t~-T ~ i~yi

^ o c;
cc X c.

o ' . — 't ri ri — I- ^ re 1- ir:

•>l r- lO

o X

■ !^

TOTAL AMOUNT OF STATE SCHOOL MONEYS
Appurtiomd duriuy the Year 18GL

COUNTIES.

.January Apportion-
ment, 57,774 Chil-
dren, at 85 cents
each

Jul^' Apportionment,
57.771 Ciiildren.at
56 cents each

Total Aninunt

$1,377 85

1..352 35

1.215 50

1,360 00

360 40

1.050 60

144 50

2.000 15

452 20

67 15

2.000 05

450 50

481 95

127 50

1.1 00 00

1.144 10

1.826 65

1.224 00

274 55

3,366 00

707 30

272 00

7,671 25

1,856 40

374 85

530 40

992 80

2,627 35

918 85

644 30

488 75

.548 25

1.525 75

2,803 30

268 60

543 15

319 60

205 70

548 25

1,316 65

899 30

1,399 10

$007 76
890 06
800 80
806 00
237 44
692 16
95 20

1,377 04

207 02

44 24

1,317 68
296 80
317 52
• 84 00
784 00
7.53 76

1,203 44
.S06 40
180 88

2,217 60
525 28
170 20

5,054 00

1,223 04
246 96
349 44
654 08

1,730 96
605 36
424 48
322 00
361 20

1.005 20

1,846 88
176 96
357 84
210 56
1.35 52
361 20
867 44
592 48
921 76

$2,285 61

2,243 31

Biitto

2,016 30

2,256 00

C«>lu<u

507 8 1

1,742 7(1

Del Norte

230 70

El Doradi

3,467 19

IIiiinhoMt V

75(1 12

111 39

L...- An-.K-.^

Marii.osii

3.317 73
747 30

799 47

Merced

Moiilerey

211 50
1,074 00
1,807 86

3,030 09

PlactT

2,030 40
455 43

5,583 60

1,322 58

Sau l)iego

451 20

San Francisco

San .loaquin

12.725 25
3,079 44

Sau Luin (>l>i.-]m

621 81

San Mateo

879 84

Santa Barl>ara

1,T646 88

Sania Clara

4,358 31

Santa Cruz

1,524 21

1,068 78

Sierra

810 75

909 45

Solano

2,530 95

4,050 18

Stanislaus

445 56

Sutter

900 99

Tehama

530 16

341 22

Tulare

909 45

2,184 09

Y..I0

1,491 78

2,320 86

M9,107 90

$32,353 44

$81,461 34

57,774 Children, at $1 41 each, $81,461 34.

APPEXDIX.

T^ T^ T^ O n T S

nioM

COUNTY sriMlRIXTENDENTS.

A.MAhoi: (orN'rv.

Sa mu el Pacjk Su{)erintcudent.

Ill comyiliaiico with instructions from your (K'ltartmont, I have to
r»'|M>rt. as t'ollnws :

Srhiml Lnuils. — I havi- no Uiii>\vh'(l|,'e of any I'lihlic School Lands Avithin
our lM)nU'r.

S> Imn/Jiniiins. — Ourini; th»' jtast year -vve arc cnaMcd to record the
organization of tour nrw districts, and the erection of tive new School-
houses, which increase our nuinher to twenty-two. The most of our
Sch«M>l-houses are ^<M)d. hein^ new — hut are not finished and furnished
Ruitahly. They will he completed, however, as soon as tinu- and means
will ])ermit.

Attendance at Schnol — The average attendance shows only a little over
one fourth of the wlude numher hetween the aji2:es of four and eif^htcen ;
ahout (»ne half are enrolled, yet it exceeds the average of the State for
last year. If our citi/.ons were fully aware of the great responsibility
resting <»n tln-m. of educating the rising generation, this great evil would
he remedied in jiart.

Gniilr nf Schnnh. — We have one mixed, five Grammar, five Interme-
diate, anci twelve Primarv. Jackson and lone Valley Districts, each
have sustained two Scho<>ls the most of the year. In Volcano District
thtre has heen but one Public School as yet, although two are much
needed, as there are too many scholars for one. The Trustees informed
me that they will establish two Schools as soon as public funds are suffi-
cient. A private School has been sustained a good share of the year in
tluN District. Other Public Schools than those named do not need
gra<ling.

Teachers' Age and E:q)eriencc. — A<i;e of males, from eii^liteon to foi-ty-
five ; females, seventeen and ni)\var(ls ; avera-jie. about twenty-nine.
Average time of experienee in School teaching, lour and one sixth years.
Males, from three months to twenty years j females, live months to
eight years.

Capacity. — We have eight of the first class, ten of the second, and tho
rest of the third. Those now employed are taking a lively interest in
their vocation. We believe they have received a new impulse since their
attendance at the State Teachci-s' Institute antl Convention, as near half
of our number were in attendance. Allow lis to remark here, that we
have a few Teachers who are practical Instructors and Educators, secoiul
to none.

Ki<nii illations. — We have attended l)ut one good examination this year,
which was at the close of the School in Puckerville District. In the
forenoon, lessons were reviewed ; in the atternoon, interesting and well-
selected dialogues, declamation, and composition, suited to the capacity
of the children.

Nearly every patron of the School was ])resent, and evinced much
interest in the exercises. Such examiiuitions we would like to see in
every School of the county. Then a ni-w era would dawn upon us in
the cause of education.

In most of the districts, parents have neglected tt) visit the Schools.

L'-ni/th of Term. — Schools have been sustained in the various Dis-
tricts, from three to nine months. Too many have been of the three
months term only ; average, about five and one half months. To increase
duration of term, impose a county tax for Schools, at the maximum rate
allowed by law ; it would increase our fund nearly one hundred ])er cent.

Finanris af itur tSrhin,/s. — From the State we have received the sum of
two thousand four hundred and seventy-six dollars and thirty cents ;
from the county, three thousand one hundred and seventy-nine dollars
and nineteen cents; from rate-bills, five thousan<l and thirty-nine dollars
and ninety-one cents. This nearly eijuals the State and county funds
combined.

Total receij)ts for School purposes, ten thousand six hundred and
ninety-five dollars and forty cents.

How to Im/irove Finaurex. — Legalize the rate bill — collect it as much as
possible in advance. Vigilance of our olHcials in apjnvhending those that
infringe on the Sunday law. Apj)ropriation by Congress of un(K-cu})ie<l
lands of the State, to make up the deficiency which occurs in our regular
quota of School Lands on account of Ijeing mineral lands.

Hon- TriLstees Perform th< ir Duties. — Some cheerfidly ; others know very
little about School atfairs. if we were to judge Irom their acts.

Improienunts Neeihil. — We agree with the '"State Institute and Con-
vention," that the School Law should be so amended as to authorize
the County Superintendent to examine and grant certificates of qualifica-
tions to Teachers; such certificates to hold good only until the first regu-
lar meeting thereafter, of the Board of Examiners, in the county where
such certificate was given. Also, a law to compensate the Board of Ex-
aminers for their services. We have found it difficult to convene a full
and efficient Boai-d, such as the law requires, on account of the unwil-
lingness of some Teachers to incur the necessary expense of travelling
some ten or fifteen miles, to meet for the performance of their duties.

Also, we recommend, in case a District is subdivided, in the inter^'al
between one apportionment and another, that the funds to its credit be
distributed among the new Districts, in proportion to the number of

children, between four and eii,diteen years of age, residing in each. Also,
a law should l>e re-enacteil to estaljlish a regular system of text books in
our Common Schools, in which should be included a Dictionary and a
1 Mok on morals — of the latter, we know of none better than the Bible.
roitrijh-rt thr moral jtmcers in Kt tun if ion, is to educate not quite halt' tin- man."
We found, while visiting the Sehools throughout the couiity, that in
tlie majority of them too little attention was paid to the elementary
branches, object tea<'hing, order, and [toliteness.

Ill constructe<l srats. of a few Sehool-houses, need renlovill^^ and others
more suitable shoidd take their jdaees. A greater interest is heing mani-
fested in our Tublie Sehools by patrons and Teachers. Wo hope to see
iiiijirovement on the present year.

Gtmral linnarhx. — An attentive observer cannot fail to see that the
mcanH which are brought to bear upon the educational interests of the
State are securing an improved condition and a constant progress to
our Schools. Some of tluse means have been brought to bear in our
IcgislatiiiH, such as a law consolidating the School Fund; a law ap-
]>ro|)riating fumis to establish a State Teachers' Institute, and a law
creating a County Hoard of K.xaminers of Teachers. From these we
have imme<liat«> bciu'tit. Tlie State Teachers' Institute lias been estab-
liHhe<l, under the supervision of tlie State Sujierintendent, with gratifying
success. The County Hoard of K.xaminers, created b}' law, cannot fail
to raise the standanl of our Teachei's. These will prove invaluable aux-
iliaries to our system. We are in need of more of the right kind of
laboreiv — those who have devoted their time and energies to instructing.
It is in education as in husbandry and the mechanical arts — the best
worknum is the (diea|>rst. Wliativer is worthy (»f being done should be
well di»ne. To be emini-ntly successful, a Ti'afher of youth should not
only have the re<|uisite knowledgi'. united with high moral (jualities, but
should also possess an enthusiastic devotion to his profession. Let those
who teach the rising generation feel that their calling is one worthy of all
their powers and ae<piircments. and our Schools would be of a higher
order than at present. Parents should also feel deeply the educational
interest of their children — not only fed, but mauifrM it. Parental co-
operation is a fundamental element in our Schools, which is under-
estimated. Parents shouM not. in speaking of School or. Teacher, allow a
single expression of a disrespectful nature to fall from their lips in
presence of their (diildren — for it engen<lers a spirit of insubordination
and rebellion, which, if it d«»es not show itself in the School-room, will
beneath the parental roof; thereby verilying the old maxim: '' Curses,
like chickens. c(mie home to roost."

Our children and youth will be educated some way, and we must pay
for it. and it will bo found much cheai)er to pay in the form of a School
Tax. for e<lucating them intellectually and morally in our Schools, than
to permit them to be educated in idfene.ss, by running wild, as it were,
in our streets, stores, and saloons, and then have to pay for it in the form
of a tax to suj)j)ort paujiers. jirisoners and jails.

It has been well said of our Common Schools : " These are our standing
army, the grand jialladium of our liberties." With how much earnest-
ness'and zeal should we labor to complete and embellish that noble fabric,
which was founded early in the seventeenth century, by our pilgrim
fathers, the basis of which was Universal Education.

SAMUEL PAGE,
Sup't of Public Schools of Amador County.

BUTTE COU^'TY.
J. B. Thomas Supcriiiteucleiit.

Non-Attendance. — The chief cause of non-atten(hince appears to be a
want of interest on the i)art of parents in the ediuation of their chil-
dren. They but seUb)ni visit the Schools. Teachers' rejiorts liavo come
to me Avithont the visit of a simple individual boin*^ recorded.

I visited all the Districts in the county, except one. durini^ the month
of October, and si)ent a lialf <lay with each Sehool in session, and I was
particular in hearin<; all the branches studied.

Apparatus and libraries are ijreat auxiliaries to the Sehools. antl should
be furnished by all means. They cost but little, and a small contribution
from each family in the District would furnish them ; the black-board is
indispensable in the School-room, and yet, I find many of our School-
houses without it.

Trustna. — Trustees have grossly neglected their duties in several instan-
ces in this county. Two Districts have made no rejiort this year, although
frequently i-eniinded by the County Suj>erintendent. Out of twenty-
three reports from Trustees, only ten have been signed by the whole
Board — in some instances there was but one signature.

Onjnntzcd Srhooh. — Wc have in this county twenty-seven organized
Schools, of which number three have failed to report, and if they lose
their ]>ortion of the School Fund for the next twelve months, itf will be
the fault of the Trustees, for which there is no remedy.

Xitmhrr f>/ Vhihlnn, Cntsiis Ttikimj, ttr, — I find from the census returns,
there ai'e tifteen hundred. an<l seventy-three chihlren between the ages of
four and eighteen years in this county — an increase of one hundred and
forty-three over last year. Last year it cost Butte County seven hun-
dred and twenty-eight dollars to pay Marshals for taking the ('ensus.
This year I urged upon the Trustees the necessity of saving that amount,
by talving the Census themselves, and found it met with general favor.

Finanrts. — The ten cent tax has been levied in this county, but is en-
tirely ina<le(puite for the su])])ort of our Public Schools. The amount of
money received from the county, from XovemI»er first, eighteen hundred
and sixty, to November tirst. eighteen hundred and sixty-one, was four
thousand one hundred and forty-six dollars and twenty-seven cents;
amount received from State, one th(»usand nine hundi-e<l and eighty-one
dollars and fifty cents; amount raised by rate-bills and private subscrip-
tion, two thousand seven hundred and thirteen dollars and fifty-nine
cents.

E.aiminations, etc. — We have had four regular examinations of Teachers,
and have granted twenty-seven certificates, and rejected ten. Our Board
has adopted a high grade of qualification, and expects applicants to
come up to it. or be rejected. We have only three first class Teachers
in the county — the others come under the second class. Our Schools
are not graded ; the reason is — such a diversity of text books in at least
one half of our Schools. I have found in .some as many different au-
thors as there are pupils, rendering it impossible for Teachers to classify
them.

Respectfully submitted.

J. B. THOMAS,
Sup't of Public Schools of Butte County.

CALAVERAS COUNTY.

Robert Thompson Superintoiulont.

Ill (_-omi>lian<-t.' with instructions IVoni your department, I have to re-*
j)ort us follows :

S'htHtl LamU. — See former rejiorts — no change.

S>hoo/-/iou»eA. — See report. The only change is the completion of one
in the course of erection last year at Murjihy's. It is, all things consid-
ered, the l»est in the county, and is very finely situated. It cost, as you
will see l»y the report, four thousand dollars.

Attnuliiiuf. nt S'/mol. — Although the daily attendance is not as high, in
Moportion to the whole numher connected with Schools in Calaveras

iinty. iM we desire, yet parents are realizing more fully the necessity
lveej)ing their chihiren constantly in school; and by comparing the

jiorts for the lust few years, we can see that improvement has marked
'II- progress in this particular.

The migratory charaeter of our people must, as long as it remains, make
our Schools appear unfavorahle to any unac(piainted with our circum-
stances. Fanidies removing from one District to anrjthor, will have their
children in two or three ditleivnt Schools during the year, which increases
the total numher of scholars attending School, without increasing the
daily average, although tiny may attend the entire tei-m. They are regis-
iired us connected with the School if they attend but one day, and are

lUted in each Sch<»o| they may attend; hence, the real ditterence he-
i»seen the whole number attending School and the daily average, is not
as large as it appears in our rei)orts.

The best plan within my knowledge tor improving the Schools in this
respect, is for the County Sujierintendent and Teachers to urge con-
stantly u|>oii the children an<l parents the great necessity of regularity
in attendance at School, and not cease to urge it until the evil is re-
moved.

Whrfhrr Gnuletl or not. — Two of our Districts have graded their Schools,
and two others are making arrangements for that ])urpose, so that within
the coming year wo shall have four graded Schools in Calaveras. There
will be no necessity of grading any of the remaining for several years to

■ me.

Ciijtariti/ of Ttarhtm. — It gives me much pleasure to be able to report
improvement in the cajiacity of our Teachers. In this respect, our
Schools have been so inijirovcd from year to year, that I am now able to
sav that our Teachers rank well, and'many of them are excellent. They
are not only good Teachers, but generally take a lively interest in edu-
cational matters. They seem desirous of understanding all the modern
improvements, und are* generally becoming masters of their profession.

Teachers, First Class ..
Teachers, Second Class.

Total

Examinations and Exliihitions. — There have been no exhibitions during
the past year. The teachers generally agree that they are injurious to
the progress of study in Schools where the ])]-e}»aration lor them is made
in term time, and as the vacations have generally been short, they have, I
'think, Avisel}' omitted them altogether. The Teachers generally have
examinations either every term or once during the year, when the
parents and friends of education assemble for the purpose of witnessing
the progress the scholars may have made in their studies. We consider
these examinations of great use to the Schools, both in their ettects on
the scholars and the teachers, and hence encourage tliem as much as
possible.

T7.*!*Vs of Pannts. — I think there is no great change in the Irequency of
pai'ents visiting the Schools. They visit tlicm genei'all}' on examinations,
but not often at other times. Mothers tiiid it dilhcult, when they have
the cares of a family, to tintl much time for visiting Si-hools or any otlier
place, and this is one reason why the}* do not visit our Schools more fre-
quently. They have tlieir own work to do generally, and are too much
fatigued, even if they have the time occu' ionally, to visit Schools.

Numhcr of Month* each Srhixjl has hfcn h'pt Oj>en. — Our Schfxds have kept
open, on an average, a little longer than last j'ear. In fact they have
improved every year in the duration of their sessions. The Schools now
average six and tlnve tiftlis months each, for the year. This, consider-
ing the number of small Districts in the county, is very encouraging, aiul
shows that in a very few years the most of our Schools will he annual
Schools.

Finances (f the Schfjoh. — The means for the suppoa-t of our Schools
during the last School year, have been raised, about one half from rate-
bills, one quarter from county taxes, and one quarter from the State
Fund. We have liad only a tax of ten cents on the one hundred dollars
in our countj' as 3-et. This has been owing to the large debt with which
the county has been and in fact is still buithened. 1 have encourage-
ment from the Supervi.^iors that they will raise the School tax as soon as
they possibly can feel justiried in so doing.

The Trustees in the smaller l)istricts have resorted to various expe-
dients to raise enough to keej) their Schools in session, and have gener-
ally succeeded well. There is a ver}' liberal feeling manifested in our
county in favor of Schools, and in several instances men without families
have paid from one to three dollars per month toward sustaining a
School in their District.

When we can have a tax levied of twenty-five cents on the hundred
dollars, we can have more than one half of the Schools in Calaveras
County annual Schools. I think this can be done within the next two
years. The rate-bills would then be so small that no one would particu-
larly feel them, and our Schoids would be easily sustained.

How Trustees Perform thiir Duties. — I am hai»j»y to be able to say that
the School Trustees of Calaveras County perl'orm their duties well.
"\\ ith very few exceptions they are prompt and do their duty cheerfully.
The}^ understand better than formerl}' what their duties are, and take a
pride in having the Schools under their care of the proper character.
I am sorry to say that I am compelled to make an exception of one Dis-
trict, from which I have no report from the Trustees. This is the second
time that that District has lost its share of the Public School Fund by
the neglect of its Trustees.

Improvements Needed. — In my last report to you I referred at length to
the thirty-first section of our School Law. I still consider that that sec-

tion \^ (loiiii; our Scliools u very grout injurv every j^ear it remains on
(lur statutes. Why slinuM it not be anientled ^ Can any one give one
■ 1(1 reason y If so. I would like to hear it. It is next to ini])ossihle to
luply with it. and if eoinj>lie<l with it would injure the Sehools much
re than it does now. It is an ineubus. antl if foUoweil would eripple*
<'hv Schools eoutiinially. 1 have advised our Trustees to entirely disre-
gard it. and notwithstanding its obvious meaning, to go direetly opposite
to the direeti<»ns of that seetion. It is a elog eontinually being thrown
in front of the wlieels on which the Sehools move, over whieh the Trus-
• s must be continually at work or all is at a stand-still. If it gives
iiie no trouldc. it is beiause tliey do not take any notice of it and pass
il Itv as though it was iii>t in the School Law. No set of Trustees can
r.illow it without being continually embarrassed bj- it. The Trustees of
laveras disregard it. and estimate and genci-ally collect rati's monthly
udvunce. but then those who desire {o eseaj)e the rates and tind fault,
I there always will be some, complain that tiie Trustees are not pro-
ceeding according io the law. We might as well undertake to keep up
the I'»»slotHce department on the credit system as our Public Schools, and
liV not change the law so it will be the duty of Trustees to estimate
,.i collect the numthly rates in advance? The law should contbrm to
the course which the Trustees are almost coinpelle<l to (:ike in the
matter.

I trust that that very obno.xious thirty-tirst section will not be able to
astain life through the coming session of our Legislature, unless a great
and radical reformation takes place in it. My views on that section are
more fully set f«»rtli in my last re|>ort.

Xuml»r of Pririitf Sihx'l*. — There is but one Private School at present
in the county, and that is rather a help t(» the Public School than other-
wise, from the fact that it serves the jMirposes of a primary department.
Where Public Schools are well managed. Private Schools cannot exist,
except under peculiar circumstances.

(.'rnrnif R>m-nh» i>j>"i, j:,/,in,li»n.—\u entering ujjon a tield as vast as
the subject of Kducation opens to us. «.ne may very readily be somewhat
at a loss to know what direction to take, or up<.n what subjects to speak.
I tind myself in that position at the present time.

I am desirous of speaking <»f that which nniy be of some practical use,

ri.l in some way contribute to the cause of Education.

The first (luestion that ])resents itself is our present Sclioo liaw

here it relates to the exandnation of Teachers. 1 noticed considerable

.mplaint in the rei.orts <.f C.unty Sui.erintendents, made last y^y, »n

re-anl to inconveniences arising from that law, and a mention ot the

trimbles of getting Teachers xn act on the Board of Lxamination.

The troubles complaine.l of are the very reasons 1 have lor likmg the
law. and the more the inconveniences, the more va uable I consider it
This at first may ai.pear somewhat strange, but when you understand
mv reasons, I ain satisfied that \ve .shall not disagree.

1 had been watching for some such inconveniences and was truly
pleased when they came by the amendments of the School Law m the
winter of ei-hteen hundred ami fifty-nine and sixty. Irom the .me I
was first elected ('(.untv Superintendent, to that time, 1 had been trying
to establish a County teachers' Association, but never got enough en-
conra-ement to warVant me in calling one, for I considered that to tp
and fail, wouhl be w.,rse than not having any. But as soon as I saw the
change in the School Law. re(,uiring Teachers to be examined by a Boaid
of Lxamination, I determined to use it for a double purpo.se. i thc'-

lerc-

fore selected the Board of Examination in such a manner that the mem-
bers wouUi be as far distant from each other as possibk', and bave it
composed of well qualified Teachers. It was tben next to impossible for
the Board to assemble every time u Teacher mi<j:bt wish a eertiticate, and
it would be very inconvenient for the Teachers to travel from one mem-
ber of the Board to another for an examination.

Ample notice was then given of the time and place, when and where,
the Board of P]xaniination would meet, and how loni^ they wouhl I'cinaiii
in session, at tlie end of which time they wouUl s^rant certiticatcs to all
who intended to teach in tbe county durini^; the coining y«-'Jii". it tound
qualitied. Tbe result was even more favorable tiian we anticipated.
The Teachers all came, and all who (K'sii-e<l to teatdi in the county dui-iiii;-
the year came also.

As I mentioned in ni}' last report, we remained in session two day>
only. During this time the Teachers became interested, and asked a
session of a week's duration at tbe next meeting, and hence the call was
for a week this year.

We met tins year on Monday and closed on Friday, dividing each day
as follows: eacli foren<»on was oecupied by tbe Hoard ot" Examination in
examining Teatdicrs, each afternoon as a Teachers' Institute, aiwl each
evening as a Convention. We even found a week too short, and many
matters of interest bad to be j)<)stj)oned to oui- next session. The at'tei--
uoons were occupied by the more experienced Teachers in giving familiar
lectures, and illustrating the best modes of conducting the dillerent
studies in School, and the evenings by lectures from ditferent [)ersons to
whom we had ])reviously extended invitations, and by essays and discus-
sions on matters pertaining to (leiieral Hducalion. A constitution and
b^'-laws were adopted by the Teaidiers, and arrangements made to have
a ]KMMnanent organization estalilished.

In this way of conducting the examination, the trotibles eoniplained of
by Superintendents in their rej)orts would lie obviated, '^feachcrs ])er-
fectcd in their jn-ofession. and our Schools greatly imjtroved. li' Teach-
ers should come to the county afterwards, and wish to teach, let them go
from one member of the Board to another until they had seen a majority
of the members, and in case any of the Teachers of the county did not
attend tbe annual meeting of Teachers, requii'e them to go to every
member of tbe Hoard and cause them as much ti'ouble as possible.

I mention this ]>lan. for the Teachers in Calaveras enter into it with
the greatest interest, and I doid>t not the Teachers of other counties
would feel a like interest, if annual Teacbei-s' meetings were established
in tbe diHercnt counties of the State.

Were not my report already too lengthy, I would like to s])eak of tbe
high o]>inion I entertain of the State Teachers' Institute and Educational
Convention, held at San Francisco during May last. I must, howeve>-
be brief I have perused the proceedings with not only much pleasni
but witii much proUt to myself In the pi-oceedings I find many genis,
to arouse the mind to reflection, and many valuable hints and suggestions
worthy the study of evei'v Teacher, whether old or young. 1 mucli
regret that my business would not allow me to attend. To be sure, it i-;
but clearing awaj* the brambles and planting the seed, but ere long that
seed will grow and make Avide-spreading trees, under whose cooling
shade tlie traveller will rest in safety, and the husbandman dwell in peace.
Domestic bliss will flourish where the tree of science grows, and the
innocence of youth will bo kept pure by its benign influence. Let the
friends of Education then plant and cultivate with care, and they will, at

least, Ikivc the hiitihfaction of Icnowinir that their hibor.s will bless the
fiitiii'e ^generations of earth.

I 0I..S0 l.y ten.leriiiir you my hearty coiiirratulations for your success as
■>tjito Su|»eniiten<leni of I'uhlic Instruction.

ROTIHRT THOMPSON,
Sup't of Public SchoJis of Calaveras Countj.

COLUSA COUNTY.
Kk.v.nk Si'.vi.i)iN(i Superintendent.

Owin;; to the short lime that has elai)se(l since I cnter;Ml" upon the
• iuties of my oltiee, I «io not know that I have anything; to oli'er which
will bo of a<lvantai;e to the cause of Common Schools, in addition to
that already eml>o<lied in my n-jiort. whicii has been forwarded.

In the limited experience I have had in the duties of my ottice, 1 find
;i di^po^ition amon^ some of the l)istriet Trustees to en<^ai!;e those for
Teachers who do not intend to maki' that a profession, but merely
assume the calliiii; tem|>orarily. until sonietiiini^ better, in their estima-
I ion. shoidd offer.

1 find it also u common sentiment, freipiently exjiresscd b}' employers,

O, he will do well enough to teach our children," when perhaps an

examination of the candidate proves him destitute of the elementary

pliiicijdcs which shoidd be p(»ssesse<l by even a I'rimary School Teacher.

\ pi'rson may be a i;ood ch-rk, or aide to talk ^Iil>ly upon the common

>|»ics of the day. and yet b*' a very poor Schocd Teachei*.

One othi-r item I would like to call att«'ntion to. The law requires
district 'I'rustoes to transmit a cojiy ot" their own re|tort, also of the
Census and Tea«diei->' reports, in their several Disti'icts, to the State
Sujierlntendent. 1 timl it has been the custom, in this county, for some
to con)|dy strictly with the law, whilst others send all their returns to
the County Superintemlent, trusting to him to forward them ])ropcrly.
This irrt'i;ularity of action leaves at least a doubt in the mind of the
County Su|»erintendenl, as to whether the ))i-oper returns have been
ma<le from all the districts in his county.

Woubl it not tend to more certain and rci^ular action if the District
Trustees were rcipured to make their returns to the County Superin-
tendent, and throujjh him to the State Superintendent of Public Instruc-
tion y

All of whicli is respectfully submitted.

FRANK SPALDING,
Sup't of Public Schools of Colusa County.

CONTRA COSTA COUNTY.
T). S. Woodruff Superintendent.

I herewith transmit to you my report of the condition of Schools in
this county, according to the best information 1 have obtained in the
short time in which I have acted in the capacity of Superintendent.

By the census of the School Marshals, recently taken, it will he seen
that the number of children in the (n)unty, between four and eighteen
years of age, is :

Boys

Girls

Total

tUl
G18

1,259

Under faur years of age

Bet.Vv'cen eighteen and twenty-one

Born in California

Deaf and Dumb

Blind

Knrolh'd jiii|iils

Average in daily attendanee

Number of Schools in the c<»inity

Total number of Boys taught in county

Total number of (Jirls taught in county

Cost or value of School-houses >ind furniture

(182

1 .:5U7

013

372

321

292

125 00

Amount of Scliool Funds received from State

Amount of School Funds received from county taxes

Amount raised in Districts, by tax, rate-bill an<l private sub
script ion

Total receipts for School purposes

§1.742 li'y
2,017 05

3,181 34

eG.941 75

Amount paid for Teachers' salarieR

Amount expended in erection or repairs of School-houses...

Amount expended for School libraries and apparatus

Amount expended for all other purposes, including rent

Total expenditures for School purposes

$5,120 56

1,159 00

12 00

263 02

§6,5*4 58

In some Districts there is considerable interest taken in Schools, and
parents and guardians realize the importance of rightly educating their
children; but in many cases, little or no interest is manifested, and chil-

dren are iillowed to go to School or stav ut home, just as they please
thus makini; the Teacher's task douhly hard.

Of tJK' nineteen Sehools that have heen in session duriiiii; a part of the
year, the Miinihi-r of ehildren attendinir is small, compared with the num-
ber who should avail themselves of tiie advantages attbrded them to ob-
tain an ediieatiun. The |)rineipal cause of non-attendance is the distance
from Sehool-houses. an<l the want of motive power — money.

As far as I have been able to learn, the Teachers have given general
satisfaction, and nearly all of them intend to make teaching a profession.

If I have been rightly informed, the Hoard of Sui)ervisors have agreed
to raise the tax t«» twenty cents on one hundred dollars, instead of ten.
as they have done previously, which will enable the Schools to continue
for a longoi* peril n|.

As the County Superintendent receives but little ])ay. it should not be
expected of liim to spend much niore time than the law requires. It
seems to nje. in (»rder to have him of much benetit to the Schools in the
county, he should «levote sufficient time to the matter to visit the Schools
often, that he may watch their progress and be prepared to give sugges-
tions when necessary. It has been the custom to visit the School once
during the year. I cannot see much benefit resulting from such a course.
It shoubl not be expected he could do otherwise, however, so long as he
is not suflieiently compensated.

The number of calendar Tuonths I iuive put down as the Trustees
re|)orted. but I think, in some cases, they call twenty days a month,
instead <»t' thirty. Some of them have been prompt in sending in their
reports, otlu-rs have been tardy, and one has failed to report.

*It would be the means of doing much good were an association of
Teachers formed in the county, t«» compare notes at stated periods and
discuss the best methods of teaching, and awakening an interest in study;
al.so, the best manner of governing refractory pupils and teaching dull
ones.

There are .some goo<l Scliool-houses in the county, but others are fit
for any thing rather than jtroper ])laces in which to moidd the plastic
minds of our yoiitb. We hope ere long to see this class of School-houses
unsided and unl>attened without, and unfinished and unmappcil within,
minus fences and shade trees, exchanged for the neatly tinislied and fur-
nished School-house of Kastern memory, surrounded with tasteful fences,
|)lay grounds, and shadi* trees. Were even one half of the money, now
s|)ent in c«»stly billianl tal)les, and expensive parties and entertainments,
used in buibling and furnishing School-houses, they would present a very
different appearance from what they now do, and the money would be
much more wiselv laid out. Hut the public mind in this county is grad-
ually becoming nu»re interested in these matters, and I trust that soon
our Schools and School-houses will comjjare more favorably with those
in Kastern States. Meanwhile it is necessary to let patience have her
•• perfect work," and do the best we can, hoping for better and brighter
<lays.

Respectfully submitted.

D. S. WOODRUFF,
Sup't of Public Schools of Contra Costa County.

LOS ANGELES COUNTY.

John W. Shore Su|H'rinU'ii(loiit.

In compliance with instructions fVtun your dcjcirtnicnt. I have to i-c-
port as follows :

School Lands. — Number of nixteonth and tliirt y-sixtli sections surveyed
in the county, one hundred and ci<^hty.

SthooJ Sfffionx srftlfd on hcforp Surret/. — Section tliirtv-six. in TownHhi])
two south, of Kan,<;e Fourteen west, of San Bernardino meridian.

Schoi)! Sirti'oiis srf//ri/ 1)11 n/frr Sitrni/. — None known.

S</ii/o/ Srrtiona Cortrn/ hi/ Muiran (iraiifs. — One hundred and sixty — so
estimated.

Prnliiililf Xnmhrr of Ail<lltlnn<tl Srlionf Srrfions to irJiirfi Coitnfi/ vonlil }ir
entitlril if I'nitcd Statrx Surrri/ in re comphlrd. — Twenty; nu)st of which
will be ^ood for stock and ^rain.

Number of Sefioof-hoiises in Counti/. — Ei<^ht ; two brick, three frame, three
adobe. The two of brick, forty by forty, two storied, cii^ht feet hi<^h,
each haviuix two School-rooms and two recitation rooms and two clothcB
rooms; well built, but not well jdanned ; inditferent ly widl ventilated,
oidy by w iiidows and doors ; well li^hteil. waniu-d by stoves, furniture
well a<lai)ted and of medium <|uality.

These two SchooMiouses are in tl»e city of IjOs Aiiijeles — one at one
extreme and the other at the other. It would have been better, most
decidedly, if but one had been built, and that in the centre of the city,
convenient to all, and adapted to a moiv perfect ^^radation of the Schools.

There has, however, been very eonsiflerable ini])rovement in the Scliools
within the two years last ])ast. They have been <ri'ade<l as ]»ci-fectly as
the position of the SchooMiouses wouM ]>ei"mit.

The Schools are as follows : Tw(» i'riimuy. one Intermediate, and one
Grammar. Ihitil, ])erhaps. the middle of last year, elective affinity was
the oidy rule of i;rade and ])lace. Since then, however, tlie lioard of
Education have taken the reins and cliani;ed the current of affairs. The
Schools ])romise well for the materials in them.

One School-house, pine frame, old Mission, eighteen by twenty-six by
ten; one room full size of the house; cheaply built, roughly fui-nished,
well lighted and ventilated. Kough and cheap, however, as it is, it is
much better than none, and has cost the District, and esi)ecially Mr. Tib-
bits (one of the Trustees,) great effort and sacrifice. Built within a few
months.

One at El Monte, frame, forty by twenty-eight by twelve feet. Built
in partnei-shi]) with the -Sons of Temperance." who occu]>y the second
story as a hall. Well but cheajily built, and cheaply furnished ; furniture
not very well adapted. Built within a few months, at veiy great .sacrifice
to the ]K^o]»le. who are, many of them, living on lands not their own.
The whole house is in one room, like a hall with its principal door in the
side, at the centre, facing the street.

One at Los Cuervos, frame.

One at San Gabriel, adobe. Eoughly built and poorly furnished.

One at Los Nietos. adobe, now in course of .erection^ twenty-eight by
twenty-two by nine feet.

One at Anaheim. Santa Ana District, adobe— the best of all the adobes;
w^ell built, with a view both to convenience and appearance. It is twenty-

tw.. I.y twcMity-three hy twelve feet. The School-room, with rooms ad-
joiimiir. now ocelli. ii'<l ''V the fuinilv of the Teacher.

This Sfh.H.l promises well. The room is well veiitihited and li-hted,
and siitHciiMitly well iiirnished I'or the School in its infancy.

By these facts it will he seen that in School-houses the county is im-
|.n. villi;. We have more of them, and hetter. than last year. Five new
S(h..ol-houses have been huilt within the year; and althou<ili not of a
liiixh order, yet they are such as will serve well until outo:r()wn.

Alhiuhinrr at Sth'Ktl. — Atten<lance small, in i)ro[>ortioir to the nunil.er
-hown l»y the census, and als<» in |)roi)<»rtion to the numher enrolled.
The iuca;;rene8H <»f the roll, in |)ro|M.rtion to the census list, is conset|Ucnt
u|H>n the e.xtcnt of tli»' Districts and iii<litfcrence to Ivlucation. toi!,etlier
with the want of narcntal contnd ; and the mea^Mvness of attendance in
c«>m|.aris(.n with the mil is fn.m the same causes. thou«rh more especially,
in.litfcrcnce and want of parental control. Increase of interest of pu])i1s
in the Schools, hy imnrovenu'iit of the Schools tirst. and hy such exhihi-
ti«»ns and other like things, is perhaps the best means of iniprovement in
attendance.

Four Schools only ^railed as yet. viz. : those in the city of Los Angeles;
all Mthers are too isolated, and too new and small to «;rade, except, per-
ha|»s. th<' «»ne at Kl .Monte, which has two teachers in one room. ]iy
dividing; the r«»oMi the School inii;ht and t»ui;ht to he i^raded.

J//« <»/■ Tnirfins. — One of twenty years; one of twiiity-three V'cars ;
one <d" thirtv-one years; two about fort}' years; one alxnit tbrty-five
years ; two between twenty and thirty years.

J/nic mitni/ ilr^itjn lo ttfikr Trarhiuij a I'rrnuiut nt Pro/essiov. — Six.

Cnjuirifi/ nf Tau-lur». — Seven first class, for the ijrade ol' their School.s ;
lour toleralde.

/"J.rjnriinrr in Trncfiimj — How muni/ Viiirx. — Most of them of sevei'ul years
experience.

H.r<iiniiiiitinn^ — fj.rfiihifiims — IVxjV.s Ay J*irtiifK, tfr. — Fxauiiiiations gene-
rally semi-annual. Kxhii.itions, none durini; the year. A'isits i.y parents,
very few, and notliing done beyoml the ordinary routine of the School
to create interest.

The Teachers of the county are too few, perhaps, to justify holdin<; a
Teachers' Institute, or Convention; yet such a measure woiiUl tend
;;reatly to excite interest. Public meetings, with a<ldresses by attractive
speakers, would perhaps be the best thing for most of the Districts or
localities — I think we may try it the coming year.

Number of months i-ach School has been kept open :

Districts.

Months.

('itv of liOs Ant'cles

()ld ^lission

• )
•J

El Monte

3 18-30

San (iabriel

Santa Ana

liOs Cuervos

Los Nietos

3 15-30

B'-mnrks on thr Finaiires of the SrhooJa. — Last year, a ixcntleniaii <tf
wealth ottered, unaskt'd. to give six liimdrt-d dollars, in aid of the city
Schools, upon condition of certain iniproveiuents in the Schools, the i»riii-
cipal of wliich was the employment of a good male teacher in one of the
Schools, taught hefore hy a lady. The im])rovements were made, an I
the money was paid. There are men of wealth in this county who valii'
though, possihly. they do not fully appreciate, the Education of the youiii;
and it is <juite ])ossiltle othei's. hosidcs the gentleman mentioned aliove.
might, if appealed to, give liherally in aid of our tinances.

Festivals and fairs would do well here, for we are a fun-loving ]>eople,
and willing to ])ay for all tlie fun we can get. Then, too, they would
greatly intei'est pupils and Teachers and paivnts.

ll<nc Trnsfri's Perforin tlnur Duties. — In Los Angeles, hetter than ever
l>efore. with corresponding improvement in the Schools. In the Dis-
triets where Schools have l>een opened this year, and where School-
houses have heen huilt. the Trustees have done well. Attention called
to the facts, through the ])ress. hut especially pul>lic nu'Ctings and ad-
dresses, in the several localities, would j)rol>ahly do away with the pro-
sent inditl'erence of Trustees, where it exists, and do great good.

Inifirorenieuts Xeeileil. — The grand deticieiicy. in all our Schools, is
inditterence. Place-filling, doing just as little as may he — this is only
too i)revalent with ])eople. Trustees. Teachers and pupils. We need
arousing, tirst of all, and instructing also. Indifference causes irregular
attendance, hecause parents do not care. Slow ])rogress also, in School,
hecause teachers and jtupils d() not care. Poor furniture, and little of it;
poor hooks, and few — l)ecause Trustees and everyl»ody else do not care,
riiei-efore, most of all. we need to he shaken out of our indifference.
>Vn<l then, t<)o, it cannot he <louhted that wise instruction, whether of
parents. Trustees, or Teachers, wouhl he well received and greatly hene-
ticitd ; for we do not know to«> much, alth«jugh we fail to do even that
which we know in some instances.

Xittnher of Private or liult jieiident Schools^ Ariii/riin'es and (ol/iyrs in the
Cuunti/. — Three indei>endent Schools, one of which is ])rivate. Two inde-
pendent Schools in the City of Los Angeles. One private School in tlie
Puente.

(leneraf RemarLs upon Eilumtion. — Education is everywhere im|)ortant,
both for the evil it saves, and the good it does. .Vnd it is es]»ecially so
in this section of the State, to save it from the scourge (d" an uneducated,
indolent, amhitious generation, who. if not trained for honorahle ]>ur-
suits an<l usefid occu])ations. will hecome a power in the country, ready
for any scheme ]»romising money. ])leasure. or notoriety.

Padie Kaho, the incumhent of the Konmn Catholic Parish of Los An-
geles, recently said that the materials were here for the worst banditti
in the world — the uneducated boys and young men of the native stock ;
and perhaps he was not far out of the way. Once, under the old regime,
the Koman Catholic Church educated and restrained its own children
and youth. Not so now. Xot one of a hundred, perhaps not one of a
thousand of them, are under tuition of the Padres and Sisters, and as
yet oul}' a few of them have been gathered into the Public Schools.
They are out of School. When under ])roper tuition the}' learn quickly,
especially figures, writing, drawing, etc. Out of School they learn as
fast. l)ut in a very different way. Many of them can ride a horse to
perfection ; shoot a revolver from a horse's back as they run, so as to kill
a squirrel almost every shot ; or lasso a bear to admiration. They are,
out of School — a rich soil left to thorns and thistles.

Tlu-y can. liowcvi-r. l»o i^sxthcred into the School. Keudilv enough,
they learn the vices .)f Antericans. and add them gracefully to the vices
of their fathei-H ; and they can he gathered and taught the virtues and
knowledge of Americans too.

The little School of Los Nietos is an illustration of this. The Teacher
had no knowleilge of the Sjjanish. (the prevalent language of the Dis-
trict.) yet he has more than twenty children in his School, studying En-
glish oidy. and maUing delightful |»rogi-ess in it. lie has twenty-tive
pupils only, and (hey all attend every day. and hitherto have each paid
I wo dollars per month for the jirivilege. and heen delighted to do so.
lie re<piires order, almost military in its i»unetilious pertection, and they
love that too.

Now, if hy any and all means the several thousand children- of suita-
Me age for the Si-hool can he attracted to it and trained for usefulness
and respectahility. and saved from hecoming the worst handitti in the
world, they, and the community, and the State, and the worM. will be
va.stiv the gainers.

.JOHN W. SHORE,
Sup't of Puhlic S<ho(ds of Los Angeles County.

i'LACEi; ("orNTY.

A. 11. (iooi>nini Su])erintendent.

i herewith transmit my annual report of the condition of the Public
Schools in the County of Placer, for the year ending October thirty-first,
eighteen hundred ami sixty-one. Having hut recently entered upon the
disidiarge of the duties of the office, I am, necessarily, unac(puiinted
with the condition ot" the Schools from ])ersonal observation, and have to
depend muiidy upon the reports of the ditferent School officers of the
county for my infortnation ; hence my report will not be as full as I
could wish.

The total cost ot the School-houses in the count)' is nine thousand five
hundred and sixty-.six dollars and sixty-two cents.

Amount receivefl from the State Fund

Amount received from the County Fund

Total amount from State and County

Amount received from Taxes, Rate-bills, etc

Total receipts

$2,142 56
2,911 05

$5,054 21
3.420 26

$8,626 05

Amount paid for Teachers' Salariet*

Amount paid tor Ituildinii; and rej^airing School-houses

Amount paid for School Apjiaratus

Amount paid for Kenf. etc

Total for School Purposes

87.790 20

1,852 86

200 00

255 01

810,802 21

You will notice some discrepancy between the receipts and expendi-
tures. I had no means of correcting it; for it results from the careless-
ness of School officers.

The numlier of children, hitwcen four and eighteen years of age, is

as follows :

Boys
Ciirl.^

Total 1,504

707

Under four years of age

Between eightrrn anil twenty-one years of age.

Born in California

Deaf and Dumb

Blind

Number attending all the Schools in the county.

Average daily attciulance

Public Schools

Private Schools

•.»(I2

1,400

B07

504

The average number of months during which Schools have been main-
tained— six months,

I tind. by comj^aring the report of the year ending October thirty-first,
eighteen liundred and sixty, with the report of the School year just past,
that the Schools, in many respects, are not in as prosperous a condition as
they were during the year ending October thirty-first, eighteen hundred
and sixty. Many reasons can be assigned for it ; among the most j^romi-
nent are. the frequent changing of Teachers, and the incompetency of
many of those employed. Of the thirtv Teachers employed in the vari-
ous School Districts during the year, onh' fourteen answered '-yes" to
the question whether they intended to follow the profession of Teaching.
One half of that number are but second rate Teachers.

The Trustees of some of the Districts complain that they cannot afford
to hire good Teachers, although convinced of the nrrmHitj/ of it. Again,
others think, and among theni many intelligent people, that almost anv
one will do to teach a Primary School. Fatal mistake. If the foundation
be not perfect, the whole superstructure will sufi'er. Those who teach

merely for sordid fjain. })ecaiise tliey can find nothiiii-; else to do, sliould
be driven from our Selxjols ; and the way to do it. is to employ compe-
tent Teaciiers — those who hoiitir and fair their profession.

Mifj^'f-ffiisrs. — The Sehoo|-hi)uses are all huilt of wood. Three or four
are <;ood. a few are ])assal«K'. and the rest are unfit for the purpose for
which the}" were inteiuleti.

A School-house slu)uld he huilt with due retjard to comfort, convenience,
and correct taste. Both the house and its surroundings should be pleas-
ant and attractive.

T'Hi liir* (''iiirnition. — Beiui^ convinced that the best way to arouse the
|)ubli<- mind to the imjioi-tance of the cause of Kducation, is to a;et them
to<;t'ther in Convention. I shall call a Countv Convention as soon as i)os-
sible.

lininrh'n Tiiiif/ht. — None but the l*rimary and Intermediate. Xo scholars
in the higher Mathematics, ami l)ut one in the Classics.

(Jratlfn. — Our Schools are not graded. One School has a Primary De-
partment ; four Schools ou<;ht to be ;;raded.

Trj-t-IiiKtkx. — Of text-books we have a threat aluindance. The books
ou^ht to be uniform. A law should be passed pnn-idini:; for uniformity
of text-lwioks in the Schools of the State.

A. II. (lOODRICn.
Sup't of Publie Seliools of Placer County.

SACPAMKNTO COUNTY.
rV W llvTcii Superintendent.

An examination of the statistical report herewith transmitted, will
afVonI a pretty correct statement of the condition of our Schools for the
pa'^t year. HeturnH, more or less complete, have been received from every
histrict except one. bearin-,' within themselves the evidence of a greater
amount of care and exa«titude than has hitherto been observed. They
exhibit an increasini; interest in the subject of Education, a deeper sense
of its importan<-e. and a steady and gratifying improvement in the means
of its promotion.

In my la-^t two annual reports. I emleavori'd. briefly, to collect from the
return.s* of the School (»fJi«-ers the indications of ])rogress which they
seemed to furnish, and was encouraged to believe that the important in-
terests they represented were attracting the attention they so richly
deserved. *In these anticipations I have not been disapjminted. The
present report furnishes ample evidence of a gradual and healthy advance-
ment in all the essential elements of a good and efficient School system.
Among these, are the increase in the number of Schools, the greater
leni;th (.f time during which thev were maintained, and the larger average
attendance of pui>ils. In all these important features, though still far
behind what we ought to be. we have reason for congratulation.

A few sj)ecial deductions from the body of the report will not be with-
out interest.

The number of Countv Schools reported last year, was thirty-four;
this year they amount t(> thirty-nine — increase, five. The entire number
of pupils reported last vear. was two thousand ; this year, they reach
twenty-three hundred and titty-four — increase, three hundred and fifty-

four. The amount of money raised in tlie county for school purposes, by
tux. private subscription, etc., last year, was fourteen thousand nine huji-
drod and oiLi;]dy-two dollars; now it is given at fitteen thousand six hun-
dred and sixty-three dollars and forty-six cents — increase, six hundred and
eighty-one dollars and forty-six cents.

The nund)er of months duiMng which all our Schools were maintained
in the Country Districts, was, last year, reported at two hundred and nine
months, and seventeen days; now, it is two hundred and eleven months
and seventeen days — the average being six months and twenty-eight days
and seven-tenths of a day — nearly seven months.

It is proper to remark that, in ever\' instance, the length ol" a month
has been brought up to the required standard — that of the '• calendar
month."

AVith these general results, derived iVom the statistical statements
furnished by the Trustees, we have good cause for gratification. They
S])eak well for the spirit and enter|>rise of the ])eople. and demonstrate
their appi-eeiation of the benefits t«» i»e di'rive(l trom the support of the
Common Sehool system. While the juvenile jtopulation, between foui" aiul
eighteen years of age. has increased, from thirty-idne hundred and sixty
to forty-three hundred and seventy four, the Schools have risen in num-
ber from forty-eight to fifty-two. In the county above, tlie census re-
turns rejxu't an excess of only one Inindred and thirty-three over last
year; yet, the Schools, for their accommodaticui. have increased from
thirty-four to thirty-nine, and the ])U]»ils enrolled, Irom ten hundred and
eighty-nine to eleven hundi-ed an<l ninety-four.

]iut bey<»nd these encouraging indications, more important, because
striking at the root <»f an evil which, more than all else, has i-etardeil (lie
]»rogi'ess and weakened the influence of our Schools, is the evident itn-
})rovement in the character of the Teachers — those upon whom the ulti-
mate success of the system must dejiend. No one, at all familiar with
the ])ast history of the Country Schools of California, can have failed to
be im|)resscd with the necessity of a radi<al change in this respect. The
difticulty (•<)nsisted. pai'tly. in a wajit of thorough (luallfication and intel-
lectiud training. (»n the ]>art of many of the ap|»lieants for <jur Schools,
for the duties of an Instructor, and ])artly — perha|)s more extensively —
in tiie absence of a desire. (»r determination, to make the occu))ation of
teaehing a j)ermanent business. Tbrown by the tide of immigration
U]»on :i strange coast, and among a population of strangers, disai»i)i)inte(l
in the hoi)e of immediate emjiloyment, many of them unuseil to teach-
ing, and unfitted, by education or disposition, for the duties of the school-
room, they were compelled to resort thither as a means of temporary
subsistence, as the last resort for pecuniary recuperation. They had no
heart in the work. The energy which alone can give life to business
and insure success, was wanting. There was no j^rofessional ])ride to
stimulate them — no glowing enthusiasm in the ])rosecution of their laboi->
— no conscientious (levotion to the interests of those committed to their
charge. In such hands the system could not pros])er. The imme, indee<l.
was preserved, but its resources were too often uselessly squandered.

These remarks ap})ly to some of those who, during the past years, have
been engaged in our Schools. Yet. there have always been many honor-
able exceptions; and some of these still remain at their posts, faithful to
their sacred trusts, energetic in maintaining the usefulness, not only, but
the dignity of their profession.

Happily, the attention of the peojde has been directed to the impor-
tance of a thorough reformation in the management of their Schools, and

A:/l;;;::;;Sn\;ln;t/:!v';i'^jinn-t Y '^"^'■'^^ ^^^^ ^^^^^^^ Teachers.

el.anu-ter an.| ri„u.ss<7th,<^^ •,,'?' '"^"l^' «*" *'^« trustees into the

Exanm.atin,.. The prop Hetv ot\te r . u' ''"" ''^ ■'^^' ^'^^•"'^•^- ^^^'^^''^l of
this Hoard. see.ns, indee/l Vo^L' ,s I 1 - /" "TT^ '' eertiHcato from
assent. However it niav act ii oHw-,- ! m\ ' • .*'' "'^'"'^ ^^'•^"1 general
inconveniences, it has do.^^ w", ''''":' l)^^^- \^-'^'' »^' 'V^i^'^ I'^om a few
reniedierl hy an aniendnu-nt to the law .1^ '."^•onveniences nii^d.t be

int.n.lentt.M...Mi„.ttlH.exaM ai ninea r'"'^^^^

sity, and to^M-ant a certiHcat w , n . ""nHnhately uri.-ent ncn-cs-

suhs,.,,uent v..uUu- nu-eti,.^; o,' , " " /^^ ") ^*'T ""^'' ^''^^ "^^'^^

a..u-nd.non, sl...ul.l .v.p.ir.'tl.. oan to Jm ^^^^^^^ "" ""^"- '^"^•'' '^^^

l...si. of pa.sini. „p„„ the (lualiti Vt , « of rT'^ '''''^""" *^^^' tJ.e pur-

k..tice <;»• then; sLsi,>M eo M J i^ ' ^ can* .dates prcHented to Ihom.
known. The preso, t law 1 ^^"^^'••;. and their occurrence -enorally
qu.ncy with wVid'h^Z^^^;:;!!;;:;^;:;;-, ;-•'•----; ft-n the id
ei^lit weeks, for exanude tlu IV . .. - " ^V''^ *'''' 1'*^^^ six or

act with me in the'" Citv f A w ZV^ ""' '''"^"^' ^""«-^'»ted to

allv. twice a week " ' • r s, rvi^r^. '^' "\'^ 'V ''''''''^ '''''^' occasion-

tes. or ,,„ali,i..u.i,.„. «.,„„,, ev. ,.„,' l'" rh^sy,! t "'■''^■"' """ "^

ut^ urre hct<,re thc^n. sdd.nn more than two, and -enerallv onh o p

;Mrl';ant was prosen,..! at a time. The amount of 1; , Jn i iio fbr

Ins .hMy. wh.n thoroughly an.l taithfullv perfornuMl. constiu-?/^^^^^^^^^^

ax. tor winch the Kcntlenum concerned a/v deserving, of h , ' hi ," o e

hnn the ,hank.H of the Superintendent, a.ul someUmes ec'ui vocal

M.w«*7xof the suhiects of their .scrutiny «^'l'"\ocal

remmrraled" 1 v' '^'"'^"' ''"" "•^''"'•-r^^' '^'' ^^^'"'•^' ^'^ Exan.inati..n are
umunerated hy an asscs.sment on the candidates. In others I h-n.-n

luM-e an. stated periods for the sessions of the Hoard when appHeaTts

na.v present tlu.n,.selves for .gratuitous exannnation, hut whe sZmoned
.n enuMx^eneu-s. or upon other occasions than tho.so of the rcu ", "cs
sn.ns an examination fee is charged. However indisposed to burden our
leachorsw.th a ta.x for their certiticates, I believe that a provis on "n

he law sundar to that last alluded to would exercise a beneticial effec-t
it has frequently happene.l. within the past veaiV that an entire indif'

"niem^^^ -nanifested. by applicants foV tll^schools, for the con-

nn *" ^^"""'- ^'''''" ''■''''" ""^'^^'^' "^' ^'' appointed meetinir

ad requested to present themselves, they have permilt'ed it to pass fb^;
no other cau.se than their own unsettled and wavering determinations
a.Ml perhaps the next day. or the next week, have comerur^inc/Jhe neces:
sityot an immediate examination. Such occurrences are by no means
ntrequent. yet the appeal cannot be denied without dissatisUkm If

ovorr"'L''7"^'"''''''^' *''''''•'' '''''}'''^ '''^''^y '''^^ ^^' individual, it mi^dlt be
oxeilooked; but it too olten happens, that it seriously incommodes the

people of a district, ready to open their school, and innocent of the diffi-
culty which has arisen. The knowledge that a tax, however small, would
be imposed l»y the assistant members of the Board, whenever summoned
on unusual occasions, would do much towards corrcctini^ this really
troublesome objection to the pi-esent law.

The examination should, moreover. l)e tinal — or. at least, <rood for a
term of years. Excej)t in cases of ajjplicants for certificates for the lower
<>-i-ades. there is no i^ood reason for the fiv»juent repetition of the same
ordeal. For Teachers admitted to the (ii-ammar Department, every third
or fifth year would be sufficiently often for the renewal of their license,
and then only to ensure an effort to improve and perfect themselves in
their duties, and to keep up with the improvements introduced, from
time to time, in the methods of instruction and the practice of their
vocation.

Tlici-e should, at lea.^t. be an amendment to the ])resent law. ])roviding
for the renewal of a eertificate at the expiration of its legal term, except
for good reason, or in the discretion of the Board.

Anunig the measures adopteil in this eounty, since the organization of
its Common Schools. 1 know of none of greater importance, or calculated
to exert a more benign influence over their ])rosperity and efficiency,
than the recent formation of a Teachers' Institute.

The first impulse towards this movement, was the organization of the
State Teachers' Institute, at San Franci.xco. The necessity of co-o|>eratin;:
branches in the county was early felt by our Teachers, resulting in a
Convention in August last, at wliich the basis was laid of a jteiinanent
existence. Addresses were delivered by gentlemen interestetl in the
subject of Education, and the jiroceedings. generally, were characterized
by a laudaiile desire to make the Instituti- j)ractically useful to all engaged
in it. Copies of the piiblisheil proceedings have been sent to individual-
in various counties, and it is hoped that similar institutions may arise in
different portions of the State. It is designed to meet again on tlu'
twentieth of the present month, when the measures already taken will
be consummated, and a j)ei-manent organization effected. The object will
be to make it. as nearly as our circumstances will permit, a Noi-vial
Srhnol — a means for imj»rovement. for the interchange of views upon
topics jiertaining to the <ut of teaching, and for the reception of sound,
practical instructions. l»y the most experienced Teachers. It is believed
that it will prove a most efficient agent, co-ojierative witli the State In-
stitute, in the important ])urj)oses it has in view. The establishment of
similar institutions in our most populous counties, would exert a haj)])y
influence over the prosperity of our Schools. They would awaken a new
interest everywhere; enlist the sym])athies of all who attended them;
raise the standard of in.struction ; increase the zeal of all engaged in tin
work. and. by their effect upon the ])ublic mind, create a demand foi-
good and well-ijualitied Teachers. They would drive from our nudst the
ignorant and unworthy usurpers of our ScIkjoIs, and tend to consolidate
the united talent and energy of every honorable and deserving member,
to the encouragement and advancement of his profession.

Another good effect resulting indirectly from the Teachers' Conven-
tion lately held here, has been the adoption, by the Board of Examina-
tion, of a system or standard to which all applicants for the various
grades must attain. The law. unfortunately, has established no grades,
and fixed no standard of qualification. This duty seems to have been
left to the discretion of each Count}- Board or Superintendent, and, with
the aid and concurrence of our Board, a rule has been adopted here

which has since been riiridly adhered to. Our County Schools, being
usually of a mixed character, embracino; ])upils of all grades of advance-
ment, have been considered as, properly s|)(.':ilving, "Grammar" Scliools.
The t<tandard of examination embraces' Knglisli Grammar, i>ractical and
mental Arithmetic, and (;c«)irrai)hy c()mi)lete; Orthooniphy. heading,
History of the Unite*! States, IVnmanship. and Elementary'Pliil()so})iiy!

The latter of these Itranches is not. indeed, usually taught in ourCount}-
Schools. but was considered an accomplishment, indispensable in every
Teacher of a (Jrammar School — nec-ossary to the utility of his mis-
sion as an instructor of youth. There has, tiuis far, been little ditti-
culty in tinding those able to pass the test. The immigration of the
past season has brought many good Teachers among us, from the Schools
and Colleges of older States, and the supply from abroad, as well as
from among the young men an<l women, gi-aduates of our own Schools,
will, (h)ubtless. for some time, exceed the demand.

There is. therefore, no longt-r an excuse for inditfei-ence or carelessness
on the part of our Kxamining Boards — n«» ajjology for the exercise of
leniency when it can Ik« dont* oidy at the ex|»ciise of efficiency, and to the
jtositive detriment of the Schools. The ado|>tion of a strict standard
will nieet the aprobation of every ca])able anti intelligent Teacher, and
will be con»plained of ordy by the incompetent.

It wouhl prolong these remnrks too much to enter into a review of
the evils Ktill existing among us. tending, more or less, to retard the
progress of our S(diools and the improvement of the childi'cn. To only
one a l»rief allusion can be made — the habit of a fivcpient change of
Teachers. This custom has always extensively ])revailed in nu^st of our
Districts. Even when the School term has been extended for two or
even three <|uartei*s, it is not uncommon to observe a desire among the
patrons and Trustees to make as nnmy changes in their Teacher. Ob-
jections, sometimes trivial in their character, are ui-ged by some one of
those in attendance upon the School, which, in passing from one indi-
vidual to another, become so multiplied and exaggerated as to create a
general dissatisfaction. The fact is too often lost sight of, that perfec-
tion is the lot of no one, and that the abilit}- to give entire and universal
satisfaction is the faculty of few. I regard it as far better to retain the
services of a good and faithful Teacher than to make frequent changes,
even with the prosj.ect of each time, obtaining one much superior in
intellectual attainments. The dithculty. however, is that the fjrffr,- is not
always secured by the change, and that while one conii)lainant may be
reconciled, another immetliately succeeds him.

I know of no remedy for this evil, except the gradual ditl'usion of
pro])er views among the people, the dissemination of liberal principles,
and the appreciation of the inconveniences attending the prevailing
practice in this respect. It is an evil ait'ecting, not alone the county,
but the city also. It has, in my judgment, done more in j-ears past,
towards the injury of one of the most important branches of our City
Schools, than all other agencies combined. I allude to the High School.
It is to be hoped, however, that this jKraicious policy is here at least at
an end.

In conclusion, I can but repeat the conviction that we have every
reason to be gratified with the progress of the past year. The actual,
internal condition of our Schools was never more healthy.

F. W. HATCH,

Sup't of Public Schools of Sacramento County.

SAN BEEXARDINO COUNTY.

A. F. McKiNXEY Superintendent.

E. JioHBixs Deputy SujurintiiKkiit.

In compliance with instructions }r<»ni your (li-partnicnt. I have to r
port as follows :

SrliDot L(tii(Js — Sirtieiith nud Tliirii/-Sij:(h Srifinns. — 1 <io not know that
there are any surveyeil School Lands in this county, but the nuniher of
School Sections must be vi-ry larj^c when we consider the vast propor-
tions of the county, extendini; from Ijos Ani^eles. on the west, to the JJio
Colorado, on the east, and from San Diego and the sea. on the soutii. to
Utah, on the north.

In order to bo dul}- impressed with its magnitude, we have only to con-
sider that it is larger than New Jeis'.y. Delaware. Maryland, or any
New England State, excepting Maine, and several of these States com-
bined W()uld only suttice to form an area of equal extent.

Manv of the School Sections, though, must fall on mountain or desert,
and many more on land oeeupied or claimed under ^Ie.\ican title. Yei.
there are. within the e<»unty limits, immense tracts of heavily tindiered
country, not claimed or oeeupied. though the timber, at the most eligible
points, is rapitlly disaj»pearing lietore the w<»oilman"s axe, at the bidding
of commerce and architecture. It is hope<l that, undei- the late law touch-
ing the State School Lands, surveys, locations antl sales may be diligently
prosecuted, and our meagre School Fund thereby so enhanced as t^
ditt'use the lights of science through all our borders.

JJistrutu, Sr/ioofx, and Sr/tool-lioiisfs. — City District covers the chief por-
tion of the City of San Henuirdino, all the others are rural Districts.
Number of School children reported liy the last census, two hundred and
thirty-four; total number attending Scho<»l dui-ing the past School yeai-
one hundred and twenty-tive ; average daily attendance, (four months i
seventy. It contains two substantial adobe School-lmuses, in proximity,
one room each, twenty by thirty feet, twelve feet high, with a cajiaciix
for forty-eight pupils each. all<»wing one lumdred aiul tifty cubic feet t<>
the pupils. The diouses are well tinished outside, untinishcd inside, pre-
senting nought to view but naked walls and open garret ; indifferent I \
furnished, but much better than the generality of School-houses in tiif
county. The location is not oidy uninviting, but quite untit. being in tin-
heart of the city, adjacent to places of business, and not a hundred miles
from •' Whiskey Point."

Nor tree, nor plant, nor shrub, nor flower.
Nor grassy plat, nor viiiy bowt-r,
Xor fount, nor fence, nor streau, nor well.
But only btlfry, duM, and bell

A'loru the plaoe

Where buys and girls

Make gidd_v whirls

Up Scienee HUL

Mount Yernon District lies west and north of City District, extendi). _
within the city limits and on the Mill Mountains northward. Numbo'
of schoolable children, one hundred and eight ; attended School, fort_\ -
eight; average attendance, thirty-five; four months School. School-

house, a Hinull, low, adobe — sometimes crowded almost to suffocation in
the loiiir, hot, summer days— with a cuiiacity for twcnty-threo pupils; no
pureh. entry, or tire-pluee, a stove, ouv dour* j)lenty of windows ; no well,
sprin<<, or other water, short of a quarter of a niiio! Furnitui-e, two rows
of U)i\'^ henches an<l desks, too close, with ptissai^e hetween. Jjoeation,
an extensive, it-vel plat, rather pretty durin-,' winter and spring, but
destitute of sha<le.

Mission District, located at the Old Mission, seven miles from the city,
•^outheast, and extending many leagues around. Number of children of
school ago, seventy ; attendance at School the ))ast year, very slim ; year
before, ten ; average, nine. School-house ma<le of slabs, up and down,
entered and lighted by means of two doors ; well ventilated, by sj)ace8
bttween the slabs. Furnished, when last visited, with tire-j)hiee, two
bat-lvless benehes. tine long plank, fastened (";') to wall, for benefit of chi-
rc»graj>her«. Location, on street, rather pleasantly- situated on " Cotton-
wooil IJow." with ph'nt}' of shade tri-es ni-ar.

Mill District, situati-d s«»utheast of the City District, is the smallest in
thf county in i-xtent «»f surface, and, excepting Santa Ana, in juveiule
po|tulation. Number of children, between four and eighteen, tifty-tive ;
attended Schools, twenty-nine; ilaily average, eighteen and two thirds;
three montliK' School. Log School-house, with interstices used as ven-
tilat<»rH. Capaeity. tweiily-Hve hundred cubie feet, or about twenty-threo
pupils. Furniture, several lengthy (I had almost said legless) benches,
without baiks, and miv long jilank for a writing desk. Thei'O was a
tirr-plar«« and chimney in om; side, but "the floods came, and the rain
descended, and the winds blew, and beat uj»on that" chimm-y, • and it
fell, and great was the"' rent in the side of the house. Situation, retired
and plea.sunt, green all the year; too wet in winter ; no trees imuiediately
around.

Warm Spring District, situated cast of City District, and north of
Mill and Santa Anna. Number of children of school age, (reported,) one
hundred and lifly-tive ; total attendance, sixty; average, thirty-two; five
and orM' half months School. School-house of wood, with a capacity for
nineteen pupils, according to the rule. Furniture, long benches, some
with backs, and wall desks on three sides. Well lighted and ventilated
by means of wirubtws opening on the horizontal plan. JiOcation, by a
beautiful grove, on an extensive grassy jdain, with most charming land-
scape scenery — fit place for the moral, mental and physical develoj)mcnt
of the future man.

San Timoteo District — the populated portion of this District is far
removed from the busy haunts of other men, and verges on toward the
Colorado Desert. It contains ninety-nine School children, of which
nund.er only seventeen attended Seh(>ol, the remainder not being within
reach; average daily attendance, for four months, fourteen. School-
house, rent i'rijv, property of resident Teacher ; material, adobe; capacity,
thirty-four hundred and' fifty cubic feet ; locati<m, pleasant.

An'ierican District is situated southwest of City, extending somewhat
within the city limits. Number of legal School children, ninety-four ;
total attendance, fiftv-three; average, thirty-three; four and a half
months School. Adobe School-house, very good; fire-place at one end;
well lighted; ventilated by raising windows, or through broken panes.
Furniture, long benches, with backs and without ; one long desk and one
table. Location, on a gentle eminence, sloping right, left and front. No
trees just about the hcuHe; beautiful little stream of water a short dis-
tance otr, where lengthening shadows tell the hour of "four."

San Salvador District occupies the whole southwestern portion of the
county, and is hxnrv enough for a kingdom. It includes a number of
Spanish, and someAmerican and mixed settlements, many miles apart,
beside^' numerous isolated ranchos. Number of schoolable children, one
hundred and sixty-four; attenchmce. twenty-six; average, seventeen; six
months School. Adobe School-house, rented, with ground floor — hence,
noiseless; very good jilan ; tire-placi' in corner ; furniture, as usual ; situ-
ated on a gentle slope, with higii hill in the rear, and in front an exten-
sive verdant region, vine-dad and wooded.

Last, and least in juvenile population, comes Santa Ana District, so
named from a '' pretty small" river, gently gliding through it, (thence
through Mill, thence through San Salvador, southwesterly,) imparting,
by means of artificial channels, fertility and Iteaut}- to many a semi-
embowered farm. This comjjrises the eastern portion of the former Mill
District, which was divide<l for convenience and amity. Numl»ei* of legal
School children, forly-four ; total attendance, thirty-five ; average, twenty-
two and one-half for a term of three months. Uented School-house, of
wood, altout the size of a respectable chicken-house; furniture in )>ropor-
tion. The location of this School-hou.se is all that could be desired, it
being literally embowered beside the " water brook," (artificial.) secure
alike from wintry blasts and ''Sol's relentless ray," thus affording most
desirable retreats for recreation antl an ins])iring communion with Nature.

Attnufdiirr at S^lmnl. — By a careful examiiuitioii :uid analysis of the
archives, the following facts appear:

First — The total nundter of pupils attending all the Public Schools
during tlu> vear ending Oetober thirty-first, eighteen hundred and sixty-
one, was four hundred and two. which is a gain over eighteen liundi'e(l
and sixty of sixty-three j>upils, although no School was kept in Mission
District the past year.

Second — The average time during which tlie Schools were maintained
was four and a quarter months, being a falling off from the average of
the previous year of one (|uarter of a month only.

Third — The sum total of the average attendance of the several Schools
amounts to two hundred and thirty-nine, or an increase of twenty-six
over the ])receding year. But in order not to entertain a wrong notion
of the actual amount of schooling during the year, it should be kept in
mind that these figures slutw an average, not for the year, nor even for
eight months, or six, but only for, sa}'. four months, poco nuix 6 menos.

liut pursue this theme a little further. By an apjtroximate estimate —
not having the data for an accurate one — I will put the number of pupils
attentling ])rivate Schools during the year, who attended no public one,
and of course do not figure \\\ the above calculations, at about sixty-five.
This will make a total <»f four hundred and sixty-seven attending all
Schools, public and private ; or if we make a slight allowance for incom-
pleteness of Trustees' Reports, we shall have a grand total of four hun-
dred and ninety, or a gain over the antecedent year, for which like
calculation and allowance were made, of sixty-five.

These reckonings show an aggregate attendance during the year,
without regard to time, equal to about one half the number of children
between four and eighteen, which is another link in the chain of improve-
ments, though Mission had no School. Gratifying as these conclusions
are. as showing considerable advance, it will, nevertheless, appear that
the total amount of schooling, as to time onl3^ was but little more than
a tithe of what it should have been in order to be anything like an
approach to a complete system ; for, multiplying the reported daily aver-

aire of each School J.y the munher of months it was kept open, and sum-
min<r uj) these several amounts, we have an ai^irrcirate of sehoolino- of
nine hundred and ninety-six months; whereas^ put'tinir the nnmhor of
children for the year at one thousand, an approximate medium between
the l.e^rinnin^' and the close of the year, includin<i; an unreported District
;ind some remote unori;anized points, and aUowin^r tjiat each should he
-ent t(» School re;,M'l»i*ly ten montlis in the veiir, we see that tlie a<r<'Te-
gate am«)unt of .sehoolini,' should have been 'about ten thousand months,
or about ten times the above showiuir. which indeed would be somewhat
moditied by takini; into the account the amount of tuition at Private
Schools, say, one hundrc<l and titty months, makini; eleven humlred and
fifty in all.

thus. Sir. you have a i)Iain matter-of-fact <lii,'est of School attendance,
in all its phases; and th(.u<^h this exhibit be not so flatterini-- as one could
wish, yet it may, indeed, be (juestitmed whether it woidd appear to dis-
advantaj;e placed al<»n^side that of some other counties quite as comnactlv
Kcttlcd. ^ -^

•• Misery loves company ;" so we console ourselves. Bo that as it may,
much must be excused in our <ase. to the sparseness of p(tj)ulation. and
the intmense size of Districts, where but a fraction of the (^would-be)
School-jre»ini^ (diildrcn are within reach of School.

CiiuntM of Xun-Attruilaiuf. — I have alread}' exhausted this suhject, or it
me, on former oeeaMions, but the sum and substance are sparseness, iso-
lati«»n, want of unity, and enthusiasm ; lack o\' public money, and too
much «lependence thereon; scarcity of Teachers, and the unuillini^ness
of some to teach for low an<l uncertain wa^^es ; worldly-mindedness of
some pe<»ple. poverty of many, and tlie likes and (li>;likcs. prejudices and
opinions, ol' a <;oodly number.

Plans for Improvement in this particular. — Subject used \\\) long ago,
but may l»e epitonuzcd. Vv^'i' .Schools in every District eight months in
the year; visits by State Superintendent, and such mode and amount of
compensation to ('oiinty Superintendents as shall place the ottice on a
permanent financial basis, and prompt the incumbent to give himself to
this one work with a spirit and a faith that shall remove mountains and
tread down every obstacle. Then may we expect to see the shadows
flee before the sun of science — l»ut o?i these points I forbear, lest I should
seem to you to have rcnntunted old hobbies, only to be cast down again.

Sffioof Visitn. — It appi'ars from the Teachers' reports that visits of
Trustees an<l parents were nnulc more frequently in some Districts than
formerly. The Superintendent visited the Schools frequently, and did
not fail to address the children in a familar and simple manner, in order
to awaken their interest and direct attention to the oltjeets of Schools,
and the uses and abuses of knowledge, and to give them desirable infor-
matitm, anrl be an example to the Teacher.

Eimtiiiinti'ma. — No examinations were held during the year. This is
wrong. There shouhl be a jtublic examination at the close of ever}- term,
and the law shoubl make it binding. Independent of this, the Trustees
have an undoubted right, when they emjthjy a Teacher, to require him
to hold an examinati(.n at the close of the term. This they ought to do;
and then, in conjunction with the Teaclier. should exert themselves to
the fullest extent, not oidy to be there themselves, but to see that every-
body is there with his wile. This would be a powerful motive to exer-
tion both to Teacher and pupil all through the session, and would awaken
a lively interest on the part of parents.

Exhibitions. — No exhibitions to report. Have a few words to say on

this subject. The abuse of School exhibitions, by too fjjreat frequency
and the too theatrical nature of some of them, has brouj^'ht them into
disrepute Avith a large and respectable class, who, regarding solely the
evils ai-ising out of tlie misuse of what is good in itself, fall into the folly
of condemning the whole thing, forgetting for the moment that we may
make a wrong use of the greatest good. In such a case we ought to
apply oui-selves rather to the correction oi' rniauses than to the indiscrimi-
nate censure of that which, if rightly used, may be of the highest utility.
But while 1 would by no means di-neountenance exhibitions entirely, as
tending, by tlie drill and jtractice they ensure, to the cultivation of elocu-
tion in all its branches, as wrll as to the improvement of voice, memorj'",
manners, and the like, and as having the etfect to relieve the tedium of
studies and the monotony of School life, to make School more interest-
ing to the youthful pupil, anil furnish a motive to exertion — I would yet
discourage their too frequent recurrence, as a great evil, by taking up
too much time, by giving j)arents too much troul>le and exj)ense, by
infringing too often the established routine of study, and as having a
demoralizing tendency on School discipline. 1 think once a year about
often enough. an<l then no ])ains should be spai'cd to turn it to the best
account for all concei-ned ; not by attempting too much, but by judicious
selections and perfecting all in theii- several ]»arts. and. if ]»ossible, by
giving every one som«t/iiiii/ to do. Kvery thing low should forever be
barred by good sense and decency. Wit, humor, and the like, as well as
music, should be interspersed through the jtrogi-amme. or the interest of
an exhibition, in the case of youthful performers at least, will not be
easily sustained. Above all, should every j)art be ada])ted to the caj)acity
of the speaker. I would recommend rhetorical exeicises once a week in
all Schools.

lytrtuns. — In addition to the usual juvenile addresses on occasions
of School visits, the Superintendent, last winter, planned a round of
Educational Lectures to parents and people generally in the rural dis-
tricts. Owing to inditlerence. short memories, ami other causes, the j)lan
was only imperfectly carried into efiect. There was a fair attendance,
at best, in sonie few Districts, in others less; and in one case, on a lovely
Sabbath afternoon, nobody was there except the complacent, not much
disa]ij)ointed lecturer. Perhaps a more excellent way would be, n<^t to
rely upon jirevious notice, but when visiting a School, to notify a lecture,
through the children, and call the people out the same or the following
night, without giving time " to forget all about it."

Edurntlinttil Convention. — The annual C\)unty Educational Convention
was holden. principally, on the twenty-second of Eebruary, C(nnmenc-
ing, however, the night previous, and ending the next. The following
is a synojisis of the exercises :

Thursday night, February twenty-first — Lecture on the Seven Won-
ders of the World, by the Superintendent.

Friday, two o'clock, r. m. — Lecture by 11. M.Willis, E.sq. ; Subject:
Washington.

At niglit — 1. Essay by William S. Clark, Teacher, on School Educa-
tion.

2. Address b}- the Superintendent, on Free Schools and School Taxa-
tion.

3. Essay by Miss R. A. Pearson, Teacher; Subject: Intellectual De-
velopment.

Saturday night, twenty-third — An animated discussion of the "Woman
question," as to her equality in education with man. Question decided

l.y the Ju.lircs accordln.ir to wciglit of arirumcnt (?) in the neo-ative a
minority <lissontin«^. '

The exercises of the Convention were interspersed with verv pleasant
and enliveninir miisie. vocal and instrumental, hv Miss Pearson and the
younir ladies of her Selux.l. Attendance irood throughout, and an inter-
est awakene<i and sustaine<l to the last.

FINANCES.

Itoceived from State (^1 ^o-? 5g

Received from Coiinty Ta.xes 321 (53

This last beautiful little sum, though so trifling, has been no little help
in keei)ing up School house repairs and improvements, or in paving rent;
i>ul ten times the amount would not more than suffice toinalvc the
School-houses credital>le abodes for Science. The State monev is, of
course, entirely devoted to the |>ayment of Teachers, and in some Dis-
tricts, a portion «ir all the c(»unty money ; in which cases the School-
house is presunu'd to be good enough without ti.ving. or else not woi'tli
ti.xing; probably the latter. The small amount received fronx the State
is almost an agi^ravation. but after all, better than none.

One or tW(» Districts, by the closest economy, have managed to keep a
little money ahead, but generally it is aj)))ro|)riated in advance.

In Salvador District a School was maintained seven months, indepen-
dent of rate-bills or contributions, except for the Teacher's board.

In San Timoteo the Master taught four mi)nths for the Slate and
County Fun<ls. more or less, finding himself and Si-hool-house.

In all other cases, rate-bills or subscriptions, precarious and disti'iist-
ful. Were resorted to for part j»aymcnt of Teachers' salai'ies. .Mill
.Missi(Mi and Warm Spring had money una|»|»r(»priated at the close of the
year. In sudi cases it is held by some that such surj)lus money cannot
be used for Scli«>ols the tbilowing year. As anomalous and unreasonable
as this may seem, it is yet a necessary inference from the language of
the law, section seven. Appendix to Commentaries ; though this, doubt-
less, was not the intention of the framer.

Ifi/ir to tmprore tfu- I'^ntinrrs ami inrrefisr the Dnrntinn of the Schools. — The
ordy linal remedy I can suggest for the low state of the finances and the
shortness of School term, and that — somewhat uncertain and ol)jec-
tionable with some — is a resort to District taxation. Only in a single
instance has it ever been a))plied in this county, and then it succeeded to
a charm, although it i-aised some clamor at first. In that case, the
Teacher, who was the (Ndlector, told me he collected every dollar with-
«Mit a levy. Hut the uncertainty of the result of the vote, to begin
with, the heavy expense of advertising in the county paper, added to
that of a-ssessing ami collecting, if success ensue, are obstacles quite suffi-
cient to deter even the most resolute of the Tru.stees from the under-
taking. Were it <Iiscretiomiry with them to post written notices, which
would be more effective than advertising, .some of them, doubtless, would
"go in" for a four months School at once, and then try the tax; in
which case they would receive all -aid and comfort" from this Depart-
ment. But the law seems to be imi)erative. I would recommend a
slight motlification of it in this particular. Other atid hiijher measures
for the promotion of these great objects, 1 leave to the -'powers that be."

JIow Tnisti'cs Perform thir Dutifs. — TnistecH arc RO craniped for
ineaiis. iiiid litive so many to ])lc-aso, upon \vlioin they are dei)i.'ndent lor
a lara;o sluire of the Teacher's ])ay. while, nevertheless, they are ex-
pected to have a School in full hlast all the year round — that their situa-
tion is truly unenviahle. The tact is. too much is expected, hy many, of
the piildic luoney. I have s(jmetimes thought it were hest to have none
than so little, so' that the ])eople mif:;ht have to rely wholly npou theii-
own resources. Some would seem to reco<ijnize, in a few small cents of
j>uhlir mouci/, the mai:;ic ])ower that should educate u generatit)n; and ott
as they discover their mistake, as oft they must, they are ready to sus-
))ect "somethiiiijj wron^.' and -wonder what hecomes of the money."

There is a class of pci'sons too, who claim the rij^ht of scndini; their
children to School tree, just h)ng enou<;h to use uj) theii- )»articular shai'c
of the School Fund, and no Ioniser, then di-aw out and pay nothing;.
This riifht is sometimes very erroneously, as I conci'ive, conceded hy
Trustees. The le;,dtimate etleet of this princijile, if allowed to ohtain,
would be totally to demoralize the systen», disorganize the Schools, and
ruin the cause of Puhlic Ivlucation. The case stands hrieHy thus: the
Tj'ustees have a litdr School money ; to eke this out so as to nmke it of
any avail, even to the legal term of " three months," in many cases,
thev iiiiist levy a contrihution in some way on all who send, except those
wiiose indigence shall entitle them to exemjition. This they may do hy
rate-hill, suhsi-ription, or thi' payment of a monthly or (pnirtcrly rate, us
they may deem most elfectual. This, from the very necessity of their
jiosition. is injplied as part of their powers and duties, or their oHice, tho
School Law, tlie puhlic fund, an* all a farce. Let tlu- contrary view pre-
vail, and disaster and ruin overwhelm all.

Another obstacle, seriously im])eding the oj)erutions of some of tho
Trustees, has been the ditticulty of obtaining suitable Teachers. This
is the principal reason why no School was kept in Mission District. In
fact, since the constitution of the Hoard of Kxamination. there has been
an actual scarcity of Teachers — not enough, all told, to Hupjily all tho
Schools at once. Certiticate^ have bi-en refused t<» s(*me, others have
not ajtpeared before the Boai'd.and some whose certiticates have expii'cd
have not been re-examined, liut present c<uivenience. and even protit.
must oi'ten bo waived for the sake of a greater advantage in the futui'c.
It is an evil that will work itself out in time, if the ]>resent system bo
adhered to. So we will • wait a little longer," and still live in hopes.

Could a jiermanent system of Free Schools be inaugurated, so that
Trustees and Teachers could ]»ursuc an intlependent course in the line
of right and duty, and not be huu'jr to the cajirice of " Tom, J)ick and
ILirry " for a dollar or two. the Scliools would l)e much more etticient,
and soon become a pcjwer in this land.

On the whole. I do not see that the Trustees generally, hamjjcred and
straitened as they were, could have done mucli better in maintaining
Schools. In one or two cases, though, I might justly complain of a
hast}' and injudicious use of the money, but I will not make invidious
exceptions here. Yet, there is one particular in which they are nearly
all at fault, and that is in failing to keep the records so much needed as
data for their annual reports, and for their own guidance in their finan-
cial operations. Hence it often happens that their reports are errone-
ous and have to be corrected, unless they apply to the Su])erintendent
for lielp in the first instance. Of the late Trustees' reports, but one was
correct, without aid from this office. The honorable exception Avas Mount
Veruon District. This state of things Avas owing much to a change of

Trustf«.s in the middle of the Sthool year. Hereby it must be seen to
be of soiiK- imi.ortarue that the rrustees should be elected in November
instead of April. I have also known Trustees so obtuse as to suppose
they had only to report for what time they had been in oflSce.

lm}nor,ment* Xr,,l,<l. — In addition to the ehan;^'es in the School Law,
incidentally reconnnended in the body of this report, I would suniivest:

First — That a uniform system of School supervision by CounU' Su-
perintendents, elected as such, would be more etticient and symmetrical,
than (»ne encunibered with u;;ly excej>tions and • i)rovideds;"'for a Super-
intendent, elected and paid as such, would naturally feel more responsi-
bility, and en<ra;re in this work much m(»re heartily than an •' ex-otlicio,"
a.'*i<le from the probability of his hcini; a person better adapted to it by
disposition and education. In tnost counties, too. the Count}' Clerk is,
ex-otficio. almost everythini;, and requires a year's experience, or more,
to become familiar with all his other duties, whieh must incapacitate him,
to some extent, for the proper dischari^e oi' the hiu;h and responsible
duties of Superintendent. The late law. nuikin«^ the Clerk of this county
Superintendent, is generally rei;arded here as a rctr()<!;rade movement,
anil as sueh. eondiMnned. What the object of this elumge was I cannot
divine. Perhaps it was thought that this service being virtually •gra-
tuitous, the County Clerk could better atford it than any one else. But,
if so. this was a misapprehension, for the office of Clerk does not pay too
well of itself

Si'cond — That in those counties where the County Clerk is, neverthe-
less. County Superintentlent. the Trustees should not draw their warrants
directly on the County Treasurer, but only by means of the Superin-
tendent, as in other counties, for these reasons :

1. In a threat majority of cases. <loubtless, however ener<^etic they
may be. Trustees, not beinj; jtarticularly men of letters, do not keep a
strict account of their tinances. and leaviui^ the whole matter to the
Treasurer, they would \n- lial»le to loss, unawares, by mistake or other-
wise, which cannot happen where there is an arbiter between the two

•arties. u))on whose onler alone the money can be drawn, and whose
)ooks must at all times show the Treasurer's debit to each District in
the county. This arj^ument accpiires a double force, when we reflect that
the Board of Trustees are subject to frequent fluctuations by removal,
resii;nation. etc.. and to an entire change ome a year.

2. Some «»f the items of the Trustees' annual reports, obtainable only
from the County Superintendent, may be entirely wanting, or have to be
guessed at, in case the Trustees draw on the Treasurer direct.

8. Thev mav draw warrants in favor of persons not holding certifi-
cates, and" the treasurer not know any better, which could not happen
with the Superintendent, as he must know who have and who have not
licenses.

4. While incurring money responsibility, they are not required to give
security. Of course, if the County Clerk draws the money, his bond
shouM cover it.

Hut I forbear.

The change in constituting the Board of Examination, in certain cases,
I commemL"" Better still t.Tmake the Board permanent, that its action
mav be uniform. The change forestalling the operation of a rule to
establish a uniformitv of text-books, I regard as unfortunate. The pros-
pect of a reformation was hailed with joy ; but, lo ! how disappointed are
the hopes of many a toiling, struggling one, harassed and wearied by a
confusion of books, out of which he can only bring partial order at best.

Institutions, etc.— No Private Schools of any kind in the count}', estab-
lished as permanent institutions. Sundry temporary Private Scliools
were kept from three to six months each, with an ai^i^re^ate attendance,
sav- of one hundred and fifty pupils, includintj many who also attended
some Puhlic School more or less.

School Snpcrcision. — lam of the opinion that the system of School
supervision l»y County Su])erintendcnts. to be of lastini; and certain
utilitv and thoroughness, must eventually be ])iaccd on a financial basis,
esscntiallv different from the present j)Ian of aUowances ly Supervisor
Boards of bankrupt counties. It cannot be doubted that a competent
County Superintendent possesses a ])ower for good, beyond estimate ; but
to secure the effectual wielding of that power, some decent, reliable pro-
vision must be made for his sujijjort, and then he shouM be re»piii-ed to
devote his energies exclusively to his aj)propriate work. If. in the
present condition of State finances and the School Fund, this cannot be
done at once, the subject can. at least, Ik- brought before tiie Senate and
Assemblv. or a State Institute, and committees a]>pointed to inquire into
its ]»racticahility and expediency, devise ways ami nieaiis. ie]>ort a ]»lan,
etc. I am deeply impressed with the conviction. l»ecoming stronger year
by year, that if the State would have her Schools well and truly super-
vised, slie must, sooner or later, (sooner would l)e far better,) adopt a
system with a back-bone to it, which is money; and along with that, she
must, if I may so speak, intensify the office of the Supmimr — enlarge
the field of operations of those entrusted with this business, requiring
them to devote their talents and time mainly to the interests of the
Schools, and of Education generally, in theii- several counlies or Dis-
tricts.

In some counties. I dare say, the office of Superintendent pays very
well; hut in others, it would scarcely pay for the mere writing of this
report, not to mention the composition, and the time spent in gleaning
information.

In this eounty, the Superintendent is allowed about two hundred dol-
lars ]»er annum, in '• script." as worthless as '' shinplastcrs." With my
last ijiinrtrrli/ allowance I could not pay for two weeks' board — perhaps
not for one.

These things are sufficient to cool the enthusiasm of the most ardent,
and make the strongest arm hang ])owerless at the side. Yet they are
naked facts, and facts an stubborn things.

Frre S'hnof.s — I dilated considerably on this sul»ject last year, and sug-
gested a sort of skeleton plan, but was not so «rtfortunate as to have
ray views exposed to the vulgar gaze. I will now onl}' give the "sum of
the matter." by saying that I regard Free Schools as a desideratum for
this State, for these and other reasons: They would render the wages
of the Teacher secure, stimulate him to exertion, and make him inde-
pendent of the whims of spoiled children, and the senseless cajjrices of
very unwise parents ; they wouhl relieve Trustees of untold burdens, and
give thoin a clear road to travel ; they would make the burden of Public
Education equal upon all the ]»r(jperty of the State, which is pure equal-
ity and right, since Education insures the security and value of that
same property; they would inspire general confidence in the Public
School system ; they would insure schooling to many de1>arred from it
through 'mercenary motives ; they would afford unrestricted facilities to
the poorer classes, many of whom are now virtually barred ; they would
secure the genial objects of the State in making ani/ provision for
Schools, to a degree not otherwise to be approximated, training multi-

tades to honor, virtue an<l patriotism, that would 'else become leeches
insatiate, or >rna\vin<; eaneers. upon the liody politic.

A F>lt W'liif. — Some iiutlioritutive rule or explanation for the i^uidance
of School Ottieers and Teaehers in tlie <^ra<lini!: of Schools and certifi-
cates. Somethinix of this nature seems to be necessary for the proper
information and intellii;ent action of all parties concerned, and would
britiif ai'()ut a uniformity of action throu<;hout the State, which is very
desirable. As it is, very few have a clear perception of what constitutes
a I*rimary. Intermediate, or fJrammar School jjjrade, while many have a
positively cn'oneous impression, and scarcely would any two be found
perfectly to coineide in their notions of the j^rade jirinciple.

(irni-rtti Rt'mnrka on Kilunitinn — Ohjrrt 7V(tr/iiui/. — Object teaching may
be summarily detine<| : Fanuliar lessons and conversations on common
things — as a chip, a pebble, a grain of wheat. As a<lvocated by many
Kdiirators of high standing in our country, it contemplates the subver-
«*ion of the Anu-rican system o\' jtrimary instruetion. and the substitution
therefor of an experiment. I believe its ju<licious introduction iuto the
present system, with care not to overwhelm and bewilder the youthful
intellect with a ccinfused jumble of facts, would be a positive good; but
wo should pause long and ponder well before tiirowing away a certain
benefit for the <-hance of a greater, lest we find, too late, that we have
kille«l the •• hen of the golden egg."

In <-om-liiding this nubject and this long report. I may a])])ropriately
intro«luee the words of the ver^atih' e<litor of the liadies' Rc'pository,
( Hcv. I). W.Clark.) in noticing a bo<ik entitled "Priniai-y Object Les-
sons for a (iraduato«l Course of Instruction." by N. A. Calkins. Says
the accomplished editor: •• It c«)ntemplates an entire revolution in the
process of primary e«lucation. relying ujion the cultivation of the powers
of observation rather than the exercise of memory. With judicious use,
and in special cases, the bf>ok before us would be an excellent help. It
will artord suggestions of great value to Teacher and parent, but we can-
not recommend it as an exclusive manual. In ejecting the memoriter
system, it behooves us to be careful, lest we go to the other extreme.
Kducatoi-s should not become hobbyists.

An Af't'i-thotniht (^tt'tif. — Woidd it not be well, when a new County
Superintendent is elected, for the old one to keej) the office long enough
to include the anntial report and appendix — say till December or Janu-
arv? Beinir familiar with the oju-rations of the School Department for
the year, an<l knowing the condition of the Schools, etc., he would seem
to be the proper jterson to make the report, instead of a "raw recruit."

Now, most worthv Superintendent, if I have taxed your time and pa-
tience, I crave indullrence. and close by saying that should many of my
views seem to be expressed in too didactic and ])ositive a manner, be tliis
my plea— that I aimed to avoid a tedious repetition, my intention being
simpiv to express ;»y turn opinions (ind rr/nvicdons.

Wishini; vou the highest success in vour plans and efforts for the pro-
motion of^knowle<lge'in our rising State. I remain yours, most faithfully,
for the cause of right Education,

A. F. McKIXNEY,
Sup't of Public Schools of San Bernardino County.

By E. RoBBiNs, Deputy.

SANTA CEUZ COUNTY.
J). J. Haslam Superintendent.

In compliance with instructions from jour Department. 1 luive to
report as follows:

Srhoiil Lnnds. — XnmJtrr of Sljcteenth ami Thlr(i/- Sixth Sections Survei/ed i)i
the Coiinft/. — I have no recoi'd to refer to in tiiis matter. All the Sections
Kui'veved are claimed under <;rants. The whole nmnher in the county
will l)e ahout twenty or twenty-tive. Some will he worth little or noth-
ing, and (»thers (those that fall on timln-red land) very valiialtle.

School Sections Scttfcd on }>t forr Snrvci/. — Ten.

School tScctions covered by Mexican Grants. — Ten.

Prohahh' Xnmher of Additional Schwtl Sections to u'hich Counti/ would be
entitled if United States Survey irere completed. — Twelve.

School Sections Worthless, b(/ reason of fallimj on Mountainous. Marslii/. or
Desert Lands. — Prohaldy five.

School Sections upon which iraste has Iteen or is brimj connnitted, ami the
nature and e.rtrut of such wa.<f<. — (^ne Section in Oak(irove School Dis-
trict, which was wi-ll timhei'cd. has had the most of the good timber
taken otiit. which has reduced the value ot it lull two thirds.

Xumb'c if S<hoi)l-houses in County. — Seven.

Description of each School -hi ruse. — Pescadero — Built of reilwood ; two
rooms ; twenty-six feet long, fourteen feet wide, and nine feet from floor
to ceiling. The furniture belonging to this School is very ordinary.
The average of daily attendance is twi-nty. which is very good.

Santa Cruz, No. 1 — Of redwood, with large wing; two rooms; main
building fifty-four feet l<»ng. twenty-eight feet wide, and fourteen feet
high ; wing twenty-six feet long, twenty feet wiile. and fourteen feet
high. This School-house is very well vi-ntilatcd. ami the fiii-niture of
a very good kin<l. The average daily attendance is fifty-eight.

Santa C'ruz, No. 2 — Of redwood ; one room, twenty-four feet long,
twenty feet wide, and twelve feet liigh. The furniture fair. The aver-
age daily attendance, twenty.

So(iuel — Of redwood ; thirty-tlu-ce by twenty-two, and twelve feet
high; a good School-house, well furnished, and well ventilated. The
average daily attendance, twenty-four and thirty-seven two-hundredths.

San Andres, (new District) — Of redwood; sixteen feet by twenty
feet; ten feet high; not veiy well furnished; average daily attendance,
ten.

Oak Grove — l^edwood ; sixteen by twentj-two. and ten feet high, and
twenty by twenty, and ten feet high. The furniture of this District is
fair, and the School-house well ventilated. The average number in
daih' attendance, thirty-five.

Pajaro — This District rent the second story of a dwelling house for
holding their School ; it is twenty-six feet long by twenty-four wide,
about nine feet high. The people of this District do not care to spend
any money to build a School-house; they have just refused to be taxed
to build one. No furniture belonging to the District. Average daily
attendance, thirty-two.

Attendance at Schorjl. — The attendance at School in all the Districts is
very small, in proportion to the number of scholars enrolled, or those
who draw mone}-. Some Districts are very large. Santa Cruz, No. 1, is
eighteen miles in length and twelve wide. If the population were more

condensed, tlie attendance would bo much better; many tiiid it impos-
siblo to send. ). <t beiui; able to i)ay board bills for their children.

CniiJnl S<hi»oh. — Santa Cruz. Xo. 1, is graded — the only one in the
county where there is a sufficient luunber of scholars. The funds will
not admit of it.

Aijc of T'(irhr». — From twenty-three to forty-seven.

Ttarhimj. — Only two desi«rn to make teachinir a permanent profession.
It tloi's not jmy very well in this county to teach School, and those who
have followed no other o<-cu]mtion do not intend to continue toachino- any
lon^^or than they can ludji. If it paid as well as in lar«re cities, most of
them ]»refer the profession.

Ciiliitriti/ of Tnti/irrs. — All the Teachers employed this year give full
satisfaction.

Kjjk ri'iiff in Tt'iirftiiii/. — From three months to twelve years.

Kjiimlnntinn*, rtr. — Most of the Schools have had several examinations.
Some of the scholars are visited regularly by parents and those taking
an intercHt in Kducation.

XiimfM-r of Month* nnh MuKtl irns kept Ojtru. — Pescadero, eight months;
Santa CVue, No. 1, eight months; Santa Cruz, No. 2, seven months;
Sojpiel, ten months; San Andres, (new District.) three months; Oak
(irove. three and ten months; Fajaro. seven njonths and tifteen days.

Ri mnrlc* ou thf Fininirm i,f' thr Srhnnln. — The County and State P'und
])ay about one fourth of the expenses of the Schools ; in most of the Dis-
tricts the Fund is raised by rati-bijls. In Santa Cruz Disti'ict, No. 1, the
Sidiools have been kept open by subscription ; those willing to aid the
Schools, donate per month, and are regularly waited on by the Trustees
when j)ay-<lay comes.

Very few people have any very great ])ropensity to pay taxes ; but a
geneial dislike is evidenced by all to pay a |)oll tax. Why, I cannot de-
termine, uidess it is, that the most of peo])le escape ])aying it. In a
voting population in this county, of fourteen hundred, about five hundred
are collected. Now. if it were to be a])]»lied directly to the County School
Fund. I have no doul>t but doubh- that numl>er could he collected.

ll<i,r Tntxfttx I'lr/nnn iluir J>ufns. — (lenerally very well; some com-
jdaints. that two have to do all the work.

InijtruttmtntH Xf,h,l. — A uniformity <d" text-books would be a great
benetit ; and all Schools should be graded, and supplied with a library
and apparatus; and some j»lan should be adopted to compel the attend-
ance ot" children who are idling their time around the streets, without
occupation.

Xuinlirr of Prlnilr or fuihpruilnit Srhooh — Academies and Colleges in
Vounttf. — One; attendance, forty-three.

Arfniijr nnmlx r of Pup'tU to rdili. — Forty-thrce.

General Rnmirlc^ upon Kduration. — Onv District has been added to our
list this year. The number of children between four and eighteen years
of age has increased two hundred and thirty-one. There is no report of
any deaf or dumb person in this county. Our number of Teachers has
increased two during the last year.

The total number of children in the county is one thousand three hun-
dred and twelve, and enrolled, three hundred and ninty-tive, leaving
nearlv one thousand that are not enrolled, or short of one in four; this
is accounted f(jr. as I stated before— the extent of country, and of those
enrolled. The average daily attendance is one hundred and ninety-nine,
or about one half; this certainly should be remedied, if possible, but
certainlv cannot be done until School-houses are more numerous.

One c;rcat detriment to a School is in (•hani!;inij Teachers so often,
especially when they «!jet a ^ood one; but it is impossible to retain u;of)d
Teachei-s until the time comes when they can be cfrtain of iteniianeiit
employment.

Respectful! V submitted.

I). J. IIASLAM,
Su])'t of Public Schools of Santa Cruz ("(uinty.

SHASTA COUNTY.
Grove K. Gokfrkv Su])erinten(lent.

In accordance with the requirements of the law. I submit to you this !
my annual report of the condition of I'ublic Schools of Shasta County,
for the School year endin«^ Octobi-r thirty-tirst. ei<;hteen hundred and
sixty-one. ■

I take pleasure in beinfj able to bear witness to the indications of pros- I
perity which have marked the Schools <»f this county durini^ the jtast
year, and the ijeneral interest manifested on the subject of Education.

Accordini^ to the School Marshal's census returns for the year ending |
October thirty-first, eighteen hundre<i and si.xty, there were sixteen i
School Districts. containin<{ one thousand two hundred and ten children 1
under twenty-one years of ai^e ; between eiijhteen and twenty-one years,
fifty-thri'c : between the ai^es of four an<l eiirhteen years, atid where
Schools were maintained, st-ven hundred and tilty-i'iijht. ( )f these, three
hundred an<l st-venty-three were l»oys. and three hundred and ei<;hty-five
girls. Under four years of age, four hundred ; lM)rn in California, five
hundred and twent3-seven.

Upon an ins])ecti(»n of the statistical part of this year's n-jtort, it will
be seen by the census of this county, recently taken, that there are
seventeen School Districts, and the whole number of children under '
twenty-one years of age is one thousand four huiulred and twenty-seven ;
between eighteen and twenty-one years, forty-nine; bftween four aiid
eighteen years, entitled to the benetits of a Common School education,
where Schools have been maintained, eight hundreil and eighty. Of '
these, four hundred and thirty are boys, and four hundred and fifty are
girls. I"^nder four years of age. tV)ur hundred and ninty-eight. In the
county there are twenty more girls than boys. Born in California, six I
hundred and eighty-eight ; deaf and tlumb, none; blind, one — showing
an increase over last year of two hundred and seventeen children in tin
county.

Twenty-four Schools have been held during the year — nineteen Public
and five Private.

Attendante at School. — Number of children attending Public School-
enrolled in the count}', four hundred and eighteen, which would be sonn
less than one half of the county census, whilst the average daily attend-
ance is considerably less than this, being only about three hundred and
six in the entire county, and a little more than one third of the School
census.

The total number of pupils attending Private Schools is one hundred
and sixty, which makes an increase over last year of one hundred and
ten scholars.

All the Schools taught are Primary, except Shasta Union Seminar}'

The Schools have been kept in session on an avera<^e of about six
months. NunibtT of nialo Teachers, twelve; and ten fciiuile Teachers.

Trurhr*. — Teachers' a<^cs vary from eighteen to thirty-tive years.

T'ltrhers Experienr,. — Nuinhur oV years in teaching, vary from one to
twelve years. Only ten design making teaching a permanent profession.

Finances, etc. — The full amount of monthly salaries paid Teachers, to
the close of the School year eighteen hundred and sixty one, eight thou-
sami nix hundred and ten dollars. Number of boys taught in the Dis-
trict, two hundred and eighteen ; number of girls taught, two hundred.
There are seventeen Schoul-houses in the county. Material of which
houses are built is lumber Valuation of School-houses and furniture,
five thousand two hiindreil and titty dollars.

The receipts and expenditures are as follows :

Amount of Seljool Fund received from State

Amount of School Fund received Irom County Taxes

Amount of School Fund received Irom the interest of the

sales of Scho<d Lands

Amount raised in Districts by rate-bills and private subscrip-

scriptions

Total receipts for School purposes

Sl,176 49
1,1J25 55

220 95

1,483 G9

34,100 50

Amount expended for Teachers' Salaries

Amount expemled for erection or rejiairsof School-h(;uses
Anjouiit expended for School Libraries and Apparatus

Total expenditures for School purposes

83,610 00

7l>3 53

4 00

84,480 97

County, State, and interest from the sales of School Lands were used
injmyment of Teachers, and the balance of their wages remain unpaid.

This statistical report is encouraging, as the reti'ospect discloses a
steady though gradual advance in the prosperity and maintenance of
our Public Schools, and the interest in Education taken within my
jurisdiction.

A comjtarison of the present condition of the County Schools with
that of the previous year, evinces no diininuition of interest, but rather
the evidences of a healthful and gratifying advancement. The whole
number of pujiils taught during the last year, was reported to he three
hundred and tifty-eight; now it reaches four hundred and thirty-six. In
the former, the daily average attendance was two hundred and forty-six,
while during the latter, it has been three hundred and six.

Notwithstanding the large increase of children in the county, of the
whole number, onlv four hundred and eighteen have enjoyed the benefits
of the School system this year, against three hundred and fifty-eight last
year.

In the length of time during which Schools have been maintained, we
find much reason for encouragement and congratulation. The whole

number of School months in the sixteen Districts last year was seventy-
seven, and the averaijje term tive months. Now we are enaitled to report
the total nuniher of months clurinijr which our county Schools have
been maintained, at ei«;hty months, or an average for the sixteen J)i<-
tricts of al)out six months.

Last year the amount raised in the several Districts for School jiui-
poses was two thousand dollars; during the past twelve months it ha-
risen to two thousand tive hundred. This is an indication auspicious oi
a better state of things for the future. As the Schools increase in num-
ber, greater will he the increase of private ex])enditures, raised by cheer-
ful and liberal contriiiutions of individuals, to supply the deticiency
whicli the meagrcness ot" the j)ul>lic fun«ls had created.

We have much to encourage us, for. although our work has just fairly
commenced, it is progressing. A little ukm-c energy and enterpi"iso. n
little more of the self-sacriticing s])irit among the ])eople. and our Sclioo!
would assume a ])osition worthy of a comparison with those of oldi :
and more favored States. What we most need are suitable Seh(n)l con-
veniences. Although each District has a wooden School-house, they art-
destitute of all attractions for the pupils, both within an<l without.
However, they are. on an average, <]uite as good as x-ould be expected,
under the circun)stances. A good School-house, with ma])S. libraries,
and ap]>aratus within, and ornamental shade trees to wai'd of!" the rays
of the sun. are essential to tin- good breeding of our children. School-
houses should be agreeable and attractive, instead of gloomy antl repid-
sive.

The attendance of pupils at Public Schools has improve*! over last
year. The principal cause of non-attendance is the want of strict
parental authority, and also a lack on their \nivt to j)ay for tuition. An-
other is a dislike to. and want of confidence in Teachers. Many of the
scholars are small, and reside a l<»ng way from the School. Less than
one half of the children between four and eighteen years of age. in this
C(tunty. have attended Sehool tluring the past year, and less than one
fourth has been the <laily avei-age attendance.

Some of our Sehotd Districts are very large, embraeing a whole Town-
ship. The scattered ])opulation. and tlie almost nomadic life that many
of our people lead, and the smallness of the School Fund, make it ditti-
cult for parents of limited means to keep their children in regular attend-
ance. Owing to the same cause, our Schools are almost necessarily
of a mixed character. Shasta School District is the onl}' one in the
county where Schools are graded ; in fact there is no necesssity for
them, for the reason that no one locality is able to maintain a \)\u-
rality of Teachers.

There are many obstacles in the way to hinder the progress of Com-
mon School Education. Irregularity of the pujjils — short terms and
frequent suspension of the Schools — frequent changes of Teachers — a
want of money to pay them, and a want of suitable accommodations
and concentration. These evils go together, and should be remedied.

During the past year a few Schools have closed Avith a short examina-
tion. Teachers, in some of the Schools, provide premiums and rewards
for the children. This has a good effect, as it keeps up the spirit of em-
ulation so well calculated to advance the children.

The Schools of this county have advanced a large per cent, in the
standard of Teaching, in educational ability on the part of Teachers,
and in facilities and accommodations for Common School Education.

Twenty-two Teachers have been employed durinfr the year— twelve
male and ten female.

lVrlia|is ten of our Teachers are desirous of niakiui; Teachin"-- a per-
manent profession. Kiirjit of the Teachers have spent from*' five to
twelve years in the jirofession. The halance are persons of very little
experience in tcachini;. So far as I have heen ahle to learn, the Teach-
ers havr j^enerally ^rivcn satisfaction. Six would ran^e among first class
Teachers. All have received nnich commendation. Experienced Teach-
ers can he easily found, hut they will not work for common salaries. So
lon^ aH the District cannot or will not pay more than forty or fiftv dol-
lars per month, they will not he ahle to' command efficient Teachers.
Several Miiall Schools, in remote or thinly populated Districts, are tau^-ht
for thirty or forty dollars per month. They are in charge of females
who residi' m-ur at han<l.

The nrw State law, in reference to the examination of Teachers, ap-
pears to work well. U will he seen hy this law that the first step' has
ueerj taken toward making teaching a profession in California. The
examining power is in the hands of County Superintendents and Teach-
erH. where it ought to he, and no incompetent person, if they do their
duty, can secure a position in the I'uhlic Schools. I have marie it a rule
to draw no wariants in favor (»f any District uidess the Teacher em-
ployed l>y the Trustees c:iii produce a certificate of (piaiiticatioii.

Many of the 'I'rustecs have performed their duty faillifullv, Avhilst
others have evin<'e(| no interest whatever in the success of Pulilic Schools
under their supervi>-ion. Not one fourth of them comply with the law
in keeping an ai"e(tunt hook an<l District record. The Schools have been
fre<piently visited by them, and all have sent in their reports prom])tly.
To awaken a lively interest in behalf of the Public Schools, they should
visit the parents of the pupils, and induce all interested to visit the
Schools. I'his will stinudate the Teacher to exertion, and cheer him
along in his aniuous undertaking.

Hcides till' Public Funds, money is raised In' rate-bills, assessments,
and sub.xcripti<»ns. Nearly every School in the county might easily be
maintained for ten months in the year. Parents are generally willing to
]iay a snuill sum monthly towards the Teacher's salary. One dollar for
each pupil would commonly suffice. This will greatly aid in securing
regular attendance. Then parents would take more interest in Schools,
by occasional visits, liy frequent visits they keep up the interest in
Schools, and stimidato to greater exertion.

All of our School Districts are out of debt, and I draw no warrants in
favor of Districts when the funds have been exhausted.

Imj>rovements are very much needed for the success of oui- Public
Schot>ls. We need good* School-houses, with libraries and ajjparatus;
erticient Teachers, and money to ])ay them; uniformity in text-hooks j
uniformity in time for opening Schools each year; regularity in attend-
ance at Public Schools ; and a law that is practical in its workings. Much
has been done to accomplish these ends, when wc consider that we arc a
new State. The improvement that has heen made in this county has
not yet entirely removed the obstacles. But due allowance must be made
for the a<lverse circumstances by which we have been surrounded. Our
immigration and settlement here have been peculiar and unexampled,
ditt'ering essentially from the settlement of other new States. And if we
are true to ourselves and the best interests of our country, we must use
our time and means to institute a more improved system of Common

School education, and by perseverance we must and shall accomplish this
great undertaking.

Education should embrace the culture of the whole man, with all his
faculties. Each demands a careful, and all an equal development, subject-
ing his senses, his understanding, and his passions, to reason, to con-
science, and to the laws of the Christian religion, so as to secure the
highest physical, moral, and intellectual pei-fection.

Ignorance and vice go hand in hand. Tlien. if we would have the
children of this generation grow up moral, intelligent, and useful, they
must have good Schools and thorough and ethcient Teaeliers, who
will look to their physical and moral as well as their intellectual im-

provement.

liespectfuUy submitted.

GROVE K. (iODFREY,
Sup't of Public Schools of Shasta County.

SISKIYOU COUNTY.

J. \V. WiiALLKV Superintendent.

I herewith transmit my annual report as Suj)erintendent of Schools
for Siskiyou County for the Sehool year ending October thirty-first,
eighteen hundred and hi.\ty-one.

Having been ai»)>ointed to this oltiee only a short time before it became
necessary to make out the annual re|)ort, I have been unable to collate
many facts in relation to the general interests of I'ublie Kdiieation in
this county. From the information obtained through the Sehool Otticers'
Reports, as well as from aequaintanee and conversation with many of the
Teachers and Trustees, 1 am led to the belief that much advancement
has been made, within the last year, in the ettieiency of the various
Schools now teaching. Several of the Teachers are ladies and gentlemen
of superior edueation. intelligence and refinement ; oi-nanients of the

t)rofession to whieh ihey have devoted themselves. Some there are,
lowever. who might be nuieh improved by diligent self eulture. The
law requiring applicants forSehools to obtain certificates from the Board
of Examiners tor the county, has been juvjductive of mueh benefit; in-
asmueh as it prevents ignoi-ant j>retenders from obtaining j)osition8
whieh they are not competent to till, and protects the educated lady or
gentleman from the underbiilding of the peripatetic quack. The exami-
nations have been, in most cases, quite rigid ; the Board having kept in
view the recommendation, '- KstnUUh a Itujh shmJard of ijitd/ijirtitioji."
The establishment by authority of a uniform series of text-books, would,
in the ojtinion of all parties heiv, do more toward systemizing the exer-
cises of our Schools than any other step. In nearly every one at j)resent,
different sets of text-books are used; different methods of teaching pre-
vail, and difierent modes of school government are adopted. These, in
themselves considered, may be good ; but when it is remembered that
our Schools are not kept open, generally, more than six months in the
year, and consequently that Teachers are frequently changing their loca-
tion, it is evident that some uniform system should be adopted which
would enable a successor to follow in the footprints of his predecessor

with ease to himself and profit to his pupils. At present, each Teacher
has his favorite text-hooks, and hence takes pains to introduce them in
every new School that he may teach. Xow it takes some time to famil-
iari/A' a pupil with a new method of instruction ; in the attempt, he fre-
(luontly hec-omcs disoouraijed ; for. havino; mastered the phraseology of
one anllior. he is siirjtrisod, and ))erha})s disirusted, at the strange way,
as it appears to him. in which tlic same matter is presented b}- another.

None of the Schools in this county have l>ecn graded. The only one
absolutely requiring it is the one in Yreka District. In this School were
sixty ]>upils, studying branches from A, B, C, to Algebra and Cxeometry,
all under the sui)ervision of one Teacher. The principal objection to the
grading of Schools is the inadequacy of the public money's to sustain
them. If a law were passed making a rate-bill a legal charge, the Trus-
tees of the various Districts would liave no hesitaiuy about grading the
Schools whenever they became convinced of the necessity, as they could
then rnmp'/ those who were able, and who were reaping the benefits of
the School system, to c(»ntribute to its support. The books and papers
of this ottice have been in my possession only fiuir days. Several dis-
crepancies are evi<lent in the accompanying rej)Ort ; but no opportunity
is artorded me of correcting them, by reason of the expiration of the
time in which I must rej>ort. These discrepancies arise from the hurried
and careless manner in which some of the Trustees fill out their reports,
as you will perceive by inspecting those which I send herewith. The
following Districts have not ]>resented full reports, namely:

Scott Hiver. — Trustee's l{ep«)rt not ])resented.

Cottonwood. — Census Marshal's Report and Teacher's Report not pre-
sented.

Shasta Valley. — Teaehor's Report not presented.

Trusting that you will overlook the meagre character of this report
upon considering" the difficulties under which I have labored, as well as
the short time I have had to prepare it, I subscribe myself,

Your obedient servant,

.1. W. WH ALLEY,
Sup't of Public Schools of Siskiyou County.

SOLANO COUNTY.

J. W. Ili.NEs.., Superintendent.

In compliance with instructions from your Department, I have to
report as follows :

Number of S'-hxtl-hmisrs in County.— Hhera are fourteen School-houses
in the county at present.

Description of each SrhooUiouse.— The School-house at Benicia is the
old State House, built, I believe, when our Legislature had "not where
to lay its head ;" and serves rather a good purpose. As repaired recently,
it will pass for a good School-house.

At Vallejo the house is made of wood, and, in its internal arrangement,
is tolerablv well fitted for the comfort of the School. It is plastered in-
side, and has just been supplied with new seats, similar, I believe, to the

ones recommended in the Conventions. There is no fence about it at
present, but the Trustees purjioso building one in a few days.

At Green Vallej', No. 1, they have a house made of wood, which, judg-
ing from tlic outward appearance, subserves an admirable purpose. It
is wfll ymintcd, and secured by a good fence, and from the known char-
acter of the Trustees, is well adapted to the purposes for which it \va^
liuilt. It lacks proper ventilation — a common fault.

In Green Valley. 2\o. 2. the District, though Aveak, has erected a tine
new liouso. of wood, and, with the exception of furniture and ventilation,
will answer a good purpose.

Suisun, No. 1, has a miserable, old. dingy house, scarcely tit toj- a
respectable stable.

Suisun, No. 2. has a house similar to the one above. Unfortunately,
however, it has been more recently built, thus dismissing the prol)al)ili-
ties of getting a better one soon. It contains one room, and nothing
else.

Suisun. No. 8, has one of the oldest, meanest, most contrmjttible
School-houses; made of wood, with one room, no ventilation, furniture,
or any thing else.

Suisun, No. 4, is a little worse than tlie one in No. 8, for the reason
that there is a little more of it. It is situated at Fairtield, the county
seat, and is a standing disgrace to the count}' and the people of the Dis-
trict. It is made of wood, stands in the edge of the tule. an<l I fear will
never be liable to spontaneous conibustion. Not a good house in the
town of Suisun.

In Vacaville, No. 1. are two Sehool-houses, or rather, one School-house
and one church rented for School purposes. The School-house is a
wooden structure, containing one r<»om, and in every way poorly adaj)ted
to School ])urposes. The church is a tiiir structure, tolerably well
arranged for the comfort of students. Lacking in ventilation aii<l fui--
uiture.

In Vacaville, No. 2. there is a small house, made of the meanest kind
of redwood. It contains one room, and is ])Oorly seated. Scarcely any
attention ])aid to ventilation, and no furniture worth naming.

In Vacaville, No. 8. they have recently sold their old house, and are
taking stei)s to build a new one. I have been to the District and given
advice to the Trustees.

In Vacaville. No. 4, is an old den, they call a School-house. It is em-
phatically the worst thing that ever bore the name. I can say no more
now.

They have a fair house in Vacaville, No. .^ This is a new District
recently created by the Supervisors. The house is small, but tolerably
well arranged. It contains but one room.

Montezuma District has a small house, in which they manage to keep
just School enough to draw their public money. It contains but one
room and few conveniences for students.

At Eio Vista there is a fair School-house — one of the best, indeed, in
the county. The District is small, and consequently needs but a small
house. It contains but one room, but is well finished and tolerably well
arranged. It is lacking in furniture.

The Tremont District is divided by the county line, part of it being in
Yolo County. The School-house stands in Yolo. It is a fair structure,
and answers a tolerable purpose — contains but one room — made of wood.

One great need in this county is good School-houses. No man can

ivM'U a good School in a poor lioiiso. Dunn!< mv term of office 1 shall
•<eek (lilii^outly a reform in this direction.

Ati' inlnnrr at Srhi„,l. — The attendance at School has heen quite irregu-
lar, owing in part to the unsettled state of the communities. Time, un-
doubtedly, wdl work a change, hut in the meantime there must be a per-
severing etfort on the part of those interested. The County Superinten-
dent.s must work, the Teachers must work, and all together must feel the
weight and magnitude of their resjionsibilities. Tracts on Education
mu)*t be scattered among the people, calling their attention to the ques-
tion of p]ducation.

Hut few of the Schools in the county are properly graded. This is
owing, in part, to the migratory habits^)f the Teachers^ There are too
many a«lventurers in our School-houses. A tightening of the reins, on
the part of K.xamininir lioards. and a general elevation of the standard
of teaching, will gradiuilly work a change in this direction.

Ttnrlin-s. — TJK« (juestion as to how many design to make teaching a
permanent i»rofe.s.si()n. it is im])ossible to answer with any degree of sat-
isfacti(jn. I Khould judge, from conversation with them, about twenty-
four.

Caparity nf TmrhrrA. — There are aliout si.x Teachers who give full sat-
isfaction ; about til\een second class — some who teacli upon sutierance.

Kxpfrirnn in Tmrfnii;/. — See bodv of report.

h'xtniiinntiintH, Krhihitinua. Vixi'tK hi/ Pdn-ntx, etc. — 1 have l)een SO little
time in the ottice tliat 1 can scarcely give to this (piestion a proper an-
swer. Hut little interest seems to be takei» in visiting Schools, on the
))art of parents. Hut few special etforts are made to keep up an inter-
est in the SchooU. Henicia and Vallcjo are, in some degree, exceptions.
We must and will liave a change in this regard.

Xiiniif*!- nf Mniitha tfir/i SrhiHil /i<i.s Ucn fcrjit Open. — For the number of
months and <hiys. see report. To reiterate it here would l>e supereroga-
tion. To increase tin- duration of our School terms we need more
moni'V. Pass a law compelling each District to have a School at least six
months each year ; or is>ue no warrants until the Trustees certify that
they have raised an e«jual amount, if needed, to keep a School in opera-
tion six months.

Remark* on thr Finanr,x of ihr S'ltonh. — The Schools are supported, aside
from the public funds. i>y rate-bills, collected in many instances by the
Teachers themselves — a mo.st contemptible practice, and one to which
no Teacher with proper self respect will submit.

The management of the finances should be left exclusively in the
hands <.f the Trustees. If this is done, they will seek counsel from
others, ami consequently derive encouragement from others' ex])eriencc.

The whole question is one of grave importance and should command
the attention of all lovers of Kducation. Want of attention to the sub-
ject makes me ilistrust mv abilitv to do it justice.

Ilmr Tnistrrs Prrform Ihrir Di'itirs.—T\w Trustees, in most instances,
seem willing to do'thelr duty, when it is jtroperly understood, but I am
a.stonishod at the ignorance manifested in many particulars.

I know of no wav but to talk. talk, talk— 'line upon line, precept upon
precej.t." is the motto. Much depends upon the efforts of the County
Suj)erintendent; he must be a man of energy and devotion to his work.

linpmnmriits X,t,h,l.—\ shall suggest noth'ing in this connection. To
speak advisedly, one should give careful attention to the whole question j
this I have not done.

Number of Private or Independent Schools — Academies and Colleges in the

County. — There is a Private School for hidies at Benieia, of hijjrh grade ;
one at Yallojo, just started, promising well ; one at Suisuu City ; and a
College at Yacaville, with, I believe, about fifteen or twenty students.

Arcraf/r Xi(i)ih>'7- of Pupils to each. — I am not able to state definitely the
number in any one of these Schools, excepting Vallejo, where they have
thirty scholars.

J. W. IIIXES,
Sup't of Public Schools of Solano County.

SONOMA COUNTY.
C. (>. Amks Su]>eriMtcM(lont.

In com])liance with insti'uctions from Nour Depart iiu-nl. I have to re-
[»urt as follows :

Xumhir i)f SihiHil-hniisrs In ('miuti/. — About f(»rty-five. Forty-three or
forty-lour are built of redwood. Many ol' ihem were not originally de-
signed'for School-houses ; you may therefore well suppose that they are
poorly ada])ted for the ])urposes for which they are used. Within the
past year. 1 tliink about ten new houses have been built, that are quite
romfortal)le. and a credit to the Districts that have ereeted them. We
have one excelK-nt houst* built of brick, at a cost of fourteen thousand
<lolhirs. Another, adobe, in which District the Public School is united
with a Private Sciiool. Never having visited any of liie Schools in the
county. I am unaitle to give a descrij»tion of the furniture, or size. I am
now only about a month and a half in office.

Attemlann' at Srluml. — The average numl»er of jtupils attending School
is less than one third of the number that draw public money. Your
owji observation and experience will suggest many of the causes of non-
attendance — a new country, sparsely settled, mostly by young men,
whose children are quite young, and wiio have not yet awakened to an
interest in educational matters. More good run fir effected b}' an ener-
getic and efficient County Superintendent than by any other means.
Yet. the salary allowed by our Hoard of Suj)ervisors is so small tiiat he
cannot afford to j)erform the duties of his office in the true h))irit. Salary
allowed, six hundred dollars ]»cr annum.

Gnuletf Srituoh. — One graded School. Impossible to grade a School if
all the pupils are taught in the same room, and by one Teacher.

YeacJiers. — Average age. about twenty-seven years. About forty say

they design to make teaching a permanent ])rofession ; but, in fact, only

ome ten or twelve can be relied on, if anything better should • turn

up-"

Capon ft/ of Trmh' rx. — About a dozen are considered first class; thirty,
second class, and the balance, third class.

Exjifi-ieurr in Tearhinij. — Average, about four years.

E.rnm illation.^ — Kvhibitiomt — Vi.^ifs bi/ Parents, etc. — Examinations and
exhibitions I know of none. As far as I know, parents are very back-
ward in visiting Schools. If the County Superintendent will appoint a
day when he will visit each School, notifying the Teacher of the same,
requesting him to give general notice to the parents, perhaps he might
stimulate them to visit the Schools oftener. The same might be accom-
plisb.ed by continual and earnest appeals from the Teacher.

Xumber of Months each School has been kept Open. — The number of months
each School has been kept open will be founil in my general report ; the
uveraijo is about tive months for each School. The Board of Supervisors
did not increii.se the School tax this year.

IJmr TnisfccA Perform their Duties. — They mostly manifest a marked in-
• lirterence in rei;ard to Schools. Thf persons elected Trustees oftentimes
entertain various and entirely tlitfcront views in relation to education and
the best methods for its ])romotion. Such often disacrree in matters of
minr)r importance, which en«^enders a mutual feeling of distrust and dis-
like, residtin;^ frequently in the resij^nation of one, and sometimes two,
of the Trustees. Again, it is not an uncommon occurrence for Trustees
of liberal views to associate, in an official capacity, with penurious, nar-
row-minde<i,' and illitenite ones — men who believe convenient houses,
with maps, apparatus, and goo<l furniture, as new-fangled notions, huni-
I'liL'^. and hindrances, and inconiparal»ly inferior to the primitive loo-
l."U-.-H and slab M-at>. These are ditliculties which cannot altoirether be
avoided. I can conceive of no method of obviatini; such difficulties as
exist except by pergonal ajipeals ii-ttm the County Su[>erintendont.

(iturriil lit mnrl.-.'i iifmn Eiiiieniinit. — I d<i not flatter myself that I can
make any sugg»«.tions under this head that nn- nrir to you.

Will you inform nie. at your earliest convenience, of the standard
School-books that are to be used '. The question has been asked me
"lion, and I should like to be able to give the inquirers satisfaction. If
iliere is a crying evil in our School system, it is a want of uniformity
in the text-books used.

I have, as you will infer, but a limited knowledge of the School mat-
ters of this county. I have been in otKce only since election, and am,
therefore, unable to report as fully as I should like to do.

r. (1. AMES,
Sup'i ">' ''nl'lie Schools of Sonoma County.

YOT,() cor NT Y.

Henry U adius Superintendent.

I herewith submit my annual rejMirt of the conilition of the Schools of
this county. I have been late in sending it. for the reason that several
lu'W Districts were formed, and changes made in the boundaries of others,
during the month of October, which created some confusion in taking
the census. I have therefore been obliged to make the necessary cor-
rections. You will perceive that, in several cases, my figures differ from
the returns matle to you by the Census Marshals, and for the above
rea.son.

Attendance at Seh>H,l. — The same causes that prevented the attendance
at some of our Schools during the past few years, and since the School
law has been in operation, still exist, to some extent, although most of
the children of the countv. who reside within a reasonable distance of a
School-house, have attended School during the year, and I take pleasure
in bearing witness to the ])raisewortln' disposition that the people of the
countv have manifested in sustaining*^their Schools, notwithstanding all
the drawbacks with which the cause of Education has had to contend.

In Yolo City, Cache Creek, South Putah. and Monument Districts, the
number of children enrolled is very nearly equal to the number returned
by the Census Marshals ; and in Grand Island District, it is still greater.

Teachers. — I consider the Act of eighteen hundred anil sixty, creating
the County Board of Examination for Teachers, a decided step in ad-
vance, an improvement upon the old method of leaving the matter to
the Trustees, or rather, not doing it at all. There is a marked improve-
ment in the quality as well as the number of our Teachers, under tln^
oj>eration of the present law.

ExaminiUiom, e(r. — I am not aware that any unusual interest has been
shown l>y parents and Trustees in this resi)ect. Our l)est Schools are
frequently visited, but, in some cases, people do not manifest the interest
that they should, uidess their attention is called by some extraordinary
occurrence.

Fiudnres. — It will be seen by thi- tabk- tliat the entire cost of maintain-
ing the twenty-one Schools that have been reported to this (ittiee. has
been nine thousand four humlred and sixty-nine dollars and forty-four
cents, of which the public funds have amounted to only thi'ee thousand
seven hundred and titty-seven dolhirs and sixty-three cents, the remain-
der iuiving been raised by rate-bills and private subscription ; but it is
expected that the County School Fund will \>v increased about one thou-
sand dollars for the present year, by the additional tax of five cents on
the one hundred dollars of ]n-o))erty valuation, and J have no doubt that
the people of the county would cheerfidly submit to a still farther aug-
mentation of this tax. if necessary. Kven single men. some of whom
(to their honor be it sai<l.) have been our most etticient School Trustees,
have frequently told me that they would prefer that all their taxes shouhl
be a])plied to this jiurpose.

Iiii/iroremenfs Xveihd. — I think the Act of eighteen hundretl and sixty
should be so amended that, when Teachers are called u])on to attend a
session of the County Board of Kxamination. the summons should be
mandatory; and the members of the Board should be ])aid lor their
services. Although I have always been able to ])rocure the attendance
of a sufficient number, when necessary, and for which I tender those gen-
tlemen my sincere thanks, yet, 1 am aware that some of them have been
put to much inconvenience and expense. '• The lal>orer is worthy of his
hire." and this maxim is just as true now as when first ennunciated,
eighteen hundred years ago. I think it unfair, therefore, to exact this
service from Teachers without remuneration.

I have no doubt that when the School law was first eilacted, the
services performed by County Supei-intendents in many of tiie counties
of this State were not greater than those that are at ])resent gratuitously
performed by some of our Scho<d Trustees, but since then the nundjcr of
the Schools and almost every thing connected Avith them have iiici*eased
with astonishing rapidity, except the ]my of Superintendents. I think,
therefore, that legislative interposition is required, and that a fixed salary
should be allowed for this oftice. I have observed complaints of this kind
from several counties, in the reports that have been made ; and in my own
ease, I have received only two hundred and fifty dollars for the past
year's services.

It is doubtful whether any competent man could be found who would
accept the office for that sum. but if such a person could be found, it
■would be hardly fair for the county to save its money by taxing his
benevolence. It is true, as 3'ou have remarked in the •• Commentaries."
that an active and energetic discharge of duty should have its weight

with the Board of Supervisors, but sometimes this is not the case, and

•hen the .SujK-rintendent slioulU not he compelled to haggle for the pit-

ince to which he is entitled. I have entered upon a new term of office,

lid have the promise of four hundred dollars per annum for the time to

>me. but the ottice is far from being a sinecure even at that sum.

fimrrnl R> marks. — Tiie progress of Education in this count}' has been
iiilly concurrent with its general pi'osperity in other respects. The
retrospect is certainly gratifying when we review its history during the
past four years. In November, eighteen hundred and tifty-seven, it was
one of my tirst duties, as the incundient of this office, to present you a
statement of the condition of the Public Schools of this county. There
were then seven Districts reported, in which eight Schools had been
maintaine<l, and the number of children enumerated by census, entitled
to apporti<jnment, was five hundred and seventh-one. The townshij^s of
Putah. Merritt. and Fremont, luifl then no School organization.

In eighteen huiwlred and tifty-eight. ten Districts were reported,
maintaining eleven Schools, and the enumeration of chiUlren was seven
hundred and ninety.

In eighteen hun<h-ed and fitU-nine. there were thirteen Districts and
tifteen Scluxds. and the number of children nine hundred and thirty-six.
In eighteen hundred and sixty, fourteen Districts, sixteen Schools, and
one thou.saiul and Hlty-eight children.

The entire territory f)f the count}' is now included in the report, and
is divided into eighteen Districts, in which twenty-two Schools are taught,
and the children entith'd to apportionment number one thousand two
hundred and sixty-two. showing not oidy a steady, but rapid increase
during the time *mentione<l. School-houses have also been erected in
>everal of the Districts that are the ornament and pride of their respective
localities. A Teachers' Association or Institute has been formed, which
it is to be hoped, if jtrojierly citnducted, will do much to elevate the
standard of this most important profession. The cause of Education has
received an impulse, and the prospect for the future is encouraging.

Resnectfulh' submitted.

IIENKY GADDIS,
Sup't of Public Schools of Yolo County.

NINTH ANNUAL REPORT

OF TlIK

Srii5ttc5 of tijc Insane %5})\\\\%

FOB

THK YKA.R 1801.

BEXJ. P. AVERY STATE PRINTER.

(IIIK i:i:s ol- Till' ASYLUM.

TRUSTEES

I). W. Bours, President Stockton

I.. U. HnulK'v, Vici'-Pro.siiliMit San jDaqniii County

Dr. G. A. SrmrtU'ff Stockton

IIi'V. Jno. A. Amlorsitn Stockton

I.cwis Dent Stockton

RESIDENT OFFICERS :

W. p. TiMon. M. D TIoHulcnt Plly^^ieian

A. (Mark. M. 1) As.sistant Pliysician

Ilinun A rents Steward

Mrs. Vj. W. Farnharn Matron

II. T. Compton Treasurer and Secretary

^V>s>sU^VL T^EPORT.

To Uis Excellency,

J. G. DowxEV,

(iovernor of the State of California :

Tlio inuIorxitriuMl, Trustees of the Insane Asylum of California, as re-
qiiire*! by law, herewith suhniit to your Excellency their ninth annual
report, bein^ for the year coninu'iuin:; Deceinher first, eiijhteen hundred
and sixty, and ending Xoveinhcr thirtieth, eighteen hundred and sixty-
»»ne.

From the report of the Treasurer liereto annexed, and constituting a
]>art of this re]>ort, it will appear that the total receipts of the treasury
from December first, eighteen hundred and sixty, including balance of
ten thousand five hundred and sixty-eight dollars and twelve cents
(81<>.o«)S 12) then on hand, to June thirtieth, eighteen hun<lred and sixty-
one, anu'unt to fifty-nine thousand five hundred and ninety-four dollars
and eighty-two cents. ( i?.')H..')'.»4 S2.) out of which bills have been paid to
the amount of forty-five thousand one hundred and twent3--nine dollars
and forty-nine cents, ($45,129 40.) leaving a surplus unexpended from
tlie appropriation of eighty-four thousand dollai-s for the support of the
Asylum for the fiscal year ending June thirtieth, eighteen hundred and
sixty-one. of fourteen "thousand four hundred and sixty-five dollars and
thirty-three cents (614.405 33.)

It will further appear from the same report that nothing has been received
from the approjiriation for the Asylum for the jtresent fiscal year, but that
the above surplus, with the sum of twelve thousand dollars borrowed, and
tive hundred and thirty-nine dollars and three cents received for board
of patients, constitute the entire receipts since the commencement of the
jtresent fi.scal j'ear, amounting to twenty-seven thousand and four dol-
lars and thirty-six cents. (827.004 36.) from which bills have been paid
to the amount of twenty-five thousand seven hundred and thirty-nine
dollars and five cents, (825.739 05.) leaving a balance in the treasury of
one thousand two hundred and sixtv-five dollars and thirt^'-one cents
(S1.2G5 31.)

It will also be seen by reference to the same report that the total ex-
penditures for the year amount to seventy-four thousand and forty-six
dollars ($74,040 00.) In consequence of the want of funds in the State

Treasury, and tlie inabilit}- of the State Controller to draw warrant?* for
the montiilv estimates, the Trustees found it necessary, in order to sus-
tain the credit of the institution and to preserve contracts in existence
which were of great importance, to borrow the sum of twelve tliousand
dollars, for which they pledged the audited estimates of July and August
as collateral security.

It is earnestly to be hoped that the Legislature will make some
arrangement to secure the prompt payment of the mouthly estimates of
the Trustees, otherwise the present system of purchasing by contract
should be changed.

The Trustees anticipate no deficiency for the present fiscal year, as
when warrants shall have been issued by the Controller for estimates
due to thirtieth N<»vem)»er. there will remain a balance, after ])ayiug all
lial»ilities. of fourteen thousand six hundred and seventy-six dollars and
three cents (S14,(37G 03.)

In further compliance with the statute, they also transmit the annual
report of the Hesident Physician for the same period, to which they
refer your Excellency for full and complete details of the present condi-
tion of the institution and its general management, together with ac-
counts of the separate expenditures in the different departments, and for
iiu])rovcinents. and other interesting statistics.

They resj)ectfully call your attention, and through you that of the
Legislature, to his sug<;e>tions in i-egard to necessary improvements to
be made, in order t<» place this institution on a footing with others of the
same character in the older States, and recommend that the J^^gislature
make such appr(»j»riations as may be iiereafter ascertained to be neces-
sary for carrying out his views.

They further recommend an ai)pro])riation of eighty-four thousand
dollars for the support of the Asylum for the next fiscal year.

They state in conclusion, that in the discharge of duties imposed upon
them, they have not failed to make a thorough insj)ection of tlie As^dum
each month, and it gives them ])leasure to Inar testimony to the effi-
cient manner in which the Hesident Physician, Dr. Tilden. discharges the
arduous duties of his ])(»>ition. in which he is ably assisted by Dr. Clark.

All of which is respectfully submitted,

B. W. BOURS,

President.

LEWIS DENT, ^

G.A.SlinJTLEFF, U^i.tee.
L. 11. BlJAhl.KV. M motets.

J NO. A. ANDK1{S0X,J

TREASURERS REPORT.

Office of Treasurer Insane Asylum, |
Stockton, Dcecml.cr 1st, 1801. )

T'> (hi Truattrs rtf (he Insunr Asi/Iiim of Culifnnun :

(rF.NTLEMKN: — Ilorcwitli I sulnuit mv report for the j'car, commencing
hiMiMulu'r tirst, ei<;htec'n Innxlred unci sixty, and endinii; Novoniber thir-
tieth, eii^liteon hun»liT«l and sixty one, inclusive:

RF.CEIPTS AND DISIRRSEMENTS TO JUNE 30, 1861.

To bahmce as per annual report December 1, 1861

Anutunt received from State Treasury, being balance of ap-

jtropriation endingJune oO, 1S(»1

Amount received froni Dr. Aylett, lieing balance due the

Asylum for board of patients

Cash from Jacob rnderhill k Co., for amount overpaid

tluMn

Total receijits

By amount of audited bills pai<l

Balance of appropriation unexpended

810,568 12

49,000 00

15 00

11 70

859,594 82
45,129 49

814,465 33

RECEIPTS AND DISBURSEMENTS FROM JULY 1 TO NOVEMBER 30, 18G1.

To balance from fiscal year ending June 30, 1861

Amount l)<»m)wcd on .luly and August estimates

Amount from IJesident Piiysician at sundry times as per
account marked A

Total

Bv audited accounts ]>aid from July 1 to November 30, 1861,
inclusive

814,465 33

12,000 00

530 03

827,004 36

825,739 05

Balance in Treasurv December 1, ISGI I 81.265 31

The following is a statement of the expenditures of the Institution for
the twelve months ending thirtieth X()vember last. From December
tii'st to A]>ril twentieth, rightcen hundivd and sixty-one. at which (Uite
Dr. Aylett retired from olHce:

Groceries and provisions

Flour

]bittcr

J lard ware

Stovi's and tinware

C r» >e U e vy

Potatoes ami vegetal'lcs

liicpiors and lager beer

Fresh meats

I^undier

Medicines

Milk

Dry goods, clothing and .shoes

ra])ers and stationery

Pent of lot .'.

Funuture

Passages of discharged patients

Post-otiice .".

Labor and material

Printinir and a<lvertisinij

Paint .r. ...

Tobacco

lee

Salaries [...'..'.

Miscellaneous ,

Amount to 20tli April

823,629 25

Expenditure uikIoi- Dr. TiMen. from April twentieth to Xoveniber thir-
tieth, eighteen hundreil and sixty-one :

Groccrio.-< and ])rovisions

Fhnir

Huttt-r

Hardware

Stoves and tinware

Crockery

Potatoes and ve;;etahlcs ,

Iii(|iiors and hii^er beer

Meat [

LuinlH-r

.Mi'dieines and paints ,

Milk

poultry and eiri;s

\)yy t;o(><ls. clothin'^ and sho«'s ,

Harness

Papers and stationery

Pent of hit ."

Furniture

Passa<;es of disehar;.;ed patients ,

llav

Lal.or

Printing and adverti^iiii; ,

Toliaeeo

Ice

\V 1

Salaries

( 'ookini; raiitje

One j)air horses

One hull

Windmills and pumps

Miscellaneous

1) ed u e t e r ro rs

Amount from April 20

Add i»er diem of the Trustees

Total expenditure for the year, ending; Xovemher

80. isdi : ;.

S5.510

2.47S

728

813

888

115

2.(545

4(32

2.700

3,501

834

292

4.073

101)

218

338

476

634

658

210

257

1 .044

10. 30 1

300

750

100

341

2,019

§49.650 95

a49.030 75
780 00

874,040 00

The followin;:; ^tat^•lnenl exhihits the financial condition of the fnsti-
lution on the first December, eighteen hundred and sixty-one:

ASSETS.

Cash on liand

Estimates unpaid from July 1 to November 30.
ISGl, inclusive

Less amount Ix^rrowed on July an<l Auii;ust esti-
mates

Balance on estimates

Total amount of assets

T>cduct ajnijunt <»f lulls contracted ]»i-i(»r to De
ceml)cr tirst, unpaid

Surplus, unexj)ended

$35,000 00
12,000 00

81.265 31

23.000 00

824.205 31
9,580 28

eU,07G 03

All of which is respectfullv suhmittc<l.

JI. T. C'OMPTOX.

Treasurer

[ A ]

Dr. W. V. Tilden, Re.<4ident Physician, account wilii H. T. Compton,
Treasurer Insane A.sylum.

1861.

Sept. 5...

Oct. 5..
Nov. 5.

Sept. 5..
Oct. 5...
Oct. 5...
Nov. 5..
Nov. 5..

Dr.

To amount collected from sundry patients for

hoard, as per report filed this day

To amount collected as ahove

. To an\ount collected as ahove ,

Total.

Ck.

By cash 8265 20

By ca.sh 171 75

By sundry bills 63 25

By cash 102 OS

Bv sundrv bills 47 25

8265 20
235 00
149 33

8649 53

Stockton, December 1st, 1861.

K J'Z PORT

OF THE

PvESJDKXT PHYSICIAN.

n E p o rt T.

Tit till- Tnistrrs of (he LiMtitr Ast/ltiin of VnVtfnrwin :

Gkxtlk.mkn: — All Art to establish an Asylum tor tlio Insane of the
Stale of Califoniia, approved May seventeenth, eighteen hundred and
fifty-three, inaki-s it the duty of the Resident Fhysieian to '-euuse full
and fair uceountH and record.s of all his doinu;s, and of the business and
operations of the Institution, to be kejit re/^ularly, from day to day, in
books ]>ro\ idi'd for that jiurjioso. in the inannor and to the extent prc-
8erii>rd in the by-laws; and he shall see that sueli aeeounts and records
are fully made u|> to the end of the year, and the jirineipal facts and
results, with his report thereon, be presented to tlie Trustees immedi-
ately thereatter."

In the absence of "by-laws prescribini; the manner and the extent"
in which the "accounts and reconls" and " business operations of the
institution " shall bo kept. I have, in compliance with the general law,
adopted a system "the princii)al facts and results" of which are shown
in tlie following

\\ K r O R T :

Tin- personal property, buildings, and inmates of the Asylum, were
transferred to my charge by Dr. Aylett, on the twentieth day of April,
A. I). lN»;i. All the books of the institution, excejding records of com-
mitments and admissions, having been removed at the time Dr. Aylett
relinquished charge — in the matter of accounts and business operations
I must nccessaril}- limit my report to the period that has intervened.

The statistics, however, made uj* from the records as correctly as pos-
sible, you will find to embrace all the facts of material interest in regard
to the ]>atieiits admitted, discharged, died and eloped, since the date of
the last annual rejtort. They are herewith presented in tables A, B, C.
D. H. F. (i. II. I., I. and Jv— forms usually adopted in reports of like
character.

It will be seen that on the first of December, eighteen hundred and
sixt}'. there were in the Asylum fo»r hundred and seventeen (417)
patients — three hundred and thirty-two (332) males and eighty-five (85)
females. From December first, eighteen hundred and sixty, to April

twentieth, eighteen hundred and sixty-one, one hundred and twent}'-
one (1-1) were admitted — ninety-tive (95) males and twenty-six (2G)
females. During the same period there were eighty-live (Sf)) diseharged,
died and eloped; but how many of them were dischargee cured, or im-
proved, or unimproved, or how many died or eloped, 1 am unable to
determine with accuracy from the records. On the boo cs, at the time I
took charge, there appeared the names of twenty (20) patients who
were not in the Asylum at the time, and in regard to whom I can find
no record of discharges, deaths or elopements; and at the same time
there were seven (7) patients in the institution respecting whom there
were no records of any kind to be found in the books left in my pos-
session.

I received from Dr. Aylctt four hundred and fifty-three (453) patients
— three hundred and sixty-two (302) males and ninety-one (01) females.
From April twentieth to the present dale, a period of seven months and
eleven days, one Inindred and ninety-eight (108) were admitted — one
hundred and fifty-nine (150) males and thirty-nine (30) females; one
hundred and eighty-eight (ISS) were discharged — one hunilred and fort}'-
niiie (140) males and thirty-nine (30) females ; thirty-three (33) died —
tliirty (3U) males and tiiree (3) females, and fourteen (14) el()])ed — all of
whom were males. The whole number under treatment dui-Jng the
year, seven hundred and thirty-five (735) — five hundred and eighty-five
*(5s5) males and one humln-d and fifty (15(1) females. From December
first to A])ril twentieth there was an increa'^e of thirty-six (30;) and
from A])ril twentieth to the present date a decrease of thirty-seven (37,)
making a decrease lor the year ending November thirtieth, eighteen
huiidreil and sixty-one. of one (1) patient.

Of the one hunilred and eighty-eight jiatients diseharge(l IVom April
twentieth to November thirtieth, inclusive, there were —

Oured

lm])roved ...
Vnimj)roved

154
23
11

Of whom thei-e were under treatment —

T.ess than one month

Krom one to three months.
From three to six months..
From six months to a year

From one to two years

From two to three years ..
From three to four years..
From four to five years ....
For six years

50
38
27
(]
7
3
4
1

Of the thirty-three (33) deaths from April twentieth to November
thirtieth, inclusive, were from :

Consumption

Acute inuniii

Flcerjitioii of In- l>(»\vil«:...

K]iiK'|»sv

Paralysis '

Iiirtaiiiinution of'tlie brain

^Marasmus '

Kttiisiuii on the l^rain

AjH-pK-xy..

linliiration of the liver

Convulsions

Dropsy

MnNTIir.V KXPKNMTIRES.

T<il>l> First — N an exhihit (»r the Steward's account, to^^ether with the
)tay roll of the eniployi-s. en»hra«iiii; ex])en(litiires for i)rovisi()ns, fuel,
(•lothin<;, ine<licines. house ainl kitclu-n furniture, etc., showing; a sum
total <»f thirtv-tive thousand and thirty-six dollars and twenty-ei^ht
rents {8:}r».<>:ur2S.)

Ttihlr S»rnn»l — Is i\\\ exluhit of the (ftlice exjtenses, includini^ the Clerk's
and Porter's salaries, post olKce accounts. posta<ie stamps, books and
stationery, telegraphing;, ete., to^^ether with the travelling expenses, ])aid
for the j)atients dischari^ed without means of their own, with which to
return to their homes. Total, one tliousand eii::ht hundred and one dol-
lars and twenty-one cents (8t.H')l 21.)

Tiihl' Tlilnl — Is an exhibit of the Physieians' dweilinic account, em-
bracini; all expenclitures for the lU-sident and Assistant Physicians, their
families and the matron. In this aecount all articles fiinushcd irom the
orchard anil dairy have l)een charged at the market jiricc for such arti-
cles, at the time supplied. Total, two thousand seven hundred and four
dollars and thirtv-three cents (82,7 4 8.*{.)

Tttl>le, Fourth — is an exhibit of the <;arden and dairy account, together
with the nunilter of tlays' labor performed by the patients in the garden
and on the reservoir and sewer.

The garden account shows the gardener's wages, (unpaid.) the expen-
ditures for gardening implements, seeds, etc., Avith the amount of vege-
t allies, fruits and melons obtaine(l therefrom. The yield from the gar-
den w(»ul<l have been much larger had it been in the care of a competent
person during the spring months. Under the management of the present
gardener we nuiy reasoiuibly exjiect. next year, double the yield obtained
the j.ast season. The dairy exhibit shows the cost of feeding, milking
and the care of nine cows, \ind the number of gallons of milk returned
therefor. It also shows that the Institution has paid nearly as much
for seven hundred and Hftv gallons of milk, supplied at the contract
price, as it cost to obtain f.mr thousand two hundred and eighty-eight
gallons from our own cows; a pretty good argument in favor of increas-
intr the number of cows to thirty or thirt3'-five.

Twenty thousand gallons of luilk could be use<l annually to a greater
advantai^e than any "other article of diet; and I know of nothing nearly
as good "that could be provided at a less expense, if obtained from cows
of our own.

Tnhlr Fifth — Is an cxhil)it of the monthly expenditm'cs for repairs, im-
provements and exti-iior(Hiiury sn])plies. A total of ten thousand five
hundrcil and sixty-six dollars and ei,<;hty-four cents (810.o()() 84.) Apart
froni the seventeen hundred and ninety-six dollars and thirt^'-four cents
(81.7VIG 84) expended in repairs, the outlay shown in this exhihit will
not he required a/^ain for years to come.

Table Sixth — Is an exhihit of the monthly expenditures for all pur-
poses— for the Asj-lum, Olticc, Physicians' dwellini^, i^arden, repairs,
improvements and extraordinary supplies — in short, a summary of every
dollar ex])ended for every purpose, from A]iril twentieth to Novemher
thii-tieth. inclusive, showin*; a irrand total of fifty thousand one hundred
and ei.i,dit dollars and sixty-eii;ht cents (SoO.UH OS.)

Talph' Strt'nth — Is an exhihit of averai^es — the averajje cost to suppoi-t
the ])atients ])cr ca]tita ])er month ; the averai^e ])er capita ]ier day ; the
avei'ai!;e ]»er capita j)er year; and the avcra<:;e dail\' and the average
moiitidy expenses, together with the comhincl total cost per day and
the comhined total cost per month, from Ajtril twentieth to ^sovembcr
thirtieth, inclusive.

A careful inspection of these tahles will show that the expenditures,
t'/jf7«'//»7 improvements and exlraoniinary sup])lies, making a grand total
of fifty thousand one hundred and eight d»»llars and sixty-eight cents,
(850,108 GSj have not exceeded u

Paily per ca])ita exjuMise of

Jlonthly ])er cajtita expense of
Yearly per capita expense of...

8 51

15 5)

ISG GO

"While irifhout the improvements, etc.. leaving tlie sum of forty-one tliou-
pand three hundi-ed and thirty-eight dollai"s and sixteen cents, the total
cum lit expenses, it will he seen it has not exceeded u

Daily per cajiila expense of....
Jlonthly per ca])ita expense of
Yearly pir cajtita expense of...

8 42

12 72

152 5J

Comparing the latter with the expenditures of eighteen hundred an<l
sixt}'. it will he seen that there is a i)er caj»ita balance of twenty dollars
and thirteen cents in favor of the jtresenl year; hut, on the other hand,
if we include the sum ex]>ended for improvements, etc.. and reckon from
the grand total, tifiy thousand one hundred and eight d(jllars and sixt}'-
cight cents, a ]>er ca])ita balance of thirteen dolllars and ninety-five
cents will be shown in favor of last year. It would be a difficult matter,
however, to show that the sum exi)ended for imjirovements and extraor-
dinary supplies (ami included in the nirrciit expensesj in eighteen hundred
and sixty, approximated the outlay for such puqjoses since the twentieth
of April last; besides, if such a showing could be made, it would not
prove the correctness of thus estimating the per capita expenses of su])-
porting the patients ; M'ith equal propriety might the forty thousand dol-
lars expended on the Mad Houses, and in making other improvements,

SIX .lolI:irs luwl sixty cents— tl.c amount is astonishinfrly snialT and
shows nioiv clearly, perhaps, than any other one faot.tlie true character
of the Institution ; nor will this astonishment be diminished when it is
renuMuhered that after close and careful inquiry, as to the necessities of
the case, the State ai)i.roi.riated for the education and care of tiie indi-
^'cnt <leaf. dunih and hiind. an annual sum, per capita, of two hundred
und fifty dollars, and this for a class of rhif>/rni, less expensive to sup-
]»ort tluiii any other class, while, for the manai^ement and care of the
insane — aclassof hc/i and immnt. more ditticult to manai^e, and when
].roperly i)rovi(led for, more expensive than any other class of unfortu-
nates—the annual expense per cai>ita. does not exceed the sum of one
hundred and eii^hty-six dollars and sixtv cents.

In the Xew^ Kni;lan<l. .Middle and Western States — Massachusetts,
(jMWiecticut, New York. New .Jersey. Pennsylvania, Ohio, Illinois and
Kentucky — wh«re everything necessary- for the support of an Asj'lum,
(exceptini; perhaps, flour, meats, suj^ar, eotfee and tea,) can be obtained
at a cost fifty or seventy-five per cent, less than in this State, the aver-
age annual expense per canita is one hundre<l and eii:;hty-nine dollars
an<l forty-four cent.s — two dollars and ei«^hty-four cents more per ca])ita
than is ex]»ended for the support of the insane in California. In view
of these facts it is an insult to c(»mmon sense to attempt to maintain, as
has been done, that the "insane of California ai-e as well ]>rovided for as
those of other States."

The oblii;ations to faithfulness upon those conducting jmhlic expendi-
turi's are no less than upon those en^aijed in the management of private
atfairs— nine economy beini; re<piired in j)ublic as well as private trusts.
But examples are not wanting in either of a " penny wise and pound
foolish" policy, which not unfreipiently leads to the outlay of two dol-
lars to save one. The jtresent government of the Insane As3lum of
California, is, in my judi^nu'iit. an instance of such a policy, whereby
the failure to provide the necessary curative apjiliances must inevitably
result in securing an inci'case. from year to year, of ])ei"manent patients,
and with them, of course, an increase of expentlitures — thus saving the
]H'njiy and expending; the jtound.

It is an interestini^ question whether it would not be more economical
to provide for our insane at an annual per capita expense of two hun-
dred and sixty dollars, instead of one hundred and ei<^hty-six dollars
and sixty cents. The outlay for the first three or four years would be
much <rreater than at ])resent. but the experiment would, I doubt not,
finally result in reducini; the number to be supported to an average not
exceeiling three hundred; whereas, under the present system many
years will not clapst' before the number to be provided for Avill not be
"short of seven hundred; and it requires but little figuring to show that
it would be chea])er to sui)port three hun<ired at a ]K'r capita expense of
five dollars a week, than seven hundreil at three dollars; to say nothing
of the moral obligation, not only to feed, clothe and keep in safety, the
unfortunate victims of insanity.'but to provide every possible means to
restore them to their right nunds. In regard to such means, the Asy-
lum for the Insane of the State of California is wofully deficient.

IMPROVEMENTS. UEPAIUS. ETC.

Ill tlic outlay of the ten thousand live luiiulred and sixty-six duUars
and i'i<;hty-four cents, shown in the exhil)it of improvements, repaiis
and cxtraordinaiy su]>]>lies, the entire Iniildiiii;. exee]>tin<r the lowei-
floor of the south wiui;-, which is Ijc^ond rcpairini;. has been thoi'oui;hl>-
renovated; the walls of all the rooms and halls havo been whitewasliotl ;
the wood work inside and out has \)vvu painted with two coats; scvcnt>-
eii!,ht latticed. tw(^ lari^e folding, (with casings.) and six panelled doors,
with new locks and hin<j^es. have been nuide. and have taken the ])laces
of the close doors in several of the wards; the doors and locks throu<;h-
out the house have been overhauled and repairetl ; all the bathtubs,
water-sinks, water-closets and water-jjipes have been rei)aii-e<l and
]>lumbed; five rooms have l)een newly lathed and plastered, and a lari^e
amount of job jdastcriiiLT done; the clothes I'ooms have been newly
fitted up with clothes chests, shelves, locks, etc.; one of Wheeler i^
Wilson's sewin;^ machines has been jiurchased ior the female ilepartment.
and one of Sin^^er's for the mah' d«'])ai'tment ; three closets have been
made in the fenuile wards, and lai'ice woo(l-boxes. with locks and keys,
su]i])lied to the several wards of Itoth de|)ai"tinents ; twelve new carpets
and a lar;;;e amount of new furniture, beds, beddin<;, etc., have been
purchased; six lar^e stoves have been furnished to the several wards ;
the kitchen and bakery have lieen supplied with new furniture, the foi*-
mer with a lar^e c()okiiii;-ran<^e, etc., at a cost of five hundre<l dollai's;
the lari^e water-tank which supplies the Asylum, the Physicians' dwel-
liiii;. and all the demands for irrii^ation in the fi-ont ^ards (the leakage
of which has been a pi'rpetual annoyance for a loni^ time,) has been
redined. calked an<l pitched ; a lari^e frame, forty by ninety feet, covered
with cotton cloth, and in which is a «;vmnasium. has been jiul un in the
male de))artment ; an addition, fortv by sixteen leet, has been built to
the -White House;" lumber has been ])urchased for a house, eighteen
by twenty-four feet (balloon frame,) now bein<; erected, and designed.
temi)orarily for a laundry, in ])lace of the '• Perley property," for which
a monthly rent of twenty-five dollars was ])aid ; the floor of the en<^ine
house has l)een laid with brinks, the en<^ine overhaided an<l i-e])aired, the
boilei" laid in sand and surrounded with briidvs. savin<ij thereby one-third
of the fuel befoi'e required to run the eui^ine ; a span of horses has been
]iurehasetl to take the place of a span bi-idcen down in the service of the
Stati', and now fit for use oidy in the drud«;eiy of the farm, or at the
l)ump in the reservoir; the third ward of the female department has
been established and furnished ; the gardener has been su])plied with a
full set of implements necessar}* for his department of labor; new gate-
ways have been made for the two front entrances ; in short, cverythin<; has
been done to jilace the j)roperty. in all its departments, in as ])erfect
order for the convenience, comfort and recovery of the ]»atients as a
great Avant of room and no less want of means would admit.

The great im]n'ovement, however, involving a larger expenditure than
all the rest besides, is the reservoir and sewer. The necessity of some
means of drainage to take the place of the numerous cesspools in the
yards of the two departments of the Institution, has been felt for a long
time, but how to meet the necessity has been a question of difficult solu-
tion, the uniform surface of the surrounding country nowhere broken,
except by sloughs contiguous to the city of Stockton, seemed to deny
all relief from the horrid exhalations arisin<r from those sinks of abom-

inations. the contents of whioli not iinfrequentl}' found wav to tlie sur-
face. nuu-U to the annoyance of those contined within smell'inir distance

Such heinir the con.lition of the yards ut the time I entered upon the
(hities of njy oftice. the sul.joct of sewerini,' was anion^' tlie first to claim
my attention. A survey determined the fact that a fall, sutticient for all
practical purposes, could he ohtained hy running' a sewer into the lar<re
hloiii^h. al low water nnirU. at the terminus of El Dorado street, a dfs-
tanee from the Asylum of three thousand feet. A map of the- survey,
to^rether with the eni^ineers estimate of the cost of the work, were
sul.mitted to you at your stated meetin^r in June, and, after thonmoh
investi<;ation. met with your apjiroval and adoi)tion. Before proceediiu)-,
however, with the work, it was necessary to ohtain the right of way
from parties o\vnin<r Jtroperty throui^h which it had to ))ass. Accord-
in<;ly. a (••immitlee. ajtpointed for the jyurjiose, ohtaine<l the consent of
all llu" )ii-operty hohlers. e.xceptini; one. who ])ositiveIv refused to enter-
tain the pn»position, sulnnittinir instea<l thereof sui;i,'estions which led to
the adoption of the work now in proi^ress. one which. 1 am haj)py to
sav. is grt'atly superior to all others jnoposed.

It consists of a sewer, twenty hy thirty-two inches in the clear, made
of two-inch redwood hoards, which. hesi(ies hein«; well spiked, are hound
together every four feet hy redwood scantlini^. the top beinir supported
hy crossties of the same every two feet. It is nineteen hundred and
tifty feet in length, and emj>ties into a reservoir in the field fourteen and
a half feet underground. Starting at the Asylum at a depth of four feet,
a fall is thus ohtaim-d of six and a half inches to every hundred feet, or
ten and a half feet in the entire di>tance.

The reservoir. ( twiMity-four l»y foi-ty-cight feet, and sixteen feet deep
under ground,) i« constructed of a heavy redwood frame, lined with two-
inch redwood boards. Over the central ])ortion is laid a double floor,
nnnle of one and a half inch Oregon pine, upon which is constructed a
•■ horse-power." conne<ting with a Chinese y)um]). At cither end is a six
inch lift |»ump. worked by Dickinson's self-n-gulating windmills, each hav-
ing a wheel tifteiMi feet in <liameti'r. and suppoi'ted l»y a heavy frame at an
ilevation of thirty-two feet. In the bottom is a six inch aperture which
can l»e openeil or closed at ])leasure by means <jf a screw at the top.
Hy this arrangement all the water from the surrounding earth can be
kept out. or at any tinu-. if needed, an inexhaustible supply can be ob-
tained by raining the screw. The whole is covered by a substantial roof,
the eaves of wliich are six feet from the surface. All the wood work
under ground is thoroughly coated with coal tar, and all the seams, both
of the lining of the reservoir and of the sewer, are calked and pitched,
making them perfectly water tight. The necessity of the reservoir and
sewer being water tight will be seen when it is remembered that in the
fall of the vear (the drie-t season) water can be obtained anywhere on
the Asyluni property at a depth of seven feet, and in the spring, when
the water is at the llighest point, it can be obtained at a depth of three
an<l a half or four feet. The sewer will, tiierefore, be under water the
greater part of the time, while, around the reservoir, water will stand
within three and a half or four feet of the top; consequently, if not
perfectly tight, they would be kei)t full of water from the surrounding
earth.

The ditticulties attending the construction of such awork, are much
greater than wr.uld at first appear to an ordinary obsei-\'er. To obtain
masterv of the waters while sinking the last ten feet of the excava-
tions ; 'to keep it in check while putting in and bracing the wood work of

the resei-voir sufficiently to overcome the immense pressure of ten feet
of water, and to hokl it in subjection while layin*^, calkini>;. tarring and
pitching the sewer, have been sufficient to tax all the intjjenuity and en-
ergy the Institution could att'ord, together with no little assistance
obtained from cari)enters. calkers and teamsters, with their horses and
mules, the latter tinding emjdoyment day and night for over three
months, in running a doulile horse j)o\ver jtump. throwing eight thousand
gallons of water every hour.

Great, however, as the difficulties were, tliey have been ovi-reome. and
the work is a success. The danger of failure is past, and that which has
so often been pronounced a thing impracticable, is now a fixed fact. The
reservoir, with its horse power, its windmills, and its pumps, ail In fine
working order, is done, and well <h)ne, and if not interru])ted Ity rains,
the sewer will bo completed by the first, or at the farthest, hy the middle
of iiext month. In the progress of the work, vej-y valuable as.sistance
has been rendered ly the j>atients. many of whom have shown <leei<led
evidences of improvement, while others have entirely reiM)vered and re-
turned to their homes.

In the completion of this work, we derive not only the advantage it
aftords as a sanitary measure, but also secure for use in the garden and
fields, a fertilizer second to no other in richness, which, in the abundant
increase in vegetables and fruits it will afford, will assist in no slight de-
gree towards making the Asylum a self-sustaining institution.

THK ASYLUM — IS IT A SUCCESS?

To answer this question it is necessary first to iixpiii-e what purpose
the Legislature had in view in establishing it. and since, in apjuopriating
means from tin\e to time, for its maintenance. If it was the intention
to erect a prison, with the neces.sary appliances for the care and safe
keeping of the insane of California, it is an eminent success. Its beau-
tiful editiee, its well eultivated yards and garden, its wholesome food, its
comfoi'table clothing, its seruj)ulously clean halls, rooms, beds and bed-
ding, its excellent jiolice regulations. c(nnbine in making a prison of the
first class; and. if such was the original jmrpose, I see not how it could
have been more admirably accom[)lished. If, however, in creating a
charity so munificent, so noble, it was intended to establish an asylum,
with hospital aj)pliances, for the cure as well as the care and safe keejting
of the insane. I am free to say it is. in my opinion, a most signal failui-e.

Accustomed, as the people f)f California have been, to look with ])ride
upon the Insane Asvlum. believing it in all things to be equal to the best,
this statement will be received by manv with sur])riso and astonishment.
Many, it may be. will question its truthfulness, while others. I doubt not,
will meet it with an indignant <lenial. and knowing with what admiration
you. gentlemen, were wont to look upon the Institution. I am j»ersuaded
it will not be received by you without sr»me misgivings as to its correct-
ness. But you are the elected guardians of the Institution, and I its
chief executive officer. You, I am sure, can have no interest in making
it appear better than it is, nor I in making it appear worse than it is.
It is to be supposed that, between us, the feelings of interest for the un-
fortunate sufferers placed in our care, are mutual, that they govern all
our actions, are the mainspring of all our motives, in the adoption of
measures for the amelioration of their condition. Let us, then, look this
question squarely in the face, and, perhaps, we will see whether or not
there is legitimate ground upon which to base my opinion. A careful

examination of the several <livisi(,ns. .lepartments and wards, wliore the
beauties as well as thi- di'loriiiities of the Institution may be seen, will
reveal the truth or lalsity of my position. Let us make sueh an exami-
nation.

Passiui; thn.uiih the main entranee we find ourselves in the fifth ward,
and the first thin<r that attraets our attention is a i^roup of a dozen or
more of the inmates, who. bad health, bad habit.s, interested county
offieialn. careless County Judi^es. iirnorant physicians, or somethim; else,
have consij^ned to your iruardianship and my manai^a'ment withiirthese
walls. They are. you observe, cointortal.ly clad, and the comparatively
healthy <r|ow of countenance and skin. in<licatcs that thev lack notliingin
quantity of food — it bcini; my interest, as well as my dutj'. to see that
they sutler not for want of food or raiment, for from daily contact with
four or five hundred cold and hun«,'ry maniacs, every one may sincerely
j)rav to be forever preserved.

The walls. fb»ors. be<ls and bedding, are, you perceive, as white, and
neat and (dean. a« the decks and hammocks of any of the line-of-battlc
ships that recently naid their respects to the rebels at Port Koyal. But
there are one hundred anil thirty-three patients in this ward.' and only
twenty-three ntoms for their accommodation, each containini; from two
to a dozen beils — at least as many aijain as the ward can accommodate
with a reasonable re-^ard for healtli and safety.

While cleaidiness is indisjiensable to the proj)er mana;;oment of an in-
stitution of the kind, no amount of labor bestowed upon the floors, walls,
beds. etc.. can compensate for the evils occasioned by the foul air of
crowded rooms. To you. who have never seen these sleej)in<^ apartments,
pivk-'l as they mti»t be every nii;ht. and who have never had your olfacto-
ries ottende<l by the sickeniiiij exhalations procee(lin<( from rooms filled
to their utmost with white men. China men. and ne<;roes. to<>'ether, the
cleanly ajipearance of thini^s around you may look very well, yet it is
doubtful whether there is a State prison, in the manaicement of which
the feelini;s of humanity are ])roniinent. whose convicts are not better
j)rovided tor at ni<;ht than the insane of California.

Hut let us pass into the yard. This is one hundred and fifty by two
hundred and seventy feet in size, and contains, you see, from two hun-
dre<l and seventy-five to three hundred and twent^'-five persons, repre-
sentini; almost every form, variety, character, and tjpe of mental
<lerani;ement. A prettv ijood mrntl, but not nearly so large as the one
at San (^uentin. in whi( h may be found quite as great a variety of crime
as of insanity in this, with this ilitference. however, in the general aspect
of the two:'the State has kindly jjrovided emi)loyment for its felons,
while its innocent but sufiering in.sane are left in idleness, to brood over
the subjects of their wretcheilness aiwl woe. This indi.scriminate mixing
up. however, of all forms of mental derangement, is not the oidy promi-
nent ]iart of the picture before us; here. also, is to be found almost every
stamp of character, the representatives of almost every grade of social
life, from the vouiii; man of liberal education and refined culture, to the
artful thief and the^cold-blooded robber and murderer, the picture being
comjdeted by the lights and shadows of all nations — the United States,
England. Ireland. Scotland. France. Spain, Germany, Kussia, Prussia,
Italv. Mexico. China. Africa, and one or more of the Indian tribes.

You ask why we do not dassity them? The question is easily
answere<l. The proper means for classification are not at hand, the want
of room, especially, not admitting of it. True, we might make an at-
tempt at classification, but even this would require close confinement in

tlio five wanls of tliis <lopartnu'iit. :iii<l. liotwoen the two. classification
Avitliout exorcise in the open air, and exercise in the open aii" without
chissification, we prefer the hitter, for the reason, that witiiout fivsh air,
and a i)Ienty of it. there is scarcely a shadow of hope for their recoveiy,
whatever else may he done for them.

Here ])ermit me to call 3'our attention to this structure. It is, you
see. a frame, forty b}- ninety feet, covered with cotton cloth, and uiuler
which is a small (gymnasium. In the shade of this many find pro-
lection from the suns of summer and the rains of winter, and no little
diversion in the use of the swings, the ladders, the uj)ri^ht, cross, and
]»arallel hars ; hut rememher. tliei'c are over three hundred men who
liave access to this yard and this i^ymnasium. limited as it is, and a
readinix-room. kindly sujtjilied hy the liherality of the ])ress in this
and oilier States. lo<;ether with a very small lihrai-y, constitute the
sum total of the catalo<^ue of means with which to occupy, to amuse,
and to divert, the minds of these three hundred or more ])ersons. There
is not over ten per cent, of the number who can avail themselves of
the benefits accruing from these means of employment, and indee<l, if
they were of an extent sufficient to employ them all. it couM scarcely
be ex])ected that even insane men would be disj>osed to spend all theii*
time in reading newspajjcrs and in gymnastic exercises. The mind
would soon become cloyetl of the one, and the body exhausted of the
other.

Hut let us cross the yard, and enter the second ward, alias • Mail
House." In this ward there are. rangeil on either side of an eight feet
hall, twenty-seven bedrooms or cells: six, ten by twelve teel, and
twenty-one. five and a half by nine and a half feet. In each of the rooms
ten by twelve there are three beds, and in each of the others one bed ;
in all thirty-nine. The rooms, beds, and bedding, are, you see, wry neat
and clean ; us much so as it is j)ossible to keej) brick walls and asphalt uni
fioors with lime and water, and the beds are as good in quality as the
most fastidious could wish whose <lesires do not exten<l beyoml straw
]iut up in the most api>i<»ved form. The dining loom, ten by nineteen
I'eet, is intended for the accommodation of thirty-nine persinis. but is
( i-owded with twenty-four. The tallies, you perceive, are set without
cloths, and tin jians, iron spoons, and (juart tin cups, take the ])lace8 of
jtlates. soup dislies, and knives and forks.

The recollection of a visit to the State Prison last winter reminds me
that the dining r<)om of the convicts was furnished, as nearly as posaible,
with the same class of articles.

This ward is intended for the most intractable, but fr<»m the crowded
condition of the Institution, many of the quiet and most inotlensive arc
required to be kept in it at night.

Leaving this, and crossing the yard to the left, we enter the south
wing, and after ascending a rickety stairway, find ourselves in the
fiis!: ward. Here, again, everything is scrupulously clean; the white
Avails, white sheets, white pillow eases, and blue checkered s])reads. con-
trasting pleasantly with the butt-colored floors. In this ward there are
six rooms seventeen by fifteen feet, two twenty-eight b}- seventeen, and
two seven by ten. for the accommodation of seventy-seven j)atients — fiom
six to thirteen in a room. A little crowded, I think. an«l but for the
latticed doors, recently put in. would sutter somewhat at night from foul
air. The dining room is furnished as that of the second ward, and like
it is far too small for the number it is required to accommodate.

Passing through the large hall, and ascending a short stairway, wc

make our \va3- into tlio tliinl Manl. In tins there are four Jied
rooms, t-acli tifteoii and a lialfliy twenty-four and a lialf feet, for the use
of forty-tive patients — eii-ven in eaeh rdoin. and one sleepinn; in the hall.
In n'<;ard to diniiii; room aeeonnnodations and <>;eneral eleanliness. this
Avard ditn-rs in nothing' from the rest. Over this, and on the third floor
of the main huildin*;. we find the fourth ward. This has ten bed
rooms: four ten l.y ten feet, one twelve hy twelve, one twelve by six-
teen, one nine by sixteen, one thirteen' by tifteen. one eleven by
ei«;hteen. and one eleven by eleven, for the"^ use of tifty-six patients,
eleven sleepini; on the floor. The dininij room furniture, the erowded
eondition of the bed rooms, and in all otliei- respects, this ward is iire-
eisely the same as those below stairs.

llavin:; si-en all that is to be seen in rei^ard to the male de]>artment,
we will return to the fifth ward, where our investii^ations bei;an, and
makini; our way thntn^h a portion of the north wini^. we will enter,
thrrui^li lar^^e foldin<; (loors. the third ward of the female department.
This ward. fi»rmerly a ]»ortion of the male department, has been reeently
fitted up and furnislu'd for the use of the females. Entrance can now
be bad t«) this division without haviuix to <;o throuujh the male depart-
ment, as formerly. As you enter from the front, you observe to your
K'ft two reception rooms, neatly and jtrettily furnished, and diviiled by
lari^e foldin;; doors. In this ward there ai"e seven bed rooms, and a
lari^e sittini; room for the patients ; the bed rooms, two ten by seventeen
feet, two eiijbt by seventeen feet, two seven and a half by seventeen,
and one fifteen by seventeen — are lari^e enouirh to accommodate
eij^hteen or twenty patients without danger to health or safety, as the
fpiiet and order!}' alone occupy it. Ovei* this, and occujiyinjjj the second
story of the north wini;. is the flrst ward of this department. Here,
as in the corresjxtndini; wards of the male ile])artment, the patients
receive their first impressions of life in the Asylum, antl they are
retained or removed to the other wards as their haiiits and the peculiar
developments of their insanity may require. In this ward there are
eiirhteen bed rooms, which, while not, in their dimensions, strictly in
ace«»rdance with the most intclli<;ent manai^ement of the insane, arc
nevertheless convenient and comfortable.

The appearance of cleanliness and order are to be seen here as else-
where. I'assin;; out at the east entrance, we And ourselves in the 3-ard
used bv the ])atients oi' this and the ward below for out-door exercise,
and throu<;b which all the patients pass to reach the two dinino; rooms
devoted to their use. Crossini; this yard, and enterinij; a door to the
left, we obtain access to the second ward, or Mad House. This, you
perceive, is. in construction at least, a second edition of the Mad House
of the malv department. It contains three rooms, each ten by twelve
feet, ami fourteen eaeh six by ten feet. The patients of this ward are
those of the most violent forms of insanity, to,i,a'ther with those whose
habits are such as render them intolerable in roouis with plank floors.

No part of the Institution is more uncomfortable than this, its crowded
condition recpiirini; two and three patients to be kept in each of the
cells at niirht. Here we have. also, the strange and unnatural blendnig
of all colors and classes, another nihi podrUJa of nationalities. But, the
dinner beinir now readv, let us return to the other yard and inspect the
diidni,' rooms of this division. The flrst we enter is the one assii^-ned to
the Mad House. It is thirteen by twenty feet, and is used by thirty or
forty patients.

The furniture is, you see. the same in quality as that in the dininj,^

rooms of the male department, ami here are to be seen, as in them, ])ota-
toes and hread hiid on bare boards, and soups, meats, etc., served up in
tin pans an<l eaten with iron sjjoons. Observe, if you please, that ^roup
sittini; on the end of the hi nrh in the corner of the room. The first

one is Madame . a hii^hly educate<l anil accomi)lislK'd lady; the one

at the extreme end of the bench is Mrs. , the wife of a verv res-
pectable farmer; and between the two is one of the lowest of the natives
of China, a victim to a life of debauchery and crime. IJevoItini; as ti»c
idea of such an association is. it is nevertheless so, and not only so, but
unavoidably so. No numa.i^ement can have it otberwise with such pro-
visions as are made for the insane of California. These three women
must be either locked in their cells or be associateil when out for exer-
cise and at their meals.

The next door takes us to the dinini; room. tliiiMeen by lliiity-fivo
feet, of the patients oecupyin^ the other two wards, numberini; from
forty-tive to sixtv. In tliis we observe the tables are set witli sou|)
dishes, plated spoons, and knives and fork.s — an im]»rovement, truly, on
the lurniture of the other diiiiuix rooms, but yet. so <freat is the want of
retinement about it, no little opjtosition is manifested by many lo taking
their meals here, and instanees are not wanting of those who, rather
than do so, have ^one without food for several days in succession. In-
deed, from fear of the consei|uenees of ]»rolon^ed abstinence, I have not
unlre<piently felt the neeessity of having such supplied in their rooms
from my own table.

We have now. gentlemen, tinished our investi<^ations — wi' have seen
all tliat is to be seen of life in the Asylum for the Insane of the State of
California. If there is any thin;;; nioi-e to be seen, it is more tban I have
yet discovered. Whatever vour opinions ntay be, for myself I can oidy
re])eat what 1 said in the be;;innin<;, that the niore carelully I in«juire
into the condition of the Asylum, the more thorou«;hly am 1 convinced
that we have in it a ])rison. and nothin*; more — that if there is any
marked dirterence between it and a well conducted State Prison, it is in
favor of the latter, from the fact that means ol" enijdoyment ai"e jn'ovided
for its innuites. while the inmates of the Asylum spend theii- days in
idleness. Oui* jtatients are ]»rovi<h'(l with fooil and elotiiin^ — so are the
conviets otall State I'l'isons. We have attendants enough, and no inore,
to look altei- their j>ersonal wants — .so have well condu(te<l State l*risons
in rej:;ard to their convicts. Our patients are supplied with all the medi-
cal attendance they can p<)ssibly need — so are the convicts of well con-
ducted State Prisons. They have the benetit of a small library — many
State Prisons have lar^e libraries for their convicts. In shoi-t, there is
seareely a State Prison in any one of the older States whose criminal
inhabitants are not as well ]>rovided for in every respect as the inno-
cent but uidbi-tunate insane of this State. The deaidy and orderly state
in whieh the Institution is kejtl eannot coiujtensate for its crowded co)»-
dition and for its utter want <»f curative a^iencies.

It will hardly be contended, I think, that our newspapers and a little
gymnasium, with a solitary swing in the female department, can give
the A.sylum of California a claim to the character of a curative institu-
tion.

IMPROVEMENTS REQUIRED.

In the construction and management of an asylum for the insane, the
greatest liberty, consistent Avithpersonal safety and secui-ity, should be
given to the patients; every appearance of a prison should be, as far as

possil.le, avoided. The rooms and halls should be large, airy and eheor-
lul, an<l arranirod and furnisiied in a manner that the eves of the patients.
turne«l in whatever direetion. would rest upon somethinir suggestive of
comfort and j.leasure. Suceess in treatment depends no little^upon first
impressions, and the patients, not unfrecpientiv loaded with irons and
otherwise maltreated on their passage to tile Asvlum, are usually
reeeiveil witi> their min«ls tilhd with all manner of horri))le ideas of evils
awaiting them. If, therefore, their reeeption is attended with the rat-
tling of keys, the grim appearance of bolts and bars, the ready exhibi-
tion of straps and strait jaekets, their worst impressions are at once
contirmed, and months nmy elapse before these impressions can be
removed. (Jn the other hand, if received with kind words and sympa-
thizing acti«»ns. and the scenes around present a pleasant, cheerfiil and
homelike a.speet, the c<(Mtideiice and atleetion of the unfortunate sufferer
are at once obtaine«l. and the eure. if a tall probable, commences without
delay.

8EPAR.\TE FEM.\LE DEPARTMENT.

The m«»st pressing want of the Institution is additional room. "We
have enough at present for al»out two hinidred and fifty patients, while
there are under treatment four hundred and thirty-four. This necessity
can be best met. perhaps, by the erection of a separate female depart-
ment, for the locution of wliieh there is no lack of beautiful ])laces on
the Asylum pro|)erty. The most eligilile. however, ami which, while
convenient to tlie medical and other offices, would add more, perhaps,
than any other, to the present imposing ajipearance of the Institution, is
imnudiately in a line with the pi'eseiit building, about as far north as
this is south ol" the Kesitlent Physician's dwelling. Such an improve-
ment should be ma<le with tlu' view of atb)r<ling accijmmodation for one
hundred and seventy-five or two liundred patients. I am not prepared
to say what it would cost to erect, heat, light and furnish, such a build-
ing, not having felt at liberty to employ a competent person to make
an estimate.

WAl.I,.

The demand for means of employment for the patients is scarcely less
pressing than for additional room. The l»est and most effectual step
toward meeting this want would l>e to surround the entire property
with a wall, having height sufficient to j)revent all danger of escapes.
A large scope for lab(jr would be thus secured, and it would not be long
after the completion of the work before the present barren fields would
assume the apjiearance of a richly cultivated garden.

WoHKsHopS.

Workshops could also be ailded to the Institution with infinite advan-
tage to the jjatients. Almost every branch of the mechanic arts is rep-
resented in the Asylum by su|)ei-ior workmen, wiio would regard it as a
great privilege to be pernlitted to exchange their present life of idleness
for one of employment.

There is. in fact, no good reason why a large proportion of the expen-
ditures now made for clothing, boots, shoes and other articles, should
not be saved bv havinix them manufactured in the Asylum.

Better and iiiore desii-able articles would be thus obtained — the larger
4

portion of those purchased having been maile evidently more ^vith :i
view of sale than service.

The evils of idleness are as great, in proportion to nnmhers. in an
Asvlum as elsewhere, and the inijtortance of employment is nowhere
shown to greater advantage. The attention it gives to tlie otherwi-^e
wandering mind, and the contentment it at!ords. cannot he too highly
estimated in the treatment of insanity. I cannot, therefore, urge t<>.>
strongly the importance of early attention to this subject.

AMUSEMENTS.

Measures for instruction and amusements raidv high a«; restorative
:i]>]>liances in the Asylums of the Kastern States. Jii-ligiuus exercises,
lectures, musical entertainments, dancing, gymnasiums, howling alleys,
bagatelle boards, billiards, cliess. checkers — in sliort. any and everything
caiculated to entertain, amuse and divert, find j)laces in these institutions.
In an attack of insanity, the p()wei's of attention and comiiarison are
iisually the Hi'st overthrown, and in an etiort to restore these ]>owers to
their wonted vigor, measures for the emidoyment, amusement and diver-
Kion of the patient rank among the most efticietit.

lie knows but little of the nature «»f mental <lei-angenient whf) depends
mainly u]>on medicines to cure his cases. They are very good in their
jilaces, and it is one of them to be used not unfre(piently to great advantage
in an insane asylum, but it would be better to intrust the management of
the insane to such as are well skilled in the training of little children
rather than to those who rely maiidy on the use of nie<licines as ctirative
agents of the first imjtortance. I*atience and ]H'i*severance in the use of
means adapted to mental, moral and ])hysical training, are the secrets of
success in the management of the insane, and no asylum (an be regarded
as a curative institution in which such means are wanting. A large hall,
therefore, for lectures, musical entertainments, etc.. and aclia])el. neatly
fitted u]( for religious senices. are very much neede<l — in fact, they are
regarded in the Ilastern States, as indispensable to a well regulated
a-<ylum.

CONVALESCENT W.VRDS.

Each division ot tlie institution is in great want of a convalescent
ward, with a r<t(m\ nicely fitte<l uj) for a museum and i-eading room, to
M"hich the ]iatient. when recovering, can retire from the geneial noise
and confusion. The im]>ortance of such a ]irovision can be appreciated
by those only who have witnessed the annoyance and pain suttered by
convalescents, from associations, the character of whicli. returning rea-
son enables them for the first time to com]»rehend. In want of such
wards I have, in repeated instances. Cinore particularly in cases of
females.) kept such ])atients during the day at my house, thus affording
them j'elief from the scenes of suffering around them, and for which
convalescent patients have an especial aversion. If the willingness on
the part of my family to take charge of the convalescent ]»atients
through the day were never so great. I would suggest that the house is
too small for the puqwses of both a private dwelling and a public con-
valescent ward.

HOSPITAL ROOMS.

P:<,nally in iiui.ortance with oonvuk'sct'iit wards arc rooms separated
Ironi tlio ixtiK-ral wards, demanded IWr h.jspital purposes for the bodily
Mck. A more uiipkavant place in sickness cannot well ])c inia-rined than
in the midst of the cxciti-ment and noise of insane persons/^ For this
puri>o»e amjde provision could he made hy the erection of an additional
htory on the hack huildini;. now occupied as store room, kitchen anfl
hakery.

LAINDRY.

It is very de>iraMe. hctth as a matter of economv and convenience,
that a;;ool laundry shall he provi.led at as early a* period as possible.'
The present provisions for washini; the clothes of the cnjjdoyes are un-
uvoi«lahly expensive, unless further pr«)visioiis can be made whereby all
the washing' and ironing of the Institution can be done by machinery.
A little reflection will suffice to show that the washin<r of the clothes,
beds and bedding, for tive hundred pei-sons. (the clothes of many of whom
require as dose attention as those of little (hihlren.) done wholly bj-
hand. must be not only an item of threat labor but also one of much ex-
pense, to say nothin;; of the inetticiency of the present system, which
does not j)rovide for the ironini; of the clothes of the male department,
and without which the patients, not bein;; able even when ilnx^,d io pre-
Kent that neatness in appearance upon which gentility so much depends,
Hoon lose all self-respect, and. consequently, all disposition to keep them-
Btdves neat and clean. Think of a gentleman, and there are frentlemen
in the Institution, ^oin^ from one month to another without an ironed
shirt on. The machinery of a complete laundry could be mm by the
enirine without the addition of a sin^fle stick of \voo<l to the amount now
requiivd to do the pumpini: of the water into the water tank, and all the
hot water required could be providetl by the use of the steam fn^m the
Iniiler. tluis puttirii; an end to four tires, besides conlininir the lal>or of
washin;j to the tir««t two or three days of the week, wheiea-; now every
dav is wash day.

ARTICLES MAUK IN THK SKWIX(i ROOMS.

Finutle D'juirtnifiit

Dresses

Cotton skirts

Flannel skirts

Kmbroidered skirts

Pairs drawers

X igh t «l resses

Chemise

Ni^jht cajts

lender jackets

Under waist s

Carpets

AVardrobe curtains

Clothes baijs

Table covers

07
68
48

4
35
14
4»

3
70
22

•>
2

Sofa covers

Sheets

Towels

Mats, croclictcd

Yanls t^iInminl,^ crocliettMl

Bands and cutts, odijod and wrought

Jackets

Aprons

Ilandkercliicd", hemstitched

Pairs stockini^s knit

Pairs gk>ves knit

Malr Dijiitrfin'tif

Sheets

Pillow casi's

Door mats

American Flails, large size

American Flag, streamer I'Jo leet lung..,
Fhi;r« of all Nations

lOS

48
4S
25

121

Besides tlu' ahove. a very large amount of repairing has l>een done in
holh di'paitmenls.

STOCK ON n.VM>.

The sto(-k on hand I)iceml>er first, eighteen hundred and sixty-one, is
as follows :

tStore Ri/om.

Provisions, clotiung. shoes, hats, hardware, tin
ware, etc

Sf„U:

Carriage horses, two

Work 1 1 orses. fou r

Heavy two hoi-se wagon, one

Ileavv si^rin*; wa*ron. one

Jjight spring wagon, one

Sets of harness, three

Russett ranger saddle, bridle, one

Furm and Dniiy.

Cows, (cost eiglity dollars each.) nine

Bulls, (one yearling.) two

Yearlings, (four heifers and two steers.) six

Calves, seven .

8750

550

240

225

lou

100

720

125

150

82.338 00

2.082 50

Pork hofjs, (4,500 pounds,) twenty-seven...

Breediiii; ho<;s, (l.oOU poinuls.) six

8hoiit.>* and pigs, tliirty-tivf

Barn.

T«»ns hay (80.) twonty-tive

Lumber yard, luinher assorte<l

Wood yard, \\x eonls wood (84 4X.I

22o

225 00

65 00
522 04

1,404 00

812 64

86,088 10

Rl LKS .Wn KKOILATIONS.

I herewith ]»ros»'nt a <-o|)y of the Rules and HeguUitions for tlie internal
■ vcrnnient (»f the Asyluni. wliieh were drawn up and instituted in
:ii;ust last. Not a lew of the rides, you will doul»tless ohscrve, have a
y//vwiywW/»r heariui;. the diitifs of some ottieers being ])res(.'ribed. while the
offiees themsrlves have no (.-xistenee. The Supervisors, Overseers of
Laundry, Wattdiwonnm, and FarnuT, are instanees. Sueh rules were
Hdde<l to tli<»se now in foree with the hope that the Legislature would,
at its next session, kindly open its hand and su])]tly our wants, in the
event of which the oHIees would spring into life, and the rules governing
the ineumbents thereof be in full force.

CONCLUSION.

In conclusion. I take pleastire in acknowledging the valuable assist-
ance I have received from I)r. \. i Mark, who has been untiring in his labors
in the medical and other (Kjtartments of the Institution. To the officers,
atti'ndants and assistants. I nnx much indebted for the zeal and energy
with which they have discharged their most arduous duties, in return for
whi( h it gives me ])leasure to otter my iinqualified commendation.

The Institution is much imlebted to the press of this and other States,
I'rthe valuable i»apcrs and periodicals with which we have been regu-
larly and generously supplicil.

In view of the sp'arscncss of our library, an appeal was made through
the •• Stockton Independent" for contributions, which has been answered
by the donation of sixty-seven volumes. To the generous donors we are
much indebte<l.

IJespectfulh-,

W. P. TILDEX.

Resident Physician.

Lnsane Asylum, Stockton. December 1st. 1801.

Apr I'M) IX.

•2 »

C>. =

.1*

?«2

Result

,44-§4|,|.444|.l,.4|.4

.= =.= «.£ e .= s .5 e! a
a jz a j: a j3a-acj^d
S ^aS^a i^EsSSSS

1 ProHpect

unfavorable
do
do
do
do

unfavorable

unfavorable
do
do
do

unfavorable

uufavorablo
do

unfavorable
do

State of Health

Iccoc :o :Soc3

good

good
do

Supposed Cau.'-e

:h a

J«! .2
a a "carta

a . "Sa .5 = *-7;-sa
a Ca -vaaC^a

Apparent Form

dementia

mania

delirium

mania

dementia

mania

<lelirium

nmnia

do
do

<iementia

monomania

dementia

.lo

delirium

m mania

dementia
delirium
mania
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Duration before Ad-
mivHion

|eecsec5sceeeseecooa
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County from whieh
Committed

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Nativity

— >►. a _ = >. _ a

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Civil Condition

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a

Sex

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Age

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Date of Admission..

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Number

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.= s = p a

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c s z:=ca >^a

Icfsr r z z z z = z -zzooi^-r-~-'^'^^^~'ioS3SSSS^

:-2 ' dJs "^-iv-iir-i "^E-i

I 5 _ • 3 . . _ « J . . - - 5 = C--20003000C_C_0_0_0_O_O_C_2^3

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fl — — 1-^ -C I- r, ~. = — C-l rt -^ O •-0 I- X ~

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Result

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State of Health

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jj • = S S J* 5

= ? E = = B
3 it — — 3 —

Apjiarcnt Form

mania
dementia
mania
dementia

m.in.iniania
mania
dementia
mononiiinia

.l.<
mania

dementia

mania

meluiiclxilia

mania

.lo
.to

dementia

delirium

mania

monomania

mania

Duration l>eforc AJ-

minsiou

n -a

» •£ ►

2ooosos9sscsoeccB£5c = ooee
^'U'vw-srssrs'S-e'W'ss-s ^ ^s r: 's 'S rs rs n

a ^ a
a -«■ 3

County from which
Committed

11 .si

J< ^ = = £='-'e«E

a r: " ~ .'-zr-, -^ '^
3 &3 -/. -/. E- < u; X — V.

Nativity

unkn.twn

d.>

ilo

do
Irelan.l
unkn.twn

do
New York
unknown
Mexico
Mas.".

N. Carolina
Ohio
Irelan.l

a s a

B ^ e B e B s

3 s 3 -E 3 « a

Sox

1 o o

i i' ' S 1

Age

Date iDf Admisyion...

a iP ^ ^ ^' ^ '"'' "''' if '"'' '"''
-* •^''- " ■: 'c i '•: r r ~

3 <^. ~ 6 >r. y: y. :^ c. z. 4

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^^le^ ^^-i-;-i x-i-i

: = : c 3

'5 .5 5

= 1 4;!-l£^ -I4-I44-I4 5 44-^ 5 j i ■= l.= 'l^22- si^ss^^
SH ^ =^? ^- 1 if sir! if "is

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. ■" * «^ g — M=— S MS— 3C^ =: — o

sJ. £- .1 t I t I € = S e c.S §

X JL — ^ . . _ ^^ _ - .» X x w •: X < /. w - x X i- ^. X. x X X ^ = r- y. a -/. r. S- x -x

c^ = :r= a_ aj<>, s = >.._ = = ._ i. c =— = »,.._..

-I ii-l=i-J-ri '"^ = i ' c =4 = 'J4i I f i 'J = i ' i »'?i iJ =ri l-^i

c r c s = 2 = = E~

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S C — Sjj — Sg C— Cg S-Ss S ""s **

_= |S S m 5 3 'c 3 '» 3 'X 3 = = 5 3 3 "x 3 3

^^^_5Sc = s^sscs«^5r;s3s;crscc^_£_:_£_£_e=_= = r_2c"5_so"3

_S tS 3 tf: 3 =Ji 3 — 3 g;^ S ci

o oe o o "O-x e-^i s:cr< ^"i Mr^stn ct — fso= os-=»— 'jcxoc«»

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*SS3i = s»S43»ss»3:ri= = = = = -:;c = c; — MMM-iMMMririnr-: —

Rcgult ,

Prospect .

State of Health

•3 "3

= 2 ^

Supposed Cause.

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«s s t d

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Apparent Form .

s .- ; ._ o .- ; —

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Dnration before Ad- o - ccs"?"? = = = £ =
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County from which
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«~ = s = =

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Civil Condition

a 5 .=

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i -*

_ a .= a .5 = s .5 c .3

Sex

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Age

= = M .-5 »~ r: ?■» X >-« 0 =; e t- 1- t~ ■-■; r: »- — »- s — -s = N
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Date of Admission.

Number

xxKxxxcexacxxocxwocococx^cxxxar. a:»

^•5 O •-'i O .-"i t^ O yi O Jl O O O O O •-'^ ^"5 O -f 'O O ^--l O O >.■»

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— - — - — ^-^^t-t-s-t-'C'Cwufc-'t- -*•>.-•. — - - —

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do
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= = = = : = co = :c3

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— ^3 = = a s c2

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S.I

!-r £

3 0» « W ft '

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— 3

S S » » s »
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= :=£

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= £

X S u a

^ s

Prospect

State of Health

Supposed Cause .

1 2 s g

c- s r- c

*: u c ^ s c u

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ill i -^i"

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Date of Admbsion.

Number ..

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tc a

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S ^^4-ra -S-r^S-S 343^
aa -3 3-r a-rS = S3 33

3Ss ^.2 SS3A Ss Ss 3.

.3 a ? =* a =S .H t« .3 :i 3

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a = a . 5 «

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3^§3-aaS"-i:73^ = ='i-r, r--^. - = = :s = B;/. BKa-ac
S la §3liji.?.^;i=^,= i S.^-SIBT-^IJ aJ-a £|

i»

; o = c .2

! "3 "3 "3 t.

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£ 3 s c

SC CCS 03 C-rS 3330330^3^^3^3,
3'tJ'3'3'3"3'3'3r;"'3'3www wws* ^w^^^w^

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£ 3

= 'k s

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"— __„_ — —.1-15-1 (M?.|(MIM(M C-li-HiniOtOO

;SO — 43053-— "O"— «0«00«00
o' rt" o t-T fC t-T i~r

C-l C-l ?^ (M IM M C-l

a = = = = 33aa = 3 = a3a3ajrr";r^~irT~:^--i'V:>ooooiicJoo""«"o
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«C — -.C ^ 13 I- l~ 1^ l- J, t~ 1

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^ or — -3 _ /»! — -t o ?3 I^ ■» Si O — CI « -t O O b- OC 35 C — ' IM r-: -f in t3 f^

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s.r

^ >^

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Result

o ?. g, o © o K, Kr o a £, ri = £*, o o o

S S S .5 s .= a .S^.Sa « a

a ^_-a a — s— e:^=j= _j3 a

as^ga r. B'i a i B -i z u a

2 ^^^s t ^ £^ t-S f-B ?^ e

: 0

': «

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0 . .

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= 2

Prospect

> n

X : :
2 : :
0 : .

> : ;
£ : i

: 0 0

-.^-^

: a

. a

»-•

:'=' :"« : :

"T3 ;T3

•"O

State of Health

"Si

: c -s rs • 0 • :

i 55

:S-S

X M : :

: he : be : : . M : 60

: bcS

«
.a

Sag B a

Supposed Cause

a .2 c i a a a -2 -2

c—ee.Su H.2B.= a .2*asjs

ig.5-fia--=-.ri.ra^----t.-S-2a||

§23i.s § :5§=§ £ila§a =

Apparent Form

.3 .2 .2 ~ .2

a _<_o oooaca a ^t- _E- 3

g B"£-a •B-^-C'Crsg « r5-r.a aSS -3
a g .3 a .3 aj a g B 5, g g = a = g

i 'q .i: c .t a a a a i S a .h a .- a

a B-^-e-e a aaas aa-^a-^a

m m a a «««- mo

weeks
month
month
nknow

do
ycani
nknow

do
month
year
month
year
month
nknow

do
day.f
mouth
nknow

do
5 years

Duration before Ad-
miMion

••««e3 M3 M — tc — eca -te^s -«

3 00 3

w e u a f - »

County from which

Committed

U.-s-o-a-s-r-cl-i.vTru.-r-ra-r r su."^-^ > S
a eicc-aac=av.a ^a

at j:»st = Set=Dzaa ct 0

Oi X (z: X K ixj t/i ■< X «. X X cj X

3 1

«|^^-a .1= >.„ ?- a?.-
-aur8>— ax_a ^.B'. a>,sa— acaa^

Nativity

ai cos-r- = cg i'''--a.J:£:i'a7'i:c«'j;

a a

» EE

Civil Condition

= _£_c_c_r_:_:_:^_£^_=_=_c_=^_2 =.£— c — — — ^

= .£ a .S

a X 3 X

Sex

oai-rrtccccesoasoccooasoos

a li: a

Age

w-st^t^Sf— «f^ e>fl •>+o>««rfS r-o«»-* t-oo

e«:£«:C..'^:C«««50'i5Ct£«C«S:£-i«COOtS-itS»

Date of Admission...

« x' oT «^* ^'' ='' =^' "^^ ~' '^ * =^* r if i? ?' ?' t-' '^ '^' = = -" —' e^"

Number

2 ~ = — !■> ^T -r ..- -i 1- X r; 0 — ;■> r-: ■-■ ..- cc r^ a: c: 0 — c^

— 5C v:

—

-.c ^ := 5C ;C

-.c -.= -^ -^

;c >= cc -.£

t£

■■£

!C tc ao

ooo ooooocg, ceoeoseo

« .2 « .5

''a & a

■I a m s

'•St "S £

g -2 fi

0000-3:0

•w o -s e o o •«
a S « o -9 -e 3

•? s —

"5 r c -5 : o :

£ > "D E -= -O T5

OOOOOOOOT)

c-r-BtS'o-c-o'o «

3 0?- -^

•fla eOei^a * a

j= a

■5 ? 0 o

.£3§ ^5.i;3^3^3

delirium
melancho
delirium
mania

«o o«o *_ = - ooo

g « g «=.= =. 5* a
1 a a c = .t ^ .i: a ^
1 a g er-~-rS 0

unknown
1 year
uuknown
do

-5

a K a a a

"■--» '• a - a '■ = "^ a
e-i — ri 3 c; s cr. a 'i a

Sacramento
San Joaquin
Tehama
do

•1

San Franciaco

Taln^-eras
San Franciaco

do
Mendocino
Cnlaveraji
Napa

Sacramento
Yuba

do
San Franciaco

do
Santa Clara

;ooo«8oococ;3!oococo*
\-a-ss S'3-3-o-n'rr"tt s -^ s -^ ts r: -v Q

£. a

£ a <£ a «2

t^ 0 »-.

M M M

«ooc>o«o«eQC-tt-o» 00

(S 0 e

«««o-i»««o««o=otccffi5C<eto

« ^-^"o «® 2"2 22 222222?^?J?JS

oooooooooooooocoocco

fc ?; S5 sr; S5 2; vr; >5 S'. >5 ^. ?>; sn ?^ ^ ?f: jg ?: ?^< ??: _

■~oco30 — e^Mti-":'ief~QC050^«^J
■■ re rt -^ -»• ~r "^ "*■ -t T -r -r --r ■'; •" "-^

« ■^ lO « t-

<o«ototocc^stsocs

TABLE B,

Shoxcing the Ninnher of Patievts u,ni/er Treatment Deeemhcr 1. 18G0, ami the
Nuniber and Sex of those Admitted from Dccemher 1, 18(30, to April 20, 18G1,
together vcith the Number J)ischarged, Died and U/ojted, during the same
period.

Number under treatment December 1, 18G0.

417

Male.

Female.

T..tul.

Admitted from Dec. 1, 1860, to April 20, 'Gl
Discharged, Died and Eloped, toA])ril 'JO, '01

121

Increase from Dec. 1, 18G0, to April 20, 18G1

3G1

I'^iuKt tri-atiiunt on April 20, 18G1

4o8

T A H L E C ,

Showing the Forms of Disease fnr which Three Hundred and Nineteen Patients

uxre Admitted.

If 5

-"" S

. o

ELEVKX DAr.H
I.X AI>R1L.

MAT,

JL-XB.

JCLT.

Aro.

BEPT.

OCT.

NOV.

FORM .4
OP DISEASE.

i
s.

2
a"

ft
P.

E.
e

£.
a"

3
4
1

Acute Mania

2
3

6
5
6

i
...

1
1

Mania

^Ic'lancholia.

3
2

3
3
2

6
3

1
1

8
2

83
30

Dementia ...

5
2

40
G

Mononnmia.

Periodical ...

Idiocv

...

Delirium

...

29
118

Unknown . . .

118

Totals ..

121

319

TABLE D

Showimj the yitmbcrnnil S'^x of Patients Admitted, Discharged, Died and
Elopid, icifh tlw XiimLr under Trratmmt at tJte end of each month, from
April 20, I8tjl, to Xovemher 30, 1801, inclusive.

DECREASE AND INCREASE.

ADMITTED.

DISCHARGED

niKD.

ELOPED.

M
o

■i

MONTH.

:
:

E.
S*
:
:

April

8
21
10
82
27
19
20
IG

" io

10
7

1
2
5

18
27
20
12
13
12
15
32

4
8
5
4
5
4
5
4

2
2
2
6
6
5
2

7
16

2
"21

437
430

Mav

i
" i

.IllllO

414

July

1!)
3

433
436

August

Scpti'inlKT

434

< >ftol>t'r

437

XoVOIuhlT

416

Totals

159

149

Oecreaso from .\pril 20 to Xovcmber 30. iiiolusive
hicroaso i'mm DoooiiiIkt 1. ISC*!), to April 20. 1861
l>ocreaso for tlie yojir ciniini^ Novoml^'r 30, 1861..

TABLE E,

Shoicituj the Number of Sinyh, Murried, Wiilmcs, am? Wiiloicerg, in TJiree
Hundred and Nineteen Patients.

Single

Married....

Widows ...
Widowers,
Unknown ,

Civil Condition.

Totals

Male.

01
25

109

255

Female.

Total.

59
1

177

319

TABLE F,

Shoicing the Duration of Dis»'o*e at the Time of Admission, in Three Hundred

and Nineteen Patients.

Duration.

Not exceo<lin«; three months

Between three and six months...
Between six and twelve months,

Between one and two 3ears

Between two and three years

Between tliree and four years

Between four and five years

Between five and ten years

Between ten and twenty years...
Unknown ,

Totals

Male.

1
2

102
255

Female.

G
♦>

4
2

19
04

Total.

79
18
10
14
7
1

181

319

T A B L E a,

Shoiclwj the Supposed Causes of Lis>uiifi/ ui Time Hundred and Nineteen

Patients.

Cuaan.

Masturlmtion

Loss of ( 'liildmi

I >issi|»ati(tn

Jtc'lii^ion

Doiiu'stit* TrouMi's

Ilri'iMlitary

-Ni'ural^'ia

Epilepsy

]V)verty

l>i'<0UH0 of tlic Hrain

IV'cuiiiary TroultU's

Sjiiritualisin

(Irii-r

destitution

Ill Health

Excess of Business

8upprcHse(l Menstruution

Minfortune

Fright

Desertion

Gestation

Seduction

ChihlMrlii

Teethini;

Injury to llea<l

I'arafysis

.Mental Anxiety

Exci tenien t

Business Troubles

Politics

Loss of" Property

Unknown

Male.

Totals

4
2

1
1
1
1
2

131
255

Female.

Total.

30
1

13
4
1
5
1
1
2
2
1
1
1
1
3
1
4
2
1
1
1
1
2
155

319

TABLE H,

Showing the Different Cnuntiis in California from uhirh Three Hundred
and Ninrtien Patirnta were Admitted.

Countj'.

Male.

Female.

Total.

Sn n K'l'jiiwisco

(')

i;]

1
•}

4
l:{

22
G

7
G

110

SsK'l'JlIIH'Il t ( »

Pliicer

TuoluiiuK'

Sun J <);i<|iiiii

liOS A 11 ""I'll'S

SioiTii

•>

^larijioMi

S<>I1(»I11!1

5
(>

^C'V!l(.lu

Suntii (Main

Trinity

i<;
1

Cuhivoras

l:{

2
Tl

1
•>

1
-}

2
1

1
1
1
'}

Yuba

C<»liisa

AlaiiK'ila

•>

Kl Dorado

1 I 11 111 1 HI 1 tit

Solano

X;l|»M

V
1 olo

MiM-ced

•>

1
•>

SisUivoii

Shasta

Hiltte-

Santa Cruz

Ania<lor

Snttor

Marin

Ti'liaina

Mc'iulofino

San Luis Obispo

Santa Barbara j

Contra Costa

•>

Oroi'on (State of)

Totals

255

319

T A B L E I,

Slioiciivj the Xatu'iti/ of Three Ifimdrcfl and Xiueteen Patients.

UNITED STATES.

Nativity.

.Male.

Feimile.

Total.

Maine

•*

24
K
5

12
1

4
2

Vermont

*>I ;issjiehusett><

1 imeetieut

• ir;^ia

\v York

8
1

1
2

M issou ri

9
6

Ohio

• ilitornia

u ncsseo

\v J cr»e V

Washington, IK C

1
1

1
1
1

3
1

1 c)\va

North Carolina

Kentiick\'

Ahihania

Indiana

^f urvluml

Virginia

Te.xas

Illinois

Totals

1U2

FOREKiN COUNTRIES.

Nativity.

Male.

Female.

Total.

Australia

New Brunswick

Ireland

5
10
25

5
10

Scotland

En "'land

4
4
2

German V

Mexico

France

7
15

58
Table I — Continued.

Nativitj-,

Male.

Denniaik

Switzerland

Nova Scotia

China

Bavaria

Prusnia

Chile

Austria

Italy

Canada

Russia

Sweden

Africa

New South Wales

Persia

Unknown

Totals

1
42

Female.

Total.

4
4
2

5
2

1
'>

3
1
1
3

217

RECAPITULATION.

Nativity,

Male.

Female.

Total.

United States

lOU

1(12

Forci'ifn Countries

217

Totals

255

319

TABLE J,

ShoiciiKj the Agf% of Three Jlmuhaf and Kincteen Patients at the Time of

thtir Admission.

Ages.

Under 10 years

Between 10 and 1.')
Between 15 and '20.
Bftween 2U and -5.
lU'twcen 25 anil :!ii.
lirtween JJO and .'J5.
Bi'lwi-en :{5 and 40.
lift ween 40 and 45.
Bctwi'iMi 45 and 5(t.
lU'tween 50 and •itj
Between 00 and 70
Unknown

Totals.

Male.

5
18
53
37
42
22
13
14

4.S

254

Female.

7
4
4

Total.

56
49
20
17
14
2
57

}J19

T A B L E K,

Showing the Ayei at irhi<h Ins.nufij frst appeared in Three JIundred and-

Nineteen Patients.

Agci.

Male.

Female.

Total.

X'nfler 10 years

Between 15 and 20

139

7
2

1
26

Between 20 and 25

Between 25 and 30

Between 30 and 35

Between 35 and 41)

Between 40 and 45

Between 45 antl 50

Between 50 and 00

Unknown

165

Totals

255

319

T A B L E F I R S T,

Sh'ivlnq the Sf'trdnrn Airount nf Arttrlest consumed in the Shite Lisnne Axi/hnn,
un<l Cost of samr, inclmlimj Ftol Account ami Pui/ KoU. from April 20
to December 1, 1861.

ARTICLES.

>
2_

2
^

is
B

c-
<s

B
S

Flour

117 2^1

220 84

66 78

41 50

10 42

16 '.\:>

40 8U
21 00
13 9a

:M3 36

451 04

203 94

90 75

42 49

90 57

131 01

42 50

32 20

345 S.t'

280 83

175 31

78 61

42 32

75 03

12S 38

22 24

24 74

7 88

381 12

255 46

175 67

101 47

33 73

86 00

150 02

25 64

22 84

25 14

359 76

301 o;t

187 09

79 55

35 73

73 05

135 39

27 62

25 85

26 50

359 55,

295 19

194 72

68 53

33 73
75 89

132 97

25 28

30 98

26 10
5 60

19 39
71 98
1 65
11 12
16 64

11 72
13 75

31 79

43 11
10 37

34 00
8 76

19 83

12 00
34 25
37 29

8 37

44 05
89 37
63 99
16 00
83 17

149 75
36 43
19 26
52 87
16 68

377 49

315 15

211 46

80 97

37 29

91 20

150 22

19 02

31 34

31 30

46 67

346 77

324 01

212 19

85 18

38 9 4

75 70

147 38

22 92

29 13

33 85

31 76

$2631 17

Meat

2443 56

Putatoes

1427 76

Butter

626 56

Tea

274 65

Coffuc „

683 79

Suirar

1016 29

P..rk

206 72

]Iun) and Uaoon

211 07

149 77

Iteans

6 00

7 32
16 30
69 45
12 68

97 35

Peas

29 99
63 45
32 71

24 70
78 96
32 62
173 21
26 44
15 03
65 93
34 04
54 67

9 24
19 69
13 81
52 30
15 25
86 60
57 76

2 00

77 94

124 62

93 88

29 00

120 62

21 73
77 38
11 75
99 04
14 84
13 35
29 85

33 28
58 08

7 74

4 71

24 53

36 44

11 01

34 38
75 25

3 25

159 12

44 62

128 76

26 20

104 80

7 50

112 11

Kioe

22 87

77 11
4 00
6 97

16 98

16 16

23 25

29 99
39 43

8 93
34 90
10 51

17 48
2 50

13 50

54 08

21 28

278 28

825 85

226 45

24 00

19 85
46 00
43 76

18 01
61 50

20 15
6 00

85 22

30 00
87 68

2 50
83 73
96 33

67 88

11 20

7 74

10 18

11 06
17 67
36 12
42 76

9 91
29 90

12 13
26 90

6 60
24 31
11 61

7 04
6 67

312 91

140 79

16 00

93 70

529 08

I>ried Apples

Fruit

106 1.1
298 08

4 75

9 19

11 00

23 38
10 14
40 98

112 11

Eitij?

87 37

Fi^ih

192 43

SvruD

165 22

Soap

13 90

4 60

6 75

11 05

33 97

47 80

13 50

2 00

19 16

108 73
12 71
31 60
66 35
54 94

1S9 16
57 37
88 25
57 10

115 18

35 37

11 90
6 00
8 27

103 31
18 62
53 21
18 98
34 51
53 77
105 50
102 20

12 13
152 53

335 11

Salt

76 09

Oil

137 99

Candles

108 21

Small (iruccries

404 02

Tobaeco

78 c.y

Li(iuor8

2 00
18 47
27 27
13 48
86 2J
61 50

27 39
33 91

279 89

l)ru;js

338 69

Hardware

158 66

Dry Goods

822 47

Clothing

1646 39

Boots and Shoes

925 82

Hats and Caps

Beds and Bedding

180 43
717 24

237 16

26 00

20 00

27 37

50 35
22 41

90 00
6 73

10 21

162 28

67 89

91 31
12 00

114 59
74 61

176 53

25 98

113 03

Milk

29 25

45 00
30 05

278 62

18 96

19 00

67 12

167 69

Tinware

16 21

105 88
30 00

158 27
61 00
50 91

61 75
30 00

181 97
58 00
61 60

100 99

59 22
58 49

936 26

60 75
67 61

107 36

73 91

30 00

178 40

40 32
30 00
239 28
1 18 75
1 66 57
1 93 49

588 58

Dairy

30 00
17 25
22 60
IS 49

306 38

1890 42

Garden

235 60

40 00
lU 15

503 50

Miscellaneous

18 93!ll9 81

725 67

Table First — Continued.
Tini Roll from April 20, 18G1, to December 1, 1861.

Months.

Amount.

Anril

$490 60
1,411 13
1,563 70
1,766 61
1,729 96
1,716 61
1 798 18

-t

iiil»cr

U. ..l„r

Kovcmber

1 718 71

Total

$12,195 50

KKCAI'ITlLATlnN.

tSU'Jiruiij the t'ij*t uj Artirti.t nmsumril in the Stute Imnnc As)/7um, inrhiding
Furl Account ami Pot/ Roll, from April 20 to Deccmhtr 1, 1801.

Months.

April

May

Juno

July

Au)rui<t ,

}'o|>tonit»cr~

Ootobcr

Kurcmbcr-

Total

Amount.

$1,512

4.527

4,286

5.578

4,521

4.266

5.626

4,717

$35,036 28

to
oo

o
C

•2

=§^

§■

occcccoo o

cC'nooo>.-5o o

Total

ir,

: o

: : © © e o

i-i

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RULES AND REGULATIONS

OF THE

IXSAXK ASYT.X'M OF CALIFORNIA.

RESIDENT PHYSICIAN.

The Resident riiysician, who shnll also ho the Su])eriiitoiKleiit, shall be
the chief executive otiicer of the Asyhiiu ; he shall have the general
superintendence of the huildings, grounds, and property, subject to the
laws and regulations of the Trustees ; he shall have the sole control and
inanagenu'nt of the jtatients ; he shall ascertain their condition, daily
jiresirihe their tiHatnuiit. and adoj>t such sanitary measures as he may
think hest ; he shall ait]>oint. with the approval uf the Trustees, so many
attendants and assistants as he may think proper and necessary for the
econ«)mical and elhcient performance of the business of the Asylum, jire-
scribe their several duties and places; he shall, also, from time to time,
give such orders ami instructions as he may judge best calculated to
insure good conduct, fidelity, and economy, in every department of labor
and expense ; aiul he is authorized and enjoined to maintain salutary
disci|»line among all who are emydoyed by the Institution, and uniform
obedience to all the rules and regulations of the Asylum. — [_St(ite Laic of
1858.

ASSISTANT I'lIYSIC'IAN.

1. "The Assistant Physician shall perform" the '"duties, and be subject
to the responsibility of the Superintendent, in his sickness or ab.sence ;"
he "may call to his aid, for the time being, such medical assistance
as he may deem necessary," " and he shall perform such other duties as
may be directed by the Superintendent and prescribed by the By-Laws." —
\^Statc Laic 0/1858.

2. lie shall prepare and superintend the administration of medicines,
visit the wards frequent I3-. and carefully note the condition and progress
of individual cases; see that the directions of the Superintendent are
faithfully executed, and promptly report any case of neglect or abuso
that >VL\ixy come under his observation, or of which he may be informed.

3. He shall assist in dcvisinnr employment and recreation for the
patients, and endeavor in every way to promote their comfort and
recovery ; keep such records of cases as the Superintendent may direct
assist in preparing statistics, and conducting correspondence, and he
shall perform such other duties of his office as properly beloncr thereto

GENERAL RULES.

1. Persons employed in the ser\'ice of the Asylum will learn that char-
acter, proper depurtmeiit. and faithfulness to dutv, will alone keep them
in the situations in wliieh they are j.laced ; and they should consider
well, before entering u|)on service, whether they are prepared to devote
all their time, talents, ancl etforts, in the discharge of the duties assigned
to them. The Institution will deal in strict good faith with its
employ<^s. and it will expect, in return, prompt, faithful, and self-deny-
ing sen'ice.

2. No one can justly take offence when respectfully informed by the
Superintendent that his or her temperament is bettor adapted to some
other employment ; and those receiving such information should regard
it as kimlly given, that they may have opportunity to avoid the
un])Ieasantness of being <lischarged.

:i Those empIove<l at the Asylum will be expected to liold themselves
in readiness for duty when directed by its otiicers ; and the neglect of
any labor, or duty. 911 the ground that laboring hours are over, or to
heHitatc, after ]»roper direction, on such pretexts, will be regarded as
evidence against the fitness of the employe for the place he or she may
hold.

4. It must be remembered by all the employes, that their duties are
peculiar and confidential, ami tliat there is an obvitMis impropriety in
disclosing the names, peculiarities, or acts of the inmates. It should
never be forgotten that the most cruel wounds may, by imprudent dis-
closures, be inflicted on those whose conduct and language, during their
misfortune. shouM be covered with the veil of deepest secrecy. Conver-
sations, in relation to the Asylum and its inmates, sought by the idle
and mischievous, should be stu<liously avoided.

5. All persons em])loyed in the Asylum are required to cultivate a calm
and deliberate methoti (»f performing their daily duties — carelessness and
precipitation being never more out of place than in an Insane Asylum.
Loud talking, hurrying uj) and down stairs, rude forms of address to one
another, and unsightly styles of dress, are Avholly misplaced, where
everything should be strictly decorous and orderly.

r».*In tlie management of patients, unvarying kindness must be sti-ietly
observed by all. "When spoken to. mild. j)leasant, and persuasive lan-
guage must never give place to authoritative expressions of any kind.
All threats, taunts, or other kinds of abuse in language, are expressly
forbidden. A blow. kick, or any other kind of physical abuse, inflicted
on a patient, will be immediately followed by the dismissal of the person
so oftV'iiding.

7. Employes having charge of patients outside of the wards, whether
for labor or exercise, will be held responsible for their safe return,
unless, by direction of an officer, they shall be transferred to the charge
of some other person; and when patients employed out of doors become

cxoitccl. they must be immediately returned to the wards whence they
were taken, and the fact rej>orted at the otfice.

8. It will be expected of all employed in or about the Asylum to
check, as far as possible, all conversations or allusions, on the part of
patients, to subjects of an obscene or improjier nature, and remove, when
in their power, false impressions on their minds, respectin<^ their eontine-
meiit or management; and any person who shall discover a patient
devising plans for escape, suici«le. or violence to others, is enjoined to
report it to an ofticer without delay.

9. The place of diit}' of those having charge of patients is in tlie wards,
or in the yards, or in the garden with the jiatients. During the day.
and while the ])atients are out of their sleeping a])artments. they have
no business in their rooms, except for a nntmentai'V errand to adjust
their own clothing; and any employ^ who shall enter his or her room,
and engage in reading, writing, entertaining visitors, or be otherwise ott"
duty, will be acting in violation of rule.

10. The employes are not jteruiitted to correspond with the friends of
])atients; and all letters or packages to, or from, patients, must pass
through the hands of the Suj>erintendent or Assistant Physieian. All
making of dres.ses, working of embroidery, or any mechanism, for the
use of em])loyes, is prohibited, unless l»y the special permission of the
Superintendent ; and no employ^ «»f the Institution shall ever make any
bargain with any ]>atient. or his or her friend, or accept of any fee,
reward or gratuity from any patient, or his or her friends, without the
Superintendent's consent.

11. Employes will not be permitted to leave the Asylum without the
consent of the Superintendent or Assistant Physician, and when allowed
to leave, they will be expected to return by nine o'clock, v. m. — unless
expressly ]!ermitte<l to remain out lonirrr. Before leaving they must
hang up their keys in the j)lace. in the ottice. prf»vided for tiiat purpose.
Non-residints will not be j)ermilte«l to remain in the Institution at night
w ilhout the knowledge and consent of the Superintendent or Assistant
Physician.

12. No ])erson will be employed in or about the Asylum who is intern-
])erate in habits, or who engages in gambling or any other immoral or
disreputable practice ; and as the patients are not allowed the use of
toltacco. within the Asylum, the employes are exjiected not to use it, in
any form, in their presence.

13. While employes are not prohibited from orrasifjimf/i/ visiting each
other in their wards, it shoubl never become a habit, and the indulgenct^
is only allowed in view of the spirit of emulation, whieh may thus be
encoaniged by sometimes inspecting each other's sphere of duty. When
it is discovered that the jiermission is abu.sed. or that visits are being
spent in idle conversation, it will be held as a violation of rule.

14. The two departments of the Institution — male and female — must
always be separate to its employes. an«l no person, whose post of duty is
exclusively in the one, shall ever be permitted to enter the other, unless
some express or proper occasion shall demand it ; and any one who shall
discover, and not diselose. or who shall in any way encourage an
acquaintance between two patients, of opposite sex. will be held highly
culpable for such rai.sdemeanor, and will be forthwith dismissed from
service.

15. Xo employe will be permitted to appropriate to his or her use any
article belonging to the Asylum, or purchased for the use of the patients,
however small or comparatively valueless it mav be. From the salary

of the person so offondinc:. the eost of the article will be dediicted, and
he or she dismissed Ironi iserviee.

STEWAIID.

1. The Steward shall liave a jjeneral oversight of the business of the
farm, garden, grounds, fences and bniMiiiirs ; he shall assist in maintain-
ing the police regulations of the Asylum, observe the deportment of those
employed in subordinate i><.sitions. see that they do their duty, and
report to the Superintendent any instance of neglect or misconduct that
lie may observe, or of which he may l)e informed; he shall sec to the
opening and closing of the house ; that the employes rise an<l commence
their duties at the ringing of the bell, and return at proper season at
night ; that the bell is rung ])romptly at such hours as may be desig-
nated, from time to time, by tlio Superintendent. He shall have a gen-
eml care of the male patients, see that they are kindh' treated, that their
clothes are taken care of. that their food is projierly cooked, served and
distributed, that the rootns. ]>assages ami other ajnirtments are kept clean
and proi)«'rly warme<l and ventilate<l. and that every thing pertaining to
the Asylum ]»ro)»erty is kept in order and good repair.

2. The Stcwanl shall n'ceive and store all provisions, fuel, clothing,
etc., pi-ovided by contracts, and. also, all sup]dies purchased under the
diivction of the Sujicrintendent, and he will be held responsible for the
safe keeping and economical distribution of the same.

3. Ife shall k»'ep just, accurate and methodical accounts of all articles
receive<l. and all arti< les jmrcliased by him, together with all distribu-
ti«)nH of supplies to the sevenil departments of the Institution — each and
every dav's accounts exhibiting, in detail, the Tunnber. quantity, weight
or measurement, as the nature of the case may be, of each and every
article received, and from whom, and distributed, and to whom.

4. On the receipt ot" supplies, whether obtained under contract, or ])ur-
( based bv order of the Su])erintendent. the Steward shall require a bill
or invijice of the same, and if. upon a careful examination of the quality,
quantity, weight or measurenn'nt of the article or articles, they shall be
found to corresp«)nd with the item or items of the l>ill, he shall enter the
aiTirregate amount, with the date and number of the invoice, in a book
provided f(»r that purpose, after which he shall indorse the bill correct,
and tile it, together with an abstract of his daily disbursements, in the
ottice of the .^Superintendent.

ri. The Steward will be expected to devote his whole time to the inter-
ests of the Institution, assist, in everyway in his power, to preserve
order in the house, and taithtulness am<"»ng the emi)loy6s. and see that all
the rules and regulations of the Asylum are fully observed.

MATRON.

1. The Matron shall have charge of the female department of the
A-vlum. It will be expected of her to be Avith the female patients, in
all* the wards, as much as possible; see that they arc kindly treated ;
that their food is properly eooked. served and distributed; that their
apartments are kei>t clean and in good order, and pro])ei-ly warmed and
ventilated; that the female employes attend to their duties in all
respects, and rei>ort to the Su])crintcndent any departure, on their part,
from the rules and reirnlations of the Institution.

2. The bedding, table linen, napkins, and drapery, furniture, carpets,

table covers, and all similar property of the female department, as well
as the clotliini^ of the female patients, nhall he under her general care
and supervision. iShe shall direct the em])lovment and amusements
of all the inmates of the female wards; in siiort, it will be exjH'cted of
her to look I'requently and careliilly into every interest connected with
her department ; and thus, hy dcvotini; her whole time to the Institution,
aid, in every way in her power, in securint^ the comfort and recovery of
the patients, and the general welfare of the Asylum.

CLEKK.

1. It shall be the duly of the (Merk to keep a correct account, in a book
provided J'or that j)ur))ose. of all su|)[»lies reeeived by the Steward under
contract, oi- j)ur(hased by him under tiireetion of the SujH'i-intendent. lie
shall keej) a eareful aecount (d'all artieles used and eonsumed in the Asy-
lum daily, and at the end of evei-y month he shall make an exhibit of the
receij)ts. expenditures and disbursements — arrani;in<^ the dilferent arti-
cles u.sed under aj)])ropriate headings, that the actual cost and consumjv
tion ol" each article, for eaeh day. shall be correcti}" shown. He shall
keep the Asylum Account, the Physieians' I)wellin<^ Account, the (iarden
Acenunl. the Ofliee Account, the Kami Aecount, and the Imju-ovement
ami Repairs Aceount,eaeh sejiarate ami <listinet Irom the other, and make
out sej)arate an<l distinct nionlhly exhibits of each, lie shall also make
out, in connection with the exhihits of the above, a table, showing the
coinl»ined total cost per day, and the combined total cost ])er month, with
an average cost per day ; and the average cost of each patient j>er day,
and the average cost of each patient ]>er month, together with any other
items that may be of interest and utility to the Asylum, lie shall make
out a table showing what bills are to be paid on the last month's expend-
itures, and also a table exhibiting the Superintendent's estinmte for the
exi>en(litures of the ensuing month.

2. It shall be the duty of the Clei-k to keep a cori-ect aecount of the
})atients received — entei'ing. at the time (»f their admission, in a book ])ro-
vided for the purpose, a condensed copy ot' each commitment, with the
facts set forth in the certiticate of the examining physicians accomj)any-
ing the same. He shall also note, in the same connection, the condition
of the j)atient, as found by the Su))ei*intendent or Assistant Physician, at
the time of admission.

SUPERVISORS.

1. The Supervisors shall nave a general oversight of the duties of the
Attendants; they shall s))enil their time chietl}' in the wards, and
they shall see that the rules jirescribing the duties of the Attendants,
towards the patients, are faithfully ob.served, that the ])atients are well
treated, and in all respects properly cared for ; they shall, in an especial
manner, have the oversight of the sick, and see that watchers are detailed
for such as require it.

2. They shall have the care of the clothing of the patients, and the
bedding, table linen, towels, etc.. of their resjx'ctive divisions. On the
arrival of a ))atient at the Institution, whatever clothing is brought shall
be committed immediately to the Supervisor of the division to wliich the
patient is sent. A clothing account shall be 0])ened for each patient, in a
book provided for the purpose, in which .shall be entered every article
brought to the Institution, including what may be on the patient's per.son,

and also whatever may afterwards be received or purchased for the pa-
tient's use.

:]. Money, jewelry, or other valuables, shall be brought to the office for
safe keeping — exeejjt where their retention by the patient is expressly
permitted by the Sui)erintendent or Assistant Physician. On the dis-
charge, or removal, of a patient, the clothing in his or her possession
shall bo carefully compared with the clothing account of said patient,
that any losses may be discovered or accounted for.

4. The cbUhing belonging to the patients, iu each division, shall be
deposited in a room set aj.art for the purpose, the key of which shall be
in custody of the Sujjervisor. and at son\e i)articular hour of the day the
Supervisors hhall be in attendance in their respective clothing rooms, to
exchange or supply such clothing as the wants of patients may require,
and Attendants are enjoined not to call on the Supervisors, for that pur-
pose, at any other times, if avoidable. Clothing required for daily use
t)hall be kept in the ward closets.

0. The Supervisors shall have charge of the sewing rooms, and when
any patient is in want of new clothing the fact shall be reported to the
Supervisors, who will receive instructions from the Superintendent in re-
gard to its supply. No clothing shall l>e j)urchased out of the Asylum, if
it can be manut'acturetl in the sewing rooms.

G. The Su|»ervihoi-s shall be careful that the clothing of patients is
adapteil to the season, and especially to see that patients are not suffered
to go out. either for exercise or labor, without a careful inspection of
what is worn.

7. All articles belonging to ])atients shall be legibly marked, and the
Supervisors are ex]»ected to see that the clothing of each patient is devo-
ted t(» his or her use, and t(» the use of no other.

^t. The Supervisors shall see that each patient is supplied with a full
change of under clotbing once a week, and that their outer clothing and
all bed clothing i.-* changed as often as their strict cleanliness shall re-
quire.

ATTK.NDAXTS.

1. Those employed in the wards in the care of the patients, as their
attendants, should* remember that their first dut}' is to treat them with
unvarving kindne.ss. respect ami attention. Feelings of mutual good
will can. with few exce|)tions. be succes.sfully cultivated between Attend-
ants and tho.se under their immediate care, and doubts may be Justly
entertained of an Attendant's titness when these are wanting.

L'. The tirst effort on the part of an Attendant, on receiving a patient,
should be to win his or her confidence, however insensible the patient
may be to kindly advances. Patients generally enter the wards with the
thorough conviction that evil is intended them, and the first show of
harshness or force, however slight, will confirm that impression, while
kind assurances and manifestations of sympathy quickly disarm them of
their false impi-e.ssions. and the first great step in the way of cure is
begun. The Attendant should regard the patient as an honored guest,
who comes, tarries for a short time, and goes on his way, to give to the
world a good or evil rcjiorl of his entertainer.

8. When a patient manifests oj^position to the will of the Attendant,
the point should never give ri.se to protracted discussion, as opposition
may be onlv increased thereby. Patients will usually yield when mildly
and kiiully informed that they are only asked to comply with a rule
binding on all. and that the request is not merely arbitrary. Whenever

continued rosif<tance is anticipated, it is better to yield the point to tlic
patient, if tlie request made is one of no ijrcat importance, and report the
case to the Superintendent or Assistant Physician.

4. The mutfs. sleeves, wristbands, or other means of confinement, are
never to be used unless by order of tiie SujuM-intendent or Assistant
Phvsician; and the Attendant shall never, under any circumstances, uso
greater force than is sutlicient to secure the patient, himself, or others,
from the efforts of his or her violence, and after the ])atient is secured in
liis or her room, the Suj^erintendent or Assistant Physician shall be in-
formed of what has occurred.

5. Duriuijj the eveninfr, after patients have retired, one Attendant or
Assistant shall always be present in each ward, to discover any disturb-
ance, and administer to any necessity that may arise, and no Attendant
shall ever leave the ward in which he or she is eni;ai;ed. without inform-
in"; an Assistant of his or lier intended absence. l>urin<; the day At-
tendants are expected to make the patients, and the ])atients' clothing,
and slee]tin<; ai>artments. the objects of their most careful attention.

0. On rising in the morning. Attendants sliall see that the patients are
properly dressed, washed, hair combed, and otherwise in good condition
to appear at breakfast. The beds shall bo made, rooms, halls, dining
rooms, water closets and stairways put in good order by nine o'clock,
from A])ril to September inclusively, and by ten o'clock from October to
!March inclusively. All soiled clothing, liedding, etc., shall bo taken
from the building at the earliest ]»ossibIe hour, before the air of tho
warfls become contaminated tlu'reby. A straw bed once soiled or wet,
shall be immediately emj>tied and the tick sent to the laundry. The
wards and stairways shall be washed an<l swept as often as necessary to
secure perfect cleanliness. Attendants will be assisted by the patients
in the discharge of these duties, but are themselves alone responsible for
their prompt and faithful performance; when Attendants or Assistants
are engaged with their ])atients in any kind of outside lal>or, they shall
keep a correct account of the time of the ])atient emiiloyed, ami i-ej»ort
the same at the otfice at the close of every week.

7. Attendants in this Institution are considered the companions, not
" kee]K>rs." of the ]»atients. and. regarding themselves as sueh. they shall
strive to keep every om*. whose ])hysiial liealth will a<lmit of it. engaged
in some kind of amusement or emjtioyment in labor, as designatecl, from
time to time, by the Sujterintendent. or Assistant Physician. The culti-
vation of fruits and flowers, the use of the library, reading room, gyni-
nasium, bowling alleys, and other means for mental, moral and physical
training, should l>e in every way encouraged.

8. Tiie Attendants should see that the patients indulge in no perni-
cious ]n*actices; those given to solitary- habits must receive sjK'cial atten-
tion, and. as far as possible, induced to j»arti(i))ate in the ])ursuits and
amusements of others. Ind(denl patients should be led al»out the wards
and yards, and induced to join in exercises; those, on the contrary, who
are weak and restless, should be induced to take repose.

9. Attendants are forbidden to make walking out with their patients
a pretext for doing errands, or making calls for themselves, and they
must not go to town with the patients, when the state of the roads and
fields allow exercises in other directions, and they must be especially
vigilant that patients, when out. do not obtain possession of any danger-
ous implements, matches, or other articles improper for them to have,
and strict search must be made for such immediately on their return to

U.C Asylum, an.l before tbey shall have time to secrete them in the

10. On the mornin- of We.lnesday and Saturday of every week each
pat.ent shall receive a topi.l l.uth. unless bv reason of Sess or otW
w..se. exceptions shall l>e made by the Superintendent, or Ass stant Phy-
sician; the male patients shall be shaven, and an inspection slnH be
made that their hair and nails be suitably trimmed, and\l e per'm ^!
flk ; it^ '' '•'*"^'^"^"- I" trimming the hair, no more should be
taken off than necessary to secure a better appearance of the put e t-
thepract.c-e of cM.tt.n;^. the hair of the insane dose to thrL-xd beL
positively for.Klden. unless, for son.e special reason, it slu 1 be so or e red
by the Sunenntendent. or Assistant Phvsieian oiuciea

11 (>n Mondays and Thursdays the Attendants shall collect all cloth-
in^r <Ies,;;„ed for he wa>h. and deliver the .same, with lists thereof to the
Supervisors, at the assortii... rooms, and on Wednesdays and Saturdays
they will ass.s the Overseers of the laundry to as.sort'the clothin<. and
pla.ethe articles ot each ward to themselves for the inspection of the
Supervisors, who will compare them with the washing lists and make
tlioir return thcre<»n.

ASSISTANTS.

1. The A.ssi.stants will be employed with the Attendants in the care of
the patientH, their rooms, clothing, etc.; they will be under the immedi-
ate direction and control of the Attendants; and they are expected to
ob8er^•e with care the rules i.re.seribed for the management of the pa-
' uts. and the government of the Asylum.

M KA LS.

1. The meals of the patients shall be sei-ved promptly at the followii
hours :

.Months.

I ►ecember

.lanuary 7

Fe brua ry 7

-Man h I 05

April I ()i

-May i C\

September i (]4

October j « > 2

November i (j ]

June G

July jo

August ! 0

A. M.
A. M.
A. M.
A. M.
A. M.
A. M.
A. M.
A. M.

A. M.

1
1
1

12 i
12.i
121

12:1

12.1
12 i
12
12
12

r. M.

p. M.
p. M.

0.]

p. M.

P. M.

P. >I.

2. The Attendants are required to see that their patients are properly
prepared lor their meals; that their faces are washed, hair combed, and

clothing adjusted, that each may present a cleanly and orderly appear-
ance.

3. At meals the Attendants shall always be present to carve, to distri-
bute the food, to see that each one has a ])r<jper supply, and that thej-
all take their meals in a proper manner. Each shall be supplied with
such liberal allowance as the nature of the case may require, but all
waste, gluttony, or improper habits at the table shall be mildly checked
bv the Attendants. They shall be allowed time to take their meals at
leisure ; habits of eating ditTer, and all (^the old, particularly.) should have
time to eat without hui-rv.

4. Food tliat has been handled, or rendered unfit for use. shall be sent
back in a receptacle ])rovided for the juirpose, but whatever is fit to
be servcfl in another form shall be carefully laid aside for future con-
sumjttion.

5. Some very jdain food slunild be kej)t in the dining room closets, for
the use of those whose meals may have been interrupted, or for old per-
sons, or for convalescent patients, who sometimes retpiire food oftener
than under onlinary circumstances.

(J. Care must be taken that no ])atient carries away from the table a
knife, fork, sjtoon, or any article of food, and, to be sure of this, the
knives, forks and spoons slwudd be counted alter each meal, and search
be made for any lost article.

WATrilM.\N.

1. The duties of the Watchman will commence at half-past seven
o'clock, r. M.. at which time he will visit the ofiice to receive instructions
for the night.

2. lie is expected while on duty to lie faithful and vigilant; to visit
everv ])art of the male dei»artnient. and the outer walls of the female
department, at least every hour during the night, jnaking as little noise
as possible, never conversing in a loud tone, and oj)cning and shutting
the doors as quietly as possible.

3. lie is cxi)ected to i)e kind, gentle and soothing in Ids manners to
the patients, and use ever}* means in his power to tranquilize those who
are excited, and to allay the fears and a])prehensions of the timid ; he
will |)ay ])articular attention to the sick, the suicidal, and those recentl}'
adniilted; will see that the j)alients are properly sujtplied with water,
when it is asked for, and will attend to all other reasonable wants; will
notice any unusual noise in the patients' rooms, endeavor to ascertain
the cause, and. if necessai'v. report the same to the Attendant; lie will
notice anything unusual occurring during the night, and enter the same
on a slate provided for the purpose, and he shall report any irregulari-
ties, neglect of duty, or violation of rules, that may come under his
notice.

4. It will be the duty of the "Watchman to look after the heating
apparatus during the night ; he must be very watchful against fire, and
in case of its occurrence, must rejjort immediately to the Superintendent
and officers, without giving general alarm ; he shall keep the hose and
fire ladders always in good order, and in readiness for use; he shall ring
the bell at the hour for rising in the morning, and he will be expected
to perform such other duties as may be required of him. At six o'clock,
A. M.. he Avill be relieved by the Porter, and his services will not be
demanded again till the time for duty in the evening.

WATCIIWOMAN.

1. Tlio "Watch woman will have oliiircro of the interior of the female
(IrpjirtriK-iit (luring the ni^ht, and in the management of the patients,
and the dincharge of other duties, will be governed by the rules and reg-
ultttionH laid down for the government of the Watchman.

rOKTKR.

1. Till' time of service of the Porter commences and ends in alterna-
tion with that of Night Watchman. Cleaning, heating, and lighting the
front rooms of the centre iiuilding belong to him ; he shall see that the
front windows ami doors are kept secure<l during the day, and that visi-
tors alxtut the jtremises do not transgress the rules of propriety- by talk-
ing with the patients at the windows.

2. He is expected to keep within the sound of the office bell, iinless
absent on duty; he shall attend to all messages, when required, and re-
ceive and con<luct visitors, observing toward all the utmost ])oliteness and
attention ; and he will be e.\pecte<l to perform such other duties as may
be required of him.

QARDENER.

1. The (iardener. with the aid of sucli patients as can l)e taken out
for that purpose, shall have the care of the orchard, garden, and grounds
around the Asylum and I'hysician's Ikjusc ; he shall have charge of the
cultivation of the vegetables, fruits, and flowers, and he will be held
resj)onsible for their safe keeping and delivery^ at the Asylum, as
directt'd. from time to time, by the Sui>erintendent or Steward.

1. He shall ke»'p a pass book, in which shall be entered by the Stew-
ard, the number, weight, or measurement of the products of the garden
an<l orchard delivered. fn»m time to time, to the Asylum and Physician's
house, together with an accurate account of the time emjylo^'ed by the
patients in his department of laljor. anil he shall report the same at the
oltice every Saturday evening.

3. As the fruits and fl(jwers are intended for the use of the patients,
the (iardener is enjoined not to permit visitors or employes to pluck or
otlierwise disturb "them without permission from the Superintendent or
Assistant Physician.

CARPENTER.

1. The Carpenter, who is also Engineer, shall have charge of the
work sho]). tools, etc., belonging to his dei)artment of labor; he shall,
with his assistants, who will be subject to his direction, attend to the
repairs, alterations, and improvements made under the direction of the
Superintendent or Steward; he shall also have charge of the engine
house, and tools connected therewith, and will be expected to run the
enirine as often as may be necessary to keep a full and ample supply of
water in the tank tor the dailv and nightly u.se of the Asylum.

2. He shall keep a book, in which shall be entered the amount of lum-
ber used and time employed by himself and assistants, together with the
time emploved bv the ])atient's. upon each item of labor in liis depart-
ment ; he shall also keep, in the same book, the amount of fuel consumed
and the running time of the engine in pumping Avater and in sawing wood
and lumber.

3. lie shall make a report to the clerk every Saturda^y night, showing
all the business and labor of his charge during the week.

OVERSEERS OF LAUNDRY.

1. The Overseers of the Laundry will have charge of the house and
furniture of the laundry; they will be held resixjnsiltle for the safe keej)-
ing of the clothing delivered to them until they shall be washed, ironed,
and retuiMied. in a suitable condition for immeiliate use, to the assorting
room, and placed in charge of the Supervisor.

2. They shall keej) the house and furniture in good order and see that
eveiything is safely locked up at night ; they shall observe the rules and
regulations of the Institution and see that they are observed by all who
are eini»loyed under them, and shall report any remissness or neglect of
duty to the Su]>erintendent or Steward.

F.VKMKU.

1. The Farmer, under the direction and control of the Steward, shall
have under his immediate charge the lands used for farming i)urposes,
the farming implements, the horses, cattle, hogs, chickens, and produce
of the I'arm. together with the hay, grain, straw, etc., purchased and
delivered at the Asylum.

2. lie will kee]» a book, in whieh, under the head of General Accounts,
he will charge the farm with tlie wages j»aid for labor, and the labor
performetl by the patients; the cost of farming implements; the amount
pai<l for bhuksmithing ; the grain, hay, bran, shorts, straw, etc.,
received; and all other articles or items ()f e.xpenditure for farming jiur-
poses. Vn(K'r the same head, he will credit tiie farm with all products
received; with the labor of himself and hands in making fences, gates,
putting up buildings, etc., together with all articles which may be sold.

3. He will also keep in the same book se])arate accounts under the
following heads: For the Asylum; For Hogs; For Cattle, etc. (Jn
account for the Asylum he will charge every article of j)roduce, grain,
hay, straw, etc., together with the j)ork, beef veal, chickens, etc.,
delivered from time to time to the Steward for the use of the Asylum
and the Physician's house; and credit the Asylum with every article,
of whatever nature or kind, purchased liy the Steward and jtlaced in his
keeping. On account lor hogs he will charge — amount ]»aid for sows,

{)igs, slioats, etc. ; amount j)aiti for grain fed per day ; am<junt paid for
)utchering; and amount paid for any expen.ses not included in the
above, lie will credit — the number and weight of hogs sold, and the
amount of ]>ork sujtplied. On account of cattle he will charge — amount
paid for cattle ])ureliased; amount paid for grain, hay. shorts, bran, etc.,
fed per day. and the amount of any otlier e.\))en<liture incurred for
cattle. He will credit — the quantity of milk and butter obtained daily,
and the number and weight of cattle fatted and killed, including the
hides and tallow.

4. As the Farmer will be held responsible for the safe keeping of all
grain, hay. straw, bran, shorts, cattle, hogs, horses, farming implements,
or anjthing else connected with the farm, the Steward will see that no
such article is left at the Asylum, unless received by himself in person,
or bj- the Farmer.

5. The Farmer Mill be careful to confer often with the Steward in
reference to all matters pertaining to his charge, give timely notice as to

all his wants, and he will be expected to be faithful and industrious in
the use of every means in his power to render the farm productive and
j)n>fitahle to the Asylum.

<;. lie shall nuike a report, embracing all the business transactions of
tlie farm, whenever required to do so by the Superintendent or Steward.

VISITORS.

1. Strangers and others will be permitted to visit the Institution on
any day. except Sunday, between the hours of 10 a. m. and 3 p. m.

l. No visitor shall bo a<liuittcd within the wards occupied by the pa-
tients without express permission from the Superintendent or Assistant
riiysician. And espocial care must be taken that no amount of visiting
is pt-rmittcd in the wards that mii^ht prove injurious to the patients.

:i Visitors are expressly forbidden to furnish any inmate of the As}'-
lum with tobacco in any form, or to deliver to or receive from a patient
any letti-r. jiarcel, or package, without the knowledge and aj)probation
of the Suporiiiten<lent, or Assistant Physician.

4. Those having charge of patients are particularly enjoined to abstain
• in mentioning to visitors the names of those in their charge, their

pi-culiarities. or any other circumstances, a knowledge of which might be
painful to persons connected with thenx.

f). Visitors are rt'siu'ctfully rt-ipiested not to disturb the flowers and
fruit in the Asylum garden and grounds.

LIHUAKV.

1. The Library of the male dej)artment shall be under the charge of
the Suporvi.sor. Every volume taken therefrom shall be charged to the
borrower, except for the use of the jiatients. when it shall be charged to
tiie Attendant into whose ward it is taken, who will be responsible for its
being used with (trdiiiary care and returned in pro]>cr time.

2. If a volume shall be lost or destroyed by any ])atient. the Attendant
having charge of the patii-nt will report the fact to the Supervisor, and, if
practicable, exhibit the fragments. If lost or destroyed by any other
person, it must be replaced.

3. Jso one will be permitted to take from the Librarj^ more than one
volume at a time, or to keep a volume more than two weeks, without per-
mission from the Superintendent or Assistant Physician, except Bibles,
Testaments and Prayer Books, placed in the hands of the patients for
daily rt'a<iing.

4." Tlie Supervisor will be responsible for books taken from the Library
and not charged.

5. The Library of the female department will be under the charge of
the Matron, who', in its management, will be governed by the above rules,
prescribing the duties and responsibilities of the Supervisor.

ANNUAL REPORT

rl^ 1 1 1^

HE ADJUTANT-GENERAL

FOR

THE YEA.Il 1861.

M. SCOTT, JB CLERK.

BENJ. P. AVERY STATE PRINTER.

^NNU^VL REI>ORT

General Headquarters, State of California, \
Aiijutant-CTonoral's Office, Sacramento, Dec. 8th, 18G1. )

To liiH Kxtellency,

John G. Downey,

Governor of California :

Sir : — Pursuant to the requirements of tlic laws of this State, and the
laws of Congress estahlishini; a uniform militia throu<:jhout the United
States, I have the honor to sulmiit the annual report of this department
for the year eighteen hun<lred and sixty-one.

It <;ives me unffi^^ned pleasure to he able to re])ort to your Excellency
a marked injprovoment. not only in the condition of our organizefl militia,
hut in its vi'ry nuitorial increase in numhers since my last annual report.
The earnest given in the ])assage of the Militia Law of this year, that the
necessities of the same were in some degree ap])reciated, has in a great
measure removed the discouragements which have hitherto beset the
members of our militia, and all those who have long been endeavoring
to perfect and su]»port an efticient militia system in our State, and I trust
wo shall have n(» longer to endure the ajjath}- and neglect of a large por-
tion of the citizens, nor the direct and pertinacious opposition of the
representatives of the people to our system.

The wisdom and foresight of the founders of our Government — those
who laid its corner stone and wrought out its glory — which recognized
the great importance of the militia as the material arm of our defence,
is now receiving a most flattering commentary in the occurrences of
events by which we are surroundeil; that the defence and even the liber-
ties of the country must depen<l, in time of danger, on the militia, and
that it is only by an efficient militia that we can at once enjoy the repose
of peace and be prepared to bid defiance to internal commotions and
foreign aggression. Hence, the organization of citizens into companies,
battalions and regiments, througliout our State, has fairly commenced.
This movement sliould be encouraged by every possible means. Men of
wealth and influence, and many of our best citizens, are daily joining the
ranks, and cheerfully submit to the necessary drill and discipline.

Every lover of his country, in this its greatest time of peril, is gratified
that public sentiment is demanding a more enlightened and patriotic
treatment of this great and imi)<)rtant subject than that which it has ever
received before. The resuscitation of the militia in our State is due to
the efforts of comparatively a few of her citizens, and the exigences of
the public weal and its future is tle})endcnt upon the energy and ability
of those who shall interest themselves in its welfare.

The true theory is, therefore, at this time, to communicate such di.s-
ciplint* and skill, and to give such close attention to the arming and
equipment of the force, as to leave nothing to be learned in war but that
which can oidy be acquired in the face of the ouemy. Therefore, each
oflScer should acquaint himself with his duty, and his whole duty, and
should accpiire a competent knowledge of the obligations and re<}uire-
ments of tlic j»osition in which he is placed, in order that bis commission
may not be dishonored by ignoranee, nor the service sutler from his in-
competency. This knowledge shouhi become the principal recpiisite for
elevati(»n to military rank.

I invoke from your Excellency a recommendation to tiie favorable
consideration of the Legislature, that this long neglected and most im-
portant arm of the Government should receive judicious care and fos-
tering attention, that its standard of requirements, for ottiiial i)lace and
prom<»tion, should continue to be raised, and the near future will behold
our system such as the Fathers of our Country designed it to be; such
as oui' ]iresent exigences re<iuire — the great bulwark of our liliertics —
our safeguard — our impenetralde shield — our glory in war — our pride in
peace.

To this end, 1 am persuaded that nothing will so much conduce as the
imp(»rtant i)art assigned the service in our governmental system, and
the incalculalde benefits thus far derived from it in the present unholy
war which is being waged against our national Government.

It may not be un]>rofitable even iioic, rmeri/nl a» tcr. (trr. in civil war,
which may (but God forbiil that it slujuhl,) be long procrastinated, to
turn our ears to the words of the immortal Washington, of tlie jiatriotic
John Adams, of Jetterson. the a]>ostle of liberty, of Madison, the framer of
the Constitution, of the wise Monroe, and the heroic and chivalrous Jack-
son, conveying to their countrymen the deep earnestness ^A' their con-
victions of the prime necessity, to our national welfare, of giving to the
militia of the country all })Ossible etticiency.

In his first annual address to Congress, Washington says : " A free
people ought not only to be amied, but disciplined; to which end, a uni-
lorm and well digested plan is requisite." In his second, he declares
that "the establishment of the militia is a subject abundantly urged by
its own im]>ortance." In his third, he says: "The militia is certainly
an objeet of primary importance, whether viewe<l in reference to the
national security, to the satisfaction of the community, or to the pi-eser-
vatiou of order." In his fifth, he says : •• I cannot recommend to your
notice, for the fulfilment of our duties to the rest of the world, without
again pressing upon you the necessity of placing ourselves in a condition
of complete defence, and of exacting from them the fulfilment of their
duties towards us."

The United States ought not to indulge the persuasion that, contrary
to the order of human events, they will forever keep at a distance those
painful appeals to arms, with which the history of every other nation
abounds. There is a rank due to the United States among nations which
will be withheld, if not absolutely lost, by the reputation of weakness.

If wc desire to avoid insult, we must be able to repel it. If we desire to
secure pence, one of the most powerful instruments of our risino- pros-
perity, it must be known that we are at all times ready for war. "^

The documents which will be presented to you will show the amount
and kind of arms, and military stores, now in our magazines and arsenals :
and yet, an addition even to these supplies cannot, with prudence, be
neglected, as it would leave nothing to the uncertainty of procurin'o- a
warlike apparatus in the moment of public danger; nor can such ar-
rangements, with such objects, be exposed to the censure or jealousy of
the warmest friends of republican governnient. They are inca])able of
abuse in tlie hands of the militia, who ought to possess a pride in being
the «lepository of the force of tlie Jieitublie, and may be trained to a
degree of energy, equal to every military emergency of the United
States.

But it is an itwpiiry which cannot be too solemnly pursued, whether
the Act '* more ettectimlly to provide for the national defence by establish-
•Mg a uniform militia throughout the United States," has organized them
. as t<i produce their full etfect; whether your own experience in the
^everal States has not detected some imperfections in the scheme, and
■whether a material feature in an imjtrovement of it ought not to be to
afford an oj.portunity for the study of those brandies of the military art
which can scarcely ever be attained hy practice alone.

In his sixth, ho speaks of the militia as "the army of the Constitu-
tion," and says: "The devising and establishing of a well regulated
militia, would be a genuine source of legislative honor, and a perfect title
to public gratitude." In his seventh, he says: "The subject is of so
much moment, in my estimation, as to excite a constant solicitude that
the consideration of it may be renewed until the greatest attainable per-
fection .shall be accomplished. Time is wearing away some of the ad-
vantages for forwarding the object, while none better deserves the
persevering attention of the public councils." In his eighth, lie says:
"My solicitude to see the militia of the United States placed on an
etficient establishment, has been so often and so ardently expressed, that
I shall but barely call the subject to your view on the present occasion."
John Adams, in his message at the special session of Congress, in
May. 171)7, recommends to the consideration of that body, "a revision
of the laws for organizing, arming, and disciplining the militia, to render
that natural and. safe defence of the nation efficacious;" and elsewhere in
the same message he says: " A naval power, next to the militia, is the
natural flefence of the United States."

Jefferson, in his first annual message, says: "Uncertain as we must
ever be, of the particular point in our circumference where an enemy
may choo.se to inva<le us, the only force which can be ready at every
point, and cojupetent to ()i)pose them, is the body of neighboring citizens
as f<.rmed into a militia. On these, collected from the parts most con-
venient, in number proportioned to the invading foe, it is best to rely,
not onlv to meet the first attack, but if it threatens to be permanent, to
maintain the defence until regulars may be engaged to relieve them.
These consi«ierations render it important that we should, at every session,
continue to amend the defects which from time to time show themselves in
the laws for regulating the militia, until they are sufficiently perfect; nor
should we now, or at any time, separate until wc can say we have done
evervthint; for the militia which we could do were an enemy at our door."
In his second annual message, he says: "Considering that our regular
troops are employed for local purposes, that the militia is our general

reliance for great and sudden emergencies, you will doubtless think this
institution worthy of a review, and give to it those improvements of
which you tind it susceptible." In his fourth annual nu-ssuge, he says:
'•Should any improvement occur in the militia syston. that will be always
seasonable." In his tifth annual message he proposes the division of tho
militia, somewhat in the manner in which the luilitia of this State is by
our new law divided, lie remarks: ''I cannot but earnestly recom-
mend to your early consideration tho expediency of so modilying <»ur
militia S3'stem, as that by a separation of the more active part from that
which is less so, we may draw fn^m it when necessary, an etticient corps,
fit for real and active service, and to bo called to it in regular rotation."
In his sixth annual a<ldress, he says: "A steady, perha])s a quickened
pace in i)n'i)aration for the defence of our seaport towns and waters, an
early settlement of the most exposed and vulnerable ])ai-ts of our country,
a militia so organized that its effective j»ortions can be called to any
point in the Union, or volunteers instead of them, to serve a sutticient
time, are means which may always bo ready, yet never jtreying on our
resources until actually called into use. They will maintain the public
interests while a more jtermanent force shall be in course of j)reparation."
In his I'ighth annual nu'ssiige, he says: "For a people who are free,
and mean to remain so, a well organized and armetl militia is their best
securitv. It is. therefore, incunilieiit ujton us at every meeting, to raise
the co'n<lition of the militia, anrl to ask ourselves if it is prepared to
repel a powerful enemy jit every jtoint of our territories exj)osed to in-
vasion. Some of the States have paid a lauilable attention to this object,
but every degree of neglect is to be found among others. Congress,
alouc, has power to pr<»duce u uniform state of j»rei>aration in this great
organ of defence; the interests which they so deeply feel in their own
and tiuir country's security, will present this as among the most im-
portant objects of their deliberatibn."

Madison, in his inaugural address, speaks of •* an armed and traine-d
militia ' as the " firnust bulwark of republics." In hislirst annual mes-
sage he says: " Whatever may Ite the course of your deliberations on
the subject of our military estal>lishnients, I should fail in my duty in
not rec(»mmending to your serious attention the imi>ortance of giving
to our militia, the great bulwark of our security and resource of our
power, an organization the best adapted to eventual situations for which
the Unhed States ought to bo prepared." In hisseeoi/d annual message
he says :

'• These preparations for arming the militia having thus far provided for
one of the objects contemjdated l>y the power vested in Congress, with
respect t«) that great bulwark of the public safety, it is for their consid-
eration whether further j»rovisions are not requisite for the other con-
templated objects of organization and discipline. To give to this great
macs of physical and moral force the etiiciency which it merits and is
capable of receiving, it is indispensable that they should bo instructed
and practised in the rules by which they are to be governed. Toward an
accomplishment of this important work I recommend for the considera-
tion of Congress the expediency of instituting a system which shall, in
the first instance, call into the field at the public expense and for a given
time, certain portions of the commissioned and non-commissioned officers.
The instruction and discipline thus acquired would gradually diffuse
through the entire body of the militia that practical knowledge and
promptitude for active service which are the great ends to be pursued.
Experience has left no doubt, either of the necessity or of the efficiency

of competent military skill in those portions of an array, in fittino- it
for the tiniil duties which it may have to perform." '^

In his fifth annual messacje he speaks of the militia as being ''always
to be regarded as the great bulwark of defence and security for free
States." ■^

In his Hoventh annual message he says:

•' I cannot press too much on the attention of Congress such a classifi-
cation and organization of the militia as will most effectually render it
the safeguard of a free State. If experience has shown, in the recent
splendid achievements of militia, the value of this resource for the pub-
lie defence, it has sliown also the importance of that skill in the use of
anus and that familiarity with the essential rules of discipline which
cannot l»e e.\]iecte<l fniin tlie regulations now in force. With this sub-
ject is intimately connected the necessity of accommodating the laws in
every res] K'ct to the great object of enabling the political authority of
the llnion to employ promptly and effectually the physical power of the
Union in the cases designatetl by the Constitution."

In hjs eighth ainnuil message ho says:

"As a subject of the highest importance to the national welfare I must
again onrnestly recommend to the consideration of Congress a reorgan-
ization of the militia on a i)lan which will form it into classes, accord-
ing t(» the periods itt' life more or less adapted to military services. An
cttieient militia is autlntrized and contemplated by the Constitution, and
re«|uired by the spirit and safety of free government. The present
organization of our militia is universally regarded as less etticient than
it ought to be made, ami no organizati()n can be better calculated to give
to it its due foreo than a classification which will assign the foremost
place in the defence of the country to that portion of its citizens whose
aelivity and animation host enable tluMu to rally to its standard."

President Monroe in his inaugural a<ldress says:

'' liut it ought always to be held prominently in view, that the safety
of these States and of every thing dear to a free people, must de])end in
an eminent «b'gree on the militia. Invasions may be made too formida-
ble to be resisted by any land and naval force which it would comport
either with tiie ]>rinciples of our g<»vernment or the circumstances of the
United States, to maintain. In such cases recourse must be had to the
great body of the people, and in a manner to ]>roduce the best effect.
it is of the highest importance, therefore, that they be so organized and
trained as to i»e prepared fi»r any emergency. The arrangement should
be such as to put at the commatid of the Government the ardent patriot-
ism and youthfid vigor of the country. If formed on equal and just prin-
ciples. itVannot be oppressive. It is the crisis which makes the pressure,
and not the laws which provide a remedy for it. This arrangement
slinuld be formed, too. in time of peace, to be the better i)repared for
war. With such an organization of such a people, the United States
have nothing to dread from foreign invasion. At its a])proach an over-
whelming force of gallant men might always be put in motion."

In his seventh annual message he says :

"As the defence, and even the liberties, of the country, must depend in
times of imminent danger upon the militia, it is of the highest impor-
tance that it be well organized, armed, and disciplined throughout the
Union."

John Quincy Adams, in his first annual message, says:

''Amoiii; the i)owers specifically granted to Congress by the Constitu-
tion, are those of establishing uniform laws on the subject of bankrupt-

cies throughout the United States, and of providing for organizing,
arming, and disci])lining the militia, and for governing such part of them
as niay bo employed in the service of the United States. The magiiitudo
and complexity of the interests affected by legislation upon these sub-
jects, may account for the tact. that, long and often as both of them
have occupied the attention and animated the debates of Congress, no
systems have yet been devised for fultilling, to the satisfaction of the
community, the duties prescribed by these grants of power. To con-
ciliate the claim of the individual citi/A-n to the enjoyment of personal
liberty, with the effective obligation of ]»rivate contracts, is the difficult
problem to be solved by a law of bankru])tcy. These are objects of the
deepest interest to society, affecting all that is juvcious in the existence
of multituiles of persons, many of them in the classes essentially
dependent and helpless; of the age recpiiring nurtui-e. and of the sex
entitled to ])rotection from the free agency of the parent and husband.

"The organization of the militia is yet more indispensal)ie to tiie liber-
ties of the country. It is oidy by an '-ff •( live militia that we can enjoy
the repose of peace and bid defiance to foreign aggression ; it is by the
militia that we are constituted an armed nation, standing in perpetual
i^anoply of defence in the presence of all the other nations of the earth.
To this en<l it would be necessary' so to shape its organization as to give
it a m«»re united and active energy.

"There are laws for establishing a uniform militia throughout the
United States and for arming and e(iiii]»ping its whole body ; but it is a
body of dislocated members, without the rigor of unity, and having
little of uniformity but the name. To infuse into this most impoitant
institution the power of which it is susceptil>lo, and to make it available
for the defence of the Union, at the shortest notice and the smalK ^t
expense of time and of treasure, are among the benefits to bo expected
from the i>ersevering deliberations of Congress."

(Tcneral Jackson, in his first iinuigural a<l<lre8s, saj's :

" Considering standing armies as dangerous to free governments in
times of peace, I shall not seek to enlarge our juesent establishment,
nor to disregard that salutary lesson of ]i(ditical exj)erience which
teaches that the military should be held subordinate to the civil power.
The gradual increase of our navy, whose Hag has displayed in distant
climes our skill in navigation and our fame in arms ; the preservation
of our forts, arsenals and dock-j'ards ; and the introduction of progres-
sive improvements in the discipline and science of both branches oi our
military service, are so ]daiidy ]u*escribed liy prudence, that I should be
excused for omitting their mention sooner than enlarging on their im-
portance, liut the^>ulwark of our defence is the national militia, which,
in the present state of our intelligence and population, must render us
invincible. As long as our Government is administered for the good of
the people, and is regulated by their will ; as long as it secures to us the
rights of person and property, liberty of conscience and of the press, it
will be worth defending; and as long as it is worth defending, a patri-
otic militia will cover it with an impenetrable a?gi8. Partial injuries and
occasional mortifications, we may be subject to ; but a million of armed
freemen, possessed of the means of war, can never be conquered by a
foreign foe. To any system, therefore, calculated to strengthen this
natural safeguard of the country, I shall cheerfully lend all the aid in
my power."

Had the loyal States but have heeded these wise suggestions, and carried
them into practical effect, as they have ever had the ability in men and

tiK-ans to do. tliia wic-kcd reV»ellion would

J - uiiiy cases their total ignorance of the

'i-f (»f anus, and tliey dared to strike tho blow which should inaugurate
\ il war, with all its attendant iiorrors.

In view, therefore, of tin* wise reconiniendations of the founders of
,r (roverninent, and those of our })atriotic statesmen who have ever
id an eye single to its perpetuation, growth, and prosperity, and of the
irrieidal war which i» now heing waged against it, it behooves us to
i-t about an<l see what is necesary to bedone to perfect our militia
Htem, and make it. as a peace or war establishment, what it was orig-
inally intended to be.

For many years past I have earnestly urged upon llio Governors and
Legislatures the intportanceof the develof)ment of a reliable militia withiu
this State; I have atti'mpted to set forth the dcHciencies and imiierfec-
tions ot' our "^ysti'm, the Imrlhens and sacrifices it imposed upon those
whr» were struggling to keep it alive; I have called attention to the
isolate<l and defenceless position we occujn' u])on the nxaj) of the Con-
federation— the very extreme outjjost of the Hepublic, witli an extended
and unfortified nea-coast, contiguous to two ])owerful nations, one at
least, with vast military resources, separated from the Aihintic States
and from all the jtrineipal oi-dii;ince depots by thousands of miles, and
by a rani;e of mountains ditticult (»f transit, with a mixed ])opu]ation,
liable to be divided upon all politi'-al ijuestions which might affect or
disturb the repose of our (iovernment, whether of insurrection, rebellion,
or invasion, and the exposure of our frontier citizens to incursions and
depredations of hostile Indians — but com|iaratively with little effect.
Whatever of assistance has hitherto been derived from the State has
been " wrung from it with agony, and when yielded it has come almost
with derision." Hut. notwithstanding the embarrassments which have
ever been thrown around our citizen troops, I am proud to say that the
tiro of jialriotism still glows in their hearts, and that they Avill not let
the militarv s|(irit die out.

Throut^hout this entire State, there are men, good and true, who meet
not lesrt than once a week, to learn the art of war— to become proficient
in the use f»f arms. In these schools are acquired habits of obedience,
by being subjecte<l to the discij.line of the soldier. There is a moral
sublimity in the ])ower which these schools exert, which is not generally
appreciated ; the foundations of civil and religious liberty are here laid,
broad and deej). for upon those men rests the good order of society ;
behind the dread majestv of the law, .stands, in skilful hands, the bayo-
net. Therefore, if tl'iesj schools, where our young men are permitted
quietly to qualify themselves for service in the field, could be properly
cherished and nourished, rebellion and imsurrection will never dare
rai.se its head in this State. It is, perhaps, at this very time kept down,
in a measure, by the knr)wledge of the existence of this branch of the

public service. i i • ■

How important, then, is it that those who guide the plough in its
furrow— those who build the houses in which we dwell— those wiio deal
in all the commodities which civilization has made the necessaries of
life — those who delve in the earth for its mineral treasures — ho av im-

portani it is that all should be able to w'whl the nwonl or handle the
musket with ettieieiicy.

The people of this State have been too prone to overlook the liiet, thai
their liberties, as well as the jiulilie peaee. were in their own keeping,
and depended upon their own abilit}- and viiiilanee to defend anil ])iott(i
them ; for every man. at any moment, is liable to be ealled into the field,
under the tryin«^ eireumstanees of being assigned to aetive military

duty.

Our vohiiileer organizations, then, risi- to their full importanee, and
those who have hem seho(tk'd in them will well ap|»reiiate the eontident
toueh of the elbow upon whieh they know thi-y lan depend. The present,
however, is not the lime lor eomphiint. when our eountry is involved in
civil war. J-iet us eneourage the (itizen soldii'r. and enable hiju t(»i>rove
to the State and to the worhl. as they are now doing in the lace of the
rebellious enemy, that the destinies of our (iovenunent are swayed by
baytmets in tiie hands ot thinking men, who value the Constitution too .
hitrhly to have it ruthlessly tntdden under foot by politieal demagogues.

The reekless sehemes ot" ambitious iinil designing men tind no symita-
thy with tlie gi-eat mass of the peo|»le ol" Calilornia, and our citizen sol-
diers will be the first to visit the jjrojter punishment upon their sympa-
thizers, should any attempt be madi- ni)oii this coast to aid or abet them.
It is, then, high time that this Stale >hould be placed in a condition to
meet any and every contingency wiih that jiromptitude due to the
patriotism and bravery of her people.

AI'I'OIXTMKNTS.

The provision of the law of May ninth, eighteen hun<lred and sixty-
one, requiring the advice and consent of the Slate Senate to be obtained
to confirm aj»]»ointments of general otlicers. is a good one ; and it is to
bo hojied thai lach and every Senator, in his ])lace, will express bis ap-
])roval. or disai)probali(»n. of each antl every ajtjiointee. not oidy in regard
to Ins qualificalit)ns for the j>osilion for which he has been commissioneil,
Imt most jmrticularly in regard to bis loyalty to the Constitution and
laws of our State and nation, by his vote.

One of the great impetliments in the way of building uj» an ettieient
militia in our State, ever since its first establishment, has been the ap-
pointment, in many eases, of officers of brigade and divisiijn without the
least j)retension or claim to military experience or education, or fitness
for the position in any particular whatever.

The companies, battalions, ancl regiments, of our organized militia,
are generally in goo<l <lrill and well officered, and to place them in the
field, under the command of a brigade or division officer without mili-
tary education or experience, is not only an insult to our brave troops,
Init has the effect of demoralizing and unfitting them for service.

Let. then, the highest standard of tpialitications be observed in all
future appointments, and jiai-ticularly let the claims of those of our de-
serving otHcers holding commissions in regiments, battalions, and com-
panies, who have made and are now making .sacrifices to keep up our
militia organization, be considered. Let a system of judicious j>romo-
tion be observed, and let those who have subjected themselves to great
personal sacrifices, both of time and means, and have performed what-
ever duties have been imjtosed upon them for the good of the community,
be preferred, and j-ou will add a powerful incentive, afford them a fitting
and just encouragement, and prompt them to efficient duty. It is but

Mt to irivc to nuMiihors of the militia the position to which they are
,.titU«(l, toacUnmvU'd-e the respou.sibilitj which they assume, and the
icntiees xyl.ich they make for the public weal, for in no one particular
wave the claims ot merit heeu so persistently withheld as in the appoint-
ment of ;rem.ral officers of our militia. True, there have been, duriuir your
llxci'llency's term of office, many noble exceptions to tliis rule, for which
1 credit and praisr are due. and to which no reference is made in this
paratrraph.

I am aware that, in many instances, the Governor of a State contain-

:iir surh un extent of territory and populated with a new people, must

. ly. in the srli'etion «»f offieers tor every branch of the public service,

.|.on the representations of citizens in whom he has confidence, and that

iiat confidence is oftentimes abused ; but I insist that the greatest care

nd precaution should in all cases bo exercised in military a'p])ointmcnts.

I'lie law should be so amended as to give the Commander-in-Chief the

option of u wise discretion in issuing military commissions, whether to

genei'al. line, or staff officers.

STAFF SCnOOL.

Division anil brigade staff officers should be required to bo instructed
in all arms (»f the service. They sbould be most expert and highly edu-
C4ited officers; sh<»uld understand all the movements which can be re-
quired in the brigades and divisions to which they are attached; should
be familiar with the duties of troops, and competent to assist in their
niovemenls. In each division, where it is at all practicable, the general
officers and general staff officers should constitute themselves into a
staff school, procure competent instruction, and ju'actice as a company
of intiintry. cavalry, and artillery; shoidd man a section of a battery,
mounted ami dismounted, <lo duty as troo])ers and as a platoon, and
practice the school of the .>*oldier and of the company thoroughly, and
also as Kkirmishers. Thetj, with a proper examination of the schools of
the battalion, squjidron. and the line. I lie}' will be prepared to perform
their duties creditably. To be a skilful statt' officer is no mean honor,
nor can the imme be earned without much study, much preparation. A
good staff should always constitute the working machinery of the com-
manding otficer.

QUALIFICATIONS OF THE ll-\XK AND FILE.

I cannot do better than to reiterate a recommendation upon this subject
made in my report in eighteen hundred ami fifty-six. " Care sh<mld be
taken that every citi7A'n should properly understand the character of the
responsibilities he is about to assume, in whatever public capacity he is
called upon to act. and I recommend that the law be so modified, that
everv citizen who enrolls himself as a volunteer soldier under the laws of
this 'state, should be require<l to subscribe to a stringent oath that he
will sustain and defend the Constitution and laws of this State, and of
the United States, against any and all persons, powers, and potentates,
whatsoever."

This recommendation, in view of the present exigences of our nation,
an<l the division of sentiment and sympathy among the people of this
State, is regarded as peculiarly applicable to the time, and necessary to
be incorporated in the law. The condition of California at the present
juncture mav well be considered alarming, in view of our geographical,

isolation, and with even the remote probaMlity of a rupture between the
United States and Great Britain, it does not beeonie us to imagine our-
selves exempt from the i)Ossibility of invasion. The mere suspieicui that
such an event may occur, should lead us to place ourselves in rca<line88
for it. The intelligence of every good citizen must at onco convince
him that however remote the probability of hostile invasion from a for-
eign ]»owcr may seem to be, the possibility would not be astonishing at
this time, and we should use every exertion to put this State in jirepara-
tion to meet every emergency.

ENCAMPMENTS AND CAMPS OF INSTRUCTION. 4

In relation to these subjects I cannot do bettor than to call your atton-
tiou to recommendations in n»y former reports relative to annual Brig-
ade Encampments of the organizeil militia of this State, and to Camps
of Instruction, to refer your lOxcellency to correspondence upon the
subject between Lieutenant J. L. Browne, of the Aul>urn Cireys, and
myself, which is herewith anexed :

AuBUBN, Placer County, )

September 22d, 18G1. )
lion. J. (i. Dow.ney :

giK : — Mr. Bullock and myself called at your ollice one day hist week,
wisliing to have some conversation with you relative to a Camj) of In-
struction for the benefit of the volunteer militia and such otiier jiatriotic
citizens of the State as would, were they satisfied of their comi»etency,
enlist in tlie service of their country.

Like many other patri<»tic citizens, you are undoubtedly somewhat
disajipointed at the baekwardncss of Calilornians in filling ujt the vari-
ous comjianies and regiments n(»w under requisition. Fi;om my own
observation I am satisfied that the jirincipal cause can he ex]thiined in a
very few words, and in doing so I do not design to refiect on patriotic
men, but to assert a general reason.

Many of the men who were in a situation to enable them to do so,
on the re<|uisition being made, immediately opened recruiting stations
and formed their ])lans to fill up companies, were men in whom the com-
munilv in i^eneral ha<l not much confidence; some would doubt their
competency, others their fitness, more, their known lack of experience
or military education of any kind. Consecpiently. after ])i(king up the
floating jiupulation, wh(»m any one could enlist, they find that their
etiorts have come to a stand ; and when tijcy appeal to that i)art of the
community who are fixed and have something to leave, their work is
slow, and the closing up of their work does not keep pace with the pro-
mise of the commencement. In various and many instances, such men,
starting companies in various localities or communities, deter others who
have fil>t to look to their business matters and satisfy their own minds
that the call of their countrj' demands the sacrifices necessary tor them
to make, to give up their occupations and enlist for their country's sake.
These men, coming slower to the conclusion, would find the field already
occupied, and could easily persuade themselves that the time for them
■was not yet. In every case such men would have filled up companies,
and called around them a reliable and substantial class of the community
much quicker than mere adventurers can, and the reputation of the
State be increased in a proportionate ratio.

Another thing which I feol has kept many crood men from the field
at this time. IS tJioir douht of pussinir the necessary examination before
the Mihtary Hoard, even after they had abandoned their business or

camp of instruction, from wliich they could go with a confidence and
knowledge of what would be re<[uired of them. They would go out in
the contiileiice tluit should they succeed in forming companies, and by
their action be placed in responsibk- pt)sitions, they possessed tlie requi-
site knowledge to perform their duties in a creditable manner ; and in
case of another requisition, companies would be formed more expedi-
tiously and more t«» the credit and honor of the State than at present.
The present movement in almost every town in the State to form com-
panies of Home (iuards is proof of this. There is not a present orpros-
poctive organizati<»n of Home Guards but would furnish more or less
candidates for instruction if the facility was extended to them; and
then men returning to their homes, imbued with the proper military
kn<>wli'b_'e and contidence. would imjtart more or less of it to their
organi/.:itions. and thus would be accom]»lished just the result sought, to
the great honor ami reputation of tlie Statt — " a thorough and correct
organization of the volunteer militia of the State." Accompanying
this. 1 give a rough and cru<le outline of my ideas of such a camp.
No doul)t thoao experienced would tind but little diliiculty in maturing a
])lan.

This Fall the people of Placer County deemed me more fit to stay at
home than represent them in the Legislature; but when I am satisfied
the c<iuntry lu'eds my services I shall not hesitate, and I will endeavor
to be prej»ared.

llespectfully yours,

J. L. BEOWNE.

Memorandum — Camp vf Instruction.

That there he established at some suitable place, under competent in-
structors, an encampment, to be termed '• A Camp of Instruction," for
the i»ractice and instruction of such ])art of the volunteer militia of the
State as may desire it ; where skeleton companies, or such members of
the various volunteer an<l home-guard organizations as ma}' bo detailed
by the several companies with the advice and consent of the Commander-
in-Chief, shall be jnit on a course of drill and instruction, by companies
and regiments, and all the details of the camp necessary to be known
by oflicers in active seiwice. Parties so detailed, and availing themselves
of the benefits of this instruction, ple<lging themselves to promptly re-
spond to any requisition that may be ma<le on the State. Those who
acquit themselves to the satisfactioii of the C",)iamandant, to receive from
the Commander-in-Chief, or Adjutant-General, proper certificates of
competency.

}

Sir :— Yours of the twenty-second ultimo, addressed to his Excellency,
the Commander-in-Chief, relative to the necessity of establishing Camps of

State of California, Headquarters Militia,
Office Adjutant-General, Sacramento, October 9tL, 1861.

14 t

Military Instruction, has just been handed mo for rojily. I fully concur
with you in the premises hu<l down, and in j'our c-oncdiisions of result.
The j>lan su^<^ested is a desideratum tor which I hjive hoen lahoring for
years ])ast, having almost annually called the attention of our lei^islators
to this subject. I have repeatedly recommended annual eneampmentsof
our militia, and attempted to set fortli some of the l>cnefits to he derived
therefrom. I have shown, by actual returns, that out of the twenty-five
thousand, the estimate of our losses in the Mexican war, oidy fivi- thou-
sand actually fell in battle, and upon the authority of othcial pajters of
the Mexican (lovcrnment, out of tifty thousand lost, only ten thousand
fell in battle; thus proving that even in (»ne of the most e(jual>le and
temj>erate climates on the globe, and in the absence of any devastating
epidemic, the most frightful cause of disease and death, in both ai'inies,
arose from a want of knowledge of camp duties. The army troops
being under regular and systennitic discipline, protected by a knowledge
of the economy of camp life, became gradually inured to the absence of
convential comforts, and are jiri'j»ared to do good service in the field,
and I'etain hi-alth. On the other hand, the ranks of the volunteers
engaged in that war. although they had the same e<jui})agt'. were greatly
thinni'd by fell disease before they had an opportunity of c(»nflict with
the opjiosing foe. What was to the regular troops oidy a change of
habitation, sim])ly recpiiring care and attention, was to the other a fruit-
ful source of distress and inconvenience. Cleanliness, a suitable health
police, and a thousand matters of good order, essential to the presen'a-
tion of health, are the result of mere the<jry, but must be ac(pn'red by
experience in service. Take a citi/A'ii from his fireside aixl jdace him in
the active field, without jirevious instruction, and he will make a sad
contrast with the well disciplined soldier. Take a citizen soldier, and
accustom hini, by an easy and pleasing transition, to the duties on the
field, and. shoubl his services be suddenly required in a more extended
military sphere, his i-.\pcrience will enable himtocontend with ex]tosure
and hanlship, which otherwise would operate as a serious drawback.
Let us. then, habituate our citizen soldiers, by a .sj-stem of instruction, to
their duties in this resjiect. and give them an anticipation of, and, to a
great extent, a safeguard against the vicissitudes of actual service, and
the result must be highly beneficial.

Look at many of the volunteers as they returned from the battle fields
of Mexico, (men. for the most part, in the very prime of life.) with
emaciated forms and shattered constitutions, borne down under the in-
fluence of an inexorable conqueror, ami know, at the same time, that
they unrtinchingly and fearlessly encountered all the dangers which
assailed them, and say if this is not an appeal to our S3mj)alhies, and if
it does not add to the testimony that lack of experience, and a know-
ledge of the duties of camp life, has greatly contributed to bring about
this result? If, then, such are the results of our experience in warfare,
can we not be taught by that ex]»erience, lessons of real utility, and
make an effort to remove at once, this most fruitful of all sources of the
causalties of war. by fitting our ofl5cers, at least, or those who may be
called u])on to command, for ."^ei-vice, by actual duties in cam}*?

If these Camps of Instruction could be established under proper
auspices, the amount o£ benefit that would arise therefrom cannot be
compiited. But \ regret to say. that no provision has been made to pay
any portion of the expenses which would be incurred, and unless the
means are at hand, or can be derived from other than the State sources,
the matter will have to be deferred until the meeting of our Legislature.

The Commanflor-in-Chief will unite with me in the proper recommenda-
r, to that hody and wishrs me to assure you of his full indorsement
your virws. an.l his e.M.p.-ration in all thinirs which shall tend to pre-
!o his fellow citizens to sustain the tla-^ of our country with credit to
' niselves and honor to our State.

I am Sir your obedient servant,

WM. C. KIR BE,

Adj utant-General.
Li.-uienant J. L. liuoWN. Aul»iirn. Placer County.

I'he faults f)f discipline and or^irnzation amoni; our troops, developed

the present war. demonstrate the necessity of important improvement
in our military estahlishment. in order to place it on the footini; which
the power and position of our country demand. The case cited above,
and the losses and sufferings experienced in men, during the early part
of the (^rinu-an cainjiaign. among the liritish troops, which were so
painfully exhibited in the reports of the Commissioners appointed to in-
quire into them, afford an argument conclusive as to the necessity of the
establishment of these camps.

Kncampments and camps of instruction should be formed, in which
officers and men may l»e exercised in mana-uvres of large bodies of troops.
As at j>resent organized, there are few opportunities for our officers or
soldiers to acquire practical knowle<lge of the conduct of field opera-
tions on a largo scale, or the various resources of preserving their indi-
vidual efliciency in campaign. A liberal a])propriation should be inade
for these purp«»ses. and the law so amended as to require the establish-
ment of annual cn«ampments upon a ju-oper basis in at least a portion,
if not all, of the brigades of this State, ami camps of instruction in ever}-
briixade.

The companies of organized troo|)s of the Second Brigade Second
Division, shouhl also lie recjuired to encamp in battalions of three or
more comjianies, r)r in such fVirce as can be made available, for instruc-
tion at the forts in the harbor of San Franci.sco, for artillery practice,
under competent instructors, (if permission can be obtained of the Federal
authorities, of which no doubt exists,) for at least one week each. The
reason for this recommendation is obvious. The Federal troops have
been ]»rincipallv ordered from this coast, and we should at all times have
in rea«liness at'least a full n-irimcnt of men ready to command or serve
the guns upon our fortifications. This is highly important, and our
brave troops in San Francisco would gladly fit themselves for this ser-
vice, and be ready to supply the necessity "which an emergency might
require.

.MILIT.VRY LXIVERSITY.

In mv former annual reports I have frequently recommended the
organizjition of a State Military School, and again recur to the subject,
bein-r more than ever satisfied of its importance. The chief reliance of
the c(.untrv. either to resist invasion or to protect us against domestic
treason, rests ui)on our volunteer militia. That there is patriotic ardor
enough in the breasts of most of our citizens capable of bearing arms, to
step forth at the call ff their country, and enroll their names for service.

no ono doubts; but to serve the State or to act with effect in any great
national contest, requires skill and ability as well as patriotism. It i|
the truest maxim that in peace we should be prejiared lor war; for that
individual who su])poscs that we can always be at peace, either at home
or with foreign nations, understands very little of the histor}' of nations.
The position of our State, its distance from the seat of the National
Government, its ex])Osed sea coast of ei^cht hundred miles, and embrac-
ing an area exceeding all the New England States coml>ined, the charac-
ter of the territory north, south, and east, its commercial importance to
the Union, and the permanence and security of that great and growing
commerce, call u])on us to have a perfect military character cultivated
amongst our ])eoj)le upon this coast, if we do not wish to see the rich
prize })assing out of our hands. A foreign governnu'nt, based u])on prin-
ci))les anta'.;onistic to our own, exists upon our northern frontier, which
is ever jcal<)us of the rapidly extending intbu-nce of our commerce, and
by many believed to i)e unscrupulous as to the means which her states-
men adopt to crush out all rivalry and opposition to her emjiire over the
seas; while at the south we tind a i>eninsula of several hundred miles,
sparsely inhabited, without any government except that of the faction
which may obtain a temporary p(»wer. and which offers, either by way of
the Gulf of C'alitl)rnia, or the main land, an opening for a Ibrce at war with
us or desiring to subject our State, to laml armies and munitions of war
with which to invade our soil.

The jjcrpetuity of the ble.ssings of tlu' free government which we so
happily enjoy, requires our eternal vigilance an<l sleepless activity, and
as each State of the I'nion is tIependiMJ upon to aid in all efforts for the
maintenance of the Government, so is each State called up(jn not only
to provide for a militia but t<» provide the moans to educate and fit their
citizen soldiers for the responsible positions which in cases of necessity
they may be called uj)on to fill. To j)rovide a conjj)rehensive system of
military etlucation is the duty of the Legislature. It is useless to expect
that a few evenings spent in <lrill in a year, a day or two of parade, or
one general muster, can ever fit our volunteer foive for the most efficient
service. War is a science, and comj)rehends in its meaning all other
sciences, and a greater portion of all human knowledge. It has been
the study of nations for all [nist time, and large masses of men are de-
voted to the i)roficiency of arms. Governments have endowed, by liberal
ai»propriations, schools for the instruction of the military art, until
such progress has been made in the weapons of warfare and strategy
that the science of war, the movements of troo])S, and the modes of
attack and defence, are greatly changed. This extensive knowledge,
which has been so cultivated by the nations of the earth, makes the
necessity the more urgent in this country for a stricter attention to the
mjlitai'v education of the j)eople. AVithout order, regularity, discipline,
and education, an army is liable to be routed at every point, and would
resemble a victim sent to be slaughtered rather than an army led to
battle. It is imiKissible to expect that our volunteers, from the very
nature of their employments, can acquire an extensive military know-
ledge to cope with those who have made the military art the study of
their lives. If the duties of the soldier to fit him for service require
years of training, how much greater the necessity for those who arc to
command armies and divisions of armies, to have a finished military
education. To them are entrusted the lives of thousands of their
fellow men ; and the mistakes and disasters of armies in warfare
may be attributed in a great measure to the ignorance of those who were

entrusted with the command. It is not the simple duty of the officer
who woidd aspire to command to understand the manual of arms the
tormation and movements of the companj- or battalion. He will often
l.e calleil upon to occupy positions which require an acquaintance with
the ditterent hranchcs ot service, so as to be able to act upon an emer-
u^'ucy and without mistake or hesitation, either for defence or attack;
l.e able to draw a plan, trace the lines of encampment, and in a moment's
notice to direct a tic-Id fortification.

The four trrand divisions of which an array is composed, namely,
iiifantrv. cavalry. en^^Mueers. and artillery, and the mode of organizing
t'-r a military service, and moving troops" armed with the various arms^
• .pure no common intelligence. The education of the engineer and ar-
llerist is the work of years, and includes the most comprehensive and
:ireful study. To the engineer we look for plans of fortifications, and
kill to construct them. To the engineer the infantry and artillerj- are
■idebted for their position on the battle field, and to their proper distri-
ition, aiul also for the construction of the ways over roads and rivers,
•id in the entrenchments. Xor can tiie duty of the skilful artillerist
If consi.lered much behind in the important duties of the profession,
lie requires a knowledge of jirojectiles. the laws of gravitation, the ve-
locity and force of bodies, how he shall take position for breach, in point
blank, with mathematical accuracy. He should know how to construct
gabions, facines, embrasures, and the various other works required.

The volunteer force, as at present constituted, cannot be expected to
posses.s either the theoretical or practical knowledge for these important
duties. If this be so, a remedy ought to be applied to 8up])ly this de-
fect. There is no better way in which this could be done by this State
than bv the establishment of a militar}- school, in which an opportunity
woubl l»e afforded to the y«»ung men of the State to become skilled sol-
diers, to meet the necessity when it should arrive.

Every nation of account, in modern times, lias paid great attention to
military edueation. The (ireeks taught the military science to the chil-
dren in their schools. In I'russia every man is a soldier, and required to
do military duty for three years ; and there are schools attached to every
reginunt and battalion, in which the ])rivate8 are taught the rudimen-
tary branches of learning, while high schools, for the education of officers,
are attached to everv army division ; there are also military schools
founded at Jierlin by Frederick the Great. The school of St. Cyar,
founded by Bonaparte in eighteen hundred and three, educates the youth
of France, and there was established the system which Eussia, Saxony,
and Austria, follow.

The school at West Point demands that we should create, foster, and
encourage the education of our youth in the highest branches of the
science of war. It is our duty to educate our youth, and for our secii-
rity, to do this in such a manner as to give them the means of intelli-
gence which the most prosperous and intelligent States provide for
the }>roi)er discipline of their people. An institution established upon
this basis, would not only be frequented by the youth of the country,
but adults, wiio desire to become skilled in the duties of a soldier, would
attend the military and scientifical lectures delivered at the hall of such
an institution, and could thereby learn of the profession of the soldier
sufficient to fit them for active and difficult duties. The opportunity
for the establishment of such an institution is at hand.

As early as eighteen hundred and fifty-six, and every year since then
I have had the honor, in my annual reports, to direct the attention of
3

18 J

the Legislature to the consideration of the propriety of establishing a
Military Institute in California. The remarks offered at that time were
as follows :

" I he;; leave to suggest the propriety of Betting ai>art means for the
estahlislinient of a State Military Institute, similar to those now exist-
ing in several of the older States of our Union. The pi'ogross and success
of these insiitutions have fully demonstrated the j>raetical'ility of i-ngraft-
ing the military system u\h)u State colleges. This suggestion, 1 am fully
convinced, will meet with jiuhlie favor and support. The introduction
of military «lisci]»line in a seh«»ol, serves to ])r(miote regular hahits, and
invigorate the physical constitution of the student, while, at the same
time, it will give a practical tone to every department of study, and
thoroughness of instruction would constitute its chief element. The
habits of the soldier would conduce to system, promptness, responsi-
bility, energy, and decision. To the pursuit of scientific courses, the
princij)les and habits of duty render military schools the first institutions
in the country ; and it is to practical education that we mainly rely for
our advancement in greatness as individuals, or as a State or nation. It
fits and prepares us for all the active duties of life, and should form the
basis of every State educational institution. Its graduates would go
forth: the teacher, to his school — the engineer, to his rod and level —
the architect and draughtsman, to his ilrawing-boartl — the farmer,
to liis farm — the soldier, to his j)ost ; each with a sound, j>ractical educa-
tion, based u])on system and order, which have lx;en indelibl}' im]>res8ed
upon his mind by the jtraetical and systenuitic character of his school^
I (h) not j)ropose to discuss the full merits of such a college, l)Ut, believ-
ing in its great utility, take this initiative step, with the ho]ni of directing
j)ublic attention to it, aJid of inducing abler writers to extol its mci'its."

The argument in favor of such an institution has been greatly
strengthened by the Superintendent of Public Instruction, who, in his
report of eighteen hundred and titty-eight, to the Legislature, enters at
some length into an earnest discussion of the whole subject, and as I
humbly conceive, with reasoning which is unanswerable. With that
gentleman, I am disposed to believe that, when fairly under operation,
such an institution would be almost, if not entirely, self-sustaining, while
the benefits would be equally divided between the student educated
there and the State. » * *

It is for the Legislature to devise the plan for the establishment of
such a work, and 1 call your Excellency's attention to the matter, hoping
that it may be favorably adverted to in the recommendations you may
deem projjer to make to that bodj'.

PARADES.

Parades were ordered in the various brigades and divisions as fol-
lows, viz :

First Brigade, First Division, on the ninth day of December, and the
Second Brigade, First Division, on the fourteenth day of December,
eighteen hundred and sixty-one.

The First and Second Brigades of the Second Division, on the fifth
day of December, eighteen hundred and sixty-one.

The First Brigade of the Third Division, on the twelfth, and the
Second Brigade. Third Divison. on the fourteenth day of December.

The First Brigade of the Fourth Division, on the , and the

Second Brigade, Fourth Divi.sion, on the day of December,

eighteen hundred and sixty-one.

The First Brii^ado of the Fifth Division, on the eii^htoenth, and the
cond Bri^'u.lo of the Fifth Division, at such time and place Avithin the
IW-i^'ade as the Major-Gcneral nii<,d»t designate. (Tiiis order, however,
~u far as it rehited to the Second Brigade, Avas subsequently counter-
manded.)
Tlie Fir.st Brigade of the Sixth Division, on the twentieth, and the
<-ond Brigade, on the twenty-fifth day of December, eighteen hundred
.111 sixty-one.

Owing to tho augmentation of oflRcial business imposed upon your

' xcelleney and tliis department by the organization of the several recn-

•nts of volunteers for the service of tlie United States, the anmuil

ira<U'S ri'quiretl by law were not ordered until late in the season, and

ily one (that of the Second Brigade, Second Division.) attended by the

I imman<k'r-in-('hi('f and the AdJiitant-CJeneral; and no reports having

■ t-n received of the parades in other divisions, of course no mention

r;in br made of them in this re])ort.

I found the Second Brigade, Second Division, commanded by Briga-
'lii-r-fienmil Charles Doane, and composed of the First Kegiment Cab"-
Iwinia Volunteers, commanded by Colonel J. S. Ellis, and the First
Infantry Hattalion, commanded by Lieutenant-Colonel J. S. McKenzie —
eixtecn comjtanies in all, were well ofHcere<l and generally in fine condi-
tion. The review by your Pjxcellency, attended by the Adjutant-den-
eral. and Major-CJein'ral Cobb and statf. took place at Soutli Park, San
Francisco, in the presence of thousands of spectators, and was highly
creditable and satisfactory. Though the ground selected for the parade
and review was the worst that could be imagined, yet the fcAv move-
ments that wore executed elicited correctness of drill and good disci-
pline, and were entirely satisfactory. I am gratified to report that the
officers are efficient and accomj»Iished, possosning the true military spirit,
and have the ability' to teach and the energy to perform all the duties
that may <levulve ujxtn them. The rank and file also, though not out
in theirfull strength, called forth many coin])liiiients from the officers
present. The Hrigade. on tho whole, is a credit to the organization, and
an honor to the service and the State.

Owing to tho late hour on which the review terminated, and j'our
Excellency's desire t<> review the Second Cavalry California Volunteers,
on tho same evening, the usual inspection was deferred. I am gratified
to report, however, that the Brigade was well uniformed, and that their
arms wore in excellent condition.

I earnestly recommend that these semi-annual parades shall in future
bo observed, and that the Commander-in-Chief shall at all times be jjre-
sent to review tho troops. The influence for good will be marked and
salutary.

DUTIES OF CIVIL OFFICERS UNDER THE MILITIA LAW.

The neglect of County Assessors to enroll all persons entitled to do
military duty, and the disposition of other civil officers entrusted with
duties under the militia law to practically nullify the same, have been
witnessed by me for years past with regret and mortification. I have
called tho attention, oftentimes, of these civil officers, througli the me-
dium of circulars and official letters, sent them copies of the mditia law,
and pointed them to the sections defining their duties, but save in a very
few instances, no returns have been mode of the enrolled militia of the
various counties of the State, and even those which have been returned,

I am satisfied are incomplete. When the requirementH of the law are
thu-* neglected by those who are specially charged with their execution,
^>ome more sti'ingeut i)enalty for the neglect should be stipulated. In
consequence of the failure of these officers to make up and transmit
these returns, as required by law. in so many cases, my annual rtport to
the President of the United .States, required b}' law of Congress, for this
vear, has been only an apjtroximate return of the militia of the State.

The law of May ninth, eighteen hundred and sixty-one, b}' its pro-
visions evidently contemplated o])eniug the General Fund of the State
to the drafts of the Board of Military Auditors for the j)ayment of the
necessary expenses of this department. The decision of the Controllef
and of the State officers having, however, been given against this construc-
tion of the law, there have l»een no means at my disposal during the
present fiscal year for the payment of expenses which the exigences of
the service reijuired to be incurred.

The amount of money received by me for fees on commissions is eleven
hundred and eight}' dollars, to the thirty-fii'st of Decemlter, eighteen
hundred and sixty-one, which has been pai<l <tver to the Treasurer of
State ; and the sum of four hundred ami ninety-three dollars and thirteen
cents I have disbursed for actual and necessarv expenses of the office —
for rent, Postoffice, etc., which amount has been dulv audited, and a
warrant drawn ujion the Treasurer of State. The total ex])enses of this
office for the ])resent fiscal year, including rent of office and State
Armory, cleaning and repairing arms. ))ostage, stationery, etc., etc,
amount to thirteen hundred and fifty dollars.

The business «)f the dejtartment has been greatly embarrassed by the
neglect of tlie Legislature to make the necessary aj»propriations to cover
the expenses which were re»juired.

In consequence of the accumulation of business in this office, I have
been compelled to employ the assistance of one Clerk since the first day
of October last — viz. : Mr. Moses Scott, Jr., a most competent and
excellent Clerk ; and also of Mr. II. B. Chambers, also efficient and com-
petent, from the twenty-fourth day of November last to the present
time. Both of these gentlemen are entitled to the pay allowed Clerks in
the other State Departments, as the mechanism and correctness with
which this Ke])ort has been made up will show, and I would respectfully
re<iuest a ree<»mmendati<in by your Excellency that an appropriation be
j>!-oin))tly made by the Legislature for that purpose.

I will remark here, that many of the i)erson8 entered upon the Koster
of the Military Force rej)orted have not as yet received their commis-
sions, and many others have not as yet qualified according to law, espe-
cially those of the General Statf; but as some of them have been
recently commissioned. I have entered their names upon the said Eoster,
hoping that they would j)romj)tly receive their commissions and qualify.

The fees upon the military commissions should be abated, and the
Commissions delivered free of cost to all military officers, for reasons set
forth relative to the personal and pecuniary sacrifices all in commission
are required to make.

Your Excellency is well aware that the business of this office requires
at least the .seiwices of one Clerk at all times, and it is to be hoped that
the present Legislature will not overlook this important fact.

COAST DEFENCES.

The subject referrcfl to in the communication from Hon William H
Seward, Secretary of State, in relation to the coast defences of the
State, addressed to your Kxcellency, dated Auijust fourteenth, ei.rhteen
hundred and sixty-one. is of much importance, and should early en<rao-e
the attention of the Legislature.

I am not aware whether the United States Government, in askino- the
CrOvernorH of the several States to assist in the defence of their respec-tive
sea coast, contemplate a loan in money, or whether it is expected that
the Coast States should, under their'own a<,'ents. erect such works as
might bo neccs.sary. in a temjiorary but etfective manner, and at small
expense.

I am well awaro that the General Government has made extensive

plans for the defence of this coast, under very superior engineers, but

the time required to perfect these plans, and construct and tUrnish such

fortitieations, and the expense involved, must necessarily be very "reat ;

and as such fortitieations as the State could probably build are the only

ones f«»r which wo have the ability to advance the means for, must nec-

"--arily be of a temporary character. I would sui^irest that whatever is

lo for the defence of the harbor of San Francisco, (which is the prin-

il an«l most important ).oint for the State to fortify.) should be done

I he State in a temporary manner, under the joint direction of Colonel

I lliissy, of the United States Kngineer Cor])s. now on duty in this

I' partment of the United States Army — and a competent flngineer

'tinted from our State Militia, (of which we have several.) at such

; iits as may l>e selected by the Kngineers j the State to furnish the

means required for the construction of the same, and the mounting of

the necessary armament.

These works, when completed, to be garrisoned by United States
troops, or troops of the State Militia, and commanded by the General
commaiuling the Pacitic Dejiartment. United States Army.

Thr Pm'nfif fn hf I)i-f,nth,l. — I would recommend the construction of the
main water-battery in a cove nearly opposite Fort Point, the works to
bo made of eitlu'r san<l-bags or earth, and constructed in the cheapest
manner. This battery to mount twenty large sized rifled cannon, of
eight and ten inch bore.

This battery would be of vast importance in the defence of this harbor,
and with the addition of twenty or thirty guns of large calibre mounted
at Point Bonita anfl Point Lobos, at the Golden Gate, the harbor could
doubtless, with the fortitieations already built, be completely defended,
and at comparatively small cost.

If, therefore, the Leirislature should favor an appropriation for coast
defences, an estimate couhl be easily obtained from competent engineers,
and the fortifications speedily and economically built.

In conclusion of this already greatly lengthened report, it may be
mentioned, as a irratifvint; evidence of their patriotism, that many of
our military companies in different parts of the State have furnished
from their ranks many officers and men for the service of the United
States. This alacrity is especially commendable in view of the discour-
agements under which these companies have labored for several years to
keep up their ortranizations. It is to be hoped that the whole body of
the militia may hereatter have no reason to complain of Legislative
neglect, but that every means may be taken to encourage and foster a

spirit anions^ them of attachmont to tbcir adopted State, and to show
them that the representatives of the people are not unmindful of their
interests.

All of which is respectfully submitted.

Ho])ini; that the pleasant relations which have existed in all our offi-
cial intercourse may not be disturbetl or interrupted in the future,

I am, Sir, very respect tally.

Your Excellency's obedient servant,

WM. C. KIBBE,

Adjutant-General.

PROCLAISIATIONS.

State op California, Executive Department, |
Sacramento, August 12th, 1861. j

In jiurHuance of a communication from the Secretary of War, dated
^•}\y twenty-fourth, A. D. eighteen hundred and sixty-one, '• accepting,
I- three years, one regiment of infantry, and live companies of cavalry]
. guard the Overhind Mail Route from'Carson Valley to Salt Lake and
Fort Laramie." I. Jcjhn (J. Downey, Governor of the State of California,
<\n hereby call for volunteers for the above mentioned service. The
? .rces will he organized in accordance with the laws and regulations of

0 United Statt-s. and will he mustered into service at such times and
;ices an may he directed by the commanding officer of the United States

1 this coast.

JOHN G. DOWNEY,

Governor.

State of California, Executive Department,")
Sacramento, August 23d, 18G1. |

Whereas, by an additional communication from the Secretary of War,
bearing date August the fourteenth, A. D. eighteen hundred and sixty-
one, to the Executive of this State directed, the President of the United
States has called for four regiments of infantry, and one of cavalry, to
be placed at the disposal of Brigadier-General E. V. Sumner, U. S. A.,
" organized, equi]t|>ed ami mustered into service by the State of Califor-
nia, sueh call boing made in j>ursuance of the Act of Congress, passed
July the nineteenth, eighteen hundred and sixty-one, entitled an Act to
autliorize the employment of volunteers to aid in enforcing the laws,
and ])rotecting the j)ublic property."

Now. therefore. I. John G. Downey. Governor of the State of Califor-
nia, and Commander-in-Chief of the militia, etc., of the same, do hereby
authorize and call upon the citizens, as many as shall be necessary to fill
up the i)rece<ling requisition, to immediately form and organize them-
selves into "volunteer companies" in accordance with the directions and
requirements stated in sections seventeen, eighteen and nineteen, of the
statutes of this State, entitled an Act in relation to the militia of this
State, apf.roved Mav ninth, eighteen hundred and sixty-one.

Said companies will be accepted and mustered into service according
to the reception, by the Adjutant-General of the State, of the certificate
of organization, mentioned" in section eighteen of said Act, and reported
by that officer to the Commander-in-Chief. The infantry companies to
consist of any number between eighty-three and one hundred and one,
and the cavalry companies of any number between seventy-nine and
ninety-five, officers inclusive. The commissioned officers of each com-
pany'to consist of one Captain, one First Lieutenant, and one Second
Lieutenant.

24 I

The Commander-in-Chief will proceed forthwith to ori^anize the regi-
ments aforesaid out of said companies, according to their priority, and
in conformity to law. While the Act of Congress, aforesaid, requires
the "Governors of States furnit-hing volunteers, to commission the tield,
staff, and company officers, requisite," the Commander-in-Chief will, in
all cases, give preference to the officers elected i)y the n-spective com-
panies; provided, that they are competent, and pass examination before
the ^lilitary Board already ap]><)inted by the United States officer com-
manding Pacitic Division, San Francisco.

Volunteer companies already organized and commissionod, are ex-
pected to report forthwith to the Adjutant-General, tendering their
services to meet the requirements of this ])roclamation. C'ompanies
tendering their services, will expressly state whether they are infantry
or cavalry.

In witness whereof, I have set my hand, ajid caused the (Jreat Seal of
State to be affixed.

Done at Sacramento, California, this twenty-third day of August, in
the Year of Our Lord, eighteen hundred and sixty-one.

JOHN G. DOWNEY,

Governor.
Attest : JonxsoN Price, Secretarv of State.

Under the foregoing proclamations of your Excellency, calling for
troojis for the service of the I'nited States, the requisite nuinbei- ot" regi-
ments called for, designated as the First. Second, Thinl. Foiii-th, and
Fifth Infantry. California Volunteers, and the First and Second Cavalrj',
California Volunteers, have been duly organized and officered as follows.

r.dSTFJi OF CALIFORNIA VOLUNTEERS

Mr!?TERED INTO THE SERVICE OF

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COMPANY MUSTER ROLLS.

Owinj^ to the fiu-t tliat <.iir patriotie citizens who have volunteered for
!ie service of the VwwM States are natives of many States of the Union
,i.<l c(.mitries of KiiroiK". wMu-re their friends and reUitives now reside,
'id Jiidf^'in;,' that there was at least a remote possibility of their being
tiled to the scat of war. or that they mi«jrht be engaged here in actual
nflict witlj the enemies of our (Jovernment, I prepared and had printed
inpatiy muster rolls, to be filled up by captains of companies, contaiu-
1^' ndditi«)iml columns in which to insert the place of nativity, and the
:ime an<l residence of the nearest friend of each soldier. These rolls
ere distributed among the several regiments, accompanied by a request
i:it they be carefully tilled up. certified, and transmitted to" this otfice.
:y object being to possi-ss this department with inlormation which has
ready been frecpiently called for, and at the same time to be able to
.j)ort to their friends all casualties that might occur. Copies of these
rolls, hud thev been received in time, would have been attached to this
report, with tlie recommendation that they be transmittal to the Legis-
lature and jirinted. They will be reported at an early da}'. This
recommendation, although ])robably without i)recedent, Avould have
been urged for the reason that the men who ct»me forth from a community
divided in no inconsiderable degree upon the merits of the war, contain-
ing many wealthy and hitherto influential citizens, Avho have occupied
jtositions of honor and influence in our State, and who now openly de-
nounce the war and the (Jovernment. and ])erhaps are secretly conniv-
ing for the overthrow of the latter, (with their many aiders and abetters,)
have so nobly manifested tlu'ir patriotism, and, regardless of pecuniary
or personal sacrifices. (dU-red their services and their lives to their coun-
try, deserve special notice and commendation, and are at least worthy of
having their names recorded ujion a printed State document.

The .si.x rcijiments so promi)tlv organized in California are made np of
material, both of officers and men. of which any nation in the world
might be proud, and are a source of great pride to the people of the
State; and I congratulate your Kxceliency upon the prompt manner in
whi(di thev have been organized, and the judicious selection of officers
bv which thev are commande«l. It was a matter of great regret that
the gallant officers who originally commanded the First and Second
Cavalry and the F.)urth and Fifth Infantry, were not permitted to con-
tinue in coniman<l of those regiments; but this loss to the service has
been made up. it is to be hoped, by the selection of competent officers to
fill their places.

iiosTi'i: or Tin: military force

THK ST^TE OF OA^LIFORNI^,

I) !■: C E M BE R, 186 1.

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Muskctoons.„

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NoD-Commissioned Officers' Swords.

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Division

First

Second...
Second...

Second...
Second ...
Second...
Second ...
Second...
Second...
Second...

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Los Angeles ....
Los Angeles ....
Los Angeles ....

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Santa Clara

San Jos6

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San Franc
San Franc
San Franc
San Franc
■■ San Franc
San Franc
San Franc

Name of Company.

Southern Rifles

Los Angeles Greys

City Guard

Laneeros de Los Angeles

San Diego Guard

TTninn Giinrd

Co. A Ist Inf. Bat.— Union Guard..
Co. B 1st Inf. Bat.— Montir'y Guard.
Co. C 1st Inf. Bat.— McMahon Gd.
Co. D 1st Inf. Bat— Wash'n Lt Inf
Co. E 1st Inf. Bat.— Frankl'n Lt Ini
Co. A 1st Reg.— 1st Cal. Lt. Battery
f!o. B 1st Reg.— City Guard

Remarks.

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P5 3

CONSOLIDATED RETURNS OF THE STRENGTH

OK THE

BST, mm Tllllll). Fill IITII. AM) FIFTH INFAMRV. AM) FIRST A^D SECOM) CAVALRY,
CALIFORNIA VOLUNTEERS,

U P T 0 J A N r A R Y 1 , 1 S f, 2 .

These Returns are required to bo made up at this office monthly, and forwarded to the War
department, by order of the Secretary of War.

140

a
N

;»)

»o^

'«

►^

^'^

^-i

^/;

J:^

t— t

H-5

f»»

V'.

■i^

•^

"••

*5.

ftj

e«

.«.

Privates

• 3> 'A 1- 1- CC 0> 5» 0 Oi • •

I-.

Field MuHic

\ ''.'• I '.'. f* '.',', ',

Non-CommiHHionod Officers

1-1 04 : : 1-4 : rH I : : : :

>«

-."Hi

« - H

K A <=i
W

PrivateM i ^ 1, .0 .0 : ^ -, c« i~ : i

c<S

M Lj

0. 0

«1

CummiMsionod Officors ! • :'*'~' • •'^ -"^ • •

■*

FOB DUTY.

Recruits

::::::::::: lo
:::::::::::•«

•0

Privates

.1. ^>0'>)<l^>O«e>A>0 ; ;

Field Music

:c^»i»ie^es»«rMpH»« : :

Corporals

:•« •« ^ ^ >* PS ^ 00 ^ I

looco^co^ccwcoco •

Hospital Stewards

: : i : I : : : : : :

R(<)(itiu>ntal Nun-Cominis-
siunt'il Staff

«:;!::::::::

Second liieutenants

jl-H Iw* : jfHWi-I : ; I

■0

First Lieutenanta

'. r^ T-^ ', Ii-HrH '. f* r^ '. 1

Captains

: IM fH FN >-l f-l P4 f^ \f* ;

Assistant Rurgoons

- j ! ; j M M i ! i

Regimental Staff Officers...

W 1 : 1 1 ; ; ; • 1 • 1

Burgeon

'^•::il:i:;ii

Field Officers

M : : ; : 1 : I ; : : 1

»
8

•0 :

a »■!-++:

5 1

CO tt

1 1

1-H

^ : : i i : : : i : ; :

141

Bj jooffc-fMo-. ««ej-o ■

■ •::::!: = :::!

|- i : i j j i 1 i : !

i-t

: ./^ t CI — CI ?i o »^ >o : :

M r i M 1 M M

: cc « ^1 CO « »i Ok t> o : «

•A

:c4»4M»«c4MM»«M 1 :

•OS N •* •♦ ««i ^•^ ^ ^ •

•rt

" M M i M M i i

■*:::::::::::

JFH^ :^4MPHr4i-4i-4 : :

1 i H !'"'"'" j"" j i

»-

" M M : M : ! i •

c) :::::::::: :

i-h;::::::::::

M : : : : : I : : j : i

Field, Staff, and Band....
A
6
C
I)
E
F

Unassigncd

o
H

January 1, 1882.

•a

142

M h !

M M M '^

: : 1 : : to

Afra^refrnto. Tiflst Ronnrt

W «0 t~ C^ «0 -< O »^ »^ O : 05

-^ OS i- 00 t^ OS 00 cc 00 00 . >n

Total Enlisted

ost^t^t-oot~aooci— j-o

00
00

aowwwecccWMeceo • ;

Total En'i«»*'d

•Mcs : ic^-f — M(M : I

•r>

- j-^ h^^ i H i M

Commissioned Officers

: ti-i I :« : :mi-i : :

ift

IB «

Enlisted Men

: M : : :

:::::: '^

u
§1

Enlisted Men

: :r-4 ' ii-H'^i-i :.^ : : co

Commissioned Officers '"':'"!'"":■:::: '*'

Total Enlisted

^ -- N oc re CO « cc d o 1 >o
OS t^ t- t^ 00 1^ 00 oc ^- • xs

Total Commissioned

t~ecMe«5WMeoe<5e^e<5 J '.

B
-<

Privates

:w«e^Mt-< : :« | | |

Commissioned Officers

Field, Staff and Band

A
B

E
F
G
II

Unassigned

o
H

-X.

o : : : :
^ . . . .

a
§

14^

1 1 i

:::"*:::

: : :

i i- «

n «o C> M «C '^ 30 t~ M '

— CiSiocir-aat^aoss;

: 00

M « ri M <o t- 00 ^^ CI >

- I rs o

: 00

.--5 CC » » W ■* -O ■^ O «
C»ooi-t^oOt~oco>a

c . ■♦ o
: »

i-MrtP5mrOe>9«we

0 : : ro
: : n

: : M : ■* :■* ■* m ?

0 : : o»

-' j : i 1

: : : '''

1" M 1 M

: i j -

1 i- 1 1 i i !--

" I : '^

: ;- > i---^

1 : : «

— h I ! M

: : : >«

3>aOt~<OOCt»XCOX

1 M •*
• ■^ 00

oe^Ne~)r;rcr5WW

: : 00
: : M

le^ts^ci'Tf^ :n

: : »*
: : M

i ! ! i :- :

: i -^

fa
_1J

K
Unaasigned

Total

o
00

sS
3

"5c v*

« to
•S M

6 2

a 3

I 00

Si
(5 ^

o
?%

.a M

144

^
W

!?;
o

Aggregate, Last Report-

Aggregate ,

Total Enlisted Men.,

r^ a>

I-H O

4 a

O a

^- ^ ;«
=- ja 13

.*^ ^ ~"
■r ;- >>

, "- -^

•^ r'..~.
2

._o

Commi.osioncd Officers.

lecececMc^e^Mcct-

<5p;ofiK

fe C a h.* « S .1

c>i;.^oOC!:^c.io^fe->^

145

■ M 'O -t rt pj t- ec i^ M I— •^ -♦
1 - « »- e tc I- <o «~ I- I- I —

«« 0> M -*

s»

o -«• c»

»- >n t^ cc

t~ t~ <o

P5«ecptrtMccMc^rtt-

■<« OQW

S S SEES E
o = c c r c o

O o o o ::,-„■ :,^ ;

i 5 -r s

-.2 3

4 ^

0) -w

14G

5?;

H
H

I— I

.1*

lij

'Sv

fcOQ

5'=.

cS = •- .

= i :; E - 2 :

5"= - CS E c :

ST i ^ ,H — g sj s 2 d .3 «i

fe*". *i: i.e;'- — — ~ — "--^
« 'tt J ^ ^ f .i .i .i .i .i .i !5

B c — U— M— _ — __. — _,

X 1-1 X ^ c« a, ai cc ct CO ca

Aggregate .

Enlisted Men.

^ i~ « -r •«»■ i~ 1- « t^ oc 00

Commisitiuned Officers .

CS CC CC C*3 "* i-^ r— t-^ ^— !—•

"^ S J = §

•^

147

»» jwcsecrs — — -H^rt^

•A

e — • •—

5 E =■

IjeTI

:s o — — — -^ oi

M X M rt ?l 1^ O — O I- to «0

^i-ioo«o«*oco&t-t~oe/oc

o
1^

<o lecpsMrtsowwccecw

. - . ^ ?

w .^ -1 — »-. X

is S

■% 2

Pnn

148

►«i

Privates

h" i M : i M M

Non-Commissioned Offi-
cers

i 1 :- i : : : n M

b
a

a
o

Privates

Principal Musician

^ M i : M : M : i

Field Music

:e^rHe^e^c4ese^»4 : | :

Wagoners

:: ^ -:::::::: 1 <N |

Saddlers | • i • • • • • 1 • • • • |

Corporals :oooo»~t-e<3 ;eoi-i'^ : : «

SergcanU | :«'«-*'«'«-'«««n : : |«

Leader of Band

- i j j ! i i i j i i i

Band 1 S i : : : : i : : : : : 1 2 |

Hospital Stewards

''*'*''!::::::

Battalion Non-Commis-

::::::::::::

Regimental Non-Com-
missioned Staff.

•^ : i :::::::: : °^

Second Lieutenants

:,-(,-lr-tiHi^f-<f-<F^ J I I

First Lieutenants

:i^i^i-<rHfHr-(,-<rH 1 1 '.

Captains

:,-i,-H-H,-«,-l,-li-l :r-l '.<^

a»

Battalion SUff Officers...

Regimental Staff Offi-
cers

"^ M 1 >M M : M

Assistant Surgeon

- 1 j 1 i i i i i i 1 ;

Field Officers

^ :::::::::: :

a
o

•

te :

s 1

.2 o

.J ,J _■ _■ _■ _: _■ x ix X X a>

X X X X X X X . . • - -

— — — — ^ — — co^oo
<Me^elc'ic-i(M(M 3 o iJ 2 o

•Jl tf^ 'J. V. 'J. -f^ X X V.'J^rj.'Ji

S S S E i" 3 £ s a E 3 a

sjScjsiejeSsisSeSdSd

149

1 Number of Recruits Required

: r-(,-ii-ie^e^e^'0'»j< too

i' Died — Of Diseo-sp 1

Commii'sioned Officers — Transferred

c
r.

By Transfer

Enlisted in the Kceiment in 1

1 : : : : :no»-»»<co :<o

the

• ca

t-
r.
u
»:

a
e.

Aggregate, last Report

o
<o

Aggregate

Total

Enlisted

Comi

^*ccc'5ecece•^ccc*^5CI-H ...^

: Total Enlisted

::::::e4:MM::

•*

l" Total Commissioned

M : : I : : : I f^ : : :

n
• <

Enlisted Men

:::::: M :::: 1

Commissioned OflBcers.

i- «

a «

Enlisted Men

i M i M M h M

Commissioned Officers.

• • • 1

M:::::::-H:::ec

Total Enlisted

-N 0» 00 OO 00 h- «- »^ -»• O : —

Total Commissioned

o e<5 M « w « CO w es ^ : i-<

t — Privates

1" M M M M N

i-i

Privates

: N ■* •* »^ cc « ^ •>* J 1

Non-Commi!<sioned Officers

i- i-- !!!:!:!

COMPANIES.

ta 1

•3 C

2 §
.3i ^

1 B

• : : ! : : : «: tS S S o

,4_r4^^^^xa:)XXco

00 O) CO X -X X x . . - ^ .

rt — — — — ^ — ooo = o

tC t^ 1- i-^ i~ w i:- u t- t. t- t.

MI^MC^C<lC-<^' ;; 11 a i o

bo it it it it it it it it it it iO
CO X X X X X X X X X X X

a i" 1 =■ =■ =■ i" i" a s i" a

150

a
o

as
u
:^

s;
p
o

OS
H

«5

i \ \ \ HIM

Non-Commissioned offi-

• ••f-i:::::;;:

FOR DUTY.

Privatos

: e^ lo «e a^ o> e o 00 e<5 : «d

1 "O

Principal Musician

- i i 1 i j i j i : i 1

Field Music

sc^^c^c^e^dc^N : : :

: i ! i 1 "

I : :-H^ :::::::: 1 <N

Saddlers | •:: 1 :::::: i i | :

Corporals •oooot-t-ecooooecoo • '• o

Sergeants

1 :ei5.«'*ioioiOiom-^ : ; |.-i 1

rH::::::;:::r

l-H

Band

o ::::::::::: 1 o i

Hospital Stewards

" M i N N M M

1-1

Battiiliun Ncin-Couimis-
sioned Staff.

Regimcntnl N on-Com-
missioned Staff.

eo : : : : : 1 : : : : :

Second Lieutenants

a»

First Lieutenants

Battalion Staff Officers...

1.4:::::::::::

f-«

Regimental Staff Offi-

fx:::::::::::

Assifitant Surgeon

Field Officers

- i 1 j i i 1 1 i i j j

a
o
u

»•

OH — 1 — i--*--h- ++ :

2 i

.2 a

• • • : : : cc -^ cc « «o to

— — ->-"^ — CCCCOCCfcCOCO

<OcCtC«'^tC — — ^^ — ^
« ao » X X X

— ^^ — — — — ooooo

c^c^Molc^^i i; r t- i; ^ j;

cccocc;=.s«ceQ

X X X X X X X X X X X C»

Xomberof Recmits Reqair«<L.

151

:« ec e»t-= — « ■- t» :m

: — — • — nMn-r-r :x

i 1

Died — Of DU«aM ^

:::::::::::: • 1

CommbaioDed OfBeen — Trmnsfinred.

- X

Bj T

ransfer_

Enli«t«<l in the Kceiment in the '-''•'• -^^ :

last ten days ::::::

f-
r.

Aggrejfate, l«t Report.- SSSS^SSSSS j^:

AKfrep»te_ |?;g5SJ£I:2S3 jS

Total Enliated-

ComMiaaiMiMl Ofleen

: w

( ToUl Enlisted.

:::::::r::c«:f«|t,.

ToUl Comiiiu><u>ned „

tZlZllllZlZmn

<<s

Enlisted Men

::::::: so :: j e«

•0

Ci>aiiais»iuned Officers.

•q:::::::::: —

•^

c .

Enlisted Men

::;:;;■ i J- :: U

1 i i : ; i ; i ; : i \

Commiatioaed Officers.

" M M M M i M

ToUl

Enlisted-

• o o « — s^ -»> C6 M s» :«

ToUl CoamiMioocd

•0 *3 eo eo so n OS ec cc R :

la ConfiDement — PriratM-

:»-::::m: — r*::

Prirates

:«■*■» — «« «i> « M : :

■

Non-Commi«.«ioned Ofllcers

1- j-- : i : : M i

fes :

—■ .J -J —■—■—■ X X X X X 7

X X X X X X _. _. _. . _. .

X X X X X X X X X X X X

152

hi
o

o
O

£5

I-- M M M 1 M

Non-Commissioned Offi-
cers

M 1- M M N M

: ©« rfs «c o CJ ec ^ »- *- '.'*
: t- « «o w •o o •« « "* ;m

Principal Musician

•^ j M M N M M

: N rH w e< e<i M M M »-i | :

::--:::::::: 1 N

Saddlers I

:::::::::::: 1 :

Corporals joooot-i-eceooo-^ao : • Ig

Sergeants | rw-s-'-coooo^ •'"19

- j i j j i j i 1 i j i

Band 12 i : :;::::::: 12 I

Hospital Stewards

Battalion Non-Cummis-
sioned Staff

•" M M M M M i

I-<

Rci^imentul X on-Com-
missioned Staff.

«::::::::::: n

Second Lieutenants

......

j ^ j j «

Captains

:--' "--- \^ 2

Battalion Staff Officers...

j j : : j j : j I : I j

Regimental Staff Offi-

**?:::::::::: **

Assistant Snrgeon

- j j i 1 i : j 1 j i j

Field Officers

**"::::'::::::

■
H

a
o

ft:

.2 o

• : : : i i^S^SS3
,-i^.-i — — — -rxxxv:-/^

-^:35=««5r:X; ^ — i;

CC X X X V. 00

. . . . . . j-i ?i 5> fi ?) r»

t- i_ I, »- 1- 1- . .
esc^csciTici - Z Z Z Z Z

M, it tt it it it U it ii. it i iC
X X X X X X X X X X X X

153

Xumber of RccruiU Required

Uied Of Discusp 1

:!:::!:-:!::

Commissioned OflScers — Transferred

By Transfer

1 ^"
1 ^

Enli.s
the

ted in the Regiment in
la.-^t ten days

: : : : : : •"■-'=> • »

Aggregate, last Report

M s» CO 00 « t- t^ t~ >« o : -H

' S

Aggregate

CI 0» QC 30 CC l~ i~ 1~ •« o : c^

•f.

Total Enlisted

r-i»a:ooaoi^»~«^'0«D ;e-j

1-1

Com

missioned Officers

t^JCCOCCCCCOCCCOCCW .^H

•n

fi.

Total Enlisted

i i i i i !- j j- j-

Total Commissioned

^ :::::::::: :

Enlisted Men

i i j M i- i ! j i-»

e<«

Commissioned Officers..

" M M M M M 1

o ■

o -

< >

Enlisted Men

i i i : i j : i i- i j

Commissioned Officers..

" j M i M M 1 M

Total Enlisted

Total Commiiisioned

>« cc « « w w « M « M : --

In Confinement — Privates

!- : i : !-'--' : i j

y
S

Private

: i^ •* f •- « cc f 'S' : 1 -<

Non-Commissioned OflScers

i- i-- i j ! i i j i

•

o
u

ta i

•B a
§ •s'

2 «

_!) _a

E-
■<
O

^ ^ ^ — ■ — ' — ' 00 ^ v: 5 « CO

0!0a=;i:2«; — — ^--'^— '
OOCCOCCC'X X,

P- — ^^^ — o = o = = =>

. .. . . . . <M C^ CI I~l 1^1 C-J

iiiiii f 1 1 1 1 1

111 11 I.I I.I I.I.I

060000000000

154

Privates

: — — • : : M — ' CI M • i^

- i

Non-Commissioned OflB-

M h M M M M

1 )-■

1 '->
1

Privates

: »- 5C te to ,n -* o m •* : N

Principal Masiciaa ^ :::::::::: :

I-H

Field Mufic

IM^^MMMMMN— :,-i t~

; '""'

1 : I'H- :::::::: 1 <M

Saddlers | ::•::::::::: | :

Corporals 1 :«oct-*-c«:oooc-*ao • : S

Sergeants | : « -J -*■ -^ o o ^ ^ ^ :^ |o

Leader of Band

Band | 2 : i ::! = ::::: 1 2 |

Hospital Stewards '*:::::::::::

Battalion Non-Commis- :::::::::::•
sioned Staff ::::::::::::

Regimental \on-Com-
missione<l Staff

c- :::::::::: :

Second Lieutenants

i--------- i i

First Lieutenants

Captains

i--— --- :-- :-

Battalion Staff Officers...

Regimental SUff Offi-
cers

M :::::::::: :

ff»

Assistant Surgeon

-"!:!!:!!!!!:

Field Officers

M :::::::::: :

•

4 \

1 .1

? 1
.i a

r: rr r ;r r; -t M M M M e-j m
i ^ i i 5 - '^ *^ '^ ^ S X

'- '- "^ '"- '"- '-- _r — — -^ — ^

C^ C) ?J N Cl I-)

occcco-?-?-^-:-^-^

Sr, Sc tic tt 5c tt tc ic tc ti. & to

.£ .i £ .£ S i H .i '^ '' ^ S
K X X X X X X X X X X X

155

1 Number of Recruits Required

1-1 ^ .— M M M -ii< « : : «c

Died— Of Disc

i j i i j i i i j I j i

Commissiuned Officers — Transferred

::::::i-i:::::

By T

ransfcr

:::::.::::: f-i

« '^•

- a

Enlist
la.'^t

ed in the Regiment in the

: : : : :eqtoe<«-^ ; :o

li i.

1 K

e
■<

Aggregate, last Report

e^ Si er. 00 w »-. t- 1^ o o : es

Aggregate

Total Enlisted

^ a> 90 oo cc w t> t~ •» e : e<5

, K

Coma

t- M w w ec « w ec w CO : : "O

|l **

Total Enlisted

::::::o:iM^:cc ^

Total Cummisa

e^ ::::::: :^ : : «

:::::::: : t

ABSENT.

Enlisted Men

:i:i:io:i-i::c<;

Commissionctt Officers

B -J

H -

Enlisted Men

: : : M M M'^ M

i-c

Commissione<l Officers "^ = j j j j • • • • j • °^

Total Enlisted

•oe<5ec^^P5!<^eocoe-^w :i-i e-i

; CO

In Confinement — Privatea

:i.N : : : '.vt '. r* n '• '•

CO
50

o
n

Priva

tes

:*«-*-»> ^ « CO « lo « I :

Non-Commissioned Officers

1^ 1^^ 1 1^ 1 1 1 :

o
1

is :

£ :

i»<s;wCS^- — — — -=

2 o

DATE.

ocoOQCccocccac <X)C0 2c«.a)

M W Cl M Ol IM ^ .. . ^ .

u I. I. t. ;- u. b b C' iT' C' C*

.g^J^^J S S 2 2 2 S

OOOOOOl-5l-5l-:>-5P-5l-3

cc X x X cc '■^ 5^ X X X x CO

»3

.S'S
o <i

■Sx

156

RETURNS OF THE STRENGTH

Of the Fifth Regiment Infantry, California Volunteers, at Camp Unioi
Colonel George W. Bowie, Comm,anding.

CAPTAINS.

-3
P
S
o'

•

: O
: o
: ."

TS n
c N
3.5.

: o

o
3

G >!

4
81
84
79
71
87
81
99
62
66
47

A
B

E
F
C,
11
1
K

82
85

17
14
19
27
11
17
Ex's 1
36
32
61

C. A. Smith

J. P. Thnvir

82
68
85
83
86
53
41

5
1
16
10
28
47

William Fruiu-h

S. P. Ford

J. 11. Whilloik

H. L. Hinds

S. Sopur

J. Tuttlc

T. T. Tidball*

Total

761

(20t) 669 ]

112

224 '

Dec. 20.
4
80
82
79
81
92
82
100
68
79
60

Joseph Smith

1
2

18
16
19
17
6

16
Ex's 2
30
19
38

C. A. Smith

J. S. Thttver

William Frt'iich

87
81
99
62
66
47

10 1

S. P. F..r<l

5
1
1
6
1.1
13

J. II. Whitli.ik

H. L. Hinds

S. Soper

J. Tattle

T. T. Tidball

807

761

179

Jan. 1.
4

SO
82
79
81
92
82

ino

68
79
60

Joseph Smith

A
B
C
D
E
F
G
II
I
K

80
80

18
18
19
17
6
16

C. A. Smith

J. S. Thaver

S. P. Ford

J. H. Whitlock

H. L. Hiuds

2
"l"

S. Sopor

69
86
59

1
7

J. Tut tie

Total

807

810

174

■I

* Detached since 20th instant : joined camp.

■)" These figures are the number of oflBcers. which should not have been included in the footing of
669, which, less 20, would properly stand 649.

I hereby certify the above to be a true copy of the Return of the Fifth Infantry, California Volun-
teers, for the dates as above, and the originals have been duly transmitted to the Secretary of War.

Jaxcary 15, 1862.

WM. C. KIBBE,

Adjutant-General State of California.

157

REPORT OF THE STRENGTH

"if iht First Rijiment of Cavalry, CaUfornia Volunteers, fur the Month of

Decemhtr, 1861.

COM I- AMES.

i'
s.

t
c

' > nn<l Stiifr

5
3

5
88

10
91

'tupauv B ...

xnpanT K

Total

437

457

I hcrt'liv ccrtifv that the above is a tnio copv of the Return of the First Regiment of Cavalry,

iliforuia Voluutccrs, for the date aa above.

WM. C. KIBRE.

Vdju

tant-C

ienc

ral St

ate of Cal

ifomia.

t— t

o
o

&^
O

1«8

Total Commissioned.

Subalterns

Captains ,

Reffimental StaflF OflScers "^

Regimental Field Officers

Medical Department | '"

Quartirmaster's Depart- „
ment

ca o

Enlisted Men.

Total .

Hands Civil Authority.

Without Leave.

With Leave.

!>) C<1 C~J 1— ( I CO

^^^^ I

C^ C-> lO M

C". e-) n^ . C-) c^ lo c^

oi i-i i-H : e^ : iM

Total.

In Arrest or Confinement |

i*^ : :

;;»-.(;;

Sick 1

: -o M o

; <-^ oo 00 ^

On Extra or Daily Duty. |

: t- : -*

: ■* -t -t rt

For Dutv.

Total

Sick .

For Dutv.

t^ M ffC M

M M « N

Nunber of Companies,

;-He^eC"*'05Ct-cc

K 5

H -

■^saQCjKi-HWH;?^

•

,^'

r/i

-1

>> ;»i >i b ^ b h- r^- >>

occococoo

159

Aggregate ,

I-H CO -^ .-H

Deserted .

From Disease — Died.

Trausferrred

For Disability ,

Resigned, Transferred, Discharged, etc. | • •
Aggregate 12"^'

By Transfer.

Enlisted in the Regiment

Commissioned Officers.

r i :

■+ r-l -^ CO

O^^ ^^

\'^

>c e^ pj •*

"♦ w 00 ■*

Aggregate l^aat Monthly Return

Aggregate

Total Enlisted.

Wagoners and Saddlers.,

Privates.

Artifiuors, Furriers, and
Blacksmiths

e^MC4 .e^woiw

CO <~ 1-- 1- ^- «c o

c4e^C4 :e4e4e4C4

Musicians.

CM e^ .-■ M

Corporals

Sergeants .

Hospital Stewards.

Non-Commissioned SUiff
of Regiment

»-i M I— r1

» CC % Xi

CO CO CO «

Numlier of Companies.

I i--

:i->e^e<;'»'rf»co»-oo

■raO'j:::;^;^^:;^

en X X en T. « CO 39 n

I--

,0^

—

i..

—

•::!

ooo

'■^'O'^

.4_j

,._»

4.J

.«_•

4->

—

;_:

;(

-1

bij

=11

c^eips

;::;

C:^

Sic:;

sacGcsGac!
oocoocooo

-. tr e- :S L. 5 r-^ *-. ^ ^

3— - = ';;>, t:~

b . = * = S i. J,

.,-bOi --^ b 5 So

*i • n; CO .

B .3 _Q ^ .5 b .

w— a « : ii —

o . o :? - •■J ; -'- -' -3

.C-'-S'-Fbb^

S S ~ Q "* -J 'E - ■"

- b - b ■<» £ £2
b£.'H.-3 "b S •• 5 ~ '3 £

rf, •-'? J1«S 3 = 0

.S-. ° .X " ,).■- goo

o ^

.Bcn

11
.•so
S-i

E 9

5 / < ■5)=! i; ^ <rM i

• • cs K a- i i^ 45 •£ .

crj p ^ c aS b -3

•r; us
b>-'

•? 3

160

O
CO

Number of Companies

M ' - s i i

1 i

-J

Number of Battalions | <^ j \ \ \ ': \ '^

Number of Regiments | ^ : : : i : | '"'

Number of Brigades | ^ : : i ": i | 2

Number of Divisions | '^ | : : : i | **

: : ■ '— o <-i

; : : o o o

: : : o o co

Aggregate : : : «s 'S ct

Total Non-Commissioned
Officers, JIusieians, Ar-
tificers, and Privates

Total Commissioned Offi-

Privates

1 • c ■-; o

1 : cs cc o :
; c>t ^ : :

1 : : « : : : i « 1

1 . . ... 1 1

Corporals

CO Tf o : •
: 1-1 00 : :
: =^ : :

o
o

; o >o o • •

: M cc : :

: <^ : :

Quartermasters' Sergeants., j « ■* : : : • | *~ |

1 —:'-': : i m 1

Lieutenants

; M e<5 O : :

: e^ : :

c^ 't 1-1 o : : 1 00 1

Surgeons* Mates | 2 i : " : : i m |

00 : : M : ; i —

Paymasters

CO : : : ; : 1 2S

Quartermasters \ c^ : : " : : 1 m

■o ; : eo : : 1 00

Lieutenant-Colonels

to ; : es : : 1 00

Colonels 1 '^ S2 i " i -in;

Brigade Quartermasters | ^ ; ; j ; : | 2

o : : : : :

Aides-de-Camp | J:; • • \ [ : | Jc

Quartermasters-General | ^ • • • • : | '"'

Inspectors-General | '"' • • ■ • • | '"'

I-' : : ■ : '{<->[

1 1

Brifjadier-Generals \ f^ ] ] • j • | S

Major-Generals | - : : : : : | **

General Staff

Artillery

Riflemen (

•<

)
)

161

Haversacks

Sword Scahbnrds
and Bclta

Swords.

Ilorscman's Pistols..

Rifle;

Bayonet Scabbards ^
and Belts •

Cartridge Boxes and
Belts

Musketfi.

Sets of Harness.

Tumlirils, or Pow-
<ler Carts

Ammunition Boxes..

Trail Handspikes,..

Bricolcs and Drag
Ropes

Sponges and Ram-
mers

Iron Six-Pounders..

Brass Howitzers— „
Twelve- Pounders.

Brass Six-Pounders.

APPENDIX.

THE WAR DEBT OF THE STATE.

State of CALiF(tRNiA. Offick of Adjutant-Okneral.
Sacrumento, December 20th, 18(51.

ohis Excelleney.

.loii.N G. Downey,

fiovernor of Ciilifornia :

— 1 have tlu- honor to repoi't, tliat jdirsiiaiit to your Excellency's
•tions given on the fourth day of May, ei^^hteen hundred and sixty,

Sir:-
struci
procured copies of all the vouchers and ])apers relating in any manner

the War Deht of this State, and proceeded, via the Overland route,
javing San Francisco on the seventh of May, eighteen hundred and
rty,) to Wasliiiigton City, D. C. where I arrived on the fourth of June
lowing.

I was immediately introduced to the members of the Committee on

■litary Affairs, of the House of Kepresentatives. of which the Hon.

snjamin Stanton, of Ohio, was Chairman, and called the attention of

e Committee to the business entrusted to my charge by the State of

lifornia. Through the influence of our Representatives in Congress,

3 consent of the Committee to consider the business at once was ob-

■ned. they agreeing to hold two sessions per week for the purpose of

fatnining the vouchers and papers, and hearing such statements and

fplanations relative to the various expeditions against the Indians, the

lymont of which constituted one claim — the necessity of State inter-

ience for the protection of the lives and property of our frontier citi-

zis, and particularly the vouchers and papers relating to the Debt, as I

■^is able to give.

[ found the feeling prevalent, however, not only with the members
cthis Committee, (who had so kindly agreed to give prompt consid-
Pition to the merits of our claim,) and Congressmen generally, but
' n with the members of our own delegation, who entei-ed upon the

i"k with much energy and zeal, especially Messrs. Latham and Burch —

tit even if the justice of the claim was made apparent to all, yet, con-

■^ <n"ing the state of the country and the condition of its depleted Treas-

no appropriations "would be made, save and excepting those which

166

were actually necessary to keep the wheels of government in motion,
with small amounts to continue work on fortifications already com-
menced ; that, in other words, until the political skies be^an to brighten,
and the prospects of the ])erpetuation of the Union were better, not a
dollar would be voted for the payment of old debts, and particularly of
this character.

My attention was called also, on every hand, to the large apj)ropria-
tion already made to (^ilifornia for like ])urposes, and to the extravagant
prices ])aid for services and supplies of former expeditions. This, liow-
ever, did not dishearten me in the least, for I found that although such
impressions generally prevailed among the Members in t'ongress. yet our
own were ready to use every exertion to the attainment of this appro-
priation, even without hope of success; and I worked on.

Failing to satisfy the entire Committee of the justness of our claim
and the necessity of its immediate payment, (although a majority were
ready to report in its favor,) for the purpose of securing the unanimous
indorsement and support of the Committee — without which the bill, I
greatly feared, would never pass — at my instance the papers were refer-
red to the Third Auditor of the Treasury for a decision relative to the
merits of our claim and the provisions of the bill before the Committee,
making the ajjjtropriation, for I felt satisfied that 1 could explain the
whole matter to his entire satisfaction, and probably obtain his indorse-
ment of the claim.

The papers and vouchers were consequently authorized to be taken
before the Hon. R. J. Atkinson. Third Auditor of the Treasury, with the
bill, and after spending some days in the explanation of the several ex-
peditions, and vouehers relative thereto. Mr. Atkinson rej)lied to the let-
ter of the Committee favorably to the justice of our claim. I was thus
enableil not only to obtain the unanimous rej)ort of the Committee in favor
of our bill, the active and zealous sup])ort of its Chairman and others of,
its members, in its advocacy upon the floor of the House, but the positive
and earnest suj>port of all the Committee.

This ])oint. however. I did not succeed in gaining until a few days priori
to the close of the session, when there was no hope of its consideratioi
even, except by a vote of two thirds, which could not be secured upoi
any bill similarly situated, owing to the quantity of unfinished businese
whieh had accumulated upon the speaker's desk. I was compelled, there
fore, to be content with a simple report in favor of the bill, recommend-
ing the amount named in the bill, four hundred and fift}' thousand dollars,
to be reduced to four hundred thousand dollars, which it was found would]
cover tlie entire indebtedness of the expeditions referred to, allowingi
only army j)ay to our men. beyond which there was not a single membei
of the Committee willing to vote a dollar.
v'The whole matter was then referred to the Committee of the "Whole]
on the state of the Union, to come up in its order at the opening of
Congress, in the following December. Feeling still sanguine. howeverJ
that the bill could be passed. I induced Messrs. Burch and Scott to unite^
in a joint letter to 3-our Excellency, asking for me a further leave of ab-
sence from the State, and while in New York, preparing to return, 11
received your Excellencj-'s order, granting further leave, dated Sacra-J
mento. July twenty-ninth, eighteen hundred and sixty.

I availed myself during the recess of Congress, of every opportunity
to promote the success of our bill, by writing to and visiting members of
Congress, and returned to Washington early in November, to finish uj
the work, the accomplishment of which, now greatly endangered by thel

167

new elements of political discord which were to be dragged into Con-
gress, or rather the maturing an<l bringing to the light of days of old,
elements which had only been hidden from view for an opportunity, by
:i more favorabK- light, in which to expose and exhibit the enormity of
tl.rir nroporticms. Having from all our members of Congress, and especi-
ally Messrs. Latham and Bureh. their constant and most efficient efforts
in its behalf, I persevered, and was at last gratified with the passage of
the bill, appropriating sutticient to liquidate all the claims of the expedi-
li'-ns named in the bill, amounting to four Inmdred thousand dollars, and
it- approval by the President on the second of March, the last diiy of
t lu" session.

The State and her citizt-ns then, have secured, by the passage of this

'.in Cnited States six per cent, bonds, the sum of four hundred thou-

■l (bdlars. and bounty lands to the value of two hundred thousand dol-

- more.

riiough not specially charged with the subject, there being a large

il. ticiency in the appropriation by Congress for the redemption of bonds

and interest issued by this State, for tlie payment of ex])enses incurred

ill >u|i|tresHing Indian hostilities in the years eighteen hundred and fifty-

and eighteen hundred ami fifty-two. I submitted a statement of

li deficency. and a bill approjiriating the requisite amount, two hun-
1 and nine thousand sev«'n hun<lred an<l fifty-one dollars and scventy-

iit cents, to Senator liatham, by wh(»m it was introduced into the
Senate, and upon whose moti(»n it was referred to the Committee on Mili-
tary Affairs, of which he was then a member. That Committee reported
it to the Senate in the shape of an amendment to an approjiriation bill
then pending, but I regret to say, that owing to rumors which were in
free circulation relative to the manner in which a large proportion of the
detached coupons were obtained by parties then holding them, and the
magnitu<le of t'e original appr(»priati(»n, that the Senate refused by a
decided vote to sustain the amendment. an<l it was lost.

I also had the honor to re|»rescnt to the War Department the meagre
su]»j)ly of arms issued by the Federal (lovernment to the State of Califor-
nia, and to solicit the issuing of our back quotas for the years eighteen
hundred and titty, eighteen hundred and fifty-one, and eighteen hundred
and fifty-two, claimed to be e(|uitabl3' due. At my instance a letter was
addressed to the Secretary of War. upon this subject, by the Hon. J. C.
Burch, and the following reply received, viz :

Ordnance Office, )
Washington, Feb. 27, 1861. J
Hon. J. IToU, Srcretnry <>f War:

SiH : — In answer to the letter of the Hon. J. C. Burch, of the twenty-
sixth inst., referred to this office for a report, I have the honor to state,
that prior to the law of eighteen hundred and fifty-five, the apportion-
ment of arms to the several States and Territories was made (conforma-
bly with the existing laws and regulations.) according to the official re-
turns of the effective militia of the States and Territories respectively, as
required by the first section of the Act of March second, eighteen hun-
dred and three ; and. if any of the States or Territories were remiss in
thus making their regular returns, it was their own loss; while others, as
a necessary consequence, were benefited thereby; and as the State of
California made no returns for the years eighteen hundred and fifty and

1G8

eighteen hundred and fift^-one, or for any previous year, no arms wore
of course as.sii^ncd to her for th<jse years. The neeessit}' of making regu-
lar annual returns was specially impressed on Governors Burnett and
John Biglerin letters from this oftice of March eighteenth, eighteen hun-
dred and tift3'-one, and ^fay third, eighteen hundred and tifty-three,
copies of which are herewith inclosed. * * *

Ilespect fully, your obedient servant.

A. K. crak;.

ColoMi'l of ( )i-(liian(;e.

I then madt' ajtpiication to the Committees on Miiitai-y Atfairs of l>otli
Houses of L'<»ngress. and was informoil tiiat many States were in tiie
same dilemma, liaving failed to comply with tho laws of Congress in this
particular; hati forfeited all claim to several annual quf)tas, and, owing to
the fact that the Secretary of War, Fh)yd, had taken the responsihility
ol dibtrihuting the arms of the Government ])rinci])ally among the
southern forts and arsenals, that a hill or resolution appropriating arms
to California, or any other State, would meet with no favor from eitluM*
Committee. Finding, therefore, that several memliers of these eommit-
tees were unswerving in this determination, and that there was an early
]trospeet of a change in theii" memhers. 1 deterred the matter until these
changes were made, which ivsulted extremely fav(»raiile to tin- measure,
iVom the fact that our able Senator. Mi-. Latham, wa^* named as one of
the Senate Committee.

This done, 1 prepared a resolution relative to the matter of arms,
which Ml-. liatham introduced and which was referred to the appro])riate
Committee, and finally succeeded in ])assiiig tlii-ough the Committee, and
the Senate. It was transmitted to tlie House under the auspices of Mr.
Burch ; taken up and passed on the last day of the session, without
reference to the Committee.

I am now in coi-respcjndence with the Secretary of Wai". and Chief-of-
Ordnance. relative to an additional twelve hundred muskets which we
claim, and am encouraged in the belief that this quantity additional will
soon be issued to the State.

This resolution, then, makes an absolute aj)propriation of some two
thousand five hundred muskets, in value, which have been drawn in such
arms as were most needed, and has enable<l the State to eipiip thirty-two
volunteer companies of our organized militia with the best arms that are
made; and I am pleased to say. the companies, to whom they were
issued, are, in many cases, making good progress in drill, and will soon
be ])rcpared for etticicnt service.

Fiiiiling that no allowance would be made by Congress for spoliations
by Indians, until the Government had investigated the nature of such
claims through its own agents, and for the purpose of having this large
class of claims, held by our frontier citizens, properly examined, I drew
up an amendment to a bill then pending before Congress, of a similar
character, directing the ap])ointment of a Commissi(jn of two persons,
to be named by the President, to examine into and report upon said
claims, preferred by our citizens for losses sustained in this manner, and
making the necessary appro))riation for the ex])enses of such Commis-
sion. The amendment was agreed to by the Committee to whom it was

169

[• referred, but the oriixinul l)ill was never ivuched. A bill of this char-
acter could be pusse.l wiibout (iirtieulty, and the Legislature should at
once nieiuorialize Congress upon the subject.

The result of my mission, then, may be summed up thus, or rather,
what was accomiilished by Congress for our State, while I was in Wash-
ington, viz: an appn»priation. in six per cent. United States Bonds, for
the payment of our late War Debt, of four hundred thousand dollars;
bounty lands, in value, .'iay two hundred thousand dollars; approj)riation
"t arms, in value, say rifty thousand dollars. Total, six hundred and
litty thousand tlollars.

No ap]»n»priation having been made to jiay any portion of m^' cx-
jM-n-ses while absent ujxin this mission, I respectfidly request your Excel-
l.ticy to <-all itarticular attention of the Legislature to this matter, and
t'> make such recommendations as you may deem just and proper.

I may be allowed to suggest here, in conclusion, that there was not
the least necessity of appointing a Commission to settle this debt, of
more than one jierson ; for. the a])i)ropriation having been made, all that
was necessary for the Slate to do was to present the original vouchers,
:uid the settlement would have been made. Had 1 have had the original,
instead of the duplii-ate vouchers and |>apers, the whole mattei', I am
confident, would liave been settled in one month.

1 have the ln»n<ir to \n\ very respeetfully.

Your obedient servant,

WM. C. KIBBP],

Adjutant -(ieneral State of California.

INVESTIGATION

OF THE CAUSES AND CIRCUMSTANCES OF THE LOSS OP ARMS AND ACCOUTRE-
MENTS ISSUED BY THE STATE TO THE FOREST RIFLES, TRINITY
GUARD. MOUNTAIN BLUES, AND OROVILLE GUARD, (ORIGINAL.)

The following Special Order wiis issued by this Department to Major
1). 10. Uun^ertord, Captain C. li. Crowninnhield, Captain John P. Kava-
nauLjlj, and Captain A. II. Connelly, requiring a Board of Examination
to inquire into the causes and circumstances of the loss of arms and ac-
coutrements issued I»y the State to the follo\vin<^ named companies, to
wit: Forest Rifles, Trinity (iuunl. Mountain Blues, and Oroville Guard,
(original.)

SPECIAL ORDER.

Adjutant-General's Office, \

Sacramento, March Ist, 1860. j

It having been represented to me that the arms and accoutrements
issued by me for the Slate of California to Captain , for

the use of the Forest Rifles, Trinity Guard, Mountain Blues, and Oroville
Guard, (original.) Volunteer Companies of the Brigade, Divi-

sion, were "burned and destroyed by fire, you are therefore ordered to
detail a Board of Examination, consisting of five Commissioned Officers,
to examine into the causes and circumstances under which the said arms
were destroyed, and whether the officers of the said companies used due
precaution to preserve and protect the said property of the State.

WM. C. KIBBE,
Adjutant-General State of California.

The following reports were received, to wit :

172
Proceedings of the Board of Examination.

Forest City, May 1st, 1860.

A Board of Examination was held in compliance with the following
order, viz. :

Headquarters Sierra Battalion California Militia. Downieville, April 2d,
1860. Sjirridl Order. — In compliance witli Si>ecial Order, dated March
first, eighteen iuindre<l and sixty, from Headquarters California Militia,
a Board of Examination is herehy ai)pointed. to meet at Forest City, (m
the tenth day of April, or as soon tiiereafter as ])racticaltle. to examine
into the causes and circumstances un<ler which the arms and accoutre-
ments issued l)\- the State of California to Cai>tain Alonzo Piatt, for the
use of the Forest Rifles, a Volunteer ('omjtany of the Sierra Battalion,
Second Brigade. Fourth Division California Militia, were destroyed, and
whether the officers of said comi)any used <lue precaution to protect the
said j)roperty of the State. Keturn of the proceedings of said Board of
Examination will Ik* forwarded to the Adjutant's <»ftice as soon as practi-
cahle.

Ihtail <f Iii>nrd : Captain John E. Ager, President; Captain A. H.
Breed. Lieutenant C. M. Brown. Surgeon E. G. lirvant. Lieutenant J. H.
Hall. Recorder.

By order. D. E. nrXCEBF01>.D,

Major Commanding Sierra Battalion.
W. E. riiEssY, Adjutant.

Ri jxirt.

We. the undersigned. meml»ers of a H(»ard of Kxamination api)ointed
to inquii-e into the circumstaiwH-s of tlu' destruction of the arms and ac-
coutrements in the use of the Forest Rifles, do find that said arms and
accoutrements were destroyed hy fire in tiie town of Forest City, on the
night of the tenth of April, eighteen hundred and fifty-eight, and that
the oflScers and members of said Forest liiflcs are fully exonerated from
all blame. We further find that said officers used due precaution to pre-
vent such destruction, and that they were destroyed by unavoidable cir-
cumstances.

THOMAS BAPER. Second Lieutenant,
.lollX H. HALL. First Lieutenant,
C. H. PATCH IN. Com'd.
E. G. BUY A NT. Surgeon.
D. E. HUNGERFORD, Major Sierra Battalion.

Proceedings of tJi^ Board of Examination rrhitive to the dettruction of arms and
accoutrements of the Trinity Guard.

Armory of Union Guard.

Weaverville, November 9th, 1861
To Captain C. B. Crouminshield :

}

The undersigned Board of Examination, a])p</mtcd by your order, and
in accordance with a Special Order of Adjutant-General William C.
Kibbe, dated " Office Adjutant-General, Sacramento, October thirtieth,

173

eighteen hundred and sixty-one," beg leave to report to you the following
as the result <»f the examination:

First.— That the anus of the Trinity Guard. Captain E. A. Eowe, were
stored in a proper plaee in tlie village'uf Weaverville.

Second.— Tiiat on or about the tilth day of December, eighteen hundred
and titty-tive. a tire l)ruke out in the St. Charles Hotel, two doors below
the armory, and, from the rapid progress of the tire, every sjKxies of
jirojierty contained in the armory, as well as the buildings next above and
l»el«»w, were destroyed by the tire, and in this tire all the arms and accou-
trements of the Trinity (luard were destroyed; and

Tliird. — That no precaution or exertion was spared by the oflScers and
memhers of the Trinity Guard, to preserve and protect the said property
of the State. f f J

All of which i.s roBpectfully submitted.

E. J. CURTIS, Second Lieutenant,
It. G. STUAKT, First Sergeant,
11. CLIFFORD, Corporal.

Finding of tJif Board of Exam innt ion n/ntirr to the destruction vf arms issued

to the Mountain lilacs.

Pursuant to the above onler, wo. the undersigned, being detailed as a
Hoard <»f Examination to incpiire into the causes antl circumstances under
A hich the arms and accoutrements issued to the Mountain Blues, Captain
1 >. (i. Lake. March second, eigiiteeii hundre<l and fifty-six. were destroyed,
;ind whether the otHcei-s ot" saitl Mountain lilues used due ])recaution to
pi-otect and preserve the said jirojierty of the State, having investigated
^aid matter, do report as follows, to wit :

That said arms and at loutrements were destroyed by fire on the second
■ iav of February. A. D. eighteen hundred and titty-seven.

'riiat said arms, at the time of their destruction, were in the care of
Captain T. P. Slade.

That the building in wbidi said arms were kept was situated in the
town of Iowa Hill, and said town was consumed by fire at a late hour of
the night of February second, eighteen hundred and fifty-.seven. The
flames spread very rajudly. and soon enveloped the whole town, and but
very little pro])erty was "saved ; many did not have time to save their
clothing. Caj)tain'siade. who was .Justice of the Peace at that time, did
not have time to save the docket and papers in his office.

That the (.fficersof said Mountain Blues used as much care and diligence
for the protection and preservation of the said arms and accoutrements
us a prudent man would have used for the protection of his own property.

All of which is respectfully submitted.

^ W. D. LAWRENCE,

J. B. CURRIER,
J. B. YARNUM.

174

Finding of the Board of Examination relative to the destruction of arms issued
to the original Oroville Guard.

Armory Oroville Guard,
December 2l8t,

1861

The undcrsi_£cned, appointed a Board of Examination in regard to Special
Order from Adjutunt-CJcneral's Office, November twenty-fifth, woukl state
that the}' met this day and examined witnesses in rehition to the facts,
and they accordingly find it to be true and correct —

That the arms and accoutrements issued to the Oroville Guard in eight-
een hundred and fifty-seven, were burned and destroyed by tire on the
night of the fifth of July, eighteen hundred and fifty-eight ; and they
would also state that it was impossible for the officers or members of
said (iuanl to have rescued any jxjrtion of said arms or accoutrements, as
the fire originated in the building adjoining the armor}', and both being
of wood, were consumed in a few minutes.

The Hoard would further state, that the Oroville Guard, in question,
have long ceased to exist as a body, and that the present Oroville Guard
are in no wise connected with them.

All of which is respectfully submitted.

A. H. CONNELLY, Captain,

H. B. HUNT. Lieutenant,

D. C. BUKLINGAME, Lieutenant.

ANNUAL REPOllT

'STATE PI {1 SOX DIRECTORS,

FOR

THE YE^VJI 18G1.

BENJ. P. AVERY STATE PRINTER.

ANNUAL RlilPOKT

Office Board of State Prison Directors, )
February Ist, 1862. J

To tht: Ilunoraftlf On- Let/iaiulun: of the Slate of California :

In C'omplianoo witli section nine, of the Act of April twenty-fourth,
ei-^hteen liuii<lre(J iiinl rttty-ei<xht, for the government of the State Pi-ison
Convicts. an<l to pruviik- tor the location of u Brunch Prison, we have
tlic hf)nor to rc])ort to your honorubk' body the condition of the Prison
and convicts, and the transactions of the Institution, from the first day
of January, eighteen hundri'd and sixty-one, to the eighteenth day of
January, eighteen hundred ami sixty-two, at which date we transferred
tlie State Prison, convicts, and State Prison property, to our successors
in otiice.

PAliLO I)E LA GUEERA,
JOHNSON PBICE,
JOHN G. DOWNEY,

State Prison Directors.

R E T^ O 11 T.

h urtonls us siitisfuction to ho aide to state that during the twelve
iii.inths and eighteen days, «inee the date of our last Annual Report, the
comlition of the eonviits has been much improved. They have been
abundantly su])pliod with good, wholesome food, and comfortably clad.
TluTc has been scarcely any si«-kness among the convicts, and but twenty-
si.N escapes «luring the period just mentioned.

Tinier otir directions, the Warden in charge of the Prison has erected
two vabnible two story brick buildings for workshops, in which are now
emj)loyed the convicts at usrtui and proritable ])ursuits. and the process
of making the I'rison suppoi't it.>>clf has been fairly inaugurated. This
has all been accomplished out of the scanty a})propriation made for the
sujiport of the Prison an<l pay of Directors' salaries.

At our request, lieuben Clark, Ksq., the architect of the State Capitol
building, visited the Prison, and estimated the value of the improve-
ments made, and matci'ial furnished for the same. As this gentleman is
in the employ of the State, and maintains a reputation for ability and
integrity, his estimate of the value of the improvements will, we trust,
be received as satisfactory and coi»clusive.

We propose to set forth, in jtlain and succinct terras, the transactions
of the Institution, and the Keport of the Warden will account, in detail,
for the receipt and expenditures to and from every source.

Amount of Cash drawn from Treasury for the support of
the Prison, (exclusive of Directors' Salaries,) from
January 1, 1861, to January 18, 1862 — 12 months, 18

Jayf*

Add amount of outstanding indebtedness, January 18, 18G2

Deduct Estimate of Reuben Clark, of buildings erected.

846,730 22
9,223 24

855,953 46
14,068 00

641,885 46

This makes the actual cost for the support and maintehancc of the
Prison, for the period of twelve and three-fifths months, I'orty-one
thousand eight hundred and eighty-five dolhirs and forty-six cents,
($41,885 40,) or three thousand three hundred and twenty-four dollars
per month. (8^,824 00.)

This could have been materially reduced if the Directors had the
means at their disposal to enable the Warden to make his purchases for
cash, but there l>eing no money in the General Fund from June until Jan-i
uary. he was sul>jected to buy his su]»itlies at a disadvantage. "We recom-
mend that immediate means be providrd to enable the Warden to settle
up the amount of outstanding indebtedness. We trust the foregoing
statement will satisfy your honorable bodj' that the affairs of the Insti-
tution have been well managed, and that it shows a favorable comparison
with its management in former years.

Exhibit A — Shows the amount drawn by the Directors from the
ait])ropriations for the support of the Prison — twelfth and thirteenth
fiscal years.

Exhibit li — Is a statement of the cost to the State for the support of
the State Prison, from January first, eighteen hundred and sixty-one, to
January eighteenth, eighteen hundred and sixty-two — twelvemonths
eighteen days.

Exhibit C — Estimate of Reuben Clark, architeet, of the improvemen
made at the Pri.son by order of the Board of Directors, and since their
last report.

Exhibits D, E, F, (i, II — Are copies of the existing contracts for State
Prison labor. They are subject to all future legislation of your honor-
able body, and your attention is respectfully called to their provisions
and conditions.

Eespectfully submitted.

PABLO DE LA GUERRA,
JOIIXSON PRICE,
JOHN (i. DOWNEY,

State Prison Directors.

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[ C ]

ESTIMATE.

Sackamknto. December 30th, 1862.
To the Rftnrd of Stafe Prison Dircctom :

Gkntlkmk.n : — In accordance with your instructions, I have made a
wneral estimate of the materials and labor, furnished and employed, in
luildinj^ the machine shops within the State Prison walls, at San Quentin,
under your directions, a^ follows :

485,000 Bricks laid in the walls, including wand and

lal><»r. at

Excava t i n;^ and gra< 1 i n ;♦

Carpenter's work to dati'

AlakiiiLj bf>lts and anchors

liuihling now oceuj>i*'d by sewing machines, as
follows :

Kxcavating and grading '

iL'O.diMt Hrieks lai<l. at..

]•'». .')(«) teet (»f Lumber, at

S..")(MI ivvi of Flooring, at

40 Windows, complete, at

8 Doorx, complete, at

07 s(juares of Shingle Hoof, at

104 feet of Tin (Jutter. at

Anchors and Hardware

Cellar and Entrance Stej)s

Total.

815 50

18 00
28 00
38 00
12 00
12 00
12 00
50

$7,440 00

350 00

1,250 00

'?7.^ 00

Z(0

150 00
2,160 00
458 00
328 00
480 00

36 00
804 00

52 00
225 00

65 00

$14,068 00

Very respectfully, your obedient servant,

REUBEN CLARK.

[ T> ]

AN ARTICLE OF AGREEMENT

Made and ontrred into on llii> the eii^htli <lay of May. A. D. eii^hteon
hundied and sixty-one, l>y and between the State of California, party
of the tii-st jiart, represented l>y Jolm (1. Downey, (iovernor. Seiior
Don l*al>lo De hi (iuerra. Lieutenant (iovernor. and Johnson Price,
Secretary of State, coinjxising the Hoard of Directors created by tlie
Act entitled An Act for the Government of the State Prison (/On-
vict.**, and to ))rovide for the creation of a Branch Prison, aj^proved
April twenty-fourth, ei^^hleen hundred and tifty-eiijht. and Thomas
O^fiX Shaw, of San Ki-ancisco. party of the si-cond part :

Witnesseth — That for and in consideration of the covenants and ai^iTc-
iiu'nts ma<le hy an<l on the jtart of the party of the second pail, the said
party of the Hrst part doth hereby covenant and a;.ji'ee that the said
jiarty of the first j)art will and hereby does hire and bind, for pur|)Oses of
lal)or at the State Prison, located at Point San (^uentin. unto the party
of the second ])art. Said convicts to be selected by tlie party of the sec-
ond part, and to bt^of the followini; character, to wit : fifty to be me-
chanics, and fifty common lal>orers. And in tlie event fifty mechanics
cannot be found, then forty men are to be selected anci paid foi* as me-
chanics, and sixty as common laborers.

The said convicts are to be furnished every day (Sundays excepted.)
during the dui-ation of this contract, and to be turned out and I'eceived
attain at such hours as will enable the j)arty of the second part to work
tiiem ten hours in each day.

The ])arty of the first ])art is to feed, clothe, and «^uard said convicts,
and ])rovide lodi^ini^s an<l medical attendance for them without cost or
ex]>ense to the party of the second ]»art.

In the event of the death, dischartje from any cause, escape, or j)ei'-
manent sickness of any of the convicts hired and selected as lierein pro-
vided, the party of the first ]»art shall permit the ])arty of the second part
to select another convict from those in Prison not otlierwise disposed of,
to 8up])ly the vacancy caused by the death, dischari^e. escape or sickness
aforesaid.

Tlie party of the first part aj^rees to build and construct, for the use of
the party of the sect^id part, at such point upon the Prison grounds at
San (^uentin as the JBoard of Directors aforesaid may deem proper, a good
and substantial brick or stone building, of the following dimensions, etc.,
to wit: one hundred and sixtvfeet loni'and ei^-htv feet wide, two stories
high, one partition in the lower story, an j>ffice in the upper story, all
necessary work for the purpfjses of machinery, including kiln for foundry,
blacksmith forges, ami shafting complete and ready for tools for work.

For the construction of said Iniilding the ])arty of the first i)art is to
furnish the labor and all materials on hand or usually made at the Prison,
and for the remainder of the materials necessary to the construction and
completion of the same, the part}- of the first part is to allow the party
of the second part the sum of five thousand dollars, which sum is to be

paid him by dcductin*r the same from tlic smn wliich tlie j.artv of the
socoiid pjirt is to pay the party of the tirst part for the Uihoi- of 'the con-
viets aforesaid duriiiir the hitter part of the hist year of this contract.
Said iMiiMini; to he finished and complete on or hefoiv the first day of
Septemlier next.

That the party of tiie first part shall not, durin^r the existence of this
contract, hire any convict, or convicts, to any other person than the
party of the second part, for the piir]>ose of engaging in the manufacture
of agricultural implements and cahinet ware.

That the party of tiie second part shall have the exclusive use of the
I'liilding herein mentioned during the existence of this contract.

The party of the second part doth hereby covenant and agree upon
his part that he will receive from the party or agents of the party of the
first part, at San (^lU'iitin, one hundrt-d convicts of the character lierein-
before mentioned. That he will select fifty mechanics, if suital)le me-
chanics can be found at the Prison, and if not, lu' will select at least forty
convicts and jtay for them as mechanics, '^fhat he will select and receive,
over and jibove the n»e(dianics, common laborei-s of sufficient nund;»er to
make a total of one hundred.

That he will pay unto the i»arty of the first ])art, for the labor of said
convicts, the following sums, to wit:

For thfise selected as niecdianics. seventy-five cents per day; for com-
mon labort'rs. thirty-seven and one half cents j)erday, Sundays excepted.
I'aynu'nts to be nuidc in full at the end of each and every three months.

That he will receive said convicts and ])ay for them for every day,
with the exce|»tions hen-aftt-i" mentioned, for the period of fivi' years
from the date at whi(di this contract takes effect.

That he will furnish. u|ion flemand or notice of the party of the first
part, or agents of the jiarty of the first jiart, all the material necessary
to the construction and completion of the building herei!d)efore men-
tioned, which is not on hand at San (^uentin or usmilly manufactured or
furnished at that place by c(»nvict lai»oi-.

That he will work the convicts herein mentioned in the building afore-
said, or if not there, at smdi other place as the party of the first part, or
the agents of the party of the fii-st paiM. may <lesignate.

That u|)on notice of the tleath. disciiarge. escape, or sickness, of any
convict hired by him. as aforesaid, he will immediateh- select another of
similar character to fill his i)lace. That he will at his own cost and
expense kee]> the building aforesaid in good repair.

That he will give to the party of the first part a bund, in the penal sum
of ten thousand dollars, with good and sufficient securities, conditioned
to the faithful performance of this contract, and in the event the securi-
ties upon each bond, or any one of them, become, in the opinion of the
agents of the party of the "first ])art, insolvent or irresponsible, he will,
upon demand, execute a new and satisfactory bond in the above penalty.

It is mutually agreed by and between the parties of the first and
second part, tha't the convicts herel)y hired shall be subject to such rules
of Prison discipline in every respect, as may be adopted by the proper
oflScers of the State. *

That the physician employed by the State shall be the sole judge of
the physical condition of any convict hired as herein provided.

That for absence on account of death, discharge, escape, or sickness, a
deduction shall be made to the party of the second part at the same
rate as specified herein for hiring.

That a complete settlement sliall take place between the parties at the

the party of the second part to use sufficient of the wharf at the Prison
to receive the raw material used by him, and to sliip his work to market.
And. also, to allow the party of the second part to place on any of the
vessels of the party of the first ])art. plyinj;; between the Prison and
San Francisco, any raw material used by him. or work manufactured by
liim. when the same can be done without injury, inconvenience to, or de-
tention of. the party of the first part, of which the a<;ents and otticers of
the piirty of the first part are to be the sole jud<;es.

Tiie party of the sec(tnd part doth airree and stij)ulate, that he will
select fi-om the convicts at the Prison aforesaid, (^lexicans and Indians ex-
cepted,) the number of fifty, and that in the event of the death, discharge,
pernianent sickness, (of which the Physician resident at the Prison is to
be the sole judge,) or selection by any person or persons under any con-
tract of lalior heretofore made by the party of the first j)art. of any
eonviet selected by him as aforesaid, he will immediately select another
convict upon the same terms as aforesaid, to till the vacancy caused by
said death, discharge, etc.

That he will pay the party of the first jiart. fitly cents for each convict
liereby hired, for each and every day of the existence of this contract.
Sundays excepted; and excepting also, days lost in conse«iuence of death,
discharge, sickness, or selection by any other contractor of any convict
hired as aforesaid, or time lost in consecpience of the obstinacy of any
convict.

Said jtaynient to be made at the end of each and every month.

That he will execute tt) the ]>arty of the first part, a bond, in the penal
sum of five thousand dollars, witli g«M»d and sulficient securities, condi-
tionetl to the faithful performance of this eontra<.'t; and that at an}' time,
after reasonable notice, he will give additional securities upon said bond,
or give a new bond, if, in the oj)inioii of the agents or (jfticers of the
party of the first part, the original bond should become insecure.

It is agreed by the parties aforesaid, that this contract is made, sub-
ject to all laws of this State hereafter eimcted. oven if the same shouM
annul this contract; and subject to all rules of fliscipline established by
the proper ofticei's of the State.

It is further agreed, that this contract may. by consent of both ])artie8
be extended f'or the jteriod of one year, the party of the second pai
having the right to extentl it four months. u]ion giving notice in writing
on or before the first day of April, eighteen hundred and sixty-two, of
desire to do so.

Said extension of one year shall be made as follows, to wit :

The party pro])Osing the extension shall, on or before the first day
Ai)ril. eighteen hundred and sixty-two, give the other party notice, ii
writing, of a desire to make such extension, to which the party notified
may reply within thirty days after sei'vice of notice.

Should no reply be given within said thirty days, then this contract
shall ab.solutely cease on the first day of July. A. D.. eighteen hundred
and sixty-two. subject, however, to the right of four months extension
by the j»arty of the second part aforesaid.

In testimony whereof, the parties of the first and second parts have
hereunto set their hands and affixed their seals, the day and date above
written.

JOHX G. DOAVNEY, [l. s.]
JOHXSOX PllICE, [L. 8.]

E. T. PEASE. [L. s.]

[ F]

AN ARTICLE OF AGEEEMENT

Mii'lt' and entered into on this tenth day of September, A. T). ei"-htccn
hundred and sixty-one, hy and between the State of California^ party
of tlie tirst i)art. represented hy John (J. Downey, Cfovernor, Senor
I)on Palih* he Ui (Jiierra. Lieutenant Governor, and Johnson Price
Seeretary of State, eoniposin^ the Board of Directors, created by
an Act of the Le^fislature, entitled An Act for the Government of the
State Prison Convicts, and to provide for the location of a Branch
I'rison, ai»i)rovcd April twenty-fourth, eighteen hundred and tifty-
eii(ht. an<l James Kohs and L N. Quinn. parties of the second part:

Witnesseth — That the j.arty of the first part doth hereby covenant
and ai^ree to sell to the parties of the second i)art, nine hundred and two
thousand and five hundred merchantable In-icks, at seven dollars per
thousand ; three hundred and fifty-six thousand soft bricks, at four dol-
lars jK-r thousand ; six hundred and sixty-four thousand unburnt bricks,
at two ilollars per th«)usand ; six yokes of cattle, at fifty dollars per yoke;
twenty wheelbarrows, at four dollars each ; three good carts, at forty
dollars each; three old carts, at fifteen dollars each; one hundred and
twenty-three cords of wood, at five dollars and seventy-five cents per
cord ; and six mules, at seventy-five dollars each ; and of the aggregate
value of ten thousand seven hundred and seventy-one dollars and
seventy-five cents. (?10,771 75. j The i)arty of the first part further
agrees to hire to the ]>arties of the seconil part, sixty men. at forty cents
each i)er day <luring the brickmaking season of the year eighteen hun-
dred and sixty-one. and twenty-five men, at the same rate, at the end of
the brickmaking season of the same year; provided, that any time lost by
reason of rainy weather, shall be deducted from the time they are cm-
plo^'ed ; and at the option of the parties of the second part to furnish one
hundred men at the same rate for the brickmaking season for the year
eighteen hundred and sixty-two, subject to all future regulations of the
Prison, by the Boaril of Directors or the Legislature, except that the
sale of the property hereinI»efore described, is absolute and without
such conditions. And the parties of the second part are to have the use
of the vessels for the transportation of bricks sold to them, or made by
them, during the aforesaid season mentioned, to wit : the season of
eighteen hundred and sixty-one. and as long as this agreement continues.
Tlie parties of the second part to convey all materials needed for the
Prison to and from San Francisco, and to comply with all contracts
heretofore made Avith third jjarties, by the party of the first part, and to
secure the State harmless concerning the same. The amount due by the
party of the first i)art to the above mentioned James Eoss is to be de-
ducted from the aforementioned sum of ten thousand seven hundred and
seventy-one dollars and seventy-five cents, (810,771 75.) herein agreed to
be paid, and the balance due from the parties of the second part lo the
party of the first i)art is to be paid on the first day of October, A. D.
eighteen hundred and sixty-one. And the parties of the second part
3

agree to pay to the party of the first part, on the first day of every
month, the amount due at the end of each month during the term of this
contract, and a final settlement of all due to be made, and the amount
paid on the first day of January, A. D. eighteen hundred and sixty-two.
The parties of the second part agree to pay the captain, and all men
hired on vessels for the transportation of bricks ; and no convicts to be
emploj-ed on any vessel. And the parties of the second jtart are to fulHl
all contracts entered into by I. N. Quinn, at the same terms that he
agreed to do while agent of the State, and to ]iay all moneys due for
bricks not collected. And the parties of the second part are to have the
use of all mud mills and l)rick3ards not heretofore disposed of The
parties of the second part agree to keep the vessels in good repair during
the time they may use the same.

In testimony whereof, the parties respectively have subscribed their
hands and seals, the day and jear first above written.

.TOTIX G. DOWNEY,
PAHLO 1)E LA GUERRA,
JOHNSON PRICE,
On the part of the State of California.

JAS. ROSS,
I. N. QUINN.
Attest : James C. Pennie.

[ c; ]

AKTICLHS OF AdlJMKMENT

Made and entoivd into on this twcnty-tifth day of November, A. D.
eii^liteen liundied and sixty-oni'. l»y and l»et\vccn The People of the
State of California. i)arty of the first part, represented by John G.
Downey. (Jovernor. Sefior Don Pablo De la Guerra, Lieutenant-Gov-
ernor, and .I<dinson Pi-ii-e. Seeretary of State, coniijosiiiir the Board
of State Pi-ison Directors, created by an Act for the Government of
the Slate Prison ( 'onvicts. ami to |)i-ovide for the location of a Branch
Prison. aj»i»roved A|»ril 1\\ enty-foiirth. A. D. eighteen hundred and
tifty-eiijht — and Aaron Kn^landei*. party of the second part :

Witnesseth — That foj* and in considei'ation of the covenants and a^'ree-

iits made on the part of the party of the second i>art, the ]varty of the
ill -I ]»art doth ai^ree to let an<l hire, and dotli hereliy let and hire, unto
the party of the second part, for the jieriod of one year from and after
this present date, (unless otherwise providetl by Act of the IjejL^islature,)
twenty-tive State I'rison convicts, with the ]>rivilei;e of fifty, to be worked
by the party of the secoml part at the business of maUini; cii^arw, at
the State Prison, located at Point de San (Juentin. Maiin County, or at
such other j)oint as nmy be di'siirnated by (he jtropcr agents or officers of
tlu' party of the tir>t ]»art.

The party of the first part agrees that the jtarty of the second part
may, in selecting the convicts to be worked by him as aforesaid, select
any which are or may be confined at the Prison aforesaid, except those
' Mred to be retaijuMffor the use of the party of the first part, and such
liave been or may be selected by any other person or persons with
wliom the ]>arty of the first part may have, prior to this date, made labor
contracts by which State Prison convicts have been hired or let to such
person «tr ])ersons.

The party of the first part agrees to feed, clothe, and guard, the con-
victs hereby hired, and to turn them out at such hours as will enable the
party of the second part to work them ten hours each and every day.
Sundays excepted.

In the event of the death, discharge, permanent sickness, or selection
by some other contractor, of any convict selected by the party of the
second part, the jiartv of the first ]»art agrees to permit him to select in
his stead another oiivict. upon like condition as the original selection
was made.

In the event any convict selected by the party of the secon<l part be
found incompetent 'to learn the tra«le of cigar making, the party of the
second part may work said convict at the Prison aforesaid at any other
trade or occupation not engaged in by some other person or persons at
said Prison, under a contract made i)rior to the date of such change of
employment of said convict.

The party of the first part is to furnish shops or houses of sufficient
capacity to enable the party of the second part to conveniently work all
the convicts aforesaid at the business of cigar making, and also allow the

party of the second part to use sufficient of the wharf at the Prison to
receive the raw material u^ed by him and to ship his work to market;
and also to allow the ])arty of the second part to place on any of the ves-
sels of the party of the tirst part jjlyintj between the Prison and San
Francisco, any raw matt'rial used by him. or work manufactured by him,
when the same can be done without injury, inconvenience to. or detention
of. the jiarty of the tirst j)art, of wiiieh the agents and olticers of the
party of the first part are to be the sole judges.

The party of the second part doth agree and stipulate that he will
select from the convicts at the Prison aforesaid. Mexicans and Indians
included, the number of twenty-five, and that in the event of the death,
discharge. ]>ermanent sieUness. (of which the Physieian resident at the
Prison is to be the sole judge.) or selection by any ])erson or ])ersons
uiwlei' any contract of lalxir heretofore made by the j)arty of the first
part, of any convict selected by him as atin*esaid. he will imme(liately
select another convict u]>on the same terms as afoi*esai<l to rill the va-
cancy caused Ity sai<l death, discharge, etc.; that he will ])ay the jnirty of
the rirst |»art titty cents for each convict hereby hired, for each and every
day of the existence of this eontract. Sundays excepted; ami excej)ting
also days lost in conse<pience of the death, sickness, diseharge, or selec-
tion b}- another contractor of any convict hired, as aforesaid, or time lost
in conse(juence of the obstinacy <if any convict; said payment to be made
at the end of each and every nuMilli. That he will execute to the l>arty
of the rirst ]»art a bond, in tlie penal sum of one thousand dollars, witn
good and sufficient sui'eties. conditioned to the faithful ]>erformance of his
contract ; and that any time alter reasonable notice he will give addi-
tiomil securities uj)on saiil bonil, or give a new bond, if in the opinion of
the agents or orticei*s of the i)arty of the first part the original bond
should become insecure.

It is agreed by the j)artie8 aforesaid that this contract is made, subject
to all laws of this State hereafter enacte«i. even if the same should annul
this contract, and sultject to all rules of discipline established by the
proper officers of the State.

It is further agreed that this contract shall continue in force for one
year from this date, and by consent of b(»th parties nui}' be extended for
the additional term of one year — the party of the second ])art having
the right to extend it four months, upon giving notice in writing on oi
before the first day of September, A. D. eighteen hundred and sixty-two,-*
of a desire to do so.

Saiil extension of one year shall be made as follows, to wit :

The ]>arty proposing the extension shall, on or before the first day
September. A. I), eighteen hundred and sixty-two. give the other part]
notice in wMting. of a desire to make such extension ; to which the part]
notified may reply within thirty days thereafter.

Should no reply be given within thirty days after service of the 8ai<l
notice, then this contract shall absolutely cease at the expiration of on«
year from this date, subject, however, to the right of four months exten^
sion by the party of the second part, aforesaid.

In testimonj* whereof, the parties of the first and second part hav«
hereunto set their hands and seals, the day and date first above written.

JOHN G. DOWNEY, [l. s.]
JOHXSOX PRICE, [L. s.]

AARON ENGLANDER. [l. s.]

•21

[ H ]
THIS agrp:em:ext.

Made tho fin.ontlwlay of July, A. D. ei.i,.l,teen hundred and sixtv-one,
Wtwoon l)unal.l M.Lc^u.an. .,f the City and Countv of San Francisco
State of Cahtornia. of the first part, and His Exeellencv John G
Downey, (Jovernor of the State of California, the Ilonoral.k' Pal.lo Do
la fTuerra. PreMdent of the Senate of the State of California, and the
llonoral.le Johns.. n Price, Secretary of State of the State of Cali-
fornm. I )!.»;• w/.^r^.of the State Pri.son, at San Ouentin in the State of _

Witne8seth — That the said ]>arty of the first part, in consideration of
the a^^reeineiits and undfrtakiiii^s lu'reinafter mentioned, to he ke])t and
performed hy the said parties of the second part, af.jrees and undertakes
to employ at the State l*rison aforesaid, one hundred men, convicts, for
the period of three years I'rom the date hereof, in manufacturing work;
and to pay to the said parties of the second j)art at the rate of thirty
cents per day. for each man so employed ; such ])ayments to he made
monthly, durini^ the runnini; of this aijreement. and to furnish to each
man convict so employed, on the tirst <lay of April and the first day of
Novemhrr, of each year durinj^ the said period, one shirt, one jacket, and
one ])antaloon.

In consideration thereof, the said parties of the second part undertake
and agree, to place at the disjtosal of the said party of the tirst ])art, at
the State Prison aforesaid, one hundred men convicts, to he selected by
the said party of the tirst part, and to receive at the wharf in the City
and County of San Francisco, on board of vessels engaged in the Prison
service, all goods delivereil by the party of the first part, and intended
to be manufactured by the convicts aforesaid, and to transport and deliver
to the said convicts.' the said g(»ods so intended to be manufactured, at
the expense of them, the said j.arties of the second part.

And further, at the expense of them, the said parties of the second
part, to transport from the sai<l State Prison to the Mharf at San Fran-
cisco, and there deliver to the said party of the first part, all articles
manufactured from the goods furnished as aforesaid.

And it is hereby mutually understood and agreed, that during the
time that any of the men convicts so employed shall fail to work, by
reason of sickness, or any other cause, not moving from the party of the
first part, the per diem herein agreed to be paid by the party of the first
part, shall be suspended in respect to the men so failing to Avork.

And it is hereby further mutually understood and agreed, that the
parties of the second part, as Directors of the State Prison, are acting
as such for and on behalf of the State of California, and not otherwise,

and that this agreement is made subject to any and all future legislation
bv the State of California.

In witness whereof, the said ))arties litive hereunto set their hands, the
day first above written.

[ Signed ] I). McLEXNAN.

JOHN G. DOWNEY,
JOUXSOX I'KICE.
PABLO DK J. A CiUEHRA,

State Prison Directors.

XoTK. — The party of the first part will be entitled to work said con-
victs ten (10) hours per day from ^farch first to September first, and
eight (S) hours from September first to the twenty-eighth of February,
making an average of nine (9) hours throughout the year, during ibr

.lollX G. DOWXEY,
JOllXSOX PIMCE,

State Prison Directors.

KErORT OF THE WARDEN

3 i E P o rt T .

State Prison, }

San (iuentin, January 19, 1862. |

Tu the Board of Stale PrUon Directum :

Gkntlemen : — I have the lionor to transmit herewith my report of the
1 ransaetions of the State Prison under my charge, since the date of
'ur last Annual Hojtort. The exhihits and tables referred to below,
id transmitted herewith, will show in detail the operations of the Prison
from January first. i'i<;htit'n hundie<l and sixty-one, to January eight-
eenth, eighteen hundred and sixty-two, viz:

Exhibit A — Shows the amount of money received each month, the
sources whence received, the amount expended, and the different depart
ments for which the expenditures were made, from January first, eighteen
hundrd and sixty-one, to January eighteenth, eighteen hundred and
sixty-two.

Exhibit B — Shows Treasurer's cash account, from January first, eight-
een hundred and sixty-one, to January eighteenth, eighteen hundred
and sixty-two.

Exhibit C — Shows the number of pounds of provisions issued from
January first, eighteen hundred and sixtj'-one, to January first, eighteen
hundred and sixty-two. Also, the daily issues to each person, the num-
ber of pounds to each, and the daily cost of rations.

Exhibit D — Is a statement of the liabilities against the Prison up to
and including January- eighteen, eighteen hundred and sixty-two.

Exhibit E — Shows the number and kind of shoes, clothing, and bed-
ding, issued from January first, eighteen hundred and sixty-one, to Jan-
uary first, eighteen hundred and sixty-two.

Table First— Yearly account of the State Prison.
4

Table Second — Classification of crime.

Table Third — Number of prisoners from each county.

Table Fourth — Terms of imprisonment.

Table Fifth — Age of prisoners.

Table Sixth — Nativity of prisoners.

Table Seventh — Former occupation of prisoners.

Table Eighth — Shows the number of prisoners at various periods.

Table Ninth — .*^liows the number of ])risoners escaped, and those recap-
tured, from January tirst. eighteen hundred and sixty-one, to January
first, eightoon hundred and sixty-two.

Table Tenth — Educational abilities of prisoners.

Table Eleventh — Recapitulation.

I also transmit herewith the Report of the Physician, A W. Taliaferro,
for information in reference to the sanitary condition of the convicts,
and inventory of all property belonging to the State now at the Prison.

JAMES C. PENNIE,

Warden.

EXIIIIUTS AND TABLES.

■^

•(*»

ft,^

1-H

1-1

•1

'^'^

l-H

«D

r- 1

i-t

c s

'^^

So ">*

^ V

i^"

•^

">«

•1

•«•*

-5i

■^

r— 1 5?j

Total Receipts

OOC-lr-lOiOCSCOC^IOaiOrH

c= o -t -1 1^ r: c? -H :c o S o o

t/^^i^. CO Ol^ t- r- O O X^CO Oi ?-
2^ lO v« r-i f-T <>f -t I-.' VftM^ to
«> 1— 1 (M

o
co^

Received from State Treaa-
ury

84,000 00
5,000 00
4,500 00

: <=■
: "^
: o
: o

: cT

: <M

. 5^1

: o
: o
: '":
j co'
: 5^1

5-1

O
O
t-

Recired from product of

Pr!«<.n T.olw^.

»0 O iC O O ~ O '^ Ol O lO O Ci
I- O 5-1 ^ Ut ..t ^ iC 5-1 O 1- O ^

Oi-HCOOCOC. lOOOOCOl^ t*

CO CO o c: o X X ..-: .c -^ ^- x
P. ,=t '". '-= I- ^^ ^ l~ ?: 'O ci

QO
00

5-f
CO

Dalanco on hand Januarv
1, 1S61

C-l

CO
5-1

t
CO

Reooived from Visitor?....

O O O O O O O

o o o »o o o o
. cc »^ C5 r^ 'C CO i-<

• 0& OC t^ QC »^ oo

1— <

2 00

18 00

1 00

o
o

r— 1

Received per Loan

o
o

«o

5-1
Ol

100 00
277 00
543 35

100 00
313 15
329 00
266 00

o
CO

1-H

5-f

«o

Received for property sold

o
o

o
«o

o
o

1
1

1-^

I— 1

^ c>

1— 1

5-1
x:

1-H

Exi^nded for Work Shojis

(M O lO
O lO t-

Expended for Ship Yard.

ex :r I— 1

Expended for Freight

■?1

Expended for Shoe Shop..

li^ r- X

'^ QC 05

1—1 ".t X

I- -t O
<» 1-1 I-.

Expended for Forage

(M O

«-t ^ .o

QC lO o

o o o

X. o o

o i-^ X

I— I lO CO
(M

Expondcil for Commlssiiry

>t T. S -f -M

CT rr ri -t X

TO r-. -.o o

O O O CO o

cr X t- r;

01 irt i.t

co_^

I— I

Expended on aceount of
Di.-'eharped Convictti ...

O O O O O O O O O O iC o o
OOOOOOOOOOOIOO

cxcor^i^oi^cicoQO-tciO
^".troTO-^Tjixit^oo^i-iiM

Expended for Clothing...

uO O O iC

oi in o 01

1— I CO t— I I-H
r-i X

uo
of

Expended for Garden
Seed:.

iC ^
Ol o

'TO

X = ^ S'S ?

a 0-9 c: r 5

'" C- z J^' ^^ 1~ -iJ ;:; ;^ -

Expended for Blacksmith
and Wheelwright Shop.

;0 t^

: CO (M

r-( t— 1

• r-(

: '^

: QO

• QO

: *^

: '-' t^

. CO C-1

: »^ r^

: oc -t<
: o '^

• QO

: "*

• *^

\ I-H

Expended for IJuilding
Purposes

1- t-

• oo

. oc

• 1-
. 1-

: o

: ^

: "^

o
I— 1

CO
I-H

Expended fflr Ordnance...

t— CO

CO CO

IC r-l

■yt t-
to

: 00
: a

'■ c.

o
o

CO
o

: o
: "^

. CO

QO
Oi

Expended for Medicines
and Medical Attendance

SI 00 00
120 00

100 00

400 75

: o
: "^

: o
: o

o o

lO o

■M Ci
X.

•CO

o
o

r— I

Employed for Snlnrien of
Emulov^s

S2.069 96

2.841 87

2.687 71

449 SO

4,797 83

789 46

1,678 54

1,622 33

2.891 15

2.039 22

1.905 97

713 38

10.545 19

I-H
't

rH
CO

co"

Expended for Wood

1,500 00
2!M> 00
250 00
387 50
649 75
:i56 75

-+<
-t

co"

Expended for Stationery..

S3 12
12 12
18 62

1^
r.

-M O •

CO lO

CO c-i

T^ CO

lO
■M
0&

Expended for Furniture ..

-t

1— 1 ;

o :

I— 1

ci :
I— 1

I-H

QO •

l-H >

zjL

■^

■X.

C
EH

Total ExPENDirrnES....

lO lO t^ t^ o-

1^ — r r-^ -^ y.

-t ;t >r: -^ r;
-t -t '-t' ,-.' —

1— ICOOSOiCOt— 1— It—
-MiOiOOOCOOOCO

>0 TO X t— O t~- Tt CO

rr -M -M lO C5 ^ CO i-H

CO r- !■- CJ C^^'^? X o,^

r-I 01 Tt id cc'm' co"

CO
CO

t—

Expcnilud for Interest on
liill.f

o
o

1—1
0&

Expcmleil for Puroha.«e of
Horses

o
o

K.xpenile(l for Tin Shop...

01 :d

'X
X

X
Ol

.— 1

Expended for Lumber for
IJrick Yard

I— 1

CO
Ol

Expended for Freight on
Coin

Ol
Ol

CO
Ol

Ol
Ol

Expended f.-r Harnes.o....

20 50
3 00
7 00

i.O
Ol

Expenilcd for Pursuing
Escaped Convicts

o
o

20 25
10 00
37 00
40 00

t— 1

Expended in Payiueut of
Cash Advanced

■M
-M

o o

1-H l.O

CO
CO

O iC

O rH

o CO

O Ci
i-l (M

o
o

00
CO

CO
l-H

1— <

c
c

OT
CO
X

-J

[ B ]

STATE PRISON TREASURER
In Account with tlie State of Cali/uniia, from January 1, 1861, to Jan. 18, 1862.

Months.

1S61.

JiuiiKiry...

February
Mariii....

April

-^i^O-

June

July

From What Source Received.

August

Halaiu'C on hand January 1, 1^01

AuKJunt retoived from State Treasury

Amount received for work dom' in Shoe Shop....

Amount received for Stone Cutting

Amount received from State Treasurer

Amount received for work done in Shoe Shop....

Amount received from V'^isitors

Amount received from State Treasury

.VuKJunt received for work d(uie in Sh<»eShop...

Am(»unt received for shijunent of lli(h's

Amount received for work (h>ne in BhicksmithShop
Amount received for work done in Harness Shop

Amount received for Bricks

Amount received from Visitors

Amount received advanced

Amount received for work done in Shoe Shop...
Amount received for work done in Blacksmith Shop

Amount received for Bricks

Amount received Irom Visitors

Amount received from State Treasury

Amount received for work ilone in Shoe Shop

Amount receivetl for work done in Blacksmith Shop

Amount received for Bricks

Amount received from Visitors

Amount received for work done in Shoe Shop

Amount received for work done in Blacksmith Shop
Amount received for work done in Harness Shop

Amount received for Labor

Amount received advanced

Amount received from Visitors

Amount receivetl for work done in Blacksmith Shop
Amount received for work done in Harness Shop

Amount received for Bricks

Amount received for Labor

Amount received advanced

Amount received from Visitors

Amount received for work done in Shoe Shop...
Amount received for work done in Blacksmith Shop

Carried forward

$30,643 "26

33
Exhibit B — Continued.

ISCl.
August .

•tember,

< ». toht-r

Amount brouirht forward

Ainouiit received tor Labor

A moil n t received for Bricks

Amount received advanced ,

Amount received from Visitors j

Amount received for workdonein BlacksmithShop

Amount receivetl f<»r Bricks

Amount received for T^abor

Amount received (or work done in Siioe Shop

(Amount receivedfc»r workdonein BlacksmithShop

lAmount received for Labor

Amount received advanced

Amount received from \'isitors

November. I A mount receiveilforwork(b>iiein Bhicksmith Shop

Anujunt received lor Labor

Amount received advanced

lAuiount received from Visitoii;!

hccember.. Amount received for work done in Blacksmitb Shop

Amount received for Labor

Amount received advanced

Amount receiveil from Visitors

.lanuarv

830,643

L190

2,977

543

4.800

2.147

2.705

100

2,023

313

Amount received from State Treasur}' i

Amount received forwork (b)nein Bhicksmith Shop

Am<^mnt received for Labor

Amount received f<tr I*roj>erty soM j

Amount received for Bricks i

A mount received advanced

18 00

77 00

500 00

329 00

1 00

23,700 22

4(50 00

1,050 70

750 50

473 70

206 00

Total ! .S75.350 36

(See next page, for continuation of Exhibit B.)

Exhibit B — Continued.

Months.

ISGI.
January...
Fc'liruarv .
.March...*..

Aj.ril

May

.luiie

July

August ....
Sei>teinl>oi'
<.)ctobor...
No Vein I (or
I>e(.-einl>er.

ISGL'.
January...

Amount Co^h Disbursed per Warden as Treasurer.

Amount.

Amount
Amount
Amount
Amount
Amount
Amount
Amount
Amount
Amount
Amount
Amount
Amount

cash
casli
casli
cash
casli
cash
cash
casli
cash
cash
cash
casli

disbursed per
liisbursed }>er
dislnirsod j)cr
disbursed j)cr
disltursod i)cr
disbursed ])er
disbursed per
disbursed per
disbursed jier
disbui-sed jier
disbui>ed ]ier
disburseil pel-

Warden as
TVarden as
Wanlen as
War<leii as
Warden as
Warden as
Warden as
Warden as
Warden as
War<len as
Warden as
Warden as

Treasurer
Treasurer
Treasurer
Treasurer
Treasurer
Treasurer
Treasurer
Treasurer
Treasurer
Treasurer
Treasurer
Treasurer

Amount cash disbursed per Warden as Treasurer
up to January IS

§4,114 75
4,2H4 45
5.975 17
1,004 07

11,001) 8'J
1,885 21
2,123
4,728
6,157
3,000
2,317 87
834 51

59
99

Total.

26.018 37
875,350 36

[ C ]
EXHIBIT

Shoirinff llir numhrr of P<fnoh uf Prnvisxom issued from January 1, 1861. to
Januitn/ 1, 1^62; uhn, tin- DiiHi/ />-.•,«« to each Person, the number of
Poumis to each, and the Dai/i/ Cost of Jiations.

Articles Is^aod.

Lbs.

Oz.

Daily issues of Meat, (mostly fresh beef).,.

Daily issues of Flour

Daily issues of IJeaiis

Daily is-ues of Potatoes

Daily issues of .*^alt

Daily issues of C'otfee

Daily issues of Sui^ar

Daily issues of liiee

Daily issues of Tea

Daily issues of Pej)i)er

Daily issues of Bacon

Daily issues of Butter

Daily issues of Codtish

Daily i-isues of Ilomiii}'

Total number of pounds issued dtiih'

Total number of pounds is-sucd

675

718

243

726

2,506

914.814

Average ntiml^er of |iouikIs to each man, four and a lialf per day. Cost
of daily rations, including Officers, Employes and Convicts, twelve and a
half cents.

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ccSocccccrcSHcHo

T. T. -/. -/. r -r. -r. t. t. t. t. t r. i. t. t.

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XO

[ E ]

EXHIBIT.

S/ioin'ng thi' nvmhrr aiuf /linds of Shors, (Hotliing, and BciMimj issued front
Junnari/ 1, 1801, to Janunri/ 1, 1802.

Articles.

Nuinl)er.

Whole minil)cr of Shoes issued. ]iairs

Avoi'iHi;*.' monthly issues, pairs

Whole luiniliiT of Shoes repaired. ])airs.,

Avc*rai;e monthly issues. ]>airs

Wh<^k' number of Jliekory Shirts issued.

Averaije monthly issues

Whole number of Pants issued

Average monthl}' issues

Whole numl>er of Flannel Shirts issued.

Averai;e monthly issues

Whole number of Coats issued

Average monthly issues

Wholi- number of .Mattresses issued

Average monthly issues

Whole numbei" of Bhmkets issued. ]»aii"s

Averaixe monthly issues. ]>airs

Whole number of Soeks, pairs

Average monthly issues, pairs

1.7

.237

103 1-12

781

05 1-12

,048

170 2-3

.704

147

187

15 7-12

315

20 1-4

140

121-0

339

28 1-4

480

Total cost of the above artieles. four thousand nine hundred and
ei<rhtv-nine dollars and eiirhteen cents.

TABLE FIIiST.
Yearly Account of the State Prison of California.

Years.

1851..
1852..

185:$..

1S54.,
1S55..
1856.,
1857.
1858.
1859.
1860.
1861.

2 •

36
105

16.S

211

266

258

245

226

220

295

238

102

103

114

119

145

130

6
8
87
28
65
72
23
95
127
35

35
108
165
227
291
287
277
259
270
315
247

1
21

58
209
157
196
234
191
299
314
212

Cbaractcr.

Munlir

Munlor Second Degree

Man!!lauphti.T

Assault with Inteut to Kill

Assault with Deadly Weapon.

Mayhem

Rape

Assault with intent t<i Rape...

Crime against Nature

Robbery

Assault to Rub

Burglary

Arson

TABLE SECOND.

Classijiiation of Crime

Number.

Character.

Number.

Attempt at Arson

Grand Larceny

Attempt at Grand Larceny

Forgery

Perjury

Embezzlement

False Personation

Counterfeiting

Receiving Stolen Goods...

Felony

No charge specified

Total

2
288
2
2
4
1
1
6
2
4
2

589

TABLE THIRD.
Numher of Prisoners from each Count i/.

County.

Number.

County.

Number.

Alniiiftlii

9
12

106

Amuilur

Santa Barbara

Buina Vi.^ta

Butto

211
S
5
2

;?2

Calavern.'*

Ci.lusi

t Sun Diepo

Ccnfrii Csta

San Francisco

Del Norte

' San Liiis Obi.xpo..

4
16

5
12
17

El Dorado

Frccno

HuinlM.Klt

Shii-ta

Klainatli

O 1

25 j

Sierra

Sickivou

lios Angclc«

Lak.-

Solan

Marin

(') i

Sonoma

Mono

Maripusii

15 i

8
15
24

Sutter

Mcndoi-iiio

Tehama

Mcrci'il

Trinity

7
3

MolltlTC'V

t Tulare

Xapn

Nevada

Placer

Yuba

I Total

589

TABLE FOURTH.

Tcnn^ of Prisoners.

For

Number.

.,.

Number.

Life

16
15
1.3

88
43
27

Twenty years and upwards

Fifteen to twenty years

Ten to fifteen years

Seven to ten years

Less than one year

Total

Five years

589

TABLE FIFTH.
Ages of Prisoners.

Ago.

Number.

Age.

Number.

46
226
1«5

Prom twenty to twiiity-fivu years....

From tweiity-fivo tn thirty yearn

From thirty to thirty-five years

From forty to fifty 3'earg

From fifty years upwards

Total

689

TABLE S LX T 1 [ .—Xtifiv .Vy of Prisomn

UNITED STATES.

State.

AVi'iama

■ IKftS

••cti<-ut

rict Columbia.
'> t ;.-ia

Number.

lis .

In<liiiiia

Iiiwa

Keiitueky

Loiiisiauu

Maine

^lurylaml .. ..
Mac.''aohu!<ett.''

Michiftnn

^Ii.'<Hit<.<)i|>])i....
Missouri

5
.1

1
1

l.H
6
1

17
1»
9
f.

20
2

.T
U

State.

New Ilumpshirc.

New Jersey

New York

Nnrth Carolina..

Oliio

I'lnnsylvaiiia

Rhode' I.-land

South Carolina..

TennoKsee

Texa.-

Vermont

Virginia

Wisfon-ain

Total.

Number.

2
4

53
1

31
2
.3
5
3
6

11
4

256

FOREIGN.

Country.

England

Scotland

Wales

Ireland

Britijih America.
British Indie.*...,

France

Sweden

Germany

Belgium

Hungary

Poland.".

Greece

Number.

26
5
1

59
8
1
9
2

20
1

Country.

Italy

Spain

Portugal

California

Mexico

Chile

Brazil

West Indies

Sandwich Islands

I Jlanila

China

Total.

Number.

333

TABLE SEVEXTK.

Former Occupation of Prisoners.

Occupation.

Number.

Occupation.

Number.

•J 1

:{2

Bnrkcepors

IMiisterer

]

Blaeki'niith.s

I'ri liter

Bricklavor*

Puiiiit'r!<

Butchers

1 KopeuiiikerH

1 Sa.l.llcr.'

Sliiieinaker."

Silversmith

Chantllor

1 :
1.. '

Slater

Stone Cutters

Clerks

Codper.''

1 Stewiinls

1 Tailors

If)

Euj^raver

Tinsmith

Farmers

1 Teamsters

Gold Boater.-'

Turners

flamWersi

1 Iphclsterer

Veterinary Sur^enn

Qanlencr!'

Jeweller

1
lo3

Waiters

LoMking (ila^s Maker;*

Wheel wriphls

Total

Maehiiiistti

589

TABLE EIGnTir.

SJtoicinij thi Xiim/» r of PrisfJiurs at Various rcrioih, from Januari/ \st, 1861,

to January 1*7, 1862.

Time.

Number. '

Time.

Number.

Januurv 1. ISfil

554

553

567 !

57S

593

599

July 1, 1801

606

Fcliruury 1. iStH

'August 1. IStJl

613

Miiroh 1, ISBI

' Soptcmher 1, ISCd

593

April 1. |S6I

Oot<ilier 1, ISOl

590

Mav 1, ISfil

. Niivemliir 1, If^Ol

585

Juno 1. 1861

DcccinUer 1. 1S61

590

December 31, 1861

589

TABLE NINTH.

Viimftcr of Pritonrrs Enrapid and those Recaptured, from Januari/ 1st, 1861,

to January Ist, 1862.

Escaped.

Number.

Recaptured.

January, 1861 Januarj', 1861 .

February. 1861 February, 1S61,

Marih. 1861

April. 1S61

May. 1S61

June, 1861

July, 1861

August, 1861

Sejitomber, 1861.
Octobt-r, 1S61 ....
Noyembcr, 1861.
December, 1861.

March, 1861

.\pril, 1861

May, 1861

June, 1S61

July. 1861

AuKust. 1861

I September, 1861 .
I October, 1861 ....
I November, 1861.
I December, 1861 .

Number.

TABLE TENTH.
Educational Abilities of Prisoners.

United States

Engluiul

Scotland

Wales

Ireland

British Amcric-u

France

Gennany

Swetien

Prussia

Native Califoruiaus.,

Belgium

Poland

Italy

Spain....

Portugal

West Indies ,

E&sl Indies

Mexico

Chile

Sandwich Islands...,

Manila

China.

Braxil

227
18
4
1
40
6
9

2
1

8
1

216

RECAPITULATION.

NATIVITY.

o
g
3.

r
a
■t

United States J

27 2
40 1
8

216

120 1
5

?«»

Foreigners ]

Native Califomians

Totals 2

75 3

341 2

Total number of Prisoners December 31, ISCl.

.589

T A n L E E L E V E N T II
Recapitulation for 1861.

Months.

»0

2.
5"

0
a

H
S

: 3
: e^"
: 3

: B
: •»
: ^

: ^
: g
: PC

i 1

: "^

: M
: X

: "s^

: 3

: S'
: B
: o
• — »

i ?

: °

s
a
I

3
O

■5

3
o

§ 3

.» tK

: a-

• c

: -1

:• f

: H

: S-
: »

• P

a
c

re
>

O
5'

re
re
re

•5"

Jiinuiirv

21
25
18
17

1
15
23
15

1
1

.3
1
1

...„.

7
18

10
11

9
10
14
10
15

S
11

1
1
4
3
1
1
7
2
3
4
1

1
1

14
20
11
14
13
14
20
27
18
23
10

Fitiruiirv

13
34
22
29
19
21
27
7
15
23
15
22

Mar.h

.\l.ril

1
1

Miiv

Juno

""l

July

AujfUdt

So|Ui"iiil)or

Octi.l.ur

N">vi'iul>or

December

^ 1

TXVEXTOEY OF r^OPERTY

Belonying to the State of C<iUf<,nit<i. nt the St<ttr Fn'son, Son Qm-ntiu,
the l>>th (hii/ of January, 1862.

Description.

Number.

BLACKSMITH SH(»P.

BellowH
Anvils ..
Vieo8....

Pairs Cross Irons

Bulls juul Chains

Single Chains

Feot of Log Chain

Pounds of Xew Iron ..

Tons of Old Iron

Sot Iron AxU's

Half Sots A.xles

Mandrill

lloading Tools

Swedgi ng Tools

Pairs of Tongs

Monkey Wronchos ....
Sets Shoeing Tools....

Files, Old..'..

Pairs Callipers

Pairs Conquisses

Sets Screw Plates

Iron Door

Wheelharrows

Wagon Sjtokes

.Wagon Pole

Feet of Old Liimher..

Sets of Hubs

Grindstones

Ship Chimps

Tool Chest

Augers and Bits

Frame Saws

Pair of Tongs

Old Sledgehammers ..
New Barrow Wheels

Hand Punches

Chisel*

Iron Braces and Bits

Squares

Screwdriver

Description.

Horse Shoes

I Ground Swedge

Fire Mender

Drill Hencl.

■ Ilt'uvv Drill MhcIumo

1 Kiveting llaniineris

' r.-irriagc S])rings

oi.l Axles!

_ w Pair Wheels

Hvw Iliihs

Axle Set

Benches

Tin ('iii>s

Carriage lioltn, New

Chisels

fTMIIgr

el S(jiiares

I'l Stiuare

J)ra\ving KnivcH

Hand Saws

Tenant Saws

] I and Axe

Srrew Drivers

llainnu-rs

1 1-< ) n H I'ace ,

Wooden Braces

Wheel Patterns

Set of Wagon Patterns

1 1 ol low A ugers

Wheel Horse

Oil Stones

S j)oke Shaves

Pairs Saw Renehes

Sets of Planes

AVooden Vices

Iron Vices

G auges

Glue Pot

Mallets

Oil Can

Draw Bolt Pins

Saw Files

Hand Screws

Spoke Machine

Screw Clamps

' Large Frame Saw

Whip Saws

I '" 'X Barrow

W ater Pails

Compasses

Bevels

Description.

Rule

Gauges

Hand PuiK'lies

Pair Steelyards

Oakum Press

New Cart Bed

New Sets Buggy Shafts

Number.

12
34
1
1
1
3

Description.

Number.

CARPENTER Rlior.

Assorted Planes

Chisels

Gauges

Planes

Hand Saws

Drawing Knil'e

Bevel Squares

Gouge

Chisels

Sorat ell Awl

Hammer

Screwdrivers...

Panel Gauge

Try Squares

Plough and Bit

Spokeshave

3race and Bit

Auger Bits

Chisels

Gouges .

Hand Saw

Planes

Nail Sets ,

Pairs Pincers

Pair Compasses

Steel Square

Gimlets

New Plane, Bit and Cap.

Oil Cans

Mallet

Cold Chisel

Box Awls

Tool Chest

24
4
2

1
•>

1
o

2
1
1
1
11
7

2
1
4
3
2
1

Description.

Number.

TURNING AND MACHIN.E SHOP.

TnniinjLf Lathe and FixtiircH.

Oil Stone

Iron Brace a!i<l Gau<;e

Saws

Gouges

Frainin;^ ('liinels

Wood Files

Rasp

Axe

Drawing Knife

Square

Pai r ( '< »in passt'H

Pairs Iron Turning Tools

Oil Can

Mallet

Hammer

Files (as.sorted )

Sere wd rivers

1 1 a m me rs

Cold Chisels

Drills

Iron liraces

Centi'e Pniieh

Pair Tonirs

Monkey Wreneh

Pair Iron Compasses

S( I uares

Slaek Siiws

Pair Callipers

Oil Can

I ron Vice

Pails

Bundle Iron Wire

Description.

SAIL LOFT

Work Benches

Fids

Mullets

Palms

Water Pail

liu])e Machines

Description.

COOPER SHOP

Table

Sere wd river

Chanii)in<j; Knife •..

Rasp

Fro w

Hoop i)o<;

Gouge

Bench

Iron Vice

Spokeshiive..

Brace and Bit

Pair Compasses

Inside Shaves

Drawini^ Knivet*

PUmes

Saw

Square

Number.

Description.

Number.

PAINT SHOP.

Pallet Knife

File

Mallet

Paint Stone

Marbler

Bru shes

Stripinjij Pencils

Pai r Compasses

Top Grainer

Oil Cans

Oil Cans, small

Paint Cups

Glass Diamond

1
1
1
1
1
18
12
1
1
3

Description.

Number.

^niV CARPENTER SHOP.

Angers

Cross-cut Saw

Whij) Saws

Jack Saws

Jack Screws ...
Tryin<; Planes

Planes

Hammer

Chisels

Easps

Cold Cliisels

Gati<^es

Pairs Compasses
Drawiiiij Knives

Spokesliaves

Saws

Tenant Saw...,
Try S(|uares ..
Ii'nn S(juares .,

Wood Files

Try (laiiijes ...
" illets..."

■ t A<lzes

iiioad A.xes

Tool Chest

Pair CaliijitTs

Pair Pincers

Monkey Wrench

Bits

Braces

Chisels

Gaui^t

Cold Chisels

Punches

(louires

Pairs Plane Irons

Bi,!j:i;in<:^ Screw

Mallet'.

Large Auger

Purchase Blocks

Sledge Hammers

Crow Bars

Caj)stans

Feet of Cahle Chain, old.

Spar Truck

Steam Box

Screw Wrench

Iron Clamp

Description.

SHIP YARD

Schooner • William Ilicks"

Sloop •' Pike County"

Sail Boat "Nip Cat"

Sc-owR

Calki nj^ Irons

Mallets

Horsinir Iron

Description.

Number, fl

Hunks

CELLS.

1H8
175
47
47
47
47
47

He<ls and Blankets

Water HueketH

Water Dippers

Ni<;lit Huekets

Hcnelu's

Spittoons

Huekets

l.iU'iCr Bill

( 'hest and Lock

Hrooms

Benches

Description.

ROOM A, OLD PRISON.

Triple Bunks

Double Bunks ,

Single Bunks

Mattresses ,

Blankets

Lantern

Lamp

Bucket

Dippers

Benches

Description.

Tin Tups

Tin Plates

Ni^ht Bucket

Broom

Number.

4
4
1
1

Description.

LON(J ROOM NO. O.NE

Triple Bunks

Beds

Pairs Blankets

Watt'r iiarrel

Kiixht Bucket

Lan»p

Oil (.'an

Bench

Spitt<»on

fc>an(l Iveg

Number.

24
26

Description.

LON<} RfXtM NO. TWO

Triple Bunks

Blankets

Beds

Lantern

Water Bucket

Number.

Description.

Number.

Triple Bunks
Mattresses

LONG ROOM NO. THREE.

16
16

Description.

Blankets

Water Bucket

Spittoon

Number.

45
1
1

Description.

Number.

LONG ROOM NO. FOUR.

Trijile Bui.ks

Blankets •

Water Bucket

H\fr\\i Jiuckc't

Spittoon

Description.

Number.

LONG ROOM NO. FIVE.

Triple Bunks

Blankets

Barrel

Bucket

Description.

Number.

Triple Bunks

ROOM NO. SIX.

Beds

Blankets

40 .

Bucket

1 1

Barrel

Description.

Number.

Water Casks

UPPER YARD.

\\ Ikm>1 barrows

I .aiii|»s

"" ovels

W ater Butt

Dcoeription.

Number.

ROOMS OVER POLICE OFFICE

Double Bedsteads

Pill II Mattresses

Pulu Pillows

Pairs lilaiikets

Straw Mattresses

Coverlid

Cbair

Table

AVashstand and Basin

Pair Fire Tonics

Bucket

Dipper

Description.

Number.

Tables

TAILOR SHOP.

Tftilor'** Tr* >n<

Desk

Pressbosirds

Broom

Sewiii*'" Afachine

Bftnpbp>i

Spittoons

Stools

Description.

Number.

LIEUTENANT OF fJUARD S ROOM.

Bedstead .

>rat tress.

Pairs Blanket."
Chairs

Waslistand and Howl.

TaMes

Wardrobe

M irror

Pail- Fire Irons.
Disks

Wati-r Pails.

8|)riid<ler

Sliovel

Wood Box.
Fender

Dweription.

Number.

POLICE OFFICERS ROOM.

Bedstead and Bedding...

Tables

Washstand

Clock

Bucket

Wasli Basin and Pitcher.

Stairs

Stools

Fire Iron

Fender

Broom

Book Shelves

Police Books

Library

Description.

Number.

Barber's Chairs

BARBER SHOP.

Sets Tools

Tub

Bucktt

Stove

Description.

Number.

TIN SHOP.

Bench

Vice

Anvil

Solijerini^ Irons

Mallets.."

Shears

FiU'S

Pincers

Sniall Files

Punches

C'liisels

llamniers

C(»hl Chisels

Saw

Rollers and Forms.

Tin Folder

Ir(tn Punch

Poorini^ Iron

Files

Dipper

Basin

Cup

Buckets

Square

Description.

BARBER SHOP

Sofa

Chair

Foot Stool....

Washstands

Mirror

Set of Tools

Bmk(.ts

Cup

IJasin

Spittoon

Description.

EXORAVER snor

Hammers

Files

Set of Tools, Engravers

Brace and Bit

Bench

Vice

Hound Plyers

Description.

Number.

Horse

SADDLER SHOP.

Stool ... .

Set of Tools -

Description.

Number.

Bread Trays

prisoners'

DINING ROOM.

5
1

517

144

260

Knife

Barrels

Buckets

Tin liuckets

Tubs

Closet

Tal.Ks. small

Spoon Trap's

Plates

Cups

Salt Cellers

160

I^ontj l)inin^ Tal

les

Bench

AN asliliowls

Brooms

Description.

Number.

Buckets

PRISON KITCHEN.

Closets

Tubs .

Plates

Cu|)S . .

Benches

Iron Boilers ...

Tables

Forks

Dippers

Strainers

Cleaver

Steels

Porks

Knives •

Meat Travs

Mcjit I?icks

Snlt T\ otr«4

I iUrd Ivt**** •

Coti'ee Mill

Description.

Steelj'ard

Pokers

Sc'ra])c'i-s

Bread Trays

Clock

Paddles

B room s

Axe

Description.

Number.

HOSPITAL KITCHEN.

Large Spoons

Skimmer

Basin

Bunks and Bedding,

Stove

Coffee Pots

Tin Plates

Tin Cups

Washlub

Tables

Closets

Dippers

Oil Can

Chest

Box

Knives and Forks....

Tin Pans

Broom

Lantern

Spoons

Benches

1
1

1
3
18
6
1
2
2

2
1
1
1
6
2
1
1
6
6

Description.

Number.

Buckets

BAKERY.

Pans

Description.

Number.

Yeast Tubs

Sieve

Serapers

Tiil.s

Brush

Bread Boxes

Tal.les

Tntuj^lis

Closot

Shovel

Knives and Forks

Q'in Cups

Frviiii; I'an ...

Funnel

Ilatchft

T:iir Blankets

uers

Buckets

5
1
2
2
1
10
2
2
1
1
3
4
1
1
1
1
1
2

Descriptiou.

Namber.

SHOEMAKER SHOP

Sets Slioemakers' Tools

lienthes

Lasts

]><tzen Cobblers' Lasts

Pairs Boot Trees

Sewing Machine

Stove

Crimp Bixirds

Buckets

Brooni

Iron Pots

11
11

£6
4
2
1
1
3
8
1
2

Description.

HOSPITAL STORE ROOM.

Bunks

Pairs Blankets.

Number.

17
34

Description.

Clock

Bath Tub

Stove

Table

Oil Cans

Closet

Bucket

Nigh t Pans

Water Pails

"Wash liasins

Cups

Plates

Spoons

Stools

Broom

Duster

Water Cans

Bulletin Boanl

Barrel

Medicine Case

Pestle and Mortar

Table

Bench

Dipper

Case of Surgical Instruments

Small lot of Medicines

Bunk and Bedding

Scales

Slate

Pill Tray

Set Dumb-Bells

Number.

1
1
1
1

1
1

1
1
1

Description.

Number.

Bunks

DUNGEONS.

Chains

Shackles

Brooms

Buckets

Description.

Number.

COUNTY .I.VIL

Triple Bunks

Beds and Hoddin-;

Old UlanketH

13
29
15

Description.

Number.

ROOM E

Trijde Hunks

il.K- Hunks

-k- Hunk

In-dn ,

Tuira Blankets

Description.

Number.

ROOM D

Triplr Hunks

Bnls and Hodilint;

Tairs Hlankots

Sini^'lc HIankc'ts

Lamps

Cups

Plates

8p< tons

Description.

Number.

W.\SH iiorsE

Barrels Soft Soap

Buckets

'"^Tuoothing Irons ■

Description.

Boilers

Axe

Wash Basins

Clotlu's Press

Pump

Washstaiuls

Glotlics Horse and Lines

Description,

STONE SHOP

Hand Trucks

Old Ploughs

Buckets

Shovels

Tubs

Crossbars

Dm.. Hods

Briek Pricks

Hooks lor Brick Burners

Brick Presses

Old Square and Vice

Truck Wheels

Bucksaw

Buckets, large

Broad A xes

Trowels

Pump Chains

Selves

Barrows

Windlass

Drills

Iron W heels

Pulleys

Ox Chains

Whitewash Brushes

Buckets

Hoes

Cask

Masons' Hammers

Squares

Wrench

Clam]^ Screw

Chisels

Pump

Description.

Blastinir Tul.cs

Woodi'ii Mauls

Doz. Sle(l<;es

Shovels, broki'ii

Briek-inoulds

Old Wa^ron Wluds..

Old Picks

Old St«»ne iramnu is.
Lot of Old Iron

Number.

250

Description.

Number.

LIVE STOCK

Yoko Oxen

Ox '.^Z'.'.['.'.'.[['.['..

Cows

Iloilers

Mares and Colts

' 'Its, two years old

5
1

Description.

Number.

8LAUOIITKR IIOUSK AND PIG PEN.

Large Sows

Larjre Boar

Shoats

Iron Boilers

Axe

Cleaver

Windlasses

Buekets

Table

Closet

Box

Maul

Beef Trees

12
1

18
2
1
1
2
4
1
1
1
1

Description.

UPPER STABLE

Guai'd IIorst'M

Cart IIurneH

Saddles and Bridles

Mules

Bu«;;^y and Harness

I'iteh F<»rks

I ) a !• r ( ) \v

liloeks

DescripUon.

LOWER STABLE

Sets ("art Harness

Collars and Harness

l)()iil>l'.'trees

Siii^ii' Harness

Bunk

Stone Ilanuner

Buekets

Neck Yokes

Shovel

K..rk

Brand Jrons

Axe

Currycombs

Description.

Number.

-Milk Pans

MILK HOUSE.

Buckets

Small Tub

Milk Cans

Churns

Stone Jar

Strainer

Pot !.!!!11!!!!!!!!"!!!!!!!!!!!!!!!

Description.

jS'umber.

Tables

Wash Tul)
Bc'iiclu's..,.
Funnels ...

Axe

Tin Cups..
Tin Plates

Bucket

Chair

Description.

Number.

BRICK YARD

Mu.l Mills

li lie k Ha rr< • w s

Feed Tulis

Water Ke«;s

Cast Iron lJlo\vei*s

Biu-kets

Cujts

Waijoii

Shovel

F«»rk

1 1 annuer

Wrenches

Water Carts

Ox Yokes

Ox Carts

Horse Carts

Wiu'cl harrows

Derrick

Wiiidinill

Tank

Windlasses

22
31
2
2
140
2
2
1
1
1
1
3
3
5
5
2

26
1
1
1

Dozen Shovels.
Picks

Description.

STORE ROOM.

Number.

161
300

Description.

Number.

Dozen Pick Handles

Hay Fork

Scythes and Satch es

Pair Scales

Ox Bows

r I'OH Ba 11 H

Description.

Meat Taiilvs

BUTCHER SHOP.

Tal.lcs

Pair Steelyards

HloekK....r.

Saws

Cleavers

Knives

Ilaniini'rs

Buckets

liarivjw

Barrels

Tubs

Salt Box

Pair Steps . .

Scraper

Skewers

Desk

Shovel -

Balance Scales

Description.

OVERSEER OF LABOR ROOM

Bedsteads and Bedding

Chairs

Washstands

Table

Desk

Washbowl and Pitcher

r>c8cription.

Xumber.

Mirror

Basin jiml Tuh

Centr*.' Tal.lo

Pair Fire Irons

Buckets

DeMsriplion.

Xumber.

Tal.le

liasin aiul Pitcher

Bucket

Cliuir . . .

Pair Fire Irons

Closet

Sto<»l

1
1

Description.

Number.

clkrk's office.
Writ in" Desk

J^uok ('use

TaMes

Sand H<)x

Bucket

Dcsi-rijition.

DAY GUARDS ROOM

Bunks and ljc'(klin<x

Tables

Bencbcs

Water Pails

Dip] ler

liasi n

Fi'inlcr

Pair Fire Irons

Deseriptidn.

NHSHT (JUARDS ROOM.

Beds and ]kddin«f

Bunks

Tables

Bencbcs

Buckets

Dip])ers

Basius

(Miair

Description.

SITTING ROOM.

Copy Press and Bcneb

Seal' Press

Lot of Bouks

Table

(■bair.s

Beneb

Pair Fire Iron s

Stove

Description.

captain's room

Double Bedstead and Bedding

Bureaux

Guard Roll

Washstand

Table

Iron Safe

Bowl and Pitcher

Number.

Description.

Number.

VISITORS SITTING ROOM

Bu reaii

Table

Cliairs

Pilelier

Glasses

C'anillesticks

Pair Fire Irons

Description.

Number.

UOVERXOR's SLEEPING ROOM

Bedstead and Bedding

Table

"Wash Stand, Bowl, and Pitcher

Mirror

Set Window Curtains

Pair Fire Irons

Chamber

Description.

Number.

Bedstead and Bed

SPARE ROOM. NO.
\']\i<r

ONE.

Wash Stands

•?

DeBcription.

Number.

Sl'AUE ROOM. Xn.

liedstead ami ]UMldiii<r

TWO.

( 'lot lies Press

Wasli Stand and Basin

Chambers

•>

Description.

OFFICERS DININC RdoM.

Tal.les

Chairs

.\rni Chairs

( 'lotiet and contents.

DescriptioD.

KITCHEN.

Stove and Fixtures

Cuplioard

Table

Sink

Knife and Cooking Utensils.

Dcsiription. Number,

(il Alius' ItlMXO ROOM.

Plates (39

DislicH 14

Ciii's aiul SiiiKcrs 15

vcs and Forks 26

lcc KnifV' 1

- ,ir Howls 3

< I H-k 1

I 'ii|il>oar»l 1

l: I 1

I . lo 1

Tras pooii s 24

Deaoription. Number.

HIIKI).

Buck Saw 1

M:i.ll 1

Tul.s 6

AVln'olbarrow 1

Tal.lo 1

Ol.l Bi'.lstoa.l 1

CutlVe Roaster 1

DescriptioD.
OUARD-POST NO. ONE.

Brass Howitzer and appurtenances

Buckets

"Wash Basin

r>i]iper

Ladder

Number.

Description.
GUARD-POST NO. TWO

Tables

BciK'hos

BiK'kct

Basin

Tin Cup

Number.

Description.
GUARD-POST NO. TIIRKE

Bra.sR Cannon and appurtenances

Biukets

Table

Basi ns

Benehe.s

Cups

Description.
GUARD-POST NO. FOUR

Water Buckets

Basin

Dipper

Description.
GUARD-POST NO. FIVE

Brass Cannon and appurtenances

Old Gun Carriage

Benches

Table

Kammers

Description.

Number.

( iiiii Seivw

A iiiinuiiitioii Box...

1 1 1 1 ( • U t' t s

Hiiiik and Mattross
Wash Ha.siii

Dcsoriptiun.

ROOM AT LOWER GATE

Bi'«lsttails aii'l Bedding

Tal.lr

Waslistand. Howl, etc

riiairs

]J(IicIk's

Buckets

Desk

Pair Fire Irons

Ladders

Number.

Description.

Number.

Rifles

.VKMOUV.

Navy Pistols

Pistol Belts

Dra^'oon Pistols

Powder Fltisks

Cai) Boxes

New Rifles

Old Rifles

Cutlasses

Belts and Plates

Pistol ^^()lIlds

Rifle Moulds

li"und Shot

400

REPORT

OF TIIK

RESIDENT PHYSICIAN.

R K POR T.

i. » . Pknmk. Kxj..

Warilon ul" Stale Prison :

Sik: — III accord a I ICO with your I'cfpicst. I have the lioiior to submit ti;
yon tlic following report of the Medical Department of the E^-ison. for
Aw year eighteen hundreil and sixty-one.

Your.>, respectfully.

ALFUKI) \V TALIAFERHO.

Phv.siciau of Prison.

TABLE FIKST.

Xiimfxi- iif Prisiiiu IS f/uit haic rercivetl Meriira/ IWatwuf in I/ospifuf.
Dniljj Prescript If tnx thtriixi tlic ytitr.

lUi}

■

§•

a o

-t

•i

r--"

■^

iMouth.

f; a

-c

•**

•w_

—

— »

•

Jnnuary

730

1')

Fol)ni:irv

710

[)

March

(i'JO
67M
r>oO

_>
1

D
0

Aj.ril

^ay

June

700
720

4
•>

July

August

7nO

SiMltCinlKT

«70

fjao

700

«r>o

1
3

( )..t (ilii>r

Xoveiiibcr

1 U'ci'inlior

TABU-: SHCOM).

Xiimhtr Iff Dtntfis in JInsjn'tn/ iJuriinj thf i/tiir 1H()1.

Names.

When Received.

Leno C'assillo Dee. 15, 1860.

Demasia Berryesisa*.
Vietoriano Escobar*.
Santos Covarrubio*...
Jose M.Garnias iJan. 16, 1861.

Ah Li]..

-Mariano. (Indian).

Joseph Chin

May 10, 1861..
July 2, 1861..
Mav 4. 1861..

When Deceased.

Nature of Disease

Jan. 7.
Jan. 16,
Jan. 16,
Jan. 16.
I Jan. 18!
IJuly 5:

1861.,
1861..
1861.
1861..

Hydrothorax ....
Gun-shot wouml
Gun-shot wound
IGun-shot wouml

1861...iGun-shot wouml.

1861.

July 18. 1861...

|Oct. 4. 1861...!Hypochondriasi>

Const. Syphilis
Dysentery

* Killed in attempting to escape.

TABLE THIRD.

Xtmiftfr iif' rri.*i,iti ,s >■<;/.' !■■ /n-inn A<j//i>iii in tin ijatr If^til.

Xamf.

When Recfivcd.

Crime.

Son fence.

Joseph ('liaun(«-v.. AuiT. 10. IsmJGrand Lar(«Miy:4 years.

When sent to Asy'm

Dec. 20. ISfil..

iwr.i.K Korurii

Churnrtrr uj /i.-tt usts Tixitnl Jfiiii.i;/ tin Yitir 1^61.

Character <>f Disease^.

('alarrli

Iiitliu-nza

lHarrhan

Iiitirmitteiit Fev* r

I?eiuittent Fever

Dyenterv

('lir«»iiie Py.xenterv

lilicniuatisni. Clironic...
]\lnMiiiiati.<in. .\eute

iirisy

•nnionia

iKTlropliy (>(■ IFeart.

;lii><is I'ulnionales

stitutioiial S\]»liilis.

|iliilis. Heeeiit

iiorrhoea

^n iciure of Urethra....

Opiithalmia

Hemorrhoids

Fistula en Ano

Epilepsy

Fi'aeturcs

Gunshot Wounds

A eei dental Wounds

Hernia

' *-'>psv

•alvsis

Number.

200
150
130

05
fi

15
5

30
10
15
17

6
19
15

ANNUAL REPORT

THE ATTOUXEY-CENERAL,

F(»K

THE YE^R 1861.

BEN J. P. AVEBY STATE PRINTER.

A.ISriSrU^L REPORT

Attorney-Gknkral's Office, ")

Sucrunieiito, Dec. 15th, 1861. J

To His Excellency,

John G. Downey.

Governor of the State of California :

Sir : — It attbrds me pleasure to transmit to you this my fourth and last
Annual Ke]>ort, with a traiisci-jpt of my "Official Docket" for the present
year.

1 am, respectfully.

Your obedient servant,

THOMAS H. WILLIAMS,

Attorney-General .

HEPO II r.

Tlio <lo('ki't is al.uiil o«|iuil to tli:ii ol' the invt'cdiiiir year, and tlie iimn-
ber of continiu'd Judsrinents i^ivatiT.

The folldwin^' extracts from mv last report arc equally ai)))lieal.le
now :

•• Consideriiii"; the fact that the Attoniey-(iciieral is generally in the
position of resjjondent in the Supreme ( 'oiirt. the docket shows greater
success in maintaining the judgnu-nts of the lower Courts than could
reasonahly havi- lu'cn anticipated.

•' Upon insju'ction of the <locket, you will find in several instances that
no nnnute of the judgment «»f the Sui>reme Court has heen entered. 8uch
omission is unavoiihihle. there heing as yvt no decision rendered by that
Court in tliose cases.

• I regret to say that the official cf)rrespondeiiee of this office has not
decreased since my hist annual re])ort. and is therefore now. as then, too
voluminous to incorporate in the })resent official rc])ort.

•'It would atlord nu' |>leasure to give some reliable data in reference to
the amount of ci-ime committed in this State during the past year, and
also the number and success of jjrosecutions which have not reached the
highest Court, liut such is out of my power, owing to the defect of the
law relating to l)istrict Att<jrneys jiointed out in my last annual report.

•As heretofore. I have, during the past year, appeared in the lower
Courts in all cases where the interest of the State demanded it; but as
such .service was exti'a-offi(Hal, so far as being enjoined or required by
law. I have not included those cases in the docket, which relates, as you
will perceive, oidy to matters in the Supreme Court."

The most important suits of this class are those known as the '-suits
against Auctioneers." Dui-ing the last session of the Legislature, I made
a full report as to the condition of the thirteen suits instituted in January
of eighteen hundred and tifty-nine. and the sums expended in their ])ros-
eeution. Since that time we have tried seven of the cases, and obtained
judgments amounting in the total to six thousand four hundred and
seventy-tive dollars, of which three hundred dollars has been paid to Mr.
Yale, special counsel. The remainder is stayed by proceedings on appeal.

Two of the suits were dismissed because of the insolvency of the par-
ties, leaving four yet to be tried. The sum claimed in the latter amounts
to twentv-seven thousand six hundred dollars.

I think there is no doubt that judgments can be recovered in the cases
Rtill pending, and I believe that all of the judgments will be sustained by
the Suinvine Court, as that Court has alrea<ly. in The State r.s. I'oulterei-.
IG Cal. page 514. settled all the iinjx^rtant law questions involved. The
defendants in these cases have contested closely the right of recovery.
an<l judgments, so far, have been obtained only by the utmost vigilaiu
and unremitting attention upon the part of counsel representing tin
Government.

Mr. Yale, special counsel employed by the Board of Examiners, de-
serves great credit and liberal eonipensation for his untiring a])itlieation
to the business entrustetl to his eare. I gave him all the assistance in my
j>ower. consistent with a projter discharge of other |)ul>lic duties. During
the jirogress of the suits, we were comjK'lled to em])loy assistants to ferret
out tcstimoii}' and ascertain the names of witnesses on the part of the
State. For this we have expended small sums, and, ])erhaps, yet owe an
inconsideraltle amount. As to the nature, character, and value of the
services, Mr. Yale will report specially to the Legislature at any tim
desired.

TIm' moral effect <»f the litigation spoken of, if not parahzed by futui.
Legislative action, will be of more v:ilue to the State than the sums re-
cove rcfl.

Capitalists have been taught that their combinations to defeat the
operation of the revenue laws, cannot always succeed, and may some-
times prove a costly experiment.

It is to be hoped, that after all the labor devoted to this litigation, and
expenditure of money necessarily incurred on behalf of (Jovernment, the
Legislature will not. as heretofore, in like cases, release the parties lial)lc

In ol)edii'nce to Legislative direction, we also instituted thirty-eight
suits against the Auctioneers of San Francisco, in May of eighteen hun-
dred ami sixty-one. The aggregate amount claimed was a little ov«'i-
eighty tluMisand dollars, most, if not all of which, could be sustained by
proof obtained by ourselves and agents. The orily seri(»us question in-
V(dved in these cases was, whether the Act of A|)ril eighteenth, eighteen
hundred antl fifty-nine, entitled an Act to pn»vide for the licensing ot
Auctioneers, and to define their duties and liabilities, repealed the section^
of the Act of eighteen hundred and fifty-seven, upon which the suits
were based

For the ]»urpose of testing that question, we selected the case of tin
State r.s\ Conkling. and submitted it to the District Court. The intentioi
was. to take this case to the Supreme Court, obtain a decision, and hi
the other cases abide the result in that. The J)istrict Court. j)ro forma.
1 believe, renilered judgment against the plaintiff, and we appealed. Th
case was closely and elaborately argued in the Supreme Court by botli
sides, and, unfVtrtunately for the public treasury, the judgment of the
Court below was affirmed. In accordance with the judgment in the test
case mentioned, the other suits will have to be dismissed. The ground-
for our opinion that the State was entitled to recover in these cases, an
set forth in full in a brief filed in the Clerk's Office of the Suprenu
Court, a document too voluminous to be inserted here.

I beg leave to repeat, for the third time, the suggestions made in my
annual report of eighteen hundred and fifty-eight, in relation to the
passage of the following laws :

An Act to amend the Act concerning crimes and punishments, so as
to make the unlawful use or conversion, by a clerk, bailee, or other per-

he second time, the passage of the following
)rt of eitjhteen hundred and tifty-nine :

-ai aetini,' in a fiduciary or confidential capacity, of money, goods, or
' liattels, intrusted to him as such bailee, etc., a larceny.

.Vn Act relating to executions in civil cases.

-Viso, I recommend, for tht
A. ts. suggested in my report of eighteen hundred and fifty-
Acts rehiting to duelling.

An Act re])ealing or amending the three hundred and seventy-sixth
section of ti»e Criniinul Practice Act.

An Act relating to iniprisonment in cases of escape or appeal.

Acts rehiting to the institution and prosoeution of suits by or on behalf
of the State.

An Act amending the present Insolvent Law.

An Act amending the law concerning marriages.

And an Act to appoint a Commission, learned in the law, to prepare a
code of hiws for this State.

Al.so. the |»assage of the following Acts, suggested in my annual re-
port of last year :

An Act repealing ])ortions of the Act conceniiiig attorneys and coun-
sell(»rs at law. and amen<ling the law of c<»ntemi>ts.

An Act amending the .\ct concerning ofilces. [tassed March twentieth,
eighteen huinlrcd and sixty.

An Act anu'iiding the Act concerning divorces.

An Act relating to bail in criminal cases.

I also suggested the passage of an Act concerning chattel mortgages.

The suggestion was acted upon by the Legislature, to a limited extent,

by the passage of the Act found on page one hundred and ninety-seven

of the Statutes of eighteen Imndred and sixty-one. But in ni}' ojjinion

- Act <loes not go far enough ; it should embrace all kinds of per-

,alty.

iVt the session of eighteen hundred and sixty-one, the Legislature

t'a-sed an Act to change the venue in the case of The People vs. Horace

th. One of the provisions of this Act is that "all the expenses

_.wvving out of the indictment and trial of the said Smith shall be borne

by the State of California."

No appr<»priation. however, was made, to meet the liability incurred
un<ler tlic provisions of the Act. One should be made by the next Leg-
islature. Jiclieving that the State would meet this liability, I took the
precaution to make suggestions to the District Court, calculated to
reduce very much the amount which would have otherwise been allowed.
Li looking over the bill of items which have been forwarded to my
office, I see that my suggestions were substantiall}' complied Avith.

A question arose last summer, relating to the representation of the
new County of Mono in the councils of the State. The difficulty was
created by the conflict between the terms of the Act creating that county
and the Act defining the Senatorial and Assembly Districts of this State,
and to aj)portion the representation thereof. The Act creating the
countv attaches it to Tuolumne for representative purposes, and declares
that it shall form a part of the S>v<nf/i Senatorial District. The other
Act makes Tuolumne the Tin>f/th Senatorial District, and Santa Clara
the Seventh. 1 advised that the County of Mono should be held as
attached to Tuolumne for representative purposes. I believe that advice
was acted ui.on. Tlie conflict between the two Acts ought to be reme-
died by further legislation.

I suggest the passage of an Act authorizing the Governor of this
State to appoint a Commissioner, to act upon the part of the State, in

establishing the eastern boundary of the State, whenever the General
Government shall appoint a Commissioner or Commissioners for that
purpose; and tliat a ]»roi)er appropriation, for the puri>ose of IKiyina; the
expenses, be made, subject only to the order <»f the Governor. It is to
be regretted that past legislation ujxui this subject has conduced so littk'
to the pul)lic interest.

I recommend that the Act concerning Notaries Public be so amended
as not to place any limit upon the nujnl»er of Notaries foi* the ditl'eront
counties of this State. All such Acts should be lor the accommodation of
the public, instead of the aggrandizement of a few individuals. The only
objection urged to the system I propose is. that the a]»pointment of a
great number of Notaries would, by a division of lees, dicrease their in-
terest in tbe olKce. and. consequently, tlu-ir efforts to a pi-oper ilis-
charge of its duties. This argument would only a])ply to the lai*g(
cities, and even tlu're it is I'efuted by exjterieiice. We once had tbe sys-
tem I now recommend, and it worked well. Uiulei- tbe present system.
i)arties are frequently comj)elled to go st)me distjince to secure the ser-
vices of a Notary, while, under the otiier, ever}' neighborhood and villagt
could have one of those very necessary otticers.

I suggest the passage of an Act regulating the sale of jxiisons. Many
suicides occur in our State by the ungu;ii'<bM| access to jioisons. and it i>
(rtMpiently administered for'blonious purj)oses. A well guarded la\^
mii^lit check tlu' former, and lead to the detection of otb-ndei-s undoi- tii
latti-r. The best suggestion which occurs to my n)ind is. to make tia
sale oi" disjtosition of poisonous drugs. exce|>t upon (he preseription of a
practising jdiysician, or the written certiti<ates of two responsiiile citi-
zens of the county, showing the propriety of tbe sale, a criminal offence.

The incorporation of turnpike-roa<l companies within tbi.s State i
attended with greater exjiense and inconvenience than tbe foi-mation <m
eorjkoration.^ for any other ])urj>ose. There is no reason why this hIiouM
lie the case, and as such incoi'porations are becoming numerous and im
jtortant, 1 recommend that they be allowed to incoi'porate upon tbesaiH'
terms, and by tbe same steps, upon and ly wliieb eor|)oialions tor MiiniiiL
])urposes are formed.

1 recommend that all Acts hereafter passed, designing to com|)ensai'
county otticers for theii" services, by salaries to be paid from fees col
lected in their otlices, lie so Iramed as to limit them s<j|ely to the fund
created by the fees collected in their respective offices. My exjierience
is, that fees, going to the officer, accumulate much more ra])idly than
when collected for the benefit of the public treasury. The same rui(
sbould also be ajiplied to all counties now acting undei- tbe salary sys-
tem, after the expiration of the term of the jiresent officers.

The law relating to the institution of suits against defaulting officers,
needs some amendment. A^ the law now is. suits in behalf of the State
are ordered by the Controller, and. in behalf of the county, by the Board
of Sui)ervisors. In each case, the Di.>.trict Attorney is the prosecutor.
There is no provision, however, for cases in which the Controller, or
members of the Board of Supervisors, or the District Atttorney, hap-
pens to be a part}' in interest, as surety or otherwise, and cannot, for
that reason, act on behalf of the State or count}', as the case may be.

Section twenty-two of the Act concerning tlie writ of habeas corjjvs.
provides that if it shall appear to the Judge hearing the writ, that the
))arty is guilty of a criminal olfence. or ought not to be discharged, al-
though the charge be defectively or unsubstantially set forth in the pro-
cess or warrant of commitment, he shall cause witnesses to be brought

-re liim. and jirococd to cxjvmiiie the chai'ire anew. This applies ha
I to till- Sii|nvMie as to otiier Judges, and is caleuhitcd to occupy too
'•h ol" their time, which shouhl be devoted to other duties. I there-

:■• recununeud (hat in such cases, the Supreme Judge be permitted to
■ i.K-r the party for examination before any Magistrate competent to ex-
amine criminal charges.

At the hist session of the Legishiture. the ("ivil Practice Act was so
aiiicn.k'd as to ju-i'mit parties to testily in certain cases in their own be-
half. The hiw has operated well, and should be retained upon the statute
■k. Hut. as there is some doubt upon the question, I recommend that
>' so amended as to allow a parly to testify in behalf of a co-plaintiff
■ ■ 'o defi'iKlant. in all cases when he might testity in his own behalf.

I recommend a revision ol' the law relating to'the Supreme Court Re-
s of this State. This branch of the public service has cost too much.
i .>• entire reports of each year ought not to exceed two volumes; and,
in my opinion, all the CHses which should be rei)orted, can be embraced
in one volume. This end can be attained by pul)lishiiig only those cases
Jlnrtnl to l»e published by tlu- (.'ouit, or one of the Judges. The reports
ought to be pn-pai-ed umler the direction of the Judges, and a fund, not
exceeding two thousand five hunilred dollars, should be j)laced under
their cont rol. lor the i'mph)yment of an assistant. As good reporting
talent as the State affords can bi- secured for that sum jjcr annum. The
volume or volumes should be published b}' the State Printer, at rates
to be tixed by the Ijcgislalure, and each ought to contain at least seven
hundred and lifty j»ages. In addition to the copies necessary for the
use of the Slate, two or three Imndred copies ought to be struck off',
und placed in the Slate Tiilirary for sale, at reasonable rates, and the

"•eeds paid into the Library Fund. I merely suggest the plan, in gen-
i'terms, leaving the appropriate cortimittee of tlie Legislature, if the
ii lommendation is entertained, to investigate the details. 1 thiidc.
however. I can salVdy assert, that, if carried out, this course will secure
good rej)orts. and s;ive to the State Treasury half the sum annually' ex-
pended for reporting under the present system.

The Act for the observance of the Sabbath, passed at the last session,
is very defective. It should l)e repealed, or amended in many jjarticu-
lars. It unjustly discriminates between occupations, and, by its unfair-
ness. prom])ts an evasion of its provisions, if the Legislature deter-
mine to maintaiii the law, I recommend that, in addition to the neces-
sary amendments to secure its equal and uJiiform operation, provision
also be made to insure its enforcement, by increasing the penalty to be
inflicted upon those who offend the second lime, and by making it the
duty of all peace ofKcers to arrest or inform upon persons who, within
their knowledge, violate the law. A penalty should be attached to the
non-performance of such iluty by the peace officer. And, in the cities,
all Justices of the Peace should' have jurisdiction of the off'ences com-
mitted against the Act. W exclusive jurisdiction is given to the Mayor
or Police Judge, it will be an easy matter to evade the law, by formida-
ble combinations of interested parties, M'ho can so obstruct, by dilatory
trials, the administration ot' justice, as to compel the officers and Courts
to avoid their jtrosecution.

In Julv last, the Controller of State addressed a communication to this
ortiee. asking advice in reference to the drawing of warrants demanded
by the State Capitol Commissioners, for the purpose of settling with Mr.
Fennell. late contractor. My reply wa~ a.< follows :

Attorney-General's Office,

Sat-ranu'iito. July 8th, A. D. 18G1.
Hon. S. H. Brooks,

Controller :

Sir : — Your letter of the twenty-eighth ultimo, rcltitive to the demand
made upon you by the State Capitol Commissioners, for Controller's
warrants, to he used in their settlement with tho contractor Fenncll,
reached this oltice some days since.

Alter a very careful examination of the question, 1 am forced to the
conclusion that you are recpiired to issue the wan-ants.

The Act of May twentieth. eightet'U hundred and sixty-one. so requires,
and must he ohserved. unless it is in conHict with, or is modified hy. tho
jirovisions of some other Act equal or supei-ior to it in etl'ect. I cannot
tind any such Act. By the reference to section six. page ninety-four,
and sections two and eight, pages ninety-eight and ninety-nine, Wood's
Digest, which you make, I ])resumc you are of the impj-ession that the
modification sp(»ken of exists.

I am ((tmpelleil. as indicated in the outset, to dissent from your view,
and I think. u]»on a more critical examination, you will he foi-ced to a
change of o])iidon.

Sections six and two. referred to. declare that '-no warrant shall he
drawn on the Treasury, except there he an unexhauHted specific aj»pio-
priation hy law to meet the same."

It is not declared that " the warrant shall not l)e drawn until there i-
money in the Treasury to pay it," and the terms used are not to 1m
construed to so mean, as will apjtear, hoth hy the language enqjloyed
and long and frecpient Legislative interpretation of it.

'• Approj»riation " means "the ."^-tting apart of a sum of money, to he
expended for a given ])ur|»ose. and also the money thus set apart."
In other words, it is the declaration, hy comjtetent authority, that
a fixed sum of money may, or shall he used for a specified pu!'pos(
The declaration hy which the money is set apart is an aj)pr<q»i'iatioii
and to make the aj)|>ropriation c(»mplete. it is not necessary that tln'
money shall he actually on hand, or counted, or bagged and sej)arated
from other funds. It may be made of money to be received, as well a-
that on hand.

Mr. Chief Justice Murray, in The Attorney-General r«. Johnson et al..
(6 Cal. 49!i. ) declares one of the modes of creating a debt against tin
^tate, to be • by apjiropriation. whei-e there is no money to meet it."
and the constant practice of the State has been to make appropriation>
in advance of the revenue.

I cannot see that the word "exhausterl." which in the section quoted
])recedes " apj>ro])riation." atfects the question under discussion in the
slightest particular. It means consumed or expended.

Under the system prescribed b}' law for the operations of your office,
you enter in the proper book or books a statement of the sums dedanil
b)j fair applicable to ditferent purposes, and you then proceed to draw
M'arrants against that fund, which j-ou charge or enter accordingly.
When the -warrants have been diawn by you to the full amount of the
appropriation, you balance the fund as •• exhausted," Avithout inquiring
whether each warrant has been paid. To you it is perfectly immaterial;
you know bj- your books that the fund has been '• exhausted," because, in
contemplation of law, so far as your office is concerned, it has been
expended. If you were required to look to the question of actual pay-

ment for the basis of your action, you might, in case of faihire by holders
of warrants to present them, draw l)ey()ud the amount set apart by the
Legishiture tor thtit jiurpose.

Now to the hcijishitive construction of the question :

Section six, referred to by you. is in the Act of eighteen hundred and
fifty-four. (See Stat. lS54. p. :{0.) Prior, at. and "subsequent to that
time, the ControUer drew his warrants upon the Treasurer without
regard to the tiut of whether there was money in the Treasury, and
in the event of there being no money in the fund drawn ui)on, the
Treasurer registered the warrant, (see Stat. 1852, p. 56; Stat. 1855,
pp.4.") and 40; Stat. b*<.'.t>. ]>. 230, and sec. 8, p. 4b.) which warrant
wa.s jmyalde when there shouhl thereafter be money subject to it.

This system prevaih'd until eighteen hundred and fifty-seven, when we
find inserted in the general aj)propriati<ui bills a provision tbrbidding the
drawing of warrants upon a|»pr<>pi-iations made Ay thoxr .4<7.s- " until monej^
for the ]>aymi'nt of the sann- was [is] in the Treasury." From that
time to the |)ri'sent a similar provision lias been inserted in every general
appropriation Act.

You will especially observe that the same body, (Legislature of 1S57,)
which enaeted section two, referred to by you. was the first to insert in
the appropriation bills, (.see Acts bS57, p. :b'>2, sec. 8, and p. 854, sec. 3,)
the clause forbidding the drawing of warrants until there was money for
tlu'ir paymei»t in the Treasury. Showing clearly, that "unexhausted
n|tecifie ap|)ropriati<»n " was ni»t designe<| to refer to the fact of whether
tliere was m<»ney in the Treasury, but merely to the facts of a setting
apart ot'monev bv law. and tl" ilrduiuij nf inirnnits mjain^t thr f^nme.
1 am. resju-et fully, etc..

Your oliedient servant,

TliOS. ir. WILLIAMS,

At tornev-General.

The result <>f the advi< ,• given to tlie Controller is, that a warrant
must be drawn for any demand against -the Treasury when due, witliout
ard to the (piestiun whether there is or is not money in the Treasury
luret it, uidess the law otherwise expressly provides. As a conse-
quence, the current expenses of the Government have been postponed by
the payment <»f demands less meritorious, because the Legislature has
seen proper to insert in the general apjtropriation Act for the thirteenth
fiscal year, the provision prohibiting the issuance of warrants upon
ai>propriations made bv that Act. until the money to meet the same
shiuild be in the Treasury ; luit neglecting, either purposely or inadver-
tently, to attach a similar provision to the numerous special appropria-
is made duiing that session.

riie Controller acted in accordance with the advice which I gave him.
In doing s(». he did his duty, because he obeyed the law. notwithstanding
its unjust operation. It was also my duty, when called upon by the
Controller, to deelare to him what the law was— not what I preferred it
should be. I did so, and know that my conclusions were correct.

As a remedy for the evil suggested by the foregoing remarks, I recom-
mend the passage of an Act in the following terms:

'* The Controller of State shall not draw his warrant for the payment
of any money out of any appropriation made by law until the money for
the same is in the State Treasury, and all appropriations hereafter made

shall be held subject to the provisions of this Act, unless expressly ox-
cinptcd therefrom."

1 tilso recommend lluit a .speciiil fund, for the payment of the cui-rent
expenses of the Government, be created, and that the Treasurer of iState
he required to set apart, each month, a sufficient sum, if the same be in
the Treasury, to meet the demands upon that fund, befoi-e paying any
other claims. The result of adoptini^ this sui^s^estion will be, to prefer
thoHu who do the State service, to political schemers, lobbyists, or Trea-
8ury-leeches, and possibly to a few meritorious creilitors, but whose
demands are not so necessary to the administration of the Government
as those which 1 ])roj)osi' as preferred claims.

An Act was jmssed at the last session of the Le<i;islatiire, direct iiii^ the
Supreme and District Judges to require the Clerks of their respective
Courts to make and ti'ansmit to the Governor of the State, a memoran-
dum of all mistakes, errors, ambiguities, conflicts, defects, or cases ol
imperfect operation of the laws (tf this State, as may come to their
knowledge in the course of the administration of the law in their
respective Courts. I presume it was also desi^^ned or expecteii that llu'
Governor would, in turn, transnut to the assembled wisdom of tin
State, the result of the experienei' of the .Iiul«;es. The law is a i:;ooil
one ; but to make it eliective. the c<»mmillee to whom messai^es and
rcqxH'ts are referred, should be re(juii'ed l»y law oi* res<jlution to make a
upcri/ir report, within a reasonable time, upon each (juestion embraced
in such message or report.

The Legislative history of the State shows that, of the meritoriou-
otHcial recommendations made to the Legislature, nine tenths havt
slept the sleej) that knows no waking. And unless some remedy he
ailcq)ted, similar omissions will occur in the future. Li the manner 1
have indicated, the i-esult of Executive and Judicial labors will be;
brought prominently before the Legislature, and some acti«^n necessarily i
induced.

Your obedient servant, etc

THOMAS 11. WILLIAMS,

Attorney-General .

TRANSnilPTOF DOCKET.

Memorandum of
Judgment in Su-
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Stage of Proceedings in Court
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32

ANM AL KKPORT

Tlll^: SECKIXMIV OF STATE,

FOR

THK YE^R 1861

BEN J. P. AVERT STATE I'RINTK.R

A^^^^UAL REPORT.

Offick of Secretary of State. )

Srtcramonto. Cal., Dec. loth. 1861. [
To His Excellency,

JuM\ G. Downey.

(Jovornor ot the State of California :

Sir: — I have the honor to submit herewith a statement of the trans-
actions of this Department for the year eii^hteen hundred and sixty-
one.

The Laws. Journals, and Appendices of the Twelfth Session of the
Legislature, were received from the State Printer, and dnlj- transmitted
I)}- me, as required hy law. except to those States with whom. mail com-
munication had been sus|»enile<l hv order of the General Government.

Volumes XIV. XV. XVL XVH. and XVIII. of the Supreme Court
Kt-'ports. were also received ami transmittt-d in like manner.

The volumes retaiiie<l were dejiosited in the State Lil)rarv. to await
mIi future action as may he deemeil expedient.

The ]»ayments into the State Treasury for the benefit of the State
Library Fund, on account of fees received ili this De])artment for the
tirst three quarters of the current year, were as follows:

For the quarter ending April 1. IsGl ...

For the <piartt'r ending July 1. 1861

For the quarter endinir October 1. 1x61

Total

e8'38 00

1.295 00

724 50

S2,857 50

The number of blank Military Commissions issued to the Quarter-
master-General for the current year, is four hundred and fifty-three.

Under the Act of eighteen hundred and sixty-one, fifteen Exempt
Firemen's certificates have been issued by me.

The Capitol building is now undergoing the necessary repairs and
improvements, and will be ready at the assembling of the Legislature.

Respectfully submitted.

JOHXSOX PEICE,

Secretary of State.

FIRST ANNUAL REPORT

OF THB

f'rustets of tlje ^hk f ibarj.

DECEMBER, 1861.

BBNJ. P. AVKKY STATE PBINTEB.

^ N ISr U A^ L HEPORT

Sacramento, December, 1861.

r«> THK Leqislaturk of the State of California:

Wo Imve the honor to present to the Lofifisljiture the following report
)1" tlie present eondition of the Lil)rary,and the transactions during the
3ust year.

RcBpectfully submitted.

JOHN G. DOWNEY,
STEPHEN J. FIELD,
JOSEPH W. WINANS,

Trustees of the State Library.

REPORT.

Tlio number of books now in the Library is twenty thousand eight
huiniri'il and thirty-two; of which eight thousand live hundred and
foity-six are dupiicutert and extra copies of California Reports, Statutes,
and Journals.

VUv number of vohnnes registered is twelve thousand two hundred
and eighty-six ; of whieh. two thousand four hundred and fifty-seven are
Law Iteports ; <»ne thousanil two hundred and sixt^'-one are Law
Treatises; five liundred and eighty-four are Spanish and French Law
Reports and Treatises; two thousand one hundred and seventy-seven
are State Laws and Legislative Documents; and five thousand eight
humlred and seven arc Miscellaneous Books.

The number of Ixtoks atldcd to the Library during the past year is
one thousand six hundred and thirty-two ; of which one thousand and
seventy-four were purchased, and five hundred and seventy-five were
received by donation or exchange.

The f<»l lowing is a list of the books received from other States and
from individuals :

Donor.

Title.

Date.

Alabama

Connecticut.

Senate Journal. 1 vol

House Journal. 1 vol

Acts of General Assembly, 1 vol....

Reports, Vol. 28

Statutes, 1 vol

Revised Statutes, 1 vol

Public Acts, pamphlet, 3 copies

Private Laws, pamphlet, 2 copies...

Legislative Documents, 1 vol

Senate Journal, May Session, 1 vol

1859—1860
1859—1860
1859—1860

1796
1824
1838
1861
1861
1861
1861

Donor.

Connecticut.

Indiana
Iowa....
Kansas

Maryland

Massachusetts..

Minnesota

N. Hampshire.

New Jersey.

New York.

Title.

Senate Journal, October Session, pamphlet...

House Journal, May Session, 1 vol

House Journal, October Session, pamphlet ...
Catalogue of the Ist, 2d, 3d, 4th. and 5th Eeg-
iments Conn. Volunteers, pamphlets

Acts, Regular and Special Session, 1 vol., 2
copies

Revised Statutes, 1 vol
Reports, Vols. 9, 10....

Council Journal, Special Session, pamphlet...

House Journal Special Se.s.sion, pamphlet

Council and House Journal, General Session,

pamphlet

General Laws, passed at Special and General

Sessions, pamphlet

Reports, Vols. 15, 16.

Auditor's Report, pamphlet

Public Documents, 3 vols

Acts and Resolves, pamphlet, 3 copies.

Special Laws, Vol. 9

Allen's Reports, Vol. 1

Pl3'mouth Colony Records. Vol. 11

Senate Journal, 1 vol ,

House Journal, 1 vol

Session Laws, 1 vol

Report of Statistics, pamphlet.

Reports, Vols. 3, 4

Executive Documents. 1 vol

Senate and House Journals, 2 vols.

Report upon Schools, 1 vol

Laws, June Session, pamphlet

Agricultural Reports, 1 vol

Reports, Vol. 40

Date.

Appendix to Senate Journal,

Laws, 1 vol

Stockton's Reports, Vol. 3....
Beasley's Reports, Vol. 1

1vol.

Barbour's Reports, Vols. 30. 31

Parker's Criminal Reports, Vol. 4

Reports, Court of Appeals, Vols. 10, 21, 22.
Assembly Journal, 1 vol

1861
1861
1861

1861—1862
1860

1860
1860

1860

1860
1861
1861
1849—1853

1623—1682

1861
1861
1861
1860

1860

1860
1860
1860
1860

1860
1861

1860

Donor.

Now York.

North Carolina

Ohio

I'ennsylvania.
Rhode Ishiiid.

Tennessee.

Title.

Assembly Documents, 6 vols

Senate Documents, 1 vol

Senate Journal, 1 vol

Legislative Council Journal, 1 vol..,
Assembly Journal, Fourth Session,

Session liaws, 1 vol

Report of Regents of the University, pamph.
Report of Regents of the University on the

Cabinet of Natural History, pamphlet
Forty-Third Annual Hej)ort of the Trustees

of the State Library, pamphlet

1 vol.

Date.

18G0

1860

1691—1743

1743

1861

Reports, Jones' Law, Vol. 7

Reports, Jones' Equity, Vol. 5.

House Journals, 2 vols

House Documents, 2 vols

Senate Journals, 2 vols

Session Laws. 2 vols

Executive Documents, 2 vols

Agricultural Report, 1 vol

Statistics, 1 vol

State Reports, Vols, i), 10, '1

Revised Statutes, Swan & Critchtield, 2 vols.
Report of Library Commissioners, pamphlet

State Reports, Vols. 36, 37

Records of the Colon}' of, Vol.6

Acts and Resolves, January Session, pamph.
Acts and Resolves, April Session, pamphlet..
Acts and Resolves, May Session, pamphlet...

Vermont ..

Virginia .
"Wisconsin

Head's Reports. Vol. 2

Journal of the Senate and House, Extra Ses-
sion, 1 vol

Acts Extra Session, 1 vol

Nashville Directory. 2 copies

Several Legislative Pamphlets

House Journal, and Extra Session, 1 vol.
Senate Journal, and Extra Session, 1 vol.

Laws, 1 vol

Third Registration Report, 1 vol

House Journal, 1 vol

Legislative Documents, 6 vols.

Reports, Vols. 9, 10, 11

1860—1861

1860

1S60— 1861

1860—1861

1860

1859

1860

1861
1861
1861

1861

1861
1860—1861

1860—1861
1860—1861
1860
1859

1859—1860
1859—1860

Donor.

Title.

Date.

United States.

Hon. Milton S.
Latham

American State Papers, 34 vols.

Annals of Congress, 42 vols

Pamphlet Laws, 70 copies

House Journals, 8 vols

Senate Journals, 6 vols

Executive Documents, 108 vols.

Senate Documents, 100 vols.

Senate Reports, 10 vols.

Senate Miscellanies, 12 vols.

Reports of Committees, 28 vols.

Miscellaneous Documents, 24 vols.

Court of Claims Reports, 18 vols.

Messages and Documents, 10 vols.

United States Coast Surve}', 2 vols

Commercial Relations, 4 vols ,

Patent Office Reports, 2 vols

Report of Finances. 2 vols

Messages and Documents. 4 vols

Smithsonian Report. 1 vol

Militar}" Academy Report, 1 vol

Compulsory Enlistment of American Citi-
zens, 1 vol

Chinese Correspondence, 1 vol

Hon. John C. Patent Office Reports, 2 vols

Burch Pacific Railroad Surveys, 4 vols.

Hon. C.L.Scott

Address of C. L. Scott to his Constituents,
on Secession, pamphlet

1860
1861

1857-
1858.
1859
1857.
1858-
1859
1857-
1858
1859
1857-
1858-
1859
1857
1858
1859
1857
1858
1859
1857
1858
1859
1857
1858
1859
1857
1858
1859
I860-

—1861

-1858
-1859
-1860
-1858
-1859
-1860
-1858
-1859
-1860
-1858
-1859
-1800
-1858
-1859
-186(1
-1858
-1859
-1860
-1858
-1859
-1860
-1858
-1859
-1860
-1858
-1859
-1860
-1861

Donor.

Hon. W. W.
Cope

Geo. "W.Gordon
Col. E. E. Eyre.

Gen.n.W.Hal
leek

Title.

Gregory Yale...
S. W. Holliday.

E.N.Campbell.
W. Barnes

J. B. Walker.

T.J.Gallagher.

G. W. Hoyt.

The Chamber of
Commerce of
N.Y.,byJ.S
Eoman, Sec..

Mercantile Li
brary Associ-
ation of N.Y

Troy Young
Men's Ass'n.

Smithsonian
Institute....

Congi-essional Globe, 4 vols.

Military Commission to Europe, 1 vol

Proceedings of Conventions at Charleston
and Baltimore, 1 vol ,

Ilalleek's Mining Laws of Spain and Mexi

CO. 1 vol

De Fooz on the Law of Mines, 1 vol ,

Yale's Private Land Titles, 1 vol

Legislative Assembly of San Francisco, 1 vol

Report of City Litigation of San Francisco

1 vol

Transactions of Medical Society, pamphlet..

Report of the Superintendent of the Insur-
ance Department of New York, 4 vols...

Report of the officers of the Insane Asylum
of New Ilampshire, pamphlet

Constitution of the St. Marj-'s Library Asso-
ciation, pamphlet

Transactions of the AViscousin Agricultural
Society, 1 vol

Proceedings of the third National Quaran-
tine and Sanitary Convention, 1 vol

Report, exhibiting the experience of the Mu-
tual Life Insurance Company of New York,
1 vol

Fifteenth Annual Report of the Board of Di-
rectors of the Library, pamphlet

Catalogue of the Library of the Troy Young
Men's Association, 1 vol

University of Catalogue of the Library of the University
Vermont of Vermont, 1 vol

Smithsonian Contributions to Knowledge,
Vols. 11, 12 ■

Date.

1859—1860

1858

1858—1859

Donor.

Mercantile Li-
brary Associ-
ation of San
Francisco, by
H. H. Moore,
Librarian

Title.

Catalogue of the Library, 1 vol

Congressional Globe, 4 vols

Eeports of the President of the Association,
6 pamphlets

Date.

The amount of money paid into the Library Fund, and the disburse-
ments, are as follows :

Balance in Treasury, January 1, 1861

Paid in by members of the Legislature

Fees collected and paid in by the Secretary of State

Fees for Military Commissions paid in by the Adjutant-
General

Paid out for Books

Paid out for Binding

Paid out for Insuring the Library

Balance in the Treasury'

81,377 84

575 00

3,603 50

590 00

),146 34

1,208 56
252 50
330 00

$3,791 06
2,355 28

$6,146 34

The Trustees also report that a large number of books have been or-
dered, and are now on their way to the State from the Atlantic States
and Europe, and which, when received and paid for, will entirely ex-
haust the fund now on hand.

The considerable accession to the Fund during the past year, which
has enabled the Trustees so rapidly to augment the Library, has been
caused by the Militaiy Commissions which have been issued, and which,
heretofore, did not belong to the Library Fund ; and, consequently, it is
evident that as the cause of this increase is temporary in its nature, we
will hereafter be compelled to make slower advances in our rate of pro-
gress. We believe, however, that the present provision of the laws for
establishing a Library Fund will be ample for such an increase as will
be healthy and sufficient for the growing wants of our State.

JOHX G. DOWNEY,
STEPHEN J. FIELD,
JOSEPH W. WINANS,

Trustees of the State Library.

REPORT OF CO]irMISSIONERS

ON THE

CULTURE OF THE GRAPE-YINE

IN CA.LIFOIlNI^.

REPORTED BY TWO OF THE COMMISSIONERS APPOINTED BY THE GOVERNOR, UNDER A CON-
CURRENT RESOLUTION, ADOPTED MARCH 2, 1861, "TO REPORT UPON THE
WAYS AND MEANS BEST ADAPTED TO PROMOTE THE IMPROVEMENT
AND GROWTH OF THE URAPE-VINE IN CALIFORNIA."

BEN J. P. AVERY STATE PRINTER.

co]vi]vn:TisrrcA.Tioisr.

To THE Honorable the Senate of California :

T transmit herewith to your Iloiioriihle Eod}' the Official Report of
wo of tlie Commissioners aj)pointe(l hy tlie (rovernor, under a Concur-
ent Resolution, a(loj)te(l March second. ei<;hteen hundred and sixty-one,
• To report upon the wa^'s and means host adapted to promote the im-
)rovement and growth of the Grape- Vine in California." Also a letter
rom one of the Commissioners.

LELAND STANFORD,

Governor.

REPORT OF A. Hx\RASZTHY.

Til tlir llonordltfc f/tr Scnafr and Assi mU^ of the State of California :

In aoconlanco with a joint resolution of tlio As.senil)ly, adopted March
3eeond, oij^hteen liundred aii<l sixty-one, and concurred in hy the Senate,
A])ril first, eii^hteen liundred and sixty-one, authorizing and requesting
bis Excellency the Governor to appoint a Commission to report to the
next Legislature, upon the ways and means best adapted to promote the
imjirovement and culture of the grai)c-vine in California, 1 have the
honor to report as follows :

Having been appointed by his Excellency the Governor, J. G. Downey,
upon sai(l Commission. I lirst considered the best mode of fulfilling the
duties imi)Osed i>y the above resolution.

It became evitient to me that the objects of the Legislature would be
best secured by an examination of the ditterent varieties of grapes, and
the various modes of making wine, in the wine-growing countries of
Europe; and I communicated this view to the Governor, and offered my
services to proceed to Europe, if he should think it desirable. He ap-
iproved ni}^ suggestion and sanctioned the enterprise, and I at once pro-
ceeded on my journey.

On my way, I stopped at Washington, and was supplied by the Hon.
W. H. Seward, Secretarj- of State for the L'nited States, with a circular
letter directing the Diplomatic Agents of tlie United States in Europe
to afford me such assistance as lay in their power, in this important mis-
sion.

On my arrival in France, I opened a correspondence with the different
Imperial Agricultural and Horticultural Societies, requesting them to
furnish such infoi-mation and letters of introduction as would facilitate
my object.

They responded with cheerfulness, and I was received with distinction,
and afforded every opportunity for obtaining the information I required.
In fact, I met with general courtesy wdaerever I w^ent.

I visited various parts of France, the Netherlands, Holland, Eheinish
Prussia, Bavaria, ]^assau, Baden, Switzerland, Spain, Italy, and England.

Various examinations confirmed my previous conviction, that Califor- '
nia is superior in all the conditions of soil, climate, and other natural ad-
vantages, to the most favored wine-producing districts of Europe, and that
it actually has yielded considerably more per acre. All this State requires,
to pi-oduce a generous and noble wine, are the varieties of grajies from
which the most celebrated wines are made, and the same care and science
in its manufacture. This conclusion is the result of a thorough investi-
gation and i'requent consultations with manj' eminent men in Europe,
who assured me that the quality of the grapes governs, in a great
measure, the quality of the wine; a fact, proved by many scientific ex-
periments, showing that even in the least favored localities, whei"e com-
mon wines Avere ordinarily made, the finest and most costly wines had ,
been produced by planting the best varieties of grapes.

Having provided myself with analyses of the soil of California from
various localities,* it was not difficult to obtain a correct* estimate of its
average capacitjj as a wine-producing State. From all the information
I have been able to get, our climate and soil are greatly in our favor.

In view of all these facts and the purpose of my mission, I determined
to make arrangemcMits to purchase a quantity of vines, and also to exam-
ine every celebrated wine-making establishment within the limits of my
tour, so as to learn and describe tlie newest and best methods of making
wine.

I did not limit my observation and study to the manufactories alone,
but procured the reports of scientific committees appointed by ditterent
governments to investigate the subject by means of ditterent practical
experiments, continued through a series of years. I also obtained
the proceedings of the Congress assembled by order of the Government
of France, for the purpose of comjjarison and consultation, and whifch
was composed of the most scientific chemists and practical wine
makers. I availed myself of the reports of similar asseniblies held annu-
ally in Germany, and of the newest and best works, in various languages,
written by able men, who had spent their lives in the business of vine
culture and wine making.

It is proper to remark here, that the countries through which I trav-
elled possessed a lucrative trade by making raisins, drying figs and
prunes, raising almonds, cultivating mulberry trees for the sustenance of
the silk-worm, and above all. producing sugar at enormous profits, from the
sorgho, imphee. and sugar beet ; I therefore thought it advisable to add
to the more strict duties of my mission an investigation into these
branches of industry, and to procure the best and newest works concern-
ing them.

I was gratified to find, that of all the countries through Avhich I passed,
not one possessed the same advantages that are to be found in Californiaj
and I am satisfied that even if the separate advantages of these countries
could be combined in one, it would still be surpasssed by this State when
its now dormant resources shall be developed.

California can produce as noble and generous a wine as any in Europe;
more in quantity to the acre, and without repeated failures through
frosts, summer rains, hail storms, or other causes.

The quantity of raisins, currants, figs, almonds, olives, and prunes,
which we could raise, would surprise the most sanguine of our people.
The mulberry- and the silk-worm would occupy and give support to many
industrious females who have now no remunerative employment in the
rural districts, would aid the small farmer to educate a growing family,
and would add largely to the wealth and revenue of the State.

In my opinion, no country can surpass this in raising the sugar beet,

rirho, and imphee. There is no part of the world, except, perhaps,

lica, whjch can produce the same quantity of these commodities to
ilu' acre. The present inode of making sugar from these products is so
-iiiiple. that every farmer, at an expense of thirty dolhirs for machinery,

I manufacture enougli for liis own use, and have a considerable over-
, IS each year for the market. The capitalist too, may safely invest his
iii'Mie}" in this lucrative business, and enrich himself as well as our State.

The countries I visited in which these products are cultivated and

luifactured, derive from them a considerable revenue, as their statis-

I MS hIiow ; and there is no substantial obstacle to prevent the agricultur-

i-is of California from engaging in all the enterprises I have mentioned.

' I- higii pi-ice of lab(jr here is more than counterbalanced b}' the greater

lie tjf land, and the enormous taxes on these productions in Europe.

• development of tliese bi-anches of industry would not only add to

wealth of the State, but it would also lead to a large immigration

ii'iiii Kiirope.

31en conversant with the business have not hitherto migrated to Cali-
fcn-nia, because they had no hope of suitable emjiloyment. Capitalists,
ignorant of the resources of the State, have not considered the advan-
tages they possess for investment. Manufacturers, who have grown
Wealthy in the older countries, having sons or junior partners, would
gladly open branch houses here, as soon as it was known that they could
purchasi" an adequate supply of the raw material in this State.

lint it would lie imj)ossili|e to enumerate the benefits which this State
would dei'ive from such an increased application of her agricultural capa-
city; residents of ('alifornia who have visited our plantations, vineyards,
ami farms, and wlio have attended our District and County Fairs, may
be able to ajipreciate these just anticipations.

European Uovernments, well knowing the importance of agriculture
and horticulture, appropriate large sums every year, in various ways, for
the encouragement of these most imj)ortant branches of their wealth.
Agents are sent to all parts of the world to collect information, to report
on new inventions and ameliorations, and to ])urchase new varieties of
vines, trees, seeds, etc. Botanical oi- ex|)eiMmental gardens are kept, where
the plants, vines, or fruit trees are propagated, and then sold to the people
at cost price, or given free of charge, to each community, according to
population, for distribution among its land holders. Scientific and practi-
cal men are employed at high salaries, as officers of agriculture and horti-
culture, whose duty it is to make experiments in all their various branches.
The magnificent agricultural and horticultural schools, with their experi-
mental gardens, cost some States hundreds of thousands of dollars per
annum ; and their statesmen frankly confess that money could not be
more profitably expended.

It can also be shown by statistics, that those States which have ex-
pended most money in the encouragement of these departments of in-
dustrj', are now the wealthiest and most i)owerful, and their peoj)le the
least in Avant.

I would respectfully recommend that a law be passed appropriating
money for the purchase of land for a propagating and experimental gar-
den; and also, creating the office of Director, to supervise the garden;
also, the appropriation of a sum to purchase, from j^ear to year, seeds,
vines, etc., and for other necessary expenses in maintaining said garden.

In this connection, I would respectfully draw your attention to the
fact that, by late treaties with Japan and China, an opportunity is pre-

Bented to us to penetrate into those countries, which have heen sechided
for centuries. It is well known that many fruits and plants are raised
there which might be of great advantage if introduced into this State.

A thoroin'-h examination of those countries would probabFy bring to
ho-ht some products which have not been thought of here. To leave
such inquiries to private enterprise, would be a tardy mode of realizing
the object. I doubt if half a century would accomplish, by private means,
what might speedil}- be attained by official investigation.

No private individual, however wealth}-, would have the same facilities
to investigate and procure seeds and plants, as an agent authorized by
his Govci-nment. This is the case in civilized Europe 3 how much more
necessary is such a prestige in semi-civilized countries 'f

The passage of a law for tlie above purpose, may be opposed on the
ground that we have a National Garden at AVashington ; hut it is well
known that the few seeds and shrubs we receive from there, are too often
dry and useless.

California ought to propagate only such vines, fruits, seeds, etc., as are
con<a'nial to her soil and climate, and in large quantities, so that our citi-
zens can be promptly supplied.

The Patent Office represents too varied interests, climates and soils, to
do us much good here. One might as well say that California needs no
Governor, Legislature, or Judiciary, as our public atfairs might be admin-
istered from Washington ; and in fact, it would be easier to govern us
from Washington, than for the Patent Office to supply what we want for
the speedy development of our agricultural and horticultural resources.

In my travels I endeavored to induce capitalists to come amongst us
and establish business places; to purchase the grapes from the small pro-
ducers, as in Europe, and to erect manufactories for making wine and
extracting sugar from sorgho, beet root, and imphee. I also urged
the formation of a joint stock company, with a capital of a million dol-
lars, for the planting of vines, olives, almonds, mulberries, etc., in the
southern part of the State.

The i)ruspect for the consummation of these enterprises is favorable,
especially if the apprehensions of a foreign war should subside.

Whenever there was an opportunity to get an article about California
and its immense resources in an influential newspaper, I embraced it.
and many Government journals heralded our advantages by publishing
the letters your Commissioner had written their officials.

Permit me to say here, that in no way can the object of rapidly popu-
lating our State be more etfectually accomplished, than by authorized
agents travelling in Euroj^e, not for the direct purpose of inducing emi-
gration, but of noting the progress of agricultural and manufacturing
pursuits. These agents would come in contact with all classes of per
sons, questions would be eagerly asked, and opportunities be thus
atibrded to publish the advantages California possesses.

Coming from an official souix-e. the information would be credited,
newspapers would refer to it, and, with the aid of our " State Agricultural
Societ}-," (which I was fortunate enough to possess,) these authorized
statements would be authenticated by the enumerated premiums, and
descriptions from visiting committees. It excited surj)rise that a State
so young and so isolated, should have such wealth of agriculture and
horticulture as I proved, and this surprise among Eurojieans is not so
wonderful, as California was there known principally for its gold. Even
our eastern brethren were astonished when I showed from our reports

the extraordinary productiveness of our soil and the salubrity of our
ciiinate.

The appropriations made by the Legislature for the printing of the

|ii<)ceedings of tlie ••State Agricultural Society," have and will continue

iM i)ring back many times their amount. It would be well to distribute

these evidences of our resources in such a manner as would reach more

directly the jjcople in the East and in Europe. Books sent to otheragri-

« uitural societies generally fail to reach the public, being mostly retained

i. their libraries; but if they were sent to the editors of prominent

\vsj)apers, they would receive a much wider circulation.

1 have purciuised, in different parts of Europe, one hundred thousand

\iucs, embracing about fourteen hundred varieties; small lots of choice

iionds. olives, oranges, lemons, tigs, ])oniegranates. and TtaliaJi chest-

iis, enougii to |>ri)pagate from by grafts.

The majorit}- of tiie gra])e-vines 1 have engaged, I have seen bearing.
Froin those countries which I was unai)le to visit, I ordered, throuii-h our
Consids, (^to whom 1 remitteil the necessary funds.) such products as I
thought necessary, and I have no doubt the3- will be Ibrwarded in time
to be despatciied from Jlavi'e with the others.

My contracts were made in all ])laces in presence of the United States

iConsul, leaving the money with him. to be i)aid when the vines were deliv-

Vred, and instructing the (..'onsuls to send them so as to arrive in Havre
on or a few da3-s before the tirst of Decemi)er, eighteen hundred and
sixty-one. A gardener whom I employed will attend to their proper ship-
ment, take charge of them on the voyage, and re-]>ack them in New
York, where arrangements have been made Avith Wells, P'argo & Co.,
ft)i- their future I i-ansportation to San Francisco, under the cai-e and super-
vision of the gardener. All necessary jjrecaution has been taken, and 1 am
confident they will arrive in the best order. They are expected to arrive
in San Francisco by the steamer due on the twenty-third Januar}', eight-
een hundi-ed and sixtj'-two. As I do not know the exact freight and
expenses, I am not able to state the exact amount of costs and charges,

Ito your honorable body, but will do so as soon as possible.

\ It may not bo irrelevant here to mention the fact, that in California, as
Avell as in the Eastern States, the public mistrust the purity of California-
made wines, in the hands of merchants. Whether merchants do or do
not adulterate the wine, such doul»ts injure its character, and restrict its
sale greatly. Therefoi'e. to insure confidence, and ])revent such adulter-
ations, 1 would respectfull}' submit, whether it might not be a wise policy
to pass an Act api)ointing a (feneral Agent for the State, who should
reside in San Fi-ancisco, and to whom the wine producers could send their
wines to be sold. The Agent to sell the wine at the prices fixed by the
manufacturer, with the proprietor's label on the bottle; or if in barrels,
with his name attached t hereto. This Agent so appointed, to receive from
the owners of all wines or brandies sold, a commission, to be fixed by law,
and not to exceed the commissions usually received by merchants. The
Agent to defraj^ the expense of office and cellar, out of the commissions
he may receive.

The law creating said office might also impose heavy fines and confis-
cation of the liquor Ijelonging to any individual who should send for sale
adulterated articles. Sucli an office would be no burden to the State, nor
to the wine growers, as it would be optional with them to send their
wines to this office, or dispose of them in any other way. Every produ-
cer, however, would find it to his advantage to avail himself of this
medium, as be would meet a ready sale, and pay no more than the regu-

Jar commissions, while be would aid in preventing frauds, and thus create
confidence in the «;enuineness of our wines.

The Agent would have to be strictly impartial. All the samples should
be inditterently exposed, and accessible to purchasers, who could select
the Avines best suited to their tastes. The Agent should be required to
give ample bonds for the faithful and impartial performance of his duty,
and for the prompt payment of all receipts on account of sales.

This plan would, I believe, restore confidence, and be at least a cheek
upon poisoning our people by our own productions.

His p]xcelleney, the Governor, has directed me to propagate the vines
expected to arrive here from Europe, at Sonoma, and hold them and the
increase subject to the future disposition of the Legislature.

I have the honor to annex to this report a condensed statement, which
will serve to show the contents of a work I jn-opose to ])ublish, and which
will contain a full account of what I personally observed and inspected
in Eurojie ; with extracts from foreign works, reports of committees,
eminent writers, practical vintners, farmers, horticulturists, manufac-
turers, etc.

This work will consist of about eight hundred printed pages, Avith
.several hundred illustrations, well executed, representing ma])S, imple-
ments of wine making, for pruning and training vines, for drjing raisins,
currants, figs, prunes, and fruit of all descriptions; apparatus for making
sugar from sorgho, imjyhee, and beet root; and for tlraining and redeem-
ing overflowed and bai-ren lands.

As soon as this work is completed, which will lie I think before the ad-
journment of the Legislature, 1 will lurnish a printed copy to each liranch
of youi' honoi'able body.

Not having Iteen able, since my recent return, to learn anj^thing of my
colleagues and their labors, I respectfully submit this as my report.

I have the honor to be, with distinguished respect,
Your obedient sei-vant,

A. HARASZTHY,

Commissioner on the Improvement and Growth of the Grape-vine in
California.

RErORT OF J. J. WARNER.

I'u the llunorahlr thr >>» natc am/ Aam mhli/ of California^ in Liijislature con-
renid :

The uiidersii^ned. havinij been uppointe«l by bis Excellency the Gov-
ernor, one of the C'uniniissiuners upon the (rrowth and (,'ultivation of the
Vine, respectfully submits the following report, in accordance with the
resolution of your honorable body creating said Commission :

Upon being apprised of my ai)pointment and the names of my asso-
ciates. I addressed each of m}' colleagues, in order to effect an organiza-
tion of the Commission, or the ado])tion of some system or })hin that
would secure the beneticial co-operation of each member. The almost
immediate departure of one of my colleagues for Europe, and the failure
to receive any answer from the other, prevented the adoption of any
plan, or the division of the objects sought to be attained by your honora-
ble body, among the different members of the Commission.

Aware that, from a remote period to the present day, in all wine-pro-
ducing countries some special localities or particular vineyards have en-
joyed a high reputation, and produced a wine far more excellent than
others, under circunxstances not dissimilar, I deemed it a most essential
object to discover, if possible, in what this material difference in the
products of vineyards consisted. Modern chemistry having determined
the constituent properties, as well as the relative proportion of those
properties necessary to make a highly prized wine, the importance ot
knowing if the grapes of California did or did not contain those projjer-
ties, and. in their true proportion,*as well as to know the chemical nature
of the soil of such vineyards as produced a grape the properties of which
most nearly approximated to the standard of perfection, presented itself
in a forcilde manner. In a country offering a field as unlimited and un-
tried as California, and one in which so many persons are disposed to
invest their means and labor in the cultivation of the vine, it appeared
that a primary object of the Commission should be to obtain, thi-ough
the channels that were accessible, all the information possible respecting
the different varieties of grapes grown in the State, and the nature of the

Boil upon which they were produced, that those engaging in this business
might have something more than chance, or accident, or the self-interest
of a narsery-man, to aid them in determining what character of soil, or
variety of grape, should be selected, to secure a profitable return for the
capital, time and labor, invested.

In accordance with the preceding views, I addressed a letter to the
State Assajer. upon the subject of analyzing samples of the soils and
grape juice of diiferent vineyards. I also addressed a letter to the State
(leologist on the subject. The latter assured me that he would do all in
his power to aid and assist the Commissioners in carrying out the designs
of the Legislature, and that he would, within the following week, write
me at length upon the subject. Unfortunately this second letter never
came to hand. From the State Assayer 1 received an answer that he
would make an analysis of the samples, if sent to him. but that as he re-
ceived no salary from the State, he should look to his employers for com-
pensation for his services.

As the resolution, creating the Commission, contemplated no disburse-
ment on account of the State, but jjrovided that the Commissioners
ehould receive no pay. nor ask for any compensation for their services. I
was reluctantly compelled to forego the design of procuring some relia-
ble scientific data upon which to proceed, in presenting this interesting
and impru-tant subject for your consideration and action.

PRODUCT OF CALIFORNIA VINEYARDS.

As wine must be a prominent, if not the chief, product of the vine-
3'ards of California, and as the value of the product of a vineyard de-
pends so much more upon the quality of the wine than u])on any difference
in quantity, it is of the utmost importance to those about engaging in
this industrial pursuit, whether by planting or purchasing vineyards, to
know the peculiar properties of the grape, or, more properly, of the
juice which will be produced from vines grown upon any particular
variety of soil, or under ar)j peculiar or different locations, where the
chemical character of the soil is similar. An error in the selection of a
site for a vineyard, or of the variety of grape to be planted, is an error
for one's uhole life. The value of a location, where the vines will produce
grapes furnishing those properties and proximate principles essential to
the making of an excellent wine, cannot be estimated.

CONSTITUKNT TROPERTIES OF THE WINE GRAPE, AND THE EFFECT OF SOIL
AND ATMOSPHERE UPON THE DEVELOPMENT OF THESE PROPERTIES.

The properties of the wine grape are principally saccharine and acidu-
lous, aromatic and astringent. Grape sugar, ferment, tanic, malic, and
oenanthic acids, tartrate of lime, bitartrate of potash, and other salts,
volatile oils and ether, with mucilaginous matters, form constituent
properties of the grape, or are evolved in the process of fermentation.

Although much depends upon the variety of the grape used in the
making of wine, the nature of the soil, condition of the atmosphere, and
the general surroundings of the grape while growing and ri2)ening, exert
a more powerful influence to give a specific character to the wine pro-
duced, than the peculiar variety of grape. This being admitted, no
argument is requii-ed to show the importance of a judicious selection of
grounds destined for vineyards.

In planting a vineyard, as it is not for a season, or year, or decade of

years, but for generations, the expense of securing an advantageous loca-
tion Avill be an insignificant consideration, while an injudicious selection
will be a lasting evil.

Exporinicnts having demonstrated that a large proportion of the
material ])rodiict of tlie soil is in fact derived from the atmosphere, and
as every day's experience is convincing us of the controlling influence of
the atmosphere upon the quality of the soil's product, this most impor-
tant element should not be neglected in selecting vineyard lauds. As it
is well known that cuttings from the vines of vineyards which have
acquired great celebrity for the superiority of their wines, when removed
to another locality, fail to grow a grape which produces the same quality"
of wine as the parent vineyard, im)>licit reliance will not be placed upon
the particular variety of grape with which a vineyard is planted, or the
precise formula observed in the wine making.

IMPORTANCE OF JUDICIOUS SELECTIONS OF LAND FOR THE VINE.

The relative value of locations is strongly exemplified by the statistics
of the wine crop and ti'ade of France. The average value of the wine
is less than twelve cents, while the product of some comparatively few
vineyards is worth from'one to two dollars per gallon. And these favor-
ite wine-making vino^'ards, although their produce is only about one
third that of the vineyards of California, are valued at five thousand
dollars per acre.

While California presents a wide diversity, rarely equalled, of soil, it is
a remarkable peeuliarity that the extremes of this divergence are con-
tinually presented in the same topographical situation, and upon areas of
circumscribed extent, in almost every part of the State.

This geological peeuliarity is one which gives the tiller of the soil in
California a great advantage in selecting lands for any particular article
of production. To secure the benefit of this peculiarity, the farmer
must be possessed of the requisite knowledge to make appropriate selec-
tions.

In planting a vineyard for the purpose of making wine, having in
view the n-reat length of time which the vines will be productive, as well
as the number of years that must elapse before any definite conclusion
can be formed from actual experience of the quality of Avine produced, a
chemical analysis of the soil, and a careful observation of the atmosphere
of the pro])Osed site, should in all cases be a necessary prerequisite. While
the soils of vineyards in Europe and the Atlantic States have been care-
fully analyzed, ami the results made known, this is not the case in Cali-
fornia, and although we know that the produce of one vineyard far
excels that of another similarly situated, we are entirely in the dark
respecting any particularities Avhich may be present in the atmosphere
of the two places, or the mineralogical differences to be found in the
soil.

NECESSITY OF CHEMICAL ANALYSIS.

By a careful analysis of the juice of grapes of different varieties, and
from the vineyards of the principal vine-growing districts of the State,
a knowledge could immediately be obtained of the localities or vineyards
producing that quality of grape most desirable for w'me making. By
analyzing the soils of these vineyards, observing the topographical fea-
tures, and studying the atmospherical influences of the locations, we
would be in possession of some well defined landmarks to guide us in the

prosecution and development of tliis great resource of wealth and
industry.

Until an analysis of the soil of a number of vineyards producing the
best as well as the most inferior wine grape in each of the principal vine
districts of the State is obtained, so as to know the chemical properties
of the soil best adapted to the perfection of the grape in this climate,
dependence must be given to the results obtained in other countries. So
great is the difference of the seasons, climate and atmosphere, in Cali-
fornia, from those of Europe and almost every other wine-making coun-
try, this data, however, must be very unreliable. It cannot, with cer-
tainty, be assumed that a soil precisely corresponding to that of the best
wine-making vineyards of Europe, would be that which would produce
the best wine in tliis country.

LOCAL AND ATMOSPHERICAL INFLUENCES.

The location and aspect of a vincj-ard. with its topographical sur-
roundings. Avill materially aft'ect the qualit}' of the fruit. As the morn-
ing rays of the sun contain more vitality or life-giving power than those
of any other hour of the day. a vineyard should be so situated as to
obtain the fullest benefit of the early rays of light and heat. In securing
this advantage, care should be taken not to expose the vineyard to a
Bcrious detriment by placing it at the eastern base of a mountain or
range of hills running ]iarallcl to the coast, as this situation would
enhance its exposure to injury from frost. This, at least, would be the
consequence of suih locations west of the Sierra Nevada, if within range
of the night Avinds from those mountains.

A southern inclination of the land is highly beneficial, as it gives the
soil a higher temperature, which is desirable.

Mountains so situated as to reflect the rays of the sun, and give
greater warmth to the atmosphere surrounding the vines, as well as
those that protect the vine3'ard from cold and heavy winds, especially
those dry and parching ones which come over the Sierra Xevada, from
the interior, are of great utilit}', and should, whenever practicable, be
taken into consideration in selecting a location for a vineyai'd.

PLANTING OF A VINEYARD.

The absolute necessity that the rays of the sun should have free
access and uninterrupted passage to the ground, in order to furnish it
with the requisite degree of heat, as well as to stimulate the soil to give
out those principles which the roots of the vine are seeking, for the
highest perfection of the grapes, as well as to modify the atmosphere
surrounding the vines by exhalations from the earth, requires that the
vines should be planted at such a distance from each other as to prevent
their forming a complete matting over the ground. The advantage of
perfect ventilation, with a free circulation of the atmosphere among the
vines, affording the means for the ready escape of all excess of humidity
from the soil, can only be attained by this manner of planting. Deprived
of the rays of light, the grapes will contain no coloring matter, and few
or none of those principles, except water, which enter into the composi-
tion of wine. Precaution should consequently be taken in planting a
vineyard, so to plant as to secure, to the fullest possible extent, and with
the least outlay, all these advantages.

The annual growth of vines, as well as most other vegetables on this

roast, HO tar exceeds that of Europe, tliat the miniber of vinos grown
I here upon a speeified area of ground affords Uttle iudiealion of the
II limber tliat may he grown to the highest advantage on the' same extent
111' ground in this State. Expei'ienee, observation, and tlieory, would
• liieet that vines should not be ]danted at a h^ss (b'stanee than eight or
I u feet, and the greater distane(> would appear the most ])rererable, if
these objeets are to be seeured.

When it is taken into eonsideration, that in the wine product of a
vineyard, qudutili/ is relatively of little consecpience, while qualifi/ is of
the utmost importance, no weight should be given to the suggestion,
even were it literally true, that the product per acre of vines so planted
will be proportioiuibly less than if planted six feet apart. It is far from
certain that the vines u]>on an acre of land, planted at a distance of six
feet, will, when they have arrived at an age sufficient to furnish a grape
suitable for good wine, produce a greater y'wUl of must than if planted
eight feet asunder. The enormous proiluct. antl the area over which
some vines of the California wine-gi-a])e liave extended, as well as the
habit of wild grapes to seiul theii- bi-anches into every part of lofty and
wide-sj)rea(l forest trees, and load them with innunierable clusters fronx
one stock, furnish sufficient assurance that no diminution of product
would be the effect, even were the distance increased to twelve feet;
while from analogy and tlfeory it may Ite assumed that this manner of
planting, with Judicious training, would obviate that pernicious over-
growth of wood, which is so universal in California, so prejudicial to
([uantity aiul so fatal to (piality of fruit.

The first three or four years produce of vines is of little value for wine
making, being t;ir inferior to succeeding vintages. By the time the vines
have attained sufHeient age to produce a go(^il wine grape, they will have
extended over the grouiul so as to jirevent all ai)]K'arance of naked-
ness.— (Note.)

rUU.MNO AM> TR.VI.NING.

'Ihe beauty of the vineyard, the (juality as well as the (luantity of the
fruit, depending so very inueh upon the training of the vines, no ta(?teful
or thrifty cultivator will neglect this prominent and necessary feature of
a vineyard. It having been satisfactorily ascertained that fruits grown
in close proximity to tlie surface of a well cultivated soil, ri])en earlier,
are superior both in flavor and richness, no argument will be required to
enforce standard fraiiung and low culture as the most Judicious to be
adopted. Clusters of grapes near the surface of well tilled soil, enjoy a
greater degree of warmth during the day, and are protected from the
injurious effects of the diurnal and sudden atmos]>herical changes of tem-
perature b}' the heat radiated from the earth.

An open and expanded head, offering less obstruction to light, heat,
and the free circulation of the air. as well as presenting a more agreeable
appearance to the eye, than a close, confined, bushy one, should secure
its adojUion. As a general rule, it may be assumed that the form and
manner of trainiiii-- which Avill insure the most perfect and beautiful

Note.— A vineyard formerly bclonffinR to the Ciiitereian monk? in France, the vines of which were
supposed to l>e t'.ilir or live c-onturios old. idodueiiiK a wine of jrreat repute, was replanted after the
French revoliitiun. to obtain a greater product, as the old vines had become indifferent bearers.
The wine of the new vinevard has never e<iuallod that of the former. It is even secondary to that
of other old vineyards in'its vieinity, the prodiufs of which were formerly considered far inferior.
This is believed to be owing entirely to the less age of the vines.

formed head, will tend to the pi'oduction of the most excellent fruit
Althou,<>:li it may not for some years materially affect either the quality
or quantity of the annual product, the continued luxuriance and loiiiicv-
ity of a vineyard will be greatly assisted by a system of pruning which
shall leave the scars made upon the stocks by the cutting off of the run-
ners, as well as the removal of superfluous branches, as far as is prac-
ticalde. on one side of the permanent branches of the stock, as this will give
u more direct ami uninterru])ted course to the sap vessels for carrying
on the important functions which they are required to perform.

EXCKSSIVE (iRctWTII OF VINKS — HOW TREATED.

From the extraordinary vitality of the soil or atmosphere, or probably
both, of California, the yearly growth of wood and foliage is a serious
impediment to the perfection of the fruit to its greatest excellence. A
I'cmcdy for this evil is fretpiently sought by sliortening the runners
during the summer, after the berries are formed. This treatment, by
removing the obstiMictions to the i)assagc of the sun's rays to the soil,
furnishing more light and better ventilation, would seem to be the appro-
])riatc i-emc<ly. Tliere are reasons, however, which might justify the
conclusion that this practice, instead of obviating the evil, only tends to
its increase.

Kee])ing in view that the leaves are important and necessary agents
in collecting the material, as well as the laboratories where the chemical
j)rocesses of pre])aring the food which nourishes the berries are carried
on, and that no sap enters into the formation of the fruit until it has been
ex])osed to the light and action of the atmosj>here, in the lungs or leaves,
and that those leaves near the ends of the canes are the most vigorous
and active in this labor, it would api)ear conclusive that their removal
would ))rove a serious injury. When we add a few of the many othei*
consequences that must follow this treatment, the conclusion seems well
sup])orted. Suddenly depriving the vine of so large a number of its most
effective operatives, must j)roduce such a delay and derangement of re-
sults as to affect most disastrously the pei'fection of a fruit into the
composition of which enter so many principles. The berries are de-
j)rived of a large supply of sap which is on its way back to furnish them
with the material for their growth aad perfection. A great amount of
sap on its way to the laboratories is lost. This must cause a sudden
check to the influx of the material for the construction of the delicately
formed grape, and. consequently, a contraction of all the vessels and
ducts leading to the cells of the berries, as well as to the woody part or
stems of the cluster, at a time when the berries are the most urgent in
their demands for food in consequence of their rapidly ex])anding forms
and maturation. The sap in the roots, body, and remaining canes, unless
thrown ott' at the bleeding wounds, is dammed in its course and forced
into shrunken channels, to be carried to old and decrepit leaves, and, in
an unnatural and excessive quantit}', to the few remaining young and
active ones, to the great derangement of their accustomed labor, and
detrimental to the quality of the products to be returned to the berries.
Not only is the destination and condition of the greater part of the sap
which was on its waj' from the roots to the leaves, ruthlessly changed,
but it is forced from its natural and required purpose to the unseasona-
ble one of forming new leaves and new wood. Many old and dormant
buds are forced into a momentary activity, to send forth a few sickly-
leaves and branches, serving only to annoy the pruner the following sea-

Young and immature buds are forced to develop themselves into
es and branches, -whilst the remaining points of the canes, if any
• been spared, as well as those of all the lateral branches, are stimu-
1 to a more rapid growth and a hasty production of an undue pro-
ion of young and tender leaves, unprepared to supply the necessary
Ts of the famishing berries, even if their sudden deprivation and
ration had not rendered them incapable of being wrought into those
•-'Ct wine berries which they would have become had the hand of
hv owner been guided by ki

The conclusions to which on and reason leacj are, that the

•vils oi the overgrowth of v^nc^ taii be better remedied bv distant plant-
ng of the stocks and skilful winter pruning than by summer prui:ino-
>r < lii'i'ing. The pruning which appears best adapte'd for vines produ-
•ing I'M. much wood, is to leave the spurs intended for fruit-producing
imbs of greater length. It is believed, although further experiments,
kO solve all uncertainty, may be required, that the same number of
jranch-producing buds upon a moderate number of spurs will produce
nuth less wood and foliage, with "an equal or greater weight of fruit,
han the same numl>er of buds upon a greater number of spurs. Besides
L:^ advantage of long spur jtruning. another not less beneficial result
V ;i be the removal of a greater jiart of the foliage from the centre of
iie head, and from the immmediaie locality of the clusters of fruit, to
he circumference, thus giving the clusters more space, less confinement
Df air. and all the benefits of greater exposure to light and heat.
"When the spmr \et\ in pruning is intended more especially for a new
permanent branch, then the spur should be cut short, leaving not
e than one bud. as by this short pruning a much stouter and more
_ rous branch will be the result.

TILLAGE OF TINETARI»e.

The owner of a vineyard who suffers the vines to become choked with
A'eeds does not deserve the ajt}»ellation of vine grower, and he who cul-
ivates the soil of his vineyard to no further extent, and with no higher
than to eradicate the weeds and grass, has not attained the first
:.ciples of tillage. The turning under of the surface soil and exposing
pf fresh earth to the influences of the atmosj»here. light, and heat, as
It. 11 as the loosening and pulverizing of the soil to as great a depth as
ticable. without injury to the vine by too much cutting of the roots,
I > au annual necessity which cannot be neglected with impunity by those
who expect to obtain grapes of an excellent quality. Frequent scarifi-
2ation. by surface ploughing, or by the hoe. cultivator, or harrow, is
required, to keep the surface in its best condition to receive and absorb
the beneficial influences of the atmosphere, light, and heat, and to trans-
mit the benefits of those influences to the roots, or radiate and exhale
them into the atmosphere surrounding the leaves of the "vine. There
B many and good reasons for believing that the soil of California,
when thus cultivated, will not require artificial irrigation for the neces-
sary growth of the vine and the highest perfection of its fruit. Experi-
ments on an extensive scale within the past few years, are giving encour-
aging anticipations of demonstrating, beyond cavil, the truthfulness of
this Belief

GATHERING AND PRESSING

The avidity of grapes to absorb and retain the odor of any foreign
body with which they are brought in contact, or with which the atmos-
phere that surrounds them is charged, should serve as a sufficient caution
to secure tlie greatest possible neatness and circumspection in everything
appertaining to the gathering and pressing of grapes, the removal and
fermenting of the must, and in the handling of the wine, as this greed-
iness of the gra})e passes into its products.

Few persons in California can be ignorant of the fact, that grapes
packed in sawdust, or enveloped in brown paper for a few days only,
acquire the odor of those materials to such a degree as to deprive them
of all their tine flavor, and leave them as Avorthless and insipid to the
taste as a compound of sugar, water and sawdust, or brown paper.

The effect of the atmosphere, es]>ecially with the thermometer at eighty
or ninety degrees Fahrenheit, upon a l)roken or bruised grape, is almost
instantaneous to produce fermentation.

Grapes should be picked only iu dry weather, when there is no dew or
moisture adhering to the cluster or berries. The}' should never be
placed in piles, nor suffered to remain in the vessels in which they are
gathered.

The vessels or baskets used in the picking and removal of the grapes
from the vines to the press, should be clean, in the most rigid sense of
the word. The greatest care should be observed that the berries are
neither bruised nor broken from the stems before reaching the press. All
berries, except those that are perfectly ripe and sweet, and uninjured
from any cause whatever, should be separated from the cluster by the
gatherer, and carefully excluded from the press when making good wine.
The grapes should be immediately taken to the press when picked, and
crushed as rapidly as possible, until the fermenting vessel or tub is filled.
The point of perfection in this part of the process is to fill the vessel in
which the must is placed to ferment, before any portion of the must has
commenced fermenting. But as this is unattainable except in cold
weather, the wine maker should strive to reach the nearest possible ap-
proximation. As all exposure of the must to the atmosj)here after fer-
mentation has commenced is deleterious, and as fermentation almost
necessarily takes place at the press, great care should Ije used, in remov-
ing the must from the press, to screen it as far as possible from contact
with the atmosphere. All the utensils used about the press should be
scrupulously clean, not only from all foreign substances, but from decom-
posed or fermented must.

FERMENTATION, OR MAKING OF WINE.

To convert grape juice into perfect wine, the fermentation must be
carried on until all the sugar contained in the must is decomposed.
Some of the wines of commerce are suffered to retain a greater or less
proportion of the saccharine principle, and are known as sweet wines.

Grape juice is subject to two separate and distinct fermentations,
known as vinous and acetous. The first forms wine, the second vinegar.
The former contains a large proportion of alcohol, the latter none.
Althon<i;h these two fermentations have no identity one with the other,
and the latter cannot commence until the former" has taken place, yet
they may both be in active operation at the same time in the same body
of must. It is principally owing to this fact that wine making is difficult,

and that in wine — especially red wine — the presence of vinegar can be so
iVcqiiently detected.

As the process of fermentation increases the temperature of the must,
stiinulatini^ the action to a higher degree, so the formation of alcohol
tends to check, and, when it is in sufficient quantity, will entirely stop
the fermentation, it follows that the temperature of the fermenting must
will be affected during the process, as the quantity of alcohol is increased.
When the must contains a large pro])ortion of sugar, the quantity of
;il<ohol formed will in all cases stop the fermentationbefore all the sugar
i- decomposed, and the wine will be left sweet, if the temperature of the
tiiinenting cellar or room is not sutticieiitly raised. If acetic fermenta-
tion commences, alcohol is decomposed, and as the quantity of alcohol ii
thus diminished, the vinous fermentation may continue, or be renewed
alter suspension, until all the sugar is decomposed.

To avoid these results, the grapes should be cool when crushed, and
the must ])laccd in a cellar, with the temperature at about fifty-five de-
;^i(es, Fahrenheit, until the fermentation has reached its most active state,
\\\\vn the heat of the cellar should be gradually increased to eighty or
iii;hty-five degrees, Fahrenheit, until there is no sugar remaining in the
must.

l'\'rmenting vessels should be so constructed as to exclude the atmos-
pliere. while they permit the carbonie acid gas which is generated, to ea-
<a|)e. In the making of white wine, little or no difficulty is encountered
ill the attainment of this end, but in red wine, owing to the greater ac-
tivity of the fermentation, in consequence of the presence of the skins,
s' t(l, and ])ulp. the entire exclusion of the air is not so feasible, and red
wine is, therefore, much more liable than white wine to be affected hj
arctic fermentation.

With a little additional expense, ferment ing-tubs can and should, with-
out exception, be so made as to meet this requirement, even in the fer-
menting of red wines.

As tlie husks, soon after fermentation commences, (in ordinary ves-
t^tls,) rise to and above the surface of the must, bringing with them,
and exposing to the atmosphere, the alcohol which has formed, the acet-
ous fermentation almost immediately takes place in and among the husks.
Tliis is readily discovered by the vinegar smell which is emitted, as well
as by the ])resence of vinegar flies, which are never found about the wine
tub until vinegar is present.

It is not an uncommon practice of red wine makers, for the purpose of
giving a higher color to the wine, to break up the hard and compact mass
of skins which have risen to the surface, and stir them into the ferment-
ing must. Tills practice is doubly pernicious. It carries down the at-
mosphere and incorporates it with the must, thereby inducing acetous
fermentation, and the vinegar, which has formed in the husks, is irre-
trievably incorporated with the forming wine.

Fermenting-tiibs are and should be so constructed as to prevent the
luisks and pulp from rising to the surface. This is easily accomplished
by means of a perforated cover made to fit the inside of the tub, and se-
cured upon the surface of the must before fermentation commences.
This cover, being fastened to the tub, prevents the pulp and skins from
rising, while the holes permit the must to pass through. Tubs may be
constructed in this manner and fitted with a tight head, having a tube
with a valve to permit the escape of the gas, and secure the must from
!the atmosphere.

RACKING OF WINES — EFFECTS OF THE ATMOSPHERE UPOxV.

Every one, who is the least conversant with wine making, must be
aware of the universal recommendation, to rack wines in clear, cool, and
dry weather. While the importance of this injunction cannot be over-
estimated, and those who handle wine will endeavor to be guided by it,
few persons, at least in California, are governed by the reason or the
philosophy of the injunction. The atmosphere of a warm, damp, sultry
day, and that of a windy and rainy, one, or that of a clear, cool, and dry
day,- is composed of the same elements. Tiie only diiference is in the
proportion of those elements. If there exist in the atmosphere of a
sultry, or cloudy day, elements which will injure wine if racked on that
day, there are also the same elements in the days most proper. And if
those elements, in sufficient quantity, are brought in contact with the
moving liquid, it will sustain the same injnr}^ that would befall it, were it
moved in the most unfavorable da}'. Consequently, it is not so much the
character of the day, or the condition of the atmosphere, Avhich injuri-
ously affects wine when being racked, as its exposure or seclusion from
the air wliile ])as,sing from one vessel to another. It is the coming in
contact with the atmosphere that is injurious, and the more perfect that
contact or exposure is, the more serious will be the consequence.

In the transferring of wine from one vessel to another, in all its dif-
ferent stages, from incipient fermentation to the pouring it for the last
time into the wine cup, exclusion from the air should be the great object.
Wine cannot be too carefully screened from the atmosphere, howevei-
cool, dry, and pure, may be that atmosphere. Hose is the most conve-
nient and perfect medium for changing wine from one cask to another.
It should be so arranged that the flowing stream will not come in con-
tact with the air. A syphon will answer the ])urpose, if so constructed
that the delivering end reaches the bottom of the vessel to be filled.

If so deleterious is the effect of the atmosphere upon wine, that by its
exposure in an open cask for a few days, or in a cup for a few hours, it
loses its choicest properties, although but an inconceivable minute pail
of it. merely the surface, is in contact with the air, what must be the
effect of exposing each individual particle to its action, as invariably
occurs when a stream falls a considerable distance, even within a cask, or
passes with great velocity through the atmosphere ? A column of wine
falling a short distance, or flowing but a few inches through the atmos-
phere, with that velocity with which a stream leaves the aperture of a
large cask, forces along with it a volume of air, which is carried into the
depositing wine, saturating it with air. until it pervades the entire mass,
and brings each particle of wine in immediate contact with the atmos-
phere. The effect of thus filling the wine with air, is to bring the oxygen
of the atmosphere, and the alcohol of the wine, in direct contact, which,
from their aifinity, readily form new combinations, which produce acetic
acid, or escape, depriving the wine of its alcohol, and in its stead substi-
tuting vinegar.

VINEYARD LOCATIONS RELATIVE VALUE AND IMPORTANCE OF.

The relative value of different locations, for the production of wine, is
'forcibly presented in the wine statistics of all vine-growing countries.
The average annual product of the vineyards of France is more than
nine hundred and fifty millions of gallons, and valued at about one hun-
dred millions of dollars, a fraction more than ten cents per gallon. This

iii;j?regate and average includes all the best qualities of French wines.
Taking into consideration that the finest qualities of the wines, which
enter into this computation, are worth from one to two dollars per gal-
lon, we are surprised at the small proportion which the good wines of
that country hear to the whole product, and the insignificant value of
the poorer qualities.

In the Province of Burgundy, one of the finest wine districts of France,
the value of the wine ranges from eighty-five cents to thirteen cents per
irallon. The red wines of Saone and Loire, present a ditference in value
>i ill greater between the best and the inferior; the former is valued at

Lrhty-six cents, the latter at (»nly five cents ])er gallon,
it slioidd he the aim of the Legislature to ditfuse knowledge among the
|. ojile. so that in succeeding years the wine statistics of California shall
iiMi show such a disj)arity in the value, nor a siniilar relative yiroportion
I ft ween the good and inferior, as is now presented in the statistics of
I'lance, but that the good wines shall be counted by tens of thousands of

lUous, while the inferior shall be numbered by hundreds only.

ADAPTATION OF CALIFORNIA TO THE PRODUCTION OF SUPERIOR WINES.

It would be a strange and unprecedented peculiarity of a country
jiioducing a variety of grapes, the qualities of which, so far as they can
1 r determine*! by the taste, are of superior richness and flavor, the
vineyards of which are the most prolific known — that it should be inca-
]>aMe of i)roducing good wine.

i'he etpiableness of the climate, and the pui'ity of the atmosphere of
< aliforiiia, are such as indicate its most perfect adaptation to the pro-
liiiction of wines of tiie greatest excellence, while the great diversity of
ii-^ soil, and its varied topography, promise abundant varieties. If the
atmospherical influences, and the soils in difterent localities of France
are SO dissimilar as to produce wines varying in their value from five to
two hun<lred cents per gallon, we should not expect every locality where
the vine flourishes to be equally suited to the production of wine, or that
all the vineyards of ( 'alifoi'nia will jtroduce a wine of the first quality. But
troiu what has been ])roduced. there are suflicient grounds for the most
>aiiguine anticij)ation that the renown which California is destined to
achieve, by the quantity and quality of her wine product, will make men
t'urgetful of \\(.'\' (jolilin harvests.

AVere it not sustained by histor}', and statistics of the present day, that
under similar circumstances the wines of one vineyard are so far sttpe-
ri(n- to those of another in the same vicinity, as to be eagerly sought
atter at enhanced prices, varying from twenty to forty fold, it would be
incredible.

DEFICIENCY OF KNOWLEDGE — ITS UNFORTUNATE EFFECT.

It has been the misfortune of California, and detrimental to its wine
trade, that there was no source from Avhich the pioneers in the cultiva-
tion of the grape and the making of wine could obtain the knowledge
iiulispensabie to crown their labor with success. There was no store-
house of facts, treasured up from the contributions of past generations,
from which to draw information. There were no associations of scien-
tific, learned, or practical men, to light the way before or around them.
There was.no knowledge respecting the chemical nature of the soils in
the different localities, or of the particular variety of grape generally
cultivated, or what varieties wci-e best adapted to the climate or the

varying soils of California. There was an utter ignorance of the prop-
erties of the grape most extensively grown in the vineyards, and no
means by which the}" could be ascertained. It is doubtlul whether at
this time there are to be found in the State, those instruments requisite
for determining even the quantity" or proportion of saccharine matter in
the juice of the grape. It is notoriously true, at least in the southern
part of the State, tluit no attempt is made by the wine makers to dis-
cover the constituent properties of the must, and their proportions,
before it is fermented.

There were one or two facts sufficiently conspicuous to attract the!
notice of every person. The vineyards of California yielded from two to
four ibid more than those of Europe, and the fruit was sweet and palata-
ble. AVith this meagre stock of knowledge, men of enterprise entered
the inviting field ; and whether the}- groped their way cautiously in
the dark, or rushed impetuously forward, ambitious to monopolize the
whole fie'ld. and ])resH the entii-e vintage of California into their dwarfish
cellars, disnppointment and failure have been the general result.

A few individuals, with a nolder aim. commenced at an early period of
our political existence to develop this most l)eneficial branch of industry.
They invested largely of their means, in costly apparatus and ex]>ensive
fixtures, for the making of wine; in ])reparing and furnishing ample and
suitable cellars, both for fermenting and storing the product of their
labor until matured. Their enterprising and persevering spirits, aided
and sustained by an energ}- worthy of success, stimulated them to labor
with uni-emitting toil, in their efforts to make wines which should obtain
a reputation among consumers, and command the attention of wine
merchants, rnforeseen obstacles s])rung up in their Y>at\\. Avhich, added
to the anticipated ones, made their ])rogi'ess .slow, and their labor ardu-
ous. They saw their reserved capital rajjidly transforming itself into
accumulating stocks of wine, while the demand did not increase in a
corres])onding i-atio. The perseverance with which they were endowed,
nurtured a confidence that ere long their accumulated stocks would,
from age and maturity, attract more attention. But to crown their con-
tinued efforts with disappointment, the adulterators of California wines
entered the field the moment a demand was discovered, and with their
base mixtures, together with large quantities of spoiled and imperfectly
made wines, which were forced upon the market, by men of not much
greater means than scruples, at once checked and froze the growing
demand for home consumption and inquiry for exportation.

The deficiency of knowledge, and total absence of the means of pro-
curing such as was necessary to make a good original wine, enticed too
many of the wine makers to spend their means and labor in the profit-
less attempt to make wines which should resemble some favorite wine
of commerce.

If not known, it should be, by every person engaged in wine making,
that if nothing more profitable than an imitation of the favorite
European wines can be produced by the vineyards of California, the
cities of Havre. London, and New York, are more promising fields for
producing those imitations, and to a nearer perfection, than the vine-
yards and wine cellars of California.

In all wine countries, successive generations have trodden the wine
press, each acquiring some little knowledge, or obtaining some fact, or
discovering some principle, until in the course of many generations, a
store of knowledge was accumulated, sufficient to guide "the labors of
the vine grower and wine maker to a successful result.

Xo sound argument can be adduced why, in process of time, without
any Legishitivc aid, the same result will not be reached in California. It
i> probable tiiat some generations will pass away, that tens of thousands
oi (iollars, and years of lahor of many hundreds of peoi)le, will in the
meantime be unavailingly expended. But while this process is slowly
working out to a successful issue, the valuation of the vine fields and
the wealth of the wine cellars of California, will remain in a latent
coiiditiou. Ten thousand rivulets, forming a mighty stream of revenue,
emptying into the piil>lic treasury, will not begin to flow until a period
mure or less remote.

LEGISLATIVE AH) — ITS BENEFIT TO THE STATE.

The wine crop of California will in two or three years amount to
millions of gallons. If, by liegislative encouragement and the judicious

|ieiiditure of a few tlKtusand dollars by the State, the value of this
j Mluct could be increased from ten or twenty cents the gallon to eighty
<'i- one hundred cents, the benefit to the State woidd be the revenue from

now ca])ital, equal to sevent^'-five dollars for every hundred gallons of

ne ]u-oduced. And the wines of the wine cellars, which your Assessors
aie now compelled to value at twenty or twenty-five cents per gallon,
and which, uidess some beneficial change occurs, they will, in a brief
pi i-iod be obliged to value at ten or twelve cents, would then meet with
a satisfactory valuation at a quadruple amount.

The increased value of the wines would l»e but a small ])art of the aug-
mented wealth of the State, from which a revenue would be derived.
The vineyards pi-oducing fine wines would be worth thousands of dollars
per acre, instead of a mere nominal sum, and the lands, knowii by your
means to be suital)le for first class wines, would obtain a high valuation,
and be soon covered with productive vineyards and costly improvements.

The making of good wine requires a large capital. If, by Legislative
encouragement, the product of the vineyards and vine lands of California
can be converted into wines of the first class, the amount of capital which
will, simultaneously with that event, be annually laid before your A.sses-
sors, woultl almost exceed belief. — (Note.)

XoTE. — From the bc.-t data which I have been able to procure, the number «f giape-vincs in
Califi.riiia in eii^htccn hun<lrid and tifty-.-^ix, was one million five huiidreil and forty thousand one
hundred ami thirty-f<>ur. In the (ollowing three year.-* the nnmln-r was auirniented, so that in
eighteen hundred and fifty-nine it was but little less than four million, more than one third of
which, one million si.x hundred and fifty thousand, were in the County of Los Aurreles, and the
most careful estimate place'l the numlier at si.x millions in eijrhteen hundreil and sixty. The
reports of County Assessors and Surveyors for ei'.'lit -en hundred and sixty, were very deficient.

It thus appear.* that in four years eudin- the last decade, the nunilier of grape-vines was quad-
rupled. If the product of these vines should prove a first-class wine, this ratio of increase will
continue until tlie product of California will b.- hundreds of milliiins of gallons.

These six millions of vines, it maybe estimated, occupy only seven thousand acres of land, a
minute fraction of the total quantity" of what is Ijelieved to be good vine land in California. It
may be safely estimated that the product of these vines will be equal to five million gallons of
wine in eighteen hundred and sixtv-five. If th-j quality of our wines can be improved so as to
come into general use by the people of this State, thereby excluding foreign wines from our shore,
and retaining within the State the amount now paid for them, it would be no inconsiderable pecu-
niary benefit to the State. Their general use would correct iho taste for, and habit of, drinking
ardent spirits. In France, the consumption of wine is about twenty gallons per capita yearly,
while that of anient spirits is less than half a gallon. In England, producing no wine, the eon-
snmption of ardent spirits exceeds one irallon per annum for each inhabitant, and it is probable
that in the United States the quantity is still greater. The substitution of grape wine for the
poisonous compounds which are now drank as ardent spirits by the people of this State, can be
more easily imagined than computed. The diminished expenditure, on account of asylums, State
and county prisons, would, beyond measure, counterbalance the cost of a liberal system of Legisla-
tive encouragement, which should produce this result.

INJURY FROM BAD LOCATIONS.

A most serious evil, which must inevitably result from an injudicious
selection of land for a vineyard, and especially if by a pioneer in any
localit}'. is the discouraging effect it will have upon other persons. By
planting a vineyard upon land, or in a situation, unsuitable to the pro-
duction of a tine wine grape, hundreds of persons may be deterred from
engaging in tlie ])ursuit, and thousands of acres of the very best vinej'ard
land may remain in the immediate neighborhood, unappropriated and
useless, while had this pioneer been instructed in the peculiar qualities of
soil requisite to produce a tine wine grape, he might have opened a mine
of wealth and industry in his locality, exceeding that of Washoe.

NECESSITY OF LEGISLATIVE ASSISTANCE FOR TUE DEVELOPMENT OF THIS

RESOURCE.

There are numberless ways in which the Legislature might encourage
•• the improvement and growth of the grape in California." Your Commis-
sioner would not presume to dictate to what extent your fostering care
of this great interest should be limited, but he would be unmindful of a
vast source of wealth to his State, and unfaithful to the trust reposed in
him. did he not, in the spirit and in accordance with the letter of jour
resolution, urge upon your consideration the importance and the result-
ing benefits of a prompt development of this great industrial pursuit.

SPECIAL OBSTACLES WHICH IMPEDE THE DEVELOPMENT OF THIS PURSUIT.

The scarcity of ca])ital. especially in the hands of those engaged in
the cultivation of the grape and the making of wine, and tlie exorbitant
value which its u.se comniands in California, present a barrier to the
wine maker, over which he is unable to travel for a period of five or six
years — the time needed to place his wines in the market. To that, add
the uncertainty of a ready sale when ottered, and his prospects are not
of the brightest hue.

The wheat, cattle, or wool grower, of California, who produces a bushel
of wheat, or a bulhick's hide and a cake of tallow, or a bale of wool, and
sends it to Xew York or London, or anj^ other market, will obtain as
high a price fir it as an article of the same quality is worth, whether
produced in France. Russia, or Holland. Not so, however, with the
wine maker of this State. Altliough he may produce a cask of wine
more excellent than •■ Yin de Marechale." or the '• Romance Conti." and
take it to either of those markets, he will find no anxious purchasers
contending for the inestimable prize, but will be compelled to dispose of
it at a less price than that of the base imitations of hock and sherry
which flood those markets. And this is a condition of things to which
he must submit. There is no appeal or escape. His wine has not re-
ceived the indorsement of popes and prelates, kings and councillors, past
or present, nor been drank at their festive boards, to give it a name and
eclat among the people. Capricious taste has not recorded her favorable
dictum, nor will she. until courted with greater humiliation and devotion
than was Boaz by the iloabites.

His wine has not that particular taste to which they have trained their
palates, and he must dispose of the product of his labor at a price so
much below wines of a similar class to which the}' have become ac-
customed, that the pecuniary saving will induce them to drink of it,

'10

^mtil their tastes are corrected, or thej have acquired a fondness for the
w variety. By this time, most likely, the wine maker is a bankrupt,
long since dead, from disappointment.

These and other similar obstacles to the rapid development of the wine
ude of California, merit the special attention of the Legislature.

PROPRIETY OF FOSTERING INDUSTRIAL PURSUITS BY LEGISLATION.

It has been the policy of wise governments in every age. to encourage

»se branches of industry which, if successful, would add wealth to the

ite or people. For this purpose large bounties have been given for

intro<Juction and rearing of valuable animals, for specific classes of

inufactures while in their infancy, and for new products of the soil.

The history of the rise and progress of that now important branch of

J 'icultural industry in France, the making of beet sugar, is worthy the

entive study of every political economist and State Legislator.

Science unlocked the door of the storehouse where this inexhaustible

irce of wealth had been garnered up for ages. The people looked

rough the door and saw the richness of the discovery. The most enter-

-.ing entered within the portals, and endeavored to bring forth the

:ilth with which they were surrounded. Their individual efforts were

•qual to the task, and even when associated together in small numbers,

ir combint'd strength proved insufficient.

A -:iir:i'ious Government saw this prospective wealth to the nation, and

witii>->->'l the unavailing efforts of those who were sinking in the attempt

to extricate it from the dros'* with which it was encumbered. Its powers

were directed to the accomplishment of that for which the efforts of the

people were ineffectual.

Science was called upon to disinter and liberate this treasure, which it
had previously unmasked, from the rust with which it was surrounded
and imbedded. Its knowledge and labor, encouraged by the approving
smiles of a patronizing and watchful Government, removed those obstacles
before which the people had fainted, and opened an avenue through which
France and the French people are now annually extracting millions of
dollars.

The benefits which would overflow California from the success of this
industrial pursuit, cannot be summed up. They are not confined to dol-
lars and cents. The morality, frugality, and happiness of the people,
which would ensue and flow trom it. can only be revealed when all secrets
are unfolded. The cultivator of the vine is'the type of peace and happi-
ness. The whole business of wine making is one of cheerfulness and
contentment. The moral and social benefits which the full development
of this industrial pursuit would confer upon the State, cannot be balanced
with gold.

TAXATION OF WINES TENDENCIES OF THE PRESENT SYSTEM.

The system, or manner, of the taxation of the grape-vine and its pro-
ducts, tends much to retard the development of this branch of industry.
In some counties of the State, if not generally, the land of a vineyard is
assessed at the highest price of cultivated lands. The vines are then
assessed at a certain sum each. When the crop is gathered and made
into wine, it is assessed, and thenceforward the same wine is assessed
yearly, so long as it is kept in the State.

The immediate effect of this continued yearly taxation, is to force the

wine upon the consumers in an unripe state. The paramount effect is to
destroy the reputation, or prevent the acquisition of one, not only for
California wines, but of the State as a wine-producing country, by the
premature sale and use of domestic wines.

As the wines of California must work their way to consumption
against the prejudices and confirmed tastes of the consumers, and as no
wealth can be derived, by the maker or the State, until this is accom-
plished, it would seem expedient that the State should endeavor so to
frame its legislation as to encourage the producer to place his wine on
the market in the most favorable state to command and obtain esteem,,
rather than force the maker into market with unripe wine. The exemp-
tion of wine from taxation until it attains the age of five years, unless it
should sooner leave the State, or the hands of the producer, would be
some inducement to wine makers to hold their wines until maturity;
and it is not improbable, that if so held and matured, their increased
valuation would be sufficient to repay the State for the indulgence it had
extended.

MEANS FOR PROMOTING THE GROWTU OF THE GRAPE-VINE.

Respecting " the ways and means best adapted to promote the im-
provement and growth of the grape-vine in California," your Commis-
sioner has no hesitation in recommending a general diffusion of knowledge
among the ])cople, that will enable them to furnish our OAvn people, and
the marts of commerce, with a superior and cheaper wine than can be
])rocurt'd c'lsewiicrc. as the most ehicacious.

Knowledge, acquired through judicious and careful investigation into
the manner of cultivating the vine, gathering of the fruit, making and
maturing wines, in countries celebrated for fine wines, especially in those
countries having a climate and face of countrj^ most nearly resembling
those of C'alifornia, will prove of great utilit}' when placed before the
grape growers and wine makers of this State.

How tlic required knowledge shall be obtained and placed within the
reach of the people of California, so that it may be effective to produce
the desired result, is a subject which your Commissioner approaches with
great diffidence.

AID OF SCIENCE REQUIRED.

The necessity of calling in the aid of science to assist in this important
measure, seems too evident to admit of denial or doubt, unless we are
willing to postpone and entrust the development of this great source of
wealth and happiness, with all its fame and attendant prosperity, to
some succeeding generation that may be endowed with greater enter-
prise than ourselves.

The organization of a department of Government, where vine growers,
b}^ furnishing descriptions of their vineyards, giving the features of loca-
tion, variety of grape cultivated, age of vines, and quality of former
wine product, could send samples of their grapes to be carefully analjzed,
so as to learn what constituent wine-properties might be in excess or
deficient, would enable them to produce a more perfect wine, and at much
less cost per gallon. By these means, they would be able to make the
best wine which their vineyards could produce. An advantage still
greater, perhaps, would be the insuring a uniformity in the annual pro-
ducts of their vineyards. The history of wine making and wine drink-

■^i

ing shows the fickleness of taste in its selection of favorites. This must,
in some degree, always be the consequence in every instance where the
laste is an artificial or acquired one, but it will be in vain for the wine
maker to expect his wines to come into general use. or to become favor-
ites, if there is a dissimilarity of taste in the annual product of his vine-
yard, even if each vintage should be of a superior quality. It has ever
in'cn some peculiarity in the taste, rather than a decided superiority in
the wine, which has caused the product of certain vineyards to become
the favorites, and take a high rank in the estimation of wine drinkers.
This uniformity can oidy bo attained by the possession of a sufficient
slock of scientific knowledge by the wine maker. It is true, that in
some cases, owing to favorable localities and specific character of soil,
the wine product of a vineyard will, for a long period, present the same
piculiarities where the process of making, and everything connected
tlurewith. has become strictly uniform, from the confirmed practical
liabits and necessities of the wine makers, but in the present day, and
\>y a people so fond of experiments and change as we are, this result
cannot be anticijiated, were we disjjosed to wait for its accomplishment.
The analyzation of the soil of such vineyards as shall ])roduce, tested
liy chemical analysis, the most ])erfect wine grape, and of those vine-
yafds that iiave obtained some celebrity, or acquired some reputation for
tliiir wine ]>roduct, as well as of land intended for the planting of vines,
iild be a valuable addition to the ])resent limited stock of knowledge,
,, . 1 be the means of saving the people from heavy pecuniar}^ losses, and
the more ruinous evil of disappointment.

In connection with the geological survey now making, samples of the

I of land might be obtained from all favorable localities in the State,

aii'l carefully analyzed, so as to guide the grape grower in the selection

Ml lands for that object. The many ditferent varieties of grapes which

have been or may be introduced, could be chemically tested, so as to de-

tifinine their value for wine making, without waiting the lapse of j'ears,

ompanied with great expense and infinite labor. By this means the

i-ific- qualities of each variety of gra]>e grown in the State could be

ermined, and its adaptedness for wine making known, without the

. lay of years of uncertainty. This would prove of inestimable benefit

I" grape growers in the selection of valuable varieties; and the charge

I" the State, for the economical organization and administration of this

liianch of the government, would be an insignificant sum, compared with

the great gain which would result from its operations, both to the people

and the State, and the losses which must otherwise ensue in this one

pai-ticular.

The knowledge which would thus be collected from all parts of the
Slate, and from so many sources, would form a volume of light upon this
industrial pursuit, which, when opened before the people, would shed its
illuminating rays in the path of those cultivating the vine, that would
guide them to prosperity — cultivate a spirit of enterf)rise and emula-
tion— and place California in advance of all other countries in the
variety, quantity, and quality, of her wine product.

J. J. WAEXER,
One of the Commissioners.

LETTER FROM MR. HARASZTHY.

7'v His Excellencij the Governor :

BuENA YiSTA Ranch, ")

February 8th, 1862. j

Sir : — In aeconlanee with your directions, I have taken charge of the
i: rape-vines and fruit trees, arrived from Europe and purchased for the
u-c of the State ; the same came in the very best condition, and promise
u successful propagation. I am at present occupied in making hotbeds
and phmting the more exquisite varieties in pots buried in said hotbeds.
^Vc have a large number of cuttings I am planting in open air for root-
iiii::, contident that, if no extraordituiry event happens, there will be three
liutulred thousand rooted vines ready for distribution next Fall.

It would be well that the present Legislature would direct how the
distribution should be made, as the propagated vines ought to be taken
out of the ground and distributed, before the next Legislature will assem-
I'lo and would have time to determine the mode of disposing of the
named vines. The Patent Office at Washington distributes, partly, its
jilants through the Representatives in Congress; this mode would be
})ractical here also; in fact, more so, as there is no county in this State
which has no lands well adapted for vine culture.

Permit me to draw here your attention to the necessity of having,
as soon as possible, an appropriation passed to defray the expenses
already incurred for the purchase of the vines and trees, the travelling
expenses, for procuring the same, and collecting all the information neces-
sary to make our State also a prosperous vine-growing district. The
above named expenditures, including freight on railroads and steamers
in Europe, on the vines, trees, etc., I have paid out of my own means,
expecting the same to be refunded to me by an appropriation to be
passed by the present Legislature. I ask no remuneration for my per-
sonal services as Commissioner; on the contrary, I feel proud of the honor,
and I will be richly remunerated if I have done any service to my
adopted country.

The exact amount of the costs and freight I am not prepared this
moment to state, for the reason that some of the United States Consuls

have not yet accounted to me for the money left by me in their hands,
and paid out by them for vines and trees, nor could I get the exact amount,
of my banker in Paris, which he paid out for freight, etc.; but I may
safely say that an appropriation of twelve thousand dollars will cover all
expenses, including the steamer freight from Xew York to San Francisco,
which was paid by Wells, Fargo & Co., and will not fall short, on all the
vines and trees, of two thousand or twenty-five hundred dollars.

The above named estimate of twelve thousand dollars, will cover also
the planting and taking care of said trees and vines, the purchase of
about forty thousand earthen pots for the more rare plants, and the
building of a cheap and temporary hothouse, where a part of the same
are already planted.

The sum thus expended will be a trifle to the real value of said vines;
then if we put the valuation of the rooted vines at ten cents, (which is
less than the nursery men sell fine varieties,) it would amount to about
thirty thousand dollars; but to the people of this State it will in time be
worth as many millions.

With distinguished consideration,
Very respectfully,

Your Excellency's most obedient servant,

A. HAKASZTHY.

FXJBLISIiEID B'ST OPlIDEIi OF THE LEGHSL-A-TXJPIE.

fecture 011 #e0l0g]);

DELIVERED BEFORE THE

1.EGISLATURE OF CALIFORNIA,

SAN FRANCISCO, THURSDAY EVENING, FEB. 27, 1862.

By J. D. WHITNEY

8TATB OEOLOOIST.

SAN FEANCISCO:

BENJ. P. AVERY, STATE PRINTER.
1862.

LECTURE.

In my in5iui;unil adilress before the Let^islature of this State, delivered
last Mai'cli. 1 t^avo a wketeli of the luiniiii^ liistory of the United States,
with statistical notices of our nuneral industry, as compared with that of
otlier countries. 1 also ^ave some account of wliat has been done in
other countries in the way of (leoh)gical Surveys, and of our own State
Surveys. Some hints were incorporated into that address, touching the
objects and aims of geoh)gical investi;L(ations. and what might be expected
10 be accomplished by the Survey of California. Furthermore, I showed
how our work was j)lanned and arranged, into what dej)artments it was
dividc<l. to carry out the provisions of the Act by which the Survey was
authorized, and gave some idea of what we hoped to be able to accom-
plish in each of these. 1 also ])romised to devote the best years of my
life to this gi-eat work, Avith a single eye to the interests of the State in
whose service 1 had just entered.

Since that adilress was delivered, the work of the Survey has been
going on uninterruptedly, and, I trust, successfully. We have worn out
mucii shoe-leather in the service of the State, liave climbed moiintains
and threatled caiions, and made ourselves familiarly acquainted with the
pleasures of climbing uj) chaparral-covered peaks in a mild temperature
of one hundred and irtfty degrees, or thereabouts, and a pack load of spe-
cimens and instruments on our backs. We have escaped perils by flood
and tield. have evaded the friendly cml)race of the gi'i/zly, and now find
ourselves in the jaws of the Legislature.

In a letter addressed to Governor Downey just at the close of the past
year, I gave a brief svnopsis of our doings up to that time, and men-
tioned what additions had been made to our corps, stating that we were
now organized and at work in all the departments of the Survey, and
engaged in putting the materials collected during the past year into
order. As this letter has been ordered to be printed by the Legislature,
and is, or soon will be, in your hands, I need not recapitulate what it
contains.

With these two documents, you, gentlemen of the Assembly, will be
able to form some idea of the nature of our work, and of what progress
we have made in it. But I would take the liberty of requesting those
who are especially interested in our operations to call at the office of the
Survey, No. 67 Montgomery Block, and to examine for themselves such

portions of our collections as "vve have room to display, our maps as now
in j)rogress, and otherwise to inform themselves as to what we are
about.

It would have given me much pleasure to be able to devote this lec-
ture to giving some idea of the results to which we have thus far at-
tained, but there are several obstables to such a course. In the first place,
it would be exceedingly dilficult to make some of the most interesting
points intelligible without drawings and diagrams, which must be made
expressly for the purpose, to be visible to a large audience ; secondl}"", it
is jjrovided in the Act authorizing the Survey, that the results shall be
published for the benefit of the Common School Fund of the State, so I
might be looked upon as robbing that fund, were I to skim otf the cream
of our work, and have it spread before the public first through the me-
dium of the newspapers, in a more or less imperfect form, leaving the
skim-milk for our first report.

But were I to give a sketch or abstract of our results, I should have
to use many technical terms in my descriptions, the employment of which
would ])resuppose some familiarity with Geology on your])art, as well as
considerable general acquaintance with the methods of scientific invest!-*
gation. It struck me, therefore, as the best use to which 1 could put this
hour, having at the same time your instruction and the interests of the
Geological Survey in view, to endeavor to give some idea of the nature of
geological inquiries, in their broadest and most genei'ally attractive direc-
tion, and thus to awaken an interest in our work, by setting forth some
of the most interesting results at which geologists have arrived during
the past few years, and in various parts of the world, at the same time
explaining the origin and familiarizing you with the meaning of some of
the terms which must necessarily be used in speaking or writing on this
l)ranch of science.

And at the very outset, I ought, perhaps, to apologize for attempting
to occupy so vast a field, one which a dozen lectures would indeed hardly
enable me to go over, even in the briefest manner, and in which the aid
of maps, diagrams, and specimens, seems almost absolutely necessaiy to
fix the attention of the audience, and make the subject clear to them.
But if what I may say to-night shall have the effect of inciting some of
those now present to look further into such matters, themselves to read
some pages of the great book of Nature, always open before us, or to
take such steps as may be hereafter shown to be advisable and feasible
for increasing the facilities for the pursuit of scientific studies on the
Pacific coast, or here in San Francisco, I shall feel that I have not in vain
stepped aside from my regular work for a brief period, and shall be
thankful for this opportunity of appearing before the Legislature, in
obedience to their request.

Let me begin, then, by endeavoring to answ^er the questions — What is
science? and what, especially, the science of Geology? what its aims
and methods of investigation ? These must be briefly touched upon,
before passing to the consideration of its results.

The w^ord " science" is, by its derivation, sj'nonymous with knowledge;
but, as noAv almost universally used, it means systematic, exact know-
ledge. The whole body of what is knowTi on an}' subject, brought into
a methodical arrangement, or systematized, is the science of that sub-
ject ; and science in general is the sum of human knowledge.

The tree of knowledge has many branches, which are ever multiplying
and expanding, so harmoniously and yet curiously intertwined, that it is
not possible to separate them into absolutely distinct groups. He who

would draw sharp lines between the different fields of science, will soon
tiiid himself at fault, for they are continually overlapping : in no dej^art-
iiient can any -rrcat amount of progress be made, without aid from some
(it tlie others, or without in turn aiding them.

Still. Mathematii's must be recognized as the basis of human know-
ledge— the eternal corner-stone on which the grand fabric of science
i-.])oses. Mathematical science demands the aid of no other branches,
and, therefore, takes precedence of them all. It is the key by which
thry may be unlocked ; its formulas the magic by which the secret doors
of Nature maybe opened; but few. indeed, are the master-minds to
\\ hich the talisman has been confided. Without the aid of the hi'dier
Hiathematics. we miglit point our telescopes at the heavenly bodies'^and
-tndy tlu'ir complicated motions never so perseveringly ; the laws by
\\ hich they are regulated would be as unintelligible to us, as to the Bosje-
man or the New Zealander.

Next in order to Mathematics, then, comes Astronomy, the one being

<■ application of the other to the study of the celestial phenomena, and

|.ecially of the motions of sun, moon, and stars, which motions are
-Mverned bv fi.xed laws, capable of expression by mathematical symbols,
and of investigation in no other way than by their aid.

Astronomy connects itself next with Physics, which has to do with the
study of the ])roperties of matter in masses, while Chemistry seeks to ar-
rive at a knowledge of its elementary constitution; indeed. Physics and
Chemistry can no more be separated from each other than Mathematics
from Astronomy. Hiology is the most comprehensive term to designate
all those branches of science which have for their object the investiga-
tion of life and its develojnnent. whether in the animal or vegetable
kingdom. Zoology and Botany are the principal divisions of Biological
science, and these are again sultdivided. Zoology, tor instance, into as
many ditferent branches as there are classes, or groups of classes, in the
system of animal life. Under the general designation of Sociolog}', all
other branches of science would be grouped, including all such as are
connected with man's life in its relation to language, the mind, the State,
the community, morals, and religion.

Many sciences have no independent existence, but are simply the appli-
cations of several othei* sciences to the investigation of one particular
class of subjects, or set of phenomena. Thus. Physiology is the applica-
tion of Physics and Chemistry to the inquiry into the mode of operation,
or the functions, of the different organs of plants or aniinals. Mineralo-
gy ap])lies these same branches to the description of the inorganic chem-
ical comj)ounds which occur in Nature, and are called minerals, as distin-
guished from those manufactured in the laboratory of the chemist.
There are about sixty elementary bodies, but nearly a thousand ditferent
combinations of these with each other ai*e found in the natural state in
the earth, and perhaps as many more in plants and animals, while tens
of thousands have been artificially formed by chemists engaged in work-
ing out the laws which regulate the combinations of the elements.

Geology, on the other hand, is the application of almost every depart-
ment of the natural and ])hysical sciences to the elucidation of the past
histor}' and present condition of the planet we inhabit ; or, more fully
to define its scope, it is to use all the information v/hich science, in its
widest sense, affords, to trace back the present operations of Nature into
the shadowy past, and thus, b}' degrees, to accumulate the materials
from which the history of Creation may be written, and arrive at a
knowledge of the successive steps through which the earth has passed,

from the earliest stage of its develo])ment up to the present. No science
calls for the aid of so many distinct branches of learning; for it has to
do with every variety of inorganic forms, and ever}' condition of organ-
ized existence. Hence it was, that it is so emphatically a science of
modern growth ; " for, while geography was imperfectly known ; before
commerce and the knowledge of languages had made us acquainted with
the productions and traditions of every clime; before the birth of
most of the classes of physical science, it was impossible to accumulate
the numerous and exact data, from wliich alone Geolog}' takes its
origin."

The old Greek philoso]ihers. living, as tlic}' did. in a region liable to
frequent earthquake shocks and volcanic disturbances, could not fail to
have their attention drawn to some of the changes which the earth's sur-
face has undergone. They noticed the occurrence of marine shells at
great elevations, and distant from the sea coast; saw that the land had
been elevated and depressed, in certain regions, and thus were led to
form some ideas, vague it is true, with regard to geological phenomena,
which were the tirst bcifinnings in tliis department of research. Many
of the most important themes of geological investigation are touched
uj)on by Ovid, in his sketcli of the P^tbagorean ])hilosopliy ; and Aris-
totle rises almost to the height of modern science, in some of his lofty
generalizations on tbe c^'des of changes through which the eartli must
have passed. But of the varied races of organized beings which had
lived and passed away, while these pbysical changes were going on, they
seem to have had no idea. It was duj-ing the middle ages that the
abundance of fossil shells, preserved in the rocks of Italy, began to at-
tract attention, and to become the theme of animated discussion. It re-
quired many years of controversy, as sbarp and bitter as any carried on
at tbe present day. between tlieologians of rival schools, or jioliticians of
opposite parties, to settle tbe question whether the fossil remains found
in the rock.^ had really ever belonged to living animals and ]>iants, or
whether they were oidy s])orts of Nature, products of fermentation, the
oft'spring of what was called '-plastic force," or, some hidden power by
which tbe stones were made to take on the forms of animals. Man}- of
those who admitted that the fossils were reallj' the remains of organized
l)odies. contended most vehemently that they were the results of the
Xoachian deluge, since it seemed to be an idea rooted in the minds of
most of the ecclesiastics, tliat the world could not. b}- any possibility, be
more than a few thousand years old ; while the common people were
equally sure that it was just on the point of coming to an end, and were
making over their property to the good fathers, by deeds, whose captions
ran thus: -As the day of judgment is close at hand, I give and be-
queath," etc. For three hundred years these discussions were continued,
and it is hardly possible for us to conceive now, how the plainest truths
were distorted, and the most evident facts refused credence, because they
conflicted Avith preconceived notions of what was supposed to be the
true interpretation of the Bible.

It was not until theorizing, hyiDOtheses. and fanciful specidations were
laid aside for a while, and the collection of facts entered into with zeal,
that Geology began to make real progress, and assume the position of a
distinct science. It is just about fifty years since the Geological Society
of London was formed, with tl.is idea expressly in view, which it has
most zealously promoted up to the present day.

The first notions in regard to the condition of the earth Ave get from
astronomical observations, aided by mathematical and physical investiga-

tions. Thus, we wish to know the form of our planet, its weight or
specific cjravitj', and its relation to the solar system, of which it forms a
])iirt These are the j^roat facts which lie at the base of all speculations
on the past history of the earth.

A profound investi.ii;ation. aiul a grand generalization of all the con-
ditions of tiie ])lanetary system of which our world is a member, and of
the innumeraltle othei- systems of Avorlds which the telescope reveals to
us. led the great astronomer, La Place, to the adoption of what is called
tiie Nebular Hypothesis, a theoretical view of the development of the
M)lar system, which not only attords the onl}- plausible ex])lanation which
i an be given with regard to the number, position, magnitude and density
ol' the planets and their attendant satellites, but which closely allies itself
with the fundamental theories of (teology.

According to the sul)lime genei-alizatious of Herschel and La Place,
ilic matter now condensed into the planetary bodies and their satellites,
with the sun in tiie centre, was onee iliti'used through the whole space
iiow occupied by tlu' solar system, iurming a vast revolving spheroid,
kept in a gaseous condition by its high temperature. As it gradually
cooled, the mass contracted in dimensions, and of course increased its
\ clocity of rotation. The centrifugal force of the equatorial portion grad-
ually increasing, it at last became greater than the attraction from the
centre ; when this stage was reached, the equatorial zone must detach
Itself from the centi'al mass, and would continue to rotate, as a ring, in
ilie same direction and with the same velocity which the interior portion
liad at the time tiie two were separated. This mode of formation of
I iiigs about a revolving mass, is no ])iirely theoietical idea. It has been
most beautifully illustratiMl and exemplilied by Plateau, in his celebrated
rxpei'iment of causing a mass of oil to revolve within a vessel of water,
where it will be jtrotected fi-om the action of external forces; the gen-
eration of the exterior rings, and their continued revolution about the
centre of the mass, are shown not onl}' to be possible, but to be necessary
results of the assumed conditions. If the rotating ring were perfectly
homogeneous in structure and subject to no disturbing influences, it
would continue to revolve in that tbrm ; but, as this could rarely be the
case, the rings as foi-med would collapse, and. following the necessary
laws of matter, would themselves be gradually collected into a certain
number of spheroids, according to the nature of the influences to which
they were exposed. Only in the case of Saturn's rings has this form of
structure been maintaiiud. and it has been demonstrated b}' Peirce that
these rings are fluid, and that they could only be permanent under just
such an arrangement ol" the satellites of that planet as does actuall}'
exist. Thus, one after the other, the various planetary bodies were
detached from the nucleus, eadi in its turn going through the same pro-
cess, and forming its secondary spheroids, or rings, while the sun itself
remained as the central mass.

It would require more than the whole space of time allotted for this
lecture to go with sufticieiit detail into these astronomical speculations
to make tliem clearlv intelligible to all. We must pass rapidly to geo-
logical questions, to which Ave are directly led by the Nebular Hypothesis.

For the most general investigations of Geology show, that the earth
was not created as it now is ; tliat, on the contrary, it has gone througli
an immense cycle of changes, for the ]K'rformance of which a length of
time almost infinite in duration must have been required.

In the iirst place, the shape of the earth, flattened at the poles and
bulging out at the equator, the effect of its motion on its axis, shows

that it must once have been in a condition of fluidity, in which it was
capable of yielding to the centrifugal force. It must therefore have
been molten, or softened by heat, since we know of no other cause suffi-
cient to account for this condition. Again, we find everywhere, on
penetratiu"" to any considerable depth below the surface, that as we go
down the temperature increases quite ra])idly, so that in the deepest
mines it is alread}' hardly endurable, while the vei-y deep artesian wells
brinfj- up quite hot water, hotter in proportion to the depth below the
surface. The rate of increase is about one degree of Fahrenheit for
every sixty feet of perpendicular desoent, taking the average of experi-
ments made all over the world. The greatest depths which have been
reached are from two thousand to two thousand five hundred feet; the
deepest mines now Avorked being about two thousand five hundred feet,
and the deepest artesian well two thousand seven hundred and seventy-
five feet below the surface. Since, therefore, it is a well autiienticated
fact, that, as far as we have been able to explore the interior of the earth,
the temperature steadily increases, we are naturally and necessarily led
to eonclude, that the same would hold good at still greater depths; for
under such circumstances we can conceive of no possible source of
warmth except the interior of the earth itself

In our speculations as to the condition of the interior of the earth, we
are aided by a consideration of the phenomena of volcanoes and earth-
quakes, to which I will briefly allude before entering upon any further
(reneralizations as to the internal heat of our planet.

There is nothing in Nature mon- fearfully suhlime than a severe earth-
quake shock, or a volcanic eruption. The tlestruction of life and prop-
erty hv eartlujuakes has been, in numerous instances, most terrible.
Mtmv times, whole cities have been overwhelmed, and the inhabitants
buried, by hundreds of thousands, beneath the ruins. Of course, from
the earliest times, speculations have not been wanting as to the causes
of earthquakes and volcanic action, and especially within the last five or
six years this subject has received a large share of the attention of geol-
o^-ists. Many years of careful inquiry' will, undoubtedly, be required to
clear up the doubtful points; but in regard to the great general cause
of these disturbances the majority of investigators are pretty well
a^rreed. We live on one of the ticklish regions of the earth's crust, and
ouo-ht. therefore, to feel an interest in this class of inquiries. Luckily
for us. California does not seem to be in the region of heav}'- shocks, so
that whatever feeling of insecurity may have once existed on this ac-
count seems to have pretty nearly died out. Sound policy would, how-
ever, justify us in constructing our buildings, jniblic or private, so sub-
stantiallv that they would not fall down before being finished. I suppose
that all now present know something of the nature of earthquakes from
personal experience, although all may not have considered what their
cause may be. An earthquake is a wave-like motion of the earth, like
that produced in water by any disturbance, when, as you all know, there
is no lateral movement, but only a vertical, or up and down motion. If
you throw a stone into the water, a wave is produced, which travels in
all directions from the centre at which the impulse originated ; but,
although the wave progresses, the water only moves up and down, as
will be easily seen on watching the light materials which maybe floating
on the surface. In the same way, if a sufticiently powerful impulse is
communicated, at some point beneath our feet, in the solid material of
the earth's crust, the motion wall be propagated in all directions, gradu-
ally becoming less and less perceptible, until it dies out altogether.

Soino shocks are propagated from a centre uniformly in all directions,
otliers have a linear direction, so that the whole area disturbed has an
. Iliptic shape. Thus, the great Lisbon earthquake was felt in all direc-
tions from that point, over the whole of Europe, in Northern Africa, the
Antilles, and even on the coast of North America, sensibly affecting at
K-ast one thirteenth part of the earth's surface, but gradnallv decreasing
ill strength as it reached more and more remote })oin"ts. This earthquake
\\ ave moved at the rate of sixteen hundred and lift}* feet in a second.
i'he e:;rtli(nmke shocks so common on the South American coast, are
usually felt along a north and south line, and if they cross the crest of
tlie Andes, it is with greatly diminished effect. Some of these convul-
-ions are propagatetl over an extent of twelve or fifteen hundred miles
along the foot of the Cordilleras, and it seems that there are no earth-
quakes known in that region, except such as coincide with the mountain-
riinges in their line of greatest development.

It may be interesting to know what areas of the earth's surface are
most exposed to earthquake shocks, and which regions, on the other
hand, are comparatively free from them. Probably there is no district
ot any considoraliie extent which is not liable to occasional light shocks,
; least; but the really dangerous regions are not very numerous or
.tensive. AVitbin modern times, earthquake action of such intensity
a^ to give rise to serious casualties, has been confined — in Europe, to the
-'Uth of Italy, the Atlantic coast of Spain and Portugal, and to Iceland.
1 Asia, the dangerous ground lies around the shores of Asia Minor, the
irtiiwestern and northeastei-n |toi-ti<ms of Ilindostan. the coast of Siam,
the islands of the Indian Archipelago, and the islands parallel to the
Chinese coast. In America, the whole west coast up as far as Lower
California, the West Indian islands, and the borders of the Carribbean
Sea. are very much subject to severe shocks ; many very destructive ones
have taken place there within our own recollection. Within the limits
of the United States, and north, througii British America, no serious
catastrophes have ever occurred from eartlujuake shocks, although quite
severe and long continued (listurl)ances have Iieen experienced in some
regions. Thus, the district bordering the Mississijii)i River, in Lower
Missouri, was in eighteen hundred and eleven, and eighteen hundred and
twelve, the scene of quite extensive subterranean convulsions, which
continued for months ; and during which, a large extent of country was
submerged and converted into an uniidiabitable marsh. As this was a
very thinly inhabited region, the damage to life Avas not very great. It
is said that the people, noticing the constant northeast and southwest
direction of the fissures produced, cut down trees, so that they might
fall at right angles to that direction, and got upon them during the
severe shocks, being thus literally treed by an earthquake.

In regard to the number of earthquakes, or their absolute frequency,
the records are. of course, much more complete for the later periods of
the earth's history than for the earlier ones. In Mr. Mallett's catalogue
of all the earthquakes of which any notice has been preserved, winch
extends down to eighteen hundred and fifty, there are only seven hun-
dred and eighty-seven put down as having occurred previous to the year
fifteen hundred ; while two thousand eight hundred and four are on
record for the three centuries next following, and three thousand two
hundred and forty are known to have occurred from eighteen hundred
to eighteen hundred and fifty. More than this, Doctor Kluge. in a Avork
just published, enumerates no less than four thousand six hundred and
twenty earthquakes as having taken place in the years from eighteen
2

hundred aud fifty to eighteen hundred and fifty-seven, inclusive. Of
course, Ave are not to suppose from this that they are any more frequen
now than in former years ; but, rather, that attention has been called to
the subject, the minor shocks noted, and that in the pi^ogress of geo-
graphical discovery, and the general spread of civilization, a larger part
of the world is every year laid open to scientific investigation.

The number of earthquakes in California varies from three to fourteen
per annum, as shown by the statistics collected by Doctor Trask. Only
one instance is known of any considerable loss of life having taken
place. This was in eighteen hundred and twelve, when the church of
the Mission of San Juan Capistrano Avas thrown doAvn, during vesper
service, and thirty or more persons killed.

Of the cause of earthquakes, something Avill be said after referring
briefly to the closel}' associated phenomenon of volcanic action.
Although no inconsiderable portion of this State is covered by the piled-
up results of volcanic energy, yet, as far as I know, there are no traces
of present action. Tlie forces once at work, on a gigantic scale, in the
vSierra Nevada, seem now entirely dormant, although along the whole
line of that range, within a very recent ])eriod, speaking geologically,
tliere have been prodigious masses of volcanic materials thrown out, the
i-emains of Avhich now form some of the most conspicuous and remark-
able features of the topography of the State.

We live on the line of the grandest chain of volcanic action known in
the world. From Ca])e lloi-n to Behring's Straits, along the west coast
of North and South America, stretches a series of lofty mountain chains,
capped at intervals with groups of still loftier peaks, some of which are
to be classed with active volcanoes, wliile others have shown no signs of
disturbance since the historical period, although giving anvple proof of
having been, in former times, the seat of the greatest displays of the
workings of the central fires of tiie earth.

The principal volcanic groujis along this line are those of Chile,
Bolivia, Peru, Central America, and Mexico.

The Chilean grouj) extends along the crest of the Coi-dilleras for
nearly a thousand miles, with more tlian thirty active volcano vents, the
loftiest as well as the most northern of which is the colossal Aconcagua,
until lately supposed to be the highest mountain of the American conti-
nent, being between twenty-two thousand and twentj^-three thousand
feet high.

Chiml)orazo and Cotopaxi are the monarchs of the Bolivian group,
the one famous for its beautifully regular dome shaped summit; the other
for its conical form, piercing the clouds, and crowned, not like Mont
Blanc, that other monarch of mountains, with a "diadem of snow," but
with a coronet of ever-gleaming flame.

The Central American group begins Avith Chiriqui. and extends north-
west to Soconusco, on the Gulf of Tehuantepec, Avith at least fifty lofty
volcanic summits, Avhich lent such attraction to the noAV forsaken Nica-
ragua and Tehuantepec routes to California. This group has a linear
extent of nearly eight hundred miles. Perhaps there is no part of the
world Avhere there is such a concentration of volcanic energy as along
this fire-crested range.

FolloAving the same direction as the last mentioned group. Ave come,
after an interval of about three hundred miles, to the highest volcano of
the Mexican group. Popocatepetl, seventeen thousand eight hundred feet
high, the first of a series of tAvelve great and many smaller ones, extend-

iiig along for six hundred miles, ending, at the northwest, with Coliraa,
xj conspicuous and beautiful an object, as seen from the Panama steamers.

Thus we liave traced a series of grou})s of lofty volcanic peaks, many
nf them still in action, from Chile to Mexico. From Mexico nortli, there
i- a long interval, where, luckily for us. the once intensely displayed
Mction is now nearly dormant ; were it not .so, were this region to wit-
ness a re])etition'()f what has once taken place here, our chances of life
would l)e too small to be worth calculating.

North of Caliibrnia. through Oregon and Washington Territory, the
lofty peaks of Pitt, Vancouver, Hood, St. Helens, and Baker, are all
made up of volcanic materials, although none of them have poured forth
M:iy lava, or given more than faint evidences of pi-esent activity, since
I ills region became known to the whites. There seems to be good reason
It believing that the volcanic activity, once so energetically displayed
III California, did not extend into the present geological epoch, but that
i( took |)lace toward the close of the tertiaiy period, and, consequently,
iK'Torr the a])p('arance of the human race on the scene.

The eruptions of lava in the Sierra were closely connected with the
fi'i-rnalion and subsequent uplifting of the strata forming the coast
ranges, in which are entombed innumeralde remains of marine animals,
'i\' dilferent kintis from those now living on our coasts, although not so
entirely uidike them as were the creations of still earlier epochs.

But what changes have taken place in the topograjthical features of
the State since these volcanic agencies ceased their work ! Beds of lava
which originally flowed down the vallej's, covering the gravel and othe}*
detritus which had there accumulated, now form the summits of high
mountains, having, by their extreme hardness and poAvers of resistance
to atmospheric and other agencies, constantl}- at work to wear away the
strata, ivmained intact, while the surrounding rocks, less enduring, have
been removed by denudation, leaving the volcanic materials untouched,
and now forming the elevated flat ridges with vertical sides, known over
the State as Table mountains, of which so good an instance may be seen
near Sonora.

Where these streams of lava flowed in ancient river beds filled with
auriferous detritus, this material has remained covered up, until opened
on by the industry of our miners, by the tunnels driven in under the
overlying volcanic rock. Man}- of tlie hydraulic diggings in the gold
region are in the detritus covered by beds of pumice, ashes, and lava,
which had been washed down or flowed over great masses of gravel,
covering uj) and preserving, for future ages to exhume, leaves, wood and
the bones of the might}- mastodon, hippopotan\us, camel, tapir, and other
original diggers, long since disapi)eared from the scene.

l*he intimate connection between the phenomena of earthquakes and
volcanoes has been generall}" assumed as a matter of universal experi-
ence. It is certain that destructive movements of the earth's crust are
mo.st frequent in volcanic regions. Also that there is some connection
between the commencement or cessation of earthquakes and the periods
of repose or activity of the neighboring volcanoes, which has been some-
times expressed by saying that volcanoes act as " safety-valves " for dan-
gerous regions.

In view of the immense extent over which earthquake convulsions
have been felt, the propagation of these subterranean waves, along great
chains of mountains, and their connection with volcanic outbursts, it ia .
evident that all this class of phenomena are, to a considerable extent, de^
pendent on one cause ; and this cause is some great general one, and not

merely local. Almost all geologists are agreed in adopting the ideas first
formulated by Humboldt, "in reference to this subject, tinder the term
'• volcanic action." he includes all tbe phenomena of earthquakes, and of
the eruptions of lava or other matters from below, wbetber from craters
on the summits of lofty mountains, in the form usually recognized as
volcanoes, or from crevices in deep depressions of the earth's surface :
these and other kindred phenomena, he says, have their origin in the
reaction of the interior of our planet against its exterior, or solidified
crust ; a definition which presupposes a globe gradually solidifying from
a condition of igneous fluidity, and connects a whole class of highly im-
portant phenomena with the profound speculations of the most eminent
astronomers, based on mathematical considerations alone, as already
hinted, in s])eaking of the Nebular Jlypothesis. Indeed, this hypothesis,
which is the only key we have, as yet. to the movements and ]>osition
of the varif)us bodies of which our solar system is composeil. and which
has been applied with the most wonderful ingenuity to explain the ex-
traordinary ai)pearance of some of the nebuhe, may be saicl to be at the
base of modern Geology. In the contraction of (uir globe, cooling from
a state of ignition, we have the only force which we can conceive of, as
ca])able of forming those corrugations, wrinkles, or foldings of the super-
ficial strata, or crust, of the earth, which have given rise to our moun-
tain chains ; which, stupendous as they may ap]X'ar to us. are, in reality,
as nothing, com])ared with the whole mass and diameter of the globe.

Starling with the assumjition. therefore, that the interior oi' the earth
is in a molten condition, and that the i-eaction of the fluid mass against
the hardened crust is the prime cause of earthquake and volcanic dis-
turbances, it becomes an interesting object of in(iuiry, whether the
moon had any such influence on the interior as it has on the surface, or
whetlu-r tidal motion, or any indication of it, could be traced in the
mighty surgings of the subterranean waves of melted rock. From the
carefully matle investigations of Perrey and Mallett, it appears to be an
undoubted fact, that earthquakes are more frequent at those times when
they ought to be so, if this theory of their oi-igin Avere correct. Thus, in
the four years, from eighteen hundred and forty-four to eighteen hundred
and forty-seven, the number of earthquakes, near new and full moon,
exceeded the number at the quarters, nearly in the proportion of six to
five; moreover, it appears that they are decidedly more frequent at the
time the n\oon is nearest to the earth, and also when the moon is on the
meridian. This is a very curious coincidence, to say the least; and. by
most geologists, will be accepted as adding considerably to the proba-
bility of the truth of the idea first promulgated by Humboldt, in regard
to these phenomena.

If we would foiTU an idea of how our earth would appear, had the
effect of the igneous element never been counterbalanced by the work-
ings of the aqueous, we have only to look at the moon through a power-
ful telescope. The geologist may learn a most instructive lesson while
studying the face of our nearest neighbor in celestial space. A more
magnificent sight, from the stand-point of the picturesque, can hardly be
conceived of. than is presented to the observer, using one of the best
modern instruments. Even one of moderate power is quite sufficient to
enable xis to make out the most striking peculiarities of the moon's sur-
face ; first and foremost of which are the ring-mountains, or craters, so
called, from their resemblance to terrestrial craters. Those on the moon,
however, are of vastly greater size than any the earth can show, some
of them being more than one hundred and fifty miles in diameter. These

( ircular cavities, like gigantic saucers, are surrounded by lofty and craggy
walls, with fiTquontly a small cone in the centre, while the whole exte-
lior ring of mountains is itself thickly si)rinkled with smaller craters.
in fact, it is hardly an exaggeration to say, that the whole surface of the
moon is covered with these ring-mountains, great or small, some of
\\ inch rival in height with the loftiest mountains of the earth, although
ihe diameter of our planet is more than four times as great as that of
its satellite. It seems hardly jxissihle to explain the appearances pre-
>rnted b}' the moon on any other theory than that it has cooled down
tiom a state of igneous tluidity, just as we have been led by a variety of
mathematical and geologieal reasonings to assume with' regard to our
iiwn earth. The crater of Mauna Loa, of all our volcanic mountains,
presents the greatest analogy with these of the moon.

As there is neither air. water, nor vegetation, on the moon, nothing
(if the kind of remodelling of the surface by aqueous causes, which has
uiven its present form to so large a })ortion of the earth's crust, can be
ol'served on our sati'llite. Every wall of molten lava remains in all its
iirigimd roughness and stee})ness ; no j)lains have been tilled uj) l)y strat-
itit'd materkils ; no ridges denuded and Avorn down into softer forms.
\Ve might, perhaps, form some idea of the scenes presented there, by
examiidng some of the most extended lava fields of our own most active
■ Icanoes. as for instance those of Iceland, which are described as pre-
iiting scenes of desolation, wilder and more sublime than anything the
Miist fantastic imagination could picture.

l^verythiiig leads to the belief that the moon is completely '■ played
It." Her once so active volcanic life is now, to all appearances, en-
rely at an end. She has cooled down to a ])oint at which no further
listurbance of her crust may ever be ex])ected to take place again; and,
a^ she is destitute of water, we cannot conceive of life as existing on her
Mirface. If there is organized existence there, it must be very different
iVom anything we know of on the eartli.

Fire, then, is the building-up element of our earth, and water the an-
tagonistic or destructive agent. The one lifts up in paroxysmal throes
tlie stratified masses, and heaps upon them accumulations of matter
tlirown out from the interior, till the vast pile seems to touch the hea-
vens; the other, quietly and silently, but never ceasingly, labors to
ilestroy what has thus 'been accomplished. Every stream descending
the nnnmtain sides bears with it more or less mineral matter, either in
solution or mechanically suspended. The ocean itself with resistless
energy beats against its rocky barriers, undermines them, and bears off
the "inaterials to be again deposited in a stratified form upon its floor,
w hich strata are in their turn to be upheaved to form new continents,
and thus to keep up the eternal cycle of geological events.

At all ages of the world, then, since it became sufficiently cooled off
to allow of water condensing upon its surface, this agent has been at
work disintegrating and moving the materials comprising the earth's
crust, and thus giving rise to "the stratified formations or groups of
rocks. Destruction in one region, and reformation and accumulation in
another, have been going on in an almost endless round, as one district
after another has been uplifted to become the scene of denudation, or
sunk beneath the ocean so as to receive the accumulated materials car-
ried into it and spread out upon its floor. The coarser fragments, torn
off by more violent currents, and falling first to the bottom, have formed
beds of conglomerate (or pudding stone) and sandstone, which are sim-
ply gravel and sand banks consolidated by pressure, and cemented to-

gether perhaps by the infiltration of particles of lime or iron ; the finer
materials, carried further and deposited in more quiet waters and at
greater depths, have given rise by their accumulation to the shales and
claj's. from whose consolidation, under heat and pressure, the hard slates
have been formed.

The operations by which the detrital stratified rocks were formed
have been going on at intervals, as far back as the earliest period of
Geology, having been of a character which rendered their recurrence
dependent on j^hysical conditions. Avhich miglit be indefinitely repeated
in any one region, or which might be in operation at the same time in
a great many ditterent districts.

It follows then, that had we no other means of arranging the geolo-
gical foi-mations in a connected sequence, or in chronological order, than
their lithological character or their mineral composition, we could never
arrive at any general results, which should be applicable over an ex-
tended area. We could, it is ti'ue, in some cases, observe the succession
of the ditterent strata through a very great thickness, the period re-
([uired for whose formation would represent no inconsiderable portion
of geological time; as where great natural sections of tl^ rocks are
ex]>osed, such as the Coloi-ado Kiver displays in its mighty cafions, a
mile deej). with vei'tical walls, in that wonderful region recently ex-
plored by Dr. Newberry. We should here be able to sa}' that the lowest
strata were the first foi-med. and that each succeeding bed was more
recent than the one below it ; but, when it came to comparing these
rocks with dthers of some distant region, we should be completely at
fault. We could not, for instance, say whether the sandstone of the
California Coast TJanges was older or newer than that of the Connecti-
cut Kiver Valley, or New Jersey, or whether it was a contemi)oraneou8
formation with the sandstones of Wisconsin and Lake Superior; when,
in point of fact, these ditterent sandstones belong to three entirely dis-
tinct epochs, representing the beginning, the middle, and the end of the
geological series. How has this fact been ascei'tained — what means have
geologists employed to bring order into what at first would seem to be
hopeless confusion ?

It is by the fossils which they contain that the rocks are classified;
and the ability to make this chronological classification depends on the
well-ascertained fact, that all over the world, since the first appearance
of life on its sui-face. there has been a certain order of develo})ment of
this life, the remains of which we find embedded in the rocks, in many
places in countless numbers, and the most astonishing variety.

The science which has to do Avith the investigation and description of
fossils, whether plants, or animals, is called Pahrontology. or the study
of ancient beings; it forms one of the most important branches of geol-
ogy; and it is to the developments which this science has been making
for the last fifty years, that a large portion of our knowledge of the
former condition of the earth is due.

I am aware that it is trying to compress a great deal into a small
space, to attempt to give any outline even, of the results of Palaeontology
as applied to geological science, in a portion of a single lecture ; but
some of the most salient points, some of the most striking and generally
interesting deductions may perhaps be touched upon in suoh a manner
as to lead to further inquiry on the part of some of my hearers, and to
excite a friendly interest in this kind of investigations, which certainly
are calculated to throw light on many questions of the most profound
interest to all.

The first step towards a general classification of the various rocks
which make up the crust of the earth, was the division of them hy Leib-
nitz into »tratiji('(I and unslratijied .- or tliose deposited by water, and those
f.irmed by i«;neous agencies. The terma primari/ and secondary were next
introduced, the former embracing all rocks devoid of fossil remains, and
sui)posed, therefore, to liave been created as we now see them; the latter
including such as contained animals or plants, and Avhich Avere admitted
t(. have been posterior in their origin to the earth itself, or formed by
secondary causes. This first rude attempt at a classification was ex-
panded and modified by Werner, and otlier fathei's of geological science
until it assumed a form whicli has continued to infiuence the science up
t') the ])resent da}'. By this scheme the rocks were divided into J'n'mary,
'/'/■(Uisitiou, Scroiultiri/, T< rlidri/. ami Riinxt.

The Primary rocks, according to tliis chissification. included all the
hard crystalline masses, like granite and mica slate, which are entirely
(|( stitute of organic remains : tlie Secondary embraced all the stratified
idcks in which the fossils were entirely different from the animals or
plants now living on the earth. The fossils of the Tertiary, on the other
iiand. were recognized as having some considerable resemblance to our
present terrestrial Fauna and Flora. Tiider the name of Transition,
were grou]ted together a great mass of rocks which were su])]K)sed to be
iiilermediate in age between the ])rimarv and seconchuy, and whose or-
ganic forms were very low in the scale of organization, and thought to
he so obscure that but little could ever be found out w ith regard to them.
Iliis was also called the greywacke formation, from a CTcrman local
name, having reference to the peculiar minei-al character of the rocks to
which this name was at first apjilied in that country- — a kind of hard
slaty and silicious sandstone.

The next great step in the classification of the rocks was matle by
int roducing the term •' metamorphic." and apj)l3Mng it to many of the
i"cks |)revioiisly ealled ])rimary. This Avas the expression of a fact
\\ liich had gradmilly become very clearly evident, that many rocks
iKsignated as j)riinary, were in reality of secondaiy, or tertiary age, and
I hat their hardness, crystalline structure, and destitution of fossils, was
nut in reality owing to their geological age, or t(^ their having been
ilcposited before the introduction of life on the globe; but that, on the
t ontrary, these peculiarities were the result of metamorphic action, or
( licmical and mechanical changes effected in thein by heat, pressure, and
other causes, subsequent to their original formation, by which their
structure had been more or less completelj- altered, and the remains of
animals and plants which they might have contained entirely oblite-
rated, or rentlered so obscure as to be with difficulty made out. Thus,
many of the rocks of the coast ranges of California would once have
iieen classed as primary, since they have all the characters included in
that term as originall}' ap])lied ; but they are now known to be of ter-
tiar}- age — to have been deposited while the entirely unaltered and
undisturbed strata of the Atlantic coast Avere in pi-ocess of formation ;
I'Ut, unlike those, to have been upturned and metamorphosed at a A^ery
recent epoch, speaking geologically.

The rocks formerly called Transition, began to be studied by Murchi-
^<>n and SedgAA'ick, some tAventy-five years ago, in "Wales, and about the
same time the geological surveys of Ncav York and Pennsylvania were
commenced, CA^eiy year's researches throAving new light on those hith-
erto obscure groups. Noav, their order of succession has been clearly
made out in this country, as Avell as in England and many other parts of

the world. We knoAv that the}' contain an immense variety of organic
forms, Avhich are, in manj' regions, as jjerfectly preserved as the shells
which now lie on the ocean beaches. These forms are, with some few-
exceptions, totally unlike any now living. The area covered by these
rocks in this country is very extensive, including nearly all of New Eng-
land, and a large part of Xcw York and Pennsylvania, as well as Ohio,
Indiana. Wisconsin, and other Western and Middle States. They are
called now Silurian and Devonian — names given by Murchison, from the
Silures. or ancient Welchmen, tormer inhabitants of this region, where
the order of succession of the lower groups was first worked out — and
Devonshire, where the next highest series was first successfully studied.
The fossils which these rocks contain in New York, have been and are
now being described by Professor Hall, under authority of the State, in
his great work foi'ining part of the Natural History of New York.

Above the Devonian system comes the Carboniferous, or coal-bearing,
the especial dejwsitor}' of that invaluable material with which our
country is so liberally suj^plied. These three systems, the Silurian,
Devonian and Carboniferous, are gi-ouped together again as constituting
one period or series, called the Paheozoic. or the ]>eriod of ancient life j
the name indicating the extreme dissimilarity of the animals and plants
of those early times from those now living.

Above the Pahvozoic, we have the Mesozoic series, a term which in-
cludes most of the rocks formerly, and even now frequentl}', designated
as Secondary. In these, the forms of life begin to be more like those of
the present epoch, hence the term Mesozoic, or middle life, implying a
connection, on either side, with the remotest past and the present. This
series ends with the Cretaceous, or chalk formation, a group which covers
immense areas in the region west of the Mississipjii. through the whole
North American continent, from Texas to the Northern Ocean, and all
along the shores of the Pacific, of which the ammonite, whose form is
doubtless familiar to many here present, is one of the most conspicuous
and characteristic fossils.

The sul)-divisions of the Mesozoic are the Triassic. the Oolitic, or
Jurassic, and tiie Cretaceous. To the Mesozoic belong the sandstones of
the Connecticut River Valley, and New Jersey, which are covered in some
places with the extraordinary foot-prints of extinct birds, and gigantic
frogs, the only ones on record which (unlike the frog of the fable) did
succeed in swelling themselves to the size of an ox. The Jurassic has
as yet been traced over but a small extent in this countr}" ; but is a
highly important member of the series as developed in Europe. It is in
the lowest group of this series, called the Lias, that are found those ex-
traordinary animals called the Plesiosaurus, the Icthyosaurus, and the
Pterodactyle. creatures combining the form and structure of bird, fish
and lizard, and of enormous dimensions.

To all the strata above the Cretaceous, the term Cainozoic, or series
characterized by recent life, is applied, including the Tertiar}^ series, the
Diluvium, or drift, and the Alluvium, or strata now in jDrocess of form-
ation.

I have thus, as briefly as possible, sketched the order of succession of
the stratified rocks, as determined by geologists; but there is one point
which may. perhaps, call for a little more extended illustration. It
is not to be supposed that all these groups are to be found in every
part of the world lying one above the other in regular order, like the
coats of an onion. In the innumerable mutations of the forces and con-
ditions which have influenced the formation of the stratified deposits,

and the growth of the animals and plants which they contain, no one
tririon of limited area 1ms been constantly receiving accumulations of
-.diment, under circumstances favorable to the unbroken development
nf the great sequence of life, which has been made out from a study of
all parts of the earth's crust. Thus, a considerable portion of Canada
has never been covered by the sea, or otherwise so situated as to receive
deposits of sedimentary materials, during the time that the entire series
of the stratified formations was in the process of accumulation, until the
latest of all, or the drift period ; consequently, we have there, the oldest
locks ccjvered by the newest, all the intervening ones being wanting.
In Southwestern Wisconsin, again, the oldest fossiliferous strata, the
Silurian, have never since received any additional materials, not even
• luring the dritt period, when a prodigious rush of water swept over the
nurthern portion of this Continent, s])reading sand, gravel, clay, and
Ih. aiders, over such an immense area. While this was taking place, the
legion in question was high and dry above the water, forming an island
wliich was not reached by a single boulder.

What is meant, then, by order of succession, is this: that whatever
stratified groups are found in any region, these will be arranged in their
regular se(iucnce, even if a portion of the series is wanting. That is to
say, the Silurian will ahvaA's be found below all the other groups of fos-
siliferous rocks, and the Devonian above the Silurian, and below the coal,
when all these are jM-escnt. Jf the Devonian is absent, then the Carbon-
iferous will be found upon the Silurian, and never the reverse, or the
Silurian upon the coal. Or to nuike the idea still plainer, if we immber
the different grouj)s, calling one the lowest, two the next, and so on,
eounting from the bottom upwards, where all the groups are present, the
(»rder will be one, two, three, four, five, and so on; if two and four are
wanting, then the order will be one, three, five; if three and four, then
the order is one, two, five, etc.; never five, two, one — or one, five, two.

Although it would be impossible to convey, in the space of a single lec-
ture, any idea of the innumerable variety of forms which have peopled
the earth since the appearance on it of the first living thing, and which
have succeeded each other in almost infinite number and variety, yet,
some of the more generally interesting results of palaontological inves-
tigations may be concisely stated.

In the first place, it has been ascertained that life on the earth had a
beginning; that there has not been an endless round of existence going
on, such as we now see it, without our being able to seize an3" clue to its
duration. Without the revelations of Geology, we should have no evidence,
in Nature, to prove to us that the present conditions of our earth were
not the same they always have been, and that what we see of life on its
surface was not the same which has always existed.

Geology teaches us, however, that there was a jjeriod when the earth
was as completel}' destitute of organized existences as we have reason to
believe the mooji to be ; — that therefore there must have been a moment
when Creative power said, " Let life exist upon the earth." We know,
of course, that life could not have been called into existence until the
conditions were suited to its development ; and if, as we have reason to
believe, the earth has gradually cooled from an ignited state, then, when
life first appeared, the temperature of the water must have sunk below
the boiling point ; for although the lowest order of plant life may flourish
at a temperature nearly as high as two hundred and twelve degrees, and
though the vitality of some germs may not be destroyed at a considera-
bly higher temperature, yet it is undoubtedly true that there could be no
3

development of life until the -waters had cooled at least to some degrees
below boiling. Beneath the lowest fossiliferous strata, wherever the
rocks can be examined, they are found made up of stratified and unstrat-
ified masses, highly crystalline, and entirely destitute of all traces of life.
Hence, these rocks are called Azoic, and they were, in all probabilitj',
formed while the temperature was too high to admit of the existence of
any living thing. The Azoic series forms the floor on which all the other
rocks have been deposited.

Again, the development of organic life upon the globe has been, on the
whole, a progressive one. That is to say, the animals and plants first
created were of low rank, and these have been succeeded by more highly
organized forms ; the humble zoophyte, or plant-animal, commencing,
and man, in all the ])erfection of his physical devcl(»})ment. crowning the
series. Although it may not be true that the series is an unbroken one,
from imperfect to pei-fect forms ; yet it is undoubtedly the fact, that the
different orders of animals and ])lants made their appearance strictly in
a progressive series.

Thus, the Silurian, or lowest group of fossiliferous strata, contains only
forms belonging to three of the lower sub-kingdon\s, into which the whole
animal kingdom has been divided : the Eadiata. of which corals, star
fishes, and sea lilies are the representatives; the Mollusca or shell-fish
family; and the Articulata.

The lowest divisions of the vertebrate family, or fishes, do not make
their appearance until we rise to the next group in the series, the Devo-
nian. The armor-]»lated fishes of the Devonian, or old red sandstone, so
well known through Hugh Miller's graphic descriptions, are followed by
the half-fish, half-reptile forms of the coal measui-es ; these again by the
huge reptiles and gigantic saurians of the Jurassic, which, in their turn,
give place to the mammalia of the tertiary epoch. The earliest ap])ear-
ance of reptiles is in the Carboniferous series ; the period when they
flourished ''under the greatest diversity of forms, with the highest grade
of structure, and of the most colossal size, is the Mesozoic." This class
has therefore ])assed its culminating point of development, and is now on
the wane.

The earliest mammalia appear as low down in the series as the Triassie,
in the form of the lowest type of that order, the Marsu])ialia — the family
to which the opossum and kangaroo belong, and which bi'ing forth their
young in an immature condition, being conveniently furnished with an
outside pocket in Avhich the rest of the process can be comfortably ef-
fected. These low organized forms, and those of the Insectivora, whicli
are but little higher than the Marsupialia, occur in the Jurassic, or Oolite,
but they soon disappeared, and it was not until the Tertiary that the
highly organized forms of this class appeared.

Thus, for the Vertebrata, the Pala'ozoic was the age of fishes, the Sec-
ondary or Mesozoic the peculiar era of reptiles, and the Tertiary of
mammals. It was a strange and peculiar fauna which marked the last
named period of the earth's history. Animals possessing the horns of
the ox united with the proboscis of the elephant, the teeth and prehensile
lip of the pachyderm, with the light and graceful proportions of the ante-
lope family; the blending of horse, camel, and tapir ; of camel and giraffe;
these are among the freaks of IS^ature which characterize the Tertiary.
And not only by this strange intermixture of forms were the Tertiary
mammalia so remarkable, but by their gigantic size. '' The tusks of the
mammoth have been found from twelve to fourteen feet long, while those
of the elephant rarely exceed half that ; the fore limb of the megathe-

li»

riiim would far outweiijh the whole body of the largest living sloth ; the
cuirass of the glyptodon would cover more than a score of armadilloes ;
while the full-sizt-d llama would make but a tiny calf to the macrauchenia,"
•■■ compare some of the extinct animals with those most nearly related
them among their living representatives.

By what causes were these wonderful successions of organized existen-

<, this development of life from its lowest to its highest manifestations,
iiirough the almost intinite series of gradational tbrms. brought about?
How. indeed, to go one step further back, did life first originate on the
larth ? Was it in obedience to the operation of some natural law, which
vc may hope to trace out, or by the fiat of the Almighty, that is to say,
t y causes beyond the power of the human mind to begin to compre-
hend ; a Great First Cause, •■ whose ways are past finding out." As yet,
wo have no clue to guide us in this labyrinth, not a ray of light to illu-
minate the darkness. Science is as far as ever from having resolved the
pioblem of life. Tiiere may be some law, in virtue of which organic
matter can become organized ; but if there be such, we have not made
tlie first step towards finding out even the line of inquiry which we
-iiould have to follow with any hope of a successful result.

Owen, tiie highest living authority in Zoology, has said, "that if ever
11 be permitted to nian to penetrate the mystery which enshrouds the
"ligin of organic foi-ce. it will be, most probably, by experiment and

-ervation on the atoms which manifest the simplest conditions of life;"

us indicating that he «locs not consider the origin of life to be a prob-
lem necessarily transcending human powers. But it may be said with
truth, that thus far. the formation of a single simple cell, the first step
in animal or plant life, is ap])arently as far bej'ond our powers as would
be the creation of the highest type of organized existence.

As each geological epoch is characterized by its own peculiar animals
and plants. Avhich have succeeded each other in a more or less complete
pi-ogressional series, there is a vast field of investigation, and a still wider
one of speculation, opened to the palaeontologist, as to whether each new
form, or set of forms, characterizing a peculiar epoch, has been an en-
tirely independent creation, or, on the other hand, derived from those
which preceded, under the operation of some law of development, or
continuously-acting secondary cause.

It has been generally assumed, that species have been exterminated
under the operation of natural causes, such as changes in the physical
condition, of the region in which they live, among the most prominent
of which, elevation or depression of the land, variation of temperature,
and change in the great oceanic currents, might be enumerated. That
such agencies as these have had more or less etfect in modifying the
character of the life of our planet cannot be doubted ; we can trace the
extinction of species, perhaps, in some instances, to changes of external
condition ; but there are many facts in this connection for which this
offers but a very imperfect solution. Especially in its application to ani-
mals inhabiting the ocean at various epochs, it is signally unsatisfactory,
since we can conceive of no change in that medium at all commensurate
with the magnitude and number of changes which have taken place in
its inhabitants. Indeed it would seem more probable that, as the indi-
vidual has a definite cycle of changes to go through from birth to ma-
turity, and from maturity to old age and final death ; so the groups of
individuals constituting species, and species constituting genera, may be
originally predestined to a cyclical development, terminating in extiric-

tion of the species or genus, in a manner analogous to the death of the
individual

If we are in the dark as to the disappearance of old forms of life, we
know still less of the causes of the introduction of new ones. Mr. Dar-
win, in his admirabl}^ written and intensely interesting work on the
" Origin of Species," which has excited so much attention during the
past two years, has endeavored to show that all the forms of life on the
earth may be descended from a small number of exceedingly simple ones,
on what he calls the "principle of natural selection."

The fact that Mr. Darwin Avas a scientific man of very high reputation,
well known by his important discoveries in Geology, and as an excellent
and thoroTighly reliable Zoologist, as well as that he had devoted a quar-
ter of a century to the studj" of the subject of his book, rendered his
theory an object of the greatest interest ; and ever since his views M'ere
promulgated, they have been desperately combated by some eminent
authorities and as strongly advocated by others.

Mr. Darwin's attention was first called to this subject on his voyage
around the Avorld, on which he made those remarkable discoveries in re-
lation to the growth of the coral islands, which rendered his name so
conspicuous, by noticing many facts in regard to the distribution of ani-
mals and plants among the Pacific islands, which seemed to him to be of
necessity governed by some law, and yet not to be explained on any the-
ory up to that time propounded.

The ideas which are set forth at great length and defended by a copious
stock of experiment and illustration in Mr. Darwin's book, may be briefly
resumed as follows : There is a tendency in Nature to a very rapid in-
crease of both animals and plants ; indeed, unless there was some check
on this development, so that only a small proportion of the eggs or seeds
produced could come to maturity, the Avorld would be very soon overrun.
An animal or plant producing two seeds a 3^ear — if these matured and pro-
duced each two more the next year, and so on — would have a million of
descendants alive at the end of twenty years. If a pair of elephants
lived a century, and had in that time three pair of young, and this rate
of increase contiimed unbroken for five hundred j'ears. there would be, at
the end of that time, fifteen million of that most slow breeding of all ani-
mals alive, descended from the first pair.

As but an infinitely small part, therefore, of the germs of life produced
ever come to maturity, the consequence is, that in reality there is always
a struggle for life going on throughout the whole animal and vegetable
world, each animal or plant developing whenever it can find a chance,
seizing on favorable opportunities to spread itself, or failing, on the oth-
er hand, when the conditions undergo such changes as to give some other
creature a better chance for existence. Thousands of facts are on record,
to show that these changes are now going on, although usually by slow
and hardh" perceptible steps, while the records of Geology certainly in-
dicate that the like conditions have prevailed from time immemorial.
This is one of the leading ideas in Mr. Darwin's theory. The other is
based on the variability of species, as shown by innumerable experiments
of persons desirous of forming new varieties of plants or breeds of horses,
cattle, and other animals. Every one knows that almost any form of
sheep, for instance, may be manufactured (so to speak,) by skilful man-
agement in selecting the parents with certain peculiarities of form, and
allowing these peculiarities to accumulate in the successive generations.
Mr. Darwin himself experimented extensively on pigeons — these birds
having been domesticated for several thousand years, and forming now

many very distinct and peculiar varieties, wliich, however, can all be
]»i-oved to have descended from one common parent, the rock-pigeon of
lOurope. From the study of these varieties, he was able to prove that
<j;reater dirtcrences have been effected in the structure and organization
of the pigeon than exist between other animals Avhich are, and always
have been, included by naturalists in different species or even genera.
Combining these two ideas, on the one hand, the possibility of great
changes being effected in animals or plants, under the influence of va-
iving conditions, either naturally or artiticially produced, and, on the
otlier, the certainty that in the struggle for life those forms stand the
licst chance of bt-ing pi-esorved and multiidying which are best fitted to
those conditions, Mr. Darwin argues that deviations from the original
type form may have, in the la]ise of an immense period of time, such as
(It'ology demands for changes in the inorganic world, have gone on accu-
iniihitiiig. until new s])ecies, or even new genera, have been formed. Al-
though the ideas thus brought forward have not met with general accept-
ance among Geologists, yet there is no doubt that the discussion of this
interesting subject evoked by Mr. Darwin's book, will be of essential ser-
vice to the progress of this science.

For the last two years the attention of geologists has been largely en-
grossed i>y the developments whicli have been made, proving, beyond
the ])ossibility of doubt, that man must have been an inhabitant of this
larth for an imniense length of time, much greater than has hitherto
hci-n till' ]»oj)ular belief The facts bearing on this question have been
aicumulating for a long time, but it was not until the evidence had
assumed the most ])ositive form that general attention was dii'ected to it;
rcfcnt discoveries, however, combined with what was previousl}' known,
I'lit only vaguely a<lmitted, on account of the general inclination to re-
gard the human race as having existed only a few thousand years, have
in a very short period effected an entire revolution in the opinions of the
hading geologists and archaeologists of Europe on this highly interesting
([uestion.

It was from Egypt that light first began to be thrown on this subject.
I'lie long-continued researches of eminent French and German scientists
have ])roved. be^'ond the shadow of doubt, that works of art exist there
wliich must have been executed more than five thousand years ago, and
wiiich could only have been produced by a people which '' had arrived at
an advanced stage in the slow i)rocess of civilization." The stone-carved
1 >'Cords of Egyptian history, as interpreted by Bunsen and Lepsius, the
most eminent of the later Egyptologists, carry back the history of this
lace to a much more distant period. These conclusions have been greatly
strengthened by the geological investigations carried on quite recently
ill the Nile Valley under the supervision of the President of the Geolog-
ical Society of London, for the express purpose of seeing what evidence
could be obtained bearing upon this question. It is known by a great
number of independent observations, made on the accumulation of sedi-
ment brought down b}' that river, where it has covered works of art the
date of whose erection could be well ascertained, that this deposit takes
place now, and has done so for the last four thousand years at least, with
great regularity ; the thickness of the layers of mud accumulated in one
century average about four and one half inches; with this starting
point, and assuming what appears to be perfectly allowable, that the
thickness of the annual deposit has remained the same since the valley
began to be filled up b}- the overflowing of the river, a series of pits and
borings was executed for the purpose of ascertaining at what depth works

of art might be found, and of thus arriving at an approximate conclusion
as to the lapse of time since civilization dawned upon that country. The
results were truly wonderful ; nearly all the borings disclosed a great
variety of objects of art, and frequently at very great depths. It would
be perfectly safe to conclude that a race considerably advanced in civili-
zation must have dwelt in the Nile Valley moi*e than ten thousand years
ago.

But this antiquity is nothing compared with what geology shows to be
the remoteness of the epoch at which uncivilized races were inhabitants
of some parts of Europe. Of course, it agrees with all our ideas formed
from the study of antiquity, that mankind must have been an immense
length of time in advancing from tlie primeval condition, in which we
have every reason to suppose he made his first appearance on the globe,
to his present condition of well being. Indeed, the steps, or some of the
most important ones, in this progress of the race, are more or less com-
pletely made out. We know that, for Europe at least, that being the
only portion of the worUl in which any elaborate investigations have
been made, three distinct stages of advancement aj"e to be recognized.
These have been called the Stone, the Bronze, and the Iron ages. During
the earliest i)ei'i<)d, the use of metals was entirely unknown; stone, and
especially that kind of stone called flint, was the jn-incipal material of
which tools and wea]»ons were made. The next step onward was made
by the introduction of bronze for these purposes, the use of wiiich implies
already a considerable degree of progress, as this is an alloy of two
metals, copper and tin, each of which had to be mined, and smelted from
its ores by metallurgic process, which, although rudely performed, would
indicate no small amount of ingenuity and persevei-ancc on the part of
those using tlieni. To bronze, succeeded iron, emphatically the metal of
civilization, the metal whose qualities and whose aluiiulance make it so
essential an element in everything connected with arts and manufactures ;
copper occurs not unfrequently in the native or metallic state, and hence
soon became known to man ; but iron alwa3's having its pi'operties masked,
by combination with oxygen and other substances, forming ores, desti-
tute of any metallic appearance, and requiring a great deal of skill to
convert them into metal, was of much later introduction.

Relics of these dilferent periods of human progress have been exhumed
in a great many places in Europe, and always in positions indicating this
order of succession.

It has always been supposed that the origin of the race by which the
flint implements were made must go very far back ; but there was no
positive and undoubted evidence connecting the stone age with the re-
mains of extinct .species of animals, and consequently with a geological
epoch older than the present, until within the past two j-ears. At least,
the discoveries in South America, and other distant regions, indij^T^'^ing
this connection, had always been looked upon with suspicion, ancoAjn-
sidered as unworthy of credence, owing to the fixed idea of tht^r^^-
logically recent origin of man. ^^

But the discoveries of Dr. Falconer, in eighteen hundred and
eight, of instruments of human workmanship, associated with the b(^ ^S
of extinct quadrupeds, in a cave in Devonshire, called attention to ^
fact that a similar association of flint implements with bones had b(
repeatedly noticed by M. Boucher de Perthes, as long ago as eighte^
hundred and forty-seven, at St. Acheul, near Amiens, and at Abbevill]
in France, in regard to which this gentleman published an elabora
work, which passed entirely unheeded. In eighteen hundred and fift]

nine, after Dr. Falconer's discoveries, the most eminent English ijeolo-
liist. ineludini; Mr. I.yell and Mr. Prostwic-h. visited tlie location de-
-ri-ibcil l»y M. Boucher, and. with their own hands, duo; out numerous
liiut hateliets, and teeth, and hones, of a variety of animals, im-luding
tliose ot" tlie horse, rhinoceros, elephant, and hippopotamus, of species no
h>iiii;er existini^. The foimation in which these hones and implements are
tMUud ltelon<;s to the dritt. or dihivium, ami as there was ample evidence
tluit it liad never been disturbed since its oriirinal tleposition, the conclu-

n was foi'ced even on the most reluctant or skeptical observer, that the

man race must have existed during the diluvial epoch, and been co-
uinporaneous witii a race of aninuils peculiar to that e])och, ami which
have now passed away. In the words of the Presitlent of the (leologieal
Society of London, "The conlirmation of the correctness of the conclu-
sions to which M. Houclier de Perthes ha«l arrived, which he had pub-
lished ten years before, luit which. I»y a strange unreasoning incredulity,
not very creilitable to the scientitic men of all counti'ies, had been suttered
to be neglected, is of an im])ortance that cannot be overlooked, inasmuch
as it has calculated to remove a prejudice that has long prevaileil among
geologists, the least timitl in forming conclusions, and a8 it bids fair to
erailicate one of a similar nature deeply rooted in the minds of even the
educated part of the general public." Since these tliscoveries were made,
uumy additional ones have been accumulated, human bones, as well as
implements, having been found; and we now know that the English
Channel was not in existence at the time these old fellows lived, so that
they ct)ul<l have nnide the Journey from liondon to Paris, (or the sites of
them.) drv-shoil. As we know that i>nly very slight changes have taken
Tihice in the contiguration of the channel coast since Julius Ctesar crossed.

•lie nineteen hundred years ago. it will readily be comj)rehended what
..;i immense ])eriod of time must have been required for the wearing out;
of the whole channel as we now see it, even suj)posing it to have been
first originated by a sudden subsidence of the land. To say in years, or
hundreds of thousands of years, how long a period has elapsed since
these bones were clothed with flesh, and wielded the hatchets we find
with them, is, of ct)urse, imj»ossible ; but no one can iloubt that "the
largest sum of years, which has been assigned for the existence of man
in Egypt, can scarcely amount to a fraction of it."

1 have thus glanced at some of the more jirominent of the generally
interesting topics of modern geological inquiry, perhaps wearying your
patience by trying to do in one what ought to have occunied a dozen lec-
tures. But if some topics have been suggested and treated so as to in-
vite further inquiry; some idea given of the method of study in Geology;
some clue furnished to the meaning of many terms in con.>;tant nse, in
regard to which there was doubt and vagueness in the minds of some
here present, my aim will have been accomplished. I have said nothing
of the economical bearings of the science — those speak for themselves.
Some of those before me have undoubtedly handled the pick and the
hammer, and will not object to being classed as practical^ geologists ;
would it not add somewhat to their ])leasure as well as profit, if a little
more of the scientific could be mingled with the practical r There is not
a stone by the wavside which has "not a sermon in it, to him who under-
stands the language in which it is written ; and this evening's lecture
may, perhaps, be taken as a sort of spelling-book and dictionary of the
work which we are now preparing under the auspices of the State.

And, before closing, I will ask your attention for a few moments longer
while I add some remarks on the Geological Survey, and set forth in as

brief a manner as possible, some of the advantages to be derived from a
thorouii'li prosecution of the work we have commenced under such favor-
able auspices. I will note them under three heads : ^/-s^, scientific ; sec-
ort(7. educational; and ///m/, economical : although, perhaps, in the opin-
ion of some, the last should be put first, and the first nowhere. But we
cannot have the one without the other; for real progress depends on ex-
act knowledge, and exact knowledge is science. Detached and scattered
observations and facts are of but little value ; they must be classified and
generalized, so that the laws governing these facts may be understood,
before they possess much weight. At the present time of intellectual
activity and advancement, all important or valuable additions to the
stock of human knowledge must come through close and scientific study
in its vai'ious departments.

I have already alluded to the scientific results of the study of Geology
sutticiently in the course of this evening's lecture; let me add a few
words with regard to the Natural History Department of the Survey,
and especially the Botanical work.

All that is known of our Botany at the present time is in detached
fragments, scattered through the rejiorts and transactions of various
learned societies, the journals of foreign horticultural associations, the
r)ffic-ial reports of government exploring expeditions and railroad sur-
veys, or in pamphlets published by individuals ; works forming, in the
aggregate, a very large number of volumes, nearly all of which are be-
yond the reach of the public generally, and many only to be found in a
few large libraries. These documents are in various languages, and
many of them have never been translated into English. No attempt has
been made to classify our botanical jirodnctions into one systematic
whole ; to arrange their descri])tions into one volume, or series of volumes ;
or even to enumerate or catalogue our plants, and give the authorities
where they may l)e found. The latter work has indeed been attempted,
on a plan embracing the Avhole Pacific coast; but, although begun under
the ausj)iees of a high scientific institution, it has never been completed,
and no part of it has ever appeared. Moreover, it was proposed to be a
mere pamphlet, at most, for the use of scientific men in making further
investigations.

No botanist in the world can tell how many species have already been
described as occurring in California, while a great number have never
been noticed at all ; and of those which have been, the descriptions are
often incomplete and inaccurate.

If a knowledge of botany is of an}- importance to mankind anywhere,
either in its intellectual or economical bearings, it must be here in this
new and active State. And all must allow, that, as yet, we have neither
the literature in an available form, nor the materials in our herbariums,
to furnish what is required, and that they can only be obtained by sys-
tematic and continuous labor and study.

It will be a dis<rrace to the State, lonorer to leave this work undone, or
only to be pertbrmed by foreign horticultural societies, which have
already published to the world, that Ave have neither the intelligence nor
the energy to study and describe even our own giant trees, but must leave
it to England to first publish a scientific account of them, and name them
after an English hero. These horticulturists and gardeners pursue this
stud}- for its pecuniary benefits, and oft'er for sale new and rare ornamen-
tal and useful plants, which the}' describe as occurring in the distant,
unexplored, and semi-barbarous regions of California 1

I will not pursue this train of ideas further; but will add a few words
on the relations of the Survey to the cause of education in this State.

The present adult population of California have nearly all immigrated
from ol<ler countries and States, where tliey enjoyed the advantages of
the educational institutions of older comnumities, in which the study of
the natural sciences forms so important and practical a part of the course
of instruction. Even though many may not have studied geology or
hoiany, as a science, yet they have enjoyed the results of this study by
others, in the generalizations deduced, and in its intellectual and econom-
ical hearings.

The most important interest of this State, at present, is the education
of the young, who are to furnish the thought, intelligence, and the
» nergy of the next generation. If we would have tluuncome up to the
siaiiilard of intelligence of the ))resent ])oi)ulation, or keep pace with the
intellectual advancement of the times, we must give them the advantages,
as far as possilde, that we ourselves have enjoyed.

But how can any de|)artment of science connected with the geology or
natural history of the State he taught here, under the present condition
ot things? The teacher may, with an eastern text-book in his hand, in
urology for instance, give the pupil some idea of the general principles
ot the science, and illustrate them by reference to the structure of distant
legions, but if questions were asked as to Avhat is about us, what the age,
position, and character of the rocks under our feet, or the relations of the
aninuil and vegetable remains they contain, or a thousand other things
in regard to whieh the incjuiring student would need light, there can be no
possihility of answering them, until the data have been obtained by such
a thorough Survey as is now in progress. And what inducement would
there he for prosecuting the study under such disadvantages as this?
The botany of Calitbrnia cannot he taught in the schools of this State at
the present time; we iiave no accessible literature on this subject, no
text-DOok, nor is there any prospect of any being published for many
years to come, if it must be done by private enter]:)rise. Such a work
ran only be accomplished under the auspices of an official, scientific Sur-
vey, such as is now on foot in this State.

What, let me ask. Avould a State University be, without extensive col-
lections of authentically named specimens in all departments of science?
And in what way can the}- be gathered, with so little expense, as during
ilie progress of the Survey; and how named at all except by eminent
authorities in every branch, to whom these specimens will be referred for
examination and description ?

Almost fifty years ago, Yale College invested twenty thousand dollars
in hard cash, a large sum in those days, and equal to the net profit on a
I'Todigious number of wooden nutmegs, in a collection of European min-
erals, and I hold that any one acquainted with the history of that College
would admit that it was a good speculation, looked on merely from the
economical side of the question ; but that the cause of science in the
United States has been materially advanced by that collection, no one
can doubt.

If the proper provision is not made by the State for the cause of higher
education, successful, intelligent, and wealthy men who have families to
be instructed, will continue to look on California as a place to make money
in, but not as a home where their children may be brought up to fill
spheres of future usefulness and influence ; and so long will this class of
our population continue to remove from us with their families and wealth,
as soon as they have the means to do so, to enjoy the advantages of a
4

i I

more intellectual and intelligent society, and the educational facilities
which a more liberal and far-seeing policy has provided.

There is but little time left to discuss the economical advantages of
Geological Sui'veys, and I need not spend much breath on that subject,
for they are already' too well known and api)reciated to require it. The
mere fact that every State in the Union, except perhaps Florida, a State
whicli has as little to boast of as any, has had sucb Surveys made or now
in progress ; that they are going on ail over Europe, and even in Asia
and Australia, on a scale of the most elaborate completeness, is sufficient .
proof that, unless there is something peculiar about California rendering j
it less important for this part of the world than for any other to have such '
a work carried on, there can be no question but that it will be a benefit
to the people whose representatives yon are. It is impossible that the
whole civilized world should be combined in one grand mistake on this
subject.

To illustrate, by referring to a country most nearl}- allied to our State
in its mineral treasures, to Australia, tlie Eldorado of tlie Antipodes; a
Ueological Survey was commenced there, in eigliteen hundred and fifty-
two, and bas been steadily going on ever since, at the expense of the
Colony, not of England. As is the case with us, the Geological Corps
has to do the topographical work. The country is laid out into sections,
each of four sheets, each sheet compreliending fifty-four square miles, or
nine miles by six ; these are accurately worked up, at no matter what ex-
pense of time, and published on a scale of two inches to the mile. A
map of our State on that scale would be over one hundred feet square.
This may be taken as a sample of what is doing in other countries, which
have nothing beyond the advantages of ( 'alifornia. either in age, re-
sources, and I trust, not in pul)lic s])irit.

Will any one here present contend that California has not as much
need of a thorough geological survey as any other region of equal dimen-
sions on the globe '•' Is it because our State is not rich in mineral
resources that we can do without a survey, which will only reveal our
poverty? Some of the Eastern States might, perhaps, have urged that
excuse ; but, I think, it would hardly answer for the meridian of California.
Is it because we already know everytliing there is of value in the State,
and that we, therefore, need no farther explorations to develop, new
treasures? Is it because the whole business of mining is so permanently
established on the best basis, that nothing can l)e done by science to
render aid in that line ? Is it because the metallurgic processes have
been so thoroughly studied and the nature of the ores so well made out,
that every man knows exactly what methods of dressing and smelting
he is to follow in order to bring about the best results ? I need not
answer these questions for you. The very asking is sufficient to show
their absurdity.

I submit, therefore, that California needs a Geological Survey, for the
following good and sufficient reasons :

Firat. — To furnish a basis for detailed explorations for farther deposits
of metallic and mineral treasures, by limiting the field of research for the
numerous prospectors always engaged in the search for useful ores ; so
that every man will be working where his labor will tell, and not throw-
ing it away on undertakings, which a comprehensive view of the mode of
occiu'rence and geological position of our economically^ valuable materials
will show to be a mere waste of money, time and energ}-.

Second. — To insure permanent working and economical development of
w hat is discovered, by giving every one the means of knowing beforehand

how hiH (liKCOveries ma}' be turned to the best account, how much it will
rost to open his mine, how much to reduce his ores, what form to give
his products, and where and in wliat quantity they can be disposed of.
t )n subjects of this kind, we are constantly applied to for information.
;iii<l are always ready to advise to the best of our ability. And, if not
now, we shall, as we become more fully acquainted with all the necessary
(onditions, be able to render essential service in this line, as our state-
ments will be recognized as being based on extensive researches, and
riitirely disinterested; and in our final report we shall throw all possible
lii;ht on Ihese subjects, so that it will not be our fault if the man about

I'ndjark in any enterprise connected with ores or mineral substances

1! not find in our work something which will materiallv aid him in his
iiiiderlaking. oi- at K-ast pi-event a loolish waste of money on the
imju'act icalile.

Third. — We need a (ieological Survey in order that the resources of
die State may be made known to the world, under official guaranty of
( 'irrectness, and in detail, so that not only our own capitalists, but those
Mt other countries, may have opened to them a field for investment, in
I' i^ard to which they will be possessed of such definite information that
they may feel that the}' are not entering on a blind speculation when
|iiitting their money into a mine.

Fourth. — We need a Geological Survey in order that our agricultural
interests may receive the best ai<l which science can offer in the devel-
M|(ment of that branch of our resources.

Fifth. — We need such a Survey as was contemj)lated by the Act under
which we are now at work, in ordei* that the educational interests of the
Slate may be advanced — our schools, colleges, and Universit}^ furnished
with a scientific basis for instruction in the diffei-ent branches of Geology
and Natural History, and with text-books in which the necessary infor-
mation may be found as to the forms of animal and vegetable life occur-
li ng on the Pacific coast.

Si.ifh. — We need a (ieological Sm-vey in order to show to the world
that the State is willing to contribute something towards the advance-
Mii'iit of science, and that we may not be subjected to the mortification of
having the rich harvest of facts which California spreads out before us,
trlt ungathered. or only partially reaped, for the benefit, and by the efforts
lit. other States and countriea.

REPORTS ur JOINT COMMITTEE

IN REGARD TO

^n %IU^(^ Jfniiihilcnt Inttrplation

SENATE BILL No. T3,

"AN ACT TO PROVIDE FOR THE SALE OF THE MARSH AND TIDE LANDS OF
THIS STATE, APPROVED MAY 14, 1861."

r,E::j. r. avert state printer.

HE F O H T.

Mr. President : — The undersigned, members of the Joint Committee
'of the Senate and Assembly, appointed at the present session of the Le-
I gishiture, to inquire into and report upon a fraudulent interpolation
alleged to have been made, at the last session of the Legislature, in
Senate bill No. 78, of that session, l)eing '* An Act to provide for the Sale
of the ^farsh and Tide Lands of this State, approved May fourteenth,
eighteen hundred and sixty-one," beg leave to report:

That in entering upon their investigations they found upon the records
of this State, enrolled in the office of the Secretarj" of State, the law in
(]uestion. (Laws of IsOl, page 808, chap. 356,) bearing the certificate of
the presiding officers of the Senate and Assembly, to the effect that it
liad been duly passed by each House of the Legislature, and also the
hii;nature of tlie Governor, giving it his approval, by which it became a
law. Taking for our starting point the presumption against fraud which
the law raises, and considering that the fabrication of the record of a law
would be a fraud of the greatest magnitude, we took for our stand point
tie proposition that the enrolled statute in the office of the Secretary of
Slate must be presumed to be correct, until the contrary was shown.

Taking for our guide the decisions of the highest Courts of our sister
States, we found "that we had a right to go beyond the record in the
olHce of the Secretary of State, and to examine the Journals of the two
Houses of the Legislature, to ascertain whether the certificates of the
presiding officers as to the passage of the Act were correct or not. (See
Pacific Kailroad Company vs. The Governor, 23 Missouri Eep. 353;
Hunt vs. Van Alstyne, 25 Wendell E.. 606 ; Turley vs. Co. of Logan, 17
Illinois Eep., L51.) We therefore had recourse to the Journals of both
Houses of the Legislature, and we propose to detail the entries on those
Journals in their chronological order, as this mode, although involving a
long and tedious process, cannot fail to disclose the contemporaneous
commentaries upon the proceeding made by the officers and committees
of both Houses. AYe have attached numbers to the various entries which
we have cited from the Journals, for the purpose of facilitating reference
to them. They are as follows :

NUMBER ONE.

In Senate, February 2d. — " Mr. Phelps, by leave, introduced a bill
without notice, for an Act to provide for the Sale of the Marsh and Tide
Lands of this State. Read tirst and second times, and referred to the
Committee on Swamp and Overflowed Lands." — Senate Journal, page 127.

NUMBER TWO.

In Senate, March Ist. — " Committee on Swamp and Overflowed Lands,
to whom was referred Senate bill No. 73, entitled an Act to provide for
the Sale of the Marsh and Tide Lands of this State, have had the same
under consideration, and herewith report the same back, with a substi-
tute, and recommend its passage." — Senate Journal, page 203.

NUMBER THREE.

In Senate. March 1st. — "On motion of Mr. Plielps, the rules were sus-
pended, and Senate bill No. 73, an Act to provide for the Sale of the
Marsh and Tide I^ands of this State, was taken up, considered in the
Committee of the AVhole, and amended. Reported back, amemhncnts con-
curred in, bill ordered to be engrossed, and read a third time." — Senate
Journal, page 20o.

N. li. The word amendments is used.

NUMBER FOUR.

In Senate, March 8th.—'' On motion of Mr. Phelps. Senate bill No. 73,1
an Act to provide for the Sale of the Marsh and Tide Lands of this State, I
was taken from the table, and re-referred to the Senator from San Ma-
teo, with special instructions to amend as follows: After the word 'Oak-
land,' in lines fourteen and fifteen, insert the words ' or within one and a
half miles of the State Prison grounds at Point San Quentin,' and after
the word 'cities' in line eighteen, insert the words ' or within one and a
half miles of the State Prison grounils aforesaid.' Mv. Plielps, by leave,
reported l>aek Senate bill 83. (should he 73,) forthwith amended as
required by the special instructions. Report accepted, amendment
adopted, and bill passed as amended." — Senate Journal, page 23G.

NUMBER FIVE.

In Assembly. March 11th. — "Senate bill 73 received from the Senate,
read twice, and referred to Committee on Swamp and Overflowed
Lands." — Assembly Journal, page 353.

NUMBER SIX.

In Asserabh', March 26th. — '- The Committee on Swamp and Over-
flowed liands. to whom was referred Senate bill No. 73, an Act to provide
for the Sale of the Marsh and Tide Lands of this State, have considered
the same, report it back, and recommend that the bill pass as amended."
— Assembly Journal, page 529.

NUMBER SEVEN.

In Assembly. A]»ril 16th. — •• iSenate bill No. 73, an Act to provide for
he Sale of the Marsh and Tide Lands of this State. Atneudmcnts adopted,
,d a third time, and passed." — Assembly Journal, page 723.

NUMBER EIGHT.

In Senate, April l!^th. — "Sonato bill No. 78, above reported, was
tomsidered, and the Sonato rct'iised to eoncniv in Assembly amcnibnents
hereto." — Senate Journal, page OOl.

NUMHF.R NINE.

In Assembly, April 10th. — The House refused to recede from Assem-
ly amnithnnits to Senate bill No. 73, above reported, and appointed
Cessrs. Conness, Tilton. and Magruder. as a Committee of Free Confer-
Wttce." — Assembly Journal, page 741.

NUMBER TEN.

In Senate. A}H-il 2_M. — Message from the Assembly, stating that it
'refused to recede from its ami iitfmtnfn to Senate bill No. 73, an Act to
provide for the Sale of the Marsh and Tide Lands of this State, and re-
juest that the Senate will recede from its position thereto, and concur
n the ainemlnunfs." — Senate Journal, page 078.

NUMBER ELEVEN.

In Senate, April 22d. — "Senate bill No. 73, above reported. Avith As-
sembly (WHiulmtHts thereto, was laid on the table." — Senate Journal, page
578.

NUMBER TWELVE.

In Senate, May Ist. — " Mr. Phelps, by leave, moved to take up Senate
bill No. 73, an Act to provide for the Sale of the Marsh and Tide Lands
of this State, that a Committee of Free Conference might be appointed
Qpou the disagreeing vote of the two Houses thereto. Agreed to. Bill
taken up, and Conimittee of Free Conference appointed, consisting of
Messrs. Phelps, Parks, and Warmcastle." — Senate Journal, page 717.

NUMBER THIRTEEN.

In Senate. May 3d.— '• Mr. Phelps, Chairman of the Committee of Free
Conference, appointed to confer with a like committee on the part of
the Assembly, upon the disagreeing vote of the two Hoiises on Senate
bill No. 73, made a verbal report, recommending that the Senate do con-
cur in the amouhmuts of the Assembly. Peport received, and, on motion,
adopted. So the Assembly anum/mcuts to Senate bill No. 73 were con-
curred in." — Senate Journal, page 730.

NUMBER FOURTEEN.

In
enrolled

Senate, May 11th.— Committee on Enrolled Bills report as correctly
led " Senate bill No. 73, an Act to provide for the Sale of the Marsh

and Tide Lands of this State. Eeport accepted." — Senate Journal, page
790.

It will be observed that after March twenty-sixth, (see No. 7, etc.,) the
word amendments, in the plural, is aiwa3'S applied to the action of the
Assembly. This we consider as very important, and indeed, in its con-
stant recurrence, very decisive testiinon}^ to the point that the Assembly
made more than one amendment to the bill. If it is asked when an
amendment was added to the one made as recorded in No. 6, it ma}' be
replied, that the records of both Houses are somewhat defective, and
that proceedings were sometimes had which are not recorded, and that
although the record must be presumed to be correct in what it does re-
cord, that does not show that facts may not transpire which it does not
record.

Here Ave might have properly concluded our investigations, having fin-
ished them ace(n-ding to the usual forms of procedure, and having dem- (
onstrated that the terms employed were such as could, according to the
ordinary use of language, be applied to not less than two amendments
adopted by tlie Assembly; that is to say, that the term "amendments," i
in the plural, indicated more than one amendment, for it nuiy well be I
doubted whether the Journals of the Legislature can be overruled or im- (
peached l)y parol testimon3\ The very reason given in some of the i
cases decided on this subject, why it is permitted to go behind the certif- :
icate of the presiding officer and consult the Journal, is, that the presiding i
officer may be mistaken, but that the Journal, being kept under the in- '
spection of the legislative body, and subject to its correction, is supposed -i
to be absolutely true so far as it assumes to state fiicts. It seems, there- i
fore, to present a contradiction in terms, and to overturn a well estab- I
lished principle of the law of evidence, when it is proposed to go behind \
a record of such high verity, and to attempt to overturn it by merely
parol testimony.

We trust that this 2»««/ protest will prevent a precedent being founded
upon the fact that the Committee, in its desire to elicit the exact truth,
advanced beyond the strict boundaries of legal evidence, and proceeded to
examine witnesses on the subject, to whose testimony we shall advert
hereafter.

The original Act, now remaining in the archives of the State, consists"
of four pieces of paper. The first and largest is a full sheet of foolscap,
upon the first page of which is engrossed the Act; on the face of this is i
attached a piece of paper of the size of half a page of foolscap, upon
which is written as follows :

'' Special instructions adopted by the Senate, March 8th, 1861, adopted
by the Senate..

" WILLIAMSON, Asst. Sec'ty.

" Insert, after the word ' Oakland,' in lines 14 and 15, insert ' or within
one mile and one half of the State Prison grounds, at Point San Quen-
tin.'

" Insert, after the word ' cities,' line 18, ' or within one mile and one
half of the State Prison grounds aforesaid.' "

This constitutes the same amendment taken as above from the Senate
Journal, and marked No. 4.

Under this last mentioned piece of paper, but projecting beyond it at

•the right hand, and also projecting below it, is another piece of paper,
also attached to the original, upon which is written as follows :

" Amend as follows : Insert, after the word State in 12th line — ' and
all moneys derived from the sale of such lauds shall be paid into the
State Swamp Land Fund, to be used for the reclamation of the Swamp
and Overtiowcd Lands.' "

The testimony shows this to be the amendment first made in the
.Assembly, and referred to in the extract from the Assembly Journal
above, marked No. 0. Beneath this last mentioned paper, and project-
iiiijj with it. and which has evidently usually been folded over it, so as to
\>c always visible, and which, even when folded under it, was never con-
( raled by it, is the disputed amendment, in the words following :

" Amend by inserting, after the word * Lands,' in line 17, the words

• cither Tide or Marsh, excepting Alcalde grants, which are hereby rati-
Wvd and confirmed.' "

It is an important fact that none of these papers purporting to be
iUiu'iKlments of the original bill, have any indorsements whatsoever, or
uiiything to connect them with the original bill, except the fact that
tlicy are attached to it by paste, or some other glutinous substance.

On the outside of the original sheet of foolscap are the following in-

• I'Tsements, which are copied in their chronological order, it being pre-
mised that Mr. Williamson was the Assistant Secretary of the Senate,
ami Mr. Scobey the Assistant Clerk of the House, and references being
made in brackets to the entries taken from the Journals as above num-
Ured :

''Senate Bill No. 73."

• An Act to provide for the Sale of the Marsh and Tide Lands of the

State."
• February 2d, ISGl. Koad first and second times, and referred to the
in. on Marsh and Overflowed Lands.

"D. J. WILLIAMSON,

" Ass't Sec'y."
[See No. 1, above.]

'• March Ist, 1861. Reported back with amendnunits and placed on file.

" WILLIAMSON, Ass't Sec'y."
[See No. 3, above.]

^- March 1st, 1861. Taken up, amended, ordered engrossed, and read a
third time.

" WILLIAMSON, Ass't Sec'y."
[See No. 3, above.]

"Engrossed, March 4tli, 1861.

" GEO. A. GILLESPIE,

" Eng. Clerk."

" March 5th. Taken up and laid upon the table.

" WILLIAMSON, Ass't Sec'y."

" March 8th. Taken up and referred to a Special Committee to insert

an amendment, committee reported back, amendment adopted, bill read
a third and passed.

"D. J. WILLIAMSON,
[See No. 4, above.] " Ass't Sec'y."

" In Assembly, March 11th, 1861. Read first and second time, and
ref d to Swamp and Overflowed Land.

" SCOBEY, Ass't Clerk."
[See No. 5, above.]

" March 26, 1861. Rep'd with amends and received.

" SCOBEY, Ass't Clerk."
[See No. 6, above.]

" Ap'l 16, 1861. Amendts adopted, read third time and passed.

"SCOBEY, Ass't Clerk."
[See No. 7, above.]

" April 18th. Senate refused to concur in the Assembly amendments.

" WILLIAMSON, Ass't Sec'y."
[See No. 8, above.]

" Ap'l 19, 1861. House refused to recede.

" SCOBEY, Ass't Clerk."
[See No. 9, above]

" Senate refused to recede, and have appointed Messrs. Phelps, Parks,
and Warmcastle.

" WILLIAMSON, Ass't Sec'y."
[See No. 12, above.]

" May 4th. Report of Committee of Free Conference adopted.

" WILLIAMSON, Ass't Sec'y."
[See No. 13, above.]

" Ap'l 20, 1861. Messrs. Conness. Tilton, and Magruder, app'd Com.
of Free Conference on part of House."
[See No. 9, above.]

" May 8, 1861. Report of Com'ee of Free Conference adopted.

" SCOBEY, Ass't Clerk."
" Enrolled, May 10th, 1861.

"WM. V. GARVEY,

" Ass't Enrolling Clerk."

It will not escape notice that there is a remarkable concurrence of
terms in the written and printed history of this bill. The printed
Journal of the Assembly, and the written indorsement of its Clerk upon
the bill, under date of April 16, establish the fact that amendments were
adopted and the bill passed by the Assembly on that day. After this
date, the word amendment, in the singular, never appears in connection
with this bill, except once in the Assembly proceedings of April 19th, at
page 741, in a message from the Senate, but this is evidently purely a
mistake, as on the same page, a few lines below, it is again called amend-
ments; also, the printed Journal of the Senate, and the written indorse-
ment of its Assistant Secretary, verify the assertion, that on April 18th

flie Senate refused to concur in the Assembly amendments, and after that
time the term amendments is constantly emploj-ed. If therefore it be
conceded that the word amendments is used in its natural sense, it fol-
Knvs, that the Assembly did really propose, at least, two amendments,
and, if so, it is to be presumed that they were the two last amendments,
which now a]>pear attached to the bill, for there are but two such, the
Senate amendment being pertectly identitied by being copied into the
Senate .lourjial.

To escajH' from this inevitable conclusion, it has been proposed to re-
verse the liitherto received rule of construction, namely, that words are
ti) be taken in their (»i-(liiiary and grammatical sense, and aecordin"- to
the natural and obvious import of the language, (Sedgwick on Statutory
and Constitutional Law, 200, 201.) Instead of this "plain and decisive
test, it is attempted to introduce a new one, directly contraiy in its
]irinciple and results, that is to say, to interpret words in a sense
directly opposite to their usual and obvious meaning. For example, it
i^ now pro])osed to read the word tnnendmenfs as if it might mean either
one or sevi'ral amendments, and as if the distinction between the singu-
lar and plural were but little regarded. We cannot assent to any such
proposition. "The amendment" of a bill is. indeed, a generic term,
descriptive of a jirocess which may include a whole series of amend-
ments ; but the converse is not true, and when amendments are spoken of,
in the plural, the phrase always indicates the enumeration of more than
"lie. Kecourse has also been had to the subtle proposition that where a
ingle amendment is capable of division into two propositions, it maybe
properl}' stj'led (imendnvnts ; but the answer to this is twofold: first, that
men do not ordinarily use the language of schoolmen ; and secondly,
tiiat the first amendment confessedly adopted b}- the Assembly is not
( apable of a division ; and finally. Mr. Williamson, the Assistant Secre-
tary of the Senate, testifies, in etfeet. that all such refinement of con-
>t ruction, and all such metaphysical niceties, were wholly absent from
his thoughts, and that he used the phrase, " Assemldy amendments,"
liecause there were more than one of them, and that his l^ecord Book,
kept by him at the time, showed that the amendments of the Assembly
had been concurred in by the Senate. (See his deposition.)

In giving a brief abstract of such of the testimony as it is deemed desira-
I'le to comment upon, it is proper to direct attention to the fact that that
])ortion of it which tends to sustain the truth of the records and the integ-
rit}' of the bill, is of a ])()sitive and affirmative character; that the wit-
nesses giving it cannot be mistaken as to the facts testified to ; and that
if their testimony is not literally true, they must be guilty of perjury;
while the testimony given in op]iosition is of a purely negative char-
acter, and that if it be not true, that fact involves the witnesses giving
it in no imputation of moral turpitude.

Mr. Wm. (t. Wood, one of the Assistant Clerks of the last House, was
twice examined before the Committee. When he was examined the first
time, the original bill with the amendments attached, had not been found,
and was supposed to be lost. He testifies positivelj' : " I know that
there was one Senate amendment, but there were three slips of paper
attached to the bill." (See his testimony.) AfterAvards, when the bill
had been found, it corresponded precisely with his description ; and being
re-examined, he testifies that the bill in its present condition is the
identical bill transmitted by the Assembly to the Senate.

An argument has been employed to show that Mr. Wood's recollection
is not exact, because in his testimony he speaks of the amendment made
2

to the bill in the Senate on March 8th, as being the "Senate amend-
ments." (See No. 4', above.) But the argument is itself Avanting in
exactness; for previously, on March 1st, other amendments had been
adopted. (See So. 3.) And the very amendment adopted on March 8th,
appears on the manuscript in the form of two disconnected paragraphs.
The exactness of his recollection is well tested by the fact that when the
bill was finally produced from the archives it was found that the Senate
amendments were on one piece of paper, and the Assembly amendments
on two pieces, precisely as he had testified.

The testimony of Wm. V. Garvey, the Enrolling Clerk, shows that the
bill was correctly enrolled, as indeed does the entry in the Senate Jour-
nal. (Xo. 14, as above,) which is fully confirmed by the testimony of lion.
E. H. Hoacock, who (as a member of the Enrolling Committee) reported
the bill to the Senate as correctly enrolled.

It is not disputed that the record in the ofiice of the Secretary of State
contains the dis]nited amendment.

The deposition of John 11. Coryell shows that while the bill was yet
in the Assembly, and before the appointment of the Committee of Free
Conference, he obtained a copy of the Act, containing the disputed
amendment, from one of the Clerks of the Assembly.

The deposition of lion Richard Irwin, a member of the Senate, cor-
roborates the testimony of John Jl. C<nyell, to the extent of Cor3-eir8
informing hin\. at the time, that the bill contained a clause confirming
Alcalde grunts; while the testimony of i>. J. AVilliamson, Assistant Sec-
retary oi" the Senate, is very positive as to the fact that the amendments
now attached to the original bill, were all attached to it at the time
when it passed the Assembly finally.

To meet this array of positive testiuion}^ is produced, not only what
is merely negative testimony of non-recollection, but most of this is of
the weakest quality ; weak, not in the character of the witnesses, but
weak in the nature and degree of their knowledge.

No person is produced as a witness who testifies that he ever saw the
bill after its first amendment in the Assembly, until it was produced be-
fore your Committee on this investigation.

There is no evidence whatsoever to show that the Committees of Free
Conference ever looked at the amendments made by the Assembl}^, or
that the Chairman of the two Committees did not trust entirely to their
recollection, and to the statements made each to the other.

Of the six members of the Committees of Free Conference, four were
produced as witnesses, but only one testified that he had served as such
member; the others either do not mention it, or state directly that they
do not know whether they did so serve or not.

Although many witnesses testify with great moi-al certainty to the
fact that no such amendment as the disputed one could have been
passed without their knowledge, yet there are only two of those wit-
nesses who atfirm. with anj'thing like reasonable certainty, that they
were present when the bill passed the Assembly.

Of those two, one, Hon. O. F. AVilley, testifies that he was present
when the bill was under consideration, and passed, and that if the dis-
puted amendment had been introduced and read, he would have known
it. (See testimony ;) and the other, Hon. John Conness, testifies that " he
was present in the House when it was considered," and that the dis-
puted amendment " was never before the House, was not before the Com-
mittee of Conference, and was never passed upon by the body of which
he was a member, (See testimony.) But, as we have already seen, there

iH no evidence tliat any member of either body ever saw the bill after
the first amojidnioiit adopted by the House, while Mr. "Wood's impres-
sion is that this bill never went into the hands even of the Committee of
Contcrenee, (See testimony;) and Hon. Eichard Irwin's testimony is to
the etteet that the Assembly's amendments were not read in the Senate.

We are not satisfied that the disputed amendment could not have been
read without attracting particular attention. It was carefully prepared,
and it is hardl}' to be doubted that it was intended to be passed without
much notice or discussion.

But a strategy of this kind is very different from a fraud and falsifica-
tion like the one imputed to the authors of this amendment. A phrase
which did not attract tiie attention of land owners, of newspapers, or of
lawyers, until wreUs after the session had closed, nor until the laws had
been printed and published in a vulume, might escape the notice even of
the most vigilant Legislators.

AVe cannot, therefore, in the face of so much jiositive testimony — pre-
-umptive, documentary, and Judicial — assume to say that the disputed
amendment was not attached to the bill at the time of its passage, and
was not before the House. Nor is there any force in the objection that
this amendment was not regularly proposed and reported upon by a com-
mittee, (iranteil that such was the case; yet the validity of a law does
not dej)end upon the forms of parliamentar}' procedure, and we suppose
it would be competent for either House to take a proposed bill from the
hands of any member, and ])ass it at once to a final vote.

It has l)een oiijected that there was no indorsement on the disputed
amendnient. and nothing to connect it to the original bill. The same
(ilijection lies to the other Assembly amendment, wliich is not disputed;
liiere is no indorsement on it. In short, there is nothing which may be
urged against this amendment which is described as interpolated, which
nught not be urged with equal plausibility against a very large portion
of the laws enacted l»y the Legislature.

If it is ol)Jeeted that it has not been shown who introduced this amend-
ment into tlie Assembly, it may be replied, that to denounce men in ad-
vance, as guilty of fraud, is not a successful mode of inducing frankness
and the discovery of the truth.

Few persons would be willing to intervene in a matter of this kind
under its present aspect. But to ])ronounce at this time that no such
amendment was ever adopted by the Assembly, would be to falsify our
.Journals and archives in ten different instances; it would be to proclaim
that a broad conspiracy existed between several of the officers of the
late Legislature, and a conspiracy so foolish that the merest accident
would involve them all in detection and disgrace. We are not prepared
10 make any such assertion, or to bring any such charges.

We do not attach any importance to the fact that the original bill and
amendments were found in the Assembly archives, and not in those of
the Senate. Papers often get mislaid in this way. Moreover, several
other Senate bills were found, like this one, among Assembly files, and no
fraud is charged respecting them. (See testimony of A. II. Tuttle, Dep-
uty Secretary of State.) The lands supposed to be affected by the pas-
sage of this amendment, have now passed, for the greater part, into the
hands of honajidc purchasers. Whether the law was passed by fraud or
not, is a consideration which cannot affect their vested rights. A re-
markable instance once occurred in the State of Georgia, which may be
cited, for its apt illustration of this rule, even in cases of conceded fraud.
A large moneyed combination had, by corruption and fraud, procured

the passage of a laAv by the Legislature, by which an extensive and val-
uable tract of public lands were conceded to them for a nominal consid-
eration. Says Hildreth, in the first volume of his History of the United
States, at page 642 :

" Upon this state of facts, together with other general allegations of
corruption, and of the inadequacy of the sum paid, the Legislature of
the present year passed a new Act, revoking the sale as unconstitutional
and void, and directing the repayment to the companies of their respec-
tive amounts of purchase money, if called for within eight months; the
several amounts uncalled for at the end of that period to be adjudged
'derelict, and forfeit to the State.' As an additional evidence of the in-
dignation of the Legislature, and a means, too, of destroying all proof of
the existence of the grant, the original Act authorizing the sale Avas
ordered to be burned, and all the records relating to it to be expunged.
The burning Mas executed with great formalit}'. The two Houses, mov-
ing in procession for that purpose, were preceded by a committee bearing
the obnoxious parchments. A fire having been kindled in front of the
State House, the committee handed the documents to the President of
the Senate, he to the Speaker of the House, he to the Clerk, and the
Clerk to the Doorkeeper, by whose hands they were committed to the
flames.

'* Previous to this attempt to nullify the sale, the original purchasers,
among whom were Patrick Henry. Judge Wilson, and other distinguished
citizens, had already ti'ansfei'red their rights to others.

" These transfers had been made partly in South Carolina and the
Middle States, but principally in New England, at a large advance on
the original purchase money. Nor were these new purchasers at all dis-
posed to concede the right of the Georgia Legislature to nullify the con-
tracts of their predecessors, especially in a case like the present, where
the interests of third parties were concerned. Hence, loud complaints of
unconstitutional breach of faith on the one side, and of corruption and
fraud on the other."

And yet, when the validity of the Act came to be passed upon by the
Supreme Court of the United States, in the celebrated case of Fletcher
vs. Peck, reported in G Cranch, HI. the Court decided that a grant by the
Legislature is an executed eonimct ; that if the Legislature has the con-
stitutional power to pass an Act. and the Act be clothed with all the
requisite forms, although fraudulently passed, and bona fide purchasers
acquire vested interests under it, the law cannot be repealed so as to
divest those invested interests.

In view of the facts, and of the undoubted law of the case, and believ-
ing that any hostile act or expression in the matter would be powerless
for good, Avhile it might inflict injury on innocent j)ersons, we are of
opinion that a proper sense of dignity and of justice requires that the
Legislature shall not falsify its own records, or cast even an imjilied cen-
sure upon any of its ofiicers, and recommend that no further action be
taken in the premises.

All of which is respectfully submitted.

S. A. MEREITT,

Of Senate Committee.

S. S. TILTON,

Chairman Assembly Committee.

T. M. AMES,

Of Assembly Committee.

R E I^ O R T .

Mr. President : — The undersis^nod, members of the Joint Committee
of the Senate and AssemMy, ajipoiiited to make an inveHti,i>;ation in re-
gard to an alleijed fraudulent intci-polation in Senate bill No. 73, "An
Act to prf>vi(le for the Sale of tiie Marsh and Tide Lands of this State,
approved ^fay fourteenth, eighteen hundred and sixty-one," ask leave to
present the following report :

Your Committee deemed it to be their duty, under the resolution by
which they were appointed, to make such examination as would, if pos-
sible, furnish a satisfactory answer to the following questions:

First — Are the words •' excepting Alcalde grants, which are hereby
ratified and confirmed," an interpolation, or were they adopted by the
Legislature ?

Second — If these words were fraudulently inserted in the bill, by whom
were they so inserted?

We made diligent search in the office of the Secretary of State, with-
out being able to find the engrossed bill, but eventually it was discov-
ered in tiie folds of an Assembly' bill, with the Assembly papers.

"We find, on this engrossed bill, a slip of paper, purporting to be an
amendment, in the words " excepting Alcalde grants, Avhich are hereby
ratified and confirmed," and we find that the enrolled bill corresponds
with the engrossed bill, including the slip alluded to. There is, on this
slip of paper, no indorsement of any kind to indicate that it was acted
upon by either House, and we have been unable to find an}- one who
knows the handwriting on the same. It is true that the indorsement of
amendments was sometimes neglected during last session, but there is
nearly always some indication as to their origin and the action in regard
to them. In this case, however, we have been unable to find, either in
the handwriting, the Journals, or in the recollection of any of the mem-
bers, the slightest indication that this, or any other amendment relating
to Alcade grants, was incorporated in this bill by the Legislature. It ap-
pears from the evidence, that this bill was the subject of unusual scrutiny
and care, and that in the ditferent stages of its passage it was closely
watched by the most vigilant and reliable members of the Senate and
Assembly.

It is claimed that the indorsements on the bill indicate that there was

more than one amendment adopted in tlie Assembly, and concurred in
by the Senate, and that this Alcalde grant provision was one of those
amendments. The principal evidence in favor of this position is, that
the word amendment a ^ and not amendment^ is used in the indorsements
upon the bill, and that W. Or. Wood, Minute Clerk, testifies, upon having
his memory refreshed by a sight of the bill, that this Alcalde slip of
paper was attached when it left the Assembl3^

Now it is quite possible that this slip was connected with the engrossed
copy of the bill when it was carried from the Assembly, and it may have
been put on and taken off several times during the progress of the meas-
ure ; for it apj^ears from the evidence of Mr. Wood, that tiie Clerk who
had charge of the pajiers was very accommodating to his friends, in let-
ting them have bills which were in his custody.

It seems that at the time the enrolled bill was written and compared,
this clause was connected with the engrossed copy ; but as we can find
no one who recognizes the handwriting of this alleged amendment — as
there is no indorsement, mark, or other evidence that indicates its ori-
gin, and as tliere is no record of any action of the Legislature upon it,
the only thing left to jH'ove that it was adopted by the Senate and
Assembi}^ is the vague inference that may be drawn from the liict that
ou the engrossed bill the amendment adopted in the Assembly is referred
to as amindmentii — the plural seeming to indicate that there was more
than one amendment. It therefore becomes important to ci'itically ex-
amine the force of the argument based on these hasty and abbreviated
indorsements.

The argument is this : As the word amendments is used in the indorse-
ments on the bill, in referring to the changes proposed by the Assembly,
this Alcalde provision must be one of those amendments.

It is well known that the distinction between the singular and the
plural, in referring to "an amendment," is by no means clear, and it is
seldom regarded.

Some claim that a compound proposition, or a series of propositions,
is "an amendment," and others insist that, because it is made up of dis-
tinct propositions, and is divisil>le, it can anrl should be referred to as
"amendments;" and again, others believe that an '' amendment" con-
sists of a single slip of paper, on Avhich tliere is written a proposed
change of one section, and that the word " amendments" refers to dif-
ferent propositions not connected.

It would require more sjjace than this argument deserves, to refer to
all the various opinions as to what constitutes the difierence between
"an amendment " and " amendments," and numerous examples migh^
be cited to show that the distinction is very often entirely disregarded;
but we will only refer to a few illustrations, that occur in connection
with this case.

On March 8th, this bill was referred to Mr. Phelps, with instructions
to insert certain language. He reported the bill with that language,
which is referred to in tlie Senate Journal as follows : •• Report accej^ted,
amendment adopted, and bill passed as amended." The same word
(amendment) is used in two cases in the indorsement, in referring to this
Senate amendatory language inserted by Mr. Phelps, under sjiecial in-
striictions.

But W. G. Wood, in referring to this amendment, speaks of it in the
plural, using the words '• Senate amendments."

On page 529, Assembly Journal, we find the following written report

of the Committee on Swamp and Overflowed Lands, which was one of
the most critical and careful committees of the House:

"The Committee on Swamp and Overflowed Lands, to whom was re-
ferred Senate bill No. 73, liaving considered the same, report it back
with AN AMKNDMENT, and rccommcnd that the bill pass as amended."
Si<,med, -'Adams, Chairman." And Mr. Adams testif.es positively that
there was hnf our amnKlmnit reported back from that Committee. Yet, in
the indorsement on the bill. Mr. Wood, who made the indorsement, refers
to it as '-amendments." and of course in tlie subsequent indorsements in
rrirard to the same amendment, the word -- amendments " is repeated.
Ml-. Wood also testifies that this indorsement of his, being in the plural,
lonflrms him in the opinion that thire van more than one amendnwnt re-
]><)rted back from the Committee on Swamp and Overflowed Lands, but
'lie Journal and the testimon}' of Adams and others clearly show that

/// (me amendment was so reported, and that Mr. Wood, in this, is entirely
mistaken.

On pai^e 741, in "Senate Messages," we find this amendatory language
r the Assembly again referred to in the singular, as follows: "The

iiate on yesterday refused to concur in Assemblv xmmdment to Senate
lull No. 78."

We tind. then, that there was ]>ut one amendment reported from the
Committee on Swamp and Overflowed Lands, that this is in the hand-
writing of John ConnesH, an<l relates to the disposal of the proceeds of
the sales, and was adopted b}* the Assembly, but no indications in the
i-ecord, or otherwise, is found, that shows that the Alcalde amendment
was ever proposed in either House, or in any committee of either House.

It is, however, claimed that the report of the proceedings, as given in
the Sacramento Union of April , shows that more than one amend-
ment was adopted by the Asse!nl)ly. Although an abbreviated report of
a deliate may not be regarded as strong evidence, it is perha])s proper to
examine this argument in favor of the validity of this Alcalde provision.

Tlie Union's i-eport of the Assembly proceedings of April . con-
tains the following language in connection with this bill, which had been
i-eturned with the Assembly amendments non-concurred in :

" Mr. Conness said the amendment to which the Senate objected was
the one providing that the proceeds of Marsh and Tide Lands shall be
paid into the Swamp Land Fund."

It is claimed that the language of Mr. Conness, " the amendment,"
designates one of two or more Assemldy amendments. An inference of
this vague character certainly aflbrds but little ground on which to base
a reliable argument ; and, besides, the testimony of Mr. Conness on that

point is clear and direct. But in the Union of we find, in the

• report of the Assembly proceedings, the following :

Senate bill No. 73 " was considered. The amendment reported from the
Committee on Swamp and Overflowed Lands, providing that all the
moneys derived from the sale of such lands shall be paid into the Swamp
and Overflowed Land Fund, to be used for the reclamation of Swamp
and Overflowed Land, was adopted, and the bill was passed."

If there be any force in the inference drawn from the first quotation
from the Union, certainly much more importance should be attached to
the second quotation; for that is a clear record, which renders it obvious

that the amendment concerning the disposition of the proceeds of the
sales of these lands, reported by the Swamp and Overflowed Land Com-
mittee, was the only amendment adojjted by the House, and certainly no
amendment concerning Alcalde grants could have been proposed and
adopted without attracting the attention of the reporters, or some mem-
ber of the Assembly.

Having considered the evidence relied on to establish the validity of
this Alcalde grant provision, your Committee desire to direct attention
to a jjortion of the evidence going to show that no such provision was
adopted by the Legislature.

Mr. Parks, who was a member of the Committee on Swamp and Over-
flowed Lands, ami a member of the Committee of Free Conference on
the disagreement between the two Houses, says, concerning the Alcalde
grant jjnn-ision, that " it cei-tainly never passed the Senate."

Mr. Willey and Mr. Flanders testify that they carefully examined the
Senate engrossed copy of the bill, when it was passed in the Assembly,
and they ai*e positive that no provision relating to Alcalde grants wa-
then connected with the bill, and that the amendment made in the House,
related only to the use of the proceeds of sales.

Your Committee would direct special attention to the statement of
John Conness, who was one of the most vigilant and industrious membei >
of the last Legislature, and a member of the Swamp Laud Committee,
and also of the Committee of Conference on this bill.

TESTIMONY OF JOHN CONNESS.

Question. — Mr. Conness, were you in the Legislature last winter ?

Answer. — I was a member of the Legislature of eighteen hundred and
sixty-one.

Q. — From what count}- ?

A. — I was a member of the Assembly from the County of El Dorado.
I was a member of the C(jmmittee on Swamp and Overflowed Lands of
the House.

Q. — Do you remember concerning the passage of this Act ?

he was interested, in the question involved, in his county, and manifested
ail anxiety to have the bill pass. But I had a reason, I say, wiiieh it is
unnecessary to state here, for keeping the Act from being passed, for
a while, holding it back in Committee and witlun my reach, and I did so
hold it in the (/'ommittee for some little time; but I became satisfied that
the suspicions that occurred to my mind were not well founded. Then I
liud no further desire to prevent the passage of the Act, and I sug-
gested some amendments. I think the amendments alluded to by Mr.
I'orter were discussed in the ('omniittee and favored by me, and one
nthcr in i-egai-<l to the disposition of the proceeds of sales. I had made
ihc School Fund s(;inething of a specialty, and I was in favor of an
ainendnuMit providing f<»r the payment of the proceeds into the School
I'lind, and that was one of the amendments discussed by the Committee
nt' C/onference, to whom the disagreement was referred, and a com-
|»romise was arranged between the Committees, to provide for paying the
proceeds into the Swamp and (Jverfiowed Land Fund, upon the reason-
al>le hypothesis that tho.se lands would necessarily be reclaimed in con-
m-ction with the Swamp and Overtlowed Lands of the State, and there-
iMi-e the money for their sah' should go into that fund, and be a])plied to
ihat purpose. I am positive, as that I exist, that that exception in favor
of and confirming Alcahle grants was not in the l)ill.

Qiustioii, />// Mr. Sonlr. — When it ])assed the Assembly?

A. — When it jtassed the Assembly and when considered by the Com-
mittee of Conference, which includes the passage by both llouses, be-
rause the adoption of the report of the Committee of Conference is the
liiial passage of a bill by each JIousc; and I am positive that tliese words
— that interpolation — these words in parentheses, were not there at all,
nor an3thing relating to Alcalde grants. I will explain, if you will al-
h)w nie to state at a little length, why I am so positive.

Mr. Banks. — That is Just what we want you to do, and if you are fa-
miliar, from reading or othei'wise, with Alcalde grants, state that.

Mr. Conii'.'i.^. — I believe I understand the subject. In the first place, in
a former liCgislature that I was a member of, that of eighteen hundred
and fifty-three, the attenipt was made to extend the front of this city
into the harbor and over the lands covered by water, and I resisted it
with all the influence I had there. It was defeated. In eighteen hun-
ilied and fifty-four 1 was also a member, and the same question came up,
or a question similar to this one, but in another shape. I think I have a
]>iinted bill at my home now, as it is a kind of literary curiosity, that was
introduced in the Assembly, and the passage of it pressed in that body.
It was nominally an Act for the benefit of Settlers, but it was really an
-Vet to confirm and cede the title of the State to the lands covered by
water beyond the present, or the then legal, water front, of San Fran-
cisco, and reaching around the entire city front. This Act provided for
the confirmation of any lands owned by the State and covered by water,
which had been surveyed and the record of which survey had been made
in the Clerk's office of the county in which they were located. That had
heen previously done, and the record made here, and this was an Act
confirmatory, but the language confirmatory was introduced in paren-
theses, and in such a manner that an ordinary reader could not discover
or detect it at all. It was only by sifting a large mass of matter that
you could get at the real intention of the Act— one of the most cunningly
devised Acts for carrying out a sinister purpose that I ever saw. I have
kept it, as a sort of curiosity. It was pending the discussion that oc-
curred upon that bill, that this class of amendments first originated that
3

latterly have been appended in this case, prohibiting the application of
those laws within certain distances of incorporated cities, and, by the
adoption of an amendment of that kind, exempting San Francisco, the
scheme was destroyed and the bill was defeated. My attention had
been constantly directed to the confirmation of Alcalde grants and the
confirmation of this class of claims, and of colors of title obtained by the
sale of slips and lands covered b}' water, at and near San Francisco, on
judgments obtained in Justices' Courts, so that there never was a bill in
which anything of the kind occurred while I was a member of the Leg-
islature, tliat did not receive the closest scrutiny I was eapal)le of.

The bill which is now the subject of investigation contained but a
section or two, and therefore was easy to be understood. I was familiar
with every line of it. and it was utterly impossible that it could contain
the exception and contirmation of any Alcalde grants without my know-
ing it. The language was not there. There can l»e no doubt but that it
was introduced after its passage through botli Houses, and is an interpo-
lation which never received Legislative sanction. The interpolation
(as I term it) made there, in these words, to be specific about it, • ex-
cepting Alcalde grants, which are hereby ratified and confirmed," — thesi
words were certainly introduced in this Act after the Act had finally
passed both Houses. I say both Houses, because I was a member of the
Committee of Conference, and the adoption of the report (as I before
stated) of the Committee of Conference is the final passage of the bill.
These words were certainl}' introduced subsequently, and were no part
of the Act that ])assed the Legislature. There is nothing further 1 can
state in this connection, except this — to confirm the statement made by
Mr. Porter, as one of the motives for a closer examination of that Act iu
reference to the condition of lands near the State Prison, the statement
made to me — the information that 1 had in connection with the piece of
land there, was that it was low land, the title to which was in the State
properly ; that the Lessees of the Prison had run out waste matter
there, and. as they termed it, reclaimed the land; that is, raised it up,
for the purpose of making brick upon it. and that they asserted a claim
to it. The passage of this Act without this amendment would give
them title. The object of the amendment was to keep them away from
there, and let them have nothing further to do with it. M}' attention
was first called to this clause in the Act — the clause relating to Alcalde
grants — -when I was out in the last canvass, and it had got into the
newspapers.

Q. — Have you any knowledge of the way in which that was incorpo-
rated into the Act ?

A. — I have no knowledge ; I have suspicions ; I think I know, but I
do not know of my own knowledge.

(Signed,) JOHN CONNESS

JOHN CONNESS, RECALLED.

Q. — Please state what you know concerning the passage of Senate bill
No. 73, the engrossed copy of which, marked (A.) is here exhibited, and
particularly" what (if anything) you know concerning the Alcalde clause
of the same, attached and marked (W) by the Committee ?

agreeing vote of the two Houses in regard to this amendment reported
i by the House Committee. The amendment so reported by our Com-
11 mittee and adopted by the House, is in my handwriting. I notice the
amendment marked (\V) which is attached to the bill also. This amend-
ment marked (WJ relating to Alcalde grants, was not reported by our
Committee, was never before the House, was not before the Committee
I of Conlcrence, and was never ])assed upon by the body of which I was a
ii member. I do not know the handwriting in which the amendment
I! marked (W) is written.

(Signed.) JOHN CONNESS.

STATE.MK.NT tJF AMoS ADAMS.

Mr. Adams, who was an active participant in all matters relating to
lands, and Chairman ot" the Swamj) and Overflowed Land Committee,
makes the following statement :

1 was a member of the Assembly during the twelfth session of the
Legislature; I was one of the rejtresentatives of Sacramento County.
I have made the subject of lands in this State a special study, and during
the last seven years I have taken an active interest in the subject of
Swamp and Overflowed Lands, ami at the last session of the Legislature
I was Chairman of the Committee on Swamp and Overflowed Lands, of
the Assembly. 1 devoted a very large share of my attention to the
subject of Swamp and Overflowed Lands, and I made it ni}' special duty
to scrutinize, -with minute care, all bills in any way relating to this sub-
ject. 1 distinctly remember Senate bill No. 73, introduced bj'^ Mr.
Pheljis. In the Assembly it was referred to the Committee on Swamp
and Overflowed J^ands, of whicii 1 was Chairman. It ])rovided for the
confirming of the Sales of Tide and Marsh Lands, which had been made
under the Swamp and Overflowed Land Acts of this State. It also pro-
vided that hereafter, sales of Marsh and Tide Lands might be made
under said Acts. The reasons assigned for the passage of this Act were,
that according to the decision of a District Court, the sales of Marsh
and Tide Lands under the Swamp and Overflowed Land Acts, were not
valid, and equity required the passage of a bill of this character. There
was also in the bill, a provision declaring that no sales of Marsh and
Tide Lands within a certain distance of San Francisco, Oakland, and
the State Pri.son, should be confirmed by this Act. The Committee on
Swamp and Overflowed Lamls considered this bill and adopted an
amendment concerning the disposition of the proceeds of the sales of
such lands. 1 wrote a report accordingly, and on behalf of the Commit-
tee on Swamp and Overflowed Lands, I reported the bill, with the
amendment, back to the Assembly, and recommended its passage as
amended. The Committee recommended hut one amemJment^ and that
related to the disposition of the moneys arising from said sales. The
words "excepting Alcalde grants, which are hereby ratified and con-
firmed," were not even mentioned in the Committee, nor were Alcalde
grants referred to in any way. No amendment concerning Alcalde
grants was rejiorted by the Committee, nor by any member thereof. I
am perfectly confident that no such provision, nor any provision con-
cerning such grants, was at any time adopted by the Assembly.

The question of the validity of Alcalde grants is one that I have never
thoroughly investigated, and one of too much importance for me to pass

upon on the information obtained by a Committee of the Legislature, in
the ordinaiy discharge of its duty; and if the subject of Alcalde grants
had been mentioned in connection with this bill, I certainly would have
made a thorough investigation in relation thereto, before consenting to
the adopting of any provision relating to such grants — for 1 have long
regarded with suspicion any Legislative action tending to confirm such
grants in San Francisco.

(Signed,) AMOS ADAMS.

Your Committee have examined a great number of witnesses, including
nearly all the memhers and ofhcers of the Jjcgislatui-e of the last session,
whom we wei*e able to ])rociii'e without much expense, ami we have made
the most diligent in(iuii"y of those who would be nujst likely to know
something in i-egard to tlie insertion of a provision such as that in ques-
tion, but we have been utterly unable to find any one who can furnish
the sliglitest testimony in favor of the assumption that any Alcalde 2>ro-
vision was ])roposed in connection with this bill, except Wm. G. Wood,
Eichard L-\vin, and J)r. Coiycll. Wood has only a recollection that there
were three slips of ])aper attached to the bill when it left the Assembly,
and. u]>on having his memory refreshed by a sight of the bill, he says
this Alcahle slip was one (dthem; but, altliough he was tolerably fa-
miliar with the subjict of Alcalde grants, the substance of this Alcalde
amenilment docs not a])pear to have attracted his attention, and ho has
no rec(jllection of its being piojxjsed or adoj)ted.

L'win remembers, simj)ly. that J)r. Coryell asked him to vote for the,
bill, because it would ])robably confirm the title to certain Alcalde grant
})roperty, in which he, Coryell, was interested; and Dr. Coryell ("who is
the only person who seems to have known anything about this Alcalde
j)rovision until some weeks after the passage of the bill,) utterly fails to
make an}' definite statement as to the time and manner of the insertion
of the alleged Alcalde amendment, but for ])roof of its validity, he
simply refers to the inferences deducible from tiie plural indorsements,
the Union's report of Mr. Conness' remarks, and the engrossed bill,
which, after several fruitless searches, was found in the office of the Sec-
retary of State, by making a very cai'eful examination, it being among
Assembly, instead of Senate bills, and enclosed in the folds of an As-
sembly bill.

He also states that he knew that an amendment of this kind was in the
bill before it passed the Assembly ; that he obtained a copy of the bill,
with the Alcalde provision, before it passed the Assembly; and that the
copy was made by one of " Anderson's Copying Clerks, named D. Dun-
levy," who has " gone north."

It is not at all improbable that an amendment of this kind may have
been attached to the bill when this copy was made, but the evidence of
members who examined the bill when it passed, shows that it was not
on the bill at the time of its passage.

Your Committee have taken a large amount of testimony to which it
is not necessary' to make special reference. It is mostly the evidence of
members and officers of the Legislature, most of w^hom state substantially
as follows :

I was a member (or officer, as the case may be,) of the Legislature du-
ring the last session. I remember Senate bill No. 73. I was acquainted
with its provisions, and I was present at the time of its jiassage, but I

have no recollection that any provision relatini^ to Alcalde .a;rants was
incorporated in it, or even proposed in connection with it.

Now, although tliis may l»e regarded as mere negative testimony, it is

f scarcely within the range of prohability that there could have been le-

l gitimately inserted any such provision without attracting the attention

» of those in and about the Legislature, many of whom were familiar with

the subject of Alcalde grants.

In vii'W of all the facts ])resente<l. we have no hesitation in declaring
that the words '• excepting Alcalde grants, which are hereby ratified and
confirmed," were not adopted b}- the Legislature, but were clandestinely
and fraudulently interpolated before the enrolment of the bill. It is not
at all strange that this jjrovision did not attract the attention of those
connected with the enrolment; for it is notorious, that in copying and
comparing, the subject matter of the writing is seldom noticed.

In regard to the second question — By whom was this interpolation
made y Your committee have examined a considerable nund>er of witr
nesses. and have procured some testimony of a somewhat remarkable
character. While it may Jn»t amount to absolute proof against any one,
we submit it for the examination of the Lciiislature.

TESTIMONY OF JONATHAN D. STEVENSON.

Jonathan I). Stevenson, a resitlent of the City and County of San
Francisco, being duly sworn, deposes and says:

(^. — Do you know anything concerning the passage of an Act to pro-
vide for the Sale of the .>rarsh and Tide Lands of this State, passed May
14th. isill, if so, state what ; and further, what you know, if anything,
concerning the Alcalde grant clause in the Act; also, what you know
concerning the pro|)erty claimed to be affected by said clause ; further,
if you had any conversation with any party claiming lots under this bill,
either before or after its passage ; if so, please state if ":'

A. — I do not know anything concerning the passage of an Act to pro-
vide for the Sale of the Marsh and Tide Lands of this State, passed May
14th, 18G1, of my own knowledge, or of the Alcalde clause in said Act.
Of the property to be affected by said clause, I know as follows :

Since the commencement of the session of the Legislature of 1854,
there has been annually an attempt made by the persons interested
in the lands under water, afft'cted by said clause, to procure the passage
of some Act that would bring the san\e within the water front of the
city, and, as a party interested in a portion of the block bounded by
Battery, Sansome, Lombard, and Chesnut streets. I have been annually
called on to make a deed in trust, or otherwise, to parties who claimed
to have influence with the Legislature, of one third of my unsold in-
terest in said block, provided "any law should be passed bringing it
within the water front of the city. My negotiations have, on each
occasion, been had with J. P. Manrow, Esq. Just after the com-
mencement of the Legislative session of 1861, Mr. Manrow called upon
me and informed me that an attempt would be made at that session to
have an Act passed, bringing said blocks within the water front of the
city, and I agreed, in the event of the passage of any such Act, to give
one third of my interest in said property. Late in the session, Mr. Man-
row assured me that a bill, or an amendment to a bill, then before the
Legislature, would be passed, embracing a provision that would bring the

property' in question within the cit}' front, and urged me to make my
deed for one third of my interest, as per agreement. Upon inquiring to
whom the deed shouhl be made, Mr. Manrow informed me that Dr.
Corj-ell had charge of the matter at Sacramento, and he presumed that
the deed should be made to liim. He said he would inquire, and let me
know. Some few days after. Dr. Coryell came to San Francisco, when
Mr. Manrow desired me to make the deed to him. I did so, and left it
in the hands of a Notary, to be delivered in the event of the passage of
any Act that would bring that property within the city front. At this
time, and some ten days before the adjournment of the Legislature. 1
had an interview with Dr. Coryell, at the corner of ^ferchant and Mont-
gomery streets. San Francisco. I inquired of him if he had charge of
the matter in questioH before the Legislature; he told me he had, and
that a bill would piass that would contain an amendment that would
bring the property in question within the water front. I had one or two
interviews with him on the same subject prior to the adjournment of the
Legislature, and I believe one some three days before the adjournment,
and on each occasion he assured me that an Act would pass, bringing
that pntpoi'ty within the water front. I carefully read the proceedings
of the Legislature, and not discovering the passage of any Act that
would secure the object desired. I sup])osed nothing had passed. Some
two or three days after the adjournment of the Legislature, both Mr.
Manrow and Dr. Coryell informed me that tio hill had passed with any
amendment that would bring the land in question within the city front.
When 1 say city front. I mean that would give us a title to use and pre-
pare the land for commercial or other purposes, or would confirm the
Alcalde grants. In the latter part of May, and after the adjournment
of the Legislature, J. P. Manrow called on me and said that Dr. Coryell
was organizing a company" of mnut'i/rd nun for the purpose of procuring
the passage of a bill at the Legislative session of 1SG2. that would bring
that pro])erty within the city front, but that such company would not
be formed unless the owners of ])roperty would sell their interests at a
moderate price, as they would not advance the funds that would be
necessary to carry through sucli a measure, upon the contingency of re-
ceiving < I portion of the hind. He requested me to think of it, and let him
know what I would take for my interest. I subsequently saw Dr. Cor-
yell, and he fully confirmed the statement of Mr. Manrow, and said that
it was a very doubtful project, that might never pass, and that himself
and the other parties that would be interested in the passage of such a
bill through the Legislature of 1862. could not afford to pay a high price
for the property as then situated. A day or two after. Manrow called
upon me for my answer as to the price I would take for my interest, and I
asked him two thousand or two thousand two hundred dollars, which sum
I do not now distinctly recollect. He laughed at the idea of such a price,
and we separated. I subsequently saw Coryell, who said my price was
too high, and that Wm. S. Clark and others, owning property in the same
situation were willing to sell at a much lower price.

Finally, after several interviews with Manrow and Coryell, and after
consulting some confidential friends on the subject, who advised me to
sell. I did, on the 3d June, 186L sell to John R. Coryell all my unsold
interest in the block bounded by Chesnut, Lombard. Battery, and San-
some streets, for eleven hundred and fifty dollars. The property thus '
sold was about eleven lots on Sansome. Battery, and Chesnut streets, of
twenty by sixt}- or eighty feet ; the exact size I do not now recollect. The
deed was made and the money paid me on the 3d June, 1861. Some few

I lays after, Mr. Coryell called on me and said that as my deed to him had
iKjt been placed on record, he asked me if I had any objection to make
him a new deed, puttin<^ in a larger consideration. I told him I would
do so ; he returned me the deed of od June for eleven hundred and fifty
• lullars, and I made him another for the same property, inserting as a
consideration some two thousand or twentj'-two hundred dollars, or
thereabouts ; which deed I presume is now on record. My sale, as made
lo him, was predicated upon the positive assurance from himself and
Manrow that no Act or part of an Act had passed the Legislature bring-
ing the property witiiin the water front of the city, and solel}' owing to
his representations that the parties who proposed to purchase for the
]iiirpose of ojjerating upon the Legislature of 18G2, would not move in

1' matter upon the contingency of receiving a portion of the land in

ise of success.

(Signed,) J. D. STEVENSON.

TESTIMONY OF J. P. MANROW.

J. P. Manrow, ;i resident and broker in the City and County of San
i'rancisco, being duly sworn, deposes and says:

<i. — Are you familiar with the contents of an Act to ])rovide for the
S:ile of the\Marsh and Tide Lands of this State, passed May 14th, 1861 ?

A. — I have read the Act, and know its contents.

(^. — When was your attention tirst called to that portion of the Act
i«lating to Alcalde grants, and if so, by whom?

A. — From three to tive weeks after the adjournment of the Legisla-
ture of 18G1, a person named Waterman, a lawyer of this city, spoke of
the Act to me. Afterwards, William S. Clark gave me the page of the
■statutes on which it was to be found, and I examined the Act.

(^. — Have you had any transactions in real estate affected by the Al-
calde provisions of this Act of May 14th, 1801 '{

A. — I owned three fifty-vara lots in a block bounded by Francisco,
Chesnut, and Kearny streets. Before I knew of the passage of this Act,
I had agreed to selTthem lo John R. Coryell, and had made out a deed
and deposited it with F. II. Wood, and gave Coryell thirty days in which
to pay the money, within which time he was to pay the money and take
the deed, which he ilid within the time agreed upon.

Q. — Had you known of tlie passage of any law affecting this property,
luid improving the title thereof, would you have sold for the price agreed
tipon ?

A. — I would not. I considered these Alcalde grants as good and valid
us any Alcalde grants made in this city, and thought that there was a
mistake in not including theni within the water line of the city, and if
the Legislature had not, they ought to include them within the water
line.

(Signed,) J. P- MANEOW.

J. p. MANROW, RECALLED.

The whole drift of my conversations with Colonel Stevenson (I had
several conversations with him,) was, that I had understood that Coryell
would not purchase antj except he could purchase all of the lots in ques-
tion. As 1 desired to sell my interest in the property, I was anxious
that Colonel Stevenson should sell, in order that I might sell my own.

I don't think that Coryell stated to me that a bill had or had not
passed. I inferred, from my conversation with Griffini^, that no bill had
passed, he having been at Sacramento during the greater poi-iion of the
session of the Legislature of 1^01. I supposed the Grilling bill was Me
bill, and as that had not passed, I supposed no bill had passed on the
subject.

J. P. MANEOW.

TESTIMONY OF HORACE P. JANES.

I am a resident and practising Attorney in the City of iSan Francisco.

Q. — lias your attention ever been called to a clause relating to Alcalde
grants, contained in the Act of May 14th, 18GI. entitled an Act to pro-
vide foi- the Sale of the Marsh and Tide Lands of this State? If so, state
how and in what manner.

A. — I first became aware of it on its publication in a San Francisco
paper; 1 do not recollect the exact time. I know nothing of the Act
except that it exists.

Q. — Do you know of any ])unhases or transfers of property affected
by said Act?

A. — I know of a purchase by John R. Coryell, from Samuel J. Ilensley,
of a block, or part of a block, that would seem to be affected by the pro-
visions of the Act of May 14th, ISOI.

(^. — State what you know in connection with said purchase relating to
said Act ?

A. — I know that Dr. Coryell made an offer to Major S. J. Ilensley for
the purchase of the lot to which I have referred in my previous answer.
This was before Mr. Ilensley or myself were aware of the existence of
the Act of May 14th, 1861. I was llensle^'s counsel and adviser. I
gave it as my opinion that the title to the lot was worthless, and would
probal>ly always remain so. I gave this advice, not being aware of the
passage of the Act of Ma}' 14th, 1861. I advised Ilensley that the offer
made l»y Coryell was a large one. and advised him to take it, or what-'
ever he could get. The purchase was completed before we became aware
of the passage of the Act of May 14th, 1861.

(Signed,) HORACE P. JANES.

MORTGAGE, FROM JOHN R. CORYELL TO SAMUEL J. HENSLEY.

This Indenture, made this fifth day of July, A. D. 1861, between John
R. Coryell, of the City and County of San Francisco, State of California,
party of the first part, and Sam'l J. Hensley, of the County of Santa
Clara, same State, party of the second part :

Witnesseth — That the said party of the first part, for and in consider-
ation of the sum of three thousand dollars, (83.UU0} to him in hand paid
b}' the said party of the second part, at or before the sealing and de-
livery hereof, the receipt whereof is hereby acknowledged, hath granted,
bargained and sold, released and conveyed, and does hereby grant, bar-
gain, and sell, release and convey, unto the said party of the second part,
his heirs and assigns, all that undivided two thirds part of all that cer-
tain piece and parcel of land, or block of ground, lying under the tide
waters of the Bay of San Francisco, in the City and County of San
Francisco, and State of California, and granted by T. M. Leavenworth,

Alcalde, to Jolm Townsend, and bounded b}^ Bay street, Montgomery
ii-eet. North Point street, and Kearny street, that is to say : by Kear-
iv street, as it now is, and by the extension of the other three streets,
in their present direction, so as to inchide said block.

Together with all and singular the tenements, hereditaments, and
iijipui-tenances, unto the same belonging or in any manner appertaining.

To have and to hold the premises unto and to the sole use of him, the
aid party of the second part, his heirs and assigns, forever.

This conveyance is inteinlcd as a mortgage to secure the sum of three
thousand doUars, owing from the said party of the first part to the said
party of the second ])art. due and payable when, by legislation on the
jiart of the State of California, and by decision of the Su])reme Court of
>:iid State had thereon, the title of the State to the foregoing described
property and the possession thereof shall be vested in and given to the
owners or assignees of the Alcalde grant made by T. M. Leavenworth to
siiid blocks.

And this conve3'anco is also intended as a security for the procurement,
liy the said ]>arty of the first part, of the action of the Legislature of the
State of California, and obtaining the decision of the Sui)i-eme Court, as

•fore mentioiuMl, for the whole of the foregoing described property,
including one third jiart p<irt, lu'ld and owne(^l by the said ])arty hereto
of the second |)art.) and all the costs and expenditures in any way aris-
ing out of the procuring said action of the Legisl:it\ire, as aforesaid, and
obtaining the decision of the Supreme Court, as aforesaid, to be paid by
the said party of the first part for the whole property.

And if the said payment be well and truly made, then these presents
lo be null and void. Hut if default be made in the payment of said debt
when it becomes due, then it shall be lawful for the said party of the
second part, his executors, administrators, or assigns, and he or they
:ire authorized to sell the ]»i-emises according to law, and all the equity
and statutory right of redemi)tion of the said ])arty of the first part
therein, said statutory right being hereby waived and barred.

And it is hereby expressly agreed, that the purchaser or purchasers at

ich sale, shall be jmt in immediate possession of said mortgaged premi-
ses without dela}' whatsoever, and out of the proceeds of such sale, after
tirst paying all the lawful expenses thereof, including mortgages, ordinary
;uid usual counsel fees, and commissions on the amount so due and un-
paid, to pa3' said debt of three thousand dollars, without interest,
lendcring the overplus, if any, unto the said party of the first part, his
lioirs or assigns.

In witness whereof, the said party of the first part has hereunto set
his hand and seal the day and year first above written.

JOHN E. COEYELL, [seal.]

(Vol. 72 Mortgages, page 49.)

After a careful investigation, we arrive at the conclusion that the words
" excepting Alcalde grants, which are hereby ratified and confirmed," were
not adopted by the Legislature, but were fraudulently interpolated.

We regret our inability to clearly determine the question as to the per-
son or persons who secured the interpolation of those words; and in the
absence of positive proof, we deem it best to simply present, for your
consideration, a portion of the evidence on this point, which we have
been enabled to procure.

As judicial duties are not within the sphere of our power, and as the
Courts alone can declare nugatory the provisions which were fraudulently
inserted in this Act, we do not deem any recommendation necessary.

J. A. BANKS,
SAMUEL SOULE,
JOHN M. AVEEY.

TESTIMONY

TAKEN BEFORE THE INVESTIGATING COMMITTEE.

TESTIMONY OF DU. JOSEPH POWELL.

'I'he Chiiii'iniin read the Act — An Act to provide for the Sale of the
Marsh and Tide Lands of this State. (Statutes of California, 1861, page
303.)

-1 was.

-Do 3'ou remember anything concerning the passage of this Act —

ct to provide for the Sale of the Marsh and Tide Lands of this

(Question, hij Mr. Banks. — AVcre you a member of the Assembly last
winter 'i*
A. — I was.

^^-

An Ac
State ?

A. — I remember the ]iassage of such an Act — an Act with that title.

(I. — Do you remember anything in that Act concerning Alcalde
tyrants ?

A. — I do not.

(^ — Do 3'ou remember whether you were present at any of tbe read-
ings of that bill— the bill for this Act?

A. — Will 3'ou give me the date at which it passed ?

Mr. Banks. — It was approved May 14th, 1861.

A. — Upon that subject I wish to state, as perhaps you may know, and
many other gentlemen there, and I believe the Journals will show, that
I never lost but one da3^ I was always present in my seat, with the
exception of the time we Avere down as a Committee to the State Prison.
With the exception of the time that I was absent from the Legislature,
while performing the duty of a member of the State Prison Committee,
I believe I voted for or against every proposition and every bill that
was introduced during the session.

Q.— You were on no committee to which this bill was referred ?

A.— No ; I took a deep interest in all the questions involving the sale
and reclamation of the Swamp and Overflowed Lands. It was one of the
questions, in ftvct. involved in the canvass of the county w^here I was
elected, and I looked with a great deal of care to every bill that was in-

troduced in relation to that subject. I recollect that bill being before
the Legislature.

Q. — Do you remember the reasons assigned for passing the bill ?

A. — I recollect some remarks that were made in relation to the passage.
and the propriety of the passage of that bill.

Q. — What are your recollections as to the objects assigned for the pas-
sage of the bill ?

A. — The securing of titles. I recollect some of the tracts of land, in
fact, that were spoken of as coming within it ; some of them being in
this region of country, coming Avithin the provisions, properly, of the
same Act that referred to the reclamation of the Swam2)and Overflowed
Lands.

Q. — Do you' recollect the oliject«> assigned in regard to Marsh and
Tide Lands, and Swamp and Overflowed Lands? Do you remember
that it was assigned, for the passage of this Act, that an Act of this kind
was necessary in order to conrirm certain sales of Marsh and Tide-
Lands made under the Swamp and Overflowed Land Acts ?

A. — Exactly; that there was a number of parties who had taken up
that character of land under the Swamp and Overflowed Land Acts,
and had paid their money into the Treasury of the counties in which
the}' lay ; and that it was necessary to ])ass such an Act for their pro-
tection, for the reason that it had been decided by the Courts, oi- the
Judges of Courts had expressed an opinion, tantamount to a decision.
that the Swamp and OverHowed Land Act did not cover the Tide Lands.
That was the reason assigned.

Q. — You understood that to be the object of the passage of this bill f

A.— I did.

Q. — And you heard nothing said in connection with this Act, or nothing
read from the bill concerning Alcalde grants?

A. — Not one word; and when the question was first mooted, I stated
that if the Clerk read any such provision in the bill. I did not hear it
when he read it.

Q. — When was your attention first called to that clause?

A. — It was some time after tiie Acts of the session were published; at
what tinie I cannot say; I was perfectly astonished to hear that there
was any such provision in the bill, having had no recollection of any
such condition in the bill in the first place, and feeling confident that I
should certainly have opposed it and voted against it, if such provision
had been contained in it.

Question, hy Mr. Soule. — What District were you elected in?

A. — The County of Sacramento. I had some friends that were individ-
ually interested in some of those Tide Lands that were to be secured by
the operations of that bill, who came and appealed to me in relation to
it. I took care to watch the Swamp and Overflowed Land and Tide
Land Acts, becatise that was one of the issues upon which I was elected.
I was committed to all Acts upon that subject in favor of the reclamation
of the Swamj) and Overflowed Lands which might be presented in the
Legislature. That is everything I know about it. The first that I heard
at all of the word "Alcalde " being associated in any manner with that bill,
was subsequent to the passage of the bill.

Q. — Did you ever reside here ?

A. — Never.

Q- — Are you familiar with what are termed Alcalde grants ?

A. — I am not.

J. POWELL.

TESTIMONY OP FRANK F. FARGO.

Question, hij Mr. Bunks. — Were you a member of the Assembly last
wiiitei'?

A.— I was. Sir.

<^». — What District did you represent ?

A. — County of Alameda.

(l — Do you romembcr anything concerning the passage of the bill for
m Act to provide fur the Sale of the Marsh and Tide Lands of this State?

A.— I recollect the bill, Sir.

Q. — Were you specially interested in the subject of the bill?

A. — -Not ])articulai'ly.

(^. — Do you remember in that bill anything concerning Alcalde grants ?

A. — No. Sir.

(^. — Do you remember the passage of the bill in any of its stages?

A. — Not in the House; I recollect the bill in the Senate.

1^. — Was your attention called to the bill in any way ?

A. — I was in there when the bill was considered; I think when it was

iered engrossed ; I recollect roailing the bill at the time. I recollect
lilt re was an amendment to the bill in pencil marks. The bill, with this
iiiiendment, was ordered engrossed. I thiidv it was an amendment to
llie original bill.

<l. — Dill that amendment contain anything concerning Alcalde grants ?

A. — Nothing, to my recollection.

(}. — Do you know what the amendment related to?

A. — I think it was in reference to lands within five miles of this city
1 the City of Oakland. That was why I read it; I heard the City of
kland mentioned, and I read it to see its object. There was nothing
111 it concerning Alcalde grants. D" there was, I do not recollect it now.

(^. — Are you familiar with the subject of Alcalde grants ?

A. — 1 am somewhat so. 1 used to be dealing in real estate here, and
had my attention frequently called to them in searching titles to
[iictperty.

(^. — Do you remember any object assigned for the passage of this bill?

A. — Never heard one in my life. I have no recollection of the bill in
the House ; don't know when it i)assed.

F. F. FAEGO.

TESTIMONY OF ALVAN FLANDERS.

Question, hy Mr. Banks. — Were you a member of the Assembly last
ession 'i

A. — I was.

Q. — What county did you represent?

A. — San Francisco.

Q. — Do you remember anything concerning the passage of an Act to
provide for the Sale of the Marsh and Tide Lands of this State ?

A. — I remember it well.

Q. — Do you remember the objects assigned for the passage of the bill?

A. — Yes. The reason assigned to me, I recollect.

Q.— What was it?

A. — Mr. Phelps spoke to me about the bill before it came into the
House. He showed it to me at his seat in the Senate ; showed me a bill
he had drawn up.

Q. — What was the object assigned for the passage of it, by Mr. Phelps?!

A. — He said to me that some parties in San Mateo County had taken
up Tide Land or Marsh Land under the Swamp and Overflowed Land
Act, and that Judge Norton, in deciding some case in that county, had
decided tliat the Swamp and Overflowed Land Laws did not apply to
Marsh and Tide Lands, and suggested that such a bill be introduced and
passed.

Q. — Do you recollect anything in that bill concerning Alcalde grants?

A. — There was not a word in it. I read the bill in Mr. Phelps' hand
writing, in the Senate, before it came into the Uouse.

Q. — You heard nothing during the winter, of the subject of Alcalde
grants connected with this bill ?

A. — Not a word.

Q. — Do you remember the passage of the bill in either House, and
were you present at the time of its passage ?

A.— Yes.

Q. — Through the Assembly ?

A. — Yes.

Q. — Do you remember whether it was read there?

A. — ^Vell, I read the bill — an engrossed copy, that I took from Mr.
Tilton's hand.

Q. — This was not in that copy ?

A. — It was a Senate bill, antl this was the engrossed copy of that
House; there was nothing of Alcalde grants in it at the time.

Q. — Do you remember any an\endments ?

A. — Yes ; I remember an amendment that the House adopted — an
amendment that the proceeds of the sales of such lands should be paid
into the School Fund, or General Fund, I don't recollect which; but it
was amended — changed from the way it passed the Senate, to some other
fund; I thiiik it was either General Fund or School Fund.

Q. — But you are quite certain that in that engrossed bill there was
nothing concerning Alcalde grants?

A. — Not a word; because I read the bill very carefully; and in the
conversation with Phelps, and after that, with Tilton, who understood
the subject, I had my attention called to it; there was not a word about .,
the Alcalde grants in it ; that was the engrossed bill, as it came from the);
Senate.

Question, hy Mr. Soule. — Being familiar with Alcalde grants in San
Francisco, had the word - Alcalde" been in the bill at the time you in-
spected it, would it not have excited your curiosity at once, and led to
an inquiry on jour part ?

A. — Y^es. I know that it would. The reason why I should have re-
membered it particularly, I think, is because there was some talk about
changing the Avater front down here to cover an Alcalde grant. Capt.
Griffin, I think, is the interested party. I had heard a good deal about
Alcalde grants, and I know that when I read this bill there was nothing
of the kind in it.

Q. — "Were there any other bills in relation to changing the water
front line ?

A. — Yes Sir, there were two.

Q. — Did you watch them ?

A. — Yes Sir, I did, all the way through.

ALVAN FLANDEKS.

TESTIMONY OF JOHN W. CHERRY.

Question, hy Mr. Ba)i/,'.<. — Please state your connection with the Legisla-
ture of last winter, and what you know of the passa<>;e of the Act to pro-
vide for the Sale of the Marsh and Tide Lands of this State.

A. — I was a member of the Assembly from the City and County of
San Francisco. I was spoken to by MV. Phelps, one of our Senators.
The objects of the bill were, as stated by Mr. Flanders, so far as I could
understand from what Mr. Pbelps told me, viz : that some parties had
taken up some claims of Marsh and Tide Lands under the Swamp and
Overflowed Land Laws. Judge Norton decided that those laws did not
cover the Marsh and Tide Lands, and he recommended a bill of this char-
acter, and at his suggestion Mr. Phelps introduced this bill in the Senate.
■ My impression is tliat the bill was considered in the San Francisco dele-
gation before it was introduced in the Senate at all. but I am not abso-
lutely certain of that. I am, however, certain, tliat 1 considered the bill
. well at the time it was shown to me by Mr. Phelps, and tbat there was
no provision in it touching Alcalde grants at all; that I was present in
the House when it came before that body, and I think it was read in
full — but 1 am not positive ; I know there was nothing in it at any time
when I saw it or heard of it, that related to Alcalde grants at all.
i [There was an amendment made in the House, that the money, instead of
I goi"g ''"to the Swamj) Land Fund, should go into the School Fund.] I
I paid as much attention to that bill as any other that passed, that affected
the interest of San Francisco. I was present almost the entire session;
was very rarely al)sent. 1 think 1 was there at all times the subject was
under consideration, and I have no recollection of the words '"Alcalde
uiiints" or "Alcalde ;" if there had been, I am sure I should have noticed
it , because it was a matter our people are very sensitive about, and which
1 liad paid a great deal of attention to, myself.

JOHN ^V. CHEERY.

The portion of my testimony in brackets seems to be an error. I
heard such an amendment spoken of a good deal, as having been pro-
posed by Mr. Conness, and I have been under the impression that it was
made in the House.

JOHN W. CHERRY.

TESTIMONY OF W. H. PARKS.

Question, hj Mr. Banks. — Having been a member of the Senate last win-
ter, state what you know concerning the passage of a bill for an Act to
provide for the Sale of the Marsh and Tide Lands of this State ?

A. — I will state, that being a member of the Swamp Land Committee,
f! and feeling a considerable interest in all bills pertaining to the subject of
Swamp and Overflowed Lands, I did take particular notice of every bill
that came before that Committee. Although not the Chairman, I had
them in my possession, and had this identical bill in my possession ; also,
in my opinion, wrote the report recommending its passage, and handed
it to Mr. Edgerton, the Chairman, to sign, which I did in almost every in-
stance last winter. I also saw the bill before it was introduced, and
talked with Mr. Phelps about the propriety of its passage, and particu-
larly upon this point of confirming sales that had already been made;
making the remark, that it was a dangerous thing for the Legislature to

32 ,

confirm sales witliout knowledge — a positive knowledge — of what had
been sold. Mr. Phelps then explained to me that certain hinds had been
purchased by parties supposing that they could enter them under the
Swamp Land Laws, and that it had been since decided that they had not
any such right, and that this was simply to confirm those purchases. I
then coneetied it to be right, and that it was proper that the sale of
Marsh and Tide Lands, although our title is derived from a ditterent
source, should be governed by the law applicable to Swamp and Over-
flowed Lands, and I saw no reason why it should not pass, making the
laws concerning Swamp and Overflowed Lands applicable to Marsh and
Tide Lands, and that is all the bill pretended to do, I am positive. / am
positive that all this part of the bill, " excepting Alcalde grants hereby
ratified and confirmed," was not, at its introduction, nor on its passage in
the Senate, in the bill; I am positive of that. I am positive I should
have noticed it, having talked to Mr. Phelps right on this point, having
examined it in committee, made the report mj-self, wrote the report my-
self, Mr. Edgerton signing it and sending it uj). I recollect, on the pas-
sage of the bill, 1 explained its object, Mr. Phelps either being absent or
in the ChaiV. At any rate, it devolved on me to explain the oliject of the
bill, which I did briefly, and the bill jjassed. 1 have no recollection of
any amendment to that eflect coming back from the House, if it did, and
at its original passage in the Senate, I am positive thei-e was no such
amendment. 1 recollect of an individual complaining of it, as making
invidious distinctions ; for instance, I recollect talking with McCauley,
afterwards, and he accused Mr. Phelps of trying to make invidious dis-
tinctions against him; that he owned the land within a mile and a half
of the State Prison, and tliat it ought to have been confirmed to him.
But I know we were very particular about this confirmation and about
these distances, because I raised the objection to Phelps before the intro-
duction of the bill. Next when it was introduced, it was sent to our
committee, and we talked it over. My attention was particularly directed
to that point of what we were about to confirm, and I know that if it
had made such a broad declaration about Alcalde grants, I should have
recollected it.

Q. — That portion of the bill related to the State Prison, San Francisco,
and Oakland ■/

A. — Yes, Sir. And I can state why we discussed that in connection
with this. There was a bill — I don't remember who was the introducer
of it — introduced, to put under the Swamp Land Laws this portion that
lies below Oakland — I mean by below Oakland, contiguous to Oakland ;
and Mr. Rogers, an ex-member of the House, was very anxious for its
passage, and wrote me several letters, one or two during the session, and
wrote to several of his friends to secure the passage of the bill. Mr.
Phelps and I talked of that, and we apprehended that there was some-
thing wrong about that — that it might do some private parties injus-
tice. That bill failed. That was taking the limit oft' here below and
around Oakland. Mr. Phelps and I examined this Act, to see its efi'ect
in this respect, and I am positive that the portion there, " excepting
Alcalde grants, which are hereby ratified and confirmed," was not there.

Q. — When was your attention first called to that clause ?

A. — I cannot recollect the date, but it was during the last campaign.
The circumstances were these : Mr. Low, of Maiysville, asked me about
the charge that was made about Phelps, and I asked him what it was,
and he told me that Phelps had got engrafted into an Act there a simple
clause that confirmed all Alcalde grants, and told me the Act. I told

■A

him it certainly was not so. He assured me that it was. I told him that
it certainly never passed the Senate so. That was before I had ever
seen the cluirs^o apiinst .Mr. Phelps.

Q.— lias your attention ever been called to the subject of Alcalde
grants y

A. — I am familiar with them, because I know what they ar^.

W. H. PARKS.

TESTIMONY OF W. D. IIARRIMAN.

Question, Jty the Chainnnn. — II:ivin<^ been a member of the Assembly
last winter, do you rememln'r concei-nini^ the passage of an Act to pro-
vide for the Sah" of the Marsh and Tide Jiands of this State ?'

A. — r was a meml>er of the AsscMiibly at the last session of the Legis-
lature, and reeoMect that Act. I reccdlect reading it once or twice my-
self and recollect it i)i'ing read in the Assembly. I have no recollection
of that clause concerning Alcalde grants being in the \n\\'t

(1- — Anything further that you can state?

A. — Nothing further.

W. I). HAEEIMAN.

TESTIMONY OF K. !I. nK.\COCK.

<^>neRfion, hi/ Mr. Banks. — You were a member of the Senate last
winter ?

A.— r was.

(^. — What do you recollect concerning the passage of this Act ?

A. — The onl)- time that I remember anything about the Act was, I
liiiilv, after it had passed to engrossment, and Mr. Phelps moved to
iiiitiid it in order to protect the title in the neighborhood of the State
'ii^<ui, for the l»enefit of the State. That is the only time I remember
ii)\ thing about the bill. The Journals show that 1 reported the bill cor-
■rr[\y enrolled j I supjiose I did ; 1 was on the Enrolling Committee; I
vas a member of it all the time; I do not know but at that time I was
'iiairman.

(^>. — Do you remember of reading, or having read to 3'ou, the enrolled
-)]iy of that billy

\. — Not in this individual case. I only know this : that in all cases
vli> re I reported bills correctly enrolled, except in one instance, in which
Ir. Edgcrton, (a member of the Committee,) the Senator from Napa,
•d'\ compared a bill relating to some gas company in this city, and asked
le to report it to the Senate, as he was going away; in all other cases,

0 tar as I remember, I never did report a bill correctly enrolled, except
tier caretully (-oniparing it with the enrolled copy. The Journals show

lompared it ; I suppose I did.

<t>. — How did you compare bills ?

A. — It was the general custom, I have no doubt the custom pursued

1 this case, with myself, as a member of the Committee, and, I believe,
'ith the other members, to hold the engrossed copy of the bill in his
'and, while the Clerk read from the enrolled bill. All that I know in
dation to this case is, that if I did compare it, as I have no doubt I did,

tallied with the bill I held in my hand. I have no recollection of
5

comparing it at all ; I only presume so. from the fact that the Journal
shows that I reported it correctly enrolled.

I desire to state here that I have understood that the property cov-
ered by the exception in favor of Alcalde grants in this city, is in the
mame of Dr. Coryell. I have no acquaintance with him at all, and did
not know that I knew him at all until last week, going up on the boat,
and then I did not know that the man with whom I had had some con-
versation on the boat, was Dr. Coryell, until after I arrived at Sacra-
mento. Xo living man ever spoke to me about the bill, or that clause
of the bill, until after the adjournment of the Legislature. I would like
to have this appear, for the reason that I occupied so intimate a relation
to the tiiuil action upon the bill, as shown by the Journal.

Q. — Had you any particular interest in the subject of Swamp and Over-
flowed Lands ?

A. — Yes. Swamp and Overflowed Lands I had. Marsh and Tide Lands
I know nothing about. I was particularly interested in the subject of
Swamp and Overflowed Lands. I owned an undivided one half interest
in four liundre<l and eighty-nine acres on an island in the southern por-
tion ot iny county — Tyler Ishind.

l^. — Were you acquainted with what are called Alcalde grants?

A. — I know nothing at all about them.

E. H. HEACOCK

TESTIMONY OF CHARLES E. DE LONQ.

Qwstion, by the Chairman. — You were a member of the Senate at its last
session ?

A. — Yes, Sir.

Q. — Do you remember anything about the passage of this Act — an Act
to provide for the Sale of the Marsh and Tide Lands of this State?

A. — Something; yes. Sir.

Q. — State, if you please, what you recollect concerning it.

A. — I don't know, exactly, what you mean by that question.

The Chairman read the Act.

Q. — Do you remember anything in that Act relating to Alcalde
grants ?

A.— Xo, Sir.

Q. — Do you remember the bill in any of the different stages in either
House ?

A. — "Well, my statement will be this : The subject of Swamp and Over-
flowed Lands I was interested in. as having clients who were, and who
had spoken to me specially about this business. As to the other matter,
I had been frequently in conversation with gentlemen who were inter-
ested in these Marsh and Tide Lands, and they had called my attention
particulai'ly to this bill. That is the way my attention came to be di-
rected to this bill.

Q. — Your attention was directed specially to the bill ?

A. — My attention was directed to the bill by a number of gentlemen,
and my recollection is that when it passed, the word "Alcalde " was not
there. I know, from the study of the laws of our own State, what effect
it would have, and I think I would have noticed it. I do not remember
that I was a member of the Enrolling or Engrossing Committee. If I
was. I never acted or did duty upon it.

C. E. DE LONG.

TESTIMONY OF R. BURXELL.

Qu&gti'on. hy the Chairman. — State what you know concerning the pas-
sage of this Act at the last session of the Legislature.

A. — I was Speaker of the Assembly at the time that bill passed. I
recollect that it was betbre the House, and was passed. I do not recol-
lect particularly about the terms of the bill. I have no recollection that
there was any provision in it relating to Alcalde grants.

Q. — You are familiar with the subject of Swamp and Overflowed
Lands — have had your attention called to it frequently, have vou not?

A. — Yes, Sir. certainly. The mea>ure was up last winter, and discussed
liberally.

Q. — Are you familiar with the subject of Alcalde grants in this city?

A. — Xo. Sir. I am not familiar with the subject of Alcalde grants.
Still, I will state, I think that if that subject had been before the House,
I should have been pretty likely to recollect it.

Q. — You have no recollection of the term •• Alcalde grants "' being in
the bill ?

A. — Xo. Sir.

Question, by Mr. Amn. — Have you any recollection of signing the bill,
or reading it when you signed it ?

A. — It was not customary to read bills when signed, and I did not
read this bill, and have no recollection about signing the same.

R. BUNNELL.

TESTIMONY OF A. ST.C. DENVER.

Question, by the Chairman. — Were you a member of the Senate last win-
ter, at its last session?

A.— Yes. Sir.

Q. — Do you recollect anything concerning the passage of this Act ?

A. — Yes. I remember something about it — something about the Act.

Q. — State, if you please, your recollection of the subject and the bill
— your connection with them.

A. — I was on the Enrolling Committee at first, but not at the time of
the passage of this bill. I recollect the bill distinctly. It was introduced
b\- 5lr. Phelps, and it passed the Senate without any opposition, and
went to the Assembly, and there some amendments were put to it. It
came back to the Senate, and I recollect that on motion of 31r. Phelps,
or his objection, the Senate refused to concur. Then there was a Com-
mittee of Conference appointed, and it was some time after that before
they made a report. I do not recollect the length of time. That com-
mittee recommended that the Senate should concur in those amendments.
I do not recollect distinctly what the amendments were upon which the
disagreement arose, but I think something in relation to distances — from
the State Prison, perhaps — but I am very confident that there was no
such words in the bill as - excepting Alcalde grants, which are hereby
ratified and confirmed." I know nothing about the effect Alcalde grants
have — know nothing about them.

A. St.C. DEXYEE.

TESTIMONY OF JOHN WHITE.

Queslion. hy Mr. BanJcs. — How were you occupied last winter during the
session of the Legislature ?

A. — I was Keporter for the San Francisco Herald.

Q. — In what House did you sit ?

A. — In the Senate.

Q. — Will you please state what you recollect concerning the passage of
this Aot?

A. — The bill was introduced by Mr. Phelps. I read it at the time it
was introduced, but merely for the purpose of taking a synopsis of it.
I believe that the bill, after it had passed tlie Senate, was, on the request
of Mr. Phelps — at least Mr. Phelps made a motion to get the bill back
again — reconsidered. He desired to put in it an amendment concerning
the Tide and Marsh Lands at San Quentin, to exempt them from its pro-
visions, within a certain distance of the shore; then, having in}' attention
particuhiily called to it in this manner, I took a copy, whicli I sent to
San Francisco, but it was not published, I find; I thought I could hunt
it up, but I failed in the attemjit.

(^. — Do you recollect anything concerning Alcalde grants, anything
like this: "excepting Alcalde grants, which are hereby ratified and con-
firmed ? "

A.— No, Sir.

Questiij/i, hy Mr. Ames. — Was this the copy of the bill before it had gone
to the House ?

A. — Yes, I think it was; of course, at this distance of time, I cannot
be very certain upon that subject. The circumstances I have already
explained, which led me to make a co])y of the bill. The vote by which
the bill })assed was reconsidered, and the bill Mas brought before the
Senate a^ain, lor the purpose of putting the amendment in.

Q. — Tliat might have been l»e}bre it went to the House i*

A. — That, I think, was before it went to the House.

Question, by Mr. Suule. — Where do j'ou reside '(

A. — In San Francisco.

Q. — How long have you resided in San Francisco ?

A. — About three years.

Q. — Are you familiar with Alcalde grants?

A. — No; I cannot say that I am familiar with them, but I have heard
a great deal about them, and I know that there was a bill before the
Legislature last winter, that had some reference to Alcalde titles — I^eav-
enworth titles. I believe a bill was introduced, on the application of Mr.
Gritting; it was for a franchise — a wliarf franchise — and 1 understood, at
the time, that the property he sought to obtain from the State, was
covered by a Leavenworth grant; I then made inquiries respecting such
titles. I know there are a great many fraudulent titles, at least 1 have'
been so informed, of that character.

JOHN WHITE.

TESTIMONY OF C. B. PORTER. life

Qnrslion, hy Mr. Banhs. — You were a member of the Assembly last
year ?

A. — Yes, Sir.

Q.— Are j'ou familiar with the subject of Tide and Marsh I.ands and
Swamp and Overflowed Lands ?

A. — Somewhat.

Q. — Do yon remember of the passa,i!;e of the hill for this Act?

A. — I remember of it generally ; and I have some particular recollec-
tion.

Q. — Will you state wliat you remember concerning its passage?

A. — I remen»ber that tlie bill, when it came into the Assembly from
the Senate, was referred to tbe Committee on Swamp and Overflowed
Lands, of which I was a member; I remember something of the reasons
for which its passage was demanded. The}- were, that in various ])arts
of the State persons had purchased, under the Swamp and Overflowed
Land Acts. lands that were reall}- Marsh and Tide Lands; and that their
possession was imperiled on account of its having l)een discovered that it
was not ]»roperly denominated •• Swamp and Overflowed Lands ;" and that
thepassageof thisbill was nrged for tln'ir ])rotection. That is mvgeneral re-
collection of the reasons upon which the passage of the bill was demanded.
The bill, when it came into our ( 'ommittee. was c<msi(lered in the Commit-
tee of whi(di Mr. Conness was a member. My recollection of the matter
is, that he approved of the character of the bill, and suggested an amend-
ment that should cover, with an exemption, all lands within a certain
distance of the State Prison, at Point San Quentin ; for the reason, as I
remember, that he urged then, that the lands adjacent to the State
Prison, that were sul>merged. had been reclaimed b}' the use of Prison
labor, by Hstelle and McCaiilcy ; and that, under the provisions of this
Act, urdess this exem]ition was ai)j)lied there, they would become the
owners of that lainl, and the owners of all lands surrounding the water
tioiitage of the State Pi-ison, and cut off' the State's access to the State
Prison. Either at that time, or subsequently, Mr. Conness suggested
another amendment, which was approved by the Committee. On that
amendment, I think, there was a disagreement, and afterwards, a con-
lerence. About the conference I do not remember particularly, as I was
not a member of that cf)mmittee. I think the Senate concurred in the
amendments recommended bj' the House. I have not examined the
Journals with reference to this matter; nor have I had any conversation
with reference to it with any person, except Mr. Tilton — that is, any
]ierson that was a member of the last Legislature. I have thought sev-
ei-al times of mentioning the niatter to Mr. Conness, not anticipating
tliat 1 should be examined in this Tnatter; but it has not occurred to me
when I liave met him.

(^— Have you any recollection of the words " Alcalde grants " being
in the bill ?

A. — None whatever; and I can scarcely believe that any such clause
could have been embraced in it, when it was under the consideration of
the conimittee of which I was a member, without attracting my atten-
tion, as anything relating to Alcalde grants would have commanded my
attention, from the dubious character of such grants of property, and
from the fact that, having lived in San Francisco, I have been somewhat
familiar with the questions that have arisen respecting Alcalde titles.
M Q. — What county did you represent ?
*I A. — Contra Costa.

Q.— Was your attention directed especially to Tide and Marsh Lands

«and Swamp and Overflowed Lands ?
A.— It was, from the fact that a good deal of land of that description

lies in my county, and from the fact that I was a member of the Swamp
and Ovei'flowed Land Committee.

(}. — Did you, in consequence of the interest you felt in that species
of land, scrutinize bills upon that subject pretty closely ?

A. — Yes; the general interest and particular interest — the duty; it
being my special duty also to scrutinize bills that came under the con-
sideration of the committee.

(I. — And you did so examine them ?

A. — Yes, Sir. I am very positive that no such thing could have been
there without attracting my attention. The presumption would be, -I
should say, if I were not obliged to testify from positive recollection,
that no such thing C(Mild ])<)ssibly be. I am confident, positive, that, if
it had been there, I should have noticed it; but I do not say absolutely
that it was not there. C. B. JPOKTEE.

TESTIMONY OF JOHN CONNESS.

Question. — ^Ii-. (\)nne88, were j'ou in the Legislature last winter?

Answer. — I was a member of the Legislature of eighteen hundred and
sixty-one.

Q. — From what county y

A. — I was a member of the Assembly from the County of El Dorado.
I was a member of the Committee on Swamp and Overflowed Lands of
the House.

Q. — Do you remember concerning tiie passage of this Act ?

A. — I do. I remember it with a great deal of distinctness. It came
from the Senate as stated by Mr. Porter, and my attention was specially
directed to it for the reasons that he states, and for others. I had, per-
haps, taken more interest than any other member in the subject of lands
generally in this State — their disposition, the correction of errors in
former land laws, laws for the sale of lands ; and was engaged during
that session and the session before (of which I was a member also) in
endeavoring to obtain the passage of three or four Acts, that I regarded
as essential, upon tlie subject of State lands, ineluding the lands desig-
nated and known as Swamp and Overflowed Lands. Jn regard to Marsh
and Tide Lands, my attention was called to them first by a citizen of
Sacramento, who had purchased some in Solano County, in connection
with which some question of diflicultj'came up between him and another
party, and he had called my attention to it, and I had looked into the
subject of the Sale of Marsh and Tide Lands, at his request and for his
benefit. Thus my attention was particularly directed to this Act Avhen
it came from the Senate. There was another reason why my attention
was called to it, which it is unnecessary for me to state here. And I
think I had some conversations with Mr. Tilton also, who told me that
he was interested in the question involved, in his county, and manifested
an anxiety to have the bill pass. But I had a reason, I say, which it is
unnecessary" to state here, for keeping the Act from being passed, for
a while, holding it back in Committee and within my reach, and I did so
hold it in the Committee for some little time; but I became satisfied that
the suspicions that occurred to my mind were not well founded. Then I
had no further desire to prevent the passage of the Act, and I sug-
gested some amendments. I think the amendments alluded to by Mr.
Porter were discussed in the Committee and favored by me. and one
other in regard to the disposition of the proceeds of sales. I had made

the School Fund something of a specialty, and I was in favor of an
amendment providing for the payment of the proceeds into the School
Fund, and tliat was one of the amondmonts discussed h}^ the Committee
of Conference, to whom the disagreement was referred, and a com-
promise was arranged hetween the Committees, to provide for paying the
proceeds into the Swamp and Overflowed Land Fund, upon tlie reason-
able hypothesis that those hinds would necessarily be reclaimed in con-
nection with the Swamp and Overflowed Lands of the State, and there-
fore the money for tlieir sale should go into that fund, and be applied to
that purpose. I am positive, as that I exist, that that exception in favor
of and confirming Alcalde grants was not in the bill.

Qiirsfidii. Li/ Mr. Soiiie. — When it passed the Assemblv?

A. — When it jiassed the Assembly and when considered by the Com-
mittee of Conference, which includes the passage by both Houses, be-
cause the ado|)tion of the report of the ('(jmmittee of Conference is the
fimil passjige of a bill by each House; and I am positive that these words
— that interpolation — these words in ])arentlieses, were not there at all,
nor anything i-elating to Alcalde grants. I will explain, if you will al-
low me to state at a little length, why I am so positive.

Mr. liiinh-x. — That is just what we want you to do, and if you are fa-
miliar, from reading or otherwise, with Alcalde grants, state that.

Mr. Coniir.'ix. — I believe I iinderstand the subject. In the first place, in
a former Legislature that I was a member of, that of eighteen hundred
and fifty-three, the attem])t was made to extend the front of this city
into the liarbor and over the lands covered l)y Avater, and I resisted it
with all the influence I had there. It was defeated. In eighteen hun-
dred and fifty-four I was also a member, and the same question came up,
oi- a question similar to this one. but in another shape. I think I have a
jtrintcd bill at my home now, as it is a kind of literary curiosity, that was
iiiti'oduced in the Assembly, and the passage of it pressed in that body.
It was nominally an Act for the benefit of Settlers, but it was really an
Act to confirm and cede the title of the State to the lands covered by
water be^'ond the present, or the then legal, water front, of San Fran-
ci-co, and reaching around the entire city front. This Act provided for
tlie confirmation of any lands owned by the State and covered by water,
which had been surveyed and the record of which survey had been made
in the Clerk's office of the county in which they were located. That had
been ]»reviously done, and the recoivl made here, and this was an Act
confirmatory, but the language confirmatory was introduced in paren-
tlieses. an<l in such a manner that an ordinary reader could not discover
or detect it at all. It was only by sifting a large mass of matter that
you could get at the real intention of the Act— one of the most cunningly
il. vised Acts for carrying out a sinister purpose that I ever saw. I have
kept it, as a sort of" curiosity. It was pending the discussion that oc-
curred upon that bill, that this class of amendments first originated that
latterly have been appended in this case, prohibiting the application of
those "laws within certain distances of incorporated cities, and, by the
adoption of an amendment of that kind, exempting San Francisco, the
scheme was destroyed and the bill was defeated. My attention had
been constantlv directed to the confirmation of Alcalde grants and the
confirmation o'f this class of claims, and of colors of title obtained by the
sale of slips and lands covered by water, at and near San Francisco, on
judgments obtained in Justices' Courts, so that there never was a bill in
which anything of the kind occurred while I was a member of the Leg-
islature, that did not receive the closest scrutiny I was capable of.

The bill which is now the subject of investigation contained but a
section or two, and therefore was easy to be understood. I was familiar
with every line of it, and it was utterly impossible that it could contain
the exception and confirmation of any Alcalde grants without my know-
ing it. The language was not there. There can be no doubt but that it
Avas introduced after its passage through both Houses, and is an interpo-
lation Avhich never received Legislative sanction. The interpolation
(as I term it) made there, in these words, to be specific about it, "ex-
cepting Alcakle grants, which are hereby ratified and confirnied," — these
words were certainly introduced in this Act after the Act had finally
passed both Houses. I say both Houses, because I was a member of the
Committee of Conference, and the adoption of the report (as I before
stated) of the Committee of Conference is the final passage of the bill.
These words were certainl}' introduced subsequently, and were no part
of the Act that passed the Legislature. There is nothing further 1 can
state in this connection, except this — to confirm the statement made by
Mr. Porter, as one of the motives for a closer examination of that Act iu
reference to the condition of lands near the State Prison, the statement
made to me — the information that 1 had in connection with the piece of
land there, was that it was low laml. the title to which was in the State
properly ; that tlie Lessees of the Prison had run out waste matter
there, and, as ihey tei'med it, reclaimed the land; that is, raised it up,
for the ])urpose of making brick u})on it, and that they asserted a claim
to it. The passage of this Act without this amendment would give
them title. The object of the amendment was to keep them away from
there, and let them have nothing further to do with it. My attention
was first caHed to this clause in the Act — the clause relating to Alcalde
grants — when I was out in the last canvass, and it had got into the
newspapers.

Q. — Have you any knowledge of the way in which that was incorpo-
rated into the Act y

A. — I have no knowledge ; I have suspicions ; I think I know, but I
do not know of my own knowledge.

JOHN COXNESS.

TESTIMONY OF S. S. TILTON.

Quetifion, li/ Mr. Banks. — How long have you lived in San Francisco?

A. — Almost eleven j-ears.

Q. — Are you familiar with Alcalde grants ?

A. — I am pretty much familiar with the reputation of Alcalde grants. •

Q. — AVere you in the Legislature of eighteen hundred and sixty and
sixty-one.

A.— Yes, Sir.

Q. — Are you familiar with the subject of Swamp and Overflowed and
Marsh Lauds ?

A. — Somewhat.

Q. — Do you remember anything concerning the passage of the Act in
question — an Act to provide for Sale of the Marsh and Tide Lands of this
State ?

A.— I do. Sir.

Q- — State what you remember concerning it.

A. — "Well, my statement will be almost a repetition of the communi-
cation published in the Bulletin, over my signature. The bill was intro-

dueed. really, for the purpose of lifting a cloud from the title of individ-
uals to Marsh and Tide Lands purchased under the operations and
provisions of the Act for the Sale of Swamp and Overflowed Lands. It
was generally understood and conce«led by the people of the State, that
the Acts providing for the Sale of Swanip'and Overflowed Lands applied
with equal force to Marsh and Tide Lands ; or, in other words, that
there was no discrimination l)etween the two kinds of land — that Marsh
and Tide Lands were really Swamp and Overflowed Lands. But in a
case tried l)efore Judge Norton, in San Mateo County, where the ques-
tion was brought uj). .ludge Nortoti. in addressing the jury upon the
ease, gave it as his opinion that Marsli and Tide Lands were not Swamp
and CJverrtowed Lands, and that the Acts of the State providing for the
Sale of Swamp and Overflowed I^ands did not apply to the Marsh and
Tide Lands. There having been a large amount of Marsh and Tide
Lands })urchased by various persons in that portion of the State border-
ing on the Bay of San Franeise<». under the provisions of the Act for
the Sale of Swamj) and Overflowed Ijands, there was a great ileal of in-
terest manifested in regard to the efl'ect of the decision of Judge Xor-
jton. This Act was drawn, as I understand it. tor the real ])U]pose of
Iconflrming the title to ]tartieswho had purchased Marsh and Tide Lands
under the Swam]) and Overflowed Lanil Act ; that is. making the title
to the 3Lirsh and Tide Lands e<jually as good as Swamp and Overflowed
Lands. And the Hrst time that the matter was talked about by m^'self,
in connection with any individual member of the Legislature, was in a
conversation that transpired between myself and Senator Phelps. I
went to him at his seat in the Senate, very soon after the organization
of the Legislature of IS^L and stated to him this fact : that a decision
of the Court having been rendered in the county of which he was a rep-
resentative in the Senate, and in the county in which I ha<l a landed
interest, ami in whieh 1 had purchased the Marsh and Tide Lands in
front of my uplands — I went to him and said to him, that it was very
desirable that a law shouM be ])assed to correct the efl'ect of that decision
%t Eeilwood City; and that I wished that he would draw and present a
)ill to that effect. He said to me that he had thought of the same sub-
ject himself, and that he would draw a bill and present it, or words to
that effect. I left it to him entirely to attend to the matter. The bill
w&s prepared and presented there. I knew from reading the pro-
ceedings— that he had presented the bill. Having had a conver.sation
with him in relation to the bill, and knowing its'etfect. I did not go to
the Senate flle to find what the nature of the bill was, but waited until
it passed the Senate and came to the Assembly. AVhen it came in, it
was read, and mv best recollection is. the entire bill was read. If I am
aot mistaken. I "called for the reading of the bill myself The bill was
read there, and I listened attentively to it. It was then referred to the
Committee on Swamp and Overflowed Lands. It remained in the hands
)f the Swamp and Overflowed Land Committee, I think, for several
weeks. I became somewhat anxious about the passage of the bill, and
went to Mr. Conness. having the impression that he was Chairman of
;he Committee, or the most active member of the Committee — I don't
vnow, reallv. whether I went to him at his seat, or Avhether we met cas-
lallv— and asked him if the Committee had taken any action upon that
)ill providing for the Sale of Marsh and Tide Lauds. He said that they
lad it under consideration, and I told him that I wished that he would
•eport it at as earlv a day as possible, and gave my reasons. He said to
ue he thought it* would receive a favorable consideration. Well, the
^ 6

bill was reported to the House, and. as I said in my communication to
the Bulletin, because my memorv did not serve me at that time, but the
facts having been brought out by discussion, I recollect that amend-
ments were reported. I recollect that the bill was passed tlie House,
and transmitted to the Senate. I recollect also that a report came from
the Senate, that the Senate refused to concur in the Assemblj- amend-
ments. I remember also that a Committee of Conference was moved.
Further than that, I recollect nothing. I don't rememl)er who were the
members of the Committee. I have been since informed tliat I was
a member of that Committee, but I have no recollection of having been
appointed. At any rate, I did not serve upon it. Mr. Conness says that
I assented to the report. I was very busy on the Enrolling Committee.
I was Chairman of the Enrolling Committee of the House, and towards
the close of the session my duties were extraordinarily arduous — took
up almost all my time, from breakfast time until bed time, and I liad no
time to give to bills that did not concern me or my immediate constitu-
ents.

Q. — But you gave attention to this bill ?

A. — I mean to say, that I gave sufficient atteijtion to the amendments
reported, so as to recollect what they were, and I know that they did
not atioft materially the original ])rovisions of the bill. In relation to
this re])orted interpolated })rovision, I have no recollection that anything
was said b}' me in the Assembly, or in the Senate, or any place, about
such a provision being incorporated in the bill.

Question, hjf Mr. Avery. — You did not give the bill such a scrutiny that
if those words relative to Alcalde grants had been in it, you would have
known it ?

A. — If that provision that now appears in tlie bill, and which is said ta •
have Iteen interi)olated there, had been rep<»rted to the House as an
amendment by the Committee on Swam]) and Overflowed I^ands during
my presence in the Assembly, I certainly should have known it, because
no inter]>olation of that kind in relation to Alctilde grants could have
come under my observation, in any manner, without my taking particular
notice of it.

Q. — If that had been reported as an amendment, to the House, you cer-
tainly would liave known it?

A. — Yes, if I was in the House at the time, but I might have been out.
I was often down to the Governor's office with bills, and would be gone
half an hour or so, and sometimes I would have to be over to the P]nrQl-
ling Clerk's room, two or three hours at a time, comparing bills. I never
saw the bill, to read it; I onh* listened to the reading, and finding that,
it ha<l the provisions that I desired, it passed then, without my taking
any further particular notice of it.

Q. — Do you recollect when these other amendments were made ?

A. — No, Sir; I do not remember anything about it.

S. S. tilto:n'.' ■

TESTIMONY OF C. V. WILLIAMSON.

Question, hi/ Mr. Banks. — You were a member of the Senate last winterl
A. — I believe I was. Sir.

Q. — Do you remember anything concerning the passage of this Act?
A. — I recollect very well of an Act of that character being passed]
What happened on the occasion, I do not know.

Q.— Are 3'ou familiar with the question of Swamp and Overflowed
Lands ?

A.— No, Sir.

Q.— Do 3-0U remember nothing concerning the Act in any of the stages
of its passage ?

A. — Nothing special. I believe I recollect distinctly of a bill of that
character being passed — something of that character. "

Q. — Have 3-011 anv recollection concerning its provisions, particularly^
to this provision, said to have been interpolated, speaking of Alcalde
grants — whether there was anything in it or not concerning Alcalde
grants ?

A. — Xo, I don't recollect anything about that. I took some interest
in this Overflowed Land matter, and was opposed to a bill concerning
Swamp and Overflowed Lands that was before the Senate, and then this
came up. and I recollect something of it.

Qtu-sfion, III/ Mr. Sotde. — Are you familiar with Alcalde grants, or what
they mean 't

A. — I know what an Alcalde grant is, and what it means. But I was
not very familiar with the subject.

Q. — If there ha<l been any bill in the Senate in relation to them, would
not you have notice<i it f

A. — 1 don't think 1 should, because the whole subject I thought was
local in its character. Always, when San Francisco intended to pass any
measure befc^re the Legislature, it was contended that it was a local
matter, and we had nothing to do with it, and I left them to fight their
own battles. I think there was an Act of the kind in the Senate, and I
think it passed.

(^. — i)o you remem])er anything in it concerning Alcalde grants?

A. — No. I caiuKtt sav whether Alcalde grants were in it or not.

'Jitrsfion, hi/ Mr. M>rriff. — You don't remember particularly the pro-
visions of the l)ill. anv wa}' ^

A. — No, Sir. I recollect very well there was such a bill in the Senate,
but I could not positively' swear whether it j^assed or not.

'}. — You were on the Committee on Engrossed Bills, were you not?

A.— Yes, Sir.

^i. — You know nothing concerning the engrossing of the bill?

A. — Not a word. Sir.

C. y. WILLIAMSON.

TESTIMONY OF MR. SHAFTER.

Question, hy Mr. Bards. — State what you know concerning this bill.

A. — I will state that I have been a practising attorney in this city
since December, 1855. and, as such, have become, and have been for a
■ong time, familiar with Alcalde grants; I was a member of the Senate
last 3-ear, and a member of the" Committee on Enrolment; in conse-
juence of the refusal of two gentlemen, Avho had acted as Chairman, to
lo the business of the position, Mr. Heacock. at my request, w-as ap-
oointed. by the President, Chairman of that Committee ; at the close of
:he session, or at the time that this bill came up upon its final passage,
t was in the hands of Mr. T. G. Phelps, Senator from this county and
5an Mateo ; he was in the habit of coming to me to ask my advice about
3ills that aftected this community ; on that occasion, he brought the bill
in question to me, and asked me in substance whether I was satisfied

with its provisions ; I took the bill and looked it thi'ough with as much
care as the circumstances permitted ; it is hardly possible that any such
provision as that, which was published in the bill or Act, relalinir to
Alcalde grants, could have been in it without attracting my attention,
as the phraseology of the bill as it stands published would have been
entirely opposed to my views, and, so far as I know, to the views of the
entire delegation ; and I can sa}' positively that no such provision as
that Avas at that time in the bill ; the bill, after my examination and my
expression of satisfaction with its provisions, was immediately engrossed
or ordered to be engrossed, and read a third time or passed; I think
that it was then passed; I did not examine the bill when it was enrolled,
that duty having been assigned to Mr. lleacock, and being myself unable
to attend to that dut3\ for the reason of my time being occupied on
other committees and by other duties.

Question, hi/ Mr. Merritt. — This was when the bill passed the Senate ?

A. — This examination, which I have stated I made, was, I think, at
the time the l>ill passed the Senate ; I am quite sure, as sure as 1 can be
on such a matter, that it was finally disposed of by the .Senate at that
time, and that I have no knowledge that the bill ever came into the
Senate after this vote.

Q. — "Was this when the bill first passed the Senate?

A. — I think so; I understand this was a Senate bill.

Question, hy Mr. Soule. — Do you believe, from your familiarity with
Alcalde grants, that an}' bill could be read in the Senate, which affected
Alcalde grants in terms, without its having attracted 3'our attention?

A. — That Avould depend entirely upon whether I heard the language
when it was so read; if I had heard it. it would have certainly excited
my attention. I can say still further, that I intended to, and always
did, as far as possible, give attention to the business before the Senate;
and I hardly think that any bill was there read, when I was present,
without my l)ecoming acquainted with its sco]K' at least. But as to this
bill, I state that I not only heard it read in the Senate, l)ut that I know
I read it carefully myself «t the time of which I spoke.

Question, l>y Mr. Aiery. — Can you swear positively that it was not in
when you read the bill ?

A. — I am as certain that it was not in there as I can be of any fact,
where I am conscious I made a special examination of the subject, and I
have no recollection whatever of having seen it, and that too in case of
a subject which had long been a matter of inquir}' with me. and which
I knew was a subject by which my constituents were materially affected.

Qu'stion. hy Mr. Merritt. — Did this examination you speak of refer to
the time it first passed the Senate ?

A. — I think this was upon the final vote, when the bill left the Senate.
I have no recollection of ever hearing of it again in the Senate.

Question, hy Mr. Banks. — Do you know anything of the insertion of
that clause ?

A. — I have no knowledge whatever of when, or by what means, that
clause was inserted in the bill.

Q. — When was your attention first called to that clause relating tO
Alcalde grants ?

A. — I think my attention was first excited by the comments of the i
public press upon it.

J. McM. SHAFTER.

TESTIMONY OF SAMUEL A. MERRITT.

I recollect generally that there was a bill passed at the last session of
the Leirislature, (I being a member of the Senate.) to provide for the
Sale of Marsh and Tide Lands of this State; the object of the bill, as I
understood it then, was to provide for the Sale of Marsh and Tide Lands
within a certain distance from the cities lying along the coast of the bay;
I mean the Tide and Marsh Lands. I was Chairman of the Engrossing
Committee, but I did not report this bill engrossed, in consequence of
being al>sent. as will api)ear by the Journals, and Mr. Gallagher, a jnem-
ber of the Committee, repoi'ted it on behalf of the Committee. Conse-
:juentl3' I do not recollect the particular provisions of the bill, my atten-
tion never having been called particularly to it. I recollect that the bill
was referred to Mr. Phelps at one time, with special instructions — I think
[ was in the chair. I am not positive — referred to Mr. Phelps with special
nstructions ; he re])orted it back immediately, and it passed the Senate.
That is the last time my attention was ealled to the bill. I never heard
)f it afterwards, until 1 saw the discussion of it, last August, in the public
oress.

I (^. — Did you observe anything in the bill concerning Alcalde grants?

I A. — I never observed anything in the bill concerning Alcalde grants,

)ecause I never read the l)ill, to my knowledge, as it did not affect my

)articular constituency, and as there are no Tide and Marsh Lands in

ny county, consequently I ])aid no particular attention to it. The oidy

vay I happened to recollect abcnit it at all was. somebody happened to

'peak to me about it. The first time my attention was ealled to that

lause was during last summer, when I saw an article in the San Fran-

i^<-<* Bulletin. s])eaking of it — the twenty-sixth of August, I think it was.

\\\ ai'tiele giving the history of the bill in its different stages through

li- two Houses. I have examined the .loui-nal. and a file of the Sacra-

Hiito Union, whieh I had. to see whether the report of it in the Bulletin

>:i^ correct, and I tind it to be so. substantialh'. I cannot say positively,

. hciher such a section was in or was not in, because I do not know any-

hiiig aljout it. I have no recollection of it after it left the Senate, no

11 ollection of the Committee of Conference, nor anything else in regard

'ii. 1 lost sight of it entirely after Mr. Pheljjs reported it back with

ir amendments with regard to the land near San Quentin.

(Jifsfinn, hi/ Mr. Anux. — Was the Assistant Engrossing Clerk appointed

y the Engrossing Clerk, or appointed by the Senate?

A. — liy the Engrossing Clerk.

(Juration, hi/ Mr. Arcri/. — You say you never read this bill at all?
A. — I never read the bill.

SAMUEL A. MEEEITT.

TESTIMONY OF J. A. BANKS.

I was a member of the A.ssembly last winter. I remember this bill;

was submitted to me, I think, by Mr. Phelps, about the time of its in-
•oduction, and I knew the provisions of the bill, and therefore did not

atch it particularly, but I observed it as I did other bills with the pro-
isions of which I was familiar. I never saw in it. nor knew of being in
, anything concerning Alcalde grants. Having lived in San Francisco
ncel853."and having been in the Legislature in 1858, 1859, and 1861, if
ly thing of the kind had been in the "bill, I am very positive I should

have observed it. The first time my attention was called to the clause
concerning Alcalde grants, was during last summer, when an article ap-
peared concerning it in the Bulletin.

Question, hy Mr. Avery. — Did you ever read that bill through?

A. — I examined it with Mr. Phelps, I think, who read it.

Q. — At the time when the examination was made, could it have been
in the bill and you not observed it ?

A. — It is not possible. I looked over while it was being read ; it was
at a meeting of the delegation before we organized, in the earl}' part of
the evening. I have no distinct recollection of the Committee of Con-
ference.

Q. — Do you recollect hearing the bill read in the House ?

A. — Not distinctly. I knew the general provisions of the bill, and
therefore did not pa}' particular attention to it.

Q. — Do you recollect at what time you made this particular examina-
tion ?

A. — No, I don't remember the date.

Q. — Do you know whether it was after the House refused to concur?

A. — No; it was al)out the time it was introduced. Mr. Phelps and
Mr. Tilton took special charge of the bill, to see that it did not get out
of ])lace on the tile, and to attend to the general management of it. 1
remember seeing the bill at the time of the examination, and lookinL'
over while it was being read, I think, by ^Ir. Phel])s. During the wintii
I made it my business to examine closely all bills relating to the exteii
sion of the city front line, and I would therefore have observed anythiiiij
concerning Alcalde grants in this or any other bill. I was seldom absent
from the llouse.

J. A. BANKS.

TESTIMONY OF JABISH CLEMENT.

I was the Legi-slative correspondent for the San Francisco Evening
Bulletin during the last session of the Legislature, and had a seat in tin
Senate. I remember well the introduction by Mr. Phelps of the bill fo
the Act in question. I remember, also, the objects sought to be attainec
by the bill, as stated by Mr. Phelps, and the reasons assigned for it
passage. The object of the bill, as I understood it — certainly the onl;
one ever stated in my hearing — was to confirm certain sales of Mars'
and Tide Lands, made under the laws providing for the sale of th
Swamp and Overflowed Lands. It was stated that certain parties hai
purchased in good faith, under the Swamp Land Laws, various tracts c
Salt Marsh and Tide Lands bordering on the Bay of San Francisco, i
this county and San Mateo; and that Judge Norton, then Judge of tb
Twelfth Judicial District, had decided that Salt Marsh and Tide Land
were not Swamp and Overflowed Lands, within the meaning of the Act
concerning Swamp and Overflowed Lands j and that, therefore, an Ac
confirming such purchases was necessary to protect the purchasers i
their rights and possessions, honestly acquired under a misunderstanc
ing of the law. Several amendments were made to the bill before it wa
ordered to be engrossed, relating to the distance to which the exception
should extend from the cities and towns named therein. After the bij
was engi-ossed, it went upon the general file, and came up several time
and was as often postponed, on account of the absence of Mr. Phelps, o
duty as one of the Committee on State Prison and Public Building!

After bis return, the bill came up, and on his motion, was recommitted
to himself with special instructions to insert the clause relating to lands
near tlie State Prison, which appears in the Act as published. After
this bill was introduced, and before it finally passed, the bill concerning
Swamp and Overflowed Lands was passed, and made applicable to Salt
Harsh and Tide Lands. I remember asking Mr. Phelps what necessity-
there was for the i)assage of the •• little bill." as I termed it. His reply-
was, that the Swam]) Land bill did not confirm sales of Salt Marsh and
Tide Jiands, heretofore made under the Swamp Land Laws.

' Of what I have already stated I have a distinct recollection, indepen-
dent of any aids whatever. As to what follows, m}- recollection is aided
by my letters and dispatches, as published in the Bulletin, and other

'circumstances.

After the bill passed the Senate, I telegraphed a synopsis of it to the

! Bulletin, which was puldished with the word ''tule" inserted instead of
"tide." With that exception, it was correctly published. In that sy-
nopsis. Alcahle grants are not mentioned. I either made the abstract or
sjnopsis of the bill from the bill itself, having it before me, or from a

• short-hand copy, taken as it was read by the Clerk. My impression is,

' I am almost certain, that I ma<le it from the bill itself 1 cannot think it
possible that a clause concerning Alcalde grants could have been in any
bill that 1 read, or could have been read in my hearing, without my no-
ti<ing it. I am confident that my knowledge of the nature of Alcalde
grants, which was considerable — acquired in the stud}- of the law, by
several months service as Clerk for the Citj' and County Attorney, and

' by frequent attendance upon the Courts — would have caused me to no-
tice a clause like the one in question if I saw it or heard it read ; and if I
had noticed it. I should not only have mentioned it in my correspondence,
but should have recollected it. During the time the bill was before the
Ligislature. 1 alluded to it no less than four times, in letters and tele-
giapliic dispatches, but never mentioned anything about Alcalde grants,
a-- 1 should have done if I had known that the bill contained anytliing in
iTl'erence to them. All of the amendments to the bill, of which I have
any recollection, I find, either directl}' or indirectly, mentioned in my
tt'legraphic dispatches. I am as confident as a person can be upon a
]iioposition of the kind, that the clause in question was not in the origi-
nal bill as introduced, and that it was not inserted in the Senate while I
was present, nor in any manner alluded to in m}'^ hearing.

1 was usually al)sent from the Senate Chamber about an hour — from
half past one till half past two — each day, and I think final action was
taken upon the bill during my absence.

Of the Committee of ConfcM-ence I have no recollection, though I re-
member the disagreement upon what I understood was Mr. Conness'
amendment, relative to the proceeds of sales.

After this Act was signed by the Governor, I made a synopsis of all
the Acts of general interest, or of special interest to' San Francisco,
which had been passed by the Legislature during the session, and this
was among the number. The synopsis of this one contains no mention
of Alcalde grants. It was made from the enrolled Act, on file in the
'Secretary's "office, but my impression is, that I did not read the Act,
merely glanced at it to ascertain the distances to which the exceptions
extended from the cities and towns mentioned, and then stated the sub-
stance of it from recollection.

JABISH CLEMENT.

TESTIMONY OF RICHARD IRWIN.

Question, hy Mr. Banks. — Please state what you know concerning the
passage of this Act.

A. — I was a member of the last Senate. Some time during the winter,
a <«-entleinan cumc to me and told me that there was going to be such a
bill introduced, and asked me if I could give it my support. I told him
that I knew nothing about such bills, that I was not familiar with Alcalde
grants, and Marsh and Tide Ijands, and I may have said to him that
after I saw the bill, and made inquiries about the matter. I could let him
know whether I would su])port it. The i)urport of the bill was about the
san^e as this here. He showed me a map, and pointed out three or four
blocks, of the title to wliich he told me the bill was confirmatory. I then
applied to a friend of mine, a gentleman whom I had every confidence in
— a San Francisco gentleman — and asked him to look into the matter, and
give me his opinion whether it was a correct bill. After the l)ill was
introduced, he told me that he did not discover anything wrong in it. I
voted for the bill as it passed the Senate. The l>ill came back from the
House. 1 am not certain whether I was in the chair or not; it is my im-
pression that I was. I know the bill came l)ack from the House, with some
few amendments; and it is my opinion that the Senate concurred in those
amendments, without having tliem read by the Secretary — concurred
upon motion of Mr. IMielps, 1 think. I think that I heard the bill read
after it was introduced in the Senate, but I could not say whether it had
that amendment to it or not, for I relied entirely upon what this friend
of mine told me about the bill being an honest bill. I expressed my
opinion that the bill was not an honest bill. The gentleman who first
spoke to me about the bill did not show it to me. He only stated its
])rovisions. and showed me a map and j)ointe(l out some blocks, saying
that a bill containing these provisions would confirm these Alcalde grants
to those blocks.

Q. — In what vicinity were those blocks?

A. — This end of the town, up along the foot of Telegraph Hill, down
near the Grifling lots.

Q. — Did you understand the general provisions of this bill to provide
for the Sale of Marsh and Tide Lands — what the bill was intended to
accomplish ?

A. — No. 1 did not; my attention was not specially directed to it at all.
I relied more upon what this friend of mine told me, than upon my own
judgment. If I had read the bill I don't believe I should have known
anything about it, because I never lived in a marshy country.

Q. — You are not familiar with Alcalde titles ?

A. — Ko ; I judged from the remarks made to me by the gentleman
who first mentioned the subject to me, that he wanted a title of that na-
ture confirmed by an Act of the Legislature, and that this bill could do
it. I never examined the bill at all, after it was introduced ; I heard it
read in the Senate. I asked this friend of mine to examine it, and let
me know what he thought of it. My words to him Avere, that I was
afraid that it was a rascally bill. In the first instance, a gentleman so-
licited my support of it, and I told him I Avould not give it until after
examining the bill.

Question, hy Mr. Souh. — What was the name of the party that first pro-
posed to you to support the bill ?

A. — Dr. Coryell. John White was the gentleman whom I requested
to examine the bill, to see whether there was anything wrong about it

or not. I simpl}' up]»lie(l to him as a friend, knowinjr that lie lived here
in town, and was editor of a pajier here; and thinkinir he would proba-
,bly know alxnit whether the i»ill contained anything wrong.

Qiirsfioii. hi/ Mr. Ann/. — Did Mr. Wliite state to you anything in re-
gard to tlie bill '^

, A. — 1 asked him the question if he woukl examine the bill. I told him
,that, in my opinion, it was a rascally bill, and asi<ed him if he would not,
-as a favor, examine the bill and give me his opinion. He told me after-
iwai-(ls, that he eouhl see nothing wrong in the bill. I suppose, of course,
;he had examined it. That was about the time tbe bill was introduced.
J Qiirstioii. />!/ Mr. Banks. — And it was before that that Dr. Coryell spoke
ito you ?
I A. — Dr. Coi'veil .spoke to me before the bill was introduced.

lUCIIAED lEWIN.

TKSTIMONV OF WII,I,IA>r (i. WOOD.

Qurstirni, in/ Mr. Ihniks. — How long have you lived in San Francisco?

A. — Since eigiiteen hundre(| and loi'ty-nine.

Q. — Are you familiar with the suliject of Alcalde grants?

A. — Somewhat.

(^. — Please state what you know concerning the passage of this bill
(dui-ing the last session of the Legislature.

j A. — My attention was first drawn to this bill by an inquiry for it by
[Mr. I'helps two or three times at the desk. Mr. Tilton also inquired about
it at tlie desk several times. It .seemed that it was lost or mislaid. Up
|to that time 1 did not know what the contents of the bill were, or Avhat
(it was al)out ; and I was asked in reference to it by some title that did
;not strike me at all as being the title of this bill, it being in one of the
pigeon-holes of the Clerk's desk of the Assemltly for several days, and
one day I opened it to see what it was. and it struck me that it was the
bill that bad been inquired for by Mr. Pheli)s. Then I went and said to
Mr. Phelps, •• I have found your bill ; now move for a Committee of Con-
jference." I think I stated*^ the same to Mr. Tilton. Then it was that
my attention was drawn to the bill. It was then an engrossed bill of
[the Senate, with Senate amendments attached. It must have been re-
icommitted, in the Senate, with special instructions, to have got that
piece of paper on it.

Qnestlon, hi/ Mr. Soii/r. — More than one amendment ?

A. — One Senate amendment. I know that there was one Senate
amendment ; but there were three slips of ])aper attached to the bill.
It was a matter of no interest to n\e, and I did not read over the amend-
ments to see what amendments bad been made; but there were three
sei)arate slips of iia))er attached to the bill. They then had a Committee
of Conference, as a|)i)ears by the ])ublished account in the newspapers
some time ago. I have not examined the hill, but I cut out of the
Bulletin a detailed statement of the course of the bill. Then it seems
that the report of the Committee of Conference was concurred in by
both Houses.

Question, hy Mr. Banks. — That does not conflict with any recollection
you have of the matter /

A.— Not at all. But I think that that bill was not in the hands of the
Committee of Conference when they made their report. I won't be posi-
tive about that, but that is a sort of recollection I have. That there
7

way a bill that was acted upon by a Committee of Conference, without
beini^- in their possession, I know. I have been thinkiuii; upon this .sub-
ject a great deal, and it strikes me that it was this bill ; that it was not
taken from the desk by the Committee of Conference, they having made
their report, probably. u])()n their understanding or recollection of what
the provisions of the bill were.
Q. — Of that you are not positive ?

A. — Xot positive, but I think .so. Assuming this to be the bill that
was so acted upon by the Committee of Conference, the Senate informed
the House that they had adopted the re)Jort of the Committee of Con-
ference on the bill, which bill was still in the Assembly. Then, after
making my notes on the back of it, I took it to ^Ir. Williamson, Assist-
ant Seci-etary of the Senate, and by referring to his register, ami to his
memorandum, ibund that the rej)ort of the Committee of Conference
had been concurred in some three or four days liefoi-c. and Mr. William-
son liad to hunt a place in the liack of tiie hill to make the pi'oper en-
tries.

Q. — "What is the practice in regard to engrossed bills, after having
passed into the hands of the Enrolling Committee ?

A. — They come back with the report of the Committee. The enrolled
Semite bills do not go to the House. The Chairman of the Senate ('om-
mittee keeps the enrolled bill and carries it to the Governor, and then
he i-ej)orts the bill eorrectly enrolled, and sends back the bill from which
the enrolled eoj»y was made, whieb. in the oi'dinaiy ccnirse. would i»e the
engrossed bill. The engrossed bill, or the bill from whieh the eni'olled
copy is made, is then ])ut in a tile of " Bills passed both Houses." for
which the Secretary has a separate )»igeon-hole. 3Iy j)ractice always
has been, until last year, when Mr. Se(djey was Assistant Clerk, t(j ar-
range those bills in ]>ackages of tifty, with the wrappers marked, on the
outside. •• From 1 to 5U," " From 5U to 100," etc., so that any desired
Numl)er could be found without dittieulty. But last year they were kept
in a eloset at the end of the desk, and were in all sorts of conditions, so
that it took a great deal of labor to an-ange them. Then, on the day
aftei' adjournment, or as soon thereal'ter as they can be arj"anged, they
are carried to the office of the Secretary of State, and tiled there.
Sometimes members borrow l)ills and fail to return them.

(^. — If a liill is given out to any member, or any })erson. at any stage
of the ])roceetlings. is there not a record ke])t?

A. — Xo ; when a bill is referred to a committee, Ave put down in the
book • referred to " such a committee, and then in the next line, " deliv-
ered to " Mr. So-and-so. But when a member comes ordinarily to bor-
row a bill, we depend upon recollection.

Q. — You don't know anything about the practice of the Senate ?
A. — Xo ; only this thing. I know it was very loosely done last win-
ter.

Qwsfion. hi/ Mr. Soulr. — "When did you last see that bill?
A. — If it is that bill I speak of the last time I saw it was when I car-
ried it to Mr. "Williamson; if not then, I carried it to the Senate in the or-
dinary way, and it Avas in the Senate before the Committee of Conference
was appointed. That Avas the proper place for it. If a Senate bill, it
should have been in that House.

Q. — AVas there a bill read in your hearing during the session in Avhich
the term ''Alcalde grants " appeared, or was announced ?

A. — Xot to my knoAvledge ; because in the nature of my engagements
at the desk it was impossible for me to pay attention.

Qtir-sfion. hi/ Mr. Tilfon.—Wcve you tlie custodian of the bills, as one of
the Ck'i-ks of the Assembly ?
A. — N<». Sir.
I Q._Whowas?

A. — .1. W. Scobcy, Assistant Clerk.

Q. — Was he very strict in ]>erfoi-niiiitr his duties, or was he not?
I A.— Xo. Sir. lie was careless in some respects. Bills that he took
^ any particular interest in he would sink in his drawer, and look out to
keep tht'in out of the way — keej) thorn fi-om coming up at particular
1 times — or to be broui^ht n\> at ]»artieuljir. times, and keep them out of
! the sight of anyb(»dy that might want to 1<X)1: at bills at the desk.
j Q- — '>•> you thiidv it ])robable that he might have left the bill in some
j place where a pei-son interested might have got p(»ssession of it?

A.— Jle might have done that. He was ver; afcommodating to his
[ friends, in relation to bills, and directly to the contrary to those people
whom he did n<jt like.

WAL.a, WOOD.

TESTIMONY OF R. K. WKSTON.

Quesfion. hi/ Mr. Bmi/iS. — AVhat position did you occupy in the Assembly
last winter?

A. — Joiii-nai Clerk.

i*. — .\s .loiii'iial Clerk, what was your duty?

A. — Transcribing the minutes of the proceedings of the Asseml»ly into
the Joui-nal.

<i>. — Do you remember anvtliing concerning the passage of this bill?

A. — Concerning the ]>assage of it, I do not. I remember when the
biii was under consideration in both Jlouses. and the apiiointment of a
Committee of Free Conference.

Q. — I)o you remember what the disagreement was in regard to?

A. — I I'euu'mber it, fi'om the objects of the bill being stated to be
merely to bring the Marsh and Tide J^ands under the Swani)) and Over-
flowed Land Act. It was stated that the lands had been sold under the
Swamp and Overflowed Land Laws, and it was doubted whether the sales
were valid. That is what I remember about the discussion. I knew
nothing about the Alcalde grants until July last, when the matter was
brought out in the pa]»ers.

Qiirstloii. hi/ Mr. Soiih-. — Did you ever hear the reading of the bill?

A. — I (htn't think I did. I think I heard the question discussed about
the Tide Lands. Notwithstanding I was Journal Clerk, I generally sat
at the desk a good ])ortion of the time, and took an active part in the
business there, reading, etc., and wrote up the Journal in the evening.
The Chief Clerk and Assistant were very social in their dispositions;
and when they had a man at the desk who understood the business, they
went off occasionally.

(l- — Are you acquainted w^ith Alcalde grants?

A.— Xo. Sir.

R. K. WESTOX.

TESTIMONY OF WILLIAM V. GARVEY.

Qwstion, hy Mr. Banks. — Arc you familiar with this Act ?

A. — I am not at all familiar with it.

Q. — What position did you hold in the Legislature last winter ?

A. — I was elected as Clerk of the Enrolling Committee, and selected
to act as Assistant Enrolling Clerk.

Q. — Do you remember anything concerning the passage of this Act —
An Act to provide for the Sale' of the Marsh and Tide Lands of this
State ?

A. — No, Sir; I do not.

Q. — Do 3'ou know Avhether you enrolled it ?

A. — Xo. Sir; I do not--except what I have heard from the persons
who have seen the bill. '

Q. — Did you enroll a great many bills last winter ?

A.— Yes, Sir.

Q. — You do not recollect, of course, what bills you enrolled ?

A.— No;8ir.

Q. — Wtie you sworn as Assistant Enrolling Clerk i

A.— No, Sir; I never was sworn.

Q.— Do you swear positively that you enrolled every bill correctly
that you enrolled at all t

A.— Yes. Sir.

Q. — What was your custom in regard to comparing bills ?

A. — My custom was to go to the Senate Chamber in the morning, find
Mr. Ileacock, or whoever was acting as Chairman. They made two or
three changes in regard to the Chairman of the Committee on Enrolled
Bills; Mr. Shafter reported some. Mr. Thomas some, and Mr. Ileacock
some of the lulls — and then I believe some of the members did; but
most of my business was done with Mr. Ileacock. The bills usually
were compared, by the Chairman holding the engrossed bill and I read*
ing the enrolled bill.

(}. — Was that the custom invariably, or generally?

A. — Well, invariably; I suppose there were some instances that were
not so.

Q. — When j^ou speak of the engrossed bill, you mean the engrossed
bill of the House in which it originated ?

A. — Yes, Sir. It was the custom of the Enrolling Clerk of the Senate,
and the Assistant Enrolling Clerks, to enroll only those bills which orig-
inated in the Senate. It was customary for the Chainnan to hold the
bill from which I made my enrolled copy. I know it was very often the
case that a bill was considered engrossed, when really it was not en-
grossed, and came to me as .an original bill. I have not the slightest
recollection of this bill. I never heai'd anything about it until I read
about it in the papers.

Q. — If this enrolled bill was presented to you, of course jou could tell
whether it was in your handwriting ?

A.— Yes, Sir.

Q. — That might assist your recollection ?

A. — I don't know that it would, materially — I enrolled so many bills.

Q. — What time were you appointed ?

A. — I think it was after the first month; some time in February.

WILLIAM V. GAEVEY.

TESTIMONY OF AMOS ADAMS.

I was a member of the Assembl}' during the twelfth session of the
Legishiliire; I was one of the representatives of Sacramento County.
I have made the subject of lands in this State a special study, and during
the last seven j-ears I liave taken an active interest in the subject of
Swamj* and Overflowed i.ands. and at the last session of the LegisUiturc
I was Chairman of the Committee on Swam]) and Overflowed Lands, of
^the Assembly. I devoted a very large share of my attention to the
subject of Swamp and Overflowed Lands, and I made it my special duty
to scrutinize, willi minute care, all liills in any wa^' relating to this sub-
ject. I distinctly remember Senate bill No. 73, introduced by Mr.
•Phelps. In the As.sembly it was referred to the Committee on Swamp
and Overflowed Lands, of which 1 was Chairman. It provided for the
conflrming of the Sales of Tide and Marsh Lands, which had been made
under the Swantp and Overflowed Land Acts of this State. It also ])ro-
vidcd that hereafter, sales of Marsh and Tide Lands might be made
under said Acts. The reasons assigned for the passage of this Act were,
that according to the decision of a District Court, the sales of Marsh
ami Tide Lands under the Swamp and Overflowed Land Acts, were not
valid, and eciuity re«piircd llie pa.«<sage of a bill of this character. There
was also in the bill, a jtrovision declaring that no sales of Marsh and
Tiile Lands within a certain distance of San Francisco, Oakland, and
the State Pri.son. should be conflrmed by this Act. The Committee on
iSwamp and Overflowed Lands considered this bill and adopted an
amendment concerning the disj)osition of the proceeds of the sales of
^such lands. I wrote a rei)ort accordingly, and on behalf of the Commit-
tee on Swamp and Overflowed J^ands, I reported the bill, with the
amendment, back to the Assendjly. and recommended its passage as
amended. The Committee recommended but one amendment^ and that
related to the disposition of the mone^-s arising from said sales. The
words '-excepting Alcalde grants, which are hereby ratitied and con-
firmed," were not even mentioned in the Committee, nor were Alcalde
ijiKitts referred to in any way. No amendment concerning Alcalde
grants was reported by the Committee, nor by an}' member thereof. I
*am perfect!}' confident that no such provision, nor any provision con-
'cerning such grants, was at any time adopted by the Assembly.
} The question of the validity of Alcalde grants is one that I have never
'thoroughly investigated, and one of too much importance for me to pass
U])on on tlie information obtained by a Committee of the Legislature, in
the ordinary discharge of its duty; and if the subject of Alcalde grants
had been mentionetl in connection with this bill, I certainly Avould have
made a thorough investigation in relation thereto, before consenting to
the adopting of any provision relating to such grants — for I have long
regarded with suspicion any Legislative action tending to confirm such
•grants in San Francisco.

AMOS ADAMS.

TESTIMONY OF GEORGE GRIFFING.

I reside in San Francisco; am Agent of Frederick Griffing, in the
warehousing business.

Question, hi/ Mr. Banks. — As Agent, are you interested in any lots in the
vicinity of North Point, covered by Alcalde grants ?

A. — I am, as Agent, but not otherwise.

Q. — When was your attention first called to the provisions of an Act
to provide for the Sale of the Marsh and Tide Lands of this State, ap-
proved May 14th, 18G1 ?

A. — Either in the month of June or Tuly, I saw the Act as published
amonij the laws passed at the session of ISOI. I had heard that such an
Act ha<l been passed, before I saw it in print.

Mr. Soufc. — Does Frederick (Triffiiiii; claim to own any blocks oi- lots of
land covered by Alcalde grants outside the line laid down as the line of
the city front in the Water Front Act passed in 1851 ?

A. — Yes. They are located between Francisco, Bay, and Kearny
streets. He claims to own them by virtue of a grant made by Alcalde
Leavenworth, and b}' possession.

3fr. B(in/i!i. — Did you know anything about a l»ill fortius Act. including
a provision relating to Alcalde grants, or anything concerning such pro-
vision before the passage of this Act?

A.— No.

GEO. GRIFFIXG.

TESTIMONY OF W. F. WILLIAMSON.

"Win. F. Williamson, a resident of the City and County of San Fran-
cisco, being duly sworn, dejioses and savs :

Q. — AVas you present during the session of the Legislature of eighteen
hundred and sixty-one?

A. — I was Scrgeant-at-Arms of the Senate of eighteen hundred and
.•>ixty-one. and was present during the whole session, with the exception'
of one day.

Q. — Do you know anything concerning the passage of an Act to pro-
vide for the Sale of the Marsh and TideLands, pas.sed May 14th, 1861?

A. — I know nothing of the passage of the Act.

W. F. WILLIAMSON.

TESTIMONY OF J. P. MANROW.

J. P. Alanrow, a resident and broker in the City and County of San
Francisco, being duly sworn, deposes and says :

Q. — Are vou familiar with the contents of an Act to provide for the'
Sale of the^Marsh and Ti<le Lands of this State, passed May 14th. 18(31 ?

A. — I have read the Act, and know its contents.

Q. — When was your attention first called to that portion of the Act
relating to Alcalde grants, and if so. by whom ?

A. — From three to five weeks after the adjournment of the Legisla-
ture of 1861. a person named Waterman, a lawyer of this city, spoke of
the Act to me. Afterwards, William S. Clark gave me the page of the
statutes on which it was to be found, and I examined the Act.

Q. — Have you had any transactions in real estate affected by the Al-
calde provisions of this Act of May 14th, 1861 ?

A. — I oAvned two fifty-vara lots in a block bounded by Francisco,
Chesnut. and Kearny streets. Before I knew of the passage of this Act,
I had agreed to sell them to John E. Coryell, and had made out a deed
and deposited it with F. H. Wood, and gave Coryell thirty days in which

to pay the money. Avitliin which time he was to pay the moncv and take
the deed, which he did within the time agTeed upon.

Q.— Had you known of the passa,u:e of "any hiw aifectino- this pro])crtv.
xnd impnniiiir the tith' thereof would you have sold for the price ai^reed
apon '^

. A. — I would not. I consiik'red tliese AlcaMe i^n-ants as ijood and valid
IS any Alcalde .i:;rants made in this city, and thouirht tliat there was a
nistake in not ineludiui; them within the water line of the citv. and if
[he Iiei,nslaturc ha<l not. they ouirht to include them within the Avater
line.

■ ^^ — I*" .V'*'i ""t think that all the American Alcalde i^rants of this city
»vere fraudulent, and made hy the tirst settlers here for the purpose of
i^rahhinj; the lands of the city 'f

I A. — I did not arrive here till the tirst of April, ei-^liteen hundred and
T)rty-nine. These i;rants were made hefore 1 came, and 1 know nothino-
)f the motives of the grantors or t^rantees.

J. P. MANKOW.

TKSTIMONV OF HORACE P. JANKS.

I am a resident and practisini; Attorney in the City of San Francisco.

'J. — Has your attention ever heen called to a clause relatin<; to Alcalde
is. contained in the Act of May 14th, ISIJI. entitled an Act to pro-
tor the Sale of the Marsh and Tide Lands of this State? If so. state
1' A and in what mannei*.

A. — I tirst hecanie aware of it on its ]>ulilication in a San Fi-ancisco
)a])er; I do not recollect the exact time. I know nothini; of the Act
•x<(')>t that it exists.

• ,' — l)o you know of any jxii-chases or transfers of proj)erty att'ected
y >aid Act':"

\. — I know of a ]>urchase by John R. Coryell, from SamuelJ.Hen.sle3-,
't a block, or part of a block, that would seem to be atfected by the pro-
•i>i"ns of the Act of May 14th. IsOl.

*>. — State what you know in connection with said purchase relating to
^ai'l Aet :'

A. — 1 know that Dr. Coryell made an otter to Major S. J. Hensley for
111 purchase of the lot to whieh I have referred in my previous answer,
riiis was before Mr. Henslcv or myself were aAvare of the existence of
he Act of May 14th. 1S6L I was Hensley's counsel and adviser. I
lave it as my opinion that the title to the lot was worthless, and would
•robablv always remain so. I gave this advice, not being aAvare of the
':i--age"of the' Act of May 14th. 1^01. I advised Hensley that the otter
uade by Cor^'ell was a large one. and advised him to take it, or what-
ever he' could' get. The purchase was completed before we became aware
af the passage of the Act of Mav 14th. 1861.

HORACE P. JANES.

MORTGAGE. FROM JOHN R. CORYELL TO SAMUEL J. HENSLEY.

This Indenture, made this fifth day of July. A. D. 1861, bet\veen John
ri. Coryell, of the Citv and County of San Francisco. State of California,
oarty of the tirst part, and Sani'l J. Hensley. of the County of Santa
Jlara, same State, partj- of the second part:

Witnesseth — That the said party of the first part, for and in consider-
ation of the sum of three thousand dollars, (S3,U00) to him in hand paid
b}- the said party of the second part, at or before the sealing- and de-
livery hereof, the receipt -whereof is hereb}' ackno'svled<i;ed, hath i>ranted.
bargained and sold, released and conveyed, and does hereby grant, bar-
gain, and sell, release and convey, unto the said party of the second part,
his heirs and assigns, all that undivided two thii-ds ])art of all that eer-i
tain piece and ])arcel of land, or block of ground, lying under the tide
waters of the Bay of San Fi'ancisco, in the City and County of Saa
Frai'cisco, and State of California, and granted by T. M. Leavenworth,
Alcalde, to John Townsend. and bounded by Bay street, Montgomery
street. North Point street, and Kearny street, that is to say : by Kear-
ny street, as it now is. and b}'" the extension of the other three streets,
in their present direction, so as to include said block.

Together with all and singular the tenements, hereditaments, and
appurtenances, unto the same belonging or in any manner a])pertaining.i

To have and to hohl the ))reniises unto and to the sole use of him, the
said pai'ty of the second pai"t. his heirs and assigns, forever.

This conveyance is intended as a mortgage to secure the sum of three'
thousand dollars, owing from the said party of the first part to the said
])arty of the second part, due and payable when, by legislation on the
])art of the State of California, ami by decision of the Su])reme Court of
said State had thereon, the title of the State to the foregoing described'
property and, the possession thereof shall be vested in and given to the
owners or assignees of the Alcalde grant made by T. M. Leavenworth to
said block.

And this conveyance is also intended as a security for the procurement,'
by the sai<l pai'ty of the first part, of tiie action ot the Legislatui'c of the
State of California, and obtaining the decision of the Supreme Court, as
before mentioned, for the whole of the foi-egoing described ])ro])erty,
(including one third part part, held and owned by the said jnirty hereto
of the second part,) and all the costs and expenditures in any way aris-
ing out of the j)rocuring said action of the Legislature, as aforesaid, and
obtaining the decision of the Sujuvme Court, as aforesaid, to be paid by
the said party of the first ])art for the whole pnjperty.

And if the said payment be mcII and truly made, then these presents
to be null and void. But if default be made in the ])a3'ment of said debtJ
when it becomes due. then it shall be lawful for the said party of t
second ]nirt. his executors, administrators, or assigns, and he or th
are authorized to sell the ])remises according to law, and all the equi
and statutory right of redemj)tion of the said party of the first pai
therein, said statutory right being hereby waived and barred.

And it is hereby expressly agreed, that the purchaser or purchasers fli
such sale, shall be put in immediate possession of said mortgaged premi-i
ses without delay whatsoever, and out of the proceeds of such sale, after;
first paying all the lawful ex])enses thereof^ including mortgages, ordinary
and usual counsel fees, and commissions on the amount so due and un-i
paid, to pa}' said debt of three thousand dollars, without interest,;
rendering the overplus, if any, unto the said party of the first jDart, his
heirs or assigns.

In witness whereof, the said party of the first part has hereunto set
his hand and seal the day and year first above written.

JOHX E. CORYELL, [seal.]

(Vol. 72 Mortgages, page 49.)

ibtJ

TESTIMONY OF G. C. GORHAM,

Geo. C. Gorhain, of Sacramento, being duly sworn, says :
I was Enrolling Clerk of the Senate of eighteen hundred and sixty-
»ne. I did not enroll the Act under investigation, passed May 14th, 1861.
md knew nothing of its existence until Tread the newspaper charges
lonccrning tlie alleged interpidation concerning Alcalde grants. I was
ibsenl th)U\ Sacramento after about the twentieth of April, except on
»ne Sunday, until after the adjournment of the Legislature, and never
:i\v or knew of the bill.

GEO. C. GOEHAM.

TESTIMONY OF E. P PECKIIAM.

K. P. Peckham, being duly sworn, deposes and says: I am a Notary
'iiMic. i-esident in the C\i\ of San Francisco.

<i- — What do you know of the jiassage of an Act of the Legislature
)f eighteen humlred and sixty-cjne, entitled an Act to ])rovide for the
xile of the Marsh and Tide Lands of this State, approved May 14th,
"^til. and state anything y«^u know of said Act before its passage?

A. — 1 know nothing of the ])assage of said Act except from hearsay,
iihl knew nothing of any particular provision of the bill.

<J. — J-)o you know what lands the Alcalde provision in the bill refers
<> and covers?

A. — I know a ])ortion of the lands. I think they run from Lombard
loiiii to Bay street, and east (jf Sansome street, consisting of three or
our blocks; some of the blocks are four tifty-vara lots, and some six.

'^ — Do vou know anv ol'the present owners of said lands; if so, name

ii.iiiy

A. — I do. 1 know ]iositively that John R. Coryell is the owner of a
ai -e portion of said ])ro])erty. 1 know of others only b}' reputation.

<i». — Do you know Ikjw long Coryell has owned said lots?

A. — I think he bought in June, eighteen hundred and sixty-one. He
H Might of John P. Manrow. Wm. S. Clark, Daniel Gibb, Samuel J. Hens-
ly. and p]. P. Flint. I was emjiloyed by Coryell to buy of Flint. I did
»o. The deed was made from Flint to me — I ti'ansferred to Coryell,
fhis I think took place in June last; I can tell positivel}' by referring to
'-he tiles in my office.

, Q. — Was the Act of May 14th, 1861, referred to in connection with the
Durchase you speak of?

' A. — Not till after the purchase, with the exception of the conveyance
I'rom myself to Coryell, above referred to.

Q. — Did Coryell Vay anything of the power conferred by this Act of
May 14th, IStii ?

' A. — I don't remember his exact language ; he said in substance, that
18 he had been advised by coun.sel. the Act of May 14th, 1861, made good
he title to the said blocks of land.

E. P. PECKHAM.

TESTIMONY OF JAMES M. AXDERSOX.

James M. Anderson, of the County of Tehama, bcint!; duly sworn, d,
poses and says :

Q. — Were you Clerk of the Assembly of eighteen hundred and sixty-
one ? If so, do you know anything; conccrnini; the passage of an Act t*
provide for tlie Sale of the Marsii and Tide Lands of this State, passcii
May 14th. ISOl ? If so, state what.

A.— I was Clerk of the Assembly of eighteen hundred and sixty-on.
I know nothing of the Act. exee|)t that sueh an Act jiassed.

Q. — Do you know anything eoncerning Alcalde grants, and do you
know anything of the property affected, or supposed to be affected, by
the clause in the Act contirming the same ?

A.— Xo.

Q. — Have you any recollection concerning the clause in this bill, con-
cerning Alcalde grants ?

A. — I have not. When rea<ling so much, as Clerk, a great deal of niv
reading was merely mechanical, and made no ini])ression on my mind.

(^. — When was your attention called to this Act?

A. — My attention was called to the Act when some newspaper com
munications and comments were made upon it. I don't remember tli
time.

Q. — Do you know of any transactions in real estate affected l)y tli
Alcalde ])rovdsions of this Act i*

A. — I do not.

J. M. AXDEIiSON.

TESTIMONY oF WM. V. C.ARVEY.

W. V. Garvey. being duly sworn, deposes and says :

Q. — AV'ere you connected with the Legislature of eighteen hundred
and sixty-one'/ If so. in what capacity?

A. — I was elected Clerk of the Enrolling Committee of the Senate, ami
directed to act as Assistant Enrolling Clerk of Senate.

Q. — Did vx)u enroll Senate bill No. 73. for an Act to provide for the
Sale of the Marsh and Tide Lands of this State, passed May 14th. 1X01.

A. — I tind. upon examination of the enrolled liills of eighteen hnndred
and sixty-one. on file in ottice of Secretary of State, that Senate Idll No.
73 is enrolled in my handwriting.

Q. — Have you compared the enrolled bill of the Senate with the en-
grossed bill of the Senate herewith exhibited to you (marked A) ? If so.
is th« enrolled bill a correct cojiy of the engrossed bill and the amend-
ments attached thereto ?

A. — I am satisfied that I did compare the bills, since that was my cn--
tom. and that the one is a correct co^iy of the other. I did not have the
engrossed bill yesterday, or I would have compared them at Sacramento;
but I am satisfied that the enrolled bill is a correct copy of the en-
grossed bill and amendments attached. I will state further, that in
making a comparison of bills. I never read anything but what was writ-
ten. I read in a slow, clear and distinct voice.

WM. Y. GAEYEY.

TESTIMONY OF HALL MC ALLISTER.

' Hall McAllister, a resident and practising Attorney in the City of San
raneise(i. being duly sworn, deposes and says:

Q.— Have you any knowledge of an Act to provide for the Sale of the
(arsh and Tide Lands of the State, passed May 14th, 18G1 ?

A. — I knoM' of the existence of the Act. I had no knowledge of its
vistence or jjassage nntil after the adjournment of the Leoislature of

A. — Have yon any knowledge of any transactions in real estate aifected

V the Alcalde provision of this Act? If so. ]»lease state what.

\'. — Some time after the passage of the Act. and after the adjonrnment

I lie Legislature of ISOI. referred to. certain owners of Alcalde grants

the north east section of the city, owning lots fronting directU' on the

ater front of the city, near Adams &: C'o's warehouse, and neighbor-

)()d. consulted with me in i-eference to the claim of ])arties to certain

!• lots immediati'ly outside of their property, which claim Avas found-

, certain Alcalde grants wliich were not contii-med by the Act of

Mai'ch. iSfjl . c-ontirming Alcalde grants to water lots, but which

1 \)v coiitirmed uinK-i- the Act of May 14th. lS(Jl. referred to in first

I- ion. I oxamine<l the originals of those Alcalde grants immediately

; 'k- the water line of lS;jl. anil embi-aced in the block hounded by

ny. Bay. (projected.) anfl Montgomery (projected,) and P'rancisco

i\v ts. and also the block l>ounded b^- ilontgomer}', Sansomc. (projected.)

hesnut and F'ranciseo (projected) streets. My impression is, that I ex-

iiined the original gi'ants to those blocks. I am certain I examined as

;» one. and foun<l the original Alcalde grants genuine. There had been a

sat <leal of litigation about this locality between my clients and the hold-

. of some of tiiesc outside Alcalde grants, growing out of the fact that

e last mentionc(| holders were continually attem])ting to fill in the bay

[; that ]»oint. and take jiossession of the lots coverecl by those outside

Icalde grants. There is no doubt that the parties holding these outside

Icalde grants have a sti'ong equity, and tliere is no reason why these

ilcaMe grants should not have been included in the original water lot

11 l)y tlie Legislature of LS5L We considered that the equities of these

artles were such, that we were fn constant danger of having some bill

■issed by the Legislature for their relief "We were uncertain what the

upreme Conrt would decide in j-eference to the permanent water line

xed by the Act of iSol. and. in view of all the litigation we had had,

id the equities of the parties holding these outside Alcalde grants, and

robabilities of relief being granted them by the Legislature, if the

^ III bill (Act Mav 14th. LSiil. ) was insutficient, we concluded to make

lie settlement with them that we did. My clients. (B. Davidson. Edmund

30tt, Alfred (4odfrev. or Ilenrv Ilentsch. and James Donahue,) purchased

n interest, under tliis bill, to these outside Alcalde grants. My clients

!id no knowledije of the passage of this bill nntil after the adjournment

: the Leirislatnre. and had been fi<rhting Griffing's bill during the session

f 18G1. bv emplovini; airents in Sacramento to attend to that matter.

ty clients received their deed from AVilliam S. Clark, who was, 1 think,

ie original ifrantee under the Alcalde grant, but the contract of pur-

lase was made with Dr. Coryell. The deed was taken in the name of

homas Bell, who held in trust for the parties I spoke of

HALL McAllister

TESTIMONY OF SAMUEL M. WILSON.

Samuel M. Wilson, being duly sworn, deposes and says : That he
is a member of the law firm of Hoge & Wilson, of the City and
County of San Francisco j that he never saw the Act of the Legis-
lature, entitled an Act to provide for the Sale of the Marsh and Tide
Lands of this State, approved 3Iay 14th, 1S61, until after the same was
passed, and approved by the Governor. That this affiant never knew
that any such bill was to be introduced in the Legislature, or that any
Act of any kind, referring to Alcalde grants, Avas to be introduced, or
was pending. That the subject matter was first brought to the attention
of this aifiant after the passage of said Act, by a client, who desired ad-
vice as to the proper legal construction of the said Act. That the fore-
going includes all the knowledge of this affiant on this subject, and further
this deponent saith not.

S. M. WILSOX.

TESTIMONY OF GEORGE F. SHARP.

George F. Sharp, being duly sworn, deposes and sa3's : That he is a
resident and practising Attorney of the City and County of San Fran-
cisco. I have heard read the testimonj' of Mr. McAllister, and my tes-
timony is, in substance, the same as his. I had no knowledge of the
passage of the Act of May 14th, 1861, until, I think, about the time of
the publication of the statutes, at which time Dr. Coryell proposed to
sell a block situated between Chesnut and Lombard streets, which is
outside of the water line front of March 26th, 1851. He stated the rea-
son wh}' he called upon me was, that my clients, Wm. T. Coleman & Co.,
owned the block directly in tront of it, on the land side, and he wished
me to examine his title to the block, with reference to this Act of May
14th, 1861. I examined the Act and also Coryell's title. I found that
he had dei-ived, by purchase from the original parties, the title to this
block. I purchased for my clients one half of the block, and received the
deed direct from Dr. Coryell. I had known of these original Alcalde
grants for ten years, and alwaj's believed that they were as much en-
titled to confirmation by the Legislature as any other grants confirmed
under the Water Lot Act of 1851. My clients were bona fide pur-
chasers.

GEO. F. SHAEP.

WILLIAM G. WOOD, RECALLED.

William G. Wood, a resident of the City and County of San Francisco,
being duly sworn, deposes and says :

Q. — Please state what you know concerning the passage of Senate
bill No. 73, entitled an Act to provide for the Sale of the Marsh and
Tide Lands of this State, passed May 14th, 1861. (The engrossed Senate
bill marked [A] was here exhibited to deponent.)

A. — The bill now shown me is the bill about which I testified before.
The amendments attached to the bill were attached to it when it left the
Assembly and was reported to the Senate. There were attached to the
bill, as I then stated, three pieces of paper, containing amendments.
These pieces are now attached to the bill.

Q. — Do you remember that the piece of paper containing the words
, " Alcalde grants," was attached to it ? (Amendment marked [W] by
; the Committee.)

I A. — Upon looking at the paper (being the bill,) at this time, and re-
I freshing my memor}- thereby, I can jsay that it was. It appears on the
t back of the l)ill. in my handwriting, as follows: ^'- Apl. 16: \'6Q\.aviendts.
1 adojitcd — r('(((l third time (uid pasaed, Srobcij. Ass. ClkP This indorsement
] confirms my mind that there was more than one amendment reported
I by the committee and adopted in the Assembly. All the Assembly in-
1 dorsements are in my handwriting, and are in the plural. The Commit-
j tee referred to is the Committee on Swamp and Overflowed Lands.
I W. G. WOOD.

TESTIMONY OF C. W. TOZER.

C. W. Tozer, a resident of San Francisco, being duly sworn, deposes
and says :

Q. — Were you connected in an official capacity with the Legislature
of eighteen huiuli-ed and sixty-one ? If so, state in what capacity, and
also, what j'ou know concerning the passage of an Act to provide for
the Sale of the Marsh and Tide Lands of this State, passed May 14th,
1861, ki>own as Senate bill No. 73, (the engrossed Senate bill is here
exhibited to you, marked [A].)

A. — I was connected with the Legislative session of eighteen hundred
and sixty-one, in the capacity of Secretary of the Senate. My recollec-
tum concerning the bill in question extends no further than that an Act
relating to Marsh and Tide Lands, with title as above, (as near as I
recollect.) was before the Legislature. I have no distinct or positive
recollection whatever of what action was had on said bill. I do not
recollect what, or how many, or if a«y, amendments were made to the
bill.

C. W. TOZBE.

TESTIMONY OF D. P. BELKNAP.

D. P. Belknap, a practising Attorney in the City of San Francisco,
being dul}^ sworn, deposes and says :

Q.— Have you any knowledge of the passage of an Act to provide for
the Sale of the Marsh and Tide Lands of this State, passed May 14th,
1861 ? If so, please state what.

A. — I have none whatever.

Q._When was your attention first called to this Act ?

A.— At the time the matter was noticed in the newspapers, about a
supposed interpolation in the Act.

Q._Do you know anything concerning any transactions in real estate
affected, or supposed to be affected, by the "Alcalde provision " in the
Act of May 14th, 1861, above referred to ? If so, please state what.

A.— Some time last winter I was spoken to by Mr. Manrow, a broker,
to see Mr. Schollenberger, of San Jose, who had formerly been a client
of mine, to effect a purchase from him, as Guardian of John H. Town-
send, a minor, of certain lots covered with water outside of the city front,
off North Point, for which the said Townsend, by inheritance from his
father, holds an Alcalde grant. I referred him to Mr. Schollenberger

himself, and I learned afterwards, from Mr. Sehollenberger. that a sale
of the property hud been made.

D. P. BELKXAP.

TESTIMONY OF 1). J. WILLIAMSON.

D. J. Williamson, of Camp Union, near Sacramento, being duly sworn,
deposes and says :

Q. — Were you connected with the Legislature of eighteen hundred and
sixty-one, in an official capacity? If so, state what, and also anything
you know of the passage of Senate bill Xo. 73, an Act to provide for the
Sale of the Marsh and Tide Lands of this State, passed May 14th, 1861,
the engrossed Senate l>iil being here exhibited to you, marked (A.)

A. — i was Assistant Secretary of the Senate, and in that caj>acity it
was my duty to indorse on the back of all bills what action was taken
on them by the Senate. The engrossed bill here presented and marked
(A.) is tlie bill ]jassed by the Senate, and the Senate indorsements were
made by me. My attention was called to the bill, by J. R. McCauley
requesting to examine it at my desk. He informed me that it affected
his interests at the State Prison. I believe that the amendments at-
tached to the bill were on it at the time it passed the Assembl}^ my Eec-
ord Book showing that amendments of the Assembly had been orfjncurred
in by the Senate. I never read the Assembly amendments, and I am
not aware what provisions they contained. I believe the amendment
which contains the supposed fraud is in the handwriting of some Sena-
tor or Member of the Assembly, as it appears familiar to me.

Question, hij Mr. Mfrritt. — Have you examined the Ilecord Book of the
Senate? If so, please state who were the Committee of Free Conference
appointed on the bill, and who made the rej^ort of the committee, and
was it adopted by the Senate ?

A. — I have examined the Record Book, and find that the Committee
of Free Conference was composed of Messrs. Phelps, Parks, and Warm-
castle. Mr. Phelps made a verbal report, and on motion, it was adopted.
It was the ])ractice of the Senate to have all amendments, when adopted,
signed bv the Secretary.

D. J. WILLIAMSON.

TESTIMONY OF F. M. WARMCASTLE.

F. M. Warmcastle, being duly sworn, says ; I was a member of the
Senate at the last session of the Legislature, and I recollect that I was
appointed on the Committee of Free Conference on Senate bill Xo. 73,
entitled an Act to provide for the Sale of the Marsh and Tide Lands
of this State, passed May fourteenth, eighteen hundred and sixty-one.
I do not recollect that I served on the Conference Committee ; I recol-
lect that I was with the Swamp and Overflowed Land Committee of
the Senate, when this bill was taken up. and was familiar with the pro-
visions of the bill. I have no recollection concerning a clause relating
to Alcalde grants, in connection Avith this bill. The examination before
the Swamp and Overflowed Land Committee, alluded to, was before
the bill was sent to the Assembly.

Q- — Arc you familiar with the character of Alcalde grants?

A. — I am not; my attention never having been sjiecially called to

them. I was a member of the Committee on Swamp and Overflowed
Lands.

F. M. WAEMCASTLE.

TESTIMONY OF WILLIAM H. PATTERSON AND W. W. STOW.

William JI. Patterson and W. W. Stow, being sworn, say: That they
compose the firm of Patterson k Stow, Attorneys and Counsellors at Law,
of the City and County of San Francisco ; that affiants never saw an Act
of the Legislature, passed at the tAvelfth session of the Legislature of
tliis State, entitled an Act to provide for the Sale of the Marsh and Tide
Lands of this State, approved May fourteenth, eighteen hundred and
sixty-one, nor an}^ provision contained in said Act. until after said Act
had been passed, and i)ublishod in the printed volume of the Session
Laws of the year eighteen hundred and sixty-one. That the attention of
deponent, Patterson, was for the first time called to said Act, by Mr.
J. P. Manrow, a real estate broker, of said city and county, after the
publication of the same, as aforesaid, who asked the opinion of affiants as
to the legal effect of the following clause therein: '-excepting Alcalde
grants, which are hereby ratified and confirmed;" at the same time
stating that Mr. Clark said that (meaning said Act,) is the reason they
bought us out, (meaning, as afliants believe, that said Manrow and Clark
had been interested in such Alcalde grants, and had then sold such inter-
ests.) That neither of the deponents had any other consultation with any
other person in relation to said Act, or any part thereof. That neither
of deponents know, or have any information or belief, who drew or pre-
pared said Act, or any provision thei'eofl, nor do they or either of them
know who was interestefl or instrumental in procuring the passage
thereof; nor did they know or have any information concerning the same,
until after the same was published in such ])rinted volume.

WILLLVM H. PATTERSON,

W. W. STOW.

TESTIMONY OF A. H. TUTTLE.

A. 11. Tuttle, of the City of Sacramento, being duly sv/orn, deposes
and says :

(^.— "Do you hold a ])Osition in the office of the Secretary of State ?
If so, state Avhat position.

A.— I am Deputv Secretary of State, and am now and have been in
the oflice of Secretarv of State as Deputy since the 15th of January,
1861^

Q. — Did you search for and find, in the office of Secretary of State,
Senate engrossed bill No. 7'6, for an Act to provide for the Sale of Marsh
and Tide Lands of this State, herewith exhibited to you, marked (A) ?

A. — I found the bill here exhibited to me in the office of Secretary of
State, and forwarded it to Mr. Banks ; I don't recollect the exact time
when.

Q.— Did you find the bill in its regular place among the files as num-
bered; if not, in what place was it?

A.— I did not. I found it in the file of Assembly bills for the year

1861 ; its regular place should be among Senate bills, and it should have
been filed among them.

Q. — During your search for this bill, did you find any other bills of
the Senate among the Assembly file ?

A. — I did find three or more Senate bills in the Assembly file. I
found this bill in the folds of another bill. I don't recollect the exact
number, but think it was Assembly bill No. 174.

A. H. TUTTLE.

TESTIMONY OF E. H. HEACOCK.

E. H. Heacock, Senator from County of Sacramento, being duly sworn,
deposes and says :

Q. — Did you report as correctly enrolled, an Act to provide for the
Sale of the Marsh and Tide Lands of this State, passed May 14th,
1861 ; the engrossed copy of the Senate, is herewith exhibited to you,
marked (A) ?

A. — The Journal of the Senate of eighteen hundred and sixty-one
shews that I reported the bill as coi-reclly enrolled ; I have no recollec-
tion on the subject; I suppose the Senate Journal is correct. I reported
a great many Acts as correctly enrolled, and have no distinct recollection
of this particular Act.

Q. — What was your practice in comparing enrolled bills with engrossed
copy, and how did you compare this bill '(

A. — It was my practice, and the practice of the Enrolling Committee,
to hold the engrossed copy of a bill, while the Clerk read from the en-
rolled copy ; I suppose that was what I did in the case of this bill. I
remember this custom for the reason that frequently in comparing bills
there were amendments, similar to those on this bill, tacked on to them,
and I was compelled frequently to stop the Clerk from reading, to ascer-
tain if the amendments were all right. I will state further, that if I
reported this bill as correctly enrolled, as reported by the Journal of
eighteen hundred and sixty-one, and the amendment (Alcalde) was then
attached to it, in that case I certainly saw the amendment. I have no
distinct recollection of this particular bill.

E. H. HEACOCK.

TESTIMONY OF JOHN R. CORYELL.

John E. Coryell, a resident of the City of San Francisco, being duly
sworn, deposes and says :

Q. — Were you present at Sacramento during the last session of the
Legislature ?

A. — I was, a portion of the time.

Q. — Do you know anything concerning the passage of Senate bi!l No.
73, entitled an Act to pi-ovide for the Sale of the Marsh and Tide Lands
of the State, passed 14th May, 1861, herewith exhibited to you, marked
(A) ? If so, state what.

A. — I knew there was such a bill very soon after its introduction, and
then I knew very little about the bill ; heard of it at times until after it
went into the Assembly.

Q- — Do you know anything of the provision of this Act respecting
Alcalde grants ? If so, state what.

A. — I knew of that provision being in the bill, while it was in the
Assembly, and before the Committee of Free Conference was appointed,
and before final action was had on it. I had a copy of this bill, with the
Alcalde provision in it, made by one of Anderson's (Clerk of Assembly)
Clerks, James Dunlevy. The reason of my having a copy of the bill
made, when I became aware of the Alcalde pi^ovision in it, was, that I
desired to knoAv from my Attorneys, Hoge & AVilson, what effect it would
have on Alcalde grants outside of the water line of eighteen hundred
and fifty-one. I know nothing further about the bill until after its pas-
sage. The copy of the bill that James Dunlevy made for me, I showed
to vSol. A. Sharp, after the passage of the Act.

Q. — Do 3'ou know the handwriting in which the Alcalde amendment,
marked (W,) is made ?

A. — I do not.

Q. — Do you know what amendments were made to this bill in the
Senate ?

A. — I do not.

Q. — Do you recollect how long before its passage that you showed the
I copy of the bill you speak of to Messrs. Hoge & Wilson ?

A. — I think it was about ten days ; I am not positive about that ; I am
only positive that it was before the bill passed.

JOHN E. COEYELL.

JOHN CONNESS, RECALLED.

Q. — Please state what you know concerning the passage of Senate bill
Ko. 73, the engrossed cojjy of which, marked (A,) is here exhibited, and
particularly what (if anything) you know concerning the Alcalde clause
of the same, attached and marked (W) by the Committee?

A. — As I stated in my examination before, I was a member of the
Swamp and Overflowed Land Committee of the House, to whom this
bill was referred ; was present in the House when it was considered, and
was a member of the Committee of Conference of the House on the dis-
agreeing vote of the two Houses in regard to this amendment reported
by the House Committee. The amendment so reported by our Com-
mittee and adopted by the House, is in my handwriting. I notice the
amendment marked (W) which is attached to the bill also. This amend-
ment marked (W,) relating to Alcalde grants, was not reported by our
Committee, was never before the House, was not before the Committee
of Conference, and was never passed upon by the body of which I was a
member. I do not know the handwriting in which the amendment

marked (W) is written.

JOHN CONNESS.

TESTIMONY OF JONATHAN D. STEVENSON.

Jonathan D. Stevenson, a resident of the City and County of San
Francisco, being duly sworn, deposes and says :

Q._Do you know anything concerning the passage of an Act to pro-
Ivide for the Sale of the Marsh and Tide Lands of this State, passed May
14th, 1861, if so, state what; and further, what you know, if anythmg,
concerning the Alcalde grant clause in the Act; also, what you know
concerning the property claimed to be affected by said clause ; further,
9

if you had any conversation with any party claiming lots under this bill,
either before or after its passage ; if so, please state it ?

A. — I do not know anything concerning the passage of an Act to pro-
vide for the Sale of the Marsh and Tide Lands of this State, passed May
14th. 1861, of my own knowledge, or of the Alcalde clause in said Act.
Of the property to be affected by said clause, I know as follows :

Since the commencement of the session of the Legislature of 1854,
there has been annually an attempt made by the persons interested
in the lands under Avater. affected b}" said clause, to procure the passage
of some Act that would bring the same within the water front of the
city, and, as a party interested in a portion of the block bounded by
Battery, Sansome. Lombard, and Chesnut sti'eets, I have been annually
called on to make a deed in trust, or otherwise, to parties who claimed
to have influence with the Legislature, of one third of my unsold in-
terest in said block, provided any law should be passed bringing it
within the water front of the city. My negotiations have, on each
occasion, been had with J. P. Manrow, Esq. Just after the com-
mencement of the Legislative session of 1861, Mr. Manrow called upon
me and informed me that an attempt would be made at that session to
have an Act passed, bringing said blocks within the water front of the
city, and I agreed, in the event of the passage of any siich Act, to give
one third of my interest in said property. Late in the session, Mr. Man-
row assured me that a bill, or an amendment to a bill, then before the
Legislature, would be passed, embracing a provision that would bring the
property in question Avithin the city front, and urged me to make my
deed for one third of my interest, as per agreement. Upon inquiring to
whom the deed should be made, Mr. Manrow informed me that Dr.
Coryell had charge of the matter at Sacramento, and he presumed that
the deed should be made to him. He said he would inquire, and let me
know. Some i'ew days after. Dr. Coryell came to San Francisco, when
Mr. Manrow desired me to make the deed to him. I did so, and left it
in the hands of a Notary, to be delivered in the event of the passage of
any Act that Avould bring that property within the city front. At this
time, and some ten days before the adjournment of the Legislature, 1
had an interview with Dr. Coryell, at the corner of Merchant and Mont-
gomery streets, San Francisco. I inquired of him if he had charge of
the matter in question before the Legislature ; he told me he had, and
that a bill would pass that would contain an amendment that would
bring the property in question within the water front. I had one or two
interviews with hiin on the same subject prior to the adjournment of the
Legislature, and I believe one some three days before the adjournment,
and on each occasion he assured me that an Act would pass, bringing
that property within the water front. I carefull}^ read the proceedings
of the Legislature, and not discovering the passage of any Act that
would secure the object desired. I supposed nothing had passed. Some
two or three days after the adjournment of the Legislature, both Mr.
Manrow and Dr. Coryell informed me that no bill had passed Avith any
amendment that would bring the land in question Avithin the city front.
When I say city front, I mean that would give us a title to use and pre-
pare the land for commercial or other purj^oses, or Avould confirm the
Alcalde grants. In the latter part of May, and after the adjournment
of the Legislature, .T. P. Manrow called on' me and said that Dr. Coryell
was organizing a company of monn/ed men for the purpose of procuring
the passage of a bill at the Legislative session of 1862, that would bring
that property within the city "front, but that such company would not

be formed unless the owners of property would sell their interests at a
moderate price, as they would not advance the funds that would be
necessary to carry through such a measure, upon the contingency of re-
ceiving a portion of the land. He requested me to think of it, and let him
know what I would take for my interest. I subsequently saw Dr. Cor-
yell, and he fully confirmed the statement of Mr. Manrow, and said that
it was a very doubtful project, that might never pass, and that himself
and the other parties that would be interested in the passage of such a
bill through the Legislature of 1862, could not afford to pay a high price
for the property as then situated. A day or two after. Manrow called
upon me for my answer as to the price I would take for my interest, and I
asked him two thousand or two thousand two hundred dollars, which sum
I do not now distinctly recollect. He laughed at the idea of such a price,
and we separated. I subsequently saw Coryell, who said my price was
too high, and that Wm. S. Clark and others, owning property in the same
situation, were willing to sell at a much lower price.

Finally, after several interviews with Manrow and Coryell, and after
consulting some confidential friends on the subject, who advised me to
sell, I did, on the 3d June, 1861, sell to John E. Coryell all my unsold
interest in the block bounded by Chesnut, Lombard, Battery, and San-
some streets, for eleven hundred and fifty dollars. The property thus
sold was about eleven lots on Sansonie, Battery, and Chesnut streets, of
twenty by sixty or eighty feet; the exact size I do not now recollect. The
deed was made and the money paid me on the od June, 1861. Some few
days after, Mr. Coryell called on me and said that as my deed to him had
not been placed on record, he asked me if I had any objection to make
him a new deed, putting in a larger consideration. I told him I would
do so ; he returned me the deed of od June for eleven hundred and fifty
dollars, and I made him another for the same projierty, inserting as a
consideration some two thousand or twenty-two hundred dollars, or
thereabouts ; which deed I presume is now on record. My sale, as made
to him, was predicated uj^on the positive assurance from himself and
Manrow that no Act or jiait of an Act had passed the Legislature bring-
ing the property within the water front of the city, and solely owing to
his representations that the parties who proposed to purchase for the
purpose of operating upon the Legislature of 1862, would not move in
the matter upon the contingencj' of receiving a portion of the land in
case of success.

J. D. STEVENSON.

TESTIMONY OF JOHN F. MC CAULEY.

John F. McCaulcy, a resident of San Francisco, being duly sworn, de-
poses and says :

Q. — Do you know anything about the passage of the Act to provide
for the Sale of the Marsh and Tide Lands of this State, passed May
14th, 1861 ? If so, state what.

A.— I know there was a bill of that character before the Legislature
of eighteen hundred and sixty-one. I don't know miich about the gene-
ral provisions of the bill. I looked at it in the Assembly after its pas-
sage in the Senate. I examined it only in reference to that provision in
regard to lands lying about San Quentin.

Q. — Do you know anything about the Alcalde provision in the Act ?

and when you made the examination you speak of, did you see that pro-
vision in the bill ?

A. — I only examined the amendment which excluded from sale and
the provisions of the Act, lands lying within one and a half miles of San
Quentin. I did not read the bill, but, as I stated, only the amendment
above spoken of. I have no recollection of seeing or reading any
Alcalde pi'ovision. It might, however, have been in the bill, and escaped
my attention, as I was looking after another matter, which interested
me, therefore I can say nothing certain as to whether there tv as or was
not an Alcalde provision in the bill.

JOHN F. McCAULEY.

TESTIMONY OF EDWARD P. FLINT.

E. P. Flint, a resident of the City of San Francisco, being duly sworn,
deposes and says :

Q. — Do 3"ou know anything of transactions in real estate in this city
affected by an Act to provide for the Sale of the Marsh and Tide Lands
of this State, jjassed May 14th, 1861 ? If so, state what.

A. — I know of some purchases made in July of eighteen hundred and
sixty-one, which, I suppose, came under that Act. I do not know that
they were Alcalde grants. I sold to John E. Coryell a lot, in July,
eighteen hundred and sixtj'-one, situated outside of Sansome street, be-
tween Lombard and Chesnut streets. That lot was deeded to our firm
in March, eighteen hundred and fiftj'-five, by William M. Burgoyne, a
banker, who failed, and being indebted to us, transferred this and other
property to us to secure indebtedness for bills of exchange. We took
it, not counting it of any value ; not supposing there was any title to
the lot. In July, eighteen hundred and sixty-one, a broker, J. P. Man-
row, asked us what we would take for it. We said five hundred dollars.
After some negotiation, the offer was accepted, and we made a deed of
the lot to John R. Coryell. This is all I know about real estate trans-
actions affected by this Act. I know nothing concerning the passage of
the Act. I saw that such a law had been passed. When I made this sale
I knew that such an Act had passed.

EDWARD P. FLINT.

TESTIMONY OF W. S. CLARK.

W. S. Clark, being duly sworn, deposes and says :

Q. — Do you know anything of real estate transactions in this city sup-
posed to be affected by an Act to provide for the Sale of the Marsh and
Tide Lands in this State, passed May 14th, 1861 ? If so, state what.

A. — After the publication of this Act in eighteen hundred and sixty-
one, I sold to John R. Coryell some outside lots, lying in the vicinity of
Lombard and Chesnut streets. When he applied to buy the property, I
told him I would take six thousand dollars. I owned two thirds of one
entire block, and some other interests in an adjoining block. He said he
would give me my price. I went into Judge Piatt's office to get the
conveyances made out. Judge Piatt read the Act, and asked me if I was
aware of such a law ? I told him I knew nothing of it, and cared less.
The lands I had held for some time. A greater portion I held from
original grants from Alcaldes, in early times, made to me. Others I had

purchased. One of the largest blocks, when I bought it, was supposed
to be on land, but when the survey was perfected I found that a small
portion, which I supposed to be on land, was covered by high tide ; at
neap tide was bare. I had laid out of my money a good while, and had
bought in good faith, and was glad to realize something. I was always
satisfied there Avas some mistake in the water line of eighteen hundred
and fifty-one at that place. I knew nothing of the passage of the Act
until its publication. I sold with a full knowledge of the passage of the
Act.

W. S. CLAEK.

TESTIMONY OF C. J. BRENHAM.

C. J. Brenham, being duly sworn, says: I am a Notary Public in
the City and County of San Francisco. About the latter part of
June last. Dr. Coryell brought to me a note from Major Hensley,
requesting me, as his agent, to make a deed of a certain lot in the
vicinity of Clark's Point, to Dr. Coryell, and take from him (Coryell) a
mortgage, containing certain conditions for the procurement of an Act
of the Legislature, which will fully appear in said mortgage. Major
Hensley informed me tliat he was not interested in the j)roperty, but
was acting in the matter ut the request of Moses Schollenberger, as
the Trustee for a minor to the estate of Townsend. About the fifth of
July, I had prepared the deed and mortgage, in accordance with the in-
structions of Major Hensley. J. R. Coryell jjaid one thousand dollars for
the deed, and signed the mortgage before me, as Notary. At the same
time, he proposed taking both papers and have them recorded ; which
was agreed to. A short time afterwai'ds, my attention was called to the
matter, by a publication in the Bulletin, reciting the deed from Hensley to
Coryell. I called upon Coryell for the mortgage. He promised to bring
it to me. Not doing so, I again called on him on the sixth September.
He handed it to me, and, to my surprise, I found he had failed to have it
recorded, as he promised. I immediately had it recorded on the sixth
September. I know nothing whatever of the passage of the bill.

C. J. BRENHAM.

J. p. MANROW, RECALLED.

The whole drift of my conversations with Colonel Stevenson (I had
several conversations with him,) was, that I had understood that Coryell
would not purchase ani/ except he could purchase all of the lots in ques-
tion. As I desired to sell my interest in the property, I was anxious
that Colonel Stevenson should sell, in order that I might sell my own.
I don't think that Coryell stated to me that a bill had or had not
passed. I inferred, from my conversation with Griffing, that no bill had
passed, he having been at Sacramento during the greater portion of the
session of the Legislature of 186 L I supposed the Grifiing bill was the
bill, and as that had not passed, I supposed no bill had passed on the

subject.

'' J. P. MANROW.

TESTIMONY OF O. F. WILLEY.

O. F. "Willey, a resident of the City of San Francisco, being duly-
sworn, deposes and says :

Q. — Were you a member of the Legislature of eighteen hundred and
sixty-one ? If so, state what you know, if anything, concerning the pas-
sage of An Act to provide for the Sale of the Marsh and Tide Lands of
this State, passed May 14th, 1861, and of the Alcalde provision therein
contained. State all you know touching this matter. The Senate en-
grossed bill is herewith exhibited to you, marked (A).

A. — My attention was first called to the bill by Mr. Phelps, at a meet-
ing of the San Francisco delegation, previous to the introduction of the
bill. He desired to know whether the bill met the views of the delega-
tion before he introduced it. A majority of the delegation was present,
and they decided to assist in j)assing the bill. Some time after, proba-
bly about a month, Mr. Phelps informed me that he expected that bill to
come up that day in the Assembly, and wished me to attend to it. Mr.
Flanders went to the Clerk's desk to get the bill, but it was not there.
He subsequently found it on Mr. Tilton's desk. At that time there was
one amendment attached to the bill — a Senate amendment. When the
bill came up in its order, Mr. Flanders moved that it be read a third
time and passed. Some member then moved an amendment, that the
proceeds of the sale of these lands be paid into some other fund than
the Swamp and Overflowed Land, as provided in the bill, which was
adopted by the Assembly. That is the only amendment that I can
recollect that was made in the House. I am positive that no amend-
ment referring in any manner to Alcalde grants was ever read to or
adopted by the Assembly while I was present. I w^as j)resent when the
bill was under consideration and passed. If any amendment had been
introduced or read in the Assembly, referring in any manner to Alcalde
grants, I should have noticed it and demanded an examination of it im-
mediately, for those grants, and the manner in which they had been
made, had occupied much of my attention, as it had of other citizens.

O. F. AYILLEY.

JOHN R. CORYELL, RECALLED.

Question, hy Mr. Soule. — In your answer to the third question pro-
pounded at your former examination, you stated that you knew that the
Alcalde provision (so called) was in the bill while it was in the Assembly,
and before the Committee of Free Conference was appointed. Please
state from what source you derived that information.

A. — I cannot say positively from whom I learned it, but think it was
from one of the Clerks.

Q. — Do you know that any other person was aware of that Alcalde
provision being in the bill prior to its passage ? If so, state whom.

A. — I cannot say positively that any other person knew of that pro-
vision being in the bill.

Q. — Did you ever have any conversation with any other person than
your counsel with reference to this j)rovision (the Alcalde provision) of
the bill prior to its passage, or with any person, touching the effect of
the bill upon property outside the water line of eighteen hundred and
fifty-one ?

A. — I had a conversation with Mr. Grifiing relative to the application

of such a bill to outside property. I also told J. P. Manrow that such a
bill was pending before the Legislature, and I expected it to pass. I told
this to Mr. Manrow, because he %Yas at the time acting as my broker, in
purchasing the outside property to be affected by this Act.

Question, hi/ Mr. Bank.'^. — Do you know who proposed that amendment
relating to Alcalde grants ?

A. — I do not.

Question, hi/ Mr. Soule. — Are you acquainted with Dr. Sorrell, the mem-
ber of Assembly from" Siskiyou County, in the Legislature of eighteen
hundred and sixty-one, and, if yes, did you ever have any conversation
with him ])ersonally, or any communication Avith him through any other
person on this question ?

A. — I know him xary well, but never had such conversation or com-
munication with him.

Q. — You say 3*ou had a conversation with Mr. Griffing relative to the
application of such a bill to outside property. Please state when that
conversation took place.

A. — I had several conversations with Mr. Griffing prior to the passage
of the bill.

Q. — What was the substance of those conversations, to the best of your
recollection ?

A. — I can only answer, in general terms, that the}' were relative to the
pendency of a bill the application of which would tend to the perfection
of those outside titles.

Q. — You saj' that James Dunlevy, one of the Copying Clerks of the
Assembly, made you a copy of this bill before it passed. Please state
where he resides now, if you know.

A. — I do not know. lie left here for the Xorth before the convening
of this Legislature, and I have since received a letter from him from
Victoria, but I cannot tell Avhere he is now.

JOHN E. COEYELL.

TESTIMONY OF SOL. A SHARP.

Sol. A. Sharp, a resident and Attorney of San Francisco, being duly
sworn, deposes and says :

Q. — Were you a member of the Senate of 1861 ? If so, do you know
anything concerning the passage of an Act to provide for the Sale of the
Marsh and Tide Lands of this State, passed May 14th, 1861 ? State, gen-
erally, all you know, if anything, about said Act during its pendency in
the Legislature, before or after its passage?

A. — I was a member of the State Senate in 1861. The only recollection
I have of the bill in question is, that about or soon after the introduction
of the bill, I heard the object was to remedy some defect in relation to
titles to Tide Lands, which defect or objection was discovered in the trial
of an action of ejectment in Eedwood City. I do not know from whom
I first heard this ; it was either from some of the counsel in, or parties to,
the ejectment suit. I have also a vague recollection of some discussion
in relation to an amendment made in the Senate, exempting lands near
San Quentin, and San Francisco, and Oakland, from the operation of the
bill. I have no recollection of the bill, or any action upon it, except as
stated. I have no knowledge or recollection of the clause of the bill
relating to Alcalde grants before the passage of the Act, and never, in
fact, heard of it until long after the adjournment of the Legislature, when

certain publications concerning it appeared in the Evening Bulletin and
other papers. I do not believe that clause was in the bill Avhen the bill
passed the Legislature, but cannot say that it was not, because I do not
know the fact. From my acquaintance with the members of the vSenate
last year, I do not believe such a bill, with the Alcalde clause in it, would
have received the sanction or support of one tenth of the Senate, or, in-
deed, of any one Senator. Whilst a member of the Senate, last winter,
I introduced two or three bills extending the water front, and affecting
property near North Point, and outside of the water line. The bills were
introduced at the request of parties claiming an interest in the property,
at the time of their introduction. I told the parties that the bills would
not pass, and that I would oppose them. None of these bills passed.
After the adjournment of the Legislature, and after my attention had
been called to the Act in question by the publications in the papers, I
was employed as lawyer by a client OAvning property on the inside of,
and bordering upon, the water front, to examine the Act, and also to
investigate the facts and circumstances connected with its passage.
Whilst engaged in this. Dr. Coryell came to my office with one of my
clients, and a negotiation was had between this gentleman and Dr.
Coryell, in relation to settling the matter, so far as my client's property
was concerned. Pending this negotiation. Dr. Coryell, to induce me
to believe that the bill was regularly passed, exhibited to me what he
then said was an exact cop}^ of the enrolled bill, which he had caused to
be made soon after its passage. My client declined purchasing from Dr.
Coryell, and did not purchase.

SOL. A. SHAEP.

REPORTS

THE COMMITTEE ON PUBLIC MORALS,

RELATIVE TO

THE SUNDAY L

A.SSEMBLY.

R E P O H T,

BY MESSKS. LOEWY AND KENDALL

Mr. Speaker : — Your Committee on Public Morals, to whom was re-
ferred Assembly bill No. 11, an Act to repeal an Act entitled an Act for
the obsGi'vancc of the Sabbath, and also memorials for and against the
passage of said bill, and also several bills, which propose to amend the
Act for the observance of the Sabbath, beg leave to make the following
report :

As practical legislation — i. e., legislation applicable to the necessities
and the wishes of the people — must always be the first aim of the law-
making power in a J^cpublic, 3'our Committee could not, in the consid-
eration of the subject-matter submitted to them, ignore the fact that the
Act for the observance of the Sabbath is at present entirely disregarded
and inoperative. Being justified in assuming that the people of this
State are as law-abiding as any who live under a free Government, and
who are themselves the creators of the Legislative power, your Commit-
tee cannot but believe that the general disobedience manifested against
the Act for the observance of the Sabbath, has its foundation, not in a
spirit of lawlessness on the part of our population, but in the Act itself;
and it has, therefore, been the task of your Committee to investigate
whether the defects of the law arc such as can be remedied by Legislative
modifications, or whether they are the result of a conflict between its
provisions and the fundamental ])rinciples of our Government.

It Avill be objected, by those who implicitly believe in the infallibility
of judicial decisions, that any investigation, which has reference to the
constitutionality of the Act, is unnecessary, since this question has been
decided by the Supreme Court of this State, during the year eighteen
hundred and sixty-one, and by the unanimity of the decisions in other
States. Your Committee, by pointing to the precedent afforded them by
the Legislature of eighteen hundred and sixty-one, which enacted a Sun-
day Law in principle indentically the same as that which the Supreme
Court of this State had declared unconstitutional in eighteen hu.idred
and fifty-eight, might be justified in claiming for each Legislature the
right of interpreting the Constitution, which they have individually
sworn to support, were it not the aim of your Committee, by an earnest

and well-founded appeal to the Constitution, to place the innate rights
of the people beyond the control of any branch of Government, rather
than to protect it by taking advantage of the inconsistencies of Legisla-
tures, or of the Judiciary.

Under our institutions, neither the Legislature nor the highest judicial
tribunal possesses unlimited power. Certain innate rights of the people
are reserved by the Constitution as inviolable. Whenever the ])CopIe
believe that one of these inalienable rights, as, for instance, the free exer-
cise of religious worship, or the right to acquire and possess property,
has been infringed, they will not content themselves with a decision of
the highest appellate Court, approving of such an infi-ingement ; but
they will inquire into the motives of the Court, as manifested in its
decision. The permanency and the inviolability of a judicial decision
are insejiarably connected with the reasons by which it is su]>|>orted.
We wouhl, therefore, in answer to the argument that the constitution-
ality of Acts for the observance of the Sabbath has been decided, point
to the arguments of the Courts themselves, as evidence of the j^f^werful
influence which has been exercised upon such decisions by those per-
sonal convictions of religious duty, which even Judges may often be
unable to sepai'ate from a judicial investigation of constitutional rights,
especially when their individual feelings may fortily themselves by a
judicial pi'ccedent. Li no constitutional question which has ever come
before the Supreme Courts of the dilferent States of the L^nion, has the
decision of the Courts been so liable to be influenced by the individual
feelings of the Judges, in regard to religious duty, as in the question of
the constitutionality of the Sunday Law. Men who have grown up and
have been educated in the belief tliat God commanded us to observe the
day called Sunday by abstaining from all secular labor and all worldly
recreations, will probablj' not investigate very careful!}' and jealously
the constitutionality of a raunicij^al law which enforces the t/eueral
observance of that day in conformity with their own ideas of religious
dut}'. It is not venturing too much to assert that the Supreme Court of
Ohio, the second State in which a Sunday Law has been enacted, was
as much influenced in confirming the legality of the Act by the single
precedent of the State of Pennsylvania, because it coincided with its
own feelings of religious duty, as the Supreme Court of California has
evidently been influenced by the numci'ous precedents of the Eastern
Courts. But your Committee do not content themselves with reasona-
ble conclusions derived from the rules which govern human actions, but
they have also examined the vSunday Laws of the different States, and
the decisions upon them by the respective Supreme Courts, and they
have almost invariably found a feeling of religious duty to be the mani-
fest source from which those decisions emanated.

In the year eighteen hundred and nineteen, the Supreme Court of
New Hampshire declared the statute of that State as constitutional,
which authorized Selectmen and Tithingmen. within their respective
precincts, forcibly to stop and detain any person or persons whom they
shall suspect of travelling unnecessarily on the Lord's day. (liep. 1,
Mayo vs. Wilson et al.)

The Supreme Court of Maine, in eighteen hundred and forty-eight,
used the following language in its decision touching the constitutionality
of the Sunday Law :

" There can be no excuse for any attempt to destroy, by a forced con-
struction of the language, the effect of an enactment so suited to enable
man to derive the benefit designed to be bestOAved upon him by Provi-

donee, in the consecration of the Lord's Day to the duty of doing goo 1.
. and of socking endless happiness, in accordance with the precepts of the
gospel of otir Lord Jesus Clirist." (26,467.)

The 8u])reme Court of Iowa says :

"A day so sacred— a day established by laws both human and divine,
i'nv public worsiiip and private devotion — should be held in especial von-
ciation by legal tribunals." (18-15), Davis vs. Fish, Green Rept.)

7\nd in Connecticut, the Supreme Court declared, in eighteen hundred
and thirty -five, tlie law which empowers grand jurors to arrest, on sight,
pc.-sons unlawfully travelling on the Sabbath, to be constitutional.
(Ward vs. Green, 454.)

It will at once appear manil'est to every impartial mind, that reasons
so ])alpably i-eligious as those just stated, would not be considei-cd, in
this State, as harmonious Avith the spirit of our institutions and Avith the
interpretation which the sense of the people places upon their charters
of liberty. It cannot for a moment be entertained, that laws wliich
]i;;)hil)it travelling on Sunday, and which authorize grand jurors to
ai rest persons suspected of unnecessarily travelling on that da}', would
receive judicial sanction in this State; nor is it to be expected that
the people of this State would pa}'' any respect to them, even if they
were so sanctioned — for such laws would, almost by the unanimous voice
of the people, be condemned, as infringements upon their guaranteed
liberties. And 3'et. such, and other equally stringent laws, exist in some
States, and have there been held constitutional.

Such aj^parent violations of our Constitutions, as avc understand them,
can only be explainetl by the comparative uniformity of tiie character
and education of the peo])le of those States. If a large majority of the
people of a Slate arc of the same cast of mind and of religious convic-
tions— and if, consequently, laws which embody such convictions, meet
a general acquiescence, although they may not be strictly in harmony
with the spirit of a Constitution which guarantees certain innate rights,
.as well to the few as to the many, nevertheless, the people of other
States have no right to object to such laAvs, inasmuch as the latter do
not interfere with their own liberties. But we have, indeed, the right
to insist that such laws, and that decisions declaring them constitutional,
shall not be used against ourselves, as precedents in favor of similar en-
actments in our own State, the population of Avhich is far from being
uniform in its convictions respecting social and religious questions.

Inasmuch, therefore, as the pitl\ of almost every decision upon the
constitutionality of the Sunday Law is contained in the assertion of the
Supreme Court of Maine, that the object of the Sunday Law is '-to ena-
ble man to derive the benefit designed to be bestowed upon him by
Providence, in the consecration of tlie Lord's Day to the duty of doing
good, and of seeking endless happiness, in accordance with the precepts
of our Lord Jesus Christ ;" and, inasmuch, as a professedly religious law
would never meet with the sanction of either the Supreme Court or the
people of California, your Committee are justified in the hope that the
decisions of Supreme Courts, in regard to the constitutionality of the
law, shall not be conclusive upon the mind of the Legislature — a request,
the more reasonable, as the decisions of the Courts upon this question
have often been contradictory.

The City Council of Charleston, South Carolina, passed an ordinance
prohibiting all Avorldly employments on the Lord's Day. In eighteen
hundred and thirty-six, Judge Eice decided that the ordinance was
unconstiluLional and void. Ilis opinion is elaborate and able. This

decision has been reversed, by an opinion based upon religious argu-
ments. A similar ordinance to that of Charleston, was declared uncon-
stitutional, at Pvichmond, Virginia. The Supreme Court of Ohio, in the
fifteenth volume of her reports, by Griswold, p. 225, (The City of Cincia-
nati vs. liice,) declared a like ordinance void as against those who con-
scientiously observe the seventh day of the week as the Sabbath. In
Lyon vs. Strong, Vermont Eep. G, (1835,) Mattocks, di.ssenting, said:
" Whether religion is a safer basis to found a Government and the laws
upon than liberty and the voice of the people, it is not for us to decide.
But it is well known that our Government and laws are not founded
upon religion, as avc have no test or standard 6f belief, by law estab-
lished." We shall have occasion, in this report, to refer to the decision
in our own State, delivered in eighteen hundred and fifty-eight, which
declared the Sunday Law unconstitutional. After examining the pro-
fessed motives of the dilterent statutes and decisions, it is for us to judge
whether the assertion, that a Sunday Law has no reference to religion,
is well founded. Your Committee believe they have shown the contrary in
a sufficient degree to entitle them to the patient attention of this honor-
able Assembly, in their investigation of constitutional principles involved
in the law, the consideration of the repeal of which has been submitted
to their consideration.

The first of the objections presented against the Sunday Law, namely,
that it expresses a preference for a particular religion, by enjoining the
observance of ;V.s Sabbath on all other creeds, and that it is therefore in
conflict with the spirit of our institutions, and es])ecially with the Fourth
Section of the First Article of our State Constitution, which reads thus:
" The free exercise and enjoi/mciLt of religious profession and worshijj, loitliout
discrimination or preference .^ shall he forever allowed in (his State" — is met
by the answer, that a law to abstain from secular vocations on Sunday,
is not a religious, but a secular law, for the promotion of health and
good morals, and that the fact that at the same time it incidentally pro-
motes i)iet3', does certainly not make it unconstitutional. We are very
willing to admit, that if the Legislature have the right to prohibit the
exercise of all secular pursuits on any day, it can be no objection that
they have appointed the day on which a large portion of our 2)opulation
engage in religious worship, as by the selection of this day, the least
amount of inconvenience and injury to pecuniary interests would be
produced. It is not the selection of Sunday, as a day of compulsory rest,
to which we ol)ject, as being in violation of perfect religious freedom, but
we contend that a Legislative commandment, jirohibiting on ant/ day the
exercise of pursuits which are lawful on other da3's of the week, is
against the spirit of the Fourth Section of the First Article of our Con-
stitution.

Constitutional guarantees are not intended to preclude mez-ely the entire
destruction of innate rights, but to prevent any indirect interference with
their practical enjoyment. If the Legislature assume the power of limit-
ing or taking away the means of enjoying a guaranteed right, the guar-
antee itself would be of little value. It is the duty of the Legislature to
take notice that our society is divided into different religious creeds j
that tlie principal mode in which each of these creeds exercises its faith,
practically, is the observance of one da}'^ in the week as a day of Divine
worship; and that the various creeds regard different days as sanctified
by the commandment of God. It must be equally well known to the
representatives of the people, that no citizen, unless he be in possession
of an independent fortune, is able to suspend his vocations on more thaij

one day in the week. In order to support their families, and provide
them not only with the necessities but with the comforts of life, the mer-
chant, the trader, the mechanic, and tlie laborer, must work six days in
the week. Only by working six days are they enabled to conf/rni to
their religious faith; which makes it their duty to attend the services of
their church on a certain day of the week, be this Sunday, or Sa urdav,
or Friday, or an}' other day, which any of the present or the future oreeds
may consider as sacred; therefore, if we compel them to abstain fr >m the
pursuit of their business on a day which is not their Sabbath — b r pre-
venting them, not directly, but indirectly, from observing their own Sab-
bath, do we not restrain their religious liberty ? But it is said, b/ the
friends of the law, that it does not prevent any one from suspending his
vocations on his Subbath, though it be not Sunday, nor that it interferes
with the freedom of religious woz-ship on any da}', but that it only com-
pels every individual to rest on the day designated b}' the Legislature.
This woukl be a tilting argument for a Government like Austria, but not
for tlie Legislature of a Kepublic. whose liberties and constitutional guar-
antees are not intended to be mere paper promises, to be interpreted,
modified, and evaded, according to the pleasure of each administration.

Constitutional guarantees are the only restraints upon the Legislative
power, which would otherwise be unlimited; and the}' ought, therefore,
to be construed rather in favor of individual liberty, as far as it does not
endanger the safety of the community. What, indeed, becomes of the
substance and the value of the constitutional guarantee, which secures to
every one a perfect freedom of religious profession and worship, if the
citizen is indirectly deprived by the Legislature of the means of observ-
ing the Sabbath, Avhich his own faith prescribes? For, a law compelling
a citizen to abstain from his business pursuits on a certain day of the
week, which is not his Sabbath, is, in reality, as effectual in preventing
him from observing his own Sabbath, as if it were a direct prohibition of
the exercise of his religious professions. It is not for us to inquire how
many there are in thi^ State whose day of religious worship does not
coincide with that appointed by the Legislature. It is entirely imma-
terial whether there are hundreds, or thousands of them, inasmuch as
constitutional guarantees were made for the protection of the minority,
against the arbitrary assumptions of the majority. A single individual,
w'hose faith tells him to observe a day other than the one appointed by
the Legishiture, is as much entitled to the fullest enjoyment of the con-
Btitutional guarantee, without any prejudice resulting to his civil rights
from his religious belief, as if he represented any large class of religious
believers.

In the minority report of the Committee of Congress, to whom were
referred •> .Memorials for prohibiting the transportation of the Mails and
the opening of Post Offices on Sundays," of Avhich report. Col. Johnson,
afterwards twice elected Yice-Pre.sident of the United States, was the
author, and Avhich, it may not be inopportune to state, was adopted by
Congress, we find the following indorsement of our opinion of the libe-
rality and beneficence of American institutions:

'' The Constitution regards the conscience of the Jew as sacred as that
of the Christian, and gives no more authority to adopt a measure affect-
ing the conscience of a solitary individual than that of a whole commu-
nity."

If the freedom of religious profession, for which humanity has struggled
80 many centuries, and upon which this llepublic has been founded, means
but ft sufferance of all religious creeds, then the most powerful deuomi-

nation might be expected to make its Sabbath observed by all, and nobody
would liave a right of complaining, as long as he is not directly forbidden
to exercise the tenets of his own faith; but, if freedom of religious pro-
fession implies the practical enjoyment of all civil rights in spite of any
religious opinion, then a law forbidding every citizen from exercising his
vocation on a day which, since time immemorial, is identified with a
religious denomination, is a serious infringement upon the religious liberty
of the individual.

If it is the intention, as it undoubtedly is, of the majority of those who
advocate a Sunday Law, that Sunday, as the Sabbath of a very large re-
ligious creed, should be generally respected, they have chosen a method
which Avill directl}' counteract their purpose, for, whenever a religion, to
extend its influence, solicits the authority of the civil power, it creates
discontent, jealousy, and antipatby.

Macauley says, in his great Essay on "Church and State:" "Christian
instruction, given by individuals and voluntary societies, may do much
good; given by Government, it would do unmixed harm."

The progress of true religion is retarded in the same proportion as it
allies itself to civil power. Without an absolute separation of Church
and State, there can be no cotemporary existence of civil liberties and
the beneficent influence of religion upon the human heart. /

"A Jewish monai'ch," says the report of Vice-President Johnson, before
qitoted, " by grasping the holy censer, lost both his sceptre and his free-
dom ; a destiny as little to be envied may be the lot of the American
people, who hold the sovereignt}' of powei-, if they, in the persons of
their representatives, shall attempt to unite, in the remotest degree,
Church and State."

A Sunday Law would again link together what our institutions intended
to be entircl}- separate; it would be a precedent for whatever restrictions
the civil power might in future choose to place upon the free manifesta-
tion of our religious opinions.

" If Congress," sa3's the same report, " shall, by the authority of law,
sanction the measure recommended, it would constitute a Legislative de-
cision of a religious controversy in which Christians themselves are at
issue. However suited such a decision ma}^ be in an ecclesiastical
council, it is incompatible Avith a republican legislature, which is purely
for political, and not religious purposes. In our individual character, avo
all entertain opinions and pursue a corresponding j^racticc upon the
subject of religion. But in our representative character, our individual
character is lost. The individual acts for himself, the representative for
his constituents. He is chosen to represent their political, and not their
relifjious views — to guard the rights of man, not to restrict the rights of
conscience. The history of the world furnishes the melancholy demon-
stration, that the disposition of one man to coerce the religious homage
of another, springs from an unchastened ambition rather than a sincere
devotion to an}' religion."

The following citations from authorities of the Protestant Church
ma}' not be inoj^portune, in corroboration of the assertion of Vice-Presi-
dent Johnson, that the Church is by no means united in advocating so
severe an observance of Sunday as the friends of the present Sunday
Law desire to inflict upon the people :

"Archbishop Crannier i-equired of the clergy to teach the people that
they would grievously offend God if they abstained from working on
Sundays in harvest time." — Cranmer's Visitation Articles.

Jeremy Taylor says : " The Lord's Day did not succeed in the place of

tl)e Sabbath, but the Sabbath was abrogated. The Lord's Day was
merely an ecclesiastii-al institution."

Palcy says: "Cessation, upon Sunday, from labor, boj^ond the time of
attendance upon public wor^^hip, is not intimated in any passage of the
New Testament, nor did Christ or his apostles deliver any command to
their disciples, for discontinuance, upon that day, of the common offices
of their professions." Again: "The resting on that day from our em-
])loyment longer than wo are detained from them by attendance upon
public worship, is to Christians an ordinance of human institution." —
Mor. Ph., V. 7.

If it is desired to disseminate and strengthen in society the respect
wliich is considered as due to the day so identitied with rest and recrea-
tion from daily toils, we would, impelled by a sincere veneration and
houKige to that da}'. ui-ge the necessity of winning for it the universal
syni|)athy and affection of the people by the exercise of the virtues
enjoined l)y the great Teacher of Christian Moi-ality.

" When they shall have so instructed the public mind," says Vice-
President Johnson in his rej)ort, *• and so awakened the consciences of
individuals, as to make them believe that it is a violation of God's law
to carr}" the mail, open post offices, or receive letters on Sundays, the
evil of which the}' complain will cease of itself, without any exertion of
the strong ai'm of civil ))ower."

Your Conunittee fully know that it was not the intention of the Legis-
lature to put a restraint upon the free exercise of religious profession;
for surh an intention can never be the motive of an Act of an American
]jegislature. But if the Act for the observance of the Sabbath, m its
natunil and practical effect, curtail the religious freedom guaranteed by the
Constitution, it is as much a violation of the Constitution as if this vio-
lation had been the intention of its makers.

The Legislature of a llepublic ought to avoid even the semblance of
interference with the religious freedom of the people. The Act for the
observance of the Sabbath bears on its very face enough of a sectarian
character to justify the belief which is so prevalent among a large poi*-
tion of our population, that it is a law intended to favor one particular
religion, and to compel otiier creeds to conform to a principal require-
ment of that religion. This belief is the more firmly impressed upon
the minds of our "foreign-born citizens, since in all European countries
the Sunday Law is exclusively and professedly an enactment for the
benefit and the protection of the State Church. Is it to be wondered at,
that our adopted citizens consider the Act for the observance of the
Sabbath as exceedingly intolerant and oppressive in a free country?
Throughout Continental Europe, as well in Catholic as in Protestant
countries, the Governments, although not restrained by constitutional
guarantees, have never attempted to prohibit the exercise of secular pur-
suits through the entire Sunday. Only in the morning, during church
time, must all business places be closed. But those Governments are
satisfied if only an outward respect be paid to the reigning church, by
closing the doors fronting on the street; and they allow the merchants
■vvho wish to do business during church time, to hang out notices at their
front doors, informing the public that the entrance to the store duiing
church time is in the rear. Even the Autocrats of Europe do not at-
tempt to restrain unnecessarily the freedom of the individual in his
domestic or business sphere; they know full well that a general Sunday
Law, especially if it prohibited the keeping open of places of arause-
2

ment on Sunday, -would produce discontent dangerous to the peace of
society and to the permanance of their Governments.

The Legislatures of Massachusetts, New York, and other States, were
so well aware of the actual resti-aint imposed by the Sunday Law upon
the free exercise of the religious profession of many of their citizens,
that they exempted from its provisions all those who conscientiously
observe the seventh day of the week, if they do not interfei-c with
others in their observance of Sunday. (Parsons on Contracts, vol. 2,
p. 262.)

Let those who insist upon their right to compel every citizen to close
his place of business on Sunday, because they worship on tl)at day, re-
flect upon the effect of the recognition of their demand by the Govern-
ment. If it be admitted that all religious creeds in the United States
stand upon a basis of equality, and that they are all equally entitled to
the protection of the Government, and if we keep in view that the will
of the majority has no application to religious matters, nor to any right
guaranteed by tiie Constitution, would not the Jew be as much justified as
the Cliristian in asking of the (iovernment to close all places of business
on tiie day whicii he observes as a Sabbath ? IIow can a free Government
escape from the alternative of either giving one religion a great advan-
tage over other creeds, or of granting the same privilege to all profes-
sions, and thus disturbing the whole sj'steni of society, in any other
way than by refusing to interfere in behalf of, or to enforce the general
observance of the Sabbath of any denomination ? Let each one do what
his religious feelings impel him, without reference to the legitimate
doings of his neighbor. Such perfect toleration will best advance the
progress of religion and the predominance of the purest faith. Those
who observe Sunday, enjoy even now a great advantage over creeds
observing other days, because a far greater number of people suspend
their business on Sunday than on other da3's, whereby their loss of busi-
ness is much less than of persons whose Sabbath falls on any other day
of the week.

It is an undeniable proposition, that if this law,- in the least degree
interferes with the religious liberty of any class of our citizens, as wo
have shown to be the case, whether such interference be intended by the
Legishiture or not, it otfends against the spirit of our institutions. But
it is insisted by those advocates of the law who feel the force of this
proposition, that there is no religious element in this law, but that it is
purely a civil regulation, for the promotion of the welftire and the health
of our communit}'. We desire to call to the consideration of those who
argue thus, the words of our Supreme Court, which, in eighteen hundred
and fifty-eight, declared a law, almost identical with the present one,
unconstitutional :

''■Had the Act been so framed as to show that it tvas intended, hy those icho
voted for it, as simpJi/ a municipal regulation, yet if, in fact, it contravened the
provision of the Constitution securing religious freedom to all, toe shoidd leave
been compelled to declare it unconstitutional, for that reason."

But, regarding this law merely as a civil regulation, does it, even as
such, bear the test of our Constitution ? Is it not an infringement on
the right, also guaranteed by the Constitution, to acquire, possess, and
protect property ? Labor and time are indispensable elements for ac-
quiring property, and if the law compels an individual to suspend his
vocations during a portion of the week, it takes from him a certain
portion of the means to acquire property.

If the Legislature have at all the power of limiting the time which
citizciiH may employ for the acquisitiou of propertj^, wo must come to
the conclusion tliat this power is unlimited. Between the prohibition of
business ])ursuits on one day, and their prohibition on two days, there is
no difference of Legislative power. Either the Legislature has the power
to prohibit the pursuit of business on as many days as it may please, or
it has not the power at all. If this power be vested in the Legislature,
would not the right of acquiring property, solemnly guaranteed by the
Constitution, be dependent upon their pleasure? In Billings vs. Hale, 7
(Jal., p. 1, the Court declared :

'• 7 haf. (imoiKj tlic. iiKdifnable n'l/hts declared by our Constitution, as hdonjing
to each viti::<'a.;us (i ri<jkt of acquiring, possessinj, and protecting property. Thai
j'i>r the Constitution to declare a right inalienable, and, at the same time, leave the
Ljislaturc unlimited power over it, would be a contradiction in terms, an idle pro-
vision, showing that a Cotistitution was a mere parch)7ient barrier, insnjjicient to
protect the citizen., delusive and visionary, and the practical result of ivhich would
br. to destroy, not to conserve, the rights it vainly assumed to protect."

But the Court which pronounced the present Act constitutional, ar-
gues that the appointnient of a day on which all labor must cease, is
merely jjrescribing the mode in which the people should use the right of
acquiring, possessing, and protecting property, and that it is not to be
expected tliat the Legislature would any more abuse the right of ap-
pointing a day of rest, than that of imposing taxes. Can the taking
away of a considerable portion of a guaranteed right be considered as a
mere regulation prescribing the mode in which this right should be en-
joyed ? if such an argument be tenable, what, then, is the difference be-
tween taking away a right, or a portion of it, and prescribing the mode
in which it is to be enjoyed ? If taking away the seventh portion of the
right to acquire property is merely a regulation of the mode in which it
should be enjoyed, then the taking away of one fourth, or one half, of the
right, or the entire suspension of it, is likewise a mere regulation in re-
gard to the mode of the enjoyment of the right. The cotemporary ex-
istence of both — the guarantee of the Constitution to acquire property,
and the right of the Legislature to limit or take away this right at
pleasure— are therefore irreconcilable. Either one or the other must
succumb. The question therefore to be considered is, whether the Con-
stitution, or its creature, the Legislature, shall be superior. But it is at-
tempted to evade these considerations by special pleading. Has not the
Legislature the unlimited power of taxing the citizen to the whole
amount of his property, and is not the fear that it might tax the citizen
just as groundless as that it would command the suspension of business
on two or three days of the week ? Is this reasoning correct ? We
think that the Legislature has not the power to tax the citizen to the
whole amount of Ins pro])erty, or to tax him even exorbitantly ; for such
taxation would likewise violate the guaranteed right of our Constitution,
to acquire, possess, and protect property. This right would be a com-
plete farce if the Legislature had the power of depriving the citizen of
bis property under the pretence of exercising its power of imposing
taxes. The power of raising exorbitant taxes, or of taxing the citizen
'to the whole amount of his property, is the power to confiscate the prop-
erty of the citizen, which power the Legislature does certainly not pos-
sess. In the decision upon the constitutionality of the Sundaw Law,
the Supreme Court said, in eighteen hundred and fifty-eight :

" While we concede to the Legislature all the supremacy to ivhich it is entitled,
' toe cannot yield to it the omnipotence which has been ascribed to the British Par-

liament, os Jong as loe have a Constitution which limits its powers, and places
ccrtavn innate rights of the citizen hei/ond its control:'

Waiving the question of constitutionality for the present, we propose
to investigate, whether there exists any necessity in this State for a civil
regulation prescribing the suspension of all business pursuits on Sunday.
If this regulation has not in view the fostering of any religious profes-
sion, its motives can only be, either to establish peace and order on that
day, or to enable employes, and the laboring classes generally, to enjoy
a day of rest. If it be the purpose of the Act to establish peace and
good order, it becomes our duty to inquire, whether the day called " Sun-
da}" has heretofore been marked by such violations of peace and order,
that for the suppression of them, a special enactment is Mpquircd, com-
pelling the suspension of business on that day. To justify such a mea-
sure, it would be necessary to prove, from the police records of the whole
State, that on the average, there have been, during past years, more
offences against the public peace committed on Sundays than on any
other day ; or that it has been exceedingly difficult or impossible for the
municipal authorities of our towns and cities to preserve and enforce the
public peace on Sundays. It is the dut}' of the police, and the police
judges, to Avatch over the peace of the community on every day of the
week. When the guardians of the public peace, in spite of their ener-
getic efforts, find themselves unable, by the means at their di.sposal, to
maintain public order and tranquillity, then, and only then, it becomes
the duty of the law-makuig power to devise other and more effectual
means than those heretofore within the power of the municipal authori-
ties, by which the laws may be enforced. But it must be indeed a very
lawless state of society on Sundays, which could only be cured by the
compulsory closing of all business places. Has such a condition of
things ever existed in California, since, under American rule, it has
passed from the chaos of its primitive existence into the life of a civil-
ized and peaceable community? We are justified, by personal observa-
tion and by such information as we have been able to gather, in assert-
ing that Sunday in California has been as peaceable a day before the
enactment of a Sunday Law, as any other. We are not aware that any
community in California has been guilty of such offences against statute
or municipal law, on Sunday, as will justify the lawgivers, with the view
to tiie ])ro])er enforcenient of peace and good order, to suppress the jjur-
suit of legitimate professions on Sunday. Why, then, should the sus-
pension of a legitimate vocation on Sunday not be as voluntary as on
Christmas, New Year's, or Thanksgiving -Day? The fact that a great
many voluntarily suspend their vocations on those days, is no lawful
reason why we should compel others to observe them in the same man-
ner. For if we discard the idea that State and Church are henceforth to
be united again, and if, therefore, the general observance of those daj'S
cannot be enforced on the ground of their religious sanctitj'^, we do not
know of any consideration, short of the safety of the State, which would
justify such a restraint of civil ]ibert3^ But it may be said, that there
are mining camps and thinly-populated towns in the State, where Sun-
day has always been disgraced by dissipation, rowdj'ism, and barbarous
amusements. Assuming such to be the fact, Ave are justified in believing
that such a condition of things is made possible only by the neglect of
the police and other proper authorities to enforce the laws. There is
every reason to believe, that wherever the municipal authorities do their
duty, conscientiously and energetically, good order can be preserved as
well on Sunday as on other days. In no civilized community are bar-

barons amusements, as bull fights, prize fights, or such indecent and de-
moralizing performances as characterize' 'most of the so-called melo-
deons, permitted on any day; they are, therefore, not characteristic of
the non-observance of Sunday, but of the non-observance of the first
regulations of a civilized community, and of the delinquency of the guar-
dians of the public peace. But we do not believe that an entire people
should be subjected to reguhitions restraining its liberty for one day in
the week, because a small portion, in certain localities, "has been guilty
of disturbances of the peace on that day.

If the purpose of the Act for the observance of the Sabbath be not
the enforcement of order, but to afford emploj-es a day of rest, and thus
improve the health and well-being of the community, it becomes our task
to investigate, whether this pur|)ose can to an}' extent be obtained by
any law. and by the existing law in particular. By far the largest class
of employes are domestic servants. They are not in the least protected
by this law, nor could the}' be unless the law command all families to
release their servants on Sunday tVom their domestic duties, and to give
them the freedom of that day. We have never heard complaints about
oppression, from this class of employes, and therefore presume that
they have a satisfactory understancling with their employers, as to the
time allowed them for rest and recreation. Why should we not leave
other employes to make their agreement upon this subject, with their
employers, as well as the domestic servants. Has the store clerk less
intelligence, less ability, to defend his rights and oppose the unjust
demands of his employers, than domestic servants i* In a country where
every class of woi-kinginen foi'm a combination, in order to protect them-
selves against the contingency of oppressive demands of their employers,
there is no reason to fear that the merchant's clerks would allow them-
Bclves to be deprived of rest necessary to their physical welfare. The
Supreme Court of eighteen hundred and fifty-eight, in their decision
declaring the law unconstitutional, use the following language :

''i^/TC (ijcnts must he left free as to themselves. If they cannot be trusted to
rejulate their own hibor, its time and quantitt/, it is difficult to trust them to make
their own contracts."

It is indeed the merchant's clerk alone whom the law attempts to
protect, because, aside from the domestic servants, it does not extend its
benefit to many very numerous classes of laboring men, as, for instance,
the employes in hotels, restaurants, taverns, stables, railroads, stage and
omnibus lines, in the law offices, and other vocations; for all these
branches of business are, directly or indirectly, exempt from the effect
of the law. If even those whom the law intended to benefit, are not
beneficially affected by it, we must admit that it has no vitality. Even
in regard to the merchant's clerk, the Sunday Law is ineffectual, and must
necessarily be so, for unless it absolutely forbid the merchant to employ

I his clerks on Sunday, in any manner, he may employ them on that day
for the purpose of arranging and marking goods, book-keeping, copy-
ing, etc.
This law not alone does not prohibit the employing of clerks on bun-
day, but not even the keeping open of stores; it only prohibits the keep-
ing open of stores for the transaction of business. If the lawgiving
power deemed it a duty to secure to the laborer a day of rest, why take
from him the means of enjoying it by closing all public gardens and pub-
lic places of amusement? Eest is a very relative idea. Its kind and its
quantitv depend as much upon the nature, the profession, the circum-
stances^ and the taste of men. as the kind and quantity of food and slee-p.

The man who duriiii^ the "week has been toilino; at his workbench from
morning until night, the miner, whose vocation subjects him to every
kind of exposure and hardship, and all others who earn tlieir daily
bread by tlie sweat of their brow, need on Sunday a relaxation. Avhich
will necessarily be adapted to the nature and the demands of their re-
spective professions. We cannot but consider it unjust and injurious to
the laborer to prevent him from enjoying such reasonable recreations a8
his taste and the character of his daily toil may indicate. Those whose
means and time allow them on every day of the week the enjojnnent of
every pleasure which money can procure, of course do not feel any hard-
ship from the closing of places of amusement on Sunday, for to them it
is a recreation to remain within their houses on Sunday, and gather new
vigor for the pleasures awaiting them during the ensuing week.

The proposition that amusements desecrate the Sabbath, ought not to
have the consideration of those who wish to judge this question with
the liberality of men who appreciate the liberty of conscience. Those
who believe that Sunday should be exclusively devoted to religious
worship and solemn meditation, have a constitutional right to conform
individually to the dictates of their convictions, but they have no right
to call upon the legal authorities to declare that recreations and amuse-
ments on Sunday, in themselves innocent and lawful, which others do
not consider as conflicting with religious duty, are violations of the law
of God and of public morality. Such a demand would be equivalent to
the assertion that the whole civilized Avorld, except those States in the
Union in which Sunday Laws forbidding amusements are in force, con-
tinually desecrates the Sabbath.

Whatever be the opinion of this honorable body, of the necessity of a
compulsory observance of the first da}- of the week, it cannot be denied
by any one, who has attentively observed the working of the existing
Act, that it is not uniform in its application to persons and property, and
therefore unjust ; that it does not provide for its own enforcement, and
is therefore ineffectual and derogatory to the dignity and respect which
the hiAvs ought to command ; that it is against the public sentiment, and
therefore unwise, undemocratic, and anti-rej)ublican.

A Sunday Law. be it enacted to enforce respect towards a religious
creed, or to establish peace and order, or to enable working men to
enjoy a day of rest, is certainly' a general law; i. e., according to Black-
stone's definition : "An Act which regards the whole community, a uni-
versal rule." (Blackst. Cora. 1, 85, 861.) as distinguished from a special
law. which affects only particular individuals. The Constitution of
California, in the First Art., Sec. 2, provides : ''All laws of a general nature
shall have a uniform operation." If the Act for the observance of the
Sabbath would affect all persons and property upon which it legislates,,
equalh', or nearly equally, it would be called uniform. If the law be
constitutional, and absolutely necessary, then we do not dispute the
right of the Legislature to exempt certain classes of indispensable busi-
ness from its operation ; but if this exemption be merely a permission to
certain people to commit the very thing which others are not permitted
to do — or to speak more pointedly, to sell the very same kind of goods
on Sunday, which others are forbidden to sell, and to actuall}' enrich
themselves at the expense of their unlucky competitors, whose custom
they appK priate, then the law is not uniform in its operation. The
Supreme ( ourt of this State said, in the case of Gillan vs. Hutchinson,
16 Cal.. 156 : " The Legislature has no power to take the property of one
person and give it to another. The custom of a trader is a kind of

property, which no Legislature can deprive him of, for it is tlie very
basis of all he possesses ; Avithont custom, he cannot carry on liis busi-
ness nor acquire property." Under the provisions of the Act, all cigar
Btores, drinking saloons, barber shops, bath houses, and billiard saloons,
must be closed, whilst hotels, restaurants, and taverns, may carry on
their business as usual. As it is a part of the business of the latter to
Bell cigai's, wines, and liquors, it naturally follows, that they enjoy a mo-
nopoly in the sale of these articles on Sunday, which those whose only
I means of support they constitute, are prohibited to sell. The consump-
i tion of liquors and cigars is not lessened on Sunday on account of the
closing of the cigar and liquor stores ; the consumers are OTily compelled
to patronize hotels, restaurants, and taverns, in order to gratify their
wants. Thus, all the business which cigar and liquor stores would do, is
given to those with whom the sale of cigars and liquors is merely a sec-
ondary branch of business. Some classes of citizens are therefore not
; only exempt from the prohibition to other classes to acquire property on
j Sunday, but they are granted the extraordinar}- privilege to dispose of
Buch articles, which are among the most profitable, to the entire exclu-
sion of the regular dealers and traders. Barber shops and bath houses,
if made appendages of hotels, under the direction of their proprietors,
may do business on Sunday, under the protection extended to the whole
establishment ; otherwise they come under the prohibition of the Act.
Here, we see again, the business of one class of citizens given to another
class, whereby a valuable franchise is created in favor of those who do
not depend upon these particular branches of business for their mainte-
nance, against those whose livelihood is entirely dependent upon them.

It was attempted, when the Act went into effect, to remove this in-
equality, by preventing the hotels, restaurants, and taverns, from exercis-
ing those branches of their business on Sunday which are not allowed to
others. But it must have been the intention of the Legislature to ex-
empt them in their entire Injithnatr capacity. It has always belonged to
the legitimate business of hotels, restaurants, and taverns, in California,
to sell cigars and wines; and this custom is supported by the lexicogra-
phers; for Webster defines a hotel to be, ''A house for entertaining
strangers and travellers." Entertainment of travellers does not consist
alone in satisfving their hunger and thirst, but in offering them every
reasonable comfort, and every means to recuperate from the hardship of
their journey. That bathing and shaving are reasonable comforts, and
that wines and cigars likewise belong to the proper entertainment of
travellers, cannot be denied.

Thus it is seen that the Act cannot be so amended as to avoid the
charge of favoritism; such amendments would be only attemptsto cure
one injustice by creating another. But it is the very characteristic of an
oppressive and' unconstitutional law, that every effort to neutralize its evil
consequences, by amendments, leads us into new acts of injustice and
new violations of the fundamental law\ What inextricable confusion
would it cause, to exempt certain classes of business from the provisions
of the Act; and again, to exempt from their stock certain kinds of
goods, which they niust not sell on Sunday ! Such laws are impractica-
ble, and no police force would be suflScient to enforce them.

But how is uniformity to be expected of a law which is so con-
"fusedlv framed that it actually exempts, in terms, those classes of busi-
: ness which it intended to be reached by the prohibition. The Act ex-
empts taverns. Webster says : ''A tavern is a house licensed to sell liquor
in small quantities, to be drank on the spot." According to this defiui-

tion, which has never been disputed, every liquor saloon is a tavern'
and therefore exempt. Even it' this were not so, cannot drinking saloons
be easii}' metamorphosed into restaurants ? Then they may sell tigars
and liquors, because restaurants ai-e permitted to do so.

How does the law make itself respected ? By imposing upon ofTendera
a fine of five to fifty dollars. What is the effect of this fine ? It com-
pels all small traders to obey the law, and enables all wealthy traders to
disobey it, because they can the better afford to ]iay the fine, as the busi-
ness of the small trader is tlriven into their hands. Everybody, there-
fore, who is pecuniarily able to disobey" the law, may do so. and the law,
therefore, becomes a farce, and the fine an immoral tax. If the law al-
lows to be done, for a fine, what it considers wrong, it acts upon an im-
moi-al principle, like that upon which some Governments privilege gam-
bling, in consideration of a high tax paid bj' the gamblers. It may bo
said, that the increase of the ])enalty would make a systematic resistance
to the law im])0ssible. The history of the law contradicts this su])position.
The impossibility to enforce the law has been found mainly in the refusal
of juries to convict offenders, in spite of the trifling ])enalty.

This fact proves the utter antipathy of the public sentiment to the
law, and it would therefore be uni-easonable to ex])ect tliat juries would
be moi'e willing to give their verdicts in favor of the enforcement
of the law, if its violation was accompanied by vovy severe penalties.
However good the motives of the Sunday Law may be, it certainly con-
flicts with the public sentiment. In a liepublic, laws are made to satisfy
the wants of the people ; they are not to be forced upon the people
against their wishes. LaAvs which are not based upon the necessities of
the people, Avill always be powerless under a constitutional government.
It has been sufficiently proved, in our State, that no law can be eniorced
unless it meet the standard of public opinion. The authorities have
tried tlieir best to enforce the Sunday Law, but so general has been the
hostility to it. that in the attempt to enforce it, the regular business of
the Police Courts had to be neglected, until the police authorities saw
themselves compelled to modify the law themselves, and extend arbi-
trary favors to different branches of business, in order to make the law,
at least, partial!}- practicable. It is a sad state of affairs when the po-
lice have to try to lessen the evils of an unpopular law; but tliey, as
well as the Legislature, are but the servants of the people, and are una-
ble to execute a law to which the people themselves oppose a determined
resistance.

Your Committee believe thej- have shown that the Sunday Law has
sufficient of a religious character to be objectionable, as intei'fering with
the religious freedom guaranteed by the Constitution ; that it vitdates
the guaranteed right of acquiring, possessing, and protecting property;
that as a police regulation for the preservation of peace and good order,
it is unnecessary, and as a means to give employes a day of rest, it ia
entirely ineffectual and uncalled for; that it is not just nor uniform in
its application to persons and jiroperty, and therefoi-e not constitutional;
that it does not provide for its own enforcement, and that it conflicts
M'ith the public sentiment.

In these times, when every citizen is called upon to sacrifice every-
thing upon the altar of his country, we should surely abstain from enact-
ing laws which create unnecessary restraints upon individual liberty.
The Legislature ought perhaps not to be unmindful that a large class of
our citizens whom this law deprives of the right of acquiring property
on one day of the week, which, with the owners of j)liices of amusement

in the suburbs of our towns and cities is equivalent to taking ft-oni them
the means of acquirino; any property at all — the Legislature, we say,
ought not to be entirely unmindful of the fact that this large and re-
spectable class — we mean our adopted citizens — have not been tardy in
otfering up their lives and fortunes for the preservation of the country.
The countrymen of Sigel, Mulligan, and Corcoran, have been among the
first to respond to the call of the Government threatened with destruc-
tion by a gigantic rebellion ; they have poured out their blood freely,
in the common defence, and their rights and desires should be carefully
considered.

For these reasons, your Committee beg leave to recommend the pas-
sage of Assembly bill No. 11.

WILLIAM LOEWY,
C. W. KENDALL.

REPORT,

BY MESSRS. BENTON AND MOOEE

Mr. Speaker : — Your Committee on Public Morals, to whom was re-
ferred Assembly bill No. 11, an Act to repeal an Act for the observance
of the Sabbath, approved May twentieth, eighteen hundred and sixty-
one, have had the same under consideration, and beg leave to report :

That they can see no good reason for repealing the present law, but, on
the contrary, find abundant and powerful arguments in favor of retaining
it, with such amendments as will make it apply more equally, certainly,
])roiaptly, and strongly.

We do not propose to discuss the subject at length in this report, but
simply to suggest a few things necessary to be established and proven,
be3'ond a doul)t, to warrant us, as wise law-makers, in repealing the
present law, and utterly refusing to secure for the j)eo2)le of the State a
(hiy of rest.

First. — It must be shown that man, neither as a physical, mental, nor
moral being, needs one day in seven for rest, recreation, or moral im-
provement. To establish this, it must be proven, negatively, that man
is not man, and, affirmatively, that all civilized men are fools.

/Second. — It must be shown, that as Legislators, we have no right, by
law, to secure for the people a day of rest.

It must be proven that the Constitution of the United States, or the
Constitution of this State, forbids us to pass such a law; that the Su-
preme Court of California erred in affirming the constitutionality of the
present law ; (see the very able opinions and decisions of Judges Field
and Baldwin ;) that all the Sunday Laws of all the States of the Union,
with constitutional and legal provisions like ours, are wrong, and the
Courts who have always affirmed them, were in error.

That all civilized nations have combined in their Sunday Laws to vio-
late the rights of man, for all have them more or less extended, or, con-
ceding the need of a day of rest, and the constitutional right of the
Legislature to pass a law to provide for it.

Third. — It must be shown to be against the best interests of the State
to have any such law among our statutes. To do this, it should be proven

to be detrimental to the material interests or the good morals of the peo-
ple.

It must be shown that the State is made poorer ; that life and property
are less secure ; that it demoralizes and depraves the people, rendering
them less virtuous and less happy.

If all this could be clearly demonstrated, then, and not till then, should
the unconditional repeal of the law for the observance of the Sabbath be
considered.

J. E. BENTON,
J. M. MOOEE.

RE F O HT.

Mr. Orr, also from the Committee on Public Morals, made the follow-
ing report :

Mr. Speaker : — I have attentively examined the petitions on the file,
respecting the Sunday Law ; also, the law itself, and the Assembly bill.
No. 11, proposing its repeal, and submit the following report:

First. — All laws which have for their object to compel religious observ-
ances or uniformity to religious worship, are worse than useless. Both
despotic power and legislative enactments have been resorted to in past
ages for these purposes, and have not only failed in their object, but have
been detrimental to religion and morality. Men cannot be made re-
ligious by legislation.

Second. — The people of this State require rest, recreation, refreshment,
relaxation, religious worship, amusement, instruction, and rational pleas-
ure, on Sunday. They should not be interfered with in these matters,
by law. An}" law which interferes with them will become a dead letter.
It cannot be enforced ; and when a law remains on the statute book, not
enforced, it is a positive injury to society ; because it tends to bring all
laws into contempt, by furnishing the example of one law constantly set
at naught and violated with impunity.

Third. — Public sentiment in this State has not yet arrived at that point
which would insure the enforcement of a stringent Sunday Law.

Fourth. — I am informed and believe that the business men of this State,
not engaged in any business connected with the recreations of the peo-
ple on Sunday, desire to close their places of business on that day, and
that a law requiring this is generally desired.

N. M. OEE.

REPORT OF CONTROLLER OF STATE,

RELATIVE TO THE

Ji mantial ConiitM of tlje §lak

MAKCH 8, 1862

BEN J. P. AVERY STATE PRINTER.

com]mtj:n^ic^tio]^.

Office of the Controller of State, |
Sacramento, March 8, 1862. j

To the Senate and Assembly of the State of California :

In compliance with a concurrent resohition adojited in Senate Febru-
ary twentieth, eighteen hundred and sixty-two, and concurred in by the
Assembly February twenty-fourth, eighteen hundred and sixty-two, re-
quiring- the Treasurer and Controller to communicate to the Legislature
"The amount of the lialulities of the State at the commencement of this
session, the jiayments since made, and when the liabilities so paid accrued,
the present liabilities of the State, exclusive of Funded Debts, the receipts
since the regular settlements of the County Treasurers in November,
eighteen hundred and sixty-one, and their disposition, how the one hun-
ired thousand dollars transferred on the fifteenth January, eighteen
iiundred and sixty-two, from the Swamp Land Fund to the General Fund,
tias been expended, and such further matters as affect the financial condi-
aon of the State, and their respective offices," I have the honor to submit
he following Report.

G. E. WAEEEN",

Controller.

RE F O R T.

Amount of liabilities at the commencement of this session,
payable out of the General Fund, (exclusive of Funded
Debts.) being audited claims filed and unpaid

Salaries of Officers and Judges from jSTovember 1, 1861, to
January 10, 1862

8132,295 61
43,121 92

$175,417 53

The amount paid on account of liabilities since January tenth, eighteen
hundred and sixty-two, (exclusive of payments made from one hundred
thousand dollars transferred,) has been seven thousand eight hundred
and seven dollars and thirtj'-eight cents, ($7,807 38,) the whole of which
accrued prior to Xovember first, eighteen hundred and sixty-one.

The amount of present liabilities, (to be paid out of the General Fund,)
March first, eighteen hundred and sixty-two, exclusive of Funded Debts,
is as follows :

Audited claims filed

Exj)enses of Legislature for February

Salaries of Officers and Judges for February

$154,476 89
40,000 00
14,591 51

$209,068 40

The foregoing only includes claims audited and filed in this office.
There are large amounts now due by the State for printing, claims
allowed by the present Legislature, and other expenses, not included m
above, say fifty thousand or sixty thousand dollars.

The receipts since the regular settlements of County Treasurers m
November, eighteen hundred and sixty-one, have been three hundred and

twenty thousand eight hundred and eleven dollars and thirty-three cents.
(See Statement marked A.)

Of this amount the sum of two hundred and fifty-three thousand
one hundred and sixty-four dollars and forty-one cents, was paid by my
predecessor to creditors of the State whose claims had accrued prior to
November first, eighteen hundred and sixty-one. The balance of this
amount, viz : sixty-seven thousand six hundred and forty-six dollars and
ninety-two cents, was apportioned by me to the various funds to which
the General Fund was indebted, in consequence of my predecessor not
having apportioned the amounts called in from counties in December,
eighteen hundred and sixty-one.

I present herewith, statement marked B, showing hoAV the one hundred
thousand dollars transferred on the fifteenth January, eighteen hundred
and sixty-two, from the Swamp Land Fund to the General Fund, has
been expended.

To present a correct view of the state of the General Fund, March
first; eighteen hundred and sixty-two, and to show the liabilities accrued
to be drawn on said Fund, I herewith submit the following statements,
referring to exhibits C and I), hereto attached :

Amount of audited claims filed March 1, 1<S62

Expenses (per diem) of Legislature for February

Salaries of Officers and Judges for February

Amount due by General Fund to other Funds, (See C and D)

Estimated amount of claims due. not filed

Add amount transferred January 15, 1862, from Swamp
Land Fund to General Fund, to be returned in Novem-
ber next

$154,476 89
40,000 00
14,591 51
96,367 60
50,000 00

100,000 00

$455,436 00

Making a total of four hundred and fifty-five thousand four hundred
and thirty-six dollars, to be paid out of the General Fund, and for the
payment of which there is now no money in said Fund.

It is difficult to imagine how this Swamp Land Fund transferred, can
be returned in November next, when all the money likely to accrue to
the General Fund from this time to November is to be absorbed in pay-
ing claims now due and filed in this oftice.

All of which is respectfully submitted.

G. K. WAEREN,

Controller.

Note. — It will be seen by statements submitted, that the General Fund
was indebted to other funds and creditors of the State, January tenth,
eighteen hundred and sixty-two. in the sum of two hundred and seventy-

one thousand seven hundred and eighty-five dollars and thirteen cents,
($271,785 13,) as follows:

For

Audited Claims filed January 10, 1862

$]o2,295 01

For

amount due by (leneral Fund to other Funds

96,867 60

For

Salaries Officers and J udges

43,121 92

$271,785 13

C A]

Statement of Receipts since Regular Settlements icitli County Treasurers in

November, 1861.

1861.
December 24

December 26

December 27
December 28

1862.
January 1....
Januar}' 2....
January 6....

January 7.
Januaiy 8.

January 10.

January 20.
Januar}^ 24.
February 1.
February 5.

Amador County

Alameda County

Santa Clara Count}'

Sutter County

Solano County

Placer County

Yolo County

El Dorado County

San Joaquin County

Sonoma County

Marin County

Xapa County

Forbes & Babcock, stamps....

Morris Speyer, stamps

Yuba County

Sierra County

San Francisco County

Colusa County

Sacramento County

Shasta County

Tehama County

Nevada County

San Joaquin County

Butte County

Siskij'ou County

Forbes & Babcock, stamps....

Military Commissions

Secretary of State

Calaveras County

Adjutant-General

W. B. Johnson, stamps

B. F. Hastings, stamps

T. ]Sr. Cazneau

Trinity County

Santa Cruz County

Bigelow & Brother, stamps...

San Joaqum County

Daniel C. De Witt, stamps....

W. B. Johnson, stamps

J. "Wetzlar, stamps

Forbes & Babcock, stamps....
Morris Speyer, stamps ..

Amount carried forward

$8,575 32

7.650 00

2,389

2,075

10.466

14.900

6.185 69

11.772

18.870

8,696

5,905 67

14,526

475

384

21,305

799

32,000

1,435

37,733

3.523

1,376

9,015

8,881

4,875

9.233

475 00

605

1.321

8,257

560

190

321

236

6,205 30

1,759

1,256

10 00

332

475 00

313

^264,560 16

Statement A — Continued.

1862.
February 5...
February 6..,

February 11.
February 13.

February 14.
February 15.
February 17.

February 18.,

February 20.

February 22.

February 24.
February 26.

Amount brought forward

B. F. Hastings, stamps

T. X. Cazneau

Alsop & Co., stamps

San Joaquin County

Calaveras County

Contra Costa County

Sacramento Count}-

C. A. La Grave, (Treasurer Amador County)

Yuba County

Tuolumne Count}'

San Francisco County

Yolo County

Santa Cruz Count}'

Placer County

Solano County

Nevada County

J. W. Carrick, (Alameda County)

El Dorado County

Sierra County

P'orbes & Babcock, stamps

San Bernardino County

S264.560

105

101

228
3.738

482
1.834 03
4.160 87
2.400

688

4,695

19,929

507
1,673
3,314
5.049
1.290
2.314
3,010
55

570

16
07
50
95
13
19

90
85
15
29

58
54
66
80
90
21
74
60
00

99 21

Total $320,811 33

5? i^

e
^

Salaries of Supreme and
District Judges

GO
5-1

Salaries of State Officers,
Clerks, and Employes....

CO
od"

Contingent Expenses of
Assembly

Officers and Clerks of As-
sembly

0
0

00
CO_^

Per Diem and Mileage of
Assembly

-t

-t-

Contingent Expenses of

0
0

For Officers and Clerks of

--0

Per Diem and Mileage of
Lt. -Governor and Sena-

0
0

,—1

000^*001^00

OCOGOCOrMi— iCOCui

Tf CO 1^ 1-; :o_^ -t -+„i--:,
o"'m' o"<m" oo^-TtT

«M (M

o
o

o
o
o_^

o"
o
I— I
^^

o
<

o
w

S no

c3 1-5

"^ 5

--*_ Ol'

g ao j3

o <; o

c*- O <1
=£0

t-i X ^-, ^ ^

S S '-

o oj 5

J, O C3

1^ M f»

li =« ■+-(
r, o o

H ?-^

<D O

I3 oS

C c3 C3

!50

'3
'c3

CO ;3

2'1

[ C ]

Proper Apportionment to General Fund, of amounts paid in by County Treas-
urers in December. 1861, on special order of Controller and Treasurer.

Counties.

Proper Apportion-
ment to General
Fund.

Amounts Actually
Apportioned.

Amador County

Alameda County

Santa Clara County

Solano Count}'

Placer County

Yolo County

El Dorado County

San Joaquin County

Yuba County

Sierra County

San Francisco County

Sacramento County

Nevada County

Calaveras County

San Joaquin County Treasurer, paid by
bondsmen

Totals

$6,676

4,883

1,852

4,765
10,1C8

2,715 42

9,740 98

7,823

11,252

741

32.638

2i;443

5,499

5,041

3,654 00

128,837 74

$8,575 32

7,650 00

2,389 35

10,466 06

14,900 00

6,185 69

11,772 92

18,870 83

21,305 10

799 90

32,000 00

37,733 00

9,015 26

8,257 70

10,137 28

$200,058 41

Due by General Fund to otber Funds, $71,220 67.

Note.— These counties settled their accounts in February, eighte»ii
hundred and sixty-two.

[D ]

Estimated Amount to General Fund, of Counties settling in May, 1862.

Counties.

Estimated Proper

Apportionment
to General Fund.

Amounts Actually

Apportioned
to General Fund.

Sutter

Sonoma

Marin

Napa

Colusa

Shasta

Tehama

Butte

Siskiyou

Totals

ei,000 00
3,500 00
2,000
7,000
800
2,000
700
3,000

6,500 00

826.500 00

^2,075 22

8,696 60

5,905
14.526

1,435

3.523

1,376

4.875

9,233

67
00
20
26
69
19
10

851,646 93

Due by General Fund to other Funds, $25,146 93.

ST^TEMEISTT

CONCERNING

THE STATE FINANCES,

THE STATE TREASURER.

BEN jV p. AVERy! . ! . ! . . STATE PRINTER.

ST^TEMiENT.

State Treasurer's Office,

March 15. 186

To thr Sfnate and AxscnMj/ of California

Your rcHolution of February twenty-fourth did not reach here until
March third, and it was not possible to give the information required
before this, owing to the fact that the current business of the office did
not permit.

The receipts since the reguhxr settlements of the County Treasurers in
November, eighteen hundred and sixty-one, are three hundred and
twenty-five thousand one hundred and ninety -four dollars and sixteen
cents. Of this amount two hundred and fifty one thousand seven hun-
dred and five dollars and thirty-four cents was paid in by County Trea-
surers after the order of the Controller and the Treasurer, in December
last, and was not apportioned to the respective funds to which it be-
longed, but was all placed in the General Fund, when, in fact, as near
as can now be ascertained, only one hundred and fifty-five thousand three
hundred and thirty-seven dollars and seventj^-four cents belonged to the
General Fund. So that this fund, which represents the State as to means
of payment of ordinary claims, was indebted in the sum of ninet3'^-8ix
thousand three hundred and sixty-seven dollars and sixty cents, at the
meetino; of this Leo-islature. Also, at that time the State was in arrears —

For Audited Claims

For Salaries of officers •

Estimated unaudited Claims, about

Making the liabilities of the State at the commencement
of this session, exclusive of funded debts

$132,295 61
40,000 00
26,000 00

$294,663 21

Since the commencement of the session there has been paid out —

For claims which accrued before that time.
For claims accruing since

The total of payments being

866,035 51
58,694 84

$124,730 35

Of the one hundred thousand dollars taken from the Swamp Land
Fund, January fifteen, eighteen hundred and sixty-two, there has been
paid —

On liabilities accrued before the meeting of this Legislature
For liabilities accruinir since

Total.

^40,909 86
58,694 84

S99,604 70

Leaving three hundred and ninety-five dollars and thirty cents on
hand, for which warrants are drawn and outstanding.

For a portion of these statistics this oftice is indebted to the courtesy
of the Controller of State.

Exclusive of Funded Debts, the present liabilities of the State are, at
this date —

Audited Claims | $154,500 00

Legislative Expenses { 60,000 00

Salaries ! 21,700 00

Payable to Swamp Land Fund in November j 100,000 00

Due to Interest and other Funds i 96,367 60

Total 1 $432,567 60

And the unjjresented claims, to this date, are estimated at fifty thou-
sand dollars more, and thus the unfunded liabilities of the State are four
hundred and eighty-two thousand five hundred and sixty-seven dollars
and sixt}' cents.

The amounts due the Swamp Land, Interest, and other Funds, are
probably not debts, in the sense of the Constitutional prohibition, and,
deducting these, the actual unfunded debt of the State is two hundred
and eighty-six thousand two hundred dollars.

The Controller, in his last annual report, estimates the outstanding lia-
bilities of the State, on the sixteenth of December last, at two hundred
and ninety-five thousand dollars ; thus showing that the debt is not in-
creasing.

The G-eneral Fund must be increased, or expenditures must be lessened
in an amount sufficient to cover the before-stated deficit, else the credit
of the State will be seriously damaged.

The Revenue last year was

The Expenditures were

Excess of Expenditures.

$1,095,020 01

1,248,573 82

$153,553 81

The prospective expenses of the present year are considerably re-
duced, and many appropriations were made last year, which it will not
be necessary to repeat ; for instance, the appropriations for cancelling the
State Prison contract ; for erection of the State Eeform School, and,
perhaps, for support of Agricultural Societies. This will bring expenses
far within the income of last year; but the recent great loss of property
in the State, and the fall in value consequent upon increased national
debt, and the ])i"obable exodus from the State, to other mining grounds, of
perhaps twenty thousand active men, will reduce the assessed value of
property in this State to about one hundred million dollars. The prin-
cipal reliance of the State is upon the property tax, and unless the rate
is raised, it is very doubtful if State credit can be sustained. It is proba-
ble that thei-e will be some falling off of revenue from other sources, but
a tax of seventy-five cents on the hundred dollars will probably be suf-
ficient to supply the Treasury with moans, and in this time of necessity,
(both State and National,) propei'ty holders ought not to complain of
the slightly increased burdens requisite to maintain the Government
under which their possessions have been acquired. As a general rule,
the men poor in wealth fill our army and peril life for our country; then
let wealth not shrink from its full share of contribution.

California's share of the national direct tax being assumed, requires
an additional quarter of a million dollars to be raised b}' the State. The
tax as levied by Congress is a real catnte. tax, and the question is grave,
if the State can levy on other property to pay our apportionment. But
assuming that it can be done, then a rate of twenty-five cents on the one
hundred dollars nmst be levied for this purpose. The State, by collect-
ing this tax, saves ten or fifteen per cent, of the amount, but the cost of
collection in this State is so great that probably the State will lose in
the end. The Governor, in his last annual message, intimates that the
average cost of collecting our taxes is about twenty-five per cent. If
this be so, then the preniium given by the National Government is not
enough to cover cost of collection, unless great reform in this respect is
adopted. The national tax will probably be doubled after this year,
and a definite and permanent system should be adopted, and in the end
it will likely be found best, after the present year, to let the nation col-
lect all the national revenues, that being the simpler and more efficient
plan.

There is a small additional call upon the State Treasury to pay inte-
rest to the School Fund, which cannot in good faith be avoided. Before
eighteen hundred and fifty-seven, the State, holding five hundred thou-
sand acres of land, as trustee for Common Schools, sold two hundred and
thirty-five thousand three hundred and sixty acres of the same, at two
dollars an acre, in State Warrants. Thus the State received four hundred
and seventy thousand seven hundred and twenty dollars as a permanent
School Fund, the interest of which was subject to annual distribution.
The precise amount of interest was not apportioned, but it was approx-
imated nearly enough until eighteen hundred and fifty-seven, by the

levy of specific School taxes ; for instance, in the years eighteen hundred
and fifty-four, eighteen hundred and fiftj'-five, and eighteen hundred and
fifty-six. the State levied a School Tax of twenty cents on the one hun-
dred dollars, and paid also to the Schools one quarter of the receipts of
the State from ])oll taxes.

The State Debt being declared unconstitutional, it became necessary
to submit its funding and payment to a vote of the people, and as pre-
dictions of repudiation were made by many who did not know the ster-
ling honesty of the people, the dishonor of an adverse vote came really
to be feared, and, desirous of making the proposed Funded Debt as small
as possible, the Legislature, in its submission, did not include the four
hundred and seventy thousand seven hundred and twenty dollars due to
the School Fund, but assumed to regard it as a debt of honor, on which
the annual interest should be appropriated; and that year and every
succeeding year, until eighteen hundred and sixtj-one, the Legislature
justly and carefully set apart, each year, thirty-two thousand nine hun-
dred and fifty dollars and forty cents, being the interest due the Schools.

There is no debt of higher obligation than this ; it should be as punc-
tiliously ])aid as the interest due on our coupons. True, our creditors are
the children in the State, and they cannot injure our credit in the stock
markets of the world ; but this, to honorable men, makes their case the
stronger. Misapprehension alone could have caused the failure to appro-
priate for the last year.

Further : in eighteen hundred and fifty-seven the amount a])propri-
ated was the true one, but before eighteen hundred and fifty-eight the
amount of sales of School Lands for wan-ants amounted to four hundred
and seventy-five thousand five hundred and twenty dollars, and the
interest to thirty-three thousand two hundred and eighty-six dollars and
forty cents, which is the sum that should have been a])propriated each
year after eighteen hundred and fifty-seven. So in eighteen hundred
and fifty-eight, fiftj'-nine, and sixty, there is a deficit of three hundred
and thirt3'-six dollars each 3-ear.

Total deficit for 1858, 1859. and 1860

Add amount due in 1861

And the total deficiency to be provided for this year is... .
To this add the amount regularl}' due this year

And the amount that should be appropriated this year, is

S1.008 00
33,286 40

834,294 40
33,286 40

867,580 80

The School Lands, including the sixteenth and thirty-sixth sections,
since eighteen hundred and fiftj'-eight. have been sold for cash and on
credit, a'lKl the interest, part at seven per cent, and part at ten per cent.,
goes to the School Fund. The interest annually should be about fifty
thousand dollars, but much less than this is distributed yearly, and it
will require considerable research to find where the error lies.

The total sales of Seminary Lands amount, as nearly as can be ascer-
tained, to about fifty-nine thousand four hundred and seventy dollars
and twent3'-three cents, and twenty-three thousand six hundred and
sixty dollars and eighty-one cents has been paid, the rest standing on
credit. The amount received from this source should properly be kept

as a Seminarj^ Fund, but curiously enough no account of it has been
kept in this office, and the presumption is that it has all been thrown
improperl}' into the School Fund.

Of the Public Building Lands, the sale has amounted to about six
thousand five hundred dollars, of which two thousand five hundred and
sixty-seven dollars has been paid, and the remainder is on credit, and all
belongs to the Public Building Fund, and should be so kept/ but no
separate account has been kept, and it is probable that the' amount
received, like the Seminary money, lias gone into the School Fund.

The accounts in this office cannot show the true state of afi'airs until
these misa])plications are corrected.

The War Bonds issued by the State since eighteen hundred and fifty-
seven, draw no interest, and are payable out of money to be provided by
Congress. But from two hundred and twenty to two hundred and fifty
thousand dollars, principal and interest, of the bonds of earlier date be-
come due in ^fay of this year, and are payable by the State, but no
funds are in the Treasury a])plicable to that purpose, and in our'present
financial condition no way is left but to issue new bonds, with ample
provision by law for prompt payment by the State; thus, State credit
will be protected, and if Congress makes provision for the paj-ment here-
after, the State will meet no loss.

The interest on the Civil Bonds of the State, due July first, eighteen
hundred and sixty-two, is one hundred and thirty-seven thousand four
hundred and forty-five dollars, and for the payment of the same there
is in the Treasury only the sum of one hundred and three thousand
eighty-seven dollars and twenty-two cents, owing to the large amount
of interest money put in the General Fund on order of the Treasurer and
Controller, made in December last. This interest monc}^ comes from
the property tax, and the May settlements of County Treasurers will
probably not furnish money enough to pay the coupons of July, but the
deficit must be supplied from the General Fund as a part payment of the
ninet3'-six thousand three hundred and sixty-seven dollars and sixty
cents it received from other funds.

To prevent a recurrence of this matter, the Legislature should provide
by law, that '• in all cases, the Controller, on ordering money into the
State Treasury, shall order it paid into the fund or funds where it pro-
perly belongs ; and whenever a County Treasurer is specially ordered to
pay mone}- into the State Treasury, he shall produce to the Controller a
report and dui)licate from the County Auditor, similar to the rej^ort and
duplicate required at the regular settlements, as provided by law."

The foregoing matters directly affect the Treasury Department, and
the attention of the law-making jjower should at once be directed to the
proper remedies.

I will suggest that the State should b}^ no means fail to pay the inter-
est due to the Common Schools, and to provide for the funding or invest-
ment of the four hundred and seventy-five thousand five hundred and
twenty dollars of School Land proceeds used by the General Fund be-
fore eighteen hundred and fifty-eight, as well as the War Debt, which
soon falls due. The most simple and practical mode, perhaps, of making
whole the School Fund, is to provide that whenever bonds of the Civil
Funded Debts of the State are redeemed, as provided in the funding
laws, they, to the amount of four hundred and seventy-five thousand
five hundred and twenty dollars, shall not be cancelled, but shall be placed
in the School Fund, and held in the same manner and with the same
effect as are the bonds directly purchased for said School Fund.

The General Fund of the State Treasury, for some months past, has
been in a bankrupt condition. The fact has been concealed too long, and
the use of other and of trust funds affords no remedy, but only a respite

It will be observed that some of the amounts herein given are ap-
proximate, not exact ; the error, if any, is slight, and will be found in
giving the amounts too low ; the explanation is, that the books kept here
do not clearl}^ show the true results, and the elimination of the exact
truth requires more time and labor than up to this period we have been
able to devote to that purpose.

All of which is respectfully submitted,

D. E. ASHLEY,

State Treasurer.

ANNUAL REPORT OF TRUSTEES

THE STATE REFORM SCHOOL.

DECEMBER, 1861,

BEN J. P. AVERT STATE PRINTER.

A^ N N XJ A_ L REI^ORT.

Marysville, Cal., December 14th, 1861.

To His Kxcellency,

John G. Downey,

Governor of the State of California :

Sir : — Complying with Hection twenty-eighth of an Act entitled an
Act for the erection of a State Eeform School, and for the regulation
of the same, we submit the following report.

JOHX LOWEEY,
NELSON WESCOATT,

Trustees of State Eeform School.

K E P* O H T .

The State Refbi-m .School, situate ou the east bank of Feather Eiver,
about six niik^s north of the City of Marj-sville, Yuba County, Califor-
nia, was opened and dedicated on the second instant, on which occasion
your Excellency presided, and of all the facts in connection with the
building, and its progress toward completion, you are familiar. Conse-
quently, the following statement to your Excellency will be an old
story; but for the beiietit of the Legislature and some of the committees
to whom this rejjort may I»e referi-ed, we think best to make a full
statement of the present condition of the building; also, a financial
report, setting forth the amount of money received from the State, and
to whom paid ; amount of accounts audited and now on file in the Con-
troller's office, and the amount of claims allowed by the Board of Trus-
tees and in the hands of the Board of Examiners.

The dimensions of the building are as follows : The main building is
fortj'-four by sixty-six feet, with transept wings eighty-seven feet in
length, making the whole building two hundred and eighteen feet in
length, with an average width throughout of fifty-two feet. There is a
hall through the entire building, upon the basement and main or second
floor, uine feet wide, and cross halls through the main or centre build-
ing, nine feet wide. At the junction of the main halls, stairways lead
from the basement floor to the second or main stor3', and thence to the
third story floor. The basement story is eleven and a half feet in the
clear; the second, fourteen feet ; the third, thirteen feet ; and the fourth
story of the main, or centre building, forty-four by fifty-six feet, is eleven
feet in the clear, making the main or centre building forty-nine and a
half feet, to which add the spaces for joists, etc., of the several floors,
say four feet, and the fire wall, four feet, we have a height of about
fifty-seven feet. The two wings are without the fourth story, and are
consequently not so high by eleven feet. The whole building covers an
area of eleven thousand three hundred and thirty-three square feet.

The basement story is divided into a number of apartments, designed,
for the present, for dining rooms, kitchen, wash rooms, store rooms,
workshops, etc. Upon the second or main floor, and at the extremities
of the great wings, are two large rooms, thirty-four by forty-four feet,
which are intended for a school room and a chapel. The balance of this
story is divided into a number of large and elegant apartments, some

for the use of the Superintendent and teachers, parlors, reception, and
bed rooms, library, class rooms, etc. The third story will be mainly
devoted to sleeping apartments for the inmates of the school. The
rooms here will be large, airy, and pleasant, suitable each for the occu-
pation of two or four persons, as the case may require. The main en-
trance to the second or principal story is from a portico, in front, of
heavy stone and brick masonry" — the main landing being reached by
a pair of winding or semi-circular granite steps.

The several orders of architecture have contributed to the complete-
ness of the whole, the Corinthian predominating. Enclosing the build-
ing, and with it. an area of one hundred and tifty thousand square feet,
is a substantial and handsomely linished brick wall, sixteen feet in
height and one foot thick, with pilasters, two feet wide, and projecting
four inches, at intei-vals of ten feet, upon the wall.

We have appointed Mr. J. C. Pelton Superintendent of the State Re-
form School, and have fixed his salary at two hundred dollars per
month. He has accepted the position at that salary.

All of which is respectfully submitted.

JOHN LOWERY,
NELSON WESCOATT,

Trustees of State Eeform School.

FINANCIAL EEPOET.

Recipient.

Cash
Received.

Accounts in

Controller's

Office.

Accounts

with

Examiners.

Steele, Contractor, has re-
in cash since December 1

John A.

ceived
1860...

Accounts allowed by the Trustees
and in the hands of the Examiners

W. C. Swain, Contractor, has received

in cash since July 1, 1861

Accounts on tile with Controller
Accounts allowed by Trustees and
in hands of Pjxaminers

E. M. Owen, Contractor, has received
in cash since Jul}^ 1, 1861

Accounts on file with Controller...

Accounts allowed by Trustees and
in hands of Examiners

Schaeffer& Co., Contractors — Accounts
allowed by Trustees and in hands of
Examiners

Hartwell & Brett, have received in
Controllers' Warrants

815,306 00

4,978 31

723 GO

Bowen & Shakespear, have received in
Controller's Warrants since July 1,
1861 ^

Accounts on file with Controller...!

Accounts allowed by Trustees and
with Examiners

578 40

1,950 00

Huston & Mellor. Furniture — Accounts
allowed by Trustees and in hands
of Examiners

J. B. McDonald. Architect, from Jan-
uary 15 to September 1, 1861, (seven
and a half months)

Amount carried forward.

81,286 98

582 00

$2,847 00

3,244 55

375 00

1,500 00

$25,035 71

$2,243 98

1,103

1.386 54

2,814 89

3,381 33

$14,278 19

Financial Eeport — Continued.

Recipient.

Amount brought forward.

John Lowery, Trustee and Superin-
tendent of Board

Accounts on file in Controller's
office

J. C. Pelton, Trustee

Architect for September

Architect for October, on file with
Controller

H. S. Foushee, deceased, Trustee and
Secretary, from December 1, 1860,
to February 20, 1861

N. Wescoatt, Trustee, has received in
cash

Acting Secretary since February
20, 1861— Cash :

As Architect, from December 1,
1860, to January 15, 1861

Accounts on file with Controller...

J. C. Fall, Trustee, has received in

cash

Accounts on file with Controller...

Cash paid for Sundries, as per vouch-
ers rendered

Accounts on file with Controller
due for Sundries

Cash accounted for in report of Decem-
ber, 1860

Making a Total in Cash

Total Accounts with Controller .
Total Accounts with Examiners.

Cash
Receired.

$25,035 71

1,000 00

Accounts in

Controller's

Office.

250 00

150 00

266 66

500 00
366 00
300 00

100 00

303 50

82,243 98

200 00

150 00

8,121 64

136.393 51

200 00

100 00

283 50

,177 48

Accounts

with

Examiners.

$14,278 19

COMMUNICATION

FROM

THE SUPERINTENDENT

THE STATE REFORM SCHOOL.

co:\iAXL":s"ir^xro:s"

mtti ff I uriiuMLH 'jftit .Jsaemuit,

Tie -U'-'I . _ _ _

Tour obetSsKC 5«stmie.

STATE REFORM SCHOOL

As regards the present condition of the Institution of which I have
charge, j'our honorable body will doubtless be more definitely informed
by the Eeport of the Board of Trustees. It may be proper for me to
say, however, that the present condition of the Eeform School is such,
mainly, as should be expected of such an institution of two months
existence. It was openetl by proclamation of the Governor, and apjjro-
priate exercises, on the second of December. On the day following
commenced that series of storms and floods which devastated the State.
With only an occasional and very brief glimpse of sunshine, storm upon
storm, and flood upon flood, succeeded during December and January,
inundating the whole country. Eoads became imj)as8able, even be-
tween Marysville and the School.

A week at a time passed, uninterrupted by a single communication with
the surrounding country. Of course it is unnecessary for me to inform
your honorable Assembly, that under such circumstances the Eeform
School was not attended with very marked success. That it gave admis-
sion to eight boys in the midst of such a condition of things, was rather
a matter of surprise. During the flood of December eighth and ninth,
the friends of one boy were three days in accompanying him a distance
of thirty-four miles. Another boy was two days in reac-liing the School
from Sacramento. Another, five days in coming from Placerville. Dur-
ing the conflict with the floods of December and January, people of the
country did little more than attend to their personal safety and the pres-
ervation of their escaping property. And it must be remembered too,
that the second great flood, (occurring when the School had been organ-
ized but one month,) threw down most of the walls enclosing our prem-
ises. Since which time, and since the discussion of removal has been
before your honorable body, it has not been deemed expedient to make
much exertion in gathering boys into our Institution, to be removed,
perhaps, or at their leisure to make their escape.

But, under no circumstances, however favorable, could eight or ten
weeks be expected to determine anything in regard to the future pros-
pects of such an institution.

Had it not been for the continual interruptions referred to, and other
causes siqyeradded^ I think we shoukl ah'eady have had a larger number of
pupils than is usually found in similar institutions immediately after
their organization. But that, which an extremely inconvenient and re-
mote location, and rains, and floods, and a general want of information
concerning the Eeform School might have failed to accomplish, has been
more fully achieved in another manner, to wit : by the early and con-
stant agitation of the subject of the removal of the Eeform School, or
its utter extinction; the constant reiteration of its "failure," of its
being penal in its character, " the home of criminals only," etc., etc. I
have not been disposed to object to the discussion of removal, for I be-
lieve such to be necessar}^, and for reasons hereinafter given. I do re-
gret, however, that before the School existed, it should have been con-
demned in character, and declared a failure ; that since it existed, there
should have been a disposition to withhold from it a trial.

I am very sorry that the School, and not the location, should have been
so readily and needlessly condemned. It is not my business, here, to in-
quire into the motives which have prompted adverse criticism. I trust
they have been unselfish.

To have overcome the unavoidable and very serious disadvantages, in-
cident to our location, would have severely enough taxed our energies ;
no unnecessary obstacles should have been thrown in the way.

So much I beg most respectfully to submit, in regard to the present
condition of the Eeform School. It may be proper for me to give a few
facts explanator}- of the unfavorable aspect in which the Institution
seems now to be seen ; and these facts may be suggestive to your honor-
able body, as to the legislation required.

When, some years since, it became evident to those who gave the
subject attention, that California should have a Eeform School, tico, in-
stead of one, were projected, and this, I think, was the initiatory mis-
take.

The public good soon became opposed by local and private interests.
It is a matter of regret, of course, that the latter prevailed, and suc-
ceeded in inaugurating two enterprises, to wit : that of the City of San
Francisco and that of the State.

And here I predict that neither, while separately existing, will fully
satisfy the Qity or State which supports it. United as one, the best
wishes and highest hopes of all will be more than realized.

B3' an Act of the Legislature of eighteen hundred and fifty-eight, the
Industrial School Department of the City and County of San Francisco
was created, and all the machinery thereunto pertaining set fully in
motion. Under an Act of the Legislature of eighteen hundred and
fifty-nine, a Board of Commissioners was appointed by Governor ATeller
to locate a Eeform School for the State. The Eeform School idea was
now prominent and popular ; but unfortunately, as money was 8up2:)Osed
to be involved in the enterprise, it found other than earnest and disin-
terested friends. A certain locality bid for the School — not for the
School so much as for the money which was supposed to go with it ; and

without competition was successful. At tliis point in the history of the
State Eeforni School, was made, as I believe, the well nigh fatal mis-
take of an injudicious location. I am aware— and it may be proper for
me to say— that our Trustees, and many people of Marysville and vicin-
ity, honestl}^ and very positively differ with me in this. My sincere
hope is that time will prove their opinions, and not mine, to be correct.
No man Avould thus be made happier than myself I confess, however,
that witli every recurrence to the subject during the past two years, I
wonder more and more Avhy the present location was chosen. I cannot
understand wh}- the Commissioners, appointed for that specific purpose,
charged with such ample power and full discretion as placed the whole
State before them — I cannot understand tolrij they should have made the
selection which thc}^ did.

Marysville. it is true, proposed to pay, for the ground selected, thirteen
hundred dollars. But what Avas thirteen hundred dollars, balanced
against the vital interests of a State institution, to endure for all time ?
Or what that paltry sum, as an offset to the two hundred and fifty thou-
sand dollars then expected to be expended by the State in the erection
of buildings and other improvements upon the site to be selected? But
the Commissioners did go to Marysville, and noAvhere else. ISTo, not
to the City of Mar3'sville, a locality as healthy perhaps as that of any
interior town of the State, but sufficiently remote, certainly, from the
centre of that class of population from which the School was to derive
its existence. Kot to this comj^aratively favorable locality, (where the
School would probably have been successful,) they directed their steps;
but suffered them to be directed to a point immediately upon the Feather
Eiver, six or eight miles above Marysville — to an isolated spot, comj^ar-
atively inaccessible, out of sight, and away from any thoroughfare
whatever, to a spot of itself pleasant enough, but without any one sin-
gle special advantage or attraction which I have as yet been able to dis-
cover.

I am compelled to believe that, in going thither, the Commissioners
unintentionally consulted not the welfare of the whole State, but the
interests of a very small portion thereof Indeed, that small portion
might dwindle to a single individual — the owner of the land in question.
No'r do all the mistakes of the Commissioners end here. The City of
Marysville, as stated, paid Mr. Covillaud thirteen hundred dollars for his
land, (all it was worth — some say much more— for most of it is dry and
light, and of little value,) yet a deed was accepted from Mr. Covillaud,
in which it is recited that in and for the consideration of one dollar (f)
paid to said party h>j the State (?) not Marysville, he granted and sold the
said premises for the use and purpose of a State Eeform School, and for no
other purpose, to be so used "forever," or, in case not so used and occupied,
to revert— HO? to the City of Marysville, the purchaser who paid the full
value of the property— i?<iJ to the same Mr. Covillaud, who had already once
received an ample ecpuvalent for his land! This was the character of the
conveyance which I found on record on first going to Marysville. After
repeated and persistent, though often defeated, efforts, a new deed has
recently been obtained, bettering, but not fully completing the State's
title. Now, in case of abandonment by the State, the premises revert
not to Mr. Covillaud, but to the City of Marysville, and, by the terms of
the new deed, the State can use the property for any State institutions.
I only refer to this latter subject to show the want of care attending the

early steps of this enterprise. To show, in fact, that they were all
wrong. I have frankly expressed my convictions in regard to the isola-
tion and inconvenience of the site chosen for the Eeform School, as an
explanation of its present " condition." From these general objections to
the location, I have, as I think, rightly assumed its unsuitahleness. I
sincerely regret that my sense of right and duty will not allow me to
here rest this subject of location. I regret that my sense of obligation
to your honorable body compels me more particularly to state that which
to me is disagreeable, and which may be still more unwelcome to our
Trustees and to the people of Marysville and vicinity. I regret this es-
pecially, because those enterprising citizens, with few exceptions, have
always extended to our enterprise all possible encouragement and assist-
ance. When the funds of the State tailed, their influence and means,
with those of the Trustees, came to the relief of the School. Indeed, it
now exists mainly by such support, for the appropriations of the State for
the School, have long since been exhausted. Personal feelings and local
interests, must not, however, of courf>c, be permitted to interfere with
public interests.

From experience and observations of more than a year, as well as from
the unwavering and concurrent statements of a large number of j^ersons
residing in the vicinit}" of the Eeform School, and whom I believe to be
disinterested and truthful, I am well convinced that there are local ob-
jections to the place, which at once and immeasurably outweigh all
others. And here I need not refer to the extreme heat of this locality
during one third of the year. This is under.stood. Heat, though unfa-
vorable, may not be thoiight very seriously so. But bilious and inter-
mittent fevers and chills (not in ]\lar3'sville, but in the immediate locality
of the Reform School) are prevalent and serious. Scarcely any here, I be-
lieve, entirely escape this almost unavoidable scourge during the mala-
rious season ; and water, so essential to such an institution, is found in
the wells of the premises to be unfit for use — otfensive even for bathing.

Though the foregoing facts may have been, and may still be, withheld
or disguised, or even denied, they are nevertheless, in my humble opin-
ion, indubitable ; and I feel bound to frankly communicate them, as
essential for the information of your honorable body.

I confess, in my extreme anxiety and hope for the Eeform School, and
from the persistent (and no doubt honest) assurances of man}' citizens of
Marysville, I have tried to hope and think otherwise than at present ;
but my efforts fail. Indeed, my only hope for some time has been that
the clearing and cultivation of the swampy grounds in the vicinity of the
School would, when effected, improve its healthiness. But these low
lands and sloughs are of considerable extent. Several years must be
employed in accomplishing this necessary work. Good water, too. I have
no doubt, may be obtained here by sinking artesian wells ; and there is a
spring of very good water down in the river bank, not very far from the
premises, from which a small supply may be obtained during very low
Avater, in summer ; and water from the river, slightly turbid, may not be
unhealthy.

These are the few consolations which, with me, for a long time, have
helped to relieve the entire picture of our noble School, with all its sur-
roundings and associations, from a sad and almost hopeless aspect, both

as to its present and prospective condition. I have hoped too, that the
premises hereafter might be found more eligible for some other State
purpose (and for anything I think them more suitable than for the
institution for which thej^ were designed.) With these reflections I have
struggled on against untold obstacles and discouragements, ever hoping
for the best, and striving, Avith the Trustees, to make tlie best of a bad
case.

The question naturally arising here is, What shall be done, under these
unfortunate circumstances"/ In answer to this question, I will intrude
my own opinion upon your honorable body only so far as to respectfully
express the contident hope that the State may not, in consequence of
the misfortunes of the past, sacrifice all our anticipations for tbe future.
That she shall do so, however, has recently been sought, Avithout due
consideration of consequences, as I believe, in the advocacy of measures
now before the honorable Legislature, the first of which proposes the
repeal of the Keforni School Act, the abolishment of the School, and the
farming out of the unfortunate children of the State to the local institu-
tion of San Fi-ancisco ; the second, tlie conversion of the present prem-
ises of the Scliool into an Asjdum for the Insane. In the consummation
of these measures it is jn-oposed that California shall admit, in action,
that the cstal)lishment of a Keform School was an error on their part,
occurring from mistaken ideas of charity, dut}-, and interest, onl}- to be
corrected by revising her policy, and undoing what has already been
accomplished; for it must be admitted that not a single new feature of
the question of a State Reform School has arisen since the enterprise
was inaugurated by tlie Legislature of eighteen hundred and fifty-nine,
which has not been an argument for its necessity. I am not aware that
the projjosition of abolishing the State Reform School has, upon its own
merits, a single advocate in either branch of the honorable Legislature ;
nor is it my business to know whether it be so or not. I am however
allowed, as I do, to confident!}' hope that it is not the case; and had not
this measure been involved in another, I should not have presumed to
call the attention of your honorable bod}' thereto, and in beiialf of the
State Reform School, "beg, as I most earnestly and hopefully do, for con-
tinued existence ; for more than two short months of continued inter-
ruption and almost every possible embarrassment, in which to establish
a character, prove a success, and thus indicate the wisdom of the State
in its establishment. That in reasonable time, if permitted a fair trial,
it can and most assuredly will do so, I have not the slightest doubt ; and
that it may, under all the disadvantages incident to its present location,
is possible. To this end I am willing to pledge my humble, yet unfal-
tering exertions.

It would seem late to speak of the wisdom of supporting a Reforma-
tory School, and to urge its general importance. I beg to say, however,
that from my observafious and experience, I believe every consideration,
whether of 'humanity or economy, concur in support of their claims.
The experience of twenty of our own States, as well as that of other
countries during the past fifty years, proves that it costs less to save
homeless and friendless, and hence vagrant, but not generally criminal,
children and youths, than, by neglect, to permit their inevitable ruin ; less
to restore them to respectability and happiness through the kind offices
of a Reform School, than through the costs of crime and prison life and
its inevitable degradation, to destroy both body and soul, California will
2

uot be found an exception. On the contrary, from various circumstances
attending the early settlement of the State, such as the frequent sunder-
in"- of matrimonial bonds and parental ties, unusual impatience of
restraint, and the too general yielding of parental rule and control, the
frequence of casualty, the unusual attention to one's own immediate
business, the anomalous, undomiciled. and unsettled character of our pop-
ulation. I am led to this conclusion — that no State more than California
requires the liberal support of a Eeform School, excepting perhaps Is^ew
York.

There is already in every considerable town in the State a suiiirisingly
large number of neglected, outcast, and mischievous boys, rapidly ripen-
ing into as vicious characters as ever scourged society. At present, few
persons are found to pit}' these children, not of crime so much as misfor-
tune ; and fewer care for them. A cold indiiference or mistaken charity
alike passes them by, excuses their annoyance, and forgives their vices.
Tliis will no longer be the case when we have, accessible and flourish-
ing, a Reform School designed for the care and cure of these juvenile
offenders.

From what I have stated regarding the present location of the Ee-
form School, if I had not already so stated, it would, of course, be cor-
rectly inferred by your honorable body that I suggest a removal. I
would not be understood, however, as doubting the possibility of its par-
tial success where it is ; on the contrary, as I have before remarked. I
doubt not that, with due exertions, something of success may be realized
l)y the School, even under the disadvantages and disabilities attending
its present location. Better exist here, I would say, than not at all.
But should the Eeform School be removed, the most judicious re-location
whicli could be made would, in my opinion, be at some point conveniently
accessible from the City of San Francisco.

From that city, it must be conceded, the Eeform School will always
derive a very large share of its support, as well as its inmates. This
fact. I think, should not be overlooked. Our enterprise needs the good
will and co-operation of that city. I therefore trust the School may
never be located above Benicia or Martinez, nor south of San Jose. If
it be at hand, to be reached without much expense or loss of time, many
parents will avail themselves of its benefits for their wayward children,
and others will seek its protection for the unfortunate whom they would
befriend.

But these same parents and benevolent friends will long compromise
with duty, and exercise forbearance and charity to an indefinite extent,
before they will incur the expense and loss of time incident to a journey
to the country, there, away from their obseiwation, to leave their unfor-
tunate children, or those who have excited their interest and sympathj'',
and where subsequent visits must be attended with the unavoidable in-
convenience and expense incident to the first. And here I beg to say,
that the idea that Eeformatory Schools are moral pest houses, dangerous
to the surrounding country, is entirely without foundation. Beyond its
own enclosures, a well conducted Eeform School extends no influence,
either good or bad. They do receive great benefits from the interest
and benevolence of a surrounding community, but extend no evils in
return.

As is known to j'our honorable body, I have given much time to this
subject, and have had the opportunity of observing the practical work-
ings of Eeforinatory Schools in many of the Atlantic States, North and
South ; and here I beg to say that I have found the most successful of
these institutions in the very midst of large cities and towns, and that
never in a single instance have I heard the slightest objections to them
by the surrounding neighbors. So far from being objected to they are
everywhere considered as desirable acquisitions.

One of the arguments, and the main one, for locating Eeform Schools
in the country, is, that the boys maj^ be emploj-ed at agriculture. This
was formerly the idea of such schools, but it has long since, and almost
every where, been abandoned.

It is found that ordinary farming, though otherwise favorable enough,
is less prolitable than perhaps any other employment in which hoi/s can
be engaged. Hence, in many instances, where a large amount of land-
has originally been connected with some of those institutions in the
East, it has been disposed of, and various kinds of light manufactures,
requiring dexterity rather than strength, have been adopted instead of
agriculture, and with profit.

The idea of profit, however, in this connection, should only be under-
stood incidentally. It can never be made prominent in the manage-
ment of a Eeform School without interfering with the very objects of
its establishment. These institutions are never self-supporting; they
seldom pay half their cost ; but when well conducted they are attended
with other and better results than the saving or making of money, to
wit : the restoration to society, to respectability and happiness, of from
ninet}' to ninety-five per cent, of all the unfortunate youths committed
to their cai-e. This is their balance as an offset to their comparatively
trifling cost. Eeform Schools cannot and should not be measured by
an}' commercial standard ; not, at least, till we can rightly estimate the
value of human life, with its present and future interests ; not until w-e
can tell what it shall " profit a man to gain the whole world and lose his
own soul."

For the healthy employment of the inmates of a Eeformatory School,
and its proper classification, agriculture, horticulture, gardening, etc.,
are verj- desirable ; but to gain all these fiivorable conditions, twenty-
five to fifty acres of good ground is sufficient. Isolation, for the advan-
tages of a large farm, is found to be a mistake, everywhere. The above
amount of good ground, convenient to a mai'ket, is better than ten
thousand acres remote in the country. And here I beg to suggest that
a pleasant site upon some island in the Bay of San Francisco, would be
more favorable than any other which could possibly be found. Such, I
suggest, should, as soon as practicable, be secured ; and here an expen-
diture of a few thousand dollars would be sufficient to inaugurate a cer-
tain success. Two of the best similar institutions in the world, perhaps,
are similarly situated, viz : The "Farm School," on Thompson's Island,
Boston Harbor, and the " Asylum," on Eandall's Island, New York.

Thus located, a Eeformatory School secures a combination of almost
all possible advantages ; among which, especially, are the avoidance of
the annoyances and expense attending frequent escapes, the rendering

unnecessary expensive enclosures and guards, gratings, bolts and bars,
and hence the prison-like and forbidding aspect of the place, (otherwise
an unpleasant necessity ;) and on the contrary, the obtaining for the
School the inviting and cheerful features of home. A location like the
above indicated, I presume may now be obtained, and at a small cost to
the State ; no time, I think, should be lost in obtaining it.

I doubt not that whatever course j^our honorable body may see fit to
pursue in the premises, will wisely have reference to the permanent inter-
ests of the Institution in question. It is sincerely believed that at your
hands it will receive that fostering care and encouragement bj^ which
alone it may be made either creditable to the State or profitable to the
unfortunate delinquents that should be committed to its keeping. In
this connection, I beg to remind your honorable body, as heretofore re-
marked, that we are now entirely without means, excejjt those of our
own pockets or credit, or the indulgence of our friends, and that, in con-
sequence, while the proper season is rapidly passing, nothing is being
done upon the premises, either in repairing the damages of the recent
floods, the improvements of ground, or even the j)lanting of crops for
our OAvn future consumption ; that we are, in all respects, in susjjense,
anxiously awaiting such early action on the part of the honorable Legis-
lature as will enable us at once, and under favorable auspices, to com-
mence that good work, whose results I confidently leave for the future
to approve.

I remain, most respectfully,

Your obedient servant,

JOHN C. PELTO^s",
Superintendent State Eeform School.

REPORT OF COMMITTEE

RELATIVE TO THE

C0nbiti0n 0! t|x ^tate Wmu

AT SAN QUENTIN.

BENJ. P. AVERY STATE PRINTER.

HE F» O I^ T

Mr. Speaker : — In the performance of the duty assigned them, your
Committee visited the State Prison on two occasions :

First, on the eiy-hteenth dav of January, at which time the weather
was stormy, and a portion of the Committee were not able to accom-
pany us, by reason of illness ; from these causes, our investigations were
not as thorough as we desired. But on our last visit, the examination
was careful and satisfiictory, as we had ample opportunity to examine
every portion of the buildings and the condition of the prisoners.

UNIFORM.

There are several things to which the attention of your Committee
has been called, which need immediate reform. Prominent among these,
is a uniform for the prisoners, the want of which is seriously detrimental
to discipline, and also a constant assistant to escapes.

ROOM.

Another is, the want of room ; by which, large numbers of prisoners
are crowded together in small apartments, a practice which, aside from
considerations of health, is calculated to lead to the most serious moral
consequences to the prisoners themselves.

WATER.

Another source of anoyance is, the want of a proper supply of water ;
every drop, at present consumed in the prison and vicinity, is trans-
ported from a distance, at an indirect annual cost of about one thousand
dollars.

NEW BUILDINGS.

The classification of prisoners, which commends itself to the attention
of your Committee, is impossible, under the present circumstances, and
will be so. until such time as new buildings enable the Warden to put
into practice his own wise and humane views upon this subject.

HEALTH AND FOOD.

As nearly as we have been able to ascertain, the general health of the
convicts has been good, and their food sufficient, but by information re-
ceived from the present officers, and as well from the prisoners, it ap-
pears that some of the food, furnished by the late Board of Directors,
was entirely unfit for use.

REFORM.

There have been undoubtedly great reforms introduced within the last
two years, and numerous abuses have been corrected ; yet, we are com-
pelled to say, there is now room for great improvement.

BUILDINGS.

The buildings are in excellent condition, with the exception of a por-
tion of the roof of one of the workshops, and the main Prison. In conse-
quence of the late heav}^ storms, the walls, in places, became thoroughly
saturated with water, i-endering them, for the time, almost untenable.

NEW BUILDING.

The new building, occujiied by Thomas Ogg Shaw, is of the most sub-
stantial character, and excellently adapted to the purposes for which it'
was erected.

MAIN PRISON.

The main Prison Building stands on the south side of the j'ard, and is
one hundred and eighty feet long and twenty -eight feet wide, contain-
ing, in the upper story, forty-eight cells, each measuring six feet by ten.
These are of the most approved construction, if we make the important
exception of deficient ventilation. The most noxious gases accumulate
during the night time, which may however be mainly owing to theii*'
over-crowded condition, there being no fewer than four prisoners in each
cell. This we conceive to be one of the most objectionable features in
the present condition of the Prison, and it probably cannot, for the
present, be avoided.

The sleeping rooms of the lower Prison we consider to be of the very
worst character, fx'om thirty to forty prisoners being confined in rooms
of twentj'-seven feet by twenty-two. There are several rooms of this
description, where, during the hours of confinement in the night, the air!
becomes almost poisonous.

Aside from the discipline, which it is impossible to enforce where so
manj' criminals are herded together, the common dictates of humanity
would seem to call for a speedy and thorough reformation in this par-
ticular.

The facilities at present afforded of unrestricted intercommunication
between convicts, opening, as it does, the opportunity for forming plans
of escape, will continue until the worst class of criminals are contined in
separate cells ; and this end should be sought, as a matter of public econ-
omj and safety, no less than of justice to those upon whom we are called
to administer the penalties of law. There seems no remedy, however,
short of the erection of new buildings of sufficient capacity to accom-
modate at least one half of the prison'ers now incarcerated.

Your Committee therefore respectfully ui-gc the necessity of the erec-

tion of new buildings, in Avliicb the prisoners may be properly classified
and secured beyond the possibility of escape.

NEW BUILDING.

We would recommend an appropriation of twenty thousand dollars,
and the immediate erection of a building, to be one hundred and eighty
feet by twenty-eight, and so arranged as to accommodate about three
hundred convicts. This appropriation, with the labor of the convicts, it
is estimated, will cover the entire expenditure ; and we Avish emphati-
cally to repeat, that until this is done, it will be impossible to enforce
wholesome dicipline or prevent escapes.

PRISONERS.

Your Committee had the prisoners mustered before them, to the num-
ber of iive hundred and seventy-six, which accords with the Prison Eeg-
ister.

On conversing with the convicts, we were unable to discover anything
like discontent, if we except those who are crowded thirty or forty in a
room, at night, and their complaints in that regard we deem well
founded.

As a general thing, tbeir clothing is sufficient and comfortable ; but we
are impressed with the necessity of the adoption of a Prison uniform.
A stranger is unable, while making a round of this Institution, to dis-
tinguish a convict from any of the officers or attaches ; and this fact
has ah\ ays rendered recapture, on escape, very difficult. Whereas, if
clothed in a convict uniform, their identification by the inhabitants of
the country through which they pass, would make their recapture com-
paratively easy.

This uniform could be cheap, and manufactured within the Prison
walls. A small amount of machinery would be sufficient, not only to
furnish all the clothing and blankets for the prisoners themselves, but as
well these articles for the other public institutions of the State, for which
large appropriations are annually demanded. The entire cost of the
machiner}' would be saved to the State in a single 3'ear, nor would it
compete in the market with any branch of industrial labor.

CHAPLAIN. »

There seems to be a great need of some spiritual teacher to attend to
the religious wants of the convicts. In every other well regulated
prison — so far as your Committee are advised — this want is met by the
appointment of a Chaplain, and it has always been found highly bene-
ficial. We therefore recommend that some minister attend regularly
every Sunday — alternating the visits of Eoman Catholic and Protestant
ministers, so as to supply the spiritual wants of all classes of prisoners.

DISCIPLINE.

The want of room and the absence of anything like uniformity in the
dress of the prisoners, are the great evils with which discipline has to
contend.

Many of the most desperate convicts are confined for life — the chance
of death is forgotten when weighed against the prospect of freedom.

And here we would suggest that the construction of the present Prison
gate seems to invite attempts to escape. Several sanguinary conflicts
have taken place at this spot, endangering the public safet}^ and costing
many lives. In order to obviate a recurrence of this evil, we recom-
mend the construction of an outer gate, which might be closed while the
inner one is opened. We are of the opinion that a larger number of
persons have been killed in attempted revolts in the State Prison of Cal-
ifornia, since the year eighteen hundred and fift}^, than in all the other
States aggregated.

Another reform to which we have already alluded, and which seems
desirable, is the classification of the prisoners. Men not naturally
vicious are noAV, of necessit}^ kept in the most intimate association with
the vilest of criminals. Under such indiscriminate herding, the younger
convicts soon become thoroughly demoralized, rendering reformation
entirely hopeless. It will not be necessary for us here to recapitulate
the remed3^

Puring the past administration, some of the officers were in the habit
of borrowing, from the convicts, money which had been deposited with
the AYarden at the time of their incarceration. This money, in some
cases, has never been repaid. That fact, however dishonorable, is insig-
nificant, when compared with the corrupting influence of such a repre-
hensible custom, and we recommend that the borrowing of money from
convicts, or the acceptance of presents by any oflicer, from a convict,
during his term of incarceration, be made a penal offence, punishable
with such fines and penalties as the Legislature in its wisdom may see
fit to inflict.

BATHING.

The want of adequate, means for bathing and other appliances inti-
mately associated with cleanliness, is also a serious evil ; but this cannot
be remedied until an ample supplj" of water is introduced within the
Prison walls.

ARTESIAN WELL.

It seems feasible to do this ]jy an artesian well — requiring only a small
appropriation for the purchase of the necessary tools and fixtures — the
cost of which would, in a little time, be fully repaid by a saving of the
water tax.

• CHANGE OF CLOTHES.

The Committee further recommend that each convict be furnished
with two complete suits of clothes, in order that they may be able to
change at least once a week.

PHYSICIAN.

It seems absolutely necessary that a Physician reside at or near the
Prison, where he could give daily attendance to the sick. Over six hun-
dred persons are incarcerated in and connected with the Prison, and the
common dictates of humanity require that thej" be not left Avithout pro-
per medical attendance. As nearly as we can learn, such attendance in
the past, has been irregular, and altogether inadequate to the wants of
the Prison. The office, at the best, is an ungrateful one, and yet it de-
mands high medical skill ; and unless the compensation allowed be liberal,
it will prove difficult to find a man of ability who will accept the situa-

tion. Aside from the general sanitary supervision of the Prison, one of
his duties might be the inspection of the different articles of food which,
if under the direction of a man of character, independent of the Warden,
and accountable only to the Directors, would remedy many of those
serious evils which in the past have been so prevalent.

officers' quarters.

The building now occupied b}-- the Warden is said to stand on ground
belonging to Mr. Eoss, and it seems not at all improbable that at some
future time, if this matter is not now adjusted, the State may be dragged
into another of those expensive suits at law which have alread}"^ cost so
large a sum. In order to set this matter at rest, we recommend that
the land be condemned for public purposes, according to provision of
law.

The building, though not possessing the accommodation it should, is
a comfortable one, but is greatly wanting in necessaiy furniture. There
is no other public institution in the State so much neglected in this
regard, and we recommend that some provision be made to secure the
furnishing of the offices, at least up to the point of common respecta-
bility. It is also desii'able to have more room for the guai'd, since they
are now compelled to occupy a room as much crowded as any of the
Prison cells.

KITCHEN.

In the culinary department we found order and cleanliness, the food
wholesome and well cooked, and, on conversing with several of the
prisoners, found that the utmost satisfaction pervaded them all in regard
to the character and quantity of their rations.

CONTRACTS.

Your Committee examined the existing contracts, and will say that in
our opinion most of them are unwarrantably low; in fact, being scarcely
more than suthcient to feed the prisonefs, and not enough to meet the
burden of their entire support. We are of opinion that, if properly
managed, the labor of the convicts can be made to fully support the
Prison. The contracts range from thirty to seventy-tivc cents per day,
and we would beg leave to recommend that the Board of Directors have
authority to re-lease the prisoners, and make new contracts.

It would seem to be almost impossible to employ the convicts in such
a manner as not to interfere Avith some branch of industry, and in those
particular kinds of business where they are brought into direct compe-
tition with free labor, if the compensation demanded on the part of the
State were only a fraction below the cost of free labor, the principal
objection Avould be removed, and the contractor still be able to realize a
profit on his capital by the steady labor of men under his control ; and
we may fairly ask why the State Prison of California cannot be so con-
ducted as to make it — as are other institutions of a similar character in
the older States — not only self-supporting, but a source of revenue ?

The Committee are fully convinced this can be effected, and that
speedily, b}' proper management on the part of the Directors of the
Prison, provided they have the aid of wise and careful legislation.
And we recommend this Institution to the particular attention of
the Legislature, as a matter of the first importance in the question

of economy in the State Government. And it may not be amiss to
say that the State Prison has been mainly instrumental in placing Cali-
fornia in her present impoverished condition. Hundreds of thousands
have been consumed, year after year, by the parties having control of
its affairs, while the management has been of the very worst character.
During the late administration, however, the discipline was improved,
and expenses materially lessened ; abuses have been in part remedied,
and the general tone of the Prison management has become more
thorough and efficient.

In conclusion, we think the time of the Legislature will be M^ell em-
ployed when it aims to I'emedy the present defects in the Prison man-
agement, and place it beyond the necessity of an annual appropriation.

All of which the Committee most respectfully submit.

KEEVE, Chairman.

ROLL OF STATE PEISON— March 11, 1862,

Showing Name, Nativity, Crime, Term of Sentence, and Cnunti/ ichence sent.

Nativity.

County.

Allen, James

Axforil, John

Adams, Isaac

Alk'rtou, Asa ,

Andrews, George

Anderson, James ....

Allen, T. J

Ah Cow

Ah Pat -.

Ah Goey ,

Ah Tick

Ah Hoy

Ah Ham

Ah Man

Ab Sing ".

Ah Lip

Ah Lung

Ah Ki..'

Ah Bon

Ah Nung

Ah Hung

Ah Fook

Ah Fung

Ah Chiug

Ah Tape

Ah Lum

Ah Cue

Ah Shang

Ah Wye

Ah Pow

Ah Pong

Ah Coou •.

Ah Fook

Ah Hung

Ah Ye

Ah Ling

Ah Sam

Ah Chu

Ah You

Ah Lum

Ah Him

Ah Hop

Appo

Ah Chu

Ah Ying

Ah Sing

Ah Ki

Ah Chun

Ah Sam

Ah Chung

Alameda, Juan

Anduago, Rohelio

Arias, Casimiro

Alvarez, Jesus

Altamarana, Eugenio

Acosta, Ricardo

Avilez, Domingo

(Irand larceny.,
Grand lareeny..
(Jrand larceny.,
Grand larceny.,

Rot.hery "...

Burjrlary

England

Kentuckj'

Ohio

Scotland

Virginia j Roljbery

China Grand larcenj'

China Grand larceny

China (Jrand larceny

China (Jrand larcenj^

China liurglary

China iGrand larceny

China Grand larceny

China Burglary -.

China I Assault intent to commit rape

China
China ..
China ..
China ..
China ...
China ,.,
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
Chiua ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
China ...
Jamaica.
Mexico...
Mexico...
Mexico...

Chile

Mexico...
Mexico...

(Jrand larceny

Burglary ...

Burglary

Grand larceny....

Burglary

Attempt at arson
Grand larcenj-....
Assault with intent to murder

Grand larceny

Manslaughter

(Jrand larceny

Murder in second degree......

Murder in second degree

(i rand larceny

Manslaughter

Burglary

(Jrand larceny

(Jraud larceny

Grand larceny

(Jrand larceny

(J rand larceny

Grand larceny

Burglary

Grand larceny

Rape

(rrand larceny

Manslaugh ter

Assault with intent to murder

Grand larceny

Assault with intent to murder

2 6
1 ...
1 ...

San Francisco.

Alameda.

Sacramento

Nevada

El Dorado

f^an Francisco.

El Dorado

Sacramento ....

Butte

San Francisco.
San Francisco.
San Francisco.
Sacramento ....

Nevada

El Dorado

Siskiyou

Placer

Tulare

Trinity ,

Placer

Tulare

Tulare ,

Trinity

Placer ,

Placer

Trinity

San Francisco.,

Mariposa

Nevada

Tuolumne

Siskiyou

S.an Francisco..
San Francisco..

Yuba ...

Yuba

Tuolumne

Amador

Placer

Calaveras

Yuba

Sacramento

Nevada

Placer

Tuolumne

Sa-nta Clara

Yufea

Alameda

Siskiyou

Calaveras

Placer

El Dorado

EoLL OF Prison — Continued.

Name.

Nativity.

Apaulacio, .Jose

Amesaro, Lorenzo

Arno, Amador

Acuno, Creceneio

Bein, William

Brady, .James

Bolton, Thomas

Boyne, Edward

Bagley, John

Bryant, William

Burns, John E

Berger, William

Bates, George (negro).

Bu''nham, Francis

Balk-nger, John

Bowley, Victor

Burke, John

Burrell, E Iw'd (negro)

Bullock, Ezekicl

Boyer, E. B

Brooks, Frank

Blackwood, John

Baker, Charles

Buckley, M(jrri5(negro)

Barlley, Benjamin

Bo3-le, Charles

Buck, James M

Brown, J. B

Bonnell, Stephen

Burns, William

Bleil, Christian

Bronner, Charles

Bowen, Jack

Baker, Wagman

Bernstein, Julius

Brooks, Henry

Bernstein, Morris

Brewer, David

Beller, Morris

Bichman, A

Boone, William

Bowlin, J. William

Bagley, John

Bii\., vnari^.

B'tifhor. 'SI' es

Brannigan, Mike

Buenavides, Jose

Basfjuez, Tiburcio

Bracam<mtez, Juan

Billeguez, Jose M

Berryessa, Ramon

Bant, Johu

Balez, Fermin

Bourjeno, Madaline....

Bealobo, Jesus

Blanco, .Tose

Blonmel, Frederico

Bernal, Antonio

Boggs. James B

Coutri'jux, Victor

Cousland, P. H

Connelly, Thoma.s

Carter, William T

Carroll, John E

Chile

Mexico

Germany

Ireland

Pennsylvania.

Ireland

England

Ireland

Germany

Missouri

England

Ohio...

New York

Ireland ,

Jamaica .

Ireland

Germany

New York

New York ,

Canada

Isle of Wight .

Ireland

Virginia

Missouri

Michigan

Ireland

Xew Yoik

Tventucly

New York

Illinois

Crime.

Term.

County.

Germany

Kentucky

New York

Ireland

Massachusetts

Maryland

Ireland

California

Mexico

Guayaquil

California Indian.

Mexico

California Indian.

Mexico

Chile

California

Missouri

France

Pennsylvania

Ireland-

Kentucky

Ireland

Assault with intent to murder

Grand larceny

Burglary

Assault with intent to murder

Embezzlement

Grand larcen)'

i Grand larceny

Grand larceny

I Robbery

Grand larceny

Assault with intent to murder

(rrand larceny

Grand larceny

Crime against nature

Murder in second degree

Robbery

Murder, second degree

Assault intent to murder

Robbery

Grand larceny

As.<ault to rob

Grand larceny

Robbery

Burglary

Robbery

Grand larceny...

Murder

Grand larceny....,

Grand larceny...

Granil larceny

Grand larceny

Robbery

Grand larceny

.-■and larceny

Ti-and larceny

Forgery

Burglar^'

Grand larceny

Robbery

Grand larceny

Robbery

Rape

Robbery

Grand larceny

Assault intent to commit rape

Grand larceny

Murder in second degree

Grand larceny

Murder (commutation)

Grand larceny

Assault to murder

Grand larceny

Manslaughter

Grand lareenj'

Attempt at arson

Murder in second degree

Robbery ,..,.,

Murder in second degree

2 ..
20 ..

4 ..
6 ..
1 ..

5 ..
20 ..

4 ..

4 ..
.3 ..
1 ..

5 ..
1 M
1 ..

5 ..

1 ..

3 ..

2 ..
.3 ..

10 ..

6 ..
6 ..

3 ..
10 ..

6 ..

2 ..
Life.

Los Angeles

Santa Clara

El Dorado

iSan Joaquin

San Francisco....

Sacramento

San Francisco....

Yuba

San Bernardino..
San Francisco....

Shasta

San Francisco....

Shasta

San Francisco....

Placer

Yuba!..

Sierra

Sacramento

Sai-ramento

Nevada

Yolo

San Francisco....

El Dorado

San Luis Obispo.

El Dorado

San .Joaquin

Tulare...

Colusa ,

San Francisco....
iSau Francisco....
San Bernardino..
San Francisco....

Sierra..!

San Francisco

iSan Francisco

ISan Francisco

jLos Angeles

San Francisco

El Dorado ,

Siski3'ou

Sacramento

San Francisco

Sacramento

San Francisco

Sacramento

Los Angeles

Butte

Santa Clara

Sutter

Santa Clara

Sacramento

Calaveras

Yuba

Santa Clara

San Joaquin

Sonoma

San Francisco

Siskiyou

Tuidumne

Shasta —

Napa

EoLL OF Prison — Continued.

Name.

Nativity.

Connelly, James Ireland

Chase, Henvy R New York

Cochran, George Irvlanil

Connor, .John Ireland

Church, William Pennsylvania.

Carlow, Lewi.s Kentucky

Cook, 'William Maine

CofeU, George Pennsylvania.

Coffee, Cornelius Ireland

Clark, A. (negro) Missouri

Clement, Frank New York

Chrystal, Thomas Scotland

Coddington, Robert... Ohio

Clinton, William Massachusetts

Chase, S. J Ireland ,

Copelaud, James Tennessee

Chambers, James J.... Tennessee

Courtney, Edward Irelami

Campbell, Eugcni' Ireland

Cunningham, Thoma-. Pennsylvania.

Collier, G. W Virginia

Cameron, William Xew York ,

Cerano, Jo>e Maria California ,

Castro, Felii)e iMexici

Cuentes, Jose California

Cardinas, Jose Maria.. (Mexico

Ceno iMar. Indian....

Carrere, Julien 'France

California

Brazil ,

Mexico ,

Chile

California Indian

Manila

California

China

Germany

England

V'^irgiuia

Ireland

New York

Carabajal, Juan

Chiviria, Manuel

Castillo, Jesus

Cobardis, William....

Cajanilla, Jos6

Cassauie, John...!

Clavelle, Racine

Chung, Ah

Dilloway, Edward....

Davis, John

Driscoll, J. W

Dobsim, J. II

Dunn, A. G

Daltuu, H i Louisiana.

Davis, John. jNew York

Darling, Thomas [Ireland ....

Donnelly, Patrick

Dunn, Frank

Douglass, Collin

Dixon, AViiliam

Dalton, Peter

Davis, Charles

Dillon, James

Desty, C. E

Davis, A. P

Duportcillc, E

Davis, Thomas

Dias, Dcvoe

Devoe, Francois

Dumas, Francois

Domingo, (Indian)

Elliot, Henry, (negro)

Edwards, John

Ellis, William

Embers, L. (negro)

Everson, Charles

Ireland

Ireland ....

Ireland

England

Ireland

Kentucky

Ireland

Isle of France....

Gi^rmany

France ,

Ireland

Chile

France

Italy

California

Kentucky

England

Germany

South Carolina....
Vermont

Crime.

Term.

County.

Grand larceny , 3

(irand larceny 10

Murder in second degree 14

(irand larceny 14

Grand larceny 5

Murder in second degree 11

(irand larceny 2

Murder in second degree 10

Robbery ,"5

Robbery 5

Grand larceny 4

Grand larceny 2

Manslaughter 3

Robbery 3

Grand larceny 3

Perjury 5

Grand larceny 10

Grand larceny 1

(irand larceny 1

(irand larcenj' 1

Assault intent to commit rape 5

15urglary 2

Grand larceny 3

Rape 7

Grand larceny 5

Assault intent to murder 5

Manslaughter 3

Manslaughter 6

Grand larceny 4

Grand larceny 2

Burglary 2

Counterfeiting 3

Assault to commit murder.... 5

Grand larceny 1 .

Mayhem 1 .

(irand larceny 3 .

Grand larceny 10 ,

Murder, second degree 40 .

Robbery 10 .

Mayhem ". 10 .

Murder, second degree 20 .

Grand larceny 16 .

Assault to commit murder.... 6 .
Assault to commit murder.... 2 .

Assault to commit murder 1

Burglar^' 3 .

Burglary 5 .

Grand larceny 15 .

Grand larceny 4 .

Grand larceny 2 .

(irand larceny 3 .

Grand larceny 1

Grand larceny 2 ..

Assault with deadly weapon.. 1 .

(irand larceny 3 .,

Manslaughter 6 .,

Murder, second degree 10 ..

Grand larceny 7 ..

Assault to commit murder 2 ,.

Murder, second degree 10 ..

Burglary and assault 44 ..

Robbery 11 ..

Manslaughter 5 ,.

Grand larceny 2 ..

Trinity

Tuolumne

Placer

San Francisco..

Santa Clara

Tuolumne. ...^...

Sierra

Tuolumne

San Francisco..

Sacramento

San Francisco..
San Francisco..

Colusa

San Francisco..

Marin

San Joaquin....

Napa

Sacriimcnto ,

Solano

Sacramento

Mendocino

Solano ,

Alameda .,

Calaveras ,

Alameda

Siskiyou

Klamath

Tuolumne

Los Angeles

Butte

San Francisco...

Placer

Los Angeles

Yuba

Santa Clara

Tuolumne

San Francisco...

Klamath

Placer

Calaveras

Tuolumne

Butte

San Diego

Siskiyou

Butte

San Francisco...

Sacramento

Placer ,

Santa Clara

San Bernardino

Amador

Sacramento

Placer

El Dorado

Sacramento

San Francisco....
Santa Barbara...
El Dorado... .....

Sacramento

Amador

Los Augeks

Solano

HoLL OF Prison — Continued.

Name.

Nativity.

County.

Emerson. Thomas

Eastman, H. T

Espino^a, Felipe

Escarsijii, Refugio

Ennis. Joseph

Espinosa. Juan

Espinosa, Juan Jose...

Estrado. Ramon

Escalante, Perfecto

Fleck, William

Fletcher. Alfred

Farrow, A. J

Freeman, G. 11

Fanning. D

Finn. Robert

Findley, Edward

Fowler, J

Fritzpatrick, Thomaii..

Frazier, Josephus

Flannigan, Pat

Forrest, Joseph R

Featherston, John

Foley, George

FerrV. Jas. H

Fisher. Wm. P

Fuglcr. F

Francisco, (Indian)....

Fegucrroa, Jose

Fow Fung

Fernandez., Jo.^e

Grant, Michael. -.

Gallaghjr, Thomas

Green, Charle-^

Garborough, J. (negro)

Grey, Oliver...-

Green, William

(4reen. Joseph

Gillespie. Joseph

Gorrell, Jas. (disch'd)..

Gantz, Thomas

Graham, R<jbert

Griffin. Jas. (disch'd)..

Gallagher, James

Gatewood, S. D

Graham, James R

Garcia, Jose

Garvija, J. Bautista...

Guttierez, Agustia

Gomez, Vicente

Garcia, Palomano

Godorez. Pablo

(Taliudo, Francisco

Garcia, Lorenzo

Holman, H. (disch'd)..

HoU.in, Green

Harris, William

Harper, W. S

Harris, Charles

Hylr.ud, David

Hail, Samuel

Hammond, Thomas...

Hoese, John

HoSman, William

Hope, T. B

Missouri

Vermont

Mexico

Portugal

Mexico 'Grand larceny

Mexico [Manslaughter

Californi.a iGraud larcenv

Grand larceny

No crime specified

Murder, second degree.

California

Ohio

Pennsylvania.

Ireland

Grand larceny

Robbery

Murder, second degree.

Grand larceny.

Grand larcenj'

Ireland |Grand larceny.,.

Grand larceny

Grand larceny ,

Manslaughter ,

Grand larceny

Grand larceny ,

Assault to commit rape

Manslaughter

Grand larceny

(Iraud larceny

Vssault with deadly weapon.

Grand larceny ....

Robbery

Ireland

Ireland -

Inland

Arkansas

New York

Ireland

Maine

New York

California

Mexico

China

California luiliiin

Ireland

Maryland

Jamaica

Maryland IRobbery

Tennessee iGrand larcenj'

England [Grand larceny

Efussia Received stolen goods

Grand larceny

Counterfeiting

Grand larceny..

Grand larceny

Arson in second degree..

Murder in second degree

Received stolen goods....

Grand larceny

Gra ad larceny

Grai'.d larceny

Grand larceny

Assault with intent to murder

Grand larceny

Granil larceny

Grand larcenj^

Assault with intent to murder

Burglary

Manslaughter

Assault intent to commit rape

Murder in second degree

Grand larceny

Murder in second degree

Assault with intent to murder

Robbery

Grand larceny

Kentucky

Pennsylvania .

Ireland

Kentucky .
Ireland .. .
California.

Mexico

California.

^Mexico

Mexico

Manila

California
Mexicf

Vermont ..,
Australia..

Ohio

Virginia...
Ireland ....
England ..
Ireland ....
Germany..
Germany..
Maryland .

San Bernardino .

Butte

San Francisco....

Butte

Calaveras

Yuba

Los Angeles

Placer

Amador

Yuba

Mariposa

Alameda

Napa

Siskiyou ,

San Joaquin

Placer

Tuolumne

San Bernardino

Plat'cr ,

San Bernardino

Merced

San Joaquin

Los Angeles

Yuba

Nevada

Los Angeles

San Francisco...
San Francisco...

Tuolumne

"Santa Clara

Bntte

Sau Bernardino.
San Francisco...
San Francisco ..

Calaveras

San Bernardino.

Santa Clara

Shasta

San Mateo

Napa

Marin

Mariposa

Alameda

Calaveras

Siski3'ou

San Mateo

Santa Clara

Los Angeles

Calaveras

Del Norte

Sonoma

Plumas

Sacramento

Yuba

Sacramento

Napa

Yolo

Colusa

San Francisco...

13
EoLL OF Prison — Continued.

Name.

Harrington, W

Hamilton, Jamc^;

Henderson, William...

Harmon, Charles

Howard, James

Haidenbrook, D. D....

Harris, Joseph

Hoyt, George

Hamilton, William

Holmes, >Jamcs J

Hannum, James '

Hall, James

Henry, James

Harris, William

Hawley, Isaac

Hargain, Michael

Hudson, Henry

Higgins, William

Horrace, Charles

Hunt, James

Harris, Daniel

Harris, John

Howard, Charles

Hansen, Charles

He Fung

Jackson, Edw'd(negro)

Jacobs, David

Johnson, .Tames

Johnson, Pre.^. (negro)
Jero, James

Nativity.

Crime.

Term.

County.

Jackson, Jnsiah(negro)

Johnson, James H

Jackson, Henry

Ignacio, Jose

Knox John

Kirk, George

Keene, .John

Keefe, William

Keller, John

Kibbee, Aniariah

Kennedy, Henry

Kearney, Chas. (negro)

King, Thomas J

King, Theodor Jo.'^eph
Kendall, W. (disch'd).

Kiley, T. J ,

Kibbin, G ....,

Kennedy, James

Lynch, John ,

Levcrsage, AVilliam....

Long, Jeremiah

Libkisher, T. J

Lehman, John

Love, William

Lee. George ,

Lamb, W. K

Lombard, Pete ,

Lyons, Cornelius

Lynk, Saul

Luddington, Daniel....

Lowe, John

Lee, .James

Loodv, George

Lee, "W

Canada

Massachusetts...

Louisiana

Kentucky

Ireland

New York

Prussia

Massachusetts

England

Massachusetts

New York

Scotland

Ireland

Missouri

Ireland

Louisiana

New York '

Indiana

Alabama

Germany

Russia

China

Kentucky

Ohio

Irelanil

Mississippi

Italy

North Carolina....

New York

England

California Indian.

Massachusetts

Tennessee

Ireland

Massachusetts

Ireland

Illinois

Ireland

Maryland

Massachusetts

France

Ireland

New York

Ireland

England

Ohio

Germany

Prussia

Illinois

Sandwich Islands

Missouri

Martinique

Massachusetts

Germany

Ohio

New Jersey

Louisiana

Pennsylvania

Illinois

Grand larceny

G rand lai-ceny »,

Grand larceny

Grand larceny ,

Rape

Burglary ,

Grand' larceny

Grand larceny

Counterfeiting

Manslaughter

B u r g 1 a ry

Arson

Grand larceny

Murder (commutation)

(i rand larceny

Grand larceny

Burglary

Grand larceny

Burglary

(traiKl larceny

Burglary

Grand larceny

Burglary

Grand larceny

Manslaughter

Grand larceny

Murder in second degree...

Grand larceny

Assault with intent to murder

Crime against nature

Grand larceny.. -

Murder in second degree..
Murder in second degree...

Grand larceny ,

Muriler in second degree..

Rubbery

Grand larceny

iVIurder in second degree ..

Grand larceny

Robbery

Murder in second degree..

Grand larceny

Burglary

Murder in second degree

Grand larcany

Murder in second degree

Manslaughter

Murder in second degree

Robbery

Assault with intent to murder

Burglary

Grand larceny

Forgery

2 ...
Life.
2

1 "e

7 ...

1 ...

4 ...

2 ...
1 ...

1 6

6 ...

4 ...

3 ...

2 ...

2 ...
1 ...

3 ...

1 ...
25 ...

5 ...
5 ...
5 ...
5 ...
Life.

30 ...

4 ...
10 ...

8 ...

2 ...
2 ...

15 ...

El Dorado

Sierra

Colusa

Sau .Joaquin

Sacramento

Solano

San Francisco

San Francisco.....

El Dorado

Calaveras

El Dorado

San Francisco

Mariposa

Sacramento

San Bernardino .

San Francisco

Siskiyou

Yuba

El Dorado

Sacramento

Santa Barbara....

El Dorado

San Francisco....

San Francisco

Nevada

Sacramento

Nevada

Sacramento

San Francisco....

Sau Francisco

Butte

San Bernardino ,

Calaveras

Santa Clara

Sacramento

Tuolumne

San Francisco

San Francisco....

Sacramento

Sonoma

Tehama

Calaveras

Placer

San Francisco....
San Francisco....

Sacramento

Yuba

El Dorado

San Francisco....

Amador

Butfe

Tuolumne

Sacramento

Mariposa

San Joaquin

Sierra

San Francisco .

Sacramento

Nevada

Sacramento

San Bernardino .

Amador

San Bernardino .

EoLL OP Prison — Continued.

Name.

Nativity.

Crime.

Term.

County.

Lulio, Francisco ,

Luce, Jose de la ,

Lopez, Simon

Leira, Quirino

Lopez, Leaudro

Lopez, Antunio

Labbo, Peter

Murrey, Alexander

Maxfield, David

Mickle, William

McKinuey, J. H

Mulhare, Jamef

McLane, J. (Emerson),

Mahoney. Lewis

Murray, Thomas

McKinuey, Thomas....

MuUins, .James

Martin, William

Morris, Isaac (negro)..
McLure, Alexander....

Mills, John

Miller, William

Metz, Peter

McGrath, William

Marshall. J. W

Mansfiuld. J. S

McQuade. James

Moore, .Joseph

McCullum, Isaac

Mohr, John

McCauley, James

Marchand, Auguste

Madison, Henry

Morris, William

McCarty. .John

Murdont, .James H

Montezuma, Hamilton.

Mundy, John

Melrose, Alfred

McBride, Kay

Murphy, William

McGlaughlin, C

McGrovey, James

Morrow, Jnhn

Mathews, William

Mahoney, Tim

Mullarky, M

McCormiek, Charles...

McClintic, Sam

Maker, P. S

Mortimer, C. G

Myers, William

McGuire, .JamLS

Morgan, B

Murphy, Dennis

Madriago, Anaeleto....

Marinas, Jesus

Mendoza, Jesus

Marano, Manuel

Montoya, Patricio

Merian, Marco..;

Miguel, Jose

Marquez, Miguel

Myes, Romaldo

Mexico

Portugal

France

Ireland

New York

Ireland

Connecticut... ....

Ireland

Illinois

New York

Ireland

Viiginia

Canada

(iermany

Ireland

Pennsylvania

England

Ireland

England

Ireland

Germany ,

Ireland

France ,

England

Connecticut

Ireland ,

Ireland

New York

Ireland

England

Missouri

Ireland

Missouri

Ireland

Missouri

Massachusetts

Vermont

Maine

Ireland

Maine

ilreland

Chile

Mexico

Italy

California Indian.
Portugal

Robbery

Rape

Assault with intent to murder

Counterfeiting

Assault with deadly weapon..

Grand larceny

Burglary

Robbery

Grand larceny

Manslaughter

Burglary

Grand larceny

Assault with intent to murder
Murder in second degree

Rape

Murder in second degree
Murder in second degree

Robbery ...

Grand larceny

Assault with intent to murder

Manslaughter

Grand larceny

Burglary

Grand larceny

Robbery

Rape

Burglary

Grand larceny

Robbery

Burglary

Robbery

Grand larceny I 4

1 .

5 ,

4 .
10 .

5 .
5 .

10 .

4 .

8 .

fi .
10 .
10 .

14 .

15 .
15 .
21 .
Life
10 .

4 .

Mexico i Robbery

Grand larceny

Murder in second degree

Assault with deadly weapon..
Assault with deadly weapon..

Manslaughter

Grand larceny

Robbery

Grand larceny

Robbery

Murder in second degree

4 „

3 .,
1 ..

4 .,
10 ..

3 ..

1 ..
10 ..

2 ..
1

4 ..

6 ..

10 ..

8 ..

10 ..

5 ..
Life,

4 ..

Amador..

Marin

Sacramento

Los Angeles

Amador

San Joaquin

Calaveras

San Francisco...

Sacramento

San Francisco...

Sacramento

San Francisco...

Napa

Yuba

Sacramento

Sierra

El Dorado ,

Butte

Sacramento

Napa

Si.-kiyou

Siskiyou

Tuolumne ,

San Bernardino

Calaveras ,

Contra Costa

Alameda

S#n Francisco....

El Dorado

I San Francisco....
San Francisco....

Siskiyou

San Francisco....

Sacramento

San Francisco....
San Bernardino ,
San Francisco....

Sacramento

San Francisco....

Plumas

Napa

San Francisco...,
San Francisco ...
San Francisco....

Calaveras

Siskiyou

San Francisco.,..

Nevada

San Francisco....
San Bernardino..

Butte

Calaveras

San .Joaquin

Los Angeles

Mariposa

San Francisco....

PLc;r

Los Angeles

Alameda

Calaveras ..,

EoLL OF Prison — Continued.

Nome.

Nativity.

Crime.

Term.

County.

Montoy, Geronimo

Montijo, .lose Maria..

Mendez, Jose

Martinez, Andres

Medran. Francisco

Mesa, Rosalio

Machado, Jose

Mauseo, Patricio

Mum Ham

Newton, Adolpb

Nelson, John

Nichols, Charles

Norcross, Francis

Newton, L

Nura, Valentin

Ooberhite, Frederick..

O'Brien, James

Oliver, John

Orosco, Ramon ,

Osso (Indian)

On (iouey ,

Patch, Samuel ,

Price, John M

Perry, Thomas

Potts, Daniel S

Pratt, James

Posey, Milton

Price, Williiim

Perkins, James(negro]

Pate, Elijah '.

Porter, William

Pratt, Williiim

Paeentia Manuel

Portan/.a, Pascual

Ponce, Luis

Perez, .luan

Ponce, Iginio

Pablo, Juan

Quinto, Victoriano

Quesado, Laureano

Russell, .James

Riley, Philip

Redwine, L. P

Ryan, C. D

Rogers, Thomas

Riveles, George

Robinson, P. R

Reynolds, John

Rock, John

Reynolds, James

Reed, William

Robinson, .lames

Robinson, S. G

Russell, William

Rush, D. R

Rugg, Clark

Russell, Thomas

Reagan, Thomas

Reed, Franklin

Reynolds, Thomas

Randell, R

Robeno, Francisco

Ruis, Jesus

Rojas, Manuel

Mexico

Me.\ico

Mexico

California Indian.

Mexico

California Indian,

Mexico

China

Germany

Kentucky

Maine

Tennessee

Chile

Germany

Ireland

New York

Mexico

California

China

W'rmoiit

Tennessee

Ireland

New York

Massachusetts

Kentucky

Georgia

North Carolina —

Alabama

Maryland

Penn.sylvania

Chile

Italy

Mexico

Manila

Guayaquil

North Carolina....

Ireland

Virginia

Ireland

Pennsylvania...
Pennsylvania...

Missouri

New Jersey

Louisiana

England

Maine

England

Ohio

Wales

New York

Massachusetts...

Ireland

North Carolina.

New York

Virginia

Mexico

Murder in second degree

Felony

Robbery

Assault with deadly weapon..

Murder in second degree

Grand larceny

Robbery

(ifrand larcenv

Robbery ".

Grand larceny

Murder in second degree

Felony

Grand larceny

(Jrand larceny

Grand larceny

Assault with intent to murder

Grand larceny

Burglary

Assault with intent to murder

Robbery

Mayhem

Murder in second degree

Robbery

Assault wiih intent to murder

Murder (commutation)

(irand larceny

Murder in second degree

Bestiality

Grand larceny

(iirand larceny

Grand larceny.....

Perjury

Assault with dcailly weapon..

(irand larceny

Manslaughter

Murder in second degree

Perjury

Assault, intent grand larceny
Assault, intent grand larceny

(irand larceny

Robbery

Rape

Murder in second degree

(i ran d larceny

Grand larceny |

Burglary

(Jrand larceny

Grand larceny

Robbery.. ,

Grand larceny

Felony

Manslaughter

Felony

Manslaughter

Burglary

Manslaughter

Grand larceny

.3 ..

10 ..
5 ..

11 ..
1 ..

1 ..
10 ..

2 ..
1 ..
1 ..

10 ..

4 ..
.3 ..

5 ..
5 ..

14 ..
Life.

7 ..

4 ..
Life .

1 (
10 ..

5 ..
4 ..

4 (

2 ..
2

2 '.'.
4 ..
Life.
.3 ..
4 ..

4 ..

8 ..

12 ..
21 ..
20 ..
Life .
Life .

2 ..,
1 ...

3 ...
3 ...
3 ...
8 ...
2

5 '".

1 ...
5 ...
3 ...
5 ...

2 ...

7 ...
10 ...

8 ...

Santa Barbara..

Siskiyou

Santa Clara

Mouterev

El Dorado

Los Angeles

Mariposa

Tuolumne

Shasta

Tuolumne

Nevada...

San Francisco..

El Dorado

Monterey

Yuba

ISierra

San Francisco..,

Tuolumne

Yolo

Nevada

I Calaveras

I Amador

Calaveras

Placer

El Dorado ,

Sacramento

San Joaquin ....

Tuolumne

Los Angeles

Solano

Tehama

San Francisco..

Marii>osa

San Mateo

Sierra

Los Angeles

San Mateo

Santa Clara

San Francisco..,
San Francisco..,

Sacramento

Stanislaus

Nevada

Mariposa

San Francisco...
San Francisco...

Santa Clara

San Francisco...
San Francisco...

Sacramento

Tuoiumne

Yuba

Tulare

Plumas

San Francisco...

Sierra

San Bernardino
San J^rani isco...

San Joaquin

San Francisco...

Mariposa

Calaveras

16
Roll op Prison — Continued.

Name.

Xativity.

Rivera, Francisco

Ramirez, Autnnio

Rankell, Ramon

Rodriguez, Martin

Rojas, Nicanor

Ruis, Ramon

Ramazzi, Dominiqui...

Rosas, Francisco

Ramos, Jose

Romero, Antonio

Rodriguez, Tomas

Sandford, William

Scott, AVm. (negro)....

Shank, James

Smith, J(jhn

Smith, William

Shelly, William

Smith, William

Smith, Charles

Sumner, John

Stuernberly, Herman..

Sterritt, Joseph

Scott, William

Stone, L. S

Stuart, Frank

Smith, James

Smith, Samuel (negro)
Steetz, William...."....

Stennet, Thomas

Sayers, George

Sandford, Charles

Smith, James

Salters, Charles

Shultz, George

Sandy

Seary, Sylvester

Smith, John

Sweeney, John

Smith, Frank

Swonk, S. S

Skinner, James

Summers, George A...

Severs, Sam

Smith. Robert

Sperry, James

Sherman, William

Shokey, Abraham

Small,' Frank

Shultz, August

Scott, Anthony

Sykes, H. W

Suodgrass, John Doe..

Sprague, Peter

Sibley, George

Smith, James

Santana, Jose G

Serau, Juan

Sala, Benuto

Samudeo, Leonardo...

Scpulveda, Juan

Servin, Froilan

Soto, Ramon

Selaya, Rafael

Salezar, Canuto

Mexico

Mexico ,

Mexico

Mexico ,

Chile

California

Italy

California

Mexico

California

California ,

Maine ,

District Columbia,

Ohio

New York

Ohio

England

Germany

England

Germany

Virginia

Canada

Ireland

Brazil

Germany

Missouri

England

Maryland

Kfntucky

England

Germany

Maryland

Germany

Ireland

Vermont

Virginia

Missouri

Virginia

New York

Pennsylvania

New York

Missouri

New York

Ireland

Germany

Kentucky

Massachusetts ,

Virginia

New York

Pennsylvania ,

Scotland

Chile

California

California -

California

California ,

No crime specified

Assault with intent to murder

Grand larceny

Murder (commutation)

Grand larceny

Manslaughter

Grand larceny

Manslaughter

Perjury ,

Grand larcenj'

Grand larceny

Burglary

Grand larceny

Assault with intent to murder

Grand larceny

Murder in the second degree.

Burglary

Rape

Murder in the second degree.

Burglary

Robbery

Murder in the second degree.

Robbery

Grand larceny

Murder in the second degree.

Robbery

Grand larceny

Robbery

Grand larceny

Assault to rape

Grand larceny

Robbery

Burglar}'

Grand larceny

Burglary

Grand larcenj'

Forgery

Grand larceny

Assault with deadly weapon..

Counterfeiting

Grand larceny

Murder in the second degree.

Grand larceny

Assault with deadly weapon..

Grand larceny

Burglary

Grand larceny

Manslaughter

Grand larceny

Murder in the second degree.
Assault with intent to murder
Assault with intent to murder

Grand larceny

County.

14 ..
10 ..

Life.

Tehama

Yuba

Santa Clara

Placer

Mariposa

Contra Costa

Butte

Mariposa

Santa Clara

Santa Cruz

Los Angeles

San Francisco....

Shasta

Del Norte

Calaveras

San Francisco ....

Yuba

San Francisco....

Butte

El Dorado

Tuolumne

San Francisco ...

Sacramento

Nevada

Yuba

Yolo

Sacramento

San Joaquin

El Dorado

Yuba

Yolo

Alameda

San Francisco.,..

Monterey

Trinity

Tuolumne

San Francisco ...

Yuba

Colusa

Sacramento

Solano

San Bernardino .

Santa Clara

Yolo

Calaveras

San Bernardino .
San Francisco....

Santa Cruz

San Francisco....
San Bernardino..
San Bernardino .
San Francisco....

Tuolumne

Amador

Sonoma

Los Angeles

Marin

San Luis Obispo.

Santa Cruz

Sonoma ...

Contra Costa

EoLL OP Prison — Continued.

Name.

Nativity.

Crime.

Term.

County.

Simmons, Antonio

Salistro, (Indian)

Savilleta, Juan

Suvielta, Camillo

Sorosa, Norverto

Soto, Angel (pardoned)

Sili, Luis

Timmonds, James

Thompson, S. D

Tosh, John

Thompson, Henry

Tate, Moses (negro)...

JTiompson, Joseph

Taylor, George

Treher, Charles

Tuwey, John

Thomas, John (negro)

Thompson, Peter

Tliorn, Solomon

Thurman, Jerry

Thompson, Frank

Taylor, Frank

Thierry, Edward

Townsend, Geo. W

Thompson, Charles....

Tozer, Wm

Truss, Frank

Thompson, Chas

Tattle, James

Thurman Wm

Thornton, Annie

Torres, Geronimo

Tcllechea, Felipe

Triyillo, Ricardo

Tapia, Gregorio

Tin Son

Vanderpool, Geo

Vonausburn, Geo

Voen, Henry (negro)..

Vanard, Ida

Vamberg, Frank

Villequez, Domingo...

Valdez, Juan

Valentia, Jacinto

Villenca, Felipe

Valdez, Pedro

Valenzuela, Jesus

V.alentia, Francisco ...

Wadkins, Wm

Williams, Geo

Williams, John

Wilson, J. W

Wadkins, E. D

Wiggens, F. M

Williams, Henry

Wright, Henry W

Wright, George

Woods, James

Wideman, W. W

Wood, Richard

Wapner, Henry

Wilkins, Chas

Wright, Alex

Warcox, Samuel

Portugal

California

Mexico

Manila

California

Spain

Illinois

New York

Sweden

Arkansas

Virginia

Massachusetts...

Germany

Ireland

Virginia

(iermany

Arkansas

Texas

Canada

Maryland

France

Missouri

Pennsylvania....

England

Maryland

New York

Missouri

Ireland

Guayaquil

Mexico

California

China

Missouri

Germany

North Carolina
Pennsylvania...

Austria ,

Mexico

California

Chile

California ,

California

Missouri

England ,

Kentucky ,

Ireland

Maryland

Ireland ,

Pennsylvania...
Pennsylvania ...

England

Pennsylvania ...
Pennsylvania ...

Missouri ,

Germany

Missouri

Indiana

Assault with intent to murder

Grand larceny

Assault with intent to murder

Murder in second degree

Assault with intent to murder

Robbery

Grand larceny

Assault to rob

Robbery

Grand larceny

Murder in second degree

Burglary

Robbery

Burglary

Arson

Grand larceny

Assault intent to commit rape

Arson

Grand larceny

Robbery

Grand larceny

G rand larceny

Grand larceny

Felony

Grand larceny

Attempt at arson

Burglary

Assault with deadly weapon..
Assault with deadly weapon..

Grand larceny

Assault with intent to murder

Grand larceny

Assault with deadly weapon..

Grand larceny

Manslaughter

Grand larceny

Assault intent to commit rape

Grand larceny

Assault with intent to murder

Grand larceny

Robbery

Burglary

Murder in second degree

Murder (commutation)

Assault with deadly weapon..
Assault with intent to murder
Assault to rob

.3
10

7
10
10
14
Life.

7 ...

1 i

1 ..

4 ..

7 ..
.5 ..

8 ..
3 ..
3 i
2

5 ..
1 ..
3 ..

1 f
3 ..

2 ..
2 ..
8 ..
2 ..
5 .

10 ..

8 ..

2 ..

1 ..

2 ..
5 ..

10 ,.

3 ..
12 ..

3 ..

1 ..

3 ..
8 ..

10 ..

7 ..

1 (

2 ..

4 ..

5 ..
10 ..

7 ..

3 ..
15 ..
Life.

2 ..

10 ..

Placer

Los Angeles

San Bernardino ..

San Francisco

San Mateo

Contra Costa

San Francisco

Sacramento

Amador

Napa

Sacramento

San Francisco

Sonoma

Nevada

El Dorado

San Francisco

Mariposa

San Francisco

Yolo

Butte

Yuba

San Francisco

Nevada

Calaveras

San Francisco

San Joaquin

Calaveras

San Bernardino .,

Colusa

San Francisco

Tuolumne

Sacramento

Los Angeles

Tuolumne

Marin

Amador

Santa Clara

San Francisco

Los Angeles

Monterey

Tuolumne

Butte ,

Santa Barbara ...

Yuba

Mendocino ,

Sacramento ,

San Francisco....

El Dorado ,

Butte ,

Calaveras

San Joaquin ,

Shasta

San Francisco....
San Francisco....,

Colusa ,

Colusa

Sonoma ,

San Francisco....
San Luis Obispo.
San Luis Obispo
El Dorado

Roll op Prison — Continued.

Name.

Nativity.

Crime.

Term.

County,

Williams, J ....

Robbery

6 ...
3 ...
i ...
3 ...

2 ...
1 ...
5 ...
5 ...

11 ...
1 ...

3 ...
1 ...
5 ...
3 ...
8 ...
5 ...

Grand larceny

Greece ' Grand lareenv

Sierra

Wyskover, Henrj'

Pennsylvania

Grand larceny

Sierra ,

Yuba

Wittenberg, Peper

Williams, G

Germany

Murder in second degree

Assault with deadly weapon..
Grand larceny

Marin

Waddell, Geo. W

Pennsylvania

West, Chas

Trinity

Wilson, Geo. F

England

Man slaughter

Assault with intent to murder

Calaveras

El Dorado

^^' ' ''" i "°""

EECAPITULATION, FOR MARCH 11, 1862,

Showing the Nativity of Prisoners^ Classification of Crime, and Number from

each County.

NATIVITY.

United States

England

222

Spain

Chile

Scotland

Ireland

Portugal

Sandwich Islands

Wales

West Indies

France

Manila

Germany

Sweden

Prussia

Mexico

Italy

Central America

California

Canada

California Indians

China

Total

576

CLASSIFICATION OF CRIME.

Murder 6

Murder, second degree 52

Manslaughter 26

Assault to murder 45

Assault with deadly weapon 11

Mayhem 3

Rape 9

Assault to rape 5

Crime against Nature 3

Robbery 55

Assault to rob 3

Burglary 44

Arson 4

Attempt at arson 2

Forgery 2

Perjury 4

Counterfeiting 6

Receiving stolen goods 2

Embezzlement 1

Grand larceny 287

Attempt at larceny 2

Felony 4

Total 576

Eecapitulation — Continued.

NUMBER SENTENCED FROM EACH COUNTY.

Santa Clara

Butte

San Diego

San Francisco

San Luis Obispo

San Mateo

San Joaquin

Shasta

Sierra

Siskiyou

Solano

Del Norte

El Dorado

Klamath

Sonoma

Stanislaus

Sutter

Napa

Tehama

Trinity

Tulare

Tuolumne

Yolo

Yuba

Total

San Bernardino

676

The total aggregate of sentences (excluding fourteen for life) is three thousand and twenty-six
years and eleven months ; which, divided by the five hundred and seventy-six prisoners, would
give an average of five years two months and six days to the man.

NAMES OF CONTRACTOES. NUMBEE OF CONVICTS EM-
PLOYED BY THEM. Etc.

Names.

No.

Character of Business.

Pay.

E. T. Pease 50 Coopering

McLennan 100 Clothing

Thomas Ogg Shaw I 100 Agricultural implements and cabinet ware — average.,

Englander ' 50 Cigar manufacturing

Quinn & Ross | 100 Brick-making during season

$ .50
.30
.62i
.50
.40

Total employed at wages j 400

Sick and disabled

Employed in Prison..
Unemployed

Total No. of convicts..

40
60

576

The expenses of the Prison for the year $S5.462 00

Less amount of earnings 28,817 00

Deficiency $56,645 00

REPORT

THE SURVEYOR-GENERAL

IN RESPONSE TO

RESOLUTIONS OF THE ASSEMBLY.

BENJ. P. AVERY STATE PRINTER.

HE 1^ O K T

Surveyor-Cteneral's Office, ")

Sacramento, March 26tb, 1862. J

To the UonorahJe Members of the Assembly of flie State of California :

Gentlemen : — I have the honor to transmit to 3'our honorable body
the followina; report, prepared, so far as possible, in accordance withj-our
resolutions of the fifteenth instant.

It is impossible, from any information in this office, to give the exact
area of either of the Land Districts of the State, nor can it be given from
any information in existence until the eastern boundary of the State is
run.

The whole amount of sixteenth and thirty-sixth sections donated to
the State, including those in the mineral districts, is about six million
seven hundred and fifty-five thousand acres, of which, as is shown by
this report, less than two hundred thousand acres have been sold.

In the San Francisco District an approximate and very close estimate
has been made, showing the amount of land which the State would be
entitled to in this district alone under the grant of sixteenth and thirty-
sixth sections, making five hundred and ninety-five thousand two hun-
dred acres. Deducting amount already located, thirty-nine thousand
two hundred and sixty acres, leaves subject to location, five hundred and
fifty-five thousand nine hundred and forty in the San Francisco District
alone, which are not located, from the fact that nearly every acre of ara-
ble or valuable land in this district is covered by Mexican grants.

In the Stockton, Marysville, and Humboldt Districts, the State Lo-
cating Agents report that other lands in each of those districts have
been located in lieu of all sixteenth and thirty-sixth sections covered by
grants or otherwise disposed of by the General Government in those
districts. Yet a large amount of sixteenth and thirty-sixth sections
proper are open for location.

In the Visalia and Los Angeles Districts very large quantities remain
to be located, but few locations having been made in those districts.

It is a matter of some doubt whether the State would be allowed to
locate other lands in lieu of sixteenth and thirty-sixth sections, when
the}' occur in the mineral lands which the Government reserves from sale.
I have no doubt such permission would be granted on application.

The amount of these lands it is impossible accurately to determine, as
no actual separation of mineral lands has been made.

The length of the line of segregation of the Swamp Lands, including
the meanders of navigable streams, cannot be given, from the fact that

the Board of Swamp Land Commissioners, under whose direction these
surveys were conducted, did not require the return of the field notes to
this office ; and for the same reason, the computation of arears of Swamp
Lands can only be approximated.

The other information in regard to segregation cannot be given for
the same reason.

In a large number of counties no returns have been made of Swamp
Lands, for various reasons : Contra Costa County had no Surveyor ;
Tulare and Fresno, in which large quantities of Swamp Lands occur, the
County Surveyors reported that the United States surveys were correct,
and no State survey was necessary.

In several counties no returns were made, and no reasons assigned,
notwithstanding Swamp Lands were known to exist therein, the pre-
sumption of this office being that the United States survej's were adopted
by the County Surveyors, and all sales in such cases have been made in
accordance with such surveys.

In regard to the ninth inquir3^ there are no affidavits exdusiveli/ cover-
ing lands alread}' awarded to the State by the United States Surveyors,
as Swamp Land ; the affidavits having been made to conform to the
State survey.

SWAMP LANDS.

Description.

Acres.

Swamp Lands sold as shown by the report of the Surveyor-
General for 1861

Sold since the date of said report

984,169.00
6,123.00

Total 990.292.00

TIDE LANDS.

Description.

Acres.

Tide Lands sold at the date of the Surveyor-General's report

for 1861

Sold since the date of said report

Total

2,514.87
74.55

2.589.42

FIVE HUNDRED THOUSAND ACRE GRANT.

Description.

Acres.

Balance unsold.

1,042.17

SEMINARY LAND (SEVENTY-TWO SECTIONS.)

Description.

Acres.

Balance unsold

6,433.18

PUBLIC BUILDING LAND (tEN SECTIONS.)

Description.

Acies.

Balance unsold

26126

School Lands located under the Act providing for the sale of the sixteenth
and thirty-sixth sections, and lands taken in lieu of the same, passed
April twenty-second, eighteen hundred and sixty-one, and on file in the
Surveyor-General's office :

ON SURVEYED LANDS.

Description.

Acres.

Stockton Land District 34,035.44

Mar^'sville Land District 44,!)99.04

Humholdt Land District 15,204.10

San Francisco Land District i 10,820.00

Visalia Land District 1,240.00

Total surveyed lands

106,298.58

UNSURVEYED LANDS.

Description.

Acres.

Stockton Land District

Humboldt Land District

San Francisco Land District

Los Angeles Land District

Marysville Land District

Total unsurveyed lands

Total surveyed and unsurveyed lands

24,456.00
8,840.00

28.440.00
1.G28.40
7,154.00

70.518.40
106.298.58

176.816.98

Sixteenth and thirty-sixth sections sold by the Board of Supervisors
of different counties, under the Act of eighteen hundred and fifty-eight,
as reported by County Auditors, eighteen thousand seven hundred and
tTventy.

SEGREGATION RETURNS.

Segregation surveys were returned from the following named counties,
to wit : Colusa, Humboldt, Placer, Sonoma, Monterey, Sutter, Sacra-
mento, Alameda, Santa Clara, Lake, Yolo, San Joaquin, Solano, and
Xapa — from which the following information has been compiled :

COLUSA COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned ,

Eeturiied by Ignited States Surveyors as Swamp Lands
Sold by the State as Swamp Lands.

Sold by the State and claimed by the United States None.

98.842.00
26,384.00
12,725.00

HUMBOLDT COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned

Returned by United States Survej'ors as Swamp Lands, not

shown by maps

Sold by the State as Swamp Lands

Sold by the State and claimed by the L'nited States

21,970.70

IsCo returns
9,919.00
l!^one.

PLACER COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned

Eeturned by L'nited States Survej-ors as Swamp Lands
Sold by the State as Swamp Lands

13,120.00

No survevs
11,350.00

SONOMA COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned ...

Eeturned by United States Surveyors as Swamp Lands,

Sold by the State as Swamp Lands

Sold by the State and claimed by the United States

21,211.17

No returns
9,994.00
None.

MONTEREY COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned

Eeturned by United States Surveyors as Swamp Lands
Sold by the State as Swamp Lands

2,388.51

No returns

893.55

SUTTER COUNTY.

JDescription.

Acres.

Total amount of Swamp Lands returned

Returned by United States Surveyors as Swamp Lands

Sold by the State as Swamp Lands

Sold by the State and claimed by the United States

Sold by the State and claimed by the United States, but shown
to be Swamp Lands by affidavits

111,194.19
30,610.15

58,804.00
12,030.44

10,080.00

SACRAMENTO COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned

Eeturned as Swamp Lands by United States Surveyors

Sold by the State as Swamp Lands

Sold by the State and claimed by the United States

Sold by the State and claimed by the United States, but shown
to be Swamp Lands by affidavits

162.014.66
27,840.00

146.911.30
14,922.57

9,797.62

ALAMEDA COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned 37,133.19

Returned by United States Surveyors as Swamp Lands No returns

Sold by the State as Swamp Lands 10,032.33

SANTA CLARA COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned

Eeturned by United States Surveyors as Swamp Lands,
Sold by the State as Swamp Lands

14,556.74

No returns

4,314.89

LAKE COUNTY.

Description.

Acres,

Total amount of Swamp Lands returned

Eeturned by United States Surveyors as Swamp Lands

Sold by the State as Swamp Lands

Sold b}^ the State and claimed by the United States

5,759.65

Not shown
2,968.93
None.

YOLO COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned

Eeturned by United States Surveyors as Swamp Lands

Sold by the State as Swamp Lands

Sold by the State and claimed by the United States

Sold (approximate) by the State and claimed by the United
States, but shown to be Swamp Lands by affidavits

156,546.44
52,538.00

116,575.00
14,980.00

7,500.00

SAN JOAQUIN COUNTY.

Description.

Acres.

Total amount of SAvamp Lands returned

Keturned b}^ United States Surveyors as Swamp Lands

Sold by the State as Swamp Lands

Sold by the State and claimed by the United States

Sold by the State and claimed by the United States, but
shown to be Swamp Lands by affidavits

235,571.55

Not shoAvn

186,124.00

1,600.00

SOLANO COUNTY.

Description.

Acres.

Total amount of Swamp Lands returned

Returned by United States Surveyors as Swamp Lands

Sold by the State as Swamp Lands

Sold by the State and claimed by the United States

99,858.00
24,520.00
71,519.00
None.

NAPA COUNTY (APPROXIMATE.)

Description.

Acres.

Total amount of Swamp Lands returned

Returned by United Surveyors as Swamp Lands
Sold by the State as Swamp Lands

12,060.00

No returns

9,462.00

The computation of areas given in the preceding pages, were mostly
[made from the maps returned, (there being no field notes,) and can,
jtherefore, only be approximate.

AFFIDAVITS.

[Uotal number of affidavits to establish the swampy character

of lands returned to the Surveyor-General's office

Kumber of names used as witnesses

213

548

All of which is respectfully submitted.

J. F. HOUGHTON,

Surveyor-General and Eegister of State Land Office.

QflBna^HSESSrSBBas

REPORT OF SPECIAL COMMITTEE

CONSTITUTIONAL AMENDMENTS.

ASSEMBLY.

BENJ. P, AVERY STATE PRINTER,

HE I> O R T

Mr Speaker : — The Special Committee on the Amendments to the
Constitution us proposed and adopted by the Legislature of California
at its twelfth session, to whom was referred what is indorsed " Senate
Bill No. 20," purporting to be the said proposed amendments as adopted
and agreed to by the Senate at its present session, beg leave to submit
the following report :

That they have with much labor carefully compared the so called
" Senate Bill " with the amendments, and the changes they underwent
in their adoption b}- the two Houses, during the twelfth session, as ap-
pears from the original papers themselves in the office of Secretary of
State ; with the "written Journals of the Senate and Assembly, also in said
office ; with the enrolled amendments, also in said office; with the printed
Journals of the two Houses ; with the authorized publication in the " Sac-
ramento Union " of August 9th, 1861 ; and with the amendments as
published at the end of '' Statutes of 1861," page 661.

That the history as derived from the written and printed Journals (of
said amendments to the Constitution as proposed by the Legislature at
its twelfth session, which the Committee here give to facilitate the
House in its action, and for convenience of reference,) is as follows:

Senate Journal, (written) page 94, (printed) page 112. 1861. Mr.
Phelps presented petition praying for amendments to Constitution.

Senate Journal, (written) page 418, (printed) page 3c 2. March 19th.
Mr. Sharp presented sundry proposed amendments. Eeferred to Judi-
ciary Committee.

Senate Journal, (written) pages 841, 842, (printed) pages 698, 699.
April 27th. Mr. Sharp, from said Committee, reported back said amend-
ments with accompanying alterations and certain additional amend-
ments.

Senate Journal, (written) page 909, (printed) page 739. May 3d. On
motion of Mr. Sharp, amendments taken uj), considered in Committee of
Whole, and amended.

Senate Journal, (written) page 919, (printed) page 745. May 4th.
Taken up and placed on top of file for Maj^ 9th.

Senate Journal, (written) page 970, (printed) page 775. May 9th.,
Taken up and further amended.

Senate Journal, (written) page 999, (printed) page 792. May 11th.
Taken up and further amended.

Senate Journal, (written) page 1014, (printed) page 800. May 13th.
Taken up and further amended in Committee of Whole.

Senate Journal, (written) pages 1065 — 1074, (printed) pages 829 —
833. May 16th. The Constitutional amendments (see them as therein
set forth.) were taken up and acted upon. Amendments to Article
four were adopted. Amendments to Article five were adopted.
Amendments to Article six were adopted.

Assemblj' Journal, (written) page 822, (printed) page 883. May 17th,
1861. Message announced that Senate had passed certain proposed
amendments to Constitution.

Assembly Journal, (written) page 823, (printed) page 883. May
17th. Made special order for 12 m. of that day.

Assembly Journal, (written) page 827, (printed) page 887. Amend-
ments referred to Judiciary Committee, with instructions, and made
special order for Ma}^ 18th, at lOJ a. m.

Assembly Journal, (written) page 838, (printed) page 895. May 18th.
Amendments reported back from Judiciary Committee, with amendments,
recommending their passage as amended.

Assembly Journal, (written) page 838, (printed) page 895. Same
day. Taken up, considered in Committee of the Whole, reported back
with amendments, and the amendments were adopted, and the amend-
ments, as amended, were adopted by the Assembly, by a vote of^ — ayes 62.
noes 1.

Senate Joiirnal, (written) page 1130, (printed) page 863. May 18th.
Message that Assembly have passed Senate Constitutional amendments,
together with Assembly amendments to Articles five and six of the
same.

Senate Journal, (written) page 1131, (printed) page 863. Same day.
The proposed amendments to Article five of Constitution, and Assembly
amendments thereto, concurred in.

Senate Journal, (written) page 1131, (printed) page 864. vSame day.
Assembly amendments to Article six of the proposed amendments were
concurred in, except that in relation to naturalization, and that prohibit-
ing the Legislature from granting leave of absence to Judges, which two
amendments Senate refused to concur in.

Assembly Journal, (written) page 858, (printed) page 911. Same day.
evening session. Message from Senate, announcing its refusal to concur
in Assembly amendments to the proposed amendments to Constitution.
Same day and same pages, Assembly refused to recede, and appointed
Messrs. Campbell, Wright, and Lippincott, a Committee of Free Con-
ference.

Senate Journal, (written) i^age 1141, (jjrinted) page 869. Same day.
Message from Assembly, announcing its refusal to recede, and the ajjpoint-
ment of said Committee.

Senate Journal, (written) page 1142, (printed) page 870. Same day.
Senate appointed Messrs. Chase. Shafter, and De Long, as Committee of
Free Conference on disagreeing vote.

Senate Journal, (written) page 1143, (printed) page 870. Assembly
Journal, (written) page 860, (prmted) page 912. Same evening. Eeport
of Joint Committee of Free Conference, recommending that Senate re-
cede from disagreement. Report adopted in Senate on same evening.

Senate Journal, (written) page 1146, (printed) page 872. Same even-

iug. Message from Assembly, announcing that it had adopted report of
said Committee.

Senate Journal, (written) page 114G, (printed) page 873. Same even-
ing. Assembly amendments to the proposed amendments to Article six
were adopted, (see them set forth in Journal.)

Senate Journal, (written) page 1147, (printed) page 873. Assembly
amendments to the Senate's proposed amendments to Article four were
adopted.

Senate Journal, (written) page 1148, (printed) page 873. Assembly
amendments to Senate's proposed amendments to Article five were
adopted.

Senate Journal, (written) page 1148, (printed) pages 873, 874. The
Assembly proposed amendment to Section one, Article nine, of the Con-
stitution, was adopted by the Senate. The said amendments were
adopted, by — ayes 21, noes none.

Senate Journal, (written) page 1153, (printed) page 877. May 20th.
Eeport of Enrolling Committee, that the proposed Constitutional amend-
ments were correctly enrolled.

Senate Journal, (written) page IIGO, (printed) page 880. May 20th.
Message from the Governor, that he had approved numerous bills, in
which message, occurs the following sentence : " Also the proposed
amendments to the Constitution."

The Committee, after having given the history of the amendments,
would now direct the attention of the House to the proposed amend-
ments as found at the end of the Statutes of 18(31. page 601, (selecting that
copy because of its convenience of reference,) and proceed to point out
the discrepancies between said copy and the amendments as they ajjpear
from the other copies which tliey have examined.

Article Four. — Legislative Department. — The heading is the same as
that in the written and printed Journals, in enrolled copy, in authorized
publication, and the " Senate Bill," but the words " and the abrogation
of sections thirty-two and thirty-six" should be struck out, as, by the
Journals, those sections were not abi'ogated.

Art. 4, Sec. 2, line 2. — The word •' January" is so in enrolled copy,
in publication, and in " Senate Bill," but is " December" in original
papers, in written and printed Journals, and was thus adopted by the
two Houses, it being an amendment made by the Assemby, and concurred
in by the Senate.

Art. 4, Sec. 2, line 5. — The words " ninety days, unless the time
be extended by a joint resolution to be passed hy a majority of each
House," appear in enrolled copy, in publication, in " Senate Bill," but
are sup])lunted by the words •' one hundred and twenty days " in
the original papers, in written and printed Journals, and were so adopted
by the two Houses, it being an amendment made by the Assembly, and
concurred in by the Senate.

Art. 4, Sec. 5, line 2. — Between '• of" and "Assembly," the word " the"
appears in written Journal, but in nothing else.

Art. 4, Sec. 5, line 5. — Between " County " and " District," the word
" or " is " and " in printed Journal, but in nothing else. •

Art. 4. Sec. G, line 2. — Between " of" and '-Assembly," the word '' the"
occurs in written and printed Journals, but in nothing else.

Ai't. 4, Sec. 39. lines 1, 2. — The words " sections thirty-two and thirty-
six of said Article four are hereby abrogated and annulled, and " appear
in enrolled copy, in publication, and in " Senate Bill," but by written

and printed Journals, and original papers, were struck out in Assembly,
and concuri'ed in by Senate.

Art. 5. — In the heading, the words " two," '' eighteen," and " nine-
teen," are so in original papers, in enrolled co])j, publication, and " Sen-
ate Bill," but appear '• second," '• eighteenth," and " nineteenth," in
written and printed Journals.

Also, the heading is Article ■• Four " in printed Journal, but "• Five "
in all else.

Art. 5, Sec. 2, line 3. — The word '■ Four " appears " From," in quota-
tion marks, and underscored in written Journal, but "Four" in all else.

Art. 5, Sec. 2, line 4. — The word " January " is so in publication, in
enrolled copy, and in " Senate Bill," but appears " December " in orig-
inal papers, in written and printed Journals, having been so amended
in Assembly, and concurred in b}' Senate.

Art. 5, Sec. 19, line 2. — The word " Legislature " is so in original pa-
pers, in enrolled copy, in written and printed Journals, and in publica-
tion, but is '• Legislative" in •• Senate Bill ;" also, " departments" is so in
original papers, in written Journal, in publication, and in enrolled copy,
and " Senate Bill." but is ■' department " in printed Journal.

Art. 5. Sec. 19, line 9. — The M^ord '• officers " is so in original papers,
in enrolled copy, in publication, and in "• Senate Bill," but is " office" in
written and printed Journals, but should be •• officer."

In the heading of Article six, the word '-sixth" is so in all, but
should be " six," to correspond with the other headings.

Art. 6, Sec. 1, line 3. — Between " Eecorders " and " other," the word
" and " is " or " in all the references, as in " Senate Bill."

Art. 6, Sec. 2, line 3. — Between " for " and "transaction," the word
" the " does not appear in written Journal, but does in all else.

Art. 6, Sec. 3, line 3. — "Election" is "Elections" in original papers, in
wi'itten and ])rinted Journals, and publication, and enrolled cojjy. and
"Senate Bill'" — and •■ officers " is "officer" in written Journal, but in
nothing else.

Art. 6, Sec. 4, line 2. — Between " cases " and " equity," the word " in "
is "of" in written Journal, but in nothing else — and also between
" cases " and " law," " at " is "of" in printed Journal, but in nothing
else.

Art. 6, Sec. 4, line 5. — The word "the "occurs between "of" and
"property," in original papers, in written and printed Journals, in
enrolled copy, and publication, but not in " Senate Bill."

Art. 6, Sec. 4, line 7. — "Courts "is so in original papers, in publi-
cation, in enrolled copy, and " Senate Bill," but is " Court " in written
and printed Journals.

Art. 6, Sec. 4, line 7. — The words " amounting to felony on questions
of law alone," appear after the word " cases " in all the references,
though the written and printed Journals in one place would appear by
mistake to show they should precede •• cases."

Art. 6, Sec. 5, line" 3. — The word •• altei'ation " is so in all references
except written and printed Journals, where it appears " attention."

Art. 6, Sec. 5. — At the end of the section, the words "the Legi.■^lature
shall have no pojver to grant leave of absence to a judicial officer, and any
such officer who shall absent himself from the State for upward of thirty
consecutive days, shall be deemed to have forfeited his office," should be
annexed, as bj- the written and printed Journals they wei'e an amend-
ment proposecl by the House, and after a Committee of Conference on
the part of the two Houses had so recommended, they were concurred

in by the Senate, though they do not appear in enrolled copy, in publica-
tion, or in " Senate Bill."

Art. 6, Sec. G, line 1. — The word ''Court" is "Courts" in all ref-
erences except the printed Journal.

Art. 6, Sec. 6, line 8. — The word " Courts" is " Court" in written Jour-
nal, but in nothing else.

Art. 6, Sec. 7. — At the end of the section, the words "said Courts
shall also have power to issue naturalization papers," as appears by Jour-
nals and original papers, were proposed by the Assembly, as an amend-
ment, and after a Committee of Conference was had, the Senate con-
curred, but they do not appear in enrolled copy, publication, or " Senate
Bill." And the additional words, "in the City and County of San Fran-
cisco, the Legislature may separate the oflSce of Probate Judge from that
of County Judge ; and may provide for the election of a Probate Judge,
who shall hold his office for the term of four years," were pi'oposed, along
with the other words, as above recited, as an amendment, by the Assem-
bly, as appears from original papers, and printed and written Journals,
and concurred in by the Senate without any conference, though they do
not appear in this place in enrolled copy, " Senate Bill," or publication,
yet in some way they appear in said last references, at the end of Section
eight ; and also, in the Statutes of eighteen hundred and sixty-one, in the
same place, except the words "and may provide for the election of a
Probate Judge," are omitted.

Art. 6, Sec. 8, line 7. — Between "and" and "Recorders," "in "ap-
pears in written Journal, but in nothing else.

Art. 6, Sec. 8. — At the end, after " counties," see above reference.
Art. 6, Section 7.

Art. 6, Sec. 9, line 2. — The word " the " before " peace," appears
" this " in enrolled copy, but in nothing else. Also " each " is " such"
in printed Journal, but in nothing else.

Art. G, Sec. 9, line 6. — The words " County Courts " are omitted in
printed journal, but in nothing else.

Art. 6, Sec. 11, line 5. — The word " record " is " records " in written
and printed Journals, but in nothing else.

Art. 6, Sec. 11, line 10.— The word " Courts " is " Court " in written
and printed Journals, but in nothing else. Also, " depositions " is " de-
position " in printed Journal, but in nothing else.

Art. 6, Sec. 12, line 2. — Between the words "provided" and "by,"
"for" does not appear in written Journal, though it does in all other
references.

Art. 6, Sec. 1.5, line 2. — The words " at stated times " appear " as
stated " in printed Journal, though in nothing else.

Art. 6, Sec. 15, line 3. — "Services" is "Service" in written and
printed Journals, but in nothing else.

Art. 6, Sec. 18, line 1.— " the People of the State of California"
is not in quotation marks in written Journal, though it is in all else.

Art. 6, Sec. 18, line 2. — The word " prosecutions" is " presentations"
in printed Journal, though in nothing else.

Art. 6, Sec. 19, line 3. — " Sixth " is so in all references, but should
be " six."

Art. 9. — In the heading, " and" precedes the first word, "tie," in
original papers, enrolled copy, and publication, but not in written and
printed Journals, and " Senate Bill."

Art. 9, heading, line 3. — "Propose" is "jiroposes" in written and
printed Journals, and original pajjers, but in nothing else.

Art. 9, Leading, line 2. — " Amendments" is " amendment'' in original
paj^ers, and printed and written Journals, but in nothing else.

Art. 9, heading, line 5. — "As follows" is omitted in wi'itten and
printed Journals, but appears in other references.

Many of the above errors are merely clerical, typographical, or verbal ;
but while the investigation was being made, and the Journals and all
the papers were in the possession of the House, the Committee thought
that all errors had better be noted, and the investigation of the facts
made thorough, however tedious it might seem, or however trivial the
discrepancies might be in any other document than an amendment to
the Constitution ; and if this matter is to be examined at any other time
or in any other place, this report may assist the efforts of those who
would disentangle it, though it may not exhibit in a very commendable
light the manner in which the amendments were adopted by the last
Legislature at the verv heel of its session.

The Committee, after the above analysis, submit, that not to the pre-
sent Legislature, and certainly not to this House, can attach any just
charge of delay in agreeing to and adopting the said amendments.
The facts ai*e now before the House, and their recital has occupied so
much space, the Committee do not feel warranted at this time in argu-
ing at length the ver}' grave questions of law involved.

They offer, with a recommendation that it be adopted, and agreed to
by the House, a substitute, (with an approximation at least to proper
punctuation, orthography, and capitals — all of which cannot well be said
for the amendments as set forth in the Journals, in enrolled cop}^, or
authorized publication,) for the so called " Senate Bill No. 20," neither
entitling nor numbering the substitute as a Bill, but only '• Amendments
to the Constitution." In framing the substitute, the Committee have
resorted to all the above sources of information, but principally to the
written Journals, and the enrolled copy. Whether the House has the right
to go back of the enrolled copy, to the Journals, or to any other source,
and if so, whether it can go back to see, not only, if the amendments
were simply constitutionally proposed, and adopted by the last Legisla-
ture, but also to examine whether all the requirements of the Constitu-
tion as to the adoption of each portion of each proposition were comi^lied
with, whether the expression of the Constitution, Art. IK Sec. 1, "such
proposed amendment or amendments shall be entered on their Journal."
does not warrant the house in resorting to the Journals to the exclusion
of, or in preference to the enrolled copy, whether the same law in the
passage of bills applies to the adoption of Constitutional Amendments,
whether because said amendments have only been adopted by one Legis-
lature makes any difference, whether the requirement of the Constitution
as to publication is directory or mandatory, and if mandatory, whether
the publication of the present amendnients has been suflSciently full to
warrant the Legislature in adopting the substitute, and submitting the
amendments to the people for ratification or rejection next Fall, and
other legal inquiries, are questions the Committee acknowledge to be
encircled with much difficulty; but the Committee think it the better
course at present, for the House to adopt and agree to the substitute
as the amendments that were actually proposed and adopted by the
Legislature at its twelfth session, and upon their adoption, that the
ayes and nogs be taken upon each of the four propositions, and that they
be entered at large upon the Journal, and if the amendments either here

or before the Courts must fail for want of full compliance with the re-
quirements of the Constitution, that failure cannot be laid at the door of
this House ; and further, the Committee would recommend that in what-
ever form the amendments be adopted by this House, (and if the House
be of opinion that an enrolled copy should be filed in the office of Secre-
tary of State,) that a Special Committee be appointed to see that they
be correctly entered upon their Journal, and correctly enrolled.
All which is respectfully submitted.

JOHN G. McCULLOUGH,
T. N. MACHIN,
THOMAS O'BEIEN,
CHAELES B. POETEE,
JOHN M. AVEEY.

REPORT OF JOINT SELECT COMIITTEE

RELATIVE TO

THE CHINESE POPULATION

THE STATE OF CALIFORNIA.

BENJ. P. AVERY STATE PRINTER.

H E P O H T.

Mr. President : — The Joint Select Committee of the Legislature,
which was appointed to confer with the Chinese merchants of this State,
and to report the result of said conference to the Legislature, together
with such views as bear upon the legality of admitting and the influ-
ence of a permanent Chinese j)opulation amongst us, beg leave to submit
the following report :

Your Committee has had sevei-al interviews with the leading Chinese
merchants of this cit}", and found them to be men of intelligence, ability,
and cultivation, who kindl}- and promptly met our many inquiries in a
spirit and with an urbanity that left upon our minds favorable impres-
sions.

They placed us in j)Ossession of a mass of statistics respecting the
industry and the value of the labors of their countrymen to this State,
which we here present.

These statements surprised us, and we feel confident they will deeply
interest you and our constituents, and it will be well to ponder them
before any action shall be proposed that will have a tendency to disturb
so important an interest, and drive from our State a class of foreigners so
peaceful, industrious, and useful.

From the information which we derived from the merchants, and from
examining their data, we put down the Chinese population in the State
at this time at about fifty thousand. The merchants, from their books,
where they keep an accurate account of arrivals, departures, and
deaths, of their countrymen, »ay there are forty-eight thousand three
hundred and ninety-one ; that there are engaged in mining, about thirty
thousand ; in farming, about twelve hundred — hired as laborers princi-
pally ; in washing and ironing, and as servants, they could not tell ; that
there are about two thousand traders. The number of Chinese prosti-
tutes they say they cannot tell, as they have nothing to do with them.
There are about one hundred families of respectability here, that is,
married females having families. They say they think that about two
hundred Chinese are employed in the manuft\cture of cigars in this city.

Their estimates of the numbers in the various branches of industry in
the State, they say may not be correct, as they have no control over the

Chinese — they j)ursue whatever calling they choose, and are as fi*ee as
any persons in the State.

IJpon this head, your Committee examined them at great length and
in the most minute and careful manner, and your Committee is satisfied
that there is no system of slavery or coolieism amongst the Chinese in
this State. If there is any proof, going to establish the fact that any
portion of the Chinese are imported into this State as slaves or coolies,
your Committee have failed to discover it.

The present laws in force in regard to this class of our population, in
the opinion of your Committee, impose upon them quite as heavy bur-
dens as they are able to bear, and, in many instances, far beyond their
ability to stand up under.

Your Committee trust that no more legislation will be had, calculated
to oppress and degrade this class of persons in our State.

The truth of many of the statements we have been able to verify from
other and independent sources confirming their reliability.

STATISTICS FOR EIGHTEEN HUNDRED AND SIXTY-ONE.

Amount of Duties paid by Chinese importers into the

Custom House at this port, was

Freight mone}' paid to ships from China

Passage money paid to ships from China

Head Tax

Boat Hire

Eents for Stores and Storage

Licenses, Taxes, etc., in State

Commissions paid Auctioneers and Brokers

Drayage in San Francisco

Teaming in interior of State

Paid tor American Products in San Francisco

Paid for American Products in the State

Paid for Fire Insurance in the city

Paid for Marine Insurance in the city

Paid for Steamboat Fare to Sacramento City and Stockton

Paid for Stage Fare to and from the mines

Paid for steamboat up-river Freights

*Water Eates for Chinese miners

fMining Claims bought by Chinese miners

Total

$500,000

180.683

382,000

7,556 00

4,767

370,000

2,164.273

20,396

59,662

360,000

1.046,613

4,953,387

1,925

33,647

50,000

250,000

80,000

2.160,000

1.350,000

813,974,909 00

The data of many of these estimates of expenditure are kept by several
of the Chinese companies with great minuteness and particularity, so
that from these accounts we have been enabled to deduce average ex-
penditures per head per annum.

From the above remarkable statistics, amounting to fourteen millions
of dollars nearly, j^ou will be able to form an idea of the value which this
Chinese population and industry confers upon the State.

* Twenty thousand miners buy water at thirty eents per man per day.

t Fifteen thousand miners buy claims at twenty-five cents per man j>er day.

Dissect these various items, and see what employment this " scourged
race " gives to our ship-owners, our watermen, our real estate men, our
merchants, draymen, teamsters, steamboat men, our stage-owners, with
their hostlers and horses, and blacksmiths, and carriage makers, our
farmers and cattle men — in short, to nearly every branch of human in-
dustry in the State.

These departments of labor are carried on by white men, independent
of Chinese labor; but largely indebted for its recompense to Chinese in-
dustry and patronage.

And for this fourteen millions of dollars which we gather from the
Chinese population, w^hat do we give in exchange ? Mainly, thus far, the
privilege to work in the mines, on bars, beds and gulch claims, which
have been abandoned b}' our countrymen and other white men, because,
by their intelligence and skill, they coidd find other diggings where they
could do better. Such claims to all but the patient, moderate Chinese,
would otherwise have remained idle and unproductive.

In towns and cities, we have washmen and cooks, who, to some extent,
compete Avith imported servants from Europe ; and this is about the only
competition which some fifty thousand peaceable, patient and industrious
Chinese immigrants have, thus far, produced in California. Surely, if this
declared evil were doubled or magnified tenfold, it need not create alarm
in the breasts of cautious and fearful citizens.

We have about eighty Chinamen working in the Mission woollen fac-
tory, which, by reason of their cheap labor, is able to find emploj^ment
for some seventy white men. With high rates of labor, this valuable en-
terprise could not be prosecuted in this State. Woollen manufacturers
should be specially encouraged by generous legislation.

Our climate is highly favorable to sheep raising, and it should be our
stud}' to find a home market for all the wool that can be grown here.
Coarse blankets and coarse cloths are consumed upon this coast in un-
limited quantities, and we shall soon find customers for stuffs of finer
quality. The rearing of sheep and raising of wool could soon become
an interest of vast value to the State. This interest, yet to he created,
infringing upon no existing class of labor, would afford occupation for
thousands of Chinamen, associated with as many or more whites, and
prove a mutual and public blessing.

With cheap labor we could suj^ply all our own wines and liquors, be-
sides sending large quantities abroad. The wine crop of France, in eight-
een hundred and fortj'-nine, was nine hundred and twenty-five million
gallons, valued at one hundred millions of dollars. In eighteen hundred
and fiftj'-three, she had in vinej^ards, four million eight hundred and sev-
enty-three thousand nine hundred and thirtj'-four acres, (giving less than
two hundred gallons to the acre,) making about eight thousand one hun-
dred and seven square miles, or an area of two hundred and fiftj^ miles
in length by thirtj'-two in breadth. California contains one hundred and
eightj^-eight thousand nine hundred and eightj-one square miles, which
would give one hundred and twenty million nine hundred and forty-seven
thousand eight hundred and forty acres ; so that if only one twenty-fifth
of her area should be planted with vineyards, she would have an amount
equal to France.

We have a fresher soil, better climate for grape culture, than France ;
and we could produce larger quantities of better quahty than is grown
in worn out lands.

This cannot be done without the aid of cheap labor from some quar-
ter; but a portion of Chinese, with white labor, would add incalculably

to the resources of the State in this particular branch. It would also
diminish drunkenness and consequent pauperism, thereby greatly dimin-
ishing crime and misery.

To the wine produced, add the cost of pipes and bottles, the trans-
portation and commissions on sales, and this wine and liquor interest
would become second only to the mining and farming interests.

Turning from the grape, let us dwell a moment upon the production of
rice, tea. sugar, tobacco, and dried fruits of every description, such as figs,
raisins, etc., etc., all of which can be easil}" grown within the State, and
soon will be commenced, if we encourage cheap labor fi-om abroad to cul-
tivate our waste luxuriant soil. It is industry which makes a people
great, and rich, and powerful; and to our enterprise and resources, we
need but the willing hand of patient labor to make our young and giant
State the glory of our country, and the marvel of the world.

To develop her latent resources, and vitalize all her powers, we need
sound, liberal, far-seeing Legislators; men who can mould and harness all
inferior races to work out and realize our grand and glorious destiny.

It is charged that the Chinese demoralize the whites. We cannot find
any ground for the allegation. We adopt none of their habits; form no
social relations with them; do not intermarry with them; but keep them
separate and apart; a distinct, inferior race.

The}' work for us; the}' help us build up our State, by contributing
largely to our taxes, to our shipping, farming, and mechanical interests,
without, to any extent, entering these departments as comjietitors ;
they are denied privileges equal with other foreigners ; the}' cannot
vote nor testify in Courts of Justice, nor have a voice in making our
laws, nor mingle with us in social life. Certainly we have nothing to
fear from a race so contemned and restricted ; on the contrary, those
Chinamen who remain here are educated up to our standard.

When they leave us, they carry the knowledge of our improvements
home to their countrymen, and although we must not look for miracles
in a decade of years in changing the manners of any jjeoj^le, yet the busi-
ness relations between California and Asia will do more to liberalize and
Christianize those countries than the labors of all the missionaries
throughout China. The Chinese are quick to see, and ready to adopt,
any custom or thing that promises improvement.

The practice of Chinese prostitution by their women is as abhorrent
to their respectable merchants as it is to us. They have made several
attempts to send these abandoned women home to China, but their etforts
have been frustrated under the plea that this is a free country, and these
women can do as they please. These women generally live in boats on
the rivers in China, and arrange for the j^ayment of their own passages
to this State. Ko companies of Chinese merchants encoui-age the imj)or-
tation of women to California.

The evil exists to a far greater extent in China than here, and the re-
spectable Chinese here would be glad to have the most stringent restric-
tions placed upon this degraded and abandoned class of persons. Your
Committee refer to the following letter, to show how the Chinese of this
city stand in regard to crimes and punishments :

San Francisco, March 5, 1862.

Hon. R. F. Perkins — Dear Sir : In accordance with your request, I
herewith give you a statement of the convictions and forfeitures of bail
in the Police Judge's Court during the year eighteen hundred and sixty-

one, not including the twenty-four hours sentences for drunks, in which
only one Chinaman appeared during the entire year.

Montlis.

Convictions

Chinese.

January

195

187
204
209
233
181
204
166
228
356
355
265

February

March

April

May

June

July

August

September

October

November

December , -

Totals

2,783

168

Average of Chinese about one in sixteen. The twenty-four hours sen-
tences, as above, average about one hundred and thirty per month. About
three fourths of the Chinese convictions are women, (prostitutes,) arrested
from the alleys about Jackson and Pacific streets.
Yours,

JOHN II. TITCOMB,

Clerk Police Judije's Court.

Tour Committee were furnished with a list of eighty-eight Chinamen
who are known to have been murdered 1)}^ white people, eleven of
which number are known to have been murdered by Collectors of For-
eign Miner's License Tax — sworn officers of the law. But two of the
murderers have been convicted and hanged. Generally they have been
allowed to escape without the slightest punishment.

The above number of Chinese who have been rohled and murdered,
compose, probably, a very small proportion of those which have been
murdered, but they are all which the records of the different societies
or companies in this city show. It is a well known fact that there has
been a wholesale system of wrong and outrage practised upon the
Chinese population of this State, which would disgrace the most barba-
rous nation upon earth.

Our relations with China are constantly increasing. Our exports to
China were —

In 1859

In 1860

In 1861

Total

$252,000 00
623,000 00
712,000 00

$1,587,000 00

One seventli of our entire exports, (other than treasure.) go to China.
One nineteenth of all the tonnage engaged in coming to or going from
our port, is in the China trade.

In 1861, entered from all parts of the world, tons
Cleared

Total tons entered and cleared

600,000
434,000

1.034,000

Vessels in the China Trade.

Tons.

Entered ,

Cleared

Total

28,286
28,092

56,378

Onr present principal exports to China consist of ahalones, grain,
bread, fish, flour, lumber, potatoes, and quicksilver.

Treasure shipped in eighteen hundred and sixtj-one amounted to
three million five hundred and forty-one thousand, two hundred and
seventy-nine dollars and seventeen cents. Nearly the whole of this sum
was gold bars. Until recently the Chinese would receive nothing but
silver. The Chinese merchants here have, by carefully selected remit-
tances, brought gold to be preferred to silver. This change will save to
our State one million five hundred thousand dollars, which is now paid
for remittances, and greatly enhance the value of our gold product to
the miner.

A number of our large steamers are now going to China to find profit-
able employment upon those rich and extensive rivers that have recently
been opened to the commerce of the world. Ship and steamboat build-
ing and machinery, will hereafter become a large item of yearly Califor-
nia export. Our shipments of lumber are largely on the increase.

Lumber Shipped.

Feet.

In 1858

263,963

In 1859

In 1860

1,321,565

In 1861

963,982

Of quicksilver we shipped —

Years.

Flasks.

Amount.

In 1858

4,132

13,788

In 1861

At $30 per flask it amounts to

$413,640

This carrying business to and from China, (the safest business in the
world.) is nearly all our OAvn. No Chinese capital or labor is here emploj^ed.

We have arrive and depart, annuallj', about thirty ships in the regular
China trade, and these ships disburse in this port, at each arrival, "from
five thousand to ten thousand dollars each, for repairs and refitting.
The ship Dictator, now in port, will need to disburse, before leaving,
about twenty-five thousand dollars. These amounts aggregate very
considerably, and afi'ord active employment to many ship and house car-
penters, ship chandlers, riggers, sailmakers, painters, and other laborers.

In the interior, like advantages arise from Chinese residents. In some
of the mining counties the Chinese, forming less than one tenth of the
population, pay one fourth of the entire county tax. Has the reflection
occurred, what these counties would do without this useful people ?

Your Committee are under obligations to Mr. T. A. Mudge, U. S.
Customs, for the following letter, kindly furnished us by him :

San Francisco, March 10, 1862.
T. MuDOE, Esq., U. S. Customs :

Dear Sir : — In reference to our conversation, regarding the trade
between this port and Hongkong, we have to say, that since the first
of January of this year, we paid the following charter monej's to vessels
consitjned to us. viz :

Name of Vessel.

Charter Money

Disbursed.

White Swallow

Dictator

Dictator, repairs

Mary Whitridge

Benefactor

Swordfish

Consigned to Messsrs. W. T. Coleman & Co.

Fortun a (about )

Charger (about)

Consigned to S. C. Cary —
George Lee

Consigned to Messrs. D. Gibb & Co. —

Therese

The disbursements of these four, say

"We expect daily from Hongkong :

Moonlight, (charter money payable here,)

Jos. Peabody, (charter money payable here,).

Daphne, (charter money payable here,)

Bald Eagle, (charter money j^ayable here,) ...

$11,000 00
13,000 00

13,000 00

8,000 oo!

12,000 00

13.000 00

18,500 00

10,000 00

6,000 00

$10,000 00
8,000 00
25.000 00
7,000 00
5,000 00
3,000 00

13,000 00

26,000 00

24,000 00

16,000 00

24.000 00

The Bald Eagle, we are afraid, must have foundered, with all on board,
as we have had no accounts of her since her sailing, on tenth November
last.

We are, vours truly,

KOOPMANSCHAP & CO.

Instead of driving them out of the State, bounties might be offered
them to cultivate rice, tea, tobacco, and other articles. Eespecting rice,
it will take considerable time and much labor on our tule lands before
they can be made to produce a crop of good rice. Tea is another article
requiring much nice experience, where Chinese labor could be productive
of great benefit, without coming in competition with white labor.

Our Chinese importers paid, last 3'ear, duties at the Custom House
amounting to five hundred thousand dollars. Tea, which then was ad-
mitted free, now pa3's tAventy cents a pound duty, and there will be im-
ported about one million five hundred thousand pounds. The yearly im-
port of rice is twenty-five million pounds, on Avhich the additional duty,
over last year, will be one hundred and twenty thousand dollars. Sugar,
and China silks, and many other small articles, haA^e been materially ad-
vanced by the existing tai'iff — so that, instead of collecting from Chinese
importers five hundred thousand dollars, the same as' last year, the
duties now will amount to nearly, or quite, a million of dollars.

After having reviewed the question of policy — the dollar and cent view —
the morality of tolerating a Chinese community amongst us — we at least
come to consider the legality of excluding or oppressing this class of
residents.

The Constitution of the United States says '• that all treaties made,
or which shall be made, under the authority of the United States, shall
be the supreme law of the land, and the Judges in every State shall be
bound thereby, anything in the Constitution or laws of any State to the
contrary notwithstanding."

This extract brings us at once to inquire into the stipulations of the
treaties that have been made between China and our own Government.

Our first treaty was made by Caleb Cushing, in eighteen hundred and
forty-four, and was characterized by liberal, reciprocal conditions, ex-
pressing sentiments of sincere and cordial amity to be observed by the
two peoples, without exception of persons or places.

This treaty contained a clause that in twelve years it should be modi-
fied to suit the mutual requirements of commerce and navigation ; and
accordingly, in eighteen hundred and fifty-eight. Commissioner Wm. B.
Reed negotiated "the Tein-Tsin Treaty, which repeats the old treaty,
and contains some additional clauses found, by the growing intercourse
lietween the two nations, to be necessarj^.

Article First, amongst other things, recites that the two peoples "■ shall
not insult or oppress each other for any trifling cause, so as to produce
an estrangement between them."

How far we are deviating from reciprocity in our discriminating and
oppressive taxation of the Chinese, need not here be recited.

Article Eleventh provides for the protection of subjects " from all
insult or injury of any sort." It further contains the extremely liberal
provision, " that, if citizens of the United States shall commit any im-
proper act in China, they shall be punished oiJ^ by the Consul, according
to the laws of the United States."

Could any treaty be more liberal ? Is it not worthy of the most
Christian nation ? How lamentably do we fall short of mutuality, in
our conduct and statutes, towards the Chinese in California !

Article Twelfth stipulates " that parties may hire houses and stores
by mutual agreement, and not be subjected to exorbitant prices, and
that each party shall conduct himself with justice and moderation/'

Article Twenty-eightli provides, ^' that the extortion of illegal fees
shall be expressly prohibited."

The thirtieth Article provides " that should the Chinese nation grant
to any nation, or the merchants or citizens of any nation, any right,
privilege, or favor, connected either with navigation, commerce, political
or other intercourse, which is not conferred by this treaty, such right,
privilege, and favor, shall at once freely enure to the benefit of the United
States, its public officers, merchants, and citizens." Thus placing us
upon an equality with the most favored nations.

This treaty gives us the privilege to reside in any part of China —
pursue any business we may choose — to be protected in any religion we
may profess — to be protected in our persons and property — and to be
tried for offences committed in China, by our own countrymen, under
our own laws.

It stipulates for reciprocal intercourse. We mutually promise to live
together in amity and good faith, and that the subjects of each Govern-
ment shall do as they would wish to be done by.

These are the main features of this late treaty, and on the part of the
Chinese, they are liberal beyond parallel. If we but improve, and not
abuse, this peculiar privilege which our position has given to us, no pen
can describe the benefits that will enure to the citizens of California.

Eemember, our intercourse with China is but just opened ; other
nations are watching us with envious eyes. With our enterprise, we
must combine justice and reciprocal interests. Our past conduct toward
our Chinese residents has not inspired them with confidence toward us.
They wish to cultivate our friendship. A better class than we have yet
seen would come to reside with us, if they could be assured of protec-
tion ; but having no Consul here, and being unacquainted with our laws,
(although anxious to conform to them,) they dare not bring capital to
invest in the country in large amounts.

While we are discouraging them. Her Majesty's subjects at Victoria
are deriving the benefits of Chinese capital in the purchase of real estate
to a considerable amount. Several of our resident traders have recently
made real estate purchases in Victoria, who inform us that they would
have preferred to invest their money here, if they could have been
protected by our laws.

We now beg to refer you to the decisions of Mr. Justice McLean, of
the United States Supreme Court. (See 7th Howard, page 392.) These
able decisions have since been recited with approbation and recognized
as authority by the Supreme Court of the State of California, in the
case of The People vs. Downer. (See 7th Cal. page 171.)

Justice McLean disposes of these great constitutional questions in a
manner worthy of his fame as a sound jurist and just Judge. His labors
and reasoning will abundantly reward the time of truth-seeking stu-
dents, and should be studied by every legislator who wishes to clearly
comprehend this great constitutional question.

If we wish laws enacted to exclude Chinese from our State, we must
go to the Congress of the United States for our remedies. We, as a
State, are powerless to pass any law which will exclude them from any

privileges accorded to the most favored foreigners. We have not the
power, nor should it be our policy, to shut ourselves out from one of the
most magnificent openings of the age.

We hope soon to be connected with Asia by a line of mail steamers,
which will enable us to become better acquainted with this wonderful
people. Let us stay action, gather facts, study effects, enlighten our-
selves and our constituents, and at the right time, and in the right man-
ner, take such steps as will conduce to the greatest good of the greatest
number. Our nearness and intimate connection with this industrious,
numerous and cultivated family of mankind, may enable us to confer
blessings on the whole human family.

Let us legislate as becomes a great, liberal, magnanimous peojjle. Let
us manifest our superiority by kindness. We are but at the opening of
those mighty rivers which support four hundred millions of people.
With the unequalled resources of our own matchless State, and the un-
equalled enterprise of our own people, let us enter upon this grandest of
enterprises of modern times with a prudence and intelligence that shall
crown our efforts with countless wealth and national renown.

If a partial Providence has endowed us with ten talents, let us use
them to gain other ten ; and let us infuse into our benighted neighbors
the blessings of that higher and purer civilization which we feel we were
destined to establish over the whole earth.

E. F. PEEKINS,

Chairman Senate Committee.
O. HAEVEY,
G. K. POETEE.

JOHN E. BENTON,

Chairman Assembly Committee.
G. W. SEATON,
W. W. BATTLES.

San Francisco, March 11th, 1862.

REPORT OF SPECIAL COMMITTEE

TO VISIT

THE STATE INSANE ASYLUM

OF CALIFOKNIA.

BEN J. P. AVERY STATE PRINTER.

HE F O H T.

Mr. President : — Your Committee appointed on behalf of the Senate,
at the last session of the Legislature, to visit and to examine into the
condition of the State Insane Asylum at Stockton, according to the
terms of a certain resolution passed in the State Senate on the ninth day
of May, A. D. eighteen hundred and sixty-one, do now resjiectfully
report as follows m regard to the matters submitted to their investi-
gation.

On the fifteenth day of November, A. D. eighteen hundred'and sixty-
one, a majority of your Committee met at the Insane Asylum at Stock-
ton, and proceeded to investigate the affairs, condition, and management
of said Institution.

There is no more humane law existing upon our statute books than
the one providing for the care, maintenance, and cure of this unfortu-
nate class of people in our State, bereft of reason; and especiall}^ is it our
duty to see that the object designed, in creating this noble charity, is
fully met.

It is the opinion of your Committee, after a careful examination and
inquiry into the mode of treatment which patients have heretofore re-
ceived, that there are more insane persons in California to-day, in conse-
quence of the Asylum, than there would now be had no such institution
existed. Startling as this fact may seem, yet we are convinced that no
person will dispute the correctness of the statement, after he shall have
made himself familiar with the precise treatment which patients have
received heretofore ; with the disproportion between the number of pa-
tients and the extent of room in the Asylum building for their accommo-
dation ; with the crowd of inmates, afflicted with almost every degree of
mental disease, each one of whom must either be confined to his room,
or, if permitted to go out for recreation, finds himself one of about three
hundred, whose senseless and unreasoning babble would drive a sane man
crazy were he confined in the same way. The building is altogether too
small to accommodate the patients already therein, and the prospects
now are that the number will rather increase than diminish, unless more
room is furnished for the use of the insane, so that those who give indi-

cations of returning reason may be removed from all contact and inter-
course with those whose cases appear less promising.

The Superintending Physician says,*in his report for the year A. D.
eighteen hundred and sixty-one, that : " The most j)ressing want of the
Institution is additional room. We have enough at present for about
two hundred and fifty patients — while there are under treatment four
hundred and thirtj^-four." When the Asylum is full with two hundred
and fifty patients, how can it be otherwise than crowded to an extent
which will prohibit any useful or curative treatment, when nearly twice
as many as the proper number are left upon the hands of the Physicians
to be taken care of in some way? But, owing to the present defects and
insufficiencies of the A >yLum building, it is almost certain that there can-
not be much, if any, improvement in the condition of the insane until
they are given nearly twice as much room as they have at the present
time, or have had for several years past. It is out of the power of the
most skilful of those accustomed to the care, control, and treatment of
insane, to do much toward a cure of "the mind diseased," unless the
treatment can be had in favorable circumstances, and entirely without
the exciting contact of those whose cases appear more incurable. And
however much this favorite charity of the State may have disappointed
the wishes and expectations of the people, yet no blame can be justly
visited uj)on the present Physicians who have had it in charge, for they
have not had the means and facilities which are provided in almost all
the Insane Asylums of other States. A great deal of money has been
expended in this noble charity, it is true, and a great many inmates have
all the time, for years past, been supported by the State, yet the number
of cures produced at Stockton does not at all equal the number of cures
produced in nearly all similar institutions throughout the United States.
The present Superintending Physician frankly says, in his report for
eighteen hundred and sixty-one : '• The more carefully I inquire into the
condition of the Asylum, the more thoroughly am I convinced that we
have in it a prison, and nothing more." He says, also, that with the ex-
ception of a little gymnasium, there is " an utter want of curative agen-
cies;" also, that " the demand for means of employment for the patients
is scarcely less pressing than for additional room ;" also, that " the evils
of idleness are as great, in proportion to numbers, in an Asylum, as else-
where."

The treatment, which is unavoidable to patients, while the Institution
is in its present over-crowded and prison-like condition, is only calcula-
ted to aggravate and increase insanity, and in a majority of cases, to
make the same perpetual. This will appear to have been the actual
result at Stockton, when we compare the per centage of cures, in our
Asylum, with the per centage of cures in Asylums in other States and
in foreign countries. It appears by the report of the Senate Committee
who visited the Asylum last winter, during the session of the Legisla-
ture, that the number of cures in the Stockton Asylum was. in A. D.
eighteen hundred and fifty-eight, less than five per cent, upon the whole
number treated, and only thirteen and eighty-two one-hundredths per
cent, on the admissions, while in the Asylums in other States of this
Union, the average number of cures are reported to be over forty per
cent, upon the admissions. Such a vast difference between the result of
treatment in this State, and in similar Institutions in other portions of
the countr}^, must force the conclusion that something is radically wrong
in the management of our insane.

Again, it is true that a large majority of the cases which are now

brought to the Asyhim, are recent cases. It is also true that recent cases
are much more readily and easily cured than those which have been long
continued, as may be proved by the unanimous testimonj^ of those phy-
sicians who have had experience in the treatment of the insane.

Dr. Kirkbride, Physician to the Pennsylvania Hospital for the Insane,
in his book on the construction and organization of hospitals for the in-
sane, says: "Of recent cases of insanity, properly treated, between
eighty and ninety per cent, recover; of those neglected, or improperly
managed, very few get well." At St. Luke's Hospital, London, where
the rules require that the disorder be not more than of one year's
duration, on admission, the cures have averaged sixty-two per cent,
during the last ten years.

Dr. Hitchman says in a report : " It cannot be too often repeated
that the state of a patient's illness at the time of admission is the chief
circumstance which determines whether four patients in a hundred, or
seventy in a hundred, shall be discharged cured."

The last foregoing extracts are from the report of the Assembly Com-
mittee on State Hospitals, made during the last session. Also, the fol-
lowing, from the Select Medical Library, also contained in said report :
" Since it has been found that upwards of eighty insane patients in the
hundred can be restored to the enjoyment of their mental faculties,
when the malady is treated in its earliest stages, we may consider in-
sanity as a disease as likely to be relieved as any other affection."
Since, then, it appears that recent cases are much the most easy to cure,
and that a large majority of the Califoi-nia cases are recent, it seems
rather a cruelty than a mercy to receive such recent cases into a
crowded and unfit receptacle, where '' there is an utter want of curative
agencies," and where the decided tendencies are to drive those of more
wavering intellect into hopeless and redemptionless insanity. But your
Committee are disposed to believe that even the limited amusements and
recreations furnished by the open yards, and the " little gymnasium"
erected upon the direction of the present Physicians, have had a very
beneficial effect upon the recent patients, since it appears by the late
report of Dr. Tilden, Resident Physician, that from the twentieth of
April until the thirtieth of iSTovember, A. D. eighteen hundred and sixty-
one, a period of seven months and ten days, out of a total average num-
ber of about four hundred and eighty-five patients, one hundred and fifty-
four were discharged cured, twenty-three improved, and eleven unimproved.

Of these thus discharged it appears that one hundred and forty-eight
had been in the Asylum less than a year, as follows :

Time in the Asylum.

No.

Less than one month ,

Prom one to three months...
From three to six months...
From six months to a year..
From one year to six years

59
38
27
21

The above statement alone is sufficient to convince any person that it is
of the utmost importance that persons when first brought to the Asylum
should have peace and quiet, and careful and judicious treatment, and

the free use of all curative agencies which modern learning and expe-
rience have shown necessary or beneficial in the management of mental
disease. Unless the Institution shall be placed in a condition to furnish
more room to patients, and insure them proper care, training, and atten-
tion, the person who is taken to the Asylum with a recent attack of
insanity is more unfortunate than he who is left to recover at his leisure,
among his friends and relations, for the latter has a better chance of
recovery.

Again ; a considerable number of persons have been received into,
and are now retained in the Asylum, who are not proper subjects for
treatment therein. The law provides that the County Judge of any
count}^ shall, upon the application of any person, under oath, setting
forth that any person, by reason of insanity, is unsafe to he at large, or is
under mental derangement, cause such person to be brought before him,
and two respectable physicians to be called to examine the person alleged
to be insane, and if such physicians shall certify, under oath, that the
charge of insanity is true, also name of patient, age, birthplace, etc.,
etc., etc. ; and if such Judge he satisfied that such 2)crson is, hy reason of insanity .
unsafe to he at hirge, he shall direct the Sheriif of the county to take him
to and place him in the Asylum.

Now, a brief intercourse with and inspection of the patients at this
time in the Asylum, will convince any one that perhaps one fourth of the
patients now in the As3'lum are no more projjer subjects of treatment in
an insane asylum than the same number of persons living in a malarious
district alfected with the chills and fever. A few persons ai'e now in.
and have been in some time, who, upon being accused of high crime,
pleaded insanity, and were acquitted upon that plea — and, as the law
directs, were sent to the Asjdum. Some of these were doubtless cases
of feigned insanity. There are also a considerable number of persons
confined and supported in the Asylum who are merely physically help-
less, from paralysis and other disease, and are without any, or very little,
mental derangement. All these persons should be supported and cared
for in the County and State hospitals for the cure of physical disease,
and not encroach upon the limited room provided for the insane. Care
should be taken that no more cases of mere jDhysical disease should be
received into the Asylum ; for aftei- one of these helpless paralytics has
been received, it is almost or quite impossible to send him away. Quite
a number have found their way into the Asylum who are merely broken
down by age and physical debility, whose weakness of mind has only
kept pace with declining years.

A great man}- cases are sent to the Asylum where the mental derange-
ment is recent, the result of temporary causes, such as great mental
excitement from sudden and unexpected gains or losses, from dissipation
and too free use of ardent spirits, and from the man}' causes, too numerous
to enumerate, which temporarily unsettle the mind. Friends and rela-
tives, as soon as they discover any aberration of mind in the person
affected, are too apt to think that the Asylum is the only place for him.
whereas a little kind and reasonable treatment from themselves would
be infinitely better for the patient ; so they make complaint at once to
the County Judge, and with great facility the order of transportation is
obtained, and the poor unfortunate cut off from association with the sane
and lodged with and surrounded by insane persons alone as associates ;
should he even approach recovery, under these adverse circumstances,
the constant association with insane persons onlj', would have a gTcat
tendency to drive him back from sanity, and fasten mental derangement

upon him for his lifetime. On the other hand, if the individual had been
retained at home or among the sane, and received the kind care and
treatment of friends and relatives for a few days, in a majority of recent
cases, arising from the causes last before stated, there would be a com-
plete and entire recovery and cure. It would be cheaper for the several
counties to take care of these recent cases in their hospitals, and better
for the patients. It would be different, were there opportunities at the
Asylum for the separate treatment of the class of patients just mentioned.

In the present crowded condition of the Asylum there are no facilities
for properly sepai-ating and classifjnng the different forms, grades and
degrees of insanity, although such separation and classification is indis-
pensable to successful treatment. In Asylums in other States it is usual
to have the institution divided into not less than ten and from that to
fourteen wards, for both male and female jiatients. The patients in each
ward are kept entirely separate from the other inmates of the Asjdum,
and receive such treatment as in their several cases appears best calcu-
lated to aid their restoration to reason, and thus those inmates for whom
there is little or no hope of improvement have no intercourse with those
whose cases are hopeful, and no opportunity to exert a malign influence
upon them. In the Asylum at Stockton there are only five wards alto-
gether, including the mad-house, if indeed the sejiarate divisions can be
called wards, for there is no separation of those who are permitted to go
out of doors into the yard, where the only opportunity for recreation and
amusement is attbrded by the little gymnasium. In this yard, on pleasant
days, there are congregated patients of all grades, types and degi-ees of
insanity, to the number of more than three hundred, with a result not at
all advantageous to the confirmed cases, and to the great injury of those
with whom there is good hope of recovery.

In the portion of the Asylum occujjied by the female patients there
are but three wards, including the mad-house for females — although
this portion of the Asylum is far less crowded than the portion occupied
by the males. There are two yards connected with the female dejiart-
ment, for out-door exercise, but neither of them is in a wholesome or
cheerful condition. The mad-house for females is in one of the yards,
and like the mad-house for males, is used to confine many patients who
are not mad, but for Avhom there is no room in the main building. These
so-called wards, and especially the sleeping apartments connected with
the same, are not of sufficient capacity to properly accommodate more
than one half the number they now contain. The grouping together of
80 large a number of persons in small and ill-ventilated sleeping rooms
has engendered pulmonary diseases, and the records of death from this
source develop startling facts which call loudly for reform.

The dining rooms of the Asylum are cntii-ely too small, and the
dishes and furniture of the same are of the most rude character. The
food provided is plain, well cooked, and wholesome, and is the only
attractive feature about the eating apartments. The kitchen, bakery,
and cooking departments, are most admirably conducted.

RECORDS.

Your Committee were greatly surprised to find that there were no
books of accounts, or records oi' all the doings at the Asylum, now in
the Asylum building, or in the possession of the present Resident Phy-
sician, except only the books and records made under the administration
of the present Resident Physician, and one book containing the number

of commitments for the past year. All the books containing any state-
ments of the doings at the Asylum, previous to the administration of
Drs. Tilden and Clark, (excej^t said book of admission for the last year.)
had been removed from the Asylum by some of the former officers. We
are informed that they are claimed by the predecessor of Dr. Tilden, as
his (Dr. Aylett's) private propert3^ It seems to your Committee, that
under the law, it is one of the jjublic duties of the Eesident Physician to
see that books are kept, showing minutely all the doings at the Insane
Asylum, and that his services in keeping the same are a part of the
duties, for the performance of which his salary is paid him, and that the
books are public proi^erty, and ought alwaj's to be at the Asylum, in
charge of the Eesident Ph^'sician. The law says: ''The Eesident Phy-
sician, who shall also be the Superintendent, shall be the chief executive
officer of the Asj'lum. ***** He shall cause full and fair accounts
and records of cdl his doings^ and of the entire husiness and operations of the In-
stitution^ to he kept regularly from day to day, in books provided for that pur-
pose, in the manner and to the extent provided in the by-laws." (See
statutes of A. D. eighteen hundred and liity-eight, page one hundred and
seventy-three.) It seems to jowr Committee that a County Treasurer,
Tax Collector, or Clerk, would have the same right to carry away and
claim as his private property, the books which he had written up during
his official term, as the Physician of the Insane Asylum. These books
should contain a full and complete statement of all the financial affairs
of the Asj'lum, of every dollar received from the State, and of every
dollar paid out for every purpose whatever. Also a full history and de-
scription of ever}" patient, and his symptoms or affections which indicate
disease, of the time when he came to the Asylum, how long he stayed,
when discharged, and was he at the time of his discharge cured, im-
proved, or unimproved. Also many other things are required to be
stated which are enumerated in the by-laws, and which are not necessary
to be enumerated here. But reall}' our Insane Asylum is not to have
a history at all, if every retiring Physician be permitted to carry away
all the books, records, and memoranda made during his term of four
years. And your Committee recommend that the Attorney-General be
required to take legal stejjs for restoring to the Asylum the jjossession of
the missing books. History shows that one of the most powerful aids
to science and successful treatment of disease, is derived from statistics
of correctly kept records. In this respect our own State — its rapid
growth in population, incident to the discovery of gold, the life, excite-
ment, and habits of the people, the climate and its modifying influence
upon disease, these, with the alarming increase of insanity in our State —
offers a field of greater magnitude and interest than any other State in
the Union.

It is true, that the possession of these books would not enable us to
change, in any way, the past of the Asj'lum or its inmates, but a know-
ledge of what has taken place in the past might serve as a guide or a
warning for the future. There is no other Asylum, within the knowledge
of your Committee, where there are not kept very minute and accurate
accounts of every patient, describing his disease, its progress, its changes,
its peculiarities, and characteristics, as well as the treatment and man-
agement which is given in every peculiar case. It is from these memo-
randa of actual exjDerience and practice, that physicians learn how to
treat disease, and have, for the most part, within the last half century,
learned that insanity is not an incurable disease, but one, if taken in the ,

early stages, presenting as probable a ease for a successful result, and a
speedy cure, as any mere physical malady.

SEWERAGE,

The level and low country in which the Asylum is situated, oifers no
means for natural sewerage. Before the present Eesident Physician took
possession of the Institution, the offal and refuse matter of every
description were buried in wells or holes in the ground, which were sunk
on the Asylum lot, not far from the Asylum. These cesspools had be-
come rather numerous, and, during the hot weather, the stench from them
was intolerable, while, during the winter, when the water was near the
surface of the ground, the cesspools would overflow, and, around their
surfaces, create an intolerable nastiness ; the wells, from which water
was pumped for the use of the Asylum, being also polluted and infected
by the neighborhood of these cesspools, to the detriment of the health
of the patients. The present Superintendent has undertaken and nearly
(or quite) completed a system of sewerage — a complete description of
which is contained in his Annual Eeport. No improvement connected
with the Asylum was more imperatively demanded than this; and from
a careful examination of the plan adopted, your Committee hope, and
have reason to believe, it will be a great success, and reflect credit uj)on
its projector. The labor in the construction of this work has been per-
formed, for the most part, by the patients. They have done the work
cheerfully, and not onl}' has their labor been a saving of money to the
State, but the occupation and exercise thus afforded have had a very
beneficial effect upon the laborers. Proper occupation of the mind and
corporal exercise are most valuable auxiliaries in the trc?atment of in-
sanity ; and the present Superintendent, fully appreciating this fact, has
obtained from the patients much of the work that has been done about
the farm, the gardens, and the buildings.

FARM.

By a well regulated system of labor, nearly all the work required on
the farm and in the gardens, could be done by the healthy and able-
bodied inmates of the A.sylum, and with advantage both to their mental
and physical condition, and thus, upon the Asylum grounds alone, all
the fruit and many of the vegetables required for the use of the Institu-
tion, could be raised bj- the labor of the patients, and at no expense to
the State.

The ample grounds, the fertility of the easily cultivated soil, the
facility with which the whole grounds can be irrigated, are reasons suffi-
cient to earnestly recommend that more attention be given to this
department hereafter than has been done at any time heretofore.

DAIRY.

The number of cows belonging to the dairy is entirely too few to
supply the requisite amount of milk for the Asylum ; there being only
nine, when twenty or twenty-five would not be too many The hay and
other material that could be raised ujjon the farm and in the gardens,
would go a long way towards keeping the number of cows mentioned
above as necessary; and as a matter of economy, and for the health and
2

well-being of the inmates of the Asylum, your Committee recommend
an appropriation of five hundred dollars for this object.

IMPROVEMENTS.

The improvements made in the Asylum buildings by the present
Superintendent, are well worthy of note. There has been erected a
gymnasium — of limited capacity, it is true — in the yard occupied by the
males for a place of recreation, which is eagerly sought for exercise, and
the use of which by the inmates is causing a marked improvement in the
mental and physical condition of many of them.

A reading room has also been established, in which may be found,
every morning, nearly all the newspapers and periodicals published in
this State. An appropriation is recommended for the purchase of a
library, to be put also in the reading room. At present there are in the
Asylum only the relics of a once meagre collection of books.

Another important improvement of the present administration, ob-
served by jonr Committee, is the removal of nearly all the tight panel
doors from the sleeping rooms in the Asj'lum, and the substitution of
latticed doors in their place; thus aifording a more free circulation of
air in these heretofore confined, over-crowded, and ill-ventilated sleeping
apartments.

The sanitary condition of the Asylum, as regards diet, bedding, cloth-
ing, and cleanly condition of the rooms in every portion of the building,
is most commendable. The rules and by-laws jjrescribed by the Resi-
dent Physician for the observance of the attendants and employes in the
Asylum, are such as to secure safety, kind treatment, and considerate
care to the patients.

FINANCIAL.

After an examination of the financial system adopted in the Asylum,
your Committee recommend no change, except the reduction of the
salary of the Eesident and Assistant Physicians and Treasurer — the
Resident from five thousand dollars to thirty-five hundred dollars, the
Assistant from three thousand dollars to twenty-five hundred dollars, and
the Treasurer from one thousand dollars to six hundred dollars. This
should be done so as to reduce the salary of the successors to the present
incumbents. The present financial management of the Asylum is most
commendable. The books and accounts are kept in the most minute,
accurate and systematic manner; scarcely any thing worth notice esca2)ing
mention. So exact an account in every dejjartment, and of every thing,
and in regard to every individual, as to exhibit a monthly or a daily
expenditure.

Your Committee refers you to the Report of the Trustees of the Asy-
lum, and of the Resident Physician, for a statement of the expenditures
for the present fiscal year — those reports doubtless stating the amounts
correctly.

ELECTION OF RESIDENT PHYSICIAN.

Your Committee would recommend an entire change in the law which
provides for the election of Resident Physician. Attention was called
to this subject in the report of the Senate Hospital Committee, at the
last session of th.e Legislature, as follows : " The manner of electing the
Physician to the Asylum, by the Legislature, based upon the political
proclivities of the candidates, cannot be too highly deprecated in a civil-

ized and enlightened country; not but that competent and worthy men
may be, and are sometimes, elected, but to measure human life and suifer-
ing by dollars and cents, or the freaks of political parties, is revolting to
every instinct of an enlightened and humane mind." It is the opinion of
your Committee that Physicians to the Insane Asylum should be chosen
by a Board of medical men, created for that purpose ; and that the can-
didate should be selected with especial reference to his ability, skill, edu-
cation, and fitness for the situation. Better would it be (and we deem it
no reflection upon the profession in this State) for us to send East, as in
the case of the State Geologist, and select a man who had made insanity
a special stud}^ and won an eminent reputation for success in the treat-
ment thereof, than to continue to receive the Superintending Physicians
of the Insane Asylum from the hands of politicians of the State.

PAY PATIENTS.

The amount of money lieretofore received at the Asylum from pay
patients has been very inconsiderable, although it is highly probable that
there are now, and have all along been, a good number of patients who
could have paid the monthly advance required by law, had any pains been
taken to ascertain the financial ability of the patient, by the County
Judge or persons who procured the insane person to be sent to Stockton.
As it appears from the report of the Resident Physician that the actual
expense of keeping a patient is fifty-one cents a day, or fifteen dollars
and fifty cents a month, would it not be as well for the Trustees to
change the by-Uiws and reduce the amount required to be paid by a pay
patient, from fifty dollars per month to twenty -five ?

It is believed by your Committee that an additional building, sufiicient
in size to accommodate the female portion of the inmates, (ninety-two
in number,) is urgently demanded, and at as early a day as practicable.
The cost of erecting a building which should be sufficient in size to ac-
commodate all the iemale patients, now and hereafter, would not be less
than fifty thousand to seventy-five thousand dollars. Your Committee
would call the attention of the Senate to the fact that the State is the
owner of a building in the vicinit}^ of Marysville, which was erected for
a State Reform School, which is large enough to receive and accommo-
date at least two hundred patients, and is, in all respects, well adapted to
he used as an Insane Asylum for the females. The cost to the State of
adopting this Marysville building for a branch Insane Asylum, would be
the cost of removing the patients, of purchasing furniture, bedding, etc.,
and the salary of a Resident Physician. Again ; the required additional
room is needed noAv, as soon as it can be obtained. The building at
Mar^^sville can be occupied as soon as a removal of the patients can be
had, while it would take nearly a year to build a new building at Stock-
t(m, and complete it, ready for occupation. The building at Marysvile is
also, at this time, almost unoccupied, there being only three or four boys
who are living at it, and it could be made ready for the reception of the
female insane at only a few days notice.

Your Committee submit this matter of additional room, and where and
how it shall be obtained, to the Senate, without making any recommen-
dation.

Your Committee are unwilling to close this Report without saying a
word of deserved praise in behalf of the present Physicians of the Asy-

lum. Since they have been in charge of the Institution they have exhib-
ited the utmost devotion to the discharge of their duties, and have
taken the deepest interest to improve the condition of affairs at the
Asylum, and to make the same, to the extent of their ability, a curative
institution. The unfortunate inmates are all treated with kindness and
consideration, and force is never exercised unless to restrain the parox-
ysms of the maniac. We think, if the State shall do its part and furnish
room sufficient for the proper treatment of these unfortunates, that the
Physicians now in charge will change the past character of the Asylum,
and make the same a place of speedy cure for recent insanity, and a
credit to the State.

Your Committee also give notice that they will, at an early day, intro-
duce a bill for an Act to change and amend the law now in force govern-
ing the Insane Asylum — and will provide in it for the several matters
they have recommended in this report.

All of which is respectfully submitted.

O. HAEVEY, Chairman,
W. H. PAEKS,
A. L. EHODES,

Committee.

REPORT

OF THE STATE HOSPITAL COMMITTEES

ON THE

(Konbition of t|e fnsane %B^\m.

M^RCH, 1869.

BENJ. P. AVERY STATE PRINTER.

IlE P» O R T.

Mr. President : — The 8tato Hospital Committees of the Senate and
Assembly, acting as a Joint Committee, having, as such, visited the State
Insane Asyliuu, and examined the same, ask leave to present the follow-
ing Report :

We found every department of the Institution in a clean and neat
condition, and nearly all the inmates in good bodily health; but, on ac-
count of the limited capacity of the building, the sleeping ajuirtments
ai-e excessively crowded, and it is with great difficulty that cleanliness
can at all times be maintained.

The food is of excellent quality, and, with the am])lo cooking facilities
that were procured during last year, it is well prepared by competent
cooks.

The books relating to admissions, age, sex, supposed cause of insanity,
nativity, etc., are kept in a very neat, thorough, and systematic manner ;
and those relating to the financial management of the Asylum, we found
to be quite satisfactory.

The general management of the Asylum is characterized by order,
regularity, aiul jjromptness.

The financial attairs of the present administi-ation have been conducted
with a due regard to the interests of the State, and after an examination
of the books and vouchers, we found them correct.

Tour Committee regret that no "Case Book," showing the medical
treatment of the patients, has been kept. In the absence of any record
of this kind, we are unable to express a definite opinion concerning the
medical management.

It is true, that ordinary medical prescriptions cannot be relied upoi:)
as general remedies for mental disease ; but, in many instances, insanity
: is the result of physical derangement, and, in such, the use of medicine
is highly important, if not indispensable.

In all cases, whatever may be the form of insanity, or the remedies
used, there should be kept a systematic record of the symptoms and
treatment of each patient, so as to secure all the advantages that expe-
rience can furnish.

It is to be hoped that this much needed improvement in the medical
management of the Institution will be introduced at an early day.

The patients should hj all means be classified, with reference to the
different ibrms of their insanity ; but, in order to do this with anything
like efiiciency, more room is absolutely required.

One of the principal wants of this Institution is a high fence around
the farm, which, including the grounds of the Asylum, embraces one
hundred acres of excellent h\nd. This might be made of redwood, at a
cost not exceeding four thousand dollars, and then a very large proportion
of the patients, instead of being confined within the gloomy prison-like
walls of the dreary back yard, as is now necessarily the case, they could
be pleasantly and profital)ly employed in the various departments of
Agriculture and Horticulture. As an instance of the benefit likely to
result fi'om a course of this kind, we may refer to one of the patients,
wlio, during the past two or three years, has been engaged in cultivating
about two acres of land, which the Resident Physician appropriated ex-
clusively as his domain. During that time, he has enclosed it with a
substantial fence, built a workshop, constructed an excellent windmill for
the purpose of irrigation, planted an orchard and a vineyard, and thus,
by his own labor, he has contril)uted to the value of the property an
amount not less than one thousand dollars, besides supplying the Asylum
with a considerable portion of the vegetables required last summer.

Regular and congenial employment would contribute more to the
restoration of the unfortunate inmates of the Asylum than any other
agency that can possibly be used, and in order to secure this, the en-
closing of the farm and the erection of workshops are indispensable.
A few thousand dollars expended for these purposes would tend to
rapidly diminish the number of the patients, and hence, motives of econ-
omy, as well as the dictates of humanity, demand that these improve-
ments should be made as soon as possible.

There should be erected, a gymnasium, with all the common appliances
for health}', manly exercise. Much good has already resulted from the
small gymnasium put up during last summer. The library and reading-
room should also be materially increased and supplied with books calcu-
lated to interest and improve the patients, many of whom are fond of
reading. Being almost entirely without reading matter, amusement and
employment, and being confined within a small, dismal enclosure, in
which there is not a tree, a shrub, or even a blade of grass, and from
which there is no landscape view to relieve the eye — seeing nothing but
gloomy walls and ponderous bars — hearing no sounds but the ravings of
maniacs, and often, in warm vreather, compelled to breathe the disgust-
ing efliuvia arising from filthy cesspools — the wretched inmates of the
As3'lum are now forced to mentally feed on their own distracted
thoughts, or commune with their deranged associates in misery.

A Chaplain is one of the grand desiderata of the Institution, and a
competent man should by all means be engaged as such. Doubtless
there are in Stockton ministers who would be pleased to serve in that
capacity, even for a moderate compensation ; but, at any cost, some
capable person should be entrusted with the moral and religious care of
these poor unfortunates.

The experience of last year shows that in the making of any improve-
ments at the Asylum, the labor of the inmates can be used with very
great advantage to themselves and the State.

A portion of your Committee made a very careful examination of the
sewer and reservoir, which are in course of construction, and which

would have been completed before this, if it had not been for the recent
heavy rains. We are of the opinion that it is a work of great importance
to the Asylum, and that it will full}' answer the ends for which it was
intended — thorough drainage and irrigation.

Your Committee made an examination in regard to the books of the
Asylum, kept during the administration of Dr. Aylett. We found them
in the possession of Mr. B. W. Bours, who says they were left with him
as the private property of Aylett. By what right these books were
taken from the Asylum, we have been unable to determine ; for the
statute expressly provides that " The Resident Phi/sician, u-ho shall he the
Superiiifendeiit," '• shall cause full and /air accounts and records of all his doings,
and of the entire husiness and operations of the Institution, to he kejit regularly,
from day to day, in hooks provided for that j^nrjjose."

It is important that these books be retained in the Institution, as a
histor}' of its transactions.

The mode in which these books were kept renders an examination into
the management during previous years rather difficult, even if such
examination formed part of our duty, or could result in any material
benefit. We would, however, refer to the absence of all record in these
books, as to the distribution of supplies brought to the Asylum, and also
to the absence of the by-laws required by the statutes. By the system
of book-keeping now followed, the disposition of every article brought
to the Asylum is clearly shown ; but j^our Committee regret that proper
by-laws have not as 3'et been adopted by the Board of Trustees, nor have
they ap])ointed an Auditing Committee, a Building Committee, and other
Committees required in conducting the affairs of an institution of this
nature.

The attention of your Committee having been called to certain charges
made against the present Eesident Physician, on account of the allega-
tions that he had abused his authority in purchasing household articles,
we devoted some attention to the subject, and find that the charges are
without foundation.

Your Committee are of the opinion that the Physicians should be
chosen by a board of competent medical gentlemen, who would be more
likely to judge correctly as to the relative merits of candidates, and to
be free from the entanglements of political relations, than the Legisla-
ture ; and hence, as a general thing, thorougldy capable men would be
placed at the head of the Institution. Xor are the competency and effi-
ciency of those now in charge of the Asylum,'an illustration that tends
to disprove the correctness of this position ; for all who witnessed the
contest, which, fortunately, resulted in the selection, must have seen
the manifokl evils of the present system of electing Physicians. Under
it, lobby influence and political chicanery are much more important than
medical attainments, humane feelings and industrious habits ; and there-
fore, in the list of contestants for these positions, really competent phy-
sicians are not often found.

After a protracted examination of the subject, the undersigned, of your
Committee, decided to recommend the establishing of an Infirmary in
the Eeforni School Building, near Marysville, and the sending thither of
those who are idiotic, and all others who are considered incurable, but
who are not violent or disposed to escape. In recommending the Infirm-
ary, we are of the opinion that the taking of two hundred patients from
the Stockton Asylum, will lessen the expense of the Asylum very nearly,
if not quite, to the amount of the increased expense that would neces-
sarily be incurred at the Infirmary at Marysville.

It must be obvious to any and all persons, that it is absolutely neces-
sary that something be done immediately. Human sympathy demands
it ; the crowded condition of the Asylum rendering it, in the words of
the present Superintendent, " a second class prison." It is evident that,
instead of it being an institution to cure the insane, it is one that con-
verts slight cases of insanity into confirmed and incurable cases. Al-
though it is scarcely possible to secure at this session the passage of an
Act providing for a general reorganization of this Institution, it is ne-
cessary.

If no Infirmary be established near Marysville, there should be appro-
priated, for improvements to be made at Stockton, about twenty-five
thousand dollars, and if an Infirmary be established, fifteen thousand
dollars will be required for transporting the patients, purchasing furni-
ture, and fitting up the Eeform School Building ; and, in that case, about
ten thousand dollars will bo required for improvements at Stockton.

In conclusion, your Committee would take this occasion to direct atten-
tion to the great imposition that is practised on the State, by sending to
the Insane Asylum a class of idiotic and infirm persons, who should be
retained in the different County Hospitals. In this particular, the fault
appears to be in the local authorities, rather than in the law. As an in-
stance, we may be permitted to refer to the case of a woman, who was
committed to the Insane Asylum on account of insanity induced by " dis-
satisfaction with her boarding house," which, upon inquiry, proved to be
the county jail, of which she had been a frequent inmate, at the expense
of the count}'.

Considerations of humanity and public policy alike imperatively de-
mand that an increase in the accommodations and curative agencies be
procured as soon as practicable ; for, Avithout these, the number of our
insane must necessarily continue to increase with painful rapidit}' ; but,
if more wards cannot be added during the coming year, there should at
least be appropriated a sum sufficient to construct a high fence around
the whole or a part of the farm, and to erect a suitable gymnasium, and
procure the means of aflFording rational amusement.

JOHX H. HILL,

Chairman Senate Committee,
O. HAEVEY,
A. B. NIXOX,
BEiS'J. SHUKTLEFF,
E. TEEGARDEN.

We, the undersigned, of the Committee on Public Hospitals, concur in ,
the foregoing report, except that portion thereof which relates to a'
Branch Insane Asylum, or Infirmary, to which we are opposed, because,
in our opinion, it will necessarilj' greatly increase the number of officers
and employes, and will divide the attention and efforts of the State,
and thus prevent the making of either establishment a first class in- !
stitution.

T. M. AMES,

Chairman Assembly Committee,
C. M ACL AY,
SAMUEL MEYEES,
B. H. HATHAWAY,
J. A. BANKS.

iPiT i ismi ciiinii i 8TITI Mimm

R&L^riVE TO

THE STATE INSANE ASYLUM.

APRIL, 1863

BEN J. P. AVERY STATE PRINTER.

HE P O H T.

Mr. Speaker : — A majority of your Committee on State Hospitals, upon
whom devolved the duty of visiting and inquiring into the condition and
management of the Insane Asylum of the State of California, respectfully
submit :

That on the first of March they visited that Institution, and proceeded
to the discharge of their duties. Witli other portions of the San Joaquin
Valley, Stockton and vicinity sutfered materially from the late floods,
which proved so destructive in other portions of the State. The Asylum
property and grounds shared more or less in the general injury sustained
in that part of the San Joaquin Valley — most of the fences being broken
down and floated otf, and tlie garden and yards much defaced. It is,
however, a cause of congratulation, that the buildings sutfered no injury.
Save a temporary removal of the patients from the "Mad Houses" to
the main building, no interruption was occasioned in the ordinary daily
routine in the Institution.

The buildings for the accommodation of patients are in excellent condi-
tion, having been, during the last summer and fall, thoroughly repaired
and repainted ; which, combined with an excellent code of police regu-
lations, gives to the Institution an air of cleanliness, comfort, and order,
commendable of the present management. Your Committee, however,
could not fail to observe, what must strike the attention of every visitor,
viz : the excessively crowded condition of the sleeping apartments, the
coarse and unrefined refectory accommodations, and the need of classifi-
cation of the patients ; evils which must inevitably militate against the
success of the design for which the Asylum was established. So great,
indeed, is the wan t"of room, that six, eight, ten, and even fifteen patients
are crowded together into apartments, which, with due regard to health
and safety, should not be occupied by more than one half the number.
In view of such facts, it is a matter of surprise to your Committee that
the mortality in the Institution is not much greater than it is; especially
if, in connection with the crowded condition of the sleeping apartments,
it is remembered that in the yards of both the male and female depart-
ments there are many large cesspools which receive the drainage from
all the water-closets and bath-rooms, which, not unfrequently, overflow

and contaminate the air. To remedy the latter evil, a plan of sewerage
has been projected and approved by the Trustees, which will not only
secure good and sufficient drainage and afford means of irrigation, but
also provide an invaluable fertilizer for the garden and ornamental
grounds. It is a misfortune that the progress of its execution was inter-
rupted by the flood ; otherwise its completion would have been effected
by the first of February. The final success of the plan is beyond doubt,
and it is hoped tliat it will be in operation in a month or six weeks after
work shall be resumed.

It was observed, also, by 3'our Committee, that the Asylum is almost
wholly devoid of the means in general use in the Asylums of the Eastern
States, as agents for the cure of insanity — the idea having obtained, or
at least been practised upon by former administrations, that the insane
required nothing more than confinement, food, and clothing. "Whereas,
an enlightened management of an institution of this nature fails not to
provide apjiliances for the employment and amusement of its inmates.
A small g3'mnasium and limited reading-room are all the agents of a
curative nature of which the Asylum can boast. Limited, however, as
these are, their beneficial effects as remedial agents are in striking con-
trast with the results of former years ; showing a decrease in seven
months and eleven days, under tlie present management, of thirty-seven
patients, as against an annual increase of from fifty to seventy-five for
several years previously. If, therefore, so small an effort in that direc-
tion has produced beneficial results of such magnitude, we may reason-
ably ask. What may not be hoped if such appliances were sufficiently
extensive and varied to give employment and amusement to the four
hundred and twenty-five insane patients now suj^ported at the expense
of the State ?

We are unable to perceive any reason why there should not be as large
per centage of cures in the Insane Asjdum of California, as in Asylums
elsewhere. No country can boast of a more healthful climate, and, in
our judgment, nowhere are the causes of mental derangement less likely
to be of a deepl}^ rooted and permanent nature; and we can only account
for the comjiaratively small number of cures in our Asjdum by the fact
that the necessary curative agencies have not been employed. No blame,
however, can be jnstlj' attached to the present Resident Phj'sician, on
account of these deficiencies. The}' existed when he took charge of the
Asylum even to a greater extent than now, every thing of a curative
nature now to be found, having been introduced by him, and he has availed
himself of the first opportunity offered since he entered iipon his official
duties, to lay before the Legislature the true character of the Institution,
and the remedies required, which may be found in his Annual Report,
and which we commend to your careful persual.

Further examination discovered to 3'our Committee the fact that there
is no history of the cases in the Asjdum, beyond the limited information
derived from the commitments and examining physicians' certificates,
sent with the patients to the Institution. It is the opinion of your Com-
mittee that this want of a "Case Book" is a serious defect in the man-
agement of the Asylum. Great as this defect must appear to any one
having the least knowledge of the management of such an institution, it
is but the offspring of a pre-existing defect — the want of means where-
with to constitute a Case Book. A little reflection will suffice to show
that it is impossible to present a history of the treatment of a disease, in
any institution where the necessary remedial agents are wanting. Rem-
edies there az'e, it is true, in the Asylum, for the physical diseases com-

mon to the sane as well as the insane, but the contents of a drug-room
are comparatively useless in the treatment of insanity proper^ and it is
the history and treatment of suck cases, not those of a general hospital,
that is expected to be recorded in the Case Book of an Insane Asylum.
Considering the comparatively small cost of the necessary curative ap-
pliances, without which a Case Book would be valueless, it appears to
your Committee that but little short of culpable neglect or inexcusable
ignorance prevented their introduction yeai's ago. To whom this state
of things should be attributed, whether to former Legislatures, to the
Trustees, or to tlie medical officers charged with the management of the
As3dum, 3'our Committee must leave to you to determine, after stating
the fact that the present medical officers have been untiring in their
efforts to effect the needed reform, and that it is impossible for them to
succeed in any notable degree, unless supported by the action of the pre-
sent Legislature.

In the investigations made by your Committee, the financial manage-
ment of the Asylum underwent the closest scrutiny. It was found that
the law governing the mode of purchasing " provisions, fuel, clothing,
and medicines," has been strictly complied with, except as regards " medi-
cines." The Resident Physician is required to make out estimates for
such supplies, for the six months ending on the first of June and Decem-
ber of each year, and submit them to the Trustees, who advertise in
the San Francisco, Sacramento, and vStockton journals, for sealed propo-
sals to furnish the same, which being opened at a stated meeting of the
Board, the contracts are then and there awarded to the lowest bidders.
It being impracticaltle to estimate the '' quantit}', quality, and character"
of medicines required six months in advance, these articles have not been
included in the contracts, but have been purchased under direction of the
Resident Physician, from time to time, as needed.

The Resident Ph3'sician is also required to submit to the Trustees, at
each monthly meeting, an estimate for the supplies required, as nearly
as can bo ascertained, for the ensuing month, and upon such estimate,
signed by himself and hy the Trustees, the Treasurer of the Asylum ob-
tains the warrants upon which he draws from the State Treasury the
monthl}- appropriations. " All needful expenditures, other than those for
provisions, fuel, and clothing," are made " under the direction of the Resi-
dent Physician, subject to the approval of the Trustees." It will be seen,
therefore, that further than to designate the " quantity, quality, and
character," the Resident Physician ha's no absolute control over any part
of the expenditures for supplies, inasmuch as whatever is purchased
'• under his directions," is " subject to the apjiroval of the Trustees."

The Treasurer's accounts were critically examined in connection with
his original vouchers, and found to be strictly correct. A custom, how-
ever, has obtained with the Trustees and Treasurer, which we think
should be corrected.

The law which requires the Resident Physician to make his estimates
and submit them to the Trustees, also provides for the payment of the
monthly' ai:)propriations, upon their estimates, in advance) evidently in-
tending to secure to the State and the Asylum the advantage of obtain-
ing sujoplies at cash jn-kcs.

Instead of this, it is the practice of the Trustees, at their meetings,
held on the fifth of each month, to audit and order paid, the bills con-
tracted during the previous month, while the money for the payment of
such bills, having been drawn from the State Treasury, on the estimate
of the preceding' month, has been lying idle for a month, in the hands of

the Treasurer of the Asyhim ; hence, one month's appropriation not
being paid out before the estimate upon which the warrant for another
is issued. The Treasurer of the Asylum has always on hand, (when
there is money in the State Treasury to pay the warrants,) the sum of
seven thousand dollars, besides such other amounts as may be saved
from appropriations drawn for previous montlis ; and also such sums as
may have been received from patients.

We are unable to see what advantage can accrue to the Asylum, or to
the State, from an arrangement of this kind, and, without wishing to
impugn the motives of an}^ one concerned in it, would suggest that the
State's funds would be quite as safe in the State's vaults, until required
to be used for the State's purposes, as in the hands of the Treasurer of
the Asylum.

Desiring to ascertain whether the government of the Asylum corres-
ponded with the requirements of the law under which it was established,
your Committee demanded a copy of the by-laws, and were informed
by the President of the Board of Trustees that the Institution has been
governed without by-laws, until in September last, when the Trustees
adopted a series of six, which he read to us from the minutes of the
Board, but which, in the opinion of your Committee, are a mere bur-
lesque on what the organic law evidently contemjjlated in providing
that '■• the Trustees shall have power to make by-laws for the govern-
ment of themselves and the government of the Asj'lum ;" and also in
defining the duties of the Eesident Physician, in which it declares he
" shall cause full and fair accounts and records of all his doings to be
kept regularly, from day to day, in books provided for that purj^ose, in
the manner and to the extent prescribed in the hiy-laws."

Wishing also to learn what checks the Trustees held over the Eesident
Physician's books and accounts, we were again surprised to be informed
by the President that the Trustees considered they had nothing to do
with the Eesident Physician's books, (they look to him alone,) that they
have never made an official examination of the Pli^'sician's and Steward's
accounts, and that in not doing so, they had but followed the example
of their predecessors.

Comment on such method of doing business, involving an expenditure
of seventy-five or eight}" thousand dollars annually, is quite unnecessary.
It is. however, simply just to add, that immediately after assuming the
duties of office, the present Eesident Physician urged the necessity of a
well defined government for the Asylum, and at the request of one of the
Trustees, drew up and submitted to the Board, a code of b3'-laws, (now
in the hands of the Committee.) which, with the '-Eules and Eegulations"
instituted by himself, would, we think, have met all the requirements of
the oi'ganic Act, and placed the Institution on a proper basis. For rea-
sons uiiexplained, the Trustees, by a vote of four to one, rejected them,
and adopted the six before referred to.

Thus left without law as to '• the manner and extent" in which his
accounts and records should be kept, and without precedents to follow,
the books of the preceding administration having been removed, Dr.
Tilden was compelled to adopt whatever system he thought best, and
your Committee do not hesitate to say that if in the management of the
Insane, his professional ability equals his business tact, (and we have no
reason to doubt it,) the State may congratulate itself in having secured
in him a rare combination of talents peculiarly adapted to the position
he holds. By reference to the duties of the Steward and Clerk, as pre-
scribed in the Eules and Eegulations adopted by him, and published in

his Annual Eeport, a better idea may be formed of his system of ac-
counts than from any description we can give. We need only add that
the duties there laid down are carried out in perfect detail, by which
no article, however trivial in value, escapes entry ; each day's accounts
showing everything received, and from whom — how disbursed, and to
what department, division, or ward. A paper of needles and a bale of
blankets, a pound of soap and a barrel of flour, a pair of shoes and a
dozen shirts, all and everything receiving equal attention as to whence
it came, and whither it goes.

Notwithstanding that the Assembly refused to instruct your Commit-
tee to investigate certain charges made by a newspaper in San Fran-
cisco against the present Eesident Physician, in the examination of the
account books, etc., of the Asylum, we were not disposed to shut our
eyes to the revelations thereby afforded in regard to the " Physician's
Mansion Account." As in other departments, this is kept with the
strictest care as to everything furnished at the cost of the State, nothing
being supplied without an appropriate entr}" on the books of the Stew-
ard, from which it is transferred to books in the office, and with other
accounts of expenditures, forms the monthly exhibit required to be laid
before the Trustees at their stated meetings. These exhibits show, not
only the aggregate of the expenditures for the Institution, but also the
exact Aveigiit, measurement, and quantity, of the articles issued for
daily consumption in each de2)artment — the Physician's mansion not ex-
cepted.

If it be remembered tliat the " mansion account," which embraces
" subsistence, lights, fuel, servants, etc., for the support of the Resident
Physician and iamil}^, and the Assistant Physician and family, and the
matron," amounts, (after deducting nearly five hundred dollars for neces-
sary furniture,) to but little over tAventy-two hundred dollars, for seven
months and eleven days, to say nothing of the fact that many conva-
lescent patients have received, for days and weeks in many cases, three
meals per day at the Phj^sician's table, it will be apparent that " rocking
chairs and toy wagons for his babies, with luxuries of various kinds," do
not come within the Eesident Physician's interpretation of the law
which allows him " mansion, subsistence, lights, fuel," etc., as a part of
his compensation. The account shows that but little, if anything else,
has been furnished to the Resident Physician's mansion, but what is in
daih^ use in the Asylum.

Learning that the books of the Asylum, which were removed by Doctor
Aylett at the expiration of his term of office, were in the possession of
the President of the Eoard of Trustees, in whose care they were left as
the " private property of Doctor Aylett," your Committee summoned
him to appear before them with the said books. The summons was
prom])tly obeyed by the President, who testified, under oath, that they
were claimed by Doctor Aylett as duplicates or transcripts ; that they
had been deposited with him as a friend, and not in his official capacity
as a Trustee. The Treasurer of the Asylum was also summoned, and
testified, under oath, that he has held the office of Treasurer since eight-
een hundred and fifty-seven ; that in his official capacity he has often had
occasion to examine the books of the Institution, and that he recognized
the books before the Committee as the original books of Doctor Aylett's
administration. Upon this testimony, and there being no books left at
the Asylum of which those before us were known to be the duplicates or
transcrii^ts, your Committee passed a resolution requesting the Trustees
to take possession of them, and place them in custody of the Resident

Physician. They are so vague and indefinite, however, that no satisfac-
tory information can be obtained, in detail, of the former expenditures
of the Institution.

In view of the crowded condition of the Asyhim, and the ahnost entire
want of proper appliances to cure its unfortunate inmates, your Com-
mittee are unanimous in opinion that something should be done to relieve
the crowded condition of the Asylum, and that a thorough and radical
change in the management of the Institution is imperatively demanded.
1^0 condition to which common humanity is subject appeals more forci-
bly to the purest and best sympathies of our hearts than the pitiable
situation of our fellow creatures suffering from a mind diseased; and
when it is remembered that science and art have demonstrated that a
very large proportion of the cases of insanity are curable, it is an im-
mense responsibility to hold the die when the fate of hundreds of such
unfortunates is to be determined by the manner in which it is cast.
If the startling fact could be brought home to the minds of men that no
one, however towering in intellect, holds his sanity at his option, but is
liable at any moment to suffer the horrors of a mind dethroned, and that
in such dire condition he must take his chances, for weal or woe, in the
Asylum of California, as it is, we think there would be no delay on the
part of Legislators, or on the part of citizen tax-payers, in providing
for the required changes, at whatever cost ; and there is no better way
to determine one's action in a matter of the kind, than to follow the
golden rule, and " do un.o others as we would they should do unto us."

We can perceive no reason, from natural causes, why as large a per
centage of cures should not be effected in the Asylum of California as
in Asylums elsewhere. Certainly it is not in the climate, for no country
under the sun can boast of a more healthful one; nor can it be that the
causes are more likely to produce mental derangement of a deeply rooted
and more permanent character than elsewhere. What, then, is the difii-
culty ? Evidently the want of room for classification and lack of the
necessary remedial agents. That the former is a crying evil, no one can
doubt, who will visit the Institution, and that the latter is a serious
drawback from the success of the object designed in its foundation, will
not be questioned.

The two difficulties, therefore, should be removed ; the removal of
either, without the other, will not satisfy the exigences of the needed
reform — they should both be obviated.

We would therefore recommend an appropriation of twenty-five thou-
sand dollars, (^25,000,) to be expended in erecting additional buildings,
and making other improvements at the present Institution, as suggested
by the Eesident Physician in his Annual Eeport.

T. M. AMES,

Chairman of Committee.
C. MACLAY,
SAMUEL MEYEES.

REPORT OF THE COMMITTEE

ON THE

€\\li\m anb Infroknteiit aii\t §a^t-Wmt

APRIL 9, 1863

BENJ. P. AVERY STATE PRINTER.

REPORT.

Mr. Speaker : — Your Committee on the Culture and Improvement of
tlie Crape-Vine liave devoted as mucli time to the examination of the
subject during the session of the Legislature as their other duties
would permit, and have to i-eport that the evidences in favor of the
adaptability of the climate and soil of this State to the culture of the
vine are so conclusive, that the matter can no longer be considered
problematical. The truth that wine of a superior quality can be man-
ufactured in California has already been demonstrated by experience,
and your Committee believe that the wine business will soon become
pre-eminent among the industrial pursuits of the people of this State.
Furnishing, as it will, profitable employment to an almost unlimited
number, it will be the means of bringing enlightened and industrious im-
migrants to our favored State from all parts of our own country as well as
from the countries of Europe. By this influx of population, so much
land now lying idle will be brought under cultivation, that a few years
hence must witness many of our now unproductive chaparrals and stony
hills transmuted into remunerative gardens and vineyaixls. The valua-
tion of taxable property wnll, by tliis branch of industry, be rapidly
increased; commerce will receive a new impulse ; trade will revive, and
the State will enter upon that career of prosperity so clearly indicated
by this new avenue of industry and her other unequalled resources.

In the Patent Office Report for eighteen hundred and sixty, (Agricul-
tural branch,) page three hundred and sixty, we find some pertinent
observations on grape culture by Daniel R. Goodloe. He says :

•' It is difficult to overrate the importance of this subject, with refer-
ence to the industi-ial, the social, and the moral interests of society. The
introduction of a new branch of agriculture, which within a dozen or
twenty years may rival the most important of those now existing, is of
itself a consideration which must arrest the attention of the statesman,
the political economist and the philanthropist. Every new agricultural
pursuit tends directly to withdraw surplus and underpaid labor from its
present occupations, and to engage it in a more profitable way. To
diversify labor is to increase its resources and to raise wages. Two rail-
lions of the people of France are engaged in the culture of the grape and
the manufacture of wine. There is ample room in the United States for
an equal employment of labor in the same pursuit. The home market

alone would be sufficient to justify wine making on the extensive scale
here suggested — a fact which must be apparent if we consider that of
the eight or nine hundred million of gallons of wine made in France
annually, only from thirty to fifty million gallons are exported. France,
as has been stated, is the great consumer of her own wines, at the rate
of from twenty to twent^^-five gallons per head for every man, woman
and child in the empire.

" The celebrated English agriculturist, Arthur Young, who travelled in
France toward the latter part of the last century, states in his valuable
work, that the cultivation of the vine requires a smaller outlay of capital
than any other branch of agriculture ; the nature of the culture depend-
ing almost entirely on manual labor, and demanding no other capital
than the possession of the land and a pair of arms; no ploughs, no cattle,
necessaril}^ leads the poor people to this species of property.

"If we have reference to the health, the comfort, and the sobriety of
the people, the importance of grape and wine production becomes still
more striking. Adam Smith (Wealth of Nations, B. lY, Chap. Ill,) says :
' The cheapness of wine seems to be a great cause, not of drunkenness, but
of sobriety. The inhabitants of the wine countries are, in general, the
soberest people in Europe. Witness the Spaniards, the Italians, and the
inhabitants of the Southern Provinces of France.' "

According to the State Register of eighteen hundred and fifty-nine,
the number of grape-vines in the respective counties were as follows :

County.

1856.

1857.

1858.

County.

1856.

1857.

1858.

Alameda

Amador

Butte

Calaveras

Colusa

Contra Costa

Del Norte

El Dorado

Fresno

Humboldt

Klamath

Los Angeles

Marin

Mariposa

Merced

Monterey

Napa

Nevada

Placer

Plumas

Sacramento

San Bernardino.
San Diego

48,000

9,800

15,000

10,000
75,000

6,390

2,000

800

726,000

1,000
10,000
10,000
22,700

2,700

52,200

80,000

4,000

125,000
8,000

45,773
6,465
3,120

34,468

26,400

1,000

500

1,000

600,000

500

15,227

16,000

11,650

55,000

6,000

5,742

800

119,500

38,000

4,000

175,000

20,000

80,707

24,187

4,285

42,640

1,050

77,472

3,000

915

2,000

,650,000

600

15,000

50,000

90,000

8,000

5,000

400

327,900

75,000

50,000

San Francisco

San Luis Obispo...

San Mateo

Santa Barbara

Santa Clara

Santa Cruz

Shasta

Sierra

Siskiyou

Solano

Sonoma and Men-
docino

Stanislaus

Sutter

Tehama

Trinity

Tulare

Tuolumne

Yolo

Yuba

San Joaquin

1,500
5,000
15,000
150,000
5,000
5,348

Grand total.

1,000
56,178

61,590

4,426

45,123

150

9,858
26,902
28,000
13,467

1,540,134

1,200

2,000

40,000

70,000

500,000

6,179

6,100

1,900

1,000

50,000

170,508

3,020

135,369

2,000

1,717

400

29,981

61,903

30,000

28,640

1,000

10,000

40,000

90,000

513,000

20,000

25,000

3,500

2,000

62,869

®287,621

1,800

50,000

5,500

1,151

30,000

57,526

155,425

50,000

40,000

2,265,062 4,054,648

* Remark. — Sonoma and Mendocino had not one hundred and eighty-
seven thousand six hundred and twenty-one in eighteen hundred and
fifty-eight, but two hundred and eighty-seven thousand six hundred and
twenty-one, which brings the total, instead of three million nine hun-
dred and fifty-four thousand five hundred and forty-eight, to four million
and fifty-four thousand five hundred and forty-eight.

The number of vines in cultivation in this State was, in eighteen
hundred and fifty-six, one million five hundred and forty thousand one

hundred and thirty-four ; in eighteen hundred and fifty-seven, two mil-
lion two hundred and sixtj^-five thousand and sixty-two ; and in eigh-
teen hundred and fifty-eight, four million and fiftj'-four thousand five
hundred and forty-eight. Of the last year's number, one million six hun-
dred and fifty thousand are in the County of Los Angeles. The in-
crease from eighteen hundred and fifty-six to eighteen hundred and fifty-
seven was nearly fift}' per cent. ; from eighteen hundred and fifty-seven
to eighteen hundred and fifty-eight, (not seventy-four per cent., as stated
in the State Eegister,) but seventj'-nine and eight tenths per cent.; and
from eighteen hundred and fifty-six, during only two years, to eighteen
hundred and fifty-eight, a little over one hundred and sixty-three and a
quarter per cent, (not as erroneously stated in the Eegister, one hundred
and fifty per cent.)

" The arrangements already made for the season of eighteen hundred
and fifty-nine indicate a large increase, probably fifty per cent., to the
present stock of vines. The vintage of eighteen hundred and fifty-seven
amounted to nearly four hundred thousand gallons, viz : three hundred
and eighty-five thousand gallons of wine, and ten thousand gallons of
brandy ; of this amount, Los Angeles County alone produced over three
hundred and fifty thousand gallons — the remainder was manufactured in
the Counties of Santa Clara, Sonoma, Napa, Santa Barbara, San Luis
Obispo, Butte, Sutter, and El Dorado. The average yield of each vine
is about fourteen pounds (instances are frequent of twenty-five and
thirty pounds,) of grapes — the amount necessary to procure a gallon of
wine. Estimating the yield of the present stock of vines at this rate,
there will be an annual product therefrom, when fully matured, of nearly
eight millions of dollars." (State Register, page 243.)

At the rate of the above increase, from year to year, the State must
now have at least twenty millions of vines planted. These, when in full
bearing, will produce twelve million gallons of first quality Avine, and
eight million gallons second quality ; five hundred thousand gallons pure
brandy, and three hundred thousand gallons of good wine vinegar.

It will be seen from the Agricultural Reports of Visiting Committees,
how much the vineyards have yielded in this State. Colonel Harasz-
thy's vinej^ard, in Sonoma, averaged, in eighteen hundred and fifty-seven,
thirteen hundred gallons per acre. Sainsevaine & Brothers had from
forty-one acres, sixty thousand gallons — equal to one thousand four hun-
dred and sixty-three and one third gallons per acre. Twenty acres of
Frohling & Kohler gave thirty thousand gallons, or fifteen hundred gal-
lons per acre.

From various data bj- which we are guided, we can safely put down
six hundred gallons per acre as an average throughout the State, while
Italy, the most clime-favored country in Europe, lias only four hundred
and fort3^-one and a half gallons. The salubrious climate and mild tem-
perature of California, no less than the richness of her mines, are justly
considered as great inducements to attract immigration to our shores ;
but your Committee are of opinion that, while in these respects she has
scarcely a rival, she is, as a wine-producing country, superior in capacity
and natural fitness to any of the countries of Europe. In proof of this,
we submit some statistics concerning the area of the various vine-grow-
ing countries of the world, the yiektand failure of crops, and the aver-
age profit per acre, as compared with similar statistics in our own State.

The State of California nearly equals in size the whole of Spain, while
Austria, Turkey, and Prance, have each but about one fourth larger
area than California. England, Ireland, and Scotland, united, have a

less number of square miles than California ; Prussia is also inferior iu
eize, and some of the smaller European States do not equal, in area, a
single county in California.

As to climate and adaptability of soil to the culture of the vine, let
the results of the grape culture in Europe testify. From the records of
the Wurtemburg Agricultural Society, we find that during the last four
hundred and thirty-two years, only eleven years were eminently distin-
tinguished for a superior quality of wine; in twenty-eight of the years,
the wine was very good ; in one hundred and eighteen years, good ; sev-
enty-six years, middling; and one hundred and ninety-nine years, of in-
ferior quality. As to the productiveness of the vine during this time,
one hundred and fourteen years are reported as giving a good yield ;
eighteen j'ears, middling; ninety-nine years, poor; and two hundred and
one years, total failure, or nearly so. Notwithstanding the great pro-
portion of failures shown by this record, the people of that country'
have found the manufacture of wine sufficiently profitable to induce them
to continue in the business. Now, if in such a countrj^ as Wurtemburg,
men still find it their interest to cultivate the vine, what ma}^ not Cali-
fornians expect from a soil which never fails to return to the vine grower
an ample harvest ? The history of this State shows that the grape crop
never fails, and we have every reason to believe that, from the time of
its settlement by the Sj^aniards, it would have yielded wine of a superior
quality, if the proper varieties of grapes had been cultivated, and the
natives of the country had had the necessary skill and experience. The
success that has attended the manufacture of wine in this State during
the past ten years, is unprecedented in the history of the vine culture of
the world. That which has been accomplished by American industry in
this State during a single decade, your Committee are of opinion may be
justl}^ considered as a fair criterion by which to judge of the future.
With proper encouragement, this branch of industry will, before the
close of another decade, yield a princel}^ revenue to the people. Califor-
nia has a mild climate, and in most parts a dry atmosphere, and as a
proof of the superiority of such a climate over that of colder States, we
here present a table, showing the comparative yield and value of the
wine in the northern and southern sections of Europe. The German
States, being the more northerly of the wine-producing countries, we
place together as follows :

COtlNTRIES CULTIVATING GRAPE-
VINES.

Saxony

Prussia

Bavaria

Wurtemburg

Baden

Hesse

ITassaa

Total..

5,945
5.3,719
125,-344
65,656
65,656
2.3,875
10,143

350,338

2 U'

340,000
7.225,000
20,400,000
10,200,000
7,140,000
4,250,000
2,550,000

52,105,000

57 1-6
134 1-2
162 3-4
155 1-3
108 3-4
178
237 1-3

148 72-100

$85,000
1,806,250
5.100,000
2,550,000
1,785,000
1,062.500

637.500

$13,026,250

$37 18

Similar statistics in the southern portions of Europe, are

.'OUKTRIES CULTIVATING GRAPE-
VINES.

Austrian Provinces

Greece

Ionian Islands

Italy

Switzerland and Belgium

France

Spain

Portugal

Total

trerman States, as given in the pre
ceding table

Grand total

2,685,950

41,781

35,S12

2.887,070

76,400

5,013,774

955,004

2:^8,751

11,935,442
350,.338

12,285,780

714,000,000

8,160.000

1,224,000

1,275,000,000

255,1100

884,000,000

144,500.000

25,500,000

3,054,943,000
52,105,000

265 5-6
195 3-10

34 1-6
441 1-2

33 3-8
17G 2-7
151 7-10
106 8-10

235 95-100

3,107,039,000 252 8-100

Hi a-

o o

$178,500,000

2,040,000

306,000

318,750,000

6;;7,500

221,000,000

36.125,000

6,375,000

.$763,733,500
13,026,250

$66 46

48 82

8 54

110 37

8 34

44 07

37 92

26 70

$776,759,750

22}

These statistics clearly show that the fruitfulness of the vine in a mild
climate greatly exceeds that of cold countries. Austria, for instance,
compared Avith Saxony, produces a wine crop of nearly five to one, which
disproportion will appear larger still if we exclude the northern provinces
of Austria from the aggregate. The product of Italy exceeds that of
Saxony eight to one ; and it is admitted that the cloudless summers of
California give us a great advantage over this Eui-opean Eden, (so called)
where the quality and quantity of the wine is more or less impaired by
the summer showers, especially during the time of flowering. The
average yield in Italy is four hundred and forty-one and one half gallons
per acre. In consideration of the great superiority of the climate of Cal-
ifornia over that of Italy, and the more certain crops, we may safely put
down the averaire quantity of wine produceable in California at six hun-

dred

gallons

per acre. The nine hundred and ninety-seven thousand
seven hundred and sixty acres in California peculiarly adapted to the
culture of the grape, would yield a yearly average of five hundred and
ninety-eight million six hundred and fifty-six thousand gallons, which, at
twenty-five cents per gallon, would amount to one hundred and forty-nine
million six hundred and sixty-four thousand dollars, or more than the
value of the entire cotton crop of the South. Although this result might
be attained by the dedication of only one acre in each hundred to the
cultivation of the vine, yet your Committee do not assert that such a pro-
duction will be reached in this State during the present generation, nor
even that it would be desirable to so foster any one branch of industry to
the neglect of others ; we make this statement merely to exemplify the
capacity of California as a wine-producing country ; and in this connec-
tion we may be allowed still further to state that the number of persons
who, as owners, laborers, or members of the families of laborers, may
derive support from the grape culture mu|t, at a low estimate, be
sufficient to average three individuals per acre, giving a total of nearly

three millons who might easily find sustenance hy this one branch of
industry in California, while the number of persons partially sustained
and indirectl}" benefited by such an extensive culture of the vine would
amount to three times this number. In some of the mountain districts
of Europe, where no other occupation of comparative importance is
pursued, a numerous population, not directly engaged in wine culture,
derive their support from this source. The small rocky island of Malta
contains proportionally the greatest number of inhabitants in the civil-
ized world — one thousand four hundred to a square mile — yet this dense
population, with no other important resource, earns a livelihood mainly
from the products of the vine, although the cultivators are obliged to
cover every bare rock with soil, which they carry on their backs to places
inaccessible to vehicles, in order that no spot on which a vine can grow
may be alloAved to lie in waste. Many thousands of the teeming popu-
lation of this and other countries of Europe might, with benefit to them-
selves and to us, be attracted to our favored land, Avhere, instead of being
an incumbrance, they would greatly add to the wealth of the State by
assisting in the development of her unparalleled resources. Let us, by
encouraging the cultivation of the vine, aid in bringing about a result so
desirable.

The Legislature are called upon at this session to appropriate ten
thousand dollars to found a " Home for the Inebriate." This amount of
money is to be paid for the reformation of men brought to the verge of
ruin by the improper use of spiritous liquors. It is a truth that wine
drinkers do not become inebriates, and that in wine-producing countries
comparatively few cases of crime, insanity, and suicide occur. Pure wine
is exhilarating and conducive to health, while ardent spirits are delete-
rious and maddening. If it is jjraisworthy to assist in reclaiming fallen
humanity, it surely is no less so to aid in destroying the cause of human
degradation. The use of ardent spirits as a beverage may be almost
wholly prevented by encouraging the manufacture of a good, cheaj), and
healthful substitute. For the production of this substitute, we in Cali-
fornia have every required facility, being more highly favored by Nature
as a wine-producing country than any other part of the world. We there-
fore respectful!}* recommend that while large aj)propriation8 are freely
made for the cure of a great evil, some little regard may be paid to the
most practicable mode of prevention.

AVe have been informed by Commissioner Colonel Haraszthy, that he
visited the cellars of Messrs. Frohling, Kohler & Co., in New York, who
deal exclusively in California wines, and found that their wines withstood
the sea voj^age so well that they gained rather than lost in quality, and
were in great demand in the market. The United States Grovernment
has contracted with Messrs. Frohling, Kohler & Co., for California wines,
to be used in the hospitals of the army and navy. This is suflicient
evidence that the still infant wines of California not only bear a sea
voyage well, but that they are preferred for medical jiurposes, where it]
is especially desirable to have an article that is perfectly pure and un-
adulterated. We are further informed that the fruit from which this!
8uj)erior wine is manufactured, is that of choice European varieties, and!
that it is essential to have proper varieties in order to produce a good]
quality of wine. The eminent qualities of the most celebrated foreign]
wines are attributable mainly to the judicious selection of the difierentl
varieties of grapes, made b}' the planters of the vineyards in accordance
with tie peculiarities of soil, location, etc.

The same varieties of gfapes produce diff'erent qualities of wine, ac-

cording to the soil upon ^vhieh they are grown; being much better upon
the side hills and uplands than upon the moist, low land.

Your Committee believe that a great benefit would be conferred upon
the people of California by a judicious distribution of the choice foreign
varieties purchased by C'ommissioner Ilaraszthy, and recommend that
such measures be taken as will secure a thorough trial of each variety
on the dift'erent localities and soils of this State. By thus encouraging
the propagation and imi)rovement of the vine in California, results would
undoubtedly be ])r(>duced highly conducive to the progress of the State
and general Avelfare of the people. The wines pi-oduced here would, by
such means, in a short time equal the celebrated brands of the most
jU'ominent European manufacturers, a result which must be attained
before we can hope to exclude the importation of foreign wines, or expect
to create a demand for our wines and brandies either here or elsewhere.
Concerning the recommendation made by Colonel Haraszthy in favor
of the purchase of a piece of ground for the propagation of grape-vines,
wc have to state, that while we believe such a ])roject miglit result in
good, yet, in consideration of the present exhausted condition of our
State finances, the subject ma}^ with propriety be left for the determina-
tion of a future Legislature.

Your (^ommittee earnestly recommend the passage of a law ci'eating
a (ieneral Agent for the State, and defining his duties, as suggested by
Colonel Ilaraszthy in his Report, pages nine and ten ; and, in this con-
nection, we would respectfully c:ill attention to the liberal offer of Colonel
Ilara.szthy, to teach, without compensation, the several branches of grape
culture and the manufacture of wine to delegations from the various
counties of the State, llecognizing in his efforts for the promotion of
this gi'eat interest a sincere desire to benefit his fellow citizens, we recom-
mend the ITouse to adoi)t the resolution of thanks accompanying this
re])ort.

J. E. BROWN,

Chairman,
E. TEECIARDEN,
JAMES B LANE,
EDWARD EVEY,
J. CI. DOW,
J. A. WATSON,
THOMPSON.

RESOLUTION.

Kcsolvcd, That the thanks of this Assembly be tendered to Colonel A.
Saraszthy, for the able and eflScient manner in which he has performed
lis duties as Commissioner on the Growth, Culture, and Improvement of
;he Grape-Vine in California.

In Assembly, April ninth, eighteen hundred and sixty-two, unani-

nously adopted.
r ^ ^ W. N. SLOCUM,

Assistant Clerk.

»J.«IJUIIM«U» Illllll ■ IIIIIIIIMIIIIIIII»H I

REPORT OF TRUSTEES

OF THE

INSTITUTION FOR THE EDUCATION AND CARE OE THE

in%nt Beat Inmb, aitb WmX

OF CALIFORNIA.

BEN.T. p. AVERY STATE PRINTh.R.

A.NNU^L REPORT

San Francisco, December 8l8t, 1861.
To His Excellency.

John G. Downey,

Governor of the State of California :

In submitting to your Excellency and to the Legislature of the State
of California the Eeport of the Trustees of the California Institution
for the Education and Care of the Indigent Deaf and Dumb, and the
Blind, for the year eighteen hundred and sixty-one, we have to acknow-
ledge the gratification of seeing the Institution steadily and surely
effecting the ends for which it was intended.

Kespectfully,

B. H. EANDOLPH, )

P. B. CLAEK, I Trustees.

HOEACE P. JANES,)

REPORT.

The increase in the number of pupils for the past year has been
eleven, and the whole number now under instruction is thirty-three.
The health of all has been good, and their behavior and progi-ess grati-

The number of indigent pupils already being more than provided for
by the State, and othei-s expected soon on applications already made, it is
to be hoped the coming Legislature will make provision for an increased
number.

The most important event, however, coming within our official duties
during the year, has been the erection of a new wing, in accordance
with an Act of the Legislature, approved March twenty-ninth, eighteen
hundred and sixty-one. After receiving due notice of the appro^^riation
of ten thousand dollars for that purj)ose, the Board made application to
Mr. n. W. Cleaveland, architect, for plans of the new wing, and also
tor the contemplated main building ; it being considered necessary to
procure plans for the entire structure, not only for the purpose of estab-
lishing the exact position of the wing, but also to secure architectural
symmetry as much as possible throughout. After several changes and
alterations, under the supervision of the Trustees, the plans under which
we have acted were finally adopted.

Early thereafter, the Board advertised in two of the city newspapers,
as dire*cted by law, for proposals for the work of constructing said wing,
and the contract was awarded to Mr. G. Welton, of this city, at the sum
of nine thousand three hundred and seventj'-four dollars. This left a
balance of the appropriation, amounting to six hundred and twenty-six
dollars, unexpended, which, however, has been exhausted, with twenty-
five dollars and thirty-eight cents in addition, in extra work, and other
expenses necessarily attending the building, as appears by the verified
account herewith presented, and vouchers in the hands of the President
of the Board.

The contractor having faithfully fulfilled his contract, the building
was received by the Board, and it is now furnished and occupied. It is
thii'ty-two by sixtj^-two feet, substantially built of the best material,
but necessarily plain, to conform to the other wing, and keep Avithin the
apj)ropriation. The plans for the main building are much more elabo-
rate.

The work was comnienced on the twentieth day of July last, and pro-
gressed rapidlj^ until the walls were nearly up. Upon application to
the Treasurer of the State, for funds, under the appropriation, to pay
upon the contract, we were advised that no money could be had for an
indefinite time, owing to the depleted state of the Treasury. To stop
the work, in its then advanced stej), would have exposed the building to
serious injury, caused the contractor to suffer considerable loss, and left
the State liable for damages. To avoid such results, arrangements were
made to have the requh-ed funds advanced on the Contractor's accounts
at a low rate of interest, and the work went on to completion. It is
only upon the eve of making this report that a portion of such funds
have been realized from the State.

The Board have to acknowledge the receipt of seven thousand dollars,
appropriated by the City of San Francisco, for the purchase and
improvement of groimds on which the Institution is located. This sum
has been fully expended upon the purchase and improvement of such
grounds, with nine dollars and thirteen cents in addition, as appears
from the verified statement liereAvith presented, and vouchers in the
possession of the President of the Board.

The total appropriations b}' the State, thus ft\r, towards the building
of the Institution, amount to twenty thousand dollars. The appropria-
tion by the City of San Francisco, towards the purchase and improve-
ment of the lots upon which the buildings are erected, amounts to seven
thousand dollars. About two thousand dollars, derived from private
charity, has been expended upon furniture and necessary fixtures.

In the opinion of the Trustees, the buildings are fully worth
their cost, or the sum of.

The lands purchased, consisting of nearly four fifty-vara lots,
have risen in value, and are worth, in the opinion of the
Trustees, at the rate of 85,000 for each fifty-vara lot, the
sum of.

The furniture and fixtures, as above estimated at cost, say...

$20,000

20,000
2,000

Making the present total value | §42,000

The Trustees are of the opinion that the presejit buildings will be
sufficient for the accommodation of such pupils as may aj^pl}" during the
coming year, and that no appropriation towards the construction of the
main edifice will be required at present. The}' would, however, request
that the appropriation towards the support of indigent pupils be
extended for the coming 3'ear, to meet the wants of at least ten in
addition to those provided for by the appropriation of eighteen hundred
and sixty-one ; and that a sufficient sum be appropriated for the require-
ments of at least forty in all.

All of which is respectfully submitted.

B. H. EANDOLPH. )

P. B. CLAEK. .^Trustees.

HORACE P. JANES, j

The Trustees of the California Institution for the Education and Care of the
Indigent Deaf and Dumb, and Blind, in account uiith the State of California.

Dr.

To amount appropriated by Act of the Legislature
of the State of California, approved March 29th,
1801 ,

Cr.

Bv amount paid G. Welton, contract price for ma-

'terial and work of New Wing ^9,374 00

By amount paid H. W. Cleavoland, Architect 400 00

B}- amount paid C. Geddes, superintending 100 00

By amount paid advertising proposals 12 00

By amount paid Dennis Jordan, extra work 50 00

By amount paid G. k W. Snook, plumbing 89 38

$10,000 00

$10,025 38

Showing an expenditure by the Trustees of twenty-five dollars and
thirty-eight cents in excess of the appropriation.

San Francisco, January 1, 1862.

State of CALiroRNiA,

City and County of San Francisco

B. H. Eandolph, of said city and county, being duly sworn, deposes
and says : That he is the President of the Board of Trustees of the Cal-
ifornia Institution for the Education and Care of the Indigent Deaf,
Dumb, and Blind, and that the within is a true and correct account of
the receipts and disbursements of moneys for account of said Institution.

B. H. RANDOLPH.

Subscribed and sworn to before me, this seventh day of January, A. D.
eighteen hundred and sixty-two.
^ F. J. THIBAULT,

Notary Public

The Trustees of the California Institution for the Education and Care of the
Indigent Deaf and Dumb, and Blind, in account with the City and County of
San Francisco.

Dr.

To Cash received from the Treasurer of the City

and County of San Francisco 87,000 00

To Cash received of Mr. A. C. Xichols, for one

half cost of division fence 67 37

Cr.

By Cash paid Managers of the Institution, refund-
ing advahee for tirst payment on grounds pur-
chased 81,666 67

By Cash paid John Center, balance due on grounds

purchased 4,333 33

By Cash paid E. D. Shea, fence 956 50

By Cash paid King for painting fence 120 00

87,067 37

87,076 50

Showing an excess of expenditures over receipts, of nine dollars and
thirteen cents.

San Francisco, January 1, 1862.

State of California.

City and County of San Francisco,

ss.

B. H. Eandolph, of said city and county, being duly sworn, deposes
and saj'S : That he is the President of the Board of Trustees of the
Institution for the Education and Care of the Indigent Deaf, Dumb, and
Blind, and that the within is a true and correct account of the receipts
and disbursements of moneys for account of said Institution.

B. H. EAi^DOLPH,

Subscribed and sworn to before me, this seventh day of January, A. D.
eighteen hundred and sixty-two.

F. J. THIBAliLT,

Notary Public.

LETTER

THE STATE GEOLOGIST

RELATIVE TO

PROGRESS OF THE STATE GEOLOGICAL SURVEY.

BENJ. P. AVERY STATE PRINTER.

LETTER.

San Francisco, December 6, 1861.
To His Excellency,

John G. Downey,

Governor of the State of California :

Sir : — In order that you may be informed of the progress of the Geo-
logical Survey, prior to the communication of your Message to the
Legislature, I beg leave to set forth, in as brief a manner as possible, the
system of our operations up to the present time.

You will recollect that the work of the Geological Survey of California
was commenced a little more than a year ago, our party having landed
at San Francisco November fourteenth, eighteen hundred and sixty. In
order that the field work might be carried on during the winter, we re-
paired as soon as possible to the southern part of the State, and, our
outfit having been completed, took the field on the twelfth of December.
The part}" then consisted of Professor Brewer, Mr. Ashburner, Mr. Averill,
Clerk, Commissary and Barometrical Observer, Seiior Guirado, and a
cook, and mule driver. I remained with the party uninterruptedly until
the seventh of February. During that time, (from December twelfth to
February seventh,) we made a reconnaissance of a portion of Los An-
geles and San Bernardino Counties, as stated in my brief report to the
Legislature last Spring.

The main ])arty was placed under Professor Brewer's charge from Feb-
ruary seventh, and remained in the field up to November fifteenth. I
joined them, however, occasionally, for the purpose of keeping the gen-
eral run of the work, and aiding in the examination of points of especial
'importance. Thus I was with the party from March eighteenth to
the twenty-fourth, in the vicinity of Santa Barbara ; from July eighth
to the twenty-eighth, in the Monte Diablo Eange, south of San Juan ;
from August "fiftli^to the twelfth, at ISTew Almaden ; September twelfth to
the twenty-third, in Contra Costa and Alameda Counties; October fourth
to the ninth, at Monte Diablo ; and November fifth to the fourteenth, in
Napa and Sonoma Counties.

Mr. Ashburner was detached fi'om the party, February twenty-first.

and was engaged from that time up to November twentieth in an exami-
nation of the quartz mines of the Sierra Nevada, from Mariposa to
Plumas Counties.

While absent from the main party, I spent a portion of the time in
attending to the general business of the Survey, a jDortion with Mr. Ash-
burner, and the remainder in examining, by myself, certain districts ;
my object being, during the first j'ear, to initiate my assistants into their
work, and to obtain a general idea of the geological structure of the State
over as large an extent of surface as possible, in order to lay my plans
for the future conduct of the Survey with a better understanding of
what there was to be done, and how it could best be done.

Thus, in jSTovember, eighteen hundred and sixty, before joining the
party at Los Angeles, I spent a week at Mariposa. In Februarj' I made
a hasty examination of the Monte Diablo Coal region. In April and
May I visited Placer County, and made an examination of many of the
most important hydraulic claims of that district. I also joined Mr. Ash-
burner, and with him visited some of the most interesting points in the
vicinity of Sonora. We also crossed the Sierra Nevada together in Au-
gust, and spent ten days at and near Virginia City, in examining the
important Silver mines of the so-called -'Washoe Eegion."

Professor Brewer and party in the meantime continued their work
along the Coast Eanges. from Los Angeles to Santa Barbara, thence to
San Luis Obispo, thence down the Salinas Yalley, thence to San Juan,
thence down the Monte Diablo Eange to New Idria, thence back to San
Juan, and up through Alameda and Contra Costa Counties to Monte
Diablo, thence across the Straits of Carquinez and up Napa Yalley,
and so far as the Geysers, which point was reached just at the setting in
of the rainy season, and from which we returned to winter quarters
November fifteenth to the eighteenth, having been in the field just one
year. During that time, it ai:)pears from Professor Brewer's notes, that
he travelled two thousand six hundred and fifty miles on mule-back, one
thousand and twenty-seven miles on foot, and one thousand one hundred
and fiftj'-three miles by other means — making in all, four thousand eight
hundred and thirty miles of explorations.

On the twenty-sixth of March, Mr. C. F. Hoffmann joined the corps as
Topographer, and has rendered efiicient service in the field and office
work.

Of the depai'tment of Zoology, Dr. J. G. Cooper was placed in charge
on the first daj^ of July; and in that of Palseontology. the services of
Mr. W. M. Gabb have been secured, as will be noticed further on. Some
idea of the amount of work which has been accomplished by the Survey
during the first year of its prosecution will be added, under the various
appropriate heads.

TOPOGRAPHY.

A series of maps has been commenced on a scale of half an inch to a
mile, extending over the region visited by us up to this time. These
maps are now thirty-two in number. On them we have in the first place
collected all the information obtained at the Surveyor-General's office,
the archives of which have been liberally placed at our disposal for this
purpose by Mr. Mandeville, the former, and Lieutenant Beale. the present
Surveyor-Geueral. I desire also especially to mention the kindness of
Mr. Bielawski, the chief Draughtsman of that office, in aiding our Avork;
with this basis Mr. Hoiimann has tilled in the Topography over a consid-

erable area, by triangulating. Compass bearings have been taken from
all elevated points ascended by any of the party. Observations for lati-
tude and longitude have also been made at numerous points. The vast
importance of the Geographical portion of our work has been every day
becoming more evident to us. A large part of the State can only be
represented, at present, on the map, in the crudest and most imperfect
manner, and it will be absolutely necessary for us to devote a consid-
erable portion of our time and money to the Topographical work, in
order to be able to furnish a map on which the Geology of the State can
be laid down, even approximately.

PHYSICAL GEOGRAPHY.

Barometrical observations have been constantly kept up during the
progress of the field work, and the data obtained for the determination
of the elevation of about one hundred and fifty important points. All
facts which have come under our notice bearing on the Climatology of the
Pacific coast, have been noted. The subject of the Topographical and
Geographical work of the Suiwc}' will form a separate paper, which will
be submitted to the Executive, to be laid before the Legislature, as soon
as it can be prepared. In that pajier it will be my aim to show what
the State absolutely requires in this department; what may be accom-
plished in it by the Geological Survey, and what amount of money will
be required for this jjurpose.

GENERAL GEOLOGY AND PALAEONTOLOGY.

The main business of the Survey has been, of course, the development
of the Geological structure of the State. The rocks have been carefully
examined, their lithological character studied, fossils collected, and all
indications of useful ores and minerals which they have been found to
contain carefully noted. The area over which our observations have
been extended, in the Coast Eanges, is about four hundred and eighty
miles long, by fifty broad, or twenty-four thousand square miles, a terri-
tory about one half the size of the State of New York. Of course it is
not claimed that anything more than a general reconnaissance of so ex-
tensive a region could have been made in so short a time by one party;
but, as far as possible, important points have been carefully examined,
and especially those where valuable deposits of mineral substances were
reported to exist.

In the department of Palffiontolog}', after careful inquiry. Mr. W. M.
Gabb. of Philadelphia. Avas selected'as assistant. This gentleman was
highly recommended by the ablest Palaeontologists at the East, as pecu-
liarly fitted for this place, having given much attention to the fossils of
the formations occurring most extensivel}- in California. Mr. Gabb may
be expected to arrive here during the present month, as he was to sail
from New York on the first of December. A small box of important
fossils was sent him by Express a couple of months ago, in regard to
which he will bring information when he comes.

ECONOMICAL GEOLOGY.

The region examined b}' us during the present year, in the Coast
Ranges, is not by any means as rich in metalliferous ores as some portions
of the Sierra Nevada. The deposits of mercurial ores, however, are nu-

merous aud important, and some of them are extensively worked, and
supply a large portion of the world with this metal. There are also very
heavy beds of chromic iron in this geological position, which will eventu-
ally be of considerable value. Coal is another important product of the
Coast Eanges. from which the wants of the State in this indispensable
material will be ere long supplied to a considerable extent. Limestone
is abundant, both in the metamorphic and the unaltered strata, and some
beds of hydraulic limestone have also been discovered. Most of the im-
portant quartz gold mines of the State have been visited by Mr. Ash-
burner, and a large amount of information collected by him, preparatory
to an elaborate investigation of this impoi'tant branch of the industry of
California. Sufficient time was spent at Washoe, by Mr. Ashburner and
myself, to gain a general idea of the character and value of this impor-
tant and intei-esting mining district, in which this State is so largely in-
terested.

BOTANY AND AC5RICULTURAL GEOLOGY.

The Botanical collections made by Professor Brewer, are already quite
extensive, comprising nearly one thousand species of plants, of each of
which n^iraerous duplicates were preserved. A beginning has been made
in the Agricultural department, to which, during the coming year, a
larger part of the time and attention of the Survey will be given, provi-
ded the means are furnished by the State.

ZOOLOGY.

During the winter and spring of eighteen hundred and sixty, sixty-
one. Dr. J. G. Cooper. Surgeon United States Army, who was stationed
at Fort Mohave, made collections in all departments of Zoology for the
Survey. In July last, at the earnest recommendation of the Smith-
sonian Institute, this gentleman, who had been previously attached to
one of the Pacific Eailroad expeditions as Xaturalist, and who is one of
the authors of an elaborate work on the Xatural History of Washington
Territory, was jilaced in charge of the Zoological department of the
Survey. He has since that time been engaged at various points on the
coast, between San Francisco and San Diego, in collecting marine and
land animals, and has made interesting discoveries touching the distri-
bution of animal life on our coast. He will remain at San Diego during
the winter, for the prosecution of these investigations.

COLLECTIONS AND STATE MUSEUM.

The collections made by the Survey up to this time occuj^y about one
hundred and twenty boxes, comprising zoological and botanical specimens^
rocks, fossils, minerals, ores, and metals, all of which are of interest ae
illustrating the natural history, the geological structure, and the mineral
resources of the State. The boxes will be unpacked during the winterjj
and more or less completely examined and arranged. My ideas anc
plans, in regard to the establishment of a State Museum, have beei
already laid before 3'ou. They have also been submitted to several dis^
tinguished scientific men in this and the Eastern States, and have met
with general approval. If the necessarj^ amount of money can be raisec
to carrj' out these plans. California will, in a few years, be possessed of 1
State Museum which will be of the highest value as a means of educf
tion, and which will be the depository ^f specimens of all that is scien'^

tifically interesting or economically valuable on the Pacific coast. Ow-
ing to the peculiar condition of the country at in^esent, I am not disposed
to press this matter ; but the importance of securing our valuable collec-
tions from loss by fire, and of placing them where they will be available,
will make it necessary that the consideration of this subject should not
be deferred more than a year or two at the outside.

LABORATORY AXD CHEMICAL WORK.

Owing to the press of other work, and the expense necessary to be
incurred, no full}'- equipped laboratory has been prepared, and no assist-
ant, exclusively devoted to this branch, engaged. Numerous qualitative
examinations have, however, been made, as well as a few quantitative
ones, while a large number of specimens have been examined, and infor-
mation given concerning them to private parties at the office of the
Survey. We have been alwaj's willing to advise persons desirous of en-
gaging in mining operations, or to give information in regard to metal-
lurgic processes.

As the asphaltum of the southern counties is an abundant product,
and one which has, as yet, been made but little available in an economi-
cal point of view, compared with what it may be, the whole subject of
its chemical composition, and the best method of applying it to use in
the arts, or of obtaining oil, gas, or other valuable j^roducts from it, has
been referred to F. H. Storer. of Boston, for a detailed report. This
gentleman is, undoubtedly, better qualified than an}' one else in the
United States, to give this difiicult matter a thorough investigation.

The subject of the metallurgic treatment of the auriferous quartz rock,
and especially of the sulphurets containing gold, is under consideration,
and the proper steps have been taken to have this highly important sub-
ject carefully examined. I have no doubt that essential service can be
rendered to the State in this branch of our work.

REPORT.

The clause of the Act authorizing the Survey, according to which the
State Geologist is required to present to the Governor, as earlj^ in the
session as may be, a Eeport of Progress, in which the more importani
practical results of the survey shall be made public, will be complied
with.

Early in the session, an estimate of the cost of printing such report
will be handed in, so that the work can be completed, and in the hands
of the Legislature before their adjournment, provided the printing be
authorized.

In conclusion, I would remark, that I fully believe that the Survey will
be of great practical value to the State, if sustained by the Legislature,
and that I cannot doubt that it will be advisable to have the work
pushed forward rapidly, so that the final report may be in the hands of
the public as soon as possible.

I am, with high respect.

Your obedient servant,

J. D. WHITNEY,

State Geologist.

HEPORT

OF THE

BOARD OF WAR EXAMINERS.

M:A.IICH 22, 1862.

BEN J. P. AVERY STATE PRINTER.

REPORT

Board op War Examiners, )

Sacramento, March 22, 1862. J

To THE President of tue Senate :

Herewith find Eeport of the Board of War Examiners, made in pur-
suance of a Concurrent Resolution of the Legislature.

WM. C. KIBBE,

President Board Examiners.

War Board of Examiners, ")

862. 1

March 22, 186i

To the Senate and the Assembly of California .

The law of eighteen hundred and fifty-seven required this Board to
report in December of that year, since which time, as the law did not re-
quire it, perhaps, no report has been made.

The duties of the Board have continued to this time, and still there is
a large amount of business to be transacted.

The aggregate of the sums appropriated in eighteen hundred and fifty-
seven, to the different counties, was four hundred and ten thousand dol-
lars. Various amendments have been made to the law, until in eighteen
hundred and sixty-one the aggregate appropi'iated amounted as follows :

Aggregate Appropriations

Appropriations to McDonald and Jones.

Total

$510,000
6,000

$516,000

The total amount audited by the Board, and the amount of certificates
issued, are as follows :

Amount Audited

Amount of Certificates issued.

1372,166 63

349,721 08

The books kept do not show to what counties the certificates issued
belong, which should appear, for the law states the specific amount
allowed to each county included in its provisions.

Amount of Bonds issued before January 1, 1862.
Amount of Bonds issued since January 1, 1862..

The table hereto attached, marked "A," shows as fully as can be found
here at present, the condition of business in the hands of the Board. It
is not certain what amounts have been audited and allowed to each
county, for the books shoM' little of it, and letters and papers which may
be referred to, cannot be satisfactorily relied on.

' The original books are in the hands of the War Commissioners sent to
Washington, but the law required copies to be left with this Board, and
books supposed to be copies of the Minute Book and of the Certificate
Book are here, but are not certified by any authority, as it appears pro-
per they should be. These books were never footed up, and it has taken
much time to unravel their meaning.

The papers now in the hands of the Board were not, up to last Janu-
ary, either filed, numbered, or arranged, but were in a confused mass.
They are now assorted and kept in their appropriate order. Heretofore
neither the members nor Clerk of this Board appear to have signed any
of the entries of their jjroceedings ; and no authentication of the same
anywhere appears.

The Bond Book kept by the Treasurer purports to give the numbers
of the certificates on which the bonds have been issued, and upon
thorouo-h examination and reference beins: made, it is found that bonds
have been issued in several instances by the State Treasurer for amounts
greater than the certificates on which they are founded. These over-
issues are shown in the table hereto attached, marked " B."

From the Minute Book of the Board it appears that several claims
have been audited and allowed for greater amounts than were claimed,
and these are shown in the table hereto attached, marked " C."

The War Bonds issued by this State are not, by the Auditor at Wash-
ington, considered sufficient evidence of jjroper expenditure, but he re-
quires presentation of the original vouchers and claims on which our
bonds are issued, before payment will be made ; and, in case bonds
are improvidently issued, the United States refuses to pay, and ulti-
mately, no doubt, this State must redeem these bonds so rejected, so
that the making of errors will, in the end, tell greatly to our dis-
advantage.

A law of Congress, approved March second, eighteen hundred and
sixty-one, appropriated four hundred thousand dollars to pay the ex-
penses of Indian hostilities in this State — a sum, by one hundred and six-

teen thousand dollars, less than has been fixed as the limit by this State,
but the law of Congress does not cover in all eases the same dates for
which bonds are issued under the laws of this State; and so, between
bonds issued for expenses at times not covered by the Act of Congress
and bonds for the issuance of which we cannot produce sufficient vouch-
ers, a large amount of our War Bonds, issued since eighteen hundred
and fifty-seven, have, apparent)}^, no provision for their payment.

The counties not named in the Act of Congress and the amounts here-
tofore by this Board audited for those counties, are shoAvn in the table
hereto attached, marked " D."

This Board should have the appointment of its own Clerk, as in that
case he will be fully subject to their control, and be directed to perform
the clerical duties in the mode deemed best to elucidate the proceedings
and to facilitate inspection and understanding of the same by those in-
terested. The War Board of Examiners should not be held responsible
for reported errors and omissions, so far as the same are to be attributed
to the manner of keeping the books, as it did not have the appointment
of its Clerk.

The foregoing report, made and submitted in response to a Concurrent
Resolution of the Legislature, calling upon the Board of War Examin-
ers for a statement of the proceedings of the said Board, is as full and
complete as it was possible to make it from the books and papers in the
possession of the Board.

Respectfully submitted,

WM. C. KIBBE,

President.
G. R. WARREN,
D. R. ASHLEY.

[^ ]

County.

State ,„ ^
Appropriation. ''^^^ I^'^^e.

Audited Claims.

Congresiioaal Appropria-
tions.

Siskiyou, Modoc
and Pitt River

Klamath, Hum-
boldt and Del
Norte

$214,000 00

170,000 00
5,000 00
1,000 00
5,000 00
9,000 00

1850 to '61

1850

1852 to '56

1850

1850 to '51

$186,696 08

125,870 65

3,710 00

817 03

1,269 00

7,761 18

$400,000 00
For 1855, 1856, 1859

For 1855, '56, '58, '59

Sutter

San Bernardino..
Nevada

For 1855

LiOS Angeles

Yuba

Shasta

15,000 00
11,000 00
10,000 00
14,000 00
15,000 00
10,000 00

20,000 00

18.50 to '(31
1850, 1851
1850 to '53
1850 to '61
1850 to '61
1850 to '61

8,348 64

For 1854

Napa and Yolo..
El Dorado

200 00

13,437 05

8,460 00

9,597 00

Tulare

For 1856

Trinity

Tehama

Butte and Plu-
mas

Balance

11 000 00

$510,000 00
3,000 00
3,000 00

$366,166 63
3,000 00
3,000 00

W. McDonald*...

A. M. Jones*

$516,000 00

$372,166 63

* Commissioners.

Bonds issued hy the State Treasurer apparently for too great an Amount.

No. of Bond.

To Whom Issued.

No. of Certificate.

Amount of Cer-
tificate.

Amount of
Bond.

12, 13, 39...
14, 15

William Kennedy....
M. Healy

413, 417, 421....
406

$1,500 00
200 00

66 80
248 00

67 70
15 47

$2,500 00

2 000 00

258 to 261...
497

R. L. Williams

Lucien Mansfield

Solomon Gage

Dry den & Houston.,

236, 288

924, 924*

700 00
200 00

550

18, 20

200 00

578

375 00

$2,097 97

$5,975 00

2,097 97

Appai

rent Over-issue

$3,877 03

* Two certificates, same number.

[ C ]

Claims in Siskiyou apparently Over-audited,

By Whom Claimed.

For What.

Amount
Claimed.

Amount
Allowed.

Readel & Marye

Thomas B. Lynch

W. C. Lytle

Maury & Davis

Supplies

$76 00
76 00
76 00
76 00
76 00

$349 00

Supplies

232 89

Supplies

493 50

Supplies

97 16

Francis D. Johnson.

SujDplies

80 CO

$380 00

$1,252 55

380 00

Allowed more than Claime

$872 55

[D ]

Not included in Congressional Appropriation.

County.

Amount Audited.

War Date,

Nevada

Shasta

Trinity

Klamath and Humboldt

Sutter

Siskiyou

El Dorado

Tehama

Los Angeles

Total

$1,269
4,960
8,460

26,623
3,710
3,706
200
9,597
7,761

),287 09

1850,1851

1851 and 1853

1852 to 1855
1851 and 1852

1850

1852

1851

1857 to 1861

1852

All of the above, excepting for the Counties of El Dorado and Los
Angeles, have been audited for spoliations, (property destroj'ed by In-
dians,) by the Board of Examiners.

REPORT OF THE ADJUTANT-GENERAL

UPON

THE INDIAN WAR DEBT

OF THE

STATE OF CALIFORNIA.

BEN J. P. AVERY '=iTATE PRINTKR.

REPORT.

General HEAiHjrARTER*. State of Cauforxia. 1
Adjntant-G^nerar? Office. San Francisco. March 26th. 1><62. f

To thf HoHorabff thf Atfrmbfjf of ('nlifitrmia :

I have the honor, in reply \o the inqnirie* propounded in the Eesolu-
tiou of the A^^semblj, passed March rwenty-fifth. ei^teen hundred and
sixty-two. to submit the follo\rrng:

The first inquiry is : - How much of the appropriation by Congress
for the settlement of the War Debt of eicrhteen hundred and fifky and
eighteen hundred and fifty-one remains to the credit of the State V

To this I respectfully reply, that on the fourth day of February, eigh-
teen hundred and sixty-one. there remained in the United States Treas-
ury, of the appropriation for the redemption of Bonds issued by the State
of California, in liquidation of expenses incurred in suppressing Indian
hostilities in this State prior to eighteen hundred and mty-fbur. and
undrawn, the sum of twelve thousand seven hundred and sixty-two dol-
lars and twenty-seven cents : but this amount is not to the credit of the
.State, the appropriation being to the holders of the said Bonds.

The second inquiry is : - Wliat amount of interest represented by
coupons attached to said Bonds is yet unpaid and now due the State of
California, in accordance with the provisions of the Act of Congress of
eighteen hundred and fifty-four and eighteen hundred and fifty-six. mak-
ing this appnipriation ?"

To this I reply, that interest on all of said Bonds, so fer as paid by
the United States, ha^ been computed and paid to the holders of Bonds,
in some cases at twelve per cent, and in others at seven per cent, per
annum. ( as fixed in the Bonds.^ from the date of issue up to the first day
of January, eighteen hundred and fifty-four, and amounts to one hundred
and nineteen thousand four hundred and ninety-seven dollars and thirty-
eight cents.

The appropriation by Act of Congress of Angust fifth, eighteen hun-
dred and fifty-four, of nine hnndred and twenty-tour thousand two hun-
dred and fifty-nine dollars and sixty-five cents, authorised the Secretary
of War to examine into and ascertain the amount of expenses incurred
and now actually paid by the State of Calitbmia. in the suppression of

Indian hostilities prior to the first day of January, eighteen hundred
and fifty-four, and that the amount of expenses, when so ascertained,
should be paid into the Treamry of said State^ provided that the sum so
paid shall not exceed the sum thereby appropriated.

No payment having been made under this Act, Congress, by the Act of
Auo-ust eighteenth, eighteen hundred and fifty-six, directed that payment
should 1)0 made fo the holders of the Bonds issued by the State prior to the
first day of January, eighteen hundred and fifty-four, said payment not to
exceed the former appropriation ; providing, also, that before any Bonds
shall be redeemed by the Secretary of War, they shall be presented
to the Board of War Commissioners appointed by this State, and the
amount due and payable on each Bond, duly indorsed thereon by the
said Commissioners, with the following proviso, viz : provided, that said
amounts shall not exceed the amount appropriated ; said Bonds, after re-
demption, and after taking off the eoupuns that may remain unpaid, shall he
delivered to the Serretary of War, fo he eaneelled.

Under this last named Act. Bonds have been paid b}- the United States
as follows : Bonds bearing twelve and seven per cent, interest, seven
hundred and eighty-one thousand six hundred and fifty dollars ; interest
thereon, up to Januar}^ first, eighteen liundrcd and fifty-four, one hundred
and nineteen thousand four hundred and ninety-seven dollars and thirty-
seven cents. Total, nine hundred and one thousand one hundred and
forty-seven dollars and thirty-eight cents. There would thus appear a
balance to the credit of the hondholders of twenty-three thousand one
hundred and twelve dollars and twenty-seven cents, which would cover
all the outstanding Bonds of said issue, which have not been presented
for payment, together with interest thereon, until January first, eighteen
hundred and fifty -four, as paid on those redeemed.

But out of this balance there has been drawn, up to the first of May,
eighteen hundred and sixty-one, ten thousand three hundred and fifty
dollars, in payment of certain Bonds issued subsequent to the first day of
Januai'y, eighteen hundred and fifty-four, payment of which was author-
ized to be made by the Secretar}^ of War, by the Act of Congress of June
twenty-third, eighteen hundred and sixty-one, thus reducing the balance to
twelve thousand seven hundred and sixty-two dollars and twenty-seven ■
cents, which amount has been further reduced in payment of this new
issue since that time.

In the passage of this last Act I was instrumental, from the fact that
an appropriation had been made for the redemption of these old Bonds
in csish,fve years before ; and that there was still outstanding and unpaid
a balance of fifteen thousand one hundred dollars, with interest, which
had not been presented for payment. It was fair to conclude therefore,
that the same might have been destroyed or lost, and in order to take
up as man}' of the Bonds of the new issue, (i. e. since eighteen hundred
and fifty-four,) issued under the same Act of the Legislature, as possible,
I advocated the passage of this bill before Congress.

The condition of this Debt is then as follows, viz :

Appropriation by Congress, 1854, and explan-
atory Act of 1856

Amount of Bonds issued up to January 1,
1860

Amount of interest paid on Bonds — interest
to January, 1854

* Bonds to be redeemed of old issue.

Amount of Bonds to be redeemed issued since

January 1, 1854

Probable interest

$781,650 00
119,497 38

$15,100 00

540,500 00
8,000 00

Amount paid on redemption of tbe above.

Probable amount due on Bonds of new issue

Less amount of appropriation

Amount of interest accruing between the
1st day of January, 1854, and the 18th of
August, 1856, as represented by detached
coupons

$48,500 00

177,196 00

$924,259 65
901,147 38

^23,112 27

10,350 00

n2,762 27
38,150 00

$25,387 78

* Note. — These Bonds having never been presented for payment, it is
supposed they have been lost or destroyed — three thousand dollars of
twelve per cents, and twelve thousand one hundred of seven per cents.

It may be a question whether, by the conditions of the Act of Congress
of August eighteenth, eighteen hundred and fifty-six, the Cleneral Gov-
ernment did not virtually assume the entire debt of the State audited,
and for which Bonds were issued prior to the first day of January, eight-
een hundred and fifty-four, for that. Congress took the direction and responsi-
Ulity of this settlement out of the hands of the State of Calif ornia by diverting
the amount originally appropriated to the State and placing it to the
credit of the bondholders. The restrictions and regulations prescribed
by this Act are peculiar, and, so for as I know, without precedent in the
payment of claims. The Act authorizes the Commissioners appointed
by this State to indorse the amount of principal and interest due upon
these Bonds, at the time of payment, and directed the amount thus
indorsed to be paid by the Secretary of War. That the Bonds, after
redemption, and after taking off the coupons that may remain unpaid,
shall be delivered to the Secretary of War to be cancelled.

(The coupons were numbers from one to eleven, inclusive, on the
seven per cent., payable annually, from the first day of January, eighteen
hundred and fifty-three, to the first day of January, eighteen hundred
and sixty-two, and a four months coupon on the second day of May,
eighteen hundred and sixty-two.)

The Commissioners paid the interest only up to the first day of Janu-
ary, eighteen hundred and fifty-four. How this could have been done

under the Act of Congress referred to, I am at a loss to determine, be-
cause that Act, passed August eighteenth, eighteen hundred and fifty-six,
required the Commissioners to indorse tlie amount due upon each Bond,
and the amount then due must have been the amount of principal, with
interest added, up to the time the indorsement was made. The coupons to
be detached from the seven per cents, became due January first, eighteen
hundred and fifty-eight, nine, sixty, sixty-one. sixty-two. and May second,
eighteen hundi'ed and sixty-two, were evidently numbers six, seven, eight,
nine, ten. and eleven, to be returned to the State, the principal of the
Bond having been paid, of course, interest could not accrue thereafter.
If so. then a final settlement should have been made for all Bonds re-
deemed by the Commissioners as far as the appropriation would go. As
it is, the settlement was made by detaching coupons three, four, and five,
then due, and surrendering the same, as the Commissioners report, to the bond-
holders. I can find no authority delegated to this Commission either in
the law of this State or Acts of Congress, for the surrendering of any of
the coupons back to the bondholders after the Bonds have been re-
deemed. The coupons thus detached and surrendered, amount to one
hundred and seventy-seven thousand one hundred and ninety-six dollars
and twenty-three cents, for Avliich surrender no authority was given, and
as Congress appointed the Commission and directed the settlement, the
State should not be held liable for this amount. If the law making the
original appropriation had not been interfered with, the State could, in
my opinion, without difficulty, have liquidated every evidence of this
indebtedness. I had the honor of presenting this whole matter to the
Committee on Militar}' Aftairs of the United States Senate, while in
Washington last year, explaining the same to them ; in which explana-
tion I satisfied the Committee that Congress had virtually assumed this
portion of the debt (the interest,) by Act of August, eighteen hundred
and fifty six. and that Committee reported, as an amendment to the Army
Appropriation Bill, tlie following, viz :

'• For the paj^ment of the coupons outstanding and now unpaid accruing
between the first day of January, eigliteen hundred and fifty-four, and
the sixteenth da}" of August, eighteen hundred and fifty-six, upon the
Bonds of the State of California, issued for the payment of expenses in-
curred in the suppression of Indian hostilities prior to the first day of
January, eighteen hundred and fifty-four, the redemption of which Bonds
was authorized by Acts of Congress of August fifth, eighteen hundred
and fifty-four. August eighteenth, eighteen hundred and fifty-six, and
June twenty-third, eighteen hundred and sixt}'. one hundred and seventy-
seven thousand one hundred and ninety-six dollars and twenty-three
one-hundredths ; said coupons to be certified by the Third Auditor of the
Treasury to be those designated by this section to be paid by the Secre-
tary of War to the holders thereof"

But it being asserted by Senators that many of these coupons had been
purchased for a nominal sum. and were mainly held by a banking house
in Washington, the amendment did not prevail.

This, then, is a brief statement of the condition of this old War Debt,
80 far as the same has been paid. Of the Bonds issued by the State since
January, eighteen hundred and fifty-four, amounting to forty thousand
five hundred dollars, only the amount of twenty-three thousand one hun-
dred and twelve dollars and twenty-seven one-hundredths, has been ap-
propriated by Congress. These Bonds become due on the second day of.

May next, and some provision for their payment should be made by the
State. Tlie amount of pi-incipal of this class, after absorbing the Con-
gressional lialance, will be about twenty-tive thousand three hundred and
eighty-seven dollars and seventy-three one-hundredths. with interest from
the date of issue to the time of payment.

The following, then, in In-ief, is the condition of the old War Debt.
Out of the original appropriation by Congress to the State, nothing was
paid. If the State had disbursed the appropriation here, every claim
would probably have been paid in full, and every Bond and coupon re-
deemed. The State appointed a Commission (Smith and Denver,) to go
to Washington and settle this debt. This Commission, aided by the
bondholders, procured the ])assage of the Act of Congress of August
eighteenth, eighteen hundred and fifty-six, diverting the whole appro-
priation made to the State, and placing it to the credit of the bondholders.
The bondholders accepted the provisions of this Act. and a full and final
settlement should have been made with them ; that it was not — does not
seem to be the fault of the State. The return of unpaid coupons to bond-
holders was not authorized, and the Commissioners must have exceeded
iheir power in making the surrender. As they were acting under the
authority of Congress, however, the State is not responsible for the
deficiency incurred by thus surrendering these coupons, but the (xeneral
Government is. The State, in my opinion, should never assume these
coupons, either in whole or in part. The State is liable only for the
balance due on 1)onds issued since January first, eighteen hundred and
fifty -four, for the payment of which provision should be made. They
become due May second, eighteen hundred and sixty-two.

Bonds issued under the Act of the Legislature of eighteen hundred and
fifty-seven, and amendatory Acts, which have not been assumed by Con-
gress, amount to sixty-six thousand two hundred and eighty-seven dollars
and nine cents. Seven thousand nine hundred and sixty-one dollars and
eighteen cents of these were issued for services and supplies which have
been audited b}^ the Board of Examiners, and for which Bonds have been
issued by the Treasurer .smrr the passage of the Act by Congress appropri-
ating four hundred thousand dollars. 'The balance of fifty-eight thousand
three hundred and twenty-five dollars and ninety-one cents was audited
for propert}- destroyed by Indians. Probably no appropriation will be
made b}^ Congress for the redemption of this class of Bonds until the Gen-
eral Government, by her own agents, investigate the character of the claims
upon which these Bonds have been issued. I had the honor of drafting a
bill directing the appointment of a Commission, by the President, while
in WashingtTon, last year, the passage of which failed for want of time.
Senator Latham has introduced a bill of a similar character into the
present Congress, which will doubtless pass, and thus insure a speedy
payment of these claims by Congress and the redemption of the Bonds
issued therefor. These Bonds are issued payable when Congress makes
an appropriation for the same.

The foregoing is a full and complete statement, with the exception
of the redemption of Bonds by the General Government since the first
day of May, eighteen hundred and sixty, of which no report has been
made to me.

I am, very respectfully,

Your obedient servant,
WM. C. KIBBE,

Adjutant-General.

REPORT OF THE CONTROLLER OF STATE,

RELATIVE TO

SCHOOL LAND MONEYS

APRIL 5, 1863

BENJ. P. AVERY STATE PRINTER.

HE P O R T.

State op California, Office of the Controller of State, )

Sacramento, April 5th, 1862. J

To the Honorable the Assembly of California :

In compliance with a resolution of the Assembly, passed March eight-
eenth, eighteen hundred and sixty-two, I have the honor to submit the
following reply.

The amount received from the sale of the five hundred thousand acres
of land granted to this State by Act of Congress, is six hundred and
eighty-seven thousand eight hundred and seventy-six dollars and seventy-
nine cents, of which amount four hundred and seventy-five thousand one
i hundred and thirty-four dollars and ninety-six cents was paid in Con-
troller's Warrants in purchase of School Land Warrants, and the balance,
viz : two hundred and twelve thousand seven hundred and forty-one dol-
lars and eighty-three cents, in cash. Of this amount, the sum of four
hundred and seventy-five thousand five hundred and twenty dollars was
received prior to May first, eighteen hundred and fifty-eight.

The amount used by the Board of Examiners in the purchase of Bonds
of the Civil Funded Debt of the State, by Act of March sixteenth, eight-
een hundred and fifty-nine, is eighty-nine thousand four hundred and
twenty dollars and sixty-two cents, and the sum of thi-ee hundred and
seventeen dollars and thirty-five cents now remains in the State School
Land Fund.

The amount paid into the State Treasury from the sale of the seventy-
two sections of land donated to the State for the use of a Seminary of
Learning, is eight thousand four hundred and nineteen dollars and thirty-
five cents.

The Board of Examiners have purchased no Bonds of Civil Funded
Debt of the State for the use of a Seminary of Learning.

All the money received from the sale of Seminary Lands has been
placed in the School Land Fund.

The amount of money paid into the State Treasury from the sale of
the sixteenth and thirty-sixth sections, is two thousand eight hundred

and twenty-nine dollars and thirty-one cents. No part of said amount
has been used by the Board of Examiners in purchase of Civil Bonds ;
said sum was placed to credit of State School Land Fund.

The amount paid in from the sale of the ten sections donated for the
erection of Public Buildings, is eight hundred and fifty-three dollars and
seventy-eight cents, which was placed to credit of State School Land
Fund.

All of which is respectfully submitted.

G. E. WAEEEN,

Controller.

REPORT OF BOARD OF MANAGERS

OF THE

STATE AGRICULTURAL SOCIETY

ON THE APPROPlUATIO>s' FOR

IMPROVEMENT OF THE STOCK GROUNDS.

BEN J. P. AVERY STATE PRINTER.

c o ]y: ]vr T T N I c ^ T r o i^ .

To His Excellency.

John (t. Bownky.

Governor of the State of California :

In compliance Avith an Act entitled an Act providing for the Perma-
nent Improvement of the Stock Grounds belonging to the State Agricul-
tural Society, we herewith submit a full statement of moneys expended
upon said grounds by the Board of Managers of said Society.

Respcctfullv.

J. C. DAVIS,
W. W. LIGHT,
A. K. GEIM,

( ■ommittee of Board of Managers State Agricultural Society.

RE r* O R T

The appropriation made under the Act before referred to, was ten
thousand dolhirs, payable on the first Monday in November, eighteen
hundred and sixty-one, and five thousand dollars on the first Monday in
November, eighteen hundred and sixty-two.

In June, eighteen hundred and sixty-one, the Society contracted with
Messrs. Farley and Knox for the impi-ovement of said grounds. This
contract was for cash. The Society, having no funds on hand, were
compelled to borrow money upon the appropriation. The Society there-
fore borrowed, on the first of September, the sum often thousand dollars,
($10,000,) until the first of January-, eighteen hundred and sixt3'-t\vo, at
one and one half per cent, interest per month.

On the first of November, eighteen hundred and sixty-one, the Society
negotiated a fui-ther loan of ten thousand dollai'S, five thousand dollars
of this amount payable on the first of January, eighteen hundred and
sixty-two, and secured by the annual appropriation of five thousand dol-
lars, which was due on the first of July, eighteen hundred and sixty-one,
and not yet paid ; and the remaining five thousand dollars for one year,
at one and one half per cent, per month, secured by the appropriation
payable on the first of November, eighteen hundred and sixty-two, and
other personal property of the Society.

Therefore, the Society will be compelled, in order to have the grounds
ready for the Fail- of eighteen hundred and sixty-two, to pay the sum of
one thousand six hundred and fifty dollars interest, as will be seen by
the following statement :

Borrowed on appropriation on 1st September, 1861

Interest four months l-l per cent, per month $600

Borrowed on 1st November, 1861

Interest two months at I3 per cent. j)er month 150

Borrowed 1st November, 1861

Interest twelve months at li per cent per month 900

Interest paid and to be paid $1,650

$10,000
5,000
5,000

This sum of one thousand six hundred and fifty dollars, is a clear loss
to the Society, in consequence of the failure on the part of the State in
not promptly paying the appropriations when due and payable.

The total amount of moneys expended upon said grounds, as
per statement hereunto annexed, is

The amount of money which the Society will actually receive
from the State appropriation is

The amount advanced or paid out by the Society, more than
the State appropriation, which was realized at the Fair of
1861

$25,722 18
13,350 00

12,372 18

It was the intention of the Society, when first commencing the work,
to expend from four thousand to five thousand dollars upon the improve-
ment of said grounds, more than the appropriation, but finding the cost
of the improvements were much greater than anticipated, the Board of

Managers were compelled to expend the amount of

dollars from their own funds, in order to full}' insure complete success to
the Annual Fair held in September last.

To fully complete the improvements in accordance with the original
design, will cost about nineteen thousand seven hundred dollars, as
follows :

To finish Brick Wall

$2,000 00

To complete Stalls around Brick AVall and Main Stand

To build and complete the four corner Stalls

8,700 00
9,000 00

Total

$19 700 00

A majority of this work should be completed prior to the Annual Fair
of eighteen hundred and sixty-two. More seats for the accommodation
of visitors are required. The stalls should be finished. The committee
stands should be erected and properl}- located, in order to facilitate the
examination of stock, etc. To do this, it will be necessary to build the
double row of stalls in each corner of the Grounds.

EespectfuUy,

J. C. DAVIS,
W. W. LIGHT.
A. K. GEIM,

Committee of Board of Managers State Agricultural Society.

STATEMENT

Of Money a Expended upon the Stock Groxinda hy the State Agricidtural Society.

To Whom Paid.

Nature of Service Rendered.

Amount.

L. Richardson

J. Doherty

B. C. Quiglev

J. F. Ktiox

Hammond & Co

J. HovfV, Superintendent.

E. W. Tcrrv

Hammond & Co

Jno. Knox

A. K. Hill

A. Ross

J. F. Knox

C. Farley

W. F. Knox

Hammond k Co

J. Hovey, Superintendent.

Steamer Sacramento

S. Dodge

R. Jones

W. F. Knox

C. Farley

J. Hovey

Jno. A. Crocker

W. P. Michiner

M. Fit/.patrick

S. Dodge

Goss it Lamliaril

J. Hove\-

N. L. Drew

Jas. McGuire

C. Farlov

W. H. lii-iiins

T. K. Burge-s

M. Fitzpatrick

J. Howe ,

Friend &, Terry

W. F. Knox..".

J. Bauguee

A. Sago

J. Hcvjy

M. Fitzpatrick

Sundry Bills

Total

Labor in preparing Track

Surveying Grounds

Laying Water Pipe to Grounds

Labor on Grounds

Bill Hardware.. ",",',

Labor roll of sundry persons for preparing Race Track.

For Numbering Stalls

I?ill Hardware

Hauling

I^alior building Fence

Labor building Fence

On account Contract for Brick Wall

On account Wood Work

Hardware

Pay roll Laborer.-;

Freight Liberty Pole ,

Digging Wells

Whitewashing

On account Wood Work

Account Brick Wall

Labor Roll and Sundry Disbursements

Preparing and Raising Flag Staff.

Duck for Tank "

Painting Main Stand

B;ilance on Pumps and Wells

Pipe and Iron for Tank

Pay R 11 and Disbursements

Bill Lumber

Bill iron

Balance on Britk Work

Hauling Lumber

Canvasing Cornice main building

Teaming at Grounds

Lumber for (i rounds ,

Balance of Contract for Wood Work

Team for Stock Gr >unds ,

Team for Stock Grounds

Services as Superintendent and money paid Laborers....
Composition Roof on main building

$31

.•iOO

36 37

568

3,835

4,030

172

15t

4,500

3,000

700

260

144

572

410

888

1,424

2,030

852

297

$25,722 18

REPORT OF THE SUPERIORESS

OF THE

an Jfraiuisto II. C §x^\m ^s^lm.

DECEMBER 31, 1801

BEN J

P. avery7..!7..state printer.

R E I> O H T

H. ('. F. Orphan Asylum, ]

San P'ranciseo. Dec. 31st. 1861. J

Ta Hh Excellcmy,

John (t. Downey,

Ami to the HonornltU iMjUUUurt of the State of IJallforuia:

Gkntlkmkn : — Your humble servants, the Sisters of Charity of the
H. ('. Female Orjihan Asylum, San Francisco, acknowledge the receipt
of live thousand live hundred dollars, granted by Act of April fourth,
eighteen hundred and si.vty-one, and beg leave to return their most
grateful thanks for said appropriation; five thousand dollars of which
we have applied to the liquidation of the debt remaining on the^tract of
land purchased, four miles from the city, for the purpose of erecting
thereon a House of Health for delicate and infirm orphans. There is
now on said land, a small tenement, in which tw^enty-two of the children
are under tlie care of three Sisters, who also teach some extern female
children of that neighl)orhood. and superintend the farm, from which it
is intended the orphans of both houses shall receive hereafter a supply
of milk, vegetables, and wholesome fruits.

The remaining five hundred Avas applied as follows :

To F. S. Wensinger, Groceries

Sundry Dry-goods Bills foi- the Orphans.

§380 56
119 44

$500 00

At this time the orphans number two hundred and five. The proba-
ble aires are as follows :

Under one year

Between one and three years

Between three and tive years

Between five and seven years

Between seven and twelve years...
Between twelve and sixteen years

Nine of the yoimg ladies who have been brought up in the Institu-
tion, are now engaged in it teaching the others.

Between twenty and forty of the largest have, during the last two
years, been comfortably and happily situated, some in homes of their
own. others in respectable families, where they earn their livelihood.

The places of nativity, as well as can be ascertained, stand tlius :

United States

California

Mexico

Australia

Ireland

France

Belgium

England

Poland

New (xranada
Flanders

30
161
6
5
4
2
2
1
1
1
•>

205

The number of Boarders is

Total number in the Institution at present

Number of Flxtern Pupils attending Day School

29
243
530

I am happy to sa}' that the majority of our children is in excellent
health. Three have died this year. We find the greatest benefit result-
ing to our ailing orphans and boarders by a few weeks residence at
Mount St. Joseph, the name given to the orphans' farm. The locality is
a health}' one. situated near the bay, where they can enjoy all the ad-
vantages of fresh sea breeze and salt water bathing, which seem to act
magically upon the most delicate and precarious constitutions, and re-
storing them to robust health in a few weeks.

Once more we beg leave to express our indebtedness to your honor-
able body for the above inappreciable advantages which your liberality
has attbrded us for the dear orphans under our care. May your years

be multiplied to witiiewH juauy luoi-e luippy results of your wise udmin-
istration here, and may Heaven crowr, yoii all in a glorious eternity, in
the sineere wish of your humlde servants, who, as in duty l>ound, shall
evei' pray, etc

SlSTi<]K KHANUKS xMciONNLS,

Superioress of K. C Female Orphan Asylum

REPORT OF THE TRUSTEES

OF THE

|l. €. #rp|an ^sgkm 0f 1^0^ %^tks.

DECEMBER 5, 1861.

BENJ. P. AVERY STATE PRINTER.

HE F O K T.

E. C. Orphan Asylum, )

Los Angeles, Dec. 5, 1861. j

To His Excellency,

John G. Downey,

And to the Honorable Legislature of the State of California :

Gentlemen : — In conformity with the Act of the Legislature of the
State of California, entitled an Act appropriating money for the benefit
of certain Orphan Asylums in the State, approved April eighteenth,
eighteen hundred and fifty-nine, we respectfully submit the following
Report :

Since the opening of our Orphan Asylum, January ninth, eighteen
hundred and fifty-six, the children received, many of them, were unable
to contribute to their support — usually, about one half were objects of
charity ; but I must tell you, this year our report will be yet more un-
favorable. Out of thirty-seven children we have in the house, nine pay
something.

We have received, since eighteen hundred and fifty-six, about two hun-
dred children in the Asylum ; the average expense of each is fifteen dol-
lars a month. Our day school numbers over a hundred pupils, the most
of whom are educated on charity. According to our Institute, we would
never receive from our pupils a revenue, had we an income from any
other source. We are too happy to devote our lives to the culture of the
youthful mind, and to train it to virtue, to gain this object; the sacrifice
of Nature, friends, and home, is never considered.

I am sorry to say, we have not received the donation of eighteen hun-
dred and sixty-one, which the honorable members of the Legislature ap-
propriated for the benefit of our Asylum, as we have never been in greater
need. Our debts at present are thirteen thousand dollars, and it is with
the strictest economy and industry we are enabled to support the Insti-
tution.

With sentiinents of sincere gratitude for the honorable members of the
Legislature, who have shown themselves fathers to the poor and friend-
less, I remain, as ever,

Kespectfully,

SISTEE M. SCHOLASTICA LOGSDON,

Sister of Charity.

OFFICIAL REPORT

OF THE

PROCEEDINGS, TESTIMONY, AND ARGUMENTS,

IN THE

District Judge of the Sixteenth Judicial District,

BEFORE

THE SENATE OF THE STATE OF CALIFORNIA,

SITTING AS

A HIGH COURT OF IMPEACHMENT.

SUMNER & CUTTER,

OFFICIAL EEPORTERS.

S -A. C H. -A. ]Vi: E KT T O :

BENJ. P. AVERY, STATE PRINTER.
1862.

REPORT OF PROCEEDINGS

PREFATORY TO THE

TRIAL OF JAMES H. HARDY,

ARTICLES OF IMPEACHMENT.

PRELIMINARY PROCEEDINGS

IN THE

TRIAL OF JUDGE J. H. HARDY.

FIRST DAY—APRIL 38, 1863.

ARRANGEMENTS FOR THE TRIAL

AJ^NOUNCEMENT BY THE PRESIDENT.

President Chellis. — The hour which the Senate has fixed for the com-
raencement of the investigation into the charges preferred hy the As-
sembly, in Articles of Impeachment, against the Hon. James H. Hardy,
Judge of the Sixteenth Judicial District of this State, has arrived.

The Rules which you have adopted seem to provide that the President
of the Senate shall preside during the progress of the trial. As you
have elected a President pro tem. who is intimately versed in a knowl-
edge of the law, I think that, in justice to yourselves, in justice to the
Hon. gentleman who is to be tried by you, and in justice to myself, I
should vacate the President's Chair in favor of the President pro tem.,
the Hon. Senator from San Francisco, Mr. Shafter.

Hon. James McM. Shafter, President pro tem. of the Senate, assumed
the President's Chair.

APPOINTMENT OP OFFICIAL REPORTERS.

Mr. Merritt. — Previous to the organization of the Senate as a High
Court of Impeachment, I desire to offer resolutions having reference to

a report of our proceedings when duly organized as a judicial tribunal.
1 do not expect there will be any objection to their passage.

The resolutions offered by Mr. Merritt, appointed Charles A. Sumner
and Wm. M. Cutter Official Eejjorters of the Senate, sitting as a High
Court of Impeachment, and authorized the official publication of their
rej)orts in The Daily San Francisco Herald and Mirror.

Mr. Merritt. — I believe that Mr. Sumner and Mr. Cutter are the most
competent Short-Hand Eeporters in California. In fact, they are the only
competent Eeporters in the State ; the only Eeporters who can give us
a perfectly correct report of proceedings. They can make a verbatim
report. And it probably will be absolutely necessary — it will undoubt-
edly facilitate business and give the Senate a better idea of the testimo-
ny, as the trial proceeds — to have the report printed in some paj)er, so
that it can be read over and reviewed on the following morning. An
Official Eeporter was apj^ointed in the Bates and Whitman cases, and it
is in accordance with the rule then adopted, and the experience we
then had, that I now offer these resolutions.

Mr. Van Dyke. — I would suggest whether it would not be better to fix
the compensation in these resolutions, to be allowed these Eeporters.

Mr. Merritt. — I understand that their usual terms for reporting for pri-
vate parties, are forty cents per folio, paid in cash. They will have to
take their pay in scrip, which will only bring seventy cents on the dol-
lar. I suppose it would be proper to fix their compensation at such a
rate as would make their pay from the State equivalent to their usual
charge. I am informed that they are willing to accept that.

The resolutions were amended so as to read as follows, and then
adopted by unanimous vote :

Resolved, That Charles A. Summer and William M. Cutter, Short-Hand
Eeporters, be and are hereby appointed Official Eeporters of the Senate,
sitting as a High Court of Impeachment, in the case of Judge James H.
Hardy, and that said Eeporters each be allowed fifteen dollars per day,
and twenty-five cents per folio, for the transcript of their notes. And,
further,

Resolved, That two hundred and forty copies of the report of the tes-
timony taken by said Official Eeporters, on each day, be printed by the
State Printer, and delivered to the Senate the following morning.

OPENING OF THE COURT.

The Presiding Officer announced that the Senate of the State of Cali-
fornia was now organized and sitting as a High Court of Impeachment.

RULES OP THE COURT.

The Presiding Officer. — The Senate have adopted the following Eules to
govern their proceedings, sitting as a Court :

Subpoenas shall be issued by the Secretary of the Senate, upon appli-
cation of the Managers of the Impeachment, or the party impeached, or

of his Counsel, upon the certificate of the President of the Senate that
the same are necessary and proper witnesses upon the trial of said Im-
peachment, and no other witnesses than those thus authorized shall be
subpoenaed to attend such trial. Such materiality shall be proved to
such President, by affidavit, showing in substance the testimony expected
to be given by such witnesses, or by other competent evidence.

Service of such subpoenas shall be made in such manner as the Presi-
dent of the Senate shall direct.

II.

The President of the Senate shall direct all necessary preparations in
the Senate Chamber, and all forms of proceedings while the Senate are
sitting for the purpose of trying said Impeachment, and all forms during
the trial not otherwise specially provided for by the Senate.

III.

At eleven o'clock of the day appointed for the return of the summons
against the person impeached, the Legislative and Executive business of
the Senate shall be suspended.

IV.

The person impeached shall then be called to appear, and answer the
Articles of Impeachment against liim. If he appears, or any person for
him, the appearance shall be recorded, stating particularly, if by him-
self, or by Agent or Attorney; naming the person appearing, and the
capacity in which he appears. If he does not appear, either personally,
or by Agent or Attorney, the same shall be recorded.

At eleven o'clock of the daj" appointed for the trial of said Impeach-
ment, the Legislative and Executive business of the Senate shall be post-
poned. The Secretary shall then administer the following oath or
aflSi'mation to the President :

" You do solemnly swear, that you will truly and impartially hear, try,
and determine, the Impeachment presented by the Assembly of the State
of California, against James H. Hardy, Judge of the Sixteenth Judicial
District of saidState, and that you will true judgment render therein,
according to the evidence given upon such trial, and according to law.
So help you, God."

And the President shall administer said oath to each and every Senator
present.

VI.

The Secretary shall then give notice to the Assembly that the Senate
is organized as a Court of Impeachment, and is ready to proceed upon
the Impeachment of James H. Hardy, in the Senate Chamber.

VII.

Counsel for the parties shall be admitted to appear, and be heard upon
the Impeachment.

VIII.

All motions made by the parties, or their Counsel, shall be addressed
to the President of the Senate, and, if he shall require it, shall be com-
mitted to writing, and read at the Secretary's table, and shall be decided
by the President. If any Senator, or either party, demand the decision
of the Senate upon any question of evidence or proceeding which shall
arise, such decision shall be taken without debate.

IX.

All witnesses shall be examined by the party producing them, and
then cross examined in the usual form.

If a Senator is called as a witness, he shall be sworn, and give his tes-
timony standing in his place.

XI.

At all times, while the Senate is sitting upon the trial of the Impeach-
ment, the doors of the Senate Chamber shall be kept open until the final
argument by the Counsel of the parties is closed. All persons uncon-
nected with said trial shall be excluded from within the bar of the Senate,
during said trial, except ladies and Reporters.

XII.

Any Senator shall have the right to ask questions of a witness under
examination.

XIII.

No smoking shall be allowed within the bar of the Senate, during said
trial.

CALLING OF THE KOLL.

Senator Merritt. — I suppose that it will be proper now to have a call of
the roll.

The Presiding Officer. — The Secretary will call the roll.

The Secretary called the roll, when the following members of the
Court responded to their names :

Messrs. Baker, Banks, Burnell, Chamberlain, Crane, Denver, De Long,
Gaskill, Harvey, Harriman, Hathaway, Heacock, Holden, Irwin, Kim-
ball, Kutz. Lewis, Merritt, Nixon. Oulton, Parks, Perkins, Powers, Quint,
Rhodes, Shafter, Soule, Shurtleff, Van Dyke, Vineyard, Warmcastle,
Watt, and Williamson— 33.

Absent — Messrs. Bogart, Doll, Gallagher, Hill, Pacheco, Porter, and
Thomas — 7.

THE OATH.

The Secretary of the Senate then administered the following oath to
the President, by whom it was afterwards administered to each of the
Senators present :

" You do solemnly swear, that you will truly and impartially hear, try,
and determine, the Impeachment presented by the Assembly of the State
of California, against James H. Hardy, Judge of the Sixteenth Judicial
District of said State, and that you will true judgment render therein,
according to the evidence given upon such trial, and according to law.
So help you, God."

PROCLAIMATION.

The Presiding Officer. — The Sergeant-at-Arms of the Senate will make
a proclamation that the Senate of the State of California is now open,
and sitting as a High Court of Impeachment.

The Sergeant-at-Arms. — Hear yc ! Hear ye I The Honorable the High
Court of Impeachment, for the trial of Judge James H. Hardy, is now
open. Silence is commanded, on pain of imprisonment.

ORDER OF INSTITUTION.

The Presiding Officer submitted the following order, which was adopted,
and ordered entered b}^ the Senate, sitting as a Court :

HIGH COUET OF IMPEACHMENT.

Senate Chamber, \

State of California, "J April 28th, 1862. j

vs. y

James H. Hardy, j

In accordance with the resolution heretofore adopted by the Senate of
the State of California, the Senate convened as a High Court of Impeach-
ment, to try James H. Hardy, Judge <jf the Sixteenth Judicial District
of the State of California, upon charges preferred against him by the
House of Assembly of the State of California, for misdemeanors in
office.

return on subpcenas.

The Sergeant-at-Arms, being duly sworn, testified to the returns which
he had made upon the subpoenas issued by the President of the Senate
on the fourteenth and twentieth days of April, eighteen hundred and
sixty-two.

respondent appears.

The Presiding Officer. — If the Eespondent is present, he can present him-
self at the bar without special proclamation being made.

Hon. James H. Hardy, Judge of the Sixteenth Judicial District, ap-
peared at the bar of the Senate, with his Counsel, Hon. Charles H. S.
Williams, to respond to the Articles of Impeachment brought against
him by the Assembly of the State of California.

entrance of presentors and counsel.

The Presiding Officer. — The ordinary form adopted in Congress, in trials
of this character, is, for the Senate to inform the House of Eepresenta-
tives that the Senate is organized as a High Court of Impeachment, and

is prepared for their reception. It is not possible, or convenient, for us
to make such an announcement on this occasion. We shall have, there-
fore, to rely upon the courtesy of the Members of the Assembly to waive
that invitation.

The Sergeant-at-Arms will announce to the Assembly that the Senate
is now organized, and sitting as a High Court of Impeachment, ready
and waiting for the appearance of the Members of the Assembly whom
that body have delegated to act as Managers in presenting the Articles
of Impeachment in this case.

The Sergeant-at-Arms announced the Managers in the case, with their
Counsel :

3Ianagers. — Messrs. Thomas Campbell, T. B. Shannon, II. G. Worthing-
ton, T. N. Machin, and J. Gr. McCullough.

Counsel. — Messrs. Alexander Camjjbell, Henry Edgerton, and William
Higby.

READING OF THE ARTICLES WAIVED.

The Presiding Officer assigned seats for the Managers and the Coun-
sel upon both sides, and then inquired :

Does the Eespondent in the case desire that the Articles of Impeach-
ment should be read ?

31)-. Williams. — The Eespondent having been personally served with
the Articles of Impeachment and Specifications, the SujDplementary Ar-
ticles and Specifications, waives the reading of the same ; and proposes
to answer, and ask the Court to order that his answer be entered upon
the Records by the Secretary.

The Presiding Officer. — It is Ordered that the reading of the Articles at
this time be waived, at the request of the Eespondent; and that a record
of this fact, and a record of the answer of the Eespondent, be made in
the minutes of the Secretary.

ANNOUNCEMENT OF COUNSEL.

The Presiding Officer. — It is proper that the number and the names of
the Counsel, on either side, be now announced to the Court.

3Ianager McCidlough. — In addition to the Attorney-General of the State,
Mr. Frank M. Pixley, the Managers of this case, on behalf of the As-
sembly, announce that they have retained as Counsel, Mr. Alexander
Campbell, Mr. William Higby, and Mr. Henry Edgerton.

Judge Hardy. — I announce to the Court that Mr. Charles H. S. Wil-
liams will appear as Counsel on the part of the Eespondent.

THE ANSWER.

Mr. Williams. — The answer of the Eespondent will be given orally,
and entered upon the minutes by the Secretary, agreeably to the order
of the Court.

The Presiding Officer. — I suppose that the rules of practice adopted and
followed by the Common Law Courts in this State, are those which will
govern us in the conduct of this trial, upon which the Managers and
Counsel for the Prosecution, and the Eespondent and his Counsel, will
rely in the management of this case. The Eespondent asks leave to give
his answer, orally, in the presence of the Coui't, and have the Secretary
record it as given.

Mr. Alex. Camphell. — The statute provides that the answer may be
either oral or written. Of course, that is a matter entirely within the
election of the Respondent.

Judge Hardy. — To each and all of the Articles preferred, and to each
and every one of the specifications, I plead — I am not guilty ; and I
deny the truth of the same.

Mr. Alex CavrphcU. — I understand that the answer refers to the Sup-
plementary Articles as well as the Original Articles.

The Presiding Officer. — The answer of the Respondent is, to each and
all of the Articles of Impeachment — not guilty.

Judge Hardy. — To each and every Article preferred, and to each and
every one of the specifications, I answer — not guilty ; and I deny their
truth.

reporters sworn in.

The Presiding Officer. — I would announce to the Managers and the
Counsel on the part of the Prosecution, and to the Respondent and his
Counsel, that the Senate have seen fit to elect as Official Reporters of the
proceedings of this trial, Messrs. Sumner and Cutter. Is there any ob-
jection to the appointment of these gentlemen as Official Reporters, on
the part of the Managers for the Prosecution, or the Respondent, or the
Counsel on either side ?

Manager McCullough. — There is no objection on the part of the Man-
agers and Counsel for the Prosecution.

Mr. Williams. — We have no objection.

The Presiding Officer. — No objection being made, these appointments
stand unchallenged.

Senator De Long. — The Reporters should now be sworn in.

The Presiding Officer administered the oath of office to the Official
Reporters, Messrs. Sumner and Cutter.

ANNOUNCEMENT BY THE PRESIDENT.

The Presiding Officer. — The Senate is now in session as a High Court
of Impeachment, and is prepared to receive the Articles of Impeach-
ment, the allegations, and the proofs.

Mr. Alex. Camphell. — We are prepared to proceed to trial on the part
of the Prosecution.

The Presiding Officer. — The Chair begs leave to remark that the Rules
put the substance of procedure somewhat under the control of the
Chair, unless otherwise determined by special order of the Senate.
Unless otherwise ordered, the rules of evidence and the ordinary prac-
tice in Courts of Justice in this State will be endeavored to be pursued.
And in relation to the closing, it may be proper to suggest, here, that we
pursue the order adopted in the same quarter ordinarily, with the ex-
ception that, as in those Courts sometimes, in which discretion in the
matter is given and exercised, two Counsel on a side will be allowed to
argue the case. The order will be, that two Counsel will be heard on
each side, alternately.

Mr. Williams. — So far as the conduct of the defence is concerned, in
the adoption of such a rule, I desire to state that there has been but one
Counsel retained on the part of the Respondent ; and we shall submit to
the courtesy of the other side, whether they will follow this rule, as
announced by the Chair.

CONCERNING TAKING OF THE OATH.

Mr. Alex. Campbell. — The statute regulating proceedings in these cases,
provides that at the time and place appointed, and before the Senate
proceeds to act upon the Impeachment, the Secretary shall administer
to the President of the Senate, and the President of the Senate shall ad-
minister to each of the members of the Senate then present, an oath or
affirmation, truly and impartially to hear and try the Impeachment;
and no member of the Senate shall act on the Impeachment, or on any
question arising in the trial of the case, without having first taken such
an oath or affirmation.

The section reads as follows :

" Sec. 59. If an objection to the insufficiency of the Impeachment be
not sustained, by a majority of the members of the Senate who heard
the argument, the defendant shall be ordered forthwith to answer the
Articles of Impeachment. If he plead guilty, or refuse to plead, the
Senate shall render judgment of conviction against him. If he deny the
matters charged, the Senate shall, at such time as they may appoint,
proceed to try the Impeachment."

The time appointed in this section of the law, is the present time pre-
cisely ; and I presume that it is now the duty of the Secretary to admin-
ister the oath to the President, and the President will then administer
the oath to each of the members.

The Presiding Officer. — The oath was administered prior to the opening
of the Court, and, of course, prior to the calling of the parties before the
Senate sitting as a Court.

Mr. Alex. Camphell. — The statute seems to contemplate that the oath
shall be administered after the issue is joined; and there might be a
question, whether, if the oath was administered at any time previous, it
would not be out of place, improper, and invalid. The statute provides
for the entering of the issue, for the fixing of the time of trial, and then
the time and place is appointed (which is this time and place) when this
particular act of administering the oath shall be performed. I submit if
it would not be a matter of security, at least, to have the oath adminis-
tered at this time.

The Fresiding Officer. — All these preliminary proceedings were gone
through with some time ago.

Mr. Alex. Camphell. — The question is, whether the Senate can overrule
the statute. It seems to me that this is a thing which ought to be done
strictly in accordance with the direction of the statute.

The next section reads :

" Sec. 60. At the time and place appointed, and before the Senate
proceed to act on the Impeachment, the Secretary shall administer to
the President of the Senate, and the President of the Senate to each of
the members of the Senate then present, an oath or affirmation, truly
and impartially to hear, try, and determine, the Impeachment ; and no
member of the Senate shall act or vote upon the Impeachment, or any
question arising thereon, without having taken such oath or affirma-
tion."

Clearly contemplating that the oath is to be administered after the
issue is joined.

The Presiding Officer. — I believe that in the cases tried in the United
States Senate, the oath was administered before the respondent was ar-
raigned at all.

Mr. Alex. Camphell. — But our statute prescribes the mode of proceed-
ing, and prescribes that the oath shall be administered at a particular
time ; and I submit that unless that oath is administered at such time,
and in strict accordance with the statute, the whole proceedings would
be void. It seems to me very clear, on reading the language of the stat-
ute. 'The fifty-ninth, sixtieth, and sixty-first' sections of the Criminal
Practice Act direct as to the proceeding. I think it would be well that
the rule laid down here should be strictly conformed to. And 1 think it
will be found, upon examination, that the rule laid down b}- our statute
is consistent with the rules which were followed in the cases of Judge
Grier, Judge Peck, and Judge Chase. But even if that were not so,
there the Senate were acting, not under any statute, but under rules
made by themselves. Here is a rule adopted by the Legislature, and in-
tended to be binding on them in proceedings of this character ; and I
submit that it ought to be complied with strictly.

Senator Crane. — I suggest, in order to save all question on the subject,
that we take the oath over again. It is a mere matter of formality.

The Presiding Officer. — I think that the oath was administered at the
proper time. The same rule was prescribed in the Bates case.

Senator De Long. — I think it would take less time to swear the Senate
over again, than it would to stop and discuss the matter. It seems to
me a little curious, that we can be sworn to try this pleading before the
issue is raised. Let us start off with a certainty that we are right, at
any rate. If there is the slightest danger of these proceedings being
rendered null and void on account of a little technical omission, we had
better go through with this formality many times over, if need be, to
guard against such a possibility.

The Presiding Officer. — The Senate were not sworn to try this pleading,
but the Articles of Impeachment.

Senator De Long. — Why, the Respondent might offer to plead guilty to
some of these Articles, and not guilty to others. It seems to me that we
occupy the position of trial jurors. They are sworn several times, in
Court. They are sworn in each particular individual case, and then they
are sworn to try the case after the arraignment has been had.

The Attorne)j- General. — I desire to call the attention of the President of
the Court to the Eighth Rule, which provides that these questions shall
be settled without debate.

The Secretary read the Rule, which is as follows :

'' All motions made by the parties, or their Counsel, shall be addressed
to the President of the Senate, and, if he shall require it, shall be com-
mitted to writing, and read at the Secretary's table, and shall be decided
by the President. If any Senator, or either party, demand the decision
of the Senate upon any question of evidence or proceeding which shall
arise, such decision shall be taken without debate."

The Attorney- General. — We move for the readministratiou of the oath
to the President and the members of the Court.

The Presiding Officer. — The Chair decides that the oath has already
been administered.

The question before the Court is — Shall the oath be readministered to
the President and members of this body ?

Upon this question, the ayes and noes were called, with the following
result :

Ayes — Messrs. Banks, Chamberlain, Crane, De Long, Gaskill, Harvey,
Harriman, Hathaway, Heacock, Irwin, Kutz, Lewis, Nixon, Perkins, and
Powers — 15.

Noes — Messrs. Baker, Burnell, Denver, Holden, Kimball, Merritt, Oul-
ton. Parks, Quint, Ehodes, Shafter, Soule, Shurtleif, Yan Dyke, Vine-
yard, Warmcastle, Watt, and Williamson — 18.

So the Court refused to order the readministration of the oath, by a
vote of eighteen noes to fifteen ayes.

READING OF THE ARTICLES OF IMPEACHMENT.

The Attorney- General. — We move for the reading of the Articled of Im-
peachment.

The Secretary read as follows :

ARTICLES OF IMPEACHMENT,

Exhibited by the Assembly of the State of California, against James H.
Hardy, Judge of the Sixteenth Judicial District of said State.

The Assembly of the State of California, in the name of themselves
and of all the People of said State, do hereby impeach James H. Hardy,
District Judge of the Sixteenth Judicial District, of High Misdemeanors,
and Wilful and Corrupt Misconduct in his said office, and wilful neglect
of the duties thereof, and exhibit against the said James H. Hardy, Dis-
trict Judge, as aforesaid, the following Articles of Impeachment :

ARTICLE I.

At the May term, A. D. eighteen hundred and fifty-nine, of the Dis-
trict Court of the Sixteenth Judicial District, in and for the County of
Calaveras, the said James H. Hardy, being then and there the District
Judge of said District Court, a certain suit was pending and at issue
therein before the said James H. Hardy, District Judge, as aforesaid,
wherein one Gerrish Foster was plaintifi^', and one Fritz and others were
defendants — that said cause came on for trial before said Hardy, District
Judge, as aforesaid, at Mokelumne Hill, the county seat of said couuly,
at said May term, viz : on or about the fourteenth day of May, A. D.
eighteen hundred and fifty-nine ; that at the trial of said cause the said
James H. Hardy, District Judge, as aforesaid, unlawfully, corruptly, wil-
fully, fraudulently, and with intent to perpetuate and lengthen litigation
between the parties aforesaid, did deny a certain motion for a nonsuit
then and there made by the Counsel for the defendants in said action.

ARTICLE II.

House in said County of Calaveras, and the said James H. Hardy, being
and acting as such District Judge, did then and there, unlawfully, corruptly,
wilfully, iraudulenth', and with intent to perpetuate and lengthen litiga-
tion between the parties to said suit, grant to the defendants therein a
new trial of said cause.

ARTICLE III.

On or about the first day of April, eighteen hundred and fifty-nine, a
certain case, wherein The People of the State of California, on the rela-
tion of the Attorney-General of the State, were plaintiffs, and one Hill
Squires was defendant, was pending in the District Court of said Six-
teenth Judicial District, in and for the County of Calavei'as aforesaid,
before the said James H. Hardy, District Judge — at which time, in the
Court House, in the County of Calaveras, said cause came up for hear-
ing and trial before said Hard}', as such Judge, and in which cause, after
the hearing and trial thereof, the said James H. Hardy, as such Judge,
at the county aforesaid, on or about the first day of June, A.D. eighteen
hundred and fifty-nine, did, unlawfully, wilfully, corruptly, and fraudu-
lently, render judgment in favor of said Hill Squires, the defendant in
said cause.

ARTICLE IV.

That, at the February term. A. D. eighteen hundred and sixty-two, of
the District Court of the Sixteenth Judicial District, in and for the
County of Calaveras, a certain suit was pending and at issue in said
Court, before the said James H. Hardy, District Judge, as aforesaid,
wherein one E. Mercier and another, were plaintiffs, and W. C. Denny
and others, were defendants ; that it was important for the interests of
the plaintiffs therein that said caiise should not be tried at said Feb-
ruar}" term, but should be continued to the next term of said Court, and
the said James H. Hardy, being then and there such District Judge, and
well knowing the premises, on the twenty-fifth day of Februarj*, eight-
een hundred and sixty-two, as yet of said February term, wilfully, un-
lawfully, corruptl}^, and in violation of his official duty, and for the pur-
pose of effecting such continuance, and favoring, and benefiting the
plaintiffs in said action, at Mokelumne Hill, in said County of Calaveras,
solicited and urged one William L. Dudley, who was then engaged as
Counsel in another case on trial before said Hardy, to consume as much
time as possible in such trial, and in the trial of other cases in which
said Dudley was engaged in said Court, so as to prevent the trial of said
suit of E. Mercier and another, against W. C. Denny and others, at said
last mentioned term.

ARTICLE V.

At the February term, A. D. eighteen hundred and sixty-two, of the
District Court of the said Sixteenth Judicial District, in and for the
County of Calaveras, a certain case was pending and at issue in said
-Court, the said James H. Hardy being then and there Judge thereof,
as aforesaid, between J. E. Eobinson and others, plaintiffs, and one George
Leger and another, defendants, and the said James H. Hardy, acting as
such Judge, then and there did, unlawfully, wilfully, and corruptly, con-
tinue and cause to be continued, the said case to the next term of said
Court, with intent to hinder, delay, and defraud, the plaintiffs in said
suit.

ARTICLE VI.

That at the August term, A. D. eighteen hundred and sixty-one, of the
District Court of the said Sixteenth Judicial District, in and for the
County of Calaveras, a certain cause was pending and at issue in said
Court, the said James H. Hardy being then and there Judge, as aforesaid,
between one E. Mercier and another, plaintiffs, and W. C. Denny and
others, defendants, and that on thefifteenthday of said August, a piotion
was there njade by the plaintiffs in said case to change the place of trial
of said case to some other county in said State of California, which said
motion was made at the Court House in said County of Calaveras, where
the term of said Court was being held by the said James H. Hardy, Dis-
trict Judge, as aforesaid, and that the said James H. Hard}^, then and
there, wilfully, unlawfully, and corruptly, refused to decide, and abstained
from deciding, the said motion.

ARTICLE VII.

ARTICLE VIII.

On or about the first day of July, A. D. eighteen hundred and sixty,
a certain case, wherein W. F. McDermott was plaintiff, and S. "W. Burke,
et al., were defendants, was pending in the District Court of said Six-
teenth Judicial District, in and for said Count}^ of Calaveras, before the
said James H. Hardy, District Judge, in which case, Joseph P. Yaughn
had been appointed Receiver, previous thereto, by said Hardy, to take
charge of, and have the care and custody of, certain property in litiga-
tion, in said case, and said James H. Hardy, District Judge, as aforesaid,
did, at the Court House in said county, on or about the day last aforesaid,
wilfully, unlawfully, and corruptly, refuse to hear, and abstain from hear-
ing, a motion, on the part of the defendants in said case, to remove said
Joseph P. Vaughn, Receiver, as aforesaid, and did, then and there, wil-
full}", unlawfull}^, and corruptly, continue said Josej)h P. Yaughn, such
Receiver, in said action, to the great prejudice and injury of the rights
of the defendants in said action.

ARTICLE IX.

At the May term, A. D. eighteen hundred and sixty-one, viz : on the
thirty-first of May, A. D. eighteen hundred and sixty-one, of the Dis-
trict Court of the Sixteenth Judicial District, in and for the County
of Calaveras, held at Mokelumne Hill, in said county, a certain suit,
wherein J. R. Robinson et al. were plaintiffs, and George Leger et al. were

defendants, came on before the said James H. Hardy, District Judge, as
aforesaid, for trial, and the said James H. Hardy, District Judge, as afore-
said, then and there, wilfully, corrupth', and with intent to oppress the
plaintiffs in said cause, of his own motion and without any objection to
such evidence on the part of the defendants, refused to admit, and ruled
out, certain evidence then and there upon said trial offered by the plain-
tiffs in said suit, for the purpose of proving that, in consequence of a cer-
tain injunction theretofore granted by the said James H. Hard}^, as Dis-
trict Judge, said plaintifts were jirevented from running water through
a certain ditch for mining purposes; and the said James H. Hardy after-
wards, viz : on or about the tirst day of June, A. D. eighteen hundred
and sixty-one, upon the settlement of a statement presented before him,
the said Hard}^, as such District Judge, by the defendants, for the pur-
pose of obtaining a new trial in said cause, did, at the County of Cala-
veras, aforesaid, fidsely, fraudidently, corruptly, and for the purpose of
benefiting the defendants in said suit, insert, in said statement, language
to the effect that such evidence had been offered at the trial by the
plaintiffs, etc.; that the admission thereof was objected to by the defend-
ants; that the Court admitted the evidence; and that the defendants
then and there excepted to such last mentioned ruling of the Court.

ARTICLE X.

That, at the February term. A. D. eighteen hundred and sixty-two, of
the District Court of the Sixteenth Judicial District, in and for the
County of Calaveras, and on the seventeenth day of said month of Feb-*
ruary, eighteen hundred and sixty-two, at Mokelumne Hill, in said
county, the said James H. Hardy, then and there being District Judge, as
aforesaid, and acting and holding said term in such capacity, did, unlaw-
fully, wilfull}', corruptl}'. and for the purpose of injuring the defendants
in a certain cause, then and there pending and at issue hefore him in said
Court, wherein E. Mercier et al. were plaintiffs, and W. C. Denny et al.
were defendants, and, in violation of the rules of said Court, continue
said cause from the said seventeenth day of February, A. D. eighteen
hundred and sixty-two, to the twenty-seventh day of February, A. D.
eighteen hundred and sixty-two.

ARTICLE XI.

The said James H. Hardy, District Judge, as aforesaid, at divers times,
within two years now last past, to the great scandal and detriment of the
administration of justice, has frequently appeared upon the bench and
presided in Court, in his said District, and in the County of Calaveras,
when in a state of gross intoxication ; and especially did preside at said
County of Calaveras, at the trial of said case of McDermott vs. High}', at
the Februar}^ term, A. D. eighteen hundred and sixt^^-two, of said Dis-
trict Court of the Sixteenth Judicial District, in and for the County of
Calaveras, as Judge thereof, when so drunk as to be scarcely able to ar-
ticulate.

ARTICLE XII.

did, wilfull}', unlawfully, and corruptly, delay the business of said Court,
to the great prejudice and injury of parties litigant in said Court at the
term aforesaid.

ARTICLE XIII.

The said James H. Hardy, for two years now last past, he being during
the whole of said period District Judge of the said Sixteenth Judicial
District, has wilfully neglected to perform the duties of said office with
reasonable diligence, thereby causing great delaj^s in the transaction of
the judicial business of said District, and causing great loss, damage, and
inconvenience to suitors before the District Court of said District,
esj)ecially at the August term, eighteen hundred and sixty-one, held in
and for said County of Calaveras.

ARTICLE XIV.

At the July term of the District Court of the Seventh Judicial Dis-
trict, in and for the County of Marin, the said James H. Hard)' did pre-
side over and hold said Court, as Judge. Among other cases then pend-
ing before said Court, was a certain prosecution against one David S.
Terry, for having felonioush' killed one David C. Bi'oderick, in a duel
between them ; that in said case the said David S. Terry had theretofore
pleaded Not Guilty to the indictment found against Iiim for such offence ;
that said case was duly set for trial on the sixth day of July, A. D.
eighteen hundred and sixty, and that at the time fixed for the commence-
ment of the trial of said cause, the witnesses for the prosecution were on
their way from San Francisco, where they all resided, to the county
seat of Marin County, where said Court was held, (the distance between
the two places being about fifteen miles,) and the said James H. Hardy,
acting as such District Judge, then and there, viz : at Sun Eafael, in said
County of Marin, well knowing the premises, and desiring and fraudu-
lently intending and contriving to prevent a fair trial of said cause, and
the due and proper administration of justice therein, unlawfully, cor-
ruptly, and wickedly, before said witnesses were able to arrive at said
Court, (they having been detained b}' a calm while attempting to reach
Marin Count}' by water, as the said James H. Hardy then and there
well knew,) did, on the said sixth da}' of July, A. D. eighteen hundred
and sixty, aforesaid, at the said County of Marin, cause a jury to be
empanelled with indecent haste in said cause, before the hour of ten a. m.
of that day, and then and there forced on the trial of said cause, and
caused the same to be submitted to the jury without any testimony on
the part of the prosecution, and in the absence of said witnesses, or
any of them, to the great scandal and disgrace of the administration of
the law in the State of California.

ARTICLE XV.

The said James H. Hardy, at various times within one year last j^ast,
and especially at the times and places hereinafter mentioned, while
holding the office of District Judge, as aforesaid, and bound by his
official oath to support the Constitution of the United States, has, in
violation of his oath of office, and his duty and obligations as a Judge,
publicly used seditious and treasonable language of and concerning the
Constitution and Government of the United States, and aided, and

abetted, and given comfoi't to. the enemies of said Constitution and
Government, as follows, viz :

First. On or about the twenty-fifth day of June, A. D. eighteen
hundred and sixty-one, at the Town of Jackson, County of Amador,
in the State aforesaid, he, the said James H. Hardy, then being Judge of
the Sixteenth Judicial District, as aforesaid, and divers States of the
United States of America, and divers of the people thereof, being then
in open rebellion against the Government, Constitution, and laws, there-
of, and then seeking to subvert the same by force of arms, and then
actually in arms for that purpose, the said James H. Hardy, well ivnow-
ing the premises, did, then and there, viz : at the said Town of Jackson,
County of Amador, in violation of his official oath and duty as such Dis-
trict Judge, openly give aid and^ comfort to the enemy, and wilfully,
treasonably, and corruptly, aid and abet their treasonable purposes and
practices, by openly and publicly declaring, in the presence and hearing
of divers citizens of the State of California, and giving a toast in sub-
stance as follows : " Here is to Jeff. Davis, (meaning one Jefferson Davis,
then a leader of said rebels, and engaged in said rebellion,) and the
Southern Confederacy," (meaning a certain pretended ".Government
which said rebels had set up in opposition to and defiance of the Con-
stitution of the United States.)

Second. On the same day, and at the same town and county, at a
late hour of ihe night, the said James H. Hardy, District Judge, as
aforesaid, disturbed the public peace by shouting huzzas for said Davis.

Third. On the twenty-sixth day of June, A. D. eighteen hundred and
sixty-one, at or near the Town of Angel, in the County of Calaveras, the
said James H. Hardy, then Judge, as aforesaid, in violation of his official
oath and duty aforesaid, seeing the American flag waving from a flag-
staff, declared, in the presence and hearing of divers good citizens of the
State of California, referring to said flag, substantially as follows: "That
is an old woman's rag, and ought to be torn down."

Fourth. That on or about the twentieth day of August, eighteen hun-
dred and sixty-one, the said James H. Hardy, then District Judge, as
aforesaid, at said Mokelumne Hill, in a public barroom, offered substan-
tially the following toast : " Here is to the stars and stripes ; as to the
Constitution, there is none — the Constitution is gone to hell."

Fifth. On the first day of March, A. D. eighteen hundred and sixty-
two, at said Mokelumne Hill, and immediately after the adjournment of
the February term of the District Court of the Sixteenth Judicial Dis-
trict, in and for said County of Calaveras, the said James H. Hardj^
then District Judge, as aforesaid, used substantially the following lan-
guage, in presence of divers citizens of said county: "My Court has ad-
journed, and I am now off the bench; my mother was born in the South,
and I am a rebel, and I don't care a damn who knows it."

Sixth. That at the City and in the County of Sacramento, on or about
the second day of Api-il, A. D. eighteen hundred and sixty-one, the said
James H. Hardy, being then such District Judge, as aforesaid, in violation
of his said official oath and duty, offered, in a public bar room, substan-
tially the following toast : " Gentlemen, 1 will give you the perpetuation
of a Soutliern Confederacy and the sovereignty of Jeff. Davis ; and may
his name be perpetuated in the same light tliey hold the immortal Wash-
ington."

Seventh. That on or about the twenty-sixth of June, eighteen hun-
dred and sixty-one, the said James H. Hardy, then being District Judge,
as aforesaidj at Chile Gulch, in Calaveras County, in further violation of

his official oath and duty, drank to the health of said JefF. Davis and said
Southern Confederacy.

Eighth. That on or about the first day of Sej)teniber, A. D. eighteen
hundred and sixty-one, the said James H. Hardy, at Mokelumne Hill,
in said County of Calaveras, being then and there District Judge of said
Sixteenth Judicial District, as aforesaid, did, in violation of his said oath
of office and duty as aforesaid, publicly declare, in the presence and
hearing of divers good citizens of this State, and say, in substance, as
follows : That he was a Secessionist, and that if a foreigner should come
before him, holding the same sentiments that he, the said Hardy, enter-
tained, as a man, towards the Constitution and Grovernment of the United
States, and applied for citizenship, he, the said Hardy, as a Judge, would
not admit him to citizenship.

And the Assembly, by protestation, saving to themselves the liberty
of exhibiting at any time hereafter, any further Articles, or other accusa-
tion, or impeachment, against the said James H. Hardy, and of replying
to his answers which he shall make unto the Articles herein preferred
against him, and of offering proof to the same, and every part thereof,
and to all and every other Article, accusation, or impeachment, which shall
be exhibited by them, as the case shall require, demand the said James
H. Hardy may be put to answer the misdemeanors in office herein
charged against him, and that such proceedings, examinations, trials,
and judgments, may be thereupon had as may be according to law and
justice.

SUPPLEMENTAL ARTICLES OF IMPEACHMENT.

The Assembly of the State of California, in the name of themselves,
and of all the People of the State of California, do hereby jsresent ad-
ditional and supplemental Articles of Impeachment against James H.
Hardy, District Judge of the Sixteenth Judicial District of said State,
for High Misdemeanors and Wilful and Corrupt Misconduct in his said
office, and wilful neglect of the duties thereof, and exhibit against the
said James H. Hai'dy, District Judge, as aforesaid, the following ad-
ditional and supplemental Articles of Impeachment :

ARTICLE XVI.

On or about the first day of April, eighteen hundred and fifty-nine, a
certain case, wherein The People of the State of California on the rela-
tion of the Attorney-General of the State, were plaintiffs, and one Hill
Squires was defendant, was pending in the District Court of said Six-
teenth Judicial District, in and for the County of Calaveras, aforesaid,
before the said James H. Hardy, District Judge, at which time, in the
Court House, in the County of Calaveras, said cause came up for hearing
and trial before said Hardy, as such Judge, and in which cause, after the
hearing and trial thereof, the said James H. Hardy, as such Judge, at the
county aforesaid, on or about the first day of June, A. D. eighteen hun-
dred and fifty-nine, did, unlawfully, wilfully, corruptly, and fraudulently,
render judgment in favor of said Hill Squires, the defendant in said
cause, for the unlawful and corrupt purpose of securing his nomination
and election to the office of District Judge of the Sixteenth Judicial Dis-
trict of said State, at the general election, A. D. eighteen hundred and
fifty-nine.

ARTICLE XVII.

At the February term, A. D. eighteen hundred and sixty-two, of the
District Court of the said Sixteenth Judicial District, in and for the
County of Calaveras, a certain case was pending and at issue in said
Court, the said James H. Hardy being then and there the Judge thereof,
as aforesaid, between J. R. Robinson and others, plaintiffs, and one
George Leger and another, defendants, and the said James H. Hardy,
acting as such Judge, then and there did, unlaAvfully, wilfully, and cor-
ruptly, continue, and cause to be continued, the said case to the next
term of said Court, then and there well knowing that there was no legal
or sufficient cause for such continuance, with intent to hinder, delay, and
defraud the plaintiffs, and out of favor and partiality to the defendants
in said suit.

ARTICLE XVIII.

That, at the August term, A. D. eighteen hundred and sixty-one, of the
District Court of the said Sixteenth Judicial District, in and for the County
of Calaveras, a certain cause was pending and at issue in said Court, the
said James H. Hardy being then and there Judge, as aforesaid, between
one E. Mercier and another, plaintiffs, and W. C. Denny and others,
defendants; and that on the fifteenth day of said August a motion was
there made by the plaintiffs in said action to change the place of trial of
said case to some other county in said State of California, which said
motion was made at the Court House, in said County of Calaveras, where
the term of said Court was being held by the said James H. Hardy,
District Judge, as aforesaid, and that the said James H. Hardy, then and
there, wilfully, unlawfully, and corruptly, refused to decide, and ab-
stained from deciding, the said motion, for the unlawful and corrupt pur-
pose of influencing and securing the votes of certain naturalized citizens
residing in Calaveras County, and certain voters therein residing, at the
then next ensuing general election to be held in this State, to the sup-
port of the candidates of a certain political party commonly known as
the Breckinridge party, of which party the said James H. Hardy was
then and there a member.

ARTICLE XIX.

The said James H. Hardy, District Judge of said Sixteenth Judicial
District, at the February term, A. D. eighteen hundred and sixty-two,
of his said Court, held in and for the said County of Calaveras, while
presiding as such Judge in a certain action then and there tried before
him, as such Judge, wherein one W. F. McDermott was plaintiff, and
one William Higby was defendant, did, falsely, wilfully, unlawfully, and
corrupt!}^, find for the plaintiff, and against the defendant, and render
judgment for the plaintiff upon the issues raised by a certain answer in
abatement filed by the defendant in said suit, to which the plaintiff in
said suit had replied, the said Hardy then and there well knowing said
decision and finding to be unjust and unlawful, which said judgment was
so rendered and decision made for the unlawful and corrupt purpose of
bringing said cause to trial upon complaint, answer, and replication, on
the merits thereof, thereby to consume and occupy the time of said
Court, so as to prevent the trial of a certain other suit then at issue and
before said Court and on the calendar thereof for trial, wherein E. Mer-
cier et al. were plaintifts, and W. C. Denny et al. were defendants, it
being then and there important for the interests of said E. Mercier et al.,

plaintiffs, as aforesaid, that they should have a continiiaBce of said cause
until the then next term of said Court, and they having no sufficient or
lefjal ground for such continuance — all of which he, the said James H.
Hardy, then and there well knew, and all of which the said James H.
Hardy, then and there acting as such District Judge, as aforesaid, un-
lawfully and corruptly did, out of favor and partiality to the plaintiffs in
said last mentioned cause.

ARTICLE XX.

The said James H. Hardy, at the August term of the District Court
of the said Sixteenth Judicial District, held in and for the County of
Calaveras, aforesaid, in the year of our Lord one thousand eight hundred
and sixty-one, he being District Judge of said District, and presiding at
the said term, did, wilfully, corruptl}'", and in gross violation of his duty as
said Judge, neglect and omit to perform his duties of said office, and
cause great delays in the business of said Court, then and there pending
therein, and great cost, trouble, and inconvenience to suitors then and
there before said Court, and great detriment to the public welfare, by
abandoning his said official duties on the thirtieth day of August, A. D.
eighteen hundred and sixty-one, and going to divers places in said Cala-
veras County, for the purpose of making political .speeches, and failing
and neglecting to appear in, or to hold said Court, during the remainder
of said term, there being several suits set and ready for trial on that
day, and the succeeding day of said term, and a jury being then and
there in attendance, whereby said suits were necessarily continued until
the next term of said Court.

ARTICLE XXI.

That, unmindful of the solemn duties of his office, and contrary to the
same obligations by which he stood bound to discharge them faithfully
and impartially, and without respect to persons, and in utter contempt
of his ju'licial character as District Judge of the Sixteenth Judicial Dis-
trict, as aforesaid, he, the said James H. Hardy, while District Judge,
aforesaid, at a term of the District Court, held in and for said Calaveras
County, in the month of May, A. D. eighteen hundred and fifty-nine,
and at other times, as hereinafter set forth, was guilty of unlawful and
wilful misconduct, in his said office committed, as follows, to wit :

First. The said James H. Hardy, at the term of said Court last above
mentioned, to wit : in said County of Calaveras, on or about the four-
teenth day of May, A. D. eighteen hundred and fifty-nine, did, as such
.fudge, as aforesaid, scandalously exhibit an indecent solicitude for the
interests of the defendants in the suit of Foster vs. Fritz et al.. mentioned
in the first Ai'ticle of this Impeachment, unbecoming and highly disgrace-
i'ul to the character of a Judge, as it was subversive of justice.

vSecond. The said James H. Hardy, at the term of said Court, and on
the day and year aforesaid, in said County of Calaveras, did, indecently
:ind scandalously, and of his own motion, advise one S. W. Brockway,
^hen and there an Attorney of said Court, and of Counsel for defendant
in said last mentioned suit, to file a statement for a new trial in said
cause, (judgment having previously, at said term, been rendered against
the defendants therein.) and did then and there, prior to the filing of such
statement, and in advance of the heai'ing of said motion, promise said
Brockway that he would grant a new trial in said cause.

Third. That subsequently, at the term of said Court, held in and for
said County of Calaveras, in the month of November, A. D. eighteen

hundred and fifty-nine, the said James II. Hardy, District Judge, as
aforesaid, a motion for a new trial having been made and a statement
filed in said last mentioned cause, did. scandalously and indecently, confi-
dentially, privatel}-, and aside, advise and direct one Allan P. Dudley,
then and there an Attorney of said Court, and of Counsel for the plaintiff
in said cause, not to file a brief on said motion for a new trial, and that
he was going to decide said motion in his (the said Dudley 's) favor, in
consequence of which, said Dudley omitted to file said brief and to argue
said motion, and did, then and there, at said term of said Court, decide
said motion for a new trial in favor of the defendants in said cause, and
against said Dudley, granting, by his said decision, a new trial in said
cause ; all of which the said Hardy, then and there, did, wilfully and un-
lawfully, and with the intent to deceive and mislead the said A. P. Dud-
ley, Counsel, as aforesaid.

Fourth. That the said James H. Hard}*, while District Judge, as
aforesaid, has indecently and scandalously, and with corrupt intent, here-
tofore, to wit: in said Calaveras County, on or about the fourteenth day
of Ma}', A. D. eighteen hundred and fifty-niue. and at other times, while
such District Judge, tohl and advised the said A. P. Dudley, and the said
S. W. Brockway. andone William L. Dudley, practising Attorney's before
said Court, that whenever be had any discretion to use, as such Judge, he
should use such discretion for his friends.

Fifth. That, at the February term of said Court, held in and for the
County of Calaveras, aforesaid, A. D. eighteen hundred and sixty-two,
the said James H. Hardy, being then and there District Judge of said
District, and presiding at said term of said Court, did, indecently and
scandalou.sly, and out of wilful and unlawful favoritism and partiality for
the plaintiffs in a certain cause then and there pending in said Court,
wherein one E. Mercier and another were plaintiff's, and one W. C.
Denny and others were defendants, unlawfully urge and solicit one Wil-
liam L. Dudley, then and there a practising Attorney in said Court, and
engaged as Counsel in other causes then and there pending, to expend
and consume as much time as possible in the trial of such causes, in
order, unlawfully, wrongfully, and fraudulently, to effect the continuance
of said cause. E. Mercier et al., ?-s. AV. C. Denny et al.. until the then next
term of said Court, it being important to the interests of the said E.
Mercier et al., plaintiffs in said cause, that the same should be continued
until the said next term of said Court, and they having no sufficient or
legal ground for such continuance ; all which the said James H. Hardy
then and there well knew, and all of which he then and there did, for the
unlawful and corrupt purpose of subserving the private interests of said
E. Mercier et al., to the great wrong and injury of the public welfare,
and to the great oppression of the defendants in said cause; all of which
is to the great scandal and disgrace of the dignity and purity- of said
office, of great detriment to the public good, and of corrupt and evil
example.

ARTICLE XXII.

The said James H. Hardy, in entire disregard of his duty as such
Judge, as aforesaid, and in violation of public decency, order, and good
morals, has, during two years now last past, and while holding said
oflSce, been in the frequent and common habit, while holding the terms
of the District Court of the Sixteenth Judicial District, in and for the
County of Calaveras, and in and for the County of Amador, of becoming
grossly intoxicated, and exhibiting himself to the public, as well by day
as by night, in a state of gross drunkenness.

SENATOR PORTER SWORN IN.

Senator Kutz. — I would announce that Senatoi* Porter has arrived, and
move that the oath be administered to him.

The Presiding Officer administered the oath to Senator Porter.

A FORMALITY WAIVED.

Senator Be Long. — I would like to have the Secretary enter upon the
record, that the Respondent waives all informality in the service of the
Articles of Impeachment.

T]Le Attorney- General. — The appearance of the Respondent here is suffi-
cient to constitute a waiver of any formality of that kind.

Judge Uardy. — Mr. President : Since this question has been raised — if
there is any question about it — I desire to state to the Senate, that I
appear here in person, and waive every possible formality which may
arise in this case. I desire to appear here, and investigate this case to
the farthest limit, without taking advantage of any technical rules or
terms which are not strictly calculated to insure my rights.

Mr. Williams. — If there is any question as to the Respondent having
waived any technical rule in regard to this particular matter — if any
member of the Court is desirous to have any further waiver than has
already been made, and have it placed upon the records of the Court —
he may draw it up, and we will sign it, and ourselves ask to have it
placed upon the minutes.

CONCERNING COUNSEL FOR THE PROSECUTION.

Senator Quint. — I desire to ask a question of the President and the
members of the Court. There have been, as I understand, three Coun-
sel, assigned by the Managers, to appear on the part of the Prosecution,
and conduct this case upon that side in the Senate. Now, 1 have ex-
amined the law, and I cannot see any authority whatever for the ap-
pointment of the three Counsel, who have been selected by the Commit-
tee from the Assembly, to conduct the prosecution of this case before
this Senate. As I understand it, we have elected an Attorney-General
for the purpose of appearing and prosecuting all cases of this nature —
all cases of this character. And under the existing condition of our
Treasury, I think that it is necessary for this body — as it should have
been considered by the Assembly itself — to examine and consider care-
fully the condition of that Treasury before a great and needless expense
of this kind is incurred. Now, there can be no Counsel engaged here,
or employed for the prosecution of this case, without involving great
cost and expense to the State. And I rise at this time, for the purpose,
if possible, of curtailing as much as may be the expenses which may be
incurred in the investigation and trial of this case. I merely make these
suggestions now, for the purpose of drawing out and hearing from other
Senators their views upon this question. I think that this employment
of outside Counsel — so many of them — is involving the State in an ex-
pense which is entirel}^ unnecessary and uncalled for.

Manager 3IcOullough. — Mr. President: The Assembly have appointed
five gentlemen to act as Managers of this Impeachment trial. The reso-
lution appointing these gentlemen as Managers exjjressly gives them the
power, if they see fit, to retain Counsel in addition to the Attorney-Gen-
eral. Acting under that resolution, they have seen fit to retain other

Counsel. I do not know Avhether this Court will go behind the resolu-
tion of the Assembly itself, which is the prosecuting body, to ascertain
or inquire of the Managers whether they have exercised that power
rightly. As to the pay of Counsel, that will be another subject, for the
consideration of the Legislature hereafter, I apprehend.

The Presiding Officer. — The Eule of the Senate allows both parties to
appear here by Counsel. I suppose that this right exists, unquestiona-
bl}', without the Senate adopting any rule on the subject at all.

Senator Merritt. — I should like to have this matter thoroughly under-
stood before we proceed, because we may be called upon to make an ap-
propriation, to pay these Attorneys, before the trial is closed. I do not
rise to state that I have any objection to their being employed ; but I
wish to understand perfectly their position before we proceed with the
case. I would like to know if the Assembly have authorized the Man-
agers to employ as many Counsel as they please. I know that, under
some circumstances, it would be altogether proper, and perhaps neces-
sary, to go outside and employ Counsel to aid in the conduct of the
prosecution of such a case as this. From my acquaintance with the abil-
ity of the Managers in this case, I know that there is no absolute neces-
sity for such a proceeding here. We are sure to be called upon to pay
these gentlemen hereafter, and I do not wish then to treat them with
any illiberality, any more than I would desire to treat them with any
discourtesy now. I trust that they will understand my objection, and
my motive for speaking as I do.

The Presiding Officer. — I would suggest to the members of this body
that this is a question which pertains to the privileges of the other
branch of the Legislature entirely.

Manager McOullough. — So far as the Assembly is concerned, the Man-
agers have settled this matter for that body. They have selected the
Counsel who are now of record in this case ; and if this hodj does not
intend to go behind the resolution of the Assembl}^, we think we have
settled the matter absolutely. And we announce that we are ready and
willing and prepared to proceed with the trial of this case now.

Senator Quint. — I suppose that this body, sitting as a Court, has most
unquestionably the right, under the law, to determine what Counsel
and what number of Counsel shall appear and prosecute in a case of this
nature. We are sitting as a Court, and, as a Court, we ought to have
the right, most unquestionably, as it appears to me, to detei-mine whether
more than the legall}^ elected and legally constituted Prosecuting Attor-
ney shall appear here, or whether others, outside Counsel, shall be re-
tained, at a great cost and expense to the State, to appear and engage
in the conduct of the Prosecution also. It is merely for the purpose, Sir,
of saving to the State the cost and expense which will attend upon the
prosecution of this case, by and through this employing of outside
Counsel, that I raise this question at this time. It is not because I have
any objection whatsoever to the particular Counsel who have been named
by the Managers.

For the purpose of investigating this matter, I would move that a
Committee of three be appointed from this body, to report to the Sen-
ate, on to-morrow morning, as to the necessity or occasion that exists
for the Prosecution being represented here by employed or hired Coun-
sel ; and also to report upon the cost or expense of these Counsel, if it
is deemed projier to employ them. If that Committee should report ad-
versely to the necessity of having outside Counsel hired to act in con-

nection with the Attorney-General, I, for one. should be for sustaining
the report of that Committee.

Senator De Lonrj. — I do not see how we can get along in that way. I
think the other House has a right to employ as many Counsel as they
please, in the trial of this case. We cannot determine how many they
shall employ, or anything of the kind.

Senator Parks. — I do not believe in the propriety of this motion. This
appears to me to be a matter entirely with the other House ; and if a
question of this kind is to come up at all, it should be raised in the As-
sembly. The House have a right to direct the Committee as to what
they shall do in regard to this matter ; and the Assembly has undoubt-
edly the right to make the Committee reconsider any action to which
they may object. But for this body to inquire into a matter of this kind,
seems to me altogether out of place and character. I do not think that
we have any right to do any such thing.

Senator De Lonrj. — I am informed that the Assembly have just passed
a resolution inquiring into this matter, and calling upon the Committee
to report concerning it.

Senator Parks. — I supposed that that would be the proper course to
pursue, and I hope that the Senator from Tuolumne will withdraw his
motion.

The Presiding Officer. — No motion was made — only a suggestion.

Senator Quint. — I suppose that this body, sitting as a Court, has un-
questionably the right to determine the rules which shall govern in the
trial of this case. We have a right to determine whether we will hear
one, two, or more Counsel. There is no arbitrary rule — there is no rule
fixing, by statute, a limit to our authorit}" in that respect. We have the
right to establish, by rule, what shall govern us in the trial of this case.
I say there is no law that I have yet been able to find — and if there is,
I should like to be furnished with that law — which authorizes or empow-
ers the Managers on the part of the Assembly to employ outside Coun-
sel in a case like this ; especially when we have Counsel elected for that
very identical purpose. It seems to me that the employment of these
Counsel would be practising economy in rather a wrong direction.

Senator Merritt. — So far as our power would go, it extends to saying
who shall appear. But it seems that the Assembly have authorized
their Managers to retain, if they see fit. Counsel in this case. The Man-
agers come here provided with assistants, in the shape of a number of
reputable gentlemen, honest men, and good lawyers. I do not know
how we can ot)ject to them. As to the matter of economy in expense,
so far as these Counsel are concerned, that is not a matter which is
exactly fit to be discussed now. unless they desire it. We may discuss
that matter when the question of their pay comes up. If they feel
disposed to take their places here as Counsel in the prosecution of this
case, and take their chances as to the amount of pay which vrill be fixed
for them hereafter, why, that is their lookout, and not ours.

The Presiding Officer. — What is the proposition on the part of the
Managers, as to the opening of the case?

Manager McCullough. — On behalf of the Managers, Mr. William Higby
will open the case.

The Presiding Officer. — The Court is in readiness to listen to the open-
ing of the Counsel on behalf of the Prosecution.

OPENING FOR THE PPtOSECUTION

Mr. Hitjhy said :

Mr. President : — The highest Legislative capacity of the State is now
constituting a judicial tribunal of a peculiar character, and one that is
very seldom called into exercise. It is a body supreme in its action,
whose jurisdiction is original, and from whose judgment there is no
appeal. It is also peculiar in its power ; in that, while its powers are
great in giving ample protection to the State, and to the people of the
State, it has no power over human life, over the liberty of the person, or
over his property. Its peculiar province and power is, that where men
are elevated to official position, and abuse that trust which is reposed in
them, and become burdensome and oppressive to the people, it has the
power to take that authority away.

It is peculiar, again, in that, while it is in character partially criminal,
unlike other judicial bodies, where offences must come singly and be
tried singly, before those bodies, here offences for years may be accumu-
lated in one prosecution.

The provision is wise, from one fact which I have just stated; that
although so powerful in its effects, it is yet so harmless upon the
person.

The co-ordinate branch of this body, in their Legislative capacity,
have found Articles of Impeachment against James H. Hardy, the Dis-
trict Judge of the Sixteenth Judicial District of this State; and have
preferred those Articles, under the Constitution and the laws control-
ling them in their action, to this body, sitting as a judicial body, to try
James H. Hardy upon these Articles of Impeachment.

It becomes our province, on the part of the People and of the Assem-
bly, before commencing to take the evidence in this case, to give a sim-
ple, unadorned, brief statement, of the testimony that we expect to in-
troduce.

It is true. Mr. President, that these Articles, in a great measure, already
map out the evidence that will be introduced. Yet much of the detail,
that necessarily could not enter into the Articles, will be given in the
statement, in order that it may be more fully and completely understood
in advance by this judicial bod}-, as the evidence shall come from time
to time from the witnesses.

It will be found, upon an examination of the statutes of the session of
the Legislature of eighteen hundred and fifty-nine, that the Fifth Ju-
dicial District of the State of California was at that session divided;
that the Counties of Amador and Calaveras were taken from that Dis-
trict, and were constituted into the Sixteenth Judicial District; that
early in the year — and I think as early as February — if not, certainly as
earl}- as May — an appointment was made to fill the office of Judge for
that District, and James H. Hardy became the incumbent, by appoint-
ment of the Executive of the State.

It will be found, upon an examination of the records, that previous to

the first of June, eighteen hundred and fifty-nine, one term of the Court
was held in the Sixteenth Judicial District, in the County of Calaveras ;
if there were not two terras held previous to the first of June of that
year.

The charges that are preferred in these Articles, the offences that are
charged to have been committed, seem to have commenced nearly or
quite coeval with the commencement of the judicial career of Judge
James H. Hard}-, in that District.

The first Article speaks of a case wherein one Geri'ish Foster was
plaintiff, and Fritz and others were defendants ; and among the defend-
ants, Cameron and Lightner were named in the suit. I speak of these
other names, in order tbat the members of this judicial body may un-
derstand and keep the connection, as I shall indicate the evidence that
will be introduced.

This case was tried in the May term, about the middle of the month,
in eighteen hundred and fifty-nine. It was a case wherein promissory
notes were introduced in evidence on the part of the plaintiff'. Objec-
tions were raised, on the part of the defendants, to their being introduced.
They were introduced as evidence, however, and when the plaintiff was
through with his testimony, the Counsel for the defendants moved for a
nonsuit. The motion was overruled. The Counsel became somewhat
vexed by the course of the Court, and, immediately after the adjourn-
ment, the Judge leaves his chair, and comes and takes the Counsel for the
defence by the arm, and says to him : " You are a damned fool. I know
better what your clients want than you do. They are friends of mine."
" I may be a damned fool, and others may be fools," is the reply. '• But
your ruling was wrong. That evidence ought not to have been intro-
duced, and I ought to have had a nonsuit." " My ruling was right," said
the Court. '• I tell you these defendants are friends of mine. Lightner
is a friend of mine." (And. by the way, Lightner is one of those defend-
ants whom I named in the first instance.) Judge Hardy then went on
to say : " I know what they want; a new trial is worth three nonsuits."
"Yes; if we can get a new trial." "You file your statement, and you
will get a new trial, and it will hang up this case two or three terms.
Your clients want time." " Yes," said the Counsel, in reply, "I am aware
that the}" want time, if they can get it." " "^Yell, you file your state-
ment, and you will get your new trial." The Counsel, in accordance with
the recommendation of the Court, and the voluntary offer on his part to
give them a new trial, files his statement for a new trial.

Mark you, the Court says to the Counsel : " Now, don't you say a word
about this to anybody. If you do, I will swear it is a damned lie, and
not what I stated to you."

A statement is made in the case, and settled. The case goes over the
August term, until November. The terms come in May, August, No-
vember, and February, in the County of Calaveras. This trial was at
the May term. This language is used immediately after the trial at the
May term. The motion for a new trial was not heard until the Novem-
ber term.

Now mark, in reference to this same case : Two o-r three days pre-
vious to the hearing of this motion at the November term — six months
having elapsed — this same Judge goes to the Counsel on the part of the
plaintiff, in whose favor the judgment had been rendered at the May
term, and says to him, " Look here I you need not argue that motion for
a new trial in the case of Foster vs. Fritz and others. The argument
that you made during the trial was convincing to me, and I have seen

nothing to induce me to alter my opinion. You need not file any brief,
and you need not argue the matter. I shall not grant the motion. But
don't say anything to the Counsel on the other side about this matter;
for I have been fooling him."

The Judge goes into Court, and when the motion is brought up, the
Counsel for the plaintiff wishes to argue it. " No," says the Counsel for
the defence; "lam not going to argue it; I am not going to file any
brief" " Well, I am going to argue it," says the Counsel for the plain-
tiff. "Well, I shall not answer you, if you do." says the Counsel on the
part of the defence. " Ver}" well ; if you will not answer me, I will not
argue the matter," says the Counsel on the part of the plaintiff. So the
case was submitted.

True to his first promise to the Counsel for the defence, the Judge
grants a new trial. True to his friends, Lightner and others, he gives
them a new trial, and protracts the trial of this case, and prevents the
plaintiff from getting any judgment that is worth anything.

In the meantime, it appears, some outside pei'sons purchase up the
claim of the plaintiff — I believe through the intercession of the defend-
ants— and the matter is settled.

I have given, I think, the material portion of the proof that will be
introduced in reference to the charge in this Article.

And what I have said embraces the charges in the two Articles — Arti-
cle First and Article Second.

Article Third has reference to a case that was brought on relation of
the Attorney-General, in behalf — as the name may not appear here, I
will state it — of D. L. Mulford, the then Sheriff" of Calaveras County,
against one Hill Squires.

The facts, as they will appear, were simjjly these :

At that same session of the Legislature, of eighteen hundred and fifty-
nine, a law had been passed giving to Calaveras County — and I do not
know but to two or three other counties in the State, but to that county
certainly — Township Collectors of foreign miners' licenses, business
licenses, and I believe, some other collections. This law took away these
duties from the Sheriff, who was formerly ex officio and by virtue of his
office the Collector of these licenses and the Collector of the taxes of the
county. But the Legislature authorized the Board of Supervisors to ap-
point, for each township in the county, these Collectors, to be ajipointed
immediately before the next election. And the Board of Supervisors in
that County of Calaveras had appointed these Collectors for the different
townships, "and Mr. Hill Squires was appointed for Township Number Six,
in which Mokelumne Hill is situated. For the purpose of testing the con-
stitutionality of these appointments — as one of them was to be a settle-
ment as to all — a legal proceeding was entered into, or commenced, in
which the Attorney-General appears as the plaintiff, on the relation of
The People, and 3Ir. Squires appears as the defendant. This suit was in-
stituted for the purpose of settling the question as to whether the Legis-
lature had the power to create these township officers, and to take the
authority to make these collections a^xay from the Sheriff" previous to the
expiration of his term of office ; whether the Legislature could annihilate
the Sheriff's prerogatives in such a manner, and at such a time. The case
was brought before Judge Hardy, at chambers, and argued, and the de-
cision of'the Court was in favor of the defendant, Mr. Hill Squires —
defeating the claim of Mr. Mulford, the Sheriff.

I will state, further, that this case was appealed to the Supreme Court,
and the decision, as given by the District Judge, was there affirmed.

Something comes to light outside. I believe that I appeared for the
defendant in the argument of the case, but I do not know whether or
not I was in the State w^hen the judgment was given. I know that I
was then about leaving the vState. But the transaction which I am about
to relate, was entirely unknown to me.

Mr. Brockway was Counsel of record for the plaintiff, and I do not
know but that Dudley & Adams were also. They appeared in the case,
as I understood, although they were not present at the argument. Mr.
Brockway and mj^self appeared before the Judge, and argued the case.

Proof will be introduced of this character: That after the argument
of this case, and when the Judge had decided it individuallj^ in his own
mind, and after he had prepared an opinion to back up his decision, he
takes one of the Counsel, and has a private walk with him. While they
are walking, they have a conversation together ; and while they are
having this private conversation, the Judge takes from his pocket an
opinion which he had prepared. J^^aming this ease, he said, " I have de-
cided this case in favor of Mulford, or, at least, in your favor." He then
remarked that he was afraid that it would not be a popuhir decision, and
he asked the Counsel the question as to what he thought its effect was
going to be on the popular mind. The Counsel tells him, in reply, that
if his opinion is to be made or influenced on the ground of popularity,
that his decision in this case would be an unpopular decision ; that the
law, as made by the Legislature, is popular in the county ; that the citi-
zens want these township officers. Says Judge Hardy, " How can I get
over a certain decision that is cited on the part of the plaintiff?" The
Counsel appealed to, replies. •■ Jjet me have 3-our opinion ; I can remodel
that portion of it, so that we can get around that decision." The Coun-
sel says that he takes the opinion and remodels that portion of it ; re-
verses the original decision ; and gives the case in favor of the defend-
ant. And the Counsel states that when the opinion is filed, the language
that is used in the opinion is the language which he employed when he
remodelled and reversed the original opinion, and gave the decision in
favor of the defendant.

Now, in reference to the popular vote : I take the three Articles in a
word.

James H. Hardy was holding his office by appointment. At the Sep-
tember election, then following, he wanted to be chosen his own succes-
sor, for his appointment would only carry him to the first general elec-
tion.

In the Foster case, he hushes up the Counsel on the part of the de-
fence. Nothing is said to the Counsel on the part of the plaintiff until
we get clear by the September election, and come down to the No-
vember term. It is then that he is playing Avith the Counsel, backward
and forward — for he has then got his seat, by election, for the next six
years.

Embracing the three Articles, the course that is pursued is mapped
out by the intimation in the third case that the object of this action is
to secure his nomination as District Judge, and the popular majority
vote.

The next Article. They are not in the order of time with our calen-
dar, but I take them in the order in which they appear in the Articles.
The next Article has reference to a case that was on the calendar for
trial at the February term, eighteen hundred and sixty-two. It is the
case of Mercier vs. Denny et al.

Mercier is a man who lives about four miles south of Mokelumne Hill,

and who has a very hcautiful garden of fruits and vegetables. He has
lived there for years. The miners have been very troublesome to him,
trying to get in upon his grounds, and take them up for mining pur-
poses; and several suits have been commenced by him" against different
parties. Mercier and others commenced suit against Eobinson and
others, to obtain an injunction from the Court. "The case was tried.
That is a year ago, or a year and a half, or two years, ago. The case
was tried, and Mercier was defeated. The defendants got a judgment.
The injunction bond had upon it, as securities, Leger and Meuuier.
George Leger is one of the parties named here. Meunier does not
aj^pear here, I believe. Robinson and others turn round and sue Leger
and the other on the injunction bond. There had been one trial, and
Leger had a judgment against him of some five hundred dollars. In
that ease, a new trial was given by the Court to Leger and the other;
and this trial was now pending at this term of the Court — at the Febru-
ary term, eighteen hundred and sixty-two. Mercier has a suit also, at
the same time, against Denny et al., who had become the successors in
the same claim of Eobinson et al. ; and he had also obtained an injunc-
tion out of this same Court against Denny and others. This case had
been pending for some time.

This case mentioned in the Fourth Article, is the one of Mercier et al.
vs. Denny et als. It seems that after this case was sot for trial, it was
discovered by some of the Counsel for the plaintitf that the replication
which they had put into the answer was very defective. The danger
was that the defendants would get judgment on the pleadings. One of
the Counsel for the plaintiff's made a motion to amend tlie replication.
The motion was opposed. The Ilules of the Court required that if there
be any amendment to the pleadings, it shall be on the lii'st week of the
term, before the case was set. After a case is set for trial, and after a
certain time has elapsed, there can be no amendment made to the plead-
ings. This case was put in that peculiar position that either there must
be a motion to put off the case upon a showing, or else they must go to
trial without any intervening motion. And the danger in proceeding to
trial was, that the plaintiffs would be defeated on the pleadings. On
motion, time is given — I think five days is given — in which the plaintiffs
are to be heard on showing cause for amending their pleadings. Now
commences the exhibition of solicitude on the part of this Court. Mer-
cier is tlie Court's very warm and ardent friend; hoAv he has made him
such — whether he has been a liver upon this man Mercier — whether there
is a peculiar sympathy by nature between them, that renders the Court
willing to grant this largest discretion — or what the cause of extraordi-
nary attachment may be between them, I will leave it for the evidence
to indicate, as it may be introduced. But that there was an extraordi-
nary, indecent, unbecoming, and outrageous solicitude exhibited in this
case, on the part of the Court, there can be no question. The Judge
leaves his bench and goes to Counsel then employed in the case, and re-
quests him to occupy all the time ho can in the trial of the case that was
then going on before the Court, (it was now a recess;) and also, to oc-
cupy all the time he can in other cases, saying that Counsel can speak as
often as the^^ please, on a motion, and two on a side if they choose. He
says, "I must have time." "Yes," replies the Counsel, "I will occupy
all the time that I think my client needs." Said the Judge, '-I suppose
that you and I understand each other." "Yes," said the Counsel, "I
suppose we do." "I can talk to you," said the Judge. "Yes," replied
the Counsel. "But," said the Counsel, "I don't understand what you

mean by saying that you want this time ; I wish you would particularize
about what you want." The Judge replied, " I don't want to hear that
motion in the case of Mercier vs. Denny, and I don't want to try that
case at this terra. How, I suppose you understand me?" "Yes," was
the reply, "I do — in j^art." The ease goes on. All the time necessary
was expended in the trial of that case, and in the trial of the other cases
that followed, but which preceded the motion that the Judge wished to
get rid of at that term of the Court. And in consequence of the delays
that were used in that case and in others, the hearing of the motion in
the case of Mercier vs. Denny was not reached at that term of the
Court.

Another case which I have named, and named in advance, bo that its
connection might be seen, that of Eobinson vs. Leger et al. The Judge
exhibited great solicitude that that case also should go by the term.
Why ? Leger, one of the parties, is a particular friend of the Court ;
one of those "friends" for whom, in his own language, the Judge is go-
ing to give the benefit of all his discretionar}- power as a Judge. Leger
is the man who is sued on the injunction bond. One judgment had been
obtained against him, amounting to five hundred dollars, and a new trial
had been granted. And says the Court : " Why, Leger, you will have
to pay something, ultimately, but the longer the case can be staved off,
the better for you." It seems that the Counsel that Leger then had,
wanted to go to trial ; probably thinking that he could defeat the case
and save his client. The Court seemed to think otherwise; for, in his
earnest solicitude in the matter, he goes to Counsel and asks, " Can you
receive a fee in the case of Eobinson et al. vs. Leger, on the side of the
defendants ? " The Counsel answers, " I will see." " If you can," said
the Judge, "go to a certain place and you will find your man." Soon
after, the Counsel meets with Mr. Leger. "Have you seen Mr. Hardy?"
is the inquiiy. The answer is, " Yes." " Come in here, then," was the
rejoinder. The Counsel obeys the invitation, and Leger then asks him
what his fee is. The Counsel says, " Fifty dollars ;" and Leger pays it,
and says, " I want you to attend to that case." The Counsel goes into
Court, and when the question comes up upon the calling of this case,
Allan P. Dudley appears for the defence. Says Mr. Brockway, in con-
versation with the Judge, after he ascertains that Mr. Dudley is on that
side of the question : '• 1 won't submit to this ; I shall oppose it." Says
the Judge, " What do you want to oj^pose it for? What do you care?
Let him go. The sooner he kills himself, the better for 3'ou." And when
Mr. Dudley comes into Court and offers himself there, Mr. Adams, who
was associated with Mr. Brockway, raises an objection, and the Court
holds that Mr. Dudley can appear there, and he does aj^pear; and the
case is put over the term.

But this does not close the earnest solicitude on the part of the Judge
in reference to the other case — that of Mercier vs. Denny et al. So far
as the intimacy of this Judge with these different men is concerned, let
that appear in evidence. Mr. Leger keeps a liquor saloon, the next door
to the Court House ; where — of which we have overwhelming evidence,
that cannot be disputed — there is scarcely ever an intermission, for five
or ten minutes, of the Court, but the Judge drops so easily in, there to
drink at his friend Leger's bar; there he is almost a constant tijspler;
there he is to be found whenever there is an opportunity to be free from
his Court. The intimacy of these parties can be shown and established
here, beyond peradventure.

Here is another of those beautiful consistencies, illustrating the same

tenor of mind and of conduct. The case of McDerniott vs. Higb}^ was
tried at the same term of tlie Court. On the twenty-sixth day of Feb-
ruary— I think it was — in the evening, just before the close of the Court,
the question was settled in that suit, on a "plea in abatement," as it is
termed. It was called up by the Counsel for the plaintiif. The plea in
abatement was to this effect :

There had been a previous suit between some parties in the same
Court, and in reference to the same subject matter. It had been dis-
missed, or a judgment of dismissal had been entered, on the failure of
the plaintiff" to appear ; and from the judgment the plaintiff had appealed
thus far ; he had filed his notice of appeal in the Clerk's office, and
served his copy upon the defendant and the defendant's Counsel. The
motion was brought up by the plaintiff", and the facts as alleged in the
pleading were admitted, with this exception ; the plea stated that the
case was then pending in the Supreme Court, on appeal. It was admit-
ted by plaintiff"s Counsel that the parties were the same, and that the
subject matter was the same in the same Court, and that a notice of aj)-
peal had been filed and had been served. But he denied that the law was
good — that it really was an appeal. All these facts that I have stated,
were admitted by Counsel, and the case went to the Court upon that
admission. The Court held that the plea was not good. There were
yet three days before the term would expire. This was on the twenty-
sixth of Februar}'. The twent3^-seventh was Thursday, the twenty-
eighth was Friday, and Saturday was the first day of March. On the
next Monday his term would commence in Amador. The Judge held
that the plea was not good, drawing the defence to trial. This motion
in the Mercier case was just behind. Get this case of McDermott vs.
Higby out of the waj^, and then this motion that he seemed to dread so
much, that he wanted to stave off, in order to save his friend Mercier,
must be disposed of by him, sitting as Judge. " Well, but on this mo-
tion and argument, you, but a few days ago, held, in a precisely similar
ease," says the Counsel for the defence, " that, by filing a notice of ap-
peal, and serving it, the case was taken away from the jurisdiction of
this Court." The only answer that is made — after reviving the recol-
lection of the Court, of this contrary decision — was, that that was on a
motion for a new trial, and after the case had been appealed to the Su-
preme Court. " This is another case, and I have the jurisdiction of it."
But the mighty and real argument was, that the case which I have
stated, was behind.

We go on to the trial. The jury is empanelled on Thursday morning.
The plaintiff goes through with his evidence. He gets through, and
rests. A motion is made for a nonsuit. The motion is overruled by the
Court. I believe they were through with the testimony on the first day,
if I mistake not. There were yet two days to spare. Defendant goes
on with the evidence on the part of the defence. But, previous to that
— or, I think it was after, as we were progressing on the part of the de-
fence, very strange rulings are made — as they appear, not only to the
defendant, but to the Counsel for the defendant — ruling out testimony
upon certain allegations in the answer. The Counsel for the defence goes
to Judge Hardy at one time, when he is off the bench, and says : " What
do you mean by such ruling? What does all this mean ?" The Judge
replies, " Bill, I must have time. Haven't I told you. Bill, that I miist
have time ? " " Well, that is all very well," is the reply, " provided yon
don't hit me. It seems to me that you are driving my friend Higby, ^^ u.>

is on the defence, into the Supreme Court, by your rulings. You are
making somebody else suffer, all this time." To this the Judge replies :
" What difference does it make to you? You have got the thing dead,
on that plea in abatement. You are perfectly safe in your case." And,
as it will appear in evidence, this statement was made to me, and there
was some excitement manifested in regard to it, I presume, as I was the
defendant in the case. It will appear, too, that a certain affidavit was
filed in the case, on the next morning. I will state the reason for that.

On Friday, when the defence asked to introduce certain evidence, it
was objected to by i^laintift's Counsel. The Judge says, " I will let it
in ;" but gives a qualification : " I can instruct the juiy to find special
issues, so that this question can be settled by the Supreme Court, pro-
vided the case goes there." That struck the defendant very forcibly,
that the Judge should be aiding the Counsel for the plaintiff by any such
suggestion.

Learning what had been the intimations of the Judge from the bench,
I prepared; myself, an affidavit; and I made a motion with it. The affi-
davit set forth that I did not feel myself safe in the hands of the Court ;
that I believed he was prejudiced against me, from the course he had
pursued. I said all that the statute required of me ; but 1 could have
said further: "That I believed the Court was corrupt." I then and
there gave my reasons to the Court for the affidavit which I had filed.
I had no objections to the rulings of the Court after that. The same
witnesses were called to the stand on Saturday, that had been there on
the day before ; and, when called upon to give precisely the same testi-
mony before required, he then lets it in, saying that it can go on the ques-
tion of abandonment. The defence did not care on what question it was
admitted, so long as the evidence went to the iury. The evidence then
did go in.

Still, again, if he had ruled it out, the case would have been closed,
and that horrid motion in the Mercier vs. Denny case would have been
staring the Judge in the face. But, by letting the defendant go on and
introduce his evidence, this trial is to be prolonged ; and so it was pro-
longed all through the day, Saturday, and down to midnight ; and no
other case was reached upon the calendar.

In the month of August, eighteen hundred and sixty-one, at the
August term of the Court in that year, in the case of Mercier vs. Denny
et al., Mercier made a motion to change the venue in that case, so that
it could be tried in some other county. An argument was made upon
the affidavit to which the motion was attached, and the motion was
taken under advisement for decision. While off the bench, the Court is
asked if he is going to decide that motion in reference to changing the
venue in this case. Says the Judge to the incpiirer, '• I have decided the
matter in your favor; but I am not going to announce my decision until
the next term of the Court." And the reason for tliis is given in that
conversation. It was, that in deciding that motion, he would have to
decide against Mercier and others; and that he did not want to affect
the French vote at the election, which was to come off in a few days
after the time of this conversation. Mercier is French, and Leger is
French — both voting with this Judge, in the same political party; both
voting to carry out the same political ends. And the reason for the
Judge^ not deciding this motion then, was — or his reason for not an-
nouncing that decision was — that he might displease these persons
thereby, and displease their friends ; and the vote of his party might,
or would, be lessened thereby at the next election. And the gentleman

to whom the Judge says this, is of the same political party ; votes the
same political ticket with the Judge. So the motion passes over in
silence until the next term of the Court, which is in November, and
which is past the day of election.

Article Eight has reference to a case in which one Joseph P. Vaughan
was appointed Receiver. It was a case of McDermott vs. Burke et al.
The motion in the case was opposed by the defence. The question at is-
sue was respecting a leasehold right to certain ditch property continu-
ing a certain time, and then claimed to be property exclusively belonging
to the defendants. The parties defendant offered any amount of secu-
rit}^ to let the property remain in their hands, as they wished to go on
and improve it, so as to have it ready, when this leasehold expired, to go
into other hands in good condition. A Eeceiver is appointed, and his
name is Joseph P. Vaughan. A motion is made to remove that Eeceiver,
on the ground of the insufficiency of the security Avhich he gave ; and
the proper jiapers are made out for this motion. A time is fixed in which
the motion is to be heard. When the hour arrives, the Counsel on both
sides are present. The Court refuses to hear the motion, stating, as a
ground for his refusal, that Mr. Treat, who was one of the defendants,
was an enemy of his, and he would not, "therefore, hear the motion. Mr.
Joseph P. Vaughan had been the law partner of the Judge -, was the
Judge's particular friend ; and was having a good deal of money go into
his hands, for Avhich there was never any account made. I leave the de-
tails as they may appear in the evidence.

Robinson vs. Leger, I refer to for a certain other purpose. There had
been a trial, and a judgment, and a motion for a new trial, and a state-
ment made on which to base that motion. One W. P. George Avas, I be-
lieve, the Counsel for the defence. Mr. Brockway was the Counsel for
the plaintiff. AYhen this statement is made up, the Judge puts into it
what is not put into either the statement or the amended statement.
Of his own accord, he puts in what did not appear in the trial, or in the
evidence, or from the motions of the Counsel on cither side ; and he thus
falsifies the record in favor of the defence.

Mr. President, there is another charge : and I notice all these before I
come to the Fifteenth Article, which will be the last one on which I shall
comment, because there are, in the Supplementary Articles, portions of
charges which are made in Articles previous. There is an Article in the
Supplementary Articles which embraces the charge of unbecoming solici-
tude and improper conduct on the part of the Judge, in going to Coun-
sel in these various cases and making himself a partisan among clients
interested in causes which are before his own Court for trial.

Aside from the effect which such intercessions may have, we hold, Mr.
President, that they constitute, in and of themselves, offences, for which
any Judge should be removed from his position, when they are proved
against him.

There is a general ehai'ge of intemperance. There are specific charges
as to intem])erance, on the part of the Judge, at diff'erent times, while
upon the bench, or during sessions of his Court. There is proof to show
that during the intermissions of his Court he was in the constant habit
of drinking, and drinking to excess ; and that, however witnesses may
testify as to his conduct on the bench, we have proof to show that but a
few minutes previous to his going upon the bench, he was what men
would term " drunk." And this, not once, but time and time again, du-
ring the terms of his Court. And we shall prove that, at times, his in-
temperance, or his intemperate condition, upon the bench, was such that

it "was plainly and palpably manifest to those who were present in his
Court.

It is also charged in the Articles, that in the month of July, eighteen
hundred and sixty, this Judge is translated, or transferred, from the
Sixteenth Judicial District to the Seventh Judicial District of this State.
And whether he goes there for a certain purpose or not, we also leave it
for the evidence to determine. It will be shown that a certain trial was
at that time pending before one of the District Courts in your city,
which was of a very grave character. It involved a charge of a serious
nature against a man who had held a high judicial position in this State.
That case also Avas sent to the Seventh Judicial District, there to be
tried. Strange, or otherwise, these two men, the accused and the Judge
of the Sixteenth Judicial District, meet in the Seventh Judicial District.
One is there as defendant, charged with the commission of one of the
highest crimes known to the laws of the State ; the other is there, sit-
ting upon the bench — expected, at least, to be there a spotless Judge.

The case to which I refer is set for trial on a certain day. Witnesses
are summoned on the part of the State. This trial is to be commenced
about ten o'clock in the morning. The officer on the part of the State
is in attendance, as are also the Counsel for the defence. They com-
mence the work of getting a jury ready. When they get their jury, the
officer on the part of the State is called upon to proceed with his prose-
cution. He has his witnesses called, at the door. No witnesses answer.
The officer on the part of the State makes his excuse — that he has
exhausted all the means in his power in order to get the witnesses for
the prosecution into Court. He has nothing fartlier to do. The clock
lacks five minutes of the time being up. While tlie defence is pressing
that this matter shall be dismissed, the Judge says, " We had better wait
until the hand of the clock is moved five minutes farther along." And
when it comes to that time, or it may be a few minutes after, the jury
in the box are ordered to find a verdict. The man charged with this
grave crime goes at large. The witnesses for the pi'osecution are but a
few miles below, on their way from San Francisco. They had got be-
calmed, and could not get there so rapidly as they anticipated. It is
said that the hands of the timepiece had strangely moved in advance.
Probably we may be able to prove something in regard to that.

The Judge, when he sees indecent haste exhibited by the Counsel be-
fore him on both sides, when he is placed in power to see that the laws
are duly executed or administered, should have exercised that caution,
and made such observations to the Prosecuting Attorney as would have
prevented the indecent haste which was manifested here in this matter.
I deny that the excuse given would exist as a valid one. Even if five or
ten minutes were allowed to pass, in waiting, it was gross misconduct on
the part of the Judge to allow the case to be dismissed in the manner in
which it was. The interval of time mentioned affords no palliation to
the charge that the trial was conducted and concluded with most inde-
cent haste.

But I think that this Court can come to the conclusion that these
charges are readily sustained by proof, when I come to consider the last
charge — the fifteenth charge — that is made against this Judge. That one
whose official place was high in power, the second place in the Judiciary
of the State, should have so forgotten, wilfully, and not only wilfully,
but corruptly, forgotten, his duty under the Constitution which he had
ovrorn to support, as to have conducted himself in the manner in which

this Judge did, at such a time, certainly constitutes a grave and terrible
offence.

I speak, Sir, of what will be proved, and amply proved, beyond denial.
By referring to the Constitution of the United States, Article Six, Sec-
tion Three, we find that no judicial officer in a State can become such
without taking an oath that he will sustain the Constitution of the
United States. His very official existence is founded upon that oath. He
cannot take an oath to support the Constitution of the State of Califor-
nia, and leave out a similar undertaking to support the Constitution of
the United States; for the Constitution of this State, itself, requires of
him to take an oath to support the Constitution of the United States, as
well as, and as firmly and as faithfully as, to support the Constitution of
the State of California. And more than that; if ho fails to take that
oath, he cannot enter upon the duties of his office. His official position
becomes a baseless fabric, which is only a thing of the imagination. It
has no pedestal upon which to stand. He niust take the oath to support
the Constitution of these United States.

Now, Judge Hardy is charged, in the Fifteenth Article, with violating
this oath. There are eight dift'erent specifications. They show — shall I
say that they show only disloyalty on the part of this man ? Why, what
does the oath which he has taken require of him ? Does not the Gov-
ernment expect that every man, every citizen, will be loyal to the Covern-
nieut? Why is the taking of this oath exacted? Why, Mr. President,
this officer cannot be a neutral man. He has, if he holds this office, to
be a positive man. He is a culpable man, if, in the hour of danger to his
country, he stands back, and does nothing, and says nothing; for the
oath requires that he shall support.

These charges are : That on or about the twenty-fifth day of June, in
the Town of Jackson, Amador County, Judge Hardy used certain lan-
guage. And the proof will be this : Mr. Hardy, and others, were about
going over into the County of Mono. He was going to sit as Judge in
the County of Mono, that had been recently organized. And, on that
occasion, he, with other persons, was having a '' time " there in Jackson;
drinking, and carrying on. In the Union Hotel, the principal hotel, or
one of the principal hotels, in town, several of this party were up at the
bar, glasses filled, when this Judge of the Sixteenth Judicial District of
the State of California gives this toast : " Here's to Jeff. Davis and the
Southern Confederacy ! Those are my sentiments." We have proof
which will establish this. '' If there is any one in the Sixteenth Judicial
District who don't like the Judge, they can go to hell ! "

This language was used in a public bar room, in the presence of a num-
ber of persons who were standing around.

This is not enough for this occasion. The Judge goes out upon the
public streets at a still later time, at a late hour of the night, when the
loyal and honest j^eople of that town are asleep, and sends up huzzas for
Jeff. Davis so loud that he arouses people from their sleep — committing
an offence which, without regard to the language used, constitutes a mis-
demeanor, under the statutes of the State.

The course of travel from Jackson, Amador County, to the county
seat of Mono County, is across Calaveras County, entering from the
north, and going south. The Town of Angels is some twenty-three or
twenty-four miles from the northern part of the county, as you go in a
southerly direction. This journey is on the day following that on which
the incident occurred of which I have spoken. Aj)proaching the Town
of Angels, the American flag is seen floating from a flagstaff. Judge

Hardy then remarks to a person who is riding with him, " That is an old
woman's rag, and ought to be torn down." And so audible was his
speech, that a young man. who is riding by his side, says, '• Well, when
that flag is torn down, I am prepared to leave the country." And so
audible is the language which this Judge of the Sixteenth Judicial Dis-
trict then emploj's, in speaking of our national banner, that a passer-by
hears it and the reply that is made to it, and remarks, '* Young man,
your head is right."

All this takes place in Judge Hardy's own district.

Still later, in the month of August, in a public bar room, at Mokelumne
Hill, during an intermission of the Court, when the Judge had just left
the bench, upon which he had been seated under virtue of the oath to
supj)ort the Constitution of the United States, which he had taken, Judge
Hardy, standing at the bar, volunteers this toast : " Here's to the stars
and stripes; as to the Constitution, there is none — the Constitution has
gone to hell !"

A member from the other House, who will be a witness in this case,
was standing by Judge Hardy's side, with a glass in his hand. The lan-
guage of the Judge was so offensive that this man puts his glass back
upon the counter, and turns indignantly away.

In the City of Sacramento, along, I believe, in April, eighteen hundred
and sixty-one. forgetful, unmindful, as early as that time, of the duty
that he owed to his country, when a long row of friends or companions
are standing by his side, about to drink, in a bar room in one of the most
public places in that city, (in the bar room of the St. George Hotel,)
Judge Hardy gives a toast like this: " Gentlemen, I will give you the per-
petuation of the Southern Confederacy, and the sovereignty of Jeff. Da-
vis; and may his name be perjjetuated in the same light in which they
hold the name of the immortal Washington ;" thus placing a saint, in
heaven, by the side of a fiend, who ought to be in hell.

Is this not enough to stir the blood in any loyal man's veins?

A man steps up to Judge Hard}', and says, " You drink that toast, and
I'll thrust that glass down your throat."

Then Judge Hardy goes one side, and says, " Oh, I didn't mean it."
For shame on language that needs such an explanation.

It is also charged that, in Calaveras County, on the twenty-sixth day
of June, at another bar room, or saloon, Judge Hardy drank to the
health of Jeff. Davis.

Also, he is charged with using such language as shows conclusively
that his sj'mpathies have developed and hardened into sentiment, and
become the controlling opinion of the man. It shows that he does not
entertain mere S3'mpathy. the natural sympathy that arises in the hearts
of all men — sympathy that no man can extinguish — but sympathy which
better judgment and better sense can control; this is not what is simply
established. Judge Hardy allows his sjnnpathies with rebellion and
secession to ripen into sentiment, and into opinion, and to become the
controlling principle in his life and action.

He declares that he is a Secessionist, and that if a foreigner shoxild
come befoi'e him, holding the same sentiments that he, the said Hardy,
entei'tained, as a man, toward the Constitution and Government of the
United States, and applied for naturalization papers, or admission to
citizenship, he, the said Hardy, sitting as a Judge, would not admit that
man to citizenship.

This last specification shows where all else emanates. It displays the
foundation for all this language. It shows that these little speeches

come from his lips in no tinguarded moments — that they are not expres-
sions made from a surface impulse, and entitled to be excused or pallia-
ted by the paltry assertion, " Oh, I was drunk !"

It is an old adage, which is read by every school boy, that has been
stereotyped from the early Greek into every language of the present day,
'■ When the wine is in, the wit is out." Then, the man turns himself
inside out — to use our peculiar expression — and what is in the heart of a
man can be read from his language, by all men then in his presence.

This is a class of charges that can be multiplied to a great extent.

On the last day of his Court, held at Mokelumne Hill on the first day
of last March, without provocation, absolutely volunteered from him-
self, he exclaims, '' I am now off from the bench. My Court is ad-
journed. My mother is from the South, and I am a rebel ; and I don't
care a damn who knows it I"

This is the kind of education which, at a time when the popular mind
is greatly agitated in regard to our national ditficulties, this man engages
in ; this is the kind of speech that this man, who has gained his high
position by taking an oath of allegiance to the Constitution, is indulging
in at public places, on frequent occasions — sending it out on the air, and
tainting it in every direction. You cannot mistake the meaning of his
language. Why, even the Constitution of this State, by implication,
declares that, by the nature of these exclamations, he is liable to be
charged with a criminal offence. The State laws guard every man's
character, by furnishing him with the ability to prosecute in an action
of slander. What ! when the characters of men are hedged about as
against the language that drops from the lips of other men, that for the
Constitution of our Government, framed by men who were noble,
hard}^ and brave, who bled for it, there is no protection as against
language ! A libel, or a slander, it makes of a heinous character, when
it comes from the lips of one who is expected to be a public example,
and whose character, both in his public walk among men, and when he
is acting officially, should be such that the people miglit copy and take
example from it. And at a time when, as a matter of history, so much
was being done ! Half a million of men fighting to sustain that Consti-
tution that he was sworn to support ; and yet he is making it a mockery
and an object of derision, and tramj)ling that oath, which he has taken,
beneath his feet.

SENATOR HILL SWORN IN.

Senator Hill, of Sonoma County, appeared in Court, and the oath was
administered to him by the President.

[Senator Gallagher, of Calaveras County, appeared on the following
day, and was duly sworn in.]

Mr. Edgerton. — If there is no objection, we propose to commence the
proof with the evidence of Mr. A. W. Genung and Mr. S. W. Brockway.
We would like to have them called.

REPORT OF TESTIMONY

IN THE

%m\ of fttbge lames p, |f iiAg,

BEFORE THE SENATE OF CALIFORNIA,

SITTING AS

A HIGH COUKT OF IMPEACHMENT.

BEN J. P. AVERY STATE PRINTER.

TESTIMONY

IN THE

TRIAL OF JUDGE J. H. HAHDY.

FIRST DAY—APIIIL 28, 1862.

TESTIMONY FOR THE PROSECUTION.

TESTIMONY OF S. W. BROCKWAY.

S. W. Brockway, being called and sworn, testified as follows :

Mr. Cainpbell.—q.—lSLr. Brockway, where is your residence, and what
is your occupation ?

A. — My residence is Mokelumne Hill, Calaveras County, and my occu-
pation is that of a lawj-er.

Q. How long have you resided and practised law in the Sixteenth

Judicial District ?

A. — Ever since the organization of that District. I was practising
in that District before, and at the time, when the District was organ-
ized. I commenced practising there in the Fall of eighteen hundred
and fift3^-three, and I have been there ever since.

Q. — Do you know the Respondent here, James H. Hardy ?

A.— I do.

Q. — How long have j^ou known him ?

A. — I have known him since eighteen hundred and fifty-four or eight-
een hundred and fifty-five; I think since eighteen hundred and fifty-
five.

Q. — Have you, since the orgaBization of the Sixteenth Judicial Dis-
trict, practised law before him in the Courts of that District ?

A. — I have.

Q. — How long has he acted as Judge of that District ?

A. — I think that he was appointed in eighteen hundred and fifty-nine ;
my recollection as to the exact date is not very distinct. I think that
it was in Januar}'. eighteen hundred and fifty-nine, that he was ap-
pointed.

Q. — Were you Counsel in a suit in which Gerrish Foster was plaintiff,
and one Fritz, and others, defendants ?

A. — I was Counsel for the defendants.

Q. — Was that case over tried before Judge Hardy, and if so, when ?

A. — Yes, Sir. It was tried before Judge Hardy, I think at the May
term, eighteen hundred and fifty-nine.

Q. — State all the circumstances that you know in relation to that
trial; particularly^ with regard to a motion for nonsuit.

A. — Well, the suit was one brought, if I recollect correctly, (if I am
allowed to state the contents of the complaint — I have not looked at it
since the trial.) the suit was brought to recover for money had and re-
ceived, and an account for a- small sum for work, labor, and services.
On the trial of the case, they introduced, or ofli'ered to introduce, evi-
dence, under the count for money had and received, consisting of prom-
issory notes, negotiable promissor}' notes. I believe; and I objected to
it. I urged my objections very strenuouslj- indeed.

Mr. Cionphdl. — I believe that Mr. Genung, Clerk of the Sixteenth Ju-
dicial District Court, for Calaveras County, is present, with the records
of that Court in his keeping. We desire tliat Mr. Genung may be placed
upon the stand and sworn, so that he may pi-oduce the records and tes-
tify to them.

Mr. WiUiams. — I must object to this proposition. When a witness has
been placed upon the stand, and his testimonj' has commenced, he can
hardly be permitted to step aside, and another come on, who may or may
not furnish information which the first witness had not brought in, and
which might or might not be suggestive to the latter. I do not say that
such is the intention or would be the effect in this instance. But such
might be the effect if this rule was allowed to be established and to be
followed.

Mr. Campbell. — The object of the introduction of Mr. Genung is simply
for the purpose of identif^'ing the records and papers of the Courts, in
relation to which this witness [the witness on the stand] is speaking.
These papers will hereafter be inti-oduced as evidence before the Senate.
There can be no impropriety in it, or any possible danger of any collu-
sion arising from this testimony. But it is desirable, as we go on in the
case, to get the dates and the order of events, and also to identify the
suit in relation to which this testimony is given. It is a mere question
of order or precedence of testimony, nothing more. It would conduce
a great deal to convenience, and save a great deal of time.

Mr. Williams. — The Counsel must admit that I have made no objection
to the introduction of parol testimony to prove what the contents of the
complaint in this case [of Foster vs. Fritz] were.

The Presiding Officer considered that the question was merely one
of precedence in the order of rendering in the testimony, but the exam-
ination of Mr. Genung must be confined to the points already indicated
by the Attorneys for the prosecution.

TESTIMONY OF A. W. GENUNG.

A. W. Gennng, being duly sworn, testijSed as follows :

Mr. Campbell. — Q. — What has been your business from the month of
July, eighteen hundred and lifty-nine, to the present time ?

A. — I have been in one or two diiferent kinds of business since that
time. Since October, eighteen hundred and fifty-nine, I have been
Deputj^ County Clerk of Calaveras County, and Acting Clerk of the
District Court.

Q. — Po you hold that office now ?

A.— I do.

Q. — Are you in possession of the records of the District Court of the
Sixteenth Judicial District, in a case where Gerrish Foster was plaintiff,
and Fritz, Cameron, and others, defendants ?

A. — I have them in charge.

[Witness produced the records referred to.]

Q. — Are these the papers in that case ? [Showing witness some
papers.]

A. — Thev are papers which T found in the office when I went there.

Q.— Marked as filed by the Clerk ':'

A. — By the former Clerk.

Q. — vVhat are the dates of their respective filing ?

A. — They show. Some of them are of my filing, I believe. I think I
engrossed the statement. 1 filed the engrossed statement.

Q. — Refer also, if you please, to the minutes of the Court for the May
term, eighteen hundred and fifty-nine.

A. — This is the record of the District Court of the Sixteenth Judicial
District, Calaveras County. [Exhibiting book.] " Saturday, May 14th,
1859. Gerrish Foster vs. John Fritz, Lightner, et al." [Page 9U.] On
page 90 is a short history of the trial, the empanelment of the jury,
the rendition of the verdict, and the order for judgment.

No objection being made by defendant's counsel, the papers on file in
the case of Foster rs. Fritz et al. were oftered, and, without being read,
were considered in evidence.

3fr. Wt'lliavis. — I would suggest that the presiding officer put some
number or letter on the papers.

The Fremlhvj Officer. — I write my surname on the back. They will
have to be numbei-ed as they appear on the file.

Witnesa. — [Reading from the records of the Court.] " Wednesday
morning, November 9th, 1859." The case is entitled, and then, " This
case was submitted on briefs to be filed this week." [Page 212.]

Q. — Now, wnll you look for the entry of the decision on that motion
for a new trial.

A. — " Saturday, November 2uth, 1859." The case is entitled, and
then, " In this case it was ordered that defendant have a new trial, and
case continued for the term." [Page 227.]

Q. — When did the May term, eighteen hundred and fifty-nine, of the
Court expire? Refer to the record, and see w^hen the Court adjourned
sine die.

A. — Tuesday-, May thirty-first, eighteen hundred and fifty-nine.

Q. — State wdiat disposition' was made of the case.

A. — I should say, from memory, but I am not positive, that the order
of November twenty-sixth is the last that appears of record on the book.

I have not run through the record, but I am pretty confident, from my
memory.

Mr. Campbell stated that there was a number of other records, and
they would have to call on Mr. Genung occasionally during the examina-
tion. In order that the proof on each particular charge might come out
by itself, they had thought it better not to take his testimony therein
at present.

CROSS EXAMINATION.

3Ir. Williams. — Q. — In whose handwriting is that ? [Showing witness
a paper.]

A. — M3" own. " Filed Nov'r 7th, 1859. Engrossed statement on mo-
tion for a new trial."

Q. — The motion for a new trial was submitted on briefs on November
ninth ?

A. — I would say that I cannot swear positively, in reference to that
statement, that it was filed on that day [November seventh.] Far the
larger portion of the engrossed statements are filed long after the filing
of the original statonents. That is. they are not ready to be engrossed,
but we file them nunc pro tunc, as if the case had been ready to be heard
right off.

Q. — IIow do you get at that point — the time?

A. — I say I cannot swear positively to the date. My impression is
that it was later than this.

Q. — 80 it seems the Attorneys did not get their statement ready
until November seventh, and perhaps until later than that ?

A. — I would not throw it on the Attorneys. I filed it when engrossed.

Q. — Is it your custom to engross as soon as the statements are settled?

A. — Not always. Thej^ do not ask me to engross until perhaps just
before they are going to use them.

Q. — When you are required to engross a statement, do you do it at
once ?

A. — Yes, as soon as I have time; usually within one or two days;
sometimes I work nights.

Q. — Is the filing of this, November seventh, eighteen hundred and fifty-
nine, evidence that neither party required it before that time ?

Mr. Campbell. — AVe object to that. The witness can state what his prac-
tice in relation to those statements was.

Mr. Williams. — Q. — What did you say about this case having been sub-
mitted on briefs ?

A. — I read from the record.

Q. — Eepeat what you read.

[Witness read from the record as desired.]

Q. — Read, if you please, when the November term of the Court ended.

A.—" Saturday, December 3d, 1859."

Q. — The May term, eighteen hundred and fifty-nine, was held by
whom ?

A. — Judge Sexton — part of the term. I was not there; I was not Clerk
at the time. I read from the record : '' Monday, May 23d, 1859, Court
met pursuant to adjournment. Present — Hon. Warren T. Sexton,"
— Judge of some other District. The record is signed by Judge
Sexton. On the twenty -fourth, also, the minutes are signed by the same
Judge.

Q- — See whether, or not, they were so signed down to the last day of
that term.

A. — On the twenty-fifth, they were so signed ; and on the twenty-
eighth, also; then on the thirty-first day of May, the last day of the
term. Judge Hardy appeared.

Q. — See if anything was done on that day.

A. — Nothing of record. The Court adjourned sine die on that day. I
want to explain, in one particular. I was asked as to the final disposi-
tion of this case, and said it was continued for the term in November. I
find an entry in the following February term, February sixth, eighteen
hundred and sixty. The case is entitled, and then, ^-'This case is or-
dered dismissed, by agreement."

CONTINUATION OF BROCKWAY's TESTIMONY.

Mr. Campbell. — Proceed with your statement in the case of Foster vs.
Fritz et al.

A. — I was speaking of the evidence that was oftered on the trial by the
plaintiff. lender the count for money had and received, the Counsel for
the plaintiff sought to introduce promissory notes — negotiated promis-
sory notes, according to vay recollection of it — and also, I think, an
assigned account for work, labor, and services ; at any rate, there was an
account for work, labor, and services, in it. To the notes I objected very
strenousl}', and urged my objections. The Court overruled the objections.
I was consitlerabl}" excited, and said something which might be termed
disrespectful ; not very, however. In the case all the evidence offered by
the plaintiff' Avas, I believe, admitted. The jury returned a verdict for
the amount claimed, I think; the proof showing some little more than
the amount claimed, interest and all. I went out of the Court House
very much incensed at the ruling of the Court, as I had advised my clients
that I thought, as under our practice it was necessar}^ to set up the real
cause of action, they could not introduce any promissory notes as evi-
dence of monc}' had and received. After the trial was over, while I was
yet somewhat angry. Judge Hardy came and spoke to me; took hold of
my arm, and told me that I was a fool, or a d d fool, or some ex-
pression of that kind, in a friendl}^ ^vay. To which I answered, that I
might be, and somebody else might be, or something of that character.
Said I, "Yes! somebody else ma}' be," or something similar to that. And
the Judge said: '-I know what your clients want in that case, just as
well as 3'ou do ; they are friends of mine. They want time." I replied,
"Judge," or "Jim," I think that was the language, "they had no right to
introduce that evidence, and you know it; I was entitled to a nonsuit."
(In the course of the trial, I believe, I made two motions for nonsuit;
one for a general nonsuit, the other for a nonsuit as to the notes, so far
as the notes, or account for money had and received was concerned, as
there was no evidence in regard to'it.) Said I, " They had no right to in-
troduce that evidence, and 3'ou know it." "Well," replied Judge Hardy,
"my ruling is right." He said, "Suppose a nonsuit was granted, they
would sue and attach again ; your clients want time ; a new trial is worth
three nonsuits." I replied, "Yes ; if I could get a new trial." "Well,"he
said, " file your statement, and you will get a new trial," or words to
that effect; I think those were the words. And when we got through
the conversation, the Judge says to me, "Now don't you tell anybody of
this ; if ever you tell anybody of this, I will swear it is a lie, and that I
never told you so." I think that ended the conversation at that time.
I filed the statement for a new trial. When it came up in Court, Hardy
told me not to argue it; he said Lightner — who was a member of the

AssemJbly from our county the winter before — was one of the best
friends he had; that he was willing to serve his friends when he
could ; and told me to file a statement, and I would get a new trial.
Said he, " You understand me now'/" Said I, "Yes; I suppose I do."
Then he told me this in regard to not telling any one of it. He told me
not to argue the case. "When it came up for hearing in the Court, I
declined arguing it. Allan P. Dudley and Mr. Adams were Counsel for
the plaintifts. Dudley said he would argue the case ; I said, " Very well ;
I won't." Dudley said he should. I said, " I shall not answer it." He
leaned towards me and said, " Well, if you are not going to answer it, I
shall not argue it." The case was submitted. Subsequently, towards the
close of the term, a new trial was granted, and the case continued, with-
out any opposition from any one, I think. It was very near the close of
the term when the case was continued.

Q. — Near the close of which term 'i

A. — I think, the November term. It passed over the August term,
and this was in November, I believe.

Q. — Do you know what became of the case after that ?

A. — Well, it was dismissed by consent. My clients and the plaintiffs
made some arrangement. All I know of what the arrangement was,
is what I have been told. I was not present when the matter was
settled.

Q. — Was Lightner one of the defendants in that suit?

A. — He was, under the name of '• William Lightner." His name is C.
W. Lightner. He was the one who verified the answer to the complaint.

Q. — Do you know whether, in point of fact, your clients did want
time in that case 'i

Mr. Williams. — I submit that what were the private desires of his
clients is not material. The question here is — What was the conduct of
the Eespondent ?

3Ir. Camphell. — If we show that it was the case that the defendants
did want time, and that Hardy adopted that and recognized it as an
existing fact, and then, for the purpose of serving them, and not of
advancing justice, pursues a particular course, it all goes to establish the
allegations contained in the Articles of Impeachment. That is the
object of this testimony.

The Presiding Otfieer thought the question immaterial.

3Ir. Camphell. — Q. — Were you Counsel in a case in which The People of
the State were plaintifts, on the relation of the Attorney-General, and
one Hill Squires was defendant '/

A. — I was Counsel for the plaintiffs.

Q. — AYas that case pending in the District Court of the Sixteenth
Judicial District, in and for the County of Calaveras?

A. — It was. It was tried there.

Q. — At what time ?

A. — It was tried at chambers, in March or April.

Mr. Genung, being recalled, said :

There should have been papers on file, but I have made search in every
bundle of papers in the office, and I have found none with that entitle-
ment, nor any at all in which Hill Squires is defendant. I find no entry
on the books. That was a case in chambers ; it would not appear on
the Court record.

Mr. Brockway, continuing his testimony, said :

Q. — State all you know about the case.

A. — I think it was in March or April, eighteen hundred and fifty-nine,
to the best of my recollection, that the case was tried. I searched, with
the Clerk, in the Clerk's office, to try and find the papers. I was told
they were not there, and have been unable to find them since I was ex-
amined as a witness befoi-e the Committee of the House. Therefore, I
cannot state the date positively. But the case was argued by myself for
the plaintiff", and Mr. Higby, for the defendant. It was a quo warranto —
a suit brought to test the right of Hill Squires to act as Tax Collector in
Township Number Six, in the County of Calaveras, under an appoint-
ment made by the Board of Supervisors. A law had been passed by the
Legislature, providing for Township Collectors, and he was one of the ap-
pointees on the county. I think I drew the complaint, and Mr. Adams,
of the firm of Dudley & Adams, drew the agreed statement of facts.
The statement of facts was agreed upon between the Counsel. We ar-
gued the case ; and it was taken under advisement by Judge Hardy, and
held for some days before the decision was made. Then the decision was
filed in the case, giving judgment in favor of defendant.

Q. — Was there any opinion delivered at the time ?

A. — There was a written opinion filed. I never knew any other opin-
ion delivered.

Q. — Do you know what has become of that?

A. — I have not any idea. I went, with the Clerk, and tried to find the
papers. Some one told me they were gone. We searched, and I have
searched two or three different times, but could not find it. I have no
idea what has become of it myself.

Mr. Ed<j(irton. — Q. — Do you say that opinion was filed '(

A. — It was in the Clerk's ofiice, among the papers. I cannot say
whether it was indorsed " filed," or not.

Mr. CkimphcU. — il. — Do you know anything in relation to any suit or
suits commenced by E. Mercier et al. vs. W. K. Eobinson et al. ?

A. — I do not know of any one commenced by Mercier against W. E.
Robinson. There was ond commenced by Mercier against Ji:'.s-.se R. Eobin-
son et al.

Q. — When was that commenced 't

A. — I have the judgment roll in the case here. The complaint was
filed January nineteenth, eighteen hundred and sixty.

Mr. Edgcrton. — Q. — What is the title of the cause ?

A. — E. Mercier against J. Eobinson, Samuel Eobinson, and William
Laxson. The summons was issued on the nineteenth of January, eight-
een hundred and sixty.

Q. — State the history of that case.

A. — The case was one brought to obtain a wi*it of injunction against
the defendants, to prevent their working the garden known as th©
French Garden, situated in Chile Gulch, a short distance south of Mokel-
umne Hill ; and also to recover damages from the defendants for working
inside of what was claimed to be the plaintiff's enclosure. Preliminary
injunction was granted.

Q. — You were Counsel in that case?

A. — I was Counsel for the defendants. William L. Dudley, and, I
think, Dudley & Adams, were for the plaintiff'. Dudley & Adams as-
sisted to try the case, at any rate. I think, too, that Tod Eobinson
2

of Sacramento was there, and helped on the trial of the case for the de-
fendants.

Q. — Yon sa}^ that there was a demurrer to the injunction granted
against the defendants ?

A. — There was, and on the trial of the case judgment was recovered in
favor of the defendants, and the injunction was dissolved.

Q. — At what time was that dissolution of the injunction?

A. — I helieve it was on the twenty-seventh of Novcmoer, eighteen
hundi'ed and sixty. I think that that is the day the order was entered.

Q. — State whether, after the dissolution of that injunction, any action
was commenced by the defendants in that suit against the sureties on
the bond of the plaintitf, and the principals on it.

A. — The suit was not commenced against the principals. The pi'inci-
pals did not execute the bond, I believe ; but it was commenced against
G. Leger and S. Meunier, who signed the bond.

Q. — Was that George Leger ?

A. — That was George Leger. It Avas commenced by Eobinson and
others, the defendants in the former suit.

Q. — What was the date of that ?

A. — The complaint was filed April fifteenth, eighteen hundred and
sixty-one. The summons were issued on the same date.

Q. — Give us the day when that cause was at issue ?

A. — It was at issue in May, eighteen hundred and sixty-one, when a
demurrer was filed. I think it is on record that in May, eighteen hun-
dred and sixty-one, a demurrer was filed; and the answer was filed May
twenty-seventh, eighteen hund"r&d and sixty-one. The replication was
filed May thirtieth, eighteen hundred and sixty-one. This appears by
the indorsements.

Q. — Who were the Counsel for the respective parties in that case ?

A. — I was the Counsel who brought the suit for the plaintiffs, and
afterwards, Dudley & Adams were employed. As they wished me to
assist them in the trial of a ease, I proposed to do so, and that they
should, in turn, assist me on behalf of my clients. On the part of the
defence, there was W. P. George, of Jackson, who, I believe, Avas the
only one on that side. The signature to the pajiers was Briggs &
George, but Mr. George tried the case alone.

Q. — State when that case was first upon the calendar for trial.

A. — I find on page 483 of the record, under date of Monday, the twen-
tieth d'dj of May, A. D. eighteen hundred and sixtj^-one, the following
entry: "J. Eobinson et al. vs. George Leger et al. S. W. Brockway ap-
pears for plaintiff, and W. L. Dudley for defendant. By consent of
Counsel, hearing of demuri-er is set for May 31."

On page 500, I find: " J. Robinson et al. vs. George Leger et al. In
this case S. W. Brockway appears for plaintiff, and Briggs & George
for defendant. And the parties being read}' for trial, there came a jury
of twelve good and lawful men; to wit" — naming the jury.
Q. — That was tried, then, on the thirty-first day of May?

A. — Yes, Sir.

Q. — State what took place on the trial of that case?
A. — It was a suit brought on an injunction bond, to enjoin the defend-
ants from working upon the claim, running water and washing earth
into Chile Gulch. The plaintifi's, or I, as Counsel for the plaintiffs, in the
course of the trial, tried to prove that the iiijunction prevented them
from running their water through the ditch and flume Avhich led the
water to the claim. For the purpose of showing the damage which they

had sustained by means of injury to the ditch and flume, Judge Hardy
said : " Mr. Brockway, I won't let you prove tliat." Said 1 : " Why,
your Honor?" Said he: "The injunction did'nt j^revent your I'un-
ning the water through the ditch and flume." Said I : " Yes, it did, your
Honor." Said he : " It did not. I would not gi'ant an injunction which
would do it." Said I : "' I can't help what your Honor woukl not grant.
This injunction did do it. I have so alleged in the complaint, and they
have not denied it in the answer." Said he : '' I deny it."

Mr. Adams, who under the ari-angement I have spoken of in regard to
assisting him in trying a case in which his firm was interested, was help-
ing me in this action, was sitting Vj}^ me taking notes in the trial. And
he whispered to me, saying, '' Who is trying this case, the ('oiirt or the
Counsel ?" And, in my excitement, I immediately said to the Court, " I
w^ould like to know who is trying this case ; whether it is the defend-
ant's Counsel or the Court?" Judge Hard}' said: "That" and

stopped. Nothing further was said.

Q. — Judge Hardy presided through the whole of that trial ?

A. — He presided through that trial.

Q. — What was done in relation to admitting the evidence ? Did he
admit the evidence ?

A. — He refused at that time to admit the evidence. With Mr. Adams
I tried persistently for a long time to get it in ; but we were unable to get
it in. I believe that subsequently, Mr. George, on a cross examination,
inquired if the amount of damages which a witness had estimated, in-
cluded the damage to the ditch and flume, as well as the claim. And
after that question Avas asked, 1 asked the witness what amount of dam-
age he thought was done to the claiin — or something of that kind ; and
so in that way I got an answer, partially at least, on the point I desired
to make. That is my recollection of the trial of that case.

Q. — What was the result of that case ?

A. — The jury found a verdict for five hundred dollars, the full amount
of the bond, for the plaintiffs.

Q. — Was there any statement of the evidence made ?

A. — There was. Mr. George filed a statement on motion for a new
trial.

Mr. Campbell. — I will now call Mr. Genung, on this point, for the pur-
pose of identifying all the papers in that case.

Mr. Genung, being called u})on, said :

The papers" were all filed by myself and Mr. Hanford, who is principal
in the office. I have numbered them. When I say that all were filed, I
should qualify the statement — there are some that were not required to
be filed. [Examines papers.] These [presenting some of the papers]
were all filed by me.

Mr. i'amphell [To Mr. Brockway].— State what you knoAV about the
statement.

A. — In this statement the evidence was pretended to be set forth by
Mr. George, and exceptions taken by the plaintiff's. I have the written
exceptions, which were taken upon the trial, up at my room at the ho-
tel ; I have not got them here ; I proposed amendments to the statement ;
the amendments proposed are these that I now hold in my hand. [Ex-^
hibiting a paper.] I proposed amending the evidence, so as to set out
more fullj^ the testimony given by the plaintiffs on the trial. The state-
ment was submitted to" the Judge for settlement, and the amendments
are marked along. The first proposed amendment is marked " alloAved,"
and also the second, third, and fourth. The fifth has written beside it,

by the Judge, as follows : " This amendment is allowed ; but after the
question asked by plaintiffs' counsel, on line 41, the objection and excep-
tion of defendants' counsel must be noted; also, the objection and excep-
tion of the answer on this point." That is a long amendment, contain-
ing considerable evidence.

Q. — In whose handwriting is that ?

A. — I should say -that it was Judge Hardy's handwriting. I have seen
him write, and have seen his handwriting, very frequently, and that is
his handwriting.

Q. — Had there been any exception taken ?

A. — I have no recollection of there having been any exception taken
at all.

Q. — Or any objection ?

A. — 1 do not recollect of any objection being made but what was ruled
against us ; and I have a long list of excej^tions signed. I think every
exception that was taken to the ruling on the trial, was in writing, and
signed by the Judge. I have theni in my room ; but none was taken or
put in the statement by the defendants' counsel at all.

On the fourth page of the statement by the plaintiff's' counsel, I find,
as I should say in Judge Hardj^'s handwriting, in the last portion of the
twenty-first line, and between the twenty-first and twentj^-second lines
of the page, this : '' Defendants objected to question. Objection over-
ruled. Defendants except." The '-defendants" and "objection," are
abbreviated.

Q. — Was that so, in fact ?

A. — No, Sir. I think it was not. I would have recollected it, if it had
been. I recollected of no objection or exception being taken, and no
exception is put in the statement made by Mr. George. Every excep-
tion that was taken in the course of the trial, to the best of my recol-
lection, was in writing. I know they were passed up repeatedly by the
plaintiffs, to be signed.

Q. — Have you the engrossed statement ?

A. — I do not know whether it is here or not. [Examining the papers.]
It is here.

Q. — Eead that portion of the evidence to which that note related.

A. — It is contained in the statement. Which shall I read from — the
statement, or the engrossed statement?

Mr. CampheU. — The original statement.

Witness. — I will commence at the statement of the amendment, as that
contains the evidence to which the exception is noted. [Reads :]

" Strike out the evidence of the witness, Gr. W. Cain, after 17th line of
first page of defendants' statement, as the statement of defendants sets
forth the same on pages 1, 2, and 3, of defendants' statement; and insert
in place thereof as follows, to wit: 'The plaintiffs then introduced, as a
witness, G. W. Cain ; who, being sworn, testified as follows : '* I live at
Chile Gulch, and know plaintiffs and defendants. I know the claim
formerly owned by the plaintiffs, situated near Mercier's garden. It
was taken up in 1858. Jesse Eobinson, one of the plaintiffs, and myself,
took it up. The claim is one hundred j'ards or so below Mercier's
garden, at the lower end — the upper end about opposite. I knew the
'claim and its condition at the time Mercier got the writ of injunction.
The claim had on it a flume, which was one hundred and twenty to one
hundred and thirty yards long; and a ditch, one half mile long, which
took water from the gulch above Milk Punch lianch, and carried the
water to the claim, to wash it with. The ditch and flume were more

than half a mile long. Plaintiffs had on the claim some ten or twelve
sluice boxes — may haye been moi-e. The boxes were worth $2 60 apiece.
The ditch and flume (lischarged tlie water on the claim fift}' yards above
the main gulch. The water running through into the claim would wash
earth into the main gulch. The sluices were in good condition at time
injunction was issued. The sluice boxes lav a long time after the injunc-
tion was granted, and were dried and split up by the sun. Tliis was
because they could not use them by reason of the injunction. I worked
in the claim in IS58 and 1859. There is gold in the claim.

' "The plaintiffs were thx*own out of employment when the injunction
was served on them. T don't know how long, but I know they were not
doing anything until the injunction was dissolved. I don't know
whether the}' could have got empkn'inent or not. It would cost $150 to
put the claim in as good condition, after the dissolution of the injunction,
as it was in before. I included the flume and sluices in the above esti-
mate."

' Plaintiffs asked the following question : '• What would it l)e worth to
keep up and maintain the ditch and flume during the ten months of the
pendency of the injunction, without working the claim ?"

Then comes this, noted by the Court : '• Dfts objd to quesn ; Objn over-
ruled, and dfts except."

' The witness answered as follows : '• It would take one man all the
time. He could not attend to any other business. Common labor was
worth then §3 00 per day. If water was run in the ditch, it had to be
cleared from sand. If the water was turned out of the ditch and run
down the gulcli, then the ditch and flume would be spoiled — as it was.
Best way is to keep water in it all tlie time, and keep it cleared out."

' 3d. After the word '• each," in third line of fourth page of defend-
ants' statement, insert as follows : " The services wei-e necessary, of
course, to dissolve the writ of injunction, or beat the suit."

'4th. Strike out all of the exceptions taken by plaintifl's' Counsel, as
the san\e are set forth in defendants' statement, as the same are imma-
terial on this motion.' "

These exceptions are the exceptions set forth by plaintiffs' Counsel.
Plaintiff's having judgment, I moved to strike them out.

Tiiese are set forth by defendants in defendants' statement:
'• Plaintitt's' Attorney then asked witness the following question :
' What was the claim paying at the time you were working in the
claim V Defendants objected ; objection sustained, and plaintifls excepted.
Witness then stated that the sluice boxes were worth some two dollars,
or two dollars and flftv cents, each. Plaintiff's then asked witness a num-
ber of questions, which are placed upon record ; said questions being-
objected to by defendants, objections sustained, and plaintiffs excepted."
That is the portion which 1 asked to strike out.

("Here insert the exceptions of plaintiff's.") He did not refer to any
exception taken by defendants.

Here is where that amendment is proposed :

" Witness then stated that the claim was damaged in the sum of one
hundred and fifty dollars, including the damage done to the ditch, flume,
and sluices ; that about one hundred and twenty dollars of this amount
he estimated as damage to the ditch and flume, the rest as damage done
to sluice boxes. Witness then stated that it would take one man all the
time to keep the ditch in repair, and that wages were at that time three
dollars per day; that if the water was turned out of the ditch, and let

run down the creek, then the ditch could be put in running order in one
day, by one man."

That is the evidence I amended, to which the exception is noted.

Q. — State whether any new trial was granted in that case, and if so,
when ?

A. — A new trial was granted in it. The entry is on page 563 of the
records, under date of Saturda}^, November thirtieth, eighteen hundred
and sixty-one, as follows :

"J. Eobinson et al. vs. George Leger et al. — S. W. Brockway appears
tor plaintiffs, and W. P. George for defendants ; and defendants' motion
tor new trial having been under advisement by the Court, it is ordered
that said motion be granted. To which order plaintiffs' Counsel then
and there excepted."

Q. — When did that case come ^ip for trial, since that time, if it ever
has r

A. — It was set for trial. The entr}^ is on page 567, under date of
February third, eighteen hundred and sixty-two, as follows: Title of the
case — " J. H. Eobinson et al. vs. George Leger et al. — S. W. Brockway
appears for plaintiffs, and on his motion the case is ordered set for trial
Wednesday, Februarj^ 12th." On page 580, under date of February
twelfth, eighteen hundred and sixty-two, the detailed entry in the record
is: "J. R. Eobinson et al. vs. Geo. Leger et al. — In this action, S. W.
Brockway and A. C. Adams appeared for plaintiffs, and W. P. George
and A. P. Dudley for the defendants; and, by consent of Counsel, the
case is ordered continued. W. P. George withdraws from the case;
whereupon the Court adjourned until to-morrow at 10 o'clock. James
H. Hardy."

Q. — State if you know any circumstances connected with that case
being on the calendar for the February term, and its continuance over
the term ?

A. — Yes ; I know some circumstances in regard to the continuance.

Q.— State them.

3Ir. Williams. — We object. The record shows it was continued by con-
sent.

Mr. Campbell. — We want to prove the circumstances under which that
consent was given ; that it was absolutely necessary for the plaintiff' to
consent, in consequence of the action of Judge Hardy.

Objection withdrawn.

Witness. — There was no affidavit made.

Q. — Did 3"0u ever have any conversation with Judge Hardy in refer-
ence to this case ?

A.— I did.

Q. — State what it was.

A. — Judge Hardy told me he wanted the case continued. In fact,
when that case and the Mereier case were called, on the first day of the
term, I understood him, although not very distinctly, to say something
about not trying the cases from the bench. He spoke to me about con-
tinuing the case. I told him I did not think my clients would consent to
continue it, but I would speak to them, and if they had no objection, I
would continue it. He said it Avotild be better for them to do so.

Q. — Did he say why it would be better ?

A. — He did not assign any reason at that time, that I recollect of I
went and spoke to my clients. We Avere ready for trial, and had our
witnesses there. There was one witness who had been subpoenaed, but
my clients deemed him immaterial, and he was not there. Hardy said

he wished he could make Mr. George consent to continue the case ; that
he refused to consent to continue it. And my clients, when I spoke to
them, said they would not, under any circumstances. I told them what
Judge Hardy said, and told them that I thought it would be a great deal
better, because there might be some misunderstanding; that we would
avoid an}' more new trials, and they had better continue the case. So
they said they would do so. When we went into Court, Mr. George
refused to consent to a continuance. Acting under what the Court had
said to me, I proposed making a statement of what the witness who was
not there would testify to, if there ; and I understood Mr. George in
Court to say he would not exact an affidavit, but take merel}' a state-
ment. I wrote out a statement of it, and when he came in he required
an affidavit, and my client would not make the affidavit ; said he was
ready for trial, and he would not make an}" affidavit. I thought then,
as the responsibility of the trial would be thrown on Mr. George, we
would go to trial. In a moment, A. P. Dudley came in. There had
been some talk in my presence. I was sitting in Leger's Hotel, and
Dudley came in and said he had been employed for the defendants in the
case. I think Judge Hardy was present ; he was out and in, and I
think was present at this conversation. I told Dudley he should not
help try it for the defence ; that his office had helped try it for the
plaintiffs once, when Adams, his partner, had sat by me and taken notes
for the plaintiffs, and that he, Dudley, should not act for the defendants.
He said that he should; that he had taken a fee, and should help em-
panel a jury, at any rate. I told Judge Hardy that Al. Dudley should
not help try that case for the defendants, unless the Court decided in
Court that a man had a right to do it, after having helped try it on the
other side. The Judge told me not to do any such thing ; " Let him try
it ; the quicker he kills himself, the better it is for you."

Q. — And under those circumstances you consented to the continuance?

A.— I did. It was after this talk that Mr. George and Mr. Allen P.
Dudley came into the Court room, the Judge being upon the bench,
and I consented to the continuance of the case. Mr. George immedir
ately gave notice that he withdrew from the case. I think I objected
in Court to Mr. Dudley's appearing, but no formal proceedings were had,
or any orders entered ; and the objection was not noticed, to my recol-
lection. I do not recollect of it because I was talking with Mr. Adams.
Mr. Adams sat with me to help try the case for the plaintiffs, when Mr.
Dudley came in for the defendants. When he appeared for the defendants
Mr. Adams gave notice that the firm of Dudley & Adams Avas dissolved.
To which Mr. Dudley responded : That for the purposes of that case
it was dissolved. Mr. Adams said : " I said the firm was dissolved."

Q. — Who were the Attorneys of record for the plaintiff in that case ?

A. — My name alone appears upon the papers. After the case was
brought, Mr. Adams proposed to me to help him and Mr. Dudley in a
case, and they would pay me. I said I would help them if they would
help me in this case ; and we would change work. They were employed
in the case. Mr. Adams was present assisting me on the previous trial ;
but I do not think Mr. Dudlej' assisted in the case.

Q. — Did Judge Hardy at any time assign any reason for wishing to
continue the trial of that cause ?

, A. — I do not think he did. He said he did not want to try it ; his
position was such — or something of that kind. I did not ask him his
reasons.

Q. — He said that his position was such that he did not want to try it,
did he ?

A. — I would not say that that was the exact language. I think he
said " his position ;" but there was something about it that made him in-
disposed to try it. I do not know what the reason was. I have no
recollection of any except what I have stated here.

On motion of Senator Parks, the Court adjourned until eleven o'clock
on Tuesday morning, April twenty-ninth.

TESTIMONY

IN THE

TRIAL OF JUDGE J. H. HARDY.

SECOND DAY— APRIL 29, 1863.

TESTIMONY FOR THE PROSECUTION

A. W. GENUNG RECALLED.

3Ii: Camphrll. — Mv. Genung, produce the records in the case of E.
Mercier vs. W. C. Denny et al.

The witness produced papers.

Q. — Are these all the papers on file in that case ?

A.— They were all here, and were numbered. (After a pause.) Ah !
there is one paper absent.

Q. — Where is that paper ?

A. — I do not know.

Q. — What paper is that which is missing ?

A. — I think it is an affidavit for a change of venue.

Q. — Do vou know where that paper is 'i

A.— I do not. I could not find it in the office. It has been filed with
the papers, I know, but it does not appear with them. These papers are
taken to Attorneys' offices frequently; and sometimes we find them in
one office, and sometimes in another. Sometimes they are returned to
the Clerk's office by the Attorneys ; sometimes we have to go after them.
Here are all the papers that I could get ; and all the papers are here, I
believe, except that one.

The President marked the papers produced by witness; the same be-
ing placed in evidence, and considered as read.
3

Mr. Campbell. — 3Ir. Geniing. will you turn to the niiDutes of the Court
of the fifteenth day of August, eighteen hundred and sixt^'-one, and read
the entry of that day ?

A. — The case is entitled. Briggs & George are for the plaintiffs, and
S. W. Broekway for defendants. E. Mereier vs. W. C. Denny et al. were
the parties to the suit. Plaintiffs made a motion for a change of venue.
The motion was argued, and the matter taken under advisement. That
is the substance of the record.

Q. — Will you turn to the records of the November term, eighteen hun-
dred and sixty-one ?

A. — I have the date. •■ E. Mercier et al. vs. W. C. Denny et al. — W. P.
George appeared for plaintiffs, and S. W. Brockway for defendants.
Defendants' motion for change of venue having been submitted to the
Court, and the Court having fully considered the same, the motion is
denied."

Q. — Xow will you turn to the minutes for the February term, eighteen
hundred and sixty-two ?

A. — I find an entrj' on page 584.

Q. — What entry is made there 'f

A. — ■• Monday, February 17th. 1862. Case entitled. Tod Eobinson
and AV. P. George for plaintiffs. S. W. Brockway for defendants. On
motion and affidavits of plaintiffs' Counsel, the case is ordered post-
poned until Thursday, February 27th, on plaintiffs' payment of costs."

Q. — Xow turn to the minutes of the thirtieth of Xovembcr, eighteen
hundred and sixty-one, and see the entry there.

A. — •' Saturday. November 30th. 1861. "W. P. George appeared for
plaintiffs, and 8. W. Brockway for defendants. Defendants' motion for
a change of venue having been submitted to the Court, and the Court
having fully considered the same, the motion is denied." [Page 562.] It
should read that the pkiintiffs moved for a change of venue. It was an
error in the record to say that the defendants made the motion.

Mr. Edgerton. — What is the date of the decision in that case ?

A. — November thirtieth, eighteen hundred and sixty-one.

Mr. Camphell. — Now say if there is any entry in that particular case
after February twenty-seventh, eighteen hundred and sixty-two. Was
anything farther done there at that term ?

A. — Nothing appears of record.

Q. — Nothing after the seventeenth and the twenty-seventh ?

A. — No, Sir. When two or three cases are set for a particular day,
and the first ease took xx]) the whole day. the others were postponed as
a matter of course ; and I did not usually enter a record of the fact of
their postponement, they not being called. If they were called. I would
enter a record of the postponement. They would be called on the suc-
ceeding day. or when reached.

Q. — Have you the records of the case of McDermott vs. Higby ?

A. — I have.

Q. — Will you produce them ?

A. — These [producing papers] are the}'.

Mr. Campbell. — Mr. President, we will offer these in evidence, and con-
sider them as read.

The Pre.sident marked the papers.

Mr. Campbell. — Q. — Turn to Ae minutes of February term, eighteen
hundred and sixt^'-two. At what date was the ease originally set in that
Court y

A. — I read from Tuesday, February foiirth, eighteen hundred and

sixty-two. Case entitled McDermott vs. Higby : " D. S. Terry ajipears
for plif. and W. L. Dudley for dft., and by consent of Counsel case is set
for tried Tuesday, February 25." [Page 574.] •

Q.— Which case is this ? The last suit ?

A. — Yes, .Sir. This is the last suit. Now, on February twenty-fifth, I
find another notice of the case. There I read from the records of Wednes-
day, February twenty-sixth, eighteen hundred and sixty-two. concerning
the case : '■ 1). .S. Terry appears for plff. and W. L. Dudley for deft.
And after argument of Counsel, the Court decides the deft's plea in
abatement is not well taken, to which ruling of Court deft, excepts.
Case ordered postponed until to-morrow." [Page 594.] Then there is a
record of proceedings on Thursda}'. February twenty-seventh. There is.
as usual, a short history of the trial — the empanelling of the jnry, their
names, etc.

Q. — How many days did the trial occupy ?

A. — Well, that was Thursday. The Court adjourned during the pen-
dency of the trial. Friday, it was continued, and the Court adjourned
during the pendency of the same suit. And Saturday it was on trial.
Saturday, it took all da}'.

Jlr. EJycrton. — Then it occupied three days ?

A. — Yes, Sir.

Q. — Was that Saturday the last day of the term?

A. — ^Yes, Sir.

Mr. Cdmphell. — What is Saturday's entry ? Eead it.

A. — Well, it is very long; I will give an abstract of it, which is what
you want, I suppose. Appearance of Counsel is noticed, etc.

Mr. Campbell. — I merely wanted to get at the adjournment of the
Court.

Wifncsif. — Oh. the ultimate adjournment?

Mr. Cainpbi'll. — Yes, Sir.

Witness. — I will read the closing portion of the minutes.

Mi". Camjihcll. — That is what I Avant.

Witness. — Case is entitled ^' McDermott cs Higby." " After argument
of Counsel and charge of Court, the jury retired to deliberate upon their
verdict. The hour of twelve o'clock, midnight, having arrived, the jury
not having returned into Court with a verdict, and the legal time for
holding the Court having expired, the Court adjourned, sine die." That is
all the record that I made in this case, until within the last twelve days.
I was at a little loss how to make the entry. Judge Hardy gave me in-
structions on the night of the trial. I deferred making the entry then,
and I have not seen him at the Hill since. I have made a minute in the
record since it was examined by the Committee.

Mr. Catnphell. — Well, that additional entry has been made since the
books were before the Investigating Committee of the House, has it not?

A. — Yes, Sir ; it has. I make a rough minute, sometimes, in pencil,
from which I Avrite up my records after Avards more fully. Judge Hardy
gave me directions on that occasion; but he said he would come in and
see about it afterwards. I have not seen him in the Court House at
Mokelumne Hill since that time. That is the reason Avhy I left the
record in that unfinished condition.

Q. — Eead the record in the first case of McDermott vs. Higby.

A. — I read from the records of Saturday, June first, eighteen hundred
and sixty-one. It is on page 502. This is another case. " In this
case, plaintiff and Counsel having been called, and failing to answer or

appear, on motion of "W. L. Dudley, Counsel for defendant, the cause is
ordered dismissed."

Mr. Williams. — I do hot understand you exactly. You say that on
Saturday evening, the case having been summed up, was given to the
jury. You say that at twelve o'clock that evening they had not re-
turned ?

A. — Xo, Sir; they had not returned at twelve o'clock.

Q. — The legal term of the Court expired at twelve o'clock ?

A. — I so understood it.

Q. — The jury came in at one o'clock?

A. — That is my recollection.

Q. — They brought in a verdict, and it was filed ?

A. — Yes, Sir.

Q. — You say you made a rough minute of the proceedings ?

A.— Yes. Sir.

Q. — This was the last record of proceedings made in that case until
after you were summoned here to answer before the Committee of In-
vestigation or Accusation ?

A. — That is the record. After sitting in Court all day listening to the
trial, engaged as I was, I would not write up a long verdict, containing
special issues, at one o'clock; but I would defer the writing up of the
record to another time, when I had more leisure. But I filed the ver-
dict, so as to answer all the requirements of the law concerning the mat-
ter.

Q. — The whole of the verdict was recorded ?

A. — Yes, Sir.

Q. — AVas there a general verdict ?

A. — Yes, Sir, and a special verdict.

Q. — Was the whole verdict written and signed by the jury ?

A. — My impression is that it was not signed by any of the jurors. I
think that the jury was polled.

Q. — Xow, I understand you to say that since you were summoned ii ere
as a witness before this Committee of Investigation, that you made a
further record ; or. perhaps, it is more proper to say that you have " writ-
ten up " the record ?

A. — "Well, I have recently made the record of that which 1 made a
rough minute of on the night of the trial. I made a minute of the find-
ing of the verdict, and a rough minute of its reception. I made no re-
cord at all of the substance of the verdict.

Q. — Xow, at whose suggestion did you make the record within the
last ten days ?

A. — My own. Xo one prompted me to do it. I tried to get sugges-
tions as to the best mode of doing it, but could not. I asked Mr. Wil-
liam L. Dudley about it. I stated to him what I proposed to do. He
said, '•'• I am engaged in the case, and I will have nothing to do with it."
That was substantially what he said. I asked Judge Hardy about it, in
Jackson, and he returned me the same answer that he did that night of
the trial. As he was leaving the bench, I called him to my desk, and
asked him for directions about making up the record. I should have
made the entry on the next day, Sunday, or on Monday, had Judge
Hardy not said, " I will come in and sign the record to-morrow." That
is the reason for the delay. Then this prosecution was started, and that
was further cause for delaying in regard to this matter, as I did. I
knew that the Attorneys had seen these records as they were ; and I

kneAY that I should be summoned here with these books. I was un-
willing to make any additional writing then, at that time.

Q. — After your ap])earance here before the Investigating Committee,
youj^made a record of what occurred in Court on Sunday morning ? And
on your own motion?

A. — Yes, Sir.

Q. — You state that you made an inquiry at Jackson of Judge Hardy ?

A.— Yes, Sir.

Q. — Did not Judge Hardy tell you not to meddle farther with the
recoi'd ''. to leave it as it was ?

A. — I had two interviews with him. On one occasion he gave me the
same instructions which he did on Sunday morning or Saturday night.
But wlien I was passing through Jackson, to come here as a witness —

Q. — [Interrupting.] Since the commencement of this prosecution,
and while you were on your way to this city with the records, did not
Judge Hardy tell you not to do anj-thing with them ; but to leave them
as they were i

A. — That was his advice, substantially. I think that he remarked,
that if I had written it up he would not have signed it now ; or some-
thing like that.

Q. — That was after the commencement of this prosecution or examin-
ation ? ,

A. — Yes, Sir.

Mr. Camphell. — Was that verdict signed ?

A. — I think it was not signed. I think the jury were polled.

Mr. WiUi((ms. — It was written and delivered by the jury, and you think
that the jury were polled/

A. — Yes, Sir. There was a general answer to the verdict, and I think
the jury were individually asked.

Mr. Camphrll. — Is that answer on file ?

A. — Yes, Sir ; on the same piece of paper.

EXAMINATION OF MR. BROCKWAY RESUMED.

Mr. Caynphell. — Will you state whether you were Counsel in the case
of E. Mercier et al. vs. W. C. Denny et al., referred to by the last wit-
ness ?

A. — I was one of the Counsel for defendants.

Q. — Who were the other Counsel in the case ?

A. — I drew all the papers, and the other Counsel, to whom I spoke in
the matter, and who, for a certain purpose, ajjpeared Avith me in the
case, were Dudley & Adams, and W. L. Dudley.

Q. — For what purpose did they appear ?

A. — I got them to appear for the purpose of securing their influ-
ence.

Q. — Their influence with whom ?

A. — With the Court. I told some of them at the time —

Mr. Williams. — Never mind what you told some of them.

3fr. Campbell. — ISTow state all you know in relation to the motion for a
change of venue in that case.

A. — All that I know in relation to that matter is, that the motion was
made, that it was resisted, argued, taken under advisement b}" the Court,
and subsequenth' refused. •

Q. — When was it taken under advisement ?

A. — I cannot recollect the date without looking at the record.

/•

Q. — Was it at the time the motion was made that the m.atter was
taken under advisement ?

A. — I believe it was.

Q. — Just refer to the record of the fifteenth of August, eighteen hun-
dred and sixty-one.

A. — Yes, Sir. On the fifteenth of August the record shows that the
motion was argued, and taken under advisement.

Q. — Do you know anything of, or did Judge Hard}^ ever say anything
about it, j^revious to the rendering of the decision in rehxtion to that
matter ?

A. — I do not recollect that he ever said anything to me in relation to
the motion for a change of venue, from the time it was argiied until the
time the decision was rendered in Court. I was out of Court at the
time the decision was announced ; I think that I came in afterwards,
and was informed that the motion was denied. I have no recollection
of having any conversation with the Judge in relation to the matter
during the time to which you refer.

Q. — Xow, will you state what you know in relation to any continu-
ance of the case from the seventeenth of February until the twenty-
seventh of February, eighteen hundred and sixty-two ?

A. — ^Yell. in the early part of the trial — the case was set for trial. I
believe, on the seventeenth of August — on the morning of the day on
which it was set for trial, the Counsel for defendants came into Court,
and pleaded before the Court for leave to amend their replication. I think
that, according to the Eules of the Court, as they are established in the
Sixteenth Judicial District — that is my recollection — all pleadings for
motions to amend must be made before the case is reached for trial.

Mr. Highi/. — Just turn to Rule Twentj^-Sixth of the Court — that will
tell you.

The witness read the Twenty-Sixth Rule of the Court, which is as
follows :

RULE TWENTY-SIXTH.

No amendment will in any case be allowed for any defective pleading
after a cause is called for trial. This Rule shall not apply to any clerical
error or omission.

That is the Rule.

Q. — That is one of the Rules of that Court, is it ?

A. — Yes, Sir ; that is one of the printed Rules, and I think it is also
written in the records. We resisted the motion to amend the replica-
tion. There was Mr. William L. Dudley —

Mr. Wilh'nms. — [Interrupting the witness.] You are now speaking of
the motion for leave to amend ?

A. — Yes. Sir ; I am speaking of the motion for leave to amend the re-
plication. I think Judge Robinson stated, that as the pleadings then
stood —

Mr. Willirrms. — [Interrupting.] What Judge Robinson ?

A. — Judge Tod Robinson.

Mr. Camphell. — Whom did Judge Robinson represent ?

A. — He was then representing the plaintiff.

Mr. Campbell . — Who else was in the case ?

A.-#-W. P. George of Amador, was in the case. I do not know but
that I stated that the defendants made the motion for leave to amend the
replication. It was the plaintiffs who made that motion. We resisted it,

as cut oif by the Eule. I think that Judi^e Eobinson stated, that as the
pleadings then stood, the defendants were entitled to judgment from the
pleadings.

J/r. Wi/Iiams. — Did he make that statement in open Court ?

A. — Yes, Sir, in open Court. Something to that effect, if it was not a
direct statement. The defence consisted in denying the judgment which
I had pleaded in the answer, in bar of that action, in a case tried between
E. Mercier. plaintiff, and J. ^. JRobinson and others, defendants. This
case involved the right to work the same mining ground, and the defend-
ants in tin's suit had purchased of the defendants in that suit, and I pleaded
that judgment in bar. They had purchased the mining ground, the
property in controversy. They had succeeded to all the interests of the
former defendants ; an<l the other side, through some carelessness or neg-
lect, or lack of investigation, had failed to deny that judgment suffi-
ciently, so that, as the pleading then stood, we were entitled to judg-
ment.

Mr. Campbell. — Was the case set for trial on the seventeenth ?

A. — That was the morning the case came up.

Q. — State all that took place.

A. — Well, I believe that the first thing submitted by Judge Eobinson .
was the proposed amendment to the replication. He was answered that
there was no showing made for the amendment. The Judge, from the
bench, said that it would require a showing, notice, affidavits, etc.. and he
would continue the motion to a certain day — to a day.' which. I believe,
was just a week from that time. The case was set for trial. I think, on
the twenty-seventh of that month. I find, on page 584 of the records,
date, seventeenth of February, the following entry :

••£. 3Iercier et al. is. W. C. Denny et al. — Tod Eobinson and W. P.
George appear for j^lffs. and S. W. Brockway for defts. and on motion
and affts of plfl:s" Counsel the case is ordered postponed until Feb
27th, on pltfs' payment of costs."

Q. — Say whether that motion was opposed, or not.

A. — Oh, yes, Sir ; we opposed the motion. We did everything we
could to defeat it.

Q. — State whether you ever had any conversation with Judge Hardy
relative to any action, or inaction, in that case.

A. — Yes, Sir; I did.

Q. — State when and where that conversation took place.

A. — I think it was on the twenty-eighth. It was either on Friday or
Saturday. I think it took place on the last day Court was held.

Q. — State where that conversation took place, in whose presence, and
what it was ?

A. — The conversation took place at Mokelumne Hill ; a portion of it
in my office, and a part of it in the -hall which runs through the lower
floor'of the Court House. There was no one present but Judge Hardy
and myself.

Q.— Well, go on. and state what that conversation was.

A. — I wenit into my office with the Judge to do some writing. There
I told Judge Hardv that ilr. William L. Dudley had told Mr. Denny,
one of the defendants, that he (Judge Hardy) had told him (Mr. Dudley)
to consume all the time he could in the trial of the case of McDermott
<•>•. Higby. so as to prevent this case from coming u}:) — this case of E.
MercierV*. Denny and others. The Judge said that it was true — that
he did tell Mr. Dudley this. I think that I went on to say that he
(Judge Hardy) was reported by Mr. Dudley to Mr. Denny to say that

he (Judge Hardy) wanted time — that he must have time. The Judge
said that it was true — that he did tell Mr. Dudley that he wanted him to
consume all the time he could in this case of McDermott vs. Higby, so as
to prevent this other case from coming np for trial. At that time, I re-
quested Judge Hardy not to let any one know that I had told him about
this conversation betAveeu Mr. Dudley and Mr. Denny ; because I did not
Avish to get mixed up at all in any matter concerning it. I subsequently
met theJudge in the hall of the C-ourt House. He had been out. He
said that he had told Denny how it was — that he tried to put the case
over, by indirect means; that he was a fool'for doing it ; that he had
ought to have gone right to him in the first place, and made him put it
over. I met Denny immediately after that, or he came in for the purpose
of going up stairs into the Court room, while we were standing in the
halT.

Mr. Camphrll. — Eepeat the conversation you had with Judge Hardy in
the Court House.

A. — That was in the hall of tlie Court House. That was, as I say,
when I met Judge Hardy after he had seen Mr. Denny. The Judge told
me that he had seen Mr. Denny, and told him just hoAV the matter was.
I inquired of the Judge if he had told Mr. Denny that I had told him in
regard to Avhat Mr. Dudley had reported to Mr. Denny. The Judge said
that he had not. I also gave Mr. Denny to understand that I did not
tell the Judge. The Court was going up then. We went up to the Court
room.

Q. — The case was not tried_ at that term ?

A. — No, Sir. The' case of McDermott vs. Higby lasted until late at
night on the last day of the term. I think that I went home before the
verdict was rendered in that case. I think that case lasted three days
in all.

Q. — Did Judge Hardy assign to you, at any time, any reason why he
wanted time in that case ?

A. — No, Sir. He said that he was in such a position that he did not
want to try the other case. He did not tell what the reason w^as, par-
ticularly, or sa}^ anj'thing else by way of excuse, except what I have
stated. Not that I recollect of. I know that in that case the defend-
ants were very anxious to get a trial, and had been, for a long time.
And th(3 lirst I knew anj^thing in regard to this particular matter of the
Judge's wanting time, was, when I heard this conversation between Mr.
Dudley and Mr. Denny.

Q. — Do you know anything about the case of W. F. McDermott vs.
Burke et al. ?
A. — Yes, Sir.

Q. — State all you know in relation to that.

[The witness here produced and*identified certain papers in the case
of McDermott vs. Burke. These papers were placed in evidence, and
considered as read.]

CONCERNING AN ASSAULT UPON A WITNESS.

Mr. Higby, of the Counsel for prosecution, here rose and begged leave
to interrupt the proceedings of the Court while he made a statement.
He said :

A gentleman who has been called here from a distant part of the
State, as a witness on behalf of the prosecution, has, within the j)a8t
few minutes, been assailed, in this building, hy an individual, armed with

deadly weapons. I call the attention of the Court to this fact, and I
ask that the protection of this tribunal l>e thrown around the witnesses
who have been summoned here. Tlie witness who has been assaulted
on this occasion, is Mr. Allan P. Dudley, of Calaveras. Mr. D. L. Mul-
ford \vas the individual who made the assault.

Tlid PrcsuJin;/ Officer. — Under the Rules of this body, the parties can
be brought before the Senate. It is made my duty to call upon the Ser-
geant-at-Arms to arrest ])artie8 who may be guilty of such acts, and
bring them before the bar of the Senate. Call the Sergeant-at-Arms.

Mr. Hujhij. — I had very good information beforehand of the intention
on the part of Mr. Mulford to make this assault. I understood that on
Sunday, and for some days past, he has been moving about the streets
of this city, with arms upon his person, looking for this same individual
whom he has now assailed. I intended to have notified Mr. Dudley of
this fact this morning, but it slipped my mind.

Mr. Williams. — I do not wish or intend to attribute any improper mo-
tives to Counsel for the remarks they have made in regard to this matter.
I do not say, that by bringing this matter in here, they have sought to
prejudice the minds of Senators against my client. I do not suppose
that these statements could have any such effect here. At all events, I
shall have it distinctly understood, in connection with this announce-
ment, that Mr. Mulford is not a witness on behalf of Judge Hardy. He
is not here as a witness of Judge Hardy's ; he is not Judge Hardy's
friend ; he does not live in Judge Hardy's county or district. I want all
these announcements to go together. 1 have no right to accuse any of
the Counsel of having made the announcement with regard to this as-
sault, for the purpose of Buncombe, or for the purpose of prejudicing
this case. But I have a right, and it is my duty, when a statement of
this kind is made, to say, that neither Judge Hardy, nor an}^ of Judge
Hardy's friends, had any thing to do with it.

Mr. Hicjhy. — Truth is never Buncombe. I have stated what I believe
to be true ; for that reason I refuse to make any qualifications.

Mr. Willi<(m>;. — The truth, stated under certain circumstances, in certain
connections, without certain explanations, may inflict as great a wrong
as the uttering of a falsehood.

Mr. Highy.—l understand that the Court has acknowledged that this
matter comes properly under his notice.

The Presiding Officer inquired if Mr. Higby knew of this assault, of his
own knowledge.

Mr. Higby replied, that he was informed as to the facts of the assault
by a member of the Assembly ; that since the assault had taken place,
he had seen Mr. Dudley himself Mr. Dudley, he said, had gone to the
police office to get out a warrant against Mr. Mulford.

The Presiding Officer said that the' Senate would take cognizance of
these matters hereafter, and would have the offenders brought up to the
bar to answer. He said there had been two or three cases of assaults
committed in the building during the session. It was time such things
were summarily dealt with. He announced, that whenever directly- ad-
vised by a member of the Senate, or a member of the Assembly, or by
any of the Counsel in the case, or by any other respectable parties, of
an assault having been committed within the immediate precincts of the
Court, he would'have the offending parties arrested, and brought before
the bar of the Senate, to answer for their conduct. The Senate, sitting
as a Senate, would investigate the case, and fix a penalty.
4

CONTINUATION OF MR. BROCKWAy's TESTIMONY.

Mr. Campbell. — Mr. Brockway, proceed to state what you know in re-
lation to the case of W. F. McDermott v.s. F. C. Burke et als.. in the
District Court of the Sixteenth Judicial District, of and for the County
of Calaveras.

Witness. — "Well, shall I state what the case was brought for ?

Mr. GamphiU. — Yes, Sir.

A. — It was a ease brought to recover property forinerly^ owned by the
Table Mountain Water Compan3% under an unexpired leasehold, which
the plaiutitf alleged he had become seized and possessed of.

Mr. WiUinms. — Eeal estate ?

A. — Xo, Sir ; not exactly. It was a water ditch and flume, for mining
purposes. The defendants set up, in defouce. that they were owners, and
entitled to the possession of the property; and that the leasehold estate
had ceased and determined ; that the leasehold had been cancelled. It was
conceded that the defendants were owners of the property. The only
question was, the right of possession during a year or more of the con-
tinuance of the lease. The Attorneys for the plaintiff, I think, were
Eobinson, Beatty, and Heacock, of Sacramento. I was for the defend-
ants. Employed with me on the trial of the case, Avas Mr. Sunderland
of Sacramento. An application was made for the appointment of a
Receiver.

Mr. Williams. — On which side was Mr. Sunderland Counsel ?

A. — For the defendants, with me. There was a motion made for the
appointment of a Receiver.

Mr. Gamj)hell. — When was that ?

A. — Well, I have the entry here somewhere. I think it was some
time in December, eighteen hundred and tifty-nine. I think that a Re-
ceiver was appointed on the same day that the motion was made; that
was on the third day of December, eighteen hundred and fifty-nine.
The affidavit on which the motion was made, was filed on the twenty-
eighth of Xovember, eighteen hundred and fifty-nine. On the third of
December, eighteen hundred and fifty-nine, an order was made appoint-
ing Joseph P. Vaughan, Receiver. I will read the order of the Judge in
this case. *

W. F. McDermott ")

vs. > In the District Court of the Sixteenth District.

S. W. Burke, et als. )

This case is now before the Court on motion for the appointment of
Receiver. The property is a water ditch, the title being in dispute. I
is impossible to ascertain the value of the rents and profits, and for that
reason a Receiver should be appointed.

The name of Joseph P. Yanghan having been suggested as a suitable
person to be Receiver, by plaintiff's Counsel, he is hereby appointed Re-
ceiver, subject to the right of defendants to move for a revocation or
substitution, and on the filing a bond to the State of California in the
sum of five thousand dollars, conditional for the faithful performance of
the duties of Receiver, and for the prompt payment of all moneys coming
into his hands according to law and the orders of the Court hereafter to
be made, lie is authorized to take possession of the ditches, flumes, and
property described in the complaint, and to demand and receive all water

rents, issues, and profits, arising therefrom, until the further order of this
Court.

[Signed] JAMES H. HAEDY,

District Judge.
MoKELUMNE IIiLL, December 3d, 1859.

Witness. — The defendants at that time were in possession of the ditch,
and, as we alleged to the Court, making large improvements upon it; and
we did not wish a Receiver to interfere with the possession of the prop-
perty so as to prevent our malcing any improvements. I understood the
Judge to say, at the time the Receiver was appointed, that he Vv^ould not
allow the Receiver to interfere with the possession of the property in
such a manner as to prevent our making the improvements wc desired.
A short time after the Receiver was appointed, my clients came to me
and complained that the Receiver was turning them entirely out of pos-
session of the property. The}- said that he refused to allow them to
have anythii^g to do with it. I went to Jackson, and there made a mo-
tion before Judge Hardy for tlie purpose of getting liim to instruct the
Receiver in regard to this matter. This, Judge Ilardy refused to do.
Subsequently, a motion was made to remove the Receiver.

Mr. Campbell — AVhen was that motion made?

A. — I believe the papers are here, from which I can tell. Yes, here
are the papers ; here is the affidavit, and the notice of the motion, and
the order for the hearing of the motion. I can best explain matters by
reading them.

[The witness read as follows :]

State op California,
Plaintiff.

County of Calaver

...}

"W". F. McDermott, ^

^,, , In District Court, Sixteenth Judicial Dis-

ci 1^- t? 1 trict, in and for said County and State.

S. \v . Burke, et als., , ' -^

Defendants. J

Hiram Hughes, one of tbe defendants in the above entitled action, be-
ing duly sworn, deposes and says :

That Joseph P. Vaughan, the Receiver appointed by the Court in the
said action, has, by virtue of his appointment and pretence of authority
thereunder, taken entire and absolute possession of all of the property
known as and called the " Table Mountain Water Company's Ditch," de-
scribed in the plaintiff's complaint, and ousted the defendants therefrom;
that he has and does refuse to permit the defendants, who are the own-
ers thereof to have anything to do with the control, management, or
improvement of such property, in open violation of their rights and of
the law. That by his uidawful and arbitrary conduct in the premises,
he prevents the defendants from keeping such property in repair, and
from making such improvements thereon as are absolutely necessary for
the preservation thereof That such Receiver is wholly unacquainted
with the management and control of ditch property, and conducts the
same in such a manner as greatly to injure said property, and lessen the
receipts thereof

That he dismissed employes of the defendants who were well acquainted
with said propertj^ and the management thereof, and employed in their
places men who have not the necessary experience to enable them to do
such business properly.

That under his management, the expenses of managing the said prop-
erty are greatly increased, and the property suffering great damage for
want of proper care and management thereof.

That said J. P. Vaughan, who is the acting Eeceiver, has acted as one
of phiiatiff s Attorneys in said action, and himself served the papers in
the motion made for the appointment of a Eeceiver in such action.

That there are good and competent husiness men who can he appointed
as Eeceiver. with all necessary experience therefor, who will take care
of, control and manage the propert}' and business aforesaid, at one half
the costs that Yanghan is incurring by his management thereof.

"Wherefore, the defendants pra}' the Court to remove said Joseph P.
Yaughan from the position of Eeceiver, which he now holds by appoint-
ment of this Court.

[Signed] HIEAM HUGHES.

Sworn before me this sixteenth da}' of January, eighteen hundred and
sixty.

[Signed] S. W. BEOCKWAY,

Xotary Public.

State of California, )

County of Calaveras. \

W. F. ]\IcDermott, "]

Plaintiff. |
^g \^ln District Court, Sixteenth Judicial Bis-

S. W. Burke,' et als., [ ^^■^^*' ^^ ^^^ ^^^ '^^^ ^^"^^>' ^"^ ^^'^*'^-

Defendants. J

Take notice, that on the twenty-first day of January, eighteen hun-
dred and sixty, the defendants in the above entitled action will move the
Hon. J. H. Hardy. Judge of the Court aforesaid, at his chambers, at the
village of Mokelumne Hill, at twelve o'clock, m., of said day, for an or-
der revoking the appointment of Joseph P. Yaughan as Eeceiver in said
action, and to remove him therefrom. Said mdtion will be made upon
the aflSdavits, copies of which are herewith served upon you.

Yours, etc.,
[Signed] S. ^\. BEOCKWAY,

Defendants' Attorney.
Messrs. J. P. Yaughan, Eeceiver, and Eobinson, Beatty and Heacock,
Plaintiff" s Attorneys.

It is hereby ordered that the hearing of the motion, of which the
within is notice, be at nw chambers, at Mokelumne Hill, on tfie twenty-
first day of January, A. D. eighteen hundred and sixty, at twelve o'clock,^
M., of said day.

[Signed] JAMES H. HAEDY,

District Judge.

[Witness went on to say :]

On the morning of the day in which the motion was to be heard,
Judge Hardy and O. H. Beatty, of Sacramento — who came up on the
part of the plaintiff"s Attorneys, to ai'gue the motion — came into my
office, where I sat; and the Judge said to me that he would not hear
the motion. He said that he and Frank Treat, Avho was one of the de-
fendants, were not on friendl}' terms, and that he would not hear any
motion in which he was interested.

Iff. Williams. — Q. — What do you mean by " he ?"

A. — Treat. Treat — I mean Treat.

Mr. L'amiiihell. — State whether any, and if so, what property came into
the hands of the Receiver under that appointment.

A. — Well, the order was made to place the Receiver in possession of
the ditches, flumes, and other propert3^ in controversy.

Q. — Do you know anything about the revenue of tliat property?

A. — Not of mj^ own knowledge. All I know is what I. have been told.

Q. — I)o you know whether that property was producing any revenue
or not ?

A. — That I cannot tell, except from what my clients told me, and what
was said in Court. Some of the owners could tell more about that than
I eoitld.

Q. — The motion, then, for the removal of the Receiver was not heard ?

A. — No, Sir, it was not.

Q. — AV^as any other reason assigned by Judge Hard}- for refusing to
heaf the motion ?

A. — There was not, that I heard of

Q. — At the time of the appointment of the Receiver, did Judge Hardy
make any objections to hearing the motion for the apjiointment ?

A. — No, Sir. No objection was made by either side, or by any one,
that I am aware of. I never heard of any.

Q. — Can you state what relations existed between the Receiver ap-
pointed, Joseph P. Vaughan, and Judge Hardy?

A. — I did not know about their relations at the particular time the a]3-
pointment was made. They had been law partners there before.

Q. — How long before ?

A. — Up to the time that Judge Hardy went upon the bench. This
suit was commenced in August, eighteen hundred and fifty-nine. I think
that the Judge was appointed in January, eighteen hundred and fifty-
nine. That is my recollection.

Mr. WiHiams. — Q. — The suit Avas commenced when ?

A. — In August, eighteen hundred and fifty-nine. In the preceding
January, the Judge was appointed to the bench. It was either in Jan-
uary, or the first of February, that he was appointed.

Mr. (Jainphell. — Q. — In what year ? '

A. — In the same year, eighteen hundred and fifty-nine.

Q. — State what Joseph P. Yaughan's reputation was, with regard to
pecuniary responsibility, at the time of his appointment as Receiver, and
at the time of the motion for his removal ?

A. — Well, I do not know of any property that he had. I can only
state what I did not know. I did not know of his having any property.

Q. — Di^ you know what his pecuniary condition was, generall}^ ?

A. — I can only state concerning him that which I might know of any
one. It would be an entirely negative statement. I did not know of his
having any property.

Q. — How long have you knowni him ?

A. — I have known h'im — I cannot tell exactly. I have known him for
a year or two, or about that, I should think.

Q. — Did you live in the same town ?

A. — We lived in the same town.

Q. — What was his general character for pecuniary responsibility ? Do
you know what it was at the time of his appointment as Receiver, and
at the time of the motion for his removal ?

3Ir. Williams. — I object to the mode of putting the question, and I
object to the question.

The Attorney- General. — Did you make a lack of pecuniary responsibility
on the part of Mr. Yanghau a ground for opposing his appointment ?

A. — I did not know of the appointment until after it was made. The
first that I knew of the matter was. I was informed that the motion had
been made to the Judge, and a Eeceiver appointed. I went to the
Clerk's office immediately, and found that Mr. Yaughan had been ap-
pointed.

The Attorney- General. — Was he appointed withoiit notice?

A. — No. Sir; there was an affidavit filed by the j^laintiff; and there was
an affidavit on the part of the defendants, resisting the appointment.

The Attorney- General. — Was you the Attorney appearing for the de-
fendants ?

A. — Yes, Sir, I was.

Mr. Williams objected to more than one Counsel on a side examining
witnesses, and desired an enforcement of the rule regarding this matter.

3Ir. Comphell. — Do you know what Mr. Yaughan's character wa^ for
pecuniary responsibility, at the time he was appointed Eeceiver, and at
the time the motion was made to remove the Eeceiver ?

Mr. Williams objected to the question as irrelevant and immaterial.

Mr. Campbell said that he supposed that if the prosecution could show
that Mr. Yaughan's reputation for pecuniary responsibility was not good
at the time he was appointed Eeceiver, and was not good at the time
when Judge Hardy refused to listen to the motion for his removal, it
would be proper. Of course, it was attempting to prove a negative —
that a man has no means. The only way to prove such a matter is by
the testimony of persons living in the same place, and likely to be
acquainted with any property he might possess. They could testify as
to a general reputation in this resjiect, whether or not he was generally
considered, pecuniaril3^ an irresponsible man.

Mr. Williams contended, in the first place, that this testimony was
irrelevant and immaterial. The fact now sought to be established in
this indirect manner was not material, he contended. A Eeceiver must
give ample and satisfactory bonds before he could enter on the duties of
the oflice. Men are very often selected for important trusts who have
no property; upon whom, individually, reliance is placed, simply on ac-
count of their capital of good character ; reliance for pecuniary securitj'
being placed entirely upon the bonds given in their behalf by other par-
ties. We all knoAv men who have themselves no pecuniary responsibility,
in whose hands thousands are placed. It is often so with public ofiicers.
Mr. Williams submitted that the fact of pecuniary ii'responsibility, sought
to be proved, was obviousl}' immaterial and irrelevant. And he said that
if it was relevant, the proper mode of proving the fact hacT not been
adopted.

The Presiding Officer intimated that be was of the oj^inion the ques-
tion as to the solvency of the Eeceiver could not be testified to, unless*
the matter was more specifically and intimately connected with the case
than it now appeared to him to be.

Mr. Campbell statetl that the prosecution proposed to show that the
bonds of Mr. Yaughan, as Eeceiver, could not be found, and that Mr.
Yaughan ran away with a large amount of money.

B}^ request of Counsel, the witness re-read from the order of the
Judge, appointing Mr. Yaughan Eeceiver. and also from the affidavit
which was filed when the motion was made for Mr. Yaughan's removal.

Mr. WilUams. — Was there another afiidavit setting up Mr. Yaughan's
X)ecuniary irresponsibility?

A.— :N"o, Sir.

The witness here re-read the notice given before the motion was
made for the removal of Mr. Yaughan.

Mr. Williams. — Do j'oii recollect that auj^part of that motion was based
on the asserted insolvency or not?

A. — I do not recollect that it was based on any such reason.

Mr. CdmpheU. — Well, I will withdraw that Cjuestion, and I will ask him
to state what was done after the refusal to remove the Eeceivcr ?

A. — Mr. Vanghan acted as Receiver, and there has never been any
order made to change the Eeceiver. Mr. Yanghan went to Washoe ; at
least he told me he was going ; at least Judge" Hardy told me that he
was going there, I think. I believe that he left the property there in
some one's care. I applied to the Judge to take some account of it.
The case was taken to the Supreme Court, and they reversed the deci-
sion of the District Court. During all this time the property was under
the hands of the Eeceiver. After the jiidgment came back from the
Supreme Court, I applied to the District Court to appoint some one as
referee to take and examine the Eeceivei^'s accounts. I think that the
first person appointed was Charles D. Spiei's. Mr. Spiers, after a few
days dela}-, said that he would not take the ofKce. Then the Court ap-
pointed, as referee, Charles A. Leek. The accounts Avcre all referred to
him, I suppose. An account, or report, has never been rendered. No
accounts have been rendered or tiled — none that I know of. I have
looked repeatedly at the papers, and I have never found anything on file.

Mr. Comphell. — There never was any money paid over to the Eeferee,
was there 't

A. — None that I know of.

Mr. Williams objected to this testimony. I wish to know if the Coun-
sel intends to hold a judicial ofiicer responsible for the actions of his aj)-
j)ointee ? jS'ow, I have always understood that it was the dut}^ of
Attorneys to push up these matters. I always thought that it was their
duty to bring such matters to tlie attention of the Judge — not that it
was his business to watch over his appointees, and search out grounds on
which he could remove them. It seems to me that this testimony is
irrelevant. And upon the ground that a judicial ofiicer is not responsible
for the acts of his appointee, I most respectfully protest against the
course of this examination.

Mr. CampheU. — Of course we do not undertake to say that a judicial
officer is absolutely responsible for the acts of his appointee. But here
is the charge in the Articles of Impeachment :

" On or about the first day of July, A. D. eighteen hundred and sixtj^,
a certain case, wherein W. F. McDermott was plaintifi'. and S. W. Burke,
et al., were defendants, was pending in the District Court of said Six-
teenth Judicial District, in and for said County of Calaveras, before the
said James H. Hardy. District Judge, in which case, Joseph P. Yaughan
had been ajjpointed Eeceiver, previous thereto, by said Hardy, to take
charge of, and have the care and custody of, certain property in litiga-
tion,"in said case, and said James H. Hardy, District Judge, as aforesaid,
did, at the Court House in said county, on or about the day last aforesaid,
wilfully, unlawfully, and corruptly, refuse to hear, and abstain from hear-
ing a motion, on the part of the defendants in said case, to remove said
Joseph P. Yaughan, Eeceiver, as aforesaid, and did, then and there, wil-
fully, unlawfully, and corruptly, continue said Joseph P. Yaughan, such

Eeceiver. in said action, to the great prejudice and injury of the rights
of the defendants in said action."

Now, in order to substantiate this Article, we show the appointment of
Mr. Yaughan. as Eeceiver. AVe then proceed to show that when an affi-
davit Avhich, if true, certainly affords abundant ground for his removal,
is presented, the Judge refuses to hear the motion, and continues the
Eeceiver in office "We then go on to show that the result of this is to
the prejudice of the parties in interest. We show that the Judge refused
to hear the motion to remove the Eeceiver, because, as he said, one of
the parties defendant in the case Avas not on friendly terms with him.
"We then propose to show that the Eeceiver went off, and abandoned his
trust — left, without rendering any account of his trust; and, that in con-
sequence of the unlawful action of the Judge, in refusing to hear the mo-
tion to remove the Eeceiver. the parties suffered serious injury.

Mr. "Williams contended that if the parties suffered injury- from the
acts of the Eeceiver, or the Eeferee, their remedy did not consist in im-
peaching the Judge who appointed the Eeceiver or the Eeferee. The
Judge was not responsible for the acts of his appointees. The remedy is
in the hands of the Counsel, or the Attorneys for the parties. If every
Judge in this State could be impeached on account of the defalcation of
the Eeceiver. or the Eeferee, whom he may have appointed in the course
of his judicial action, I have no doubt there would be some very excel-
lent judicial openings in this State before long. The question as to what
a Eeceiver does, or neglects to do, after his appointment, is not to be
charged to the account of the Judge who appointed him.

Mr. Williams complained that the Article, in this instance, did not
give the defendant notice of the proof which the prosecution intended
to introduce with regard to the points now raised in the examination.
He asserted that the same complaint could be made against the balance
of the Articles of Impeachment. At the proper time, he proposed to
ask the Court to look into these Articles, and see how far the defendant
had been well treated by them. He proposed to ask the Court if they
served to mark oiit an3-thing like a skeleton of the course of examina-
tion which the prosecution were determined to adopt. He characterized
them as too brief and abstract to permit of any fair deductions from
them as to all of the testimony which the prosecution proposed to intro-
duce. It would seem as if the whole acumen of the gentleman who
drew them up had been exercised in endeavoring to make such non-
committal statements, such indirect statements, as would afford the
least notice to the defence. '

Mr. Williams insisted that a close examination of this Article which
had just been read, would show that there was no sentence, word, or
syllable, in it, that would lead Judge Hardy to infer that the present linej
of evidence would be attempted to be gone into. jM

2L-. Camjjhcll. — It appears to my mind a question of intent, andof wha^
the condition of things was. For instance, suppose Judge Hardy refused
to hear this motion, and, at the same time, it should appear that the Ee-
ceiver was a perfectly solvent man, that he was a good manager, and that
he conducted the business in a proper and exemplary manner ; of course,
the idea that there was an}- corrupt motive in refusing to hear the mo-
tion, would be entirely done away with. Now, is not the converse of the
proposition equally true and equally certain, that if, at this very time,
this Eeceiver was, as stated in the affidavit, mismanaging the property,
incurring heavy expenses, preventing proper improvements for the pre-

eervatioii of the property, and doing the numerous acts that are men-
tioned in that affidavit, and the Judge then refused to hear the motion,
the inference would be ahiiost irresistible that he did so from an improper
and corrupt motive ; that his object was, as is alleged here, to injure the
defendants, and that the act he did was one directly tending to prejudice
them, aTid Avhich did prejudice them ? Now. the whole thing turns upon
the question of motive. The mere refusal to hear a motion is not. in it-
self, an impeachable otfence, provided the i^efusal be an honest one.
But if it is not, if it is corrupt, if it is for the purpose either of benefit-
ing the one part}' or injuring the other, then, undoubtedly, it would be
impeachable. Now. what we propose is. to show a state of facts exist-
ing at this time which rendered the interposition of the Judge, in hearing
that motion, necessary ; that he had affidavits there before him, which,
if true, called for his judicial interposition; that there was no valid and
legal reason why he sliould not interpose; and that, failing to interpose
at that time, the inference must be that he did so from an improper and
corrupt motive. It is for that reason that this class of testimony is
offered.

The Prcsidbvj Offtcer. — The testimony is. I think, inadmissible, inasmuch
as there is no showing that Judge Hardy was aware of the insolvency of
the Receiver at the time he I'cfused to hear the motion, the affidavit pre-
sented merely stating the bare fact; and hence, no sliowing from which
the presumption of a corrupt motive can properly be inferred.

Mr. Campbell. — AYe have offered to show Yaughan's general reputation
of insolvency; and have shown that he was in the intimate relation of
law partner of Judge Hard}-, up to the time of the latter's appointment.
We go on to show that they i-esided in the same town ; and, of course,
the presumption would be that Judge Hardy knew what Yaughan's con-
dition was. I think that would be a fair inference. And. in addition to
his insolvency, there is in the affiilavit the allegation of mismanagement
and extravagant expenditure. Now certainly it is pertinent, under these
allegations, to show that no money ever was paid over by him; and then
to go on and show, as Ave shall hereafter, that this ditch was a profitable
thing before Yaughan took possession as Receiver; and that nothing has
been received from it during the time he was custodian.

The Presiding Ojji'rr. — In view of the relation sustained by the Respond-
ent and the Receiver, which you refer to as having shown, the inference
would arise that a knowledge existed of the condition of the party at
the time; and I am inclined to think the declaration of insolvency would
be sufficient.

Mr. Camphcll. — State whether anything ever was received from this
Receivershi]).

A. — Not that ever I knew of

Q. — Y'ou were Attorney in the case all through, for the defence ?

A. — I was.

Q. — Y^^ill you state what the general reputation of Joseph P. Yaughan
was, as to solvency, at the timTe of his appointment, and at the time of
the motion to remove him ?

A. — Well, the general reputation was that he was not a responsible
person; that he had no property.

Q. — What was the general reputation, as to his responsibility, at the
time he was partner with Judge Hardy ?

A. — It was the same, so far as responsibilit}' in' pecuniary matters was
concerned. I speak exclusively of that.

Q. — When did he leave Mokelumne Hill ?
5

A. — Well, I cannot recollect what time be did leave Mokelumne Hill. .

Q. — About what time, then ?

A. — I think he left in the spring or summer of eighteen hundred and
sixty. I cannot be positive as to the time.

Q. — When was the decision of the Supreme Court, which jou. have
spoken of ?

A. — I cannot tell what time that was made. I think it is the 16th
Cal. It was made, I believe, in the latter part of the summer of eight-
een hundred and sixty. The apj^eal was taken in March. The order
restoring the parties is here, and was issued, I think, on the day on which
the remittitur was tiled in the Court to restore the possession of the
property to the defendants; and that was on the fifteenth day of Febru-
ary, eighteen hundred and sixty-one. So the decision must have been
about that time.

Q. — Has Yaughan ever returned to 3Iokelumne Hill ?

A. — He was there once, after he went to "Washoe. (I saw him in the
street ;) but never to remain any length of time, that I recollect of He
has not been there for a long time.

Q. — Do you know anything about the value of this property, of Avhich
he was Eeceiver ?

A. — I know something, probably, but I could not estimate its value.

Eecess for half an hour.

EXAMINATION OF S. W. ' BROCKWAY RESUMED.

3Ir. Camphell. — You stated yesterday that jow had papers not among
the papers presented in the case of Eobinson et al. rs. Leger et al. ?

A. — Yes ; notes of the trial ; exceptions taken on the trial.

[Witness produced the papers referred to.]

Q. — State what papers those are.

A. — These are the notes of the trial, taken by the Attorneys for the
plaintiffs, in the case of Robinson et al. vs. Leger et al., and the excep-
tions taken by them on the said trial.

Mr. Williams. — [Examining the papers.] Taken by the '•Attorneys,"
do you say ? They are in only one handwriting.

A. — I tried the case as regards the questions, and made the argument ;
and ^Ii-. Adams kept the notes of the trial.

3Ir. Campbell. — (^. — In regard to these signatures, where the name of
Judge Hardy occurs — who were those made by ?

Mr. Williams. — [Interrupting.] Let me ask the witness a preliminary
question. [To witness.] This is in the case of Robinson et al. vs. Leger
et al. ?

A.— Yes.

Q. — Are these all your minutes?

A. — They are all that I have. They were kept by Mr. Adams, and, I
think, are all that were taken by him. The title of the case is written
at the top, in small handwriting. I will show it you. [Showing it.]

3Ir. Campbell. — Q. — In whose handwriting are the signatures of Judge
Hardy?

A. — They are in Judge Ilardj^'s handwriting.

Q. — Do you know whether any excej)tions except those were taken at
the trial ?

A. — There were not. that I know of. Those were all the exceptions
that were taken, that I know of I was there through all the trial.

Mr. Williams. — Q. — Those were all that were taken on your side ?

•

A. — I never knew of any being taken on the other side at all.

Mr. Campbell ottered the papers, and no objection being made, they
were considered in evidence, without being read.

3{f. Campbc/l. ^i^tate whether yoii know anything in reference to any
intoxication on the part of Judge Hardy, while acting as Judge of the
Sixteenth Judicial District, at any term of the District Court tor the
Count}' of Calaveras.

A. — Well, I never recollect of seeing him upon the bench when he
showed intoxication, but once.

Q. — State when and where that Avas.

A. — That was the last day of the last term — the February term — of
Court ; I think, the first day of last March.

Q. — State what his condition was at that time, and what you observed
in relation to it.

A. — In the evening, jnst at night, when the instructions were given to
the jury in the case of McDermott v^. Higby. I thought the Judge waa
considerably under the influence of liquor.

Q. — State what you observed that induced you to believe so.

A. — I had several reasons to induce me to believe so. The first was,
that I had seen him drink considerable. The next was, that on the
bench, when reading the instructions that were given to the jury, it was
to me very phiin, from the tone of his voice, from his manner in reading,
etc.. that he was intoxicated. It was difiicult for him to read, somewhat.

Q. — Did you notice any other circumstances of that kind ?

A. — Yes. I noticed other circumstances connected with the giving of
the instructions.

Q.— What were they ?

A. — I was sitting, at the time the instructions were being given, be-
tween the Clerk's desk and the bench where the Judge presided. The
Judge motioned to me, and 1 stepped up into the bench ; and he asked
me to witness that he had given all the instructions asked by the de-
fendant, and that he passed them all, just as they were, to the Clerk.
Taking them in his fingers — there were several sheets of them, some full
sheets and some parts of sheets — he held them in this way [desci'ibing}
for the Clerk to take; and told me to look under the books on the desk,
and under the desk. There is a velvet curtain hangs down, and an ojDen
space underneath ; and he told me to look under there, and see that there
were none of the ])apers there, and to see that he passed them all to the
Clerk — which I did; and the Clerk took them from his hand, as he held
them out in the way I have described. *

Q. — What was there peculiar in the mode of his speech ?

A. — Well, his tongue was rather thick ; decidedly so, I thought.

Q. — Anything else ?

A. — Well, nothing particular, except a difficulty in reading.

Q. — Have you been in the habit of attending the terms of the District
Court of Calaveras County, and Amador Count}^, during the past two
years ?

A. — I have attended everj^ term in Calaveras County for the last two
years, and along before that; and have been a portion of the time at
most of the terms in Amador County, but not to stay through the terms.
Generally, if I had cases there, the}' were set, and I went on the day of
trial; or if there were motions. I argued them, and retui-ned; not stay-
ing through the term.

Q. — Have you observed*, during the last two years, and during the

session of those Courts, anything in regard to Judge Hardy's habits of
drinking, or otherwise ?

A. — Yes. I have observed that. I presume every one practising there
has observed what his habits were.

Mr. WiUiams. — You will be good enough to confine yourself to an
answer to the questions put.

Q. — What has been your observation in this respect ?

A. — As I stated before, I never saw Judge Hardy, when on the bench,
when he showed intoxication, except at that time I have mentioned. I
hiive seen him drink in bar rooms, and in the streets when he was very
much under the intiuence of liquor, repeatedlj^, but never when on the
bench, when he showed it, except at that time referred to.

Q. — When you saw" him out in the streets, intoxicated, was that by day,
or by night, or both ?

A. — Both day and night. Generally in the evening.

Q. — During the sessions of the Court ?

A. — I have seen him so during the sessions of the Court; generally
during the first week, when there are nothing but law motions and the
sessions are short, rather than when trying law cases.

Q. — What has been his general habit in that respect?

A. — The general habit of the Judge and most of the members of the
bar was. when recess arrived, to go down and drink ; sometimes, take a
good many drinks.

Q. — What I want to get at is. whether it was a general and frequent
habit with Judge Hard}' f

A. — It has been a quite frequent habit ; a habit indulged in, at times,
quite often.

Q. — All the circumstances in relation to these different suits which you
have testified to, transpired while Judge Hardy was holding Court in
the County of Calaveras, did they not?

A. — Yes, all those I have spoken of.

Q. — State what you know in refei-ence to any adjournment of the Dis-
trict Court in the August term, eighteen hundred and sixtj'-one. in Cala-
veras. Was that term of the Court presided over by Judge Hard}' ?

A. — It was.

Q. — State all you know in reference to the adjournment of that
Court.

A. — I think the Judge adjourned the Court. Tlie minutes here, on
pages 581-2, are, that Court was adjourned from Friday uutil 3Ionday ;
but I recollect of the Judge going away, along in the middle, or about
the middle, of the August term, eighteen hundred and sixty-one. Where
he went at that time. I do not know, except from what I have been told.
I had one or two. I think two. cases set for trial at that time. [Examin-
ing records of the Court.] The case of Lane vs. Paul was set for trial Au-
gust seventeenth. There was another case set. I believe, from my re-
collection of it, it was Gratewood is. McLaughlin. At the same time, I do
not see any note of it here." [Looking over the records.]

Q. — How long did Judge Hardy remain away at that time ?

A. — He remained away from Friday until Monday.

Q. — Xow turn to the record for the thirtieth of August, eighteen hun-
dred and sixty-one.

A. — On Thursday, the twenty-ninth of August, eighteen hundred and
sixty-one. there is this entry, the last entry on the minutes for that term :
'• Samuel Irwin vs. William Dennis et al."

Mr. Cnmphdl. — [Interrupting.] How much of the term then remained
yet unexpired ?

A. — There was from Thursday, the twenty-ninth of Auo-ust, until the
first Monday of the succeeding month, when his term in Amador County
commenced.

Q. — State whether that term of the Court was adjourned for the term,
on the thirtieth of August, and, if so, how it was adjourned '(

A. — I never knew of its being adjourned for the term. The h\st entry
is the entry of tlie verdict in a case : '■ We. the jury, find for the plifs
in the sum of 450. E. A. Pierce. Foreman. Jurj- fees taxed, S72 ; paid
by pltf. Whereupon, the Court adjourned until to-morrow, at 10 o'clock,
A. M. James H. Hardy." The next entr}^ is jS^ovember term, eighteen
hundred and sixty-one. There was no further Court held at that time —
the August term. The date is August twenty -ninth,»eighteen hundred
and sixtj'-one.

Q. — Do you know Avhether there were any cases set for trial on the
succeeding day ? f

A. — Yes. There were cases which had been set for trial, which had
not been reached, and which would have come on for trial, in their regu-
lar order, on the following day; and. I think, one set for trial.

Q. — Were vou engaged in anv of those cases ?

A.— Yes.

Q. — Did you appear at the Court the next moi*ning ?

A. — 1 was there at the Court room, but there was no Court there. My
clients. Avith the Avitnesses. were there.

Q. — Were there any jurors, witnesses, suitors, and other persons, in
attendance ?

A. — Yes ; there were. The jury had not been discharged. The Judge
told me on the night before, after Court, when he went away, that he
would be back the next morning in time to open Court.

Q. — Did he state where he was going ?

A. — He said he was going down South, with, I think, Judge Shat-
tuck.

Q. — For what purpose ?

A. — Attending to the political campaign.

Q. — And there the term of the Court ended ?

A.— Yes.

Q. — Do you knoAv when Judge Hardy returned ?
• A. — Xo ; I do not recollect. I did not see him when he returned.
All I know is from what I have been told. I do not think 1 saw him
again until after he had opened Court in Amador County.

Q. — Do you knoAV what has been the general manner in which Judge
Hardy has performed, or omitted to perform, the duties of his office,
as to diligence used by him, during the last two years ?

A. — I do. Sometimes he has been diligent, and attended very closely
to business. At other times tfie business has been unattended to.

Q. — During Avhat portions of that period has it been neglected ?

A. — Well, a good many terms — large portions of terms — have been
held irregularly; some held portions of terms, and some held special
terms. Very little business done.

Q. — Did Judge Hardy ever say anything to you, and, if so, what, in
relation to what he did when he had matters of discretion before him as
a Judge ?

A. — Yes ; he has.

Q. — State what he has said to you in reference to that subject.

A. — I have heard the Judge say that in all matters of ruling he gave
his name to his ruling; hut so tar as his discretion was concerned, he
was willing to give his discretion to his friends.

Q. — In reference to the Fifteenth Article of Impeachment, do you
know anything in regard to any declarations of Judge Hardy on any
occasion, on the subject of loyalty to the Government ''.

A. — I have never had many talks with him in regard to it, where it
was dii-ectly called out. Do you refer to the times and places mentioned
in the Fifteenth Article ?

Mr. Campbell. — Yes.

Witness. — I do not recollect of hearing any of the language, at the
times specitied here, [referring to Art. XY:] I had a conversation with
him only once when anything of that kind was talked, that I recollect of,
that is not in here, [Art. XY.]

Q. — Do you know what Judge Hardy's relations were, so far as inti-
macy is concerned, with George Leger, the defendant in this suit of Eob-
inson et al. vs. Leger et al. ? i

A. — Only what I could form from observation.

Q. — What did you observe in reference to it ?

A. — I observed them to be on very friendly terms, and the Judge in
the house of Leger quite often. The}- were always on the most amicable
terms, as far as ever I knew. From their intercourse I always sup-
posed so, as it was of the most friendly character.

Q. — In reference to this suit of Mcrcier and another — who is that
other ?

A. — Mercier et al. were Euphrosyne Mercier and Frank jlercier, her
husband.

Q. — Do you know of any intimacy between the Eespondent and Frank
Mercier ?

A. — I do not know of any intimacy between them at all, of my own
knowledge.

Q. — Do you know anything about any decision in regard to an appeal,
in the case of Eobinson et al. vs. Leger et al. ?

A. — Yes, I recollect of a statement the Judge made from the bench ;
I do not know whether it was entered in the minutes or not. It was at
the last term of Court. When the case was set, or after it had been set
for trial. Mr. George came and asked to strike it from the calendar, on
the ground that it had been appealed to the Supreme Court. When the
new trial was granted in the case, I made a statement on appeal ; intend-
ing to appeal from the order granting the new trial. On talking with
my clients, we came to the conclusion to avoid that cost, and try it over.
At the time 3Ir. George made the motion to strike the case from the
calendar, it was stated that a notice of appeal had been served, but no
appeal bond given ; and the Judge said if that was the ca^e. then it would
be pending in the Supreme Court, so that he would not have jurisdiction
to decide it. Subsequently, on reflection. 'I recollected that no notice of
appeal was given, but simply a copy of the statement served ; and, on
examining the record in the office. I found no notice had ever been put
on tile at all. Mr. George did not produce any notice served on him
either ; and the case was Set for trial. ,

Q. — Did you discover that at the time ?

A. — Xo; subsequently.

Q. — What did Judge Hardy say in reference to this notice of appeal ?

A. — He said, if the iiotice of appeal was given, that he could not try
the case; that he had no jurisdiction; and suggested to me that if I

wanted to try it, I would have to send to the Supreme Court and get a
certificate dismissing the appeal, in order to put it on the calendar.

Q. — Did you call his attention to that ruling of his, at any subsequent
time ?

A. — I do not recollect that I did. I heard something said about it, but
I do not recollect saj'ing anything mj'self.

Q. — Was anything said to him on the subject, in your presence ?

A. — Oh, yes. I do recollect of his talking with nie in regard to it.
after some complaint had been made in the decision of another case.

Q. — What other case ?

A. — The case of McDermott vs. Higby.

Q. — What did Judge Hardy say to you then ?

A. — I think he told me that William L. Dudley — Bill Dudley, as we
call him — was complaining of the decision which he (Hardy) made in the
McDermott vs. Higby case; and that he could not make him (Dudley)
understand the difi:erence in the two cases ; that one (McDermott vs.
Higby) Avas a new suit brought and pending in his (Hardy's) Court, and
there he had the jurisdiction and the right to make the decision ; that in
the other case, it was removed to the Supreme Court, and they alone
were the judges of whether it was appealed or not. I think that was
what it was. lu other words, the conclusion to which he arrived was,
that he had no right to dismiss the appeal in a case where it had gone
to the Supreme Court; but if the case was pending in his Court, then he
could make his decision.

Judge Hardy. — That is, if a new case had arisen.

A. — If a new case had arisen and was pending in your Court, then joxx
could decide that question.

Judge Hard]). — That is, an original case.

A.— That is it.

CROSS EXAMINATION.

Mr. W(7l(ams. — Q. — At what time was the conversation had between
you and Judge Hard}', in regard to the case of Foster y.s. Fritz et al. ?

A. — It was on the day of the trial of that cause.

Q. — Was it on the same day of the trial ?

A. — Yes; in May. eighteen hundred and fifty-nine, I believe. It was
tried on the fourteenth day of Ma}', eighteen hundred and fifty-nine.

Q. — During the period when Judge Hardy held his position by appoint-
ment of the Governor? His appointment was made in the Avinter of
eighteen hundred and fifty-nine, was it not ?

A. — I believe it was — in Janutwy.

Q. — And he held by appointment until the general election of eighteen
hundred and fifty-nine, which was in Sejitember, did he not ?

A. — Yes.

Q. — Then you knew, at the time you speak of, all you now know in
relation to Judge Hardy's -conduct in regard to the case of Foster vs.
Fritz et al. ?

A. — I did, in regard to that matter. That is, all that he told me.

Q. — And in relation to everything else that you have testified to as
occurring prior to August, eighteen hundred and fifty-nine, you were as
well info^-med in August and September, eighteen hundred and fifty-nine,
as you now are ?

A.— Yes.

Q. — At what time was the primary election of the Lecompton Democ-
racy held, in the year eighteen hundred and fifty-nine ?

A. — Some time in the summer.

Q. — Were 3^011 one of the candidates, at Mokehimne Hill, for Delegate
to the County Convention of that party, at that primary election ?
A. — Yes ; I was.
Q. — Were you elected ?
A. — I was not.

Q. — Were you, at that time, an advocate of Judge Hardy's election as
District Judge '(

A. — Yes ; with the distinct understanding, as I told the Judge, that I
preferred him to any candidate that was running. I never took any ac-
tive part in the election at all, nor was I present at the Convention when
he was nominated. I think I went once with Judge Hardy and Mr. ISTor-
cross to a little place called Independence Flat. They came past my
house, and wanted me to go there and make a speech. And I went up
there and made a speech; and that was the only time I made a speech
in the campaign.

Q. — The only time in the campaign that jow made a set speech ?
A. — The only time I made a speech ; and that was hardly a set speech.
I was not a candidate for delegate on the ticket that supported Judge
Hardy, but was running on an opposition ticket. Mr. Doak, without my
. consent, put \\\j name on the ticket, and insisted on my running. We were
intimate friends, and iinall}- I said, " Put it on, although I know I shall
not be elected." That ticket was in opposition to the ticket of Judge
Hardy and his friends, and was beaten.

Q. — But you were in favor of Judge Hardy's nomination and elec-
tion ?

A. — Yes ; I supported him.

Q. — You say you were not the candidate of the party of Judge Hardy.
Was not the ticket which you ran on, the ticket which Judge Hardy
supported ?

A. — '^ot as I understood it. Do you mean the ticket before the pri-
mary meetings ?
Mr . WilUa 7n>>. — Yes.

Witness. — Doak said he had made an arrangement with jS'ap. Erough-
ton and Judge Hardy to divide the ticket ; that he now learned they
were going to go against him, and that he was going to put a new ticket
in the field and fight them. And he put me on that ticket, and, from
grounds of friendship, I consented to it.

Q. — Did 3-0 Li, on the day of that primary' election, tell J. K. Doak that
you were in favor of Judge Hardy's nomination and election?

A. — Oh, 3^es. I told him that repeatedly. I do not recollect whether
I did on that day ; but I have told him so repeatedly.

Q. — Did not Judge Hard3^ Doak, Shannon, Kilmer, and Adams call
together upon you on the subject of this primary election, on the eve-
ning before ?

A. — I do not recollect whether the}" called together upon me. I do
not think the}' did.

Q. — Did you see them together on that evening?

A. — I do not recollect whether I saw them together on the evening of
the day of the primary election, or the evening of the day before.

Q. — Did not those gentlemen all call on you, and request you to suj)-
port the ticket which they were interested in ?

A. — I think not so late as that. They, or some of them, called on me ;
and Judge Hardy stated to me that they wanted me to go upon the
ticket, and proposed something in regard to my going as delegate, for

the purpose of being Chairman of the Convention. I think that was
some days before the primary election. The next I knew, a ticket was
made, and my name was not on it ; but I did not propose to take
any part against it, because the names on it were, I thought, those of
good men ; and I took no part in it, until Mr. Doak came to me.

Q. — -I simply want to know about the conversation ; whether they did
not call together on you at your office ?

A. — I do not recollect about that. I do not think they all called to-
gether at any time.

Q. — In regard to the speech you made at Independence Flat ; did you
in that speech urge the nomination and election of Judge Hard}^ ?

A. — Yes ; I recollect urging the nomination of Judge Hardy. I know
I supported Judge Hardy through the campaign. I did not turn out to
make speeches, but I supported him ; supported him against an old and
intimate friend.

Q._Do you know William Wells and W. V. Clark?

A.— Yes.

Q. — Did you, on the same night you spoke at Independence Fiat, or on
the succee(iing morning, tell those gentlemen, or cither of them, that
you were satisfied that Judge Hardy was the proper man for the place of
District Judge ^ And did you urge upon them the propriety of support-
ing Judge Hardy ?

A. — I recollect having a long talk with Mr. Clark, and of urging and
soliciting him to support Judge Hardy. I do not recollect whether Mr.
Wells was there or not; but 1 know I spoke to Mr. Clark, and I can tell
you what I told him, too. I would like, if permitted, to explain that
portion.

Q. — Were you at that time the Attorney of Wells & Clark, and their
confidential adviser ?

A.— I was the Attorney of Mr. Clark. Mj-. Wells was interested in the
property which was involved in litigation.

Q. — And this alleged misconduct'of Judge Hardy in the case of Foster
vs. Fritz et al., was as well known to you then as it has been since ?

A.— The circumstances in regard to the new trial in that case were
then as well known to me as tlie}^ have been since, or ever were.

Q. — And after that, to persuade your client to support Judge Hardy,
you represented Judge Hardy as being the best man for the post of Dis-
trict Judge ?

A. — I represented Judge Hardy as being the best man for their inter-
ests. I do not recollect that I represented him as the best man for the
place. I represented to them that Dudley & Adams, and Badgely, were
Attorneys against them, or had been, in the case ; and that I was afraid,
if Badgelv was on the bench, he would not advance their interests as
well as" Judge Hardy. I used that argument ; used it long and earnestly,
with Clark.

Q.— In the case of Eobinson et al. vs. Leger et. al., do you mean to be
understood to swear that you did not make an affidavit for a continu-
ance ?

A. — I did not make an aflidavit for a continuance.

Q. — Did you draw one ?

A. — No, Sir. I drew a statement. As I understood it, the under-
standing was, that I was to reduce to writing what we were expecting
to prove b}^ a Mr. Fisher. 1 sat down and reduced it to writing. When
Mr. George came in, he insisted on its being sworn to ; whereupon we
announced ourselves as ready for trial. Mr. Adams, was sitting by,
6

assisting me in the matter, and understood at that time how the case
stood. No affidavit was made, that I know of.

Q. — Who was it asked for a postponement ?

A. — Judge Hardy was the first asked me.

Q. — Wlio was it moved for that postponement ?

A.— I did.

Q. — Until what time ?

A. — To have it continued for the terra, I believe.

Q. — How is it that that application, for a postponement for the term,
was in the afternoon, when the ease Avas called in the morning?

A. — That was not the subject Judge Hardy talked to me about, at all.
Judge Hardy said Mr. George was stubborn, and would not continue the
case; that he (Hardy) wanted it continued. I said I did not think my i
clients would consent to continue it either, but I would talk to them. I
Judge Hardy said it would be better for them if they would. I went
and told Jesse Robinson what Judge Hardy had said, and advised them
to continue it, that it might avoid misunderstanding and avoid new trials.
Robinson said he was sick of new ti'ials, and consented to continue, and
I went into Court and applied for continuance for the term.

Q. — But how was it that application was made in the afternoon, when
the case was called in the morning ?

A. — There may have been an application to postpone from the morn-
ing until the afternoon.

Q. — On that application for temporary postponement, did you or not
state that you would go to trial in the afternoon, whether your witnesses
came or not ?

A. — I do not recollect. I recollect one case there, where I made that
statement, but I do not think it Avas this case. In this case, when the
case was called, there was a recess taken, for the purpose of giving me
time to reduce this statement to writing, after the understanding had
been reached in regard to the continuance of the case. But I have no
recollection of making the statement contained in your question, in that
case.

Q. — In your direct examination, you stated that Mr. George, when
you proposed to present an affidavit, waived the affidavit and said he
would take your statement in writing?

A. — I did not propose to make an affidavit. I asked him if I could
make a statement of what I expected to prove by the witness,' Fisher.
He said, 3^es ; whereupon I reduced the evidence to writing, stating it
as strongly as I could.

Q. — You stated that when joxi came in in the afternoon, Mr. George
declined to take that statement, and insisted on an affidavit ?

A. — He came in after the recess — a very short recess.

Q. — Was not Mr. George's action, after he came in. this: instead of
insisting on a sworn affidavit, did not he insist you had said j^ou would
go to trial in the afternoon, whether your witnesses were there or not ?
and that you were bound to go to trial any way ?

A. — There was a case in which that agreement was made.

Q. — Was it not in this very case ?
. A. — It may have been. I think I could refresh my recollection in re-
gard to it, from the minutes of the Court. There was a case where that
occurred, and it may have been this case. [The minutes of the Court
were given witness, who examined them.] Yes ; I recollect that it was
this case. Now I recollect the witness' name — Cain ; and that he had
not come. I recollect that it was in this case.

Q. — Then Mr. George was anxious for trial, and did not want to con-
tinue the case ?

A. — That is wimt Judge Hardy said, and what Mr. George said him-
self.

Q. — You heard Mr. George say so in Court ?

A.— Yes.

Q. — When did A. P. Dudle}' come there, in that case ?

A. — He came at the time it was ordered continued.

Q. — Now, Mr. George was anxious to prevent a continuance ?

A.— Yes.

Q. — The motion for a continuance was granted. Did not Mr. George
withdi-aw from the case on that account ?

A. — Well, I did not understand that he withdrew from the case on
that account, hut because his clients had employed Mr. Dudlej^j or,
rather, Mr. Dudley was there, employed in the case ; and, because they
would consent to a continuance on Dudley's advice in opposition to his
own. That is my recollection. As soon as Mr. George came into Court,
after the statement was made, he required an affidavit. I stated the
agreement, and that my clients were anxious and ready for trial. I
thought the burden of the trial would be thrown on Mr. George, and
that plaintift's would feel none of its weight ; and I then, as I have said,
announced myself as ready. When Mr. George withdrew from the case,
Al. Dudley consented to post])one it. Mr. Dudley came in and consent-
ed to postpone it, and then Mr. George came in, took oft" his hat, and
said : '• I withdraw from the case."

Q. — Did not you and Dudley agree to postpone the case ?

A. — We agreed, to this extent: Mr. Leger, I think, stood there with
Dudley; and Dudley said that the defendants would consent to a con-
tinuance. We had been asking the continuance, although then we had
announced ourselves as ready for trial. Thej' consented to a continu-
ance, as I have said, and the order was entered by consent.

Q. — How do 5^ou reconcile that with the position you took just now —
that 3'ou were not read}- for trial, bwt wanted to go to trial, and wanted
to throAV the responsibility on the other party ?

A. — I did not say we were not ready for trial. I wanted to throw the
responsibility of the trial this term upon the other party. We had been
read}^ for trial a long time. Judge Hardj^ did not want to try the case;
my clients did not want a continuance. I thought there would be a
misunderstanding between Mr. George and Judge Hardy, so that no
otlier new trials would be granted in the case, if it went over the term.
That was the only way I could induce my clients to consent to a con-
tinuance. They resisted for a long time.

Q. — You wanted to throw the responsibility on the other side ?

A. — Yes ; so that if there was any ill will occasioned, it should not be
against mj' clients or myself.

Q. — You state that Judge Hardy manifested an anxiety to have this
case continued, so as not to try it at that term. Was not his anxiety not
to not try it at that term, but to not try it at all ? Was it not for the
purpose of obtaining the services of another Judge to hold Court for him,
and try that and other cases ?

A. — I think Judge Hardy once mentioned, that if it was not tried that
term, he would have another Judge to try that and other cases. He told
me that he advised Leger to continue the case ; that we were bound, even-
tually, to get something, and the longer it was before he had to pay, the

better it was for him. There were several other persons present at the
time he told me that.

Mr. WiUUmis. — I will he obliged if yon will answer me my question.
You say Judge Hardy did assign, as his reason for desiring a continuance,
that if the case was continued, he could get another Judge to come and
try it ?

A. — No. I do not say that he assigned that as his reason. I said : I
think he did tell me once, that if not tried that term, he would get
another Judge to try it. He said he was --in such a position" that he
did not want to try it that term at any rate.

Q. — And he wanted to get in a i)osition to have another Judge
there ?

A. — He did not say that. He said he was '• in such a position."

Q. — When did Judge Hardy say to you that he wanted the case con-
tinued relative to the time of these transactions of which you have
testified ?

A. — Two or three days before the trial, and on the morning of the
day for which it was set for trial.

Q. — And in one of those conversations he told you he could not try
the case ? That he would get another Judge to try it, if it was con-
tinued that term ?

A. — It was subse'quently to the time when I had been to my clients,
and urged them to continue the case, giving the reasons I have stated,
and had told Judge Hardy that they had finally consented to a continu-
ance.

Q. — In speaking of the case of Mercier vs. Denny, you stated that
Judge Hardy told you that he did not want to try that case; what else
did he say at that time ?

A. — Well, he said, '' You know how these fellows are," etc., '• and I do
not want anything to do with it."

Q. — Did not you understand by that, Judge Hardy intended or hoped
to get another Judge to tr}* that case ? Did he leave jo\x to understand
anything else but that ?

A. — I inferred from that, that if it was not tried that term, Judge
Hardy would get another Judge to try it.

Q. — Did you infer any other motive ?

A. — Yes; there was another motive which I inferred. I had been
trying to get the injunction dissolved, for a long time. My clients were
trying to get to work on the claim, which they were enjoined from
doing. I had made several motions to dissolve the injunction, in Avhich,
I think, I made a very strong showing. The motions were denied.
Additional security bonds were ordered, and bonds filed where the sure-
ties could not justify. I had a great deal of trouble and difficulty, and
could not get the injunction dissolved, and I thought, at the time, that
the object of postponing the trial was also for the purpose of holding the
injunction over us, in order to accommodate the plaintiffs.

Q. — Would that be the object of Judge Hardy, if he was going to get
another Judge to try the case ?

A. — It would hold it over the defendants, whether he got another
Judge or not.

Q. — But you were suspicious of it ?

A. — Yes, a little.

Q. — On what day was this ?

A. — This was on the last, or the next to the last day, of the last term
of Court, I believe, that Judge Hardy told me he was "in such a posi-

tion" he did not want to try the case that term anyhow. He told me,
also, " You know how these fellows are, and I do not want anything to
do with it."

Q. — Did Judge Hardy tell you in this conversation at that time that
he could not properly try the case at all?

A. — I do not think he did ; I do not recollect of it. He said he was
"in such a position" he did not want to.

Q. — Who did Judge Hardy propose as the Judge before whom this
case should be tried y Judge Creanor ?

A. — I do not recollect whether Judge Hardy said anything about who
he would have to hold the term, or not. It seems to me I had some' talk
with him in regard to it. I have an indistinct recollection of his having
said something to rae, either at that time or some other, in regard to
having Judge Creanor — I think it was Creanor — come there and try some
cases.

Q. — You speak of certain cases which were before Judge Hardy, which
Judge Hard}^ could not properly try ?

A. — There were cases there in wliich Judge Hardy had been employed
as Counsel 1)efnre he went on the bench, which were undisposed of.

Q. — Did Judge Hardy speak of those cases in connection with this
case of Mcrcier vs. Denny?

A. — I do not recollect whether this case of Mercier vs. Denny was
mentioned in connection with those, or not.

Q. — Do yoii not know that Judge Robinson was informed of the same
facts ? that Judge Hard}' did not want to try the case ; that he wanted
to get another Judge to do it ?

A. — I do not. I know Judge Eobinson spoke to me one night, as we
were going up into the Court House — Court was just adjourned, and he
was coming down — and said that he wanted to continue the case on ac-
count of sickness* in his family, or something of that kind. But I never
knew anj^hing of Judge Robinson being aware of the fact that Judge
Hardy did not want to tr}' the case.

Q. — Did Judge Hardy have anything to do with the filing of the justi-
fication of the bonds of which you have spoken ?

A. — It was done by the Clerk. Judge Hardy had nothing to do with
the justification of the bonds, which was taken before the Clerk.

Q. — Did you apply to Judge Hardy for an order for additional se-
curity ?

A. — I do not recollect of any application, excej^t on the motion to dis-
solve the injunction, or shoAV cause why the injunction should not be
continued. J think it was said to the Court that that bond was insecure.

Q. — Did Judge Hardy, when that application was made, pass lightly
on the question of security ?

A. — The common ])ractice with our Court in those cases, was, to issue,
an order restraining them and requiring them to show cause on such a
day. A bond was "given on that same day, and on the hearing, if it is
perpetuated, an addrtional bond is required. The Judge took the usual
course.

Q. — Did you find occasion to complain of him, in regard to that ?

A. — All I complained of was that bonds were filed Avhere the sureties
could not justify, and I was perpetually calling for new bondsmen and
qualifications.

Q. — In the ease of Robinson et al. vs. Leger et al., when you speak of
exceptions in writing, what exceptions do you mean ?

A. — I have* said I have all the exceptions I recollect of being taken.

Q. — If the exceptions were taken in writing and signed by the Judge,
how does it happen they did not go on file ?

A. — When we are trying a case in oiir Conrt. and a question is asked,
objection made, and exception taken to the ruling thereon, the exception
is passed xip to the Judge by the Attorney making it, signed, returned,
and put in the statement.

Q.— Not filed ?

A. — No, Sir ; I never filed any.

Q. — You say, then, that the Attorney taking the excejition, hands up
the bill of exceptions to the Judge, who signs and passes back to the
Attoi^ney. who keeps it in his possession until the statement is made ?

A. — That was m}' practice; and is the usual practice of the Court. I
keep them with my minutes of the trial.

Q. — You would not, then, have possession of the exceptions taken on
the other side ?

A. — Xo ; but my practice is to take all the exceptions, so that I can
tell whether the Attorneys on the opposite side state them correctly or
not.

Q. — Do you have them signed, too ?

A. — No. My practice is this : When a question is asked, objected to,
and ruled upon by the Court, I note the exceiDtion, for the purpose of
being enabled to see whether it is stated correctly when the statement
is made ; but I never think, when the opposite Counsel takes an excep-
tion, of passing my note of it to the Judge, to be signed. I never have
done it.

Q. — Now, where were these exceptions taken in the case of Eobinson
et al. vs. Leger at al., now in your possession, when the statement was
settled ?

A. — We got the judgment, and the exceptions were of no importance
to us at all. Mr. George had set forth our exceptions'in his statement,
and I had moved to strike them out.

Q. — You did set up your own exceptions ?

A. — No. I did not conceive it was necessar}- for Mr. George to set up
our exceptions, and defendant's also.

Q. — These exceptions which you speak of, as signed by Judge Hardy,
were, then, in your possession, and not seen by the Judge when he set-
tled the statement ?

A. — No. I refer jou to the minutes. I proposed to strike our excep-
tions out of Mr. George's statement, because we got the judgment.
The exceptions we had taken to the rulings against us, were of no use.
as long as we had the verdict of the jury. ,

Q. — You stated what your. practice was in regard to the exceptions
taken. Is it not Judge Hardy's rule to have all exceptions reduced to
writing, and signed, at the time they are taken ?

A. — Yes ; the general rule. Sometimes the Judge writes them him-
self, but, as a general rule, the Attorneys do that.

Q. — In settling a statement, does not Judge Hardy mainly refer to the
written exceptions which may have been taken, and signed at the time ?

A. — That I cannot tell you. because I do not recollect, long as I have
practised before him. He generally takes the proposed amendments,
but how he settles them or arrives at his conclusions, I do not know.
After they are settled, they are returned with the amendments, marked
'' allowed," if allowed, and " disallowed," if disallowed. But what means
the Judge employs for arriving at his conclusions, I do not know.

Q. — Did you have a conversation with Judge Hardy at' Mokelumne

Hill, cUiring the February term, eighteen hunch-ed and sixty -two, in regard
to a proposition to abolish his District ?

A. — Yes.

Q. — Did you tell Judge Hardy at that time that you knew he was to
be assailed, and that you were his friend, and Avould stand by him ?

A. — I do not recollect of telling him I knew he would be assailed. I
told him 1 was his friend and would stand by him. I have refused to
sign a petition to be sent doAvn to work a bill through to abolish the
District. I refused to support it, and would have nothing to do with it.
I would take no part in this matter, until I was summoned l>efore the
Committee of the House. I was opposed to abolishing the District.

Q. — Since this prosecution has been gotten up, have 3'ou not made
yourself active in it ?

A. — I have not made myself active in it at all. All I have done was,
when Mr. Patten came to me and asked me to point out or name certain
parties on whom he wished to serve a subpoena. I have taken no active
part in the prosecution, at all.

Q. — Did you have a conversation with Judge Hardy at your house, in
regard to the suit of Mercier vs. Denny, then pending?

A.— I did.

Q. — Did you state, in that conversation, that you were interested in
the mining claim in dis])ute ?

A. — I stated in that conversation, that, if we got rid of the litigation,
I would have an interest in the claim. I was to have a one fourth or
one fifth share in it ; I do not recollect which. I can state the whole of
the conversation to you. The Judge, Avith his family, Avas at my house.
Gatewood, Avith his lad}'-, and several others ; Lane, Hazard, and his
wife, Avere there, also. And, in the course of the CA^ening, some of the
company Avere liA^ely and meny, and talking of wine. Judge Hardy
remarked that Mercier sent him — it was either tAvo or three dozen — bas-
kets of Avine. Judge Hardy had been drinking considerably, at the
time.

iMr. Williams. — I Jjelieve, as a lawj^er, you knoAV, Avhen I ask you a
question, I desire simply an ansAver to that question ?

Witness. — I Avas going on to tell you about this case. Judge Hardy
said he did not knoAv Avhethcr Mercier thought it would help him in his
pending case. but. he added, '• I took it, you bet!"

Q. — What I Avant to get at, is : Avhether you did tell Judge Hardy that
the claim was highly valuable, and that if you could gain the case, you
had all you Avanted 'i

A. — No, Sir 5 I did not tell him that, for I Avould have sold out for tA\^o
hundred and fifty dollars then, or any time since. I would for a little
less than that noAV, if you Avould like to buy.

Q. — Did you go to a'friend of Judge Hardy at Mokelumne Hill, while
the motion for change of venue in that case was j^ending, and ask him to
see Judge Hardy and ask him [Hardy] not to grant the change of
venue ?

A. — I Avas talking Avith Samuel Forman, and he was telling me in re-
gard to the Judge having said so and so, and done so and so, in certain
cases ; and I told him I Avished he Avould see the Judge and use his influ-
ence to prevent the change of venue in that case; and it Avas not the
only case where I did it, for I kncAV it Avorked against me in other cases.

Q. — Do you knoAV James T. Farley, of Amador County ?

A.— I do.

Q. — Did:you have a conversation Avith him, at Mokelumne Hill, about

ten or eleven o'clock, on the night of the twenty-fiftK of March, eighteen
hundred and sixty-two, or about that date, in regard to Judge Hardy ?

A. — I do not recollect the date.

Q. — How lateh' was it ?

A. — It was a little after the bill was introduced to abolish this District.
I do not recollect what the date was.

Q. — Was it before or after the commencement of this prosecution ?

A. — It was after the introduction of the bill I have referred to, but
before the commencement of this Impeachment.

Q. — Was the Impeachment talked of long ?

A. — The first I heard talked of the Impeachment was, I believe, what
I heard from Farley, in conversation.

Q. — Did you tell Mr. Farley, in that conversation to which I have
alluded, that all this cry against Judge Hardy was a malignant prosecu-
tion by the Dudleys and Bill Higby, because they could not use or con-
trol him on the bench?

A. — I do not recollect using exactl}^ that language. As near as I can
recollect, he called me, at the bar room of tbe Union, and wanted to
know how I stood on the question of aliolishing tbe District. I told
Mr. Farley that I was opposed to abolishing the District; that I wanted
to save the District. He said : '■ That's no way to get out of it. Damn
Judge Hardy ! if he has done anytliing wrong, let them impeach him;
but we want the District, and don't want to lose it." I said that was
my view. He wanted to know what I thought was the " starter " of all
this ; and I went on to state the occurrences that came up in the Court,
in the case of McDermott vs. Higby ; and stated I thought the move
had its origin in that case ; that William L. Dudley, as long as Hardy
was his fridnd, Avas all right. I think that was the language I used.

Q. — Do 3'ou think j^ou stated it was a malignant j)ersecution ?

A. — It is possible that I may have said something about persecution,
or something of the kind ; but I do not recollect of saying that. I may
have said that they were persecuting Judge Hard}', or something of the
kind ; but I have no recollection of saying - malignant persecution."

Q. — Did not you say, in substance, that it was a persecution by the
Dudleys and Higby, because they could not use Judge Hardy ?

A. — My recollection of what I said is, as I stated before : That as long
as Judge Hardy would do everything they wanted him to, it was all
right.

. Q. — But did you not use such an expression as that : That it was a
persecution hj the Dudleys and Higby. because they could not use Judge
Hardy on the bench ?

A. — I think I told Mr. Farley that this move was started because they
could not control Judge Hardy on the bench any longer, or something of
that kind.

Senator Merritt. — "What Higby is that ?

A. — Mr. Higby, here.

3Ir. Williams. — The gentleman who made the opening for the prosecu-
tion here?

A. — Yes, Sir. I recollect of that conversation at that time. I have
never had any trouble with Judge Hardy, and I did not wish to get
Judge Hardy's enmity.

Q. — Do you know Colonel Bieknell, Clerk of Amador County ?

A.— I do.

Q. — Did you have a conversation Avith him at Mokelumne Hill, on oi
about the twenty-fifth day of March last, in regard to Judge Hardy ?

A. — It was at the same time Farley was there. I do not recollect
what the date was.

Q. — I)id 3^ou,in that conversation, tell him that this movement against
Judge Hardy " was nothing but a mean persecution by the Dudleys and
Bill Higbj', because they hated Hardy, and could not use him ?"

A. — i do not recollect using that language. I do not recollect whether
Colonel Bicknell heard the conversation between me and Farley, or not,
but my recollection is, that I stood outside with Farley, and walked in.
As we went to take a drink, I said to Colonel Bicknell, or in his hearing,
that the bill to abolish the District had arisen from ill will created in the
McDermott ?-.s. Higby ease, because Judge Hardy ruled against Higby
at that time. There was nothing said about this move. We were talk-
ing exclusively against the bill to abolish the District. And Farley said :
" Damn Jim Hardy ! Let them impeach him, if he has done anj-thing
wrong, but let them not abolish the District, and cause many of us to
sufter." I do not recollect saying it was a mean persecution.

Q. — But you did say it was a persecution ?

A. — I say I said I thought it had its origin in that manner. I do not
recollect saving it was a persecution. I have no recollection of that at
all.

Q. — Do you know George R. Walker?

A.— I do.

Q. — Was he down here when 3'ou were examined as a Avitness ?

A. — He was down here Avhen I was before the House CVimmittee ?

Q. — Did you have a conversation with him, about Judge Hardj^ and
this move ?

A. — I do not recollect any particular conversation with him in regard
to it.

Q. — See if you cannot refresh j-our memory as to having talked with
Walker, about J udge Hardy .''

A. — I recollect of talking with him of being here as a witness.

Q. — See if I cannot refresh your recollection as to whether you did
not make the same statement to him as I have asked you in regard to
in connection with these other men ? Whether you did not tell him that
you thought this was a mean and malignant persecution ? And not only
this, but that this was a persecution gotten up by the Dudleys and
Higby?

A. — I have no recollection of any such conversation with Mr. AValker.
The only conversation I recollect of having with him in regard to the
matter, was, that I was a witness, and was anxious to get home. I may
have said that Higby and Dudley were the moving parties. I was re-
peatedly asked who was the moving party in it.

Q. — If you had such conversation, and used such language, you would
be likeh- to know it?

A. — I should think so.

Q. — Your memory is pretty good, for conversation ?

A.— Tolerably so.

Q. — You recollect what Judge Hardy said in eighteen hundred and
fifty-nine ?

A. — I do ; very well.

Q. — Would not you be as likely to recollect a conversation on this sub-
ject ?

A. — Xo, Sir; I do not think I would; for the reason that that struck
me as a conversation that I never heard or had with any body under
such circumstances.
7

Q. — How about the statement made in the other conversations con-
cerning which I have asked you ?

A. — I have stated as nearly as I can. I do not recollect having any
particular conversation with Walker.

Q. — How about the conversation in which you said this movement
against Judge Hardy was a persecution ?

A. — I did not say it was a persecution. I do not recollect of using
the words " malignant persecution." I do not recollect of telling Farley
that it was a persecution. I think I told him that the move to abolish
the District was started by them for that purpose.

Q. — NoAv. about this Eeceiver. At the time, or just a few days before
the time, Judge Hardy refused to hear the motion to remove the Ee-
ceiver, had not you, A. P. Dudley, and Frank Treat, gotten up a petition
to the Legislatiirc to abolish the District of which Judge Hardy was the
Judge ?

A. — There was a petition to abolish the District, on account of Judge
Hardj^'s conduct in the Court generally.

Mr. Willknns. — I am not inquiring the reason, at all ; you need not
volunteer any.

WitnesH. — There was one. There Avas a petition gotten up by me, Dud-
ley, Franklin, and Adams.

Q.— Who else ?

A. — I do not recollect.

Q. — AVas Higby in it 'i

A. — I think not. IM}- recollection is, that at that time he did not have
anything to do with it, or was opposed to it. He was practising but
little.

Q. — In regard to this matter of removing the Eeceiver — do you not
know that at that time the relations between Treat and Judge Hardy
were amicable ?

A. — They were, so far as I knew, at the time the Eeceiver was a^)-
pointed.

Q. — Do you not know that the unkind feeling grew out of the aj)-
pointment of the Eeceiver, and that that started the move to abolish
the District ?

A. — No ; I do not know it. I attributed it to the petition alone.

Q. — You got an affidavit for the pur|jose of a motion to have the Ee-
ceiver removed ?

A.— Yes.

Q. — Was that affidavit ever presented to Judge Hardy ?

A. — A copy of the affidavit was served on the other Attorneys.

Q. — Did Judge Hardy ever see it ?

A. — Yes. He came into the office, and I recollect taking it to him and
getting him to indorse an order upon it. My recollection of it is that
Judge Hardy saw the affidavit and indorsed this order upon it : " It is
hereby ordered that the hearing of the motion of which the within is
notice, be at my chambers, at Mokelumne Hill, on the twenty-tirst day
of January, eighteen hundred and sixty, at twelve, m., of said day.
Hardy. District Judge."

Q. — You cannot say that that affidavit was ever read by or in the pre-
sence of Judge Hardy ?

A. — I cannot say whether it was or not.

Q. — That was at what time ?

A. — Jaiiuary twenty-first, eighteen hundred and sixty, was the time
for the hearing of the motion.

Q. — How long after that was it until the case was tried upon the
merits ?

A. — [Examining a paper.] It came up for trial on the fifteenth of
February, eigliteen hundred and sixty.

Q. — An interval of a little over throe weeks?

A. — Yes; I think so.

<i. — Did not Judge Hardy state, at the uime he declined to hear the
motion, that he wa;-; going to have Judge Myei'S "there to try the merits
of the case, and that this motion could be heard- before him ?

A. — 1 do not recollect whether he named Judge .My ei's; he said he
would get some Judge to try tlio case. Judge Hardy said he would not
hear any motion in a case in which Frank Treat was interested, and that
he would get some other Judge, when the Court met, to come and try
the case.

Q. — And it was tried in a little over three weeks after the tims sjet for
heating the motion y

A. — It wa.s tried on the fifteenth of the following Februaiy ; between
three and four weeks after.

Q. — You have no doubt, have you, from your recollection of this trans-
action, it being so recent, that Judge Hardy did say, in connection with
his refusal to bear that motion, that he was going to have some other
Judge to come there and try the case ?

A. — I cannot tell whether he said it in that connection or not. I
know he told me so three or more times, and told me Avhen thcfCourt
met, he set the case down. But whether it was said in connection with
that or not, I cannot tell you. When the Court met he set it down, and
said he would set it tor Judge Myers ; that he had written, or was going
to write, to Judge Myers, to see whether he could come there and try
cases.

Q. — The motion was mentioned then ?

A. — I do not recollect whether anything was said of the motion then.
The trial of the case was proceeded with ; the motion never was heard,
that I know of.

Q. — In relation to Judge Hardy's refusing to hear that motion, pending
the arrival of anotlier Judge to hear and try the case, did not you ex-
press your gratification, and your entire satisiactiou, at the course Judge
Hardy pursued '.'

A. — I do not recollect of having done so.

Q. — Did 3-0U not say in that connection that the fact that Judge Har-
dy was going to get another Judge, and declined to hear the matter him-
self, was satisfactory to you ?

A. — I expres.sed my satisfaction at having another Judge try the case.

Q. — Bid not you say that Judge Hardy was right in declining to hear
the motion, or have anything to do with the case, if another Judge was
to come to try it?

A. — I never said anything, that I recollect, concerning the right or
wrong as regards the hearing of the motion ; and as for the trial of the
case, 1 knov7 that I and my clients were perfectly satisfied to have it set
down for Judge Myers to trj'.

Q. — Would you have been equally satisfied to have the motion heard
before Jud<i'e Mvers ?

A. — AYe would have been much more, if it could have been heard with-
out delay. The delay Avas what we complained of. I got the time short-
ened by the order, so' the motion for the indorsement here was that there
should be no delay.

Q. — In regard to the Eeceiver — it has been stated that Yauglian's gen-
eral reputation was not that of a man of an}* pecuniary means. At the
time he was appointed Eeceiver, was not his reputation for honesty and
integrity good t

A. — Yes. so far as I knew, it .was.

Q. — Was it not also as gv^od at the time Judge Hardy refused to hear
the motion to discharge han ?

A. — Well, I do not kn.ow of any change in it, particularly.

Q. — Xo change had taken place?

A. — ^Xot that I know of. All I know is, that my clients were com-
plaining griev,ously. and wanting to get him removed.

Q. — You exhibited some exceptions here this morning, in the minutes
of the trii\i,uf Robinson et al. vs. Leger et al. Were not those the min-
utes and exceptions solely of the plaintitfs' Counsel?

A -'-They were the minutes kept by the plaintiff's' Counsel. I have no
recollection of any exceptions being taken by the defendants' Counsel.

Q. — In settling the statement, did not you insist on having all your
exceptions, which had been piit in twice, stricken out?

A. — Xo. I was not present, as I stated before, at the time the state-
ment was settled.

Q. — Did you, in your proposed amendments, a,sk to strike them out ?

A. — [Examining the minutes referred to.] The lirst amendment is,
•' Strike out all the exceptions taken by plaintitfs' Counsel, as the same
are set forth in defendants' statement, as the same are immaterial in
this motion."

Q. — Xow. in regard to this count of intoxication on the bench. Ton
stated that during the trial of McDermott vs. Higby, that, shortly before
its close. Judge Hardy was under the influence of liquor. At what time
in the day or evening was that ?

A. — Well, it was in the latter part of the afternoon and early part of
the evening that Judge Hardy was in such a condition upon the bench,
that I could tell that he had been drinking, and. also, along about — well,
I cannot tell exactly — I should think eight or nine o'clock, when the in-
structions were given to the jury.

Q. — And then you thought his tongue was thick ?

A — At the time the instructions were given, I did think so, decidedly.
His reading was such as to show it very clearly.

Q. — In whose handwriting are those instructions ?

A. — If the papers are all here. I can tell you. Some of them are in
my handwriting; some of them in Mr. Adams' handwriting; and some
of them in Mr. Dudley's handwriting. I think. These are special issues
and verdicts. There are instructions. Xos. 1. 2. and 3, in my handwri-
ting, which I wrote at the request of the Counsel emj)loyed in the case.
I was not Counsel in the case. But the Counsel requested me to write
these. They were read. The next is in William L. Dudley's handwri-
ting. They were proposed by him, allowed b}" the Judge, and read.
The next are in Adams' handwriting. Then there are some here in
Judge Terry's handwriting ; it looks like it.

Mr. WiUiamsi. — They are in the handwriting of the Counsel who pro-
posed them, I suppose ?

A. — Yes, Sir. Some in Judge Robinson's handwriting.

Q. — ^Xow. in relation to the time that the jurj^ were out. and came
in at one o'clock on Sunday morning. What time did the jury go out ?
Witness. — I don't know what case jow refer to.

Mr. Williams. — I refer to the case when the Court was in session

until Sunday morning. Were j'ou present at the time the jury Avent
out y

A. — I don't recollect anything about that.

Q. — I refer to the case in which the jmy were charged and instructed
to find a general verdict, and also find answers to special counts. The
case of McDermott vs. Higby. You recollect about that case ?

A. — Yes, Sir, of course.

Q. — A ease where the jury wei"e charged late in the evening. Was it
on the delivery of the charge in that case that you thought the Judge's
tongue Avas thick ?

A. — I believe it was.

Q. — [Showing witness a paper.] Is that Judge Hardy's handwri-
ting ?

A. — Yet!, Sir.

Q. — ''March Ist, 1862." That is the date when the jurj- went out
late at night, is it not ?

A. — Yes, Sir.

Mr. Williams. — I propose, Mr. President, to read the general charge.
It has been testified to, that there was a general charge, with instruc-
tions for finding on special counts. And this charge, which I am about
to read, is the one written and given on that evening.

( In the District Court of the Sixteenth Judicial

1x7- \y i District, County of Calaveras.

William Higby. ) ' -^

Gentlemen of the Jury :

In the first place, on the blank sheet, 3'ou will find a general verdict
for plaintifi' or defendant, and if you find for plaintift', assess the dam-
age, under the rules I give you. If you find for the defendant, a general
declaration to that effect will be sufticient. If you find for the pltff., the
measure of damages will be the value of the quantity of water to which
he was entitled at the head of the Table Mountain ditch, and the injury
to the flumes and ditch occasioned by the want of water.

In reply to the special issues, insert your findings upon the special
issues — under each question.

JAMES H. HAEDY,

District Judge.

Mokelumne Hill, March 1st, 18G2.

That, Mr. President, was the general charge given by Judge Hardy
on that occasion ; and the witness thinks he was drunk when he deliv-
ered it. And Judge Hardy wrote it there on that occasion. [Sotto
voce.] If he makes a charge like that when he is drunk, he must make
a pretty good one when he is sober.

Mr. E(J(jerton. — Did you say that Judge Hardy wrote that charge there
at that time ?

A. — No, Sir ; I did not testify that. I was asked if it was in Judge
Hardy's handwriting. I do not k^iow anything about when it Avas
written.

'Mr. Williams. — I w^ill ask you if you did not see Judge Hardy write out
the charge, after the argument had closed?

A. — No, Sir; I did not see him write it. I was not employed in the
case. I presume he wrote the charge there ; but I was in and out half
the time the trial was going on, and I could not tell when he wrote it.

Q. — In order to refresh jour memory, I am requested to ask you
whether 3*ou now recollect the fact that the general charge was actually
written by Judge Hardy after the argument was closed, aud that the
jury waited for it before they went out ?

A. — I cannot recollect anything in regard to that. I do not remem-
ber anything about his writing the charge, or my being there when it
was written. I was out a portion of the time with William L. Dudley.

Q. — You stated that, on one occasion, the Court adjourned at about
the middle of the term? Until what day did it adjourn ?

A. — I believe, from Frida}' until Monday.

Q. — Did he not hold Court all day. or uearh' all day. Friday?

A. — I think that he did hold Court on Friday.

Q. — Friday, to the end of the day ?

A. — That is my recollection of it.

Mr. Williams. — Then your recollection is right. You need not look
into the records about it.

Witne>^s. — [After examining records.] Yes ; there was business done
on Friday, to the best of ray ]-ecollection.

Q. — There was a good day's work done, wasn't there ?

A. — There were two naturalizations. There is an entry in the case of
Shipley is. Paul; there is an entry in the case of Mammoth Tunnel Co.
vs. Tucker et al.

Q. — Are j'ou not aware of the fact that Judge Hardy went away on
Saturday, and returned on Sunday ?

A. — I do not know when he went awa3% or when he retui-ned. I
know that he was there on Monday — or. at least, that is my recollection,
that he was there on Monday. I see here that the minutes show that
he was there on Monday.

Q. — Do you not know, or do you know, whether or not the adjourn-
ment over Saturda}' was made at the request of memlters of the bar ?

A. — Well, I did not make au}' request, that I recollect of. Whether
others did or not, I do not know. My recollection is. that I had a case
set for trial on Saturday, that my clients and their witnesses were there,
and that we were greatly disappointed in Judge Hardy not being there
to try it.

Q. — You said something about the terms having been irregularly held.
What terms were held irregularly ? And in what did the irregularity
consist ?

A. — AVell, Sir, there was one term in which, before the time when the
term regularly expired, that the Judge came to me, on one evening,
after the Court had adjourned for the day, and said that he had got to
go below, to attend upon the Legislature, for a short time.

Q. — When was that ?

A. — It was at the time when the "Horace Smith"' bill was before the
Legislature. He said that he had got to go to the Legislature to get
that bill through. He wanted to have the rest of the cases go over. I
had a murder case, which had been pending two or three years. It had
been tried once or twice. It had gone to the Supreme Court, and been
sent back. I told him I did not yrant to have the man lie in jail any
longer, under an uncertainty as to the issue of the trial. I pi'ocured an
order which allowed him to be tried in Jackson, the next term that was
held there. That term was broken oflf in that way. I knOAV that in
one case he was gone away somewhere, and that he got a bill ])assed
which allowed him to hold a special term at a ditferent time, afterwards.

Q. — Now, come back to the first instance, when 30U assert there Avas

an irregularity. Did not all the members of the bar assent to the ad-
journment at that time ?

A. — I assented to it. I do not know whether the other members of
the bar assented to it or not. I recollect that he asked me in front of
the exjiress office — that is my recollection — and I assented to it. under
the circumstances wliich I have told you.

Q. — Do you know of anybody, any member of the bar. Avho did not
assent to it ?

A. — I do not know anything about what the rest of the bar said in
regard to it,- or whether they said anything. I know I assented to it.

Q. — Do you know of anybody who declined to assent to it ?

A. — I do not knoAV whether anybod}' declined to assent to it. or
not.

Q. — Then. I suppose you mean to sa}'. you do not know that anybody
declined to assent to it 't

Mr. C'iimphcIL — [Interrupting.] The Avitness has answered that ques-
tion several times.

Mr. Willidmn. — What other terms were held irregularly ?

A. — There was a term when there was one or two jury trials ; I think
it was the November term, eighteen hundred and sixtj'-one. ["Witness
examines the records.] Yes. Tuesday, the fifth of November, eighteen
hundred and sixty-one. On Wednesda}', the sixth, the Court met, and
adjourned on the same da}' until the twenty-fifth November, eighteen
hundred and sixty-one.

Q. — Now. do you know the cause of that adjournment ?

A. — I think that it was at the time when Judge Hardy was going down
to attend Court on his own trial.

Q. — Yes. Sir. He was under stress of judicial proceeding, then, him-
self^

A. — Yes, Sir, he was. There were other jjortions of terms not held
full v.

Q.— Well, then, state them.

A. — Well, I can tell better, by looking over the records here, how the
terms were held, than I can tell by depending upon my own recollection.
[Witness examines records for a considerable time.]

Mr. Williams. — Can you find one instance, in that Avhole book, of the
character of which you speak?

A. — Well, I think so. General. There was one term, I recollect — I
don't recollect what term it was — when Judge Hanly was gone to the
Legislature to get a bill passed authorizing him to liold a special term,
and he came back, afterwards, and held a short special term.

Q, — Arc you not mistaken in asserting that Judge Hardy had anything
to do with authorizing to hold that special term? Was not that bill
passed at the request'of the bar of Amador County?

A. — AYell. Sir. I do not knof\'' anything about what the bar of Amador
County wanted passed. I think 'that "judge Hardy told me that he
wanted to hold a special term of Court. I think, from his conversation
with me. that I drew the conclusion that he wanted the bill passed.
[Witness proceeded again to examine records.] Yes, I have found it.
This special term was held in May, eighteen hundred and sixtj-'Oue. It
commenced on the twentieth of May, eighteen hundred and sixty-one.

Q. — That was the special term?

A. — Yes. Sir. The regular term commenced on the first of May. This
term that commenced on the twentieth, was the special term.

Q. — Do you not know that that special terra was held in pursuance of
an Act of the Legislature ?

A. — Why, that is the Act to which I refer.

Q. — Do jou. or not, know that that special term became necessary, in
consequence of the organization of the County of ^lono ?

A. — Xo, Sir; I did not know whether it did or not.

Q. — Was not that County created in eighteen hundred and sixty-one ?

A.— Yes, Sir.

Q. — And is it not in Judge Hardy's District ?

A.— It is.

Q. — And did it not become necessar3^ in order to have the Courts of
Calaveras and Amador properly attended to, that this change of a term,
or the authorizing of this special term, should be made ?

A. — I do not know. I do not know what time the Court in ]Mono
County is held. I do not know when the first term was held there. I
have never been there, to attend any of the Courts there ; and don't
know anything about it.

Q. — Mr. Brockway, do you know that paper? [Showing witness a
paper.]

A.— Yes, Sir.

Q. — It is a paper in a case in which 3-ou were Attorney?

A. — I was Attorney for the defence in that case.

Q. — Do you know who made these marks in the margin, and directed
the Clerk to strike them out ?

A. — Xo, Sir; I do not. I think tliat Abraham Shear made them. It
was the case of Eproson v. Gray.

Q. — You say you don't know who made these marks ?

A. — I do not recollect. I recollect being called into the Clerk's office
by the Deputy Clerk, to see about tlie engrossment of the statement.
And I think ^Ir. Abraham Shear asked me how to insert the amend-
ments, and how to strike out; which I told him. But I do not know
who made these marks. I was Attorney for the defence in that case,
associated with Mr. Gatewood.

Q. — Well, when Mr. Shear asked you about the engrossment, you, di-
rected him to leave out the matter here marked ?

A. — I cannot tell without examining the matter. If you will show me
the proposed amendments, then I can tell you what I directed. But
these marks I do not knoAV anything about.

Mr. Williams. — That is all, Mr. Brockway.

RE-DIRECT EXAMINATION.

Mr. Cainphell. — Mr. Brockwa}', in the course of your cross examination
you stated that you desired to make some explanations connected with
the te-stimon}- which you were required to give.

Witness. — I was very careful Avhat I said at the time Judge Hardy was
on the bench. I was a friend of Judge Hardy's, and had no ill feeling
towards him for some time. The Counsel there at the Hill had sort of
got the advantage of me on the rulings of the Court. At the time to
which I refer now. I knew that Mr. Farley was a friend of Judge Hardy's,
and that if I said anything to him which might prejudice me with Judge
Hardy, it would probably be repeated to the Judge. I did not wish to
excite any ill feeling on the part of the Judge toward me. and I was very
careful to say nothing which would prejudice the Judge toward me,
which would injure me in his estimation. I was, at that time, and always
have been, opposed to the move that was started for a bill to abolish the
District. I agreed with Mr. Farley, that we wanted the District to re-

main as it was. I agreed with him. that if Judge Hardy had done any-
thing wrong, it was more proper to have him impeaclied and removed;
and not injure liim [Mr. Farley] and everybody else in the two counties,
by abolisbing the District.

Q- — I^id you stHte, in 3-our cross examination, that you had signed the
petition in favor of the abolishment of the Sixteenth Judicial District?

A. — That was in the winter ot^ — let me see — I cannot tell exactly what
time it was. Yes — it was in the winter of eighteen hundred and sixty-
one, I believe. Hold on ! [Witness pauses for reflection.] No, it was
not ; it was in the winter of eighteen hundred and sixty.

Q. — You signed a petition, then, for the abolishment of the District ?

A.— Yes, Sir.

Q. — How came you to sign that petition, and afterwards ojipose the
movement ?

A. — I will tell you. Mr. Treat came to me, and assured me that a major-
ity of the meml>ers of the bar — naming them — would all sign the petition.
I think he said that all the members of the bar would sign it. I told him
that unless all would sign it, that I would not sign it. He said that the
others would sign it. Upon his representation I wrote the petition, and
signed it myself When the petition was taUen to William L. Dudley, he
refused to sign it. Mr. William L. Dudley was one of those who opposed
Judge Hardy's election. When I found Mr. Dudley refused to sign the
petition, and was informed that he had Avritten a letter to Judge Hardy,
stating what he had done, I got the petition and destroyed it. After-
wards, Avhen the matter came up, I refused to support the movement ;
on the eontraiy, opposed it. And when this movement for the Impeach-
ment of Judge Hardy came up, I stated that I would have nothing to do
with it. I did not expect to be called before the Committee to testify.
I came before the Committee on the force of legal process. I woiild
never have come at all, voluntarily. I said that others were beginning to
feel the effects of what I had suffered in Court; and I thought that they
ought to take turns and feel the hardship with me. These were the mo-
tives which actuated me. And I told them so, too. I have often employed
William L. Dudley after that time when the petition was got up — I never
had occasion to before — to argue the simplest proposition before the
Court; telling him that all I wanted was his influence with the Court;
for he knew how we were all situated there.

Q. — What do you mean by using the expression that Dudley knew
how you were all situated there ?

A. — Well, I told him, time after time, in Court

Mr. WiUiams. — Told whom ?

A.— Mr. Dudley.

Mr. Wif/iamx. — Well, we object to witness' testifying what he told Mr.
Dudle3\ As a lawyer, Mr. Brockway. you ought to know that it is im-
proper for you to state what 3'ou told Mr. Dudley in that connection.

Mr. Camp/jeU. — Well, we withdraw the question.

Witness. — Now there was one other matter, concerning which, I asked
General Williams the privilege of explaining : in regard to supporting
Judge Hardy, and in regard to a speech which I made at Independence.
The first that I knew, I was announced to speak all over the county du-
ring that canvass — which I did not do. It would have taken nearly
ever}" da}* in the month for me to have done so, and I did not feel in-
clined to do it. I went up there to Independence, and spoke. I there
urged the election of Judge Hardy. While there I urged upon Mr.
Clark, who had a very important litigation pending — involving the

ownership of property in which he had invested a large amount of
money — that it would be better for him, better for his interests, (these
were the arguments I used,) to support Judge Hardy, and use the influ-
ence with his ditch men in Judge Hardy's favor. He had a ver^^ large
and fine ditch, upon which a large number of men were working, whom
he could control, so as to get them to vote for Judge Hardy. I told him
that I thought he had better do this, because I believed that Judge Har-
dy would use his influence more in his favor, than Judge Badgly would.
I placed the argument in Judge Hardy's favor upon that ground. Mr.
Clark, in reply, urged his objections against Judge Hardy.. In the
nominating convention I supported Judge Hardy, for the reason that
Judge Porter, one of the candidates of my party, who Avas seeking the
nomination, was my bitter enemy. He had no ability, and I knew very
well, that if he was elected, whatever influence the Court would have, would
be thrown against me. So I supported Judge Hardy as a candidate for
nomination. It was a strict political fight. I went against an intimate
political friend. At that time I was in favor of Judge Hardy's nomina-
tion, as against the nomination of Judge Porter ; and I was in favor of
Judge Hardy's election, as against the election of Judge Badgly. I was
at tliat time on friendly terms with Judge Hardy, and had no cause of
complaint with his rulings.

RE-CROSS EXAMINATION.

Mr. Williams. — Did not Judge Hardy act as Counsel in the case of The
Mokelunine Hill Mining Company — in several suits in which that com-
pany were interested ?

A. — I recollect only one ; that was where an injunction bond had been
granted. I do not recollect of there being any other in which he was
engaged.

Q. — Do you not recollect that, after lie became Judge, he refused to
try some causes between this company and certain parties, becaiise he
had been Counsel? Did not Judge Sexton come to your Court for that
reason ?

A. — He was there on several occasions, I believe. There was one case
in which an injunction bond was issued. In that suit, the injunction was
dissolved. "We sued the comjjany for Mr. "Woodberry. I brought a suit
against the bondsmen on their bond. In that case, according to my
recollection, Judge Hardy was Counsel. We made an affidavit, on
application for a change of venue. The Judge at first refused to make
the change. The next morning he concluded not to try the matter, and
sent for Judge Sexton to come and tiy the cases in which this company
were interested. They were cases that had bee.n to the Supreme Court,
and sent back for trial. I do not recollect of having had anything to
do with the suit there. I could not tell when they were tried there.
The Presiding Officer [Mr. Shaffer] was one of the Counsel Avho helped
try the case. W. P. Dudley- and Allan P. Dudley and Judge Hardy did
not help try it.

Mr. Campbell. — "Was not Mr. Badgly Counsel for the Mokelumne Hill
Company ?

A. — Yes, Sir; he was partner of "William L. Dudley, who was Counsel
in that case. Mr. Shaffer was Counsel in the case.

Mr. Campbell. — That is all.

The witness desired to be discharged from farther attendance upon

the Court. Mr. Campbell said it was impossible to discharge any of tlie
witnesses for the prosecutioji at present.

TESTIMONY OF WILLIAM L. DUDLEY.

Mr. Dudley l)eing called and sworn, testified as follows:

Mr. Camphrll. — What is your business, and where do yon reside?

A. — I am an Attornej' at Law, and reside at Mokeluinne Hill, Calave-
ras County.

Q. — Do you know the Respondent, and if so, how long liave you known
him 't

A. — I know him. I have known him for six or eight years, I pre-
sume ; perhaps longer.

Q. — Have you practised before him ever since he was Judge of the Six-
teenth J udicial District ?

A. — Yes, Sir.

Q. — Do you know anything about the case of Mercier and others
against W. P. Denny and others, defendants ?

A. — I know of such a case, Sir.

Q'. — AVcre you Counsel in that case?

A. — I was Counsel in the case of Mercier and others against Robinson
and others.

Q. — Were you Counsel in tliat case?

A. — 1 l.rought the suit of ^fercier against Robinson and others.

Q, — I ask you if you know the case of Mercier and another against
Denny and others?

A. — I know of that case.

Q. — Were you Counsel in that case, or did you have any connection
with it ?

A. — I believe that my name appears on record for the defendants. I
really never knew anything about the merits of the case, but I assisted
some at the trial.

Q. — Do you recollect anything about amendments to the pleadings in
that case ?

A. — Yes. Sir; I do.

Q. — State all your knowledge upon that subject.

A.— At the last term of the District Court for Calaveras Count}-, in
February, the Counsel for plaintift' asked leave to amend his replication.
It was resisted by Counsel for defendants. A7hen the motion was first
made, it was not based upon an affidavit. There had been no notice
given to the Attorneys for the defendants. Judge Hardy gave the mov-
ing party time to give notice, etc., for the purpose of hearing the motion
to amend. So the case was postponed.

Q. — Do you know how many defendants there were ?

A.— I do not know, but the record will show. The case was postponed
until the twenty-seventh of February, as I understood, for the purpose
of hearing the motion to amend the replication. It had been previously
set down^'for trial on the seventeenth of February. On the morning
when the case v>'as called for trial. Tod Robinson came in with Mr. George,
to make his motion to amend the replication.

Q._State what happened between you and Judge Hardy, if anything,

between the seventeenth and twenty-seventh of February, at any time
between those dates.

A. — Yes, Sir. A few days — the precise number I do not recollect — a few
dsijs before the motion came up for argument, Judge Hardy came to me
in the Court room, after the Court had adjourned, and said that he wanted
to ask a favor of me. Said I, '■ Certainly, what do 3'ou want ?" Said he,
" I have got to have time, and I have got to have it in this case of Mer-
cier vs. Denny." I asked him what he meant bj^ saying that he wanted
time in this case. He said he wanted to avoid either the trial of this
other cause, or the hearing of the motion in regard to it — I would not
be certain which. Said I, " Verj^ well." Said he, " I want you to con-
sume as much time as you can in your case, so as to throw this case of
Mercier vs. Denny over the term." I told him that I would do as he de-
sired, and I did do as he desired.

Q. — Did he refer to any particular case in which he desired you to
protract the time to any considerable length ?

A. — Yes.^Sir. There was then a case of Pelliton against Morris and
others. I was associated with Mr. Robinson in that. Mr. Brock way and
Mr. Allan P. Dudley Avere in the case. It Avas a civil case. There were
four arguments made in that case. That was a very unusual thing in
such a case as that, in that county. I think that was commenced on the
twenty-fifth, and ended on the twenty-sixth. I am not certain, however.
[The Avitness looked at the record.] It appears, by the record, that on
Tuesday, February tAventy-tifth, the jury Avas empanelled in that case.

Q. — HoAv long did the trial last?

A — It lasted Tuesday and Wednesday, Sir.

Q. — Were you engaged in any other case that came on after Wednes-
day ?

A. — Yes. Sir. I was engaged in the case of McDermott against Higby.
I appeared for the defence. That case came up on Thursday.

Q. — State what you know in reference to the proceedings in that case
at that time.

A. — In that case I had a plea in abatement filed. That came up fol-
loAving tliis other case. This Avas on Thursday, February tAventy-seventh,
eighteen hundred and sixty-tAvo. The motion, the plea in abatement, Avas
decided the day before, I think, but the jury Avas empanelled that day, the
twenty-scA^enth.

Q. — State all you knoAv in relation to the proceedings in that case.

A. — When the plea in abatement came up, there Avas an agreed state-
ment, not reduced to writing, between Judge Terry and myself, upon
which the plea Avas to be heard. And there Avas also an agreement con-
cerning an action for damages upon the same property, and at the same
time, then pending in the Supreme Court — having been appealed from
the District Court in which this suit of McDermott against Higby was
pending. The appeal had been filed AA-ith the Clerk, and a notice served
upon liigby, or his Attorney. And I pleaded in abatement of the suit
that Avas tried. The trial commenced on the tAventy-sixth. The Court
found the plea not true. I thought the ruling conflicted Avith the ruling
which the Court had made in a case of Mr. Brockway's, Avhen Mr. George
moved to strike the case from the calendar. It Avas a case Avhere there
was an appeal pending. I spoke to Judge Hardy about this case after I
left the Court room. I spoke to him about the ruling in that case, and
the ruling in this case. He remarked, I think, at that time, that he
thought the cases were not parallel. At any rate Ave did not have much
conversation then. In the progress of the trial he made another ruling.

and after we left the Court room, I mentioned the fact to him. Said I,
" You hold this plea in abatement not true, and, if that ruling is good,
your ruling in regard to the answer can not be proper." " l^amn it,"
said he, " Bill, what ditference does it make to you? Your plea in abate-
ment is good." " Yes," said I, " but I shall have to go to the Supreme
Court." Said he, " Have I not told you that I have got to have time.
Don't you understand me ?" He said that this case must consume the
balance of the time — Friday and Saturday. To this I remarked that it was
very well for him to have time — but that it was veiy expensive to me
and my clients. He said nothing more after that, except that he wanted
to avoid hearing the motion in the other case, and that my plea in abate-
ment was good — that it made no difference to me what his rulings were
in the case of McDcrmott against Higby.

Q. — Did he state anything further at that time, as to wanting time, or
a postponement of the other case ?

A. — He often mentioned it during the balance of the term. But I do
not know as he said anything further at that particular time upon that
subject.

Q. — Did he give any reason as to why he wanted time ?

A. — He never assigned any reason to me why he wanted time ; he
said that he did want it.

Q. — Do you know anytliing further of the proceedings in that trial of
McDermott against lligb}- "/

A. — Yes, Sir. On the last day, Saturday, Mr. Higl*}- had filed an affi-
davit, setting forth that he believed the Court was prejudiced against
him. He thouglit he could not have a fair trial, and he made an affida-
vit to that effect. He submitted to the jury special issues, that he might
have them pass upon them. We went on trying the case. We finished
it on that day. Up to Saturday there had been no ruling made by the
Court that allowed any evidence that would go to the favor of the de-
fendants, to come into the case. On Saturda}^, I think, the rulings of
the Judge were changed; at any rate, they were modified, so that the
defendant managed to get in his defence. In the evening the case was
submitted to the jnry — I think between ten and eleven o'clock — it was,
at least, half past ten o'clock. I recpiested Mr. Brockway to write one
or two instructions, or more, upon certain jiropositions ; which he did.
I also requested Mr. Adams to do me the same favor, and he complied
with ray request. I wrote some of the instructions myself. They were
given to the Court, and the Court gave the instructions to the jury.
After the instructions were passed to the Court — Judge Hardy and a
number of us had been drinking in the afternoon and evening — I thought
he was very much under the influence of liquor when he gave the in-
structions to the jury.

Q. — Do you know anything as to what terms Judge Hardy was on
with Mr. Mercier ?

A. — No, Sir. Judging from what I had always understood, friendly.

Q. — You say that he was decidedly intoxicated ? In what way did he
manifest it ?

A. — In various ways. When he left the bench, his walk, his gait, de-
noted to me — independent of anything else — that he was under the influ-
ence of liquor. He read the instructions which I gave him with some
difficulty. I think his tongue was rather thick. And I mentioned the
fact at the ti)ne to Mr. Brockway, who sat near me.

Q. — Do you know anything about the case of Eobinson against
Leger ?

62 '

A. — I know' that there was such a case, Sir.

Q. — Well, do you recollect when it came up before Judge Hardy the
last time ?

A. — It came up the last February term.

Q. — Did you have any conversation with Judge Hardy in relation
to it ?

A.— I did. Sir.

Q. — State what it was.

A. — I was once in the ease, but withdrew from it. Judge Hardy request-
ed me to see Mr. George, and ascertain if he (Mr. George) would consent
to a continuance of the case. Judge Hardy said that the plaintitfs in the
suit were bound to recover something, when the case came up for trial;
and that the longer it was put oif, the better it was for them. Judge
Hardy wanted me to see Mr. George, and ask him not to fight the mo-
tion any furtlier. but to consent to an adjournment.

Q. — I)id Judge Hardy assign any reason why it would be better to put
the case oft?

A. — He said that time might wear the case out ; but that the plaintiffs
were certain to recover something when the case came on trial — the onl}'
question l)eing as to the amount. I went to Mr. George accordingly,
and stated to him that he had better consent to a continuance of the
case ; and I also told him at that time that it was Judge Hardy's desire
to have the case postponed. I knew that the Judge and he were on in-
timate terms.

Q. — Were you ever Counsel in the case of Eobinson against Leger ?

A. — Yes, Sir. I think that I put in a demurrer in that case for the
defence. I afterwards withdrew from the case, and never had anj^thing
more to do witli it.

Q. — Do you knoAV aJiything about an adjournment of the Court in the
August term of eighteen hundred and sixty-one? If so. state what it
was.

A. — In the month of August, eighteen hundred and sixty-one, the
Court adjourned from Friday, the sixteenth, until Monday, the nineteenth.
On the seventh or eighth of August, there was a case of Gatewood against
McLaughlin. I appeared for the defendant. The case was set for trial on
Saturday, the seventeenth. On that day McLaughlin was there with his
witnesses ready for trial. But there was no Court, and my client went
away with his witnesses.

Q. — Do you know for what purpose the witnesses were there ?

A. — Yes, Sir. They were there for the purpose of proceeding with
the trial of the case on that day, on Saturday, the seventeenth.

Q. — Now, in relation to the final adjournment of the Court at that
same August term. Do you know anything in relation to that?

A. — No, Sir. I know nothing about it. only from what appears on the
records. I was there, at home, during that term, and I was in Court.
But I was not there in the Court — I think not — on the evening of the
day of the final ailjournment.

Q. — \Yere you there the next day after the adjournment ?

A. — I do not know. My recollection is not distinct as to that. I know
that I tried one of the last cases that was tried at that term — the case of
Irwin vs. Dennison and others.

Q. — Did Judge Hardy at any time tell 3^ou why he made that adjourn-
ment of the Court of which you speak ?

A. — lie told me that he was going off to make some speeches.

Q. — What kind of speeches ?

A. — He did not tell me what kind of speeches he was going to make.
But I knew w^hat kind he meant. This was during the political cam-
paign. I know what kind of speeches are generally made at such a
time.

Q. — Do you know anything in relation to a motion for the removal of
Joseph P. Vaughan, as Eeceiver, in the case of McDermott vs. Burke?

A. — I heard ahout that case, but I know nothing, of my own know-
ledge, concerning it.

C^. — On the occasion where you speak of a case having been set for
Satur(hiy, and the Court not being in session on that day, who was there
for the pUiintiff?

A. — My client was tliere for the plaintiff. He had witnesses sum-
moned, subpcxMuis served, and he was there with his witnesses, ready for
trial. •

Q. — Now, will you state, as nearly as you can, all the conversation
that took place between you and Judge Hardy in regard to the post-
ponement of tliis case of Mercier against J3enny ?

A. — Well, Sir, I think I have related nearly all the conversation that
took place between us. Judge Hardy stated that he must have time.
He said that he Avanted to avoid the ti"ial of the case, or the hearing of
the motion to amend the replication — I would not be certain which ; and
I told Mr. Denny of it.

Q. — Have 3'ou stated all j^ou can recollect of that conversation which
related to this matter ?

A. — AVell, there miglit have been something else in the conversation.
I had sevei'al general conversations with him, at different times, during
three or four days.

Q. — How frequently did lie allude to this case of Mercier against
Denny y

A. — He spoke of it three or four times during the balance of the
term. Whenever I got into conversation with him in regard to the
McDermott and Higby case, he alluded to this case.

Q. — Do 3"ou recollect whether or not upon any one occasion you asked
Judge Hardy to be more ex])licit ?

A. — Yes, Sir; that was the first time. When he first told nie that he
required time, I asked him to explain — to be more explicit. He then
said that he wanted to avoid the trial of that case of Mercier against
Denny, or the hearing of the motion to amend the rej)lication. He said
that I could give him time. He then said that he hoped that I then
understood him. I said that I did.

Q. — Do you recollect any question of this kind : '• You don't care a
damn ; you are only an Attorney of record ?"

A. — Yes, Sir J I remember that expression.

Q. — What was your position in the case?

A. — Mr. Brock way had placed my name on the record in order to
enable me to assist him in the trial, or to keep me from being on the
other side. At least 1 was so informed by him. When the motion was
made to amend the replication, Mr. Brockway solicited me to resist it.

Q.. — Do you knov/ the relations between Judge Hardy and Mr. Leger?

A. — I suppose that they are friendly. Judge Hardy is at Mr. Leger's
place a good deal. They are friendly, I think. I should say that they
were friendly.

Q. — Did you at any time state anything to Mr. Brockway in relation
to this conversation between Judge Hardy and youi'self ?

A. — Yes, Sir.

[Mr. Williams objected to this question, and Connsel for prosecution
said that they withdrew it.]

Mr. CampheU. — Do you remember, in the McDermott and Higby case,
that a motion was made for a nonsuit ?

A. — Yes, iSir. That motion was overruled.

Q. — Do 3"0u recollect ever saying anything to Judge Hardy about his
ruling in that matter ?

A. — Well, the time that I had a conversation with him, particularly
about that case, was when I spoke to him about his ruling on the evi-
dence, his decision on the plea in abatement, etc. I also spoke to him
about this motion for a nonsuit, when he repeated to me what I have
already said.

Q. — Do you recollect, in his refusing to grant a nonsuit, any remark of
his. in regard to any allegation in 4he plaintiff's complaint, relative to
trespass not being denied ?

A. — Yes, Sir ; he held that the answer did not deny the charge of tres-
pass.

Q. — Did you then say anything about that?

A. — Y^es, Sir; I complained of that ruling, as I did of his rulings gen-
erally in the case. I specified all of them to him, I think. He said that
I need not give myself any concern. He said that my plea in abatement
was good. As far as I was concerned, he said, that I had the " dead
thing " on the plea in abatement. Then I complained of his having de-
cided against it as untrue when he believed it to be a good plea.

The Court then adjourned until eleven o'clock on Wednesday morning,
April thirtieth.

[Note. — On page 47, eighth line from the top of the page, for "peti-
tion," read " affidavit." — Eeps.]

TESTIMOlSrY

IN THE

TRIAL OF JUDGE J. H. HARDY.

THIRD DAY— APRIL 80, 1863.

TESTIMONY FOR THE PROS E CUTIOiS'.

EXAMINATION OP W. L. DUDLEY, RESUMED.

Mr. CampheU. — You stated yesterdti}', that, at the earnest request of
Judge Hardy, you consumed a good deal of time in the trial of certain
cases which were pending- in that Court ?

A. — Yes.

Q. — Among others, you named the case of McDermott i',s. Hig1)3^ Be
so good as to give a brief history of that trial, so as to show in what the
delays, if any. consisted.

A. — The trial, after the plea in abatement was disposed of, lasted three
days. Plaintiif put in his case the tirst da}*, after the plea in abatement
had been passed on. He closed his case at night. I then moved for a
nonsuit. That was about the usual hour for adjournment — the dinner
hour for most of the members of the bar — and I argued the motion but
a short time. Judge Terry replied ; the motion was overruled, and the
Court adjourned to the next morning. The next day^was nearly the
whole of it consumed in motions, olfers to prove certain facts, and argu-
ment upon the propositions — the Court taking a recess once, twice, or
three times, during tiie day.

Q. — How many "times during the day ?

A. — I think twice, certain ; perhaps three times. A recess was taken
along about tw^elve o'clock, for an hour or two, to give the Attorneys an
9

oppoi'tunity to hunt up their authorities on a question that had arisen in
regard to the denials of the allegations in the complaint. So that really
the offers to attempt to prove, by certain witnesses, certain facts, con-
sumed nearly all the time. On Friday, the second day of the trial, there
was but very little evidence offered, the Court ruling against the defence
most of tlie time ; and it was only until Saturday that the defendant got
in any evidence to meet the allegations of the complaint. I thought the
case ought to have been tried in two days, and think so still.

Q. — About how long were those recesses, that you speak of?

A. — Well, they were not unusually long. They were common in Judge
Hardy's Court sometimes. It was not an uncommon thing to take re-
cesses in his Court.

Q. — Was there any evidence admitted on the last day, w^hich was re-
jected on. the day previous?

A. — Well, I think that there was. I have some of the offers that I
made to prove certain facts.

Mr. CampJ>f'U. — Examine them, and refresh your memory.

Witness. — [Examines pupers referred to.] The defence in the case was,
that the defendant was not guilty as charged in the complaint, and, we
supposed, a specific denial to the allegation that the defendant took this
water, for Avhich they alleged they had sustained damage in the sum of
six thousand or seven thousand dollars. The Court held that it was not
a denial of the commission of the trespass. I contended that it was;
that the complaint was not verified, and that the general denial was suf-
ficient. The Court held otherwise, and, on that proposition, refused to
grant the nonsuit. We then went on, as they had alleged in their com-
plaint that the defendant, or persons acting under his authority, had
taken this water, to prove the manner in which he had taken it. And we
put in a power of Attorney from the owners of the San Antonio and Georgia
ditches, who had foreclosed a mortgage in the sum of ten thousand dol-
lars against said ditches, in Judge Hardy's Court. Mr. Higby foreclosed
it, and I defended it. I wanted to show that Mr. Higby was acting as
the agent of the Taggarts, and had control of these ditches. The com-
plaint in the action claimed a right to one hundred and eighty inches of
the water in said creek below. The plaintiff sought to divert the water
above the San Antonio and Georgia ditches into and through the Table
Mountain ditch. Judge Hardy, on Friday, allowed us to prove that a
certain person was acting there as an Agent of Mr. High}', the defendant
in the suit. We then wanted to show, as they charged, in the complaint,
that the water was taken under the direction of Mr. Higby, what his
directions to his Agent there, were, in regard to taking the water;
claiming that the San Antonio and Georgia ditches had a right to one
hundred and eighty inches of water, which had been settled and deter-
mined before, and that it was a prior right to that of the Benson and
S2)encer ditch below. Judge Hardy refused to let us prove the directions
of Mr. Higby, the defendant in the action, to his Agent there, who had
possession of the ditches. That was on Friday. There were offers
made and reduced to writing. Here is one that was reduced to writing;
and here is Ju4ge Hardy's refusal, with his name signed at the bottom.
[Exhibiting a paper.] I will read it, if desired. [Eeads.]

" The deft offered to prove by the grantee of the Bensons, of the
Benson & Spencer ditch, that while he was the owner thereof, the Geor-
gia ditch and San Antonio ditch used the waters of the San Antonio

creek, above the said Benson ditch, and that he had full knowledge of the
fact, and did not object to such use.

" Plttts Counsel objected, because the witness, Dudley, who was the
gTantee, made a mortgage on the same property, cotemporaneously with
his deed for the purchase money, and plttf holds under that mortgage.
Obj sust, and deft excepts. Hardy."

That was ruled out on Friday. I then made another offer to prove
the following facts :

'• Deft offered to prove, by good and competent evidence, that the San
Antonio Ridge Ditch and Mining Companj^, after running the waters of
the creek through their ditch and flume, turned it again into the creek,
above the head of the Benson &, Spencer ditch, without diminution in
quantity or quality, and that such use, so made by the San Antonio ditch,
did not deprive the Benson & Spencer ditch of any water to which that
ditch was entitled, either in quantity or quality, and that it has been so
used since the respective ditches, mentioned in the complaint, were built,
and that so running water through said San Antonio and Georgia ditches,
was ]>rofitable and beneficial to the ownei-s of the same."

" This evidence was objected to by plff." (I am now reading from the
handwriting of Judge Hardy.) " The objection sustained and deft ex-
cepts. Jas. H. Hardy."

There were one or two offers made which were not reduced to writing,
all of which were shut out under the rulings of the Court; and I left
the Court on Friday evening pretty firm in the belief that the defence
was shut out, too.

Ifr. Williams. — Only state facts, and not your belief.

Witness. — I will only state facts. I will state that on Friday, after a
long argument had been consumed, in regard to the right to take the
water — ^the diversion above and below — without any suggestion being
made on the part of Judge Eobinson or Judge Terry, Judge Hardy
said he would submit special issues to the jury, to which we then ob-
jected. On going into Court Saturday morning, as Judge Terry handed
up to the Court what he termed the special issues that he desired to
have submitted, and, when he passed them up, Mr._ Higby, the defendant
in the action, filed an affidavit, (which is here,) setting forth his reasons
why he desii-ed this case to be submitted generally to the jury, without
special findings. After the introduction of that affidavit —

Mr. Camphcll. — What affidavit was that ?

A. — The affidavit of Mr. Higby, that he believed the Court was preju-
diced against him ; that he did not believe he could have a fair trial
before Judge Hardy, and wanted to save his rights as much as he could
before thejur}-, and did not want these special issues submitted. Then,
after that affidavit had been passed upon, we made this offer :

McDermott ")

vs. [

Higby. )

offer of defendant.

Defendant offered to prove by good and competent evidence, that the
San Antonio Ridge Ditch and Mining Company, after running the waters
of the creek through their ditch and flume, turned it again into the Saa

Antonio creek, above the head of the Benson & Spencer ditch, and that
the i;se of the water by the San Antonio ditch was beneficial to the own-
ers thereof, and did not deprive the Benson & Spencer ditch of any water
to which that ditch was entitled ; and that it had been so nsed since eight-
een hundred and fifty-four, the owners of the Benson ditch acquiescing
to such use ; and that the plaintiff to this action had full knov\dedge of
the manner in which the waters were used by the said Georgia and San
Antonio ditch after his purchase, and did not object.

Plaintiff' objected. Objection overruled. '■ because this offer adds to
that made in regard to tlie same kind of use of the water; the fact that
plaintiff' knew of such use, and did not object ; the evidence tending to
sustain the plea of abandonment."

The last words are the language of Judge Hard}'.

That was an off'er made on Saturday morning, which Judge Hardy
claimed was in addition to the offer made the day before. This offer to
prove these facts was strenuously resisted by the Counsel for the plain-
tiff'. Judge Hardy tlien declared, in writing, the law of the case to be
this, or near this : (Here is my memory of it, as I have reduced it to
writing, from recollection :)

McDermott

vs.

HiGBY.

The Court, on Saturday afternoon, declared the law to be, that under
the pleadings, if Benson and Spencer first appropriated one hundred and
eighty inches of water of the creek, they, or their grantors, had the abso-
lute right to divert the water so appropriated at any point on the creek,
unless they had abandoned it. That they might abandon the inght to
change the diversion, without abandoning the right to the water, and
that evidence tending to show the latter was admissible.

I thought. Sir, that he changed his rulings, because I thought — in fact
I know — that I made the same offer to prove on Friday what he allowed
me to prove on Saturday, although I do not know as it appears here
full}". All the offers were not in writing ; some were verbal.

Q. — State whether on that trial any delays were intentionally produced
by you.

A. — Well, yes; on the start they were. When I found where my client
was going to land, I then commenced hauling in.

Q. — What do you mean by that ?

A. — I mean by that, that I discovered, from the rulings of the Court,
and the management of the case generally on the part of the plaintiff
and the Court, that the only salvation of the defence in that suit was
with the jury, so that the delay that Judge Hardy asked was too ex-
pensive. I thought, for my client, or was going to be.

Q. — You have known Judge Hardy well during the last two years ?

A. — Yes; I have known him very well since eighteen hundred and
fifty-nine.

Q. — State as to his habits of sobriety during the terms of the District
Court, in Calaveras and Amador Counties, during the last two years.

A. — As to Amador County, 1 cannot give you any information at all.
I have practised but little in that county, and my business has generally
been to go over there, and try any cases I have had, and return. In re-

gard to Calaveras County, Judge Hardy has been regarded as a pretty
good drinker at all times ; during Court, and at other times.

Q. — Confijie it to during the period when the Court was in session, hut
not to the period when Judge Hardy was actually sitting on the bench.

A. — Well, I have seen him very much under the influence of liquor
during sessions of the Court, when not on the bench. I have seen him
at a place called I^eger's Hotel, at Mokelumne Hill, adjoining the Court
House, ver}^ much un<ler the influence of liquor, and then seen him go
into the Court. Wliether he got over it when he got there, I don't
know. He had to be a good deal under the influence of liquor before he
showed it on the bench.

Q. — How frequently have you seen him in a state of intoxication in
public places during the session of the District Court in Calaveras Coun-
ty ?

A. — The Court generally holds a month. I have seen him, perhaps,
during one term, half a dozen times, a good deal under the influence of
liquor.

Q. — In what places ?

A. — Drinking saloons about the Court House, and going there.

Q. — By night, or how?

A. — By night and by day.

Q. — Was Judge Hai-dy, on those occasions, so much under the influ-
ence of liquor that it was easily ])erceptible ?

A. — Well, if you knew him well, you could perceive it. I thought I
had no diflicult}- in detecting when he was pretty well under the influ-
ence of liquor.

Q. — Have 3'ou ever, and if so, how often, seen Judge Hardy in that
condition on the bench ?

A. — I would not undertake to say ; but think, as I have stated to you,
I have often seen him leave a drinking saloon and go into the Court
room and open his Court ; and when he left the drinking saloon, he was
certainly under the influence of liquor. For instance, (Jourt would ad-
journ, and he would go into Leger's, and commence playing cards for
drinks. Court would stay adjourned two or three hours, and he would
drink once, twice, or oftener.

Q. — In this case of McDermott vs. Higby, what was Judge Hardy's
condition on the trial ?

A. — It was only on the'last day of the trial that I noticed the influ-
ence of liquor upon him, and then it was the latter part of the day,
towards evening.

Q. — Have you. at any other time, seen Judge Hardy in a state of
intoxication on the bench ?

A. — I do not know what you mean by the term " intoxication." I
have seen him on the bench very much under the influence of liquor ;
whether it intoxicated him, I cannot say.

Q. — In what way did you perceive that Judge Hardy was at that time
under the influence of liquor ?

A. — By his action and general demeanor on the bench.

Q. — Do you know anything in regard to the amount of diligence ex-
ercised by the Eespondent in the conduct of the business of the Court
in Calaveras County, during the last two years ?

A. — Well, at times he has been diligent enough, and at times attended
to business well enough. At other times, I think, it has been sadly neg-
lected.

Q. — State what instance of neglect you know of

A. — Last November, we should have had Court there through the
month. Judge Hardy came up on the fifth or sixth of November, from
Sacramento, and adjourned his Court until the twenty-fifth. We had a
week that term, and should have had a month. There was another time;
the precise date I do not recollect. I think it was in some way connected
with Mr. Horace Smith, and a change of venue, that was made from
this city, upon application to the Legislature. Judge Hardy, on that
occasion, adjourned his Court and went away. There was business to
dispose of; but I must say, so far as I was concerned at that time, that
Judge Hardy came to me, and told me, and I said I would readily con-
sent, and I did. What he said to other members of the bar, I do not
know. But he came to me and told me he had some business away, [I
think this matter of Horace Smith, but do not know,] and I consented,
and said that as far as I was concerned, I would not object to his
leaving.

Q. — State what his habit was in regard to diligence, while he was
there holding terms of the Court?

A. — I judge of his diligence in trying cases, from the diligence of a
gentleman who had held Court there before; drawing a comparison
between the two. That is the wa}" I arrive at my idea on the subject.

Q. — Without drawing comparisons, what is 3'our idea ? Y»u have
practised through a great many 3-ears.

A. — Certainly I do not think he is a very diligent man in disposing of
the business of his Court; or, at any rate, I think he might have dis-
posed of a good deal more in the same time that he was holding his
terms.

CROSS EXAMINATION.

Mr. WiUiams. — You stated, in your direct examination, that on this
McDermott vs. Higby trial, you did not interpose any delay, or cause
any at all, until prettj^ well along in the trial, when you thought you
were getting the worst of it ?

Mr. CamphcU. — That was not the answer of the witness. He said he
did, at the commencement of the trial.

Mr. Williams. — Well, what did you do to delay, at first?

A. — Well, I made all the motions I deemed necessary to make for the
purpose of obtaining the necessary delay, and in the examination of wit-
nesses consumed as much time as possible, and took all the evidence
down.

Q. — Did not you file an affidavit in the early part of that trial, after
the commencement of the trial, asking for a postponement?

A. — I do not recollect.

Q. — Did not you do that on the last day of the trial ?

A. — I filed an atfidavit on the last day, stating that it was necessary
that I should have one Bushyhead and one Benson, as witnesses. They
had both testified in the case on the part of the plaintiff", and gone away.
I then made an affidavit that I could not go on in the case unless I had
them.

Q. — They had been examined ?

A. — They had been examined on the part of the plaintiff, and by the
defendant, on cross examination, and had left.

Q. — You claimed you had a I'ight to the attendance of the witnesses
there during the tinal, to examine them when you pleased ?

A. — Not only on that ground, but I claimed the ruling of the Court
had rendered it necessary for me to have those two witnesses there.

They had been in attendance, I wish j^ou to understand, and had been
examined.

Q. — On filing that affidavit, did _you not ask for an attaebnieiit aoainst
those witnesses, and insist tliat yon sliould have the proceetiinn-s sus-
pended until the attachment could be served 't

A. — I believe I first asked for an attachment against tiie witnesses.
Judge Terry, I believe — that is my recollection now — admitted that if
they were present the}^ would so swear : that is, to the facts I had set
forth in my affidavit.

Mr. Williams. — I did not ask you about what Judge Terry did, but j^our
own action. Did you ask for an attachment, and insist on time to have
it served ?

A. — I believe that I did.

Q. — When you say you found the rulings of tlie C.ourt against you.
you then began to " iiaul in," as 3^ou express it. Was it anything very
unusual to find 3'ourself in that position, while practising law, that the
rulings of the Court on legal questions should go against your client'/

A.— Well, no.

Q. — You frequently find yourself in that ])redicament, as a lawyer?

A. — Yes, frequently.

Q. — Is it 3"0ur habit to attribute corruption to a Judge when he begins
to rule against you ?

A.— No.

Q. — Not generally ?

A.— No.

Q. — In what stage of the proceedings was it that you found the cur-
rent of the decisions was against you ?

A. — I did not find them anything else until Saturday morning. Until
the affidavit of Mr. Iligby had been filed, I found the whole body of de-
cisions went against me, solid. The affidavit was filed on the third day
of the trial. The trial of the issue was commenced on Thursday.

Q. — But not much was accomplished on that day?

A. — Yes. The plaintiff closed his case on Thursday night.

Mr. Willidms. — I un^ierstood 3'ou to say that during the first day most
of the da}^ was consumed in objections, and discussing offers and argu-
ments on those questions.

Wifnexs. — On the second day, offers were made by the defendant to
prove this thing and that ; the defendant claiming that such an allega-
tion had been denied by the answer.

Q. — That was on Friday ?

A. — Yes, that was on Friday. The arguments lasted, and the defend-
ant got in only a little evidence on that day.

Q. — You did not begin to be alarmed about decisions against you until
Friday, then ? You got along well, on Thursday ?

A. — I was very doubtful how the case would' go when Judge Hardy
told me the plea in abatement was a '' dead tiling."

Mr. William.^. — I am asking whether, on Thursday, the first day of the
trial, you got along without much difficulty ?

A.— Yes. We got along without much difficulty the first day.

Q. — And it was on the second day that you began to be clissatisfied
with the rulings ?

A.— I was clissatisfied with Judge Hardy's finding the plea in abate-
ment not true. I was dissatisfied with that. On the second day, I be-
came dissatisfied with the rulings in regard to the issues.

Q. — When was the decision in the plea of abatement made ?

A. — Wednesday night ; before we commenced on the issues.

Q. — That was against you, and you did not like that ?

A. — Well, no ; I did not like it much. I was certain I did not like it
after Judge Hardy told me he thought it was good.

Mr. Wiff(am.-<. — You seem anxious to '-ring" that in as an answer to
every question I ask you, when not applicable at all.

ir/^/itss. — Xo, vSir ; I am not anxious to '' ring" it in at all.

3Ir. Williams. — Well, that is the third time you have repeated it, at
any rate. Now, when you began to think and feel that the rulings were
being against you, did you make any suggestion to your client, or
associate Counsel, on that subject ?

A. — Yes ; I think I first mentioned the conversation that I had with
Judge Hardy, to my client, Mr. Higby. He was boarding with me.

Mr. Williams. — You allude now to the same conversation, which you
have now repeated the fourth time.

J//'. Campbell. — I object to the witness being thus interrupted. He
ought to be allowed to give his answer complete. Even if General
Williams knows something is coming out not favorable to his case, he
ought not to distract the attention of the witness from the matter in
hand. General Williams was asking as to the communication of this
matter by the witness to his client. The witness went on to state it,
and, while doing so, General Williams interruj^ted him.

Mr. Williams. — It is not the point at all. I asked the witness when he
first made any communication to his client on the subject, and, instead
of answering upon that question of time, he goes otf to tell about a
conversation with Judge Hardy, which has no application at all to my
interrogatory. He speaks of a conversation with Judge Hardy —

W. truss. — [Interrupting.] Which I would have completed, by telling
you that it was on Friday I mentioned it to Mr. Higby.

Q. — Xow. about this first adjournment of the Court — complained of as
being improper — which you mentioned : how long was that ?

A. — 1 presume you refer to August, eighteen hundred and sixty-one.

Mr. Williams. — I ask you what you refer to ?

A. — I refer now, in answering your question, to August, eighteen hun-
dred and sixtj'-one.

Q. — From what time, to what time, was that adjournment?

A. — The records, I think, say, from Friday, the sixteenth, to Monday,
the nineteenth of August.

Q. — From the end of Friday's business, to Monday morning ?

A. — I presume it was the end of Friday's business; the close of the
day.

Q. — In other words. Judge Hardy adjourned over Saturday and Sun-
day; and tliat is the first adjournment yow have complained of.

A. — I have not complained of that.

Mr. Williams. — But 3*our testimony is asked to sustain the complaint of
it. Do you not know that Judge Hardy came back on Sunday' night,
and was there, ready to open his Court, and did open it, on Monday, at
the usual time ?

A. — I know he opened his Court Monday. I do not know whether he
came back Sunday or not.

Q. — When was the next adjournment of the Court, of which you have
spoken in your direct examination ?

A. — I speak noAv for the term in November, eighteen hundred and
sixty-one. Judge Hardy adjourned his Court from the sixth of Novem-
ber— I think he opened it on the fifth, and it was open on the fifth and

sixth — to, I believe, the twenty-fifth of Xovember; the record will show.
My impression is that it was the twenty-fifth.

Q. — What did you understand was the occasion of tliat adjournment?

A. — I am not clear in my recollection about it. I think Judge Hardy
had some business. I do not know but what it was his own matter;
but that he had an indictment against him. I think he had some busi-
ness of his own to attend to.

Q. — Do you not know that that adjournment was with the unanimous
consent of the bar?

A. — Xo, Sir; I do not know anything of the kind.

Q. — Do you know of anybody who did not assent to it?

A. — I do not know of anybody that did assent to it.

Q. — Do not you know of anyl)ody that did ?

A. — I do not. They might all have assented to it, for that matter.

Q. — You stated that Judge Hardy came up from vSacramento on that
occasion ?

A. — I was in Sacramento at the time. I think he went up with Hum-
phrey Gritfith, and got up about the same day I did. I know it was the
fifth, because I was in Sacramento on the fourth to attend to some
business there.

Mr. Campht'll. — In regard to this J^ovember delay, I think it proper to
state that we shall not insist on that at all, as a charge against the Ke-
spondent ; that we are fully satisfied that was necessary delay to enable
the defendant to attend to the trial already spoken of

Mr. Wiih'dtns. — [To witness.] Do you not know that on that occa-
sion Judge Hardy had just returned from his October Court in Mono
County ?

A. — I do not know it. I cannot tell you when the terms are held in
Mono County. I could not tell you without referring to the statutes.

Q. — Have' you any recollection now of having been informed that
Judge Hardy had just returned to Sacramento from the Mono Court?

A. — I knoV that he went away from Mokelumne Hill. I heard that
he went away to go to Mono to hold Court. I think that was in Sep-
tember that he went away ; I do not know.

Q. — You say you were in Sacramento when he was ?

A. — I saw him in Sacramento in November.

Q. — Do you not know that Judge Hardy had been sick of a fever, and
confined to his bed eight or ten days, in Sacramento, just before you saw
him out there ?

A. — Not of my own knowledge.

Q. — You did not see him in bed ?

A. — No ; I saw him in a carriage. He complained of a sore leg.

Q. — Do you know whether he was actually sick at the time you saw
him in a carriage ?

A. — I think he was unwell.

Q. — When did you first see him, as you say, under the influence of
liquor during the term of his Court ?

A. — Which term do you allude to ?

3Ir. Williams. — Any term of which you have spoken.

Witness. — More o/less since he went on the bench in Calaveras County.
I cannot tell you whether it was a February term, May term, August
term, or November term.

Q. — What are the habits of legal gentlemen there; those of temperate
men, mostly ?
10

A. — I rather think there are one or two temperate men there; but
they are not strictly' so. ,

Q. — Comparatively ?

A. — They drink occasionally.

Q. — You have spoken particularly of the last day of the trial of the
case of McDermott vs. Iligby, which, the record shows, Avas the first of
March, eighteen hundred and sixtj'-two. And. at that time, you did dis-
cover Judge Hardy to be under the influence of liquor upon the bench?

A.— Yes.

Q. — You had no doubt about it, had you ?

A. — I have not the least in the world.

Q. — He appeared so to you, did he not ?

A. — Yes, he appeared so to me.

Q. — Now, were 3'ou very sober on that occasion ?

A. — No. After I had disposed of the case so far as I was concerned.
I was tight.

Q. — Is a man in that condition likeh' to judge and measure the drunk-
enness of another as accurately as a sober man ?

A. — Do you want my opinion on that?

Mr. Willinms. — Yes.

A. — I think drunken men can tell each other pretty Avell, as a rule.

Q. — Do 3'ou not think a drunken man sometimes suspects a sober one
of being drunk ?

A. — He might.

Q. — You have spoken of the time when the charge was given and the
instructions read by Judge Hard}- in this case of McDermott is. Higby.
Please to state about how drunk you were then.

A. — I cannot tell. My impression is that I was not much under the
influence of liquor at that time ; that it was later in the night. I cer-
tainly know I closed the argument on behalf of the defence — no ; Mr.
Higb}^ followed me. I think we closed at six, and then there was an
adjournment taken to seven ; but we did not come back until half past
seven. I do not think it was before ten or eleven o'clock at night that
I was under the influence of liquor so that I knew it m3-self.

Q. — You did not begin to be conscious of it until then ?

A. — I did not begin to be conscious of it tboroughl}- until then. I got
into a difficulty with some gentlemen there. A good deal of whiskey
was drank.

Q. — You have spoken of Judge Hardy's intoxication in giving the
charge to the Jury. If so, was that intoxication bad?

A.— Yes.

Q. — You have stated, in evidence of your sobriety, that you made the
closing argument for the defence. Can you state what kind of an argu-
ment that was ?

A. — I have never seen it reported, and could not say what it was.
At the same time, it might read neai-ly as well as you thought Judge
Hardy's charge did. 3-esterday. Some of my friends told me the}-
thought I made a verj- excellent speech; I do not know whether I did
or not. I was entirely satisfied with it mj-self

Q. — You think, at the time you speak of, when you made up your
mind that Judge Hardy was drunk, 3-ou were not 3-ourself ver3' drank,
at that stage of the game ?

A. — Yes ; I came to the conclusion at that stage that I was not.

Q. — But you did get so far along, later, as to be full well convinced that
you were drunk ?

A:^ — Yes, fully convinced.

Q. — When you saw Judge Hardy go into a place and drink three or
four times in an hour or two, did you on these occasions take anything
yourself :*

A. — Up to that day of the trial of the case of McDermott vs. Higby, I
do not suppose I hacl drank twenty times for a year.

Q. — Were those times tolerably fairly distributed over the year, or did
they come within a few days ?

A. — AVell, I think they all came within a few days — say witliin ten
days ; the last days of the term.

Q. — Did you not think, during these ten days, that Judge Hardy was
drunker than on other occasions you thouglit he was Avhen you had not
drank any tiling yourself?

A. — iSTo, Sir ; I do not think so.

Q. — Did you ever see J udge Hardy on the bench, except on the oc-
casion mentioned, Avhen. in your opinion, his cajyacity for attention to
business Avas at all imjiaired by drink '/

A. — I caimot tell whether his capacity was impaired or not.

Q. — When you thought he was drunk on the bench, taking the same
kind of view that you took on that occasion, Avhat would be your opinion
as to his capacity for doing business ?

A. — Well, my opinion would be that when a man's tongue was as thick
as Judge Hardy's was that night, he might be incapacitated to do busi-
ness— when he was that drunk — so drunk he could not articulate, and
with difficulty gave the instructions. I never saw Judge Hard}- as drunk
on the bench as he was that night.

Q. — Did you ever, on any other occasion, see Judge Hardy when you
thought that he was at all" incapacitated for the discharge of his duties ?

A. — I will not say that I have seen him on the bench in that way, but,
as I have stated in mj^ direct examination, I have seen him come out of
a drinking saloon, ver}' much under the influence of liquor, and go and
open his Court.

Q. — Have you ever seen Judge Hardy on the bench, except on that
occasion, Avhen you thought him in any respect incapacitated for, or his
ability impaired to attend to, the duties of his office ?

A. — I do not know whether he was incapacitated, or his abilities im-
paired, but I have seen him on the bench, under the influence of liquor,
at other times, whether it incapacitated him or not.

Mr. Vu/iiams. — That is not an answer.

]r<V;(r..-.s.— Then I will tell you that I cannot tell whether he was inca-
pacitated or not.

Jlr. Wt7/i(nn^.—T]\e question is : Whether you ever saw Judge Hardy
on the bench at any other time than that one which you have mention-
ed, when you thought that his ability to discharge his duties was at all
impaired by reason of liquor he had drank ?

A.— I cannot say. I cannot say Avhether his abilities were impaired

or not. . T • u

3Ir. Williams. — Then you still do not answer the question. It is the
plainest thing in the World. It is simply : Did you ever think, when
you saAv Judg^e Hardy on the bench, that the drink that Vv'as in him dis-
qualified him'^from performing his duties in any degree ?

A.— T do not know that I ever came to any conclusion at all, or
thought about it. •

Q.— Then the answer is No ; is it not ?

A. — It mio-ht be that, I infer.

Mr. Williams. — You might have said that long ago. You have said, if
I am not mistaken, and will say again, I suppose, that you never saw
Judge Hardy as much under tlie influence of liquor, on the bench, as on
that night, at the close of the proceedings ?

A. — I am certain about that.

Q. — Now let us go back to the question of the plea in abatement. The
question (to make ourselves clear.) raised by the })lea in abatement, was,
whether a former suit was a subject of abatement to this — was it not ?

A.— Yes.

Q. — And the question as to how that should be decided, depended upon
whether there had been an appeal brought ?

A. — [Exhibiting a paper.] Here is the plea. I would rather let the
plea explain itself.

Q. — We will take the papers besides. The argument, principally, was
it not. was upon the question of whether or not there had been such
an appeal of the other case, that it was no longer pending in Judge
Hardy's Court ?

A. — I understood the argument to be this, and I understood the agreed
facts as I will relate them : It was agreed, on the hearing of the plea,
that a suit was then pending in the Supreme Court

Mr. Willifnns. — [Interrupting.] Now allow me to interrupt you, for
the purpose of understanding what you are going to say, a little more
fully, and ask you to read the plea. And then I will ask you about the
argument upon it.

[The witness read the plea in abatement, as follows :]

State of California, ,

' •- 88.

County of Calaveras

In the District Court, 16th Judicial District, in and for the County of
Calaveras :

"William F. McDermott, Plaintiff,

?'S.

William Higby, Defendant.

William Higby, the defendant in the above entitled action, comes and
defends, and for answer to the complaint of the plaintiff, says : That be-
fore the commencement of this action, to wit — on the 29th day of Au-
gust, A. D. 1860, in this same Court, to wit — in the District Court of the
16th Judicial District, in and for the County of Calaveras, and State
aforesaid, the said Wm. F. McDermott impleaded the said William
Higby, and filed his certain complaint against him. in an action of
trespass, upon the very same identical property, or premises, in the
said complaint, in this present suit mentioned, committed at the very
same identical time and place, in the said complaint, in this present
suit mentioned, as by the records and proceedings thereof, remaining
in this Court, more fully appears. And the said defendant further says,
that the parties in this, and the said former suit, are the same, and not
other or different persons ; and that the said former action, so brought
against him, the said Wm. Higby, by the said W. F. McDermott, as
aforesaid, is still depending, on appeal to the Supreme Court of the
State of California. Said appeal having been made, or taken, by the
said McDermott, on or about the fii%t day of August, 1861, and still
remains wholly undetermined.

Q. — "Was there an agreed state of facts presented to the Court, upon
which, in connection with the plea, the argument was based ?

A. — Yes; it was agreed that a notice of appeal had been served upon
the defendant, Mr. Higby, or his Attorney, and tiled in the Clerk's office,
before the commencement of this action. I contended that that, al-
thougli it di(.l not perfect the appeal, was the taking of an appeal, and
that while that suit was pending in the Supreme Court, Judge Hardy
could not determine this ; that he must dismiss this.

Q. — You insisted that the case then was in the Supreme Court, and
not in the District Court ?

A. — I insisted that the appeal was taken, and whether in the Supreme
Court or not, that Judge Ilardy could not determine the rights of the
parties in this last mentioned Court.

Q. — Y'^ou insisted, of course, that if not in the District Court it must be
in the Supreme Court ?

A. — Y"es; it must have been in one or the other of those Courts, I sup-
pose.

Q. — Now was it not agreed on both sides that no undertaking for an
aj)peal had been tiled i*

A. — It was ; and it was true.

Q. — Then it was insisted that the mere giving, tiling, and serving of
the notice of appeal, without the tiling of any appeal bond, or under-
taking on appeal, did not perfect the appeal, and that the cause was still
in the District Court ?

A. — I admitted that that did not perfect the appeal, but it was the
taking of it. Thivt was what I contended for.

Q. — That was the agreed condition of the case ?

A. — That is the way I understood it.

Q. — How (lid Judge Hard}^ decide that plea in abatement?

A. — He found the plea not true.

Q. — On the facts agreed i*

A. — I suppose so. There was no issue tried on the plea. It was
argued on this state of tacts ; the Court passed on the plea.

Q. — There was no demurrer tiled, was there ?

A. — There was no demurrer tiled. There was no demurrer, unless a
verbal one, that I ever heard of.

Q. — They do not put in verbal demurrers in your county, do they ?

A. — I do not think they do.

Q. — And the decision was upon the agreed state of fsicts — that the plea
of pendenc}' of the case in the Supreme Court was not true.

A.— Yes.

Q. — Do you know William Irvine, of San Andreas ?

A. — Very well.

Q._Do you remember that on this memorable day, (Saturday, the first
of March last.) you had a conversation with Mr. Irvine?

A. — Y^es; I had two or three conversations, a half a dozen, with him
on that daj^

Q. — Did you, in one of those conversations, tell him that you had been
deceived by a false story which had been told you by some one ?

A.— Yes.

Q. — Did you not ask Irvine to see Judge Hardy, and tell him that you
were satistied, and desired a reconciliation ?

A. — I did not desire an}- reconciliation at all. I told him that I was
satistied on another proposition, which I would like to explain. Another
thing had come to my ears.

Q. — I am asking you of the fact.

A. — Yes; I had the conversation. I told him I was satisfied.

Q. — See if I understand you rightly. The question was. Did not you
ask Irvine to tell Judge Hardy that you were now satisfied, and desired
a reconciliation 'i I understood you to answer " yes," subject to a quali-
fication.

A. — I did not ask him. I said, " You can tell Judge Hardy." Irvine
came to me, and stated that a person had sent him to me. I will explain
it by and by.

Mr. Williams. — Explain it right here, if you like.

Witiu'ss. — Irvine said Judge Hardy had sent him to me — [pausing.]

Mr. Williams. — Give the whole of it.

Witness. — I will give the substance of it. I won't pretend to give the
phraseology, but the substance, as near as I can recollect. It was along*
about midday when Irvine came to me, and said that he was soi-ry —

Mr. Williams. — [Interrupting.] Who was sorrj' ?

A. — Irvine. He said he was sorry there was anj' difficulty between
Judge Hardy and myself; that we had been friends, and that I had been
misinformed in regard to a supper or dinner given by the plaintiff in this
suit [of McDermott vs. Higby] to Judge Terry, at which Judge Hardy
and Mr. Irvine were present. Some one had told me a conversation had
taken place there between Judge Terry. Judge Hardy, and McDermott,
Mr. Irvine being present at the time. Mr. Irvine told me that he could
assure me that no conversation had taken place at that time in regard to
the suit. Mr. Irvine said he could assure me so. 1 think I then stated
to Mr. Irvine something I had heard, which was this — or tantamount to
it : that Judge Hardy said to Judge Terry, " Higby. or else Dudley,
asked a question that you wanted asked, and did not yourself dare to
ask, and 3'ou got just what j'ou wanted by the answer." Mr. Irvine as-
sured nie that nothing of that kind had occurred between Judge Hardy
and Judge Terry ; that he was with Judge Terry, and would have known
if it had. •• Then," said I, "I have been misinformed about it, and on that
point I am satisfied."

Q. — Some of jour hard feeling against Judge Hardy arose out of the
information which you had received about something he had been saying
of you, did it not ?

A. — Oh, no, Sir I I have not heard anything hai*d that he has said
about me, yet. I have been a friend of Judge Hardy; was until the ter-
mination of the McDermott vs. Higby suit, when I was satisfied some-
thing was wrong. I have not been an enemy of Judge Hardy, and am
not now. That is as near as I can now recollect of the conversation with
Irvine. I had other conversations with him on that day. I told him I
had no hard feelings.

Q. — Y'^ou had no hard feelings occasioned by the report which you
heard of that conversation ?

A. — None at all. I considered I owed a duty to my client which I
ought to perform.

Q. — What then was there to remove, to make 3'ou satisfied, and have a
reconciliation ?

A. — I did not desire a reconciliation at all, only upon that point.

Q. — What was there in this conversation that required any satisfac-
tion ?

A. — An affidavit had been filed, which Higby had sworn to. As his
Attorney, I di-ew the affidavit, charging Judge Hardy with prejudice,
and stating that the defendant could not have a fair trial before the

Court. Judge Hardy thought it strange ; and strange that I, as his
Attonic}', would consent to it. He thought I, as his Attorney, ought not
to have consented to it. That was, I think, a portion of the (jouversa-
tion that I liad with Mr. Irvine.

Mr. Williams. — My question is : Whether there was any hard feeling
on your part arising out of this conversation at the dinner?

A. — I said I was satisfied.

Q. — Satisfied as to what ?

A. — Tliat there had heen no such conversation, as reported, between
Judge Hardy and Judge Terry.

Q. — But you had no liard feeling about it before that?

A. — No, Sir. I had no particular animosity against Judge Hardy on
account of it. I was Attorney in the case, and desired to win my suit.

Q. — Did not you tell Mr. Irvine, in one of these conversations on that
day, that the whole thing had been fabricated against Judge Hardy, for
the purpose of making you and him enemies ?

A. — I have no recollection of it, at all.

Q. — You don't remember anything of the sort ?

A. — I may have said something of the kind in connection with this
conversation, but still I have no recollection of it. I will state here,
that if Mr. Irvine says I did say it, I should be inclined to believe that I
did. But I have no recollection of it.

Q. — You say you have had no animosity against Judge Hardy previous
to that particular occasion — the occasion of that trial ?

A. — No, Sir; I have been on friendly terms with Judge Hardy.

Q. — But since that time you have not?

A. — ^I met him at Jackson once — the following week, I think — and
spoke to him. Since then, I think, I have not spoken to him, or he to
me. I believe I have not seen him but once, and that was here in the
city.

Q. — I asked you about your feeling of animosity against Judge Hardy
since the time of that trial. State whether, since that trial, there has
been any feeling, on your part, of animosity against Judge Hardy ?

A. — I do not know that there has.

Q. — Have you taken an active part in this prosecution and the prepa-
ration of it ?

A. — Not very active ; I have participated in it.

Q. — Have you procured witnesses to appear before the Committee of
the House, or here ?

A. — I pointed witnesses out to 'Mr. Patten, the Sergeant-at-Arms of
the House Committee, when he came up there.

Q. — Did you send for persons to come to your house, for the purpose
of ascertaining whether they were proper witnesses to be subpoenaed,
or whether you could make witnesses of them ?

A. No, Sir. I went to see persons to make some affidavits to send

down here before the House Committee.

Q. — Then you did not send for any witnesses to come to your house ?

A. — I have no recollection of sending for any witness.

Q. — Nor persons to be made witnesses ?

A. — Nor persons to be made witnesses, except to make affidavits.

Q. — Did you send for, or have an interview with, George Sherman, for
that purpose ?

A. — I had an interview with Ceorge Sherman. I think his name is
George.

Q. — Did you send for him ?

A. — I think I saw him in the village, and spoke to him.

Q. — Did he come to your house ?

A. — J^e was at my house a number of times, but, I think, only once
spoke about it. He was at my office a number of times.

Q. — Did he come to your house this once for the specific purpose of
talking over this matter of Judge Hardy ?

A. — I cannot say whether he came for that purpose or not. I judge
he came for that purpose, because he talked on that subject more than any
other. I could see him every day in the village.

Q. — Did you make an appointment for him to come to your house that
day ?

A. — No appointment to come to my house, but my office.

Q. — Was he one of the persons you procured who made an affidavit to
send down ?

A. — I think he was one. I would not be positive.

Q. — How man}- affidavits did you obtain to send down ?

A. — I think five or six. I do not know but more.

Q. — How man}' persons did you apply to to get that number of affida-
vits ?

A. — I presume I applied for more. I knew all these men, and the affi-
davits they would make when applied to. I do remember that I did ap-
ply to others.

Q. — Who drew the affidavits?

A. — 1 drew some of them.

Q. — Who paid the fees for swearing to the affidavits?

A. — I do not know, /never paid a cent.

Q. — And you do not know who did ?

A. — No; I do not think anythjng was paid.

Q. — You got the affidavits, and sent them down?

A. — I got five or six, and sent them down.

Q. — And came down here and attended yourself?

A. — When I was brought here by jn-ocess, I did.

Q. — You would not have come without process, would you?

A. — Yes, I would, if I had been sent for.

Q. — After all this, I understand you to say, that, in your opinion, you
have not taken any active part in this matter?

A. — Not taken what I call an active part.

Q. — What would you consider an active part ?

A. — I would not consider the course I have taken in it an active part.

Q. — What would you consider taking an active part 'i

A. — I think to talk to Counsel, and to suggest to Counsel, would be.

Q. — Have you not talked with Counsel about the proceedings in this
case, and the examination of witnesses ?

A. — I have, with ]\Ir. Higb}^, in regard to the examination of the wit-
nesses ; but that came up in general conversation. But I never advised
with him. or he with me.

Q. — You mention only Mr. Higby ?

A. — I ma}- have mentioned this matter with Mr. Edgerton or Mr
Campbell.

Q. — I ask you what the fact is ?

A. — I did not advise with them, or consult with them ; I was general
in regard to it.

Q. — I suppose you know whether you have or not ?

A. — Yes; I know whether I have conversed or consulted, rather,

with these gentlemen or not. I have not consulted or advised with them
in rei^ard to the matter.

Q.— Onh' talked ?

A. — I have talked with them in regard to it.

Q. — In 3'our conversations with them jou have not exhibited auj in-
terest as against Judge Hardy, have vou ?

A. — I presume I have; with them, and others. I have nothing to dis-
guise in this matter, myself; I am verv anxious to get rid o"f Judse
Hardy. ^ ^ ^

Mr. Williams. — I am talking about your conversations with the Coun-
sel.

Wi/ncss. — I have told you that I have not had any except as related to
you; and then I did not advise or consult.

Q. — You saj- you have not had conversation with the Counsel ?

A. — I say I have conversed with them casually- about the case, when
I would meet Mr. Campbell on the street, or at the hotel, but not to ad-
vise or consult with them at all. ♦

Q. — You onlv talked about the case?

A.— That's aU.

Q. — How much ?

A. — Only to talk with them about how long before they would get
through with the case.

Q.— Is that all?

A. — I think that is all. Only common, casual conversation. Xot
about the examination of witnesses, but about who was going to exam-
ine the witnesses.

Q. — Have you felt or exhibited an interest in this j^rosecution, as
against Judge Hardy ? .

A. — I have felt it ; I do not know whether I have exhibited it or not.

Q. — And you still feel it. do you not ?

A. — I just told you I did.

Q. — You desire to see Judge Hardy convicted ?

A. — I desire to get rid of him as District Judge in my District.

Mr. Willinm.'<. — That is not an answer; unless you mean by that, that
you want him convicted to get him out of the District.

Wi(iie.'>!<. — If guilty. I want him convicted.

Q. — But whether guilty or not, you want to get rid of him ?

A. — I do not want to see him convicted, if innocent.

Q. — Is not your feeling against Judge Hardy such that you would like
to see him convicted, whether he is guilty or innocent ?

A. — I would not like to see him convicted, if he was innocent ?

Q. — You are sure of that ?

A. — Oh. I know that.

Q. — You think you can judge of the state of yoiir feelings accurately ?

A. — I think I am able to do so.

Q. — I asked you if you had paid, or agreed to pay, the fees for swear-
ing to those affidavits you referred to. You said you had not. I ought
to have asked this question in the connection — Have you paid an}' other
money — have 3'ou paid any money to promote this prosecution ?

A. — Xo more than my own expenses ; that is all.

Q. — You mean your travelling expenes, and personal expenses while
here ?

A— Yes.

Q. — You have not paid, or agreed to pay, the expen.ses of any witness
that has come here ?
11

A.— Xo. Sir.

Q. — Did you pay, or promise to pay, or give any assurances that you
■\voTild pay. the expenses of Mr. J. E. Robinson, if he would come here as
a witness 'i

A. — I do not know as I ever had any conversation with J. E. Eobinson
about liis coming here as a witness. I do not think that I did.

Q. — l)id vou send him a message that his exj^enses should be paid ?

A.— Xo. '

Q. — You never sent any such assurance to him ?

A. — ]^ro, Sir. I Avill state, in explanation, that the question has often
been asked me by witnesses, how they would get paid for coming down
here, and I have stated that the State would make some arrangement
about paying them, I supposed ; and that if they got their certilicates
for jjer diem and mileage, they could sell them in this city.

Q. — You never made any assurances to any of them that they should
be paid ?

A. — ]^o, Sir.

Q. — You never sent any message to that effect to any of them ?

A. — Xo, Sir.

RE-DIRECT EXAMINATION.

Mr. Camjjbell. — Do j^ou know when the charge to the jury, in the
trial of the McDermott vs. Higby case, last March, was written out ?

A. — Xo ; I do not know when it was written.

Q. — How long a time elapsed between the tiling of the notice of appeal
in the tirst case of McDermott vs. Higby and the commencement of the
second suit, in which was the plea in abatement ?

A. — I have, at the hotel, a memorandum from my docket, by which I
can tell the precise time.

Q. — State about the length of time ?

Mr. Winiams. — [To Mr. Campbell.] Are the dates here ?

3fr. Vamphdl. — We say the papers show that the papers were filed
July thirty-first, and August nineteenth, respectively.

Ml'. WUIiams. — [To witness.] That was after the expiration of the
time for filing the bond, was it not '{

A. — Five days, is the reading of the statute, I believe.

Mr. CamphelL — Did you state that, in this agreed statement, it was
admitted that the notice of appeal had been tiled in the Clerk's office
and served on the opposite part}^ ?

A. — Yes ; I contended that the appeal was new, and not perfected,
without an undertaking. That was my position in that case, as I have
stated betbre.

Q. — Had there been any ruling of Judge Hard}' in any similar case,
before that ?

A. — I thought so. I thought there was in Eobinson et al. vs. Leger
et al., where there was a laotion for a new trial, and Mr. George came
in and moved to strike the case from the calendar, because a notice of
appeal iiad been served on him and tiled in the Clerk's office. The
Court stated that, if that was so, they had no jurisdiction of it, and
would dismiss the case and strike it from the calendar. But on exam-
ination, it was found that no notice had been filed in the Clerk's office.

Mr. WiUiams. — Was that case of Eobinson vs. Leger ever argued and
decided ?

A. — No ; for it was ascertained that no notice of appeal had been filed
or served.

Q. — You complained of this decision upon the plea in ahatement, then,
partly because it differed from the decision, which you have referred to,
which Judge Hardy had previously made ?

A. — Judge Hardy, iu the first place, intimated from the bench, that
although it might be true that the notice of ajjpeal had been filed with
the Clerk, and served on the opposite party, still the ajjpeal was not per-
fected, and he thought he had no right to dismiss it.

Q. — AVhen he intimated that decision, you thought that conflicted with
what you supposed he had previously decided iu that other case ?

A. — jSTo ; he had not decided in my case yet. My case was coming up,
and, therefore, I thought that that would conflict with my plea in abate-
ment.; and, going down the stairs, I said : " You are wrong about that
matter, Judge, for I have examined it." Then it came up again, for I
told Mr. Greorge about it. But the Court did not announce any decision
from tlie bench, because the notice could not be found.

Q. — It never was decided then ?

A. — Not in that case. I do not know whether it has ever been decided
or not.

Q. — That is, of your own knowledge ?

A. — It has not been decided, to my knowledge.

Q. — Did not you swear before the Committee of the House, that the
notice was decided ?

A. — I think I did state there that the matter had been decided or
passed on; I will not be certain which. I was mistaken, if I did say so;
because tiie case went off precisely the way I have stated to you now.

Q. — Had not you as much knowledge on the subject then as now ?

A. — Yes; I had the same knowledge then, but an examination of the
records afterwards satisfied me that I was mistaken. I was not mis-
taken in regard to what Judge Hardy told me, though.

Mr. Canqihell. — How long was it, after the decision of the plea in abate-
ment, that you complained to Judge Hardy, and said to him that he
ruled differently in that case from what he ruled in the previous case ?

A. — I think it was the same night. It might have been the next day.

Q. — What reply did he make to that ?

A. — I have already stated the rej^ly.

Q. — Eepeat it, if you please.

A. — His reply was, that he had repeatedly said to me that he wanted
time, and supposed that I understood it. Then, afterwards, in sj)eaking
of another denial that was made, was the time that he made the remark
that the plea in abatement was a " dead thing, anyhow."

Mr. WlUlamn. — In the meantime, he had told you that he thought on
the whole that he was wrong in deciding that case of the plea in abate-
ment, had he not ?

A. — He told me the plea in abatement was good. That is what he
told me. The other matter of which he spoke, was the notice of appeal
in the case of Kobinson vs. Leger, when he said he was wrong, that, on
reflection, he came to the conclusion that he was wrong.

Q. — You stated you thought the denial in the answer was good in this
case of McDermott vs. Higby. What kind of denial was in the answer
that you thought was good ?

A. — The denial iu the answer of the trespass. The complaint was not
verified, and I thought the allegation in the complaint was sufficiently
denied in the answer.

Q. — Was it a general denial ?

A. — My understanding was that it was a general denial. I have ex-

amined it since, and, as a lawyer, I still should hold, as 1 held on the ar-
o-ument. that it was a specific denial ; that the allegation was denied in
the answer specifically.
Eecess for half an hour.

A. W. GENUNG RECALLED.

Mr. Campbell. — Did you notice anything peculiar in the appearance or
conduct of Judge Hardy on the bench, on the last day of the trial of the
case of McDermott vs. Higby ?

A. — As to Avhat ?

Mr. Camhell. — As to sobriety.

A. — I did. I thought so.

Q. — State what you observed at that time.

A. — I thought, Avhen the Judge read the instructions to the jury, that
he appeared under the influence of liquor. He appeared as I have seen
him on the street and other places when under the influence of liquor.

Q. — In what respect ?

A. — His voice. I do not know that I could perceive it in anything but
his voice and his manner of reading. The tone was not as clear as it
usuall}' is when he reads or speaks.

Q. — In what did the diff'erence consist between his ordinary tone and
that used upon this occasion ?

A. — A want of clearness of tone. Perhaps he articulated slower; I
should say a little slower. He read the instructions slower than he was
in the habit of doing at other times.

Q. — How was it in regard to the distinctness with which he read
them y

A. — He could be understood, but did not read in his usual distinct
tone. That is what I refer to.

Q. — Did he seem to be laboring under any difficulty at all ?

A. — Why. that to which I referred. His tongue seemed not so lively,
but thick.

Q. — Did 3'ou see him call ]Mr. Brockway up to the desk at any time on
that day ?

Witness. — I suppose the time to which you refer was when the instruc-
tions were to be passed to me. I stepped up to the desk and got them,
generally ; or if, as was often the case, the Attorneys wei"e sitting between
my desk and the Judge, they passed them to me. On this occasion they
were not passed to me. but I took them directly from the Judge. The
Judge took them in his fingers — they were on strips — and held them out
so [describing.] Mr. Brockway made a movement as if he would take
them from the Judge to pass them to me. but the Judge made a motion,
I thought, for me to take them myself I thought his object was to at-
tach them in the order in which he then held them ; so I passed Mr.
Brochway, took them from the Judge as he held them, and attached
them as I received them from him.

Q. — Did you see anything of any movements which took place between
Mr. Brockway and the Judge prior to your receiving them ?

A. — I did not. I would not be likely to, being employed in something
else.

Q. — State what the habits of Judge Hardy have been as to sobriety
during the terms of Court in Calaveras County.

A. — I have, a number of times, seen Judge Hardy when I thought him

under the influence of liquor, during the terms of the Court; in the Court
House and Clerk's office, and about public places, and on the street.

Q. — In what way did he show himself under the influence of liquor, on
those occasions ?

A. — Well, I should say it was Judge Hardj^'s habit, when under the
influence of liquor, to come up and walk by the side of you, take you by
the ai-m, and walk along together with you, or, perhaps, sometimes put
his arm around a person, and not walk straight.

Q. — State whether or not this was an occasional occurrence merely ?

A. — Occasional, as I have observed it.

Q. — About how frequently have you noticed him in that condition,
during the terms of his Court in Calaveras County, during the last two
years ?

A. — It would be impossible for me to bring it to a number, if I was
compelled to speak positively.

Q. — Well, state as nearly as you can estimate.

A. — Well, not more than half a dozen ; perhaps more. There is an-
other feature by which I would notice Judge Hardy being under the
influence of liquor. I have stated that I would notice it in his manner
of walking along and addressing persons with whom he is familiar. I
would notice it, also, in his talk — well, foolish talk, sometimes ; that is,
idle remarks, jokes, and so on. «

Q. — Have 3'ou ever, on any other occasion than the one you have
indicated, seen Judge Hardy intoxicated on the bench ?

A. — I cannot call to mind any other occasion.

CROSS EXAMINATION.

Mr. Williams. — Did you state that you had been Acting Clerk of the
Court ever since Judge Hardy assumed the duties of District Judge in
that District ?

A. — No, Sir ; since October, eighteen hundred and fifty-nine.

Q. — During that time, you have been pretty constantly in Court, I
suppose, while the Court was in session ?

A. — Yes, every term. Every day, say, more or less. There might
have been a short time when I was absent, at the first term — the JSTovem-
ber term — when I went there, and had not yet systematized the work.
The offices of Auditor and Kecorder were connected with that of County
Clerk, and I had a good deal to do in the Auditor's office during that
term, and another gentleman — William Knox — was in the Court.

Q. — But, during all this time since October, eighteen hundred and
fifty-nine, have you ever seen anything unbecoming in Judge Hardy's
conduct, while on the bench as a Judge, with the exception you have
mentioned ?

A. — No, Sir ; I cannot recollect, or think of any occasion except that
to which I have referred.

Q. — What is his general demeanor towards the members of the bar —
all of them ?

Witnpss. — Do you mean while on the bench ?

Mr. Williams. — Yes ; whether it is courteous, and like that of a Judge ?

A. — I never discovered anything to the contrary. I should say it was
courteous. I have seen Judge Hardy annoyed, and have seen him occa-
sionally express impatience, while on the bench.

Q. — i)id you ever see a Judge, presiding over a District Court, term

after term, when he did not seem sometimes annoyed by what was oc-
curring in his Court ?

A. — I have seen other Judges give such expression, at times, on their
countenances, and. perhaps, by an incautious remark.

Q. — Have you observed the conduct of some members of the bar, who
have been witnesses here, towards Judge Hardy wiiile on the bench ?
Mr. Campbell. — I do not see what that has to do with the case.
Mr. Williams. — I propose to prove by this witness, if that is the fact,
that some members of the bar of the Sixteenth Judicial District, includ-
ing— and, perhaps, particularly — those who were Avitnesses here, have
been in the systematic habit of annoying and endeavoring to intimidate
Judge Hardy by their conduct at the bar. And I propose to follow that
up, if it be proven, and show that out of that fact and that conduct of
theii's has grown this dissatisfaction which has produced this prosecu-
tion.

The Presiding Officer. — "What does that go to show ?
Mr. Williams. — AVe want to show the animus of these prosecutors.
The Presiding Otficer ruled out the proposed evidence.
Mr. Williams. — [To witness.] During the time you have mentioned,
while you were presiding over tlie Clerk's desk, what do you say about
the regularity and promptness with which the terms of the Court have
•been held by Judge Hardy ?

A. — I could not answer that better than by referring to the records.
Mr. Williams. — You are familiar with those records, and it is not neces-
sary for you to go the book. You can state from memory.

Witness. — I can give an answer from a schedule I made a few moments
ago. [Exhibits schedule.]

Mr. Campbell. — This is not cross examination.

Mr. Williams. — In going into the conduct of the Court, I suppose it is
is proper enough.
Objection waived.

Witnt'ss. — [Eeferring to schedule.] The Court has met, and cases have
been called on the first day of the different terms, except, I think, two.
There was a special term the twentieth of May, eighteen hundred and
sixty-one.

Q. — Was not that special term held under a special Act of the Legisla-
ture, providing for the change of time, to accommodate the County of
llouo, which had become a new member of the District ?
A. — I do not know for what reason it was held.
Q. — But that was the fact — that the special term was held?
A. — Yes. [Examining the Court records.] And the record shows that
the term was held in conformity with the j)rovisions of an Act of the
Legislature.

Mr. Fixhij. — I understand you to say, that cases were called and set
the first day of every term except that ?

A. — Except that and another, Avhich I will refer to. [Referring to
schedule.] Xovember. eighteen hundred and sixty-one ; the Court should
have met the fourth. The Judge was absent the fourth and the fifth.

Mr. Williams. — You need not read about that term. The ojiposite Coun-
sel state that they claim nothing on account of that absence of the Judge.
Are those the only two exceptions ?

A. — The only ones that appear of record.

Q. — What tei-ms, if any, did Judge Hardy fail to finish his entire cal-
endar ?

A. — I do not know exactly what you mean by " finishing the entire

calendar." The cases are called the first day, and set ; some, say, for
every — or almost every — day through the term. Man}^ are pnt over
right on the start, on the first day of calling; and have so been every
term. Those are cases that are not to be litigated then, but continued.
Many, set for trial, are not tried when they come up, but are continued
for the term; or, sometimes, set for other days, and then, wiu-n brought
up. are again continued, and for the term.

•Mr. Williams. — I consider that as the performance of his entire duty to
those cases. Bearing that in mind, go on and state whether Judge
Hardy finished the business of the terra.

A. — [deferring to schedule.] In th.e August term, eighteen hundred
and sixty-one. I find that on Friday, the sixteenth, the Court adjourned
until the Mondaj' following. I find tAvo cases set for trial on the seven-
teenth. Saturday. Those cases were subsequently brought up and con-
tinued. I heard Attorneys complain on Saturday. But I do not know
whether that comes Avithin the question asked or not.

Mr. Willuims. — If it is necessary to complete your answer, you can
state it.

^Ylfne>iR. — I think it is. I heard Attorneys complain on Saturday be-
cause tlie Court was not thei'e — because no Court was held — stating that
the}" had witnesses in attendance.

Q. — Do you now speak of those two cases to which yon have pre-
viously referred 't

A.— Yes. Mr. Brockway complained. He was Attorney m one of the
cases; and Mr. W. L. Dudley. I remember, was Attorne}^ in the other.
I am not so clear as to what Dudley said. Brockway spoke of his hav-
ing witnesses, and wanting to try his case. Jurors wore in attendance at
that time. I do not, of my own knowledge, know that witnesses were
in attendance. Brockway complained, and said that he had witnesses
in attendance. There was another time when the Court was adjourned
towards the close of the term.

Q.— When Avas that ?

A.— [Examining schedule.] I find, that on Thursday, the twenty-
ninth of August," eighteen hundred and sixty-one — that same term —
'' Court adjourned until to-moi"row."

Q. — Before anything was done ?

A. — No, Sir ; at the conclusion of the day's proceedings. The proceed-
ings closed at night. I think the case of Irvine v.s. Dennis had been tried.
The jury had rendered a verdict late in the day, or in the evening, and
the Court adjourned until the next day. No Court was held the next
day [Frida}',] nor on Saturday.

Q. — Was" Saturday the last day of the term?

A. — Yes. The jury — the regular panel — had been discharged on Thurs-
day, the twenty-second, some time previous. Then there were no trials
after that untif this case of Irvine vs. Dennis came on ; and a special jury
was summoned in that case. They were discharged when the trial ter-
minated. Hence, no jurors were in attendance on Friday or Saturday.
I testified erroneously before the Committee on that matter, as did Mr.
Brockway, yesterdaj'. Speaking from the record, I now correct it.

Q. — Can vou find any other instances ?

A.— I think of nothing further on this general question. I see nothing
further. [Turning over'the pages of the schedule.]

Q. — With these'exceptions, is there any other occasion, as shown l)y
the record, when Judge Hardy has failed to hold his Court during the
terms required by law, from the time of your first acquaintance with
this Court ?

A. — I do not think of ain' ; nor do I find an}^, on reference to the
record. I stated the cases were called on the first day of the term. In
jSTovember, eighteen hundred and sixty, I remember one or two days
were taken up in naturalizing persons. And, speaking from memory
now, I should say, that on Wednesday, the third day — it might have
been Tuesda}^ — the cases were set.

Q. — Was not one of those days the election day ?

A. — I rather think it was ; and that that was the reason why so many
were naturalized on that day.

Mr. Fixley. — How many terms are held in Calaveras County in a
year ?

A. — Four.

Mr. Yiilljams. — On those two occasions — those two adjournments in
the August term, eighteen hundred and sixty-one — can you state whether
it was with the consent of the bar, and at the desire of many of them ?

A. — Not positively. I remember that once Mr. Al. Dudley rose in the
place where he usually stands, and, turning to the Court, spoke of an ap-
pointment he had, and wanted some case, or cases, in which he was en-
gaged, put off; I cannot say whether for the term, or temporarily. I
cannot say ou which time that was. There was no order made, or it
would ajipear on the minutes. There was some discussion among the
Attorneys ; and my remembrance is, that at that time JJudley gained
what he wanted. That is, the opposite parties agreed; either waived
objections, or agreed that the cases should be postponed.

Mr. Edfjcrton. — Was that in August, eighteen hundred and sixty-one ?

A. — Tliat was in August, eighteen hundred and sixty-one. I cannot
say which time that was; whether on Friday, the sixteenth of August,
or Thursday, the twenty-ninth of August. I think it could not have
been on Thursday, the twenty-ninth, because I find no cases set. Mr.
Brockway, on yesterday, spoke of there being cases set for Friday and
Satitrday, the thirtieth, or thirty-first of iVugust; I find none.

Mr. Wi/fiams. — Now, on that occasion, when A. P. Dudle}" desired that
there should be an adjournment, was there a general understanding
among the members of the bar that the Court should be adjourned for
that time, after his CDiidley's) request?

A. — I cannot say that there was. My impression is, that Mr. Erock-
way was not there. Perhaps that arises from the fact that he made an
objection the following day, because there was no Court.

Q. — Let me refresh your memor}-. Dudley wanted to go and fill some
political appointment, did he not ?

A.— Yes.

Q. — And he was a Breckinridge man ?

A. — So reputed among us.

Q. — Was it then agreed among the members of the bar interested in
cases there, that his request should be granted, and that the Douglas
Democrats among the law^-ers should have the same opportunity ?

A. — I cannot say that it was. I cannot sa}' positively as to that.

Q. — Has there been a time when 3-ou thought you remembered that
that was so ?

A. — I think Judge Hardy once spoke to me about that; and at that
time I had these two cases of adjournment united in my mind, thinking
there was only one; and I took the circumstances of the two and put
them in the last one. Mr. Higby called my attention to this, from the fact
that I would, perhaps, be called upon to testify in reference to-the matter
of adjournment, and cited me to the last adjournment. Not thinking o

the otlier. I placed the circumstances I recollected of the two to the
credit of that last adjournment. Perhaps it was from that impression
that there was onl}^ one such adjournment, that I thouglit so.

Mr. Williams. — I am speaking of only one adjournment ; that where
Dudley wanted to go away.

Witiiest;. — Yes ; but I do not swear positively when that was. Perhaps
if I should talk with Dudley, or some other member of the bar, I might
recollect.

Q. — Without reference to the time, do you recollect there was such a
proposition and agreement between the members of the bar ?

A. — I was so deeply disgusted with the movement of the party, that I
paid ver}^ little attention to their proceedings, or what they did.

Q. — You did not like them much, anywa}^ ?

A. — No, Sir, a good way from it. I paid no attention to their move-
ments, and did not go to their meetings. I would not countenance them
b}' my presence.

Mr. Williams. — I am asking your impression as to these circum-
stances.

A. — They have slipped from my memory.

Q. — But there was a time when you thought that you remembered it,
and stated so to Judge Hardy ? I now allude to the time when you
were on your way down here to testify before the House Committee.

A. — Yes, and then I put it at the other time.

Q. — Has your opinion and recollection been changed by Mr. Higby's
talk to you ?

A. — No, Sir. That was before I left the Hill — before I saw Judge
Hardy. Mr. Higby called my attention to the record. I looked at it,
and it was that date.

TESTIMONY OP ALLAN P. DUDLEY. •

•

Allan P. Dudley, being called, and sworn, testified as follows :

Mr. Camphdl. — Where do you reside, and what is your occupation ?

A. — I reside at Mokelumne Hill, Cahiveras County. I am a lawyer.

Q. — Are you acquainted with the Respondent ?

A. — I am.

Q. — How long have you known him ?

A. — I cannot state distinctly how long, but I can state that I have
known him six or eight years ; I think nearly ten.

Q. — Have you been in the habit of practising before him in his Court,
ever since its organization ?

A. — I have.

Q. — Do you know anj-thing in relation to a suit in which Gerrish Fo8-»
ter was ])laintiff, and Fritz and others were defendants, brought in the
District Court of the Sixteenth Judicial District for the County of Cala-
veras ?

A. — My office was Counsel for the plaintifl:' in that case.

Q. — Jiist state what you know in relation to that case.

A. — It was an action brought upon notes negotiated, and accounts as-
signed ; a general declaration of money had and received, labor done and
performed, perhaps money laid out and expended. [I have not referred
to the papers since that date.] I recovered a judgment in the case. A
motion was made for a new trial ; a statement and counter statement
12

were filed. The statement was settled by the Judge, and. after being
settled, the question was passed upon by him. He granted a new trial.

Q. — State whether you had an}- conversation Avith Judge Hardy while
that motion for a new trial was pending, and if so. what was it ?

A. — I did. On the trial of the case, the right to offer 23romissory notes
to prove a count for money had and received, was discussed. 1 intro-
duced several Massachusetts authorities to show, that under a general
count for money had and received. I might offer in evidence promissory
notes. The opposite Counsel objected. There was another point which
arose in the case — the right of proving by the original payee of the notes,
the indorsement and negotiation of them ; which points Judge Hardy
decided in my favor, and I obtained a judgment. After the statement
for a new trial had been filed and settled, but before there was a final de-
cision from the bench on the question. Judge Hardy took me aside in the
street, opposite the Court House, in front of a cigar shop, kept bj" a man
by the name of Weil, and tokl me that I need not file any brief in that
case ; that my argument and my authorities adduced at the time the
question was argued on the trial, were sufficient ; and that he was satis-
fied; that he should grant no new trial ; that he should let the judgment
stand. I was satisfied ; I filed no brief; there is none on file. When the
case was called for hearing of the law question, I made no argument;
and in a very short time after that — not more than two or three days, at
the outside, from the time he told me he should not grant a new trial —
Judge Hardy announced from the bench a decision granting a ncAV trial.
I was offended at his decision, and went out of the Court House denounc-
ing the Court, undoubtedly, in very bitter terms ; stating publicly Avhat
Judge Hardy had said to me in the street; and Mr. Brockway, Counsel
upon the other side, and Mr. Adams, niy partner, laughed at me.

Mr. Williams. — I would inquire of the opposite Counsel whether the]
propose to go into evidence of what was said or done by Counsel oul
side of the cause ?

Mr. Campbell. — Xot at all.

Mr. Williams. — J^hen the witness need not state any smart things out
side of the case.

Witness. — I am not stating smart things.

Mr. (Jamphdl. — State whether or not the statement of Judge Hardy to
you. that you need not file an}- brief, had any influence on your conduct
in the case t

A. — Yes, Sir. I did not file any brief; and the consequence and result
of it was, that my clients settled the suit without ever trying it again.

Q. — State why you did not file any brief?

A. — Because Judge Hardy told me he was going to decide it in my
favor — and nothing else.

Q. — Did Judge Hardy say anything to you about the Counsel on the
opposite side ?

A. — Yes. He said he had told Mr. Brockway that he was going to
decide it in Ms favor, but that he was only fooling him ; that he was
going to decide it in my favor.

Q. — Do you know anything of a case in which the People of the State
of California, on the relation of the Attornej-General, were plaintiffs,
and one Hill Squii-es was defendant ?

A. — I know the case very well.

Q. — State what you know in relation to that case.

A. — Mr. I). L. Mulfbrd Avas Sheriff' of Calaveras County. In the winter
of eighteen hundred and fifty-nine, the Legislature passed an enactment

dividing the office ; giving the collection of taxes and licenses to Town-
ship Collectors. A man by the name of Hill Squires was appointed
under that enactment of the Legislature the Collector for our township,
[number six,] and claimed the right to collect under that appointment.
The question arose between Sheritf Mulfbrd and Mr. Squires, as to who
should collect. My partner and Mr. Brockway acted as Counsel for
Mr. Mulford in an agreed case. Mr. Higbj^, District Attorney, I think
acted for Squires. I was never consulted; I never acted in it; and,
indeed, my office never received a picayune, through my partner or any-
body else, for the services. It was a volunteer matter to settle the
question. The case was submitted to Judge Hardy for a decision ; and,
after its submission, Judge Hardy came to me, and asked me to take a
walk with him. I walked with him. If I should tell you where we
walked, it would be no matter of interest, but we walked out of the
Town of Mokelumne Hill ; and Judge Hardy took his decision, which he
had drawn up in the case, from his pocket, and showed it to me.

Mr. WlUidnm. — You mean his opinion i

A. — His decision ; his judgment. He told me he had decided the case
in favor of my office; my partner, Mr. Adams, being, as I have stated,
in the case. He said he did not know how he could get over one deci-
sion, which he referred to. There were two cited, (The People vx. War-
ner, 2 Denio, page 272 ; and 2 Cranch U. S. Sup. Ct. Eep., the page I
do not recollect,) in favor of Mulford.

Mr. Wi/liams. — What is the other case ; that in 2 Cranch ?

A. — I do not recollect. The principle was, that where an office was
established by the Constitution and law, no new office could be created
by which a portion of the duties of that office are detached, during the
term for which the person holding it was elected; which principle is
stated in those two decisions. Judge Hardy said he did not know how
he could get over them ; that he was afraid the decision would be an
unpopular one, because this Township Collector Law was a very popular
law. In that opinion which he expressed, I concurred.

Mr. WiHiams. — You concurred in which opinion? That in regard to
the popular question ?

A. — -Yes; in regard to its being an unpopular decision. I told Judge
Hardy it would undoubtedly be unpopular. (Judge Hardy and mj'self
were of the same political party, and always have been. I vote the reg-
ular ticket, and work for my political friends.) Judge Hardy wanted to
know, if I recollect his precise language, how in the devil he should get
over these to decisions, and decide the other way. I told him if he
would allow me I would write out something that would fix tl^at very
quick. I did go and write out something in avoidance ; and gave it to
Judge Hard}'. And in a morning or two after that, he filed a decision in
favor of Squires and against Mulford; adopting quite the same precise
language, as far as that part referred to was concerned, and trimming
the rest of the decision to suit that which I had written out. May I sta,te,
in confirmation of this, that the counsel on the opposite side. [The side
of Mulford,] charged me with it ? •

Mr. Williams. — Yes ; if that will ease your conscience at all.
Wif)tr!<s. — My conscience is not at all annoyed, Sir. Mr. Adams, my
partner, charged me with it, and I admitted it. Mr. Brockway charged
me with it, and I admitted it. Men came to me and told me that Judge
Hardy had said he had decided the case in favor of Mulford, before that
time ; and wanted to know what the cause of it was. I can name those
men.

Mr. Williams. — I would rather have those men swear to it themselves.

Mr. Campbell. — I want the names.

Witness. — I can name one man ; Douglass of Mokelumne Hill, who was
then acting as Deputy. There was another man by the name of Pal-
mer.

Q. — Where did they reside ?

A. — Both of them resided at Mokelumne Hill ; and both of them were
Under Sheriffs, or officers.

Q. — Do they reside at Mokelumne Hill now ?

A.— No.

Q. — Where do they reside ?

A. — Douglass resides at Mokelumne Hill. Palmer went to Washoe ;
has acquired a fortune there and, gone to the States, I believe. I do not
know where he is now.

Q. — Was there any election pending about that time ?

A.— Yes.

Q. — What was the time ?

A. — This decision was made after Judge Hardy's appointment. Judge
Hardy was appointed District Judge of the District including Calaveras
County, on the twenty-eighth day of January, eighteen hundred and
fifty-nine ; took the oath of office ofi the twenty-ninth day of January,
eighteen hundred and fifty-nine ; held his first Court on the seventh day
of February following, in Calaveras County. The election was to be the
next fall after his appointment.

Q. — About what time was this decision in favor of Squires made ?

A. — I cannot state the precise time. I have not seen the papers in
the case from that time to this. I have been to the Clerk's office to in-
quire for them, but they are not to be found. None of the papers in
that case are to be found in the Clerk's office.

Mr. Edgcrton. — About what time was the decision made with reference
to the election?

A. — It was made in the spring or summer of eighteen hundred and
fifty-nine, and previous to the election.

Mr. (Jamphell.—^lniQ whether there was any political controversy at
that time in relation to officers.

A. — There was. There was a District Judge to be elected, and Judge
Hardy was aspiring to that position. I was his political friend.

Q. — Was there any excitement in regard to the subject of the contro-
versy in this case of The People vs. Squires ?

A. — Yes. It was a point, a very strong point. The office of Town-
ship Collector was exceedingly popular with the people. The Act of the
Legislature creating it, met with universal approval in my neighborhood
and through my county, and is still approved of

Q. — Do you know anything of a case in which E. Mercier et al. were
plaintiffs and W. C. Denny et al. were defendants, in the District Court
of the Sixteenth Judicial District, for the County of Calaveras, in which
there was a motion for a change of venue ?

• A. — Yes, I know that case." It is only recently that I was employed
in that case. It had been once tried.

Q. — Do you know anything about an application before Judge Hardy
for a change of venue in that case ?

A. — I do. There was a motion made for a change of venue, on the fif-
teenth day of August last, during the August term of the Court, as
appears by the record. The election came on in September. After that
motion had been submitted, at the August term, I inquired of Judge

Hardy if he was going to grant a change of venue in the case, as I was
opposed to a change of venue, and was upon the other side. Judge
Hardy told me that he had considered the subject, and was not going to
grant a change of venue ; but that he was not going to announce his
decision at that term of the Court — that it would not do; that it would
oftend the French, and they were, if not disturbed, going to vote the
Breckinridge ticlcet. And, therefoi-e, he should not announce the decision
at that term. And, of course, in that I concurred.

Q. — You and Judge Hardy were both members of that party — the
Breckinridge party — were you not?

A. — Yes. Judge Hardy did not announx^e a decision until the Novem-
ber term; and then, on the very last day of the term, (the thirtieth day
of November,) after all other business, almost, had been disposed of, he
announced a decision refusing a change of venue. That appears by the
record.

Q. — Were the Merciers French peo2)le ?

A. — Yes ; they Avere French.

Q. — Was there a large French population at Mokelumne Hill?

A. — There was a large French population; seemingly, intimately con-
nected.

3Ir. JE(7f/erton. — Was there a large French vote there ?

A. — Allowing me to judge, as an old resident of Calaveras County, 1
should estimate the French vote of that county at some five hundred.

Mr. Camphell. — Have you ever heard Judge Hardy say an^^thing in re-
lation to his judicial action where his friends were concerned ?

A. — Yes, I have. I cannot name the times, but Judge Hardy has fre-
quently said to me —

Mr. Williams. — [Interrupting.] Now, we will ask you when you state
conversations, to state one at a time.

Witness. — Well, I will state one. Judge Hardy has said to me, that
whenever he was allowed to exercise his discretion as a Judge, he should
exercise it in favor of his friends.

i/r. Camphell. — Did Judge Hard}^ ever, in any case, and if so, what
case, wish you to be employed as Counsel, and come to you and speak to
that effect ?

A. — Yes. In the case of Eobinson vs. Leger, a suit on an injunction
bond.

Q. — State all that took place in reference to that.

A. — In that case there had been one trial. Mr. Brockway was Counsel
for the plaintiff', who sought to recover upon an injunction bond. Mr.
George, from Jackson, was Counsel for the defendant. There had been
a recovery, and Judge Hardy had granted a new trial. It came on the
second time for trial; was set, and was to be tried in the afternoon.
Judge Hardy came to me in the French hotel, and asked me if I would
take a fee in a case. I told him I would if I had not been previously
employed. He assured me I had not, that I was not of record. 1 told
him I would be back in the course of half an hour, or an hour. I went
out, and was back in a short time — the space of an hour, perhaps — when
Mr. Leger (who is here in attendance) asked me —

3Ir. Williams. — [Interrupting.] I object to the witness relating any-
thing Leger has said in private. I would rather that should come from
some other source.

Witness. — Well, I went into the house and Mr. Leger gave me a fee in
the case. I went into Court and appeared in the case. Mr. Brockway,
upon my appearance, filed a statement of evidence, (which statement I

have in my pocket,) and asked for a continuance. I put the statement
in my pocket at the time. I said Mr. Brockway filed it. He presented
it ; it was never filed. He presented it to me, and I took it; and against
the will, as I believed, at the time, of Mr. George. I consented to a
continuance of the case. I did not require the statement to be sworn
to. The case was continued, and Mr. George, in open Oourt, withdrew
from it.

I have here in my pocket the statement of Mr. Brockway, which I
have referred to, if you want it.

3Ir. Camjibell. — State whether anything was said in open Court, in the
presence of the Respondent, in opposition to your apj)earance in the
case?

A. — Yes. Mr. Brockway said my office was employed on the other
side; and, before he presented his statement, objected to my appearing
for the defendant. I had previously had a conversation with my partner
about the matter ; and had no knowledge of his being in it. My partner
then arose and stated that, for the time being, we would consider the
firm of Dudley k Adams dissolved. The Court said I had a right to
appear under the circumstances ; and my name was entered of record,
and I did ajipear.

Q. — Was your name of record in that case ?

A. — Yes ; for the defence.

Q. — But not for the plaintiff?

A. — I do not know but that the name of Dudley & Adams appears ;
but I had no knowledge that my office was em2:)loyed. I do not know
whether it appears, or not. It may appear on the last docket or calen-
dar. I Avas not aware of it.

Q. — What have you to say in regard to seeing Judge Hardy on the
bench, holding Court as a Judge, and being under the influence of
liquor ?

A. — In regard to that matter, I have seen Judge Hardy drunk, out of
Court, a good many times. I say drunk — badly drunk ; but I cannot
really state that I have ever seen Judge Hardy, on the bench, so drunk
that he did not know what he was about. I have seen him on the bench
when I thought he had been drinking altogether too much liquor for an
Attorney to do justice to his client, and altogether too much for a Judge.
But I cannot say that it incapacitated him from the discharge of his
duties. I have seen Judge Hardy drink a good deal, and go into Court,
and sit on the bench, with a great deal of dignity — even under the influ-
ence of all that liquor.

Q. — State whether you have seen Judge Hardy, during the terms of
the Court there, intoxicated while not actually sitting on the bench ? and,
if so, how frequently that occurred ?

A. — Well, I have seen Judge Hardy drunk a good many times. I saw
him led home drunk not a great while ago.

Mr. Camphell. — I mean in public places.

Witnesa. — Well, I saw him led home drunk, through the streets, by
two men — one on each side of him — with his legs away behind, and his
head protruding forward, as they led him, like a turtle from his shell.
The men who led him were Chai'les Dudley and another ; and they led
him home to his house.

Q.^State as to the period when the Court was in session there.

A. — On the last night of the trial of the McDermott vs. Higby case, I
did not see men go home with him ; but I saw men start to lead him
home. We parted at the saloon called Brown's Saloon; and I saw

95 \

Charles D. Spiers and another gentleman start off with him towards
home. He was very drunk that night.

Q. — State whether or not, daring the terms of the Court, Judge Hardy
was frequentl}^ intoxicated, in the streets and other public places ?

A. — As far as my actual knowledge extends, Judge Hardy drank du-
ring the term of Court every day, and in my presence more or less. I
drank with him, and he drank with me ; and, during the intermission of
Court, sat down to play cards for liquor and drank.

Mr. (Jamphdl. — What I want to get at, is. Judge Hardy's condition, in
consequence of that drinking, in the bar rooms and on the public streets
of tliat town during the terms of the Court.

Wiinrss. — Well, he acted differently from what he did when he was not
drinking liquor.

Q. — Differently in Avhat respects ?

A. — When he had been drinking, he was remarkably affectionate. If
he had not been drinking too much, he would take one Attorney or an-
other, and take him aside ; which created some jealous}^ in our county,
among the members of the bar. There was too much hugging of some
particular one ; hugging one more than another. And then one Attor-
ney, thinking the Ju<lge was hugging another Attorney too much, would
ask the J udge to take a drink, so that he could get hugged too ; and that
is the truth of it.

Q. — State whether that was an occasional, or frequent occurrence ?

A. — It has been too frequent for the interest of my clients ?

Q. — State Judge Hardy's general habit in regard to drinking liquor,
during the last two years.

A. — Judge Hardy has drank a great deal. He drank a great deal of
liquor. He was very frequently disguised by the use of liquor; and I
have seen him, under the influence of drink, act unlike what he does
when sober.

Q. — State whether you have ever heard Judge Hardy say anything in
relation to the present rebellion, as connecting therewith the naturali-
zation of foreigners ?

A.— Yes.

Q. — State what you have heard hini say on that subject.

A. — I have heard Judge Hardy say* at different times, at Mokelumne
Hill, since this rebellion" was in existence, that he would not naturalize
any foreigner who applied to him for naturalization, Avho entertained
the same sentiments in regard to this rebellion that he (Hardyj enter-
tained. I heard him say that at different times.

Q. — Did he give any reason for that ?

A. — No ; not to my recollection.

Q. — Did you ever hear Judge Hardy make use of any expressions in
regard to the present rebellion ? and if so, when and where ?

A. — Yes. I heard him sa,y in Mr. Leger's hotel, the last night of the
trial of this McDermott r.^. Higby case, taking a glass of liquor from the
bar : '• My Court is now adjourned, and I am now off the bench. My
mother was born in the South, and I am a rebel, by Clod; and I don't
care a damn who knows it." I heard him repeat, almost or quite the
same thing, after we had travelled some fifteen rods, in Brown's saloon.

Mr. Eilgerton. — When was that ?

A. — The last day of the last term — the February term — which closed
on Saturday night, March first, eighteen hundred and sixty-two. This
was in the presence of a large number of people. When Judge Hardy

first said it at the French hotel, there were present Tod Eobinson, Judge
Terry, and a large number of people of his own political party.

Q. — What else did you hear Judge Hardy say ?

A. — I said he stated the same thing below, at Brown's saloon, on his
way home. He stopped in there and took another drink, and I was with
him. He asked me to go down there with him, and I went.

Q. — Was there any one else present there besides yourself?

A. — Yes ; several individuals.

Q. — Do you know who they were ?

A. — Mr. Brown was present, and several others. I think some of the
jury who had been trying the case of McDermott vs. Higby (who are
now here) were present.

Q. — Both of those places — Brown's and Leger's — are in Mokelumne
Hill, Calaveras County?

A.— Yes.

Q. — And all those circumstances you have detailed, took place in the
Countv of Calaveras at the times you have stated ?

A.— Yes.

Q. — Were you present at the August term of the Court in eighteen
hundred and sixty-one ?

A. — Yes. I was present at everj- term of our Court.

Q. — Do you know anything about Judge Hardy leaving the Court at
any time ; and if so, when, and for what specific purpose ?

A. — Well, Judge Hardy and I made, to my certain recollection, three
political speeches in that canvass together, in favor of the McConnell
ticket. I mean the last canvass. I do not recollect of ni}- making but
about that number myself. [Pausing.] I made more. I went with
Judge Hardy to Murphy's.

Q. — When was that ?

A. — During the term of the Court. I went with Judge Hardy to Mur-
phy's. He and I went with a pair of horses; and we each made a
speech.

Q. — How long did you remain at Murphy's ?

A. — We remained that night. We vrent away to Yallecita, and met
Judge Eobinson there, who was also canvassing the county, who was
confined to his bed. We went from there to Angel's ; and that same
evening — I think it was the same evening — following the evening when
we spoke at Murphj^'s, we spoke there. During that same term of the
Court, Judge Tod Eobinson, Judge Hard3\ Mr. Ceoi-ge, and myself, went
to Copperopolis, starting from Mokelumne Hill. We, all four of us, made
speeches there. Judge Shattuck came to Mokelumne Hill. I do not re-
collect whether Judge Hardy spoke there or not. Judge Shattuck spoke,
and I spoke; and the next morning. Judge Shattuck and Judge Hardy
came round to my residence with a pair of horses and carriage, and
asked me to go with them to San Andreas, to sj^eak that evening, which
I excused myself from doing, and did not go. Consequently, I did not
hear Judge Hardy speak there that evening, and only know, b}' report,
about that. There were various appointments — one at Upper Calaveritas,
which Judge Hardy left to fulfil.

Mr. Campbell. — I am merely asking in regard to during the August
term of the Court.

Witness. — That was during the month of August — those appointments.

Q. — Can you tell, by reference to the records, the days ?

A. — I cannot tell days of speaking b}^ such reference. Some of them
may have been in the month of August, and yet after the term for hold-

ing Court had expired. I have no means at present, without going to
our notices which we printed in the San Joaquin Eepublican at that date,
of telling whether all this speaking was during the term of the Court,
or some of it subsequent, and in September, immediately preceding the
election da}-. Some of these days, I know, were during the term of the
Court. But let me add, right here, that I do not know what the busi-
ness in Court for those da^-s was, or Avhether there was any business or
not. The record and the recollection of the Clerk will show.

Mr. Campbell. — [To Mr. Williams.] Take the witness.

Mr. Williams. — We will pass Mr. Dudley.

TESTIMONY OF II. J. TILDF.N.

H. J. Tilden, being called and sworn, testified as follows :

Mr. Camphcll. — AVhere do you reside, and what is your business ?

A. — I reside at Mokelumne Hill, Calaveras County. I am acting in
different kinds of business; am mining; am Justice of the Peace, and
Administrator.

Q. — Do you knoAv Judge Hardy ?

A.— I do.

Q. — How long have you known him ?

A. — I think it is about three years.

Q. — Have you been at Mokelumne Hill during the terms of the District
Court of that District?

A. — I have.

Q. — Judge Hardy has presided ; has he ?

A. — He has.

Q. — State what you know in relation to his habits of sobriety during
the terms of the Court.

A. — AYell, I have seen Judge Hardy frequently under the influence of
liquor — I took it to be so — during the terms of the Court, out of the
Court. I have seen him drink frequenfh^ with Counsel.

Q. — To what extent do you speak of having seen him under the influ-
ence of liquor, and how was it manifested by him ?

A. — I do not know that I ever saAV Judge Hardy during the term of
the Court, when he was down drunk in the street. I have seen him
when I thought that he was under the influence of liquor, several times;
different times.

Q. — About how frequently ?

A. — I cannot state how frequenth^, as I am not practising in the Court,
and but seldom in there. I occasionally go in to hear then\ try the cases.

Q. — Can you recollect any particular instance in which you observed
Judge Hardy to be under the influence of liquor in the Court room ?

A. — At the time which has been mentioned — the last day of the last
term — I was in the Court room during the latter part of the evening. I
thought while the Judge was charging the jury, that he was so much
intoxicated that he could not articulate properly.

Q. — State in what condition you have seen Judge Hardy at other
times, on or off the bench, and how he manifested his intoxication ?

A. — I never, during the term of the Court, that I know of, saw Judge
Hard}^ so badly affected, either on or off the bench, as at that time. One
13

time before. I thought he was under the influence of liquor while on the
bench.

Q. — "When was that ?

A. — I think that was a year ago this past winter. It was not during
the term of the Court, but during some other transactions at chambers,
I think.

Q. — How did he manifest it that time ?

A. — In his articulation.

Q. — In any other way ?

A. — I did not notice it in any other way.

Q. — At the times 3'ou have seen him on the streets and in public places
affected by liquor, how did he manifest it '(

A. — Once or twice I have seen him when he Avas whj^t I call readj^to be
down drunk. Once I saw him stand against a post, and I thought he was
very drunk. But I never in my life have seen him, but once or twice, so
iar drunk as that. I do not know as I have but that once.

Q. — But the other times when you saw him affected by liquor, when off
the bench, how did he manifest it ?

A. — By, I thought, being pretty familiar and sociable with the Coun-
sel and other men who were around. I seldom mixed with them myself.

TESTIMONY OF CHARLES WOOD.

Charles Wood, being called and sworn, testified as follows :

Mr. CampheU. — State your residence and occupation.

A. — I reside at Mokelumne Hill. My business is that of a miner.

Q. — Do you know Judge Hardy ?

A.— I do.

Q. — How long have you known him ?

A. — I have known him about two years.

Q. — Were you a juror at the February term of eighteen hundred and
sixty-two, of the District Court of Calaveras County ?

A. — I was.

Q. — Were you one of the jury empanelled in the case of McDermott
vs. Higby ?

A. — I was.

Q. — State whether 3'ou noticed anything, at the close of that trial,
that was peculiar, in the manner or conduct of Judge Hardy?

A. — Well, I thought he was drunk — had been drinking a good deal ;
that is, on Saturday, the last day of the trial.

Q. — Did you notice that while Judge Hardy was on the bench ?

A.— I did.

Q. — State in what way he manifested that condition?

A. — Well, when he was charging the jur}'^, it appeared in his speech.

Q. — In what way did his speech show that he was intoxicated ?

A. — Well, he did not seem to talk very plain. It was different from
what I ever heard him use before.

Q. — Just describe his mode of speech as well as you can.

A. — I do not know as I could, exactly. His tongite appeared to be
very tbick ; he made a good many blunders and stoppages. I have sat
on the jury many times, and he generall}^ charges the jury very correctly
and straight-forwardly ; but this time it bothered him a good deal.

Q. — Do you know anything in relation to Judge Hardy's habits of
drinking during the terms of the Court ?

A. — Well, I have seen Judge Hardy drink a good deal at times, out-
side.

Q. — So as to produce any effect on him ? and if so, what ?

A. — I think I have seen Judge Hardy very drunk once or twice, just
before the term of Court, and at the term of Court while the Court was
in session. I saw him before the Court this last winter, and at the time
the Court Avas in session, in that condition. This was outside the Court.

Q. — In what places ?

A. — At Mr. Leger's, I saw him once.

Q. — Anywhere else ?

A. — Well, I have seen Judge Hardy so in different places, but there is
where I saw him when he was the worst I ever saw him.

Q. — But you have seen him at other places ?

A.— Yes.

Q. — Intoxicated at other places ?

A. — Yes ; I think I have.

Q. — How did he manifest that intoxication ?

A. — Well, he was most generally playing cards with his friends for
drinks, and I never took much notice; I just went in and out.

Q. — How did Judge Hardy manifest it to induce an impression of his
intoxication on your mind ?

A. — Well, in his talk and actions. I have seen Judge Hardy so that
he would stagger a good deal.

Q. — About how frequently have you seen Judge Hardy intoxicated
during the last two years, during the terms of his Court ?

A. — I have seen him so several times ; I could not say how many times.

Q. — Did you see him at Brown's saloon at any time, in connection
with any 2)olitical conversation ?

A. — I saw Judge Hardy there, I think it was the night before the last
term ; I think either Friday night or Saturday night. I think he ad-
journed the Court to go to supper. He came into Brown's that evening,
and I think Mr. A. P. Dudlej^ was with him. There were one or two
more with him, but I do not recollect who they were. They came up
to the counter, and Judge Hard}' said : " I am a rebel ; and I don't care
a damn who knows it." I think he said his mother was born in the
South, and that he was a rebel, and didn't care a damn who knew it ;
and then asked a few up to drink.

Mr. Fixley. — Was this given as a toast ?

A. — No, Sir. He came right in to the saloon, and went up to the bar,
with his friends.

CROSS EXAMINATION.

Mr. Williams. — One of the worst of these drunken shines was before
the Court met, 3'ou say ?

A. — Yes, I saw him once before. I think it was on Sunday.

Q. — How long before the Court was it ?

A. — I should Ihink it was a couple of weeks, or some such matter. I
do not know ; I cannot tell exactly.

Q. — Cannot you fix it more accurately than that?

A. — Well, it might have been less time than a couple of weeks; I can-
not say positively.

Mr. Williams. — I want you to reflect a little, and fix the time as nearly
as you possibly can.

100

Witness. — [After a pause.] Well, it might have been ten clays and it
might have been two weeks before. I cannot say positively.

Q. — Do you say, from ten days to two weeks ?

A. — I should think so. Somewhere about that time. I was passing
by when I saw the Judge in the French hotel.

TESTIMONY OF CHARLES P. DUDLEY.

Charles P. Dudle}-. being called and sworn, testified as follows :

Mr. Campbell. — Where do 3'ou reside, and what is your business ?

A. — I reside at Mokelumne Hill. I am Clerk in the Recorder's office.

Q. — Do vou know Judge Hardy ?

A.— I do.

Q. — How long have you known him?

A. — I have known him some six or seven years.

Q. — State whether you know anything in reference to his habits of
temperance during the terms of the District Court in Calaveras County :

A. — I have often seen him drunk during the terms of the Court.

Q. — Within the last two years ?

A.— Yes.

Q. — In what places ?

A. — I have seen Judge Hardy drunk at various places. I have seen
him drunk in the Conrt House ; I have seen him drunk in the street ; I
have seen him drunk at Leger's ; I have seen him drunk at Atwood's —
the •• Union ;" 1 have seen him drunk at Shear's ; and I have seen him
drunk at the " United States."

Q. — Was that when there were other persons about those places ?

A. — Yes.

Q. — In Avhat way did Judge Hardy manifest his intoxication ?

A. — Well, he has various ways of manifesting it.

Mr. Edgerton. — What is the '' United States ?" — a hotel, or saloon ?

A. — It is a hotel and drinking house.

Mr. Camjihell. — Those places you have mentioned are all at Mokelumne
Hill?

A. — Yes ; when Judge Hardy gets pretty drunk, he is very loving, gets
his arm around your neck, and gets you close to him. And when in bar
rooms and drinking houses he is very talkative, and a little above his
usual tone of voice ; most always playing cards for whiskey. He has other
and various ways by which any man who is acquainted with him can
know he is drunk.

Q. — Did vou see Judge Hardy on the last day of the last term of the
Court ?

A.— I did.

Q. — State what his condition was, then.

A. — He was drunk.

Q.— Where ?

A. — On the bench, and in the bar rooms.

Q — In what way did he manifest his intoxication, then?

A. — Well, outside, in his loving and talkative way. On the bench, his
tongue was very thick. He could scarcely read ; and it was a general
remark among outsiders, as he went into the Court room, " How drunk
Hardy is !"

101

Q. — At what times in the course of that day did 3^011 notice Judge
Hardy'.s intoxication ?

A. — I noticed at three different times in the course of the day that he
was drunk.

Q. — When were those times?

A. — Twice on tlie hench, during that day.

Q. — On what occasions, or portions of the trial, were those two
times ?

A. — "Well, Judge Hardy was drunk soon afcor.the affidavit filed by Mr.
Higby, stating that he could not get a fair trial ; it might have" been
two hours after. The Judge came into the Clerk'ci office. (The Clerk's
office and Recorder's office are together.) He sat down and did a little
writing on a piece of paper. I came into the office. I had been out for
something, and remarked as I came in, " Well, Judge, they are prettyN
heavy on you this morning in Court." He had written pa7*t of a sheet
of paper over, and had, I think, the statutes, or some law book before
him. He closed the book, toi-e up his paper, and made some ionai-k — I
do not know what it was — and went out. It might have been a good
deal excited he was. I think he remarked, " That if that had come from
Al. Dudle}-^, he would have laughed at it, but coming from William Dud-
ley, it troubled him," and left the office. I saw him in an hour or an
hour and a half after that — it might have been a greater or a less length
of time — and he was quite drunk. I saw him drunk at another time, at
the Hill.

Q. — Did you see Judge Hardy, at any time during that day or even-
ing, leave Leger's to go to the Court House ?

A.— I did.

Q. — When was that ?

A. — Once in the evening, and once in the middle of the day.

Q. — State what his condition was.

A. — In the evening he was vevy drunk.

Q. — In what way did he show it then ?

A. — Well, in his stooping posture; he was a little inclined to stagger.
When Judge Hard^^ is drunk, he stands about a third bent up.

Q. — Do you recollect any other time when you have seen him in Court
under the influence of liquor?

A. — He released me once, at the Hill, on a habeas corpus. He was
drunk, then. That is one time that I noticed very particularly.

Q. — When was that ?

A. — The February term of the grand jury, in eighteen hundred and
sixty, I think. I think it was in eighteen hundred and sixty, and the
February term.

Q. — Where was this place where Judge Haixly was then intoxicated ?

A. — In the Court House.

Q. — In what part of the Court House ?

A. — The Court room.

Q. — The District Court room ?

A. — We have but one Court room, where we hold all of our Courts.

Q. — Was this a term of the Court of Sessions ?

A. — Yes. I do not think it was a regular term.

Q. — Was Judge Hardy sitting in chambers, doing chamber business at
that time ?

A. — I think it was chamber business. I do not know enough about it
to say. I was in jail for refusing to serve upon a grand jurj^ without

102

pay; placed in jail by Judge W. W. Porter; and Judge Hardy released
me on a habeas corpus, for about an hour, three several times.

Q. — Did you ever hear Judge Hardy make use of any expressions on
the subject of the present rebellion, during the last term of the Court?

A.— 1 did.

Q._AVhere?

A. — At Mr. Leger's.

Q. — At what time was that ?

A. — It was the last day of the Court — something past midnight on
Saturday night.

Q. — What was it that/ you heard?

A. — Well, Judge Hardy said: "My Court is adjourned now. My
mother was born in the South," (I think he named one of the Carolinas ;
I think he said-North Carolina.) " My mother was born in North Caro-
lina, and 1 am a rebel, by God, and don't care who knows it." I have
heard hiic express other sentiments of disloyalty.

CROSS EXAMINATION.

Mr. Williams. — Are those two gentlemen of your name, who have been
gworn here, your brothers ?

A.— Yes.

Q. — How long did you say you have known Judge Hardy?

A. — From six to eight years.

Q. — You knew him before he was Judge, did jou not ?

A. — Yes.

Q. — Where did you know him ?

A. — He was occasionally in Calaveras County. It may not be eight
years that I have known him. I should think it was from six to eight.

Q. — You knew him when he was practising at the bar there ?

A.— Yes.

TESTIMONY OF J. S. SMITH.

J, S. Smith, being called and sworn, testified as follows :

Mr. Camphell. — Where is your residence ?

A. — Mokelumne Hill.

Q. — Do you know Judge Hardy ?

A.— I do.

Q. — How long have you known him ?

A. — Four years.

Q. — Were you a juror at the last February term of the District Court,
in Calaveras County ?

A.— Yes.

Q. — Will you state whether you noticed anything peculiar, on the last
day of the term, in the condition of Judge Hardy ?

A.— I did.

Q. — State what it was.

A. — I noticed that he was intoxicated.

Q._ Where ?

A. — In the Court room.

Q. — You were a juror in the case of McDermott vs. Higby, were you
not?

103

A.— Yes.

Q. — You say you saw Judge Hardy intoxicated in the CVjurt room.
Was he intoxicated while sitting on the bench ?

A.— Yes.

Q. — At what stage of the proceedings ?

A. — Well, it was on the coming in of the jury.

Q. — State in what respect Judge Hardy exhibited that intoxication.

A. — In reading the verdict.

Q. — How did he read the verdict ?

A. — Well, I noticed his being intoxicated by the thickness of his
tongue.

Q. — In any other way '!

A. — In no other way. '

Q. — State whether he read the verdict with facility and ease, or oth-
erwise ?

A. — Well, I thought it bothered him very miicli.

Q. — Did you notice what his manner and condition were at the time
that he read the instructions and charge to the jnry '{

A. — No ; I cannot say.

Q. — Have you been in the habit of seeing Judge Hardy frequently du-
ring the terms of the Court, at Mokelumne Hill, during the last two
years '(

A. — No ; I have not.

Q. — Then you are not acquainted with his general habits during those
two years ?

A. — No ; I am not.

Q. — Did you see him at either Brown's or Leger's on that night — the
last night of the last term — at any time ?

A. — I cannot say that I did.

Q. — You do not remember seeing Judge Hardy at either of those
places ? or hearing him make use of any peculiar expressions ?

A. — I recollect seeing him in at Mr. Brown's; but I do not recollect
whether it was that night.

Q. — Did 3-0U notice any expressions that Judge Hardy made use of
when there ?

A. — No, Sir : I did not.

TESTIMONY OF WILLIAM NELLIS.

William Nellis, being called and sworn, testified as follows :

3Ir. Campbell. — Where is your residence, and what is your occupation ?

A. — I reside at Mokelumne Hill. I am a miner.

Q. — Do you know Judge Hardy ?

A.— Yes.

Q. — How long have j^ou known him ?

A. — Well, I think it is four or five years. It maybe longer; I can-
not recollect.

Q. — Were you a juror at the last term of the District Court in Cala-
veras County, over* which Judge Hardy presided ?

A.— Yes.

Q. — You were empanelled in the case of McDermott vs. Higby, were
you not ?

A. — Yes.

104

Q. — State whether on that day, and if so, at what times on that day,
you noticed anything peculiar in the ajjpearance, manner, or speech of
Judge Hard}'?

A. — Well, I think when we came in with the verdict, that Judge Hardy
had been drinking a little. I could not sa}^ that he was di-uuk; but he
had been drinking a little.

Q. — In what way did that appear ?

A. — By his reading the verdict, and telling the foreman to write the
verdict in a different place from what he had written it. I thought the
words came out differenth^ from what I had heard. Judge Hardy utter
before.

Q. — Do you recollect what Judge Hardj-'s condition was at the time
he charged the jur}'?

A. — No, Sir; I do not.

Q. — Did vou see Judge Hardy at Leger's saloon, that night ?

A.— No. '

Q. — Or at any other saloon there ?

A.— No.

CROSS EXAMINATION.

Mr. Wifliaws. — You said in j^our answer to a question of the other side,
that you did not discover anj'thing peculiar in the reading of the charge
and the instructions to the jury.

Witness. — I said that I did, I believe.

3fr. Williams. — I understood 3'ou to say, when the jury came in.

Witnpss. — Not until then.

Q. — But you did not discover anything before they went out ?

A.— No, Sir.

Q. — Where did you sit, with reference to the bench ?

A. — I sat in the iwvj box.

Q. — At the end of the jury box, next the bench?

A. — About in the centre, I think.

Q. — How far from the bench ?

A. — About ten or fifteen feet, I should think.

Q. — When the Counsel on both sides had got through arguing the case,
did you see Judge Hardy write the charge which was given to the jury ?
Did the juiy wait, after the arguments of the Counsel, for Judge Hardy
to write his charge ?

A. — I do not remember about that. 1 believe that Judge Hardy was
writing, but I do not remember at what time.

Q. — Do you remember that there was a delay ?

A. — No ; I do not remember as there was a delay.

Q. — You cannot sa}-, then, whether the writing that was done was
during the argument of Counsel, or after the argument was finished ?

A. — I think Judge Hardj' was writing during the argument of Counsel.

Q. — Tax your recollection, and see if you can remember that there
was a pause in the proceedings after the Counsel had got done speaking,
while Judge Hardy was writing ?

A. — I do not remember of there being a pause.

Q. — You remember, there was a charge read to you by Judge Hardy
before you went out ?

A.— Yes.

Q. — And you did not discover, in the reading of that charge before
you went out, anything peculiar ?

A. — No ; I did not. •

105

Q. — The onl37- peculiai'ity you discovered was when you came in ; and
you thought that, in the reading of your verdict, Judge Hardy's tongue
was a little thick ?

A. — Yes.

Q. — You thought Judge Hardy had been drinking a little, but was not
ver}' drunk ?

A.— That is it, Sir.

3Ir. ('(imphell. — How long was the jnry out?

A. — About three hours, I believe. I do not think it was quite as long
as that ; two and a half or three hours. ^

TESTIMONY OF HENRY PHILLIPS.

Henry Phillips, being called and sworn, testified as follows :

Mr. Camjibell. — Where do you reside, and what is your occupation ?

A. — I have been residing around the neighborhood of Mokelumue Hill
for the last five or six years.

Q. — Do you know the liesjiondent. Judge Hardy?

A.— Yes.

Q.: — How long have you known him ?

A. — Ever since he has been in office, pretty much.

Q. — Were you present on the last day of the last term of the District
Court, in Calaveras County ?

A. — Yes.

Q. — Were you present at the time when Judge Hardy delivered his
charge to the jury ?

A. — I was on the jury.

Q. — Did you notice anything peculiar in Judge Hardy's condition?

A. — Well, I thought Judge Hardy was a little intoxicated.

Q. — In what way did Judge Hardy manifest that intoxication ?

A. — By reading. He did not read in his usual tone.

Q. — He could not read or talk as usual ?

A.— No.

Q. — Just describe the manner in which he read.

A. — His tongue was quite thick.

Q. — Was that while he was delivering his charge ?

A. — Yes.

Q. — Do you know anything in relation to Judge Hardy's habits, in
regard to temperance, within the last two years, while he has been hold-
ing the terms of his Court in Calaveras County?

A. — I have seen Judge Hardy drunk at most of the shops around the
Hill.

Q. — To what extent ?

A. — I have seen him, when he has adjourned Court for half an hour,
drink perhaps four or five times.

Q. — What did you notice as to the effect of liquor on him ?

A. — Onl}^ in his speech.

Q. — Do you know whether he was sober or not ?

A. — I sliovdd think he was a little intoxicated at the time.

Q. — How did Judge Hardy act, when he was intoxicated ?

A.— Why, he did not talk as he generally does. That is all I could
tell about it.

106

Q. — How about his walk ?

A. — He walked straight enough. I never saw Judge Hardy but he
could walk well enough.

Q. — Did you ever notice any other peculiarity about Judge Hardy,
when under the influence of liquor, besides his talk ?

A.— No.

Q. — Were you in Leger's or Brown's saloon, that evening ?

A. — Neither of them.

TESTIMONY OF GEORGE SHERMAN.

Mr. Camphell. — Where do you reside, and what is j^our occupation ?

A. — I reside at Chile Gulch, near Mokelumne Hill. My business is
that of a blacksmith.

Q. — Were you at Mokelumne Hill on the last day of the last February
term of the District Court in Calaveras County ?

A.— Yes.

Q. — Did you see Judge Hardy on that day ?

A.— I did.

Q. — Where did you see him ? .

A. — I saw him in the Court House. • I

Q._When? ^

A. — I saw him there in the morning, and pretty much all day, during
Court.

Q. — Did you notice anything peculiar about his condition oh that
day?

A. — Well, I thought he was kind- of intoxicated.

Q. — Were you there when Judge Hardy delivered his charge to the

A. — No.

Q. — But before that, you were there ?

A.— Yes.

Q. — Did you see him at any saloons during that day ?

A. — I saw him at Mr. Leger's.

Q. — At what time ? ^

A. — I saw him there — I believe it was between twelve and one ; and
saw him there in the evening.

Q. — At what time in the evening ?

A. — About seven o'clock.

Q. — Did you notice, at either of those times, anything peculiar about
Judge Hardy ?

A. — Well, I thought he was strongly under the influence of liquor ?

Q. — How did he exhibit that ?

A. — Well, I could tell pretty much by his ways and actions.

Q. — What were his ways and actions ?

A. — Well, he did not talk as if he was sober.

Q. — Did you hear any expressions of his on that day in relation to the
present rebellion ?

A.— Yes.

Q. — State what they were and where it was that you heard him make
use of such expressions.

A. — Well, it was after the adjournment of the Court — at one o'clock on
Sunday morning, I guess. Judge Hardy said, '-My Court is adjourned.

107

ll am off the bench, and I am a i-ebel, and by God, I don't care a damn

'who knows it."

I Q. — Where was that ?

A. — At Lcger's.

Q. — Were there a number of persons there present at that time ?

A. — Yes. A pretty largo crowd.

Q. — Did 3"0u hear Judge Hardy make use of any other similar expres-
sions on that day, at any other place ?

A.— No.

Q. — Have you resided at Mokelumne Hill, during all the time, the past
two years ?

A. — Yes, I have. I have always resided there until the last month.

Q. — Have you frequently seen Judge Hardy, during the terms of his
Court, at Mokelumne Hill ?

A. — I have frequently seen him there.

Q. — State what his habits, as to sobriety, were, while he was there
holding terms of his Court.

A. — That is something I could not tell. I always worked in a shop
there, and seldom got out, except this last term.

Q. — State what y(Mi noticed during this last term.

A. — That was the only day I was there — the last day of the last term.

Mr. WiUiams. — This place of Leger's is a hotel, is it not?

A.— Yes.

Q. — And it is a general resort for lawyers, and that class of men, is it
not ?

A.— Yes.

TESTIMONY OF W. K. BOUCHER.

W. K. Boucher, being called and sworn, testified as follows:

3fr. nirjhj/. — Where do you reside ?

A. — I live at Mokelumne Hill.

Q. — Have you lived there for any length of time ?

A. — For ten years.

Q. — Are you acquainted with the Eespondent ?

A. — I am.

Q. — How long have you known him ?

A. — I have knOAvn h'im since he first came to Mokelumne Hill.

Q. — About how many years ?

A. — That was in eighteen hundred and fifty-eight, I believe ; eighteen
hundred and fiftv-seven or eighteen hundred and fifty-eight.

Mr. Hiyhij. — I will call youi- attention to the term of the Court of Ses-
sions held there under Judge Porter, along in February, eighteen hun-
dred and sixty, or eighteen hundred and sixty-one, at the time the grand
jury had some difficulty.

, Witness. — That was the January term of eighteen hundred and sixty-
one.

Q. — Was Charles P. Dudley on that grand jury ?

A. — He was.

Q. — Were you present when several of that grand jury were brought
before Judge Hardy, on a writ of habeas corpus ?

A. — I wa"s not present when the grand jurors were_ brought before
Judge Hardy.

108

Q. — Or any of them ?

A. — Xone of them.

Q. — You did not see Judge Hardy when he was presiding*in that
case ?

A. — Xot when he was on that case.

Q. — Did you, immediately before or after?

A. — Immediately after. Judge Hardy had Judge Porter, Mr. Tilden,
and^ myself, before him, for contempt; and I saw him.

Q. — What was his condition, as to sobriety ?

A. — He was not sober.

Q. — Well, what was his condition ?

A. — Well, I think the Judge was about half tight.

Q. — AVhat was his appearance, and how did he exhibit it ?

A. — He showed it in his eyes, and in the muscles of his face, and in
his utterance. He was on the bench at the time.

Q. — He did not speak as he did when he was sober ?

A. — Xo. Sir. He spoke slowly and deliberately, with a thickness he
did not have when sober.

Q. — That was in the January term of the Court of Sessions, eighteen
hundred and sixty-one ?

A. — Yes ; but I think that was in the fore part of February. The
term lasted into Februar3\

Q. — I also ask, if you have been an observer of Judge Hardy's con-
duct during the terms of the Court he has held there during the last
two years '?

A. — I have not been a particular observer of his terms of Court. Xot
having much business before his Court, I have not been there very fre-
quently.

Q. — Have you observed Judge Hardy's conduct when out at intermis-
sions ?

A. — I have frequently seen Judge Hardy when he was out at inter-
missions.

Q. — Where was he ? and, whether drinking or not, what was his con-
dition ?

A. — I have seen him drink during intermissions.

Q. — What condition was he in ?

A. — Well, I have sometimes seen the Judge pretty well sprung.

Q. — That was at intermission ?

A. — Yes. I never saw him drunk on the bench, though, but the one
time that I have spoken of.

Q. — Do you know what Judge Hardy's habit has generally been at
these intermissions ? whether of going to saloons and spending his time
there, drinking, or not ?

A. — Well, I have frequently seen him there. If you call that habit,
why, it is his habit. I cannot say how often I have so seen him ; I can-
not say that a whole term may not have gone b}^ without his going
there.

Q. — For the last two years, you have been in what business ?

A. — I have been acting as Justice of the Peace at Mokelumne Hill.

Q. — And had your office there ?

A.— Yes.

Q. — This you have mentioned, you observed when out from j^our
office?

A. — Yes.

109

Q. — "Were tou present at Mr. Leger's or 3Ir. Brown's saloons ; you
know the two places, do you not ?
i A. — Yes.

' Q. — Were tou present at either on the evening of the last day of the
last February term of the District Court, when Judge Hardy was there ?

A. — I was not.

Q. — Have you seen Judge Hardy intoxicated on the streets during
any one of the terras of Court within the last two years, at any other
times than those you have spoken of?

A. — I cannot say as to that; I do not recollect.

Jlr. Willitims.. — [To witness.] We will not trouble you now with any
questions, but shall want to recall you when we come \o the defence.

TESTIMONY OF J. W. GRISWOLD.

J. W. Griswold, being called and sworn, testified as follows :

Mr. CdmpheU. — Where do you reside ?

A. — I reside in Calaveras County.

Q. — You are at present Judge Griswold, a Representative from that
county, are vou not ?

A.— Yes. "

Q. — Do you know Judge Hardy ?

A. — I have very little acquaintance with Judge Hardy.

Q. — But do you know him by sight ?

A. — Yes. I have known him by sight since eighteen hundred and
fifty-five.

(}. — Did you at any time during the month of August last see Judge
Hardv at Mokelumne Hill ?

A.— I did.

Q. — State when and where.

A. — I cannot give precisely the dates without referring to the records
of the Court. I was there in Judge Hardy's Court, having a little inter-
est in the naturalization of a friend of mine; and was there during the
process of his getting his naturalization papers. And on that day, half
an hour after I saw that person get those papers, I passed out from the
Court, and liappened into Mr. Patterson's saloon.

Mr. Camphell. — Is that a public bar room ?

A.— Yes.

Q. — Were there any persons in there at that time besides yourself?

A. — Yes; a dozen or fifteen, I presume, playing billiards, etc. Judge
Hardy came in. There was a number of us — some five or six persons —
stepped up to the bar to take a drink ; Judge Hardy among the rest.
After we had filled our glasses, Judge Hardy said : '■ Here's to the
Stars and Stripes I There is no Constitution; it has gone to hell."

Q. — Have you, during the last two years, had an opportunity of seeing
Judge Hardy ti-equeutly during the terms of Court t

A^Verv seldom. I have seen Judge Hardy only a few times. I think.
He stayed ut mv house when he was out in the campaign, canvassing, in
eighteen hundred and fifty-nine. I think.

Mr. Hlfjhy. — I would state to the Court that there are quite a number
of witnesses to be sworn and questioned, but their evidence will be very
brief I have no doubt but that two hours time will be sufficient to intro-

110

duce all the eridence there in is the case, on the part of the prosecution.
Some of the witnesses seem to be scattered about, and not here. I do
not know why they are not here ; they were required to be present. In
regard to the Marin ease, there is a witness who will be here to-morrow
morning.

Mr. Williams, on behalf of the Eespoudent, applied for an order di-
reefing the Sergeant-at-Arms to immediately go to Sonoma and Marin
Counties, and subpoena witnesses for Judge Hardy ; the four mentioned
to the President previous to the commencement of the trial.

The application was acceded to, and the order made ; the Presiding
Officer remarking that they would probably be returned by Friday.

3fr. Williams. — Probably we will occupy the intervening time with the
other portions of the case. From the present aspect of the case, I have
strong hopes that we shall bring the trial within a much shorter compass
than we at first expected. Certainly Ave have made every exertion, on
our part, to shorten it ; and intend to.

The Court then adjourned to eleven o'clock, a. m., Thursday morning,^
May first.

TESTIMONY

IN THE

TRIAL OF JUDGE J. H. HARDY.

FOURTH DAY— MAY 1, 1863.

■ TESTIMONY FOR THE PROSECUTION

■ TESTIMONY OP E. B. WHITE.

E. B. White, being called and sworn, testified as follows:

Mr. Campbell. — Where do you reside ?

A. — I reside at Mokelumne Hill, Calaveras County.

Q. — How long have you resided there ?

A. — About two years and a half.

Q. — Do you know the Respondent, Judge Hardy?

A. — I do. Sir.

Q. — How long have j^ou known him ?

A. — I have known him about two years.

Q. — Were you a juryman at the last February term of the Calaveras
District Coui't ?

A. — I was.

Q. — Was you empanelled in the case of McDermott against Higby ?

A. — I was.

Q._State whether, at that time, in the j^rogress of that cause, you
noticed anything peculiar about Judge Hardy while proceeding on the
bench ?

A. — Well, it was on the last day of the term, at about ten o'clock in
the evening, when he gave his charge. There were special issues to be

112

decided in the verdict. I could not, somehow, understand what the Judge
said. When we got into the jury room, I told them that I could not un-
derstand Avhat he had said, and that we should have to go back for ex-
planation. The Judge appeared to be kind of confused.

Q. — You say you could not understand Avhat the Judge said. Why?

A. — Because he spoke so different from the ordinary manner — kind of
confused. I say, I could not understand these special issues so as to act
on them.

Q. — Why could you not understand him ?

A. — I do not know exactly. That is to say, I cannot tell. What the
Judge said was somewhat kind of confused — kind of mixed up.

Q. — What appeared to be confused ?

A. — The charge.

Q. — You mean the Judge's delivery of the charge.

A. — Yes, Sir.

Q. — Did you come back into the Court room from the jnvy room ?

A. — Yes, Sir. After we had been out about an hour, or an hour and a
half, Ave went back into the Court room to get some instructions.

Q. — What was his condition then ?

A. — Well, I think that he was intoxicated some. He acted to me like
a man who had been drinking a good deal.

Q. — How did he appear to you at first, when he gave you the charge ?

A. — He appeared to be somewhat intoxicated, as I said.

Q. — How did his condition, at the time of delivering the charge, com-
pare with his condition when you came out of the Court room ?

A. — Well, at the last time, he appeared about the same, only a little
more so.

Q. — Have you resided at the Hill during the last two years and a
half?

A. — Yes, Sir ; the principal part of the time.

Q. — Have j'ou been in the habit of seeing Judge Hardy frequently du-
ring his terms of Court ?

A. — Yes, Sir.

Q. — Do you know what his habits have been, as to temperance, during
those times ?

A. — Well, I have seen him slightly intoxicated, a few times.

Q. — B}^ dav or by night ?

A.— Well, I think, by night.

Q. — At what places ?

A. — Well, I recollect one place — the Union hotel. There was a party
having a pretty good time there. J

Q. — Wben was that? ■*

A. — I think it was a year ago last January. I could not recollect the
date exactly.

Q. — Was the grand jury in session then?

A. — I think they were. I know that part of them were in jail, or had
been, for contempt.

Q. — Do you recollect whether Charles P. Dudley was one of those ?
' A.— I do, Sir.

Q. — He arts one of them ?

A. — Yes, Sir.

Q. — Were you in Brown's saloon on the night of the last day of the
February term ?

A. — I was not — not that I recollect.

Q- — Were you in Leger's saloon on that night ?

113

A. — Not after the Court had adjourned, I think.

Mr. (Jamphdl. — That is all

Mr. Wi'Uiams. — We do not wish to ask you any questions.

TESTIMONY OF JOHN HANSOM

Mr. Hansom, being called and sworn, testified as follows:

Mr. GamphcU. — Where do you reside ?

A.— At Mokelumne Hill.

Q. — What is 3'our business ?

A. — I am a miner.

Q. — AVhat is your name ?

A. — Hansom.

Q. — Your /«// name.

A. — John Hansom.

Q. — John Hansom ?

A. — Yes, Sir.

Q. — How long have you resided at Mokelumne Hill ?

A. — Nearly thirteen years.

Q. — Are you acquainted with Judge Hardy ?

A. — I am, Sir.

Q. — How long have you known him ?

A. — Several years ; four or five.

[The witness was requested to si3eak louder.]

Q. — State whether you saw Judge Hardy on the last day of the last
February term of the Calaveras District Court.

A. — I think that I saw him several times during the day. I was in
Court in the fore part of the day, but not in the latter part of the day,
or in the evening.

Q. — Are you acquainted with Judge Hardy's general habits, as regards
sobriety, during the terms of his Court in Calaveras County"/

A. — Yes, Sir.

Q. — State what they have been.

A. — Well, he is a man who is in the habit of drinking a good deal dur-
ing the terms of his Court, and at other times.

Q. — State whether he drinks sufficient!}^ to become intoxicated.

A. — I have never seen him really intoxicated, but once.

Q. — AVhen was that ?

A. — Some time last fall.

Q. — Was the Court in session, at that time ?

A. — I think it was. In the August term.

Q. — You never saw him intoxicated, very badly, but once ?

A.— No, Sir.

Q. — About how frequently, within the last two years, have you seen
him intoxicated ?

A. — I saw him intoxicated last summer, during the election, a good
miany times.

Q. — While the Court has been in session, how many times have you
seen him intoxicated ?

A. — Well, I could not say exactly. I could not say that I saw him
very much intoxicated, except at the time I have stated. That is, very
drunk,

114

Q. — How many times have you seen him in public places under the in-
fluence of liquor ?

A. — I have seen him a great many times, when I thought he was un-
der the influence of liquor.

Q. — How did 3"ou judge that he had drank too much?

A. — By his foolish exj)ressions.

Q. — And what else ?

A. — From the way he exjjressed himself in his talk, generally.

Q. — His manner at such times was diflerent, was it not, from the times
when he was sober ?

A. — Yes, Sir. Probably, like all other men who are in the habit of
drinking, when he gets a little too much, he feels funny, and talks
funny.

CROSS EXAMINATION.

Mr. Williams. — Have you been several times on the jury ?

A. — I have. Sir, a great many times.

Q. — Xow tell this Court whether Judge Hardy has been in the habit
constantly of opening his Court promptly, and promptly attending to
the business of the Court, when 3-011 have been attending on jurj^.

A. — I do not know anything to the contrarj^. 1 know of one case
where the Court adjourned over for several days. That is, I have heard
of one occasion when it did.

Mr. Williams. — You need not state what you heard. You state that
Judge Hardy has been in the habit of drinking for a long time. Has he
not been in the habit of drinking some since you first knew him ?

A. — I think he has, Sir, by spells, at diflerent times.

Q. — As well before as after the election ?

A. — Yes, Sir.

Q. — He was appointed Judge in January, and was elected the next

A. — Yes, Sir.

Q. — And this habit of drinking existed as well before as after the
election ?
A. — Yes, Sir, I think it did, Sir.
Mr. Williams. — That is all. Sir.

DIRECT EXAMINATION RESUMED.

Mr. Edgerton. — You say that you were often a juryman in Judge Har-
dy's Court ?

A. — Yes, Sir.

Q. — Will you state whether, as far as you have observed, the conduct
of Judge Hardj' has alwaj'S been prompt in opening the Court and doing
the business of the Court ? Has he been unafl'ected, so far as his action
in these particulars indicated, b}' intemperance ?

A. — I do not think that he has at all times been unafl'ected b}^ liquor.
But I think he has probably been as prompt in opening his Court as any
Judge we have ever had there.

TESTIMONY OF W. J. GATEWOOD.

W. J. Gatewood, being called and sworn, testified as follows

115

Mr. Edgerton. — Where do 3'ou reside ?

A. — I reside now at Mokelumne Hill.

Q. — How long hare 3"0u lived there ?

A. — I have made it my permanent home for about two months.

Q. — What is your occujDation ?

A. — A laAvyer.

Q. — You have been a practising Attorney where you reside ?

A. — I have been practising in Calaveras County for ten years.

Q. — Do you know Judge Hardy, the Eespondent ?

A.— Yes, Sir.

Q. — Where were you during the last August term of the District Court
of that count}' ?

A. — Most of the time I was there, at Mokelumne Hill.

Q. — State what you know of Judge Hardy's abandoning the Court, or
omitting to be there and discharge the duties of the Court; if so, where
he was at such time, and for what purpose he was absent.

A. — I do not remember exactly when it was. If I could see the re-
cords of the Court I could tell more definitely about it. I think a case
was set for Saturday. I will not be certain whether it was Saturday or
not. I do not remember whether it was the last day of the term or not.
I am inclined to think it was not, although it may have been.

Q. — At all events, it was on Saturda}" ; was it not ?

A. — I think it was on Saturday". It was a case of Gatewood against
McLean. It was a case of my own, in which Mr. Brockway assisted me
as Counsel. I was the plaintiff. Mr. Brockway was to have assisted
me. The case was set for a certain day in the week.

Q.— Was it tried ?

A. — No, Sir.

Q. — Was the jury there?

A. — Well, 1 don't know. The Court had been in session, and a jury
liad been trying cases previously.

Q. — Was theClerk and the other officers of the Court in attendance ?

A. — They were in attendance, I believe.

Q. — Why was the case not tried ?

A. — Judge Hardy was not there.

Q. — Do 3'ou know where he was ?

A. — I do not know, of my own knowledge. I only know from hear-
say. He was advertised to deliver a stump speech, I believe, at Copper-
opolis, or at some other southern town in the District.

Q. — What kind of a speech ?

A. — A political speech. It was just before election.

Q. — State whether the case was tried at that term or not.

Mr. Wilh'ams. — You have asked that question of the witness several
times, and he has answered it as many times. We are willing to admit
that Judge Hardy was away at that time. There is a mere geographical
correction which we might make ; he was at Murphy's, and not at Cop-
peropolis.

Witness. — I did not pretend to know definitely the place he was at, of
my own knowledge. I said at Copperopolis, or at some other southern
precinct in the District.

3fr. Campbell. — That is all the questions we have to ask you, Sir.

Mr. Williams. — We have no questions to ask you.

The witness now desired to know if the Counsel for prosecution would
now permit him to return home.

Counsel refused to give the desired permission.

t 116

TESTIMONY OP W. C. DENNY.

W. C. Denny, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you reside ?

A. — I reside at Mokelumne Hill, in Calaveras County.

Q. — How long have you lived there ?

A. — About eight years.

Q. — Do you know Judge Hard}^?

A.— I do.

Q. — Were you the defendant in a suit pending in his Court, entitled
" Mereier against Denny and others ?"

A. — I was one of the defendants.

Q. — State Avhether you had any conversation with Judge Hardy in re-
"lation to his refusing to try that case? If so, state when and where it
occurred, and what it was.

A. — I had a conversation with Judge Hardy duriug the last February
term, in Leger's saloon. I think it was on the last day of the term,
^udge Hardy was in the saloon talking to a friend of mine by the name
of Robinson. While they were talking there, he beckoned to me, or
Robinson beckoned to me — I don't recollect now, distinctly, which — to
come where" they were. I went to them, and Judge Hardy told me that
a certain man had been to him, and told him that I had been told that
he had requested to have time in ray case. I asked him who was his in-
formant. He said that he would not tell Avho his informant was, unless
I emphatically denied being told so. I denied it;' having been told by
Mr. Dudley to keep it to myself Judge Hardy then told me that he
knew that I had been told of it, and he acknowledged having been asked
for further time in my case. I asked him for his reasons for making
such a request. He said that at that time he would not give me his rea-
sons. But after a little more conversation, he said, that within the
course of the last five or six days there had some information come to
him, which made him a partial Judge in the case ; and that he would
tell me more after the case was decided.

Mr. Edgerton. — Go on.

Witness. — [Continuing.] And after a little more conversation, he told
me that which drew the remark from me, that I did not think a Judge
had a right to have an}' such knowledge from either party. He then
expressed himself like this : He asked me, if I was a Judge, and a case
was pending before me, and while the case was pending, I was to find
out that one of the parties was a damned rascal — if, under such circum-
stances, I could sit and tr}^ that case impartially. I asked him if he
had found out that such was the fact in the case in which I was inter-
ested. I do not know whether he told me distinctly that he had or had
not ; but he intimated that he had, I asked him whether it was me or my
Counsel that he had found out to be such a person as he had represented.
He said, Xo. But he said that he did not want to try the case ; that he
was partial against one of the parties in the case, and was therefore not
fit to try it ; that Judge Creanor would be at his District at the next
Court, and that the case could be tried bof.-re him. That Avas about all
the conversation.

Q. — Did he state how he had found out that one of the parties was a
damned rascal ?
A. — ^No, Sir, he did not ; but he stated that he had found it out, that

117

he was partial on that account, and that he did not want to try the case
on that account.

Q — Has that case ever been tried ?

A.— No, Sir.

Q. — I am instructed to ask you whether anything was said between
you and Judge Hardy on that occasion on the subject of bribery ?

A. — I think that I made use of an expression something like this. I
think that I said to Judge Hardy : •' Then I am to understand, by what
you have said to me, that you have been offered a bribe in this case ?"
He made no answer to this, but merely shrugged up his shoulders, like
this :

[Witness imitates the motion of shrugging one's shoulders.]

Q. — I ask you distinctly — did Judge Hardy, or did he not, in any man-
ner deny that he had been offered a bribe in the case ?

A. — I do not know that he denied or admitted it, either the one way
or the other. He merely shrugged his shoulders, and said that he would
have no more to say about the matter to me, until after the case was
over.

CROSS EXAMINATION.

Mr: Williams. — Mr. Denny, did not Judge Hardy say that this declara-
tion, or this information, which he had about one of the parties in the
case, and which he said had made him a partial Judge in the case, had
come to him within the last five or six days ?

A. — That was my answer to the question before.

Q. — And it was for that reason that he did not want to try the
case?

A. — Yes, Sir.

Q. — That he had ascertained that one of the parties was a damned
scoundrel ; and he asked you, in answer to your remonstrance to his
wanting time, if you would be willing to try a case, were you a Judge,
if you had ascertained such to be the fact ?

A. — Yes, Sir.

Q._Then the Counsel asked you to state distinctly if you did not say
something about a bribe having been offered ?

A.— Judge Hardy did not say that any one had offered him a bribe.
I told liim that I supposed I was to infer from his remarks that one of
the parties had offered him a bribe.

Q. — That you understood from his remarks that one of the parties had
offered him a bribe ?

A. — Yes, Sir.

Q._To which the only answer that he gave was a shrug of the
shoulder ?

A. Yes, Sir. And he said he would tell me no more untd the case

was finallv settled.

Q._Did he say that he would tell you all about it after the case was

over ?

A. — I think he did.

Q. Now, what did he say to his aversion to try the case himself, and

the reason why he wished it to go over ? Why did he wish it to go
over until the next term ? , , .

A. I have just stated that he wished to have this case go by this

term of Court, because he had been informed, because there had come to
his knowledge' in some way, some fticts, from which he was obliged to
consider that one of the parties in the case was a damned scoundrel.

118

Q. — Now then, what was going- to happen before the next term was
over ?

A. — He told me that Judge Creanor, or some other Judge, would be in
his District before the next term was over, and hold Court ; and that the
case could be tried then.

Q. — You said that the case had never been tried. Why not ?

— I cannot tell.

— Has it ever been disposed of?

—No, Sir.

— That was the last term of Court ?

— Yes, Sir.

— The last day of the last term of the Court ?

— Yes, Sir.

TESTIMONY OF JOEL BROWN.

Joel Brown, being called and sworn, testified as follows :

3Ir. Eihjcrton. — Where do you reside, Mr. Brown ?

A. — In Calaveras County, at J\Iokelunine Hill.

Q. — How long have you lived in Calaveras County ? '

A. — Nine years.

Q. — How long have you lived in Mokelumne Hill ?

A. — About six months.

Q. — Do you know Judge Hardy ?

A.— Yes, Sir.

Q. — How long have you known him ?

A. — About five years.

Q. — Is there a place in Calaveras County, near Mokelumne Hill, known
as Chile Gulch ?

A. — There is, Sir.

Q. — State whether you met Judge Hardy at or near that place, on or
about the twenty-sixth of June last ?

A. — Some time last June, I could not state the precise date, I saw
Judge Hardy at Chile Gulch.

Q. — State whether, at that place and time, you had any conversation
with Judge Hardy, or heard him say anj'thiug in reference to the present
difl3.cultie8 in this country ?

A. — I had no conversation with Mr. Hardy there. I saw him in the
street ; he was watering his horse. I heard him use language in regard
to the Southern Confederacy. He said : " Here's to the health of Jeft'.
Davis and the Southern Confederacy ! "

Q. — Will you repeat that again ? You say that you saw him watering
his horse in Chile Gulch ?

A.— Yes, Sir.

Q. — Well, what did he say and do ?

A. — He took out a bottle, and drank to the health of Jeff. Davis and
the Southern Confederacy.

Q. — Anybody with him ?

A. — There was a person with him, who was a stranger to me at the
time. I was afterwards informed that it was Mr. George. But I found
out, after that, it was Mr. George Durham.

Q. — I am instructed to ask you at what time that was ?

A. — It was some time last June.

119

Q.— What year ?

A. — In eight eeii hundred and sixty-one.

Q. — In what manner was this done ? Was it done quietly, or in such
a manner as to attract the attention of bystanders ?

A. — Well, I heard him, and I was fifty feet olf.

Q. — Were there any other persons there, or was you alone ? '

A. — There were other j^ei'sons there — perhaps a dozen. Quite a num-
ber, at any rate.

CROSS EXAMINA.TI0N.

Mr. Williams. — Any of these other j^ersons with you, now here, Mr.
Brown ?

A. — I do not know that there is more than one ; perhaps Mr. Smith is
here.

Q._What Mr. Smith ?

A. — Mr. Joseph Smith. I don't know whether he is here or not. He
lives there. I never had any conversation here. I think he was there
at the time.

Q. — Where you in Court yesterday when a man by the name of Smith
was examined ?

A. — No, Sir, I was not.

Q. — Don't you know whether that man was the man you refer to ?

A. — The man I refer to lives in Chile Gulch. He is here as a witness,
I believe.

Q. — Another person corresponding in name ?

A. — The man I refer to is named Joseph Smith.

3Ir. Eihin-fon. — Will you slate what Judge Hardy's condition was on
that occasion, as to sobriety?

A. — I should think that he was slightly intoxicated.

Q. — How far were you from Judge Hardy at that time ?

A. — Perhaps fifty feet.

Q. — And you heard this language distinctly ?

A.— I did, Sir.

TESTIMONY OF J. G. SEVERANCE.

J. G. Severance, being called and sworn, testified as follows

Mr. Edgcrton. — AYhere do you live ?

A. — In Jackson, Amador County.

Q. — How long have you lived there?

A.— Some four or five years. About five years.

Q. — Do you know the Eespondent, Judge Hardy ?

A.— I do.

Q. — How long have you known him ?

A. — I have known him about four years.

Q. — Where were you about the twenty-fifth of June last ?

A. — In Jackson, Amador County.

Q._\Vas Judge Hardy there on that occasion ?

A. — I saw him in the evening.

Q — Whom was he with ?

A. — It would be impossible for me to state.

Q. — Can you name any of them ?

120

A. — Yes, Sir. During the evening he was with Mr. Allen, Mr. Davis,
George Dorham, myself, and several other persons.

Q. — Well, Sir, will you state whether on that occasion 3"0u heard Judge
Hardy use any language with reference to what is known as the South-
ern Confederacy?

A.— Yes* Sir.

Q. — Or in reference to the pretended President of that Confederacy,
Jefferson Davis?

A. — I heard him propose a •oast, late in the evening, at the Union
hotel.

Q. — Can vou tell what that toast was ?

A.— Yes, Sir.

Q. — Let us have it.

A. — The toast was to " Jeff. Davis and the Southern Confederacy."

Q. — How many persons were there present at that time ?

A. — I should judge that there were some six or eight persons present
in the room.

Q. — Did he add anything to that toast ?

Attorney- General. — State the whole toast.

A. — He did not add anything to it that I recollect of

Q. — He merely drank — '• Here's to Jeff. Davis and the Southern Con
federacv ?"

A.— Yes, Sir.

Q. — Will you state, farther, whether you heard anything more from
Judge Hardy that night, either in the saloon or in the streets, upon that
same subject ? If so, at about what time of the night ?

A. — Well, Sir, the time when this toast w*as proposed was about ten
or eleven o'clock in the evening. I heard him, on one occasion after-
wards, hurrahing for Jeff'. Davis.

Q._Where ?

A. — On the street.

Q. — In what place ?

A. — In Jackson.

Q. — Was it before or after that time that the toast was drank?

A.— After.

Q. — On the s&me day ?

A. — Yes. Sir, on the same day.

Q. — I will a.sk you, farther, if you know where Judge Hardy was going
at that time ?

A. — He was about starting for Mono County.

Q. — For what purpose ?

A. — To hold Court there.

Q. — Where were you on the twenty-sixth of June, eighteen hundred
and sixty-one ?

A. — On the morning of the twenty-sixth, I started, in comjjany with
Judge Hardy, for Mokelumne Hill, on our way towards Mono.

Q. — State whether you went to Mono with him, or not.

A. — I went part of the way with him.

Q. — State Avhether or not yon were at or near the town of Angel that
day.

A. — We passed through it.

Q. — estate whether you heard Judge Hardy use any language on that
day, near the town of Angel, in reference to the American flag.

A. — Judge Hardy and I were riding along together, and there was a
flag flying on the hill, a short distance before us, in the town of Angel.

121

Q.— What kind of a flag ?

A. — An American flag — the Stars and Stripes. It was flying on the
lill. a little above the town. Judge Hardy remarked : " That's an old
voman's rag. and ought to be torn down."

(^. — What was his condition then — as to sobriety, I mean?

A. — He had been drinking freely during the day.

(}. — State whether there were any persons about when he made that
•emark.

A. — There were several persons passing at the time.

Q. — State what was his manner — whether quiet or boisterous in his
Qianner and the tones of his voice ?

A. — Not very boisterous in his tones.

Q. — State whether any one heard him, besides yourself?

A. — One man heard him, I judge, from the reply he made.
I Q. — State whether j/ou made any reply at that time ?
I A. — Yes, Sir. I told Judge Hardy that when that flag was taken
down I was ready to leave the country.

Q. — Did the bystanders say anything ? I want to know if their at-
tention was attracted to the remark.

A. — One of them remarked that my head was right.
I 3Ir. EiJrjerton. — Well, I guess it was.

Mr. Williams. — Yes, I guess you will do on that subject.

CROSS EXAMINATION.

3Ir. WiNiama. — If I understood you right, Mr. Severance, at the time
you were at the Union hotel, during that evening, when Judge Hardy
toasted Jefl". Davis, you state that there were several persons present ?

A. — Yes, Sir.

Q. — Are there any of those persons here now ?

A. — Mr. Allen is present.

Q. — You state that Judge Hardy had been drinking ?

A.— Yes, Sir.

Q. — Well, how did he difter, in that respect, from the rest^f the
crowd who were with him ?

A. — I don't know that there was an}- difference.

Q. — All having a pretty jolly time ?

A.— Yes, Sir.

Mr. Edijerton. — We will admit that they were all pretty drunk.

Mr. Williams. — •Y^'ou had been cracking jokes on politics, backwards and
forwards, had you not ?

A.— Yes, Sir.

Q. — Now, how many times do you think that Judge Hardy shouted
for Jeff. Davis, on that night ?

A. — It would be impossible for me to fix any definite number of
times.

Q. — I don't expect you to fix any definite number of times. But you
can give a sort of a guess as to the number of times.

[Mr. Campbell here asked a suspension of the examination. The
Clerk of Marin County, Mr. Taylor, was present. He had a sick child
at home. He desired to be examined, that he might be enabled to re-
turn to his fiimily. Upon consultation, the Attorneys found it impossible
to accommodate him.]

Mr. Williams. — On that occasion you say that there were a number of
16

122

persons present. How many persons do you say you think heard Judge
Hardy shout for Jeff. Davis '/

A. — At the time the toast was projiosed I shoukl judge that there
were six or eight persons in the room.

Q. — I ask you, now, how many times Judge Hardy shouted for Jeff.
Davis on that night ?

A. — Well, Sir, I would hardly be able to tell.

Q. — Several times ?

A.— Yes, Sir.

Q. — I will ask you if he shouted for Jeff. Davis any more times than
he shouted for Mr. Lincoln ? ,

Mr. Edgerton. — Well, that question is objectionable?

Mr. Williams. — We propose to show that Judge Hardy shouted for Mr.
Lincoln more times than he shouted for Mr. Davis.

The Presiding Officer. — You don't plead that as an offset? [Merriment.]

Witness. — I heard Judge Hardy shout for Mr. Lincoln that night.

Q. — Can you say for which he shouted most?

A. — Yes, Sir ; I think he shouted for Jeff. Davis most.

Q. — Then Jeff. Davis was ahead, was he ?

A. — Yes, Sir; I think he was, rather.

Q. — I will ask you whether the whole thing was not a mere joke ?
Was it not so understood ? Did you not so understand it ? Did anybody
take offence at it, at the time ? Did t/ou take any serious offence at it ?

A. — 'No, Sir; I did not. I took no offence at Judge Hardy's shouting
for Jeff. Davis. But I refused to drink the toast, as did others in the
room.

Q,. — You did refuse to drink to the health of Jeff. Davis.

A.— Yes, Sir.

Q. — And you afterwards drank to the health of Mr. Lincoln ?

A. — We clrank to the Constitution.

Q. — Did you not drink to Mr. Lincoln, all round ?

A. — I cannot say. It might have been so, afterwards.

Q. — When Judge Hardy proposed to drink to the health of Jeff. Davis,
and the Southern Confederacy, you refused to drink, did you ?

A. — Yes, Sir.

Q. — Did not Judge Hardy then turn round, and propose to drink to
the health of Mr. Lincoln, and the Constitution ; and was not that toast
drank then and there, with right good spirit ?

A. — I think a toast of that kind M^as drank. I do not know whether
Judge Hardy proposed it, or Mr. Davis.

Q. — I want to tax your recollection a little. After some of the parties
had refused to drink the toast, did not Judge Hardy, when he found
they were taking the matter seriousl}^, turn round and propose to drink
to the health of Mr. Lincoln, and the Constitution?

A. — I can only give m}^ impression as to what happened then. It is
my impression that Judge Hardy then proposed a toast to the Consti-
tution.

Q. — You don't know whether Mr. Lincoln was j)iit in or not, do you ?

A.— No, Sir.

Q. — 'He might have been left out in the cold ?

A.— Yes, Sir.

Q. — You are a professional gentleman, are you not ? You are practis-
ing law, are you not?

A.— Yes, Sir.

Q. — Have 3-011 been pretty constant in attendance upon Judge Hardy's
!ourt ?

, A. — Yes. Sir. I have been in attendance uj^on his Court since he has
!een District Judge there.

{ Q. — I believe that you said 3'ou lived in Amador County ?
I A. — Yes, Sir.

1 Q. — Have you been present "when Judge Hardy was engaged in natu-
alizing citizens ?

A. — Yes, Sir ; very often.
I Q. — Now, has he, or has he not, uniformly, when a man proposed him-
elf for naturalization, rigidly required evidence of devotion to the Con-
titution of the United States, and of fidelity to the Government ?

Mr. EJi/rrton. — Is that admissible ? We object to that question, on the
;round that it is irrelevant, and on the ground that it is not cross exami-
nation.

The Presiding Officer said that he was not prepared to decide that the
estimony would not be good, if offered in chief.

Mr. Williams contended that the evidence was proper to reluit the pre-
umption which was sought to be raised, by rehearsing the idle jokes and
rivolous declarations of Judge Hard}- when he was in a jovial party. It
vas proposed to show, when Judge Hardy was engaged in the serious
lischarge of his duties as Judge, he exhibited his fidelity to the Consti-
.ution, in that he rigidly required all candidates for naturalization to
,horoughly ^substantiate their devotion to the Union.

Mr. Edgerton contended that Judge Hardy only performed his simple
hity, under the law and the Constitution, when "he did and when he re-
quired those things now proposed to be proven. Therefore, the matter
vas irrelevant. Mr. Edgerton further contended that the question was
lOt within the limit of a proper cross examination.

The Presiding Officer decided that the question was not proper to be
5ut in a cross examination.

The question was then put to the Senate, for their determination, sit-
ing as a Court, as to its admissibility.

the Senate, by a vote of eleven ayes to twenty-two noes, refused to
illow the question to be put.

The Court here took a recess for half an hour, the President announc-
ng that at the expiration of that time the trial would proceed, whether
:here was any one present or not. [Merriment.]

On reassembling, the Court proceeded to take the

TESTIMONY OF ALFRED ALLEN.

3fr. Edgerton. — Where do you reside ?

A. — At Jackson, in Amador County.

Q. — How long have you lived there ?

A. — About five years.

Q. — What is your occupation, Mr. Allen?

A. — I am with my brother, in the hotel business.

Q. — What hotel do you keep ?

A. — The Union hotel.

Q. — Where were you on the twenty-fifth of June last ?

A. — I was at my hotel.

124
-State whether you saw Judge Hardy at that time.

A. — I saw him in the evening.

Q._Where ?

A. — In the hotel.

Q. — In company with any one ?

A. — Three or four persons were with him.

Q. — Who were the}' ?

A. — One was Mr. SeTerance, Mr. Tripp, and Mr. Davis.

Q. — Will 3'ou state whether you heard Judge Hardy say anything in
reference to Jeff. Davis and the Southern Confederacy on that occasion.
If so, state what it Avas, and what was done ?

A. — I was tending bar, and they asked for something to drink.

Q. — "Who asked for something to drink ?

A. — Judge Hardy.

Q.— What then ?

A. — After he had got his drink, he jjroposed a toast to " Jeff. Davis and
the Southern Confederacy."

Q. — Who proposed that toast ?

A. — Judge Hardy.

Q. — Describee the occurrence as it took place. What occurred im-
mediately after that, as between Judge Hardy and Mr. Davis ?

A. — Mr. Davis set his glass down on the counter. He stated that he
could not drink any such toast.

Q. — That is what occurred ?

A. — Yes, Sir. I think Davis remarked, " I will drink to the Union."

Q. — Anything else ?

A.— That is all I heard.

Q. — State whether there was any altercation between Judge Hardy
and Mr. Davis.

A. — There was some little feeling exhibited by Mr. Davis. Some loud
words.

Q.— About what ?

A. — About this proposition for a toast. J

Q. — Xow. Sir. what was the character of that altercation ? ^

A. — Well, Sir, Mr. D^vis made the remark that he would not drink
such a toast as that.

Q. — Did Judge Hardy make any reply to that ?

A. — Xot that I know of; no, Sir.

Q. — You say that there were loud words between them — what were
they?

A. — Well, I cannot recollect now what they were. There were a few
remarks passed between them.

Q. — State whether you heard anything farther from Judge Hard}', on
that night, in reference to that subject. J

A. — i heard him shouting on the street. f

Q. — How long after the time when he was in the bar room ?

A. — May be half an hour.

Q. — What did you hear him say on the street ? Or, did 3'ou hear hira
say anything ?

A. — I heard him shouting for Jeff". Davis.

Q. — Was anything said about the impropriety of his uttering such
sentiments when he was a Judge, or anj'thing of that kind ?

A. — I do not recollect that anything was said of that kind.

Q. — You do not recollect anything of that kind ?

A — ]^o, Sir.

125

CROSS EXAMINATION.

Mr. Willi'dma. — Mi-. Allon, you hjivo been spcakin<i; of Mr. Djivis ; do
roil know the rehitioiiH vvliieh exist between him jijul .Iiulge lliirdy l*
iJV^liether tlicy are IVieiuUy, or otherwise '{

A. — I hav(^ always believed them to be on friendly terms.

(),. — Friendly tei'ius until \\i' went away?

A. — Yes, Sir.

Q. — Did you know about tlie time of Mr. Davis's enlistment?

A. — Well, i recollect the cii'cunistanceH of it.

Q. — Did you know the fael that .Iu(l<^o Hardy fui-nished Mr. Davis
srith arms?

A. — I l»avo no recollection of it.

Q. — Do you not know thai .lud<i;e Hardy let Mr. Davis liave a revolver,
and ]iart of an outfit ?

A. — I never heard of il, Sir.

Mr. WiUiamn. — That is all, Sir.

TKSTI.MONY Ol'' W. S. COOLKY.

Mr. E(l(jcrton. — Mr. Coole}', where do you live ?
A. — In Jackson, Amador (Jounty.
(I. — Do you Icnow Judt!;e Hardy?

A.— r do.

il. — Ilow lonn- have you known him ?

A. — Five or six years.

(^. — Where were you about the twenty-fifth day of last .Tune ?

A. — in Jackson.

(I. — State whether you saw .Judge Jlardy tliere on that occasion, dur-
ing the day, or during the night ?

A. — I saw him during the day.

Q. — Well, Sir, I will ask you whether you saw him on tiuit o(!casion
when he was saying anytiiing in reference to Jell". Davis and the South-
ern Confedei-acy ?

A. — I heard him in t-h(^ evening, or some time during the night. I
cannot be particulai- about the time. J n fact, it may not be the day
which you named.

Q. — Can you not refer to anything by which you can fix the date ?

A. — I learned, the morning after, tliat Judge Hardy had started for
Mono (lounty, to hold (Jourt there.

(l- — And it was the night before that, of which you Avere speaking?

A. — Yes, Sir.

(I. — Now, what linu^ in the night was il, of wliich you speak?

A. — \l was somewhere from twelve to two o'clock.

Q. — Where were you wlu^n you heard this?

A. — I was in my room. I w:is in lie<l. I was woke u]i by the noiso.

il- — What noise woke you iij) r'

A. — I heard a number of ])ersons shouting on the str-eet.

il- — What did you hear shouted?

A. — I heard them shout, before they came near enough to mo to enable
me to hear distinctly what they said. I first heard the noise. I could
not at first tell what they said.

(I. — Did you hear afterwards Avhat it was they were shouting ?

12G

A. — Yes, Sir. When they came up nearer to me I heard and recog-
nized Judge Hardy's voice.

Q. — What was it that he was shouting ?

A. — I lieard him hurrah for Jeff. Davis and the Southern Confederacy.

Q. — Can you say how many times you heard him shout for Jeff. Davis
and the Southern Confederacy ?

A. — I heard him shout '• hurrah," four or five times, while passing
along the street. At that time he was passing from tlie Union hotel to
the stable.

Q. — At the time you lieard him shout he was passing along by where
you were, on liis way from the Union house to the stable ?

A.— Yes, Sir.

Q. — How do you know that it was Judge Hardy who was shouting?

A. — I recognized his voice.

CROSS EXAMINATION.

Mr. Williams. — How many times did you hear Jeff. Davis's name men-
tioned ?

A. — I should judge, four or five times.

Q. — What is the population of that town?

A. — Probably about four or five hundred.

Q. — Was there any considerable political excitement stirred up by this
shouting?

A. — Not that I am aware of.

Q. — Was there any military organization formed there in favor of Jeff.
Davis's government, in consequence of this shouting?

A. — I think not. Not that I am aware of.

Q. — Were there any rebellious societies formed on account of that
shouting? Was there any money raised there in behalf of Jeff. Davis's
government on account of this shouting ?

Mr. Cdmpbell. — [Interrupting.] Well, I should suppose that this was
iiardly within tlie limits of cross examination.

Mr. Williams. — When you heard this shouting, and from all that you
know about it, directly and indirectly, in that connection, was it not un-
derstood, and did you not so understand the whole matter, as a joke, as
a drunken frolic ?

A. — I did not so understand it.

Q. — You had just been woke n\) out of a sound sleep ?

A. — I^iad been woke up out of a sloej) by the noise which I heard.

Q. — Whose voice did you hear besides that of Judge Hardy ?

A. — I did not recognize any other voice than that of Judge Hardy,

Q. — Was there any other voice ?

A. — There was another voice. I heard one other voice, but could not
recognize whose it was.

Q.— Which side did he shout for?

A. — He did not shout at all. He seemed to be talking with Judge
Hardy in a compai-atively low tone of voice .

Mr. WiMiams. — Ah I he was on the fence, I suppose ?

Q. — Don't you know — T do not speak now of recognizing voices — but
don't you know that that other person who was then with Judge Hardy,
was Mr. Severance, who was on the stand here this morning ?

A. — I do not know that it was him. That is, I did not know that it
was him. I understood the next day, from others, that it was Mr. Seve-
rance.

Mr. Williams. — That is all.

127

TESTIMONY OF S. B. AXTELL.

S. B. Axtell, ?jeing called and sworn, testified as follows:

3Tr. Eihjerton. — Whore do you reside ?

A. — In Jackson, Amiidor County.

Q. — How long have you resided there ?

A. — About ten years.
I Q. — What is your occupation ?
j A. — I am a lawyer.

I Q. — Are you acquainted with Judge Hardy?
! A. — I am.

j Q. — How long have you known him ?
; A. — Since eighteen hundred and fifty-five.

: Q. — Will you state wlietlier 3^ou have had any conversation with Juclge
lardy, at Mokehimne Hill, in the County of Calaveras, in reference to
.he present difficulties in the countr}^ ? Any conversation with Judge
iardy in reference to secession, and his sentiments in regard to seces-
.ion, and in reference to wliat he would do as a Judge if a person should
ipjily to be natui-alized who entertained the same sentiments that he did
n regard to that matter 'r*

A. — I had a conversation with Judge Hardy, at Mokelumnc Hill, in
'elation to that matter.

Q._Will you relate it ?

A. — I think that the conversation was in relation to the admission of
)ersons to citizenship who applied before his Court for naturalization
)aper8. And in that conversation I inquired of Judge Hardy what he
NOwXd do in case an applicant before his Court for admission as a citizen,
ihould be ascertained to hold secession sentiments. He said, that as a
Fudge, acting under the obligations of his oath, he could not admit such
I person to citizenship. I proceeded to converse farther with him. I
isked him the direct question : If he should ascertain that an applicant
or admission as a citizen entertained the same views which he did in
•elation to these matters, what he would do under such circumstances ?
Se said, that as a Judge, acting under the obligations of his oath of
>fiicc, ho could not admit such an applicant to citizenship. That is about
;he substance of our conversation.

il — Did he, or did he not, at that time, make any declaration to the
jft'ect that he was a Secessionist ?

A. — It was assumed in the conversation that he was. I do not re-
nember any s])ecific declaration in the conversation, in which he said
;hat ho was a Secessionist.

Q. — The suhject of your conversation, Mr. Axtell, was the present diffi-
julty in this country, was it not ?

A. — It was a conversation held, perhaps, in the latter part of the sum-
ner. I think it was in August. And the proposition before us, was,
vhethor there was a United States; whether there lom an existing Con-
stitution of the United States. The questions related, of course, to the
iifficulties of the country. And then the question arose in rogtird to
Fudge Hardy's swearing men every day to support the Constitution of
;he United States.

Q. — What did he tell you was his opinion in relation to the existence
)f the United States, the existence of the ConstUution of the United
States ?

A. My impression is, that he said that there xoas a United States and

128

a United States Constitution. I think that he said that there was a Con
stitution of the United States, and that he was constantly admitting
citizens, and swearing them to fidelity to that Constitution.

Q. — What was his condition then, as to sobriety ?

A. — He was entirely sober.

Q. — I under>tand you to say that he told j^ou, on that occasion, that i
a man applied to him, sitting as a Judge, for admission as a citizen, h(
could not admit him to citizenship if he discovered that the applican
entertained the same views as himself?

[This question was objected to, as leading, and as recapitulatory. Th(
question was withdrawn.]

Jlr. Edgerton. — I am requested to ask jow to state the substance of th(
conversation you had with Judge Hardy upon that point, again. Onc(
more, if j'ou please. In reference to the admission of citizens.

A. — The conversation having led up to this point — in the course of i
discussion with him — I was assuming that he considered —

Mr. E(hjerton. — [Interrupting.] Give us the whole conversation.

A. — I cannot give the whole conversation.

Q. — Well, give us the substance of it.

A. — I was assuming the ground that there was a United States, and i
United States Constitution ; that the Government was not broken up
that the Union was not dissolved ; and I was giving to Judge Hardy th(
fact, that he was sitting as Judge, and was every day swearing in mei
to become citizens to support the Constitution of the United States. ]
was asking him, if he should ascertain that an applicant entertainec
these sentiments —

Mr. Williams. — [Interrupting.] What sentiments do you refer to ?

A. — Sentiments of opposition to the Government of the United States
Sentiments of disloyalty. He said, that as a Judge, he could not admii
them. He said, that as a Judge, whatever views he might have in th(
premises, he would be bound to refuse the application of such personi
for admission to citizenship.

Mr. Edrjerton. — Was anything said as to the sentiments which he, Judg(
Hardy, entertained ?

A.— Yes, Sir.

Q. — Were those the " sentiments" he alluded to?

Mr. Williams. — Well, I must object to this examination.

Q. — What were the sentiments alluded to, on that occasion ?

A. — I stated before, that Judge Hardy said, or, I intended to state dis
tinctly, that Judge Hardy said, that if he ascertained that an applican
for admission to citizenship entertained the same sentiments which he
Judge Hard}', entertained, as a man, or as an individual, he would no
admit such an applicant to citizenship.

Q. — And this occurred in the course of an argument between 3'ou am
Judge Hard}-, at that time ?

A. — It was in the course of a conversation.

Q. — Drawn out by you, on that occasion ?

A. — AVell, yes. Sir, I believe it was.

Q. — In the course of an argument on that occasion ?

A. — Yes, Sir, I believe so.

CROSS EXAMINATION.

Mr. Williams. — Now, Sir, was there any dispute between you and Judg<
Hardy, in regard to any political fact ?

129

A. — I understood Judge Hardy to occujDy one side of a question, and
myself the other.

Q. — Yes, you had that impression, I suppose. But I ask you whether
there was any dispute or argument between you and Judge Hard}" at
that time ? Did he take one side of an argument and you the other ?
Tax your recollection about that, Sir. Or, was it not a conversation,
simply ?

A. — It was a conversation. Or, I believe, there were two conversa-
tions, with an interval between them.

Q. — Did not Judge Hardy on that occasion express, as his opinion, dis-
tinctl}', that secession was no remedy for the present difficulty ?

A. — I do not think he did, in that conversation.

Q. — Did he in cltlicr of those conversations ? I believe \o\\ had two
about that matter, witli a short interval '/

A. — If he did, I have forgotten it. I have heard him express that
sentiment, but I did not hear him at that time.

Mr. Camphdl. — Confine your evidence to that time.

Mr. Williams. — Yes, Sir. I have no right to go beyond that. That is
all. Sir.

TESTIMONY OF JAMES MC M. SHAFTER.

J. McM. Shafter. the presiding officer of the Court, was sworn by the
Secretary of the Senate, but there being some question as to the pro-
priety of this administration of the oath, a Notary Public was called in,
before whom Mr. Shafter was again sworn.

3Ir. Camjjbe//. — You are a resident of the City and County of San
Francisco, and have been a practising Attorney here for a number of
years ?

A. — I have been so since eighteen hundred and fifty-five.

Q. — Did you attend the Juh' term of the Seventh Judicial District,
held in Marin County, in the year eighteen hundred and sixty ?

A. — I have been in attendance upon the Marin Circuit Court almost
every term since eighteen hundred and fifty-six. I think that I was
there present at this July term, eighteen hundred and sixty. I see, by
this piece of paper, which I hold in my hand, that I must have been pre-
sent at the July term, eighteen hundred and sixty.

Q. — Do you recollect the pendency of a case in that Court, during that
Julv term, entitled " The People of the State of California against David
S. Terry?"

A. — I was in San Eatael on the second or third of Jul}'', eighteen
hundred and sixty, when the case was called in the District Court there.
According to my recollection, it was set for trial for what seems to have
been the sixth of July. I should not remember the day but that I see
the minutes state that it was the sixth of July.

3Ir. Williams. — At what time was it that it was set for trial ?

A. — I think it was the second or third of July when the oi-der was
entered.

3Ir. Campbell. — Who presided at that term of the Court ?

A. — The present Eespondent, Judge Hard}'.

Q. — The case to which you allude was founded upon an indictment for
the killing of David C Broderick in a duel, fought by appointment ?

A. — I never read the indictment, myself I was present, perhaps, and
17

130

beai'd it read in Court. But I do not know that I even heard it read.
That was the indictment, undoubtedly.

Q. — Xow state all you know in reference to the proceedings on that
trial.

A.: — I think that on the day in which it was set for trial, it was set for
nine o'clock of this day — the sixth of July, eighteen hundred and sixty.
I was there in the Court room, having some business of my own, at that
time, to transact before the Court. The Court went in in the morning, and
the case was called. Upon the case being called, there was something
said by the. District Attorney about his not being able to go on with the
trial, on account of the absence of witnesses. He stated that he had
caused them to be subpoenaed ; and I think that the phrase was, that he
had exhausted all the means known to the law to get them there. He
said that they were not there. But I understood him to say that they
were then in a boat in the " creek " — a small creek in which boats come
up to within a mile and a half of the town of San Eafael. It was then
suggested that the trial should proceed — as I understood it, with the
expectation that these witnesses might arrive in time to be examined in
the case. The Clerk of the Court, Mr. Taylor, who is present here, from
a paper in his hand was directed to. or on direction did, read, the call of
the jury.

3lr. Campbell. — Who gave that direction?
A. — The Court, I think, Sir.
Q. — Judge Hardy ?

A. — Yes, Sir. That call was for the purpose, I suppose, of ascertain-
ing what jmymen were present under the venire. I do not know the
number of names that were called ; but there must have been quite up
to thirt}' or forty names, 1 should think. I might overstate the number,
perhaps, but I should think there were thirty or forty names. Most of
those who were called, responded. Some few were absent. After the
call had been gone through Avith. Judge Hardy asked the Counsel how
they. would have the jury emj^anelled; whether it should be taken from
the Clerk's list, or drawn from the box. Mr. Hoge, who appeared for
the defendant, after a moment's hesitation, responded that they were
willing, or that they consented — I do not recollect the precise terminol-
ogy of the phrase — that they were willing to take the jur}' from the
Clerk's list. And the District Attorney, either with or without being
appealed to, assented to that mode of drawing the jury. According to
this agreement, twelve names were called, and the individuals who re-
ponded to those names took their seats in the jury box.

3Ir. Camphell. — Just let me ask you hoAv that list was made out ?
A. — Well, it was read from a paper by the Clerk. Whether the list
was prepared specially by the Clerk, or whether the Clerk read from the
venire itself, I have no means of knowing. I have no personal know-
ledge of that matter. The first twelve names which he called off, or the
first twelve names to which they were responses, came into the box.
The first person called was Jacob Short, I think, who was accepted.
Then they were taken down through the list regularly, I suppose ; per-
haps not. One man was called up, and a challenge for cause .sustained
against him. I don't know as it is essential to state all these proceed-
ings. I was myself acquainted with almost all the jurymen. Jacob
Short. I think, was the fir.st man. I am not positive. Mr. Frank, or
Franklin Miller, was asked if he had been a member of a Yigilance Com-
mittee, and I think he responded that he had been. He was challenged,
and I think that the challenge was allowed. After he left the box,

131

another person was challenged, as prejudiced, and excused for the same
reason.

Q^— Who were those jurymen challenged by ?

A. — By the defendant's Counsel ; by the Counsel of Terry.

Q. — Go on with j^our account of the proceedings, if you please.

A. — A man was called, whose name I have forgotten, and was asked
if he had ever belonged to a Vigilance Committee. He replied that he
had not. He was asked if he sympathized with the Vigilance Commit-
tee. After a moment's reflection, he said, No.

Q. — Who were these questions asked by ?

A.. — By the defendant's Counsel. I think that he was peremptorily
challenged. There were no Triers, according to my recollection. After
these two or three persons left the box, others were called, from the list
the Clerk had, to fill up the panel. The District Attorney interposed no
challenge, according to my recollection. I beg pardon ; there was one
case, which I overlooked. One of the persons called to the box was in-
quired of as to whether he sj-mpathized with the Vigilance Committee.
He stated that he did. For this he was challenged by the Respondent's
Counsel. But Judge Hardy intimated that he did not think that this
constituted suflicient ground for challenge. The District Attorney — I
sat in the bar, only three or four feet from him — then said something in a
kind of a mumbling tone, which I could not haMly understand. From
what I did understand, however, I gathered that he assented to the chal-
lenge.

Q. — You understood that the District Attorney allowed the challenge ?

A. — Yes, Sir. I understood Judge Hardy to state that if the District
Attorney allowed the challenge, of course it would be good, for the pur-
poses of that trial. The juryman then took his seat in the box, under
this condition of things. This was all that happened up to the time of
the completion of the empanelling of the jury.

Q. — How long did that occupy ?

A. — Well, I suppose this whole proceeding occupied from ten to fifteen
minutes. I do not think over that time. I mean, the mere proceedings
in empanelling the jury, after the reading of the names. After the jury
was empanelled, the District Attorney was called upon to proceed ;
when he made substantially the same statement as before. The defend-
ants then claimed — I think that they claimed — either that the case pro-
ceed, or that a verdict be rendered. I think that they claimed a ver-
dict.

Q. — I will ask you if you have a memorandum made by you at the
time, concerning this matter?

A. — I came home and made a memorandum the next morning.

3L: Camphell. — Perhaps you had better refer to that for the purpose of
refreshing 3-our recollection.

A. — I should only do so for the purpose of refreshing my recollection ;
I think that I recollect all the circumstances now, without the aid of any
such reference. I may not give the precise order in which mattei^ pro-
ceeded. Judge Hardy, at this moment, upon the verdict being claimed,
asked the District Attorney, Haralson, at what hour the witnesses
were summoned to appear, or when the subpoenas were returnable. I
believe that Mr. Haralson said ten o'clock. Judge Hardy then looked
at his watch, and told the Counsel for the defendant that they had better
wait until the hour had arrived when the subpoenas were returnable.
He said that it lacked five minutes of that hour. I looked at my own
watch, and found that it lacked twenty minutes of ten. I then went out

132

on the stoop before the Court House, and looked to see if I could dis-
cover the boat containing the witnesses who were expected. I could not
discover it. I then went down stairs, and into a saloon kept 1^ Mr.
Gordon. His clock was a little faster than my watch — some few min-
utes. I compared my watch with his clock. I then went back to the
Court House, and started to go up the inside stairs. There are inside
and outside stairs to the Court House, and the Court room is in the
second storj^. As 1 got into the vestibule of the Court room, I met the
jurymen coming out. I then looked at my watch again, and found that
it lacked some minutes of ten. I then passed into the Court room to
attend to some business of my own. I believe that I have stated all the
substantial facts connected with the transaction, so far as they came
under my observation ; except that I may have overlooked some inci-
dents which did not come to my memory in the course of the recital
which I have made.

Q. — The case was then ended, was it ?

A. — Yes, Sir ; I believe it was. I stayed there the balance of the morn-
ing hours, and left at one o'clock. When I got back into the Court
room, I ascertained that a verdict of "Not Guilty'' had been entered,
and the jury discharged. Of the circumstances attendant upon the ren-
dition of the verdict I have no personal knowledge whatever.

Q. — State whether this case was one which had excited a great deal of
public interest throughout the State.

Mr. Williams objected to this question on the ground that the testi-
mony it would draw forth would be immaterial.

Mr. Camphell. — I think it h material. It is material in this point of
view. We propose to show that this case had excited extraordinary in-
terest throughout the State; that there was a very general feeling of
excitement in relation to it; that the venue had been changed from the
County of San Francisco, where the indictment was found, to the County
of Marin. We propose to show that during this trial — I can hardly
designate it by that name — no attempt was made to interrogate a single
juryman as to whether he had formed or expressed any opinion in rela-
tion to the merits of the case. That there was an evident, clear, palpa-
ble combination, between all parties there engaged, to throw the case out
of Court by resort to indecent haste in the empanelling of the jury.
That the course of proceeding, then and there, was entirely unprece-
dented. That from all the facts and circumstances then and there
existing, it was the clear duty of the Judge to have interfered in such a
manner as to have delayed the case at least — when he had every reason
to believe that the witnesses for the prosecution would shortly be in
attendance.

Mr. Williams interrupted Mr. Campbell, by saying, that as a compro-
mise, and for the purpose of avoiding the summing up of the case at
this stage, he would withdraw his objection to the question.

Mr. CamjybrU. — Please state, Mr. Shafter, whether 3-ou know that this
was a case which was considered in common popular conversations ?

A. — Undoubtedly it was so. throughout the State.

Q. — In regard to which, popular feeling was very generally excited ?

A. — ZSTo doubt of it. I do not think that there ever was a case in
California which excited so much public attention, or excited more gene-
ral feeling. The people of this State are, perhaps, more familiar with
affairs of a horrible character than the people of any other State ; but I
think that this affair attracted far more than an ordinary share of atten-
tion, and aroused far more than an ordinary amount of interest and ex-

citement. I should say that there was far more excitement or feeling in
relation to the matter, than there was in regard to the case of Pen John-
son, who was tried in the same county for the killing of Ferguson in a
duel. I know that most people were talking about it. Many people
were in the habit of talking about it in a very excited manner. The pub-
lic press indulged in several very severe animadversions, or comments,
rather, in regard to the removal of the case from the Fourth to the
Seventh Judicial District. !No; I think I may say that animadversions
is the proper word to use in that connection. I recollect that the public
press denounced the transaction ; and assigned as a reason for the change
of venue, the desire or intention of clearing the defendaut by an unfair
proceeding.

Q. — Was the person whose killing was mentioned in the indictment a
Senator of tlie United States ?
A. — Yes. Sir, he was.

Q. — And was the defendant who was charged with the killing of a
United States Senator in a duel, a Judge of the Supreme Court of this
State immediately previous to the occurrence of the duel ?
A. — Yes, Sir.

Q. — And did he leave the bench of the Supreme Court of this State,
resign his commission as one of the Judges of our Supreme Court, just
before engaging in that duel ?
A. — Yes, Sir.

Q. — State what is the usual practice in regard to the examination of
jurors, and the empanelling of persons as jurymen, in criminal cases
which have excited a general public interest ?

A. — So far as my own practice, and my observation of the practice of
others extends, it has always been, in all cases, the practice of lawyers to
examine candidates for jurymen rigidly, in order to ascertain their precise
mental condition in reference to the case which was to be brought before
them. In every other case which I have ever known, this course has
been pursued. Of course, this must be done, in order that the Counsel
on both sides may know what ground they are treading on. The exami-
nation of jurymen, in every other case which I have known of this
character, has always proceeded at some considerable length. I do not
recollect of any case which ever came to my knowledge, before or since
the time of which I am now speaking, when it has not been the prac-
tice to examine jurymen with particularity in regard to their having
formed or expressed an opinion respecting the guilt or innocence of the
prisoner. I wish to say that I believe that Judge Hardy inquired of the
jurymen as to their legal qualifications ; as to whether they were citizens
of the State, and as to how long they had resided in the county. Out-
side of that, the examination of the jurymen was conducted by the
Attorneys.

Q._\Yas anything asked by the Attorneys as to whether the jurymen
had formed or expressed any opinion in regard to the merits of the
case ?

A. — I do not recollect of a solitary instance of that kind.
Q. — Then, the only interrogatories propounded by the Court, were as
to the residence and'citizenship of the jurymen ?
A. — Yes, Sir.

Q. — And the whole matter ended when, by your watch, it wanted some
little time of ten o'clock ?

Mr. Williams. — Well, if it please the Court, I object to this recapitula-
tion of evidence by the Counsel.

134

Q. — "Was anything said there by the Court, or District Attorney, in re-
gard to issuing attachments for witnesses ?

A. — As to that, I have no conclusive recollection. There might have
been something said in regard to that ; but I think not.

Q. — Did the District Attorney say anything in relation to the wit-
nesses for the prosecution being on their way to the Court ?

A. — He stated, at the outset, that he was either informed, or knew of
his own knowledge — I think that he stated it as a fact — that the wit-
nesses for the prosecution were in the creek, and would be up in a short
time.

Q. — "What were the modes of communication at that time between
San Francisco and San Eafael, the county seat of Marin County, when
these proceedings took place ?

A. — Well, there was the regular steamboat communication, as they ex-
ist at the present time. There was a steamboat that ran daily between
San Francisco and Petaluma, which touched at Point Quentin, which
is at a distance of four or five miles from San Eafael. There was not a
wharf at San Quentin at that period, however. At the same time there
were a number of small sailing vessels which ran up into the " creek,"
to within a mile, or a mile and a half, of the Court House. The steam-
boat always landed at San Quentin. These witnesses were understood
to be expected by a sailboat, and it was said that this boat had actually
arrived in the " creek."

Q. — At what time did they arrive ?

A. — At about one quarter to twelve.

Q. — Do you recollect what was the state of the wind on that day ?
Whether it was adverse or propitious for their getting up ?

A. — My impression is, that it was adverse to their getting up then. I
think they landed at Point San Quentin, instead of coming up the creek;
and came up to the county seat by stage, or other conveyance — a dis-
tance of four miles, or four miles and a half. I know that I went out
when the District Attorney said that they were in the '-creek." and looked
for them. Standing on the balconj^ of the Court House, you look to-
ward the "creek" as I now look, standing where I am, towards the door
of this room ; while Point San Quentin lies off at an angle in this direc-
tion, [pointing] southeasterly. Standing on the balcony j^ou can look
clear down to the mouth of the " creek." So you would be enabled to see
the boat distinctly if it was in sight in the "creek." But as I said, the
yacht which brought these persons up, landed at Point San Quentin. The
place of landing at that point is not in sight from the Court House.
The witnesses came up from Point San Quentin in the stage, and I re-
turned with them to San Francisco, in the yacht.

Q. — At what time do you say that they arrived at San Eafael ?

A. — I think about a quarter to twelve o'clock. It was nearly twelve
o'clock, at any rate — either a little before, or a little after. That is, by
my time.

Q. — All this transpired on the sixth of July?

A. — I could not speak positivelj", from my mere recollection, as to that.
I should have to reckon back from certain days, in order to do that. But
I know, by reference to my memorandum, that this occurred on the sixth
of July. I know that this memorandum was made by me the next morn-
ing after my return from San Eafael. That the trial was had on that
day, I am positive, from reading this memorandum. I know that 1
headed it thus :

135

" District Court, Seventh Judicial District, County of Marin, Jul}^ sixth,
eighteen hundred and sixty. People of California vs. David S. Terry."

Mr. Camphell. — Have you stated everj^thing you know in relation to
this case '/

Mr. ^ha/ter. — Mr. Campl)cll, and Cleneral Williams, as one of the Tritr^
of this case, I feel compelled to state a farther fact, which left a deep im-
pression on my own mind. I think I should state it, whatever may be
its effect, as it is a fact which the Senate is entitled to know. As I un-
derstood, there was one man who sat upon that trial, as a juryman, who
had before sat upon the jury at the time of the trial of Johnston for the
killing of Ferguson. He had openly declared, upon the streets, and in
my hearing, that he would never convict a man for killing another in a
duel, provided the duel was a fair one. I have every reason to believe
and know that information of this fact was conveyed to the District
Attorney, and that he was well informed as to this matter. Another
fact : There was a man on that jury, who, at the time of its empanelling,
was under indictment for murder; and who has, since that time, been
convicted of murder in the second degree ; in whose case there is now a
motion for a new trial, before the Supreme Court of this State. Of course,
the fact that he was under an indictment for murder was known to all
the county officers there assembled. He sat upon that jury ; as did also
the man who had formerly sat upon the jury in the Johnston trial.

Q. — When you speak of the Johnston trial, what trial do you refer to ?

A. — I mean the trial of George Pen Johnston, for killing Senator
Ferguson in a duel, on Angel Island.

Q. — Was the defendant in that case a person who very recently held
the position of Chief Justice of the Supreme Court of this State ?

A. — I so stated.

Q. — Have you now stated everything that you know in relation to this
case ?

A. — I believe I have.

CROSS EXAMINATION.

3Ir. YiiUianvo. — You speak now of certain individuals who sat ujjon
that jury ?

A. — No, Sir. I did not state that I knew of my own knowledge. Of
this I was informed ; I had no personal knowledge of it whatever.

Q. — And you are speaking of mere hearsay ?

A. — As to the fact of that man's being upon the ]\\rj, I speak from
information.

Q. — Do you know whether anj^body told Judge Hardy that this man
was on the jury ? And that this was his condition ?

A. — I have no personal knowledge as to that whatever. But the in-
dictment against this man. Miller, was then pending in that Court. 1
have no personal knowledge that Judge Hardy knew of this fact.

Q. — Judge Hardy was not living there, was he ?

A.— No, Sir.

Q. — That was not his District ?

A.— No, Sir.

Q. — You don't know that Judge Hardy had ever heard of these facts,
do you ?

A. — I do not know that Judge Hardy had ever been personall}^ in-
formed regarding them. I cannot say whether Miller's indictment was
called, and his- trial continued that term or not. I am of Counsel in

136

Miller's case no"vv, but was not at that time- I don't know as Judge
Hardy knew of its pendency then.

Q. — Xow. as regards the custom and practice upon criminal trials.
You sa}^ that it is the practice, rigidly to interrogate every juryman in
an important trial ? Xow is it not the duty of the Counsel on both sides
to make these interrogations ?

A. — Yes. Sir.

Q. — Is it the practice of the Judge ever to make these inten-ogations ?

A. — I did not state it was the practice of the Judge. I don't think
you can infer any rule of practice from the proceedings in that ease. It
was a very remarkable case.

Q. — In criminal cases, is it the practice of the Judge to interrogate
jurors, after they have been accepted both by defendant's Counsel and
the Counsel for the prosecution ?

A. — It is not usual for him to do so ; because, generally, Counsel do
their duty. So far as the practice is concerned, it is evidently the duty
of the Attorneys to make the examinations, and not the Judge.

Q. — By the Counsel on both sides ?

A. — Yes. Sir.

Q. — Did you ever know a case where the Counsel for the prosecution
and the Counsel for the defence were present at the trial — did you ever
know in such a case, in a single instance, a Judge to interfere and take
charge in the examination ?

A. — I have known Judges to interfere and meddle with business that
did not concern them. But the custom is. for Counsel solely to conduct
the examination.

Q. — Xow you speak of one of the jurymen having been challenged.
He was asked whether he was a member of the Yigilanee Committee.
Another was asked if he sympathized with the Yigilanee Committee.
Xow, upon that last challenge, did or did not Judge Hardy then apjioint
Triers to ascertain the competency or incompetency of the jurj'men ;
and were they not tried before those Triers ?

A. — It is possible that I may have become a little confused on that
point. I have no recollection of any Triers being appointed. It is possi-
ble that Triers were appointed in Miller's case ; but I think not.

Q. — I ask you whether, in any one instance, Triers were appointed by
the Judge, and a juryman tried by them as to his competency? You
answer that you have no recollection that any were appointed.

A. — I said tliat I thought there were no Triers appointed; and of
course no juryman was tried by them.

Q. — Xow. b}' way of refreshing your memory, I will ask you — while
the proceeding was pending for the appointment of Triers, did not the
District Attorney admit the challenged ? I mean in the case of Mil-
ler— Frank Millei*.

A. — The juryman whom you refer to was Benjamin Miller. There
were two Millers called on the jury — one was Frank Miller, and the
other Benjamin Miller. The juryman who was challenged on the ground
of having belonged to a Yigilanee Committee, was excused by Judge
Hard}'. I think, without any interposition of the Triers. I am quite sure
of that. I am sure of that, because when a juryman was challenged for
sympathizing with the Yigilanee Committee. Mr. Hoge. of Counsel for
the defence, contended that the same matter was involved as when a
man Avas challenged for belonging to a Yigilanee Committee. Judge
Hardy did not think that it fell within the same rule.

Q. — AVhen the Disti'ict Attorney stated that his witnesses were on

137

their way to the Court House, and before any proceedings were had
before the jury, did not Judge Hardy ask the District Attorney if he
would take out an attachment ?

A. — Well, I cannot say positively, as to that. I have an impression
I that there was an inquirj' of that kind made. I know that the District
Attorney stated that he expected that the witnesses would be there
soon ; he said that they were inside, in the " creek." Perhaps he stated
that it was for the same reason that he declined taking an attachment,
just at that time, if one was tendered to him ; but I do not pretend to
I have any recollection upon that point.

I Q. — Did not the District Attorney state, as a fact, before the com-
I meneement of the empanelment of the jury, that the witnesses for the
prosecution were in the " creek," and were coming up to the Court
House ?

A. — He undoubtedly stated that they were in the " creek ;" and he,
undoubtedly, assented to the case going on — so far as the empanelling of
the jury was concerned. I do not think he suggested that they should
go on; but he assented to it, most undoubtedly.

Q. — I will ask you to state, Mr. Shafter — inasmuch as you have given
evidence that properly pertains to the record — state what the record
shows as to the hour at which the jurors were summoned to appear.

A. — I believe that I stated in my testimony in chief that the case was
assigned for nine o'clock in the morning. The entry shows that on the
second day of the month, a venire was issued, returnable at nine o'clock
in the morning. I see that there were twentj^-five jurors summoned,
instead of thirty or forty. I said that I might be mistaken in regard to
the number. I did not remember as to the venire being issued on the
second of July — only that the case was set for the sixth, and I presume
the jurymen were summoned to appear on the opening of the Court.

Q. — You stated that there was a change of venue from the County of
San Francisco to the County of Marin ?

A. — There is no question about that, of course.

Q. — "Who was District Attorney of this county then ?

A. — Harvey Brown.

Q. — Was Harvey Brown and Judge Campbell both present there upon
the part of the prosecution, when the order for setting the day for trial
was made ?

A. — Well, I do not know as I can say as to that. I think that the
Counsel for prosecution were there on that morning. On that morning —
I must beg leave to say — I went over to San Eafael, with Judge Hey-
denfeldt, to attend to some cases of our own. When we got there. Judge
Hardv was on the bench. As a matter of convenience, the Court ad-
journed over the Fourth of July. As soon as the Court adjourned, I
immediately went and got up my team and started for my place, twenty-
five miles back of San Eafael. You don't mean to ask me whether the
order for setting the trial was made, or not, on that day ?

Mr. WilUams.—Oh, no. Sir, I don't mean that at all. My question is
whether Mr. Brown and Judge Campbell appeared there then against
Judge Terry. Were they not present there on that morning ?

A,— To the best of my recollection, persons representing the prosecu-
tion were in attendance on that day. 1 cannot say whether Judge
Campbell or Judge Brown were in the Court room.

Mr. Camphell. — What time do you allude to ?

A. — Monday morning, the second of July.

Mr. WiUiams.~AX the time of setting the cause for trial ?
18

138

A. — Yes, Sir.

Q. — Were not several witnesses on the part of the j^rosecution, from
this city, there in attendance at that time ? I mean on the second of
July. Was not Mr. Haskell, Mr. Sawyer, and others, present ?

A. — Well, when I go there, I always attend to my own business, and
so I did not attend particularly to this matter. But I am quite sure that
a portion of the witnesses were there on the morning of that day when
the case was set for trial. I have been trying to study out in my mind
as to the different occurrences on those separate days. I know that the
next day I went over to our place, a distance of twenty-five miles. How
long I staj'ed there, I don't know ; but I think I was back on the morning
of the fifth. I think that Judge Hardy tried a case of my own upon that

day. The case was one of vs. McCauley and others. I tried one

or two cases — one, I am certain — in which I was a party plaintiff, and I
think I tried it before this case came on ; because, I recollect particularly,
that I left on the afternoon after the Tei-ry trial, and came back to this
city. I don't think it was possible that I should have time to try that
case, after the Terry trial was closed, and before the hour at which we
left San Eafael.

Q. — On Mondaj', the second day of July, the morning when this case
was set for trial, was it not well understood, and was it not announce(^
distinctly from the bench, that the Court would be opened at nine o'clock,
on the morning of the sixth, in consequence of the necessity which ex^
isted for Judge Hardj" to go to Mendocino County, to hold Court there

A. — I cannot say that. I knew that the Court was going to sit at nine
o'clock, and I hurried back, with Judge Heydenfeldt, in order to be ready-
to attend to my own business at that hour.

Q. — Do you remember how you got that information, as to what time
the Court would sit ?

A. — I do not know whether it was from Judge Hardy, speakiug from
the bench, or from examining the record, that I found out tbis fact. I
do not doubt, however, that it was from hearing the announcement from,
the bench. I do not come away from a Court without knowing when I
ought to get back — that is certain.

3Ir. Camphell. — Are you not mistaken as to there being any Counsel
for the prosecution present on either occasion ?

A. — I am not mistaken with respect to the last occasion — because they
did not get up there.

Q. — Were there any Counsel for the prosecution, there, on the first oc-
casion ?

A. — I could not say whether you or Judge Brown was there. But my
strong impression is that somebody was there, professing to act for the
prosecution.

Q. — Do you remember whether either Judge Brown or myself was
there, at the time when the case was set for trial ?

A. — I could not remember distinctly whether you or Judge Brown was
in the Court or not. District Attorney Haralson was there.

Q. — Do you not know that the District Attorney absolutely refused to
have any assistance of Counsel in that prosecution ? And do you not
remember that there was a good deal of public excitement as to that
fact ? Do you not recollect the correspondence published in the news-
papers in regard to that refusal ?

A. — As I have said before, my recollection is, that some one was there,
on the part of the prosecution, at that time. I know that this matter, of

139

which you speak, was a good deal talked about. I know that District
Attorney Haralson came and talked to me about it.

Q. — Did he state that he had refused to have any Associate Counsel in
the case ?

A.— Yes, Sir.

Mr. Williams. — I was inquiring about the second of July, when this
case was set for trial — before there was any refusal to receive Associate
Counsel. Now, then, the recollection of the witness is not taxed as to
whether Mr. Campbell or Mr. Brown was or was not rejected as Asso-
ciate Counsel — that is not the question. The question is, whether Mr.
Campbell or Mr. Brown were there present on this day — the second of
July, eighteen hundred and sixty?

A. — I do not remember w^hether these gentlemen were there or not.
Somebody was there, ap^^earing for the prosecution, as I recollect.
Whether these persons whom you named were there, or not. at that
time, I cannot say.

Senator De Long. — Was there any clock or time-piece in the Court
room, ordinarily, used there to designate the time of meeting of the
Court ?

A. — No, Sir ; I never knew of there being any in the Court room. I
never observed any time-piece there.

Senator De Long. — Were you there at the time the Court opened on
that day ?

A. — Yes, Sir.

Senator De Long. — Did you have a watch with you ?

A.— Yes, Sir.

Senator De Long. — Did you look at your watch then, to see at what
time the Court opened ?

A. — I do not think that I did. I went in upon the Crier announcing
the Court in session. I presume that the Crier made the announcement
under the direction of the Court.

Senator De Long. — What time was it when the jury were empanelled,
and everything ready to proceed to trial, except the lack of witnesses
on the part of the prosecution ?

A. — By my w^atch, it was seventeen minutes, or fifteen minutes, before
ten. My time varied a little from the time of the clock in Gordon's
saloon, and it varied a little from the time in this city. I know, because
I compared it with both.

Senator De Long. — You say that there was no time-piece in the Court
room ?

A. — No, Sir ; I am positive there was not.

Senator De Long.— I wish to inquire if Judge Hardy stated how many
minutes it lacked of ten o'clock by his watch, when he told the Counsel
that he would wait until ten o'clock before proceeding with the case ?

A.— I think that Judge Hardy stated that it lacked five minutes of ten
o'clock, by his watch.

Senator Crane. — Did he then wait five minutes ?

A. — Yes, Sir.

Senator De Long.—Tl\\Q question I now wish to ask you is this : Did
you at that time make an examination for the purpose of finding out
whether vour watch agreed with other watches besides that of Judge
Hardy?

A.— I have stated that I went over to Gordon's saloon, and looked at
the clock there, and compared my watch with his clock. My watch was

140

a little slower than his. It wanted fourteen or fifteen minutes of ten by
his time, and sixteen or seventeen minutes of ten br my watch.

Senator De Long. — Do you say that his was slower than yours ?

A. — ^o. Sir. His clock was faster than my watch.

Mr. Camphdl. — You have been asked as to whether it was usual for
Counsel to exclusively conduct the examination of jurors. Is it not the
invariable rale in all cases properly conducted — especially in criminal
cases that have excited a good deal of public interest — for the Counsel
for the prosecution to strictly examine witnesses in regard to their bias
or prejudice respecting the case which is to come before them ?

A. — I have never before known a case Avhere this was not done. At
that time I had been in practice twenty years, and never before, or since
that time, did I know of an instance where this examination was neg-
lected.

Q. — In a case where the Counsel for the prosecution neglect to inter-
rogate the jurymen on these points, and the Counsel for the defence
exhibit the same neglect, would it not be proper for the Court to inter-
fere then, and propound those inquiries ?

A. — AVell, a case of that kind I never saw before, or since.

Q. — As a professional man, what do you say it would be the duty of
the Judge to do under such cii"cumstances ?

A. — Well, Sir, the lawyers themselves are divided upon that question.
I think that it is the duty of the Court to try the case according as it is
presented and conducted by Counsel. I think, unless the Judge is satis-
fied from appearances that there is collusion, or that the District Attor-
ney is absoiuteh" incompetent to discharge the duties of his office — as
most undoubtedly was the case in this instance — the Court has no right
to interfere in the premises. I don't know that he should in any case.

Q. — You speak of the incomjDetency of the District Attorney. What
knowledge have you in that respect ?

A. — Well, I never regarded him as competent at any time to try any
case. As for this particular instance, he had been sodden with drink for
a week. I don't know as he was drunk on that morning, but he looked
to me as if he had been drunk for the whole week previous. The habits
of this gentleman are notorious in his neighborhood, and I do not speak
of them from any unkindness of feeling. He is a personal friend of mine,
but these are the facts in this case, which ought to be known.

Mr. Camphell. — From the circumstances of the case, the proceedings in
which you have been describing, what was the duty of Judge Hardy in
reference to the proceedings in that trial ?

Mr. W(7/iams. — Mr. Shatter will have an opportunity to vote on that
question by and by.

3Ir. Camphell. — I withdraw the question.

TESTIMONY OP DANIEL T. TAYLOR.

Mr. Camphell. — Mr. Tavlor. you are County Clerk of Marin County ?

A.— Yes, Sir.

Q. — Were you County Clerk in the year eighteen hundred and
sixty ?

A. — Yes, Sir.

Q. — Have you in your possession hei^e the records and papers on file in
relation to an indictment that was transferred from the Fourth Judicial

141

District to the County of Maviii, in the case of The People vs. David S.
Terry ?

A. — Yes, Sir.

Q. — Will you produce those papers now, if you please ?

[Witness produces papers.]

Q. — Are these the papers referred to?

A.— Yes, Sir.

Mr. Camphtll. — Some of these papers, if it please the Court, we do not
wish to offer immediately in evidence. But we oifer the papers, gene-
rally, in evidence, expecting to use those we deem of importance or per-
tinent to this case. They are all to be considered in evidence, as read.
Let me see the indictment. As there has been some question among
Counsel as to the time when the case was set, I will read the order
setting the case for trial :

The People of the State of California,

vs.

David S. Terry.

Indictment for Fighting a Duel, by previous Appointment and Agree-
ment, and Killing his Antagonist, July 2d, 1S6U.
This action having been heretofore transferred from the District Court
of the 4tli Judicial District, in and for the City and County of San Fran-
cisco, to this Court, for trial, now at this day appeared J. H. Haralson,
Esq., District Attorney of the Count}^ of Marin, on the part of the Peo-
ple, and David S. Terry in person, and by Counsel, and, by consent, it is
ordered that the case be set for trial on Friday, the sixth day of July,
1860.

There was no hour mentioned.

3Ir. Williams. — The Court will take notice that this paper, which has
been engrafted in the judgment roll in the case, does not purport to be
signed by the Judge. The record from which this is originally taken is
the current minutes of the Court. However, that can yet be proved.

Mr. Cnmjiheil. — Well, turn to the minutes of July second.

Mr. Williams. — And read the minutes as they there stand.

Witness. — [Eeading from the Court minutes of July second, eighteen
hundred and sixty :]

District Court, 7th Judicial District, |
Countj^ of Marin. |

Now. on this 2d day of July, A. D. 1860, at the opening of said Court,
a jury becoming and being necessary in said Court for and during this
term thereof, and no jury having been ordered or drawn for this term of
said Court, it is hereby ordered by the Court, that the Sheriff summon,
from the citizens of the county, and not from the bystanders, twenty-five
persons, to form a trial jury for said Court, to appear at the Court room,
in San Eafael, on Thursday, July 5th, 1860, at 9 o'clock, a. m.

And it is further ordered, that the Sheriff summon, from the citizens
of this county, and not from the bystanders, sixty persons, to form a trial
jur}- for said Court, to appear at *the Court room, in San Eafael, on Fri-
day, July 6th, 1860, at 9 o'clock, a. m.

Mr. Camphell — What was the usual hour of the meeting of the Court?
A. — Nine o'clock.

3Ir. Campbell. — Where are the subpoenas in the case for the prosecu-
tion ?

142

Mr. Williams. — You have got the venire.

Senator Crane. — When are the subpoenas made returnable ?

Mr. Camiihell. — They are made returnable at ten o'clock. Some 6f the
witnesses lived in the county, and some of them lived at a distance, out
of the county, which made this order proper. [To witness.] You were
present during the trial of Judge Terry ?

A. — Yes, Sir.

Q. — Do you recollect at what time the jury were empanelled?

A. — I do not, Sir.

Q. — How long after the jury was empanelled, before the verdict was
rendered ? If you recollect, state what was done on that occasion ?

A. — I think that it was between five and ten minutes after ten o'clock
when the verdict was rendered. I think that Mr. Haralson, District
Attorney of Marin County, got up and said to the Judge that he had
issued subposnas for witnesses, and that the subpoenas had not been re-
turned, and that therefore he could not ask for any attachment. He
said that he had issued subpoenas for witnesses, but the subpcxnas had
not been returned, and the witnesses were not present. Therefore he
could not ask for an attachment.

Q. — When were the subpoenas returnable ?

A. — They were returnable on July sixth.

Senator Crane. — When are those subjioenas dated ?

A. — Tlie second of July.

Mr. Campbell. — I will read the subpoena, by request of Senator Perkins
and Senator De Long.

[Mr. Campbell read :]

State op California, Marin County, }

District Court, 7th Judicial District. |
The People of the State of California to Doctor Sawyer, Leonidas Has-
kell, F. A. Holman, C. A. McNulty, Calhoun Benham, Joseph C. McKib-
ben, D. D. Colton, Thos. Hayes, Henry Fritz, J. W. Lees, Legarde, M.
J. Burke :

You are commanded to appear the District Court of the 7th Ju-
dicial District, in and for the County of Marin, at the Court House in
said county, at San Eafael, on the 6th day of July, A. D. 1860, at 10
o'clock, of the forenoon of that day, then and there to testify on behalf
of the People of the State of California, in a criminal action there pend-
ing, between the People of the State of California and David S. Terry,
defendant, on the part of the People.

Given under my hand this 2d day of Julv, A. D. 1860.

J. H. HAEALSON,
District Attorney Marin County.

State op California, )

Marin County. J
The People op the State op California,'
against
David S. Terry. •

The proper aiiidavit having been made by the District Attorney of the
County of Marin, let the witnesses within named attend at the time and
place mentioned in the within subpoena, according to the requirements
thereof.

E. B. FEINK,
County Judge of Marin County.
July 2, 1860.

143

The return is as follows :

Sheriff's Office, }

City and County of San Francisco, j *^'

I hereby certify that I received the annexed subpoena on the 5th day
of July, A. D. 18G0, and on the same day duly served the same on F. A.
Holnian, J. M. McNulty, (or C. A. McNulty,) D. D. Colton, Thomas
Hayes, Henry Fritz, J. W. Lees, B. Lagarde, (or Legarde,) and M. J.
Burke — witnesses therein named — by showing and explaining to every
one of said witnesses, personal!}', in the City and County of San Fran-
cisco, the said annexed original. And further, that after due diligent
search and inquiry, I have been unable to find Doctor Sawyer, Leonidas
Haskell. Calhoun Benham, and Joseph C. McKibben, other witnesses
therein named, within my city and county, and that I am told and be-
lieve that the said Benham and the said McKibben are at present not in
the State of California.

CHAELES DOANE, Sheriff.

By John Hill, Deputy.

San Francisco, July 6, 1860.

Mr. Camphdl. — Do you recollect the time when those witnesses for the
prosecution arrived there ?

A. — I think that they arrived between eleven and twelve o'clock.
They brought over with them the subpoena and the return.

Q. — The return came over with the witnesses ?

A. — Yes, Sir.

Q. — On what day ?

A. — July sixth.

Q. — Was there any motion made for a continuance of the case, on the
ground of the absence of witnesses on the part of the State ?

A. — No, Sir, there was not.

Q. — Was the indictment read, and was the pleading made after the
jury was empanelled ?

A. — No, Sir. He pleaded in San Francisco.

Q. — Who pleaded in San Francisco ?

A. — Judge Terry.

Q. — Was the indictment read to the jury ?

A. — 1 cannot recollect.

Q. — Was there any other business transacted in that Court, after that
trial, on that daj^ ?

A. — No, Sir, I believe not.

Q. — That was the last business done ?

A. — Yes, Sir.

Q. — Did you see Judge Hardy and Judge Terry together at any time
during that day ?

A.— Well, Sir, that is a small town. They might have been together.
Almost everj^ person runs against his neighbor there some time in the
day.

Q. — Did you see them together?

A. — Not to the best of my recollection. I saw them together during
that term, but not during that day. Not that I recollect of.

The Attorney- General— V>'v\. Judge Terry and Judge Hardy both leave
town on that day ?

A. — I cannot say whether they did, or did not.

Q. — Do you know whether Judge Hardy left on that day ?

144 I

A. — 1^0, Sir, I do not know. I am inclined to think, however, that
the}^ both did leave on that day. I am not positive. I would not like
to swear to it.

Q. — Was there any objection made to the case going to the jury, on
the part of the prosecution ?

A. — No. Sir; none whatever. Mr. Haralson stated that he had issued
subpoenas for witnesses, and that they had not been returned, and that,
therefore, he had no ground to ask for an attachment.

Q. — How long were the jury out?

A. — They did not leave the box.

Q. — Will you read the record of the verdict which they rendered ?

[A\"itness read :]

In the District Court of the Seventh Judicial District, Marin County,
July term, 1860. July 6th, 1860:

The People of the State of California, ") Indictment for fighting a
vs. > duel by previous appointment

David S. Terry. J ^""^^ agreement, etc.

This cause being regularh'- called for trial. J. H. Haralson, Esq., Dis-
trict Attorney of the County of Marin, appearing on behalf of the Peo-
ple of the State of California, and David S. Terry, the defendant, ap-
pearing in person and by Counsel, the following named persons were
duly sworn and empanelled as a trial jury : Jacob Short, Matthias Blow-
ers, Grilbert Leonard, Parker W. Coard, James B. Stafford, Benjamin
Miller, Ci. King, Jonathan Bickerstaff, James Olcott, Solomon Helser,
Charles Sautf, Hiram J. Xott.

And the case was submitted to said jur}', who returned the following
verdict, to wit :

" We, the jury, find the defendant not guiltv-

" GILBERT' LEON AED, Foreman."

And thereupon, by direction of the Court, the verdict was recorded.

Senator Crane. — Was any suggestion made by any one, in your hear-
ing, that upon a little delay the witnesses for the prosecution would pro-
bably arrive ?

A. — I think that Mr. Haralson, as Mr. Shatter stated, said that the
witnesses were in the - creek ;" or that he heard that they were. I
think that he stated that they were in the creek, in a small boat.

Mr. Williams. — Was that before or after the empanelling of the jury ?

A. — It was after. Mr. Haralson said, upon his own authority, or
else he stated what he had heard, that the witnesses for the prosecution
were in a small boat in the " creek." Judge Hardy looked at his watch
and said that it was not yet ten o'clock. It lacked so many minutes. I
don't know how many. He said : " I will wait until ten o'clock."

Senator Crane. — Did they wait ?

A. — Yes, Sir; I think the}^ did. 1 did not myself know precisely
what time it was. I heard afterwards that it was after ten when the
case was given to the jury ; and some said that it was not ten.

Senator Crane. — Did not the District Attorney, Mr. Haralson, make
any distinct application for delay until after the witnesses should ar-
rive?

A.— No, Sir.

145 .

Mr. CampheU. — In regard to tlie list of jurors — how were tbey made
out ?

A. — I called them off from the original venire. I read the first twelve
names.

Q. — No names were drawn from the box?
I A. — No, Sir. That was waived by both parties.

Q. — Who made that original list '(

A. — The Sheriff, I suppose. I know it was in his handwriting.

Q. — Who is the Siieriff of Marin C»unty?

A.— Mr. V. D. Doub.

[Several papers were handed to the Presiding Officer, to be marked as
placed in evidence.]

Q. — Is the list in th^ Sheriff's handwriting ?

A. — No, Sir; it is in my handwriting. The return is in the Sheriff's
handwriting.

The Presiding Officer. — What are these pencil marks? [Pointing on
the venire.]

A. — These [pointing] were selected as jurors. [Showing a mark on
the venire, which served to designate the chosen jurymen.]

The Presiding Officer [the witness, Mr. Taylor, being ill,] read the list
of chosen jurymen.

The jurymen were as follows: Gilbert Leonard, [Foreman,] Jacob
Short, Matthias Blowers, Parker AV. Coard, James B. Stafford, Benjamin
Miller, (r. King. Jonathan Bickerstaff, James Olcott, Solomon Helser,
Charles Saufl^, Hiram J. Nott.

Mr. Pcrkina. — I understand the witness to slate that the first twelve
men on the venire were called and sworn in as jurors? ,

A.— No, Sir.

The Attornei/- General. — The first twelve men on the venire were first
called up by agreement?

A.— Yes,' Sir.

The Altorneji- General. — IIow came they to waive the box?

A. — Well, Sir, they agreed to take the first twelve names. The first
twelve nanics Avere called, and those who answered went into the jury
box to be examined.

Judrje Ilardy. — The first twelve names on the venire did not compose
the jury, did they?

A.— No, Sir.

CROSS EXAMINATION.

Mr. Wi^/iam.<t. — You were inquired of, whether you saw Judge Terry
and the Respondent here, together during the term. Your first answer
was, that almost everybody there was together, more or less. You had
seen them together during term time, but not on that day. Now, did
you ever see them during that term time together alone ?

A. — No, Sir.

Q. — When the jury had been empanelled and the defendant's Counsel
was pressing on the trial, was nrging progress in the cause, did Mr. Har-
alson, the District Attorney, on being called on by the Judge and asked
whether he would take out an attachment, say that he had exhausted all
the power he possessed; that it had not been sufficient; that his sub-
poenas had not been returned; and that therefore he could not ask for an
attachment ?

A. — I think so.
19

Q. — Arc you certain that he stated that he had exhausted all his
power, and therefore could not ask the Judge for an attachment ?

A. — I think he said that the subpoenas had not been returned, and
that therefore he could not ask for an attachment.

Q. — I believe you have already stated that the subpoena came over
with the witnesses?

A.— Yes, Sir.

Q. — This case had been presented in San Francisco County, had it
not ?

A. — Yes, Sir.

Q. — When the case was called there to be set for trial, was not tho
District Attorney of San Francisco, together with ^Ir. Campbell, there
present in Court '. I mean, the tirst day ''.

A. — I don't recollect whether Mr. Brown was tliere or not, as an At-
torney in the case.

Q. — He was there present, was he not ?

A. — Yes, Sir.

Mr. Campbell. — [After consulting with General \Yilliams.] I am re-
quested to state, by gentlemen on the other side, that, as far as these
subpoenas are concerned. the^/-.s/ subpoenas were filled out by me. I was
then a partner of Mr. Brown, who was then District Attorney of San
Francisco County. They were brought over by me, and handed to the
Sheriff for service. As far as the second subpoenas were concerned,
when I went over there, on the second of July, for the purpose of attend-
ing to the case, Mr. Haralson, the District Attorne}', utterly refused to
have any associate in the case. I then furnished him with the names of
witnesses, and filled these names into the subpoena, which he then issued.
These rftimes were in the subpoena which Avas brought over by the wit-
nesses who came over in the boat. The names are in my handwriting

Mr. Williams. — [To Mr. Campbell.] I will ask you to state if you ever
communicated to Judge Hardy the fact that you were rejected by the
District Attorney, as Counsel in that case?

Mr. Campbell. — I do not think that I ever did. After filling in the sub-
poenas. I immediately came over to San Francisco. Then, in order tp
set ourselves right before the community, Mr. Brown and myself jointly
addressed a letter to District Attorney Haralson, on this subject, in
which we again stated that our services were at his disposal in that case.
We had had charge of the proceedings here in San Francisco, and were
willing to aid in the prosecution there. We received a rej)ly from Mr.
Haralson, declining our services. These communications were published
in the daily papers.

3Ir. Williams. — Were you and Judge Hardy together during the latter
part of the day, after the Court adjourned?

Mr. Campbell. — I saw him in the latter part of the day. I talked with
him a very few minutes.

Senator Crane. — Do j'ou know whether Judge Hardy knew that you
had been refused as Counsel ?

Mr. Campbell. — I do not know that he did. I am not aware of having
said anything to Judge Hardy about it myself I think I did not. My
impression is that I did not. In fact. I am pretty certain that I did not.
I saw Judge Hardy over there that day, I know ; but I did not say any
thing to him in regard to that matter.

Mr. Edgerton. — I am requested by a member of the Court to ask
whether the District Attorney interposed any challenge whatever in that
case to any juryman ?

147

A. — I think not, Sir.

Q. — I iuu farther asked to inquire of you whether there was more than
one suhpdMia made on behalf of the State ?

A. — There were two. They are both here. One is dated in June, re-
turnable on the second of July. 1 believe the witnesses were all there
then.

Q. — Did more than one subpoena for witnesses issue for the sixth of
July?

A. — I did not issue that subpoena myself. I mean the subpcjcna for the
prosecution. The District Attorney issued that. I know of only one
Bubpoena.

iSenator Crane. — You mean on the part of both sides ?

A. — No, Sir. On the part of the State, only. I issued the subpoenas
on the part of the defendant myself.

^fr. Eljerton. — A member of the Court a<^ain desires to know whether
the witnesses for the prosecution were there on the second.

A. — Some of them were there on the second.

Senator Crane. — And was it on the second of July that the trial was
fi.Kcd for the sixth of July?

A.— Yes, Sir.

Senator Perkins. — What was the form adopted in summoning the jury ?

A. — Well, there was no order for a drawn jury. The Shcritf went and
summoned a jur}- right around the town. We did not know then that
any criminal ca«e was coming on that term. This was before the change
of venue took place. Judge McKinstry had left for Europe, and had not
left an order for a drawn jury.

Mr. Edijerton. — Is not that the business of the County Judge ?

A. — No. Sir ; I think not. The District Judge has been in the habit
of doing it in our county.

The Attorney-General. — That occurred before the change of venue, did
it not ?

A. — O, yes, Sir; that is what I have said.

Mr. Edijerton. — Do the records show the hour of the day when this case
was set for trial ?

A. — No. Sir. The hour for the trial is not set; the rfay is only men-
tioned. The hour when the jury were summoned to appear is stated.

Q. — Do not the records show the hour for which the trial was set ?

A. — No, Sir. The record does not set any hour for the trial.

Mr. Wit/iams. — Is it usual to name the hour, when a case is set for a
certain day ?

A. — I have done it — yes, Sir.»

Q. — Is that the practice, generally ?

A. — Yes, Sir; before Judge McKinstry it is.

Q. — For a particular hour ?

A. — No, Sir ; I did not mean that. For a particular day, but not for
a particular hour.

Q. — For particular days, it is ? , , .

A. — Yes, Sir ; it is.

Q. — When you state that a case is set for a particular hour, you mean
a particular day ?

A. — The day is named, but not the hour. When a case is set for a
particular day, it generally comes on at the opening of the Court.

Q. — And the next case on the docket comes after it ?

A.— Yes, Sir.

Q. — Without there being any particular hour mentioned ?

148

A.— Yes, Sir.

Senator Crane. — Was there more than one case set for this day ?
A. — No, Sir; thei'e was no other case. •

The witness testified that the "Judgment Roll" was an exact copy of
the regular record of the Court during the time specified.

REQUEST FOR AN ATTACHMENT.

Mr. Campbell. — There is another witness summoned here, who is an
officer in the other House. It is Mr. J. H. Finnigan, Clerk of the Ser-
geant-at-Arms of the Assembly. He is not here to respond to the sum-
mons. He has been about here to-day. We have not been able to find
him within the last hour or two. I hold in my hand the subpcena for
this witness, Avith a return upon the back of it, made by Mr. Patten, who
is authorized by the President to serve these processes.

Mr. Campbell read the return made by Mr. Patten, and then asked for
an attachment against Mr. Finnigan.

ADMISSION.

Mr. Williams. — The date of Judge Hardy's appointment, and the time
of his taking his seat under his commission, is admitted by us as it ap-
pears upon the records of his Court.

END OF TESTIMONY IN CHIEF FOR THE PROSECUTION.

Mr. Camphell. — With the exception of Mr. Finnigan, I believe we have
no other witnesses to offer.

The Attorney- General. — [To Mr. Williams.] You will allow us to call
another witness, will you not ?

Mr. Williams. — O yes, of course.

The Attorney- General. — Then the State rests her case with the under-
standing that we are to have the privilege of calling Mr. Finnigan, and
one other witness on the same point, under specification number six of
Article fifteen.

Mr. Williams. — Who is the " other witness ? "

3Ir. Campbell. — Leroy Fisher is his name.

Mr. Williains. — It is understood that you can examine Mr. Fisher, if he
is introduced to-morrow. You can examine Mr. Finnigan at any stage
of the case.

The Attorney- General. — Then the State Jests her case.

The Court then adjourned until Friday morning. May second, at eleven
o'clock.

TESTIMONY

IN THE

TRIAL OF JUDGE J. H. HARDY.

FIFTH DAY— MAY 3, 1863.

TESTIMONY FOR THE PROSECUTION.

TKSTIMONY OF J. H. FINNIGAN.

J. H. Finnigan, being called and sworn, testified as follows:

Mr. Camphell. — Where do you reside, and what is your business ?

A. — At pi-esent I am residing here. I am Clerk to the Sergeant-at-
Arms of the Assembly.

Q. — L>o you know the Respondent, Judge Hardy?

A. — Yes.

Q. — Did you see him in Sacramento at any time, about the first or
second of April, eighteen hundred and sixty-one ?

A. — I cannot tell the precise dates. I saw him there during pretty
much the whole session of the last Legislature.

Q. — State whether on any occasion you heard him make use of any
expression, or give any toast, in a public bar room there, and, if so,
what was it ?

A.— He did.

Q.— What was it ?

A. — It was on the day that the Senate and Assembly sat in Joint Con-
vention. It w'as on the day of the election of McDougall. Mr. Gray,
who was Sergeant-at-Arms of the House, after they adjourned asked me
to walk down with him and see General McDougall. On our way down,
we stopped in the St. George hotel. Mr. James H. Hardy was there, in

150

company with Mr. Botts, Dr. Aylett, General Crittenden, and others.
I went in as far as the cigar stand, which is on the right hand of the
door, entering from the office. Those gentlemen were in a drinking atti-
tude, with glasses in their hands. I believe the glasses had liquor in
them — I did not taste to see. Mr. Hardy proposed, " Health, long life
and prosperity to Jetf. Davis, and the perpetuation of the Southern Con-
federacy. May his name be as immortal as that of Washington." That
is the substance of it.

Q. — State what then happened ?

A. — Judge Hardy turned around and saw me, and said, "Halloo, John-
ny !" 1 said, " How are you. Judge?" We walked over towards the
cigar stand. I said, " That is nice language for you to use." Said I.
"Jim, if you drink that toast I will make you drink the tumbler with
it." He put his head down and said, " It is all in fun." Upon that. Mr.
Gray came to me and said, " Let us go down and see McDougall." Not
deeming it worth while to stay, I left the place. Whether they drank
the toast or not, I do not know ; I did not stay to see.

Q. — Do you recollect the names of the other parties there with Judge
Hardy ?

A. — I am not positive whether Mr. Laspeyre was there or not. But
I know General Crittenden was.

Q. — Do you know whether Chandler was there ?

A. — Yes. They ^ere at the lower end of the bar, facing Fourth street.
There were a good many gentlemen in the room at the time, at the
upper end of the bar. Who they were I do not know, being somewhat
sideways from them.

Q. — -The Mr. Botts you speak of, is Charles T. Botts, is it not?

A. — That is the name. It is the old gentleman. He used to be State
Printer.

Q. — Do you know the political sentiments of those gentlemen in whose
company Judge Hardy was proposing this toast ?

A. — I could not say, farther than their being Breckinridge Democrats.
That is the way they classified themselves at that time.

Q. — You do not know how they stood on the Secession question ?

A. — There were a few men there, who I know did not stand very light
on the Union question.

Q. — What Crittenden is this ?

A. — The one who is now fighting in Dixie. He used to be Senator.

Mr. Rhodes. — I never knew he had got to be '•' General."

Witness. — Well, that is what they call him down South.

Mr. Camphell. — You say he has gone South ?

A. — Yes. He is there now.

CROSS EXAMINATION.

Mr. WiUiams. — Cannot you fix the time of this occurrence you have
testified to, a little more distinctly than you have done ?

A. — I think I can fix it, by referring to the Journals of the Assembly.

Q. — You have to fix it by the date of the election of General McDou-
gall as United States Senator ?

A. — Yes. on that day.

Q. — Which day do you mean ? There was an election, and then there
was some doubt of the regularity of it, and they went through the pro-
cess again. Xow which of those days was it ?

A. — I am talking of the day General McDougall Avas elected.

151

Q. — The first election, or the last ?

A. — His final election, I think it was. I cannot be positive about that.
1 know it was the day he was declared elected. I can fix it between
this and Monday, for you, I think.

Q. — Can you swear that it was on either of those days ?

A. — I have already sworn so, Sir.

Q. — You swear positively, then ?

A. — I have sworn it was on the day Gen. McDougall was elected.

Mr. Wiffiams.—l ask you — Will jou swear that now ?
Wifncsfi. — I have, I tell jon.

Mr. Williams. — I ask you now, whether you are at this moment certain
that it was on either of those days ?

Wifneas. — I told you once, that I was not certain which of them it was.
I told 3^ou it was one of the two days.

Mr. WHlidms. — I just asked j^ou if you Avere certain that it was on
either of them, and your answer is, '• I Avon't be certain on which." I
am fl^oing to have a little more definite answer.

Witao^a. — 1 don't know how vou are going to get it.

Mr. Williams.— \\c\\, I will try.

Witrie^a. — Well, iry. You can't get it from me. I told yon I would
furnish the date between this and Monda}'.

Mr. Williams. — What I want to know now, is : if you are positive, at
this moment, upon reflection, that it was on either of the days when this
])rocess of the election of (Tcneral McDougall took place ?

A. — Y'^es ; I am positive about that. On that I, am positive.

Q. — You testified before the Committee of the House in this prosecu-
tion, did you not ?

A.— Yes ; I did.

Q. — Did not j'ou then swear positively that Mr. Laspeyre was present
at that drinking ])arty ?

A. — I said he was there.

Q. — Y''ou said he was there ?

A. — Yes ; I did. I swore so. I can almost swear positivel}" to that
now, but I would not be certain of it. I think I can prove this conclu-
sively. I will send to the Hill and get the letter they refused to publish,
and I will get them to send down a copy of the Calaveras Chronicle ;
and then I will give you names and dates.

Q. — How long have you known Judge Hard}'?

A. — Since the latter part of eighteen hundred and fifty-seven.J

Q. — Where did 3'ou first meet him ?

A. — I met him somewhere in Carson, Calaveras County.

Mr. Williams. — I did not get your answer distinctly.

Wiiiicss. — I met Judge Hardy on the Carson road, in eighteen hundred
and fifty-seven. He was on some law business, or something of that
kind ; I do not know what.

Q. — Do you mean the road from Calaveras to Carson Yallej?- ?

A. — Xo, Sir; the road going to Eobinson's Ferry.

Q. — Where did Judge Hard}' live then ?

A. — I believe he was residing at the Hill.

Q. — Did you reside there at that time ?

A. — No, Sir. I resided at Carson ; was mining there.

Q. — When did you next meet Judge Hardy ?

A. — Oh, I met him on several occasions.

Q. — How many can you remember ?

152

A. — I could not put them together. I have met Judge Hardy, I sup-
pose, one hundred times since ; as much as that.

Q. — How many times had you met him before the last session of the
Legislature ?

A. — A great many times.

Q. — Were you not introduced to Judge Hardy by Mr. Gray, during
the last session of the Legislature?

A. — I^^o, Sir. I was introduced to Mr. Hard}' by Mr. McLaughlin, I
think; Mr. McLaughlin being in company with him. No; it was some
man from tlie Hill. Judge Hardy was coming from Robinson's Feny,
and I was taking a load of hay down to the Ferry. I think Mr. Hardy
recollects it as well as I do.

Q. — That was the first time you were introduced to Judge Hardy ?

Yes.
— When was that ?

■That was in eighteen hundred and fifty-seven.

And you have seen him frequently since that time ?

Yes.

Have you been upon prett}' ftimiliar terms of acquaintance ?

Always. l*^ever knew anything different from it?

[Counsel for the Prosecution rested their case.]

153

TESTIMONY 'FOE THE DEFENCE

TESTIMONY OF THOMAS LASPEYRE.

Thomas Laspejre, being called and sworn, testified as follows :

Mr. Williams. — Did you hear the testimony of Mr. Finnigan, the last
witness for the prosecution ?

A. — Yes.

Q. — Were you ever present at the St. George hotel, in Sacramento,
upon an occasion when any such transaction took place as was detailed
by Mr. Finnegin ?

A. — I was not.

Q. — Do you remember the day when General McDougall was elected
United States Senator ?

A. — I do not remember the exact day.

3Ir. Williams. — I do not ask you the date, but whether you recollect
the time as a fact ?

Witness. — Yes. I remember the time as a fact.

Q. — Do 3'ou know whether Judge Hardy was in the City of Sacra-
mento at that time or not ?

A. — I do not know whether he was or not.

Q. — Do you know of his having been there ?

A. — Judge Hard}- was llicre during the winter, a great deal.

Q. — Have you any recollection of the affirmative — that he was there
during that time ?

A. — Xo. Sir. I have not.

Q. — Have you not been on terms of intimacy with Judge Hardy ?

A. — Yes. We have been on very friendly terms.

Q. — Have you been with him a good deal ?

A. — Yes. I have been with him considerable. I have been quite inti-
mate with him the last three years.

Q. — Were you with him a good deal during the last session of the
Legislature ?

A. — I met him very frequently ; met him at the Legislature and in the
St. George hotel.

Q. — You have drank with him.

A. — I suppose I have drank with him ; I think so.

Q. — Have you drank with him when toasts were drank ?

A. — I have no recollection of ever having drank with him when toasts
were drank. I think I never did.

Q. — Did you ever hear Judge Hardy utter any such sentiments as are
attributed to him by the last witness ?

3Ir. Campbell. — We object to that. It must be limited to the j^articular
time.

'3Ir. Williatm. — We propose, Mr. President, to contradict this whole
pretended case of Judge Hardy's disloyalty. We propose to contradict,
20

154

to a great extent, by numerous witnesses, the charges as to Judge Har-
dy's expressions, except in cei'tain instances, which we will explain to
the satisfaction of this Court; and we propose to begin with this wit-
ness, who has been on terms of intimac}^ with the Eespondent, drank
with him, conversed with him, and been with him on all occasions when
he (the Eespondent) would be likely to msfke use of such expressions, if
he ever made or felt disposed to make them. And then we propose to
follow it up with the evidence of as many witnesses as this Court will
allow us to call; among them, those who have known Judge Hardy
best, who have been on the warmest and most intimate terms with him,
and who know his actual and real sentiments on this subject. And
we propose to prove, to the satisfaction of this Senate — and shall prove,
if I am not misinformed — that this charge of disloyalty is an entire mis-
representation as to Judge Hardy's sentiments. We propose. Sir, to be-
gin now; and honorable Counsel meet us with an objection to our proving
this — to our proving that Judge Hardy has not, in any of those instances
w^here he would be most likely to, if ever, made use of such expres-
sions, but, on the contrary, has expressed precisely opposite sentiments :
that he has not only expressed them by words, but by acts ; that when
the Sheriff, or some other officer, of one of the counties of his District,
came to the Eespondent, and said that he understood he (the Eespond-
ent) was opposed to having the Stars and Stripes run up over the Court
House, and that he (the Eespondent) had said he would not preside as
Judge under that banner, the Eespondent told him it was a vile slander;
that he (the Eespondent) thought it exceedingl}^ proper and appropriate
that the flag should float over the seat of justice ; inquired how much
money it took to pay for it — was told — looked at the subscription list to
see who had subscribed, and how much — and said : " I will give more
than any man on the list, and you shall run up j^our flag; I want it
there." We propose to follow uj) this proof; and I give Counsel notice
of it now, in order that they may not meet me with objections. We
have sat here, and listened to with patience, and allowed, without a sin-
gle objection, testimony in regard to everything the opposite Counsel
have pleased to attempt to prove Judge Hardy ever said, drunk or sober,
in joke or in earnest; and now, after all this, we see that we are to be
opposed when w^e undertake to show this to be all false, and that Judge
Hardy is as loyal a man as any within the sound of my voice. In so far
as this Secession question is concerned, when w^e now propose to prove
that by words, deeds, and thoughts — so far as they can be expressed —
the Eespondent is, and has been, loj^al, we are met here, in detail, by an
objection to each question which intends to call out an answer showing
the falsehood of this charge of disloj'alty.

I make this statement, beyond what is called for by the specific objec-
tion, in order to avoid the necessity of expending time in arguing objec-
tion after objection to each question upon this subject, as it comes up. I
have done everything in the way of abstaining from objections, for the
purpose of hunying through this case; and I want now, once for all, to
say all I have to say on this subject, if I can, in order that we may bring
this trial to a close. I do not censure the Counsel for making these ob-
jections, if he deems it his professional duty ; but I do ask that this Court
may sustain me, and sustain me in the general line of evidence which I
have stated and now propose. I have stated the nature of the evidence
I desire to introduce. The opposite Counsel meet me, and object to my
questions ; and now, once for all, I ask this Court to decicle Avhether we
can offer the proof we propose, showing w^hat have been Judge Hardy's

155

declarations and acts, and what has been Judge Hardy's conduct upon
all occasions 5 whether he was a rebel, or a loyal man to the country, at
heart. I do not expect to prove that the Eespondent is a Eepublicanj I
do not expect to prove that he belongs to the party called Union Demo-
cratic. I know that he has been to some extent identified with the
members of the Breckinridge Democratic party ; but I believe it will
come out that he did not vote the Breckinridge ticket last Fall. I be-
lieve it will come out that he would not vote for the Breckinridge candi-
date for Governor, but voted for the Union Democratic candidate.

Judge Ilardij. — [Interrupting.] For Congress.

Mr. Wii/iainn. — [Continuing.] I am not going to state in detail what
I am going to prove. I did not and will not open this case. I have
already seen, in the mode of opening this case, on the part of the Prose-
cution, sufficient to satisfy me of the propriety of making openings and
anticipating what is to come out in evidence, and then launching into a
hifalutin speech, assuming those were the facts, unchecked by evidence,
and unchecked by truth. I am not going, Sir, to take any such course.
I only beg the indulgence of the Court for these few moments which I
have consumed for the mere purpose of having these abstractions, preju-
dicial to us, once and for all crashed down, in order that I may go on
with my case undisturbed.

Mr. Edijerton. — Mr. President: I suppose. Sir, that the only question
before the Court at this time, is purely one of law — that it is a legal pro-
position ; and, ti'eating it as such, I shall make no reply to much of what
the gentleman (Williams) has said. I understand his proposition to be
this : That, under the specifications that are alleged against the Eespon-
dent, they may prove general character, as a defence.

Mr. Williams. — No, Sir.

31r. Eihjrrton. — That certainly is what I understood General Williams'
proposition to be yesterday.

Mr. Williams. — Then you misunderstood me, entirely.

Mr. Edgerton. — I understood the gentleman's proposition to be : That
those were specifications tending to a general result — to establish the dis-
loyalty of the Eespondent; and that they might meet and rebut that by
testimony tending to establish that his general character, so far as he
possessed a general character, was that of loyalty. If that is not so,
then I do not understand the aim of, and effect sought to be produced
by, this testimony. If that is not the object of it, why are they seek-
ing to prove, that on other occasions, and under other circumstances
than those mentioned in the specifications, the Eespondent may have
used loj^al language, and expressed loyalt}- to his Government? Now,
Sir, the proposition of the gentleman, I deny; and the objection to the
proposition is this : That words spoken, whether they be spoken merely
for the purpose of bringing the Government into ridicule, or into con-
tempt— words such as are charged in these specifications — constitute
seditious language ; and that each of the specifications here alleges lan-
guage which of Itself amounts to a misdemeanor at common law. It is
seditious ; indictable and punishable as such — as a misdemeanor, at com-
mon law.

Mr. Williams. — It does not seem to me a proper time to discuss that
question.

Mr. Edgerton. — It seems to me. Sir, that is the only question between
us.

3Ir. Williams. — We will discuss what the law on sedition is, when we
come to sum up the case.

156

The Presiding Officer. — The proposition of the defence is this, as 1 un-
dei'stand it : Shall the Respondent be permitted to prove his language
and conduct in relation to the General Government, which language and
conduct were not alluded to or brought out, by the prosecution ? ^

Mr. Williama. — No, Sir. That does not express it fully.

The Predding Officer. — Please to put me right, then.

Mr. Williams. — The correction can be made by the insertion of a line;
perhaps half a line. I propose to prove that on other occasions than those
alluded to in the case for the Prosecution, the Eespondent said and did
so and so in this particular.

The Presiding Officer. — That is precisely what I put down.

Mr. Williams. — We propose to prove, in regard to, not the precise occa-
sions siiecified, but other occasions than those mentioned. Then your
Honor can add to your statement : " Upon all occasions except those
mentioned by the witnesses for the Prosecution, and upon some of those."

The Presiding Officer. — The occasions and language brought oat in the
testimony for the Prosecution, there is no doubt at all as to your right
to meet.

3Ir. Edgerton. — We do not question that.

The Presiding Officer. — [To Mr. Williams.] But the thing you intend
to prove is not that called out in the testimony for the Prosecution. It
is other language used on other occasions.

Mr. Williams. — I have no objection to putting it in that form, for the
purpose of seeing if we are to be permitted to make our defence here.

Mr. Pixley. — [To Mr. Williams.] You desire to prove the Eespondent's
general reputation in this particular ?

Mr. Williams. — No, Sir. That is what other people think of him.
What Ave wish to show is, his general walk and conversation, as con-
nected with this question of loyalty.

Mr. Edgerton. — Suppose a party is prosecuted in a civil action for slander
— and I apprehend the rule to be the same in a case of slander on the Gen-
eral Government as in a case of slander on a private person — and the
time, place, and fact of the utterance of the slanderous language are
clearly proven ; would it, I ask, be competent for the defendant to prove,
for a defence, that at other times and places he had used respectful lan-
guage in regard to the plaintiff?

Senator Merritt. — Allow me a moment. Your witnesses do not define
the time at all. Finnigan says, " upon the occasion of the election of
Gen. McDougall ;" but does not say which occasion — there having been
two elections of that gentleman.

3Ir. Edgerton. — It is stated in the Articles that it was on one of those
two occasions.

3L: Williams. — I hope the Articles are not going to be taken for evi-
dence.

Mr. Edgerton. — One word more. It makes no difference whether the
Eespondent is loj^al or not, if he slanders the Government. If he utters
seditious words, he is responsible in a Court of Law, and responsible
here. It was said in regard to libel — and I do not know why the prop-
osition should not be true in regard to slander on the Government :

" Whether the defendant really intended, by his publication, to alienate
the affections of the people from the Government, or not, is not material ;
if the publication be calculated to have that effect, it is a seditious libel.
In the language of a still greater authority, ' If men shall not be called
to account for possessing the people with an ill opinion of the Govern-

157

ment, no Government can subsist; nothing can be worse to any Govern-
ment than to endeavor to procure animosities as to the management of
it; this has always been looked upon as a crime, and no Government can
be safe unless it be punished.' " — (Wharton's American Criminal Law,
section 2551.)

Now, I care not — I will go to that extent — what was the intent of the
Eespondent. If he has been guilty of circulating these slanders upon
the Government, and, by the evil example that he has set up, been the
means of bringing the Government into obloquy, into disrepute, and into
contempt, and alienating the affections of the people from it, he certainly
is responsible in this case. We think the testimony proposed is objec-
tionable, and ask that it may be excluded.

Mr. CamphcU. — As this class of testimony probably will occupy some
time, if it is admitted, I desire to sa}' a single word in relation to it.
I understand the rule to be this : That where we have given evidence on
any of these charges, the Respondent is at liberty to contradict the
charge made in tliat particular — that he made such and such an assertion
— that he, for instance, said " Here's to Jefi*. Davis and the Southern Con-
federac}' ! " — the defence may contradict that, by showing that the He-
spondent did not say what the witnesses have attributed to him; or he
may explain it by other circumstances surrounding it at the time and
taking ])lace at the same moment, and by other matters in the same con-
versation, which would go to explain it. But where a man, for instance,
utters treasonable sentiments, publicly, to one set of persons, it is not suf-
ficient, nor is it competent for him to prove that at some other time and
some other place, he made declarations of a different character to other
parties. If a man is charged with the crime of stealing, and confesses
that he committed the theft, he cannot bring in evidence that at other
times and other places he stated that he did not committ the larceny,
and in that way weaken the force and effect of his confession. The ad-
mission of this class of testimony would necessarily make a case never-
ending. For instance : if the Respondent is allowed to produce ten,
twenty, or one hundred witnesses, to prove various loyal declarations
made by him at various places and times, we, by way of rebuttal,
would be necessarily compelled to go outside of the specifications and
issues raised by the pleadings, and bring evidence here of other disloyal
declarations made at different times and different places. We would thus
have, not the issues of the Articles of Impeachment, but a series of new
issues, presented here for the first time, which this Court is not convened
to try, and which we could not be prepared to meet. For instance : sup-
pose that General Williams should prove that on some day, at Stockton,
Judge Hardy made a loyal speech; how could we be prepared to meet
that 't We have no notice of it from anything in the pleadings; we have
no idea that any such proof can be proposed, or can be received; we could
not bring witnesses from that same place to deny the statements which
any Avitness might make upon this stand, upon the same subject; in fact,
if this class of testimony is admitted, you at once raise a series of issues
additional to the pleadings, and outside of the issues we are here prepared
to try. The true system and true rule is this : That where we have proved
the facts in relation to this charge, then it is open for the Eespondent
either to disprove the fact which we have proved — that he has on these
various occasions made these declarations and these statements, or pro-
posed these toasts — or it is open for him, if he desires to do so, as in
other cases, to give proof of' general reputation for loyalty. That proof

158

is open to him. But he is limited there to a contradiction of the speci-
fied fact here charged, or to testimony in regard to general reputation.
There is no authority anywhere, no rule which goes beyond this. And
I submit that this is the true rule of decision here ; that if we go into
this kind of testimony, there is no end and no limit to the case ; that we
go into an entirely new field; that we have entirely new issues, which
neither i^arty has any notice of. Tbey, on their side, may get in proof
of a thousand circumstances, transpii'ing at a thousand places, in regard
to which we cannot possibly be prepared with proof And. on the other
hand, when they have gone througli with their testimony, it would be
open to us to rummage throughout the whole State of California to find
persons to rebut the proof thus brought against us. I submit whether
these are issues we are here prepared to try.

Mr. PLdey. — Perhaps there may be no more appropriate time than now
for me to illustrate that I am in this case. And I disagree with the
proposition of the gentlemen who are vl\j leaders in this management.
If this was a case in which Judge Hardy was being tried at a criminal
bar, under an indictment, as is provided in Wharton's Criminal Digest,
read by my associate, [Edgerton,] the narrow rule they have suggested,
would, perhaps, be correct. But we are sitting as a High Court of Im-
peachment, in which the Commonwealth is on one side of the question,
a citizen on the other ; and it seems to me, when a charge of disloyalty
is preferred against him as aflfeeting his right to perform the functions
of the place to which the people have assigned him, it would be illiberal
on the part of the State to restrain him by nice and technical rules
which would govern in a criminal trial. Now then, I desire to enter my
protest, and say that, to the extent my ofiicial authority and position in
this case go, the argument ad convenienta on the part of the State, I dis-
claim. If this testimony is to drive the Commonwealth to go through-
out the State to rebut it, let the power and the Treasury of the State be
exhausted to produce tbat rebutting evidence. And I. for one. am desi-
rous and willing, to the extent of the position I hold here, to reciprocate
on the part of the State the course which the defence have pursued, in
taking no exceptions to these Articles of Impeachment — which may, or
may not, be demurrable — throwing the case open to its widest investi-
gation, and not even, themselves, making it as a plea to Senators to open
the doors for a liberal defence. So far as my reading goes, the rule
suggested by my associate [Campbell] is not the true rule in this case.
It does not require the same character of proof in relation to the im-
peachment of a person for want of patriotism, as it does in a case of
private scandal. In the case of The Crown vs. O'Connell, reported in
Irish Cases, where Grattan was Counsel for the defence, that distinc-
tion was made and argued at length. It is a proper distinction. It is
founded in the philosophy of government and the philosophy of common
sense. I therefore say, that, in my opinion, the President should decide
that testimony of this character, going to the general reputation of the
Respondent for loyalt}^, should be admitted, as showing the animus
of the Respondent towards the Government, as regarding his fitness
fjr the performance of the judicial functions of his place.

Mr. Campbell. — As a suggestion has been made of the illiberality of
some of the Counsel for the Prosecution in this case, I desire to say a
word in regard to that. I think that Mr. Pixley might have stated his
opinion —

The Presiding Officer. — [Interrupting.] Counsel will refrain from bring-
ing their private griefs into the argument of the point before the Court.

159

Mr. Camphell. — There are no " private griefs " about it ; for I do not
feel any. I merely say this : That nobody has contended against the
rule tbat general reputation might be given in evidence. I stated my-
self in my general argument, that general reputation was admissible.
But I also stated this : That different declarations, made here and there
by Judge Hardy, are not admissible; and I say it is no narrow and no
illiberal rule, but one founded on just and proper principles; one neces-
sary for the proper administration of justice. And it is as much so in
this, as in any other case.

Mr. WiUiram. — Well, I thank God that there is one public officer of this
State who is not inclined to use the engine he is running, for the destruc-
tion of a fellow citizen. I do not mean to say. by that, that others are ;
hut I honor the man who has the pluck to stand up when some of the
members of his party are in open cry after a political opponent. I say
I admire the manly courage that dares stand up and exercise that semi-
judicial authority in marking out the course that shall be pursued in the
prosecution. Now, if the Court please, in regard to the law in this case,
as based upon, and attempted to be supported by, the authority read.
"Why, what is the analogy here ? The Court must be patient Avith me a
^moment, while I re-read it, in order to see how it applies. It is headed
" Seditious Libels." [Wharton's American Criminal Law, page 738.]
And this authority is brought here as containing the controlling rules of
law that arc to govern this High Court of Lnpeachment. AAiiere the
whole power of the Government is on one side, and the accused individual
on the other; brought here to control the rules of evidence, which are
onl}- controlled by analogies, and when those analogies are adopted by
the Court of Im])eachment.

Now, let us see the application of this authority, if the Court please,
for a moment, and I must read a little back, as it is not very pertinent,
in order to show what it means :

•' SEDITIOUS LIBELS.

"§ 2550. — Every man may publish temperate investigations on the na-
ture and form of government ; such matters are proper for public infor-
mation ; but if such publication is seditiously, maliciously, and wilfallj-
aimed at the independence of the L^nited States, or the Constitution
thereof, or of any other State, the publisher is guilty of libel. Imjjortant
as is the privilege of liberty of the press, if it be so employed as to dis-
turb the peace of families, or the quiet of society, even when the truth
alone is uttered, it becomes subject to indictment."

That is the law of libel; and the law of libel, as sought to be applied
to this prosecution. The authority proceeds :

•' § 255L In England, it has been said, in illustration of the same doc-
trine, that if a man curse the Queen, wish her ill, give out scandalous
stories concerning her, or do anything that may lessen her in the esteem
of her subjects, may weaken her Government, or may raise jealousies be-
tween her and her people ; or, if he deny the Queen's right to the throne,
in common and unadvised discourse, (for if it be by advisedly speaking,
it amounts to praemunire, ) all these are seditious. It was said by Lord
Ellenborough, that if a publication be calculated to alienate the affec-
tions of the people, by bringing the Government into disesteem, whether
the expedient resorted to be ridicule or obloquy, the writer, publisher.

160

etc., are punishable. Whether the defendant really intended, by his pub-
lication, to alienate the affections of the people from the Government, or
not, is not material ; if the publication be calculated to have that effect,
it is a seditious libel. In the language of a still greater authority, ' If
men shall not be called to account for possessing the people with an ill
opinion of the Government, no Government can subsist.' "

And this is the law sought to be applied to the United States and the
people thereof, in the nineteenth century, under' a Eepublican form of
government !

Now let us see how it will apply. " In England it has been said, in
illustration of the same doctrine, that if a man curse the queen — ." If
a man curse the President ! I need not make any remarks on that ; it
would take too long to repeat the amount of curses heaped upon Presi-
dents, and I never heard of an}" of the cursers being indicted. " Wish
her ill — ." Did nobody ever wish our President ill ? Ever wish Buchanan
ill? If those who have were to be indicted, I do not know where you
would put them all. " Give out scandalous stories concerning her, or do
anything that may lessen her in the esteem of her subjects — ." No busi-
ness to give out any scandalous stories about the President. This is the
doctrine which is introduced here as the law of to-daj', applicable to a
Eepublican form of government. " May weaken her Government, or may
raise jealousies between her and her people, or if he deny the Queen's
right to the throne — ." Deny the President's riglit ! '• In common and
unadvised discourse, (for if it be advisedly speaking, it amounts to
praemunire.) all these are seditious. It was said by Lord Ellenborough
that if a publication be calculated to alienate the affections of the people
by bringing the Government into disesteem — ." Some gentlemen here
would stand a pretty slim cliance, I reckon, for most of them have been
on the stump, I presume. [Merriment.] •■ Whether the defendant really
intended, by his publication, to alienate the affections of the people from
the Government, or not, is not material — ."

I do not think it necessary to make an argument upon the law pro-
duced here, as the law governing this case. In the first place, if we w^ere
trying a seditious libel, it would have no more application. No Judge
of decent enlightenment would ever entertain any more respect for it
than for a case cited from the Dark Ages. That the law governing this
bod}", upon the trial of an impeachment, is not the law which controls
the trial of an indictment for libel, I need not argue to a body made up
largely of lawyers. I will not insult their understanding so much as
to argue that question. An impeachment case depends upon entirely dif-
ferent principles ; emanates from a different source ; is triable in a differ-
ent manner, before a special tribunal, siimmoned and organized under the
Constitution, for the express purpose of trying it, made by the Constitu-
tion of the United States, and of all the States original, for the purpose
of protecting the citizen.

Now, to jDursue the course which I have marked out for myself, to
make this part of the ease as brief as possible, I come to a point which
will dispose of this whole question, assuming the doctrine of the learned
Counsel on the other side to be right. Now, I am going to suppose, for
a moment, although it is scarcely supposable, that we are trying an in-
dictment here upon technical j^rinciples. What is the general rule ?
What is the rule that underlies all ci'iminal law ? It is that the intent of
the party is the controlling fact. A gentleman may take my horse,
Btanding at the door saddled, and ride him away, without any intention

161

of committing a felony, and may, for some reason or other, fail to bring
him back. He cannot be indicted for a felony. The intent to steal is
the gist of the whole thing. A man may be indicted for treason. If
convicted, he must be convicted of treason with intent to commit trea-
son with a treasonable heart and design.

How is this rule applicable to this case ? What do they charge upon
us ? Why, that, for the purpose of bringing the Government into dis-
repute, for the wicked, malignant, wilful and malicious intent to bring the
Government into disrepute, we at a particular time made a particular
expi'ession.

And now, what is the broad, liberal doctrine that is opened to us here?
When we are called on to defend, then what do they say to us ? They
say : " We have only charged you that \o\\ uttered live syllables. You
may disprove the utterance of those five syllables ; but as to what was
said beyond that, when they were uttered, your mouths are sealed."
We are charged with saying a thing, which, if said without animtis, if
said in a joke, if said in a manner that is clearly innocent, must, even in
their view of the law, be entirely innocent of itself. They charge us
with making a certain utterance, a certain expression, at a certain time ;
and most magnanimously say : '^ You may give in evidence relating to
that time ; but you cannot give in evidence going to show what you
meant by it — 3'ou cannot give in evidence going to show what your teel-
ings were at that time, and that it was a mere joke." That is the kind
of magnanimity tliat this groat, magiumimous, State Government ex-
tends to her citizen, when the whole machinery is brought to bear on
him; and he, one single humble individual, is compelled to stand up
against the array of power that is enforced against him here ! " Only
just what was said at that time, and just what took place at that time I"
'' Why," say the Counsel, "it would be exceedingly inconvenient to us.
You have not put in any plea specifying what 3'ou are going to prove."
Sir, they have brought charges against us. We have made a general
answer, and under tliat answer we have a right to produce any evidence
which makes a good defence ; and all these gentlemen are too good crim-
inal lawyers not to know that even to a technical indictment, with a plea
of "not guilty" on the part of the defence, no special plea of defence is
allowed. And now, forso(jth, in this High (Jourt of Impeachment, they
say : " Why, you must plead specially all the facts, or you cannot give
them in evidence I"

Mr. CampbiU. — [Sotto voce.] Not at all.

Mr. Williaiiu. — [Continuing.] God deliver me from such a judicial sys-
tem as would follow such a course as that !

Now, if the Court please, we propose this : -After they have given evi-
dence which, they say, tends to sustain the charge that we made this utter-
ance for the purpose of bringing the Government into contempt, and with
the intent wickedly to do this Avicked thing, we propose to prove that all
this could not have been with any such intent at all, even if true ; and
three fourths of it is not true, if I am not mistaken. We propose to give
such evidence as will show to this Court that it is a moral im])0ssibility
that the charge could be true. The charge is not the mere collocation of
letters into words, words into syllables, and syllables into sentences.
That is hot the char-ge. The charge is : That with the intent to bring the
Government into disrepute, those sentences were uttered. We propose
to prove that the Eespondent's whole line of conduct was such, that
whatever idle statements he may have made, whatever foolish declara-
tions he may have uttered at certain times, inexcusable in themselves,
21

162

perhaps, outside of this trial, thej^ could not, by any moral possibility,
Lave implied or sustained the charge of intending thereby to bring the
Government into disrepute. Utteiing the words, is the charge, says my
friend here. '• AYe charge him simply with uttering the words ; but
therein lies the charge." It is not the charge. Sir. It is a mere append-
age to the charge ; it is a mere inducement to the charge. The charge
it«\ that for the purpose, and Avith the intent of bringing the Government
into disrepiite and contempt among the people, the Eespondent made
these declarations and statements. We propose to prove that there could
not have been any such intent; that his opinions, his uniform conversa-
tion and his constant acts, official and unofficial, were such that he could
not have so intended, even if he did utter the words which they have
technically jn-oved against him here. And I appeal to every fair-minded
member upon this floor to say whether or not, when we are so charged —
when we are charged with having done or said this thing, with this in-
tent, we should not have the largest liberality allowed us, to prove, by
circumstances, that wc could not have done or said it with any such in-
tent. Circumstantial evidence hangs a man ; and it certainly ought to
be allowable to save a man, at least, where the Court is untrammeiled
and unrestrained b}' positive legislation or technical rules of evidence ;
where the Court has the power of making its own law of evidence ;
where the Court has made the law as to the practice of the Court, and
where there is nothing to limit it but the judicial will. I feel assured
that this Court will not so limit the rule, so tie this man, hand and foot,
and put him down at the feet of these men who are on his track, and let
them put their heel upon his neck. We say that 3'ou should give him a
fair chance. Give him an oiDi)ortunity for a fair fight. Give him the
privilege of opening his whole life here ; opening his whole conduct ;
throwing open his breast, as if he had a window in it, showing every
thing he has done and said. And so much as is against him let him
state — we can stand it. But let us also state, so far as we can, so much
as will go to show, and show to all men constituted like this man, any-
thing that sets out the moral man and goes to decide on the moral proba-
bility of whether, if he said this, he said it with intent to injure the
Government and bring it into disrepute among the peoj^le, or not. It is
not a question of strict technical evidence ; it is a question of moral evi-
dence. You sit here above these technical rules of evidence. They are
necessary for the government of inferior Courts ; for the protection of
the accused, more than anything else. But i/oii sit here as the repre-
sentatives of the Government ; sit as censors upon the conduct of the
citizen who holds office. Yoic do not sit here circumscribed and cramped
b}' technical rules of evidence governing Police Courts and other crim-
inal Courts. The whole subject is open to your discussion ; the whole
subject is within your own grasp and your own control; and the world
will !<ee fi-om to-da}^ how you exercise your power. The world will see
that an appeal to a Court, constituted as this is, to apply the technical
rules applicable to petty larceny in a Police Court, will be swept away
by the strong hand of the judicial power vested in this body. I insist,
Sir, if the Court please, that, in the first place, the law, as read here,
when it comes merely to be read as applicable to this Court and to this
country, is the most utter nonsense that could be imagined. I do not
attribute this to the Counsel, [Edgerton,] because he reads it from the
book ; but I say that when we read it and apply it here — that to speak
disrespectfully of the President, to speak disrespectfully of the Govern-
ment, to say that the Government in the hands of the President and

163

Administration is corrupt, to say that Floyd stole guns, to say that they
undertook to steal a large amount of money for Lime Point, to say that
they have committed all sorts of corruption, to say the Gadsden Pur-
chase Avas a fraud, to say the Government is engaged in divers frauds,
to say the Government is ojipressive — to, in short, say everything that is
bad, without evil intent, in characterizing acts which ai'e said to be cor-
rupt, is an offence for which, under our Constitution, a man should be
punished — is monstrous, and not applicable to this sort of a charge, or
to our form of Government. We ask to introduce such proof here as
"w-ill go to show that Judge Hardy did not make such utterances as they
charge him with, with intent to bring the Government into disrepute, or
to weaken the affections of the people for it.

The Fresiding Officer. — There must be some slight misapprehension in
regard to the form of the allegation. It is :

Art. XY. — The said James H. Hardy, at various times within one
year last past, and especially at the times and places hereinafter men-
tioned, Avhile holding the office of District Judge, as aforesaid, and bound
by his official oath to support the Constitution of the United States, has,
in violation of his oath of office, and his duty and obligations as a Judge,
publicl}' used seditious and treasonable language of and concerning the
Constitution and CTovernment of the United States.

The gravamen of the charge is a violation, by the Respondent, of his
oath, as Judge, to support the Constitution. It is not that he is a traitor,
or disloj'al to the Government. It is, that on a certain occasion he has
manifested himself, by certain declarations, to be. disloyal. But it is not
averred that it was with intent to disparage the Government

Mr. Williams. — I would ask if the President is announcing a decision?

The Presiding Officer. — Yes, Sir.

Mr. William.'i. — With great respect to the President, I would say that I
intend to ask the opinion of the Senate.

The Presiding Officer. — You can do so after you hear the decision of the
Chair. I think the intent with which the language Avas uttered, if it
was uttered, is strictl}" germain to the subject matter; and that the tes-
timony offei'ed. in the spirit offered, is admissible for the purposes stated.

The Cjuestion is : Shall the Eespondent be permitted to prove, not his
reputation, but his general language and conduct, as indicative of his
feelings and opinion.s relative to the General Government, which lan-
guage or conduct are not brought out by the testimony in chief of the
Prosecution.

That proposition is objected to by the Managers; and the objection is
overruled by the Chair.

Senator Merritf. — I did not understand them all to object.

The Presiding Officer. — It is unnecessary to discuss that point. If any
of the Counsel, or any Senator, desire to appeal from the decision, they
can, of course, do so.

Mr. Williams. — rl certainly do not wish to.

Mr. Williams read an affidavit, to the effect that Mr. Haralson, a wit-
ness who had been subpoenaed, was confined to his house by sickness,
and unable to come, and asked that a Commissioner be appointed to
take his testimony.

The Presiding Officer appointed Daniel Taylor, Clerk of Marin County,
such Commissioner, Mr. Campbell waiving notice.

Eecess for half an hour.

161

The Presiding Officer. — Since the adjournment, I have taken occasion to
look at Story, touching Impeachments. In giving a decision this morn-
ing, I was guided perhaps less by my recollection of technical rules
applicable to trials of this kind, than by considerations of a more en-
larged kind, which seemed to me more applicable. Story on the Con-
stitution, Sec. 765, reads thus :

" § 765. In the next place, it is obvious, that the strictness of the forms
of proceeding in cases of offences at common law is ill adapted to im-
peachments. The very habits growing out of judicial emploj-ments ;
the rigid manner in which the discretion of Judges . is limited and
fenced in on all sides, in order to protect persons accused of crimes,
by rules and precedents ; and the adherence to technical principles,
which, perhaps, distinguishes this branch of the law more than any
other, are all ill adapted to tlie trial of political offences, in the broad
course of impeachments. And it has been observed, with great propri-
ety, that a tribunal of a liberal and comprehensive character, confined
as little as possible to strict forms, enabled to continue its session as
long as the nature of the law may require, qualified to view the charge
in all its bearings and dependencies, and to ajjpropriate on sound prin-
ciples of public policy the defence of the accused, seems indispensable to
the value of the trial. The history of imjjeachments, both in England
and America, justifies the remark. There is little technical in the mode
of proceeding ; the charges are sufficiently clear, and yet in a general
form ; there are few exceptions, which arise in the application of the
evidence, which grow out of mere technical rules and quibbles. And it
has repeatedly been seen, that the functions have been better under-
stood, and more liberally and justly expounded, by statesmen than by
mere lawj^ers. An illustrious instance of this sort is upon record in the
case of the trial of Warren Hastings, where the question whether an
impeachment was abated by a dissolution of Parliament, was decided in
the negative by the House of Lords, as well as the House of Commons,
against what seemed to be the weight of professional opinion."

In Section 800, the same authority says:

" We cannot but be struck, in this slight enumeration, with the utter
unfitness of the common tribunals of justice to take cognizance of such
offences; and with the entire propriety of confiding the jurisdiction over
them to a tribunal capable of understanding and reforming and scruti-
nizing the polity of the State, and of sufficient dignity to maintain the
independence and rej)utation of worthy public otficers."

It struck me at the time, and does still, that, in regard to the state of
feeling existing in the community, this Senate would be among the last
to support rebellion ; and certainly among the last to adojjt any rule of
evidence that should yield to popular clamor, or prejudice, anything
at all, upon the question to be proven. After it is proved, then let the
sword fall. But, until then, any person is entitled to the benefit of the
largest discretion in order to maintain his integrity before this or any
other tribunal of justice.

J/r. Camphell. — Circumstances have transpired, this morning, Avithin
the observation and hearing of the members of the Senate, which, in the
judgment of the Counsel employed by the Managers selected to conduct
this Impeachment on the part of the Assembly, render it necessary for

165

the Counsel so employed, to Avithdraw from the case. It is obvious that
with divided counsels on the part of the Prosecution, the case cannot be
presented as it otherwise would. I am requested by my associates to
announce that this is their unanimous opinion ; and that we accord-
ingl}* now formally withdraw from the further conduct of the case.

Messrs. Campbell and Edgerton then retired from the Senate.

Mr. Highy. — I would state, in withdrawing, that, as I am acquainted
with a great many witnesses who ma}' possibly be needed in the farther
prosecution, if any should be needed to be called as rebutting testimony,
I am willing, upon the outside, to give the Attorney-Ceneral all the
assistance that I can, in procuring their attendance and in tendering him
information; and that I do not withdraw for the purpose of keeping
from him any information that may be in my possession.

Mr. Pixlry. — Mr. President, I do not feel at all embarrassed by the po-
sition in which I find myself, as the Attorney of the Commonwealtli, in
the conduct of this Impeachment. I admit, most frankly, that it has
been a source of a little mortification to me, that since I have been elect-
ed to fill tliis position and discharge its duties — which duties are deter-
mined by law — that I should have been entirely ignored b}- that most
respectable bod}', the Assembly of this State ; and that the Managers
should have, in the exercise of the duty which they were required to
perform, by a resolution of the House, employed Counsel without my
solicitation or advice; and when I found the press throughout the State
was calling public attention to the fact that the Attorney-General either
had not the ability or the disposition to conduct this Impeachment. But
I desire you, Mr. President, and you. Senators, to bear it in mind, that I
have sat here, fulfilling to the best of my ability what I conceived to be
the duties of my office ; and that 1 have borne this in silence, and have
made no complaints against the Assembly — and would not be the man to
make any against any one of the Managers of that body. I have sat by.
quietly, and never, in one single instance, interfered with the conduct of
the Impeachment by the learned Counsel who have thus been employed,
except when I saw a point raised which, from my knowledge of the law
which your Honor has read, I knew was debasing to the credit of the
Commonwealth, whose Attorney I have the honor to be. I knew that
the point raised by the Counsel in this case was inconsistent with the
liberality of a great Government in conducting, at the bar of its Senate,
the Impeachment of an honorable Judge. And because I knew that,
and because they had not paid me the common compliment of consulting
with me Avhether they should take that course, I felt it my privilege, Mr.
President, and my dut}' as well, to state to this Court, occupying, as I
do, a semi-judicial position, because I recognized the fact that it is not
the duty of the Attorne}' in an Impeachment case to do other than to
see that the law is fully, amply, justly, and generously, administered to
every person at this bar. Because I did this — because I entered my pro-
test at the bar of the Senate, which your Honor decided was right, these
gentlemen choose to take umbrage, and retire. I say, God be with them.
I feel competent to conduct this case. I will now take my seat, where I
belonged in the commencement, and endeavor to prosecute it to a result.

Mr. McCullough. — The House of Assembly appointed an Investigating
Committee to investigate into the conduct of James H. Hardy, District
Judge of the Sixteenth Judicial District of the State of —

Mr. Pixley. — [Interrupting.] Let me say one word, which I ought to
have said before I concluded ; that I accej)t, with grateful pleasure, the
assistance of the gentleman, Mr. Higby, who has so kindly volunteered

166

to assist me in the case. I hope, therefore, that he will not withdraw.
Then, I hope I have said, in anticipation of the statement of the Leader
of the Managers, that I have exhibited, not as derogatory to me at all,
the conduct of the Managers of this Impeachment. So far as they have
been able, they have all paid to me all the compliment that I suppose I
am entitled to receive. It is not with this feeling that I am actuated.
I did not intend to interfere. I could not have expected this result; and
if it shall prejudice the case, I shall be very sorry. I intended to have
assisted in this trial to the extent of my ability ; and if these gentlemen
must, upon legal punctilio, withdraw, why, of course, I cannot control
it.

Mr. Thomas Camphell. — This, Sir, is a somewhat important and grave
matter. Dissensions in our counsels have arisen. I do not desire to ad-
dress the Court#at this time upon this matter, although I am prepared to
reply to the Attornej^-General at this moment, and desire to do so here-
after, but, in consideration of the gravity of the case, I would ask to have
further time, so that I can call the Committee of Management together,
and have a full and clear expression from them of their views. I there-
fore ask that this Court adjourn for a time long enough to give us that
opportunity — say, if the Court jjlease, until to-morrow morning.

Mr. Merritt. — At eleven o'clock.

Mr. Williams. — Before the question is put, I desire to say that, upon
our side, we do not introduce a single objection to any course that may
be deemed necessary to the convenience of the Managers. We are wil-
ling to go on now ; we are willing to adjourn to any time that will suit
their convenience. We have, upon our side, to acknowledge* so far as
they are concerned, that we have received at their hands nothing but
the courtesy which lawyers as lawyers, and gentlemen as gentlemen,
extend, the one to another. For this we thank them, so far; and, in this
connection, we have to say that anything that we can assent to that will
promote their convenience, we shall always most cheerfully do, during
this trial.

The Court then adjourned to eleven o'clock, Saturday morning, May
third.

TESTi:MOISrY

IN THE

TRIAL OF JUDGE J. H. HARDT

SIXTH DAY— MAY 3, 1863.

TESTIMONY FOR THE DEFENCE

THE MANAGERS AND THE ATTORNEY-GENERAL.

Mr. Thomaa Campbell. — Mr. President and Senators : As this honorable
body is aware, on the afternoon of yesterday, durinijj the progress of the
trial of the case pending, circumstances of an unpleasant character made
it apparent, as I then stated, that in the Counsel for the Prosecution
there was a lack of that harmony which ought to prevail among Coun-
sel associated in any case, and more especiall}' in a proceeding of such
moment as this, and without which, no case, however just, can be so
systematically presented to the Court as to justify hopes of a successful
termination. In view of this state of affairs, the Court courteously
granted to the Managers, at my request, time for consultation. Such
consultation has been had ; and the Managers remain of the opinion
hitherto entertained by them, that they, as the representatives of the
Assembly, clothed with the entire authority of that body, for the pur-
pose, are, under the Constitution, the sole Directors of the Prosecution
in this case. It is because of this opinion that the extraordinary con-
duct of the Attorney-CTeneral yesterday surprised and confounded us all.
That officer directl}' asserted, that by virtue of his office, he was dntitled
to, and would till the position of Prosecutor in this case. He insulted
the Assembly, the Managers appointed b}' that body, and the Counsel
they had properly employed, and declared himself the representative of
the State. He has refused to withdraw, although courteously requested

168

to do so. He has also persisted in intruding his presence in this case, in
the face of a written communication from the Managers, demanded b}''
himself, upon the oral request made by me to him, on behalf of the Man-
agers, that he would quietly withdi'aw. His ansAver to that communica-
tion is, '' that briefly he declines to accede to the request of the Mana-
gers." I ask the Secretary to read my communication, as my voice is
weak.

The Secretary read, as follows :

San Francisco, May 2d, 1862.
Hon. F. J/. Pixie//, Atturnry- General of the State of California:

Sir : — The Managers on behalf of the Assembly to conduct the prosecu-
tion of the Articles of Im])eachment against James H. Hardy, District
Judge of the Sixteenth Judicial District, with a desire to serve the pub-
lic interest, and conduct the trial of said Imj)eachment to a proper ter-
mination, hereby respectfully request you to w^ithdraw from all further
connection with the case. The Managers are impelled to make this re-
quest by a knowledge of the fact that 3'ou entertain opinions, and are
actuated by feelings, antagonistic to the prosecution; that you have
frequently denounced the Impeachment as a farce, both to individual
Managers and to others ; that since the evidence on the part of the State
has been ottered before the Court, you have said " there was no ease made
out," and that "it would amount to nothing"; that b}" the course you
have pursued during the trial of the case, you have deprived the Prose-
cution of the benefit of able Counsel, who have carefully investigated
and fully understand the case ; that from your limited connection with
the Prosecution, it is impossible for you alone to conduct it, whatever its
merits may be, with an}' hope of success; that, finally, from your con-
duct and conversation, the Managers have no confidence in 3'ou to prose-
cute this^case to a proper termination.

THOMAS CAMPBELL, Chairman.

H. G. WOETHINGTON,

T. N, MACHIN,

J. G. McCULLOUGH.

Mr. Camphell. — [Eesuming.] Xow, Mr. President and Senators, as I
said before, to this communication the Attorney-General has briefly
replied that he declined to accede to the request of the Managers. Turn-
ing to the statutes to find some warrant of authoi'ity for the remarkable
conduct of the Attorney-General in this matter, I find that, in all the
laAV, there is but one brief sentence upon which, it must be, that he
founds his action, and takes his position to which he says he Avas entitled
at the commencement of the proceedings. This, may it please the Court,
is what the Managers utterly and positively deny. The language of the
statute defining the duties of the Attorney-General says : [I quote the
last sentence of Article 107, Section 2, Wood's Digest:] "It shall also be
his duty to assist in all impeachments which may be tried by the Sen-
ate." The language of the statute is expressh' that he shall " assist,"
and we claim the use of that very word shows clearly that the position
we assume is correct, for, by the use of that word ■• assist," it is clearly
shown that somewhere else is the right to control and direct recognized.
And, may it please the Court, the Managers urge farther, that the
Attornej'-General has not any right whatever in these premises, and
urge upon the consideration of honorable Senators the positive difference
between a right conferred and a duty imposed. As illustrative, I will
say, in connection with this point, that the Legislature, in the exercise of

109

its power and right, imposed, among other duties, upon the Attorney-
General, the dut}' to assist in all impeachments which may be tried
before the Senate, but conferred thereby no power on him, or right. It
becomes necessary, then, for the Court to determine who is to manage
this case, since it has become impossible for the Managers and the
Attorney-Creneral to act in concert, and in order that this determination
may be arrived at, I ask the Court to rule upon this motion. I move
that the Attorney-Greneral be informed by the Court, that, under the
Constitution, the Assembly, through its Managers, have entire control of
this case, and that his duty being to assist, sxich assistance is to be ren-
dered only at the request of the Managers, and then under their direc-
tion.

Mr. Pixlei/. — Mr. President : If, Sir. I was conscious in any degree of
deserving this deliberate and premeditated insult which these Managers
have put upon me, I should stand at the bar of this Senate, the highest
authority of the State of which I have the honor to be an officer, not
only with embarrassment, but with mortiiication. But, Sir, conscious of
the fact that I have done nothing, and omitted to do nothing that is not
in strict accordance with the duties and the dignity of my office, I stand
here confident in the belief that honorable Senators will sustain me. I
might, perhaps, be permitted to call the attention of the Senate to the
fact, that when the hand of that time-piece [pointing to the Senate clock]
reached Avithin fifteen minutes of the hour that the Senate had fixed upon
for the trial of this case, these four honorable Managers of the Assembly,
who. obtained time yestcrda}' to arrange this matter with the Attorney-
General, left me unnoticed and unnotified that this morning I was to be
arraigned at this bar. They come in. Sir, with a two page letter, copied,
and Avith a five page speech, written out, as the result of their calm de-
liberations, unknown and unnoticed to me. But, Sir, whether I am right
or wrong, the Senate must indulge me in briefly referring to my statement
of the history of this case. I believe I am the Attorney-General of this
Commonwealth, if the House and their Managers have forgotten it. I
know that the law which imposes upon me the duties of my office, ren-
ders me the legal assistant of the honorable Managers; and if they did
not know it, they should remember '■ If/norcntia lex non excimit." If they
were ignorant of the fact, the}' should not have sought, after making
their mistake, to throAv it upon me. But, Sir, the House has as strictly
and sedulousl}- ignored my official existence, as if there was no such office
as mine prescribed by the Constitution. The honorable Managers kept
up and continued that ignorance in relation to my position ; except that
Avhen their Impeachment was prepared, when their witnesses had been
examined, when their Articles were preferred at the bar of the Senate,
one of them informs me that thc}^ believed the Attorney-General had a
right to appear in the case, and asked me to their rooms.

Now, then, Mr. President and Senators, I raise this question of law : I
sa}^ that the House of Assembly has no right to bring to your bar paid
Attorneys. I say that the Constitution of the State delegates to that
branch of the Government the right of legislation and the right to pre-
sent impeachnients at the bar of the Senate; and they have as good^a
right to go out and hire an Attorney to bring in a communication to your
bar, or to hire an Attorney to sit in Committees of Conference with
your Senate, as they have to hire Attornej'S to appear here. I say that
that is a delegated authority which is given by the House to their Mana-
gers before the Senate ; and that they could not bring paid talent to the
performance of that duty, even if they did not possess it themselves.
22

170

I say another thing, Mr. President : That in the whole history of
criminal jurisprudence, there is not another case where a Senate or a
House have so far forgotten their own honor as to go out and bring in
paid Counsel, so far as my reading extends. In all the impeachments
brought by Parliament at the bar of the House of Lords, (I refer to the
cases of Lord Ecclesfield, Warren Hastings, and many others,) there is
not one single instance where a paid Attorney or Counsel has been
brought to that bar. All these cases were always conducted by the
talent and ability which the House of Commons in England has never
yet lacked. I say, that in the trial of impeachments before the Senate
of the United States, the House of Eepresentatives has never been so
poor in talent as to be driven to purchase it of the outside members of
the legal profession.

This case is not only without authority of law and without authority
of precedent, but I say that the lack of courtesy towards an officer of
their own State Government is also without precedent in the history of
any case of the kind.

But, Mr. President and Gentlemen of the Senate, I desire to call your
attention to this other fact : Have I interfered in this case ? Have I, by
letting drop one single word, shown that I was sensitive to the insult
that you all saw was being put upon me ? Have I, by disclosing one syl-
lable of sensibility upon this subject, shown that I was not in harmony
with this Management and their paid Attorneys, until — when, Mr. Chair-
man ? I have sat here as modestly as my chai"acter per)nits me, and
made no opposition to the control of these Managers. But. Sir, when a
point was made before this bar, and they called upon your Honor to pass
on the single question — Whether a prisoner, charged here with high
crimes, should be pettifogged into a conviction, or whether the State, in
the dignity of her position, should throw open wide and liberally the
rules of evidence, and conclude upon (in the language of that writer upon
Constitutional Law which you read yesterday,) the most liberal interpre-
tation— I then chose, in proper language, at apt time, in dignity to the
Assembl}^, and in courtesy to the Managers, and with no disrespect to
their Attorneys, to say that I differed with them in an opinion of law.
I believe I made that statement without feeling, and without any desire
to display and bring to the surface of political notice these squabbles
in which I had no part. Your Honor sustained that opinion ; the Senate
sustained the decision. I was right ; and because, then, I have done
only what was right, the paid Counsel rise in their places and withdraw
from the case. AVas it my fault. Senators ? AYas it my fault, Mr. Presi-
dent ? Had I done anything or said anything to injure their nicest feel-
ings of honor, or their most delicate sensibilities of duty? On the
contrary, I believe, you, gentlemen, whatever may be the political or
personal feeling that surrounds this case, will bear me out when I say
that I have only performed my duty, and performed it in accordance
with inj ideas of it.

Now. it has been said, in this letter written to me, that I have made
statements to these gentlemen, in regard to this Lnpeachment. AVhy,
Sir, for the first time in my life have I seen a client so far forgetful of his
duty as to come into the Court and repeat the statements of his Attor-
ney, made in the confidential relation of client and Counsel ; statements
that I made to Mr. Machin and to the other gentlemen in this body, and
perhaps to yourself, [looking at Mr. AVorthington.]

3Ir. Worthington. — Not to me. Sir.

Mr. Pixley. — Not to you. But, Mr. President, they are the ones that

171

now bring these statements to the notice of the Court. If, as Attorney
in the case, I have seen fit, talking with them as to tlie proper mode of
conducting this Impeachment, to question some of the rules here, and
parhaps, to express an opinion as to what might be the result — but never
as to Avhat were the merits of this matter — they should not have nar-
rated it here.

Now then, Mr. President, you have, in the decision of this matter, a
duty almost as important to perform to me as you have to perform to
the gentleman who stands arraigned as a criminal at your bar. This
point aflteets my honor, and, unless I have transcended my dutj', unless I
have performed that which I had no right to perform, unless I have been .
guilt}' of official malfeasance, acting as the Counsel of these gentlemen,
I shall supplicate you not to put upon me an insult before this State, by
this body driving me from this case.

Mr. McCuUougk. — Mr. President : One word in reference to the exact
question before the Court. The Attorney-General has seen fit, as the
Managers think, more than once to indicate, either by inuendo or by
direct assertion, the inability of the Managers to conduct the Impeach-
ment. And also, in a little bad Latin, he quotes the maxim, " Iguorenfia
lex non excusat ;" whereas it is, " Ljnorentla legis non exciisat." We are not
guilty of either an ignorance of the maxim, nor, as we apprehend, an
ignorance of the law. The Constitution says that the Assembly shall
have the sole power of impeachment; the Senate, the sole power to try
impeachments. That portion of the statutes in reference to the duties
of the Attorney-General, after laying down his duty to prosecute and
defend in certain cases ^vhere the State is a part}', in the latter sentence
of the section simply adds : '' It shall be his duty also to assist in the
trial of impeachments." It is his duty in other cases to "prosecute and
defend ;" in these cases, it is his duty to " assist" — and to assist whom ?
Necessarily somebody who is to conduct the trial. That somebody,
under the Constitution, is, we apprehend, the Assembly; the Assembly
either in body, or the Assembly through its Managers. And the Assem-
bly have appointed by resolution — a copy of which you have upon
record — Messrs. Campbell, Machin, Worthington, Shannon, and McCul-
lough, as Managers of this impeachment case.

Now, as to the question of law, whether we have the power to employ
Counsel or not. That is not a question which we see fit to argue, or to ask
the opinion of the Attorney-General upon. That question we will ask
hereafter, if necessary, of this Court to decide. What we claim here, and
all we claim here, this morning, is, that, as the Managers of this Impeach-
ment, we have the sole power to conduct and control that Impeachment.
Whether hereafter we Avill emplo}' Counsel, whether we will ask the as-
sistance of other Counsel, under the authorization of the Assembly, re-
mains for us, and only for us, to say ; and it will be for this Court to deter-
mine the question, as a Court, whether we are exercising that power of the
Assembly which has been delegated to us, rightly. The only question
here is the sole question, whether, under the Constitution, and under the
law laj'ing down the duties of the Attorney-General, and under the law
of the Criminal Practice Act in reference to trying Impeachments, we
have the power.to conduct and control this Impeachment. And if we
have, we want the judgment of the Court upon that question and this
motion. There are no side issues as to the honor of the Attorney-
Genei-al, or the honor of these Managers, as to an insult placed upon
the Attorney-General, or an insult he attempts to place upon the Mana-
gers. It is not whether he has insulted the Assembly, or whether we

172

have insulted hira. The sole question is what I have stated, and we ask
the decision of the Court thereon.

The Presiding Officer. — The Eleventh Eule requires that " At all times,
while the Senate is sitting upon the trial of the Impeachment, the doors
of the Senate Chamber shall be kept open nntil the final argument by
the Counsel of the parties is closed. All persons unconnected with said
trial shall be excluded from within the bar of the Senate, during said
trial, except ladies and Eeporters." What is the pleasure of the Senate;
to proceed upon this question — which is of somewhat a peculiar charac-
ter— with closed doors, or in open session ?

Several Senators. — In open Senate.

The Presiding Ofjicer. — The Senate will recollect that this is not a ques-
tion between the Senate and the accused, but between an oflS^cer of the
Government and a committee of the Assembly'.

Senator Merritt. — I think the Senate doors had better be closed ; and I
make a motion to that effect.

Senator De Long. — I object to it. I do not see why we cannot proceed
as well in open Senate, as any other way.

Senator Kutz. — I would inquire if. provided the Senate decide to sit
with closed doors. Members of the Assembly would be excluded ?

The Presiding Officer. — Ever}^ one would be excluded, excej)t Senators,
and the necessarj^ officers of the vSenate.

Senator Parks. — It appears to me that this is an unnecessary conclu-
sion, when we have to determine a question here, the result of which
determination will soon be known in any event. I do not suppose any-
thing is going to be said or done here which will offend any one ; and
cannot see the necessity of closing the doors.

Senator Van Dyke. — This is a question which does not affect the rights
of the accused at all. It seems to me but proper, when a matter of the
peculiar character of that under consideration is to be discussed, that the
doors should be closed.

Senator Merritt. — We have to decide whether the Attornej'-General is
to be here or not. If we decide he is, perhaps the Managers will with-
draw; and then the case would go back to the Assembly, and the As-
sembl}^ might appoint new Managers. Still. I am not strenuous about
my motion. If any considerable number of Senators object, I will with-
draw it.

Senator De Long. — Well, I object to clearing the Hall.

Senator Mei-ritt. — I withdraw the motion.

Senator Hathaicay. — I renew it.

The question as to whether the Senate should discuss and determine
the question between the Attorney-General and the Managers with
closed doors, was then put to the Senate, and the Senate refused to clear
the Hall, by the following vote :

Ayes — Messrs. Chamberlain, Denver, Harriman, Hathaway, Irwin,
Kimball, Lewis, Merritt, Nixon, Oulton, Perkins, Powers, Porter, Soule,
and Yan Dyke — 15.

ISToES — Messrs. Baker, Banks, Burnell, Crane, De Long, Gallagher,
Gaskill, Harvey, Heacock, Ilolden. Kutz, Parks, Quint, Khodes, Shurt-
leff, Warmcastle, Watt, and Williamson— 18.

The announcement of the vote was received with ap])lanse by the
lobby; whereupon the Presiding Officer directed the lobby to be in-
stantly cleared upon a repetition of the offence.

The Presiding Officer. — Eule Eighth seems to require that all questions
shall be first decided by the President ; a duty which I would gladly
avoid in this instance, could it be done. I think that under the Consti-
tution and under the statutes of this State, and under general par-
liamentary law, the House of Assembly and its Committee of Managers
are the sole conductors of this ImjDeaciiment ; that upon them devolves
the responsibility absolutely of conducting it. Like any other jjarty
appearing in Court, they have a right to employ Counsel ; and it is not
correct to say there is no precedent therefor. The Legislature of Wis-
consin prose'cuted Mr. Ilubbell — I think that was his name — one of the
Judges of the Supreme Court of that State, in eighteen hundred and lifty-
two, or eighteen hundred and fifty-thi-ee ; and on that occasion they em-
ployed Counsel to assist the prosecution, one of whom was Mr. Bryan, of
Milwaukie. to whom the State paid three thousand dollars. Whether
there are other precedents of the kind, or not, I am not aware. The
statute requires the Attorney-General to assist, and I suppose it is his
undoubted duty and right to be present. I am of the opinion, then, so
far as my personal opinion is concerned, that the Managers have a right
to control this Impeachment. I decide in favor of the motion, or order;
although it is not couched in exactly the terms in which it should be
entered.

Mr. Thomas Campbell. — If the Court will make the necessary altera-
tions, I will assent.

The Presiding Officer quoted from Cushing's Manual, and Story on the
Constitution, in support of his decision, concluding by saying : I think,
therefore, there can be no question of the right of the Managers to con-
duct and control the prosecution of this Impeachment.

The order was amended so as to read as follows :

" Upon motion of the Managers upon the j^art of the Assembly, it is
ordered —

'• That the Assembly, by itself, or its 3Ianagers, have the sole right to
direct and control the trial upon the Articles of Impeachment in this
case ; and that said Manager;^ be informed thereof"

Senator Perkins. — I understand, that, by the law, the Attorney-General
not only has the right, but it is his duty to assist in this prosecution;
and I shall vote upon it simply as a question of law.

It was moved that the order be entered ; which motion prevailed by
the following vote :

Ayes — Messrs Banks. Burnell, Chamberlain, Crane, De Long, Hatha-
way, Harriman, Harvc}', Kimball, Kutz, Nixon, Oulton, Parks, Perkins,
Porter, Rhodes. Soule, Shurtleff, Van Dyke, and Watt— 20.

Noes — Messrs. Baker, Gaskill, Heacock, Holden, Irwin, Lewis, Mer-
ritt, Powers, Quint, and Williamson — 10.

Senator Warmcastle declined to vote.

Senator Gallagher was excused from voting, he stating that he was
not sufficiently conversant with the point to be decided.

"When the result was announced, the Attorney-General retired.

174

EXAMINATION OF THOMAS LASPEYRE RESUMED.

Mr. Williams. — You stated, yesterday, that you had been intimately ac-
quainted with Judge Hardy for many years, did you not ?

A. — Yes.

Q. — You also said you had been a good deal in his company, did you
not?

A. — I said that during the past three years I had been a good deal in
his company.

Q. — Now, during the time of your acquaintance and association with
Judge Hard}-^, have you ever heard him utter any sentiments favorable
to the dissolution of this Union ?

A. — I never have.

Q. — Do you know what political sentiments upon the broad question of
Union or Disunion, Judge Hardy has entertained for the last year, from
his general conversation in your association with him ?

A. — Well, I do not know; I cannot speak as to his general sentiments.
I have heard Judge Hardy, 1 think, speak of the crisis very frequently ;
but I never heard him express an}^ sentiments that could be considered
disloyal, or in favor of the dissolution of the Union.

CROSS EXAMINATION.

Mr. McCullough. — Mr. Laspeyre, what do you mean by disloyal ?

A. — It is a very hard matter to determine what disloyalty is now.

Q. — What is your idea of loyalty ?

A. — Well, I do not think proper to give my idea of loyalty.

Q. — Well, Mr. Laspeyre, when you answer that you have never heard
Judge Hardy express any sentiments that you considered disloyal, what
do you mean ?

A. — Well, I mean this, Sir — that I never have heard Judge Hardy say
that he was in favor of dissolution of the Union. I never have heard
him say that he was against the Government, and in favor of breaking
up the "Union. I never have heard him- say any such thing as that.
Judge Hardy belongs to the Democratic party, as you are aware, I pre-
sume.

Q. — Which wing ?

A. — He belongs to the Breckinridge wing of the Democratic party, I
believe. He has always been considered a Breckinridge Democrat.

Q. — Have you never heard Judge Hardy justify the withdrawal or se-
cession of the Southern States from the Union ?

A. — Xot that I am aware of. I do not think that I ever have.

Q. — Have you never heard Judge Hardy justify or advocate the cause
of Mr. Jefferson Davis ?

A. — Xot that I am aware of. Sir. I would like to state, in connection
with this matter, that I do not think that I have ever had any very par-
ticular conversation with Judge Hardy upon this subject.

[Mr. Campbell, of Counsel for Prosecution, re-entered, and took his
seat.]

Q. — You have never had any particular conversation with Judge Har-
dy, on the subject ?

A. — No, Sir ; not that I am aware of. I have no recollection of hav-
ing any particular conversation with him, on this subject. .

Q. — Then you would not be likely to have heai'd him express any sen-
timents, either loyal or disloyal ?

175

A. — I have heard him talk politics very frequently. I have been in
his company a good deal during the last year.

Q. — Did you, or not, ever hear Judge Hardy express any sympathy
with the Confederate Army, or with the Confederate cause, in any way
or manner ?

A. — I am not aware that I ever have.

Q.— Did you ever hear him exj^ress any gratification at the results of
any battles that have ever taken place between the two armies ?

A. — Not that I am aware of I do not think I ever have.

Q.— Did you ever hear him express any gratification at successes of
the Union Armj' ?

A. — I do not know as I ever heard him express any gratification at
successes of the Union Armies.

Q. — Or at the success which has attended President Lincoln's Govern-
ment ?

A.— No, Sir.

Q.— Not at all ?

A. — No, Sir.

Q. — Or any regret at any Union defeat ?

A. — Not that I am aware of I have seen Judge Hardy but very lit-
tle, since last winter; since the battles commenced; since the fighting
has been going on. Consequently, I have had but very little opportunity
of hearing him express any opinion.

i^. — Mr. Laspeyre, as to your own sympathies — do you, or not, sympa-
thize with the Confederate forces, or with the Confederate Govern-
ment y

A. — I am not aware. Sir, that my loyalty has been questioned here, or
that I am here for Impeachment. If you want to know my opinion,
Sir, I can assure you that I do.

RE-DIRECT EXAMINATION.

3Ir. Williams. — You were asked, on cross examination, to define what
you meant by " loyalty." Did you, Avhen you gave that answer to me,
mean loyalty to the Constitution and Government of the United States?

A. — That is what I meant, Sir. 1 should like to make a statement, in
connection with my testimony yesterday, as I might not have been ex-
plicit enough. I heard the testimony of Mr. Finnigan, and I read his
testimony before the Assembly Committee ; and I am very positive that
there is not a word of truth in what Mr. Finnigan said in relation to
there being any toast drank at the St. George hotel when I was present,
at the time he mentioned in his testimony. I never heard Judge Hardy
drink any such toast; and never was present on any such occasion.

RE-CROSS EXAMINATION.

Mr. McCidlougli. — You, of course, cannot say but what this toast was
drank at the St. George hotel at some time when you were not there ?

A. — I could not say as to that. Sir.

Q. — Then, of course, it cannot be a fabrication ?

A. — The assertion of the toast being drank when I was present, I said
was a fabrication.

176

RE-DIRECT EXAMINATION.

Mr. Williams. — How about your having heard and read Mr. Finnigan's
testimony ?

A. — I read his testimony before the Committee, and I heard his testi-
mony given here yesterday.

Q.^^ — Did he. or not, swear positively before the Committee that you
were present at the time of this toast ?

A.— He did.

Q. — And you also heard what he said here yesterday?

A. — I heard what he said here yesterdaj'.

Senator Kutz. — You state that you never heard such a toast drank. I
ask you whether you ever heard one of that kind proposed ?

A. — I never did.

Mr. McCidlovgh. — The Managers would like to have now entered of
record as their Counsel — Messrs. Campbell, Edgerton, and Higby, who
yesterday withdrew.

Mr. Cdinphell. — Having understood. Mr. President, that the Attorney-
General is no longer engaged in the management of this case, we are
perfectly willing to resume our places as Counsel.

The Presiding Officer. — I have to inform the Senate that the Managers
have now empkn^ed Messrs. Campbell. Edgerton, and Higby, as Counsel
to aid the Prosecution.

Senator Quint. — I rise, as I did the other da}', to call the attention of
this Court to the question of the right of the Managers to employ the
number of Counsel that they have engaged to conduct this case.

Senator Irwin. — I rise to a point of order. It is, that we are now sit-
ting as a Court, and have no right to entertain any motion.

The Presiding Officer decided that it was a matter of order to be call-
ed to the attention of the Court at any time Avhen Senators pleased.

Senator Quint then moved that there be but two Counsel allowed to
appear before the Court on the part of the Prosecution.

Senator Van Dyke rose to a point of order — that the question could
not be raised before the Court.

The Presiding Officer decided that it was in order for any Senator to
make a motion in regard to the number of Counsel that should be heard
in the progress of the trial. But. as regarded the number of Counsel
that might appear, that was, in the judgment of the Chair, a matter
entirely within the control of the House, with which the Senate had
nothing to do.

Senator Quint stated that that was his motion ; that the number of
Counsel who should be heard, on the part of the Prosecution, should be
limited.

The Presifling Officer. — The Chair took occasion to refer to and pass on
that matter some time since.

Mr. Williams. — Since that question is now up, and the subject has been
mentioned by the Chair, perhaps it is as good a time as any, while we
are discussing the mode of conducting this trial, to make a suggestion to
the Court which I intended to have reserved until we were prepared to
have commenced the summing up. This Court, it has been announced
repeatedly-, and every member is aware of and familiar with the fact,
has the entire control as to how many Counsel shall sum up this case on
a side. It has also just been announced from the Chair, that on all sub-
jects in connection with the mode of conducting the proceedings, the
Court has the control, except upon the question of who shall be employed

177

— and these, another power comes in and directs. I understand that to
be tlie view of the Court. Now, with the permission of the President,
I beg leave to call your attention to the position in which we find our-
selves in this case, with reference to the number of Counsel. I do not
complain of the number of Counsel employed against us; I have no
right to. As an honorable Senator has said, the other side may employ
fifty Counsel, if tliey please; and we will not complain. But when we
have got through with this proof, and those fifty gentlemen have all had
a band in the examination of the witnesses, or two or three of them, by
relays and instalments, and come to sum up this cause, I do object to
furt3'-nine of that fift}^ summing up against me. And I am going' to ap-
peal to this Court, at a proper time — and do not know but this is as good
as an}' other, to have the matter understood — as a matter of justice, as a
matter of fairness, as a matter of eqinUity, to be dealt out to each side,
quantity for quantity, that when we come to sum up this cause, there
shall be but one Counsel heard upon a side.

Tli". PrcKuUnfj Ojjicer. — We cannot consume time on that question now.

Mr. Wifliami. — 1 do not propose to occu])y five minutes. Am I unrea-
sonable in m}^ request ? Do I obtain any unreasonable advantage in
this { Wh}', in the opening of this case on the part of the Prosecution,
tliere was an opening stating the evidence to be given, which was equiv-
alent to a summing up ; and with great advantages over the summing
up ; for the Counsel [Higby] assumed his facts, and argued from them.
When we come to sum up, I, in my only speech upon tlie facts in this
case, will be restricted to facts proved. The Counsel for the Prosecu-
tion, in opening, had a kind of summing up, which, being without any
restrit;tion whatever from the evidence or the facts in the case, is worth
more than any three speeches after the testimony is given. Then, as
they have already had one speech on the evidence, I ask and implore
this Senate, when we come to the final argument of this cause, to pro-
tect me from two more speeches of the same kind — which would make
three on the subject, against my single feeble efl^'ort in behalf of my client
here, where his character and more than physical existence is at stake.

Since the question is up, as I said before, I will ask the Court to now
make an order upon the subject. I did not originally intend to open
discussion upon it, at this point of the proceedings.

Mr. McCuUough. — On behalf of the Managers, 1 desire to saj^ that they
think this question is premature. So far as one of the Counsel for the
Managei's, having, by way of an opening, made an elaborate speech, and
assumed his own positions, and argued from those positions what the
hiw is upon them, is concerned — with due respect to General Williams,
I think he has had the same opportunity, and could have made an open-
ing argument of the same character.

Mr. Williams. — My self-respect forbade it. Sir.

Mr. McCnllough. — Well, if the self-respect of the Managers did not, on
their part. General Williams certainly should not complain of it. As to
the other question, T apprehend that there are but two speeches to be
made on behalf of the Prosecution — an opening and a closing speech.
Whether those speeches are made by the same gentleman, or by two
gentlemen, it certainly cannot affect General Williams. If the same gen-
tleman delivers —

Mr. W.'llianu. — [Interrupting.] My motion is that an order be entered
allowing but one final argument on each side.

178

Mr. McCulhugh. — 1 apprehend the Managers have a right to open and
to close. I do not understand the Court to make Siuj rule in this case,
but only to be controlled by j^recedent. And if this Court is to be gov-
erned by any precedent at all, it seems, I apprehend, that the Prosecu-
tion have the right to open and to close.

Mr. WiUiams. — Now, one word in reply, and I have done. It is as-
sumed by the gentlemen. Managers, that they have the right to two
speeches here against our one. 1 deny that any of us have any rights on
this subject, so far as order is concerned, or quantity is concerned. It is
a matter entirely Avithin the control of this Court, as to how many
speeches shall be made on a side.

3Ir. McCuUowjli. — I do not contradict that.

Mr. Williams. — Then this Court controls it confessedly. The Counsel
then assumes that by precedent there are two speeches in all cases. By
no manner of means. Sir. We all know — those of us who have practised
in Courts of record — that the rule of the Courts restricts the summing
up, in ordinar}^ cases, to one Counsel on a side. It is true that the de-
fendant, when the plaintiff closes his case, has a right to ask the plaintiff
to open, and inform him of all that he is going to say in his closing
speech, and give him a synopsis of his argument and authorities. But it
is not true that there is anything like a right established by any guaran-
tee, or by any legislation u2>on this subject. [Mr. McCullough opened
the statutes, and commenced looking over the pages.] Now, the gentle-
man turns to the statutes — to the Criminal Practice Act. If you go
back to legislation in the first place, I say it has no application here
whatever; and in that assertion, I will be sustained by the gentleman
himself. If you go back a few years you will find that the defendant,
in all criminal prosecutions, had the close. The Legislature so enacted,
and we practised many years under that rule. And certainly. Sir, there
is great justice in that rule. There is great justice in that proceeding
which allows a person accused of a high crime, to know all that is said
against him, and gives him an opportunity to answer it. AVhat is the
justice, pray — when you come to the reason of the rule — when a man is
arraigned for crime, in holding back 3'our arguments against him until
after he has exhausted what he can bring forward himself, and answered
what he can guess the Prosecution arc going to say ? What is the pro-
priety of, after that, bringing the whole artillery of the Prosecution to
bear upon him, and annihilating him then ? There is no propriety in it,
Sir. The old rule in this State is the true rule, and the only one founded
on natural justice.

This Court, then, having the power to make its own rules, I appeal to
its members to not only establish the only just rule in this case, but to
allow but one argument on a side. Let the defence have the close, that
we may know what they intend to argue against us. I insist upon it, as
a matter of fairness; and if there is any one sentiment that I Avould ap-
peal to in an assembly of educated, aye, or uneducated Americans, and
risk my life upon the result, it is that American sentiment and spii'it of
Fair Pla}-. Give us fair j^lay I Do not let this Prosecution have the whole
control of this thing, and come in upon us, after they have had a two
hours opening, with two more speeches at the close, one before and one
after me ; holding back, if they please, their strong argument until my
mouth is closed forever in this case, and then concentrating and presenting
before this body all the force of their case. I ask that this spirit of fair
play shall be allowed— fair play in the minds and hearts of this Senate. I
ask you, as justice to the defendant, I ask you as a precedent, to not let

170

it go forth that this man has been tried in that manner and under that
state of circumstances wliich must necessarily prejudice him, and that
unjustly. If the power of the Government is to be arrayed against him,
give him fair play ! Give him a full opportunity to know all that is said •
and give him the last chance, by way of explanation, by way of rebutting
the different arguments which may be made in the case ! I appeal to you,
Senators ! I appeal to your hearts, to your sense of justice, to your
sense of right, and to your sense of honor !

Mr. MrLhdIoiKjh. — 1 do not intend —

Tlie Pfeudbuj Offircr. — [Interruptingl3^] The Chair really cannot suffer
the time of the Court to be exhausted in arguments on this question at
this time.

Mr. MrChdlowjh. — General Williams has been permitted to make a long
argument, and it seems hardly fair to cut us off from a reply.

Senator Powers. — With all due respect to the Counsel and the Managers,
I trust they will proceed with the case, and allow this question to be de-
termined when it shall come up properly before the Senate. They can
just as well confide in the justice of the Senate hereafter as uo^\.

Mr. WiUlamx. — But we will then have to go over the argument again.
We have this question up now, and have consumed half an hour upon it;
and it seems to me the best plan is to have the matter determined at
once.

^Senator Kutz. — I would like to inquire if an announcement made in
some of the <laily papers the other day, to the effect that Mr. Edgerton
and the Attorney-General would each make an argument in closing this
case, is true ?

Mr. McCiilfoiigh. — We know nothing of newspaper statements.

Mr. Cumpbi'll. — 1 would state, in regard to that matter, that I have
seen many statements in the newspapers concerning the conduct of this
case, which are entire falsehoods. Any arrangement between the Mana-
gers and the Counsel, is one thing ; but as to any information given to
any person not connected with them, I do not believe any person en-
gaged in the prosecution of this case has ever afibrded any intelligence
on the subject to any individual or any newspaper.

Senator (jaski7L — I move that an order be entered by the Court that
Mr. Edgerton and the Attorney-General be tlie two Counsel on the part
of the Prosecution who should sum up the case.

Mr. WiiJiaim. — My motion before the Senate is, that but one Counsel
be allowed to sum up on a side, and that the defence have the close.

The Presi(fiii(/ Ojicf^r. — For the purpose of avoiding responsibility, I
admonished Counsel at the opening of this ease, that the ordinary rules
of law would be pursued in this particular, there being no rule of the
Senate on the subject. That was abided by, by Counsel, and I see no
cause to change the rule, at all.

Mr. WilUam-i. — So far as our abiding by it is concei'ned, I beg leave to
say that your Honor is laboring under a great misapprehension. We
did not theii see tit to go into a discussion on the subject, because we
thought the announcement premature. I then intended, at a proper
time, to make the motion I have now made. I must confess I was taken
by surprise and ver}- much astonished, after we had come in here, and
each side had announced its Counsel — the Prosecution naming three able
gentlemen, and the Eespondent but one — when, right upon the heels of
that, his Honor declared two Counsel would be heard upon a side, in-
stead of one. I did not then intend to be understood as assenting to it,
or abiding by it. for I intended to dispute it at the proper time. I in-

180

tended, when the appropriate occasion came, to ask each individual
member of this Court to say how that should be. So far as regards the
decision, perhaps I am wrong; and I beg leave to speak with due
deference to the Chair. So far as regards the power of the Chair to di-
rect, I believe there is another rule, which oi-ders that any question
which may arise may be submitted to the members of the Court. I
8upi30se tliat applies to a question of practice as well as any other.

Mr. Highy. — I ask, Mr. President, to be heard one moment in regard
to this matter. As one of the three who are here to aid in the prosecu-
tion of this case before this Court, I do not expect to have anything to
say in the closing argument. But I would like to say this — as probably
some members of this judicial body are not acquainted with the rules as
to arguments in cases of this kind : I do not know how it may be with
the able Counsel for the defence, but if I were in his place, I would pre-
fer to have an argument that is made under the rules j such as could be
required in advance of what I should have to say for the defence. That,
according to the rules, would require the Prosecution to make a state-
ment of its points. And the closing argument, under the general rule,
should be the one in answer to the argument of the defence.

iSenator Merritt. — If the Counsel will allow me, I would state that, as
this question seems raised just now, there have been several cases of this
kind, and I have sent for the Journals to see what the precedent is. I
hope the time of the Court will not be consumed in discussing the mat-
ter now, but that Counsel will Avait until the jjroper time for its deter-
mination comes.

Mr. Williams. — We can decide it in quarter the time now that it will
take if postponed to some future occasion.

Mr. Higbi/. — [Resuming.] I will be through in a moment. I find that
General Williams is now requiring the same thing of this body as on
yesterda3', when, in his argument, he insisted upon it that the rules
should be of the broadest character ; that even the rules of evidence and
law should not be held to in the proceedings of this Court. Then, Sir, I
would, on our part, insist that, according to all precedents in cases of
impeachment, the Prosecution should have the privilege of opening — as
it did — and also the closing argument. There is no precedent to the
contrary. Then, if we can have no other, let us observe the rules and
the precedents in all impeachment cases, and go away from those of law.
And if we do that, it is precedent that the prosecution should have the
opening, and it is precedent that the prosecution should close. And I
refer Senators to the case of Chase, who was tried in the Senate of the
United States, on impeachment, in eighteen hundred and four; when
John Randolph, Attorney on the part of the Managers, opened the case
before any evidence was taken, and the Counsel for the prosecution
closed.

Senator Gaskill. — I insist on my motion — that two Counsel, Mr. Edger-
ton and the Attornej'-General, be heard on the part of the Prosecution
in the summing up of this case.

Senator Rhodes. — We cannot determine that matter. It is impossible
for us to direct who shall make the arguments.

The Presiding Officer. — After the order entered this morning, that can-
not be done by the Senate.

Senator Parks. — It does not look like courtesy to say who shall make
the arguments ; but I suppose this Court has the right to say how many
arguments shall be made, or whether they will hear any or not. But

181

to say which Attorneys shall make them, would be a very singular pro-
ceeding. I hope the ease will proceed; and when the proper time comes,
the Senate will decide as to the number of arguments, and will be liberal
to both sides.

Mr. Wi'//iam^. — I hope the Court will decide on my motion now.

The Presiduifj Officer. — Are the members of the Senate in favor of de-
-eiding the question now, or of waiting until some future occasion ?

On division, the Senate refused to decide the question at that time —
ayes, 15 ; noes, 16.

TESTIMONY OF W. D. AYLETT.

W. D. Aylett, being called and sworn, testitied as follows:

Mr. mNiam.<. — Did you hear the testimony given by Mr. Finnigau, on
yesterday ?

A. — I did not.

Mr. Wi//iams. — lie testified that on the day of the election of General
McDougall to the U. S. Senate, he was at the St. George hotel, in Sacra-
mento, and there saw you. Judge Botts, Judge Hardy, Mr. Crittenden,
and, he was almost certain, Mr. Laspeyre, and several others, standing at
the bar in the attitude of drinking, or about to drink; that, on tliat
occasion Judge Hardy proposed a certain toast — ■• Here's to the health
of Jeff. Davis and the perpetuation of the Southern Confederacy ! May
his name be ])er])etuated as that of the immortal Washington !" Did
any such thing ever take place when you were present?

A.— No, Sir.

Q. — Did any such thing ever take ])lace in your presence, on the day
of the election of Senator McDougall, or any other day ?

ir(V«f.s\s-. — In connection with Judge Hardy?

Mr. Wil/icans. — In connection with Judge Hardy.

Witness. — No, Sir.

A Sena for. — I think Finnigan testified it was the evening of that day.

Mr. Williams. — A day is twenty-four hours long. [To witness.] On any
day, or any hour, day or night, at the St. George hotel, in Sacramento,
or any other place, did any such occurrence ever take place in your pres-
ence, in connection with judge Hardy?

A.— No, Sir.

CROSS EXAMINATION.

Mr. Campbell. — Dr. Aylett. there was a great deal of political excite-
ment in Sacramento at that time, was there not ? — a great deal of ex-
citement springing from this Senatorial election ?

A. — Well. Sir, there was some considerable excitement on that point.

Q. — And there was a good deal of excitement generally, was there not,
as between those who favored the Government of the United States, and
those who favored the Southern Confederacy ?

A.— Yes. Sir.

Q. — And it was a frequent occurrence for persons who took either side
of that question to get together and drink toasts of a character that ex-
pressed or suited their peculiar feelings and sympathies in regard to this
matter ?

A. — I do not know that that was so.

182

Q. — Do you not recollect of frequently hearing such kind of toasts as
General Williams has here repeated to you ?

^. — I clo not recollect of hearing any such language used in my pres-
ence as a toast.

Q. — If such a toast had been offered in a public bar room, if it had
been given within your hearing, but if you had not been called upon to
repeat it immediatel}^ afterwards, or to recall it to your mind immedi-
ately afterwards, would it not be likely that you would forget it ?

A. — I think not. I think that if such a toast was proposed at such a
time, I would have recollected it.

Q. — Were not toasts of that kind very common among those who
sympathized with Secessia ?

A. — I do not recollect, Sir, at that time of hearing any toasts of that
kind.

Q. — You are yourself a sympathizer with the rebellious States ?

Wifnesx. — Am I up here to be put u])on trial ?

Mr. Campbell. — Not that I am aware of

Witness. — I was a Democrat, Sir.

Mr. Campbell. — But the question was, were you a sympathizer with
what is known as the Southern Confederacy ?

Witness. — I was in favor of that party that was really a Democratic
party — the party in favor of the Constitution of the United States.

Mr. Campbell. — Were you not a sympathizer with those who were in
arms against the United States? Those headed by Jefferson Davis?
That is what I want to get at. Are you not a sympathizer with those
that are in arms against the United States ?

Witness. — Yes. Sir, I am.

Q. — I will ask 3"ou one more question : Did you hear Judge Hardy, at
or about the time to which reference has been made, express sympathy
with the Confederate cause ?

A. — I do not recollect hearing him express himself either the one way
or the other.

Q. — Do you not recollect having a conversation with Judge Hardy, in
the course of which he expressed himself in favor of the Southern Con-
federacy ?

A. — I do not. Sir.

Mr. Williams. — You were asked, if such a toast as has been repeated
was proposed and drank in your presence, whether you would be likely
to recollect it or not. Kow, I ask you, if you were one of a party — com-
posed of yourself. Judge Botts, Judge Hardy, Mr. Crittenden, and Mr.
Laspeyre — and such a toast was proposed in your presence by one of
that party, whether you would not have been likely to have heard it
distinctly, and to have remembered it distinctly ?

A. — Certainly, Sir, I think I should.

TESTIMONY OF CHARLES T. BOTTS.

Charles T. Botts, of Sacramento, being called and sworn, testified
as follows :

Mr. Williams. — Judge Botts, where have you resided for the last year ?

A. — In the City of Sacramento.

Q. — Did you hear Finnigan's testimony given j-esterday ?

A.— I did not. Sir.

Q. — Did yoii hear my statement of it to Dr. Aylett ?

A. — Xot very distincth'.

Mr. Williams. — 3Ir. Finnigan testified, (if I make any mistake, the
gentlemen on the other side will correct me) Finnigan testified that on
the day when General McDongall was finally elected Senator of the
United States by the Legislature of this State, he was at the St. George
hotel, in the City of Sacramento; that he saw yourself Judge Hardy,
Dr. Ajdett, Mr. Laspeyre, ex-Senator Crittenden, and some others,
drinking together, or about to drink together, at the bar of that hotel.
That on that occasion. Judge Hard}', after his glass was prepared, offered
this toast : '• Here's to Jetf. Davis and the perpetuation of the Southern
Confederacy; may his name be perpetuated like that of the immortal
Washington." Did any such occurrence ever take place?

Mr. Botfs. — In m}^ presence ?

Mr. Williama. — Yes, Sir, in your presence. You were a part of the
company who were named. Did ever any such occurrence take place in
your presence ?

A. — Xo, Sir.

Q. — Did ever such an occurrence take ])lace in your presence. Judge
Botts, at any other time, or in any other j^lace ?

A.— No, Sir.

CROSS EXAMINATION.

Mr. Cdmphfll. — Are you in the habit of frequently going into the St.
George and taking a drink ?

A. — Xo, Sir; not in the habit.

Q. — "Well, vou go in there sometimes for that purpose, don't you ?

A.— Yes, Sir.

Q. — Xow when was this matter first called to your attention?

Mr. Bott><.—\\\\-At matter?

Mr. Comphell. — This statement of Finnigan's.

Mr. Botts. — I suppose some two or three weeks ago. It was a short
time after he was examined by the Committee. Somebody pointed out
to me. in a ncAvspaper, some of Finnigan's statement.

(^). — Xow. could it not very easily have happened that a toast of this
kind might have been given in your presence so far back as last March
or last April, without your recollecting anything about it at the present
time ?

A. — I think not.

Q. — Do you not know that about that tinae persons entertaining differ-
ent views on political niatter.s — persons entertaining difterent views in
regard to the condition of our country — were in the habit of giving toasts
of an opposite character at the St. George and at other hotels in Sacra-
mento ?

A. — I do not. Sir. I was very little there.

Q. — I ask you whether you were a sympathizer, or not, with what is
known as the Southern Confederacy ?

A. — As I understand it, that is the crime which you allege against
Judge Hardy here. You don't want to implicate me in the same offence,
as you call it, do you ?

Mr. Caviphell. — -If you think that your answer Avould implicate you in
any crime, of course you need not answer.

Mr. Botts. — Xo ; I have no objection, whatever, to answer candidly
and freely. I was, Sir ; 1 was. I am in sympathy with that Confed-

184

erac}", with all my heart and with all my soul. That is my answer. Is
that enoug-h, Sir 'i

Mr. Campbell — Yes, Sir, that is enough.

TESTIMONY OF SENATOR RICHARD IRWIN.

Eichard Irwm, Senator from Plumas County, being called and sworn,
testified as follows :

Mr. Williams. — How long have you known Judge Hardy ?

A. — I think I have known him since eighteen hundred and fifty-two.
Either since eighteen hundred and fifty-one, or eighteen hundred and
fifty-two. Eighteen hundred and fifty-two, I think it was, when I first
became acquainted with him.

Q. — Have you known him pretty well ?

A.- — Yes, Sir.

Q. — Have you known him for the past year pretty intimately?

A. — Well, Sir, 1 have seen him jjretty frequently within the last eight-
een months.

Q. — Have you often heard him express his sentiments upon the ques-
tion of Union or Disunion ?

A. — Well, Sir, at the time of General McDougall's election — I think it
was on the da}' when he was first reported as elected — w^alking down
from the Senate Chamber, on my way from the Capitol to my residence,
I stopped in at the St. George hotel, with some otlier gentleman. Mr.
Southard was with me. I think it probable that Henry Edgerton was
with me. I am positive that Mr. Southard was with me. When I went
into the St. George hotel, there was a crowd of gentlemen standing at the
bar. They were either drinking, or had just finished drinking. They were
talking about Emancipationists, and Al)o]itionists, and bogus Demo(^rats,
having made a fusion and elected Mr. McDougall to tlie United States
Senate. They wei-e considerably noisy. I noticed Judge Hardy in the
crowd. I alwa^'s had a great deal of respect for Judge Hardy as a man,
although I believe we have always differed in politics since I first knew
him, in eighteen hundred and fifty-two. As I got near the bar, I tapped
Judge Hardy on the shoulder, and remai'ked that the party were making
rather too much noise. I rather think that Dr. Sorrell, of Siskiyou, was
in the crowd, and was ver}^ noisy. I remarked to Judge Hardy then :
'" I always took you to be a Union man, and a man who supported the
Constitution." He looked at me, and said : '' 1 am a Union man, and I
do support the Constitution." And I think that we immediately walked
away together into the sitting room of the St. George hotel. At that
time, there were a number of persons standing at the bar, drinking, or
about to drink, who were talking in a very loud tone of voice and in a
very excited manner. They were denouncing those men who had com-
bined together and secured the election of McDougall to the United
States Senate.

Q. — Was there something in the tone of their convei'sation, something
which called out from you the remark which j'ou made to Judge Hardy ?

A. — Yes, Sir; something which they saii induced me to think that
the party generally were not very strong Union men ; but the contrary,
rather.

Q. — Do you recollect who was in that crowd of persons ?

185

A. — Well, I think that Doctor Sorrell and Mr. Crittenden were in the
crowd. They appeared to be verj^ bitter — the bitterest in the crowd.

Q. — You heard them make some very bitter remarks, did you ?

A. — Yes, Sir ; some that would be offensive to good Union men.

Q. — Did you hear any other persons in that crowd make any remarks
of the character you have described ?

A. — ISTo, Sir; I do not recollect that I did.

Q- — And upon that occasion you told Judge Hardy that you had al-
ways taken him to be a Union man ?

A. — Yes, Sir.

Q. — And his answer was, '' I am a Union man ?"

A.— Yes, Sir.

Q. — And what did he say about the Constitution and Government of
the United States ?

A. — lie said to me, " I am a Union man, and I am a supporter of the
Constitution and the Government." My remark to him was, " 1 think
this is rather a disloyal crowd, and 1 think that you had better get out
of it." 1 then said, " 1 always took you to be a Union man." He re-
plied, " 1 am a Union man, and 1 support the Constitution." 1 think
that Mr. Southard was standing by me at the time.

Q. — Do you know what other persons were in that crowd, besides
those you have mentioned ?

A. — 1 believe the same gentlemen were there that Mr. Finnigan men-
tioned— Judge Botts, Doctor Aylett, Senator Crittenden, and Mr. Las-
peja-e — with the addition of Assemblyman Sorrell, whom, 1 believe, Mr.
Finnigan did not mention.

Q. — Did you recognize those men as Union men ?

A. — 1 had alwaj'S heard them classed as disunionists, and 1 suppose it
was partly on that ground, and ])artly on the ground of the particular
ex2:)ressions that some of them made use of then, that 1 made the re-
mark to Judge Hard}' which 1 did.

Q. — Do you know whether Judge Hardy drank on that occasion ?

A. — No, Sir. 1 did not see any drinking. I think the party had
drank just before I came into the room.

Q. — Had Judge Hardy any part in that conversation which you
deemed disloyal ?

A. — 1 did not hear him make a remark. Sir. The Judge was standing
at the end of the counter, near the door.

Mr. Campbell. — What was the subject concerning which this party was
speaking in a disloyal manner ?

A. — Well, Sir, they were talking in a loud tone of voice about General
McDougall's election to the United States Senate. From this they
branched off into expressions which 1 did not consider loyal.

On motion of Mr. Watt, nine hundred and sixt}^ copies of the official
report of the testimony in this case, were ordered to be printed.

TESTIMONY OF FRANCIS SNYDER.

Francis Snyder, being called and sworn, testified as follows :

Mr. Williams. — Please to stand a little aside from the range of that
24

186

lamp, will you Mr. Snyder, so that I can see you. Where do you reside,
Mr. Snyder ?

A. — In Mokelumne Hill, Sir.

Q. — ^How long have you lived there ?

A. — Ten j^ears. I came there in eighteen hundred and fifty-one. I
was absent a year or more.

Q. — Do you know Judge Hardy ?

A.— res. Sir.

Q. — How long have you known him ?

A. — Three or four years. I am not certain, exactly; I have known
hi)n some time, however.

J/r. Williams. — I will anticipate the cross examination a little — antici-
pate their usual way of examining witnesses. I ask you what your pol-
itics are. Sir ?

A. — I am a Republican, Sir.

Q. — Had you anything to do Avith the purchase and running up on the
Coui't House, at Mokelumne Hill, of an American flag, last winter ?

A. — Yes, Sir. It was last P\iil, Sir.

Q. — Did you take part in raising a subscription to buy the flag ?

A.— Yes, Sir.

Q. — I will ask you when that was?

A. — I think it was in September, or in August, eighteen hundred and
sixty-one. I helpea get up two flags.

Mr. Williams. — I speak of the one raised on the Court House. Was
that when the Court was in session ?

A. — Yes, Sir. I am not certain, on reflection, whether it was in Au-
gust or November.

Q. — State whether you had any conversation with Judge Hardy in
regard to putting the American flag on the Court House.

A. — I met him in the street, one day, and said to him — " James, (I
think I addressed him familiarly, as James,) I am trj-ing to raise a little
money to purchase and put up a flag on the Court House." Said he
to me, '• Frank, I Avill give more than any one man, for that purpose."
And he asked me how much any one man had subscribed. I replied that
I had not asked more than a dollar from any one man. He gave me two
dollars and a half; and he said if that was not enough, he would give me
more, if it was needed.

Q. — Did you say anything to him about your having understood that
he was opposed to putting up the flag on the Court House ?

A. — No, Sir. That was my idea in asking him. I had understood
that he would not allow a flag to be jjut on the Court House.

Q. — And to test that matter you asked him if he would give anything
toward purchasing the flag?

A. — I did not intend to ask him for anything, but as I was appealing
to some of my neighbors for subscriptions, they said " There comes Judge
Hardy, j^ou bad better ask him." So I made up my mind that I would.

Q. — Did you buy the flag ?

A.— Yes, Sir.

Q. — Did you run it up ?

A. — I gave it to the boys, and they put it up.

Q. — Did 3'ou and Judge Hard}- converse then in relation to his senti-
ments in regard to the Grovernment of the United States, the Constitu-
tion of the United States, and the flag of the United States ?

A. — No, Sir, not then ; not at that time.

Q- — Had you any conversation with Judge Hardy, or have you heard

187

him converse on that subject seriously ? Have you heard him converse
when he was arguing the questions involved in our present national diffi-
culties ?

A. — I have heard him speak of the difficulties of the country- previous
to this time when I asked him for money for the flag.

Q. — I ask you whether you have heard him engaged in deliberate dis-
cussion with any person or persons upon the question involved in the
present national difficulties ?

A. — I do not recollect that I have.

CROSS EXAMINATION.

3Ir. Camphell. — You say that there were two flags with which you had
something to do in putting up?

A. — Yes, Sir

Q. — When was the other put up ?

A. — We put a flag up on the Church first ?

Q. — Do you know how this question came to be mooted about putting
the flag up on the Court House ?

A. — Yes, Sir.

Q. — How was that ?

A. — I was at the Union hotel at Mokelurane Hill once, asking difter-
ent parties for a little money to buy a flag to put up on the Church.
Judge Hardy was in there at the time. I asked him if he would give
some mone}' for that object. He said, Xo. I think I asked him the rea-
son why he refused. I am not positive either whether I asked him the
reason ; but I asked him something. He said to me that he was not wil-
ling to give an3-thing for a flag to be put up on a Church. He said he did
not think it was right to mix politics and religion together. But if the
proposition was to put up a flag on the Court House, he would give ten
dollars.

Q. — You say you had heard him speak before this time in relation to
his sentiments in regard to the Constitution before this flag matter took
place ? Did 3'ou not so state in answer to a question by Gen. Williams?

A.— No, Sir.

Q — I understood you to state that 3-ou had heard Judge Hardy speak
on this subject before this flag matter took place ?

A. — Yes Sir, I did.

Q. — Do 3'ou recollect any conversation as to this matter, during which
Judge Terr}- was present ?

A. — Yes, Sir.

Q. — Just state what a'ou know in reference to that conversation ?

A. — Judge Terry and Tod Eobinson were standing or sitting upon the
stoop of the Union hotel. Some one asked me what success I had had
in raising money for the flag. That was the flag for the Church. I
made some reply to that. I forget what it was.

Q. — Did 3'ou ask Judge Terry if he felt disposed to give a little towards
it?

Mr. WlJUams. — Never mind what Judge Terry said. Judge Hardy was
not present, then, was he ?

A.— No, Sir.

Mr. C'tnnphfU. — Did anj'thing whatever take place in presence of Judge
Hardv at that time? In the Court House, after the flag was on the
Church ?

A. — Once in the Court House, after the flag was placed on the Church,

188

Judge Terry asked, in rather a joking manner, bow I got along with ray
flag.

Mr. Williams. — "Was Judge Hardy present then ?

A. — He came in afterwards. A remark which Judge Terry then made
— I will not say what it was unless I am directed to — after Judge Terry
had made a certain remark, Judge Hardy came up just about that time.
If you wish to know what the language was, I will tell you.

Mr. Campbell. — State everything that took place in Judge Hardy's hear-
ing.

A. — I told Judge Terry that I had had pretty good success, or some-
thing of that sort. Says Judge Terry : "That flag is plaj^ed out." I
told him that I did not think that it was. I told him that I was going
to have a flag upon the Court House, if the boys would put it up. Said
Judge Terr}^ : " That flag is played out, and the Constitution, too; there
is no Constitution." Judge Hard}^ was in the act of coming up, when
Judge Terry made that remark. Judge Terry then said : " Jim, ain't
that so?"

Q. — State what Judge Hardy then said.

A. — Judge Hardy said, " That's so."

TESTIMONY OF W. J. GATEWOOD.

W. J. Gatewood, being called and sworn, testified as follows :

Mr. Williams. — Where do you reside ?

A. — At Mokelumne Hill.

Q. — How long have you known Judge Hardy ?

A. — I do not remember. Sir. I have known him since I was a boy.
We were boj^s together. 1 knew him in Illinois. We were quite young
when I first became acquainted with him.

Q. — Have you known him since you first came to this country?

A.— Yes. Sir.

Q. — Had you a conversation with him, just after the battle of Fort
Donelson ?

Mr. Camphell. — That is rather late in the day. It was about that time
that these charges were brought against him. It only illustrates the ef-
fect of the determination of the Court 3'esterday. It was about the time
of the battle of Fort Donelson, or pretty near about that time that this
matter of Impeachment was mooted. However, I will not raise any ob-
jection to it.

Witness. — I cannot say exactly that it was a conversation, Sir. Judge
Hardy met me in the Court House, or on the street, in front of the Court
House — I am not certain which — and said: "Jeff'., didn't we whale them
like hell ? " I said, we did not, but the boys we Avere raised amongst did.
Said he : "I would rather have been a Captain or a leader of those Illi-
nois boA^s, than to have been Emperor of France." I think that that
was his remark. We separated then. I presume that is the '' conversa-
tion " you allude to.

Mr. Williams. — That is the one I mean, Sir ?

CROSS EXAMINATION.

Mr. Camphell. — Were there a number of your and his acquaintances in
the Illinois reijiments ?

189

A. — Yes, Sir ; some playmates, schoolmates and old friends were offi-
cers and soldiers in those regiments.

Q. — II(nv long ago was it that he made that remark?

A. — Well, I think it was ahout the time of the February term of the
District Court. It may have been about the close of the term. I am
not definite. Sir, in regard to the time.

Q. — Was not that some short time after the February term closed ?

A. — I think that I have not seen Judge Hardy since that term closed.
I knew tliat it was directly upon the receipt of intelligence here that
Fort Donelson had fallen.

Mr. Williams. — If the Counsel upon the other side will excuse me, I
will ask the witness one other question.

Mr. Campbell. — Go on, Sir.

3Ir. Williams. — What are your politics ?

A. — I am a Douglas Democrat.

Q. — A Union Democrat ?

A. — Yes, Sir. I am a Union man all the way tlu'ough.

Mr. 117///VrH*.s.— That is all.

Mr. Hl(jlji/. — Mr. President, in case the defence pursue a certain line of
testimony which they have indicated here in some discussion, we may be
obliged to call Mr. Gatevvood in rebuttal, so it will be necessary for him
to remain here.

TESTIMONY OF ISAAC LEVY.

Isaac Levy, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — 1 live in Vallecito, Calaveras County.

Q. — How long have you known Judge Hardy?

A. — I have known him for about two years and a half

Q. — Have you had any conversations with him, or heard him express
his sentiments as to Union or Disunion ?

A. — I never heard him make any expressions about disunion, or in
favor of disunion. I heard him make some remarks one morning, at the
time that the Mason-Slidell afi'air came up.

Q. — What did he say about that ?

A. — I heard him say that if the English Government declared war
against the United States, he would resign his commission and go and
fight for the United States.

Q. — Have you been on terms of intimacy with Judge Hardy ?

A. — I have.

Q. — Have you ever heard him express any other sentiments, or any
sentiments inconsistent with these ?

A. — No, Sir. I have never heard him express any other sentiments.

Q. — Have you been a good deal about the Courts at Mokelumne Hill
during their sessions ?

A. — I have for the last fifteen or eighteen months attended almost
every session of the District Court.

Q. — Have you observed Judge Hardy on the bench ?

A. — I have.

Q. — Have you ever seen him in a state of intoxication, or anything
approaching to it, while on the bench ?

A. — I have not.

190

Q. Have not his terms of Court been promptly and regularly held,

and the business been properly and regularly attended to ?
A. — Yes, Sir, so far as I know.

CROSS EXAMINATION.

Mr. Camphell. — How far is Yallecito from JMokelumne Hill ?

A. — About tbirt}' miles.

Q. — What portion of your time have you spent in Mokelumne Hill
during the past year 't

A. — I have been there at almost every term of the District Court. I
had some business there.

Q. — Have you been in the Court all the time ? •

A. — Sometimes in Coui't. and sometimes not.

Q. — What is your business ?

A. — I am a merchant. I sometimes stayed there a day or two after
the Court adjourned, to attend to my private business.

TESTIMONY OF FREDERICK SCHROBER.

Frederick Schrober, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — In Amador County.

Q. — Are you a member of the German Zeitsung, an association at
Jackson ?

A. — I was, Sir; I am not. at the present time. There was a German
society — a singing society, there.

Q. — Was there a Union meeting of an association of this kind from
.Jackson, and a German or French association at Mokelumne Hill, held
at Mokelumne Hill last year ?

A. — Yes. Sir, some time last Maj'.

Q. — State what took place on that occasion, and how Judge Hardy's
name came to be introduced.

A. — Well, both of these societies, from both counties, from Mokelumne
Hill and from Jackson, met at Mokelumne Hill, to hold a May festival.
Well, the festival was kept right in front of the Sanger hall, at Mokel-
umne Hill.

Q.— The hall of the society ?

A. — Yes, Sir.

Q. — Now. how did Judge Hardy's name come up ?

A. — Well, there were several toasts given, and finally the people there
called on Judge Hardy for a toast.

Q. — Let me ask you first, whether there was not a comjjlimentary
toast given to Judge Hardy, which called him out ?

A. — Yes, Sir. That was what I wanted to say. I did not know just
right how to say it.

Q. — Did Judge Hardy respond ?

A. — Yes, Sir.

Q. — Now, in that speech, what did Judge Hardy say about his having
been accused of being a Secessionist ? What did he say about his desire
to have his true sentiments known ? And what did he say about what

191

his true sentiments -were ? And first, what did lie say that he was ac-
cused of?

A. — He said he was accused to be a Secessionist, but now he wanted
to set himself rig-ht ; he wanted to be understood he is Union, that he is
a Union man, and was and is all the time a Union man.

Q. — About how many persons were there present at that time ?

A. — I should judge that about five or six hundred people were assem-
bled there.

Q. — l>id you see Judge Hardy at Jackson about the time the intelli-
gence came respecting ]\iason and Slidell ?

A. — Well. I could not say, particularly ; I saw him there some time
about that time.

Q. — State what sentiments Judge Hardy expressed at that time.

A. — ^Yell. Judge Hardy said, that if England ever would interfere
with our American matters, or with our matters here, he would be the
first man to shoulder his musket and defend our country.

Q. — How many men were present when he said that '{

A. — Well, there were several of us. When the stage comes in, and
brings the papers, there is always a little ci'owd together to get the first
news. I know that there was a small crowd gathered there then.

Q. — What countryman are you ^

A. — A German, by birth.

Q. — Have you been pi-esent in Judge Hardy's Court frequently, when
applications were made to naturalize some of your countrj-men?

A. — Yes, Sir.

Q. — State what has Judge Hard}- required proved, full proof in each
case, of devotion on the part of the applicant to the Constitution of the
United States, and to the principles of our Government ?

Mr. Campbell. — We object to this testimony, on the ground that it
proves nothing more than that Judge Hardy required such evidence as
the law sa^'s shall be given in such cases. It aftbrds no evidence of his
own sentiments, or on that point at all. It does not tell for or against
on that point. If Judge Hardy did do what General Williams asks if he
did, he did nothing more than his duty under the law.

Mr. Williams contended that the evidence which he proposed to bring
out on this question, was pertinent and important. He remarked that
Judge Hardy was no more obliged to fulfil this duty under the law, than
he was to fulfil any other duty, and that if he did discharge this duty
rigidly, it was evidence of his fealty to the Constitution and the Govern-
ment.

The Presiding Oflicer decided that the testimony Avas inadmissible.

An appeal being made to the Senate, it was decided to allow this ques-
tion to be put — the ayes being sixteen, and noes, fourteen.

Mr. Williams. — Now, you were present in Judge Hardy's Court at va-
rious times when 3*our countrymen applied for naturalization ?

A.— Yes, Sir.

Q. — I ask you whether, or not, Judge Hardy invariably required strict
and full proof of the devotion of the applicant to the Constitution of the
United States ?

A.— Yes, Sir.

CROSS EXAMINATION. '^

Mr. Campbell. — In the speech of Judge Hard}?^, to which you allude,
did he not state this: " I tell you now, I am a Breckinridge man by
principle ?"

192

A.— Yes, Sir.

Q. And did not he immediately follow that with these words, " I love

the South V

A. — Yes, Sir.

Q. — To what political party do you belong ?

A. — When Breckinridge ran for the Presidency, 1 belonged to the
Beckinridge party. But in the last canvass for Governor I was not
Breckinridge any more.

Q. — What were you then ?

A. — I am a Union man.

Senator Crane. — Whom did you vote for at the last election for Gov-
ernor ?

A. — I voted for Conness.

Mr. WiUiami. — Judge Campbell asked you if Judge Hardy did not say,
" I am a Breckinridge man by principle." You said that he did. I asked
you if be did not sa}^ that he was a Union man, and you say that he
did. I now ask 3'ou if he did not say also, " Nobody feels more sorry
than I do for the present unhapp}' conflicts of the country ?"

A. — Well, he said that he was very sorry for this conflict in the war in
America — that he was very sorry over it. He said that he was in favor
of the Union, always and forever. That is as much as I can recollect of
it. I cannoo pronounce it as well as he did.

Q. — Did he say anything about loving his country and the Union ?

A. — Yes, Sir.

Q.— Wliat was that ?

A. — Well, he says, that no man loves this country better than he
does.

Mr. Camphell. — In answer to a question of General Williams, you
state that, in naturalizing persons, Judge Hardy required strict proof of
their loyalty. Do you knoAV what witnesses he examined ? Do you
know any particular case where he examined witnesses as to their loy-
alty ?

A. — A^ ell, I was a witness several times mj-self.

Q. — Do you know anything as to any other witnesses being sworn in
those cases besides yourself ?

A. — Yes, Sir.

TESTIMONY OF J. B. SOUTHARD.

J. B. Southard, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — At Petaluma, in the County of Sonoma.

Q. — Are you a lawyer, Sir ?

A. — Yes, Sir.

Q. — Were you at San Eafael at the time of the trial in the Terry
case ?

A.— Yes. Sir.

Q. — Will 3-0U give the Court a history of what took place upon that
trial ? f

A. — I will attempt to do so. Sir, as far as my recollection will permit
me. 1 v\-ent to San Eafael, from Petaluma, in company- with Judge
Hardy. I believe I had some business at San Eafael, at the Court there.
I was present during the proceedings in Court, when Judge Terry was

193

tried. The jury was called, and then something was said about not jiro-
ceeding with the trial until some witnesses from San Francisco, who
were absent, had arrived. The District Attorney said that he expected
the witnesses would be there. They empanelled the jur}^, and then the
District Attorney wanted to dismiss the case on account of the absence
of witnesses.

Q. — What do you mean by " dismiss ?"

A. — I mean that the District Attorney wanted to take a verdict.

Q.— The District Attorney ?

A. — Yes, Sir ; the District Attorney, himself. Judge Hardy said that
the time was not up. Or, first, Judge Hardy asked : " What shall I do
Avith this case, Mr. District Attorney?" I believe that the District At-
torney said : " I will take a verdict." The Judge asked : " How about
the witnesses for the prosecution ?" The District Attorney responded :
" I have exhausted the process of the Court to get them here, and they
are not here."

Q. — Then what happened ?

A. — Judge Hard}' responded : " You know best about that, Sir." The
Judge then waited some time, until he said the time was up. I know
that he had his watch with him, and took it out, and looked at it several
times. They took a verdict then for the defendant, without producing
any proof.

Q. — After the affair was over, after the defendant had been discharged,
did you come down here with Judge Hardy ?

A. — I believe so.

Q.-— Had anything been said to attract your attention to the time
when the verdict was taken ; as to whether it was right or wrong,
according to the announcement of the Court ?

A. — Yes, Sir. I recollect that Mr. Shatter was there at San Eafael.
I heard him say that the time was not up, when Judge Hardy took the
verdict ?

Mr. Campbell — State whether this was in the presence of Judge Hardy
or not ?

A. — No, Sir. I do not think that what Mr. Shafter said was in Judge
Hard^^'s presence. I had heard Mr. Shafter say that the time was not
up ; that the witnesses would have been there in time if thej^ had waited
a little. That was, I think, shortly after the discharge of Judge Terry.

31)'. WiNicans. — How did you find the time really was ?

A. — I had no watch with me myself, at the time. But when I heard
these statements, I felt anxious to learn the facts about the case. I
asked several persons what their time was, and it agreed with that of
Judge Hardy's. I think that I inquired of Mr. Carder, of Petaluma,
who had a watch. I think I also inquired the time of others. Because,
when I heard this remark about the verdict being taken before the time
was up, I wanted to know whether it was true or not. It had not
occurred to me that the verdic^t was taken before the time was up.

Q. — You are a Union Democrat, and you were a friend of Broderick ?

A.— Yes, Sir.

Q. — Did 3'ou hear the testimony of Finnigan, yesterday ?

A. — No, Sir. I just got here to-day.

Q. — Did you hear the testimony of Senator Irwin, this morning ?

A.— No, Sir.

Q. — Your name was mentioned as that of one of several persons stand-
ing at the bar of the St. Greorge hotel, in Sacramento, on the day of the
election of General McDougall to the United States Senate, when it was
25

194

etated that a certain toast — ^no, T am mistaken ; it was not stated that
you was in that company. Mr. Irwin mentioned that you were present
irith him, however, when he spoke to Judge Hardy. ISTow, do you re-
member that ?

^ — I cannot remember it, Sir. I never had the subject called to my
mind. I supposed that I was called here to testify about the Terry mat-
ter, and I have not thought about anything else.

3fr. Campbell. — The Prosecution has no questions to ask this witness.

Senator Be Long. — AVell, I desire to ask the witness a question. At the
time of this Terry trial, did you hear the District Attorney, or any other
person in the Court room, in the presence of the Judge, and before the
verdict was rendered, state that the witnesses for the Prosecution were
in a boat in the " creek," and would soon be there?

Witness. — In the Court room ?

Senator De Long. — Yes, Sir. Was that statement made in the Court
room, before the Judge, before the verdict was rendered?

A. — I think that the District Attorney said that the witnesses were
somewhere near at hand.

Q. — Before the verdict was rendered ?

A.— Yes, Sir.

Mr. Williams. — Before the jury was empanelled ?

A. — Yes, Sir, I think it was. After I heard these reports, I went to
Judge Hardy and asked him what time it Avas by his watch. I then made
inquiries about the time from others ; and the decision which I came to
from the inquiries I made of several individuals was, that Judge Hardy
was right.

Senator Van Dyhe. — ^AVhen was that ?

A. — That was at San Eafael, at the time of the Terry trial.

Senator Perkins. — Did you see Judge Hardy's watch ?

A, — Yes, Sir ; he showed me his watch.

Q. — Did you compare it with other watches ?

A. — No, Sir. I did'nt compare it with other watches. I went and
asked him to let me see his watch. I then told him what had been said
regarding the time when the verdict was rendered. I then went and in-
quired of other people what time they had.

Senator Perkins. — What time was this ; before or after ten o'clock?

A. — It was after ten. It was probably half an hour, or fifteen minutes
after the jur}^ had been dismissed. It was after I had heard the report
that Judge Hard}^ had dismisssd the case before the time was up.

3Ir. Williams. — Another question, if you please. When it was intimated
that the boat containing the witnesses for the prosecution was in sight,
do you know whether or not Judge Hardy sent somebody to look out,
and see if that was the fact or not ?

A. — I think so.

Q. — And after the jury was empanelled, did not Judge Hardy say that
they had better wait until the witnesses came ?

A. — I said so. »

Q. — And did it not turn out that the witnesses were not in the
" creek ? "

A. — I believe that was the fact. I saw Judge Campbell and Leonidas
Haskell, and told them about it, and I understood them to say that they
did not come up the " creek."

Q. — Do you know how that was — whether they did not land at Point
San Quentin ?

195

A. — I believe they did. I believe they came up from there in wagons.
1 recollect seeing one of them get out of a wagon or a stage.

Q. — Now, when Judge Hardy was applied to to empanel the jury before
the arrival of Avitnesses, did or did not Mr. Haralson, the District Attor-
ney, say that the boat was in sight, containing the witnesses ?

A. — Yes, Sir. I understood, from what he said, that the witnesses
would be up there in time.

Q. — Was it announced to Judge Hardy, before the empanelling of the
jury was commenced, that the witnesses were in sight?

A. — I could not tell whether it was before or after the empanelment of
the jury. My impression is that Mr. Haralson said the witnesses were
in sight before the empanelling of the jury commenced.

Q. — Which preceded the other — the empanelling of the jury, or the
information from the District Attorney that the witnesses were in
sight ?

A. — I think that the information from the Distinct Attorney, that the
witnesses wei*e in sight, preceded.

Q. — Then the empanelling of the jury followed '(

A.— Yes, Sir.

Q. — I understand you to state that there was a lookout sent out by
Judge Hardy to see whether the boat was really in sight, or not ?

A. — It is my impression that some one was sent out to see if that was
the fact.

Q. — Now, what was the report upon that ?

A. — I cannot state.

Q. — Was it that the witnesses were coming ?

A. — No, Sir, I do not remember that it was.

Q. — You do not remember what that report was?

A.— No, Sir.

Q. — But upon the announcement being made by the District Attorney
to the Court, that the witnesses for the prosecution were in sight, the
empanelling of the jury was proceeded with ?

A.— Yes, Sir.

Mr. CampheU. — Are you positive upon that subject, Sir ?

A. — No, Sir. I would not swear to anything positively that happened
so long ago. I so stated.

Senator Crane. — You made no memorandum, did you ?

A. — No, Sir. I made no writing.

Senator Perkins. — When did these witnesses for the prosecution arrive ?

A. — I think they arrived somewhere near noon.

Q. — After the jury was empanelled, what was said about the wit-
nesses?

A. — The District Attorney, Mr. Haralson, said that they were not
there. He said that he wanted to take a verdict from the jury some
time before the Court would let him.

Q. — Are you sure about that ?

A. — Yes, Sir, I am sure about that. That is certain.

TESTIMONY OP MARION GORDON.

M. Gordon being called, was sworn, and testified as follows :
Mr. Williams. — Where do you live, Mr. Gordon ?

196

A. — I live in Amador County.

Q. — You have been elected Judge there ?

A. — Yes, Sir.

Q. — What are your politics ?

A. — I am a Douglas Democrat.

Q. — Eather in favor of the Union then, Sir ?

A. — Yes, Sir ; entirely so, Sir.

Q. — Do you know Judge Hardy ?

A. — Yes, Sir.

Q. — Have you seen Judge Hardy very frequently within the last year?

A. — I have seen him during every term of Court which he has held
there.

Q. — And on every day of every term ?

A. — Almost every day. It was not every da}" that I was in town.
Every day that I was in town during term time I saw him, I think, or
nearly every day.

Q. — Conversed with him very frequently ?

A. — I would have to limit " very frequently." I have had frequent
conversations with him.

Q. — Have you conversed with him on political subjects, and subjects
concerning the troubles of the country ?

A. — I have, Sir.

Q. — I wish you would state the substance of those conversations, so
far as Judge Hardy's sentiments upon those subjects are concerned.

A. — I do not know that I could state what he said to me. Indeed, I
know I could not state the language which he used. But I could state
the substance of the language. He stated to me that he was a Union
man; that there was no man that liked the Union better than he did;
he said that if necessary, he was willing to risk his life for it; he stated
that Jeff. Davis had acted entirely wrong ; that he had acted foolishly,
and that, eventually, he would have to go down.

Q. — Can you state any more conversations, Sir ?

A. — That was in the course of one conversation. At another time I
asked him some questions. I told him of things that had been reported
as having been said by him ; and I asked him about them, and he made
rej)lies to me.

3fr. Williams. — State what those were.

A. — I stated to him that I had heard that a few nights before that —
probably two or three weeks — he and Severance and others, were out,
late at night, in our town, and that he had jH'oposed a toast to Jeff.
Davis and the Southern Confederacy. His reply to that was, that he
had never said anything that would have any tendency like that lan-
guage, except when he was excited. He said that frequently, when ex-
cited, he made use of expressions that were rough. He said he fre-
quently did so on many occasions when he saw men about him whom he
did not consider honest men — who were always making hypocritical j)ro-
fessions about their exceeding great love for the Union. He said that
he sometimes, when he heard them making "Buncombe" professions of
great love for the Union, made use of expressions that were not in ac-
cordance with his belief

Q. — Anything more, Sir ?

A. — I think that is about the substance of his remarks, as nearly as I
remember.

Q.— When was that ?

197

A. — "Well, Sir, wc had three separate conversations. The first was
previous to the election.

Q. — The election of Mr. Lincoln ?

A. — No, Sir; I think not. I think it was the night that Pen Johnston
was at Jackson.

Q. — Was it not the night when Judge Shattuck was there ?

A. — I could not state. I do not remember names well. I remember
that there were speakers there that night, and I remember that Judge
Hardy, and a man by the name of Hale, came to me, and talked to me
on the street.

Q. — Was there political speaking there, that night ?

A. — Yes, Sir. And while they were speaking, Judge Hardy came and
talked to me. He told me that his party had been beaten twice in that
county, and that they ought to submit. He said that, for his part, he
was going to submit.

Q. — That is, the Douglas branch of the party had beaten his party.
That is, the Douglas wing of the Democratic party had beaten the Breck-
inridge wing, and that the Breckinridge wing ought to submit; and
that, for his part, he was going to do so ?

A. — Yes, Sir.

Q. — AVhen was this conversation ?

A. — That conversation which I just repeated, was at the time when
the Breckinridge party had a meeting at Jackson. I was under the im-
pression that Pen Johnston was there. It might have been Judge Shat-
tuck who was there. But I could not be positive as to that.

Q. — Do you remember a conversation with Judge Hardy during the
first week of your September term of the District Court, at Amador
County, last Fall ?

A. — I remember a conversation that we had in my room, but I could
not state precisely the time.

Q.— Was it after the election, last Fall ?

A. — I think we had a conversation about that time.

Q. — Do you remember what he said to you were his political views
then, in consequence of his having voted for a portion of the Union
ticket ?

A. — I could not use his precise language. That conversation was in
my own room. He said in that conversation, that we, the Douglas men,
ought not to think him as much opposed to us, because he had actually
voted for two names on the Douglas ticket. One name I remember;
the other I do not remember.

Q. — Do 3'ou recollect what he said about identifying himself hereafter,
from that day, with the Union Democracy ?

A. — He said that hereafter he was going to act with the Union De-
mocracy.

CROSS EXAMINATION,

Mr. CmnpheU. — You saj' that he said he voted for two men on the
Douglas ticket. Who were they ?

A. — One was Mr. Irwin.

Q. — Do you recollect the other man ?

A. — I do not.

Mr. Williams. — Do you recollect whether or not it was Mr. Edger-
ton?

A. — I do believe that it was Mr. Edgerton. Yet, I cannot say.

Mr. Edgerton. — [Sotto voce.] A sensible vote, if he did.

Mr. CampheTl. — Please give, as near as you can, the date of these seve--
ral conversations ; and state whether they were before or after the last
election ?

A. — AVe had one conversation when the Breckinridge speakers were
there, at Jackson. There was another, on tlie night of the election,
which I introduced. I think that he introduced the first conversation.
I said to him at the last conversation, " Xow we have beaten you ! I
claim you !" We had another conversation still, in my room, last Fall ;
but as to what precise time it was, I could not say.

Q. — Then, two of these conversations were after the election, and one
was before the election ?

A.— Yes, Sir.

Q. — Did he, during that canvass, make any speeches ?

A. — I did not hear him make any ; but I heard of his making
some.

Q. — Do you know whether he went around making speeches, along
with Judge Shattuck and Pen Johnston ?

A. — I did not know of it.

Q. — Did you know what sentiments he professed in his public
s]Deeehes ?

A. — I did not. Sir.

Q. — In which conversation was it that he said that Jeff. Davis had
acted foolishly, and that, eventually, he must go down ?

A. — I think it was in the last of the three.

TESTIMONY OF CONRAD WELLER.

Conrad Weller, being called and sworn, testified as follows :

Mr. WiUiarm. — Where do you reside ?

A. — In Jackson, Amador County.

Q. — Were you present at a meeting of some German societies at Mo-
kelumne Hill ?

A. — I was.

Q. — Was there a toast drank at that meeting to Judge Hardy ?

A.— Yes, Sir.

Q. — By the society?

A. — Yes, Sir.

Q. — Did Judge Hardy respond ?

A. — Yes, Sir.

Q. — Did he make a little speech to them ?

A. — He did. He made some remarks.

Q. — Xow, will you state what he said in relation to accusations having
been made against him; what he said his true sentiments were ; and
what he stated about his attachment to the Union ?

A. — It is almost impossible for me to state exactly what words he
used. According to my recollection, he said that he loved the Union,
and was, therefore, sorry of this war. He said that he upheld the flag
of our Union — the Stars and Stripes — and the Constitution. These were
the sentiments he expressed; whether he used just this language, I can-
not say.

Q. — But you do know that he conveyed these ideas ?
. A.— Yes, Sir.

199

Q. — "What did he say to you about how far he would go to defend the
flag and the Constitution ? ^Yhat did he say on that subject?
A. — I do not recollect.

CROSS EXAMINATION. •

Mr. CampheU. — About what time was that to which you refer, at which
yoji say he made these remarks ?

A. — I think about the middle of May, eighteen hundred and sixty-one.
I think about the eighteenth or twentieth.

Q. — Was that at the meeting of the Sangerbund and other societies ?

A. — Yes, Sir.

Q. — This meeting was held at Mokelumne Hill, in Calaveras County,
was it not ?

A. — Yes, Sir.

Q. — The same meeting to which Mr. Schrober testified to ?

A. — Mr. Schrober was there at that time.

Q. — About how many persons were present?

A. — Well, by the crowd, I think there were three or four hundred.

Q. — Were not the people there in attendance generally loyal peoj)le ?

A. — Yes, Sir. I should think they were.

Q. — It was composed pretty much of Germans, was it not ?

A. — Well, about half There were a good many French there.

Q. — Well, that meeting was composed of Germans and French, most-
ly ; naturalized citizens ?

A.— Yes, Sir.

Q. — And they are generally loyal in their sentiments, are they not ?

A. — Yes, Sir. It is my opinion that th.&y were loyal; I would not be
positive that all of them were loyal.

Mr. Williams. — Were there not a good many men there whom you
knew to be publicly, generally known, as Secessionists ?

A. — I do not know how that was.

3Ir. William.s. — Well, for the purpose of refreshing your recollection, I
will ask you if you did not see an attack made on Judge Hardy that day
by Secessionists ?

A. — That I could not toll. I think that I saw some confusion there,
afterwards. But I did not know, or see, mj^self, as to the subject of the
difficulty.

Q. — You did not see who was attacked, or who made the attack ?

A. — No, Sir.

Q. — Did you see anybody pursue anybodj- else with a knife ? [Mr.
Williams said that he would afterwards, by another witness, identify
the occurrence to which he now referred.]

A. — I do not recollect.

TESTIMONY OF GEORGE R. WALKER.

George E. Walker, being called and sworn, testified as follows :

Mr. Williams. — Where do you live, Mr. Walker ?

A. — I have been living at Sutter Creek, Amador County, for the last
five or six years.

Q. — How long have you known Judge Hardy ?

200

A. — Since eighteen hundred and fifty-five.

Q. — Have you had frequent conversations with Judge Hardy on the
subject of the troubles of the country?

A. — Yes, Sir, I have had conversations with him, but not frequent con-
versations. I recollect distinctly that I had two conversations with him.
The first conversation, I think, was in November or December last. I
know that for some time I sought an opportunity of having a private
conversation with him, but none occurred. I hapj)ened to meet him one
day, and I said, " Now, Jim, I am going to give you fits." He said,
" Why, what have I done t" I told him that I had heard some pretty
hard stories about him — about his disloyalty, or his disloyal expressions;
that I had got a chance then, and that I intended to give him fits. He
remarked to me, "Dad," or "Uncle, perhaps I am not as bad as you
think I am." I then stated to him what I had heard he had said. He
replied that it was not so, and that he was glad to have an opportunity
to correct the false statements. He said he did'nt care what they might
think — referring to some bystanders, who were around — but, said he, " I
don't want that you should think that I am a Secessionist." He said that
he was as ready to fight for the United States now, as he was before the
war commenced. He said that no man in Amador County would fight
for the Union quicker than he would. Previous to that time, I had been
of the ojiinion that he was on the other side of the fence. The other
conversation happened at Jackson. I don't recollect now exactly the
time when that other conversation was.

Q. — Where was this first conversation ?

A. — It was at Sutter Creek.

Q. — Under what circumstances did it occur ?

A. — We happened to meet. I would rather not tell the precise spot.
It was not a disreputable place ; but, for certain reasons, I would not
like to name it.

Mr. Williams. — Well, you need not name it if you think there is any
impropriety in it.

Witness. — No, I do not know as there would be any great impropriety
in telling it. It occurred in the Masonic Hall, at Sutter Creek. It was
just previous to the opening of the meeting.

Q. — I suppose there is no impropriety in your stating whether you and
Judge Hardy are brother Masons, or not ?

A. — Yes, Sir, we are.

Q. — Now, as to the second conversation ?

A. — That occurred in Jackson, during the last term of the District
Court. I recollect that it was just after some war news had come from
the East by telegraph.

Q. — What was the news about ?

A. — It was in regard to a Federal victory — I could not tell ichat vic-
tory. There was a good deal of news of that kind coming along then,
and I don't recollect what particular victory it was. But I know that
he came down from the Court House, and, meeting me, said : " Come,
let's go down to George's and have some brandy. The news is good
enough to treat on."

Q. — Tax your recollection, please, and see whether it was not the bat-
tle of Pea Eidge ?

A. — I cannot tell. I only know that it was a Federal victory. I know
that soon after getting this telegraphic news. Judge Hardy was coming
down the steps of some building — I would not be sure whether it was
the Court House or some other building — and met me, and said : " Come,

201

let's go down to George's and get some brandy. This news is worth
treating on."

Q. — Did he say anything about his sentiments on the Union question
then ?

A. — No, Sir; nothing farther than I have stated.

Q. — Have 3'ou ever, in 3-our intercourse with Judge Hardy, heard him
utter any other sentiments than those you have given here, or any sen-
timents inconsistent with these '!

A. — I have not. I was for a h)ng time tr3-ing to get an interview with
him, but I did not get an opportunity until the time 1 told you of.

CROSS EXAMINATION.

Mr. Caniphdl. — "Was Judge Hardy acquainted with 3-our political views
at the time of 3'our convei'sation with him ?

A. — Yes, Sir; he alwa3's has been. I believe that the first time we
ever met, we had a political quarrel.

Q. — And 3'Ou don't recollect what particular victor3' it was Judge
Harth- referred to when he asked 3'ou to drink ?

A. — No, Sir ; they were coming in pretty fast then, and I could not
remember.

Q. — In the first conversation he told 3-ou that he was not as bad as
people represented him, did ho ?

A.— Yes, Sir.

Q. — Was it not the fact that that was his general reputation — that he
was in S3-mpath3^ with the Secessionists ?

A. — Yes, Sir ; that was what I heard up to that time.

Q. — That was his general reputation, Avas it, then?

A. — I believe that Avas his reputation in our town. I don't know how
it was around the rest of the county.

Mr. Williams. — No doubt there have been a great man3^ men in that
county who have slandered Judge Hard3'. •

Mr.'AVilliams objected to this testimon3'. He said that Judge Hardy
was on trial before a Senate of the State, and not before the people of
Amador Count3', or Cahiveras Count3'.

The Court, % a vote of twent3'-five to one, disallowed the last ques-
tion asked b3' Judge Campbell.

TESTIMONY OF WILLIAM WALCH.

■WilHam "Walch, being called and sworn, testified as follows :

Mr. Williams. — AYhere is 3'our residence ?

A. — In Volcano, Amador Count3-.

Q. — How long have 3-ou known Judge Hardy ?

A. — About seven 3'ears.

Q. — How intimatel3- ?

A. — T'e?-y intimatel3-.

Q. — How often have 3'OU been in the habit of seeing him, meeting him,
and talking with him ?

A. — I have met him frequcntl3' — during almost ever3'- term of his
Court in Amador Count3'.

Q. — Were 3-ou in the habit of talking with him confidentially ?
26

202

A. — Tes, Sir.

Q. — Have you talked with him about the troubles of the country ?

A. — Sometimes, Sir.

Q. — In consequence of the action of the South, and secession ?

A.— Yes, Sir.

Q. — State all you can remember of conversations with him upon that
subject, and what he said as indicating his opinions and feelings as re-
spects the Constitution and the Ciovernment of the United States ?

A. — As to the substance of those conversations, I have not the slight-
est recollection.

Q. — !No recollection about that at all ?

A. — No, Sir ; I do not recollect anything about this matter.

Q. — Do you mean to say that you don't recollect anything about these
conversations ; or do you mean that you do not recollect the language of
those conversations ?

A. — No, Sir. I do not recollect either the language or the substance.

Q. — From those conversations what irajjression was left upon your
mind as to his loyalt}^ ?

3Ir. CampheU. — Well, we object to this examination. Here is a witness
who swears that he does not remember either the language or the sub-
stance of conversation. Now, we object to his testifying to any im-
pressions which he gathered from conversations of which he can give
neither language nor substance.

Mr. Williams. — Now I admit that Judge Campbell would be right in
his objection if we were trying a case in a Court of Sessions. But I
undei'stand that a very different course is allowable here. And where a
witness cannot state the conversation, either particularly or generally,
then it is competent for the Avitness to state the impression produced b}*
that conversation ; especially, Mr. President, when a man is on trial for
impeachment in a case surrounded by circumstances like those which
characterize this. Now, it ^as urged, a few days ago, that it was the
eifect produced by these acts and expressions of Judge Hardy's, that ren-
dered them matters for particular censure and punishment — no matter
what his own real feelings may have been. Now let us see what was
the real effect of his conversations. When, the other day, they were
proving about some of Judge Hardy's talks in one of his joking, frolick-
ing moods, they were talking about the effect produced by his remarks,
independent of his intention at the time he made them. Now, when he
has been expressing his sentiments in grave moments, and we want to
show what effect his language produced, the Counsel on the other side
object — stating that they do not want us to prove the effect that his
serious conversation produced on any man who does not remember the
language or the substance of the conversation.

Mr. Campbell. — It is only just now that evidence of the opinion of a
community was ruled out. Now. it is jDroposed to give the opinion of
one man upon the same point. The general estimation as to loyalty, or
disloyalty, in which Judge Hardy Avas held, was not allowed to be given.
But the idea of allowing witnesses to give in as evidence their inferences
from conversations, of Avhich neither the language nor the substance is
in their memory, is something that I undertake to say Avas never before
dreamed of in any Court in Christendom. Mr. Campbell contended that
at all events the same rule that excluded testimony as to the general
reputation for loyalty or disloyalty, must exclude this proposed testi-
mony.

Mr. Williams. — Judge Campbell thinks that this testimony ought to be

203

excluded on the same ground that the Court decided to exclude testimo-
ny as to Judge Hardy's general reputation as a Union or Disunion man.
My answer to that is this : They asked what impression had got abroad
b}' and among third persons. "We ask what was the impression pro-
duced by the acts and language of the party himself, in particular in-
stances ?

The Presiding Officer ruled that the testimony was inadmissible.

Mr. Williams asked for the opinion of the Senate upon it.

The Presidiivj OjUcer. — The question before the Senate is as to whether
the witness can state impressions from conversations, of which he recol-
lects neither the subjects or the language.

The Senate refused to admit the testimony, by a vote of twenty noes,
to three aj-es.

Mr. Williams. — Have you attended the Courts held by Judge Hardy in
your county ?

A. — I have. Sir.

Q. — How regularly ?

A. — I have been there in attendance at almost every term he has
held in Amador Countj^.

Q. — During the time you have known Judge Hardy on the bench, have
you ever seen liim, during term time, on the bench, or off, in a condition
of intoxication ?

A. — Not in the slightest degree ; either on the bench or off.

CROSS EXAMINATION.

Mr. Camphell. — Have you been in the habit, during the last two years,
of being a good deal in Judge Hardy's company during the terms of the
District Court, in Amador County '/

A.— Yes, Sir.

Q. — Did you board at the same house with him during any portion of
the time ?

A. — I do not recollect that I did.

Q. — Were you in the habit of seeing him at the various hours of the
day or night '{

A. — Yes, Sir.

Q. — Did you never see him affected by liquor?

A. — I do not know what you call '• affected." I never saw him unfit-
ted for duty by reason of having drank too much.

Q. — Did you never see liim dui'ing these times, when his tongue was
thick, or when he could not walk straight ?

A. — No, Sir; never.

Q. — Did you never see him hugging people, and putting his arms
around them, as men frequently do, who are good-humored when in
liquor ?

A.— No, Sir.

Q. — You never saw him under the influence of liquor during his terms
of Court ?

A. — No, Sir; I never did.

TESTIMONY OF B. K. THORNE.

B. K. Thorne, being called, and sworn, testified as follows :

201

3Ir. Williams. — Where do jovl live ?

A. — In San Andres, Calaveras County.

Q. — How long have you known Judge Hardy ?

A. — Some four years, more or less.

Q. — What is your business, Sir ?

A. — I am an officer; an Under Sheriff.

Q. — How long have you been au Under Sheriff?

A. — Two 3"ears and a half.

Q. — In Calaveras County ?

A.— Yes, Sir.

Q. — Was you present at the time mentioned or alluded to hj one of
the other witnesses when the news came of the fall of Fort Donelson,
and when Judge Hardy made use of some expressions in regard to it ?

Witness. — Have you reference to the time when Mr. Gatewood was
present ?

Mr. Williams. — Yes, Sir.

Witness. — I was present then.

Q. — State what was said on that occasion ?

A. — Judge Hardy made the remark at the time that he was proud of
his State.

Q. — Go on. Sir.

A. — He said that he was proud of his native State, and proud of the
Illinois troops.

3Ir. Edgerton. — This was just after the Fort Donelson victory ?

A. — Yes, Sir.

Mr. Williams. — Go on, Sir.

A. — That is about all that I recollect hearing him say at that time.
There was something else said, but I do not recollect the exact Avords.

Q. — Do you recollect hearing him say anything about preferring to
have led one of those regiments to anything else ?

A. — I do not recollect anything about that.

Q. — Have you been an Under Sheriff since Judge Hardy presided on
the bench in Calaveras County ?

A. — No, Sir. I have been Deputy Sheriff part of the time.

Q. — Well, Deputy and Under Sheriff.

A.— Yes, Sir.

Q. — Been a good deal about the Courts there ?

A. — Yes, Sir; I have.

Q. — Attended Court, and had charge of Sheriff's duties in the Court
room ?

A. — Yes, Sir ; more or less.

Q. — You have had constant opportunity for observing Judge Hardy's
conduct ?

A. — Undoubtedly.

Q. — Did you ever see Judge Hardy under the influence of liquor so as
to affect the discharge of his duties at all while he was holding Court ?

A. — Not to my knowledge. Sir.

Q. — Have you heard him converse, heard him express his views and
sentiments upon the question of Secession and rebellion, and the conduct
of the South ?

A. — I recollect of no other conversation excej)t the one I have referred
to.

Q. — That is the only one ?

A. — That is the only one that I recollect of

205

Q. — Were you present during a speech which Judge Hardy made at
Calaveritas the night before the election ?

A. — I believe I was.

Q. — What did he say on that occasion regarding the difficulties of the
country ?

A. — Well, I do not recollect the precise language which he used.

Q. — No, I cannot expect that you do. But cannot you remember the
substance of what he said, and the character of the sentiments he ex-
pressed ?

A. — AYcll, I don't know that I can.

Q. — He talked on that subject, did'nt he ?

A. — I believe that he did. I was not present during the delivery of
the whole of his speech.

Q. — Don't you know that you heard that part of it relating to that
subject.

A. — I don't know that I did.

Q. — Did you ever hear an expression of disloyalty or disunionism — a
sentiment in favor of the Southern Confederacy, from Judge Hard}- ?

A. — I don't know that I ever heard him exjiress a disloyal senti-
ment.

Q. — What are your politics ?

A. — I am a Douglas Democrat — a Union Democrat.

Q. — Have you, during the last two years, acted at all in concert with
Judge Hardy with regard to political matters ?

A. — I have not, Sir.

CROSS EXAMINATION.

Mr. Camphcll. — What part of Calaveras County do you reside in ?

A. — In San Andres.

Q. — How far is that from Mokelumne Hill ?

A. — About eight miles, Sir.

Q. — The Courts of that County are held at Mokelumne Hill?

A. — They are.

Q. — Are you generally present during the terms of Court ?

A. — More or less.

Q. — Are you not absent three or four days in the week, at times ?

A. — Occasionally I am.

Q. — Your opportunities for observing Judge Hardy's temperate or in-
temperate habits during term time would not be as good as would those
be of the residents of Mokelumne Hill, would they be?

A. — I presume they would not be.

Q. — State whether you have ever seen Judge Hardy under the influ-
ence of liquor during the last two years, and during the term of his
Court ?

Witness. — Do you mean on the bench ?

Mr. Camphell. — I mean on or off the bench, during terra time.

A. — I think that I have seen him under the influence of liquor off the
bench.

Q. — Have you not seen him so, frequently ?

A. — I do not recollect the number of times. I may have seen him so
more than once.

Q. — Don't you know, fi'om your observation, that he is a pretty hard
drinker ?

A. — I suppose that he may be considered a tolerably good drinker.

206

TESTIMONY OF WILLIAM WELLS.

William "Wells, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — In Mokelumne Hill.

Q. — How long have you known Judge Hardy ?

A. — Three or four years ; about four years.

Q. — Have you heard him, within the last year, talk about the troubles
of the country — the rebellion, secession, etc. ?

A. — Yes. Sir. I recollect one time, in particular. I have probably
heard him oftener.

Q. — What particular time was that ?

A. — The conversation was about like this : The next morning after we
received the news of the battle of Fort Donelson, I met Judge Hardy in
the hall of the Court House, and he remarked to me, " Wells, that is con-
siderable news," and said he, '• Didn't our boj'S fight ?" I remarked,
^'- Our hoys!" "Yes," said he; "talk about bravery! There are no
braver men in the world than those Illinois boys. If I was an officer, I
would like to command a regiment of such men." That was about the
conversation. It might have gone on farther, but I do not recollect any-
thing farther in particular.

Q." — Have jovl ever heard Judge Hardy speak on such subjects at
other times ?

A. — I don't remember any other times, although I may have heard
him at other times.

Q. — Were you present on the morning of the first of March, or the
evening of the last day of the last February term, when the trial of
McDermott vs. Higby took place ?

A. — I was in and out of the Court House during the day when that
trial was on. I was a juryman at that term of the Court, but I was not
on that particular case.

Q. — Was you there down to the close of the trial?

A. — Well, I didn't hear the charge to the jury. I heard the argument
of Counsel.

Q. — Did you see Judge Hardy after he left the bench ?

A. — Yes, Sir. I think I did. In fact. I know I did.

Q. — Now, Sir, was he intoxicated at that time ?

A. — That is more than I can say. I know that I had a conversation
with him, but it did not occur to my mind whether he was, or was not,
under the influence of liquor. I do not jjarticularlj' remember the con-
versation— not all of it; but I know I had one with him. But whether
he was intoxicated then or not. I could not say, because I did not take
an}' notice. I did not think about it.

Q. — If you talked with him, and he had been intoxicated, you would
have noticed it, would you not ?

A. — I would have noticed it if he had been vers' drunk. But I was not
thinking about any such thing. He might have been a little intoxicated,
and I not have noticed it, because I was not thinking about it.

Q. — Are you intimately acquainted with Judge Hardy ?

A. — Xot very. I know him very well by sight ; but I am not very
familiar with him.

Q. — You are a Union Democrat, I believe ?

A. — Yes, Sir ; I am a Union man, sure.

Q. — You voted for Stanford, at the last election, didn't 3'ou ?

A.— No, Sir.

207

Mr. Williams. — Sorry for that.

Mr. EdtjtrUm. — You voted for Conness, didn't you ?

A. — Yes, vSir.

Mr. Edgerton. — Glad you did.

Senator Crane. — You threw aw a}' your vote.

TESTIMONY OF G. W. SEATON.

G. AY. Seaton, being called and sworn, testified as follows :

Mr. Williams. — \Yhere is your residence ?

A. — Drytown, Amador County.

Q. — How long have you lived there ?

A. — Since the latter part of eighteen hundred and fifty-three.

Q. — How long have you known Judge Hardy ?

A. — My impression is that I first became personally acquainted with
him in eighteen hundred and fifty-five. I kneAV him before thatj but I
had no personal acquaintance with him before that time.

Q. — How frequently have you seen him within the past year or two ?

A. — \Yell, I have seen him, I believe, during every term of his Court
in our county, except the last term, and occasionally between the terms
of the Court.

Q. — You say you have seen him during every term of the Court in
Amador County ?

A. — Yes, Sir.

Q. — You are practising law in Amador County ?

A. — Yes, Sir.

Q. — You are in the habit of conversing with him, and hearing him con-
verse during those terms of Court ?

A. — Yes, Sir.

Q. — Will you be kind enough to state what conversations you have
heard between him and anybody else, upon the subject of Union or Dis-
union, secession and rebellion ?

A. — Well, I have no recollection of any, except one conversation.
That was a conversation addressed to myself That Avas some time, a
short time, previous to the last Conventions in Amador County. I think
just before the Democratic Conventions.

Q. — Do you recollect about what date that was ?

A.— I do not recollect the time precisely. But I recollect the principal
portion of the conversation. I recollect that Judge Hardy approached
me, and remarked to me in this way : " George, you ought to be with us
in this fight." I understood him to mean that I ought to be in the party
he was with. I answered that I was a Union man, that I was in favor
of preserving the Union, and to that end supporting the Government.

Q. — What Avas his reply ?

A.— His reply was, " George, I am as good a Union man as you are."
And it is further my impression that he remarked, that in his devotion
to the Union, he acknowledged no superior. He said something to that
effect— something having about that import. I think that my response
was, that that might be, but that I thought that he was in the wrong
crowd.

Mr. Williams.— \Yq\\, he was in rather bad company, I reckon. Well,
what else did be say, Sir ?

208

A. — Well, that is about all, I think. There might have been a little
more talk. I know that my imjDression was that he had expressed him-
self as a Union man, and as one who would not act with a crowd whom
he knew to be directly opposed to the Union. I gathered somthing of
that imjDort from what he said. I know that I got the idea, but I did
not retain the exact language.

Q. — Is that all that you remember of that conversation ?

A. — Yes, Sir. That is all that I recollect.

Q. — And that is the only conversation that you remember ?

A. — That is the only conversation that I have a distinct recollection of.
I have a general recollection of some others.

Q. — Well, state them.

A. — Well, I recollect having a conversation when Judge Hardy was
present, and in regard to some political matters ; but I have no recollec-
tion of the language which he employed, farther than that he aimed to
impress upon me that I ought to act with the other party.

Q. — The other branch of the Democratic party ?

A. — Yes, Sir. I think that at that time he expressed to me that he
was a Union man, and that he would not go for a party that was not for
the Union.

Q. — Did you say that you had been a constant attendant upon the Dis-
trict Court in your county ?

A. — I believe I have been there during every term of the Court, ex-
cept the last term, since Judge Hard}' has been on the bench. Or per-
haps there was one term in eighteen hundred and fifty-nine when I was
not there.

Q. — State whether you ever saw Judge Hardy upon the bench when
he was affected by liquor in such a degree as to interfere in the least
manner with the proper discharge of his duties ?

A. — I never did, Sir. At least, I never had any impression of that
kind. Not in Amador County.

CROSS EXAMINATION.

Mr. Cam2)hcU. — What party was it that he wanted you to join ?

A. — I understood that it was the Breckinridge party.

Q. — Well, that was the party he belonged to at that time, was it not ?

A. — I so understood it, Sir.

Q. — You are acquainted with the leading men in that partv, are you
not?

A. — I am acquainted with some men who are supposed to be leading
men in it.

Q. — Are they not Secessionists? Do you know whether Judge Botts,
or Doctor Aylett, or Mr. Laspeyre, belonged to that party ?

Mr. Williams. — Well, I object to that question. If we are going to try
the political sentiments of every man in that party, we shall hardly get
through this year.

Mr. Campbell contended that the question was legitimate.

Mr. Williams replied to Mr. Campbell, arguing the inadmissibility of
such testimony as was sought to be introduced by such a question as Mr.
Campbell now proposed.

The Presiding Officer admitted the question.

Mr. Campbell. — Do you know to wliat party Judge Botts, Doctor Ay-
lett, and Mr. Laspej-re belonged ?

A. — Well, I do, from reputation. That is all.

209

Q. — Don't you know, of your own knowledge ?

A.— Xo, Sir.

Q. — Now, you speak of the Breckinridge party. You mean the party
which nominated McConnell for Governor, hist year ?

A. — Yes, Sir.

Q. — And you understood that Judge Hardy was a member of that
party ?

A. — That was the impression that I had ; and that was what brought
out the response which I made to his suggestion.

Q. — Don't you know that Judge Hardy made speeches for that party
last year ?

A. — Xo. .Sir; I do not, of my own knowledge.

Mr. WiUkom. — We admit that Judge Hardy was a member of the
Breckinridge Democracy. We are willing to admit that, any time. If
there is any proof of felony in that, you may have the benefit of it. We
admit that Judge Hardy, and others who have been named here, be-
longed to the same party — the Breckinridge Democracy — [Sotto voce]
and may God have mercy on their souls !

Mr. VampheU. — Have you seen Judge Hardy intoxicated oif the bench
during term time ?

A. — I never saw him intoxicated either during or between the terms
of Court — on or off the bench — during term time, or at any other time.

Q. — Wliere do you say you live ?

A. — I live at Drytown.

Q. — How far is that from Jackson ?

A. — Nine miles.

The Court then adjourned until Monday morning, the fifth day of
May, at eleven o'clock.

TESTIMiOISr Y

IN THE

TRIAL OF JUDGE J. H. HARDY.

SEVENTH DAY—MAY 5, 1863.

TESTIMONY FOR THE DEFENCE.

TESTIMONY OF J. F. TURNER.

J. F. Turner, being called and sworn, testified as follows :

Mr. VilUiams. — AVhore do you reside ?

A. — In Jackson, Amador County.

Q. — You are District Attorney of Amador County, are you not?

A.— Yes.

Q. — How long have you known Judge Hardy ?

A. — I have known him about nine years.

Q. — Have you attended the terms of his Court in your county ever
since you were elected District Attorney ?

A. — I have.

Q. — How long have you been in the custom of attending the Courts ?

A. — About two years ; nearly two years.

Q. — What ai"e your politics ?

A. — Union Democratic, or Douglas Democratic.

Q. — Have you frequently, and "how frequently, heard Judge Hardy
talk upon the subject of the political difficulties of the country ?

A. — Once or twice, to my recollection. I think about twice.

Q. — State the character of Judge Hardy's expressions uj)on the sub-
ject, indicating his loyalty or disloyalty.

212

A. — I do not think I can exj)ress it in words. It was in a public con-
versation in one of the offices, that I first heard him speak on the sub-
ject.

Q. — One of the county offices, do you mean ?

A. — One of the offices connected with the Court ; the Clerk's office, or
the Sheriff's office.

Q. — Go on and give as near a picture of his talk on that subject, as you
can.

A. — There was a discussion going on, in regard to the question which
has agitated the country.

Mr. Williams. — [Interrupting.] By others ?

A. — By others, with Judge Hardy ; in which, one remark that I recol-
lect the purport of, was, that Judge Hardy was an officer of the State —
a Judge —

Mr. Williams. — [Interrupting.] Was that Judge Hardy's own expres-
sion ?

A. — His own expression; that he had taken a constitutional oath, the
oath of office; that he had no symj^athy with the South, or the Southern
Confederacy, which would cause him or permit him to swerve from his
duty to this Government. Those may not be the words; but I think
that was the substance of the language.

Q.— What else ?

A. — Well, I heard Judge Hardy remark, among other things, that his
friends were formerly residents of the South — or something of that kind
— I do not know what was said, exactly. It was expressing the idea,
that so far as personal friends were concerned, his sympathies were with
them.

Q. — With his personal friends ?

A. — Yes.

Q. — Did he say anything about his distinction applying to friends and
the Government ?

A. — I do not think he did, at that time.

Q. — State all that you can remember of that conversation, if you
please.

A. — I do not think that I could. My mind has been directed to that
point in the controversy going on latel3', and from the fact that I recol-
lect allegations which I had heard made against Judge Hardy prior to
that time. That was the prominent point that I remember. There
might be many things which I would recollect, if my mind could be di-
rected to them.

Q. — You say your attention was directed to this statement, partly
from the fact that you had heard some accusations made against Judge
Hardy?

A. — That was undoubtedly the main thing that directed my attention
to it.

Q. — Did Judge Hardy say anything about certain expressions he had
made, just before starting for Mono ?

A. — I do not know whether he did, at that time. I have heard him
make an explanation of that matter.

Q. — State what he said about it.

Mr. Camphell. — I suppose that ought to be before this investigation
commenced.

Mr. Williams. — Was it before the Investigating Committee of the House
was appointed ?

213

A.— I think it was. I do not think I have conversed with Judge Har-
d}' since.

Q.— State what Judge Hardy said about his having acted like a fool
on that occasion, just before he started for Mono.

Mr. CamphrU. — Wc object to that, on this ground : It is projiosing to
show that, after having made use of disloyal expressions, the Eespondent
attempted to smooth them down. That is something entirely diiferent
from showing his general conduct; and is within the rule as adopted by
the Senate, 1 think. It is an attempt, after having made use of these
expressions, to get rid of their effect ; and is clearly making evidence
for himself; and comes as strictly within the rule as it is possible for
anything to do.

Mr. W!ni(om. — I believe the Court has permitted us to prove Judge-
Hardy's statements and declarations of his sentiments.

Mr. Camphi'U. — Well, we withdraw the objection.

Witiu'iis. — I have heard Judge Hardy explain it something in this way :
That he was running that niglit with the boys, and that he was mostly
in a UniTjn croMal; and that the}- were using political badinage, the
one to the other; and that the expressions of a disloyal character which
he gave utterance to, were more in that spirit than anything else.

Q. — Anything more on that subject?

A. — I have no doubt there was^ good deal more, but I do not remem-
ber it. I remember only the import ; perhaps the words which express
the idea which would be conveyed.

Q. — Have you been a good deal in Judge Hardy's company within the
last year or year and a quarter ';*

A. — AVhile holding the terms of Court, I have been in his Court; but
out of Court I have jiot been much with him.

Q. — During those terms of Court, at recess, and before and after Court,
have you heard him talk upon these subjects in conversation ?

A. — I have, on several occasions; but I have never myself mixed much
in those conversations. Perhaps I might have heard a passing remark
whilst momentarily in his comjmn}'.

Q. — I will ask you whether, during all your intercourse with Judge
Hardy, on any occasion on which he was present, whilst he was talking,
you ever heard him express seriously a sentiment of disloyalty ?

Mr. Campbell. — Seriously !

Mr. WitUdim. — Well, whether you ever heard Judge Hardy express
such sentiments at all. Mr. Campbell don't like " seriously."

Witncnii. — I do not think tliat I have. I have rather thought in my own
mind —

Mr. CdinpihrU. — [Interrupting.] Never mind what you thought in your
own mind.

Mr. Williams. — You sa}^ you never heard the Eespondent exjDress a dis-
loyal sentiment ?

Witness. — I was simply going to say that I thought —

Mr. CamphelL — [Interrupting.] Never mind what you thought. Your
opinions are not evidence.

Mr. Williams. — I ask you, whether you took so much interest in this
subject of the loyalty of public officers, and whether that interest had
been so much excited by what you had heard of Judge Hardy, that if
you had heard any such thing as a disloyal sentiment from him, you must
have remembered it ?

A. — I think I should have remembered it.

Q. — You have given an account of one of the conversations, and then

214

you have given this statement made by Judge Hardy about the Mono
trij), which you cannot locate — as to whether it was in the first or the
second conversation. Now, give the second conversation.

A. — I think I heard Judge Hardy, upon one occasion, in the Clerk's
office, substantially use the language which I have related.

Mr. Williams. — That is the first conversation 5*

Witness. — Yes. I think I afterwards heard Judge Hardy conversing in
the Sheriif's office, when there was a good deal of feeling excited.

Q. — You mean a good deal manifested in the conversation, do you not?

A. — By the parties who were conversing. I cannot recollect distinctly
what that conversation was; and I do not know that Judge Hardy took
much part in it.

Q. — If he took any, state it.

A. — I think he did.

Q. — Will 3"ou give a detail of that conversation to the Court, as near
as you can ?

A. — I do not think that I can.

Q. — Give the substance of it, then.

A. — It would be a mere recollection of the ideas which I gathered from
the conversation, rather than of the conversation itself.

Mr. Williams. — That is always the case, when one cannot remember the
words.

Mr. Campbell. — Oh, no! The witness can relate the substance of the
conversation ; not the result on his mind.

Mr. Williams. — [To witness.] I do not ask the impression on your
mind,, but the result, as you remember the substance.

Mr. Caiiiphell. — I object to the '■ result."

The Presidinf] Ojfifcr. — I think if the substance is given, the result has
nothing to do with it.

Mr. Williams. — I do not ask for the personal impressions of the witness,
unless he can state how he has obtained them.

The Fresidin<j Officer. — Let the witness state the conversation as nearly
as he can remember it. That is sufficient, I think.

Witness. — I was endeavoring to fix it in \nj mind, but I do not think I
can. I do not think that I can repeat a word uttered by Judge Hardy.

Mr. Williams. — Can you give the substance of what he said '(

A. — I can give my impression or idea in regard to the substance.

Q. — That is your recollection, is it not ?

A. — Yes. That is my recollection. It may have come fi'om some
other party.

Mr. Cumphell. — If you have a definite recollection of the substance,
state it.

Mr. Williams. — You say you x;an give your idea, which is your recollec-
t ion, of the substance, but you do not know as to the words ?

A. — My impression now is, that the subject talked about by Judge
Hardy was the distinction between the sympathy that a person might
have —

Mr. Campbell. — Are you stating your recollection ?

A. — M3' impression of what came from Judge Hardy.

Mr. Williams. — Witnesses very often use the term " impression " for
•• recollection."

Mr. Campjbell. — Well, I propose to ask the witness whether he has any
definite recollection of what Judge Hardy stated at that time.

Witness. — I have not any distinct recollection. I should say that I
could not recollect a word that Judge Hardy then uttered.

215

Mr. Williams.- Was Eobert Rosner Sheriff at that time?

A.— Yes.

Q. — Was Under Sheriff James McKnight present?

A. — 1 think he was. I thinlc C. A. Lagrave, also.

Q. — Is Lagrave Treasurer of that county ?

A. — Yes.

Q- — The conversation, when they were present, is the conversation you
have just alluded to ?

A. — That is the conversation I allude to. I might, perhaps, if I had
time to reflect upon it, remember some of the language; but I cannot
Qow call it to mind. It is a general impression that runs through my
mind in regard to it.

Q. — I ask you whether your memory can be refreshed as to awj state-
ment made by Judge Hardy on that occasion, about having received a
letter about certain disloyal movements — I will not state the contents of
it — and what his reply to that letter was?

A. — I have heard of a letter, but I cannot say the knowledge came to
me at that time.

Q. — Do 3'ou recollect Judge Hardy's alluding to the contents of that
letter, and his answer to it ?

A. — I do not think I do. The discussion had already commenced when
I entered the office.

Q. — Have you been present when Judge Hardy was naturalizing for-
eigners in his Court ?

A. — I have, on several occasions.

Q — State whether he was particular, full, and rigid, in his require-
ment of proof of devotion to the Constitution and principles of the Gov-
ernment 'i

A. — I have never seen anytliing unusual in any of his requirements.

Q. — Did he always require that proof?

A. — He always did, so far as my knowledge extends.

CROSS EXAMINATION.

Mr. Camphell. — Do 3'ou recollect whether Judge Hardy was in the
habit of asking those seeking to be naturalized, whether they sympa-
thized with the Vigilance Committee ?

A. — I think I have heard that question asked by Judge Hardy.

Q. — Did you ever hear him ask any man who came there to be natu-
ralized, whether he S3'mpathized with the present rebellion ?

A. — I do not think I ever have.

Q. — When was this first conversation in the Clerk's or Sheriffs office,
at which you were present, in which Judge Hardy made tlio remark that
he was an officer of the State, and had taken the oath ? When did that
take place ?

A. — I think it was at the term prior to our last general election. That
is a mere recollection now, however; I have nothing to fix the date by,
distinctly.

Q. — When was the conversation about the expressions that Judge
Hardy made use of as he was going to Mono ? Was that after his return
from Mono ?

A. — It must have been, of course.

Q. — How long ago was it tliat that conversation took place ?

A. — I think it was about the first of our February term of Court. I
may be incorrect in that. I think it was the February term.

216

A. — Is not a term held in Calaveras in February ? "Was not this in
March ?

A. — I believe it was the March term. It must have been the March
term. My recollection is indistinct as to which term it was. It was
immediately on the close of the Calaveras term.

RE-DIRECT EXAMINATION.

Mr. Williams. — Mr. Campbell inquired of you whether Judge Hardy, in
naturalizing foreigners, asked if they 8ymj)athized with the Vigilance
Committee. Did not Judge Hardy ask them whether they belonged to
any association or party pledged to any movement for the subversion of
the Government or the violation of the laws ?

A. — Your asking tbe question of me has called to mind, I think, that
very fact ; I think, that very interrogatory. I recollect that the Vigi-
lance Committee was one of the associations which were mentioned;
but I think the question was qualified, by extending it to other disloyal
associations. That fact has not entered my mind since that time, until
my attention was just now drawn to it by your question.

RE-CROSS EXAMINATION.

Mr. CampheU. — Now, do you recollect at all what the form of Judge
Hardy's interrogatory to the persons applj^ng for naturalization was ?

A. — I think the question would be, whether the candidate had ever
belonged to any Vigilance Committee, or other association tending to
subvert the laws of the G-overnment — or something of that kind.

Q. — Was it not limited to associations for subverting the laws of this
State ?

A. — It may have been. Sir ; but, as I said before, at the time it was
not impressed upon my mind as very unusual.

Q. — You have no recollection of any instai^ce in which the Respondent
asked the candidate for naturalization whether he had any sympathy
with the rebellion, or the persons engaged in it ?

A. — I do not recollect anything of that kind.

TESTIMONY OF A. W. OENUNG.

A. "W. Genung, recalled on the part of the defence, testified as fol-
lows :

Mr. Williams. — You have already been sworn, and testified in this case
that you are Deputy County Clerk of Calaveras County ?

A. — I have.

Q. — During the past year, have you frequently heard Judge Hardy
converse upon the troubles of the country ?

A. — I have.

Q. — How frequently ?

A. — Well, veiy frequently; almost daily, for weeks together. Not
every week — some weeks he was not in the office at all ; but frequently,
week after week, almost daily.

Q. — Now state the character of the sentiments Judge Hardy expressed
upon this question, from day to day, and at all times.

217

A, — I have heai'd Judge Hard}^ discuss the topics of the war and the
rebellion, with different men, in the office ; with Judge Terr}^, Tod Eob-
iuson, Charley Leet, and others. I have heard him discuss with those
gentlemen, in opposition to their views on the subject.

Q. — State what views the}' expressed, and what Judge Hardy ojiposed,
and how he opposed them.

A. — To particularize witli refei-ence to discussions which took place
almost daily, as they did, and which are a very common thing in the
office, I being, at times, engaged in writing, sometimes doing nothing
and listening — is difficult. Unless there is something special to recall it
to my mind, it is difficult to specify.

Mr. Williams. — You know the subject and point to which I wish to call
your attention, and 1 wish you would state all — no matter how long it
is, whether it takes fifteen minutes or a week — that you ever heard
Judge Hardy say or express on this subject, as near as 3'ou can. State
the details where you can ; and where you cannot, state the general sub-
stance.

A. — \Yell, in general, I have always heard Judge Hardy take the
Union ground. I remember a discussion he had with Judge Terry in
the otiice, (no one else was present but Mr. Hanford and myself,) in
which I thought Judge Terry came out second best. I think he felt it ;
and Judge Terry then said — I won't repeat what he said. He made
some remarks in derision of our Government, which made my blood tin-
gle. I had not said anything; this was a discussion between Judge
Hardy and Judge Terry, solel}- ; I think Mr. Hanford was not engaged
in it. I glanced towards J udge Hardy, to see the effect. He looked to
me white with rage. I expected a bitter repl}^ —

Mr. CampheU. — Never mind what you expected. Just state what you
saw and what 3'ou heard. You state that Judge Hardy appeared white,
apparently with rage ?

A. — Yes. He turned away ; I thought, with aversion.

Mr. CiimpheU. — Confine yourself to what you saw, and do not give
your opinions.

Mr. Williams. — You may state what the appearance of the Eespondent
was, and his words.

Witneaa. — I think Judge Hardy made no reply, whatever.

Mr. Williams. — If he answered it by his manner, you may state it.

Witness. — Well, he turned away, as if, it seemed to me, in aversion and
disgust. Nothing further Avas said. They soon after left the office.

Q. — Now what occasioned that appearance which you discovered in
Judge Hardy, when he appeared to be white with rage, and turned away
with disgust ?

A. — Tliese expressions of derision relative to the Government of the
United States, which Avere indulged in by Judge Terry.

Q — Can you remember the expressions of Judge Terry, which pro-
duced this effect on Judge Hardy '(

A. — I could not remember all of them, and would rather not repeat
any.

Q._Why would you rather not ?

A. I was ooing to say that I do not think it has any relevancy here.

I said they Avere disloyal sentiments, and expressions of derision against
the Government of the United States. I could not remember them all.

Mr. Williams. — Well, I Avill not press you to repeat them, if you do not

218

wish to. But they were expressions of derision of the Government of
the United States?

A. — Yes.

Q. — And that was followed by Judge Hardy's appearing white with
rage, and immediately turning away, with disgust?.

A. — That immediately followed.

Q. — Can you go on and state what Judge Hardy assigned to you as a
reason why he did not retort uj>on Judge Terry ?

A. — There was another conversation, in which similar remarks were
made by Judge Terry.

Q. — A subsequent conversation, between Judge Hardy and Judge Ter-
ry?

A. — Yes ; Judge Hard}' had said that the success of the Federal party
was only a question of time.

Mr. Wif/iams. — [Interrupting.] He said this to Judge Terry?

A. — Yes. This was about the time that we got the news of the gun-
boats going down the Mississippi.

Q. — Do you mean starting down ?

A. — I presume you know to what I refer. And about the time of the
news of the probability of the taking of New Orleans. Judge Hardy
said, the taking of New Orleans was only a question of time (some
other place was also referred to, I think Memphis;) and that the success
of the Federal Government was only a question of time. Judge Terry
thought differently, and made some remark something like this: That
he would sell out his property very low, (mentioning, I think, what rate
he would sell it out for,) and take the pa}' when the Southern Confeder-
acy was acknowledged. Judge Hard}' made no reply to that, that I re-
member; nor do I now remember that I then noticed his appearance —
whether it was with favor or disfavor, that he received the remark. But
I know that he subsequently said he had made up his mind then that he
would never speak to Terry again. I suppose he meant on political
subjects; because he did not want to quarrel. I have no remembrance,
though, of Judge Hardy's appearance at the utterance of that by Judge
Terry. That was the second time that I heard Judge Terry make a
similar remark.

Q. — State what other conversations you remember.

A. — I do hot know that I can particularize.

Q. — You have already stated, I believe, that for weeks you heard
Judge Hardy talk upon this subject, more or less, almost every day ?

A. — Yes.

Q. — During all that time, did you ever, in a single instance, hear Judge
Hardy utter a disloyal sentiment, or any sentiment inconsistent with the
idea of a true and genuine attachment to the Government of the United
States ?

A. — No, Sir, except once; and then I did not consider it disloyal. I
heard Judge Hardy once say, that if he were commanding, he would not
lead an arm}' — he would resign before he would lead an army to the
place of his nativity ; mentioning some place in the south or west of Illi-
nois, where he had lived. That is the only expression that I ever heard
from him that could be wrung or tortured into disloyalty.

Q. — Judge Hardy came from Illinois, did he not ?

A. — I have been told so. I heard Judge Hardy say once, that he was
not in favor of the war when it tirst stai-ted ; that he thought it could
have been avoided ; that measures ought to have been taken to have pre-
vented it at tirst ; but that as we were in it, he was in favor of its prose-

219

cution to a successful termination. We were alone in the office then.
This was called out by a feature in the jiicture of General McClellan.
Judge Hardy said that the hope of the American people was in the brain
of that man, McClellan. He thought him equal to the undertaking.

Q. — And that it must be carried through ?

4" — ^^"' ^i}'- 1^^ "^^''^s i'^ fnYor of prosecuting it to a successful termi-
nation. I think that is the exact language. I remember his taking up
the picture of General McClellan, arid that we were both looking at it.
The Judge said the hope of the American people lay in the l)rain. of that
man, McClellan, and he thought him equal to the undertakin<r

Q._When was this ? "^

A. — I could not bring it to a ])oint of time, probably within— I might
not come within two or three months of it. '^

Q. — Well, state as near as you can.

A. — I should say it was in the Fall or early part of winter.

3Ir. WIUlaniH. — To refresh your recollection, I will ask you whether it
was on the receipt of the first published picture of General McClellan in
Leslie's Pictorial, or Harper's Weekly?

A. — Harper's Weekly- used to lie around the office, and that would fre-
quently call up the subject of the rebellion and the war. I could not say
whether this was the first picture of General McClellan. There was a
tine portrait of him in the paper, and we were looking at it. But it
might have been a paper I had had, or which had been around the office
a month.

Q. — You cannot tell how long it had been there ?

A.— No, Sir.

Q. — State all other conversations with Judge Hardy that you can re-
member, if you can now remember any more.

Q. — Oh, I cannot state the number of conversations. I would say
this, that I never lieard Judge Hardy utter any other than loyal senti-
ments. I watched him closely, to see what effect the news of defeat or
victory would have, both in his expression, his w^ords, his manner, and
his countenance. And I have always heard him express joy at the suc-
cess of the P'ederal arms. I sometimes thought that he did not express
that regret that a good Union man ought to, at our reverses. But I
have always heard him speak with pleasure of our successes.

Q. — I do not know but you may have been asked already, but I will
ask you now, what are your politics ?

A. — Democratic.

Q. — Yes, but Avhich breed of Democrats ?

A. — I do not know but one kind. They would call me, I suppose, a
Union Democrat ; I do not acknowledge any other sort of Democracy.

Q. — You rather think you are a Union Democrat, do you ?

A. — Yes, if I know myself.

Q. — Now, about that adjournment of the Court from Friday, the six-
teenth of August, to Monday, the nineteenth of August, eighteen hun-
dred and sixty-one. Was there, or not, a full understanding among the
members of the bar who were Counsel in the cases set for Saturday, the
seventeenth of August, that they should be accommodated on both sides
by the adjournment?

A. — Well, I would like to correct my testimony as to those two ad-
journments, as the same is published in some of the daily papers. A
portion of the report in the newspapers makes me say what I did not
say, or intend to say.

220

Q. — You speak of the brief publications in the daily papers ?
A. — Yes. In the Sacramento Union, and some of the other papers.
Their rei:)ort makes me say that there was business to transact on Fri-
day and Saturday, the thirtieth and thirty-first of August, eighteen hun-
dred and sixty-one. I stated that that had been my impression, but
that the record corrected me. There were two adjournments. The
second adjournment was Thursday, the twenty-ninth of August,
eighteen hundred and sixty-one. The record shows that on that day the
Court adjourned until " to-morrow." That is the time Avhen the Court
was not held again that term ; the time when there was no Court on
Friday and Saturday, the two last days of the term. The Judge was
not there, and the term died out — expired by law. No cases were set
for those days — Friday and Saturday. The jury had been discharged
some days previous; perluips a week previous. A special jury had been
summoned in the ease of Irvine vs. Dennis, and that case was concluded
that (Thursday) night. That jury was discharged without an order, the
case having been concluded. Hence, no jury was in attendance on Fri-
day and Saturday, and no cases were set for those days. The other ad-
journment was on Friday, the sixteenth, when the Covirt adjourned to
Monday morning.

Q. — You have testified that the record shows an adjournment on
Thursday, the twenty-ninth of August, eighteen hundred and sixty-one ;
that on Friday, the thirtieth, and Saturday, the thirty-first, no Court
was held; that the term died out ; that there was no jury there on Fri-
day' or Saturday ; that a special jury had been summoned for a particu-
lar case, which Avas tried on Thursday ; that that case had been con-
cluded, and the jury discharged, and that that ended the jury business of
the term. Is that so ?

A. — Yes; the last day of Court generally is spent in settling the time
when answers or replications, making stijjulations, etc., should be filed.
There probably would have been such business done on Friday or Satur-
day, if Judge Hardy had been there.

Q. — That was a matter in which nobody engaged but the Attorneys,
was it not? ]S^o witnesses, and no jury?

A. — Xo; no witnesses, and no jury.

Q. — Could it be done just as well at chambers, as in open Court?

A. — Well, that kind of business is done at chambers.

Q. — That was the twenty-sixth of August last, you say?

A. — Xo. Sir; the tAventy-ninth.

Eecess for one hour.

Examination of A. W. Genung resumed,

Mr. WiUidms. — You have explained the matter of the adjournment on
the twenty-ninth of August, after the jurj" business was all finished, and
the juiy discharged. Xow go back, if you please, to the sixteenth.
There was an adjournment from the sixteenth to the nineteenth — from
Friday evening to Monday morning — that you have spoken of?

A. — Yes; from Friday evening, the sixteenth of August, eighteen hun-
dred and sixty-one, to Monday morning, the nineteenth of August, eight-
een hundred and sixty-one. The records show that there were cases set
for Saturday, the seventeenth. Three cases had been set for Saturday,
and one of them put over. The other two were Lane vs. Paul, and Gate-
wood vs. McLaughlin.

Q — Xow, state whether, or not, there was an understanding on the
part of the bar. among the lawyers of both political parties, that there

221

should be a suspension of business on Saturday, to accommodate both
sides ?

A. — That question was asked me, the other day. Since that, it recalls
to my mind that something of the kind was said ; but I will not testify,
positively, that there was any understanding or agreement — that is, gen-
eral agreement — that that should be the case.

Q. — State just how much of it there was, that you know of

A. — Perhaps I had better state what I remember positively. Allan P.
Dudley, I remember, rose in his place, and asked that some case or cases
in which he was Counsel, which were set for the following day —

Mr. Williams. — [Interrupting.] That is, for Saturday?

A. — I have not said so, yet. Which were set for the following day
should be put over, alleging as a reason that he had an appointment —
the understanding was that it was a political appointment — and the fur-
ther reason that Tod Eobinson, who was expected to help him in a case,
was sick and could not be there when the case would come up — that is,
the following day.

Q. — That was Saturday, was it not ?

A. — I do not say it was Saturday, yet. The proposition was discussed
by the Attorneys, and ni}^ impression is — well, Dudley gained his point ;
that is, he got what he asked for, as I understood it, by a tacit consent.
There was no order made b}^ the Judge ; no order announced which I
sliould record. I cannot say positively that this was the day before that
Saturday — the seventeenth. I have nothing to guide me, except the
record, and by referring to that I cannot fix on any other daj" when
there could have been such a transaction. Therefore, I think it was on
that day. I have nothing but the record, though, to cite me as to the
day.

Q. — Will you state what there is in the record to cause you to think
that it was the day before that Saturday — the seventeenth — that Dudley
asked and obtained this ?

A. — Why, I find no record of an adjournment over any other day
when there was an}' business to be done.

Q. — And, according to your recollection, Dudley did accomplish the
adjournment for a da}'. Avith an understanding as far as you knew ?

A.— Yes.

Q. — Was Dudley Counsel in each of those cases ?

A. — lie was Counsel of record in Lane vs. Paul ; I think he was not
Counsel in Gatewood vs. McLaughlin. Brockway brought that suit, and
William L. Dudley defended it. That is my memory now. I cannot say
that they were or were not in that case; I would not swear positively.
Nor do I say that when A. P. Dudley arose and asked for a postpone-
ment of his cases, that they were those cases. I say that it was some
day, and I fix on that day.

Q. — But you say that you cannot find any indication of its having
been any other day ?

A. — That is so. It may have been that day, and those the cases.

Q. — Now let us pass to the case of the motion for a Eeceiver. When
Vaughan was appointed Eeceiver, Avho were the sureties on the Ee-
ceiver's bond ?

A. — I do not like to swear very positively as to that — as to all of
them ; I cannot. I filed the bond, and think their affidavit was taken
before me. WiHiam L. Dudley, Allan P. Dudley, and W. W. Porter,
were the sureties, I believe. I am not mistaken as to Porter, I think.

Q. — Is that bond missing from the files ?

222

A.— Yes.

Q. — Cannot you find it ?

A. — No, Sir; I have not been able to find it. It was with the papers
in the case some time. It was with a bundle of bonds that I kept to-
gether. There is no place in the office under lock and key ; and I have
changed this bundle of bonds around, I suppose, twenty times, from one
place to another, to keep it out of sight. Our office is small, and we are
obliged to, or do allow the Attorneys to come in, handle the papers, look
over them, take oat what they want, and receipt for them ; and in some
way this bond has been mislaid, probably.

Q. — Come up missing ?

A. — Yes. I have been as careful of that bundle of bonds, as of any
other that is around the place. I kept it hid.

Q. — State whether the record shows — and I will not trouble you to go
back to it, if you remember it, and the Counsel on the other side do not
require it — that in that case Judge Hardy has appointed two different
Commissioners or Eeferees to settle the Eeceiver's accounts.

A. — I should say three, from memory. I can give the names of two.

Q. — Three separate appointments ?

A. — That is my remembrance. Charles Spiers, Charley Leet ; and I
think there has been another — I do not remember.

Q. — State whether those Commissioners were selected by the Counsel
in the case, themselves.

A. — That is my remembrance. I think the record shows that. It
certainly shows that they were present when the order Avas made.

Mr. Camphdl. — Suppose you turn to the record and read Avhatever
there is there on this point.

Witness. — The record is in the Scrgeant-at-Arms' room. I will get it.
[Goes out and returns with the record.] Here is one entrj^ I read from
the record for the month of August, twelfth day, eighteen hundred and
sixty-one :

McDermott,

7;.s.
Burke et al.

D. S. Terry appears for plff, S. W. Brockway, for defts ; and on mg-
tion of plif's Counsel, C. D. Spiers was appointed Referee, to examine
the accounts of the Receiver, J. P. Vauglian, and report to the Court.

There are one or two other such entries. It may take some little
time to find them, as I cannot remember just when they were made.
One was made some time previous to that I have read, I think.

Q. — Can you state, from your recollection, whether Counsel all agreed
to the Referee in each of those instances you have mentioned ?

A. — I would not say as positively from recollection as from the fact
that the record shows they Avere present and no objection made. I trust
more to the record than to my memory.

Q. — In relation to Judge Hardy's uniform practice in deciding ques-
tions of law, was it his constant habit, when such questions were de-
cided, to have them reduced to writing and to sign them ? and when ex-
ception was taken, to note it and sign it at the time ?

A. — Well, I should sa}' that was the general practice with Judge
Hardy.

Q. — I Avant you to state A\diether you do not know that it Avas adhered
to Avith great tenacity ?

223

A. — Yes ; the questions of law, and exceptions, were generally passed
up in writing at the time.

Q. — Do you know the reason why Judge Hardy adopted that prac-
tice ?

A. — Not of my own knowledge.

Q. — Do you know the reason Judge Hardy assigned for adopting that
practice ?

Mr. (JdinpheU. — That is objectionable.

■Mr. Wil/irons. — I propose to prove by this witness, if I can, that Judge
Hardy adopted this j^ractice because of the unprincipled, and, I think it
is fair enough to say, dishonest, conduct of these same lawyers who have
been testifying against him here, in pretending that he had made de-
cisions which he never made, and that facts had occurred which never
did occur, in their cases. For the purj^ose of showing the character of
the witnesses who have been at this man's heels, and their conduct in
those very cases, where they have undertaken to now sot up that he has
been guilty of improper conduct, I offer this proof

3Jr. Vdinphcll. — Well, let it go for what it is worth. It don't amount
to anything, anyhow, and we will not waste time on it.

Mr. Williams. — [To witness.] The question is, whether Judge Hardy
told 3'ou what his reason was for adopting tliat practice of reducing
every decision to writing ?

Mr. CampheU. —What Judge Hardy privately told the Clerk, this wit-
ness, is one thing ; and what Judge Hardy publicly announced, is an-
other.

The Prcsidmrj Officer. — It is usual forjudges to sign bills of exceptions.
I do not think this matter at all material.

Mr. Williams. — I do not know of any statute that requires the Judge
to take the exceptions and sign them as the case goes along.

The Fresidlu;/ Officer. — The' statute allows the Judge to note the excep-
tion. I think the practice is, usually, to sign tlie exceptions.

Mr. Willi<nm. — Is not this a question of animus on the part of persons
who occupy a position here which gives us a right to say that the}" are
to be treated as of the prosecutors ?

Mr. Campbell. — You propose to show Judge Hardy's statement of m' hat
induced him to take one or the other particular course. I do not know
that Judge Hardy's statement is any evidence at all.

3fr. Williams. — It is part of the res gestee when he adopted the rule. If
it is not admissible under that, it is not at all.

The Presiding Officer. — That would not prove those men were guilty of
those practices.

Mr. Williams. — That alone would not prove it, I admit.

The Presiding O^cv/-.— Whether guilty of foul practice or correct prac-
tice, in my judgment, this statement, made at the time he did this, of the
motive actuating him to the one course or the other, would be res gestse.
I cannot see any effect in the proof offered.

Mr. Williams. — I will let it pass, then. [To witness.] Now, about the
occasion of the trial of the case of McDermott vs. Higby, a trial in
which some evidence has been given about Judge Hardy's tongue having
been thick about half past ten or eleven o'clock at night, when he gave
the charge to the jury. What time in the evening did that evening ses-
sion commence ?

A. — Well, I rather think we kept along. My impression now is, that
we kept right along, and did not go to supper.

Q. — Did the Jourt take a recess about seven o'clock?

224

A. — I think that the Judge —

Mr. Williams. — I mean this : Did the Court take a recess at evening, at
six o'clock, or some time along there, I do not know but seven ? Did
the Court come in at seven for the evening session, the case still pend-
ing, and run right along ?

A. — I cannot say, from recollection. / had'not been to supper But
they might have taken a recess, and the juiy have gone to suj)per, and I
bad something to do which kept me ; I cannot say.

Q. — Do you remember whether Judge Hardy was on the bencb con-
stantly from seven o'clock to half past ten or eleven o'clock, when this
case Avent to tbe jury ?

A. — If there was not a recess, then be went rigbt along from afternoon
to evening, which I tbink is not likely to be the case. When we did
come in, if we had a recess, which I will not be positive about, then we
kept right along until the jury went out, according to my recollection.

Q. — ilave you any recollection of Judge Hardy leaving the bencb for
one moment, from seven o'clock to the time the jury wont out, that
night ?

A. — T have no recollection of it.

Q. — This was a pretty long case, it seems, taking three days to try.
Do you remember how long the Counsel on both sides occuj)ied in sum-
ming it up, that evening ?

A.^-No ; I cannot reanember that. It was pretty lengthy.

Q. — It Avas a pretty lengthy argument ?

A.— Yes.

Q. — AYhen the Coiinsel had finished summing up tbe cause, did Judge
Hard}' immediately write out the charge to the jury, or did he immedi-
ately charge the jury, whether be had written it before, or not ? In
other words, did he go right on, after the argument, to charge the jury,
stopping only, if he stopped at all, to write bis charge ?

Mr. CampheU. — Just ask the witness whether Judge Hardy proceeded
to charge the jury immediately after tbe argument closed.

Witnf'f.s. — [Ecflecting.] I am tr^'ing to remember wbetber there was
any delay. Sometimes a case will be concluded sooner than expected,
and the Judge will write oxit his charge, and we have to wait for him.
I am trying to remember whether this was so, or not, in this particular
instance. I cannot say positivel}- whether it was, or not ; and can only
form an opinion from the fact that they were long in their summing up.
Special issues were submitted ; I wrote uj) the last one. I think that
was about as tbe jury were going out.

Q. — As they were about to go out ?

A. — As they were about to go out. Judge Hardy read tbe instruc-
tions, (I described that the other day,) and handed them to me. He
also read his charge, wbich was but one sheet of paper. That was read
bere the other day. I cannot tell — do you want to get at the time wben
tbat charge was written ?

Mr. Williams. — No. That is not the point. I want to know whether
there was any interregnum in tbe course of that trial, from seven o'clock
in the evening until the jury went out. I want to know Avhether you
can state if Judge Hai*dy left tbe bencb between seven o'clock and the
time the jurj' went out. And before answering that, I would like to
have you state, if you can, about what time the charge was given to tbe

JT-^iy

A. — I cannot say positively about that. Any of the jurors would re-
member it much better than I would; because I was employed in various

225

ways. I had not had my supper, and might have gone down to get it,
perhaps, while the Attorneys were speaking.

Q. — Was it late in the evening when that charge was given ?

A. — Yes, very late. I should "think about eleven o'clock. The instruc-
tions were read, the charge given, and the jury went out.

Q. — Can you say that Judge Hardy left the bench between seven
o'clock and eleven o'clock — if that was the time the charge was given —
for a single moment ?

A. — I have no recollection that Judge Hard}' left the bench during
that time. While William L. Dudle}^ was speaking I was out a while;
I went out to get supper, but had sojnething to do in the office and could
not get to supper. When I came back again I think J)udle3' was about
closing up. I know I heard all of Judge Terry's opening; I heard his
opening and speech to the jury entire.

Q. — You heard the whole of Judge Terry's final argument?

A. — Yes; and I think I heard the close of Dudley's argument. Judge
Hardy might have gone out while I was away.

Q. — Immediatel}' on Judge Teny's final argument being closed, was
the charge given, unless time was taken to write the general charge ?

A. — I should think so, unless Judge Hardy took time to write the gen-
eral charge.

Q. — During that argument of Judge Terry, and until the time the jury
were charged, I understand you to say that Judge Hardy did not leave
the bench.

A. — That is my recollection.

Q. — Can you say how long Judge Terry spoke ?

A. — I could not say. I think not more than an hour. I think Judge
Hardy limited them to an hour and a quarter, or an hour and three quar-
ters ; or else they agreed on that time. It strikes me that Judge Teriy
came a trifle within the time.

Q,. — I believe you have alread3^said that you could not remember when
the general charge was written.

A. — I did not see it written. I saw Judge Hardy writing.

Q. — At what stage of the proceedings was that?

A. — After the conclusion of Judge Terry's speech.

Q. — When Judge Hardy had finished writing, did he charge the jury?

A. — I cannot say that it followed just then. The instructions were
read, and the charge was read; I could not say which was read first.

Q. — You mean the instructions of the Counsel, and the general
charge ?

A.— Yes.

Q. — Was the Judge's general charge all in writing? Did he read the
whole of it?

A. He read that charge.

Q. But he did not give a:ny other charge than that he read, did he ?

A. I would not say ; I think not. I think he remarked, as I recall it
now, when he commenced, on the length of the case, and that he would
give them only that charge; or that it was a short charge — something
like that. He might have remarked on the lateness of the hour, also;
or something of that kind.

Q. — Then you must have been in Court, from the time you came in
after your supper, an hour and a quarter, or an hour and three quarters,
whichever Judge Terr3''s closing argument occupied; and, also, whatever
time it took to write, if it was written, the charge; and, also, whatever
time it took to read the charge and the instructions to the jury ?
29

226

A. — Yes ; I was in the Court. I will not say, positively, that there
was no intermission after Judge Terry's speech, and before the reading
of the charge.

Q. — Do you recollect there was any?

A. — I do not recollect as there was, but there might have been, and I
not remember it now. My impression is, that it followed right on. If
anybody should say to the contrary, however, mj- impression would be
that their recollection was better than mine.

Q. — Would it not be an unusual proceeding to adjourn Court without
charging the jury, at eleven o'clock at night ?

A. — That would. But sometimes, when Judge Hardy was on the
bench a long time — I do not remember of an instance coming in the
night, but daytimes — in a long and tedious case, a juror would ask to go
out a minute, and three or four would go out. Sometimes the Judge
would go out, and go below, and return in two or three minutes.

Q. — Do you remember anything of that sort on this occasion of the
conclusion of the trial of this case of McDermott vs. Higby ?

A. — No, Sir. But there might have been, and I not remember it.

Q. — Who i*ead the verdict ?

A.— I did.

Q. — Was the Judge ever in the habit of reading verdicts ?

A. — No. I think I have read every verdict, when I have been present.
I do not remember as the Judge ever read one.

Q. — Then during the time of Judge Terry's argument, and what fol
lowed, in giving the instructions and the charge, and in writing the
charge, if it was written, 3'ou were present, and that came down to
about eleven o'clock?

A. — I should say so.

Q. — After submitting the case to the jury, to whom did Judge Hardy
hand the special instructions and the general charge ?

A. — To me. Attorneys would frequently be sitting between my desk
and the bench, and would pass them to me ; but, on this occasion. Judge
Hardy held them out like that, [describing.] I first waited for Mr. Brock-
way to hand them to me ; but Judge Hardy motioned to me, and I went
up and took them. He might have said — I got the impression — that he
wanted them attached just as he handed them to me. I attached them
as he held them. I do not know but he might have told me so ; I am
not positive about that. I do not attach each instruction, but file the
outside one for the whole.

31)-. Williams. — Mr. Brockway testified that he sat partially between
you and the Judge ?
Witness. — Yes, he did.

Q. — You say it was the Judge's frequent practice to hand them to At-
torneys to pass them to you ?

A. — Yes, at times. He frequently handed them to me.

Q. — You say you waited for Mr. Brockway to hand them to you on
this occasion, but that the Judge motioned to you to take them from
himself. What kind of a motion of the Judge's hand was it that induced
you to go and get them yourself?

A. — Well, it was like a beckoning towards me for me to come and take
them. I passed Mr. Brockway, and took them out of Judge Hardy's
hands

227

CROSS EXAMINATION.

Mr. CampheU. — What time did the first discussion that you heard be-
tween Judge Hardj^ and Judge Terry take place ?

A. — I could not say. I could not tell as to the time, those discussions
were so frequent.

Q. — Can you tell us how long that was before or after the last Febru-
ary term, or whether it was during that term ?

A. — It Avas before that. I should say that both conversations were
before that. In regard to the one which I referred to as the last, when
Judge Terry sjioke of his property, my impression is that it was before
the February terra. I am not positive about it; it might have been du-
ring the February term ; but the other conversation was earlier.

Q. — Can you recollect whether any event had immediately happened,
or an}- intelligence had been received, which gave rise to the conversa-
tion ?

A.— No.

Q. — Or Avhcther it was a general conversation ?

A. — Well, I am pretty positive thatit was before the news of the taking
of Fort Donelson; because after that, Judge Hardy was well overjoyed,
apparently, at the news.

Q. — You think it was before the news of the taking of Fort Donelson?

A. — Yes ; I am positive it was before, for a reason I can mention — but,
perhaps, no matter.

Q. — Was Judge Terry at that time residing in Calaveras County ?

A. — I understand he comes there to attend Court. He resides on a
ranch — I do not know where it is — in San Joaquin, or Calaveras County.

Mr. Williams. — You said you thought the conversation you have referred
to was before the taking of Fort Donelson, because on that occasion
Judge Hardy appeared to be overjoyed ?

A. — Well, the reason why I say it was before that, is, that I was watch-
ing Judge Hardy. I distrusted him, because he belonged to a bad crowd ;
that is, men who had secession proclivities.

Mr. CampheU. — What crowd ? what persons do you refer to ?

A. — Well, men, some of whom were acknowledged, and others sup-
posed, to have secession proclivities. I have given the names of some,
here to-day.

Q. — You distrusted him because he was habitually associated with
them ?

A. — His intimate associates were theirs. That is why I distrusted he
was a Union man, at first; and I watched him.

Q. — When you speak about his being their political associate, do you
know anything about his accompanying them on stumping expeditions ?

A. — Not of my own knowledge.

Q. — Do 3-0U know Judge Hardy to have ever spoken with any of them
at any places ?

A. — As I said the other day, I never went to any of their meetings. I
never heard Judge Hardy make a j)olitical speech ; did not want to; did
not like that kind of sjDeeches.

Q. — He has made political speeches at Mokelumne Hill ; has he not ?

A. — I do not know as I heard of his making but one at Mokelumne
Hill. I heard of his making political sjieeches at other places.

Q. — You were present when Judge Hardy naturalized persons, were
you not ?

A.— Yes.

228

Q Po you recollect "whetlier he asked those persons who came before

him to be naturalized, whether they approved of or sympathized with
the rebellion ?

Witness. — In open Court ?

3fr. Camphell. — Yes.

^Yitness. — Xo, Sir. I do not remember that that question was ever
asked.

Q. — Neither of the parties applying, or of the witnesses ?

A. — No, Sir.

Q. — Do you know whether Judge Hardy made a hahit of asking them
whether they belonged to the Yigilance Committee ?

X. — I think that he generally asked the witnesses, first, as to the char-
acter of the applicant, and then, " Do you know of his belonging to any
mob, being engaged in any mob, riot, or Yigilance Committee '/" " Mob"
and " riot " were the words commonly used ; " Yigilance Committee,"
sometimes. Or, " any organization against the laws;" that is common
with Judge Hardy.

Q. — Organization against the laws ?

A. — Organization opposed to the laws.

Q. — Do you recollect whether Judge Hardy said, " any organization
to oppose the laws of the State ?"

A. — [After a pause.] I have frequently heard Judge Hardy, as I took
it, in joke, say he would not natui-alizo men unless they voted with him.
I told him I would not give them the certificate, unless they voted as I
wanted them to. They would be naturalized one hour, and get their
papers the next hour.

Q. — Were Judge Terry and Judge Hardy on intimate terms and rela-
tions ?

A. — I think so.

Mr. Williams. — Personal relations ?

A. — I think so; yes. They were frequently together; walked to-
gether.

Mr. Camphell. — Do you know whether Mr. Brockway was in Court at
the time this proposition was made by A. P. Dudley to adjourn the
Court, as he wanted to keep some appointment?

A. — I am not positive. My impression now is, that he was, from this
circumstance : When it was mentioned that Tod Eobinson was sick, Mr,
Brockway said to me, " Drunk sick ! Drunk sick !" or some remark like
that — to Avhich I assented. Or. perhaps, I said something like that, and
Mr. Brockway assented. Whichever said it, the other assented. My
impression is that that was said in Court. If so, then Mr. Brockway
was there during that discussion as to putting over the cases. But I
cannot be positive. Mr. Brockway might have made this remark to me,
or I to him, to which the other assented, in the Clerk's oflice the next
day. He complained of the Court not being there, the next day. If
Mr. Brockway saj's he was not there, I should think he was correct. I
could not remember positively, myself.

Q. — Where were those conversations held, between Judge Hardy and
Judge Terry, of which you have spoken ?

A. — In the Clerk's office ; a common place of resort to talk politics,
almost dail}^.

Q. — What persons were present at the conversations you have referred
to ?

A. — Mr. Hanford was present at the first one. I think Judge Hardy,
Mr. Hanford, and myself, talked of it afterwards.

229

Q. — Were there any other persons present ?

A.— No.

Q. — And you and Mr. Hanford were both Union Democrats, were
you ?

A. — Yes. The last conversation, I do not recollect that any one was
present but myself.

Q. — AYill you state whether Judge Teny was ordinarily very violent
in his political conversations ?

A. — No. Judge Terry has great self-control. But these remarks, of
which I have spoken, were strong and bitter.

Q. — In what way ?

A. — I told you some of them ; about Judge Terry's selling his proper-
ty. In a bitter tone he denounced the Government, said it had gone to
hell, and never was worth a damn ; and made remarks akin to that.

Q. — Will you refer to the records and see whether there were any
other adjouMiments of the Court, except from day to day, during the
August term, eighteen hundred and sixty-one, besides the two adjourn-
ments of Avhich you have spoken — that on the sixteenth, and that on the
twenty-nintli?

Witness. — [Examining records.] Yes. August ninth, Friday, the Court
adjourned until Monday, the twelfth. No cases were set.

Q. — Was tliere any other legal l)usincss, besides jury cases?

A. — No, Sir. [Examining records.] There is a case here : S. B. Ste-
phens vs. W. C. Mills. There was an order entered the first day of the
term, " That defts appear ou SaturcUxy, the lOtli, and show cause why a
Ileceiver sliouUl not be appointed ; and the defts in the meantime be re-
strained." I sec I have marked that as having been settled before the
day came ; and therefore there Avas nothing to dispose of on that day.

Q. — Nothing at all on that day ?

A. — No. I will turn over, and tell you in a moment whether there
were any other instances of adjournments that term. [Turning over the
pages of the record.] No, Sir ; the Court was held on the other days,

Q. — State whether it was customary to put down the demurrers and
other business of that kind, for particular days.

A. — For the first week.

Q. — Those were settled the first week. But was it the custom to as-
sign those for particular days of that Aveek ?

A. — Yes ; for particular days of the week. There appears, from my
schedule, to be less of those demurrers that term than usual, I should say.,

RE-DIRECT EXAMINATION,

3Ir. Winiams. — You state that you have heard of Judge Hardy's going
out to make political speeches. Did you know, during the session, of his
going Avith anybody except Judge Shattuck to make a political speech,
save' on the occasion Avhen Allan P. Dudley went along?

A. — I should have to testify to all this as inere hearsay. I do not
know, of my OAvn personal knoAvledge, of Judge Hardy going at all.

3Jr. Winiams. — You stated, in ansAver to one of Mr. Campbell's ques-
tions, that you heard of Judge Hardy's making a speech, but did not hear
it 3"0urself

Witness. — Yes. .

Mr. Williams. — Now, then, I ask you if you did hear of Judge Hardy's
going to speak with anybody at all except Judge Shattuck, save this
single occasion when A. P. Dudley Avent along ?

230

A. — It seems to me that I heard of Judge Hardy having made a speech
at — well, I heard of Judge Hardy and Judge Terry being at Campo Seco.
One of them spoke, I do not remember which, at San Andres. What
recalls it to my mind is, that one of them (Terry) was said to have been
hissed.

Q. — Do you know whether Judge Hardy was there on that occasion ?

A. — I do not know that he was there. This is all hearsay.

Q, — Do you know that by hearsay, about Terry's being hissed ?

A. — Yes. I think when the hissing was talked of, it was also men-
tioned that Judge Hardy was present. That is my recollection ; I did not
pay much attention, as I have before stated.

Mr. Williams. — I wish you to refresh your recollection a little about
the report of that affair, as to whether you did hear that Judge Hardy
ever met Judge Terry at a meeting, or was at Campo Seco at all.

Witness. — Well, it is all an impression of something which, as I told
you, I do not remember, or want to remember. Therefore I cannot give
you any answer about it at all.

Q. — You stated that Mr. Hanford was present in the office at the time
of one of these conversations between Judge Hardy and Judge Terry ?

A. — Yes ; one of them only.

Q. — Where is Hanford now ?

A. — I suppose he is at Angel. That is his place of residence.^

Q. — He is sick and cannot come down, I understand ?

A. — Yes, he is sick. I have a certificate of his sickness, and that he
cannot come.

31)-. Williams. — Will the Court indulge us a moment, while we call a
list of witnesses, and have them examined on this question of the loyalty
of the Eespondent ?

The Presiding Officer. — A list of ten or a dozen witnesses to prove ex-
pressions of loyalty at different times ?

Mr. Williams. — Yes ; all on the question of the loyalty of the Eespon-
dent.

Mr. Camphell. — I will state, as a matter of notice, in order that nothing
may be said of surprise hereafter, that we shall have witnesses in regard
to expressions of a ver}- different character; other than those to which
the evidence has been limited by the pleadings, on our side.

Mr. Williams. — We will examine Ellis Evans, while the list is being
made.

TESTIMONY OF ELLIS EVANS.

Ellis Evans, being called and sworn, testified as follows

Mr. Williams. — Where do you live ?
A. — In Jackson, Amador County.

Q
A

five.

To what political party do you belong ?
— I belong to the Democratic party.

— Which branch of it — the Douglas, or the Breckinridge ?
— I belong to what is called the Breckinridge Democratic party.
— Do you know Judge Hardy ?
— Very well.

— How long have you known him ?
— I have known him since, I think, eighteen hundred and fifty-

231

Q. — How frequently have you been accustomed to see him Avithin the
last year ?

A. — Well, Sir, I have seen Judge Hardy very frequently within the
last year ; quite frequently.

Q. — Have you heard him converse frequently and freel}- on the subject
of the troubles of the country and the question of Secession ?

A. — I have, Sir. I have had a good many private conversations with
him.

Q. — Are you on confidential and intimate terms with Judge Hard}- ?

A. — Yes. We have been quite intimate. Judge Hardy and his family
have frequentl}- stopped at my house ; did almost always, when at Jack-
son, from Mokelumne Hill.

Q. — Most always, when in Jackson, Judge Hardy stopped at your house?

A. — Generally.

Q. — State what has been the current and tone of Judge Hardy's state-
ments in thoee conversations to which you have alluded, upon the subject
of Union and Disunion, Secession, and the troubles between the Govern-
ment and the South ?

A. — In all the conversations that Judge Hardy has had with me. he
has been strongly in favor of the Union ; strongly attached to the Union
and the Constitution.

Mr. Edcjerton. — State what he said.

Mr. WiUiaiiu. — I will get the particulars in a moment. [To witness.]
In all those conversations. Judge Hardy has expressed himself strongly
attached to the Union and tlje Constitution ?

A.— Yes.

Mr. WiUlmm. — N'ow, Mr. Edgerton asks you to state what Judge
Hardy said on that subject.

Witness.— I cannot remember all that he said. We have had frequent
conversations in relation to the present troubles ; and frequently Judge
Hardy has expressed himself to me, in the first of these troubles in the
country, to be very much opposed to the war. He tliought it could
have been settled without any bloodshed.

Q. — When was it that he expressed himself as opposed to the war ?

A. — Frequently, last summer and fall.

Q._What else ? State whether Judge Hardy has made any expres-
sions on this subject the one way or the other ? Whether he has stated
that now we were in the war, he was in favor of the Government main-
taining its dignity, and carrying it through ?

A.— Yes. I have heard li'im use that language frequently.

Q. — Were those conversations private, confidential conversations with
yourself ?

A. — They were.

Q. — In the presence of your respective families ?

A. — Yes ; and also in other places.

Q._Can you tell anything near how many times you have heard
Judge Hardy express these sentiments ?

A.— Well, I do not know how many times, but very frequently.
When he and I would meet, we would have little, short conversations, on
the question of the day, in relation to our troubles.

Q. You and Judge Hardy had been acting together in the same

party ?

A.— Yes.

Q._State whether the sentiments Judge Hardy has expressed on this

subject to you, and in 3'our bearing, bave been uniformly sueb as you
bave detaik^d ?

A. — Always tbe same sentiments.

Q. — Kow, 3'ou sa}' you saw Judge Hardy very frequently ; that you
bave been on terms of intimacy with him, and your family with his.
Tell tbis Court what you know about bis habits of intemperance ;
whether 3'ou bave ever seen him intoxicated on the bench, while he bad
public duties to perform, or in any manner incapacitated from perform-
ing tbem.

A. — I never saw Judge Hardy in any way intoxicated, except at one
time — a long time ago — when be bad been over to Mokelumne Hill
with some of the boys, and came back in tbe evening, and he was right
lively.

Q. — Well, be was not holding Court, then, was he ?

A.— No.

Q. — AVas tbat before or after he was appointed District Judge?

A. — Tbat was before he was appointed Judge. I never saw Judge
Hardy under the influence of liquor since that time. I bave been in
Court almost every term since be has been Judge in Amador County ;
nearly every day.

Q. — And 3'ou never saw him exhibit any evidence of being under the
influence of liquor while be was attending Court ?

A.— Xever.

CROSS EXAMINATION.

31): CavipbeU. — How long bave 3'ou lived in tbis State ?

A. — I have lived in tbis State since September, eighteen hundred and
forty-nine.

Q. — Where did you come from when 3-0U came here ?

A. — I came from the State of Louisiana here.

Q. — You sa}' you are a Breckinridge Democrat ?

A. — Yes.

Q. — Were you one of tbe supporters of Mr. McConnell, for Governor,
last Fall ? ■

A. — I partly supported the ticket.

Q. — Did you attend their Convention in Sacramento, in June or July?

A. — I did not.

Q. — You supported the ticket, you say ?

A. — A part of it.

Q. — Well, as a general thing?

A. — Well, it was pretty well scratched.

Q^ — Did you support Mr. McConnell for Governor?

A. — I voted, I believe, for Mr. McConnell for Governor; but I peddled
Conness tickets all day.

Q. — Peddled Conness tickets, and voted for McConnell ?

A.— Yes.

3Ir. Williams. — Tbat is a fair stand-off.

Witness. — I think I made several votes for Mr. Conness.

Mr. Campbell. — Are y.ou still connected with the Breckinridge party ?

A. — I do not know that I am.

Q. — Do you know tbat you are not ?

A. — I am a Democrat, and intend to act with the Democratic party.

Mr. Campbell. — Yes, but there are two parties in tbis State, I believe,
that call themselves the Democratic party. Which Democratic party do
you mean — the one led by Conness, or that led by McConnell ?

233

A. — Well, it depends entirely upon what kind of a platform they put
np.

Q. — Did you sustain the platform that was put up by the McConnell
Pemocrats last year ?

A. — No, Sir, not entirely. I did not like the platform.

Q.— Why, then, did you vote for Mr. McConnell ?

A. — Because I heard Mr. McConnell express his views on the stump ;
and I concluded, from what he said, that he was a sound Union man.

Mr. Williams. — You voted for McConnell, because you thought him a
sound Union man ?

A. — Yes. That is the way he expressed himself when I heard him
make a speech in Jackson.

3Ir. Campbell. — Have you not a number of friends and relatives in the
Confederate Army ?

Mr. William.^. — If the Court please, I object to that.

Witness. — I would like to* answer that question.

Mr. Williams. — Then you may answer it. But I am going to object to
an inquiry into personal and family relations at the expense of the time
of this Court.

The Presiding Officer. — If there is no objection to the question, go on
with it, Mr. Campbell.

Mr. Campbell. — I think this is a fair matter for cross examination. The
witness has been testifying to Union sentiments generally.

Mr. Williams. — And now you want to prove that he did not tell the
truth, because he has relatives in the South.

Witness. — If I have relatives in the Confederate Army, I do not know it.
I have one brother in the Federal Army, if he is not killed. I was not
raised in the South.

Mr. Campbell. — Have you never stated to any person that you con-
sidered tlie South was driven into the rebellion ?

A. — I have not.

Q. — Can you be certain upon that subject ?
, A. — I can.

Q. — You never have stated that ?

A. — I do not think I ever have stated that.

Q. — Or used expressions of a similar character?

A. — I do not think I have.

Q. — When were those conversations with Judge Hardy, which you
have referred to ? At what time ?

A. — Well, Sir, they were during last summer, fall, and winter.

Q. — Where did they take place ?

A. — They took place, sometimes in my house ; at other times, in the
street, or places where we might accidentally meet, and the subject
would come up.

Q. — Did they all take place at Jackson ?

A. — No. I have had conversation at Judge Hardy's house, at Mokel-
umne Hill. too.

Q. — How long ago was that conversation ?

A. — Some time last Fall.

KE-DIRECT EXAMINATION.

3Ir. Williams. — You said, in your answer to one of Mr. Campbell's ques-
tions that you did vote for McConnell, because you believed he was a
" 30

234

sound Union man, from his speeelies ; that you did not like the platform,
and did not support it, and did not intend to ?

Witness. — That is it. Sir.

Q. — Did you hear Judge Hardy exj)ress the same sentiments — that he
did not like the platform, and would not support it ?

A. — I have. I have heard Judge Hardy say that the platform did not
entirely suit him ; that he would liked to have had it different.

Q. — Do you know that Judge Hardy supported and urged the election
of some of the candidates on the Union ticket ?

A. — I know he did.

Q. — Do you know that Judge Hardy worked for and urged the election
of Mr. Irwin and Mr. Edgerton ?

A. — I do not know of the working.

Q. — Did you hear Judge Hardy talking in their favor ?

A. — Yes, I have heard Judge Hardy speak very favorably of those two
gentlemen. I think I voted for Mr. Edgertouton Judge Hardy's account.

Q. — Mr. Edgerton is a pretty good Union Democrat, is he not ?

A. — He made a very good speech when in Jackson. I was very much
pleased Avith it.

Q. — Eather Union, was it not ?

A. — Yes, rather.

TJie Presiding Officer. — I trust the Counsel will not press this kind of
examination anj' farther. It is useless.

Mr. Williams. — Mr. Edgerton Avas running for Congress, was he not l*

A. — Yes. I will state that something slipped —

The Presiding Officer. — [Interrupting.] These questions as to the pol-
itics of the witness are only important as showing the bias of the wit-
ness and Judge Hardy's associations.

Witness. — There is one thing that I will state to you, that I did not
think of a while ago. I have heard Judge Hardy say, I think it was at
a time when we Avere reading something or other from some of the pa-
pers about the Democrats being Secessionists, and that kind of thing,
traitors, and so on, that he wished he was in a position Avhere he could
shoulder his musket and shoAv them whether hcAvas a traitor or not. He'
said he would like to shoulder his musket and march out in defence of
his country, and then we would see whether those loud-mouthed Union
men were as good patriots as himself

RE-CROSS EXAMINATION.

Mr CamjiheJl. — Did you attend any political meetings addressed by
Judge Hardy, last Fall ?
A. — I think not.

Q. — Where was it that McConnell spoke, when you heard him ?
A. — He sj)oke in Jackson. That is where I heard him.

TESTIMONY OF JOHN W. ARMSTRONG.

John W. Armstrong, being called and sworn, testified as follows

Mr. Williams. — Where do you live ?

A. — I reside at Jackson, Amador county.

Q. — Are you a member of the Bar ?

235

A.— Yes.

Q. — Do you know Judge Hardy well ?

A. — Yes. I have known Judge Hardy since eighteen hundred and
fifty-seven.

Q. — Have you attended his Courts ?

A. — I believe I have. [Reflecting.] Yes; I have been in attendance
upon his Court in Amador County, at every term since he was Judge of
the Court.

Q. — Have you heard Judge Hardy talk on the subject of the rebellion
and secession ?

A. — Y^es ; I have heard him talk upon that subject very frequently.

Q. — Have you heard him make a political speech ?

A. — I have heard him make one, two days before the election, last year,
at Fiddletown, in Amador County.

Q. — How frequently have you heard Judge Hardy talk upon this sub-
ject of the present troubles in the country ?

A. — It would be impossible for me to tell that; I have heard him speak
upon it so frequently.

Q. — Now, Sir, during all those conversations iipon this subject of the
rebellion, what were the sentiinents expressed by Judge Hardy upon the
question of Union or Disunion, his attachment to the Constitution and
the Government, or the contrary ?

A. — The sentiments which I have always heard Judge Hardy express,
were Union sentiments. I have heard him denounce the doctrine of
Secession. I have heard him several times sa}^ that the idea that the
Constitution provided for its own destruction by a peaceable dissolution
of the Government, was an absurdity" he did not believe in.

Q. — In what form or manner did he express his Union sentiments?
You sa,y he has expressed strong Union sentiments ?

A. — This is about the doctrine which I have learned from him to be
his doctrine, that if it were a possibiUty to compromise with the Southern
people, upon the basis of the Crittenden compromise, or any fair basis,
that ought to be done ; but that if there must be a civil war, or a disso-
lution of the Union, as an alternative, he would accept a civil war, be-
lieving that the Government had the power, the means, and the right, to
suppress the rebellion.

Q. — As a choice between conceded secession and a civil war, Judge
Hard}^ preferred a civil war, believing the Government had the power to
suppress the rebellion ?

A. — Y^es. And, at the same time, he was anxious that the country
should not be involved in a war unless it was an inevitable necessity.

Q. — State during what time these expressions of sentiment were made
by Judge Hardy.

A.— The only occasion that I can designate, or contradistinguish from
others, is that of his going to Fiddletown to make a speech. I went
with him. We both spoke there that night— it was two days before the
election — and this was a conversation between him and me as we rode
over to Fiddletown, in Avhich conversation he agreed with me that that
plank in the McConnell platform, which recognized the right of the
South to secede, was one that he never could indorse — that he did not
indorse it, and could not. For that reason, he disliked the platform, as
I disliked it.

Q. — What was the sentiment expressed on that subject in Judge Har-
dy's speech, at Fiddletown ?

A. — About the same sentiment.

236

Q. — You and he agreed in these sentiments ?

A. — Yes; and during that ride that evening, Judge Hardy requested
me to vote for Mr. Edgerton, for Congress. I told him that I promised
McKibben to vote for him, and that I wanted to vote for Judge Shattuck
— that I Hived the old Judge; but, finally, I agreed to do as Judge Hardy
wished, and afterwards did vote for McKibben and Edgerton, for Con-
gress.

Mr. Williams. — [To Mr. Edgerton.] If you had had plenty of such
Democrats, you would have been elected.

Mr. Edgerton. — I would that. I think there must have been some fraud
in that election.

Mr. Williams. — You must have been counted out. [To Witness.] State
all you know upon the general question I have asked you. You under-
stand the object of it. Without being interrogated upon each particular
conversation, state what you know relative to Judge Hardy's sentiments
on the subject of Union or Disunion, secession or opposition to it, rebel-
lion or anti-rebellion ?

A. — I have never heard Judge Hardy express any sentiments which I
regarded as being at all disunion. On the contrary, I have heard Judge
Hardy say that the rebellion would eventually be put down, and the
sooner that it was put down the better it would be for the Southern
people as well as the Northern people ; that a protraction of the war
would only add more misery to what had already occurred.

Q. — You stated that you have been accustomed to attend Judge
Hardy's Court constantly. State the result of your observation in re-
gard to Judge Hardy ever having been under the influence of liquor
while in the discharge of his duties, or during the sessions of his Court.

A. — For the last year, I presume there has not been a day when Judge
Hardy has held a Court that I was not present some part of the day. I
have been pi'esent at his Court at every term, more or less. I never
saw Judge Hard}- under the influence of liquor upon the bench. If he
ever was, it was so little that I never oljserved it. I never heard of such
a thing at all, until I heard of it in the Sacramento Union.

Q. — In connection with this prosecution ?

A. — In connection with this prosecution. I do not think that Judge
Hai'dy has ever been drunk on the bench, in Amador County. If he
had, it would have been a thing which would have been observed.

CROSS EXAMINATION.

3Ir. Campbell. — To what political party do you belong ?

A. — Well, I am a kind of a no-party man. In the last canvass I did
not find a platform that suited me

Q. — You went on the stump, did you not ?

A. — Yes. I told them I was a no-party man.

Q. — Did not you advocate the election of McConnell ?

A. — I told them, distinctly, I intended to vote for McConnell, and that
I thought I should vote for Mr. Edgerton for Congress, and for Judge
Norton for Judge.

Q. — What public meeting was it that you and Judge Hardy attended ?

A. — Judge Hardy and I went to a meeting at Fiddle town.

Q. — Was not that called as a meeting in support of the McConnell
ticket ?

A. — It was called — ^yes.

237

Q.— Did jou attend the Conventions of that party, held in Sacra-
mento ?

A.— No, Sir.

The Presiding Officer. — All witnesses summoned to-day, who have been
examined, are discharged.

Mr. Williams. — It was announced, on day before yesterday, that wit-
nesses need not remain unless they were so informed. The intimation
has been given to them when not on the stand, that is, to some of the
witnesses who have gone, and this notice might induce those witnesses
to go away. I would aslc if the President requires us to tell a witness,
when on the stand, to remain, if we intend to keep him?

The Fresidin;/ O/ficcr. — The notice applies to all witnesses who have
been examined.

3fr. Willianis. — Then we will be under the necessity of announcing that
we shall have to recall nearly all, with the exception of two or three.

The Presiding Officer. — You must exhaust your witnesses when on the
stand. I can see no necessity for calling them again.

3Ir. Willidms. — The Court will remember that when this trial was en-
tered on, Mr. Campbell adopted a course I entirely approved of, and
which I understand the President sanctioned; and that was, that he
would conclude the evidence on each branch of the case by itself, so as
to keep the charges separate, and the evidence on the charges separate
and by itself as much as possible. I propose to do that myself, except
where there are kindred charges — for instance, two or three charges, or
misconduct in one case — when I could inquire in regard to all.

The Presiding Officer. — I understood Mr. Campbell to call his witnesses
and examine them on each branch of the case in regular order; not to
recall- them on each branch.

Mr. Williams. — I understood him to do the latter. There is only one
branch of the case which stands by itself, and I dislike to mix that up
with the others.

The Presiding Officer. — The Senate have an understanding of the gen-
eral details of the charges, so that no possible confusion can arise.

Mr. Williants. — AVe have examined and dismissed from the stand a good
many witnesses, Avhora we shall have to recall upon a question which has
been suggested by Mr. Campbell — anticipated by him.

The Preaiding Officer. — You must hereafter exhaust your witnesses when
on the stand.

TESTIMONY OF JACOB BENJAMIN.

Jacob Benjamin, being called and sworn, testified as follows :

Mr. Williams. — Where do you reside ?

A. — In San Andres.

Q. — Calaveras County ?

A. — Yes, Sir.

Q. — What is your business ?

A. — I am in a mercantile business there.

Q. — How long have you lived in Calaveras County ?

A. — I have lived there six j'ears.

Q. — How long have you known Judge Hardy ?

A. — I have known Judge Hardy intimately three or four years.

Q. — Have you, during the last year, conversed with Judge Hardy, or

238

heard Judge Hardy converse upon the subject of Union, Pisunion, Se-
cession and Eebellion ?

A. — I have.

Q. — How frequently ?

A. — "Well, probably one or two times casually, and one particular time
individually, himself

Q. — State what have been the sentiments expressed by Judge Hardy
upon the subjects I have mentioned to you.

A. — Judge Hardy and myself had one particular conversation in refer-
ence to the troubles the country' was in. It was at one particular time,
during the Democratic County Convention in Calaveras County. He em-
phatically declared to me that he felt desirous of and should like to see
the platform of the State Democratic Convention so modified that there
could be no doubt as to secession being attributed to the Democratic
party of this State.

Q.— What do you mean by " no doubt as to secession being attributed"
to that party ?

A. — That no party could attribute secession doctrine to the Demo-
cratic party.

Q. — Speaking of the Democratic party, you now speak of that part of
it that supported McConnell ?

A.— Yes.

Q. — What did Judge Hardy say, if anything, about those being his
own sentiments?

A. — I understood him to say that those were his sentiments. I con-
curred with him in that doctrine.

Q. — What else have you heard Judge Hardy say ?

A. — He also stated on that occasion that he wished the Democratic
party of this State to pledge itself, in the event of any foreign inter-
ference with the troubles of the country, that it was unnecessary to know
the whys and wherefores; that it should be ready to support the Gov-
ernment in carrying on a war, any time it was necessary. Those were
my sentiments, and I concurred.

Q. — Was that all, on that occasion ?

A. — There was some further conversation. We talked a long time
about the matter. Judge Hardy stated that secession was no remedy
for the evils that the Southern people complained of

Q._What else ?

A. — I do not know that I can answer with particularity.

Q. — On other occasions what have you heard Judge Hardy say ?

A. — I have heard him express similar sentiments, at times, in my
presence.

Q. — When and where did this conversation, which you have just been
detailing, take place ?

A. — I think it was in front of my store.

Q. — On what occasion ?

A. — At the time the County Convention was in session.

Q. — Was this said among a number of McConnell Democrats ?

A. — I think there were some present.

Q. — Who were present ?

A. — I know that Col. Eust, of Calaveras County, was present. There
were one or two others. I have no present recollection of their names.

Q. — Were the persons who were present, members of the McConnell
branch of the Democratic pai*ty ?

A.— Yes.

239

Q. — Was there any member of any other party there ?

A. — There may have been, but I think not.

Q. — Was this a talk about party policy, or about party proceedings ?

A. — It was a talk of the rights ; that the party ought to do that.

Q. — Have you not been several years a Supervisor of that county ?

A. — Yes.

Q. — Have you been about the Courts a good deal ?

A. — Yes ; every day.

Q. — Have you seen Judge Hardy in the performance of bis duties ?

A. — Yes.

Q. — Did you ever see him drunk on the bench ?

A. — Never, Sir.

Q. — Did you ever see him when he ai)peared in the least under the
influence of liquor on the bench ?

A. — Never, Sir.

Q. — State what Judge Hardy's attention to the business of his office
was generally.

A. — So far as I could judge, I thought Judge Hardy very diligent in
his duties ; rather more so than a great many Judges on whose Courts I
have had to attend in the same county

CROSS EXAMINATION.

Mr. Camphc'll. — What took you there to Court every day ?

A. — I bad occasion to go into the Clerk's office. The Clerk of the
Board of Suj-jervisors was Clerk of the Court.

Q. — When did your term of office cease ?

A. — I think in November, eighteen hundred and sixty.

Q. — Then you were speaking of the time anterior to that, were j^ou ?

A. — Yes ; ,the two years previous.

Q. — You have iiot been in the habit of attending the Courts of Cala-
veras County since, have you ?

A.— No.

Q. — Did the Board of Supervisors, during the time that you were a
member of it, meet always at the same time as the District Court ?

A. — I think that is about the time.

Q. — How long did they generally I'cmain in session ?

A. — They remained in session five or six weeks.

Q.— At a time ?

A. — Yes.

Q. — Were you in the habit then of going into the Court room of Judge
Hardy, or of going into another room and holding your meetings there ?

A. — We had a separate office, but had occasion to go into the Court
room at all times.

Q. — You belong to the same party as Judge Hardy, do you not ?

A. — Yes.

Q. — Were 3'ou a delegate to the Sacramento Convention ?

A. — I think not.

Q. — Did you attend that Convention ?

A. — I did not.

Q. — Neither the one held in June, nor the one held in July ?

A.— No.

Q.— Did you vote for Mr. McConnell ?

A.— I did.

240

Q. — Have you not j'-ourself frequently advocated secession doctrines ?

A. — Never, to my knowledge.

Q. — Have you never expressed your sympathy with what are called
the Confederate States ?

A. — Never.

Q. — Never either felt or expressed it ?

A. — Never either felt or expressed it in the State.

Q. — Do you recollect what persons were on the McConnell ticket ?
Could not you give the names of the persons on it ?

A.— No.

Q. — Do you recollect whether Judge Tod Eobinson was on it ?

A. — I believe he was.

Q. — Was Judge Shattuck on it, for Congress ?

A.— Yes.

Q. — Was Mr. Barber, of Tuolumne, also on it, for Congress ?

A. — Yes.

Q. — Was Mr. Wallace, of Napa, on it, for Judge ?

A. — I don't remember.

Q. — Was Mr Fairfax a candidate on it, for Clerk of the Supreme Court ?

A. — He may have been. If he was, I voted for him.

Q. — You voted the ticket generally ?

A. — I voted that ticket.

Q. — Are you any relation of Judah P. Benjamin, Confederate Secretary
of State ?

A. — I believe I am. I am his cousin.

Judge Hardij. — Does that give you any sympathy for the Southern Con-
federacy or secession ?

A. — No. A brother of Mrs. Lincoln is in the Confederate Army, too,
I believe. That is what I understand from the papers.

Mr. Camphell. — You have never expressed yourself in favor of the
Southern Confederacy ?

A. — Never.

Q. — Have you not publicly declared yourself opposed to the war?

A. — Well, I have, before the Avar was carried on to the extent the
Government has prosecuted it. But I have since expressed myself as
willing to see it out.

Q. — How lately have you expressed yourself as opposed to the war?

A. — Probabl3" within a j-ear or two.

Q. — After the taking of Fort Sumter?

A. — It may have been after the taking of Fort Sumter, or before.

TESTIMONY OF ROBERT H. PAUL.

Eobert H. Paul, being called and sworn, testified as follows :

Mr. Williams having stepped out, Judge Hardy, with the consent of
the opposite Counsel, conducted the examination of the witness.
Judge Hardy. — Where do you reside ?
A. — At Mgkelumne Hill.

Q. — You are Sheriff of Calaveras County, are you not ?
A.— Yes.

Q. — What are your politics ?
A. — I am a Union Democrat.

241

,., Q. — How long have you been Sheriff of Calaveras County ?

A. — Since October, eighteen hundred and fifty-nine.

Q. — Who has been in attendance, as a general thing, at the terms of
the District Court of that count}^ as Sheriff, since you were elected ?

A. — As a general thing, I have myself.

Q. — Were j'ou Under Sheriff jarior to October, eighteen hundred and
fifty-nine?

A.— Yes.

Q. — Have you been connected with the Sheriff's office fver since I
went on the bench as Judge ?

A.— Yes.

Q. — Just state to the members of the Court what have been the rela-
tions existing between j^ou and myself, during the last two years.

A. — Well, they have been friendly; and that is all.

Q. — Have we had frequent conversations with each other ?

A. — Yes.

Q. — Did we ever have anj- conversation upon the subject of the pres-
ent difficulties of the country?

A. — I do not know that we ever have. I do not remember of our ever
having any.

[Mr. Williams here came in.]

Mr. Williams. — Have you frequently heard Judge Hardy talk upon the
subject of the troubles of the country ?

A. — Not very frequently ; no, Sir.

Q. — Have j'ou ever ?

A.— Yes.

Q. — State the substance of what Judge Hardy said on the subject of
his attachment to the Union, or otherwise ?

A. — Well, the only time that I now remember of ever hearing Judge
Hardy speak on the subject, was after the news of the Fort Donelson
fight.

Q. — What did Judge Hardy say then ?

A. — Well, Judge Hardy came into my office at that time — my Under
Sheriff was there, I believe, and, it ma}' be, Mr. Gatewood — and began
speaking in high terms of the success of the Federal forces at Fort Don-
elson.

Q. — AVhat sentiment did he express, joy or grief?

A. — Joy.

Q — W^hat did he say, if anj-thing, about the triumph of the Federal
cause generally ?

A. — He was speaking more of the Illinois troops and their conduct at
that Fort Donelson fight, than anything else.

Q. — What did he say about them ?

A. — Well, he seemed very much overjoyed at their successes and the
way they fought.

Q. — Was that the only occasion on which 3'ou have heard Judge Hardy
speak on the subject?

A. — That is the only occasion which I remember now.

Q, — How long have 3-ou been Sheriff of Calaveras County ?

A. — Since October, eighteen hundred and fiftj^-nine.

Q. — Since October, eighteen hundred and fifty-nine, what has been the
constanc}- of your attendance upon Judge Hardy's Court?

A. — Well, with the excei^tion of two terms, probably, I have been in
attendance on the Court, [pausing,] well, four fifths of the time myself.
31

'^42

Q. — What do yoii say about Judge Hardy's attention to his businesg
and the duties of his office ?

A. — I always considered Judge Hardy prompt.

Q. — Have you ever seen Judge Hardy, while holding his Court, in any
degree under the influence of liquor ?

A. — Only once.

Q. — When was that ?

A. — Th^ was the last day of the last term of the Court — the Febru-
ary term.

Q. — What time in the day, or night ?

A. — It was ten or eleven o'clock in the night.

Q. — About the time the jury was retiring — is that the time you mean ?

A.— Yes.

Q. — Was it before or after the jury went out ?

A. — I think it was just as they went out. That is my impression. It
may be after they went out, though.

Q. — What did you see then that attracted your attention to Judge
Hardy ?

A. — Well, I thought that Judge Hardy was under the influence of
liquor at that time.

Q. — What made 3'ou think so ?

A. — Well, I do not know, I am sure, what made me think so. His
conduct, I suppose, and the way he talked.

Q. — You judged by Judge Hardy's conduct?

A.— Yes.

Q. — Was this out of the Court, or in it ?

A. — I noticed him when not on the bench. It was after Judge Hardy
left the bench that I noticed him.

Q. — You must have seen a good deal of Judge Hardy, as you were
Sheriff there. Now, on any other occasion, or at any other time, whether
on the bench, or off" the bench, during Court, have you ever seen such
indications in Judge Hardy ?

A. — No, Sir. I never saw Judge Hardy under the influence of liquor
at Mokelumne Hill, at any other time.

CROSS EXAMINATION.

Mr. Campbell. — Where was Judge Hardy when you noticed him under
the influence of liquor on the occasion you have refeiTed to ?

A. — It was in the Court room.

Q. — In what part of the Court room ?

A. — Well, I do not know. It was right about in the centre of the
Court room, when he came down off" the bench.

Q. — Was that immediately after the jury retired ?

A. — Yes.

Q. — What peculiarity in Judge Hardy's manner did you then observe ?

A. — Well, he spoke a little thick. He did not sj^eak with the same
clearness and distinctness as usual.

Q. — Did you see Judge Hardy after the jury had rendered their ver-
dict ?

A. — ^No, I did not.

Q- — Did you see him while the jury were out, at any other time except
the one you have mentioned ?

A.— No.

Q- — Now, when Judge Hardy was speaking of the Fort Donelson fight,

243

was not his conversation entirely confined to the conduct of the Illinois
troops ?

A. — Not entirely, but was principally confined to that.

Q. — You have spoken of Mr. Gatewood and your Deputy being present
on that occasion. Was it Mr. Thome who was present ?

A. — Yes. One of them ; perhaps both.

Q. — Thorne, Hardy, and Gatewood, are all from Illipois, are they not?

A. — Yes.

Q. — And from the same neighborhood ?

A. — Yes.

Q. — Were you in the habit of going to the same places that Judge
Hardy went to, during the recesses of the Court?

A. — I do not know where Judge Hardy goes.

Q. — Therefore you do not go where Judge Hardy goes when out of
Court ?

A.— No.

Q — Are yonr associations with Judge Hardy, as a general thing, after
the adjournments of the Court?

A.— No.

Q. — Do you not see very little of Judge Hardy, except at the Court ?

A. — Very little; except sometimes I see him around town.

Mr. WiUiams. — You say you see Judge Hardy around town. Are you
around town yourself considerable, where Judge Hardy is, when out of
Court ?

A.— Yes.

TESTIMONY OF GEORGE KRESS.

George Kress, being called and sworn, testified as follows :

Mr. WiUiams. — Were you present at the May Festival, eighteen hun-
dred and sixty-one, of the Saengverein and Turnverein Societies, at Mo-
kelumne Hill ?

A.— Yes.

Q. — Were you sitting near Judge Hardy, at the time he made the
remarks which he did make there, on the subject of his being a Union
man ?

A.— Yes.

Q. — State whether a difficulty arose there, or any violent conduct on
the part of some secession gentlemen, in consequence of Judge' Hardy's
remarks.

A. — Judge Hardy was invited by the Society to make a speech, and
he consented. He got on the table and delivered a sound Union speech.
He was applauded by all the persons who were present — there were
some five hundred or six hundred. Judge Hardy stated that he belong-
ed to the Breckinridge party, and he would state that he had been seve-
ral times pronounced a Secessionist. But, although he belonged to the
Breckinridge party, he was, he said, a Union man, and never had any
sympathy with secession.

Q. — Now state whether any Secessionist in the crowd came at Judge
Hardy with a knife, on account of those exi^ressions.

A. — I know that several men — I am not acquainted with them — came
from one side of the garden and tried to disturb Judge Hardy, and the
leader of the Mokelumne Hill Brass Band, who was pretty close by me,

244

said Judge Hardy should have a fair show to speak. One of these men I j
have spoken of, drew a knife, and the leader of the Band took a stand and
knocked him down. And then there was a regular rush. A man drew
out a revolver, and so they quelled the disturbance ; and Judge Hardy
spoke further.

Q. — This was an attempt to interrupt Judge Hardy's speech ?

A. — Yes. I know the man made for Judge Hardy with a knife, and
this leader of the music Band took the stand, and when the man came ■
up, he knocked the man down. ■

Q. — Do you mean the stand on which his music lay ?

A.— Yes.

Q. — Did Judge Hardy go on with his speech, notwithstanding that?

A. — Judge Hardy went on with his speech, and finished it; and was
applauded by all present. The remark was made afterwards, that some
people thought he was a Secessionist.

Q. — What did Judge Hardy say about his having been accused of being
a Secessionist ?

A. — He told us that he had been accused of being a Secessionist by men
belonging to Mokelumne Hill, and he took this occasion to set himself
right before the people.

Q. — That was in May ?

A.— Yes.

Q. — Almost a year ago ?

A.— Yes.

Q. — Now, did you hear Judge Hardy say anything at the time the in-
telligence came of the arrest of Mason and Slidell ?

A. — He made a remark in my house, a good many people being present,
that he would just like to shoulder his musket and go to fight for the
Union.

CROSS EXAMINATION.

Mr. Camphell. — How many persons were there in this party that came
in from the garden ?

A. — Perhaps three, or four, or five. There may have been half a dozen ;
I do not know.

Q. — How far from Judge Hardy was the man who had his knife drawn
when he was knocked down ?

A. — I think he was pretty near. As far as to you — [about eight feet ;]
perhaps two steps farther.

Q. — Did that man say anything at the time ?

A. — Yes. I heard him speak very violent language.

Q.— What did he say ?

A. — He used some very indecent language. Do you want me to state
it exactly ?

Mr. Camjjhdl. — No, you need not state the precise language.

WitnesH. — Well, he used violent and indecent language.

Q. — What countryman was he ?

A. — I do not know. I know he was not a German.
[. Q. — Did Judge Hardy make more than one speech at that Festival ?

A. — Not that I recollect of

Q. — Were you there all the time ?

A. — I was there all the time ; the whole afternoon.

Q. — How long did Judge Hardy speak ?

A. — Well, he might have spoken fifteen minutes or half an hour ; 1

245

think it was about half an hour. He expressea himself in full on all the
questions of the day.

Q. — Do you know what the reason was that induced that man to come
in with a knife ?

A. — Well, I think he was a Secessionist — that man — from the way he
expressed himself He used some very indecent, violent language, against
Judge Hardy, because he made a Union speech.

Q. — Was that man who came in, drunk or sober ?

A. — I do not think he was drunk — I think he was sober.

Q. — Are you intimate with Judge Hardy ?

A. — I know him by sight, of course. I have resided in Mokelumne
Hill a good while, and of course I ought to know him.

Q. — Were you at that Festival when a man came in with a bottle in
his hand ?

A. — A man may have come in with a bottle ; I do not remember exact-
ly. But they used everything. I saw bottles.

Q. — Did you see a drunken man there with a bottle in his hand, raised
up as if to strike ?

A. — I do not know exactly that. At first, when it commenced, this
man di'ew a knife and was knocked down ; and of course a great many
came together. Some had hottles in their hands ; some had glasses.

Mr. Williams. — Mr. Campbell seems to have asked you whether the
deadly weapon you saw was a knife, or a bottle. Was thei-e any bottle
in the hands of the man who was knocked down ?

A. — No. I saw the knife ; saw it plainly. I think everybody saw the
affair, too.

Q. — Did some Germans or Frenchmen take the knife away from the
man ?

A. — I do not know who took it away, but the knife was taken away
from him. There were, perhaps, some fifty Frenchmen there. Every-
body saw it ; it was not done in a corner, but right openly in the garden.

Q. — You have no doubt that tliis particular man was armed with a
knife instead of a bottle, have you ?

A.— No.

Q. — You are sure of that ?

A.— Yes.

Mr. Camphell. — Give us the language that this man who had the knife
used, as near as j^ou can recollect it, word for word.

A. — Well, he used some violent and indecent language.

Q. — Well, what was it ? What did he say ?

A. — He said, " I am going to kill that son of a bitch, if he makes a
Union speech here."

Q. — You do not know who that man was ?

A. — No ; I do not know him.

Q. — Can you describe his appearance ?

A. — He was a middle-sized man. I never saw him before ; only on
that occasion.

Q. — The crowd that were in there were Union men, were they not ?

A. — Certainly ; they were all Union men. The men who came in
there, they hallooed for Jefferson Davis. They did not like the proceed-
ings going on there.

Mr. Williams. — What do you say about the man who came in there ?

A. — He hallooed for Jefferson Davis.

Senator De Long. — Well, he got knocked down.

Senator Perkins. — Served him right.

Mr. Williams. — Did he do so in a loud voice, so that everybody could
hear him ?

A. — It was plain to me and to everybody around. I could name you
one hundred that heard him.

3Ir. Camphell. — Where did you say was your residence ?

A. — At Jackson.

Q. — Are you much in Mokelumne Hill ?

A. — I go there sometimes.

TESTIMONY OF HENRY TROUBE.

Henry Troube, being called and sworn, testified as follows

Mr. Williams. — What countryman are you ?
A. — I am from Switzerland.

— Where do you live ?

— At Jackson, Amador County.

— HoAV long have you lived there ?

About seven years.

Are you a member of the Saengverein Society ?

■No, Sir.

Were you present at their May Festival ?

No, Sir, I was not present over at Mokelumne Hill,
— How long have you known Judge Hardy ?
— About four years.
— During the last year have you heard him express his sentiments

upon the subject of the Union and the rebellion ?

— Yes. We sometimes had some conversation.

— State what conversations you had with Judge Hardy, and what he

A
Q

said

A. — Well, I know Judge Hardy, because I had to go into Court every
term of Court when he held Court; so I got acquainted with Judge
Hardy that way.

Q. — Why did you have to go to Court ?

A. — Well, you know there are a good many Germans and French who
do not speak the English language ; so I had to go into Court to trans-
late German into English, and English into German, French into English,
and English into French.

Q. — Then you have attended Judge Hardy's Court as interpreter ?

A.— Yes.

Q. — You said you had heard Judge Hardy sj^eak on the subject I men-
tioned. State what you heard Judge Hardy say, what sentiments you
heard him express, on the subject of the rebellion ?

A. — Well, we had sometimes a conversation about politics, in which I
always take my share — and I told the Judge that I thought this rebellion
was as swiftly descending as it was in eighteen hundred and forty-seven,
in Switzerland, when seven States seceded. States had seceded from
the United States, and I hoped the rebellion would take the same course
as in Switzerland. I had a little boy, and I told the Judge. " Here is
my little boy ; if he should not follow the principles of the Government,
of the Eepublic, and of Liberty. I would sooner s^e him die right away
before my eyes, and not get to be a day older." The Judge told me,

247

"True; that is my principle. I like the principle, and I stick to it
myself."

Q. — Have you heard Judge Hardy talk on the same subject at other
times ?

A. — Yes ; Judge Hardy always was for the Union. I told him I would
give my last drop of blood, my life, and everything I have, for the Union ;
and Judge Hardy saj's, " Those are my views."

Q. — Have you been accustomed to consulting with Judge Hardy, and
advising with him about political opinions and political subjects ?

A. — Well, sometimes about elections. He was always a Democrat,
you know.

Q. — Have yoii been on such terms with Judge Hardy that you have
been in the habit of talking confidentially with him on political opinions,
and asking his advice ?

A.— Yes.

CROSS EXAMINATION.

Mr. Campbell. — You keep a drinking saloon, do you not?

A. — Yes; a hotel, bar room, and billiard saloon.

Q. — Was Judge Hardy in the habit of going in there to drink?

A. — Very little. Perhaps once in two or three weeks.

Q. — Did he advise you to vote the McConnell ticket, last Fall ?

A, — He never advised me.

Q. — Never advised you about political matters at all ?

A.— No.

Q. — Never advised you how you should vote ?

A.— No.

Q. — Who did you vote for for Governor last Fall ?

A. — I voted for Mr. Conness ; and the rest of the ticket — they split.

Q. — Then Judge Hardy never gave you any advice at all as to how
you would vote, at any time?

A. — No. You see I am a man, and go for m}^ views and principles. I
vote for the man I think the best maii. It might be I might sometimes
mistake.

Mr. Williams. — Who did you vote for for Congress ?

Mr. Edgerton. — I object. Never mind the " split."

TESTIMONY OF ARMSTRONG ASKEY.

Armstrong Askey, being called and sworn, testified as follows

Mr. Williams. — Where do you live ?

A. — At Jackson, Amador County.

Q. — How long have you known Judge Hardy ?

A. — About seven j^ears.

Q. — Have you known him well for the last year or two ?

A.— Yes.

Q. — Has he boarded at your house ?

A.— Yes.

Q. — Have you known him intimately ?

A. — I have.

Q. — What are your politics ?

A. — Well, I am a Democrat.

248

Q._Which kind ?

A. — Well, I voted a little of both at the last election ; a portion of
what is called the McConnell ticket, and a portion of what is called the
Conness ticket.

Q. — Has Judge Hard}' been accustomed to talk freely with you in rela-
tion to his political opinions ?

A.— Yes.

Q. — I mean in relation to his opinions concerning the troubles of the
country ?

A. — He has. I have heard Judge Hardy talk of them.

Q. — State what has been the tone of sentiment which. Judge Hardy
has expressed on the subject of the troubles of the country.

Mr. Camphell. — That is a little too broad. General.

Mr. Williams. — I will make it narrower, then. [To witness.] — "What
have you heard Judge Hardy say upon this subject of Secession ?

A. — Nothing but that he was a Union man, alwaj^s.

Q. — You never heard him say anything but that he was a Union man,
always ?

A. — I never have.

Q. — From your conversation with Judge Hardy, he living at your house
and on terms of intimacy with you, have you ever had occasion to doubt
that he was a sound Union man ?

A. — I never had.

Mr. Camphell. — Well, that is a mere matter of opinion.

Mr. Williams. — How frequently have you heard Judge Hardy speak
iij)on the subject of the present troubles 't

A. — In boarding at my house, he not only talked with me, but I have
heard him frequently speak with others, and at different times. Before
that — well, along through last year, I heard him talk in relation to the
national difficulties.

Q. — State whether, during the last year, there has been any difference
in the sentiments he has expressed on +;hat subject.

A. — Not any.

Q. — As he was living in your house, you have had a good opportunity
to observe him when there ?

A.— Yes.

Q. — What do you say about his habits, or about his having been intox-
icated while in the discharge of his duties, or during the times of hold-
ing his Court ?

A. — Well, I have never seen Judge Hardy drunk during the terms of
his Court — that is, on the bench. 1 might have seen him drunk, or under
the influence of liquor, during the session of the Court, perhaps ; but
never in the Court House. It is customary among the members of the
bar there to drink liquor, when off.

Q. — Unless it was after the adjournment of the Court, did you ever see
Judge Hardy under the influence of liquor on a day when Court was held ?

A. — No, Sir. I never have.

CROSS EXAMINATION.

Mr. Camphell. — What is your business ?
A. — Keeping a hotel.

Q. — Did you vote the McConnell ticket, generally, last Fall ?
A. — I voted for J. E. McConnell, Evans, McKibben, and, I think, Mr.
Edgerton.

249

Q.'— Did not you, as a general thing, vote the McConnell ticket ?

A.— I did.

Q. — Did 3^ou formerly live at Mokelumne ilill ?

A.— No.

Q. — How long have you lived in Jackson ?

A. — It is about eleven years.

Q. — Where has Judge Hardy generally lived ?

A. — Well, he has lived at Mokelumne Hill a portion of the time ; and
a part of the time at Sacramento, and at Jackson.

Q. — Where has his residence been, during the last two years?

A. — Mostly at Mokelumne Hill, during the last two years, I think.

Q. — You have not been in the habit of seeing Judge Hardy, have you,
except during Court time, during the last two years ?

A. — Well, Judge Hardy has frequently been at Jackson, when it was
not Court times.

Mr. Williams. — State whether you voted more than half the Conness
State ticket.

A. — I did not. I think I voted for three of the candidates on that
ticket.

TESTIMONY OF PETER THOMPSON

Peter Thompson, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — At Mokelumne Hill.

Q. — HoAv long have you known Judge Hardy ?

A. — Four years.

Q. — To what political party do you belong ?

A. — The Democratic party, 1 suppose.

Q. — Which branch of the Democratic j^arty ?

A. — I voted for Conness.

Q. — Are you a Union man, or otherwise ?

A. — Strongly Union.

Q. — Have you ever heard Judge Hardy converse on the subject of
fidelity to the Union, and in regard to the rebellion ?

A. — Yes. I have heard Judge Hardy say that he was a Union man.

Q. — How frequently have you heard Judge Hardy speak on the sub-
ject ?

A. — Well, perhaps on four or five occasions.

Q. — Did you ever hear him express any other sentiments?

A.— No, Sir.

Q. — Do you remember the case of McDermott vs. Higby, which was
tried in the District Court at Mokelumne Hill, the trial ending on the
first day of March last ?

A. — I was on the jury, I believe.

Q. — Were you foreman of that jury ?

A.— Yes.

Q. — Do you recollect what time the jury went out ?

A. — I foro-et the exact hour. I remember the circumstance well
enough.

Q. — It was late in the evening, was it not ?

A.— Yes.

260

Q. State, if you can, whether you agree with Mr. Genung that it was

about eleven o'clock.

A. — I should say it was between ten and eleven o'clock. I am not
sure, however. I did not look at the clock at the time.

Q. — You can remember, perhaps, what time the Court assembled that
evening ?

A. — 1 cannot remember the exact hour.

Q. — "Well, was it early in the evening, or late ?

A. — It was early in the evening when they first assembled; eight
o'clock, if I am not mistaken.

Q. — Was it immediately after the usual dinner time ? When the Court
adjourned for dinner, was it about the usual time, or not ?

Witness. — Do you mean in the afternoon?

Mr. Williams. — I mean when they came in, in the evening, after dinner,
or supper, or whatever you choose to call it.

Witness. — I know the Court adjourned several times that day and as-
sembled again ; so it is difficult to remember.

Q. — You think the case was given to the jury between ten and eleven
o'clock ?

A.— Yes.

Q. — Did you see Judge Hardy write his charge ?

A.— I think I did.

Q. — At what stage of the proceedings did he write his charge ?

A. — Shortly before the jury going out.

Q. — After the arguments had closed ?

Mr. Campbell. — Well, don't lead the witness.

Mr. Williams. — After the Judge had written his charge, in reading his
charge, or in reading the instructions to the jury, did you see anything
peculiar in Judge Hardy's manner, indicating that he was under the in-
fluence of liquor, or otherwise ?

A.— No, Sir.

Q. — You did not see anything ?

A. — I did not.

Q. — How near the Court House, in IVIokelumne Hill, do you live ?

A. — I live on the next street.

Q. — While holding his Court there, have you ever seen Judge Hardy
nnder the influence of liquor ?

A. — I never have, on the bench.

CROSS EXAMINATION.

Mr. Camphell. — What time did you see Judge Hardy writing?

A. — Well, it was shortly before he read the charge. He read it after
he wrote it. That was between ten and eleven o'clock, I should think,
if I remember right.

Q. — Was it before or after the summing by Counsel, that you saw
Judge Hardy writing ?

A. — After the summing up ; writing what I imagine to be his charge.
He took the paper and read it.

Q. — How do you know the paper Judge Hardy was writing was his
charge ?

A. — The only way I have of knowing, is, that Judge Hard}' took the
paper and read it.

Q. — How long did you see him writing ?

251

A. — I did not pay any particular attention to the time. I saw him
take the paper in his hands, and read his charge.

Q. — Have you seen Judge Hardy intoxicated at any of the terms of
his Court, when he was not on the bench ?

A. — I have seen him drinking. I never could say that I have seen him
drunk, though.

Q. — Have you not, a number of times, seen him under the influence of
liquor ?

A. — Only once ; and that was not during the terms of his Court.

TESTIMONY OP B. T. BRADLEY.

B. T. Bradley, being called and sworn, testified as follows :

Mr. Williams. — Where do you reside ?

A. — In Calaveras County.

Q. — How long have you lived there ?

A. — Since eighteen hundred and fifty-two.

Q. — How long have you known Judge Hardy?

A. — Since the latter part of eighteen hundred and fifty-four.

Q. — How frequently have you seen him during the last year?

A. — Not very frequently ; perhaps three or four times. During the
first part of last year I saw Judge Hardy very frequently; but since the
close of the last session of the Legislature I have seen him only two or
three times, I believe.

Q. — Well, say within two years past ?

A. — I was in Sacramento during the last session of the Legislature,
and saw Judge Hardy frequently. Since that time, I have seen him but
three or four times, I think ; perhaps, oftener. I do not recollect.

Q. — During the last session of the Legislature, you saw him frequent-
ly ?

A. — Frequently.

Q.— Well, during that session of the Legislature, was the subject of
politics a good deal discussed by outsiders ?

A. — Considerable, Sir.

Q. — Was the subject of the rebellion, secession, Union, and Disunion,
discussed a good deal ?

A. — Yes, by a great many persons.

Q.— Did you hear those subjects discussed pretty frequently when Judge
Hardy was present ?

A. — I cannot call to mind but one occasion. I have no doubt but such
was the case, but I cannot recollect distinctly of but one occasion.

Q. — What occasion was that ?

A.— It was shortly after the firing into Fort Sumter. I do not recol-
lect whether it was the day the news was received in Sacramento, or
not; but it was about that time, or shortly afterwards. I met Judge
Hardy, and the only thing I recollect distinctly of the conversation
which took place between us, is this : that the Judge asked me what I
thought of the affair, and I remarked to him that I thought it was pre-
mature.

Q. — Did lie express his sentiments on that occasion ?

A. — ^Yes. He coincided with me in my views, or in my impression.

252

Q. — What do you mean by your thinking it premature ? Did you ttink
it was only a question of time when they ought to fire into the fort ?

3Ir. Camphell. — I suppose the language speaks for itself.

Witness. — I will answer that question.

Mr. Williams. — I want to give you an opportunity of explaining what
might be misconstrued.

Mr. Edgerton. — Well, ask the question.

Mr. Williams. — State what Judge Hardy's language was on that occa-
sion.

Mr. Camphell. — Let us have the conversation just as it was, and then
we will draw our own inferences from it.

Mr. Williams. — I am asking as to the language of Judge Hardy.

Witness. — I do not think I could state the precise reply. I could state
the substance of it.

3Ir. Williams. — State the substance, then.

A. — He acquiesced in what I said.

Mr. Williains. — Well, " acquiesce " don't tell anything very distinctly.
Give us what Judge Hardy said, if you can.

Witne.ss. — I do not recollect the language he used. The impression that
was left upon my mind was this —

3Ir. Williams. — [Interrupting.] The other side won't let you state im-
pressions, I suppose.

3Ir. Camphell. — Let the witness state the substance of the conversation.

Mr. Williams. — Well, state the substance of the whole conversation on
both sides.

Witness. — I cannot state the particular reply that Judge Hardy made
to me. The reason I refer so particularly to this conversation, is this :
That I had expressed mj^self similarly on this point to several gentle-
men in vSacramento ; and I recollect the same impression was left on my
mind by each of those gentlemen that I now have, in regard to this con-
versation with Judge Hardy.

Q.— What was that ?

A. — Speaking of this matter, I said I believed the firing on Fort Sum-
ter was premature.

Q._Why ?

A. — Because I thought that the Southern States had no cause for such
an attack.

Q. — Did you assign that reason to Judge Hardy, for jo\xy opinion ?

A. — I do not recollect specially that I did. It is more than likely, as
I thought so then, and have ever since.

Q. — Judge Hai'dy acquiesced with you ?

A. — Judge Hardy left me with that impression. Other gentlemen did
the same, and others did not.

Q. — You cannot distinguish between your conversation with Judge
Hardy and your conversation with other gentlemen ?

A. — My recollection is, that I had this conversation with Judge Hardy
and some other gentlemen, who coincided with me ; and that some oth-
ers dissented from my opinion.

Q. — Let us see how clear your recollection is. You assign much the
same reason to Judge Hard}' as to the others, for your opinion.

A. — I cannot say positively, but I presume I did ; those being my sen-
timents.

Q. — Did you, or do you now say that you assigned that reason to oth-
ers to whom you expressed your opinion ?

A. — 1 think I did, undoubtedly to othersj and I think very likely 1

253

did to Judge Hardy ; but as regards Judge Hardy specially, I do not
recollect. That is my impression. I would like to qualify this — that I
think so from this very fact, that those were my sentiments so often and
so constantly expressed, that in speaking of the matter I do not think I
spoke otherwise to Judge Hardy than I did to these other gentlemen.

Q. — You say those were -'your sentiments so often expressed." I ask
you to repeat what those sentiments were, that we may have no mis-
take hereatter.

A. — As regarded the firing on Fort Sumter, I thought it was prema-
ture, and I did not believe the Southern States had just cause for that
attack.

Q. — Xow, at the risk of being charged with repetition, I ask you if
you know 3'ou did assign those reasons to other persons?

A. — I know positi\^ely that I did to many others ; to Senator Eagar,
for one.

Q. — And you believe you did to Judge Hardy ?

A. — I think so, from this fact : I do not recollect specially that I did
to Judge Hardy, but those being mj^ sentiments, I believe that I did ;
for I think I so expressed myself to every person to whom I spoke on
the subject at that time.

Q. — With those sentiments, you said, I believe. Judge Hardy co-
incided ?

A. — He acquiesced in them.

Q. — Do you recollect Judge Hardy's assigning an opposite reason to
the one you did ?

A. — I do not.

Q. — You do not remember?

A. — No, Sir ; I do not recollect.

Q. — Do you remember his alluding to the consequences of that act to
the Disunionists ?

A. — I cannot say that I do.

Q. — Have you heard Judge Hardy speak on the same subject at other
times than that one occasion ?

A. — I do not recollect, in regard to the subject of the war, as I have
seen Judge Hardy but very little, and do not charge my memory with
every conversation I have. The only time 1 recollect when any other
conversation has taken place between Judge Hardy and myself, was at
Mokelunine Hill, either a few days after the last election, or some two
or three weeks before the election — I do not recollect which. I was at
3Iokelumne Hill on both occasions, and on one of the occasions I met
with Judge Hardy. The only thing I recollect in regard to that conver-
sation—

Mr. iriY/«'om.s.— [Interrupting.] State the whole of that conversation.
Witness. — I cannot do it. It is impossible for me to do it. I recollect
the substance only.

Mr. Williams. — Well, state the substance.

Witness. — Judge Hardy expressed his general regret at the civil war
that was then (and now is) raging.

Q. Tliat was either about two weeks before the election, or two or

three days after the election ?

A. I think so. I was at Mokelumne Hill onlj- once or twice during

the summer ; once, two or three times, before the election. The last time
I was there, 1 was there the day after the election, and remained two or
three days. Those were the only times I was in Mokelumne Hill during
the summer.

254

Q. — Who else was present at the time of that conversation ?

A. — I do not recollect. I do not think any person was present. I
think Judge Hardy and myself were separate and apart from anybody
else. We met in the street.

Q. — What opened that conversation ?

A. — Having met, we shook hands and passed the usual compliments,
inquired the news, and fell into general conversation. I do not recollect
any particular remark, from either Judge Hardy or myself, that brought
up the conversation.

Q. — How long did you converse with Judge Hardy on that subject, on
that occasion ?

A. — ISTot a great while.

CROSS EXAMINATION.

Mr. CanvpheU. — Which political party are you connected with, Mr.
Bradley ?

A.— Well, Sir, I voted the McConnell ticket.

Q. — Were you a member of the Convention that assembled in Sacra-
mento, in June and July, eighteen hundred and sixty-one, that nomi-
nated McConnell ?

A. — No, Sir. I was not in any political Convention whatever, last
year.

The Court then adjourned to eleven o'clock on Tuesday morning, May
sixth.

testim:on Y

IN THE

TRIAL OF JUDGE J. H. HARDY.

EIGHTH DAY— MAY 6, 1862.

TESTIMONY FOR THE DEFENCE.

TESTIMONY OF DR. JAMES HEPBURN.

Mr. Hepburn, being called and sworn, testified as follows :

Mr. Williams. — "Where is your residence ?

A. — At Mokelumne Hill.

Q. — What is your profession and business ?

A. — Physician.

Q. — How long have you lived in Calaveras County, Doctor?

A. — Seven or eight years.

Q. — How long have you known Judge Hardy ?

A. — I have known him ever since I came to the Hill ; four or five
years — four years, certain.

Q. — Do you remember, Sir, the occasion when there was a case tried
at Mokelumne Hill, between McDermott, plaintiff, and Higby, defendant,
which ended late on Saturday night ?

A. — Yes, Sir.

Q. — Was you in the Court room during that trial ?

A. — Yes, Sir ; I was in the Court room.

Q. — On the first of March last ?

A. — Yes, Sir, I believe that was the time.

Q. — Yes, Sir, we have that time fixed. Do you remember, Sir, at what
time the Court convened in the evening ?

256

A. — I had heard that there was some excitement there, and I went up
to the Court room, when I think it was between five and six o'clock. It
may have been near six o'clock.

Q. — Was there any adjournment after that, or was there any recess
taken ?

A. — Yes, Sir; I went there and found that they were about taking a
recess. I came down out of the Court room on to the pavement in front
of the Court House. Judge Hardy also came down. I had some con-
versation Avith him there.

Q. — You say you had some conversation with Judge Hardy when the
Court took this recess ?

A. — Yes, Sir. I said to him that I understood there had been some
muss there. I spoke in regard to a certain affidavit that had been filed
there that morning.

Mr. Campbell. — You need not relate the conversation you had with
Judge Hardy.

Mr. Williams. — I only called that out for the purpose of identifying the
occasion. I ask you. Dr. Hepburn, Avhether the subject that started your
conversation then was not an affidavit which had been filed by Mr. High}',
that evening ; in which Mr. Higby stated that he could not have a fair
trial before Judge Hardy ?

A. — That is what I was going to say. I so understood. I did not
hear the affidavit.

Q. — Now, go on, if you please.

Witness. — You wish me to relate something more about the conversa-
tion I had with Judge Hardy?

Mr. Williams. — Xo ; I don't care about what particular conversation
you had with Judge Hardy then. But you did have some conversation
with him on that occasion ?

A. — Yes, Sir ; I walked with him some little distance, and we conversed
as we walked.

Q. — AVhat was the condition of Judge Hardy then, with reference to
his being sober ?

A. — I noticed nothing unusual.

Q. — You went home, then, did you ?

A. — I went home for tea.

Q.— Well, Sir ?

A. — When I had got my tea, I came back to the Court House to hear
the speeches of Counsel, that were to be delivered.

Q. — At what time did you come back, or at what time did the Court
convene ?

A. — I think it was about an hour from the time of taking the recess.
Perhaps it Avas seven o'clock when I came back.

Q. — Was the Court in session when you came back ?

A. — Yes, Sir; the Court was in session, and Mr. Higby Avas speaking.

Q. — Did you remain there until the jury Avere charged, and went out?

A. — I remained there, and heard two speeches. I heard Mr. Higby
through, and then I heard Judge Terry.

Q. — Did Judge Hardy leave the bench from the time that the Court
convened, or from the time you got into Court, at seven o'clock, until
the case was given to the jury?

A. — No, Sir; he did not.

Q. — He stayed there all the time, did he ?

A. — Yes, Sir.

Q. — You feel positive of that ?

257

A. — Yes, Sir ; I am satisfied that he did not leave the bench at that
time. In fact, I l^now that he did not.

Q- — You were attending to the proceedings particuhirly, "vvere you?

A. — Yes, Sir.

Q. — Judge Terry had the closing argument, did he ?

A. — Yes, Sir ; I think that was so.

Q- — Do you remember what time Judge Terr}- got through with his
argument ?

A. — I do not know exactly what time it was. I did not take any par-
ticular notice of the time. 1 think Judge Terry was probably speaking
— well, I don't know hoAV long he was speaking.

3fr. Wi//iams. — Well, if you don't know by the watch, I won't ask j^ou
any further about that. iSTow, when Judge' Terry got through with his
argument, what took place? Did Judge Hardy immediately charge the
jury, or did he wait and write out the charge ?

A. — The Judge was engaged with the papers on his desk at the time
Judge Terry was making his argument. I do not know what he was
about.

Q. — Did you notice whether he was Avriting after Judge Terry o-ot
through, or not?

A. — lie was writing during the latter part of Judge Terry's argument.
I don't know what he was writing. I supposed that it was his charge.
I did not know that it was his charge, but I supposed that it was.

Q — How long a time was it from the closing of Judge Terry's argu-
ment until the time when the Judge commenced charging the jury ?

A. — I do not think that the time was long; but there Avas a little ces-
sation of business lietween the closing of Judge Terry's argument and
the time of Judge Hardy's commencing his charge. I cannot say how
long a time it was ; it was not very long.

Q. — Did you hear the charge read ?

A. — Yes, Sir.

Q. — Did 3'ou hear the instructions read which Counsel asked for?

A. — Yes, Sir; I heard the charge entire; special issues, and all.

Q. — Delivered by Judge Hardy?

A.— Yes, Sir.

Q. — Was there anything in the manner of his reading these papers to
the jury, anything in the way in which he charged that jury, that indi-
cated intoxication on his part, to any extent, or in any degree?

A. — There was nothing in his manner or voice that excited the least
suspicion that he was intoxicated. I heard the charge, distinct and
clear.

Q. — For the purpose of testing your abilit}" to judge of this matter
from your knowledge of Judge Hardy, state to what extent you are ac-
quainted with him, individually. Have you been his family physician ?
Were you then his family pliysician ?

A. — Yes, Sir. I have seen him a good deal. I have often been at his
house, during sickness in his family. And have seen him at other times.

Q. — Well, in general terms, can you say that you know him well ?

A.— I think I do.

CROSS EXAMINATION.

3Ir. Camphell. — Have you been in the habit of associating much with
Judge Hardy, except in your capacity as his physician ?

A. — Xot a great deal. Only occasionally I would see him, of course,
through the town.

Q. — Were you in the habit of visiting saloons with him ?

A. — I have, some — occasionally. That is, I have seen him in saloons.

Q. — Have you noticed him closely enough .to observe his peculiar be-
havior, when under the influence of liquor ?

A. — Yes, Sir ; I have seen him when under the influence of liquor fre-
quently, or occasionally, rather — when excited a little by liquor.

Q. — During the terms of Court ?

A. — I cannot say that I have, during the daytime, when the Court
was in session. I may have seen him sometimes at night.

Q. — JIow long did you remain in the Court House after the charge to
the jury was delivered ?

A. — Xo time at all. I went immediately home as soon as the jury
went out. I left him then.

Mr. Williajus. — Mr. Campbell has asked you whether you have ever seen
Judge Hardy under the influence of liquor. You stated that you had.
Xow, then, from what you know of Judge Hardj-'s manner when he was
under the influence of liquor, must you not have noticed whether or no
he was intoxicated at the time to which reference has been made ?

A. — I think I should. Sir.

Q. — As you have been inquired about as to his appearance when under
the influence of liquor, I will ask you, when he is so afl^ected, how does
he manifest it ? Is he rough and abusive, or is he funny and pleasant ?

A. — He is jocose, and disposed to talk a good deal. He speaks with-
out any apparent reserve, or much consideration, I should think. He is
outspoken.

Q. — He speaks without reserve or consideration ?

A. — I think so.

Mr. Camphell. — Are you sure about the time when you returned to the
Court room and found Mr. Higby speaking ? Are you sure that it was
not eight o'clock, or near eight o'clock, when you returned ?

A. — I think it was not so late.

Q. — Can you be positive about it ?

A. — I had no precise time fixed about it. It was only the circumstan-
ces that fixed the time, or the probable time, in my mind. I remember
that I went home and got my supper, which I usually do about six
o'clock, and then I returned from my home to the Court House.

Q. — Was there a clock in the Court House ?

A. — Yes, Sir.

Q. — Did you notice what time it was by that ?

A. — No, I did not notice the time by that.

Q. — Do you know what part of the Court House you occupied at that
time ? You can illustrate it by suj)posing the Judge to sit where Mr.
Shafter now sits.

A. — I will answer : This being the seat of Judge Hardy [pointing to
the presiding ofiieer,] and the jury sitting here [pointing to his left, as
he faced the door of the Senate Chamber,] I sat back of the railing be-
hind the jury.

Q. — About how far from Judge Hardy were you ?

Mr. Williams. — State the feet or yards, if you can.

A. — Well, there was a passage way up to the Clerk's place. Then
there was a. box for the jury. The jury sat six abreast. Then there
was a railing back of them ; and I sat back of that railing. What dis-
tance from the Judge it was I do not know — twenty feet, probably.

259

Mr. Williams. — You wero where you could hear and see distinctly all
that Judge Hardy did and said ?

A. — Yes. sir; I think I heard every word he uttered.
Mr. TT/7//V//H.S.— That is all.

J. F. TREAT, CALLED.

J. F. Treat was called by the Defence, and sworn.

Mr. Campbell stated that the Counsel for the Prosecution did not think
that the evidence on the part of the Prosecution had been sutficient to
sustain the Eighth Article. Therefore it was unnecessary to call Avit-
nesses to reply to our testimony on that point.

Mr. Ilighi/. — The Eighth Charge is withdrawn.

Mr. Camphcll. — We shall not call for a conviction on that charge.

The Presiding Officer announced to the Senate that the Counsel for
the Prosecution liad abandoned tlie Eighth Article of Impeachment.

Mr. Williams. — A part of the evidence which we propose to introduce,
relative to this charge, is not solely to disprove it; we hardl}' deem that
necessary. But. among other things, we propose to so contradict, by our
evidence, Mr. Brockway's statements in regard to this subject, as to show
the Court just how much weight ought to be given to his testimony on
other charges. We propose to contradict Mr. Brockway squarel}^ in his
version of this affair. And I will state to the Court what our evidence
will be ; and if it is admitted by our Counsel on the other side, I shall
afterwards acquiesce in their withdrawal of this charge. It is, that
when Mr. Brockway first heard of Judge Hardy's aversion to hearing
this motion to amend the plaintiff's replication, he heard it from Judge
Beatty; that Judge Hardy told Judge Beatty the reason, and the only
reason, he had, why he did not wish to hear that motion — a reason that
we sa}' will be apparent to all, as a sufficient reason for his not hearing
that motion — that Judge Beatty communicated that information and that
reason to Mr. Brockway; that that communication constituted the first
information that Mr. Brockway had in regard to the matter, and that
Mr. Brockway said that he was glad of it.

Mr. Hiijhrj. — The objection to the introduction of any such testimony
is very apparent. All we have to say in answer to this we say now.
We understand that Mr. Treat is called for the purpose of rebutting the
evidence of Mr. Brockway, upon a particular point. It has just been
announced b}' the Counsel for the Prosecution that the Eighth Article of
Impeachment will not be presented to this Court; that this Coiu't will
not be asked to give a decision upon it. The Counsel for the Prosecution
think there is not evidence enough to sustain the charge, and therefore
they have withdrawn it. Now, if that be the case, all evidence in rela-
tion to that charge is withdrawn, and has no bearing here upon this case.
And if the evidence of Mr. Brockway, given under this Article, becomes
immaterial, by reason of the fact that the Article itself is withdrawn,
certainl}' it is not evidence such as they can rebut here, in the conduct of
the trial, on the part of the Defence. That is our position. It is evident
that in order to impeach testimony, such testimony must be called in
question as is material to the issue ; and if a particular Article is with-
drawn, of course the evidence which has before been introduced, with a
view to sustain it. is also withdrawn, and is no longer material.

Senator Farks. — I would inquire whether the Counsel for the Prosecu-

260

tion have the power to withdrawal! Article of Impeachment without the
direction and consent of the Senate?

Mr. Campbell. — We do not wish to be understood as assuming any such
responsibility in the premises. We do not think the evidence is sufficient
to warrant us in asking a conviction upon that Article ; and, therefore,
we state at this time that we shall not press it upon the consideration of
the Court.

Mr. Williams. — Judge Campbell's statement is perfectly right and per-
fectly lawyer-like ; but I wish to say one word upon the position taken
here. The Prosecution have introduced a witness here who testifies upon
several charges. lie testifies to private conversations with the Respon-
dent, when nobody else was present. Therefore he cannot be contra-
dicted in regard to these private conversations. Let me illustrate the
condition of things now : Out of six chai"ges a witness may testify in re-
gard to one solitary matter, under such circumstances that there will be
no one to call his statements in question. He may testify in regard to
the other five charges under such circumstances as will permit the ojipo-
sing party to contradict him. But after the Prosecution have got in all
his evidence on all the charges — got the moral force of his testimony as
a whole — they then turn round and say, " We abandon the five charges
where our witness can be contradicted, and stick to the only one where
he cannot be contradicted.

Mr. Eihjcrton. — [Interrupting.] The only question here is, whether
there has been any foundation laid for this testimony.

Mr. Williams. — We propose to prove that the refusal of Jiidge Hardy to
hear a certain motion, which refusal was sworn to by Mr. Brockway, was
first communicated to Mr. Brockway by Judge Beatty — (I will offer
noAV the testimony of two witnesses together, because that will save
time) — was first communicated by Judge Beatty to Mr. Brockway, and
Mr. Brockway then expressed his full assent thereto, and satisfaction
therewith. The Court will remember, Senators will remember, that Mr.
Brockway testified that the reason Judge Hard}^ had assigned why he
did not wish to hear that motion, was. because he had such an enmity
against Mr. Treat that he did not think it was proper for him to sit, and
hear, and decide, upon any motion in that case. Upon the cross exami-
nation it came out that Judge Hardy had informed some parties that he
was going to have another Judge come there in a very short time, and
that that other Judge would hear that motion. Now, in order to con-
tradict Mr. Brockway's testimony, or to remove the impression which
Mr. Brockway's testimony is likely to pi-oduce here, in regard to Judge
Hardy's refusal to hear that motion, we propose to show that no such
fact existed, as Mr. Brockway testified to. We propose to prove such a
state of facts as will satisfy this Court that Mr. Brockway testified under
a misapprehension. " Misapprehension" is the word which I will use.
And then we propose to urge that although this Eighth Charge is aban-
doned, if Mr. Brockway is under a misapprehension as to so material a
part of the testimonj- as this was, his testimony is not very reliable, and
ought to be considered as hardly sufficient to convict a man of high mis-
demeanors in office, when his testimony has reference to other charges,
which Mr. Brockway attempts to sustain by relating conversations which
he avers took place at a time when nobody was pi-eseut but himself and
Judge Hard3^ I propose this as a measure of the value and credibility
of Mr. Brockway's testimony.

The Presiding Officer. — No doubt the Counsel for the Prosecution have
the right to withdraw any one, or the entire list, of the Articles of Im-

261

peacliment that tlicy choose. But they have done neither of these
things. They merely say that they do not propose to urge the convic-
tion of the Respondent upon the Eighth Article, or the testimony intro-
duced under it. I cannot see how any testimony is admissible which
would merely go to impair the force of Mr. Broekwav's testimony under
the Article which has been abandoned. If that testimony is not now
material, it certainly must be immaterial to introduce testimony to im-
peach that which is not material. Therefore 1 do not think that the
testimon}" is admissible.

3L\ Campbell. — And more than that : the jjroposition here is, to prove
a certain conversation Judge Beatty had with Mr. Brockway, in refer-
ence to which Mr. Brockway has not been asked a single question. Then
we say, that upon this ground, and in the first place, there has been no
foundation whatever laid for this evidence.

The Fresidinij Officer. — I do not think the testimony is admissible, un-
less you can go hack and show some particular point in Mr. Brockway's
testimony upon which it Avould have a bearing. I do not recollect that
Mr. Brockway testified that he did not have the conversation with Judge
Beatty. I think that I took particular notice of the cross examination
of that witness as it proceeded, for the express purpose of discerniDg any
indication of a purpose of Impeachment. I did not notice any such
thing.

Mr. Williams. — Well, unless the President can recollect the testimony
of Mr. Brockway, we will not consume time in going back into an inqui-
ry as to what it was. "We will not press the matter. Mr. Treat, you can
retire.

TESTIMONY OF WILLIAM IRVING.

William Irving, being called and sworn, testified as follows :

Mr. Williams. — AVhere do you live ?

A. — I live in San Andres, Calaveras County.

Q. — Was you at the last term of the Calaveras Court ?

A. — Yes, Sir.

Q. — Was 3'ou present at the trial of the case of McDermott vs. Higby ?

A. — I was.

Q. — During how much of the trial of that cause was you present ?

A. — I was there from the time it commenced until it closed.

Q. — Were you there when Mr. Higby read his affidavit before the jury,
in which he stated that he could not have a fair trial before Judge Hardy ?

A. — Yes, Sir, I was.

Q. — What time in the day was it that Mr. Higby read that paper ?

A. — It was a short time after the opening of the Court in the morning.

Q. — Saturday morning, Sir ?

A. — Yes, Sir ; Saturday morning.

Q. — What is your recollection as to the time the Court came in after
the evening recess — after supper — after tea ?

A. — I think it came in about eight o'clock in the evening — I would not
be sure as to the hour.

Q. — Are you sure about that ?

A. — I am pretty certain about that, but I am not positive. I think,
however, that that was about the hour.

262

Q. — Was you in the Court room from the time when the Court con-
vened until the time when the Judge gave the case to the jury ?

A. — Yes, Sir -, I was there all the time during the trial.

Q. — Did you hear the Judge read the instructions, the charge, and the
sj)ecial issues, to the jury ?

A. — Yes, Sir; I did.

Q. — When that was done, where were you in reference to the bench ?
How far off ?

A. — For instance, if Judge Hardy was sitting as the President is here,
I was leaning upon the end of the bench, behind which the Judge sat.
I was leaning, for instance, ujDon the other end of the bench, [pointing.]

Q. — State whether you saw anything on that evening which indicated
that Judge Hardy was intoxicated, or under the influence of liquor,
while reading his charge and instructions to the jmy.

A. — ]N"o, Sir. I could not perceive any appearance of his being affect-
ed by liquor.

Q. — Well, Sir ; Avhat did yon perceive ?

A. — Well, I think, from what I saw, during the day. Judge Hardy
was somewhat uneasy — somewhat excited on account of the affidavit
which Mr. Higby had read. At least he told me so.

Q. — Was there anj-thing so unusual in the proceedings at that time as
to attract your particular attention to that case ?

A.— No.\Sir.

Q. — Not in relation to the Judge's condition ? Or, I will ask you,
whether or not, during the day, the proceedings in that trial exhibited
anything calculated to attract particular attention ?

A. — There seemed to be considerable feeling upon the part of Mr.
Higby and Mr. Dudley. I remember that I myself had some conversa-
tion with Mr. Dudley in pai'ticular, in regard to the case.

Q. — Now, before Mr. Higby filed that affidavit of which you have spo-
ken, do 3^ou remember the occasion of a Avitness, by the name of Wallace,
being called to the stand ?

A. — Yes, Sir.

Q. — When Mr. Wallace was on the stand, what was Mr. Higby's de-
meanor towards the Court ?

Mr. VamphcU. — Well, I don't see what that has to do with this case ?

Mr. Mtlliams. — I will ask a question preliminary to that. I will ask
you a leading question — if Counsel have no objection, and I thiiik they
will not object when I state the question. As a matter of course they
will understand the object of it. I want to see if j'ou understand this
matter. This was a suit brought against Mr. Higby for trespass, Or
something in the nature of a trespass — something concerning a trespass;
something concerning a ditch and water property ?

A. — Yes, Sir.

Q. — Mr. Higby put Mr. Wallace on the stand, didn't he ?

A. — Yes, Sir.

Q. — Now, did Mr. Higby attempt to prove by Mr. Wallace what he,
High}", told Wallace, Avhile the trespass was being committed ?

A. — Yes, Sir.

3Ir. CamphdJ. — Stop a moment. We object to that testimony as irrele-
vant and immaterial.

Mr. WiUiams. — Whatever it was Mr. Higby sought to prove by Mr.
Wallace, did Judge Hardy object to the evidence ?

A.— Yes, Sir.

3Ir. Campbell. — Well, may it please the Court, we object to all this

263

Mr. Williams. — "We propose to prove that, instead of Judi>;c Hardy's
being drunk on that occasion, ho was as sober as he ever is. We pro-
pose to prove that instead of Judge Hardy's being drunlc on that occa-
sion, he was laboring under a considerable degree of excitement, and we
propose to prove the real cause of that excitement. We pro))ose to
fasten that cause ujion this gentleman who is here now prosecuting this
Eespondent, [referring to Mr. Higb}^] who was then a defendant in a
suit where he was prosecuted in an action for trespass. We propose to
prove that for everything that was wrong there on that day, that for
everything that there and then occurred, which was not strictly compati-
ble with the suitable dignity of a Judge, this man [Mr. High}'] is alone
responsible ; that it was not intoxication, but that it was that excite-
ment which naturally arose out of Mr. Higby's un])recedented conduct
on that occasion, that caused this somewhat singular appearance that
jurors and witnesses have here described, and which they were under
the impression, arose from Judge Hardy's being under the influence of
liquor. I am laying the foundation for that evidence — laying the ground-
work to make the evidence on that point perfectly intelligible and con-
elusive. We propose to prove by this witness that Mr. Higby insisted
that the Court should allow and admit in evidence his private instruc-
tions to his co-trespasser; that the Court should admit by way of evi-
dence, what he, Higby, said to the witness on the stand at the time of
the commission of the ti'espass. AVe will, if permitted, prove that Judge
Hardv excluded that evidence ; and that, from that moment. Mr. Higi)y
commenced an unprecedented and virulent warfare on the Court ; that
his conduct, then and there, was such as was well and inevitabl}' calcula-
ted to irritate and excite any man who had one single particle of the old
Adam remaining him ; that not one man in ten thousand could, under
such circumstances, have proceeded with the business of his Court, and
conducted himself with that degree of equilibrium and self-possession
that a Judge is ordinarily expected to exhibit while on the bench. We
expect to prove that ^Ir. Higby followed up this line of warfare against
the Court, by coming into Court with an affidavit, in Avhich he stated
that he did not think he could have a fair trial when Judge Hardy was
on the bench — a])pealing to the jur}^ from the Judge on a question of
law, by reading tliat aflidavit in 'their presence. We propose to read
that affidavit, have it placed in evidence, and use it in our argument upon
this point. We will show the animus from the paper itself. We pro-
pose to prove a perfect accordance between that affidavit, the spirit of
that affidavit, and the spirit manifested by Mr. Higby in his conduct
throughout the trial. We propose thereby to prove to the satisfaction
of every honest mind, the exact position in which Judge Hardy was then
situated ; that Judge Hardy was not intoxicated, but that he was irritated
and excited ; that he was excusably so ; that the blame for his condition
then, if there be any, is a thing which rests upon the man who put him
in that unpleasant position, whose duty it was to have exercised a proper
courtesj- towards the Court before whom he practises — a man who has
been a principal mover and prosecutor in this Impeachment case — a man
who was most busy and active before the Assembly in urging and insti-
tutino- these Articles of Impeachment — a man who comes into this Court
as the Chief Engineer in managing and directing the machinery of this
prosecution — a man who is here acting in the doulde capacity of a person
prosecuting a cause in revenge for private grievances, and, as Counsel
retained by the State, and paid out of the State Treasury for opening
his mouth' here, and letting his malice run out.

264

Mr. TTighy. — As the gentleman has seen fit to make a violent personal
attack here, I think that a few words are due from me.

The Frcsiding 0§icer. — These personal attacks are entirely uncalled for,
and cannot, of course, be permitted in this Court. The simple question
here is. M'hether Judge Hardy was drunk or sober on the night of that
trial.

Mr. Highy. — Mr. President, I have no earthly objection to having every
single circumstance and fact that is a part of the record, or that occurred
during the progress of that trial, shown here fully in evidence. And I
wish to express my particular willingness to have all my conduct on that
occasion as thoroughly exhibited here, as it is possible to give it. But I
do not wish the Counsel on the other side by themselves to make evi-
dence in tliis case. The Counsel on the other side cannot prove what he
now asserts.

Mr. Williams. — I understand that under the ruling of the Chair we may
prove that Judge Hardy's appearance on that occasion was attributable
to excitement or other causes than that of intoxication. It is with that
view that we propose to show that there was a state of facts then exist-
ing that were very well calculated to produce this excitement.

The Preddinff Officer. — It is competent to show what was the condition
of Judge Hardy on tliat occasion. It is competent to show whether it
was drunkenness, or whether it was excitement, or illness, or suffering
under domestic affliction, or something of that kind. The specific charge
is •' drunkenness." Now. it is proper to show that it was not drunken-
ness, but excitement.

Mr. Williams. — Is it not competent to show that a certain action had
been had in his Court which forms a proper cause for his apjiearance on
that occasion ? Su]jpose we point to the language used in this affidavit
of Mr. Higby's, and show that it is not true; would not that indicate
and prove a state of facts constituting an abundant cause for excitement
on the part of Judge Hardy on that occasion ?

The Presiding Officer. — You have already shown that an affidavit was
filed in the case by Mr. Higby. Whether the language used in that affi-
davit was disrespectful, or not, remains to be shown.

Senator De Long. — I would like to ask how the Court can be satisfied
whether Judge Hardy was intoxicated or excited on that occasion, un-
less the witness is allowed to explain the circumstances connected with
the trial which were likel}- to cause excitemeiit.

TIlp Presiding Officer. — The witness can prove all the facts in that case
which are within his knowledge. It can be proved that the affidavit was
read ; the affidavit can be read here in evidence ; it can be proved as to
whether or not the Judge found fault with that affidavit. It seems to be
admitted that there was a certain appearance of excitement on that oc-
casion, or that there was something unusual in the appearance of Judge
Hardy on that occasion. The question now is, what caused that unusual
appearance or that phenomenon ; was it intoxication, or was it undue
excitement from some other cause ?

Mr. Williams. — I am one of the last men in the world to ai'gue a case
after it has been decided. But I beg leave to make a single suggestion.
In criminal trials, occurrences which indicate certain motives that are
calculated to arouse feelings of excitement, acts which have a direct
tendency to irritate or excite, are always admissible in evidence.

The Presiding Officer. — Yes, Sirj to show the animus of the party re-
ferred to.

265

Senator Dc Long. — I ask that the proposition of the Counsel for the De-
fence be ]jut in writing.

Mr. Williams here read to the Court the aflSdavit which Mr. Higby
made in the case of McDerniott against Higby.

Mr. Williams. — That is the affidavit ; and, in connection with the presen-
tation of that affidavit, I offer to prove the general conduct and de-
meanor of Mr. Hi^by towards the Court during the balance of that trial;
for the purpose of showing that it was well calculated to produce that
excitement, or to produce that phenomenon — as the Court has expressed
it — which existed or appeared there ; and that to that, and not to intox-
ication, the unusual appearance is attributable. And still further, we
propose to prove, in that connection, that Judge Hardy came into the
Court room on that evening in a state of perfect sobriety; that he did
not leave the bench on that evening — as we have already proved by two
witnesses — from the time that he came into the Courtroom on that even-
ing— at seven or eight o'clock, whichever it was — until ten or eleven
o'clock, when the charge was given to the jury, and when this pheno-
menon is said to have exhibited itself And we shall ask the Court to
come to the conclusion upon that state of facts, that there was no such
thing as drunkenness upon the part of Judge Hardy upon that occasion ;
that these jurors and others who have testified as to their mere belief as
to tlie condition of Judge Hard}" upon that occasion, were misled in their
judgment as to the cause of his appearance at that time.

Mr. Camphcll. — It is to be hoped that we will, some time or other, come
to a conclusion in reference to this case. In order to arrive at that con-
clusion, it is desirable that all matter not pertinent to the case, not thi-ow-
ing any possible light upon it, should be excluded. Now, the fact is,
that if we are going into the histor}' of every incident in the progress of
that trial in Calaveras County, it is perfectly evident that we shall soon
be virtuall}' trying the case of McDermott against Higby, instead of
attempting to solve this, the only legitimate question in the ])remises —
whether Judge Hardy was intoxicated on the bench at the time of the
conclusion of that trial. I cannot, for the life of me, see what light is
to be thrown upon this trial by this course of examination. It is in evi-
dence that Mr. High}' filed an affidavit on that occasion, in regard to that
trial. That affidavit was made in the morning. We have introduced
evidence which goes to show that Judge Hardy was intoxicated at the
end of a considerable number of hours after that affidavit was filed. Now
for us to go back to the rulings of the Court of the day previous, to this
night, when he was said to be intoxicated, for the jiroposed purpose of
showing that it was excitement, and not intoxication, that caused the
singular appearance which Judge Hardy exhibited on the following
night, seems to me to be going back much further than either common
law, or common sense, will permit.

Mr. Williams. — I think that Judge Campbell has removed the only
plausible objection which could be raised against this testimony'. The
opinion of the Chair seems to be bound by the appearance of Judge
Hard}' and the fiict that this affidavit has been introduced. That affida-
vit, being read, speaks for itself Judge Campbell says that this affida-
vit was made in the morning, and that this singular appearance did not
take place until late in the evening. Now, we mean to show the con-
duct and demeanor of Mr. Higby, from the time of the filing of that affi-
davit down to the time when this singular appearance was manifested.

Mr. Camphell. — During which time, Judge Hardy had abundant time
to cool off.

266

Mr. Williams. — "We propose to show that Mr. Higby did not let him
cool off. That is the very purpose for introducing this evidence.

Mr. Campbell. — In order to save all further trouble here, I -would state
that we are willing they should prove, if they can, any disrespectful lan-
guage or conduct on the part of 3Ir. High}', towards Judge Hardy, on
that day. But we are not willing that they should go into an examina-
tion of all the questions which came up on the trial. If Mr. Higby. in
the Court House, at that time, said anything disrespectful to the Judge,
you can prove what he said.

Mr. Highy. — They cannot produce any proof of that kind whatever.
I mean to say that they are not able to bring forward any such evi-
dence.

3fr. Williams. — Mr. President, we make this written offer ; we propose
to prove that when Mr. Higby, who was the defendant in a suit then on
trial, introduced Mr. TVallace as a witness, on the stand, he offered to
prove by Mr. Wallace, his OAvn witness, what he (Higby) told the wit-
ness at the time the water was diverted from the plaintiff's ditch, as to
Higby's right to divert the same. To this evidence, the plaintiff ob-
jected, and the Court sustained the objection. An objection was then
taken, entered in writing, and signed b}- the Judge. Thereupon. Mr.
Higby read the affidavit which had just been given in evidence. Mr.
Higby stated, as one reason, why he believed the Court was prejudiced
against him, and that therefore he could not have a fair trial before the
Judge, the ruling of the Coiirt on this point. And, further than that,
that neither Mr. Higby nor his Counsel stated, at that time, or at any
time during the progress of the trial, one single word concerning the
conversation with Judge Hard}', which has been detailed by the witness,
W. L. Dudley.

I ask the sense of the Senate on that question.

Mr. Camjjhell. — That is an entirely difterent proposition. There is no
pretence that anything was said at that time in reference to that second
matter. "We object to that as wholly irrelevant.

Mr. Williams. — Judge Campbell says that this contains two propositions.
He says that they are wholly irrelevant — the latter portion, especially.
"While they were raking up everything that they could think of, tending
to show prejudice on the part of Judge Hardy, William L. Dudley did not
pretend. Mr. Higby did not pretend, that Dudley did not tell him of the
conversation which Dudley now swears he had with Judge Hard}'. It
is proper to show, we contend, that if Mr. -Dudley tells the truth on that
stand, this extraordinary state of things existed : that while Mr. Dudley
and Mr. Higby were endeavoring to hunt up causes of prejudices upon
the part of Judge Hardy, no suspicion or pretence was hinted at at that
time, in reference to this fact, if it existed — that at that time this con-
versation had been had with Judge Hardy. They did not put that into
their bill of fare.

Mr. Campbell. — That is a matter for the summing up.

The Presiding Officer was of opinion that the Counsel for the Defence
offered to prove that which had no bearing upon the case.

The Senate decided, by a vote of fourteen ayes to fifteen noes, not to
admit the testimony on points proposed by the Defence.

Mr. Williams. — Xow, Mr. Irving, did you see Judge Hardy during the
recesses of that day ?

A.— Yes, Sir.

Q. — "Were you with him during most of the recesses of that day ?

A.— Yes, Sir.

267

Q. — How many recesses were taken ?

A. — I think there were three.

Q. — Was one of these recesses taken to enable Mr. Highy to procure
his antliorities?

A. — As to that, I am not positive. I did not exactly know the occa-
sion of that.

Q. — Xow. Sir. what about Judge Hardy's drinking during these re-
cesses ? Did he drink a great deal, or otherwise ?

A. — Shortl}' after the affidavit was first read, the Court adjourned.

Q. — At what time of the day was that?

A. — I think that must have been shortl}^ after the Court assembled —
perhaps about eleven o'clock — I am not positive as to the hour.

Q. — This was on Saturday morning, was it ?

A. — Yes, Sir.

Q. — Soon after the affidavit was read, the Court took a recess ?

A. — Yes, Sir.

Q. — But you don't know what for ?

A. — There seemed to be some dispute in regard to authorities ; the
Court seemed to be embarrassed, and everybody seemed to be embar-
rassed about the course of the trial. The Court then adjourned, or took
a recess, rather. That is the way I looked at it.

Q. — During this recess. Sir, state wliat you know about Judge Hardy's
drinking. Did he di-ink to excess, or did he refuse to drink, and assign
a reason ?

A. — Shortly after the affidavits were read I met Judge Hard}^ in Le-
ger's saloon. He was pacing the floor up and down. I approached the
Judge and said, "Judge, won't you take a glass of something?" It was
evident that he was excited from what had occurred that morning. He
made this i-emark to me : " Don't ask me to drink. I am annoyed
enough."

Q. — Xow, about his drinking during the other recesses ?

A. — After he had made that remark to me, and had refused to drink
with me, 3Ir. William L. Dudley came in. Judge Hardy then made this
remark to me : " I don't want to drink any, because I don't want to have
an}' scene between I and Bill Dudley. We have always been friends,
and I don't Avant any scene between him and I in a public bar room.''

Mr. Cninphell. — I don't suppose those remarks are proper testimony.

Mr. Williams. — I suj^pose that they are, as a part of the res gestse. They
are a part of the history of this case from the time it commenced, until
it concluded.

3Ir. Camphell. — Go ahead. [To Mr. Williams.]

Mr. Williams. — Go ahead. [To Witness.]

Witness. — Judge Hardy said to me, as I said before, that he did not
want any scene in a public bar room. I then made this remark to him :
Said I, " Judge. jo\x and I have always been friends, and Bill Dudley and
I have always been particular friends. I think there is a misunderstand-
ing between you and Mr. Dudley, and Mr. Higby, and if you wish. I will
go and speak to Dudlej^ about it." Judge Hardy then made this remark
to me : " I have no objection, as I think there must be some misunder-
standing on the subject of that affidavit myself" I then went to Mr.
Dudey, and asked him in this way —

Mr. Edgerton. — [Interrupting.] Is that admissible ?

The Presiding Officer. — Of course it is not admissible, unless it is a pre-
dicate for something else.

268

Mr. Williams. — Answer the questions about bis drinking, during the re-
cesses.

A.— AYell, Sir.

Q. — Whether be drank much or little ? More or less than usual ?

A. — No, Sir; be drank very little during that day. He drank a little
claret wine in the evening, at su^^per. in companj' with Mr. Dudley.

Q. — Were you with him the most of the time ?

A. — Yes, Sir.

Q. — You say that be drank very little during the day ?

A. — Yes, Sir.

Q. — iSTow, after be drank that claret wine at suj^per, did he go directly
to the Court House ?

A. — Judge Hardy, William Dudley, and I, were sitting at the table.
They were at supper when I got there. They called me over to where
they sat. I think that the Deputy Sberilf came in while they sat there,
and said that the jury bad agreed. They got up from the table, and
went immediately to the Court House.

Q. — Was that after the jury went out?

A. — Yes, Sir.

Q. — I speak of the recess before the charge was given to the jurj*.
Whether he drank much or little, before the Court convened after sup-
per? Before the evening session?

A. — It was at that time I asked him to take a drink, and he refused.

Q. — During the remainder of the time, after he bad refused to drink
with you, did he drink luucb or little ?

A. — He did not drink much.

Q. — Did he drink enough to aflPect an ordinary man upon an ordinary
occasion ?

A.— Xo, Sir.

Q. — When he did drink, did be drink liquor or soda, most of the time?

A. — I heard him call for '-pop."

Mr. Williams. — One of the Senators asks what kind of a drink that is ?

Witness. — I am not in the habit of drinking it, and I do not know what
it is.

Q. — Well, 3"0u know what kind of a drink it is, don't you?

A. — It is something resembling soda, I know. They say it is a tem-
perance drink. I don't know much about it.

Mr. Williams. — There are probably enough of Senators here who un-
derstand what these drinks are to explain them to others who don't.
[Merriment.]

Q. — You state that you saw Judge Hardy, and was in the Covirt House
during the trial that entire evening ?

A. — Yes, Sir.

Q. — Did Judge Hardy leave the bench from the time the Court went
in — from the time the candlelight session opened — did he leave the bench
from the time he went in to the Court room that evening ?

A. — JSTo, Sir.

Q. — Did you see him all the time ?

A.— Yes, Sir.

Q. — ISiOw, Sir, from the time you first saw him in the morning, until
the final adjournment, did Judge Hardy exhibit any evidence of intoxi-
cation ?

A. — Xot the slightest.

269

CROSS EXAMINATION.

Mr. Camphell. — "What was your business in Court that day ?

A. — I was there waiting to get a case of my own tried.

Q- — Was it not evident, long before you left the Court room, that your
case could not be tried that day ?

A. — No, Sir. I was only to obtain a change of venue ; and my Coun-
sel promised me that I should get it every day, for several days in suc-
cession. He said he had on\j got to make the ai^plication, and the
change would be granted.

Q. — When you went out at the first recess, what place did you go to?

A. — To Mr. Leger's saloon.

Q. — How long did that recess last?

A. — I think about an hour.

Q. — How long did you stay at Leger's during that first recess ?

A. — I did not go to any place else. I walked in and out of the house,
up and down the stoop, and up and down the room inside the house.

Q. — Where Avas Judge Hardy during that recess?

A. — He was in the house. I saw him pacing up and down in front of
the bar. The remark which he made to me induced me to go away from
him. I thought that he cut me a little short. I walked aivay from him
to the door of the same house.

Q. — AYas your attention directed to him during the whole of that re-
cess ?

A. — Yes, Sir.

Q.— Why so ?

A. — From the very manner and tone in which he answered me.

Q. — Did you see how many times he drank ?

A. — I could not swear positively whether he drank more than once.

Q. — Do you know what he drank at that time ?

A. — No," Sir.

Q. — Might he not have drank several times during the recess, that you
did not see him ?

A. — I think not.

Q. — How far off were you from him ?

A. — I was never farther off from him than just to the doorway. It is
a very large house. I jiassed from the Judge to the doorway — walking
in an opposite direction from him. I did this merely to avoid him. I
paced in another direction so as to avoid meeting him.

Q. — That is a very large room, is it ?

A. — Yes, Sir ; certainly. As I stated before, it is a very large build-
ing. *

Mr. Williams. — You mean to say that you were in the same room with
him ?

A. — Yes, Sir ; that is a large room.

Mr. Williams. — It occupies the entire front of the house, doesn't it ?

A. — Yes, Sir. The bar is in the centre of the building.

Q. — You walked the whole length of the room ?

A. — No, Sir. There is a stove in the way, and we probably had to
walk around that.

Mr. Camphdl. — Did 3'ou engage in conversation while there ?

A. — I eno-ae-ed in that conversation which I was going to speak of,
with Mr. Dudley.

Q. — How long did you talk with other persons during the recess ?

270

j^. — I only talked with Judge Hardy and Mr. Dudley, as I recollect of.

Q. — How long did you talk with Mr. Dudley ?

A. — I talked with him probably fifteen or twenty minutes, more or
less.

Q. — "Which way were you pacing when talking with Mr. Dudley ?

A. — I was walking in different ways.

Q. — Sometimes towards the bar, and sometimes not ?

A. — Yes, Sir. I believe so. I talked with Mr. Dudley, and asked him
the reasons for filing the affidavit. Then he asked me to go to the Judge
and sa}' something to him ; then the Judge told me to say something to
Mr. Dudley; and so between the two I went back and forward.

Q. — Now state how long the second recess was ?

A. — That was in the evening.

Q. — The second recess ? When was it, and how long did it last ?
■ A. — As to the exact hours of the recesses I cannot remember. The first
one, to the best of my recollection, occurred about ten or eleven o'clock,
and then about one o'clock, I think, the Court came in. And then in
the evening there was another recess, about sujiper time.

Q. — How long did that second recess last ? At what time was it taken ?

A. — I have no recollection, farther than the general custom of the
Court. I think it was about the usual hour.

Q. — Where did you go during that second recess ?

A. — I spent neai'ly all my idle time during the recesses at Leger's. I
generally go there.

Q. — Were you occupied during any portion of the time of the second
recess ?

A.— Xo, Sir.

Q. — AVas any of your time occupied during that recess ?

A. — I ma}" have spoken to Mr. Dudley about getting up my motion for
a change of venue. I know I kept at him nearly every opportunity I got.

Q. — Did you, at the second recess, go to any other place except Le-
ger's hotel ?

A. — I might, but not to my recollection.

Q. — Did you notice Judge Hardy much during the second recess ?

A. — I don't recollect much about it. I know that I saw him in the
room.

Q. — Did you observe how he was occupied ?

A. — I saw him and Severance standing together, and talking. From
his manner, and the coldness which he had shown towards me in the
morning. I avoided approaching him directly myself

Q. — Well, you did not take any particular notice of him during that
racess ?

A. — Xo more than I have said.

Q. — That was a large room, and there were a large number of persons
in it, were thei-e not ?

A. — Probably fifteen or twenty. I presume the number of persons
who made up the jury, and other persons usually about the Court room.

Q. — I)id you pay any particular attention to see if Judge Hardy was
drinking during the second recess ?

A. — I think I did. My attention was particularly directed to him from
the effect the afiidavits seem to have on him. On that account I paid
more notice to him than I usually would, under any other circumstances.

Q. — Did you undertake to keep watch upon him, and ascertain how
many glasses he drank during the second recess ?

A. — Oh, no, Sir.

Q.— Could you tell whether he drauk six or a dozen times during the
recess ?

A. — To the best of my recollection, I saw him drink twice. He may
have drank more times. I know that I was invited to drink, and that I
refused.^ I heard others call for drink, and I heard him call for •' pop."
• Q- — You recollect that he drank twice in that second recess, do you ?

A. — Twice or three times, I think.

Q. — Can you undertake to say that he did not drink without your
seeing him, during the second recess ?

A. — 2s' o, Sir; I cannot.

Q. — ^lay or may he not have drank oftencr?

A. — As I stated.

Q.— Don't you recollect seeing him and William Dudley sitting to-
gether and drinking, during the second recess, and you at the end of the
table ?

A. — That was in the evening, at sujiper time. As I stated before, in
regard to the time of the recesses, in regard to the hours of the recesses
I am not positive.

Q. — Now, during the third recess, where were you ?

A. — I Avas in the same place.

Q. — What were j^ou doing during that time ?

A. — Just about the same as during the other recesses.

Q. — How long did that third recess last ?

A. — The hours I do not recollect.

Q. — Can't you recollect how long the recesses lasted ?

A. — The Court generally adjourns for an hour.

Q. — Can you tell how many times Judge Hardy drank during the
third recess ?

A. — I could not swear whether he drank once, or twice, or three times,
during that recess. I could not swear positively as to the number of
drinks.

Q. — After the jury went out, did you notice him drinking — between
the time when the jur^- went out and returned to the Court room ?

A. — That was at the time Avhen lEr. Dudley and him and I were at
the table.

Q. — Did 3'ou notice how many times he drank during that recess ?

A. — Xo, Sir; I did not.

Mr. CamphelL— That is all.

Mr. Wi//iams. — Are you not mistaken about seeing Judge Hardy drink
in the second recess ? AYas he not engaged in drawing uj) the special
issues then ?

A. — As I stated, I could not swear whether he drank or not during
that recess.

Q. — You now state that 3'ou could not swear at all that he drank at
all during the second recess ?

A. — I could not, because I could not state particularly as to the differ-
ent recesses. I cannot separate all that happened at the different re-
cesses.

Q. — Xow, do you not know that Judge Hardy was engaged drawing
up these special issues during that second recess ?

A. — I saw him writing during the day ; some time in the evening.

Q. — The first recess was soon after the reading of the affidavit, was it
not?

A.— Yes, Sir.

Q. — Then he refused to drink with you ?

A.— Yes, Sir.

Q. '^ow, in regard to the second recess, I ask you whether he was

enffai^ed in drawing the special issues to submit to the jury ?

^.^I saw him writing during that time, but I could not testify as to
what he was writing.

Q. — How much of the time during that day did you see him writing?

A. — That I could not swear to.

Q. — You could not swear whether it was most of the time, or a con-
siderable portion of the time, or a verj^ little time ?

A. — I was in Leger's saloon most of the time ; and I think that at one
time I missed Judge Hardy there, and stepped out and went into the
Court room. And when I went into the Court room I saw Judge Hardy
upon the bench, writing. I then went back to Leger's saloon.

Q. — Could you recollect at what time that was ?

A. — No, Sir. I have not the least recollection what time during the
day that was.

Q. — Now, have you any doubt that at that time when you stepped out
of Letter's saloon into the Court room, that it was the second recess ?

A. — No. Sir. I have no doubt. Because I recollect that it was at the
first recess that I asked him to take a drink

Q. — But you do not know whether he was writing special issues, or
what it was he was writing ?

A.— No, Sir.

Q. — You don't know whether you saw him drink anything at the
second recess or not ?

A. — I could not swear positively whether I did, or did not.

Q. — But when you did see him drink, you heard him call for "pop?"

A — I lieard him call for " pop." He ma}' have drank something with
it. I don't know whether he drank anything with it, or not.

Q. — NoAv as to the statement of Mr. Brockway, that he was called to
witness the handing out of the papei's. You say that you were stand-
ing, leaning on the end of the bench, when the charge was given, and
until it was finished ?

A.— Yes, Sir.

Q. — "What did you see the Judge do ?

A. — I saw him writing after Judge Terry closed his argument, and a
short time before Judge Terry closed his argument — a short time after
Judge Terr}' closed his argument, and before he commenced speaking to
the "jury. The Judge went to work and tore off a lot of sheets of
paper — probably ten or fifteen minutes before Judge Terry got through
with his argument. I think that they were the instructions which the
different Counsel had been handing him ; as I saw that they were in a
different handwriting from his own. And, after Judge Terry had got
through with his argument, and before he charged the jury, they were
writing some ten or fifteen minutes, while the Judge was engaged in
writing out the balance of some sheets which he had before him.

Q. — -When these papers were handed down to the Clerk, did any such
thiufj- take place as Mr. Brockway being called to witness that they
were handed down ?

A. — Not that I saw.

Q. — Could that have happened without your seeing it ?

A. — I rather guess not. I saw Mr. Brockway sitting down some way
from the bar in conversation with Mr. Dudley at the time. I believe
that Mr. Adams was sitting by.

273

3Ir. Campben. — Did you see how the papers wot into the hands of the
Clerk ?

A. — I saw Judge Hard}' hand him some j)apers. I know I saw him
bundle them up and pass them to the Clerk.

(^ — Do you know whether these jjapers contained the charges and
other writings in the case ?

A. — I cannot say, positively. I only saw t-he Judge look over some of
those papers, which had been given him by the Counsel, and write upon
some of the same papers himself

Q. — Do you know where Mr. Brockway was when the j^apers were
handed to the Clerk ?

A. — I think I do.

Q. — Are you positive ?

A. — I think I am certain ; for I am sure that he was by the side of
Mr. Dudley at the time, and I was looking at Mr. Dudley to see whether
he was going to make the motion in my case. I think that Mr. Dudley
and Mr. Brockway were together; or Mr. Dudley was standing but a
short distance away from him.

TESTIMONY OF C. W. LIGHTNER.

C. W. Lightner, being called and sworn, testified as follows :

Mr. Williams. — AYhere is your residence. Sir ?

A. — In Sacramento, Sir.

Q. — Were you one of the defendants in the case of Foster vs. Fritz
et al., a case that has been referred to during this trial ?

A. — Yes, Sir. I was one of the company of Cameron, Lightner & Co.,
engaged in the quartz mill business. That was the signature of the
firm.

Q. — And you was a defendant in the suit of Foster against Fritz and
others ?

A.— Yes, Sir.

iMr. Wi7h'cn7is. —It has been stated here, as one of the reasons why
Judge Hardy did something, that you and he were on terms of partic-
ular friendship. I wish you would state the extent of your association
or intimacy with Judge Hardy before May, eighteen hundi-ed and fifty-
nine.

A. — I never considered myself what I should call a particular friend
of Judge Hardy's ; or that there was an^-thing existing that would war-
rant him in calling me such.

Q. — State the extent of your acquaintance with him ; how often you
have been with him ; how much conversation you ever had with him
in 3^our life before that tim6 ?

A. — I have never seen him, to my knowledge, over a dozen times
in my life. The sum of our entire conversations, in reference to all sub-
jects, could be very easily condensed in five minutes.

Q. — Between the time when that suit was commenced and the time
of its final settlement, did you ever meet or see Judge Hardy, to talk
with him ?

A. — I think that I met him on one or two occasions, at Mokelumne
Hill, merely passing a few remarks with him.
35

274

Q. — Did 3'ou ever exchange any words with him in regard to that
suit y

A. — Not a syllable ; never. On the contrary, I scrupulously avoided
an}' convei-sation with him on the subject. Nor did I ever speak to any
person else on any subject approaching it, whom I thought might have
an influence upon him, as an individual or Judge.

Q. — Was there ever an acquaintance, to your knowledge, between
Fritz or Cameron, and Judge Hardy ?

A. — I was very intimately acquainted with Major John Fritz — saw him
almost every day of the year, and every hour of the day. during the year
eighteen hundred and fiftj-eight, and part of the 3'ear eighteen hundred
and fifty-nine. But I never heard him mention Judge Hardy's name, nor
did I ever see him in his company. I might possibly have seen them to-
gether in the same room, but not in the same company. I am sure that
I never saw them conversing.

Q. — Now, how about the other partner ?

A. — I am almost — no, I am more sure and certain that Mr. Cameron
did not even knou- Judge Hardy.

Q. — And how about the other partners ?

A. — I am sure that none of the other partners knew him.

CROSS EXAMINATION.

Mr. CampheU. — Were you ever a member of the Legislature ? If so, at
what time ?

A. — I was a member of the tenth session of the Legislature, from Cal-
averas County. It commenced on the first Monday of January, eighteen
hundred and fifty-nine.

Q. — Were you a member of the Legislature that created the Sixteenth
Judicial District ?

A.— Yes, Sir.

Q. — Did you vote for the bill creating that Judicial District ?

A.— Yes, Sir.

Q. — Did you favor it ?

A.— Yes, Sir.

Q. — Did you exert yourself for its passage ?

A.— Yes, Sir.

Q. — What count}' did you represent in the Legislature ?

A. — Calaveras County.

Q. — Was Judge Hardy a member of the Convention that nominated
you ?

A. — Yes, Sir ; I believe he was a member from Mokelumne district.
It was on that occasion that I was first introduced to him. I think that
was the first time I ever saw him.

Mr. Williams. — Pending the passage of that bill for the creation of the
Sixteenth Judicial District, did 3-ou ever exchange a word with Judge
Hardy on that subject ?

A. — No, Sir; not a solitary word.

Mr. Camphell. — Do you know who introduced that bill into the Legis-
lature, for the creation of that District ?

A. — I believe that it was introduced by Mr. Bradley, or Dr. Cashman,
who were then Senators from that District.

Mc. WiNiams. — Well. Ave can set that matter clear. This bill was in-
troduced into the Senate by Senator Kirkpatrick. I was on the Judi-
ciary Committee that reported it.

275

TESTIMONY OP TOD ROBINSON.

Tod Robinson, being called and sworn, testified as follows :

Mr. Williams. — You live at Sacramento, I believe?

A. — Yes, Sir.

Q. — How long have you lived there, Sir ?

A. — I think, about eleven years — ten or eleven years.

Q. — You used to be District Judge there, did you not?

A. — I was, in eighteen hundred and fifty or eighteen hundred and
fifty-one.

Mr. Williams. — Please speak as loud as you can. Judge Eobinson, so
that Senators behind can hear you. It is a terrible bad place to speak
in. I think this is the worst house for acoustics that I ever saw. You
were one of the Counsel in the case of McDermott vs. Higby ?

A. — I could scared}^ say that I was one of the Counsel. I was present
and participated in the proceedings.

Q. — So far as you did participate in the proceedings, on which side
were you ?

A. — For the plaintiff. My relations to that case were simply these, in
order that 1 may be understood : On the morning when the case was
called for trial. Judge Terry said, at breakfast, that he would give me a
certain fee if I would sit by him during the trial of that case.

Q. — Was you present during the trial ?

A. — I was present during the whole trial, I think.

Q. — What time in the evening did the Court convene — for the evening-
session — for the last session ?

A. — It would be diificult for me to say; I do not remember. I sup-
pose that I know of nothing why I should not say that it was at the
usual hour.

Q. — What hour was that ?

A. — After five or six o'clock ; after the dinner or supper hour, which-
ever they called it.

Q. — Do you remember what time it was when the case was given to
the jury ?

A. — It was late in the evening. Sir — I should suj)pose somewhere be-
tween ten and eleven o'clock that night.

Q. — From the time the Court convened after supper or dinner, which-
ever it was called, until the jury went out, did Judge Hardy leave the
bench ?

A. — Not to my recollection. I do not remember that. Sir.

Q. — I ask you whether it is likely that you would have recollected it
if there had been a recess taken in the course of that evening?

A. — I am not in the habit of remembering anything distinctly that is
not unusual, not connected with the serious affairs and concerns of life,
according to my opinion at the time it takes place.

Q. — If there had been a recess in the course of that evening, would it
not have been an unusual thing ?

A. — I presume not.

Q. — Not an unusual thing to have a recess between seven and ten
o'clock ?

A. — No, Sir; if there was nothing to do.

Q. — No ; but pending a trial, right along ?

A. — Judge Hardy is in the habit of forcing cases through as well as
he can. Whether he did on that occasion adjourn between seven and

276

ten o'clock. I do not know, I cannot remember. I cannot tell. I should
'think, if my opinion is worth anj'thing. if my own impression is worth
an^-thing, that ho did not take a recess.

Q. — You say that Judge Hardy was on the bench during the whole
evening from the time the Court convened until the charge was given
to the jur}"? Did jovl sec him on the bench during that whole eve-
ning ?

A. — So far as a lawyer sees a Judge, I did. Sir.

Q. — You are acquainted with Judge Hardy, are you not ?

A. — I have known Judge Hardy, I think, since eighteen hundred and
fifty-three.

Q. — Have you seen him often ?

A. — I have seen him very often ; since he has been Judge, more fre-
quently.

Q. — In Court and out of Court ?

A. — In Court and out of Court.

Q. — Were you present when Judge Hardy read the instructions, the
special issues, and his general charge to the jury ?

A. — It is very clear in my recollection that I was.

Q. — Was Judge Hardy drunk or sober then ?

A. — I had no idea of his being intoxicated. That idea never occurred
to me until I read some of the testimony in this case.

Q. — Then can you say that you noticed anything indicating intoxica-
tion on his part ?

A. — Not in the slightest.

Q. — Now. Sir. what is Judge Hardy's uniform demeanor upon the
bench ? What has been his uniform demeanor upon the bench since he
has assumed the duties of the office of Judge of the Sixteenth Judicial
District ?

A. — Judge Hardy's demeanor on the bench, Sir, is characterized by
propriety. His manner on the bench is somewhat dictatorial, somewhat
absolute ; and while he has, so far as I have seen, been guilt}' of no im-
propriety on the bench, but on the contrary his manner is characterized
by propriety, it is not of that character of silent, unobtrusive jDropriety,
which constitutes, perhaps, if you please, true judicial dignity. Because
there is a little more emphasis about his manner than is necessary for a
Judge.

Q. — Did you ever see the slightest indication of intoxication in him
while upon the bench ?

A. — Never; never on the bench. And but once, to my recollection, ofl
the bench.

Q. — How does his manner upon the bench difler from his manner in
his ordinarv intercourse among his friends and associates?

A.— Totally different. Sir.

Q._Did you say - totally different?"

A. — Y^es, Sir.

Q. — In what respect ?

A. — Off the bench, he is boyish and social to an extreme. He solicits
social conviviality. He wishes evei*3-body to call him Jim ; and he calls
everybody Tom, Dick, or Harry, as the case may be.

Q. — Have you attended every term of his Court since he has been up-
on the bench ?

A. — Very nearly. So far as my recollection goes, every term. Per-
haps that may not be strictly so. I cannot speak with accuracy about

277

things which take place in the usual course of my daily walk and voca-
tion.

Q. — Have you ever seen any evidence of favoritism toward particular
Attorneys Oh his part ? Mr. Brockway has accused him of favoritism, I
think.

A. — Such an impression has never been made upon my mind, from
Judge Hardy's life and conduct. Such a reflection never occurred to my
mind. There has been something, perhaps, which has been impressed
upon my mind, in connection with that question, Sir. I have noticed
this, Sir. with him : There is a young gentleman who practises at the
bar at his Court, whom I believe to be an intimate personal friend of
Judge Hardy's, who has been so, I understand, for a great number of
years — long before either of them came to this country.

Q. — In which county is he, Sir?

A. — He lives in Amador County, Sir. Judge Hardy's inanner toward
this young man — and that is the point upon which an impression was
made on my mind — has been more absolute, more despotic, more posi-
tive, less gentle, than towards any other man whom I know, who prac-
tises before his bar.* That is the impression that has been made upon my
mind ; but I have never seen anything of that kind Avhich you could
call " favoi-itism," exercised by Judge Hardy. But it never occurred to
my mind to think of anything like favoritism in connection with any-
thing I have ever seen of Judge Hardy's official conduct.

Q. — You state that toward that young man he has been more — what ?

A. — Less courteous, less gentle, less soothing — if you please — more
positive, more firm, less respectful to him than he would be to you or to
myself. Other than that, and perhaps with regard to another gentle-
man living in the same county — there may be something of the same
character of an impression made upon my mind. I have seen no differ-
ence, except those cases. I have seen no difference in Judge Hardy's
treatment of the members of the profession who practise at his bar.

Q. — Have you had occasion, in your practice before Judge Hardy, to
attend before him at chambers, as well as in Court, on questions of ob-
taining orders, etc. ?

A.— I do not recollect that I ever did. I say that I have no confidence
in mv recollection of facts connected with the ordinary business of my
life. " Perhaps, if you speak to me of a particular occasion, I may re-
member. At present, I do not.

Q. — I do not ask you about any particular occasion; but whether ,_ in
these side-bar matters of practice, you have seen anything like favoritism
towards members of the bar ? Or, Avhether there was any peculiar facil-
ity which any members of the bar had in obtaining favors from him ?

A. — Nothing whatever. No such reflection has ever occurred to me.

Q. — Do you'^remember the case of Mercier vs. Denny and others ?

A. — I do, sir.

Q. — Were you Counsel in that case ?

A. — For the plaintift', I was.

Q. — Mr. Brockwav testified that Judge Hardy continued that case from
the seventeenth of February to the twenty-seventh of February, without
showino-. I ask vou to look at that affidavit. Sir, [handing witness a
paper.]

A. — This is signed by me, and appears to be in my handwriting. I have
no recollection of it, independent of seeing this signature.

Q. — And you swear to that signature ?

A. — I do not dispute the signature.

278

Q. — Now, then, upon what state of facts was that affidavit made ?

A. — The explanation I will give of this affidavit is as follows : In the
case of Mercier vs. Denn}^, the defendants in answer to the plaintiff's
comi^laint set up a former recovery. They pleaded in abatement or bar.
Whatever it is called, it was pleaded. The Counsel who drew the repli-
cation to that, denied the allegation of the former judgment in so inarti-
ficial a manner that I was satisfied it would not stand the test of legal
criticism; and I desired to amend that replication in order to perfect an
imperfect pleading.

Q. — You were Associate Counsel with whom ?

A. — I was Associate Counsel, but I never saw the complaint until the
night before the time of trial. The night before the trial I read the
pleadings, and the next morning I went into the Court House and made
the application to amend. I was surprised when the Judge refused to
allow me to amend. It was so simple and so obvious a right which I
had — as I judge from my experience — that I was astonished Avhen the
Judge refused to allow me to make that amendment. Because the judg-
ment itself was a judgment of that Court. I then made this affidavit at
that time. The Judge said that he did not know whether he could allow
me to make the amendment at any time. He then called the attention
of Counsel in the case — if I recollect right — to a rule of the Court which
required that amendments must be made upon five days notice. He then
said that he would postpone hearing the matter so as to allow of giving
the five daj's notice. If the amendment was not allowed, the judgment
would go for the defendants, of course. That was my ^iew of the case.
Upon Avhich view of the jjleadings, I made the proposition to amend.

3Ir. Williams. — Look at the date of the filing of that paper. [Hand-
ing witness a paper.] See if you are not wrong about the five days.
See whether Judge Hardy did not require an affidavit before postponing
the matter at all ?

A. — I do not want to correct my testimony by the record. The record
is necessarily more correct than ni}- impressions. I know that I made
this affidavit then and there, and at that time.

Q. — Look at that, and see if that affidavit was not filed at the same
time as this ?

A. — That will have to be proved by itself That is not in my hand-
writing.

Mr. Williams. — Now let me see if I understand your evidence, Judge
Robinson. On the day when this affidavit is dated, this motion, this ap-
plication for leave to amend, came up. It was the day for which the case
was set for ti-ial ?

A. — Yes, Sir; according to my recollection. *

Q. — Did you make an application for leave to amend, before a jury was
empanelled ?

A. — I think that I made the motion the first moment that I could be
heard, at the very opening of the Court. I had been sick two weeks
previously. On the night before, I discovered we were in that position
in which we were likely to lose the case from the inartificiality of the
pleading ; and I sought to remedy the plea.

Q. — And you state that this one affidavit, signed by yourself, was filed
as a ground for the application for time, to enable you to give notice of
this motion ?

A. — During the discussion in regard to the motion, this matter came
up. I had no idea but that my statement would be received the same as
an affidavit. I had no doubt of that fact; I felt a perfect conviction in

279

regard to the correctness of my own position. But something was said
about an atiidavit, and I sat down and wrote that affidavit.

Q. — Judge Hardy refused to hear your motion at that time, but post-
poned the ti'ial in order to give you time in which to make j^our motion
after five days notice '/

A. — I think so ; for unless I had been compelled to, I would not have
written that affidavit.

Q. — Was that an unusual proceeding ?

A. — It was an unusual proceeding for me to be called on to make an
affidavit in the Court House. That Avas the onl}- unusual thing about it
that I know of.

Q. — Was the case postponed from the seventeenth to the twenty-
seventh of February ?

A. — It was postponed from some time to another time.

Q. — For the purpose of giving time for a notice to amend the replica-
tion ?

A. — Yes, Sir; in order that the five days time prescribed in these
rules might not be violated, and justice done, the case was postponed to
meet the demands of that rule.

Q. — But for this defect in the pleadings, was the pUiintiff ready and
anxious for trial ?

A. — Very, Sir ; ready, and anxious, and solicitous for trial.

Q. — Did the plaintiff apply for or desire a postponement of the trial
of the cause ?

A. — For no other purpose whatever.

Mr. CampheU. — Well, we object to their lugging in what the plaintiff
said.

The Presiding Officer thought tliat the testimony was inadmissible.

Mr. Williams. — Was the plaintifl" ready and anxious to try the case at
that time ?

A. — The plaintiff's Counsel w^ere anxious and ready, from the informa-
tion received from their client, to dispose of the case. I did not doubt
. but that the amendment would be allowed, and that we should go on
with the trial. And I w^as so far ready, under this impression, my con-
viction was so strong upon this point — althougli I was not professionally
responsible for the inartificial wa}^ in which the replication had been
drawn up — that I undertook and obligated myself to ])ay the expenses
of that five days continuance. I knew tliat I liad to make the apology
and explanatio^i to my client about the matter; and that he should not
lose anything by it, I told him that I would pay the expenses at that
time. Kow^ so far as I was informed, my client was then ready for trial,
and had all his witnesses there.

Q. — And to prevent him from censuring his Counsel, you proposed to
pay the cost imposed by the Court as a condition of the continuance?

A. — Yes, Sir. But I was relieved from that obligation by other Coun-
sel in the case. My impression at the time was, that it would be a loss
to me of about seventy-five dollars. You see I had my client's witnesses
as well as the others to pay for. My general impression then was, that
I had lost sevent3^-five dollars by that operation. I don't remember to
have seen the cost bill. In fact, I am sure I never did.

Q. Now, after this action of the seventeenth, the Counsel who were

opposed to you in that case, to Judge Hardy's having expressed an aver-
sion to try the case, or to hear any motion in regard to it — state
whether he w^ent to you also and said the same thing ?

A. — I do not remember it.

280

Q. — Do you remember Judge Hardy's conversing with you as well as
the Counsel on the other side, upon the subject of his trying the case, or
getting another Judge to try it ?

A. — I do not remember it. I have an indistinct recollection that
Judge Hardy said something to me about this case. But I do not re-
member what it was. because it was not an unusual thing. It was not
one of those striking things M'hich my memory lays hold of He might
have spoken to me tAvent}^ times, and I not remember it, in regard to
that subject. I had no idea that I Avas acting history then. I did not
think that there was anything unusual in the transaction.

Q. — Judge Eobinson, how many years have you been practising law?

A. — Full thirty years ; perhaps more.

Mr. Williams. — Well, that is sufficient; thirty years or more.

Witnes.^. — I will correct that. From twent^'-eight to thirty years. I
think that I was admitted to the bar just a little before I was twenty-
one years of age. I am now just exactly fift}- j^ears old.

Q. — Wliat do you say, as a lawyer, is the duty of a Judge, sitting in a
criminal case, in regard to the empanelling of a jury? Should he ques-
tion jurymen as to their competency? Should he make objections to
their competency ? Do you say that it is the duty of a Judge to exam-
ine jurymen and raise objections to them, or is it not his duty to preside
on the bench— in the language of the President of this Court— and try
the case as the Counsel give it to him? Is it still his duty to examine
jurymen, and raise objections on the ground of their incompetency, or is
that the duty of Counsel ?

A. — It is the duty of Counsel, exclusively, in my estimation.

Q. — Did you ever hear of a Judge challenging a juryman ?

A. — Yes, Sir, I heard one Judge who did it.

Q. — That is one of these things you can remember, because it is so un-
usual ?

A. — Very distinctly. He said that the man was not fit to be a jury-
man in that case, or in any other case, plerriment.]

Q. — Who was that — Judge Kent ?

A. — Xo, Sir. It was Judge Creanor. He told the man to leave the
Court House.

Q. — That was rather an extraordinary instance, was it not ?

A. — It is the only one that I remember. Judge Marshall has said the
same thing, but not to a juryman. He said it in sjjeaking on the com-
petency of a juryman. He used pretty much the same language.

Q. — As some of the members of this Court are not lawyers, I will ask
you whether the fact of a juror's having formed or expressed an opinion
is a cause for peremptory challenge, or only cause for objection, which
either party niay waive ?

31): Campbell. — We object to that question.

Witness. — It is the privilege of the prosecution to waive that point. It
is no objection to the competency of a juryman.

Mr. Campbell. — [Interrupting.] That question is objected to.

Witness. — I beg pardon. I did not hear the objection, or I should not
have answered the question.

3Ir. Williams. — Take the witness.

CROSS EXAMINATION.

3Ir. Camjibell. — With regard to its being the exclusive duty of Counsel
to challenge jurors, suppose that a Judge were sitting in a case of great

281

public interest, in a case which has attracted public attention generally,
is it not the custom, invariably, for the Counsel for the prosecution and
the Counsel for the defence to interrogate jurors with regard to their
having formed or expressed an opinion in relation to the case, or enter-
taining a prejudice in reference to it ?

A. — Under almost all circumstances, I believe that that is the case.

Q. — Now, in a case of that kind, sujipose that that duty was entirely
omitted by the District Attorney, who allows jurors to be taken without
any explanation on the subject, as to whether they have formed or ex-
pressed opinions, do you mean to say that it would not then be the duty
of the Judge to call attention to the matter, and take action in regard
to that matter ? I ask if you do not think, in such a case it would be
the duty of the Judge to call attention to the matter, and himself to
take action in regard to it ? When even the names of the jurors were
not drawn from a box, but simply taken from the jury list ?

A. — I could tell you what I think I would do, if I was Judge. If
I was Judge, and found that in any case, or in any instance, injustice
was going to be done through the malfeasance of anj^ persons, I would
try and see that justice was done.

Q. — That is all on that point. You say that when you first came in to
make that application for an amendment to the rej)lication, you made
your motion without any affidavit ?

A. — Yes, Sir, without any affidavit. I made an oral statement, simply.

Q. — You say you expected the motion would be granted as a matter of
course. Were you not aware that there was a rule of the Court requir-
ing notice of any such application to be given ?

A. — No, Sir. I was not then, and am not now. There, the Judge and
I diifered in opinion. I thought the Practice Act controlled that matter,
but the Court thought that the rule of Court controlled it. I, of course,
had to yield to the Judge. But my opinion was, that it was competent
for me to make that motion at any time during the trial of the case ; for
I have had many cases in my own county where I was allowed to make
such a motion, even after witnesses had been examined.

Q. — Were you not Counsel in the case of Higby against Calaveras
County ?

A. — Under the circumstances, I should say that I was less than that.
It would be placing me in too dignified an attitude in that case, to call
me a Counsel in it ?

Q. — I mean the case of Higby against Calaveras County?

A. — Yes, Sir. I was Counsel for Calaveras County in that case.

Q. — Do you remember that you applied then for an amendment, when
the case Avas up for trial, and it was objected that it was too late to
amend ; and the amendment was refused, and the objection sustained ?

A. — Imust say, because you ask the question, and because I think that
Mr. Higby is your informant, and because I would take his recollection
in preference to my own, that that was probably the case.

Q. — Were j'ou not aware, that under the rules of the Court, no amend-
ments were allowable when a case was called?

A. — No; not the first time, perhaps. Perhaps I might have remem-
bered that it w^as so decided before. My connection with the Court
House is scarcely that of a Court House Attorney. I am generally
employed as Counsel ; and the details of the business in the Court House
are not particularly familiar to me. I don't think that I have drawn up
two pleadings since I have been in the State ; and hence I may be igno-
rant about these things. I want to explain that.
36

282

Q. — l^ow, wlien you made your application for this amendment, was
there not an objection made that no notice had been given of it, and
that therefoi-e it was too late to amend ?

A. — Yes, Sir. I think that that was the objection made by Judge
Hardy himself

Q. — And then, did not the Court continue the case over for ten days,
and tell you, in the meantime to file your affidavit and give five days
notice ?

A. — No, Sir; I think not. At auy rate, I don't remember anything
about the five days.

Mr. CamphcU. — The evidence all shows that the case was continued
from the seventeenth to the twenty-seventh.

Witness. — My statements are always to be corrected by the records.

Q. — What I want to get at is, that Judge Hardy would not then allow
you your motion to amend, but told you that you must make an affidavit,
as a ground of showing for a continuance of the case ?

A. — I do not think that Judge Hardy would tell me that it was neces-
sary for me to make an affidavit to anything I might say in a Court
House. On the contrary, credit has always been given to what 1 might
say there, without qualification. My word is alwa^'s taken without any
reference to forms or oaths. I stated that I believed I had a good de-
fence ; that the facts I proposed to show were true. It may be that the
Judge or the Counsel on the other side suggested that it was the practice
to make an affidavit in such cases. I think that that was j^robably the
case, because it was so unusual a thing for any one to require an affidavit
to any statement I might make.

3fi'. Williams. — State whether, when you made this application, and was
informed that notice must be given before the motion could be heard,
whether the Judge did not require that as a prerequisite there should be
a showing to entitle the party to a postponement with a view to the
making of that motion at a future period ?

A. — He required that something should be done, in order to comply
with that rule. "Whatever was the requisition of that rule, it was re-
quired of me to do.

Q. — Did Judge Hardy, when this application was made for leave to
amend, announce that he could not hear that motion without a proper
showing ?

A. — Yes, Sir; as that rule required.

Q. — Did Judge Hardj^ announce on that occasion that he could not
hear the motion to amend in that stage of the proceedings, without a
showing being made by affidavit ?

A. — I say that I cannot recollect any further than I have stated in the
explanation already given hy me. I made an application for leave to
amend. Objection was made, that five days notice had not been given,
I believe, though I cannot remember all these details distinctly. Then
this rule of Court was quoted. And it was to complj' with whatever of
exaction there was in that rule, that I did whatever was then done by
me. "Whatever I then did, was in obedience to the rule of Court, as
brought to my notice by Judge Hardy. He referred to that rule himself,
if I recollect correctly. I then tried to comply with that rule, whatever
its provisions were.

Q. — You have already stated that you supposed at the time when you
made application for leave to amend, that the motion could be heard at
once, without affidavit, or other showing ?

A. — That was my opinion then.

283

Q. — Did Judge Hardy deny that motion until a proper showing was
made ?

A. — He denied the motion for leave to amend, and he has never yet
granted it.

Q. — When he denied that motion, because there had been no notice,
and because an affidavit was required, do you then answer that your As-
sociate Counsel drew up these attidavits, or caused them to be drawn up,
for the purpose of obtaining a continuance for a few days, until they
could make that showing, and make that notice ?

A. — I did what I did, without consultation with Associate Counsel. I
made my affidavit there. Judge Hardy had laid down a proposition
from the bench. It was a singular one to me, but I complied with its
terms so far as they bore upon me.

Q. — Judge Hardy did then deny the motion, as the matter then stood ?

A. — He did. Sir.

Q. — You did, then, for the purpose of obtaining a postponement, and
time in which to make this motion regularly, on five days notice, draw
up this affidavit, and apply for a continuance ?

A. — I think so. I made my affidavit for the purpose of complying with
the rules and terms which restricted the application, as they were given
to me then. I nuidc my affidavit then, without solicitation.

3fr. Wi/licans. — I will read these affidavits. They are now apart of the
testimony.

Mr. Williams read the affidavits made in the case of Mercier against
Denny and others, for the ])urposes above specified.

Mr. Williams. — The plaintiff himself was then ready for trial, but the
Counsel wanted time for leave to amend their replication ?

Witness. — Yes, Sir.

TESTIMONY OF THOMAS M. HANSON.

Thomas M. Hanson, being called and sworn, testified as follows:

Mr. Williams. — Where do you reside?

A. — In San Eafael, Marin County.

Q. — What is 3-our business ?

A. — I am engaged in the practice of the law, Sir.

Q. — How long have you lived there ?

A. — For the last eight years.

Q. — Were j^ou present on the occasion of the empanelment of the jury
in the case of the People against Terry ?

A. — I was, Sir.

Q. — At what time did the Court open on that day ?

A. — I think that the Court opened at the usual hour ; at nine o'clock.

Q. — Do you remember at what time the District Attorney announced
himself as ready to commence the trial, or ready to commence the em-
panelling of the jury for the trial of the case ?

A. — I think as soon as the Court opened.

Q. — The record seems to say something else.

A. — Well, I do not recollect now, positively, about that matter. I
know that he said the witnesses were summoned to be there at ten
o'clock.

Q. — Did he say anything about the witnesses being absent, before the
jury were empanelled ?

284

A. — According to the best of ray impression, he said nothing about tt
witnesses being absent, until after the jury was empanelled. If he sai
anything about that matter before the empanelling of the jury, I did n
hear it. I recollect distinctly, hearing him say, after the jury was en
panelled, that the witnesses were summoned to appear at ten o'clocl
and that the hour had not then arrived.

Q. — Do you remember what he said when the case was moved ? Wh
was done, and when the first remark was made that set the case a gc
ing?

A. — According to the best of my recollection, nothing particular wa
said at the time the case Avas called for trial. When the case was called
they went on to select a jury. I know the District Attorney was therej
but I cannot say whether the District Attorney or the defendants calle(
the jury. But I know that there seemed to be no difficulty about goin^
on with the empanelling of the jury.

Q. — Now, when the case was called, state whether or not Judge Har
dy asked the District Attorney if he was ready for trial ?

A. — At the time, before the jury was empanelled, I cannot state
whether or not Judge Hardy did ask that question. My impression is.
that the case Avas previously set for nine o'clock; and that at nine
o'clock, when the Court came in, they went on with the empanelling of'
the jury ; and that after the jury was empanelled, it was said that the:
witnesses for the prosecution were not present, and were not expected
to be present until ten o'clock.

Q. — But to go back. Sir, before the empanelling of the jury : Do you
recollect whether or not anj^thing was then said by the District Attorney
about the witnesses for the prosecution being in a boat in the '• creek ?"

A. — Not before the empanelling of the jury. Sir.

Q. — When was that remark made ?

A. — I think the remark was made — that the witnesses were in the
" creek" — after the empanelling of the jurj-, and after the Court had ad-
journed to meet at ten o'clock, and after the Court had again met at ten
o'clock. That is my impression. Upon the Court meeting at ten o'clock,
and the witnesses for the prosecution not then having arrived, the Dis-
trict Attorney stated that the witnesses were in the " creek." I think
that he made the remark that the witnesses were in the " creek," or that
he was informed that they were there.

Q. — Now. can you state whether or not Judge Hardy sent a messenger
to see whether or not the witnesses were in the '' creek," or not ?

A. — I cannot state whether he did, or not.

Q. — Or whether anybody went to see, or sent a messenger for that
purpose ?

A. — I cannot state, Sir.

Q. — Now, I want to see whether you are certain that this was after
the empanelling of the jury, or whether it was not before ?

A. — According to the best of m}- recollection, this remark was made
after the jury was empanelled, and after the Court had taken a recess
until ten o'clock, and at the time of the second meeting of the Court, at
ten o'clock.

Q. — As a matter of fact, were or were not the witnesses in the
"creek" at that time?

A. — They were not, Sir.

Q. — Did you hear the testimony of other witnesses on the part of the
prosecution on the subject of the same transactions at the same time?

A. — I did not hear it. I read the testimony of Mr. Shaffer.

285

Q. — Where did you read it ?

A. — I read it in one of the papers.

Mr. Williams. — Then you did not read it. What took place there, ac-
cording to your recollection, which called out whatever Judge Hardy
said ahout its not being ten o'clock?

A. — The jury had been empanelled, and a recess taken until ten
o'clock. At the hour of ten o'clock, the Counsel in the case were at my
office, and Mr. Crittenden remarked that the hour for meeting, ten
; o'clock, had arrived. Upon arriving at the Court House, a motion was
i made to go on with the case. Mr. Crittenden remarked that it was then
ten o'clock. Judge Hardy looked at his watch, and said that it was not
quite ten o'ck)ck; and that he would wait till the hour had arrived at
which the witnesses were summoned to appear.

Q. — Was there any conversation then about the correctness of watch-
es ?

A. — I believe that there was some comparing at that time.

Q. — Was anything said to the Judge about comparing time ?

A. — 1 do not know that anything particular was said to the Judge
about that. I know that Mr. Crittenden took out his watch, and said it
was after ten o'clock. Judge Hardy said that it wanted five or ten min-
utes, by his watch — I think he said five minutes of ten.

Q. — What time was it, assuming Judge Hardy's watch to be right,
when the verdict was taken ?

A. — By Judge Hardy's watch, it must have been at least ten minutes
after ten. I think that very soon after the hour of ten had arrived, and
while the Counsel for the defence was pressing the case, there were some
few remarks made by the District Attorney concerning the absence of
witnesses on the part of the prosecution. I think that he said that he
had exhausted all the ])rocesses known to him in order to get them there.
I think that he remarked that the subpoenas had not been returned to
him, upon which attachments could be issued; that he could not ask for
attachmeiits on that ground. I think that that language was used by
the District Attorney then. No attachments were asked for, 1 know.

Q. — AVliat time did the witnesses arrive. Sir?

A. — 1 tliink that they arrived about half past twelve o'clock. I think
it was at least two hours after the verdict was rendered. The witnesses
landed at Point San Quentin, a landing about five miles ofi' from San
Eafael. They did not come up the creek at all. They came up from
San Quentin in a stage.

Q. — Is that place in sight from the Court House at San Eafael?

A. — No, Sir; the point of landing is not in sight.

Q. — Who were the witnesses. Sir ?

A. — I do not know the names of any of them. They were the wit-
nesses for the prosecution I know, and that is about all.

Q. — This was on the fifth or sixth of July?

A. — I think it was.

Q. — Were you present on the second of July, when the case was set
for trial ?

A. — I think I was.

Q. — Now, can ^^ou say whether Mr. Haskell, Mr. Stillman, and other
witnesses on the part of the prosecution, were there when the case was
set for trial ?

A. — 1 cannot nay. I know that witnesses for the prosecution were
there before the sixth. I think that Mr. Campbell was there.

Q. — Do you know whether Judge Campbell was in the Court House

286

when the Court announced the time when the Court would he open on
the sixth ? Did you hear such an announcement made, when the Court
adjourned on the second? that it would meet at nine o'clock on the
sixth ?

A. — I know it was so generally understood.

Mr. Camphdl. — Understood among whom ?

A. — Why, all the persons living over there so understood it.

Mr. Williams. — Was Judge Campbell there on the second, for the pur-
pose of assisting the District Attorney in prosecuting the case ?

A. — That was my impression. I do not know that he was in the Court
room. I knew that he was in town. That was my understanding.

Q. — Judge Campbell was then the law partner of the District Attorney
of this city and county, was he not ?

A.— Yes, Sir ?

Q. — Did Judge Campbell return with the witnesses when they came
over ?

A.— Yes, Sir.

Mr. Williams. — I ask these questions in order to put these facts, which
are admitted by Judge Campbell, in the shape of testimony. Judge
Campbell came over with these witnesses on the sixth ?

A. — Yes, Sir ; he came over on the sixth.

Q. — When did they get there ?

A. — They got there about half past twelve.

CROSS EXAMINATION.

Mr. CampheU. — Will you state what are the usual means of communi-
cation between San Eafael and San Francisco ?

A. — The usual means of communication are by a steamboat which runs
from San Francisco to Petaluma and back, and touches at Point San
Quentin ; and from San Quentin there is a stage which runs to San Ra-
fael, a distance of four or five miles. Then sometimes Whitehall boats
come up from San Francisco into the " creek." Sometimes these boats
land at San Quentin, and sometimes they come up the " creek."

Q. — When does the steamboat leave San Rafael ?

A. — Usually in the morning, at half past nine or ten. It leaves San
Francisco at one o'clock in the evening, to return.

Q. — Do you recollect whether there was any formal recess of the Court
taken at all during the pendency of that tinal, or whether or not Judge
Hardy remained on the bench all the time ?

A. — I think that there was a little recess taken after the empanelling
of the jury, but I cannot state positively. I know that there was a sus-
pension of the proceedings after the empanelling of the jury, and before
the verdict was rendered.

31r. Williams. — On what day of the week was this sixth of July ?

A. — I do not recollect.

Q. — Friday, was it not ?

A. — I do not recollect.

Senator De Long. — AYas there any clock m the Court room ?

A. — No, Sir ; not in the Court room.

Senator De Long. — Was there any clock in the Court House ?

A. — JSTo, Sir ; none in the Court House, that I know of

Senator De Long. — Did you notice what time it was by your watch, or
by any other time-piece, at the time when the verdict was rendered, and
the jury discharged ?

287

A. — I do not know. I have a clock at my office, and before the Coun-
sel went doAvn to the Court House after the recess, they remarked what
time it was. Mr. Crittenden said that it was ten o'clock. I did not look
at my clock at all, that I remember.

3Ir. Williams. — In speaking about time, watches, and clocks, it has
been said that it wanted twenty minutes of ten by Mi-. Gordon's clock
when the verdict was rendered. What do you know about that clock ?

A. — It is well known in that place that that clock is very unreliable —
sometimes it is too fast, and sometimes too slow. It does not keep good
time. I did not look at that clock at that time ; in fact did not notice
any clock myself at all.

Mr. Campbell. — What was the condition of the District Attorney, Mr.
Haralson, on that day, as to sobriety?

Mr. Williams. — We are not trying the District Attorney of Marin
County now. I don't know but he may be before this Court at some
future time for trial. But I object to trying him when he has no oppor-
tunity for defence.

3Ir. Campbell. — I think the matter is pertinent to this case.

The Presiding Ojjiccr. — If you think that it is a matter bearing upon the
exercise of the discretion of the Court, it is admissible, in my ojjinion.

Mr. Campbell. — Then, what was the condition of the District Attorney,
as to sobriety, on that day ?

A. — Well, I did not notice anything remarkable, anything peculiar,
about him. As usual, he seemed to be fully possessed of his senses. I
did not observe anything remarkable about him in any way at all.

Q. — Had he not been drinking very hard for several days previous?

A. — I did not see him drinking at all.

Mr. Williams. — I am requested to ask you whether any witnesses were
sworn in that trial ?

A. — No witnesses were sworn.

Q. — No witnesses had arrived, and none did arrive till two hours after
the Case was submitted ?

A. — That is so, I believe.

Q. — Upon whose motion was the Court asked to take the verdict of the

J^iiy

A. — I think it was upon Mr. Hoge's motion; I think it was Mr. Hoge
made the motion. When the motion was first made, the Judge stated
that the hour had not yet arrived ; that he would wait a little longer. I
think that the next time the motion was made, it was about fifteen min-
utes after the motion was first made.

Q. — What did Judge Hardy do in reference to directing the jury to
find a verdict ?

A. — I have forgotten his exact words. But the substance of what he
said to the jury was, that in the absence of any testimony, there being
no testimony in the case, i\xQj must render a verdict for the defendant.
I don't recollect the exact words.

Mr. Campbell. — No witnesses Avere sworn in the case ?

A. — None, Sir.

Q. — Now, how do you know that it was fifteen minutes past ten by
Judge Hardy's watch when the last motion was made by Mr. Hoge to
take a verdict ?

A. — I did not .say that. I said that when the motion was first made
to take a verdict. Judge Hardy said that it was not yet the hour, and
that he would wait a little longer. And I said that I thought it was

288

about fifteen minutes after the first motion of this kind was made, before
the second one was made.

Q. — Did Judge Hardy say what time it was by his watch when the
first motion was made ?

A. — I don't thinly he stated the precise time.

Q. — After the motion was first made to take a verdict — as you say
there were two motions made of this kind — and after there had been a
short pause in the proceedings, did not Judge Hardy vohmtarily exclaim,
" The time is up " ?

A. — I think not. I do not remember. I think he stated that the time
was not up when the first motion was made ; but I do not recollect of
his making use of that expression before the second motion was made.

Senator Perkins. — Did you see Judge Hardy's watch?

A. — I heard him state what time-it was by his watch.

Senator Perkins. — But 3'ou did not know then, from personal observa-
tion, what time it was by his watch ?

A. — Xo, Sir. I don't remember that I did.

Senator Perkins. — Then you didn't know anything about what time it
was yourself?

A. — Mr. Crittenden stated, before leaving my office to return to the
Court House, after the recess, that it was past ten o'clock.

Senator Perkins. — How far was it from your office to the Court House ?

A. — It is about two minutes walk from the Court House to my office.

TESTIMONY OF J. P. HOGE.

J. P. Hoge, being called, was sworn, and testified as follows :

Mr. Williams. — You live in San Francisco ?

A. — Yes, Sir.

Q. — You are engaged in the practice of the law here, Sir ?

A. — Yes, Sir.

Q. — You were a Counsel for Judge Terry in the case of the People
against him, tried in San Eafael, Marin County, in July, eighteen hun-
dred and sixty ?

A. — I was, Sir, one of his Counsel.

Q. — I wish you would state, rather slowly, the history of that pro-
ceeding, from the time the motion was first made in the case, in the
morning, until it was ended by the discharge of the jury. And, first,
the case was tried in the County of Marin ?

A.— Yes, Sir.

Q. — In the Town of San Eafael, the county seat of that County ?

A. — Yes, Sir.

Q. — Now, go on. Sir.

A. — Well, Sir, I don't know that I could state, particularly, everything
that took place during that trial, from the commencement to the end of
it. I coulcl not undertake to give, distinctly, all the minutiae of the j)ro-
ceedings ; for it is not likely that I remember them all. I know that
the trial of Judge Terry was fixed for a particular day during that term.
The sixth of July, I think. I know it was after the fourth of July. I
think it was fixed by agreement, or under some understanding among
Counsel, in order to suit their convenience with regard to the fourth of
July. I was not at San Eafael on the day when the case was fixed for

289

trial. The day before the case was fixed for trial, the Counsel for the
defence, and, I think, some of the witnesses — 1 don't recollect whether
Judge Teny himself was along or not — left here in the Petaluma boat,
which stops and discharges passengers at San Quentin. From that point
we took a stage and went up to San Eafael. We got to San Eafael some
time in the middle of the afternoon, on the da}^ before the day when the
case was set for trial. The Court was to meet the next morning at nine
o'clock, as we had been given to understand. On the next morning, when
nine o'clock came round, we went up to the Court room. I don't recol-
lect whether there was any preliminary business done with regard to any
other matter or not. When this case of the People against Terry was
called, we announced ourselves as ready for trial. The jury were called.

Mr. 'Williams. — [Interrupting.] Now, just state, there, if you please, if,
before the jury were called, there was anything said about witnesses for
the prosecution being on their way '!

A. — I think that the Court asked the Prosecuting Attorney if he was
read}' for trial. He said that his witnesses were all subpoenaed. I don^t
recollect whether he said that they were there or not, at that time. At
all events, the Prosecuting Attorney announced himself as ready to go
on. The jury were called and examined, and in a short time the entire
jury were sworn in.

Q. — Do you recollect whether, before the jury were empanelled, and
at the time when the Judge asked the Prosecuting Attorney if he was
ready for trial, if he then said anj-thing about the witnesses for the pro-
secution being in the " creek " ?

A. — That was said, but I don't know whether at that time or not.
There was considerable conversation took place ; and I think that the
Prosecuting Attorney stated that he had his witnesses summoned, and
that he had exhausted all his power to get them there. But I don't re-
collect the precise time when this Avas said.

Mr. Willianu. — You arc going along too fast, Mr. Hoge. You stated
that when the case was called, that the District Attorney announced
himself as ready for trial, in reply to a question from the Court ?

A. — Yes, Sir.

Q. — The jury Avere then called 'i

A. — Yes, Sir.

Q. — And you then proceeded to empanel the jury ?

A. — Yes, Sir.

Q. — How did you empanel them ?

A. — We examined them in the usual way, and those who were accepted
were sworn in.

Q. — How were they examined ?

A. — They were examined as to their qualifications. I think that some
fcAv of them were challenged — one or two.

Q. — The jurors were examined in the usual way, touching their quali-
fications to sit as jurors ?

A. — Yes, Sir.

Q. — Who examined them as to their qualifications ?

A. — The Prosecuting Attorney on the one side, and myself on the
other. At least he went through the usual forms, and announced wheth-
er he accepted them or not. He either accepted them, or said what he
had to say on the subject. . I don't recollect whether he challenged anj
Jurymen or not. He either did, or acknowledged that be had no chal-
lenge to make ; either one way or the other.
37

290

Q. Do you recollect whethei', upon an objection being made to any

juryman, there were any Triers appointed ?

A. — No, Sir ; I do not recollect whether there was or not. I have a
recollectitm that one or two of the jurors were challenged. I think that
I challenged one or two myself. I know that I examined them very
particularly before I accepted any. And I think that I challenged one
or two. I don't recollect whether the State challenged any or not. I
do not think that the Prosecuting Attorney did challenge any.

Q. — Do you mean to say that you challenged one or two peremptorily,
or upon examination, and for cause ?

A. — I think peremptorily. Perhaps one or two may have been re-
jected for cause, upon examination. That might have been. My im-
pression is not very distinct about it. But I have a very strong impres-
sion that one or two jurymen were excused, for cause.
Q. — You mean rejected ?
A. — Well, perhaps that is the precise term.

Q. — You are in the habit of always speaking very gently in the pres-
ence of the jury ?

A. — Yes, Sir; I am always very polite to them. I always say that
they are excused, instead of rejected.

Senator S'oule. — On the ground that '• easy blows kill the devil."
Witness. — Yes, Sir. Ko use in making them mad ; you might want
them in another case in the same term.

Q. — Was anything done, or neglected to be done, in the empanelling of
that jury, that struck you as out of the ordinary course of public prose-
cutions in Court ?

A. — I think nothing whatever.

Q. — Did you see anything there that indicated any necessity whatever
for the Court to interfere, and take the duties of the District Attorney
out of the District Attorne^-'s hands?
A. — I saw nothing of the sort.
Q. — How long have you been practising law ?
A. — A mighty long time, I know.
Q. — So long that you have forgotten, I suppose?

A. — Yes. Sir, almost. I have been practising law over twenty-five
years. Is that near enough for you ?

Mr. WiUiams. — Yes. Sir, that will answer our purpose. A quarter of a
century will do. You have tried a great many cases, haven't you, before
a jury ?

A.— Yes, Sir.

Q. — You say there was nothing then unusual in the course adopted by
the District Attorney in empanelling that jury ?

A. — I saw nothing. Sir. He heard our examination, and I don't recol-
lect that he challeuged any jurymen.

Q. — Well, is it not frequently the case that a District Attorney does
not challenge any of the jury, when they are neighbors of his. and he
knows them all well ?

A. — Very frequently the case, I should suppose; particularly in a
county like Marin, where I suppose General Haralson knows every man
in the'count}'.

Q. — Did you ever know of a Judge going into a county where he was
a stranger, to hold a term of Court, to interfere with a District Attorney
in the conduct of a case on the part of the prosecution ?

A. — I don't recollect that I ever did. I don't know that I ever heard

291

of a Disti'ict Judge or any other Judge interfering with the District At-
torney in the discharge of his duties on any occasion.

Q- — What, in your opinion, is the dut}^ of a Judge? Is it to interfere
and examine jurors himself, and on his own account, or is it to leave that
business to the Distinct Attorney and the defendant's Counsel ?

A. — I think the latter is the universal practice. I have not now any
recollection of any Judge interfering with the examination of jury-
men.

Q. — Would it not strike you as a most extraordinary occurrence for a
Judge to do so ?

A. — It certainly would. There would have to be very extraordinary
circumstances to justify such a proceeding to my mind. I should look
upon it as a tlagrant and intended insult to the District Attoriie^^, unless
there was some mighty good and obvious cause for it.

Q. — Did A'ou see anything in the District Attorney on that day, in his
conduct or demeanor, or anything else, in your opinion, as a lawyer of
experience, would warrant a Judge in interfering in the examination of
jurors ?

A. — I did not. Sir.

Q. — When the jury were empanelled, did they proceed immediately to
trial ?

A. — The District Attorney had his witnesses called, either out of the
window, or at the door, and the officer rejDorted that tiiey did not an-
swer. I pressed that the case should go on. I insisted upon its going
to the jury, if tht^'e was no testimony to be offered by the prosecution.
Or 1 insisted uj)on the Prosecuting Attorney going on with his testi-
mony, if he had any. And if he had not got any, I insisted upon the
cause going on in the usual way. I insisted upon my right — that as a
matter of right, the case should go on.

Q. — Did Judge Hardy refuse to go on?

A. — He refused to go on. I think he informed us that he should wait
until ten o'clock. It lacked then some time of that hour. I examined
my watch continually, in the meantime, and continually urged that the
case should go on. I think I had my watch in my hand at ten o'clock,
and insisted that the cause should go to the jury.

Q. — Now, to go back a little. When you insisted that the case should
go on, or at any time before the jury were finally discharged, was there
any intimation to Judge Hardy, inade by the District Attorney, or any-
body else, that these witnesses for the prosecution were subpoenaed for
ten o'clock, instead of nine?

A. — Not that I heard of. The District Attorney stated that he had
issued a subpoena for his witnesses, and exhausted all his power to get
them there. My information was that these witnesses were present
when the cause was fixed for trial at the previous day of the term. I
think I requested Judge Terry — or I don't know but it was a matter of
agreement among Counsel — to have the case fixed for the sixth. My
object was to have the matter go over the fourth of July. I wanted to
leave here after the fourth of July. I was not present at the time the
cause was fixed for trial.

Q. — Now, notwithstanding the fact that there was no intimation that
the subpoenas were not made returnable at nine o'clock, Judge Hardy
refused to go on with the case until the hour often had arrived ?

A. — He did. I suppose upon the principle that a Justice of the Peace
allows that it is nine o'clock until it is ten.

292

Q. — I suppose that you thought that it was rather of a Justice of the
Peace proceeding to give him that hour, didn't you?

A. — I never knew it done in a criminal cause before, in a District
Court.

Q. — Never knew an hour given to the prosecution, under such circum-
stances, after a jury was empanelled?

A. — Not in a superior Court. I know it is the practice in Justices'
Courts, in private suits.

J/r. EdgertoR. — It is so by statute here, in those Courts.

Witness. — It was mere practice, I know, on the other side.

Mr. Williams. — You repeatedly urged bringing the cause to a close, and
\irged it with great pertinacity ?

A. — I think I did, Sir. I spoke to the Court several times while we
were waiting. I insisted upon going on as soon as the jury were em-
panelled. And I think that I did several other times before the case
was given to the jury. I think I had my watch in my hand when I
made my last motion.

Q. — Do 3-0U know what time it was when you pressed the cause, and
when Judge Hardy stopped yon, and remarked that it lacked some min-
utes before ten ?

A. — That was after the jur}^ was empanelled, and, I think, it was after
we had waited some little time. It was after the jury had been called
and empanelled, and after the Proseeviting Attorney had said that he
could not produce any witnesses. I do not recollect exactly what time
it was. I know that we waited there some considerate time.

Q. — Now, the question is, whether Judge Hardy said to you, in reply,
that it Avas not then ten o'clock by a few minutes ?

A. — He did stop me on one occasion, I am confident, and tell me that
it was not time yet. He did not seem to take my watch as the correct
time.

Q. — Do 3^ou recollect, when he said that it was not time yet, how many
minutes it still lacked of the expiration of the hour ?

A. — AVell, I could not say, positively.

Q. — Do you recollect comparing statements as to time with his watch ?

A.— Yes, Sir.

Q. — How did they compare ?

A. — I don't recollect exactly. There may have been some few minutes
dift'erence ; in fact, I know there must have been some few minutes dif-
ference. Probably five or ten minutes.

Q. — Were you present with Judge Hardy immediately after the jury
were discharged, when there was any comparison between Judge Har-
dy's watch and those of other gentlemen in the Court room ?

A. — I do not remember.

Q. — Or on the boat coming home?

A. — I may have been, but I do not recollect.

Q. — Nor right there ?

A. — No, Sir ; I don't recollect. I know I did not think it was much of
a question. I know I did not suppose the witnesses could get there at
all. I know that I supposed that if the witnesses were really anxious to
get there, they would have come over the day before.

M)-. Williams. — Yes, Sir ; as anybody would.

Witness. — I was informed, however, that they were coming. I under-
stood that they were coming in a small boat. In fact, I think I under-
stood, while here, that they intended to leave in Leonidas Haskell's sail-
boat, and go over there. And I think that I heard that at San Eafael.

203

Q- — If there was anything in Judge Hardy's conduct in the empanel-
ling of that jurj^, or in ordering the verdict to be taken, after having
waited for some time, tliat was unbecoming or improper, according to
your judgment, as formed from your experience as a lawyer, state what
it was. If you saw anytliing in the conduct of Judge Hardy, on the
bench, or on that occasion, either during tlie empanelling of the jiny or
in the ordering of the verdict to be taken, after having made the delay
which he did, cliffei-ent from the practice of Judges in general, state it.

A. — Well, Sir, I thought tliat he extended more privileges to the prose-
cution than I was in the habit of seeing Judges extend "to prosecutors.
If there was anything unusual at all, it was in that respect. I am of the
opinion that a Judge has no right to stop the progress of a cause, and
wait for Avitnesses for the prosecutor, in criminal cases, if he is not
ready; not when the defendant is there, pressing for his right; except
it would be under ver}^ extraordinary circumstances.

Q. — Especially without there being any naotion made, any showing
made, any affidavit on the part of the District Attorney setting forth
cause for delay ?

A. — I think that some kind of a showing ought to be required at least.
I have never known such delay before, under such circumstances, after
a jur}^ were sworn in.

Q. — AVas there any affidavit oflfered by the District Attorney, or by
anybod}^ else acting on the part of the Prosecution, to show any reason
why there should be any delay? Any affidavit that witnesses were ex-
pected, or anything of that kind ?

A. — There was no affidavit offered.

Q. — No application made for time upon showing?

A. — No, Sir. There was a general statement made on the part of the
District Attorney, that he had exhausted all his power to get the witnesses
there, but they were not there. There was no showing or motion made
for continuance.

Q. — h' Judge Hard}" had volunteered, under these circumstances, to
delay the trial of that case, or delay the rendering of the vertlict beyond
the hour from the opening of the Court to the time to which he did
delay it, how would that iuive struck you, as an experienced lawyer ?

A. — I should have thought that it was a very arbitrary proceeding.
And I suppose that I would have taken an exception, and put it on
record, and tested his right to do such a thing, in the Supreme Court, if
I could.

Q. — What time was it, in point of fact, when the verdict was given ?

A. — When I made my last motion, it was about ten o'clock.

Q. — But Avhen the verdict was actually taken ?

A. — It must have been a few minutes after ten.

Q. — It was after ten, you say ?

A. — It is my impression that Judge Hardy did not grant my motion to
take a verdict until after it was ten o'clock.

CROSS EXAMINATION

Mr. Campbell. — You stated on your direct examination that the jury
were examined as to their qualifications, in the usual way. As to what
qualifications were they examined ?

A. — I believe the usual questions were put to the jurymen. Jurymen
are usually asked if they are citizens of the United States ; how long
they have lived in the State ; what place they came from to this State ;

294

perhaps, where they had lived in this State ; how long they have lived in
that county; perhaps, in what part of the county they lived; if they
knew anything about the case ; if they had heard, or formed, or expressed
an}' opinion in regard to it. These are the usual general questions — ac-
cording to my recollection.

Q. — Now, you have stated what is the usual way of examining jury-
men. Do you mean to he understood as saying that these questions were
put to the jurors on this occasion ?

A. — I do not say that the}' wei-e in ever}^ instance.

Q. — Do you not know that these questions were not put to the jurors
then?

A. — No, Sir, I do not know any such thing.

Q. — Can 3'ou recollect any one juror who was asked such questions on
that occasion ?

A. — My impression is that if we were satisfied with the jurors before-
hand, it isver}' likely we did not put all these questions to them.

Q. — Now, did you or did anybody ask a single juror all these questions
that you have stated are usually put to jurors in such cases '(

A. — I don't think that anybod}' else asked them but myself I do not
remember that the District Attorney put any questions.

Q. — Do you remember whether, in any single instance, the District
Attorney asked a single juror whether he had formed or expressed an
opinion in the case?

A. — "Well, Sir, that is a thing that I would not be apt to recollect. But
I have stated my impression ah-eady, that the District Attorney did npt
ask any questions of the jurors. Yet he might have done so.

Q. — Your object was to get a jury as rapidly as possible, was it not ?

A. — M}' object was to get a jury that would give my client the fairest
possible liearing.

Q. — You were aware that the witnesses for the prosecution were com-
ing up in a sailboat ?

A. — I had heard that they were going to come up in a sailboat.

Q. — AVell, were you not anxious to have the case go on before the wit-
nesses could get there ?

A. — I had no idea that the witnesses would get up there in time by
such a mode of conveyance as they had adopted. But I was not willing
to take an}' jur}' without examination, and run the risk of the case going
to them before the witnesses arrived.

Q. — Can you recollect any one juror whom you asked whether he had
read or heard any opinion in the case, or whether he had formed or ex-
pressed any opinion about the case ?

A. — I cannot specify as to any particular persons. I am very certain
that I examined several jurors closely ; I don't know how many of them.
I know we challenged one or two for cause.

Q. — Did you examine them upon those particular points, as to whether
they had formed or expressed any opinion in the case ?

A. — I know I examined them in the usual way.

Q. — Upon the points as to whether they had heard, or read, or formed,
or expressed, any opinion in the case ?

A. — I tell you I cannot recollect so as to particularize. I know that I
examined them in the usual way. until I was satisfied with them, or con-
vinced that it was proper for me to challenge them for cause, or other-
wise.

Q. — Were not the facts simply these : that when the jury was first
called, the names of twelve men were read from the list the Clerk had,

295

by consent between j^ourself and the District Attornej^ ? Was not that
the first proceeding taken ?

A. — I do not recollect.

Q. — Do 3-011 recollect whether any of the jurors were drawn from the
jury box ?

A. — I have no recollection about that. I know that I had the list of
jurors before me, and that I consulted with my client and other Counsel,
and examined the different jurors more or less rigidly, according as we
thought proper.

Q. — Do you recollect whether, when the names of the first twelve men
were called off from the venire, the Judge on the bench stated to them
that they must be citizens of the United States, and must have resided
80 long in the State and so long in the county ?

A. — I do not recollect. Ho might have said so.

Q. — Do you recollect whether you examined each juror individually ?

A. — Of course, those whom I did examine, I examined individually.

Q. — Do you remember how many jurymen you examined ?

A. — I do not recollect precisely, because I cannot recollect how many
were rejected or challenged.

Q. — Do you recollect how long it took to empanel the jury ?

A. — I do not recollect how long it took. It did not take very long, I
know. Some of them we were willing to take without examination. I
had a list of them before me, and some of them we were willing to take.
I consulted with the defendant, and we agreed upon those whom we did
ttot think it necessary to examine.

Q. — x\nd the District Attorney did }iot examine any of them?

A. — T do not recollect whether he asked an}^ questions, or not.

Q. — Was not that case one which had excited a great deal of public
interest in the State ?

A. — It was a case that had obtained a great deal of notoriety, I know.
I know that there were a great many publications in regard to it.

Q. — It was a matter of general conversation, was it not ?

A. — Yes, Sir.

Q. — Now, in cases of that character, when there is that general feel-
ing and interest, have you ever known, outside of Marin County, any
jiresiding officer who did not examine jurors as to their having read, or
heard, or formed, or expressetl, opinions, as to the merits of the case un-
der consideration ?

A. — My answer to that would depend altogether upon circumstances.

Q. — I am speaking of criminal cases where great public interest has
been excited respec-ting them. Have jou ever known such a thing as
this done in your life, outside of Marin County ?

A. — My experience has taught me that, ordinarily, the Prosecuting At-
torney does not examine jurors very strictly. The examination is most
particular on the part of the defendants. In the way which I look at
the matter, they are more interested in getting a favorable jury than the
prosecution is. The prosecution never ask for anything else than a fair

Q. — Do you suppose that the prosecution could obtain a fair jury by
taking the first men who were called from the venire ?

A. — They might do so ; unless they knew something particular against
some one of the jurors.

Q. — Have you ever known any case of public notoriety and general
interest in which the emijanelling of the jury was concluded in as short
a time as in this case ?

2S6

A. — I don't think that I was ever present three times in a Court in
this State, when the jury was empanelled in a criminal case.

Q. — Then you are not familiar with the ordinary j)ractice of the Court
in such cases, and at such times ?

A. — Not in this State, from personal observation. Not particularly
familiar.

Q. — Yon have been mostly engaged in civil cases ?

A. — M}^ practice has generally been in cases of that character.

Q. — Now, didn't you think it somewhat extraordinary that a jury
should be empanelled in as short a space of time as that was — in a case
in which so much public interest had been manifested ?

A. — No, Sir.

Q. — You did not think it extraordinary ?

A. — No, Sir. I never thought anything about it in that light. I didn't
care anything about what the prosecution did. That was not my busi-
ness. I wanted to get a fair chance for my client.

Q. — Didn't you think that the Prosecuting Attorney was extremely
mild in his conduct of the case ? Didn't you think that he let you have,
decidedly, the advantage ?

A. — No, Sir; I thought that the Prosecuting Attorney had decidedly
the advantage of me. I knew, or supposed, that he was so well acquaint-
ed with the jurymen that he could satisfy himself about them without
making any particular examination.

Q. — Now, don't you know exactly what examination was made on that
occasion, by the District Attorney ?

A. — You talk to me about that which happened a long time ago. ^
cannot answer such questions with particularity.

Q. — Was there nothing in the conduct of that case which struck you
as at all strange ?

A. — No, Sir; I did not think there was anything strange about it.

Q. — It seemed to you as if everybody was doing their duty; the Coun-
sel for the prosecution, and Judge Hardy?

A. — That was a matter that I did not inquire into. I did my duty. 1
did not speculate ujjon that subject at all, as to whether others were
doing theirs or not.

Q. — And you didn't notice anything at all peculiar in the conduct of
that case ?

A. — No, Sir; nothing.

Q. — Well, the District Attorney allowed you to empanel that jury
pretty much as you pleased, didn't he ?

A. — He did just what I have stated, so far as I have observed.

Q. — Well, at the time Judge Hardy assented to going on with the case,
you sa}" it was ten o'clock by your watch ?

A. — I say that it was ten o'clock by my watch when the case was given
to the jury. I didn't say that it was ten o'clock by my watch when
Judge Hardy consented to go on with the case.

Q. — Well, who announced that it was ten o'clock ?

A. — I announced it myself. I insisted, on several occasions, on going
on with the case, but Judge Hardy positively refused to give the case to
the jury until the hour often o'clock had arrived.

Q. — Well, didn't you rather like the style in which the District Attor-
ney conducted the case?

A.. — Well, I did not think that the District Attorney was very bitter in
the mode in which he conducted the prosecution. My observation has
been, that the prosecution is never very bitter in cases of that character.

297

They have never been very bitterly prosecuted in any State that I know
of.

Q- — Do you know what the District Attorney's peculiar notions are in
regard to cases of that character ?

A. — I do not.

Q. — You speak of having understood that these witnesses were going
over in a boat. In another portion of 3'our testimony, you say you did
not mucli expect that they would get there. What do you mean by
that 't

A. — I meant to say that I did not much expect that they would get
over there in time to attend on tliat case. Because I knew that they
were coming in that shape that rendered it very uncertain when they
would get there. I knew that 1 would not risk myself by any such con-
veyance, under such circumstances.

Q. — Was it not very unusual to instruct the juiy to bring in a verdict
in such a case, without any testimony having been given ?

A. — Not at all. The Court was asked to instruct the jury to bring in
a verdict, and it had to do so.

Q. — Would it not have been proper, and following a usual practice in
such a case, to have recommitted the case to the Grand Jury r'

A. — No, Sir ; I suppose not. The statute providing for a recommittal
to the Grand Jury applies, I believe, only to cases where the indictment
is held to be bad, or defective.

Q. — What time was the jury called?

A. — Very shortly after the Court opened. I did not notice the partic-
ular time.

Q. — About wliat time was the empanelling of the jury completed?

A. — That I don't recollect. I know that it was not a great while after
the jury were first called.

Q. — Do you know when Judge Terry returned to this city ?

A. — We all returned together, I think, on the next day's boat. I be-
lieve so. I think I stayed down at the Point — San Quentin — that night.

To Senator Kufz. — I stated that I had a list of jurors before me which
I examined, and I inquired of the friends of the defendant, and of my
associate Counsel, as to those with whom they would be satisfied. Of
course, those whom they were willing to take as jurymen were satisfac-
tory^ to me. Some of the friends of Judge Terry knew some of the jurors
well, and I knew some of the juroi's mj'self — a few of them. And it often
happens that in cases where a party knows a juror well, he is willing to
take him without examination. I believe that such was the case in one
or two instances in the course of empanelling the jury in this case. In
fact, I am almost certain that that was so.

TESTIMONY OF E. D. CARDER.

E. D. Carder, being called and sworn, testified as follows:

Mr. Williams. — You live at Petaluma, Sonoma County ?

A. — Yes, Sir.

Q. — You are a lawyer ?

A. — Yes, Sir.

298

Q. — Was you present at the time and place spoken of by the last wit-
ness?

A. — I only heard a portion of Mr. Hoge's testimony.

Q. — It is the case of the trial of The People vs. Terry.

A. — I was there, Sir.

Q. — Do you know what time it was when they got through empanel-
ling the jury?

A. — No, Sir. I do not. I do not know what time it was when they
got through empaneling the jury.

Q. — When they got through empanelling the jury, what did the de-
fendant's Counsel do or insist upon ?

A. — There was a recess of the Court, after the Jury was empanelled.
There was something said respecting the witnesses having been sub-
pcenaed to be there at ten o'clock ; and it was between nine and ten
o'clock when the jury was empanelled. I think that the Court convened
at nine o'clock, or, perhaps, ten or fifteen minutes after nine o'clock.

Q. — You say that something was said about the witnesses having been
subpcenaed to appear at ten o'clock. Was anything of that kind said to
Judge Hardy when he was ou the bench ?

A. — I don't recollect, distinctly, whether there was or not. That was
my understanding, however.

Q. — Did you not get that understanding in some other wa}^ than from
an}'^ announcement made to the Court ? Did the District Attorney say
any such thing to Judge Ilardy, while he was on the bench ?

A. — It is rather ni}' impression that he did. I am rather under the
impression that he said to Judge Hardy that the witnesses were sub-
poenaed to be there at ten o'clock. I know that I was sitting next to
the District Attorney, and I know that I got the impression that during
the empanelling of the jur}-, and between the time of the Court's con-
vening and the rendition of the verdict, this remark was made.

Q. — You think that that was said — whether said directly to the Court,
or not — between the time when the Court convened and the rendition of
the verdict ? Or at what time do you think it was said ?

A. — It was before the rendition of the verdict.

Q. — AYhat time was it when the verdict was taken ?

A. — My impression is that it was a few minutes past ten o'clock.

Q. — State whether your attention was called to that fact from its hav-
ing been mentioned after the jur}- Avere discharged ?

A. — My recollection is something like this : The Court conveiied at
nine o'clock ; after the jury had been empanelled a recess was taken
until ten o'clock. I don't think that I left the Court room during the
recess. At about ten o'clock Mr. Hoge addressed the Court and stated
that it was ten o'clock, and that he wished to proceed with the case.
Then, if I am not mistaken, the witnesses for the pi'oseeution were
called, and the District Attorney, Mr. Haralson, remai'ked that he had
exhausted all his power to get them there, and they were not there.
Then Mr. Hoge made a motion for a verdict.

Q. — Did Judge Hardy delay the matter after that ?

A. — The Judge looked at his watch when Mr. Hoge first spoke to him
about the hour of ten having arrived. I don't recollect what time it
was then. But after the rendition of the verdict I looked at my watch,
and it was between five and seven minutes after ten o'clock, according
to my recollection.

299

PRESIDENT SHAFTER, RECALLED.

3Ir. Williams. — I am requested to ask the President a question.

Q. — Mr. Shafter, where did you go from San Eafael after the second of
July, and before the sixth ?

A. — I went to Point Reyes.

Q. — Over to your ranch ?

A.— Yes, Sir.

Q. — I am requested to ask you if your watcli did not run down during
that time ?

A. — I have no recollection of any such occurrence.

Q. — I am further requested to ask you whether, from running down,
or from any other reason, you did. at any time after arriving at San Ea-
fael, set your watch by Gordon's clock ?

A. — I do not think that I did.

Q,. — When you compared your watch with Gordon's clock, was it not
after some question had arisen about the time ?

A. — It may be possibly so. I do not undertake to say whether it was
or was not.

Q. — Was there not any question raised there among members of the
bar about the agreement or disagreement of watches on the day before
this Frida}" the sixth of July, or Thursday the fifth of July?

A. — I have no recollection of it.

Q. — Whether you sent to Judge Hardy to ascertain what time it was
before you compared your watch with Gordon's clock? Whether yoa
sent to Judge Hardy to ascertain what time it was the day before the
trial came off'?

A. — I don't think that I had the slightest communication with Judge
Hardy at that time, on that or any other subject. On the sixth, when
the witnesses arrived from San Francisco, I compared my time with
theirs, and on my return to this city I compared my time with the city
time. I not unfrequently let my watch run down, and it might have
been that such a thing happened on this occasion, and I did not notice
or remember it.

TESTIMONY OF A. C. ADAMS.

A. C. Adams, being called, and sworn, testified as follows:

Mr. Williams. — You live at Mokelumne Hill, Sir ?

A.— Yes, Sir.

Q. — You are engaged in practising law, there ?

A.— Yes, Sir.

Q. — How long have you known Judge Hardy?

A. — I have known Judge Hardy since about eighteen hundred and
fift^'-five ; but I have not been very intimate with him until within the
last three years.

Q. — Have you attended all the Courts there since he has been appoint-
ed Judge ?

A.— Yes, Sir.

Q. — During all that time. Sir, of your attendance upon his Court, did
you ever see him on the bench when he exhibited any signs of intoxica-
tion, or evidence of being under the influence of liquor?

300

A. — I do not know, Sir, that I ever did. I have no recollection of any
such thing.

Q. — Were you present during the trial of the case of McDermott
against Higby, which ended on the first March last ?

A. — I was there a considerable portion of the time. I was there when
the jury were charged.

Q. — How long had 3'ou been there before that ?

A. — Probably, immediately previous to the jury's going out I had been
there three quarters of an hour. I speak at random, without any dis-
tinct recollection. I had been in and out all day; and in fact the day
before.

Q. — Did you hear the instructions, special issues, and general charge,
read to the jury ?

A. — Yes, Sir.

Q. — State whether it has been the uniform custom of Judge Hardy to
write out his charges, and when charging the jury to confine himself
strietl}" to the written charge.

A. — Yes, Sir ; that has been his invariable custom, I believe.

Q. — Do you know when he wrote his general charge in that case — at
what stage of the proceedings?

A. — I do not. Sir. I think that I noticed that he was writing while
Judge Terry was arguing the case. And I think he Avas also writing
while Mr. Higby was arguing.

Q. — Did he write any after Judge Terry had got through ?

A. — I do not recollect distinctly ; I could only infer as to that. I know
that some little time passed between the close of Judge Terry's argument
and the going out of the jury. I have no distinct recollection that
Judge Hardy was writing at that time. I could only state what my
opinion would be in regard to that.

Q. — Where were you, Sir, in relation to Judge Hardy's position on the
bench at the time he read his charge, instructions, and special issues, to
the jury ?

A. — At that time I was standing on his right. Suppose Judge Hardy
to be sitting where the President of the Senate now is, I was standing
on the right, close by, or leaning on the desk of the Judge. The jury
sat here [pointing] upon the left. The Clerk sat immediately to the
left. The jury were partially in front, and partially to the left.

Q. — Could you see and hear Judge Hardy plainly when he delivered
that charge ?

A. — Yes, Sir. I heard him very distinctl}'. That was the only thing
in Avhich I had an interest — to bear the charge. I had a curiosity, as
most Attornej^s naturally would have, to hear how his charge accorded
with my own vieAvs of the laAv.

Q. — I^OAv, Mr. Adams, state to this Court whether you saAv any evi-
dence of intoxication upon the part of Judge Hardy Avhen he read his
charge to the jury.

A. — I did not. Sir. I saw nothing that would lead me to suj)pose that
Judge Hardy was intoxicated from the manner in which he read his
charges to the jury. JSTor did I see anything unusual in his manner upon
the bench at the time, except, I Avould add, Judge Hardy appeared to be
a little excited. I A^ery well knew the cause of that.

Q. — What was the cause of that excitement ?

A. — I Avas present Avhen the difficulty, or unpleasant affair, happened
in Court, during the trial of the case, betAveen the Counsel for the de-
fendants, and the Judge. I was present Avhen Mr. Higby read his affi-

301

•
davit to the jury, and when a statement was made by one of the Coun-
sel, in Court, and when the explanation passed between the Court and
the party who stated that he felt himself aggrieved.

Q. — Well, vSir, you state that Judge Hardy did manifest some excite-
ment while reading his charge ?

A— Yes, Sir, I thought so at the time. I think 1 had noticed it from
the time when this unpleasant occurrence took place. It was something
that was very unpleasant to those who were not interested in the suit
that was pending, if I coukl judge from their expressions. I know it
was to myself; and I think that Judge Hardy exhibited very strongly,
in his appearance, the same feeling. I think that from his tone when
this little explanation took place between him and the Counsel — if you
choose to call it an explanation — that he appeared to feel very sensibly
the unpleasantness of the whole matter, as well as Mr. Higby. I judge
also from what was said between the two parties, and the manner in
which it was said, between Judge Hardy and Mr. Higby. 1 don't know
as it is proper for me to state what it was that was said that impressed
me more stroiigly here.

Mr. William.'i. — Yes, Sir. State it.

A. — Upon the reading of the affidavit, Mr. William L. Dudley made
some remarks to the Court —

Mr. Edjurton. — [Interrupting.] Well, we object to this testimony.

3Ir. WUIiams. — State what Judge Hardy said from the bench upon hear-
ing Mr. Higby's affidavit read.

Mr. Edgcrton. — AVell, we object to that. It has no bearing whatever
upon the question as to whether Judge Hardy was intoxicated that night
or not. That affidavit was read a long time before.

3Ir. Williams. — This witness has already stated that during the reading
of that charge, the Judge did not aftbrd the slightest evidence of intoxi-
cation, or that he was in any manner under the influence'of liquor. But
the witness did say that the Judge then appeared to be laboring under
some excitement. Now, we ask him about the conduct of the Judge
when Mr. Higby read that affidavit. The Counsel says that that was
a long time before. To meet that objection, we refer to what the
witness has just testified — that his observation of this fact of excitement
on the part of Judge Hardy extended from the time of the reading of
that altidavit down through the entire of that day. Now, when we
show that Judge Hardy was under a state of excitement at the time
this affidavit was read, and then trace his course of conduct down through
the day, and find that he was kept in that state of excitement — as we
propose to prove — by the extraordinary conduct of Mr. Higby, from the
time of reading that affidavit to the close of the case, I think we are per-
fectl}^ justified within a proper line of evidence. The very question is,
here, whether Judge Hardy was intoxicated at that time. ISTow, this
witness states that there was something unusual about the man at that
tin/e. Now we propose to show that it was not intoxication, but excite-
ment, that was manifested on the part of Judge Hardy; and we propose
to show that that excitement originated in, and was fostered b}^, the lan-
guage and conduct of Mr. Higby at the time of reading that affidavit, and
all down through the trial of that case. Tluit then was the first cause;
and that from the time of tlie reading of that affidavit, the same appear-
ances manifested themselves until the case was concluded and the charge
given to the jury. It is for the verj^ purpose of showing that it was not
intoxication, but excitement, on the part of Judge Hardy, that was mani-
fested on this occasion ; and that that excitement had its beginning at the

302

time Mr. Higby read Ins affidavit ; that it was manifested all down through
the course of that trial afterwards, as it had good reason to be, from the
fact that Mr. Higby' s conduct was such as would naturally keep alive
and increase the iri-itation exhibited on that occasion.

Mr. Campbell. — Well, we Avithdraw the objection, in order to save fur-
ther discussion and summing up.

Mr. Williams. — [To the witness.] Go on, Sir, now.

jVitness. — Upon the reading of the affidavit. Judge Hardy remained for
some little time in apparently deep thought. He turned pale, which, ac-
cording to my observation, he ver}' frequently does when excited. He
finall}' remarked, in a different kind of tone from that which he usually
employs, that he was at a loss to know why Mr. High}' should have filed
an affidavit of that kind ; that there had invariably been the most ami-
cable relations existing between him and Mr. Higby; that he had always
entertained for Mr. Higby the profoundest respect. That was the pur-
port of what he said.

Q. — What was his tone and manner ?

A. — His manner show^ed that he was very deeply impressed with the
unpleasantness of the scene. He appeared to be astonished that Mr.
Higby should have made an affidavit of the character which he did. He
laid great stress on the fact that no'.ie but the most amicable relations
had ever existed between himself and Mr. Higby. I cannot repeat all
that he said, but that seemed to be tlie substance of his remarks. And
then he remarked tliat he was sure Mr. Higby was mistaken ; that he
attributed nothing wrong to him ; that he was charitable enough to sup-
pose that Mr. Higby was perfecth' honest in making that affidavit; that
he imputed nothing wrong or malicious to Mr. Higby. But he repeated
several times that he was greatly astonished that Mr. Higb}^ should make
such an affidavit. To which Mr. Higby replied.

Q. — Now, Sir, did that same suppressed and saddened tone continue
all day with Judge Hard}- ?

Mr. Camphdl. — Well, we object to that question. The witness hasn't
said a word about " suppressed " and "■ saddened " tone.

Mr. Williams. — Well, did the same tone and manner, whether sup-
pressed, or saddened, or indignant, or whatever Judge Campbell chooses
the Avoi-d to be — continue from the time that Mr. Higby read that affida-
vit, down to the conclusion of the trial ?

A. — It seemed to me that whenever Judge Hardy was required to
make any ruling in the case, ov to address the jury, from the time the
affidavit was read, down to the time the charge was given to the jury,
there was a marked difference in his manner and tone from what it
would have been under ordinary circumstances. I cannot exactly ex-
plain what that difference in tone and manner was. It seemed to me
that after that the case had assumed, to him, a much greater and graver
importance than it had before. He seemed to be very careful of what he
said and what he did. I know that that fact struck me at the time. And
I recollect distinctly, that, in my judgment, at the time when he Was
reading the charges, his voice slightly trembled, as it does frequently,
when he is delivering a sentence which is to consign some person who
has been convicted in his Court to the scaffold. He was ver}- careful in all
he said ; as though he Avas impressed Avith the fact that there was some-
thing that Avas of more than of an ordinary character in the proceed-
ings Avhich Avere then taking place. That is as near as I can explain
the manner and tone of Judge Hardy Avhenever he had an^^thing to read
or say Avhile on the bench that day, after the reading of Mr. Higby's

303

affidavit. Outside of the Court House the same things were not mani-
fested in so striking u degree. But so far as I observed him in the
Court House, these manifestations were very clearly discernible up to
the time of his reading the eliarges.

Q. — And there was a peculiarity in his voice when he read the
charges ?

A. — Yes, Sir; there was a slight tremulousness in his tones.

Q. — Do you mean to say that there was a slight tremulousness in his
voice when speaking inside the Court House, and on the bench, and that
his voice was firm when outside of the Court House ?

A. — I mean to say that I did not notice anything particular about him
outside of the Court House, except, perhaps, he wore a troubled look.
So far as his voice was concerned, I noticed that it was slightly tremu-
lous whenever he spoke, Avhen making rulings in the case, or addressing
the juiy. There was considerable excitement about the case around
town. The Court House was filled with people. Nearly everybody in
town knew Mdiat had occurred in the Court House that day, and a good
many people were there. You could have heard conversations as to the
matter on every corner of the streets that day. People did not know
what would grow out of that affair. And when the charge was read to
the jur}', in the evening, it Avas so still that you could have heard a pin
drop.

Q. — And you were at the Judge's right hand, at the end of the bench,
when the charge was delivered '(

A. — Yes, Sir.

Q. — How long is that bench in front of the Judge ?

A. — I should think that it is not as long as this is — not quite. It is
about as long as from here to there, [pointing so as to describe the circu-
lar portion of the bench in the Senate Chamber.]

Q. — And you occupied a position on the right ?

A. — Yes, Sir.

Q. — Did you see the Judge when he passed the instructions to the
Clerk ?

A. — I have no recollection of it. I was standing there, and heard
them read ; and after they were read, I think the Judge passed them
over the bench, but I have no recollection to whom he passed them.

Q. — Was there an3-thing unusual in the manner in which the Judge
handed them up ?

A. — No Sir; I observed nothing unusual.

Q. — Would you have observed it if the Judge had passed those papers
to Mr. Brock way ?

A. — I might, and might not.

Q. — Do 3'ou remember an occasion when there was an adjournment of
the Court over a day, in the August term ?

A. — I recollect it. Sir.

Q. — What part of August was that ?

A. — My recollection is that it was the latter part of the term; that is,
when the Court adjourned over a day.

Q. — I mean the time when the Court adjourned over from Friday night
until the next Monday morning?

A. — Yes Sir, I remember it.

Q. — Whether there was an understanding among the members of the
bar then, that that adjournment should take place ? Whether members
of the bar, belonging to both political parties, agreed that they should be
at liberty to go away on that Saturday ?

304

A. — I think that there was to be a political meeting of the party to
which I belonged, on that night.

Q. — Which party was that '(

A. — That was called the Union Democratic party. I believe that
that was on the occasion when 3Ir. Conness and ]\Ir. Edgerton were to
speak at our place. I think that the motion was made some time in the
afternoon of that da}' when they got there. Bat I have forgotten about
the time precise!}'. I was merely speaking as to what my understanding
now is as to what occurred then. We had got through with a case on
trial, and another case was called by the Court, which had been set for
that daj'. I forget the title of the ease. Then a suggestion was made
by some of the members of the bar. in a low tone of voice, that we were
to have a political meeting that night, and that it was not desirable, on
that account, to enter upon the trial of this other case, which was sure
to occu])y a considerable time. And then some one suggested this fact
to the Court ; that the Attorneys were not disi^osed, that it was not
agreeable tp them, to go into the trial of the other case. The Court
seemed reluctant to defer the trial of the case. Finally, however, it was
agreed that the Court should adjourn until the next 3Ionday morning.
When the Court was about to adjourn. Allan P. Dudley arose and said
that if this adjournment was made, the members of the party to which
he belonged, who were members of the bar, would expect to have the
same lenity extended towards them when they had a meeting there. I
think that just before that time, Mr. Dudley had expressed an anxiety
to have this adjournment take place. The Couit adjourned then until
Monday morning. Avithout there being any dissent made to the proposi-
tion. And so far as my understanding goes, when the Court adjourned,
it was generally understood that when political meetings Avere to be
held there by either party, tliis same courtesy would be shown to each
•of the members of the several parties. And that is all that I know in
regard to the extent of the agreement between the ditferent parties. I
know that I so well understood the case to be. I know that when Mr.
Dudley rose and made the remark which he did, that it struck me with
surprise, because he was one of the first to suggest that the adjournment
should take place. When the Judge intimated that he was willing that
this adjournment should take place, in accordance with the wishes of
the members of the bar. Mr. Allan P. Dudley arose and said that he
wished it to be distinctly understood that he should expect that the
same lenity should be shown towards him. when he wanted to address a
meeting, or towards the members of his J)arty when they were going to
hold a meeting at that place. And that was the understanding, as far as
I was concerned. I know that I remarked at the time, that it did not
make any dilference to me whatever, because I did not intend to address
any political meeting that year. But I was willing that others should
do so, who so desired.

Q. — You are a Union Democrat, I take it, from what you have just
said ?

A.— Yes, Sir.

Q. — Have you heard Judge Hardy express his sentiments on the sub-
jects of loyalty, secession, rebellion, and kindred topics ?

A. — Not ver}' frequently. I am not very fond of those street discus-
sions which people have in towns like ours, and I always j^urjjosely avoid
them. 1 recollect, however, of a remark which Judge Hardy made in
my hearing, immediately after the receipt of the news of the taking of
Fort Donelson. He remarked in my presence — I think Mr. Gatewood

305

ATas present, and several others — I know that there were several Illi-
noisans jsresent, myself among the rest — Judge Hardy remarked that he
would rather have been at the head of one of those regiments or com-
panies than to have been King or Emperor of France. I heard him
make that remark some two or three times. The first time I heard him
make it, it was in the presence of several Illinoisans. I recollect to have
passed Judge Hardy on the street several times when he was in conver-
sation with others with regard to the political troubles of the country;
but I recollect nothing particular in regard to those conversations.

Q. — Has there been any considerable degree of intimacj^ between you
and Judge Hardy ?

A. — Not any more than naturally would be between a Judge and a
member of his bar.

Q. — Has there not rather been a little distance and coolness between
you?

A. — "Well, I think probably that there has been more distance and
coolness between Judge Hardy and myself than there has been between
him and any other member of the bar.

At this point in the examination of Xr. Adams, the Court adjourned
until the following morning, at eleven o'clock — Wednesday, May seventh.

T Id] s T I iVi o isr Y

IN THE

TRIAL OF JUDGE J. H. HARDY.

NINTH DAY— MAY 7, 1862.

TESTIMONY FOR THE DEFENCE

IN REGARD TO THE ELEVENTH ARTICLE.

Senator Watt. — I move that no more testimony be allowed to be taken
on Article Eleven. I think that testimony enough has been taken on
that Article to convince the mind of nearly every member on this floor.
We spent all day yesterday on it, and may. if we continue, spend all
to-day, too. I move that the further consideration of that Article be
dispensed with, and that no more testimony thereon be admitted.

Senator Gallagher. — It seems to me impossible for this Court to decide
as to that.

Senator Watt. — I do not see any force in that objection. I believe this
Court has full power over its own actions. There is no outside authority
having anything to do with it. Of course, if every one in this Court is
of the same opinion as the Senator from Calaveras, we cannot do it. But
I have to differ with him, and I do not know how many more Senators
may. I want the decision of the President, first.

Senator De Long. — The difficulty in the way of anything of that kind
may be this : We may be satisfied, at the present time, for instance, that
the amount of testimony which the Respondent has offered on this Elev-
enth Article fullj^ and thoroughly overcomes that offered by the State.
Sujjpose that is the case, and that we say here now to the Respondent :
It is unnecessary to offer any more testimony against the proof made
against you on that allegation. Does that same rule operate as to the

308

State, when the Prosecution come to their rebuttal ? Certainly not.
They have the right to rebut all testimon}' introduced by the Respond-
ent. And if they go on to introduce evidence to build up and sustain
the j)roof which has been overthrown by the Defence, to a certain ex-
tent, then what position would the Respondent be in ? lie would be in
the condition of having kept out of proof.

Senator Watt. — [Interruj)ting.] The Respondent would, of course, be
allowed an opportunity to introduce more proof, in that case.

Senator De Long. — Then, what time would you save by jowv motion ?

3Ir. Williams. — I think I can satisfy both sides of the question, if the
Court will allow me. Evidence has been introduced on this Eleventh
Charge, and on the kindred charge, the Twenty-Second. Charge Eleven
(in relation to the trial of the case of McDermott vs. Higby) and Charge
Twenty-Second (in relation to habitual drunkenness in office, while dis-
charging the duties thereof,) go together. Now, I see the difficulty hon-
orable Senators mention, but it seems to me that it might be partly
obviated, so far as saving time is concerned, and in a manner which may
be assented to by the Counsel on the other side. They have given a cer-
tain amount of evidence ; have exhausted their evidence on that point.
They cannot be permitted, as Counsel conceive, to give any more evi-
dence that goes to sustain that charge; can onlj" rebut the evidence we
have given. Now, it could be said to us by the Court — and be assented
to by Counsel, and it seems to me Counsel will assent to it — that if
we stop here, and refrain from introducing all the witne^sses we have
upon this subject remaining, we shall be permitted, if it should seem,
when they have given their rebutting evidence, that this additional evi-
dence of oui's ought to have been given before, to give it then. And if,
on the contrary, they should simply give evidence tending to rebut what
we have proved, and no evidence of the main charge, then we shall not
want to introduce these additional witnesses. It strikes me that that sort
of an arrangement could be made, and Counsel have no difficulty in assent-
ing to it. At any rate, I think every Court has the right to say, " You
have gone far enough on this point, until farther evidence. For farther
evidence, we will enforce the rule strictly — that all witnesses be exhaust-
ed when examined on the subject." If that assurance shall be given us,
we will be willing to stop right here, on those two Articles. I think that
will satisfy the Senators.

Mr. CamphcU. — Of course I cannot enter into any arrangement on
this subject without consultation with my associates. In reference to
those Articles, I do not know how much or little testimony General
Williams may have to examine on those subjects — whether one witness,
or one hundred. Of course I could not give any answer to the sugges-
tion he now makes, without consultation with nrj colleagues.

Mr. Williams. — Then I would simply suggest that the Court take that
order.

Senator Quint. — It seems to me that, unless there has been some new
evidence, other than rebuttal, introduced, that the Prosecution would
have no right to go into evidence other than that which has been already
entered into upon those two separate Articles. It seems to me that this
might as well be determined right here, now, and at once. If there has
been no nev\" and additional evidence, other than that which is rebutting
in its character, as a matter of course that would j^reclude, as I sup-
pose, under the rule of evidence, farther testimony to be given in by the
Prosecution upon those Articles.

Mr. Williams. — We have a large number of witnesses — somewhere from

309

twenty to forty — out of which we can select and swear as many as it
would be decent to tire the Senate with.

Senator Irwin. — I hope the motion of the Senator from jSTevada will
not prevail. I hope Counsel will go on with all the evidence they have.
I do not want to see this matter cut off in any manner. I differ entirely
on this point, from the Senator. The Senate should sit patiently and
hear any evidence to be presented. I trust the Senator from Nevada
will withdraw his motion.

Senator Watt. — I am willing to sit here as long as I possibly can, to
hear evidence in this case. But it seems to me to be utterly useless and
utterly nonsensical for this Court to sit here from day to day and listen
to testimony which certainly can have no effect or bearing upon the
ultimate decision of the question before it. Now, so far as those two
Articles are concerned, it seems to me that this matter might as well be
determined now. I may be mistaken ; the Counsel who are conducting
the case can inform us on this matter, whether there is a probability of
other new evidence. If necessary, 1 certainly Avill sit here as long as
anybody.

Mr. Edi/erton. — -We desire to state, for the information of the Court,
that the Prosecution desire to offer the testimony of o\Aj one witness in
rebuttal, upon this point.

Mr. WHIiama. — Then I would inquire why the Court should not take
this order, as Courts of law always do. Where there are niimerous wit-
nesses upon a single point, it is the every day practice for a Judge to
inquire of a Counsel, " Is this all to the same point ?" " Yes." " Then
you have given, as the case stands under the evidence, enough upon that
subject. In the exercise of discretion as to whether we will hear more
from you hereafter, we will be governed by the necessity of it, as it
shall appear from the evidence on the other side."

Now that, it seems to me, would be perfectly fair. We would be wil-
ling to rest the matter, right where it is, with the understanding that
Counsel would not object, or with the intimation that, if they did object,
the Court would permit us to give such additional evidence as their evi-
dence may seem to make necessary. They, of course, can give nothing
but rebutting evidence ; they can give no more evidence on the main
charge.

The Presiding Officer. — The Counsel for the Prosecution state that they
have only the testimony of one witness to offer upon the point.

Mr. \ViUiamx. — We can get through on the point, then ; and I know
the gentlemen opposed to me will acquiesce in the j)roposition, for the
purpose of bringing that branch of the examination to a close. They
can do so, and the witnesses can be discharged ; otherwise, we shall be
obliged to keep them here.

Mr. Edijerton. — We have no objection to informing the Court what the
point we intend to offer testimony on is. We desire to prove at what
time it was that the Eespondent, Irvine, and Dudley, were eating together
in Leger's saloon, which was testified to by Mr. Irvine yesterday.

Mr^ Williams. — What time do you claim that it was ?

Mr. Edgerton. — We claim, may it please the Court, that it was during
the recess.

Mr. Williams. — Before the argument commenced ?

Mr. Edgerton. — No, Sir. They took a recess, I think, after two of the
Counsel had spoken.

Judge Hardj/.— Tod Eobinson and W. L. Dudley ?

31r. Edgerton. — Yes. After Judge Eobinson and W. L. Dudley had

310

spoken. Then it was that Irvine, the Eespondent, and "W. L. Dudley,
were eating and drinking in Leger's saloon, and not after the case was
finally submitted to the jury.

Mr. Williams. — I understand that is true.

Mr. EdgpTton. — We wish, further, to show the extent to which the
drinking was carried on.

Mr. Williams. — That question has already been gone into.

Mr. Edgerton. — Not by way of rebuttal.

Mr. Williams. — You cannot go over your case again by way of rebuttal.

Mr. Eflgerton. — May it please the Court, we have not put in testimony
as to number of times of drinking. Our testimony has been directed
generally to the condition of the Eespondent.

Senator Watt. — I believe I shall withdraw my motion. I leave the
responsibility with the Managers and the Counsel. If they think it is
proper to keep the Senate and Assembly in session, da}" after day, with-
out benefit or use, with a large number of witnesses in attendance, at an
expense to the State, let the responsibility rest with them. I withdraw
my motion.

Senator Quint. — I will take the responsibility of renewing the mo-
tion.

The Presiding Officer. — The Counsel now agree that the time of this
being at Leger's, or in the saloon, was a sjDecified time.

Mr. Williams. — With that announcement of Counsel, we will take the
responsibility of stopping here, without an assurance from the Senate
that Ave shall be permitted in the giving of further evidence, if neces-
sary, trusting to the liberality of the Senate to allow us to give further
evidence if it is necessarj".

The Presiding Officer. — IIow about your witnesses ? If you have forty
witnesses remaining unexamined on this point, they will cost the State
one hundred and twenty doUars per day, if you keep them here, expect-
ing the necessity for introducing them may arise.

3fr. Williams. — Then I will go further, and say that we will discharge
the witnesses upon this point. That will reduce the expenses largely, as
there are a great many witnesses here on this branch of the case.

31r. Highy. — I will state, if the Court please, that there are three wit-
nesses who have been called on behalf of the Prosecution, whom there
will be no further need of I will name them, as the Defence may require
them : S. B. Axtell, J. G. Severance, W. S. Coolidge.

Mr. Williams. — They may be discharged. We do not want them.

The Presiding Officer. — Mr. Adams may now be put on the stand.

3{r. Edgerton. — We do not desire to cross examine Mr. Adams.

Mr. Williams. — We will call another witness, then. We will call Mr.
Hanson. AVe want to recall him and ask him a question which we acci-j
dentally omitted.

Mr. Edgerton. — Is that the Marin witness ?

Mr. Williams. — Yes. He has been called before.

T. W. HANSON, RECALLED.

3fr. Williams. — You stated 3'ou were present at the Terry trial, and saw
the whole of it. You also stated that you are a lawyer. How long
have you practised there as a lawyer ?

A. — I have been there for the last eight years. I think I was first

311

there in eighteen hundred and forty-eight or eighteen hundred and forty-
nine.

Q.— Now, was there anything on that trial which struck you, as a law-
yer, as being out of the usual course of criminal trials ?

Mr. Campbell. — The witness has already been examined fully on the
subject of that trial.

3Ir. Williams. — That is true. I only ask the Court's indulgence.

Mr. Camphdl. — Well, go on.

Witness. — There was nothing that struck me as being unusual. Upon
the contrary, so far as I could judge, all the proceedings of that trial
were, I thought, conducted Avith a perfect degree of propriety and dio--
nity in every respect. I was present, and perhaps had a right to be
there — was called upon to be there. I had, from the fact of ni}- knowing
the people generally, in Marin County, volunteered my services to Mr.
Crittenden to select a jury in that case. I did so, because Mr. Critten-
den was not acquainted with the jurors, and I was. I was not acquainted
with Judge Terry, but I volunteered my services to Mr. Crittenden. Mr.
Crittenden was a stranger there and did not know the jurors.

Q. — You knew them, and therefore you helped him ?

A. — Yes.

Q. — Have you ever had any acquaintance with Judge Hardy, except
the casual one during that trial '(

A. — I never met with Judge Hardy before ; never spoke to him before.

Q. — Have you since ?

A. — I have met with him since. I have seen him once or twice since
then, at the bar of the Supreme Court. I have never sjjokeu to him
since that time.

Q. — State as to whether the jurors were examined by Mr. Hoge, for
the defence ?

Witness. — On their voir dire ?

Mr. WiUiam,s. — Yes.

Witness. — They were, to the best of my recollection.

Q. — Do you know any other facts that would further inform the Senate
as to this matter r' If so, state them.

A. — Nothing more than what I have stated : That I was present du-
ring the whole of the trial, and that, so far as I could judge, the pro-
ceedings generally were characterized with the utmost degree of regu-
larity and propriety.

CROSS EXAMINATION.

Mr. Edgerton. — How came you to volunteer in that case ?

A. — I was personall}^ acquainted with Mr. Crittenden and Mr. Hoge ;
and, although not personally acquainted with Judge Terry, I knew him by
reputation, and he being a stranger, I thought it was, perhaps, my duty
to do so. I did so, at any rate. I felt a little interest in the case ; so
far as to volunteer my assistance in order to get what I supposed to be a
jjroper jury.

Q. — Your sympathies were with the defence in that case, were they
not ?

A. I had no particular sympathy. If I had any at all, it was on that

side. I received no fee in the case.

312

EXAMINED BY THE CHAIR.

TJie Predding Officer. — I would like to ask Mr. Hanson a question or
two. Do you, Mr. Hanson, know a gentleman by the name of Benjamin
Miller, who was on that j ury ?
A.— I do.

Q. — Was he then under indictment for murder ?

A. — I think not, vSir. I think that the crime which he was charged with
having committed was committed on the seventh day of June ; I do
not exactly recollect. I think that he was tried, or had an examination
before Mr. Hughes, a magistrate there, and by him he was discharged;
and I think that the second examination did not take place before the
Grand Jury, until after the adjournment of the District Court. I re-
member the examination.

Q. — Were you aware, yourself, that he was charged with this crime ?
A. — Yes; I was present at the examination.
Q. — Do you know James Stafford, who was also on that jiuy ?
A.— Yes.

Q. — Was there no indictment against him ?
A. — There was not then.

Q. — Was he on the jury in the Pen Johnston case ?
A. — I can state that I know now that he was, because I have heard it
since. I do not recollect the names of any of the jurors in that case.

Q. — Were there any questions put by Counsel on either side to those
jurymen in the Terry trial, relating to their having formed any opinion
at all on the case ?

A. — I do not recollect. I think that the examination was made. The
questions were general in character as to whether they had formed or
expressed any opinion.

Q. — Do you recollect of any juror being asked that question by any
one?

A. — I think I recollect the question being put generally, as to whether
they had formed or expressed any opinion.

Q. — Can you particularize any jurymen of whom that question was
asked ?

A. — I cannot say that I can.
Q. — You cannot particularize any one juror ?
A. — I cannot.

Q. — You stated there was a recess, and that you went to your office.
How far is your office from the Court House ?
A. — I suppose one hundred yards.

Q. — Xow. do you recollect that you left that Court House at all ?
A. — I am not positive. I think we did. I recollect now, since hear-
ing Mr. Hoge say so, that we did see him in the Court House with watch
in hand, waiting.

Q. — Did the jurors leave the box at all ?
A. — I cannot swear whether they did or not.

Q. — Can you swear whether Mr. Hoge and Mr. Crittenden went to
your office ?

A. — I cannot swear whether Mr. Hoge and Mr. Crittenden went. I
know that at ten o'clock Mr. Hoge said, by his watch the hour had come.
Whether Mr. Crittenden was present, I do not know. I do distinctly
recollect, since Mr. Hoge stated it yesterday, that he was present after
the time Judge Hardy stated it wanted five minutes to ten, and that he
had had his watch in his hand waitino; for the time.

313

RE-DIRECT EXAMINATION.

Mr. Williams. — Yon were inquired of about two of these jurors — Ben-
jamin Miller and James Stafford. Now, do you know that Judge Hardy
ever heard an intimation from anybody that either of those men were
at all objectionable ?

A. — I have not the slightest idea that Judge Hardy ever heard any-
thing of the sort.

Q. — This was the first occasion on which Judge Hardy ever held a
Court there ?

A. — The first time ; the first time I had ever seen Judge Hardy.

Q. — Was Judge Hardy ever in that county before ?

A. — I do not think he ever was. He may have been, but I never
heard of it.

Senator Van I)i/ke. — Do I understand you, that you assisted the defence
in empanelling the jury ?

A.— I did.

Q. — Were you retained by the defence ?

A. — I said tbat I was acquainted with Mr. Crittenden; that he did not
know the people of that county, and I did ; and that I accordingly vol-
unteered my services to Mr. Crittenden and Mr. Hoge. I was not ac-
quainted with Judge Terry. I believe that any conversation between
us was without an introduction to him.

Q. — Were you acquainted with the sentiments of the jurors on that
question ?

A. — I think I was ; that I understood them. I should certainly have
advised that they should not be taken, if I had not felt tolerably confi-
dent about it. I will state in relation to Miller — I do not know as I have
stated it fully or not — that I cannot say with positive certainty that he
was not indicted until afterwards; but my best recollection is that he
was not indicted until after that session of the District Court.

Mr. Camphdl. — If the Court please, I think it no more than fair to the
Defence, that they should have the full benefit of any fact that exists.
When this man Miller was tried for murder, I acted as Counsel for the
prosecution ; and my recollection is very distinct that he was not indicted
until the term succeeding the term at which the Terry case was tried.
That is so.

Senator Perkins. — How was that jury selected — that is, how were they
called ? Were they selected by the Sheriff and summoned by him ?

A. — I think there was a list made (Tut of the names of the jurors.

Q. — Who made it out ?

A.— The Clerk of the Court.

Q.— Made it out for the Sheriff ?

A. — I cannot sa}* who made it out for the Sheriff. I know that the
Clerk of the Court had a list of the jui-ors.

Q. — Did you see that list before the day of the trial ?

A. — Oh yes. Sir.

Q. — You kneAV what the list was ?

A. — I knew what it was. I got a copy of it.

Q. — Were you consulted in the making up of that list of jurors ?

A. — ISTot all; not all, Sir. I counselled with Mr. Crittenden and Mr.
Hoge as to which of them should be selected.

Senator Perkins. — My question has reference to the venire.

Witness. — Oh, no. Of course I did not know who would be summoned
there as jurors.
^ 40

314

Senator Merritt. — In my county we always have the list made up by the
Judge. Sheriff, and Clerk ; different from the rule here in San Francisco.

Mr. Williams. — You say you saw the list made up. I ask if that was
the list of the jurors summoned ? Not those going to be summoned.

A. — The list of those summoned by the Sheriff. I went to the Sheriff
and got a copy of the list. I believe the jurors were drawn in the usual
manner.

Q. — What do you mean by that ?

A. — The way jurors are drawn in the District Court. Drawn in the
usual manner.

TESTIMOXY OF J. T. FARLEY.

J. T. Farley, being called and sworn, testified as follows :

Mr. Williams. — Did you have a conversation with, or did you hear a
conver.sation by. ]Mr. Brockway, on or about the tAventy-fifth of March
last, at Mokelumne Hill, about this prosecution against Judge Hardy, and
its origin ?

A. — I had a conversation with ifr. Brockway on the evening of the
twenty-fifth of March, at Mokelumne Hill. I did not hear the conversa-
tion between him and Colonel Bicknell. The conversation that I had
with Mr. Brockway took place at the Union Hotel, about ten or eleven
o'clock at night. Colonel Bicknell and myself had been to San Andres,
in Calaveras County, and returned to Mokelumne Hill to stay all night.
The question of dividing the District was then up. and was a subject of
remark in both counties. That was on the evening before the resolution
for the appointment of an Investigating Committee to inquire into
charges made against Judge Hardy, was introduced into the Assembly.
I asked Mr. Brockway how he stood on the division of the District. He
said that he was opposed to it.

Q. — Opposed to what ?

A. — Opposed to a division of the District. And I believe that I made
use of the remark to Mr. Brockway. at that time, rather inelegant, it
is true : -'Damn Judge Hardy I That was not the way to get revenge on
him; that if he had done anything wrong, he ought to be impeached,
and not to divide the District." Brockway said those were his sentiments,
and. at the same time, he used the same kind of inelegant language,
also : '• Impeach hell I He has dftne nothing to be impeached for."

Q. — What did Brockway say, if anything, about this being a persecu-
tion ?

A. — Immediateh' after that part of the conversation. I asked Mr.
Brockway. what was the origin of this feeling in Calaveras against Judge
Hardy; that I knew not of any such feeling in Amador. Brockway
said that it originated with the Dudleys and - Bill Higby" — to use his
own language — (meaning Mr. Higby here.) because they could not use
or control "Jim Hardy" — to again use his own language — on the bench;
that it was a damned "malignant " or - mean" persecution. He used
one of the words ; I do not now recollect the exact words. He said that
they could not use him, (Brockway.;

Q. — Your inquiry was as to the origin of this movement against Judge
Hardv ?

A.— Yes.

Q. — By the people of Calaveras ?

315

A. — B}" the people of Calaveras.

Q. — What did 3^011 state about the feeling in Amador?

A. — I said I knew not of any such feeling in Amador. I inquired of
BrockM^ay why that feeling existed in Calaveras, and he gave me the
language I have just used for the reason. I believe that he said further,
in connection with that, (I state this injustice to Mr. Brockway, and for
the purpose of giving the whole conversation,) that as long as Bill Dud-
ley and Hardy were friendly, it was all right ; that Bill got drunk at the
last term of the Court and thought Hardy had not acted right towards
him ; and that that was what it originated in.

CROSS EXAMINATION.

Mr. Edgcrton. — Did not you, in that conversation with Mr. Brockway,
oppose the movement to abolish the District, and use an expression of
this kind : " Damn Jim Hardy! He does a thousand things he has no
business to do, and ought to be impeached " ?

A. — No, Sir; I did not use that language. If 3'ou will permit me, I will
explain. I stated in that conversation, when I used the words, "Damn
Jim Hardy I " this : " If he has done anything wrong, let him be im-
peached." I then, in connection with that, said Jim Hardy did a great
man}' foolish things oflF the bench. But as for saying, " He does a thou-
sand things he ought to be impeached for," I did not say that. Brock-
way said Hardy had done nothing for which he could be impeached. I
said, " Let him be impeached, if he has done anything wrong, and is a
corrupt man."

TESTIMONY OF J. W. BICKNELL.

J. W. Bicknell, being called and sworn, testified as follows :

Mr. Williams. — You are County Clerk of Amador County ?

A.— Yes.

Q._About the twentj'-fifth of March last, at Mokclumne Hill, at the
time spoken of b}^ the last witness, did you have or hear a conversation
with or b}' Mr. Brockway?

A. — About that time, Sir. I do not recollect the day.

Q. — You heard the occasion mentioned ?

A. — Yes. I had several conversations during the evening, with Mr.
Brockway.

Q. — On that same evening ?

A. — Yes. We spent the evening together — Brockway and myself— at
the Union restaurant, or hotel.

Q. — You spent the evening with Bi'ockway ?

A. — Pretty much so. We were there together all the evening; got
there about sundown.

Q. — What did Brockway say to you about this prosecution, or about
the effort to abolish the District, on account of Judge Hardy?

A. — The conversation was just after a bill was introduced into the As-
sembly to abolish the District. I do not recollect the form of the con-
versation. During the conversation, Mr. Brockway told me that it was
a malicious thing, gotten up by Higby and the Dudleys— as I understood
it.

Q. — Malicious towards whom ?

316

A. — Towards Judge Hardy. I do not remember the language that he
used, exactly.

Q, — State what other expressions Mr. Brockway made, of a kindred
character.

A. — I do not recollect of anything. It was all pretty much to the
same effect — all our conversation.

Q. — Did Mr. Brockway use more than one expression of the same
kind ?

A. — He was talking about the injustice it would be to his county and
mine.

Q. — The injustice it would be to abolish the District ?

A.— Yes.

TESTIMONY OF J. R. ROBINSON.

J. E. Eobinson, being called and sworn, testified as follows :

Mr. WiUiams. — You are one of the plaintiffs in the suit of Robinson et
al. vs. Leger et al., uj^on the injunction bond ?

A. — Yes.

Q. — Was Mr. Brockway your Attorney in that case ?

A. — Yes ; he was.

Q. — jSTow, Sir, Mr. Brockway has testified about the effort to postpone
that case, and what was said about it. State, if you please, what Mr.
Brockway told you about postponing it, or continuing it ?

A. — Just before the case was called for trial, Mr. Brockway came to
me and asked me what I thought of continuing the case until the next
term. I told him that I wanted a trial then. He said, that from what
he had found out, it would be better for me to continue the case until the
next term of the Court. He said that there would be another Judge
there the next term of the Court ; and that if we should have another
trial there, before another Judge, the decision would not be apt to be re-
versed, and that we would avoid a new trial. He said he thought that
by the time the next Court came around, there would be a split between
Bill George and Mr. Leger.

Mr. CampbcU. — [Interrupting.] If this is for the purpose of contradict-
ing Mr. Brockway, I would state that Mr. Brockway has not been ex-
amined on this subject

3Ir. Williams. — I believe he has.

The Presiding Officer. — [To Counsel for the Prosecution.] Do you ob-
ject to it, gentlemen ?

Mr. Edgerton. — We object to it, on the ground that there is no predi-
cate for it.

Mr. Williams. — I will go along, without spending time looking this tes-
timony of Mr. Brockway up, and inquire as to something else, which
Counsel will recollect I did ask Mr. Brockway. What reason did Mr.
Brockway assign for no trial of the cause at that term ? Did he say
that he did not want to try the cause at that term because he could try
it before another Judge, at the next term?

A. — That was the reason he assigned.

317

IN REGARD TO THE FIFTEENTH ARTICLE.

Mr. Williams. — In relation to another charge, I propose to take the
same course which I adopted upon the charge of drunkenness; and that
is, the charge of disloyalty. We have examiil^l a good many witnesses.
I undei'stand that some witnesses are to be examined on the part of the
Prosecution, or are to be offered by way of rebuttal. We have here, I
believe, twenty witnesses, or something like that number —

Judf/e Ihirdy. — [Interrupting.] Thirty.

Mr. WiUiums. — Thirty, Judge Hardy says. All are upon the question
of disloyalty ; evidence of the same kind as we have been giving here for
a considerable time. I propose now to take the responsibility of advis-
ing Judge Hardy to stoj) here, upon that branch of the case. Knowing
that the evidence is amply sufficient as it stands, I take the responsibility
of stopping here ; and then if any evidence shall be given on the part of
the Prosecution which seems to require the examination of any more
witnesses on oxir side, I shall trust to the liberality of the Court to allow
me to examine them.

Mr. Campbell. — This way of throwing out feelers is somewhat unusual.
We can only say, in regard to this matter, that we desire the Counsel to
exhaust Ins case on that point now. We intend to introduce abundant
rebutting evidence on this branch. The Counsel can take what risks he
pleases, but we prefer that he should go on now.

Mr. Williams. — I was perfectly aware that course would be taken. I
was perfectly sure that Counsel, in the zealous prosecution of their case,
when we came to offer more proof, would object. Knowing that the ad-
mission of more proof on our part, if rendered necessary by an}^ evidence
they may introduce, is a matter entirely within the discretion of this
Court, with broad powers, as of every Court of ordinary common law
jurisdiction ; each Court having control of the evidence ; knowing this,
and antici])ating what Mr. Campbell has said just now, I propose to risk
my client's case, upon this branch, upon the fair discretion of the Court
when we come to ask for its exercise. I do this, for the purpose of short-
ening the trial ; for the course we take upon these two points will save
at least two days in the examination of witnesses.

Mr. Camphdl. — We expect to introduce abundant rebutting evidence
upon the subject.

Mr. Williams. — Introduce it ! Introduce it ! You have threatened us
with that, all the time.

Mr. Camphdl. — The question is, whether you shall introduce all your
evidence, or not ?

The Presiding Officer. — They need not introduce any more, unless they
choose.

AGREEMENT.

Mr. Williams handed the Counsel for the Prosecution the following :

It is agreed between the parties, that the case of The People ex rel.,
etc., vs. Squires, was tried before Judge Hardy, upon an agreed state
of facts, and upon that same agreed state of facts was appealed to the
Supreme Court, and there affirmed ; the whole case being in writing.

Mr. Campbell. — That was stated in the opening.

Mr. Williams. — Well, agree on it.

Mr. Edgerton. — [Examining the above.] I believe it is right.

318

Mr. Campbell. — [To Mr. "Williams.] You can read the decision, if you
want to.

Mr. Williams. — Probably it will not be necessarj-.

31r. Highij. — There is no doubt but the facts stated in this agreement
are true. [Examining it.]^

The Presiding Officer. — Where is the case repoi'ted ?

3Ir. Edgerton. — In 12, 13, 14, or 15 Cal. ; I forget which.

Mr. Williams. — And we agree that, if necessary', either party may refer
to the report.

With these suggestions and reservations, Mr. President, and Senators,
we rest our case with you.

3Ir. Camphell. — If the Court please, the case for the Defence has closed
much sooner than, from every reasonable inquiry, we had cause to be-
lieve it would. Our witnesses are not now in attendance, and it would
probably take from an hour to an hour and a half to get them here.

Mr. Edgerton. — They are all under subpoena, and have been in attend-
ance on the Court all the time.

Mr. Williams. — Cannot you examine somebody ? Do not let us take
recesses any more, if we can avoid it ; because it is exceedingly import-
ant that we should get along with this case.

Mr. Camphell. — We shall be able, I have no doubt, to close our side of
the case to-day. If we can take a recess for an hour, or an hour and a
half, we can get all our witnesses here, and go along regularly.

3/r. Williams. — If you have any witnesses in attendance, and can, as
you state, close your case in an hour and a half, we will have time to
bring in some rebutting evidence before the close of the day, if you go
on now.

Mr. Edgerton. — The Managers ask this time of the Court. That indul-
gence was given to the Defence.

Mr. Williams. — If what I have said be deemed an objection, I withdraw
it. We raise no objection to anything for the convenience of the Counsel.

A recess was accordingly taken until two p. m.

At the expiration of the recess, the Court reassembled.

CASE OF THE DEFENCE REOPENED.

J/r. Williams. — Mr. President : A very large number of witnesses have
been subpoenaed here upon our side, and I suppose quite a number upon
the side of tbe Prosecution, upon the question of the character of Allan
P. Dudley. AVe have announced that we closed our proof If we give
any farther evidence, it must be by the indulgence of the Court, unless
Counsel consent. It has been suggested that, inasmuch as it is well
known that we claim that Allan P. Dudley's testimony is already im-
peached, it would be well to introduce some witnesses on that subject,
and show how people of his own neighborhood regard him. We ask
the indulgence of the Court, to examine a few witnesses on the question
of his character. No witnesses have left, I believe, who have been sub-
poenaed to testify upon that point. It will occupy a little time, and
would be more satisfactory to some others than to ourselves, perhaps;
but in justice to the subject, I think it my duty to ask the Court to
give us this indulgence.

Mr. Edgerton. — Mr. President, shortly after the Court adjourned, Mr.
Dudley Avas apprized by Counsel for the Prosecution that no attempt
would be made to impeach him ; and his witnesses have been apprized.

319

Where they are now, I do not know. I have no doubt they have spread
themselves abroad over the city, with the understanding that they would
not be called upon. Whether we can get them here to meet this pro-
posed evidence, or not, I do not know, and, for that reason, we oppose
and object to the admission of it at tliis time. If we knew our witnesses
were here, we would have no possible objection to entering upon that in-
vestigation ; and, »Sir, the Counsel for the Defence certainly had ample
opportunity and time to reflect upon the subject of whether tliey would
attempt that kind of examination or not. It seems to us that the aijpli-
cation comes too late.

Mr. Williams. — Certainly, Sir ; none of the Prosecution's witnesses can
have gone since we announced that the case was closed, half an hour
ago. The only question is, whether we shall be precluded by that an-
nouncement ; and it is, of course, in the discretion of the Court, to open
our case again to a certain and limited extent.

Mr. Campbell. — It is true our witnesses have not left the city, but they
are scattered about, and it would be almost impossible to find them, if
we were to send and hunt them up.

Mr. Williams. — I do not understand the Counsel to say they have dis-
charged their witnesses upon any point.

Mr. Edgerton. — No, we do not say that. But those witnesses on this
particular branch of the case have been apprised that they would not be
wanted ; and probabl}^ they have spread themselves all over the city, and
would not be at our command when we want them. That is the only
opposition we make to it.

Mr. Williams. — We ask the exercise of the discretion of the Court to
indulge us to this extent.

The Presiding Officer stated the question to the Senate, for their de-
termination.

Mr. Edf/erton. — I would inquire if, by the rules, it is not required that
the Chair shall decide first?

The Presiding 0/ficer. — Yes, Sir. The Chair is of the opinion that this
indulgence ought not to be granted.

Mr. Williams. — Now we will proceed, if the Court please, to take the
opinion of the Court.

Senator Kutz. — I would inquire if the Counsel for the Prosecution have
told their witnesses on this point that in consequence of the close of the
Defence, they would not be wanted ?

Mr. Edgerton. — I will state, in reply to the Senator, that I informed Mr.
Dudley, and, I think, three witnesses, that that branch of the examina-
tion was waived by the Defence, and that they would not be wanted on
that point. Mr. Dudley is the man attending to that part, here.

Senator De Long. — It is impossible for your witnesses to have gone up
country; the boat does not leave until four.

Mr. Edgerton. — The only question is whether we would not have to
apply for an attachment, and they get off before it could be served.

Senator De Long.—l beg leave to say a single word. The Defence, a
few minutes after closing, ask simply for leave to reopen, to introduce
testimony on a single point — a matter for the discretion of the Court.
I never knew it denied in a Court of justice, in my life.

Mr. Camphell. — That is perfectly true, where there is any omission or
forgetfulness. But this has been a matter of deliberation on the part of
the Defence, as to whether they would or would not introduce any testi-
mony on that point. They determined not to do it, and, in consequence,

320

"we are not in position to meet it, as we would have been if such had not
been the result of their deliberation.

The Presiding Officer again stated the question to the Senate.

Senator Perkins. — I would like to know, first, whether the Defence have
done what they ought to have done to entitle them to this courtesy on
the part of the Court; and whether the Prosecution is to be prejucliced
in consequence of their witnesses having gone, and their not having been
apprized that this point would be raised, or this favor asked in this way.
Before I give a vote, I would like to know in regard to that. I do not
wish to give a vote for or against either party here, without understand-
ing the whole thing.

Senator Van Dyke. — I understand that if this be allowed by the Senate,
we would have to allow the Prosecution to obtain rebutting testimony, if
we have to wait a week for it. Witnesses may have left the city, and
the service of an attachment might, perhaps, take a week. We could
not, I understand, open the case for either party, Avithout allowing the
other to meet it. Under the circumstances, I do not think the Court
should do it.

Mr. Edgerton. — I am just apprized, through the Chairman of the Man-
agers, that Mr. Dudley has informed his witnesses that they would not
be wanted here at all, that they are scattered throughout the cit}', and
that some of them are going home by to-night'-s boat.

The President stated the question once more, and the Senate decided
to allow the Defence to reopen their case and introduce the proposed
evidence, by the following vote :

Ayes — Messrs. Banks, Burnell, Chamberlain, Crane, Denver, De Long,
Harvey, Harriman, Hathaway, Heaeock, Hill, Holden, Irwin, Nixon,
Oulton, Shurtleff, Warmcastle, and Williamson — 18.

Noes — Messrs. Gaskill, Kimball, Kutz, Lewis, Perkins, Porter, Pow-
ers, Quint, Soule, Van D^-ke — 10.

TESTIMONY TO IMPEACH A. P. DUDLEY.

Mr. WUliams. — Inasmuch as this is a question of impeachment, and
the case is opened to impeach this witness, I ask leave to call him and
to ask him a single question, before going into the examination as to his
general character. [Pausing.] No ; we will waive the application.

Mr. Edgerton. — I ask that Mr. Allan P. Dudley be permitted to come
within the bar of the Court, and sit, during this examination. I think
it is but just to him to allow it. It is possible he may suggest something
to the Counsel.

Mr. WUliams. — There is not the least objection to that, on our part,
certainly.

Mr. Edgerton's request was accordingly granted, and Mr. Dudley came
within the bar, and took a seat near the Counsel for the Prosecution.

3fr. WiUiams. — I would inquire of the Court whether there shall be
any limit to the number of Witnesses upon each side, on this question ?
This is a question wherein Com-ts usually do limit the witnesses.

321

The Presiding Officer. — I do not know of any limit, except a reasonable
one.

Mr. WiUiama. — There is no limit, unless the Court shall so intimate.

The Presidin;/ Officer. — I think not.

Senator Quint. — In order to settle tlie question, I move that the num-
ber be limited to four on each side.

Senator Perkins. — I hope no limit will be fixed, but that the Court will
let in all the testimony either side desires to introduce, if it takes three
months.

The Presiding Officer stated Senator Quint's motion.

Mr. Ed(jerton. — I hope that may not be determined on. Certainly, the
character of Mr. Dudley is of as much importance to him, as the charac-
ter of this Eespondent is to the Respondent. I would like to know by
what kind of mathematical rule this is to be determined. Four witnesses
against four witnesses ! Suppose, Sir, they bring in four to swear
they would not believe Mr. Dudley under oath ; and we then bring in
four who swear they would believe him — how does the matter stand
then?

Mr. Williams. — Then, I think, you would beat us, because the affirma-
tive is with us.

Senator Quint. — I simply wish to have the witnesses limited to a rea-
sonable number. I certainly have no desire to curtail the rights of any
party involved in this controversy, but it seems to me necessary to limit
the witnesses to some number.

Senator Crane. — I think the Court had better let them prove all they
can, on both sides.

The Presiding Officer. — The decision is against the motion, of course.

Senator Quint. — Then I move to limit them to ten. I think that is
reasonable.

Voice. — Limit them to seventy-five.

Mr. Wdlianis. — I do not wish to be understood as asking such an order.
I only ask whether the Court is inclined to limit this examination. I
do not ask that the witness whose character is attacked shall be limited,
or that we shall be limited to any number. But I know that in my prac-
tice for several years as District Attorney, where a question of this sort
has been started, I have always been met by the inquiry as to how many
witnesses there should be. A similar inquiry would be asked of the
other side ; and sometimes the Court would limit the number to six,
sometimes to ten, or some other number, on each side, because those six.
eight, or ten, could give the true reputation of a man as well as a hun-
dred. That has been my experience in criminal practice. Still, I do not
ask such limitation now!^ But we have been a good while trying this
case. The Court will bear me witness that we have done everything we
could to shorten it. We cut it off a good deal this morning ; and I now
simply make the inquiry whetlier the Court is inclined to limit this ex-
amination on both sides, or not ; while I am entirely indifferent whether
it is limited or unlimited.

The Presidinij Officer. — The Chair has decided the matter. Call your
witnesses.

Mr. Williams. — If your Honor please, I will make the suggestion,
merely for the purpose of obtaining the opinion of the Court, that the
examination be limited to — say, eight witnesses on each side.

Mr. Edgerton. — We object to it.

Mr. Williams. — It is objected to, and I will ask the opinion of the Court
41

322

upon it. I wish to accommodate myself entirely to the wishes of the
members of the Court.

The Presiding Officer. — I deny the application for a limitation, leaving
the Court to decide upon it. Senators inclined to limit the number of
witnesses on each side to eight, will say Aye when their names are called.
Those opposed will say No. The Secretary will call the roll.

Mr. Williams. — I have suggested eight, as the number. I will suggest
ten, or any other number, if the opposite Counsel desire it.

The roll was called, and the Senate refused to limit the number of wit-
nesses, by the following vote :

Ayes — Messrs. Gaskill, Harriman, Quint, Soule, and Watt — 5.

Noes — Messrs. Banks, Burnell, Chamberlain, Crane, Harvey, Hatha-
way, Heacock, Hill, Holden, Kimball, Kutz, jSTixon, Oulton, Perkins,
Porter, Powers, Shurtleff, Warmcastle, Williamson, Gallagher, and Van
Dyke— 21.

Mr. Williams. — We will first call a list of witnesses, and have them all
sworn together.

[Mr. Williams called the names of eleven witnesses, and as many of
them as were present came forward and were sworn.]

TESTIMONY OF A. H. ROSE.

A. H. Eose, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A.— I live in Amador County, at Amador Village.

Q. — Do you know Allan P. Dudley ?

A. — I know him very well.

Q. — How long have you known him ?

A. — I have known him by rej)utation, about nine years ; personally,
six or seven years.

Q. — Do you know his reputation for truth and veracity ?

A.— I do.

Q. — Is it good, or bad ?

A.— Bad.

Q. — From his reputation for truth and veracity, would you believe him
under oath ?

A. — 1 would not.

CROSS EXAMINATION.

Mr. Edgerton. — How long have you personally known Mr. Dudley ?
A. — Six or seven years.

Where does Mr. Dudley live ?
— He lives at Mokelumne Hill.
— How long has he lived there ?

— Well, he has lived there ever since I have known him.
— How far is Mokelumne Hill from Amador Village, where you live ?
— It is eleven or twelve miles.
— In what County is Mokelumne Hill ?
— Calaveras County.

323

Q. — Have you ever been involved in any litigation '(

A. — I have.

Q. — Who was the Attoi^ney against you ? Has Mr. Allan P. Dudley
ever been the Attorney against you '{

A. — I think not. Not that I know of.

Q. — Were you not a party in a case in Amador County, in which one
Eose was a defendant, where the timbering of a shaft was the subject
of litigation ?

A. — Guthrie vs. Eose. I was not. My brother was a party.

Q. — Were you a party in interest in that case ? Had you any interest
in it, outside of the record ?

A. — Yes.

Q. — You had an interest in that litigation ?

A.— I think I had.

Q. — AYas Mr. Allan P. Dudley Counsel against your brother, and against
you, in that case ?

A.— Yes.

Q. — Was it a pretty severe trial ?

A. — No ; I did not consider it a very severe trial. There was but lit-
tle involved.

Q. — Which party prevailed in that case ?

A.— The plaintiff.

Q. — Dudley's client beat your party ?

A.— Yes.

Q. — Did you vote for Dudley as Breckinridge Presidential Elector,
two years ago ?

A.— I did.

Q. — How long has Mr. Dudley had this bad character for truth and
veracity ?

A. — Ever since I have known him.

Q. — That is, nine years '(

A. — I have known him by reputation, nine years; personally, six or
seven years.

A Senator. — Do you say you voted for him for Presidential Elector ?

A. — I suppose I did, if he was an Elector on the Breckinridge ticket.
I voted the Breckinridge Electoral ticket, on which I understood he was
a candidate.

RE-DIRECT EXAMINATION,

Mr. Wi'Uiams. — What have been your means for knowing Allan P. Dud-
ley's reputation ?

Mr. Camphell. — I object to that.

Mr. Williams. — We have not started this question of the witness' means
of knowing, and probably could not be permitted to in the outset, until
they had raised it themselves. But now it seems to me that it is proper
for us to be allowed to show that the witness has had means of knowing;
that he is a great deal of his time, for instance, if such is the fact, at
Mokelumne Hill ; that he mingles much amongst the neighbors of Dud-
ley; and that, although he lives in an adjoining county, twelve miles off,
he knows Dudley's reiDutation, and what peoj)le say of him, as well as if
he lived next door to him.

Mr. Edgerton. — The witness says he knows the reputation of Mr. Dud-
ley; I do not suppose it makes any difference how he knows it.

Mr. Williams. — Very well. If you don't question his knowledge, let it

go-

324

Mr. Edgerton. — We question it by testimony.
Witness. — Am I considered, discharged from :
Mr. Williams, — Yesj SO far as we are concerned.

Witness. — Am I considered discharged from further attendance ?

TESTIMONY OF B. KINCAID.

B. Kincaid, being called and sworn, testified as follows:

Mr. Williams. — Where do 3'ou live ?

A. — At Mokelumne Hill, Calaveras County.

Q. — How long have you lived there ?

A. — About ten years.

Q. — Do you know Allan P. Dudley ?

A.— Yes.

Q. — Do 3^ou know his reputation for truth and veracity in the neigh-
borhood where he lives ?

A. — Yes; I think so.

Q. — How long have you known Dudley, and his reputation ?

A. — Well, some seven or eight years ; seven years.

Q. — From what is generally said of him, what is his character for truth
and veracity ? Good, or bad ?

A. — It is not very good.

Q. — From his reputation for truth and veracity, would you believe him
on oath ?

Witness. — Outside of his reputation?

Mr. Williams. — No. From what people say of him, would you believe
him on oath ?

A, — Well, outside of his reputation I know nothing of him that would
induce me to believe that he would make a false oath.

Mr. Williams. — JSTow then, what do you say from what people say of
him ? From what you hear said of Mr. Dudley generally, would you
believe him on oath? I mean, taking his reputation as a guide solely,
without reference to your knowledge of him.

A. — Well, it would leave considerable doubts with me, at least.

Q. — Cannot you answer a little more strongly, whether you would be-
lieve him, or would not ?

A. — I do not know anything outside of his general reputation.

Mr. Williams. — [Interrupting.] That is the very point. I have no
right to ask you what you know about him, personally ; but I ask you
this : From what people say of Mr. Dudley in the neighborhood where
he lives — taking that as a sole guide, supposing you had never seen him
— would you believe him on oath ?

A. — I should doubt, some. I could not say, positively, that I would not
believe him, because I have not sufficient reasons, outside of his reputa-
tion, to say so.

Mr. Williams. — I ask you again to exclude all you know about him ex-
cept his reputation, and say whether from that reputation, if you
knew nothing else about him, you would believe him on oath ?

A. — I have my doubts about it.

325

CROSS EXAMINATION.

Mr. Edgerton. — When did you first begin to hear Mr. Dudlej^'s charac-
ter canvassed in this particular ?

A. — I do not know when. Soon after I became acquainted with him ;
about a year or two — at least, one or two years.

Q. — Now, in what particular have you heard his character spoken of ?
In reference to his telling stories on the stump, or something of that
kind ? Is not that about all ?

A. — I could not particularize any time or place, or any particular thing;
but it has generally been the case throughout the neighborhood there,
amongst his neighbors, if anything was said, and the community there
knew he said it, that they placed no confidence in it. From the reputa-
tion that he had, people did not believe anything, if they heard that it
came from him ; did not generally put any confidence in it.

Q. — In what connection was this ? Was it not in connection with Mr.
Dudley's stump speeches, and the stories he told on the stump — matters
of levity, and of no importance whatever?

A. — General conversation, whatever it might be; this thing, or that,
or the other. I did not particularize whether it was in relation to stump
speaking, or any other kind of conversation. As a general thing, that is
the impression of the people there, as I understand it.

Q. — Before this Prosecution commenced, did you ever hear Mr. Dud-
ley's character seriously discussed ? Did you ever hear any man say, for
instance, that he would not believe Al. Dudley under oath ?

A. — I think I have.

Q._Who ?

A. — I could not state any particular man.

Q. — Think, now. a moment. Can you state here the name of a man
whom you ever heard say that ?

A. — Yes. I can tell 3'ou of one.

Q. — Who is it, and Avhere was it ?

A. — I will think of his name in a minute. [Eeflecting.] It is Mr.
Cosgrove — Aleck Cosgrove.

Q. — Whei'e does he live ?

A. — Just below Mokeluninc Hill.

Q. — Do you not know the fact that Mr. Cosgrove and Mr. Dudley have
been at enmity with each other; that Cosgrove has had lawsuits, and
that Dudley has been opposed to his interests ?

A. — I heard him (Cosgrove) say that he had had a lawsuit. Yes.

Q. — And Dudley was opposing his interests ?

A.— Yes.

Q. — Did you not vote for Dudley, on the Breckinridge ticket, for Elec-
tor ?

A. — I think like enough I did.

Q. — Were you not in the habit of serenading him ?

A.— No, Sir ; I think not.

Q. — Did not 3'OU get up a serenade to him one night ?

A. — I think not.

Q. — Were not you a party to the sei^enade ?

A.— No, Sir.

Q. — You were not in the crowd ?

A. — No, Sir.

Q. AYere you present at Mokelumne Hill when Judge Shattuck, one

326

of the Breckinridge candidates for Congress, made a speech there last
summer ?

A. — I do not recollect whether I was or not.

Q. — Can you recollect being on the stand at Mokelumne Hill at any-
time when Mr. Dudley made a speech there ?

A. — Perhaps I was.

Q. — Do you recollect of leaving the stand while Mr. Dudley was
speaking ?

A. — I do not recollect that I did.

Q. — Think a minute. I want to ascertain whether you recollect leav-
ing the stand while Mr. Dudley was speaking, and the cause ?

A. — I have no recollection.

Q. — Did you not assign as a reason, that you went on the stand with
Dudley, but that he was making a Union speech, and you would not
stay there and hear it ?

A. — I did not. Never, in my life ; never.

Q. — Are you friendly to Mr. Dudley ?

A. — Yes ; I am. I have no cause to be otherwise.

Q. — Now, will you state whether you ever heard anj^body talking
about Mr. Dudley's truth and veracity, and the credit that was to be at-
tached to him, who seriously said that they would not believe him under
oath ? or that they doubted his word, and would not take his Avord as
quickly as any other man's ? Has not the character, in this respect,
which you have ascribed to him, been entirely in reference to stories
narrated in moments of levity, or one imputed to him by somebody who
bas had a difficulty with him ?

A. — I cannot state any particular time or thing that I can call to
mind, but that is the genei-al reputation.

Q. — But is not that I have spoken of, the material out of which that
genei'al reputation is made up ?

A. — I do not know.

Q. — Did you ever hear any serious charge of misconduct made against
him anywhere ?

A. — I did not.

RE-DIRECT EXAMINATION.

Mr. Williams. — You were asked whether you ever heard a charge of
serious misconduct against Mr. Dudley. Did you ever hear a charge
of his attempting to bribe an officer when summoning a jmy in one of
his cases?
■ A. — I do not recollect whether I ever did or not. I do not recollect.

Q. — Did you ever hear of his having offered Tom Magee fifty dollars
to summon certain men on a jurj^?

A. — I think not. Not that I recollect of.

TESTIMONY OP E. D. SAWYER.

E. D. Sawyer, being called and sworn, testified as follows : ■

Mr. Williams. — You reside in San Francisco, and are a practising law-
yer?

A.— Yes.

Q. — How long have you practised in that profession, in all ?

327

A. — Between ten and eleven years in this State. I came here in eight-
een hundred and fifty-one.

Q. — Where have you lived in this State before your present residence in
San Francisco ?

A. — I have resided at Mokelunine Hill, and Murphy's, Calaveras Coun-
ty. I went to Mokelunine Hill in August or September, I think the lat-
ter part of August, eighteen hundred and fifty-one, and resided there and
at Murphy's until about the first of June, eighteen hundred and fift3^-four,
when I went to the Atlantic States, and returned and settled here. I
was absent from Mokoluinue Hill, on some business, during the winter of
eiTjhteen hundred and fifty-three or eighteen hundred and fifty-four, but
my residence was then still at Calaveras County.

Q. — Do you know Allan P. Dudley ?

A.— Yes.

Q. — How long have you known him ?

A. — I think I first became acquainted with him in the fall of eighteen
hundred and fifty-two, when he first came to Mokelunine Hill, Calaveras
County. It may have been earlier, or it may have been later, but I
think it was the fall of eighteen hundred and fiftj^-two.

Q. — Do you know his general reputation there for truth ?

A. — At the time I resided there, I did.

Q._What was it ?

A. — It was not good.

Q. — State whether it was good, or bad.

A. — It was bad.

Q. — From his general reputation for truth, would you believe him on
oath ?

A. — I would not.

CROSS EXAMINATION.

Mr. Edyerton. — When did you say you left Mokelumne Hill ?

A. — I left Mokelunine Hill — I was a member of the Senate in the win-
ter of eighteen hundred and fifty-three and eighteen hundred and fifty-
four, and returned to the county in May, eighteen hundred and fifty-four,
after the session of the Legislature was over; and, in eighteen hundred
and fifty-four, I left for the Atlantic States, on a visit. 1 did not know
at that time whether I should give up my residence in Calaveras County
or not. On my return, I settled here, and have lived here since.

Q. — Then you have not been back to Mokelunine Hill since eighteen
hundred and fifty-four ?

A. — I have not.

Q. — Do you know what Mr. Dudley's reputation up there is now, and
has been since that time ?

A. — I would not undertake to say.

Q. — Did j-^ou ever have any difficulty with Mr. Dudley while you were
there ?

A.— ^^o.

Q. — Have you any prejudice against him ?

A. — No, Sir. - I am very sorry to be called on to appear against him
here.

Q. — Who did j^ou ever hear speak against Mr. Dudley ?

A. — Well, to particularize is always a little difficult when a man's repu-
tation is called in question ; but I have heard it from a great many mem-
bers of the community where he resided, and where I resided at that
time.

328

TESTIMONY OP W. H. NELSON.

W. H. Nelson, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — At Jackson, Amador County.

Q. — That is about twelve miles from Mokelumne Hill, is it not ?

A. — About five miles this side.

Q. — How long have you lived in Amador ?

A. — Since eighteen hundred and fifty-two.

Q. — What has been your acquaintance with the community at Mokel-
umne Hill ?

A. — I lived there in eighteen hundred and forty-nine, eighteen hun-
dred and fifty, and eighteen hundred and fifty-one ; that is, in Calaveras
County, not particularly at Mokelumne Hill. I was changing to differ-
ent points.

Q. — What was the extent of your acquaintance there at Mokelumne
Hill ? Are you acquainted with the people at Mokelumne Hill, pretty
generally ?

A. — Pi'etty much all of them.

Q. — State whether, since your residence in Amador County, you have
been frequently at Mokelumne Hill ?

A.— Yes.

Q. — Have you heard Allan P. Dudley talked about, there ?

A. — Well, I know him very well, and have heard people talk of him.

Q. — Have you heard people sjjeak of him at Mokelumne Hill ?

A. — To be sure I have.

Q. — Do you know what his general reputation for truth and vera-
city is, at Mokelumne Hill ?

A.— Yes.

Q. — What is his reputation at Mokelumne Hill, for truth and veracity ?
Good, or bad ?

Witness. — You are alluding only to Mokelumne Hill ?

Mr. Williams. — To the county generally, and the community around
where he lives ; those who know him ?

Witness. — Well, so far as Mokelumne Hill is concerned, I am not as
well acquainted with Mr. Dudley's reputation there as I am with his
reputation in Amador.

Q. — Well, Amador is only five miles off. Is he well known there ?

A. — Yer}" well known there, indeed.

Q. — What is his reputation there ?

A. — Not very good. v

Q. — How good is it, if it is not very good ? Is it good or bad ?

A. — It is presumed to be bad.

Q. — From his reputation among those who know him, from what people
say of him, not what you know of him yourself, would you believe him
on oath ?

A. — Well, Sir, from his general reputation, and the public ojDinion of
the people, I would not. That is, in a case of this sort; a politician
move.

Q. — Well, what kind of a case would you believe him in ? You say
you would not in a " political move." What are your politics ?

A. — I voted for Stephen A. Douglas -and the whole ticket ; and for
John Conness and the whole ticket, and worked for it.

Q. — Outside of political questions, from Dudley's general reputation.

329

would you believe him upon oath ? Would you have confidence in his
statement ?

A. — "Well, Sir, I could not say that I would.

CROSS EXAMINATION.

Mr. Edgerton. — Mr. Dudley is a practising lawyer at Mokelumne Hill,
is he not ?

A. — Yes, Sir.

Q. — How long has he been in practice there ?

A. — Since eighteen hundred and fift3^-three, I think.

Q. — He has had a very large practice there, has he not ?

A. — Yes ; he has had a very good practice there.

Q. — He has yet, has he not ?

A. — I do not know what his practice is.

Q. — Do you not know that the very largest and wealthiest interests
of that county have been entrusted to Mr. Dudl-ey, as a lawyer ?

A. — No, Sir; I do not know of that.

Q. — But do not you know that Mr. Dudley has been in full practice ?

A.— Yes.

Q. — Ever since you knew him first ?

A.— Yes.

Q. — Has he not been very influential in Calaveras County ?

A. — Yes ; with some people.

Q. — Has he not had a large vote when he ran there ?

A. — I never knew him to run but once, and then he got badly de-
feated.

Q. — Did he not run ahead of his ticket ?

A. — He may ; but if he did, I do not recollect it.

Q. — Has he practised in Amador County?

A.— Yes.

Q. — Has he had a good practice there ?

A. — Well, he has had cases there, frequently. I was Deputy Sheriff
there for four years, and Mr. Dudley had cases there, occasionally.

Q. — Heavy cases ? Has he not been employed in many very impor-
tant cases in that county i*

A. — Well, he has been employed there in some murder cases, and cases
of that description ; and might have had some important cases, but I do
not recollect.

RE-DIRECT EXAMINATION.

Mr. Williams.— In regard to Mr. Dudley's practice, has he not had for
a partner a gentleman who stands very high in the estimation of the
people, as an "honorable, able, and reliable man ?

Mr. Campbell— Thai we object to, as having nothing to do with this
case.

Mr. Williams.— It has to the questions asked, however. They have
been attempting to prove, may it please the Court, that Mr. Dudley has
had a large practice, and thereby show that the people confide in him.
We propose to show that the people do not confide in him, but that they
confide in his partner, Mr. Adams, who has been on the stand ; and the
Court has seen both.

Mr. Camphell. — Well, go on.

Mr. Edgerton. — We do not object to the question. We withdraw our
objection.

330

Mr. Williams. — [To witness.] Then answer the question, whether Mr.
Dudley has had a partner, (Mr. Adams,) a very reliable man, one in
whom the community confide fully ?

Witness. — What is that ?

Mr. Williams. — I ask you whether Dudley has had, for a portion of the
time, if not all, a partner, in Mr. Adams, in whom the community have
entire confidence ?

A. — Yes ; to the utmost.

Mr. Edfjerton. — How long has Mr. Dudley been in partnership with
Mr. Adams ?

A. — I think about four years, if I recollect right. I am not positive,
but I think four years.

TESTIMONY OF 0. B. AVALINE.

O. B. Avaline, being called and sworn, testified as follows

Mr. Williams. — Where do you live ?
A. — Folsom, Sacramento County.

Did you ever live in Calaveras County ?
—Yes.
—At Mokelumne Hill ?

Yes.

Did you ever live in Amador County ?

Yes.

At Jackson ?

Yes.
— When did you live in those two places — Jackson and Mokelumne

Q-

Hill?

A. — I lived in Jackson from eighteen hundred and fifty-five up to eight-
een hundred and sixty, I think ; and for a year after that, I lived in
Mokelumne Hill.

Q. — AVhen did you live at Mokelumne Hill ?

A. — During the year eighteen hundred and sixty.

Q. — Do you know Allan P. Dudley ?

A.— Yes.

Q. — Do you know his reputation in those two places, among those
who know him, for truth and veracity ?

A.— Yes.

Q. — What is that reputation for truth and veracity ? Is it good, or
bad ?

A. — Well, Dudley has the reputation of being the biggest liar in that
part of the county.

Q. — From his reputation, which you have mentioned, would you be-
lieve him on oath ?

A. — That would depend on circumstances, Sir, whether I would believe
him on oath, or not.

Q. — On a general question, would you ?

A. — If it was Mr. Dudley's interest to tell the truth, I would believe
him.

Q. — If it was not his interest, would you believe him?

A. — If it was not his interest, I would not believe him.

Q. — What was your business at Jackson and Mokelumne Hill?

A. — Publishing a newspaper.

331

CROSS EXAMINATION.

Mr. Erigerton. — Have you had any difficulty with Dudley ?

A. — Not at all.

Q. — ISTone whatever ?

A. — Not that I know of.

Q. — Have you been on speaking terms with him the last year or six
months?

A. — I have always been so, since I have known him.

Q. — You have no i:)rcjudicc or animosity towards him ?

A. — None at all, only that he will lie ; that is all.

Q. — That is all the prejudice you have?

A. — That is all. Othcrways, he is a good fellow.

Q. — Did you meet Mr. Dudley at the Euss House, last night ?

A. — I did ; and have nearly every day since 1 have been here.

Q. — Did you have any difficulty with him there ?

A. — None at all. Sir.

Q. — Did you use any provoking, insulting language, to Mr. Dudley last
night, at the Euss House ?

A. — I think not; I do not remember that I did.

Q. — Did you to any one else, in his presence, use language, concerning
him ?

A. — I did to some gentleman. Dudley was in the house, I believe; I
do not know whether he heard me or not.

Q. — What did you say of him ?

A. — I do not remember what it was. I was speaking of him ; I do not
remember what I did say.

Q. — Irritating, insulting language, was it not?

A. — Well, it might have been.

Q. — Was it said in Mr. Dudley's hearing ? or, did you intend that he
should hear it ?

A. — He was in the room. I do not know whether he heard it or not.

Q. — Did you intend that he should hear it ?

A. — I had no objection to his hearing it, at all.

Q. — Did you not use the language you did, for the purpose of provok-
ing a quarrel with Mr. Dudley ?

A. — No ; I cannot say that I did, particularly.

Q. — What did you do it for ?

A. — Because I happened to feel like it.

Q. — Will you state whether or not you were armed last night, when
you used this language ?

A. — Not any more than I always am.

Q. — I do not ask you how you are always ; but, were you not at that
time, when you used this language, armed, ready, cocked and primed,
for a fight ?

A. — Well, I expect I was a little "cocked."

Q. — And were a little on the fight, were you not ?

A. — Well, yes ; I expect I was ; felt a little hke it, perhaps.

Q. — Do you know anything about a suit in Calaveras County, in which
Colonel' Eust was a part}^ plaintiff", and you were defendant ?

A. — I know of the Colonel being in it, uj) there.

Q. — Were you a party to that suit ?

A.— Yes.

Q. — Plaintiff", or defendant ?

A. — I was defendant.

332

Q. — Allan P. Dudley was Eust's Attorney, was he not ?

A. — Not that I am aware of.

Q. — Was not he one of his Attorneys ?

A. — He might have been.

Q. — Did not he appear as Counsel in the case ?

A. — I think, to ray knowledge, I never saw him.

Q. — Did you not know of his being connected with the case ? And
did not you have some feeling about it ?

A. — Mr. Dudley said to me that he would not be connected with either
side of that case.

Q. — Or any other case in which you had an interest ?

A. — Not that I am aware of.

Q. — Did not you go to Allan P. Dudley and solicit his services in that
case before spoken of?

A.— No.

Q. — Or any other case ?

A.— No.

Q. — I understood you to say that you were armed last night, when
you used this language ?

A. — I had this cane.

Q. — Anything else ?

A.— Yes.

Q.— What ?

A.— A knife.

Q. — Anything else ? Any kind of ordnance ?

A. — Nothing at all ; only a small knife which I carry.

Q. — How small ?

A. — It is a dirk knife.

Q. — Arkansas size ?

A. — Oh, no. Small.

Q. — Have you got it with you ?

A.— Yes.

Qt — Will you let us see it ?

Mr. Williams. — You can do as you like about that.

Witness. — I do not choose to show it.

Mr. Edgerton. — About how large is it ?

A. — The blade is four inches.

Q. — Were that knife and that cane all the weapons you had upon
you?

A.— Yes.

Q. — What kind of a cane is that ? A loaded cane, or a sword cane ?

A. — A loaded cane ; no sword.

Mr. Williams. — You had not any artillery around ?

A.— No, Sir.

Mr. Edgerton. — Flying artillery, General ?

Mr. Williams. — Either that or any other.

TESTIMONY OF TERENCE MASTERSON.

Terence Masterson, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?
A. — In Jackson, Amador County.

ooo

Q. — How long have you lived there ?

A. — I went there first in eighteen hundred and fifty -three ; and have
lived there steadily since eighteen hundred and fifty-six.

Q. — Jackson has been said to be five miles from Mokelumne Hill. Are
the people of Jackson and Mokelumne Hill in constant intercommunica-
tion, so that the people of each know the people of the other town as
well as of their own ?

A. — Yes. I have been keeping a livery stable there, and have been to
Mokelumne Hill oftener, perhaps, than any other resident of the town.

Q. — Do you know Allan P. Dudley?

A.— I do.

Q. — Do you know his reputation for truth and veracity in the commu-
nity where he is known ?

A.— Yes.

Q. — At Jackson and Mokelumne Hill ?

A.— Yes.

Q. — Is his reputation for truth and veracity good, or bad ?

A. — It is bad.

Q. — From his reputation, from what people say of him there, who
know him, would you believe him on oath ?

A. — From his reputation, I should not, if I did not know him. I
mean to say that he has never done anything to me, or anything that I
myself could say was wrong.

Q. — You do not know any acts of his that would make you disbelieve
him ?

A.— Xo.

Q. — Y^ou have spoken from his general reputation ; from what people
' say of him?

A. — I have.

CROSS EXAMINATION.

Mr. Edgerton. — Are you on pretty friendly terms with Judge Hardy ?

A. — I am.

Q. — Have you taken a very warm interest in the Defence in this case?

A. — I have taken no interest in it, any more than to appear here as a
witness.

Q. — Have you spent no money to procure other witnesses here?

A. — Not a cent.

Q. — You have spent no money in and about the Defence, here ?

A. — No ; unless it be what I spent in paying my way down, and my
expenses here.

TESTIMONY OF WM. F. MOSES.

William F. Moses, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — At Mokelumne Hill.

Q. — How long have you lived there ?

A. — I have lived there eight years.

Q. — Do you know Allan P. Dudley ?

A.— Yes.

Q. — How long have you known him ?

A. — Well, I have known him most of the time since I have been there.

334

It might have been a few months, after I went there, before I got ac-
quainted with him.

Q. — Do you know his reputation there — that is, what people generally
say of him — on the subject of truth and veracity?

A. — Yes.

Q. — Fi'om what people say of him there, is his character for truth and
veracity good, or bad?

A. — Very bad, Sir.

Q. — From that reputation which you hear from those who know him,
would 3'ou believe hiui on his oath ?

A. — I would not.

CROSS EXAMINATION.

Mr. Edgerton. — Have you taken a very active interest in the defence of
Judge Hardy ?

A. — No. I came down here as a witness. I came down on the
twenty-sixth day of last month.

Q. — Have jow expended any money for him in this case ?

A. — No ; I had none to spend.

Q. — Have not you taken a very active part in the procuring of evi-
dence and testimony here ?

A. — No ; I have not.

Q. — Have you not been actuated by feelings very hostile to this Prose-
cution ?

A.— No.

Q. — Have you not so expressed yourself?

Mr. Witliams. — If you want the witness to state what he has said, or
has not said, state when and where.

Mr. Edgerton. — Well, I will say on the sixth of May, eighteen hundred
and sixty-two. which would be last night, at the Russ House. Did you
not then and there give expression to some feeling in reference to this
Prosecution ?

A. — No, Sir: I did not.

Q. — I will ask you, directly, if you did not use this language there :
That all the witnesses from Mokelumne Hill, in this case, for the Prose-
cution, were thieving sons of bitches?

A. — No, Sir; I did not.

Q. — You did not use that language in the presence of John Hansom,
Dr. Holbrook, and others ?

A. — No. I stated this : I said that Dudley came down here to try to
have me removed from my situation, and I thought that he was what
you say.

Mr. Wdhmns. — That Dudlev was that ?

A.— Yes.

Mr. Edgerton. — Did you tell him so at the Euss House?

A. — I may or may not. He was present, I believe.

Q. — Do you stop at the Euss House ?

A.— Yes.

Q. — How came you to tell Dudley that ?

A. — I did not tell him, directly. He was standing there, and I said
that, because I felt aggrieved. I was always a warm friend of his.

Q- — Y"ou said it for the purjjose of his hearing it?

A. — Yes ; I suppose I did.

Q. — You wanted him to hear it?

A. — Well, I suppose I did.

(

335

Q. — You were armed, were you not ?

A. — No. Only a whalebone stick.

Q. — Who was with you ?

A. — I was alone ; went in to wait for dinner.

Q- — Do you know Avaline, who was on the stand a little while ago?

A. — Yes.

Q. — Was he with you ?

A. — He came with two other friends of mine, and I followed them
out.

Q. — Was he present when you made use of this language ?

A. — No. I did not see him.

Q. — What X)Osition do you speak of, that Dudley tried to have you
removed from ?

A. — I am Telegraph Operator at Mokelumne Hill. Dudley came
down and tried to influence people to have me removed from my office.

Q._VVhen?

A. — The last time he was here.

Q. — When he was here a witness before the House Committee ?

A.— Yes.

Q. — You saj' that Dudley went to the telegraph company, or some-
body, to get you removed '(

A. — I do not know who he went to.

Q. — How do you know he went to anybody ?

A. — His brother, W. L. Dudley, told me so ; told me that he had to
use his influence to stop him from doing it.

Q. — Whei-c was it that W. L. Dudley told you this ?

A. — Over Blossom's saloon.

Q.— When ?

A. — About four or five days ago, I believe.

Q. — Who was present?

A. — I do not know as any one was, without it was kSpiers. I do not
know whether he was present, or not.

Q. — Think, and state whether you can state that Spiers was there
when W. L. Dudley told you this.

A. — 1 do not know. He was in the room, but whether when Dudley
was present, I cannot tell.

Q._Who did W. L. Dudley tell you A. P Dudley had been to?

A. — He did not tell me.

Q. — To what company ?

A. — The State Telegraph Company.

Q. — For the purpose of getting you removed from your position at
Mokelumne Hill ?

A. — Yes. He said A. P. Dudley, and another gentleman — he would
not tell me who — had done this.

Q. — You say you had been a wamn friend of Allan P. Dudley ?

A. — Yes. Always felt so towards him.

Q. — When did that begin to cool off"?

A. — Not until I heard this. I heard it, first, at Mokelumne Hill, that
he Avas down here, trying to do it while he was here. Durham told me,
while he was there. When I came down, I went to W. L. Dudley, and
he told me of it.

Q. — How long ago did you hear this at Mokelumne Hill ?

A. — I do not know the day. It was the day Durham was there to
subpoena witnesses for the Defence.

336

Q. — You mean the defence at the bar of this Court ?

A.— Yes.

Q. — Then you were A. P. Dudley's warm friend until you came down
here as a witness, were you not ?

A. — I felt very friendly towards Mr. Dudley, and always have.

Q. — Are you of the same partv as he ?

A.— Yes.

Q. — Have you run with him a great deal ?

A. — No, not a great deal.

Q. — You are not on the run ?

A. — Well, I go around considerable, and drink my whiskey with the
rest.

Q. — Have you been on terms of intimacy with Mr. Dudley ?

A. — Our terms have been intimate enough. I call him " Al," and he
calls me " Bill."

Q. — I suppose you will call him Mr. Dudley, after this ?

A. — If I call him anything, I probably will.

TESTIMONY OF JOHN BURKE.

John Burke being called, and sworn, testified as follows :

3Ir. Williams. — "Where do you live ?

A. — At Jackson. Amador County.

Q. — Have you been Constable there several j^ears ?

A. — Ko, Sir. I have been Constable there for nearly a year.

Q. — How long have jou lived at Jackson ?

A. — I have lived in Jackson about eight years.

Q. — Do you know Allan P. Dudley ?

A.— I do.

Q. — Do you know his reputation in that community, for truth and
veracity ?

A.— I do.

Q. — Is his reputation there, for truth and veracity, good, or bad ?

A. — His reputation there for truth and veracity is very bad.

Q. — From that reputation, and what people say of him, would you
believe him on his oath ?

A. — No, Sir ; I would not.

CROSS EXAMINATION.

Mr. Edgerton. — Are you and have you been a warm and intimate friend
of Judge Hardy ?

A. — No; I was opposed to Judge Hardy's election.

Mr. Williams. — Were you opposed to Judge Hardy at the time of the
primary election, before his election as Judge ?

A.— Yes.

Q. — Do you belong to the same political i)arty as Judge Hardy ?

A. — No, Sir.

A Senator. — What political party do you belong to ?

A. — To the Democratic party.

Q. — The real Democratic party ?

A.— Yes.

337

Q. — Who did you vote for for Governor ?

A. — I voted for John Conn ess.

Mr. Williams. — Did you vote for Mr. Edajerton ?

A.— I did, Sir.

Mr. Edgcrton. — You are a good Democrat, then.

Mr. Williams. — And a sensible man.

TESTIMONY OF ROBERT EPROSON.

Eobert Ejiroson, being called and sworn, testified as follows :

Mr. WiUiams. — Where do you live ?

A. — At Campo Seco, Calaveras County.

Q. — Are you well acquainted at Mokelumne Hill ?

A.— Yes.

Q. — Have you business there, frequently ?

A.— Yes.

Q. — Do you know Allan P. Dudley ?

A.— Yes.

Q. — Do you know him well ? •

A. — Well, yes.

Q. — How long have you known him ?

A. — Some five or six years, I believe. I do not exactly recollect the
time.

Q. — Have you been very well acquainted with him ?

A. — Yes, a portion of the time. For the last two or three years.

Q. — Has he been 3'our Counsel in litigation ?

A.— Yes.

Q. — Do you know his reputation in that county, where he lives, for
truth and veracity ?

A.— Yes.

Q. — Is his reputation for truth and veracity good, or bad?

A. — It is bad.

Q. — From his rej)utation for truth and veracity, would you believe him
on oath ?

A. — I could not. Sir.

CROSS EXAMINATION.

Mr. Edgerton. — Have you had any difficulty with Mr. Dudley ?

A. — No, Sir.

Q. — Have you never had any ?

A.— No.

Q. — Have you any ill feeling towards him ?

A. — I have.

Mr. Williams. — Why ?

Mr. Campbell. — We object to that. You cannot go into general char-
acter at all.

Mr. Williams. — I do not want to show general character, but hard feel-
ing. We projDOse to prove, by this witness, that his ill feeling towards
Dudley is on account of the professional treachery of the latter to him.

The Presiding Officer. — The question is ruled out.
43

338

TESTIMONY OF T. C. BOTJCHEE.

T. C. Boucher, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — At Jackson. I have been in this city some two or three months,
but I live at Jackson, Amador County.

Q. — How long have you lived at Jackson ?

A. — Since, some time, I think, in June, eighteen hundred and fifty-
eight.

Q. — Have you known Allan P. Dudley- all that time ?

A. — I have known him more or less since eighteen hundred and fifty-
four. I resided in Volcano, in the same county, from eighteen hundred
and fifty-one.

Q. — Do you know his general reputation for truth, among those who
know him ?

A. — Yes ; I believe I do.

Q. — Is his reputation for truth and veracity good, or bad ?

A. — I would say, emphatically, that it was bad.

Q. — From your knowledge of his reputation, would you believe him
on oath ?

A. — I would answer that by saying, that I would like, if the Senate
would allow me, to explain ; because it is a hard saying to say of any
gentleman. I say I would not; and would like to explain it ; because it
is very hard for a man to say that of any man, and it is putting one in
a very bad position to say tliat of another person, without some explana-
tion. I will state that whilst on a visit to my brother at Mokelumne
Hill—

Mr. Edgerton. — [Interrupting.] That we object to.
Witness. — I think it would be but justice from me to Mr. Dudley, to
explain.

Mr. Edgerton. — "Well, let it come out.

Witness. — I will state, that once when I was at Mokelumne Hill, (I had
been there on a visit to my brother.) having nothing to do that day, and
chancing to pass the Court House — the County Court or Court of Ses-
sions was then in session — I walked in and took a seat. Allan P. Dudley
was addressing the jury. He came to the testimony of his own brother,
Charles P. Dudley, and, in speaking of that testimony, accused Charles
P. Dudley of being a perjured witness. If he had done this with the
embarrassment and hesitation that one would naturally expect one brother
to feel in so speaking of another, I would not have thought so hard of it.
But he seemed to take a malicious delight in making the charge. J
walked out, and said then, in the presence of certain persons outside, that
I could not believe that man under oath, after hearing him make that
charge, in connection with the general reputation the gentleman had. I
spoke of the matter again, on my return to Jackson. I suppose that is
the reason why I have been subpoenaed as a witness in this case.

Mr. Williams. — Now, I ask you whether you have heard people talk
pretty generall}' there, about his reputation for truth ?
A. — I have; in Jackson and Mokelumne Hill, both.
Q. — A very little, or a good deal?

A. — Well, Mr. Allan P. Dudley is a man who has held rather a prom-
inent position in that section of the State, and his name is a name that
is frequently mentioned, especially in connection with politics. Conse-
quently, in political times, he would be discussed a good deal.

339

Q.— And upon that— what you have heard of his character for truth-
do you base what you have said as to his character for veracity ?

A. — That, and the other circumstance, taken together. I do not think
I could hardly say it, based on the man's general reputation, without
something known to myself.

Q. — Strike that out of your mind, if you please, and reflect whether
you have heard enough said of him to have formed an opinion. That is,
from his genei-al reputation there, and the estimation in which he is held
by his neighbors, and those v/ho know him in the surrounding country,
simply what you have heard, can you form an opinion ?

A.— What I have simply heard has been such as would make his repu-
tation very bad indeed ; bad with myself I would consider it bad. In
my own opinion, any man whose reputation was talked of as his is, I
would consider bad.

Q.— Suppose you had seen nothing, knew nothing, and heard nothing,
of the scene in the Court House, when he called his brother a perjured
witness, and based your impressions simply upon what you have heard,
would you believe him on oath ?

A. — That is a question very hard for me to answer positively.

Q- — You can tell, from what you have heard people say of him,
whether you would or would not believe him on oath, can you not ?

A. — It is hard to say Avhat you would or would not believe of a man.
And I know of no man in that section of the country, who is any ways
well known, that I could say that of; although we have men of bad
reputation there.

Q. — You have men of bad reputation there, but you would not say
that of them ?

A. — I would not say that of them.

Q. — What are your politics ?

Mr. Edgcrton. — What is the object of that question ?

Mr. Williams. — Our witnesses, may it please the Court, have been ex-
amined on the other side, to show that they are Breckinridge Demo-
crats. I propose to show that this witness is a Eepublican and a Mudsill.

The Presiding Officer. — I do not think you have a right to ask the
question.

CROSS EXAMINATION.

Mr. Edgerton. — How far do you live from Mokelumne Hill ?

A. — I think Jackson is said to be four or five miles.

Q. — Are you often at Mokelumne Hill ?

A. — In the last four or five years, I have been there as often as from
twice to four or five times a j^ear.

Q. — How large is the population of Mokelumne Hill? That is where
I understood you to say Mr. Dudley lives '{

A. — That is the only place in Calaveras County where I have met
him.

Q. — How lai^ge is the population of Mokelumne Hill and vicinity ?

A. — Well, the entire population of the town I could not well guess at.
The voting population I know is reckoned at somewhere between two
hundred and fifty and five hundred and fifty, I think.

Q. — Do you state that you have had an opportunity, from the commu-
nication that you have had with the population of Mokelumne Hill and
vicinity, to say what Allan P. Dudley's general reputation for truth and
veracity is among that pojDulation — the community in which he lives ?

A. — I can only speak of the community such as I would meet in

34Q

hotels, saloons, and like places about the Hill, when I would be over
there on a visit.

Q. — Do you know whether that is the general expression of the peo-
ple of Mokelumne Hill ?

A. — 1 do not know as I can say. I am only there on a visit to my
brother occasionally, and mingle in the society he mixes in, when I go
there.

Mr. Williams. — Is not Mr. Dudley's reputation as well known at Jack-
son as at Mokelumne Hill ? Is he as well known ?

A. — He, himself, is pretty well known by everybody.

Mr. Edgerton. — I understood you to say. in reply to Gen. Williams,
that, laying aside the occurrence at the Court House, which you have
related, you would not swear you could not believe Mr. Dudley under
oath ?

A. — I would not like to swear I could not believe any gentleman under
oath.

Mr. Edgerton. — I speak of that occurrence. If it had not been for that
occurrence, you would not have said so?

A. — I would not have said so.

TESTIMONY OP JAMES ALLEN.

James Allen, being called and sworn, testified as follows :

Mr. William ft. — "Where do you live ?

A. — I am stopping, at present, here in San Francisco.

Q. — Have you ever lived at Mokelumne Hill ?

A. — I lived at Mokelumne Hill in the fall of eighteen hundred and
fift^'-four. and spring of eighteen hundred and fifty-five. I have lived,
since that time, in San Joaquin County.

Q. — Do vou know Allan P. Dudley ?

A.— Yes!

Q. — Do you know his reputation, in Mokelumne Hill, and parts adja-
cent, for truth and veracity ?

A. — I liave heard persons express themselves as to Mr. Dudley's truth
and veracity.

Q. — From what you have heard, is his reputation for truth and vera-
city good, or bad?

A. — Very bad.

Q. — From that bad reputation, which you hear of him, would you
believe him on oath ?

A. — I would not.

CROSS EXAMINATION.

Mr. Edgerton. — Have you ever had any trouble with Mr. Dudley ?
A.— No.

Q. — No difficulty with him ?
A. — Never.

Q. — Did he ever appear against you, as Attorney ?
A. — No. He appeared as my Attorney, once.
Q. — What was the nature of the case ?

A . — Well, Sir. it was a case where I had employed a man to haul
some wood.

341

Q- — You have not been there since eighteen hundred and fifty-five ?

A. — I have not.

Q- — And you do not know what his reputation has been there since ?

A. — Well, Sir, I never heard any persons speak about it until this
trial came on, but once, in San Joaquin County.

Mr. Williams. — I Avant to inquire about that.

Mr. Edgerton. — We object to anything said about Mr. Dudley in San
Joaquin County.

Mr. Williams. — Do you want to keep that out ?

Mr. Edgerton. — Draw it out, then.

Mr. Williams. — [To witness.] While living in San Joaquin, what did
you ever hear ?

A. — I heard remarks made about Mr. Dudley, such as, he would throw
his client off.

3fr. Campbell. — That is improper.

The Presiding Ojficf^r. — That is so.

3Ir. Williams. — Did you hear anything about his being a man of truth,
or otherwise ?

Mr. Campbell. — We object.

Mr. Williams. — It has slipped out that the witness heard of this matter
once, in San Joaquin. We want to know whether he heard it in San
Joaquin or Mokelumne Hill ?

Witness. — I heard it often at Mokelumne Hill and in San Joaquin.

Mr. Camphell. — [Interrupting.] Stop. Our question was confined to
what had occurred since be lived there.

Senator Crane. — How did that suit terminate, in which Mr. Dudley
was 3^our Attorney ?

Witness. — I was defeated.

Q. — Do you entertain any feeling against Mr. Dudley, connected with
that suit ?

A. — I do not, in the least.

Mr. Williams. — That was the suit in which he was your Attorney ?

A. — Yes. I would like to explain.

Mr. Edgerton. — [Interrupting.] I object,

Mr. Williams. — You can't object to the witness explaining.

Mr. Edgerton. — But I have. [Merriment.]

Mr. Williams. — Then — you can.

TESTIMONY OF J. R. DOAK.

J. E. Doak, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — I live near Mokelumne Hill, Calaveras County.

Q. — How long have you lived there ?

A. — Nearly eight years. I have lived in Calaveras nearly ten years.

Q. — How long" have you known Allan P. Dudley?

A. — Well, nearly all the time.

Q. — Do you know his reputation — what people say of him — as to
truth and veracity ?

A.— I think I do.

Q. — From what people say of him, is his reputation for truth and
veracity good, or bad ?

A. — I should say, bad.

342

CROSS EXAMINATION.

Mr. Edgerton. — From that reputation, would you, or would you not,
believe Mr. Dudley under oath ?

A. — Well, I should hesitate.

Q. — Just tell us whether you would, or would not. You can't do us
much more harm than you have done.

A. — It would depend upon circumstances.

Q. — Just tell us whether you would, or would not.

A. — I do not know that Dudley would swear falsely.

Mr. Edgerton. — I do not ask you what you know.

Witness. — It would depend on circumstances, whether I would believe
him or not.

Q. — Have you ever had any trouble with Mr. Dudley ?

A.— No, Sir.

TESTIMONY OF D. LATIMER.

D. Latimer, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — I reside in Calaveras County, Township Number Five.

Q. — How long have you lived in that count}'?

A. — About thirteen years ; between twelve and thirteen years.

Q. — How long have you known Allan P. Dudley ?

A. — Probably nine or ten years, or so.

Q. — Do you know his reputation for truth and veracity, in the county
where he resides ?

A. — Well, I suppose I do know something about it.

Q. — Is bis general reputation for truth and veracity good, or bad ?

A. — Well, his general reputation I have heard disputed in some
instances.

Mr. WiUiams. — I do not ask you what you have heard ; I ask you the
result. What is his general reputation ?

A. — I have heard it doubted.

Mr. WiUiams. — Now, can you answer my question ? Have not you
knowledge enough to answer it ?

Witness. — Personal knowledge ?

Mr. WiUiams. — I do not mean knowledge of the man, but knowledge of
what people say of him.

Witness. — Then, I would consider it bad.

TESTIMONY OP DANIEL L. TRIPLET.

Daniel L. Triplet, being called and sworn, testified as follows :

Mr. WiUiams. — Where do you live ?

A. — I live in Ohio.

Q. — Have you not lived in Mokelumne Hill, or Calaveras County ?

A. — I have lived in Amador County.

Q. — Town of Jackson ?

A.— Yes.

343

Q- — How long, and when did you live there ?

A. — I have lived there ever since eighteen hundred and fifty-two to
eighteen hundred and sixty-one.

Q- — IIow long have you known Allan P. Dudley ?

A. — Well, I have known him from about eighteen hundred and fifty-
two or eighteen hundred and fifty-three up to the present time.

Q. — Do you know his reputation there for truth and veracity ?

A. — Yes.

Q. — Is his reputation for truth and veracity good, or bad ?

A. — Bad.

Q. — From his reputation for truth and veracity, judging from that
reputation, would you believe him on oath?

A. — I would not.

CROSS EXAMINATION.

Mr. Edqerton. — Have 3'ou ever lived in Mokelumne Hill ?

A.— No.

Q. — Have you been there ?

A.— Yes.

Q. — Has Dudley ever lived in Jackson ?

A.— No.

Q. — Has he ever lived anywhere in Amador County, to your
knowledge ?

A.— No.

Q. — Has he been there a great deal ?

A. — Yes; frequently.

Q. — Ever, except at Court ?

A. — Yes.

Q. — How often during the year ?

A. — I could not tell.

Q. — Did he ever spend one eighth part of his time there during the
year ?

A. — I do not think he did.

Q. — Was he there at Court ?

A. — Yes ; and at other times.

Q. — To remain long at a time, or only to remain casually ?

A. — A few hours at a time.

Mr. Williama. — Do the peojDle of each of those two towns know the
people of the other as well as of their own?

A. — I do not know as to others ; I knew many people at the Hill,
myself.

TESTIMONY OF B. T. BRADLEY.

B. T. Bradley, being recalled, testified as follows :

Mr. Williams. — Have you ever lived at Mokelumne Hill ?

A.— Yes.

Q.— When ?

A. — Almost constantly since eighteen hundred and fifty-two, excepting
some six or eight months, Avhen I was in this cit}", during the last year.

Q. — Did you represent that district in the Senate in eighteen hundred
and fifty-nine and eighteen hundred and sixty ?

A.— Yes.

344

Q. — How long have you known Allan P. Dudley ?

A. — I got acquainted with Dudley, I think, in the fall ofj eighteen hun-
dred and fifty-four ; I may have seen him before.

Q. — Are you acquainted with his character for truth, in his own
county ?

A. — I suppose so.

Q. — Do you know what his general reputation there, for truth and
veracity, is ?

A.— Yes.

Q. — From what people say of him, what is his reputation for truth, in
that county ?

A. — It is not very good.

Q. — Selecting between the terms, do you say good, or bad ?

A. — Well, Sir, his general reputation for truth is bad.

CROSS EXAMINATION.

Mr. Edtjerton. — In what respect or particular have you heard his char-
acter for truth and veracity talked about ? How has it been mentioned ?

A. — Why, I beard, on one occasion, Dudley's veracity attacked in
open Court.

Q. — Will you state whether that was done by process of impeachment,
by impeaching witnesses who were called to impeach him, or not ?

A.— No.

Q. — You merely heard his rej^utation for truth and veracity assailed ?

A. — Well, it was in this way. My recollection is this : That Dudley
proposed filing an affidavit. The opposite Counsel stated to him that he
was ready, or that he was willing, to file a counter affidavit, swearing
that he would not believe him (Dudley) on oath.

Q. — That is all you have heard ?

A. — All, at that time. In regard to other matters, I have heard other
peojjle speak of his truth and veracity. I would like to remark, that in
my intercourse with Mr. Dudley, which has been considerable, I have, so
far as I have been able to judge, always found him right side up. He
has been my Counsel in quite an important case, and he attended to it
with honesty, fidelity, and ability.

Q. — You have always found him right side up ?

A. — In regard to my intercourse with him, I have.

Q. — Has not your intercourse with him been very extended ? Have
not you known him a long time, and quite intimately ?

A. — I have known him a long time. I first got acquainted with him
in eighteen hundred and fifty-four. I was Justice of the Peace there,
and Dudley had the management of a great many cases in my Court.

Q. — Would you believe him on oath, from your acquaintance with
him ?

A. — It would require corroborative testimony to make me take Dud-
ley's oath with that degree of confidence that I would another person's.

TESTIMONY OP WILLIAM IRVINE.

William Irvine, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?
A. — At San Andres, Calaveras County.

345

Q. — How long have you lived in that county?

A. — I have lived there now about eleven years.

Q. — How long have you known Allan P. Dudley ?

A. — I have known him eight or nine years, I believe. I have known
him at least eight years, I think.

Q.— Do you know his reputation, where he is known in the county, for
truth and veracity ?

A.— Yes.

Q. — Is that reputation for truth and veracity good, or bad ?

A. — It is bad.

TESTIMONY OF B. F. MARSHALL.

B. F. Marshall, being called and sworn, testified as follows :

Mr. Williams. — How long have you lived in Calaveras County ?

A. — About thirteen years.

Q. — What offices have you held there?

A.— Well, I held the office of Sheriff.

Q. — When, and how long ?

A. — From eighteen hundred and fifty-one to the latter part of eight-
een hundred and fifty-three. First, to fill a vacancy; next, for the
whole term — two years — ending in eighteen hundred and fifty-three.

Q. — Have you known Allan P. Dudley all that time?

A. — I have known him since eighteen hundred and fifty-two, I think.
He came to the county, I think, in eighteen hundred and fifty-two; it
may possibly have been eighteen hundred and fifty-three.

Q. — Do you know his reputation in that county, where he lived, for
truth and veracity ?

A.— I do.

Q. — Is that reputation for truth and veracity good, or bad ?

A. — That is rather a delicate question for me to answer. [Pausing.]
Well, it is not very good.

Q. — Now, having the question put to you in the alternative, do you
say his reputation is good, or bad ?

A. — Well, I believe it is bad.

TESTIMONY OF WILLIAM WALCH.

William Walch, being called and sworn, testified as follows :

Mr. Williams. — Where do you live ?

A. — At Yolcano, Amador County.

Q. — Do you know Allan P. Dudley, and his reputation in the county
where he lives, and the adjoining county, well ?

A. — In the County of Amador, I do. Not where he lives.

Q. — You do know it in Amador County ?

A.— Yes.

Q. — Is his reputation for truth and veracity, among those who know
kim, good, or bad ?

A. Well, as far as I have heard, it is bad. Of my own knowledge, I

do not know anything bad of him.
44

346

Q. — The question is, "What do people say of him ? From what people
say of him, is his reputation good, or bad ?
A. — It is bad, Sir.

TESTIMONY OF B. K. THORNE.

B. K. Thome, being called and sworn, testified as follows :

Mr. WiUiams. — Tou are Under Sheriff of Calaveras County ?

A.— Yes.

Q. — How long have you known Allan P. Dudley?

A. — Some length of time. Quite a number of years.

Q. — Do you know his reputation, in that community, for truth and
veracity ?

A. — I believe that I do.

Q. — Is his reputation there, for truth and veracity, good, or bad ?

A. — Well, I cannot say that it is very good.

Q. — Do you say it is good, or bad ?

A. — My reply would be, that it is not very good.

Q. — Can you answer the question put, as I put it : Whether it is good,
or bad ?

A. — Well, I should say, bad.

The Presiding Officer announced that all witnesses were discharged
from the case as soon as examined.

Mr. WiUiams. — We have sent for a witness, who is sick, or he would
have been here before. If we can be permitted to introduce Mr. Mc-
Hale to-morrow morning, we will say that we will rest this branch of
the case.

Mr. CampheU. — Is that your only witness ?

Mr. Williams. — I do not propose to go any farther, and am willing to
rest there.

347

REBUTTAL TESTIMONY FOR TUB PROSECUTION.

TESTIMONY OF DELOS LAKE.

Delos Lake, being called and sworn, testified as follows :

Mr. Camphell. — What is your business ?

A. — I am a lawyer.

Q. — How long iiave you been engaged in the practice of law ?

A. — About eighteen years.

Q. — Have jovl ever occupied a seat on the bench, as District Judge of
the Fourth Judicial District 't

A. — I was District Judge in this city, from four to five years.

Mr. WiUiams. — The Counsel have very frankly informed me what they
propose to prove by Judge Lake. It is on this question as the proper
practice of a Judge in empanelling a jury in a criminal trial. They
went into that evidence, nsing your Honor as a witness upon that sub-
ject, before they closed their case ; and I object to their reopening their
case upon that branch. They made it a part of their case, by examin-
ing a witness, or witnesses, upon it. The President will remember that
the question came from that side, as to what is the duty of a Judge un-
der such circumstances, and the President answered it; and they have
rested their case, and cannot open it by any rule of practice.

Mr. Campbell. — So far as that is concerned, Mr. President, I had not, at
the time of that examination, in my own mind, or from my own obser-
vation, the slightest reason to believe that any lawyer in this State
would state, under oath —

Mr. Williams.— l^oiio voce.] What the President stated.

Mr. Campbell.— No, Sir ; not what the President stated— what one or
two witnesses for the Defence have stated here. I had supposed that
there was not a lawyer in this State who would hesitate for one moment
to say, that in criminal trials, where there is a g-reat public excitement,
it is customary for Counsel on both sides to institute a rigid and lengthy
examination and cross examination of jurors who are called to be empan-
elled in the case. I did not suppose that it was a matter which would or
could be questioned by anybody in the world. For that reason, we did
not consider it necessary to cumber up the case by calling a number of
the members of the bar who had experience upon that subject, who were
familiar with the criminal practice of this State, and who could decide
accordingly. And with reference, also, to the duty of a Judge in a case
where th^ plain duty of Counsel was omitted, I had supposed there would
be little ditference, if any, upon that subject.

Now, what we propose to show, by this witness and others, all of them
men of 'great practical experience, is, that such examinations are uni-
formly a'lid invariably made ; that the time occupied in the empanelment
of a jury in a case of any public interest, is never less than one day, at
least, and generally some two or three, or four days — running up irom

348

that. That is the object of this testimony. There has been a witness
here — Mr. Hoge — who stated that he could not see anything unusual ;
Mr. Hanson also stated that he could not see anything unusual ;
that the proceedings, as he thought, were conducted with unusual dignity
and decorum. Mr. Hoge, it will be remembered, stated that he had never
been present, as he thought, at more than three criminal trials here, and
we propose to put this matter beyond all doubt, by persons of experience
and capacity ; those who have been on the bench and at the bar ; those
who have prosecuted, and those who have defended persons on trial. I
think this fair rebuttal. But, apart from that, if it is to be regarded as
a mere matter of testimony, the discretion of the Court has been invoked
on the other side, to-day, for the purpose of reopening their case upon
one branch, and was exercised in their favor, and I see no reason why
we should not have the same indulgence. I can only say, for myself and
colleagues, that we were all surprised at the testimony given on the part
of the Defence on this subject. We had no idea that there was a solitary
lawj^er in the State of California who would give that class of testimony.

Mr. Williams. — Mr. President, the otfer seems to be to produce evidence
of the practice in the City and County of San Francisco —

Mr. Campbell. — [Interrupting.] And elsewhere, too.

Mr. Williams. — [Continuing.] Judge Campbell states that it has been
the uniform practice to occupy a day in the examination of jurors, in
any case involving great public interests. Now, I beg leave to ask,
whether a case involving public excitement, public prejudice, if the Court
please, or public indignation, against some man who has the misfortune
to be unpopular, is entitled to any more consideration, or whether any
more time should be spent in it, or whether a Judge should any more in-
terfere in it, than in a case where a poor devil, without a friend in the
world, is hauled up, and his life is at stake ! This is not the first time
that this distinction has been made here. Judge Campbell has laid stress
upon this fact several times when discussing this question, asking wit-
nesses if it was not a case involving great public excitement, thereby im-
plying that its being so was a reason why Judge Hardy ought to have
taken the duties of the District Attorney out of his hands. It is a new
kind of equal and exact justice, this: that because the public indigna-
tion has become excited ; that because the man against whom the offence
is committed is beloved by the community ; that because there has been,
without any cause, an outcry, against the accused — that, forsooth, shall
require the Judge to play District Attorney and all hands in his Court !
It is the first time I ever heard of that kind of equal justice being meted
out to all classes of citizens, on criminal trials !

But Judge Campbell has told you his experience. He has told you
that it is the uniform practice to spend a day in empanelling the jury. I
venture to say, that, in nine cases out of ten, when that time is spent,
three fourths of it is wasted, at the very least. Now, I am informed by
gentlemen here that this practice — which Judge Campbell thinks is uni-
versal, because it exists in San Francisco— is not the practice in the coun-
try counties ; that in Courts in country counties, they frequently em-
panel their juries quickly and with little difficulty, because they know
the jurors. Counsel on both sides know the jurors. And I will ask
here, whether Judge Campbell will urge that the District Attorney, if he
knows the jurors, and knows there is no objection to a man when he is
called, is bound to go through all this rigmarole, make a great splurge,
and occupy a day in the examination of the panel. I would ask if this

349

is to be done when the Counsel on both sides know every man who is
called, and know whether he is objectionable or not.

Now, I beg leave to place my humble experience against that of Judge
Campbell. Judge Campbell has stated what his experience has been in
this connection. I had the honor to be District Attorney of a county
where there was almost as much criminal business as in this county.
xVt any rate, they had thirteen terms in a year, and used to sit from
eight or nine o'clock in the morning to ten at night ; and I venture to
say that in four fifths of the cases there were not one third, or one
fourth, and in many cases not one sixth, of the jurors challenged or
questioned on the part of The People. If I knew a gentleman to be a
man of character and integrity, one who was above the reach of any
undue influence, and he was called as a juror, I never thought of going
through the examination with him, as District Attorney ; and I never
did dream that the Judge would take the case out of my hands, because
1 did not do it under such circumstances.

Now, this proposition is to prove the general custom on this subject
of empanelling juries. That general custom was proved in the outset.
They propose further to prove, by Judge Lake, as an expert, that same
thing, on the question of what is the duty of a Judge, when the District
Attorney does not challenge a juror, or does not examine him, when it
is a case of great public excitement, and a man of character and of posi-
tion has had an oifence committed against him, or the like. They have
examined your Honor upon that question, and your Honor has testified
upon what you deemed to be the duty of Court and Counsel, to wit :
That it is the duty of a Judge to try the case as the Counsel gives it to
him. If they wanted to go farther in making out their case, they were
then at liberty to do so. They claimed they had a right to ask that
question of the President, as an exj^ert; he being a lawyer of extensive
practice and experience. They were allowed to do so. We did not
object to it seriously, if we did formally at all. They made that a part
of their case ; they made the duty of a Judge a part of their case before
they submitted it. They made the other question, which they propose
to prove here — as to what is the general custom in cases where there is
a general excitement against a man — a part of their case, also ; asked
witnesses about it, and proved the custom, whatever it was, or made
such proof as they were prepared to bring. They put out their case;
they exhausted their evidence upon that subject. And now, forsooth,
they come in and ask to go back and make out their case again upon
these two points.

I do protest against opening this question again. I do insist that this
should not be allowed, inasmuch as they have held us right down, with
an iron hand, ui)on questions that we have exhausted ; and inasmuch as
they did, even upon this question of the impeachment of Dudley, insist
that we had passed the time when we had a right to do it. Although
we had not called a witness upon it at all, because we had announced
here, hastily, and for the purpose of hurrying on the trial, that we would
not go farther in our defence, they insisted, and insisted strenuously,
that we should not be permitted ; that the Court should not allow us
to open the case again, and give this evidence. Upon our own motion,
we should not have done it. Some Senators, understanding that we
were going to attack Allan P. Dudley upon his own testimony, insisting
that he had impeached himself as fully as it would be possible for a wit-
ness to do, wanted the question investigated as to whether his character
was really good or bad. They wanted the testimony before them ; did

350

not want it left for them to surmise. And it was upon the express re-
quest of some of the Senators, that we did introduce this ; that they
might have the evidence, instead of relying upon the argument upon
this projiosition. So that precedent cannot be made a precedent against
us. If there is any precedent about it, it is this : That they most stren-
uously resisted the indulgence being given us by the Court, upon that
subject.

]!*^ow, we do most resjDCctfully protest against opening this case again
upon this branch. If it is opened again, see where it will end. See
what is the intention of the rule. Why, the plaintiff gives testimony
upon a material point — a single witness — and rests. Well, that is all
he would do, if he is safe in doing it. The defendant comes in with
three or four witnesses and disproves his case. Then the plaintiff says,
"I will go back again and introduce some more witnesses, and throw
the balance on my side again." Very well. Let the Court allow this,
and the prosecution do it, and what must necessarily follow in the track
of justice ? This : That the defendant shall be permitted to introduce
still further evidence upon both of these questions — the duty of the
Judge, and the custom of the Counsel not only in this cit}', not only in
the immediately neighboring counties, but in this State, and in other'
States. When they have given their evidence — all they had — and rested
their case, and we have gone into the testimony and satisfied ourselves
that we have entirely annihilated their evidence by a large balance of i
proof, are you going to let them come in and heave some more evidence '.
into their scale, without allowing us to go back again and add what we '
should have added if they had given their entire case to the Court at
first? I do not think tliis Senate will do that. If it does, I am mis-
taken in the material of which it is made.

Now, shall they do this ? They have given proof — all that they had.
We have given proof enough to satisfy the Court that there is a clear and
strong balance in our favor ; and we stopped there, because we needed
not to examine any more. Now, if they come in with their proof, I
think the Senate will allow us to examine fifteen or twenty lawyers on
this subject. I ojiine we can call members of the bar, and plenty of
them, here. And I think, if this Court allows this testimony now to be
offered, it will allow us to call lawyers and judges, men of experience at
the bar and on the bench, to prove our side of this issue ; and that we
shall have the last word on the affirmative of each question.

31r. Campbell. — The Counsel for the Defence has, unintentionally, en-
tirely misrepresented the statements and views that I have heretofore
presented. He lays it down that I have started the proposition that a
different measure of justice should be meted out where a distinguished
man, in regard to whom there was a public excitement, is made a party
to a criminal proceeding. I have started no such doctrine. The doc-
trine that I have started is, that when from any circumstances there has
been a great public excitement in regard to any case ; where, if a crim-
inal case, either from the position of the parties, or from the peculiar
circumstances attending the alleged crime, or any other reason, there is
much public interest awakened ; where, if a civil action, there is a great
public feeling in reference to the subject matter of the particular suit —
that it is then the invariable custom of the Attorneys to resort to those
measures which are absolutely essential in order to secure an impartial
jury. I have not taken the ground that in ordinary cases it is necessary
to examine each juror any fai'ther than as to whether he has formed or
expressed an opinion. I do conceive, that in ordinary cases, where

351

til ere is no great public excitment, where the mass of the community
arc in entire ignorance of the subject, it is usual and customary to do no
more than ask the jurors, as a general thing, whether they have ever
heard anything about the case. But I do say this : that where a horri-
ble murder has been committed, or where a man high in position has
been attacked or killed, or where any other circumstances have taken
place which clothe the case v\'ith peculiar public interest, then these pre-
cautions arc important. We have shown this case of The People vs. Terry
to be one of that character. We have shown the universal custom here
and elsewhere to be to make these examinations. It is true that the
common sense and judgment of ever}^ man, outside of testimony, will
tell him that, and that any lawyer who neglects to make such examina-
tions, would be regarded as recreant to his trust ; but we desire to put
this thing in evidence, because one gentleman, [Hoge,] who has had,
according to his own statement here, but little experience in this class
of cases, has undertaken to say that there was nothing unusual in this
case. We propose to show that what was done was exceedingly unusual,
;S0 unusual that it would naturall}' strike any person at first blush. That
is the object of this proof And so far as that is concerned, if the}^
desire to introduce anything after that, to rebut it, we shall have no
objection. I ask that this testimony be admitted.

The Presiding/ Officer. — I declined to pass any opinion on the conduct
of the Judge, at all.

31r. Wi/liama. — If the President will allow me, I will refresh his mem-
ory as to what he did state. My recollection is, that when Mr. Campbell
asked your Honor, '' What is, in your opinion as a lawj^er, the duty of a
Judge, under such circumstances ?" your Honor answered: "The bar
are divided in opinion upon that subject ;" hesitated a little, reflected a
little, and said : " M3' opinion is, that it is the duty of a Judge to try the
case as Counsel gives it to liim."

The Presiding Officer. — That was not in reference to the method of em-
panelling a jury. The context of the question, I think, was in regard to
the conduct of the trial, and in regard to witnesses. But, at the same
time, I said, in addition : " Unless the Judge discovered evidence of
collusion, or something of that kind." I did not give any opinion at all
upon the conduct of the Judge upon that occasion, or the principles they
supposed to be involved.

Mr. Williams. — That was the only point upon which the Judge did
anything.

The Presiding Officer. — I submit the matter to the Senate. Senators,
the question is —

Senator Parks. — [Interrupting.] I would like to make an inquiry, be-
fore the vote, on this question. If we allow the Prosecution to prove
what is the custom in empanelling a jury, are they then to go on and
prove, further, that it was the duty of the Judge to interfere, or not, or
are they to be limited to just one branch. It appears that it will be no
advantage to prove one point, unless you do the other.

3Ir. Edgerton. — That is the object of the witness on the stand. We
desire his opinion of the fact, as developed by other witnesses.

Senator Parks. — I understood you that it was rebuttal, that it would
not be opening the case anew.

The Presiding Officer. — The Chair understands it is entirely rebuttal,
and nothing else, on the part of the Prosecution.

Senator Waft. — If- this testimony is admitted, does that give the Ee-
spondent an opportunity to rebut it ?

352

The Presiding Officer. — The Prosecution propose to go into this proof,
and to allow the Defence to rebut, if they choose.

The question is : Shall the Prosecution be permitted to give in evidence
of what the practice of the profession and the Courts is, as regards the
right of the Court to interfere on a criminal trial ?

Mr. Williams. — Then we add another objection. It is : That it is inad-
missible in any form, and at any such trial.

The Senate decided to admit the proposed evidence, by the following
vote :

Ayes — Messrs. Banks, Chamberlain. Crane, De Long, Gallagher, Gas-
kill, Harvey, Hathaway, Heacock, Hill, Irwin, Kimball, Nixon, Porter,
Powers, Soule, Shurtleff, and Van Dyke — 18.

Noes — Messrs. Baker, Denver, Harriman, Kutz. Lewis, Holden, Parks,
Quint, Warmcastle, and Watt — 10.

Senator De Long, when his name was called, said : In voting for this,
I shall vote Aj'e, with the distinct understanding that if this be new mat-
ter allowed the Prosecution, in that case it shall be subject to rebuttal on
the part of the Defence.

The Court then adjourned to eleven o'clock on Thursday morning,
May eighth.

TKSTiivroisrY

IN THE

TRIAL OF JUDGE J. H. HAEDY,

TENTH DAY— MAY 8, 1863,

REBUTTAL TESTIMONY FOE THE PEOSECUTIOK

EXAMINATION OF DELOS LAKE RESUMED.

Mr. Edgcrton. — You say that you are a practising lawyer in this city ?

A. — Yes, Sir.

Q. — And you once held the office of District Judge in this city ?

A.— Yes, Sir.

Q. — And, as Attorney and District Judge, you are pretty famihar with
the criminal practice of this State ?

A. — I suppose I may say that I am. While I was Judge, there were a
large number of criminal cases tried before me. With the exception of
one year, I believe, my attention as Judge was exclusively confined to
capital cases.

Q. — What is the duty of the District Attorney in regard to the cross
examination of jurors, touching their competency to sit in criminal
cases ?

A. — Their duty is pointed out by statute, I suppose.

Q. — If the District Attoi-ney was to omit that dniy, would it, or would
it not, be the duty of a Judge to interpose and see that that duty was
performed ?

A. — I can only state what I understand the statute to require, and
what I understand to be tlie practice. I should have to state my under-
standing that I have of the statute before I should think it proper to
state my opinion in the premises.
45

354

Q. — Give us your views, Judge.

A. — My view of the statute was, at one time, that it was irregular to
question the jurors at all, unless one party or the other made a formal
challenge. But the universal or the uniform practice was the other
way. I recollect the question coming up once, in which I was required
by the District Attorney, or the Counsellor of the prisoner, to decide in
regard to this matter. On examining the statute, I held that the Court
might interpose for the purpose of preventing the examination of jurors
in an irregular, or rather, informal way, unless one of the parties proposed
a challenge, on which issue could be taken. That question afterwards
came up before the Supreme Court ; and in rather a tart opinion, as I
thought, they reversed that decision ; and the practice was, uniformly,
before and after that time, for the District Attorney to exercise great
vigilance in the examination of jurors, in what I would call an informal
way; that is, by questioning each juror, without going through the form
of a challenge. He was to exercise great vigilance that no one was
accepted in this class of cases without his state of mind was first well
ascertained by this informal examination, without going through with
the form of a challenge. That was the practice uniformly before and
after that date.

Q. — Now, what would be the dut}^ of the Judge if that practice was
omitted ?

A. — If the practice was omitted in a given case, that might be a very
difficult question to answer.

Q. — Take an important criminal case, in regard to which the public
mind and feeling were very much exercised ?

Mr. Williams. — Well, we object to that. We object to the putting of ^
any such question. Whether the public mind was exercised or not
against a man accused of crime, is not cause for any action of a peculiar
nature on the part of a judicial officer. A judicial officer is supposed to
be beyond the reach of that kind of influence while on the bench.

3fr. Echjerton. — In a case which has excited a great deal of public in-
terest, where there is a great deal of prejudice on the one side or the
other ?

3Ir. Williams. — Now, we object to that. I object to " public interest,"
or " public prejudice," being drawn into the question at all.

The Presiding Officer. — [To Mr. Edgerton.] You had better name the
character of the offence, rather than state what the public thought of it.

Mr. Edgerton. — AYell, I will put the question — in a case of felony, in a
case of duelling ?

A. — I understand, then, that your question is. In a case where the
District Attornej' omitted to take any precaution, either by informal ex-
amination, or by examination on challenge, to ascertain the condition of
the juror's mind, would it be the duty of the Judge to interfere ?

Mr. Edgerton. — Suppose that the list of jurors were not drawn from
the jury box ?

Witness. — How could that happen ?

Mr. Edgerton. — Sujjpose, in such a case as I have described, the jury,
were not drawn from the box, but were sent into the panel like a flock
of sheep ? Suppose their names were taken off" from a piece of paper —
from a list furnished by the Clerk or Sheriff" — and no questions were put
to them b}" the District Attorney touching their prejudice for or against
the parties in the case. What would be the duty of the Judge presiding
over that Court, imder such cirumstances ?

Mr. Williams. — Now, I insist that there is no such fact in this case as

355

the Counsel has lugged in here. There is no such state of facts existing
as the calling of the list of jurors and " sending them into the hox like
a flock of sheep."

Mr. Edr/crton. — Well, I take the last part of that back. Strike out the
" flock of sheep." In a ease where the list of jurors is drawn by the
proper officer ; where the list, or the return of the Sheriif containing
the list, is in the hands of the Clerk; where the Clerk reads the names
of jurors from such list, without drawing the names from the box, and
where the District Attorney interposed no challenge, and examined no
juryman touching his qualifications or his prejudices — what would be
the duty of the Judge on an occasion like that ? Assuming that the
names of the jurj-men were not put into the box, to be drawn out for
the empanelling of the jury, by the Clerk; that there was no examina-
tion, no effort on the part of the District Attorney to ascertain whether
jurors were qualified or disqualified to sit as jurymen — no interrogato-
ries put to them touching their competency — no cross examination;
would, or would it not, be the duty of the Judge to interfere, and see
that the empanelling of the jury was properly conducted, and the panel
properly filled up ?

A. — I should answer that question in this way : In a criminal trial, in
a case wliere the off'ence reached the dignity of a felony — in the event
of palpable dereliction of duty on the part of the District Attorney,
likely to prejudice the case of The People, or in the event of palpable
dereliction of duty on the part of Counsel for the prisoner, likely to pre-
judice him, I should deem it the duty of the Court to interpose, some-
how, in every such case, in order that justice might be done to all par-
ties.

Q. — What would be the duty of the District Attorney in regard to the
examining of the jurors, before accepting them as cj[ualified, in the par-
ticulars of which I have spoken ?

A. — That Avould be a difficult question to answer. That has been the
practice so uniformly, that it would be likely to excite attention if it was
omitted.

Q. — Is it not the uniform practice for District Attorneys to subject
jurors in each case to a rigid cross examination in regard to the particu-
lar matters of which I have spoken ?

A. — So far as my own knowledge and experience in this State go,
it is.

Q.— What would be the duty of the District Attorney, to The People,
in that respect ?

Mr. WlUiams. — I object to that.

3Ir. Edi/erton. — State your objection, if you please.

Mr. Williams. — The objection is, that we are not here on trial for any
neglect of duty on the part of the District Attorney.

Mr. Edfjcrton. — I asked that question for the purpose of laying a founda-
tion for showing what the duty of the Judge ought to have been on that
occasion.

[The Presiding Officer thought that the testimony was competent, if it
was proposed to show that the neglect of the District Attorney on this
occasion was such as to warrant the interference of the Judge.]

Mr. Edgr^rton.—Whai would be the duty of the District Attorney to
The People, under such circumstances, as to the instituting of a rigid cross
examination of the jurors ?

A.— My opinion is that it would be his clear and palpable duty to exer-
cise the greatest degree of vigilance to obtain a jury who had not formed

356

or declared opinions in regard to the case which was to come before them
— who were without such prejudice as to disqualify them to sit in the
case.

Q. — Judge Lake, suppose the usual and regular hour for the convening
of the Court was nine o'clock in the morning, and a case of this kind
was set for that particular da}", at the opening of the (Jourt, and the sub-
pcenas for the witnesses were not made returnable until ten o'clock, and
none of the witnesses for the prosecution were there when the case was
called, what would be the duty of the District Attorney in regard to
asking a postponement of the trial of the case, for one day, at least, or
for any length of time ?

Mr. WiUiams. — Well, we object to that question. That is certainly not
within the rules. That is clearly placing us in the position of the Dis-
trict Attorney.

Mr. Edgerton. — "Well, I will put the question in this shape : What would
be the duty of the Judge in a case of that character ?

A. — Of course, I can only give my opinion. My opinion is, that in a
case of that character, the proper course of the Judge would be to hold
the Court open.

Q. — How long ?

A. — My opinion is, that it would be the duty of the Judge to hold the
Court open a good while. vSome time, at least. I would try half a day.
If that was not enough, a %o1iole day. And, if that was not enough,
I would give the Counsel moi'e time in which to send for witnesses. I
mean to say that, in my opinion, a Judge, in such a case, ought not to
dismiss the case, or allow the District Attorney to let the case go by de-
fault, under those circumstances. That is my opinion.

Q. — Would you, sitting as a Judge, allow a case of that character to
go immediately to the jury, under such circumstances, without any wit-
nesses being called, or without any evidence being offered to the inrj ?

A. — I should not.

Q. — Would that kind of conduct on the part of the Judge, or would it
not, in your opinion, constitute a gross dereliction of duty ?

Mr. Williams. — AVcll, we object to that question.

Mr. Edgerton. — Judge Lake. I am requested by a Senator to ask you, if,
in a case of that kind, the subpoenas were made returnable an hour after
the convening of the Court, and the subpoenas were not returned at that
time, what would be the duty of the Court as to delaying the proceed-
ings until the subpoenas were there, in order to entitle The People to a i
writ of attachment?

A. — Well, that would make a plainer case for postponement, or for de-
lay, rather, than the one already supposed.

Q. — Would you not await the return of the subpoenas ?

A. — I do not know what power I should have; but I should do every-
thing that I could to secure a proper delay of the case. I should do
whatever the law allowed me to do, in order to keep the case open until
the witnesses got there. And then I should use all the power of the
Court to get the witnesses there. In answering these questions, I should
like to say, that I am making my replies upon supposed cases. I never,
personally, knew of a case where the District Attorney did not do his
duty. I have occasionally known of cases where the Court interposed
when the Counsel for the defence, from inability, or ignorance, or neg-
lect, did not properly attend to matters in behalf of the prisoner. I
have never seen a case where I thought it was the duty of the Court to

357

interpose in behalf of The People. But, for the same reason that I would
interpose in a case, sitting as a Judge, in behalf of the prisoner, I would
make the same interposition on behalf of The People.

CROSS EXAMINATION.

Mr. Williams. — Now you have stated all that you could state, of course,
in answer to this question : What would be the duty of a Judge in a par-
ticular case described to you ? You state what yoxi would do under such
circumstances. That's about the amount of what you state?

A. — Yes, Sir; and my view of what ought to be done. I would do my
duty with the understanding that I have explained.

Q. — And you have also stated what lias been the uniform jDractice in
regard to empanelling jurors since the decisipn of the Supreme Court
tliat there might be an irregular examination before a challenge was en-
tered. You stated that that was the uniform practice. Did you mean to
state that that Avas the uniform practice out of this city ?

A. — 1 tii'st used the word " universal." 1 then corrected mj^self, and
said '• uniform." I stated what was my observation of the practice before
the date of that decision by the Supreme Court, before me, and what
was my opinion concerning the practice since that time, from what ex-
perience and observation i have had.

Q. — Your opinion in regard to that matter is formed from the practice
which you have known in this city ?

A. — Yes, Sir; and generally. I have observed the practice in one or
two criminal cases out of this city. But my observation has been mainly
confined to the practice in this city.

Q. — Now, will you state in what cases this practice was rigidly adhered
to?

Widicas. — Outside of this city i*

Mr. Williams. — Yes, Sir.

Witness. — I do not recollect of but one or two cases where I had occa-
sion to observe the practice outside of this city. In answer to this last
question, I desire also to say, that while on the bench I presided at one
capital trial in Sacramento, where the practice was the same. I also
attended during the trial of one capital case in Sacramento, when the
])ractice was the same. Those two individual cases are all that I can
speak of, outside of this city. I think that is all I can speak of.

Q. — Now you have spoken in reference to matters of practice. Your
knowledge in these particulars is, of course, more or less, derived from
your observation outside of your own practice in the Courts. Do you
"not know the fact, that in numerous cases in this State, outside of San
Francisco, jui'ors. v.-ell known to Counsel in the case to be tried by them,
have been put into the box without any examination being made as to
their qualifications?

A. — The truth is, I am utterly ignorant on that subject. I have not
attempted to state that I was fully informed as to those matters.

Q. — Now, Sir, if a Judge is holding a Court in a strange county, where
he never was before, where he is an utter stranger to the people there
residing, where a case for trial comes up before him in which the offence
charged is a felony, in the conduct of which case the District Attorney
otficially appears — he being a resident there, and supposed to know, as
in a small county he must,"all the jurors summoned — do you think that
it is the duty of tlie Judge, if the District Attornpy allows jurors to go
into the box unchallenged, or without examination, do you think that it

358

is the duty of the Judge to interpose and take the management of the
case, so far as the empanelHng of the jury is concerned, out of the hands
of the District Attorney, and examine and challenge them himself ?

Mr. Edgerton. — We object to that. The District Attorney may be well
acquainted with each and every juror in a county, though that is hardly
a supposable case ; but he certainly" cannot know the feelings and preju-
dices of each and every juror, in regard to any given case.

Mr. Williams. — That is my assumption. I assume : Suppose a Judge is
called into a county distant from his own district, w^here he has never
been before, where he is an utter stranger to the citizens there residing,
and, of course, to the persons summoned as jurors — I ask, if, in such a
case, or under such a condition of things, the District Attorney allows a
juror to go into the box without objection or question, would you then
deem it the duty of the stranger Judge to interfere in the matter at all?

[The Presiding Officer admitted this question.]

A. — I would not suppose that it would be his duty to interfere — taking
the case as you have put it. Not in a solitary case.

Mr. Williams. — Well, what would appl}" to one case, would apply to all.

The Presiding Officer. — I presume the answer is to the precise case.

31r. Williams. — ^You speak of a decision of the Supreme Court as form-
ing a part of your knowledge on this subject. Now, has it not been dis-
tinctly held by the Supreme Court, that this question of disqualification
of a juror, on account of having formed or expressed an opinion in regard
to the merits of the case, is exclusively a subject of challenge, and may
be waived — waived hy either party ?

Mr. Edgerton. — I suppose that that is a matter of law.

Mr. Williams. — I suppose that if one decision of the SujH'eme Court is
evidence, another is.

Mr. Edgerton. — Well, we object to the question.

Witness. — I have no doubt that there are a great many decisions by the
Supreme Court which I cannot remember — probably have never read.
[Meri'imeiit.]

[The Presiding Officer ruled out the qiiestion proposed by Mr. Wil-
liams.]

Mr. WilUamii. — Is it, necessarily, a disqualification, by reason of which
a juror should absolutely be rejected, when neither party have any ob-
jection to him, even if it should appear that he had at some time ex-
pressed an opinion in the case ?

A. — No ; I do not suppose it would be.

Q. — Suppose a man presents himself, is called as a juror, and it is
known by both parties that he has expressed an opinion in the case;
but they know the man so well that they feel confident that that fact
cannot improjjerly influence him — both parties have entire confidence in
him — I ask whether, in such a case, it would be the duty of the Judge
to interpose with an examination ?

Mr. Edgerton. — That is to say, supposing the Judge knows, himself, all
about these facts.

Mr. Williams. — Suj)pose those facts exist, to the knowledge of parties
and Counsel on both sides, and under such circumstances, both are wil-
ling that the juror should go into the jury box, believing that he will
give a true and honest verdict : Is it the duty of the Court to interpose
in such a case as that, and say that the juror shall not sit in the box ?

A. — No, I should think not.

Q. — If the defendant's Counsel should accept a juror who is known to
the Court, Counsel, and all parties concerned, to have expressed an opin-

359

ion in the case, do you think that it would be the duty of the Judge to
then interj^ose ? Suppose that the Judge knows that the juror — he may
have heard him express an opinon, himself — suppose the Judge knows
that the juror has expressed an opinion in the case, and he also knows
tliat Counsel on both sides are aware of this fact. The Counsel for the
defence does not choose to challenge him on that ground. Is it the duty
of the Judge to interpose an examination, or challenge, on behalf of the
defendant '' I speak now in belialf of the defendant.

A. — That would depend upon circumstances. If nothing had trans-
pired to raise a reasonable suspicion that there was collusion, I would
not interpose, as Judge, sitting in such a case. Otherwise, I think I
would be apt to do so. Independent of that, not having any good rea-
son to suspect collusion between Counsel, or parties, I do not know that I
would interfere. Perhaps not. I am only giving my present opinion, in
u particular case, which you describe.

Q. — If it is the duty of the Judge to interfere with the acceptance of
jurors by the District Attorney, when the Judge has reason to think
that the District Attorney is neglecting the cause of The People, is it
not equally the duty of the Judge to interfere, if the defendant's Coun-
sel should allow a juror to go into the box, whom the Judge believed to
be an improper or untair juror for the defendant ?

A. — I should apply the same rule in both cases.

Q. — One question more upon the subject concerning which I have
asked you one question already. As to the Judge being in a strange
place, where he knows none of the jurors. Now, is it not a fact
within your knoAvledge, that in many new counties, in every State, the
public officers are so well acquainted with the jurors summoned to attend
at the Courts of record, that they are enabled to judge, without ques-
tioning, as to whether they have any objection to the juror or not ?

A.— I think that might well be so. I think that the practice that pre-
vailed in the part of the country where I was educated, was, that there
was a challenge before any examination.

Q. — Now I ask you if you have not known, in the county where you
were educated for the profession — have you not known, in very impor-
tant criminal trials, a jur^' to be empanelled in a very short time, and
with ver}^ few questions ?

A. — I cannot, at this moment, recollect any important case. It would
depend very much upon the character of the case. Now, an exciting
capital case, a case where the charge was murder, a case concerning
which a great deal of public feeling had been aroused, there would be a
great deal more care exercised in the selection of a jury than in any
case of less magnitude, or of less stirring character.

Q._Is iiot that care mainly exercised on the part of the defendant
and his Counsel ?

A.— That would probably be the case, ordinarily. There might be
cases where it would be otherwise.

Q. — To state instances : I ask you if you remember the trial of Knick-
erbocker, and the trial of Hall, for murder, in the county where you
were educated ? and if you recollect how long a time was occupied in
empanelling a jury and trying those cases 't In Buffalo County.
Witness.— At the time you were District Attorney ?

Mr. Williams. — Yes, Sir.

Witness.— 1 was not there then. I left there in eighteen hundred and
forty.

360

Q. — Well, before that time. Were you there when Havens was Dis-
trict Attorney ?

A. — That is a large commercial town. I was engaged in reading law
there. Eeally, I was not much in attendance during criminal trials
there. The office in which I was engaged in reading law was not occu-
pied in criminal practice. 1 did not pay much attention to Criminal
Courts then. I wish, with the permission of Counsel and the Court —
lest I did not make mj'sclf sufficiently and distinctly understood —
that I did not attempt to state what individual act Avould amount
to a positive dereliction of duty on the part of the District Attorney.
I only mean to say, that in case of palpable dereliction of duty on the
part of the District Attorney, or on the part of the Counsel for the
prisoner, I should think it the duty of the Court to interpose. What
particular act would constitute dereliction of duty on the part of any
or either of these parties, I do not propose to state now. I could not
state that now, only so far as I might indicate it in any particular case
given to me as a hypothesis.

Q. — You only mean, that a Judge should interforo where there is a
clear dereliction of duty on the part of tlie District Attorney — that then
it would be the duty of the Judge to interpose ^

A.— Yes, Sir.

Q. — Do 3'ou know. Sir. what is the practice, in these respects of which
you have spoken, in the Courts in the vState of Illinois, where Judge
Hardy was educated ?

A. — I do not.

Q. — From your experience and observation, do you not say that it is
true, that gentlemen elected to judicial stations carry with them, into
their judicial practice, those impressions as to duty and a proper course
of judicial conduct which they have gathered in the country where
they were educated, and where they first practised; and that the result
is, that in this State we have almost as many different practices in these
respects as we have different District Judges ?

Mr. Edgerton. — We object to that question.

ARGUMENT AS TO ADMISSIBILITY.

Mr. Williams. — We propose to show that the practice in this State is
various. We propose to show that the practice in this State is as va-
rious, as different, to speak in a numerical sense, as is the number of
Districts in this State. In each District, the Judge follows the practice
dictated by the habits of his education and early practice. He follows
the system of his own State, so far as the mode of practice is concerned.
And the only way of proving this, is by asking such questions as I now
propound to the witness. How does it happen that there are so many
kinds of practise ? The fact of the variety of practise being established,
this question becomes pertinent, and I think is admissible. For in-
stance : In all counties in Western States, the Clerk keeps a full history
of what is done. The minutes of the proceedings of the previous day
are read, as in a Legislative body. And the Judge signs the minutes on
the following morning. That is a thing that is never heard of by a per-
son educated to practise in a District Court in iSTew York. The system
there is different ; based upon a different practice. The Clerk there
keeps a mere record of the calling and disposition of cases; the Attor-
nej^s take care of the detail.

Mr. Edgerton. — We have no objection to one branch of the question —

361

as to the practice in this State. But as to what is the practice in differ-
ent States in tlie Union — that can have no bearing or pertinence here.
We object to that sort of testimony. We have no objection to the Coun-
sel going to this very Sixteenth judicial District, aiid investigating as
to what the practice has been there, in Judge Hardy's own Court, in
cases of this kind.

Mr. Williams. — What I mean is this : Judge Hardy is here on trial for
misdemeanor in office. This is not a question as to whether the practice
was technically right or wrong, according to any form of practice in any
other Judicial District in this State. The question is, whether Judge
Hardy is guilty of a misdemeanor in office, in what he did in office. I
submit, therefore, that it is proper to inquire into the system of practice
under which he was educated ; to inquire into the form of practice in
the State where he was educated. This is for the purpose of showing
that Judge Hardy only pursued a course of practice adopted by Judges
of the highest rank in his own State — men who have enviable reputa-
tions as judicial officers.

The J^rcsiding Officer. — There is not the slightest evidence here that
Judge Hardy was educated in Illinois, or was ever in an Illinois Court
House.

Mr. Willidrns. — We have proved, by half a dozen Avitnesses, that he was
educated in Illinois.

The Pre.nidinij Officer. — All the evidence introduced goes to show, on
that point, that he came from Illinois; that he and some of the witnesses
were boys together in Illinois.

Mr. miliavu. — Well, if we are permitted, we will show, at the next
stage of this examination, that he was educated in Illinois; that he
studied law there ; and there practised his profession as a lawyer.

The J^rr.Hidinfj Officer. — That would open the whole field of inquiry as
to what was the practice in Illinois, and as to what was the law upon
which the practice was founded.

RESUMING EXAMINATION.

Mr. Williams. — Do you not know that there is a great diversity of prac-
tice in different Districts in this State ?

Mr. Edgcrton. — We object to that.

Mr. Williams. — In criminal cases ?

Witness. — I don't think that I have any accurate and definite means of
knowledge on that subject.

Mr. Williams. — You have already stated — and therefore this answer is
appropriate and consistent — you have already stated what the extent of
your knowledge on matters of practice in this State was ; so I will not
ask you again about that. You speak of the duty of a Judge : Judge
Lake, do 3'ou not know, that in the impeachment of Judge Chase, of the
Supreme Court of the United States — impeached for misdemeanor on
the bench, while acting as one of the Justices of the Supreme Court, in
the District of Maryland — do you not know that one of the prominent
charges against him, and one that was most severely pressed, was that
he did interfere with Counsel in the conduct of cases ?

3Ir. Edgerton. — We object to that.

The Presiding Officer. — I think that that case is all in print.

Mr. Williams. — In speaking of the duty of a Judge, of course the wit-
ness must bring to his aid in answering, his knowledge, not alone derived
46

362

from observation, but from reading, also. When a lawyer is called as an
expert, he falls back upon his reading, I sujipose. Now, the question is,
from his reading and his knowledge, as an expert, what is the proper
course for a Judge to pursue in a given ease ? Now, in cross examina-
tion, I ask him for particulars, historical particulars in high places —
whether or not, upon that trial of Judge Chase, under charge for im-
peachment, the most zealously pressed accusation was that he had inter-
fered with Counsel in the management of cases and the empanelling of
jurors ?

3Ir. Edgerton. — And was acquitted.

The Presiding Officer. — I think you may put in the record, including the
result in that case.

Mr. WiUioms. — He was acquitted because a two thirds vote could not be
brought against him.

Mr. Edgerton. — We have no objection to the introduction of the record
in the case.

Witness. — I think that the matter complained of occurred at Richmond,
Virginia, and not in Maryland. I know that the members of the bar
at Eichmond had a grand quarrel in reference to the points that were
raised in the case.

Mr. Williams. — Yes, Sir. The lawyers got after Judge Chase, there,
just as they have got after Judge Hardy, here.

The Presiding Officer. — Well, General Williams, I decide that the ques-
tion is inadmissible.

Mr. Williams. — Now, Sir, if it is competent for, and if it is the duty of,
a Judge to interfere in such a case, as is supposed b}' the h3'potheses on
the other side, would it not be equally his duty, in the trial of a civil ac-
tion, to interpose and exclude testimony, Avithout objection from Counsel
on either side first being made ?

Mr. Edgerton. — We object to that. We have not asked him anything
about civil cases. It is not cross examination ; it has no relation to the
charges preferred against the Eespondent, here.

The Presiding Officer. — I do not think that the question is admissible.

RE-DIRECT EXAMINATION.

Mr. Edgerton. — Do you know of any reason why a diiferent rule of
practice should prevail in the country- from that which prevails in the
city, in regard to the submitting of cases of the character described, and
under the circumstances described, to the jury without evidence ?

A. — I know of no reason.

RE-CROSS EXAMINATION.

Mr. Williams. — Is there any reason that you know of, when the prac-
tice in the cow counties is different from that in the city, is that any rea-
son why you should pronounce the practice in the cow counties wrong ?
Witness. — Merely because they differ ?
Mr. Williams. — Yes, Sir.
Witness. — O, no. Sir.

363

TESTIMONY OF T. W. FREELON.

T. W. Freelon, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you reside '■

A. — In 8an Francisco.

Q. — What is 3'onr occupation 't

A. — I am a lawj^er, Sir.

Q. — How long have you been in the practice of the law ?

A. — Some thirteen or fourteen years.

Q._Where ?

A. — In Mieliigan and San Francisco.

Q. — How long in San Francisco ?

A. — Since eighteen hundred and fifty.

Q. — Has your practice been exclusively confined to San Francisco, or
to a certain extent, more or less ?

A. — My criminal practice, in the District Courts, has been confined to
San Francisco.

il- — State whether you have ever held any official position in this
county.

A. — I was, for the term of four years, and part of another terra, Judge
of the Court of Sessions, in this county.

Q. — You were presiding, as Judge, over that criminal Court for one
term, and pai't of another ?

A. — Yes, Sir.

Q. — What was the uniform practice in jovlv Court, in regard to the ex-
amination of jurors by the Distinct Attorney ?

[Question objected to and withdrawn.]

Q. — What is the duty of the District Attorney, in regard to subjecting
jurors to a rigid cross examiiuition, as to their qualifications to sit as ju-
rors m criminal cases — particularly in cases of felony ?

A. — The duty of the District Attorney is to satisfy himself that the
juror is a competent juror.

Q.— How ?

Mr. Williams. — I dislike very much to object to the examination on the
part of the Counsel for the Prosecution. But I must object to this try-
ing the District Attorney her&, and then turning over the result, what-
ever it may be, to the account of Judge Hardy. This is a question as to
what is the dut}' of the District Attorne3^ We are trying Judge Hardy
here for the manner in which it is alleged he has discharged his own
official duties. And then, again, the duties of the District Attorney are
pointed out by law, and are not to be proven in this manner. If the
District Attorney was here on trial, the practice which he adopted or
followed in this particular case, might be proven here. But the duties
of the District Attorney are matters of law, which are supposed to be
known to every member of the Court in which he practises. Those
duties can be shown by the law itself Then if you want to show his
duties, appeal to the books. If the question was, what is the practice of
a certain District Attorney under the law that should govern him, and
under the rulings of the Court, that would be a different question. I do
respectfullv ask that there be a decision of the Court on this point :
Whether the legal duties of the District Attorne}^ shall be proved here
by the experience of a Judge ?

The Providing Officer.— The question is : What is the duty of the Dis-
trict Attorney under a certain state of circumstances described to the

364

witness. I think that it involves a question as to practice, and is admis-
sible.

The Senate decided that the question was admissible, by the following
vote :

Ayes — Messrs. Banks, Chamberlain, Crane, De Long, Gaskill, Harvey,
Hathawa}', Heacock, Hill, Kimball, iSTixon, Perkins, Porter, Powers,
Soule, and Van Dyke — 16.

Noes — Messrs. Baker, Burnell, Denver, Harriman, Holden, Kutz,
Lewis, Merritt, Ouiton, Parks, Quint, Shurtleff, Warmcastle, Watt, and
Williamson — 15.

Witness. — In answering the question, I shall have to state the practice,
because my ideas as to his duties are derived from what I know to be
the practice.

31r. Edgerton. — What, then, is the practice of the District Attorney, in
the course of the discharge of his duties, in empanelling a jury in a case
of felony ?

A. — The duty of the District Attorney is, as I understand it, in every
case where, for an}' cause, there may be reasonable grounds to believe
that the jurors have formed opinions, or are laboring under prejudices
or sympathies — in such cases, it is the duty of the District Attorney to
examine jurors in considerable detail, in order to discover whether or
not they arc in such a state of mind as would prevent them from being
competent jurors.

Q. — N(nv, has that been the practice of District Attorneys, according
to your observation '{

A. — In such cases, such has been the practice, to my knowledge.

Q. — In a case of the kind spoken of in the examination of Judge
Lake, under circumstances such &s were then described, what would be
the duty of the Court, in your opinion, in regard to interfering where
that pi'actice was omitted '(

Witno'ii. — Well, I don't know as I understand well enough the precise
circumstances to which you noAV refer.

Q. — In a case of felony, concerning which great public excitement
had been aroused.

WUncas. — Where you had reason to believe that jurors had formed
opinions as to the merits of the case, the one way or the other?

Mr. Edytrton. — I say, in a case of felony, concerning which there was
a good deal of popular excitement, and where the jurors' names were
not drawn from the box. but merely taken from a jury list prepared by
the Clerk or Sheriff, where no examination as to their qualifications was
instituted b}- the District Attorney — what would then be the duty of a
Judge? to interfere, or not?

A. — If the Judge had upon his mind any doubt as to whether a fair
jur}' was being empanelled, it would be his duty to express that doubt,
and request the District Attorney to examine the jurors. In such a
case, it would be the duty of the Judge to see that the jurors were
examined.

Q. — SupjDose that the usual hour for the convening of the Court was
nine o'clock ; and suppose that the subpoenas in such a case were made
returnable at ten o'clock ; su2)pose that the jury were empanelled with-
out this examination, when none of the witnesses were there; and
suppose that the District Attorney should then press the Court for a

365
verdict — what would be the duty of the Judo-e in regard to delaviujr the

,.19 '' r> a « e>

trial r

A. — I should suppose that the Judge would first inquire if the subpoe-
nas were returned. If they were not returned, he would then inquire
why they were not returned. He would inquire of the District Attorney
if there was a reasonable prospect of the witnesses arriving so as to
allow of their proceeding with the case in a short time ; and if he found
that there was a prospect of the witnesses arriving within a reasonable
time, then, even if the District Attorney did not himself suggest a
continuance, the Judge ought to say that it was better and proper to
continue this case until the witnesses arrived — for a reasonable time, of
course.

TESTIMONY OF H. H. BYRNE.

Mr. Byrne, being called and sworn, testified as follows :

AJr. Edffrrfon. — Where do you reside ?

A. — In San Francisco.

Q. — What has been your occupation ?

A. — Practising law.

Q. — How long have you resided here ?

A. — In the neighborhood of twelve j^ears.

Q. — You have then been in the practice of the law about twelve years
in San Francisco ?

A. — Since I arrived here.

Q. — Were you District Attorney in this county ?

A. — Yes, Sir.

Q. — How long ?

A. — For six years I was District Attorney here ; but I performed duty
as District Attorney, more or less, for the neighborhood of seven years.

Q. — State whether or not you have had a large criminal practice, not
only here, but in different counties in the State, since your term of office
as District Attornev expired ?

A.— Yes, Sir.

Q. — Acquainted, more or less, with criminal practice throughout the
State?

A. — Yes. Sir ; more or less, here and in some other counties in the
State.

Q. — In a case of felony, Avhich has occasioned a great deal of public
excitement, what is the practice of the District Attorney, in the dis-
charge of his duty, in regard to the empanelling of a jury? I mean,
whether or not the jurors should be subjected to a rigid cross examination
as to their qualifications to sit as jurors ? What is the practice in regard
to the discharge of his duties on such an occasion ?

A. — Well, when great publicity has been given to any transaction out
of which an indictment has grown, and where the District Attorney has
reason to believe that those who have been summoned as jurors have
read or heard anything of the transaction, it is the duty of the District
Attorney — at least, I always considered it my duty — where there has
been any great publicity given to the transaction, through the medium
of newspapers or otherwise, and where the District Attorney labors
under the impression that those who have been summoned as jurors are
likely to have known anything about the transaction, to subject the

366

candidates for jurymen to a rigid examination, in order to test their
competency to sit as jurors.

Q. — Is not that particularly the case — is not the obligation to perform
that duty enhanced in a case where partisan feeling has been inflamed
in regard to the case ?

A. — Well, I should supjjose that it would be.

Q. — Now, Sir, suppose a case of felony of the kind spoken of, and the
usual hour of convening the Court is nine o'clock in the morning, and
the subpoenas are not made returnable imtil ten o'clock in the morning,
and the jury is empanelled without any such investigation as has been
described as necessary, and the District Attorney asks for a verdict
without any evidence being submitted to the jury, what would be the
duty of the Court, as to the delaying, on his own motion, of that case ?

A. — Well, I never was a Judge ; and I scarcely know.

Q. — I ask your opinion, as an export.

A. — Well, I think that it would be the duty of the Court to continue
the case, until such time as the District Attorney could procure his wit-
nesses.

Q. — On his own motion ?

A.— Yes, Sir.

Q. — ISTow, in a case of that kind, and under such circumstances, the
District Attorney omitting entirely to examine the jurors, what would,
in your judgment, be the duty of the Court in regard to interposing on
his own motion to test the qualifications and competency of the jurors ?
Assuming a case of palpable negligence and deliberate violation of duty
on the part of the District Attorney ?

A. — I should suppose that if the Judge had any reason to believe that
there was any collusion between the parties prosecuting and defending,
I should think that under those circumstances, it would be his duty to take
the matter into his own hands to some extent. That is, if he had any
reason to believe that there was any collusion between the parties prose-
cuting and defending the case.

Q. — In a case that has excited a great deal of public interest, where
the parties occupied prominent positions, wliat is the time that is usually
occupied in empanelling a jury, so far as your knowledge extends ?

Mr. WilUams. — Well, we object to that. From the very nature of the
case there can be no general rule applied here. And however long a
time may be taken in this city in empanelling a jury, is no guide in a
county where a different state of things exist.

Mr. CamphcU. — It is true that no definite measure of time can be fixed;
but then, a person long engaged in this kind of practice may be perfectly
well aware that a great deal of time is always, invariably, without ex-
ception, occupied in the empanelling of a jury in such cases, and may be
iible to state that that time is, according to his observation, never less
than so much time. That limit of time he can mention. It is very easy
lor a person of Mr. Byrne's experience to form some estimation of that
time. For instance: if a jur}^ was proven to have been empanelled in
five or ten minutes, it might be easy for him to state that no such thing
had ever taken place within his long course of professional experience.
So, if it was said that a jury had been empanelled within an hour, or two
iiours. And he might be able to name the shortest time that he ever
knew in which a jury was empanelled, through his long course of pro-
fessional practice — either here or anywhere else.

[The Presiding Officer admitted the question.]

367

Mr. Edgerfon. — Give the result of your observation on the subject.
How long it usually takes to examine and empanel a ]ViYj in cow coun-
ties, in cases that have excited a good deal of public interest ?

A. — In some instances a longer, and in some instances a shorter period
of time. There was one case in which I had the honor to be engaged,
where it took in the neighborhood of a day to empanel the jury. It was
a murder case. In another case in which I was engaged, and in which
Mr. Edgerton was on the opposite side, it took in the neighborhood of a
day also. And I have been engaged in other cases of less important
character than murder cases, where it took frona one, to six or seven
hours.

Q. — In cases where public interest, public discussion had been excited ?

A — Well, I have known no instances of such cases, in the country,
outside of San Francisco, in which I was engaged, where it took less
than a day, or the best part of a day, to empanel a jury. In a case in
which I was engaged as Counsel, with Mr. Hanson, in Marin County, the
empanelling of the jury occupied about a daj^.

Q. — State what case that was.

A. — That was the case in which Benjamin Miller was charged with the
crime of murder.

Q. — AVas Mr. Shafter in that case ?

A. — Yes, Sir ; I think he was. I think he aided the District Attorney
in the prosecution of that case.

Q. — Is the Mr. Hansom of which you speak, the same person who has
appeared here, on the stand, as a witness 'i

A. — I did not see him; but I understood that he was here.

CROSS EXAMINATION.

Mr. WllUamx. — Now, j^ou have been asked about a particular instance.
I will ask you if you remember the case of The People vs. Pico, removed
from Santa Clara to Alameda Count}', in which Mr. Campbell and myself
were engaged ? Did we not, in that case, take the first man offered as
juryman, without examination ?

A. — I think we did, Sir ?

Q. — How long did it take to empanel that jur}^ ?

A. — I think that the empanelling of the jury in that case, the trial,
and the rendition of the verdict, occupied something like three hours.
I know it was all gotten through with in a single day.

Q. — How long did it take to empanel that jury ?

A. — I don't tiiink that it took scarcely any time at all. I think that
we took the jury as they were called. We may, possibly, have examined
some, as to their competency; the District Attorney may have done so ;
but it occupied but a very short time, at any rate.

Q. — This was in Alameda County ?

A. — Yes, Sir; in San Leandro.

Q. — A county of farmers, where the jurors were all known to the
public officers ?

A. — I presume so, Sir.

Q. — That was an indictment for murder, was it not ?
- A.— Yes, Sir.

Q. — And the jury were empanelled in the space of a very few
minutes ?

A. — In a ver}' short time.

368

Q. — Was it not with the consent of the Counsel on both sides, that the
first twelve men were taken ?

A. — It is my own impression that that was the case.

Q. — On that occasion, did the Judge interfere with the conduct of
Counsel in empanelling the jury, to interpose challenges, or ask ques-
tions, or object to the course taken by the Counsel on either side?

A. — Well, I do not recollect whether he did, or did not. It is my im-
pression that he did not.

Q. — Would you not be likely to remember, if he did ?

A. — Well, it is several years ago, and I have done considerable busi-
ness since.

Q. — That is true. But whether or not, if it were so, it would not be
such an extraordinary fact that it would impress itself strongly on your
mind ? Whether or not, if he had interfered, it would not have made
such an impression upon your mind as would have induced you to
remember it as long as 3-ou lived ?

A. — I cannot say as to that. ^Ly impression is, that the Judge did
not interfere.

Q. — Now, Sir. where, in the course of j^our practice as District Attor-
ney, you knew very well who the jurors were that were summoned, in a
case of felony, and you were satisfied, from your knowledge of their
general character, that they were proper men to sit as jurors, and you
should let them pass into the jury-box uj^on the strength of that knowl-
edge, and the Judge should interfere, interpose, and take your duties
out of your hands — in such a case as that, what would be your opinion
with regard to the pi^opriety or impropriety of the conduct of that
Judge ?

A. — Well, in the absence of any reason for his so doing, I should think
that he was transcending his duty. If there was any reason for him to
8up])0se that there was anything improper going on — that there was
an}' collusion between the parties, or anything of that kind — then I
should think that it was his legitimate duty to do so. But the presump-
tion always is in favor of the ability and integrity of the officer who is
conducting the ease.

Q. — Do you consider it your duty, as District Attorney, or did you,
absolutely, to object strenuously-, by examination or otherwise, to a
juror's sitting in a case, when you had reason to supj^ose that he might
have formed an opinion, one way or the other, on the merits of a case?

A.— Yes. Sir.

Q. — Although you were perfectly satisfied that he was a fair and
candid man ?

A. — Yes, Sir. I should test him by every rule, in order to ascertain
whether he ^vas entirely competent, or not.

Q. — Even if you were satisfied that he was a perfectly fair, honest
kind of a man ?

A. — Yes, Sir; as a general rule. I should. I should still interpose an
objection, if I thought that he had formed an opinion in the case.

Q. — Even if that opinion was in your favor ?

A. — That does not follow. [Merriment.]

Q. — Then you mean to snj that if you thought that he had formed an
opinion against you, you would examine him ?

A. — Yes, Sir. '

Q- — If you thought that he had formed an opinion in your favor, it
does not follow that you would examine him ?

A. — jSTot necessarily. [Eenewed merriment.]

369

RE-DIRECT EXAMINATION.

Mr. Camphell. — In the case in Alameda County, when Pico was tried,
you were of Counsel for the defendant ?

A. — Yes, Sir.

Q- — That case was one which had been removed from Santa Clara
County to Ahimeda County?

A.— Yes, Sir.

Q. — The defence in that case was that the defendant had shot a person,
while that person was engaged in stealing his horses and endeavoring to
escape with them?

A. — Yes, Sir.

Mr. Williams. — Well, we object to trying the Pico, case over again
here.

Mr. Camphell. — Was that a case which had created any public excite-
ment at all, so as to give the Attorneys any reason to believe that the
jurors were prejudiced on the one side or the other?

Mr. Willidms. — [Sotto voce.] No ; it was a poor devil of a Greaser,* who
had no friends.

A. — No, Sir.

Q. — Were not the jurors severally asked as to whether they had
formed or expressed an opinion in the case ?

A. — M}' impression is that they all stood up and were questioned gen-
erally. My impression is that they were asked as a body.

Q. — In that case, were the jurors' names drawn from a box, or taken
directly from a jury list?

A. — I think that their names were taken from a box.

Q. — Were the witnesses in attendance on both sides, and was the
case regularly tried?

A. — Yes, Sir.

Mr. William.s. — And the Avhole case was tried in two or three hours?

A. — It was tried. I think, during the day.

Mr. Campbell. — Don't j'ou recollect that the Court met at ten o'clock,
and that tlie case Avas not concluded until four or five in the afternoon?

A. — I don't think that it took as long as that. I don't think that it
occupied more than three or four hours.

Q. — The testimony was very shoi't?

A. — Yes, Sir; very.

TESTIMONY OF HARVEY S. BROWN.

Harvey S. Brown, being called and sworn, testified as follows :

Mr. Edijcrton. — What is your occupation ?
A. — I am a lawyer.
Q. — You live in San Francisco?
A. — Yes, Sir.

Q. — How long have you been practising law in this State ?
A. — I have been practising law since eighteen hundred and forty-nine,
until last July.

Q. — Were you District Attorney of this county ?
A. — Yes, Sir.
Q. — How long ?

A. — For three years and one half.
47

370 ^

Q. — State whether you have had any criminal practice outside of this

city ?

A. — Not very much, outside of this city. I have had some.
• Q. — In an important criminal case, a case of felony, which had excited
a great deal of public interest, what is the duty of the District Attorney
as to examining jurors, with reference to their qualifications or capacity
to sit in such a case ?

A. — It dejjends on the character of the case, the character of the
felon.

Q. — I will assume a case. Take a case of duelling. In a case of that
kind, where, as in a case of gambling Avhen the law makes gambling a
felony, there are many persons w^ho are opposed to the law under which
the trial is had, and will not, therefore, under any circumstances, find a
verdict of guilty — what would you consider to be the duty of the District
Attorne}' with reference to examining the jury, particularly in regard to
that point ?

A. — In answer to that question, I w^ould say: That there are a certain
classf of eases which attract a large share of public attention, either
through the newspapers, or in common conversation, and in those cases
it is the duty of the District Attorney to examine the jury carefully, in
order to see whether they have formed or expressed an opinion in regard
to the guilt or innocence of the parties. In reply to your last interroga-
tory, I would say : That if the District Attorney had any reason to be-
lieve that any of the persons who were summoned as jurymen were
opposed to the law, unqualifiedly opposed to the law making the offence
charged a crime, it would be the duty of the District Attorney to exam-
ine them particularly with reference to that matter.

Q. — Suppose the usual hour for the Court to convene was nine o'clock
in the morning, that a case was set for a certain day at that hour, that
the subpoena was not made returnable until ten o'clock, that the jur}^
w^ere sent into the panel — their names not being drawn from a box, but
taken fi'om a list — and the District Attorney entirely failed or neglected
to examine jurors as to their qualifications — I ask you, whether, in such a
case, the Judge should interpose and examine the jurors himself?

A. — Well, Sir, in the first place, w^ere I District Attorney, and had I
subpoenaed my witnesses for ten o'clock, I would not, under any circum-
stances, commence the case until the hour when the subpoenas were
made returnable.

Q. — What, in your opinion, Avould be the duty of the Judge, under
such circumstances ? Where the District Attorney had neglected entirely
to examine the jury as to their capacity or qualifications, either as to en-
tertaining prejudice, or having formed or expressed opinions, or anything
of the kincl — making no examination whatever, and letting them go into
the panel, and filling up the panel before the hour when the subpoena was
made returnable for the witnesses. What, in your opinion, would be the
duty of the Judge, under such circumstances ?

A. — Well, Sir, in my opinion, the Judge would have no duty to per-
form, except to sit upon the bench, and preside in the ordinary manner,
unless he perceived that there was gross ignorance, or neglect, or cor-
ruption, on the part of the District Attorney — that the District Attorney
was not, for some reason or other, performing his duty. I. think that if
the Judge had reason to believe that the Prosecuting Officer was acting
either ignorantly, or with wilful neglect, or corrujjtly, it would be his
duty to make some suggestions, at least.

Q. — Now, Sir, suppose such a case — the witnesses subpoenaed for ten

371

o'clock, the ease set for nine o'clock, the jury empanelled Avithont any-
such examination as we have spoken of, either on the ])art of the District
Attorne}^ or the Court, no witnesses being present for the prosecution — •
what wouhl be the duty of the Judge, as to granting a delay, on his own
motion, of the trial of the case, in order to get witnesses there — and
when, too, the District Attoi-ney himself had asked for a verdict, with-
out any evidence being taken ?

A. — Well, Sir, I can only sa}^ what I woukl do if I Avere acting as
Judge. ,

Q- — What, in your opinion, wouhl be the duty of a Judge, under such
circumstances as I have described 'i

A. — Well. Sir, were I sitting as Judge — no ; I will answer the question
in another way : I do not beJieve it to be the duty of a Judge to be made
a prominent actor in a farce, cither through the corruption or imbecility
of a Prosecuting Attorney.

Mr. Wil/iams. — Sto]) a moment, until I get that answer down.

Mr. E(/gn-fon. — Would it, or would it not, be the duty of a Judge to
interpose in such a case as I have given, and order a delay of the case?

A. — As T intimated before, that is a matter of oijinion. In my opin-
ion, that would be his duty.

CROSS EXAMINATION.

Mr. Williams. — Do you know, Sir, that there are a good many promi-
nent lawyers who disagree with 3'ou as to the right of a Judge to inter-
fere in such a case ?

A. — Very possibly. Sir.

Q. — In what State were you educated, professionally ?

A. — In New York.

Q. — Now, do you not know that the sentiments of lawyers, and the
opinions of lawyers, who have practised in the Western States, ai-e en-
tirely contrar}' to the idea of a Judge interfering at all, except to decide
questions that are presented to him '(

A. — I am not Jamiliar with the practice in the Western States, Sir. I
never practised there.

Q. — I ask you, whether, from your reading, from your professional
knowledge, gathered fronx all sources, you do not know that in many
States it is not forbidden, by practice and the understanding of the law,
that a Judge shall interfere, in any single particular, in the conduct of a
case, except to decide such questions as are presented to him ? I speak
of criminal trials.

A. — I never had any occasion to examine the statutes of —

Mr. Williams. — [Interrupting.] I don't speak of statutor}^ enactments.
But, whether that is not the general law and understanding, from the
the practice of Western States; so that the Judge does not attempt to
interfere, in any manner, in the conduct of a case, except to decide such
questions as are directly presented to him ?

A. — I am aware that the powers of the Judges are much more limited
in some States than in others. That fact I know from my reading. I
have no personal knowledge in regard to the matter.

Q. — Do you not know. Sir, that the Judges in several States are even
forbidden to give any other instructions to the jury except those which
are asked for by Counsel on the one side or the other ?

Mr. Edgerton. — We object to any such questions as this. What is the
practice in other States does not determine the practice here.

372

Mr. WiNiayns. — Judge Hardy is charged here Avith misdemeanor, for
wilful neglect of duty while in ottice. The question is. whether Judge
Hardy has been guilty of wilful neglect or misconduct in otficc. Now,
we do not propose to go behind any legal and definitely fixed practice
here. But as to those matters wherein a Judge may use his discretion,
we contend that it is proper to show that his exercise of discretion may
be influenced or directed by the practice of that portion of the country
in which he Avas educated.

The PresiiJiiKj Officer. — If the practice of every oth^- State in the Union
can be brought into this trial, it would be interminable. But. aside from
that, a Judge, sitting as such in the State of California. Avherever he may
have been originally educated, is presumed to know California law and
practice. And if he neglects to fulfil his duties according to tbe practice
which exists here under the law, it is hardly competent, I think, for him
to introduce a ditferent or contrary practice in other States, as an excuse
or a palliating explanation of his conduct here.

Mr. ]Vi/iiam>t. — Well, without reference to any statute, do you not know
that in many States the practice is such that tbe Judge is' not at liberty
to interfere on the one side or the other of a case, or take any direction
of it. outside of deciding such questions as come before him. and deliver-
ing a charge to the jury?

A. — It seems to me that I have a recollection of some such rule pre-
vailing in some one or more of the States.

Q. — I ask whether or not it is the received understanding of the bar
and of Courts, in many of the States — that a Judge has no right to inter-
fere in the trial of a case, beyond deciding questions which may come
before him on the suggestion or argument of Counsel, and the delivering
of a charge to the jury ?

A. — I think, that if any such rule prevails, it is limited to a very few
places.

Q. — How many should you sa}' ?

A. — Well. I have a vague impression that there is some such rule as
that of which you speak, obtaining in some of the States. Of course. I
was never called upon to study the ju-actice of every one of the States,
and having never done so, I cannot make any explicit answer.

Q. — I didn't suppose that you were personally acquainted with the
practice in every one of the States, or that 3'ou had studied particularly
the books describing the practice in every one of the States. Still, you
must have some general knowledge in regard to these matters, as they
are in other States. And don't you know that this is the case in the
State of Missouri ?

A. — No, Sir; I don't recollect how that is, in regard to that State.

Q. — Don't you know that the Judge there never interferes in anything
beyond what consists in deciding questions that Attorneys may bring be-
fore him. and delivering charges to the jury?

A. — I believe the charges are limited by the statute.

Q. — But I do not ask you particularly about the charge of the Judge.
I ask you if it is not the general practice, the generally received idea,
among the bar and Judges, that a Judge has no right to interfere in the
conduct of a case in the manner which the Counsel upon the ojiposite
side have indicated would be proper here in this State ?

A. — According to my recollection, that provision, if any such exists, is
a statutory provision.

Q. — I will ask 3-0U now, what are the duties of a Judge, beyond the
charging of a jury?

373

Mr. Camphell. — The statutes of a State speak for tlieiaselvos on tliat
point. If there is any oommon hiw rule in re<>-ard to that, I sliould like
to know it.

Mr. Williams. — I will try to help you know it. Do you not know. Sir,
that there is eonsiderahle diversity of practice in the' District Courts in
this and various States;* And does not tliat practice depend, to a con-
siderable extent. uj»on the practice of the localities from which the
Judges who preside in these several i>istricts come ':'

A. — T have observed that there is some diversity of practice in the
ditferent Districts.

Q. — Is not this the fact: that a Judge, in coming from our State, or
from some other State, where a ditferent practice prevails, might do
here, or might omit to do here, what you would think he ought to do, or
ought not to do, according to your understanding of the particular rules
of practice here ?

Mr. Eihjerton. — Well, we object to this. This is an attempt to bring
in here matter which has no relevancy whatever, which cannot affect
this case, whether the answer be Yes. or No.

Mr. WiUiamx. — Then the answer can't hurt 3'ou.

Mr. Edijirton. — And there are other objections to the question, besides
that of irrelevancy. Stronger objections, if anything.

Mr. Williams. — Then you have not given the Court your strongest
objection.

Q. — If a Judge should not do all that you have said you thought was
proper for him to do, would you consider that evidence of criminal in-
tent on his part ? necessarily y

A. — Not necessarily-.

Mr. C(nnj)/>fll. — ^We object to that question.

The Prrsidiug Officer. — It is not a ]>roper question.

Mr. Williams. — Well, I don't know but that comes within the objection
made some time ago. Matter of argunient, and not of testimony, per-
haps.

Q. — Von say you have been District Attorney in this city three and a
half jears 't

A. — Yes, Sir.

Q. — In empanelling a jury, did the Judge ever take a case out of your
hands ?

Mr. Campbell. — We do not contend that it is the duty of a Judge to
take a case out of the District Attorney's hands. But we put the ques-
tion, and found our argument upon the answer to the question — Whether
a Judge ought not to have something to do with the examination of
jurors, when that obvious and very important duty is wholly neglected
by the District Attorney, in a case which has obtained great notoriety,
and where the jurors may be supposed to have formed prejudices or opin-
ions on one side or the other of the case.

Mr. Williams. — While you were District Attorney, did the Judge ever
interfere in the examination of jurors, and go beyond what you found or
considered was your duty to do in the matter of challenging jurors ?

A — No, Sir; he was never impertinent enough, (to say tlie least,) to
do that.

Q. — Would you not have considered it impertinent, if he had done
BO ?

A. — If he had done so, he and I would have had a disagreement. I
should have considered it an unwarranted interference with my duties.

374

Q. — There would have been some coldness between you, then, I sup-
pose ?

A. — Yes. Sir; there would have been apt to have been — or some
warmth.

Q. — Xow, Sir, suppose, upon examination or from personal knowledge,
you were satisfied with a man who was presented as a juror — satisfied
that he was a proper man to sit as a juror — would consider and decide
the case fairly on the part of The People; and suppose that, after you
had expressed your satisfaction, the Judge should go into a cross exam-
ination of the juror, putting questions as to his competency — all this
done after you had expressed yourself satisfied as to his competency;
vv'ould you. or would you not. think that that was an impertinent inter-
ference on the part of the Judge 'f

A. — I most certainh' should.

Mr. Comphell. — There has been no foundation whatsoever laid here for
that question. The case that we suppose, is quite to the contrary. The
qiiestion. which has just been asked the witness, supposes an interference
on the part of the Judge after there has been a full examination of the

RE-DIRECT EXAMINATION.

Mr. Edgcrton. — The common law has been referred to, and your opinion
asked as to a general rule of practice. Are you aware of any rule of
common law. as it prevails in this iState, or in any other State, that would
prevent a Judge, where there was such a state of facts presented before
him as have been described to you here, where there was reasonable
ground to suspect collusion between the Counsel or tlie parties — is there
any common law rule anywhere, to your knowledge, that would prevent
a Judge from interfering, under such circumstances, to see that justice
was done, either in the examination of jurors or witnesses? Are you
aware of any common law rule that would prevent a Judge from acting
in such a manner, under such circumstances ?

A. — Xo, Sir. I would state, that I suppose it to be the office of the
Court to administer justice with impartiality to both sides. I do not
suppose it to be the dut}' of the Court to assume the place of the Prose-
cutor, or to aid the defendant's Counsel.

Q. — XarroW it right to this point: If the facts before a Judge, in a
certain case, afford him reasonable ground for suspecting that there is
collusion between the Attornej's practising before him, are you aware of
any rule, statutor}- or common law rule, that would prevent a Judge
from interfering to see that justice was done ?

A.— No, Sir.

Q. — Has it not frequently occurred, in the course of your criminal prac-
tice, that the Judge has interfered, and asked jurors questions, and even
asked witnesses questions during the progress of the trial?

A. — For the information of the Court — Yes.

Q. — For the information of the Court, and the furtherance of justice ?

Mr. Wi//iamv. — You add that.

Witncs>i. — For his information, certainly; for the furtherance of justice,
perhaps.

375

TESTIMONY OP JESSE MORRILL.

Jesse Morrill, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you reside ?
A. — In Sacramento.

Q. — Do you know the Respondent, Judge James H. Hardy ?
A.— I do.

Q. — Where were you about the time of the election of Gen. James. A.
McDougall to the United States Senate ?
A. — I was in Sacramento.

OBJECTION TO REBUTTING TESTIMONY.

Mr. Williams. — The Counsel on the other side have courteously informed
us what they propose to prove by this witness. It is to prove the same
fact that was testified to by Mr. Finnigan. Finnigan testified to a cer-
tain declaration on the part of Judge Hardy. We have shown counter
proof on the same point — as to the remark attributed to Judge Hardy on
that occasion. Now, we contend that they cannot come back again with
testimony on this point. When they find that their case is weak, and ut-
terly insufficient on this point, as our rebutting testimony shows it to be,
they have no right, we contend, to try this case over again, so far as this
particular matter is concerned.

Mr. Cainphrll. — This is a clear cas3e of proper testimony in rebuttal.
We have shown, by Mr. Finnigan, a certain state of facts. Then certain
gentlemen have been introduced here for the purpose of showing that
they were present with Judge Hardy on the occasion referred to, and
that, if any such toast was given by him as has been related by Mr. Fin-
nigan, they had no recollection of it. The object is to impeach Mr. Finni-
gan. We desire now to corroborate the testimony of Mr. Finnigan by
the evidence of other witnesses who were present on the occasion re-
ferred to, and who saw and heard the whole transaction which Mr. Fin-
nigan describes, and who can and will testify in regard to it in a manner
strictly corroborating and sustaining Mr. Finnigan.

3Ir. " Williams. — Now, let us test this matter by rules of evidence.
They prove a fact by Mr. Finnigan. Thej^ close their case upon that
point, and with that witness. Now they propose —

3Ir. Campbell. — [Interrupting.] Pardon me one moment. General
Williams. I desire to state that we were not aware of the existence of
this testimony, at the time Mr. Finnigan was introduced. AVe did not
know then, that Mr. Morrill Avas present on this occasion to which Mr.
Finnigan referred. When Mr. Morrill heard of this testimony, or read
the public accounts of the testimony upon which it was attempted to
impeach Mr. Finnigan, he came forward and informed us of his knowl-
edge in the premises.

Senator Quint. — I desire to have the Counsel reduce the proposition to
writing. Let them reduce to writing what they propose to prove by
this witness.

Mr. Edgerton. — We will do so, certainly.

PROPOSITION.

The Counsel for the Prosecution reduced to writing the proposition
which they proposed to prove by Mr. Morrill. It read as follows :
" It is proposed to show that Mr. Morrill was present."

376

ARGUMENT UPON THE PROPOSITION.

Mr. Williams. — Mr. President, the rule of evidence is perfectly well set-
tled and understood, that where the prosecution proves its main charge,
by one witness, or by two, three, or four, witnesses, and rests, and after
the defendant has come in and disproved that charge, they are not at
liberty to add. They are not at liberty to add other proof, direct, affirma-
tive, proof, of the charge, which direct proof might have been given in
connection with that proof, of the same character, which already has
been given in the first instance. That rule of evidence will not be denied.
The result of a contrary rule would be, that the prosecutor would come
in, with half a dozen witnesses, swears one, or two, or three, of them,
anjd then rests, keeping the other three in reserve. The defendant then
disproves the testimony of the first three witnesses, by proving that the
first three witnesses introduced were one hundred miles distant from the
place where the transaction, referred to by them in their testimony, was
said to have taken place. Tlien, in comes the prosecution, with their
rorjys de reserve, to make out their case again, after it has been closed, ask-
ing that this evidence be received, under the guise of rebutting testimony.
That proposition cannot be controverted.

What is proposed here ? They put Finnigan on the stand to prove
that Judge Hardy proposed to drink a disloyal toast in the presence of
Botts, Aylett, Laspej^re, and some others who are now out of the State.
We call Botts, Laspeyre, Aylett, and every man that Finnigan dares
name as having been there, whom we can reach, and they swear that
this statement of Finnitcan's is a fabrication — that no lano;ua<re, of the
kind which Finnigan attributes to Judge Hardy on that occasion, was
delivered by Judge Hardy in their presence.

Now. after this, they propose to come in and prove — after we have
shown, by the most competent witnesses, that this story of Finnigan's is
a sheer fabrication — they jjropose to introduce more witnesses to the
same point, witnesses that could only be legitimately introduced in the
first instance. If there is any rule of evidence that will excuse, much
less directly warrant, the introduction of such testimony at such a time,
I am not aware of it.

Mr. Edgerton. — According to my judgment, General Williams has
Btated a good reason Avhy this evidence ought to be admitted. He has
assumed a case where three witnesses were brought to prove a certain
point, and the opposite party introduced three or more witnesses, whose
testimony directly conflicted with that given by the three witnesses first
called. Xow, General Williams will argue to this Court, that this wit-
ness, whom we have introduced, stands impeached by the testimony of
the witnesses whom they have introduced in rebuttal, on the particular
point referred to. And therefore, we say, that this evidence, which we
now offer, is strictly of the character of rebuttal testimony; because it
rehuts any such inference as they might try to draw, and would undoubt-
edly attempt to draw, from the disproving evidence of the three wit-
nesses whom they have introduced.

And, again, we put the introduction of this testimony upon the ground
that we did not know of its existence at the time when our first witness
to this point was called. And we ask that the same amount of liberality
invoked by the Defence, and heretofore extended to them by this Court,
be exhibited towards The People. It is not for the purpose of detaining
the Senate, by prolonging this trial, that we ask to be allowed to intro-

377

duce this evidence. It is for the piu-pose of doing justice to the case on
the part of The People.

Mr. Williams. — This does not come in sight of the principle and prac-
tice of impeachment. They prove a certain fact, by certain witnesses,
or by a certain witness, and we disprove that fact. They prove that a
certain toast is drank in the presence of the three men whom we sub-
sequently introduced ujjon the stand. We prove, by those three men,
that no such toast was drank, or proposed, on the occasion referred to.
If that impeaches their witness, it does so incidentally. The three wit-
nesses whom we have introduced upon this point, were not introduced
for the purpose of giving impeaching evidence. We introduced their
evidence as contradicting the case on the part of the Prosecution, on
this point, entirely.

Now, shall they be permitted to come in again, and make out their
• ase, by the introduction of new testimony ?

[The Presiding Officer ruled that the testimony proposed to be intro-
duced, was admissible.]

Mr. Williams. — We ask that the question be submitted to the Court.

Senator De Long. — I would inquire whether the rules of common law
are to be followed, in this case ?

Senator Van Dyke. — I understand that the Court have already decided
to exercise the utmost liberality towards both sides, in reference to the
admission of testimony. AVe desire to hear all the facts that can be
legitimately brought to bear upon this case.

Senator Crane. — That is my desire, certainly. I wish to hear every-
thing that can be introduced to throw light upon this case ; and I do
not ithink that wo are to be restricted by Common Law rules in deciding
on the introduction of any testimony. Of course, there must be some
limit to the introduction of testimony; but I think the rule as to admis-
sion, or exclusion, depends very largely upon the pure discretion of this
body.

Senator Quint. — I think that this body ought to be governed at least by
some general rules in regard to the introduction of testimony. Other-
wise, we may be obliged to sta}^ here until the middle of next summer.
to get through with the case.

Senator Crane. — Then let us stay.

Senator Parks. — I desire to inquire, whether, if we admit this testi-
mony, the other side will have the privilege of turning round and intro-
ducing testimony to rebut this?

The PrrsiiUnj Officer. — I presume that that will form another and dis-
tinct question.

Senator Parks. — But our understanding in regard to that matter might
influence our votes now.

The Presiding Officer. — The Chair cannot be presumed to be able to
answer the inquiry of the Senator from Sutter, however essential an
answer may be in forming his decision ui}on the question before the
Court.

Senator Perkins. — Mr. President, I call Senators to order. I believe,
that, according to our rules, there can be no debate upon a question of
this kind.

VOTE ON ADMISSION OF TESTIMONY.

The question as to the admission of testimony under the written propo-
sition offered by the Counsel for the Prosecution, was submitted to the
Court, with the following result :

378

Ayes — Messrs. Banks, Burnell, Chamberlain, Crane, Callagher, G-askiH^
Harvey, Hathaway, Hill, Kimball, Kiitz, Lewis, ISixon, Oulton, Perking,
Powers, Soule, Shurtletf. Van Dyke, and Warmcastle — 20.

Noes — Messrs. Baker, De Long. Harriman. Holden, Merritt, Parks,
Quint, and Watt — 8.

EXAMINATION OF JESSE MORRILL RESUMED.

Mr. Edgerton. — You state that you were in Sacramento when General
James A. McDougall was elected United States Senator ?

A.— Yes, Sir.

Q. — Do you know the Eespondent ?

A.— Yes, Sir.

Q. — Do you know John H. Finnigan ?

A. — Yes, Sir. I know him from the fact that Judge Hardy called him
Finnigan, on that day.

Q. — Stale Avhether you saw Judge Hardy at the St. George Hotel
about that time ?

A.— Yes, Sir ; I did.

Q. — Did you see Finnigan there ?

A.— Yes. Sir.

Q. — Do you know Botts, Aylett, and Laspeyre ?

A.— I do.

Q. — Do you know Senator Crittenden — Mr. Crittenden, who was Sena-
tor from EI Dorado County ?

A. — Yes, Sir.

Q. — Was he there on that occasion ?

A. — I think he was.

Q. — State whether there Avere any others present there at that time?

A. — Yes, Sir; I think that Mr. Showalter was present. 1 know that
there were many persons besides, in the room at the time.

Q. — Rather a large party of these men, was there not ?

A.— Yes, Sir.

Q. — Where were you then ?

A. — I was in the bar room of the St Geoi-ge Hotel.

Q. — State whether you heard anything from Judge Hardy, there, at
that time, while in that company', in the way of a toast, which he pro-
posed should be drank, upon the subject of our present national diffi-
culties ?

A. — There were three or four, probabl}^ five, persons, who were stand-
ing up at the counter, having their glasses filled; and Judge Hardy, I
am Sony to sa}^ was with the rest of them, and was pretty tight. Said
Judge Hardy: "Here's to the Southern Confederacy and Jeff. Davis;
ma}' his name be handed down to posterity, and immortalized as that of
a second Washington." Finnigan says to him : " Hardy, if you drink
that toast, I will ram that tumbler down your throat." Judge Hardy
then took Finnigan by the elbow, in this way. [witness illustrating
Judge Hardy's manner, by taking hold of the Reporter's elbow,] and
walked otf with him to a corner, and talked to him.

CROSS EXAMINATION.

Mr. Williams. — State what day that was on which you say this thing
took place ?

A. — It was the day on which Gen. McDougall was finally elected to

o( \)

he Senate of the United States. The reason that I remember that very
,ell, is, that immediately after that, I met Gen. McDougall, and congrat-
lated him on his election.

Q. — Now, Sir, for the purpose of asking you to verify your recollection
s to the occasion on which this occurred, and to see if you have not got
wo ditferent occasions confused in your mind, I will ask you if you do
lot know that Judge Hardy was then under arrest, then in the station
lOuse, under indictment?

A. — No, I do not. I know that he was under an indictment, but I do
wt know that he was then under arrest, in the station house.

(}. — Didn't 3^ou go to the station house to see Judge Hardy on the day
ihat McDougall was elected?

A. — No, Sir; I never went to the station house to see him.

Q. — AYhere did you go to see him ?

A. — Not any where.

Q. — Did 3^ou see him while he was in custody?

A. — Yes, Sir ; I saw him when they said he was in custody.

Q,. — Do you remember the day ?

A. — No. I don't. I could have ascertained the date exactly, if I had
Icnown that I was going to be called up as a witness ; because I had made
a note of it, to hand it in to a certain place.

Q. — Hero is the Journal of the Assembly of last year. I want you to
look at this page in it, and see whether or not Gen. McDougall was
finally elected United States Senator on the second of April, eighteen
hundred and sixty-one?

A. — It seems so, Sir.

(^. — You find it to be the second of April?

A. — I thought it was after that.

Q. — Now, haven't you been mistaken about that ?

A. — I might have been.

Q. — Haven't you got two things mixed together?

A. — I might.

Q. — You vii(jJi( have got two things confused ? You might have seen
Judge Hardy and these other persons in there at different times?

A. — 1 might have seen them in there at a different time from that
which I fii'st su])posed.

^Senator J\i /As.— Do you recollect whether Finnigan was drinking with
that party, or not ?

A. — No, he Avas not.

Senato)- Kutz. — Was this toast or sentiment, spoken of, proposed in the
presence of Dr. Aylett, Mr. Botts, and Mr. Laspeyre?

A. — If I recollect right, Dr. Aylett was standing up by a billiard table,
and Judge Botts was standing with his back turned partially towards
Judge Ilardy.

Q. — How "far was Dr. Aylett standing from the counter ?

A. — Perhaps six or eight feet.

Q. — What was Dr. Aylett doing ?

A. — I think that hewas leaning partially back against the billiard
table.

Q. — Had he any glass in his hand ?

A.— No, Sir.

Q. — Did Judge Botts have any glass in his hand ?

A. — I did not see, or, I do not remember.

Q. — Did Laspeyre have any glass in his hand ?

A. — I think he had ; I am not certain.

380

Q. — Now, who were those persons who had their tumblers ready to
drink when this toast was delivered ?

A. — I do not remember who had glass in hand, except Judge Hardy.

Q. — Did you see whether the rest of the party drank that toast, or
not?

A. — I did not stop to see whether they did or not. After Fiunigan \-
and Judge Hardy walked away, I turned round and said something to P'
some other man, and did not notice whether they drank or not.

Q. — You did not see Judge Botts have any glass in his hand, thei.

A. — Yes, Sir; I think I saw a glass in his hand. He was standing
one end of the counter, and I was standing tOAvard the other end.

Q. — And you cannot certainly remember that any one else had a glass
in hand, except Judge Hardy and Judge Botts ?

A. — I am not certain.

Q. — How long. have you lived in Sacramento?

A. — I went to Sacramento in October, eighteen hundred and forty-nine,
and I have lived there ever since.

Q. — Did you live there when Judge Hardy was District Attorney ?

A. — Yes, Sir.

Q. — Have you any unkind feelings toward Judge Hardy ?

A. — Not the slightest. We have always been on very i'riendly terms.

Q. — Did not Judge Hardy prosecute you for petit larceny, when he
was District Attorney ?

A. — Well, he did; and I was honorably acquitted, by a juiy of my coim-
tryraen.

Q. — On the ground that the property was part of a freehold, and could
not be stolen?

A.— No, Sir.

Q. — Was not the charge for stealing apple trees from a nursery, and
was not the defence tliat the trees grew in the ground, and were there-
fore real estate, and therefore could not be the object of theft ? [Merri-
ment.]

A.— No, Sir.

Q. — Were you not acquitted on legal grounds? On technical grounds?

A. — I Avas acquitted because the proof was that I did not steal the
trees. The proof showed that I had bought them and paid for them, at
my shop door.

Q. — Now. Sir, I will ask you whether the jury who tried you did not
come back into the Court and inquire of the Court whether they could
legally convict you of larceny, inasmuch as the property stolen was
trees in the ground ? And instead of bringing in a general verdict of
"Not guilty," did they not bring in a verdict of " Not guilty o^ petit
larcemj," underscoring the words '-petit larceny;" showing that the ver-
dict of acquittal was rendered on a technical question of law?

A. — I think not.

Q. — Well, you were acquitted ?

A. — I was acquitted.

Q. — Well, Sir, you seem to have made a legal defence there, whether
it was a moral one or not. I will ask you another question : Did not
the Masonic Lodge expel you for this ?

A. — I shall not answer that question.

Q. — On appeal, did not Judge Hardy vote against you ?

A. — I do not know.

Q. — Have you not, ever since that time, betra^'ed a bad feeling toward
Judge Hardy on account of his prosecuting you for petty larceny ?

381

A. — No, Sir. Judge Hardy and I often talked about the matter. I
)ld him that he did his duty as a public officer, and I did not blame
Im.

Q.— Did you feel so, Sir?

A. — Yes, Sir. And I feel so now.

Q- — Didn't you blame him for his action in voting against you on the
uestion of expulsion from the Masonic Lodge?

A. — I did not know that he voted against me.

Q. — And you have the kindest feeling toward him?

A. — Never otherwise.

Q. — Probably love him? [Merriment.]

A. — As much as I do any other man.

RE-DIRECT EXAMINATION.

Mr. Eilgerton. — "Were there not two elections of General McDougall
0 the United States Senate ? One election which fell through, and one
vhich was conclusive ?

A. — There were.

Q. — Without regard to time, are you positive that you saw and heard
vhat you have stated took place at the St. George Hotel ?

A. — Yes, Sir.

Mr. Eilycrfon. — That is all.

Witru'sx. — [As he was leaving the stand.] I would like to say that
:here was no other time when I saw him there.

Mr. Williams. — Well, if there is anything else that you want to get otf
^'our stomach, you can come back and get it off. [Merriment.]

[Eecess for half an hour.]

TESTIMONY OF LEROY S. FISHER.

Leroy S. Fisher, being called and sworn, testified as follows :

Mr. Eilgerton. — Where do you reside ?

A. — I reside in , Alameda County, at this time.

Q. — Do you know Judge Hardy, the Eespondent here ?
A. — No, Sir ; only by sight.
Q. — How long have 3'ou known him by sight ?
A. — Well, about two years.
Q. — Do you know John H. Finnigan ?
A. — Yes, Sir. I " seen " him a year ago this spring.
Q. — Where did you see him?
A. — In Sacramento.
Q. — Whereabouts in Sacramento ?
A. — At the St. George Hotel.
Q. — Do you know Botts ?
A. — No, Sir.

Q. — Do 3'Ou know Dr. Aylett?
A. — No, Sir ; I do not.
Q. — Do you know Thomas Laspeyre ?
A. — No, Sir ; 1 do not.

Q. — On M'hat occasion was it when you saw Mr. Finnigan at the St.
George Hotel ? State whether there is any particular incident that took

382

place on that occasion, which makes yon remember the fact of having
seen him there ?

A. — It was the night after McDougall was elected to the United States
Senate.

Q. — Whereabouts, in the St. George Hotel, was this ?

A. — In the bar room.

Q. — And you saw Mr. Finnigan and Judge Hardy in the bar room ?

A. — Yes, Sir. I saw Mr. Finnigan and Judge Hardy there ; and Judgi
Hardy was standing up at the bar, drinking, or about to di'ink.

Q. — State whether you heard Judge Hardy give a toast there, or a
sentiment, having reference to the troubles in the country ?

A. — He proposed a toast while he and some others were standing up at
the bar. He proposed a toast something in this form : " Here's to the
Southern Confederacy, and here's to Jetf. Davis : and may the name of
Jefferson Davis live and be perpetuated in the same light as the memory
of the name of the immortal AYashington."

Q. — Was Finnigan there ?

A. — Yes. I said Finnigan was there.

Q. — Did Finnigan say anything then ?

A. — He stepped up to that gentleman, [pointing to Judge Hardy,] —
some called him "Judge Hardy," some called him " Jim," some called
him " Hardy," and some called him •' Judge " — and told him that he
thought that was ver}^ strange language for a man, elected to an office, to
use at the present time, in a public bar room which was full of people.
Judge Hardy then took him one side, and whispered to him, in a low
tone of voice, that he was only in fun.

Q. — How far Avere you from Finnigan and Haixly at that time ?

A. — Some five or six feet.

Q. — Did Mr. Finnigan say anything else to Hardy?

A. — He told him that if he drank that toast, he would make him drink
the tumbler afterwards. [Merriment.]

CROSS EXAMINATION.

J/r. Wil/iams. — How many times have you talked this matter over be-
fore you came here ?

A. — Well, I may have talked about it several times.

Q. — Who was informed that you kncAV of this matter before you came
here ?

A. — Mr. Ferguson knew it before this case ever came up before the
Senate.

Q. — What Mr. Ferguson ?

A. — R. D. Ferguson.

Q. — Of Sacramento ?

A. — Yes, Sir.

Q. — A member of the other House ?

A. — Yes, Sir.

Q. — Did you ever see Judge Hardy before that occasion ?

A. — No, Sir.

Q. — Have you seen him since that occasion, until this trial ?

A. — No, Sir.

Q.— Who called him '-Jim?"

A. — I don't know the gentleman.

Q. — But you are sure that one man called him " Jim," and another

383

nan called him " Judge," and another man called him " Hardy " — which,
leing put together, means, Judge Jim Hurdi/. [Merriment.]

Mr. Edgertoii. — [To Mr. Williams.] That lets you out.

Mr. Williams. — One man calling him '-.Judge," and another man calling
lim " Jim," and another man calling him -'Hardy," led you to the con-
■lusion that he was the man who proposed to drink that toast ?

A. — Yes, Sir. [Merriment.]

(}. — When was you first spoken to ahout being a witness in this case,
)r inquired of as to what you would testify to ?

A. — It was last week.

Q.— Where?

A. — I received a letter in Alameda County, ahout it. That was the
iist time I knew anything about this case.

(}. — Who did you have the letter from ?

A. — From Mr. Ferguson.

(,>. — R. D. Ferguson, Assemblyman from Sacramento County?

A. — Yes, Sir.

i^. — He is a member of the Assembly, is he not ?

A.— Yes, Sir.

Q. — Did Mr. Ferguson tell you, in his letter, what time it was when this
matter was said to have taken place ? Did he say that it took place at
the time of the election of General McDougall to the United States Sen-
ate ?

A.— No, Sir.

Q. — In his letter, did he mention the time, or fix the time at all, at
which this toast was said to have been given ?

A.— No, Sir.

i^. — Did he give the language of the toast ?

A. — He gave the language of the toast, as Finnigan has stated it
here.

Q. — Do you know whether General McDougall was elected to the
United States Senate more than once during the last session of the
Legislature ?

A. — No. Sir. As I am not a politician, I did not kecj) the run of how
many times he was elected.

Q. — Then 3'ou don't know whethci- this was on the occasion of his first
or second election ?

A. — No, Sir.

Q. — You don't know whether Judge Botts was present at that time ?

A.— No, Sir.

Q. — You don't know whether Dr. Aylett was present then, do you ?

A. — No, Sir.

RE-DIRECT EXAMINATION.

Mr. Edgcrton. — When did you first communicate to Mr. Ferguson what
you heard Judge Hardy say ?

A. — It was over a montli ago.

Q. — Before this case came up for trial ?
I A. — Yes, Sir ; it was before this case ever came before the House. It
! was long before I heard anything said about the case.

Q. — State Avhether thei*e were a number of people in the bar room of
, the St. George Hotel, at that time ?

A. — There were several persons standing at the bar at that time, and
a number of other persons standing around the room.

Mr. Williams. — You say you communicated this matter to Mr. Fergu-

384

son over a month ago, and before any movement was made in the House
for this Impeachment ?

A. — Yes, Sir.

Senator Crane. — You. say that you had never known Judge Hardy
before this occasion ?

A. — No, Sir ; not before I saw him in the St. George HoteL

Senator Crane. — Have you seen him since that time ?

A. — No, Sir ; not until now.

Senator Crane. — Do you recognize him now ?

A. — Yes, Sir.

Senator Oulton. — Do you recognize him as the same man who is now
here as Respondent in this case ?

A. — Yes, Sir.

Senator Kutz. — Would you remember a man, without hearing his name,
if you had seen him distinctly, under such circumstances as you have
described ?

A.— Yes, Sir.

Mr. Williams. — Would you recognize Judge Hardy now, in a crowd ?
. A.— Yes. Sir.

Q. — Look at him now, and say if he has the same appearance now
which he bad then ?

A. — I think he looks about the same, with the exception that he had
no hair on his face then.

Q. — You say that he looks the same, only that he had no beard on
then ?

A. — Yes, Sir. Perhaps he is a little thinner in the foce.

Q. — He had no beard on, then, and was a little fuller in the face?

A. — Y''es, Sir; I think so.

Q. — Now, do you say that you would recognize him to-day, after
having seen him but once belbre, and then without a beard ?

A. — Yes, Sir. I think I should recollect any man who proposed a
toast of that character, in such a place. I know that I took a pretty
sharp notice of him then.

3{r. Ed(jerton. — And you are satisfied now, that the person, sitting to
the left of Gen. Williams, is the same person who delivered that toast
in the St. George Hotel, on the night after Gen, McDougall was elected,
or was said to have been elected, by the Legislature, a Senator of the
United States?

A. — Yes, Sir.

Mr. Edyerton. — [To Gen. AVilliams.] Are you not satisfied now, Gen-
eral?

Mr. Williams. — I will be satisfied in a moment, Mr. Edgerton.

Q. — Do you remember whether Judge Hardy had his face shaved
then smooth ?

A. — He might have had some whiskers on his chin.

Q. — Do you remember whether he was cultivating a crop of hair on
any part of his face then ?

A. — I cannot state.

Q. — If there was any hair on his face, you cannot state whether it
was on his upper lip, or his chin, can you ?

A.— No. Sir.

Q. — And 3"0u can't say whether he had any beard whatever, can you ?

A. — I cannot tell. I don't think he had as long a beard, anyway, as
he has got now, if he had any at all.

385

Q. — Do jou think he was shaved on any part of his face, at that time ?

A. — 1 cannot answer.

Q. — Can you tell whether he had a moustache — whether he had a
hairy upper lip, and the rest of his face shaved ?

A. — That is beyond my recollection.

Q. — And you can't say whether his upper lip was shaved, and he had
a goatee — like .Senator Merritt, yonder, for instance 'f [Merriment.]

A. — I cannot say that.

Senator Merritt. — [To Mr. Williams.] I object to having ray personal
apj)earance dragged into this case.

Mr. Will tarns. — Only one feature of it. Senator; and that a remarkably
attractive one. [Merriment.]

Witness. — I know he didn't have any such beard as that, though. [Great
merriment.]

Senator Merritt. — Well, I don't want to be made a sample here.

Mr. Williams. — [To the witness.] I didn't mean the color of the beard.
But the result of all this is, tbat you can't tell whether Judge Hardy on
that occasion had his face all shaved, or whether he had hair on his lip,
or on his chin.

A — I could not answer, positively.

Q. — And yet you could pick him out, in a crowd ?

A. — Yes, Sir J I could.

Mr. Williams. — I am sorry we did not put him in a crowd, then, before
you came on the stand'to testify.

TESTIMONY TO SUSTAIN A. P. DUDLEY.

TESTIMONY OF W. II. BADGELY.

"W. H. Badgely, being called and sworn, testified as follows :
Mr. Eihjerton. — Where do you reside 't
A. — In Mokelumne Hill.
Q. — How long have you lived there?
A. — Since June, eighteen hundi-ed and fifty-two.
Q. — Is that in Calaveras County ?
A. — It is.

Q. — Do you occupy any official position there ?
A. — I am County Judge of that county, at present.
Q. — Do you know Allan P. Dudley ?
A.— Yes, Sir.

Q. — How long have you known him?

A. — I have known him at Mokelumne Hill, since he came there.
Q. — Have you been there ever since he came there ?
A. — Yes, Sir; and I believe some time before he came there.
Q. — Has he been there ever since that time ?

A. — That has been his residence. He went to the States in eighteen
hundred and fifty-four, I believe. I am not certain when he I'eturned.
Q. — You are now sj)eaking about Calaveras County ?
A. — Yes, Sir.
49

386

Q. — You have been twice elected County Judge, have you not ?

A. — Yes, Sir.

Q. — Are you acquainted with the general reputation of Allan P. Dud-
ley, for truth and veracity ?

A. — Yes, Sir, I presume I am ; so far as I am acquainted with the
reputation of any gentleman.

Q. — Is that reputation good, or bad?

A. — In regard to serious matters, I regard it as good.

Q. — From his general reputation for truth and veracity, would you be-
lieve him under oath ?

A. — Yes, Sir.

CROSS EXAMINATION.

Mr. WiJUams. — Does his character stand as fair among his neighbors, as
that of men generally ?

A. — I never heard his reputation for truth and veracity called in
question, except in regard to stories which he might relate on the streets.
I never heard it impugned, Sir, at all, except in that respect. I have
heard persons say, in regard to stories which he might tell on the street
or in a bar room, that they did not believe them.

Q. — Then, Avas it a conclusion, necessarily, that if a story came from
him, it was not to be believed, and was not believed ?

A. — No, Sir. I have heard him tell some storjes which people would
laugh about, and say they did not believe.

Q. — Now, has he the reputation, there, of telling falsehoods — silly, idle
stories, as some people call them — about matters in Avhich he is inte-
rested ? Is he not in the habit of making that kind of statements in
regard to suits and cases in the Courts, in Avhich he is interested ?

A. — I never knew him to make any false statement to me, in regard^
to any material matter.

Q. — Did you ever know of his tearing a leaf out of a book, for thej
purpose of falsifying the record ?

A. — I never did, of my own knowledge. I have heard somethin|
about such an accusation, which was brought against him.

Q. — AVell, state what that Avas.

Mr. Edgerton. — We object to that. A single instance cannot be toi
tured into a general reputation.

Mr. Williams. — Now, I will come back to a question which I was ast
ing you before. Does the character of Allan P. Dudley, for truth an(
veracity, in that community, among his neighbors, stand as fair as thai
of men in general ?

A. — I regard his reputation for truth and veracity as fair as that of
any man in the community, with the exception that he is in the habit
of telling humorous stories, and then peoj^le don't believe him. [Merri-
ment.] I know he is dis))osed to tell a great many stories. Sir, for the
purpose of making people laugh.

Q. — Haven't you iieard a good many peof)le say that the}^ would not
believe him? Individual persons ?

A. — I don't know, Sir, that I recollect one distinct personal charge.

Q. — I ask you what people say about his principles, generally ?

A. — I told you, in reference to that matter, that I had heard him teU
a good many stories which people doubted.

Q. — Have there not been a good many instances of that kind ?

A. — Well, Sir, he is quite a joker, and his stories are generally of a
joking character.

387

Q. — Well, Sir, has he not carried some of those jokes upon some
pretty serious questions of fact over there ?

A. — Not that I am aware of.

Q. — Have you not heard people accuse him of being addicted to
lying ?

A. — I ma}', possibl}^, have heard something of that kind, but I cannot
call to mind any instance in which that was said of him.

Q. — Have 3'ou not heard him accused, and have you not heard him
admit, that he stuffed the ballot box at Esmeralda ?

Mr. Eihjrrton. — We object to that question.

Mr. Wdlbnm. — Well, I withdraw it. Have you had any difficulty with
Judge Hardy ?

A. — No, Sir ; none that I know of.

Q. — Have you no hard feelings against him ?

A. — None ; not the slightest hard feeling against him. Our relations
have always been very friendly ; at least, on my part.

Q. — How many times have you ran against him, for office ?

A. — Once.

Q. — He beat you then, didn't he ?

A. — He did, Sir. And I submitted very gracefully, or, at least, en-
deavored to do 80.

TESTIMONY OP P. W. CORNWALL.

P. W. Cornwall, being called and sworn, testified as follows:

Mr. EJgerton. — Where do you reside?

A. — In Calaveras County.

Q. — How long have you lived there ?

A. — Since November, eighteen hundred and fifty-six.
^, Q. — Whereabouts in Calaveras County do you reside ?
'' A. — At San Andres.

Q. — Do you hold any official position in that county ?

A. — I am one of the wSupervisors.

Q. — Do you know Allan P. Dudley ?

A.— I do.

Q. — How long have you known him ?

A. — I have known him ever since he resided in Calaveras County.

Q. — Do you know his general reputation, for truth and veracity, in
that county ?

A. — Yes, Sir, I do.

Q. — Is it good, or bad?

A. — I would like to qualify my answer to that, by stating, that a man,
generally, has two reputations : one as a business man, and the other as
a social man, or a political man. I use the terms, " social man," and
"political man," as in contradistinction to "business man."

Q. — Now, with that qualification, what do you say is the reputation of
Allan P. Dudlc}^ for truth and veracity ? Is it good, or bad ?

A. — As a politician, it is bad. [Merriment.]

Q. — How is it as a " business man ?"

A. — I have never heard it questioned.

Q. — From your knowledge of his general reputation for truth and
veracity, would 3'^ou believe him under oath ?

A. — I would, Sir.

388

CROSS EXAMINATION.

Mr. Williams. — Suppose he said something about politics, would you
believe that 't

A. — That would depend altogether upon my own opinion in regard to
that point. [Merriment.]

Mr. Williams. — That will do, Mr. Cornwall.

TESTIMONY OF WILLIAM PEAK.

William Peak, being called and sworn, testified as follows :

Mr. Edrjerton. — Where do j^ou reside, Mr. Peak ?

A. — At Mokclurane Hill.

Q. — IIow long have you lived there ?

A. — Nearly ten years.

Q. — Do you know Allan P. Dudley ?

A.— I do.

Q. — How long have you known him ?

A. — About ten years. I think he was there when I went there.

Q. — Do you know his general reputation, in that county, for truth and
veracity ?

A.— I do.

Q. — Is it good, or bad ?

A. — In regard to matters of importance, I believe, it is good.

Q. — Fi-om your knowledge of his general reputation there, for truth
and veracity, Avould you believe him under oath ?

A. — I would.

CROSS EXAMINATION.

Mr. Williams. — In regard to " matters of importance," you think his
reputation is good ?

A.— Yes, Sir.

Q. — In what respect is his reputation not good ?

A. — He is in the habit of getting together a crowd in a bar room, and
telling stories, and joking with them.

Q. — Telling lies ?

A. — I don't know as he tells them for the purpose or with the idea of
deceiving anj^body.

Q. — You do not know what his motive is ?

A. — I think his object is to get up a laugh.

Q. — AVhcn you find a man telling lies, don't you feel bound to think
that he does it to deceive somebody' ?

A. — Well, the kind he tells seem to be always to merely get up a
laugh, and nothing else.

Q. — Did you never hear of his telling a lie, having any other purpose
than getting up a laugh ?

A. — No, Sir. 1 may have ; but I have no recollection of it now.

Q. — Have you heard that subject discussed, ever — as to what particular
subjects he lied about, and as to what particular subjects he told the
truth about ?

A.— No, Sir.

Q- — Then can j-ou say what people generally believe of him in refer-

389

ence to his being a reliable man — a man whose veracity can be depended
upon ?

A. — I can state, that, on matters of importance, I believe that he is
considered reliable.

Q. — How do you know that he is reliable ?

A. — From what I hear people say.

Q. — Who did you hear say that he was to be relied on in matters of
importance, though he was in the habit of telling lies in regard to mat-
ters of no importance ?

A. — I don't know as I can mention any particular names.

Q. — Now, Sir, in telling these little pleasant lies, these amusing lies,
only, don't you know that he sometimes grossly slanders his neighbors?
Don't you know, that in telling these stories, that you consider so harm-
loss, he is in the habit of grossly slandering his neighbors ?

Mr. Edgcrton. — AVe object to that.

The Presidin;/ Officer. — The ohject of the falsehood is of no importance
whatever. The real question should be — as to whether there was a
purpose to deceive, or not.

Mr. Williams. — 1 ask the witness whether, when Mr. Dudley has been
telling this kind of "harmless falsehoods," he has not, in point of fact,
been uttering damnable slanders against his neighbors?

Mr. Edijerton. — That we object to.

The Presidimj Offix^er. — And that I decide to be inadmissible. That
would open the whole question as to what those slanders were, and the
truth of those slanders.

Mr. WUliams. — They admit that he tells falsehoods. But they seek to
prove that they are of a harmless character. Now, we want to prove
that they were not of a harmless character, but were the most damnable
character of lies that a man can tell.

VOTE ON THE ADMISSION OP TESTIMONY.

The Senate sustained the decision of the Presiding Officer, refusing
admission to this testimony, by the following vote :

Ayes — Messrs. Burnell, De Long, Harriman, Heacock, Holden, Irwin,
Nixon, Watt, and Williamson — 9.

Noes — Messrs. Banks, Chamberlain, Crane, Gaskill, Hathaway, Hill,
Kutz, Merritt, Oulton, Parks, Perkins, Porter, Powers, Soule, and Shurt-
leff— 15.

TESTIMONY OF H. M. STURGIS.

H. M. Sturgis, being called and sworn, testified as follows

Mr. Edgerton. — Where do you reside ?

A. — At Mokelumne Hill, Calaveras County.

Q. — How long have you lived there ?

A. — Some ten or eleven years.

Q. — Do you know Allan P. Dudley ?

A.— Yes, Sir.

Q. — How long have you known him ?

A. — I have known him ten years, or so.

390

Q. — Are you generally acquainted there, in Calaveras County ?

A.— Yes, Sir.

Q. — Do you know Allan P. Dudley's general reputation for truth and
veracity ?

A.— 1 do, Sir.

Q. — Is it good, or bad ?

A. — Outside of bar room joking and gassing, it is good.

Q. — From your knowledge of his general reputation for truth and
veracity, would you believe him under oath ?

A.— Yes, Sir.

Mr. WiUiams. — No questions, Sir.

TESTIMONY OF HENRY PHILLIPS.

Henry Phillips, being called and sworn, testified as follows :

Air. Eclgcrton. — Where do you live?

A. — In Mokelumnc Hill.

Q. — How long have you lived there ?

A. — I have lived in the neighborhood ever since eighteen hundred and
fifty.

Q. — Do you know Allan P. Dudley ?

A.— Yes, Sir.

Q. — How long have you known him ?

A. — I have known Allan P. Dudley since eighteen hundred and fifty-
two or eighteen hundred and fifty-three.

Q. — Are vou generally acquainted with people in that vicinity ?

A.— Yes,"'Sir.

Q. — Do you know Allan P. Dudley's general reputation for truth and
veracity ?

A.— Yes, Sir.

Q. — Is it good, or bad ?

A. — Outside of bar room talk, it is good enough, for aught I know.

Q. — From your knowledge of Mr. Dudley's general reputation for
truth and veracity, would you believe him under oath ?

A. — I would.

CROSS EXAMINATION.

Mr. Williams. — Mr. Phillips, have you not said, within the last six
weeks, that you would not believe Al. Dudley under oath ?

A. — I have not, Sir.

Q. — How long have you known his reputation to be good, for truth
:ind veracity ?

A. — Ever since I have known him.

Q. — Never thought anything else, did you ?

A.— No, Sir.

Q. — Never said anything else, did you ?

A.— No, Sir.

Q. — I am requested to ask you if you have not stated, in the public
Htreets, that Al. Dudley was one of the biggest liars you ever knew ?

A. — No, Sir; I never did.

391

TESTIMONY OF GEORGE LOCK WOOD.

George Lock wood, being called and sworn, testified as follows :

Mr. Edgertnn. — Where do you live ?

A. — In San Francisco.

Q. — State whether you ever lived at Mokelurane Hill, in Calaveras
County.

A. — I resided in Angels, Calaveras County, for two years. I lived
there in eighteen hundred and fifty-six and eighteen hundred and fifty-
Beven, and part of eighteen hundred and fifty-eight.

Q. — Do you know Allan P. Dudley ?

A.— I do. Sir.

Q. — Were you, at the time you lived in Calaveras County, acquainted
with Allan P. Dudley's general reputation up there, for truth and vera-
city ?

A. — I was.

Q. — Was it good, or bad ?

A. — I never heard anything said against it.

Q. — Did you know him then ?

A. — I knew him intimately.

Q. — From 3-our knowledge of his general reputation for truth and
veracity, would you believe him under oath ?

A. — I would, Sir. most implicitly.

CROSS EXAMINATION.

Mr. William!:. — Have you heard his character for truth and veracity
discussed up there ?

A. — I never have, except in a social and convivial way. When the
people up there wanted a little fun. it was generally understood that he
could draw on his imagination a little more than most any one else, by
way of telling a storv. But it was always understood, that when he
came down to substantial matters, he was about right.

Q. — And you never heard any body question his character fo]- truth,
seriously ?

A. — I never did.

Q. — How far is Angels from Mokelumne Hill ?

A. — Twent^'^-five or twenty-eight miles.

Q. — Did you use to see him at Angels ?

A. — I have seen him at Angels frequently, and I have met him fre-
quently at ^lokelumne Hill. We used to have some political sparring
together. We were politically opposed.

Q- — Do you know where Vallecito is ?

A.— Yes. Sir.

Q.— Where is it?

A. — It is about five miles beyond Angels.

Q. — Do you know what Allan P. Dudley's reputation there, is ?

A. — I do not. Sir.

Q. — Do you not know that he was driven out of that place, for lying
about a woman ?

A. — I do not. Sir.

Q. — In eighteen hundred and fifty-seven ?

A. — I never heard of it. Sir.

393

TKSTIMOXT OF E. B. WHITE.

E. B. White, being called and swomj testified as follows:

Mr. E(I;jerton. — Wliere do you live ?

A. — In Mokelamne Hill, Calaveras Connty.

Q. — How long have von lived there ?

A. — About six or seven years.

Q. — Do vou know Allan P. Dndley ?

A.— I do. Sir.

Q. — ^Are you generally acquainted throughout the community, there ?

A. — I am acquainted throughout the vieini^ of Mokelumne Hill ?

Q. — ^How long have you known Allan P. Dudley ?

A. — About six years.

Q. — Are you acquainted with his general reputation for truth and ve-
racity, there ?

A. — Yes, Sir ; I have a pretty general knowledge of it.

Q. — Is it good, or bad ? %

A. — Good, as far as known to me.

Q. — From your knowledge of his general reputation for truth and ve-
racity, would you believe him under oath ?

A.— I would, Sir.

Mr. Willkams. — ^No questions.

TESTIMOXT OF JOSEPH SIMITH.

Joseph Smith, being called and sworn, testified as follows :

Mr. Edgerton. — ^Where do you live ?
A. — At Mokelumne Hill.
Q. — How long have you lived there ?
A. — Ten years.

Q. — Have vou a general acquaintance throughout that county ?
A.— Yes. Sir.

Q. — ^Do vou know Allan P. Dudlev ?
A.— Yes' Sir.

Q. — How long have you known him ?
A. — About seven years.

Q. — Do vou know his general reputation there, for truth and veracity?
A.— Yes, Sir.
Q. — Is it good, or bad ?
A. — Good.

Q. — From your knowledge of his general reputation for truth and ve-
racity, would you believe him under oath ?
A. — Yes, Sir ; I would.

Mr. Williams — Xo questions, Sir.

393

TESTIMONY OF CHARLES WOOD.

Charles Wood, being called and swoi'n, testified as follows :

Mr. Edgerton. — Where do you live ?

A. — At Mokehimne Hill.

Q. — How long liave you lived there ?

A. — About eight years.

Q. — Are you generally acquainted throughout that vicinity ?

A. — I am generally acquainted throughout the vicinity of Mokelumne
Hill.

Q. — Do you know Allan P. Dudley ?

A.-^Yes, Sir.

Q. — Allan P. Dudley lives there, does he not?

A. — Yes, Sir.

Q. — Do you know Allan P. Dudley's general reputation for truth and
veracity?

A.— Yes, Sir.

Q. — Is it good, or bad ?

A. — Good, for aught 1 know to the contrarj''.

Q. — From your knowledge of his general reputation for truth and ve-
racity, would you believe him under oath?

A. — Yes, Sir; I would.

CROSS EXAMINATION.

Mr. Williams. — Have you ever heard anybody talk about his reputation
for truth and veracity?

A. — I don't know as I ever did.
Q. — Never heard it canvassed ?
A.— No, Sir.

Q. — Never heard it disputed ?
A.— No, Sir.

TESTIMONY OF FRANCIS SNYDER.

Francis Snyder, being called and sworn, testified as follows :

Mr. Edgerfon. — Where do you live ?

A. — In Mokelumne Hill.

Q. — How long have you lived there ?

A. — I Avent there in eighteen hundred and fifty-one. I have been ab-
sent from there a couple of years.

Q. — While there, were you generally acquainted throughout that
vicinity ?

A.— Yes, Sir.

Q. — Did you know Allan P. Dudley ?

A. — Yes, Sir.

Q. — How long have you known him?

A. — Since he came to the Hill. Since eighteen hundred and fifty-two,
if my memor}^ serves me right.

Q. — Do you know his general reputation for truth and veracity?

A.— I do, Sir.
50

394

Q. — Is it good, or bad ?

A. — Good ; except that he loves to tell stories in bar rooms, and make
fun.

Q. — From your knowledge of his general reputation for truth and ve-
racity, would you believe him under oath ?

A. — I would, Sir.

Mr. WlUiams. — No questions, Sir.

TESTIMONY OF J. W. QRISWOLD.

J. W. Griswold, being called and sworn, testified as follows :

Mr. Edfjerton. — You are from Calaveras County, and are now repre-
Benting that county in the Assembly, are you not ?

A.— Yes, Sir.

Q. — How long have you lived there?

A. — Since eighteen hundred and fifty.

Q — Do you know Allan P. Dudley's general reputation for truth and
veracity?

A— 1 do.

Q — From your knowledge of his general reputation for truth and ve-
racity, would you believe him under oath ?

A. — I would have no hesitation in doing so, Sir.

Mr. Williartu. — No questions. Sir.

TESTIMONY OF H. .J. TILDEN.

H. J. Tildcn, being called and sworn, testified as follows:

Mr. EJgerton. — "Where do you live ?

A. — I live at Mokelumne Hill.

Q. — How long have you lived there ?

A. — I have lived there a little over three years.

Q. — Have you a general acquaintance throughout that County of Cal-
averas ?

A.— Yes, Sir.

Q. — Do 5"0U know Allan P. Dudley ?

A.— Yes, Sir.

Q. — How long have you known him?

A. — I have known him some four or five years.

Q. — What is his general reputation for truth and veracity?

A. — Outside of stor}^ telling and bar room joking, it is good.

Q. — From your knowledge of his general reputation for truth and ve-
racity, would you believe him under oath ?

A. — Yes, Sir; I would.

Mr. Williams. — Outside of &tOYy telling, you would believe what he said ?

A.— Yes, Sir.

Mr. Edgerton. — As a general thing, are not the lawyers up there in the
habit of joking and making sport ?

A. — Yes, Sir ; they are rather on it.

39i)

Mr. WilUama. — "What party does ho belong to ?

A. — He used to belong to the Breckinridge party.

Mr. Edrjerton. — Do you know any Breckinridge politician that you
would believe, on jDolitical matters?

A. — There are very few politicians, on any side, that I would believe.
[Merriment.]

Mr. Echjerton. — Mr. Tilden, that lets you out. [Eenewed merriment.]

Mr. Williams. — No more questions, Mr. Tilden.

TESTIMONY OF HORACE RAY.

Horace Ray, being called and sworn, testified as follows :

Mr. Edgerton. — "Where do 3''0u live ?

A. — At Mokelumne Hill.

Q. — How long have jow lived there ?

A. — I have been there about eight or nine years.

Q. — Are you generally acquainted throughout that vicinity?

A. — I am generally acquainted about the town.

Q. — Do you know Allan P. Dudley ?

A. — Yes, Sir. •

Q. — How long have you known him ?

A. — Since he first came to the Hill.

Q. — Wlien was that ?

A. — Six or seven years ago.

Q. — Do you know his general reputation for truth and veracity, up
there ?

A.— I do.

Q. — Is it good, or bad ?

A. — I cannot exactly sa}'. He is considered as somewhat of a great
story teller, and a great hand at getting up fun.

Q. — In reference to serious matters, is his reputation for truth and ve-
racity good, or bad ?

A. — I have no knowledge of its being other than good.

Q. — From your knowledge of his general reputation for truth and ve-
racity, would you believe him under oath ?

A. — 1 would, Sir.

CROSS EXAMINATION.

Mr. Williams. — Did you never hear his neighbors question his veracity
and truth, except in reference to his telling stories for fun ?

A. — I heard some men say that you couldn't tell which party he be-
longed to ; that on one day he would belong to one party, and on the
next day he would belong to another party.

Q. — You mean to say, by that, that upon questions of politics no reli-
ance was placed on his word ?

A. — I don't mean to say that I heard remarks of that kind made;
only that it was said, that on one day he professed to belong to one
party, and on another day he professed to belong to another party.

Q. — Now state whether you have not heard his neighbors state of him,
seriously, independent of all jokes, that he was not a man of truth ?

A. — No, Sir; I don't know that I ever did.

396

Q. — You never heard his rej)iitation for truth and veracity questioned
by anj'body ?

A. — No, Sir. I have not, except from what I have heard of some of
the testimony here.

Q. — And you have lived in Calaveras County — how long?

A. — Eight or nine years.

Q. — And know Allan P. Dudley, well ?

A.— I do.

Q. — And he tells the truth, except when he lies for fun ?

A. — Yes, Sir.

Q. — And when he lies for fun, the people laugh?

A. — Yes, Sir.

Q. — And when the people want to laugh, they set Allan P. Dudley to
lying, do they?

A. — Well, they laugh when he tells a good story.

TESTIMONY OF GEORGE SEGAR.

George Segar, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you live ?

A. — In San Francisco. •

Q. — Have you lived in Calaveras County ?

A. — I lived there six or seven months, in eighteen hundred and fifty-
eight.

Q. — Whereabouts in Calaveras County did you live ?

A. — In Angels' Camp.

Q. — Did 5'ou know Allan P. Dudley ?

A.— I did, Sir.

Q. — Did you know his general ref)utation for truth and veracity, up
there ?

A. — I knew nothing against it. He was considered as a first class
lawyer.

Mr. Williams. — [Interrupting.] Lawj-er, or liar ?

Witness. — Lawyer.

Senator Poicers. — It does not make any difference. [Merriment.]

The Presiding Officer. — I hope that members of the profession will not
lay themselves open to jokes of this kind. [Eenewed merriment.]

Mr. Edgerton. — From your knowledge of Allan P. Dudley's general
reputation for truth and veracity, would you believe him under oath ?

A. — Yes, Sir; I would. Sir.

Mr. Williams. — No questions, Sir.

TESTIMONY OF JOHN HANSON.

John Hanson, being called and sworn, testified as follows

Mr. Edgerton. — Where do you live ?

A. — At Mokelumne Hill.

Q- — How long have you lived there ?

A. — I have lived there a little over twelve years.

397

Q. — Are you generally acquainted throughout that section of country ?
A. — Yes, Sir.

Q. — Do you know Allan P. Dudley ?
A. — Yes, Sir.

Q. — How long have you known him ?
A. — Since eighteen hundred and fifty-one.

Q. — Dq 3'ou know his general reputation for truth and veracity ?
A.— Yes, Sir.
Q. — Is it good, or bad ?
A. — Good.

Q. — From your knowledge of his general repu-tation for truth and
veracity, would you believe him under oath '(
A. — Yes, Sir ; I would.

TESTIMONY OF JAMES C. MC GANNIN.

James C. McGannin, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you live ?

A.— At Mokchimne Hill.

Q. — How long have j'ou lived there ?

A. — About eight years.

Q. — Are you generally acquainted throughout that section of country ?

A.— Yes, Sir.

Q. — Do you know Allan P. Dudley ?

A. — Yes, Sir.

Q. — How long have you known him ?

A. — About eight or nine years.

Q. — Do you know his reputation for truth and veracity, up there ?

A. — Yes, Sir.

Q. — Is that reputation good, or bad ?

A. — Good, outside of bar rooms.

Q. — From 3'oiir knowledge of his general reputation for truth and
veracity, would you believe him under oath ?

A. — I would. Sir.

Mr. WilUams. — Would you believe him, under oath, in a bar room ?
[Merriment.]

Mr. Edfjerton. — I do not know what kind of an oath they would admin-
ister up there, in a bar room.

Mr. Williams. — Nor I, either; but I could imagine.

TESTIMONY OF JAMES P. HUBBARD.

James F. Hubbard, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you reside '(
A. — I reside in San Francisco, at this time.
Q. — Have you ever lived up in Calaveras County ?

A. — Since eighteen hundred and fifty-three, lived in Amador County,
until October last.

Q. — What was your business, there ?

A. — I was a practising lawyer at the bar of Amador County.

398

Q. — Do you know Allan P. Dudley ?

A. — I do, Sir.

Q. — How long have you known him ?

A. — Since eighteen hundred and fifty-four.

Q. — Did you practise more or less at Mokelumne Hill, during your
residence in Amador County ?

A.— Yes, Sir. t

Q. — Are you acquainted with Allan P. Dudley's general reputation,
for truth and veracity, up in those sections of the countrj' ?

A. — Yes, Sir; I am.

Q. — In Jackson and Mokelumne Hill?

A. — Somewhat acquainted with his reputation in both places.

Q. — Is it good, or bad ?

A. — I should say that it was better at Mokelumne Hill than at Jack-
son. The only place where I have heard it questioned, was in our
county. That has occurred once or twice, to my recollection. I don't
recollect that I have ever heard his reputation questioned, for truth and
veracity, as a business man. I have heard it frequently' stated that he
was a drawer of a long bow in telling laughable stories, and very fond of
a practical joke, very much given to what are called " sells" — which are
got up by deceiving remarks. And I don't know but, once or twice, I
have heard statements in regard to his truth and veracity in reference to
serious business.

Q. — From your knowledge of his general reputation for truth and
veracity, would you believe him under oath ?

A. — I would, Sir.

CROSS EXAMINATION.

Mr. Williams. — You lived at Jackson, Amador County ?

A.— Yes, Sir.

Q. — And you heard his character seriously questioned more in Jack-
son than in Mokelumne Hill ?

A.— Yes, Sir.

Q. — Now, 3^ou were in Jackson more than you were in Mokelumne
Hill, were you not?

A. — Yes, Sir ; of course.

Q. — I am requested to ask j-ou whether or not a part of the report
which you heard, bearing against his truth and veracity, was not con-
nected with an incident like this : Of his having —

Mr. Edgrrton. — [Interrupting.] Now, we object to any "instances"
being given. We object to the Counsel on the other side making any
statement of them.

Mr. Williams. — His character for truth, you say, has been seriously
questioned in Amador County ?

A. — I have heard it questioned, as I have stated.

Q. — Now, I ask you whether his character, for truth and veracity, was
not questioned in connection with his having drawn n, Jurat to a bill, and
made his client swear to it before he drew the bill, and then attaclied it
subsequently to the bill ?

Mr. Edgerton. — We object to that.

The Presiding Officer. — I do not think that it is admissible.

Mr. Williams. — Now, for the purpose of testing the witness' recollec-
tion, for the purpose of showing what knowledge he has had of Mr.
Dudley's reputation for truth and veracity, I wish to ask the witness
whether he did not swear, with other witnesses, to the fact which went

399

to make up Mr. Dudley's reputation, in the matter which I have just
described ?

Mr. Edgerton. — And we object to that, of course.

The Fresidirig Officer. — I think that that is inadmissible.

Mr. Edgerton. — We have a long list of witncssess here, whom we desire
to call on this point in the case, but they are not here.

Mr. WllUams. — I suppose there must be some limit to witnesses upon
this point ?

The Presiding Officer. — I shall have to restrict the Prosecution, at least,
to the number of witnesses called upon the other side.

Mr. Edgerton. — Well, we will now call Mr. J. B. Manchester, upon an-
other point in the case.

DIRECT TESTIMONY IN EEBUTTAL RESUMED.

TESTIMONY OF J. B. MANCHESTER.

J. B. Manchester, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you reside ?

A. — In San Francisco.

Q. — What is your occupation ?

A. — I am a lawyer.

Q. — Do you know the Respondent, here. Judge Ilardy ?

A.— I do.

Q. — Do you know John R. McConnell ?

A.— I do.

Q. — Do 3-0U know Tod Robinson ?

A.— I do.

Q. — Do yon know Judge D. O. Shattuck ?

A.— I do.

Q. — Do you know Henry T. Barber, of Sonora ?

A.— I do.

Q. — State whether, during the last political campaign, you were at
Mokelumne Hill on the occasion of a political meeting, when Mr. McCon-
, nell. Tod Robinson, Judge Shattuck, and Mr. Barber, were there.

A. — I was there on such an occasion, in August last ?

Q. — State whether Judge Ilardy was there also.

A. — He was.

Q. — State who opened that meeting.

A. — I think Judge Hardy called that meeting to order.

Q. — Who spoke there on that occasion ?

A. — Mr. McConnell, Mr. Robinson, and Mr. Barber.

Q. — Were the}^ candidates for any oifice, of any party, at that time ?

A. — Mr. McConnell was candidate for Gfovernor ; Mr. Barber was can-
didate for Congress; and, I think, that Tod Robinson was candidate for
Attorney-General. I think that they were all candidates.

Q. — Did you hear what they said on that evening?

A. — Yes, Sir, I did. I was there, in the course of my progress through

400

the State, canvassing in behalf of the Eepublican party. I was to re-
ply, the next evening, to what they said. As it was my business to an-
swer their statements, I took particular notice of what they said.

OBJECTION AND ARGUMENT.

Mr. Williams. — I would desire the Counsel on the other side, before they
proceed with the examination of this witness, to state what they propose
to prove by him.

3Ir. Edgerton. — We intend to prove what were the sentiments expressed
there, b}^ the speakers who have been named, in reference to the present
difficulties of the country, and the action which Judge Hardy took in
reference to those candidates who were then speaking ; his indorsement
of the platform upon which they stood.

Witness. — Judge Hardy did not speak on that evening; he was not one
of the regular speakers. He was on the stand.

Mr. Edgerton. — Did you hear Tod Kobinson speak ?

A.— Yes, Sir.

Q. — Did you take particular notice of what he said ?

A. — Yes, Sir. As I stated, I was there in behalf of the Eepublican
party, engaged in canvassing the State ; and I was selected to reply to
the speeches of those three gentlemen. I was to reply to them on the
next evening, and hence it was my business to attend particularly to
what they said.

Q. — Now, will you tell us what Tod Eobinson said?

Mr. Williams. — Now, the Counsel have told us what they expect to
prove. To this evidence, we object. It is stated that they propose to
prove what were the sentiments expressed by Tod Eobinson. Judge Bar-
ber, Mr. ^McConnell and others, and then to connect Judge Hardy with
them because he was there in attendance at that political meeting. I
submit to the Court that that is incompetent evidence; that the mere
fact of Judge Hardy having been attached to that party previously, at
all times during its organization down to that time — the fact that he
was present at that meeting, associated politically with those who may
have uttered sentiments the most objectionable; that those facts do not
and will not hold him responsible for those sentiments which these other
parties ma}' have uttered. Because a man attends a political meeting,
sits upon the stand at that meeting called by the members of his own
political party, and because some of the speakers at that meeting utter
sentiments which are censuraJile — for these reasons alone I do insist that
this man is in no manner responsible for those sentiments; and that the
evidence upon this point is incompetent to be given to this Court.

And then, again, they have specific charges here. They have charged
Judge Hardy with uttering seditious sentiments, at certain times and
places. In connection with those times and places, they have given evi-
dence of Judge Hardy's acts and speeches. They have gone through
with their case on that subject. We insist that their case is now closed
on that subject. But we do insist, and rely emphatically and more par-
ticularl}', on the first position which we have taken : that Judge Hardy is
not to be made responsible here for any special expression of sentiments
made at any time by members of the party to which, down to that time,
he had been attached.

Mr. Edgerton. — We do not pretend that Judge Hardy is responsible for
the sentiments enunciated by the gentlemen named. But we do hold,
that it is indicative of his character as a disloyal man, if he appears upon

401

the stand at a political meeting, and hears persons who are running for
offices before the people of the State — candidates for offices in which they
would be called upon to administer the laws — offices like the Governor,
and the Attornej'-General of this State — hears them utter treasonable,
seditious sentiments, and then, and afterwards, sustains them as candi-
dates, and urges their election. We hold that such testimony is signifi-
cant and competent, as showing what character of man this is, having
reference to the question of loyalty or disloyalty.

And, again : we did confine ourselves, in the first place, in regard to
to our special charges, strictly under our Articles of Impeachment. But
the Senate, or rather the Court, determined to enter upon the broad
ground of generosity and liberality, and magnanimity; opened wide the
door to the Respondent, and allowed him to stretch a drag-net over every
Union sentiment that he had ever anywhere expressed. We ask that we
may have the same privilege extended to us, for the purpose of showing
whether or not he was not, according to his most serious expressions, a
dislo3-al man. Because, if he is not guilty of these grave offences which
have been charged against him, he ought not to be afraid to have every
sentiment that he has ever expressed, in regard to our national difficulties,
given here in evidence. And, on the other hand, if he is not a loyal citi-
zen, he is not a fit person to hold a high judicial office under the Govern-
ment, in a loyal State.

Now, what is the tendency of all the evidence introduced here by the
Defence? It can have no other effect than to establish for the Respond-
ent a general character. Now, we hold that testimony of that character,
which we now propose to offer, is strictly in rebuttal of the testimony
introduced by the J{es2:)ondent, for the purj)osc of establishing, as n gen-
eral rcHuff, the loyalty of the Respondent. With that view, we offer
this testimony as in rebuttal.

Mr. CumphcU. — One word in addition to what has been said by my col-
league. It will be remembered that it was averred, on the part of the
Defence, that when Judge Hardy had uttered disloj'al sentiments, he had
done so under the influence of liquor, and as a mere matter of joke;
while his real, serious sentiments, ^Yere loyal. It was averred that when-
ever the question of loyalty arose in his serious and sober moments, he
always expi-esscd himself, at such times, as prepared and zealous to sus-
tain the Constitution, the Union, and the Government, of this country.
That testimony was admitted — testimony which they asserted went to
establish this fact. We do now propose to show, in answer to that tes-
tinion}', that there was no joke about this whole matter; that Judge
Hardy was seriously engaged with men notoriously hostile to the Con-
stitution and the Government; that with such men he was co-operating
at public meetings; that at such times, when sentiments of the grossest
disloyalt}' were uttered, he was there, cheering and applauding them on.
Is not this testimon}' applicable to this case ? Does it not go clearly
and directly to the point ? Is it not competent to introduce testimony
to show that Judge Hardy applauded the utterance of sentiments which
any other man in this State, professing to be unequivocally loyal, would
have disapproved and denounced ? Here there are none of those excuses
which have been brought forward to palliate Judge Hardy's offence
when he gave disloyal toasts in bar rooms. And can a man go about
the State, "deriding the Constitution, scoffing at the flag of the Union,
calling it " an old woman's rag,'' openly declaring himself to be a rebel,
hurrahing for Jeff'. Davis and the Southern Confederacy, and then come
in here and sustain himself as a " loyal man," by proving vague, general
51

402

expressions, avowing an equivocal sentiment of loyalty, under certain
emergencies ; and then closing upon us the opportunity to show that, in
his most serious moments, he applauded and cheered the formally made
expressions of disloyalty, coming from the mouths of men who were the
candidates of his partj^ for the highest State offices ?

Mr. Williams. — [Interrupting.] I hope that the gentleman is not going
to 8um up his case at this stage of the i^roceedings.

Mr. Campbell. — Mr. President, I do not propose to enter into the sum-
ming up of this case at this improper time. That is a thing we have
sedulously abstained from doing, although I think the Court will bear
me out in saying it has been the constant habit on the part of the Coun-
sel on the other side.

But I wi.sh the Court to apprehend exactly what is the character of
the proposition here, and what the nature of the objection. We have
showm that Judge Hardy has been guilty of using positivel}' disloyal lan-
guage, on numerous occasions, and in the midst of a considerable number
of people. They have been allowed to introduce evidence which they
asserted went to prove, that in his sober moments. Judge Hardy always
expressed loj'al sentiments. Now, we wish to combat this idea that the
utterance of flatly treasonable sentiments on the part of Judge Hardy,
was merely the etfects of liquor, or a disposition for fun and frolic. We
wish to introduce evidence which can meet with no palliation from these
excuses, even if such excuses were good in any event. We propose to
show, that on one of the most serious occasions that ever arose in the his-
tory of the people of a Republican Government, when citizens were
assembled together for the purpose of determining whether they would
support loyal or disloyal men, whether they would countenance or frown
down rebellion, Judge Hardy Avas there; and, when sentiments were
there uttered, denunciatoiy of the Union and the Government, grossly
abusive of the Icgall}^ elected authorities of the Government, he applauded
those sentiments, and, by every influence in his poAver, sustained the
speakers who uttered them. We contend that here is evidence strictly
proper and competent on the question of deliberate intention. It goes to
rebut anything and everything which has been introduced here on that
subject on the part of the Defence.

3Ir. Williams. — In nautical language, I propose to "heave to" for a
moment, and " take an observation." and see w^hat it is that we are dis-
cussing here. They offer to prove that Judge Hardy was present at a
meeting of the Breckinridge Democracy. They offer to prove, that by
his not dissenting from what was stated there, he belonged to that party,
and sanctioned the sentiments w^hich its candidates expressed.

3Ir. Campbell. — [Interrupting.] No ; by positively applauding.

Mr. Williams. — Well, " applauding," then. They offer to prove that he
belonged to and acted with that branch of the Democratic party. Now,
we admitted, long ago, in this case, that Judge Hardy was a member of
that unfortunate party. [Merriment.] It stands upon the record. There
is no question about it. Now, there is no need of giving evidence of his
acting at that meeting in order to show that he belonged to that party.
Those were his political associations. Judge Campbell told you what
they had proved concerning certain declarations and idle jokes on the
part of the Eespondent, and has argued w^hat kind of sentiments Judge
Hardy must have entertained — drawing his inferences from those idle
expressings. We have proved, in answer to that, that when you come
to Judge Hardj^'s serious actions — and it is these that we propose to talk
about — we have proved, that in his serious moments, while among his

403

intimate party associates, he labored to the utmost of his ability to mod-
ify and ohani^c their platform, so as to strike out everything of that
character which, Judge Campbell says, no Union man could listen to
without feeling offended. We have introduced his declarations, made in
connection with that purpose. We have proved his declarations among
his intimate political friends, establishing the fact that he Avas a loyal
Union man. Wc have proved his declarations, where his sole object
w-as, evidently, to bring his part}' upon loyal grounds. We have proved
that he endeavored to so modify his party platform that nothing in their
articles of faith could be construed as' objectionable, by the strongest
and most enthusiastic Union man. '^

Now, what do they propose to prove ? They propose to go on and
prove that Judge Hardy was present at a political meeting of that same
old part}' from which he had not yet severed himself; and that certain
sentiments were there uttered, of a disloyal character, from which he
did not dissent. They assert that they can prove that he applauded. Wo
will see whether the}' can prove that he applauded them or not. But I
don't care whether he applauded, or did not applaud. That does not
affect the matter the one way or the other, at all.

We insist that this testimony is not com])ctent. It is not legal, it is
not sensil)le, it is not reasonable, to attempt to impose upon Judge Hardy,
responsibility for the sentiments uttered by those men, on that occa-
sion. And it is those sentiments which they propose to prove now. Wo
say, that to sustain this proposition, would be unfair, unjust, and oppres-
sive. And, if a constitutional majority of this body can be found, who
will vote Judge Hardy guilty of misdemeanor in office, upon that ground,
I say, in the language of the young man who recently testified on that
stand, •' I want to leave the country."

If, because Judge Hardy belonged to a political association, which as-
sociation has strayed away into the fields of disloyalty, aiul if, instead
of leaving that association, he was struggling and exercising every
means in his power to bring it back, and place it upon the true grounds,
he is to be thrown from his office for so doing j if these facts are to be
seized upon by the men who have gotten up this persecution, and are to
be made the foundation for thrusting Judge Hardy out of office; and if,
for such reason. Judge Hardy is to be deposed, I repeat, with that young
man, that under such a state of things, " I want to leave the country."

Mr. Cianpb'M. — [Sotto voce.] Do.

Mr. Williams. — [Sotto voce.] Well, I will — with music.

The Presiding Officer. — I have no doubt that the Prosecution, in their
introduction of testimony, must be governed by the Articles of Impeach-
ment. When the Defence offered to prove the general declaration of
the Respondent, in favor of the Union, and expressive of his attachment
to the Constitution, and wdien that offer was favorably acted upon by
this body, I had no doubt but that it opened the whole field for the intro-
duction of testimony of the same nature on both sides. The mere fact
that Judge Hardy attended a political meeting at which disloyal senti-
ments were uttered, would not in itself, I think, constitute competent
testimony. But when it is proposed to show that disloyal sentiments
were there expressed, and a treasonable policy against the Government
was there enunciated, and that Judge Hardy took an active part in that
meeting, and applauded those sentiments, I think the testimony is ad-
missible. And, as I remarked before, I had no doubt, in my mind, that
the whole field was opened for the introduction of this class of testi-
mony, when the Defence were permitted to prove that general expres-

404

gions of loj-alty had been used by Judge Hardy, on numerous occasions.
A similar case, and one directly in point, is that of Lord George Gordon.
Now, it would be proper for the Prosecution to show, by way of rebuttal,
that the Respondent never did use the \oyi\\ language attributed to him
in the testimony of the Defence. If they could do so, they might go on
to show that he never used such language at all. If that be so, is it not
proper for the Government to prove, that, at the very time when it is
shown the Respondent used lo^'al language, he was attending, and
ofificiating, and ajiplauding, at a political meeting at which disloyal lan-
guage was uttered ? Now, the question comes to this, merely : Whether
a man who belongs to a certain political party, and attends a meeting
called by members of that party, goes upon the stand at that meeting,
hears and applauds views and sentiments hostile to the Government, is
to be considei'ed entirely exonerated i'rom the charge of participating in
those views, and entertaining and acting u])on those sentiments ? It is
generally supposed, among the American peojile, that a man Avho votes
for a certain party, whose oi)inions are expressed in certain platforms,
entertains the ideas Avhich those platforms give utterance; and expect
that the candidates elected upon those platforms will bo governed by the
views therein expressed. I suppose, that at such times, it is competent
to prove the language and conduct of a man's associates, after his asso-
ciations have been once thoroughly determined. That point is estab-
lished in various cases. And, under that view, I judge that this testi-
mony is competent in direct rebuttal. And I admit that testimony, with
that precise understanding.

The sense of the Senate is required upon the question — Shall this tes-
timony be received ?

Mr. Edgerton. — The fact of Judge Hardy's presence and action at that
meeting, his opening of the meeting, and his applauding the sentiments
of the speakers, is competent evidence that he entertained and approved
those sentiments.

Senator Merritt. — I do not SO understand it. If that is the case, I w^ould
like to be authoritatively informed ; for here, the other day, I applauded
some sentiments uttered by my friend, Mr. Perkins, because I liked the
manner in which they were expressed. Am I, therefore, to be classed as
a Republican ?

Senator Watt. — I should like to make an inquiry in regard to this mat-
ter. I would like to know, if it be proved that McConnell and Tod Rob-
inson are rebels, whether the inference is legal and irresistible that all
the other members of the same party are rebels also ?

The Presiding Officer. — Not at all. It would be necessary to prove that
all the other members of the party had expressly concurred in those
sentiments. If a person applauds a disloyal sentiment, uttered in his
presence, it seems to me that it is just as good evidence of his disloyalty
as though he had uttered it himself.

Senator Williamson. — I should like to have the Presiding Officer, or the
Counsel for the Prosecution, or some member of this Court, decide what
is to be understood here by the terms ""loyalty" and " disloyalty." Is
a man loyal or disloyal because he sustains, or refuses to sustain, the Con-
stitution ? Or because he sustains, or refuses to sustain, Abe Lincoln
and his Administration ?

Senator Gallagher. — One word in explanation of my vote, before the
roll is called. I am not here to listen to a rehearsal of the speeches of
Mr. McConnell, or any other sj^eeches which I have listened to before.
I am not here to listen to the reading of the platforms of any political

405

parties, I know what the views of those men are, now, as well as 1
shall after hearing Mr. Manehester's rehearsal, or the repetitions of any
otiier witness. I shall not cast my vote to open the door for testimony
still wider, for the purpose of going into testimony which has nothing to
do with the Impeachment of this Respondent under the Articles of Im-
peachment which have been brought in here. I don't wish this Legisla-
ture to be detained here for weeks, and perhaps months, in hearing tes-
timony which can have no legitimate bearing upon the case.

THE VOTE.

The. Presiding Officer. — The question is : Shall this testimony be re-
ceived ?

The kSecretary called the roll, with the following result:

Ayks — Messrs. BurncU, Chamberlain, Crane, Gaskill, Harvey, Harri-
man, Hill. Kimball, Kutz, Nixon, Oulton, Perkins, Porter, Powers, Van
Dyke, and Warmcastle — IG.

Noes — Messrs. Denver. Gallagher, Hathaway, Holden, Lewis, Merritt,
Parks, Soule. Shurtleff, Vineyard, Watt, and Williamson — 12.

So the Senate decided to admit the testimony, b}^ a vote of sixteen
ayes to twelve noes.

EXAMINATION OF P. B. MANCHESTER RESUMED.

Mr. Ecl(/crtun. — You say that you heard Tod Eobinson speak that
night '{

A.— Yes, Sir.

Q. — Where was Judge Hardy when Tod Robinson was speaking?

A. — A part of the time he was on the stand, and a part of the time he
was off. I think he was off and on, during the speaking. I think that
I 8])oke to Judge Hardy at the time Tod Robinson was speaking.

(i. — Give us tlie substance of Judge Robinson's speech concerning the
present difficulties of the country — Secession, rebellion, and the war in
the country ?

A. — Tod Robinson's speech was, from beginning to end, a very bitter
one against the Government of this country. So was Mr. McConnell's.
Judge Barber's was not. Mr. McConnell's was a direct attack upon the
Government. I took down a part of the remarks of Tod Eobinson and
Mr. McConnell, as I was to reply to them on the next evening. Both
of them said, at the beginning of their speeches, that they were Union
men. They used extreme language throughout; but they expressly
said, at the commencement of their speeches, that they were Union
men. I recollect, particularly, a declaration which was made by Tod
Robinson during his remarks. I wrote it down at the time, and jjre-
sented it to him on that evening, or on the next morning — asking him
if that was what he said. He said that it was entirely correct. It was
the peroration of his speech. He said this, in his peroration, which was
a little flighty: "Lincoln is a usurper, and a tyrant. He is now the
arbiter of others' fate ; and I pray God that he may soon be a suppliant
for his own." [Sensation.] This was just after the battle of Bull Run;
and they were offering to bet, around there, that Jeff. Davis would be
in Washino-ton in a few weeks.

406

Mr. WiJUaim. — Will you repeat that language, which you say was
uttered by Tod Robinson ?

Witness. — " Lincoln is a usurper and a tyrant. He is now the arbiter
of others' fate ; I pray God he may soon be a suppliant for his own."
I wrote down the language at the time, and showed it to Mr. Robinson ;
and he indorsed and adopted it as the exact language which he had
used. I would state, that Senator Gallagher was present on that occa-
sion. Perhaps he could say what he understood to be the language on
that occasion.

Senator Watt. — Did he applaud, or denounce, the language?

Witness. — "Well, I believe he belonged to the other wing of the party.
[Merriment.]

Mr. Williams. — If he had not, I supjDose 3'ou conclude that he would
have hurrahed ?

Witness. — Well, he would have done as he liked about that. [Renewed
merriment.]

Mr. Edf/erton. — Do you recollect anything that Mr. McConnell said, on
that occasion ? The substance of what he said ?

A. — Mr. McConnell said that the Government had violated the Consti-
tution of the United iStates. He said that the Administration had broken
down and destroyed the Constitution of the Government. I recollect
another thing that he said. I recollect that he said that any State had
a right, under the Constitution, to withdraw from the Union when it
saw fit. That was his view.

Q. — Did he say anj-thing about the allegiance of a citizen — where it
was due ? •

A. — Yes, Sir; he did. The idea to be gathered from his speech — he
spoke for some three hours — talked a great deal on that subject — the idea
to be gathered from his speech was, that the superior allegiance of a
citizen belonged to the State.

Q. — Can 3'ou give the substance of what he said ?

A. — The substance Avas this : That some parties might hold that their
allegiance was due to the State in which they were born, and that others
might hold that their allegiance was due to the State in Avhich they re-
sided ; but, in any event, he contended, their allegiance to the State was
superior to their allegiance to the General Government.

Q. — Was anything said by him in reference to the secession of South
Carolina ?

A.— Well, I do not remember anything particular.

Q. — Was anj'thing said in regard to the firing upon Fort Sumter?

A. — He found no fault with that. And I would say this, in reference
to that point : He found no fault with any acts of the rebels.

Mr. Williams. — Well. Mr. Manchester, we object to such answers as
that. You are not here for the purpose of making a political speech.

Mr. Edf/erton. — I ask you whether he said anything in I'egard to the
firing upon Fort Sumter?

A. — I do not recollect.

Q— i^ow, Avhere was Judge Hardy at the time Tod Robinson was
speaking ?

A. — I think he was standing in front of the hotel.

Q- — How far was he from Mr. Robinson ?

■^- — The stand was on one side of a narrow street, and the Union
Hotel was on the other, and the audience was in front of the stand,
blocking up the whole street between the stand and the hotel. The

407

audience stood along b}^ the hotel, also. I stood in front of the hotel,
too.

Q. — Did you say that Judge Hardy introduced those speakers ?

A. — I would not say that. He was not chairman of the meeting, I'm
sure. He was on the stand, I think, at the opening of the meeting; and
I think that he opened the meeting.

Q. — What time in August was it that this occurred ? How long before
the election ?

A. — My own impression is, that it was on the thirteenth of August.
It was very near that time, at any rate.

Q. — And tlic election was held in September, was it not ?

A. — Yes, Sir.

Q. — Might not the meeting have been on the tifteenth of August?

A. — It might.

Q. — Did you notice Judge Hardy while these speeches were being
made ?

A. — I could not say that I did, particularly. I saw him there. He
was there, and, as I understood him on that occasion to say to me, those
gentlemen — Mr. McConnell, Mr. Barber, and Mr. Robinson — had been to
his house that day, and taken dinner.

Q. — Was it Court week there ?

A. — Ye.^, Sir.

Q. — Did Judge Hardy make a speech there, that night?

A. — My own impression is, that he said something at the opening of
that meeting, as to the men who were going to speak But I do not
think that he spoke.

Q. — Did you hear Judge Hard}' make a speech anywhere, during that
campaign ?

A. — I did not.

3Ir. Williams. — [Interrupting.] Now, where is your evidence that Judge
Hardy " applauded ?"

3fr. Edijrrton. — Did you have any conversation that night with Judge
Hard3\ in regard to the speeches that were made there ?

A. — Nothing that I could recollect about. We talked in a social way,
during some portions of the evening; but Judge Hardy was principally
engaged in entertaining his company, his guests there. I saw him and
spoke to him, however, several times during that evening.

Q. — Did you observe any applause there, that night ?

A. — There was a good deal of applause.

Q.— AVhile Eobinson and McConnell were speaking ?

A.— Yes, Sir.

Q. — By whom ?

A. — By the party which was going to support them at the election, I
suppose. There was a very large crowd there, and I understood from
Judge Hardy that members of almost all parties were there ; that pretty
much the whole town were there, indiscriminately. I know that there
were some Republicans there. Judge Hardy said that almost all the
Republicans and all the Union Democrats there at the Hill, were present,
attending the meeting, and listening to the speeches.

CROSS EXAMINATION.

Mr. Williams. — You say that you suppose the applause came from those
who were going to support the speakers, at the next election ?

408

A. — I say, I suppose that it did. You would naturally think that it
would.

Q. — The applauders were going to support what ticket ?

A. — What was called the McConnell ticket.

Q. — You say that there were Union Democrats and Eepublicans
there ?

A. — I understood so.

Q. — It was a kind of mongrel meeting, so far as the audience was con-
cerned, was it not ?

A. — I think so.

Q. — These speakers were to address the meeting on that night, and
you were to address the meeting on the following night ?

A.— Yes, Sir.

Q. — Were you announced to reply on the next night ?

A.— Yes. Sir.

Q. — Did Judge Hardy announce that you would reply on the next
night ?

A. — He offered to do so, and I think he did do so. I think he an-
nounced that I would speak on the next night.

Senator Merritt. — Did he announce you, as well as the other speakers ?

A. — Certain 1}'-.

Senator Merritt. — Was Judge Hardy present at the next meeting ?

A. — I believe that he was, and that he patiently heard me through a
very long and rambling talk.

Mr. Williams. — You seem to place some stress on the fact that Judge
Hardy invited these gentlemen to dinner with him. Didn't he invite
you, too ?

A. — He did, Sir. [Merriment.]

Q. — You said that he announced the speakers on that night?

A. — Well, I think he announced them, but I don't know whether he
introduced them, or not. He was on the stand, and my impression is
that he announced them.

Q. — Well, was not that an act independent of any party association?
You say that he announced you?

A. — He came to me and said that he would announce me, and I believe
that he did. I have already so stated.

Q. — Now, after he had invited you to dinner, and announced that you
were to speak on the next night, did you understand that he was a Re-
publican ? Did you understand, that by his doing those things, he was
a Republican ?

A. — I did not.

Q. — If that is good evidence on one side, why ought it not to be good
evidence on the other?

A. — Well, that is a matter that I suppose the Counsel will attend to.
[Merriment.]

Q. — You say that there was applause on that evening; and you are
then asked, significantly and properly, whether Judge Hardy did any-
thing peculiar. You answer, that he did not. I now ask 3'ou, if you saw
or heard Judge Hardy applaud a single sentiment that was uttered by
the speakers on that evening?

A. — I cannot say. I know he was at the meeting, with the rest of the
party. I cannot say whether, upon any particular remark being made
by any of the speakers, I saw Judge Hardy applaud. He might, or
might not, have done so.

409

Mr. WilUams. — Yes ! lie might, and he might not; he mought, and he
moughtn't. [Merriment.]

Now, you have attended a good many political meetings, Mr. Man-
chester, and made a good many political speeches, haven't you?

A. — I have attended a few.

Q. — Have you not, on such occasions, heard speakers applauded with-
out any reference to their politics ? When they had said some smart
thing, or told a good story, or made an apt poetical quotation, or got off
a fair hit on an opponent? AVhen the main object of the speaker had
nothing to do with that particular remark which was applauded ?

A. — I think I have heard persons applaud speakers when they did not
agree with them in political sentiment.

Mr. Williama. — Well, that is not a very material matter here, because
Judge Hardy didn't applaud.

Q. — Mr. Manchester, who spoke first that night?

A. — Mr. McConnell.

Q. — Who spoke next ?

A. — Mr. Robinson, I think, followed Mr. McConnell. Yes, Mr. Robin-
son followed Mr. McConnell, and then Mr. Barber came.

Q.— That closed the ball, did it?

A. — Yes, Sir.

Q. — Don't you know, Sir, that Judge Hardy was called away, in the
early part of McConnell's speech, on account of the sickness of his wife,
and was not there when Robinson and Barber spoke?

A. — 1 do not know that, because I never heard anything about it?

Q. — Now, 3'ou have given Mr. Robinson's sentiments, and tried to
charge Judge Hardy with approving them. When Tod Robinson uttered
those sentiments, don't you know that Judge Hardy was not there?

A. — I do not know that. I never heard anything about Judge Hardy
being called away. I think that we talked together while Mr. Robinson
was speaking.

Q. — Mr. Manchester, will you swear, that when those sentiments were
uttered by Tod Robinson, Judge Hardy was at the meeting?

A. — He might not have been on the stand. I would not swear to see-
ing him on any particular occasion; but I know that I saw him fre-
quently during the meeting. I remember speaking to him some half a
dozen times during the progress of the meeting. But if you should point
out any particular sentiment which was uttered there, and ask me if
Judge Hardy was present when that was uttered, I could not give you
a categorical answer.

Q._How long does it take to see the same man, in the same crowd,
half a dozen times ?

A.— It would not take long. If you will allow me to explain, I will
say that Judge Hardy was apparently very active at the meeting. He
was on the sfand, and off the stand. I certainly saw him once or twice
on the stand. Then he would come off, and speak to some of his friends.
Then he would stand about in the crowd, listening to the speeches.

Q. — Now, to refresh your memory as to Judge Hardy not being there
at all when the speeches were made : don't you remember that you read
Tod Robinson's remarks to Judge Hardy, and Judge Hardy disclaimed
and denounced them ?

A. — I think Judge Hardy may possibly have been present when I

read Tod Robinson's remarks, on the next morning. I know that many

persons were present at the time. But I do not recollect that Judge

Hardy, or any other McConnell man, dissented from the sentiments. I

410

don't recollect of anybody dissenting from them at that time. When I
say " anybody," I mean anybody belonging to the McConnell party.
I don't speak of the Union Democrats there, cither; because I think
they dissented most strenuously, and were a good deal more bitter in
denouncing them than the Eepublicans were. I think that the members
of the Union Democracy there ratlier took the lead in that particular.

Mr. Williams. — Yes ! New converts to Unionism ! New converts are
just like young bumblebees, biggest when they are first hatched.
[Merriment.] Don't you remember that Judge Hardy distinctly dis-
sented fi'om Judge Robinson's remarks ?

A. — No, Sir; I do not. I recollect that Senator Gallagher and other
Union Democrats dissented very strongly.

Q. — I believe you are a pretty good Republican now, are you not ?

A. — Well, I belonged to the old Whig party, and I calculate to die in
it. I voted for Lincoln, and for Stanford ; but to say that I adopt all
the dogmas of the Republican party, would be more than I would like
to say here.

Q. — Did you vote for Fremont, in eighteen hundred and fifty-six ?

A. — I did not. I voted for Lincoln, because he was an old line Whig,
and' I thought he would be sound on the main questions.

Q. — Tlien you are more of a Whig now than Republican ?

A. — Yes, Sir.

Q- — You say that Lincoln belonged to the old Whig party ?

A.— Yes, Sir.

Q- — Well, there have been a good many divisions and subdivisions in
politics since that old party broke up, has not there ?

A. — Not a gi'cat many. We old line AYhigs have been compelled to
vote outside of party organization, a good deal.

Q- — There have been a good many local parties in this State, have
not there ?

A.— Yes, Sir.

Q- — There was the Vigilance Committee party. Did you belong to
the Vigilance Committee?

Mr. Edi/erion. — We object to that question.

Mr. TFtV^mms.— Well, I withdraw it.

Q- — Do you know, now, whether you are a Republican or a Union
Democrat ?

Mr. EJgerton. — Well, I should like to know if the Counsel for the De-
fence is going to turn this Court into a theatre. If he is, I hope General
Williams will be the " star " actor.

Witness. — I can answer that question very readily. I am for the Govern-
ment all the time, and against all the world. [Applause in the lobby.]
Whatever party that sentiment brings me in connection with, you can
count me in.

Senator Van Dyke. — Y"ou have given certain sentiments which were ut-
tered b}^ the speakers on that evening. Did Judge Hardy approve of
those sentiments ?

Witness. — I stated that I did not know.

TESTIMONY OF GEORGE PECK.

George Peck, being called and sworn, testified as follows ;

411

EXCUSE

The Presiding Officer. — This witness was subpoenaed to attend on yes-
terdaj'. He was not here, and an attachment was issued for him. I
suppose that if he has any excuse to offer for his non-attendance, the
Court are ready to hear it.

Wiiness. — I will state, tliat I was subpoenaed to appear here at eleven
o'clock on yesterday. I came here, and attempted to come in, but the
Doorkeeper kept me out. I told him that I was subpoenaed to appear
here, as a witness, at eleven o'clock. He still refused to admit me.
Finally, I got in, and took a seat in that [pointing] corner of the room.
Then, the Doorkeeper went to Judge Williams and Mr. Campbell, and
said that I professed to be a witness in this case. They all looked at me,
but made no recognition of me. Then, the Doorkeeper came to me, and
said that I was not wanted, and told me to leave. I then went home,
and sat down to write letters for the steamer.

The Preauling Officer. — I presume that the excuse is suflficient.

EXAMINATION.

Mr. EJcjerton. — Where do you reside ?

A. — I live on Bush street.

Q. — Do you know the Eespondent ?

A. — I am not personally acquainted with him. I have seen him sev-
eral times.

Q. — Have you ever been in Calaveras County?

A. — I was at Copperopolis, in Calaveras Count5% during the last politi-
cal campaign, when a political meeting Avas held there.

Q. — Who spoke there on that evening?

A. — I believe that Tod Robinson opened the meeting — made the first
speech ; and my impression is, that Judge Hardy followed; and then, I
think, Mr. A. P. Dudley followed ; and then, a man by the name of
George, from Amador County.

Q. — About what time was that ?

A. — My impression now is that it was the latter part of August — the
last of August, about. No; I think it was the first or second day of
September. I could tell precisely, by referring to some minutes which I
have.

Q. — Many people assembled there ?

A. — Well, I should judge that there were over two hundred. About
that number.

Q._Do you recollect whether Judge Hardy said anything in that
speech upon the subject of the jH-escnt difficulties?

A.— I think that, 'in the course of his remarks, he made use of these
expressions a number of times. He spoke against the Administration
party, rather severely ; he denounced it for carrying on " this unjust,
unholy, and accursed war, against the Southern Confederacy." I think
that was the language used by him.

Q._Do you recollect anything else which he said in the course of
that speech, that had a bearing upon this subject?

A. — I inferred, from his speech, that he was in favor of—

Mr. mYftams.— [Interrupting.] We object to your inferences, Sir.
Witness. — Well, I can only give the substance of what he said.

Mr. Edgerton. — We don't ask you to give his exact language. Give the
substance of what he said.

412

A. — "Well, he spoke in favor of the Southern Confederacy ; in favor of
the coarse they had taken ; against the war which the present Adminis-
tration was prosecuting against them.

Q. — You say that Tod Eohinson made a speech there on that even-
ing ?

A. — Yes, Sir.

Q. — Do you recollect anything that he said in reference to this sub-
ject ?

A. — Well, his speech was in a decidedly different tone of language.
He spoke against the war Avhieh was being prosecuted against the South-
ern Confederacy. He spoke in favor of peace and compromise. Mr.
Hardy also spoke in favor of compromise, and a settlement of our na-
tional difficulties, and in favor of bringing about an amicable adjustment
between the two sections of the country.

Q. — Did Judge Hardy say anything about the grievances which the
South had sustained at the hands of the North, or of the Government ?

A. — Well, I could not repeat any of his declarations about that.

Q. — About what time do you say this was ?

A. — My impression is, that it was about the last of August. I know
that it was a few days before the election. A week, perhaps, or some-
thing like that.

Q. — State whether Judge Hardy advocated the election of any partic-
ular ticket ?

A.— He did. He advocated the success of the McConnell ticket. All
the speakers advocated that, I believe. I know that he was very severe
on the " Doughis Democrats," as he termed them, for bolting from the
" True Democracy," as he called them.

CROSS EXAMINATION.

Mr. WilUams. — Was not Judge Hardy rather more severe on the Union
Democrats than he was on the licpublicans — it being rather of a family
quarrel ?

A. — Well, I think he was a little more severe on the Union Democrats
than he was on the members of the other party. I think he treated
them in rather a different strain of language.

Q. — Now, have you not made a mistake, and attributed to Judge
Hardy, sentiments which were expressed by Mr. George, on that even-
ing •(

A. — No, Sir. The expression Judge Hard}' made use of, in regard to
the war — that it was an unjust, unholy, and accursed war, against the
Southern Confederacy — made an impression on my mind that 1 could not
eff'ace.

Q- — Then you are sure that Judge Hardy made use of that expression,
and not Mr. George ?

A. — lam sure that Mr. Hardy made use of that expression.

Q. — May not Mr. George have made use of the same expression ?

A. — He may have done so, but I did not hear him.

Q- — How long was that speech of Judge Hardy's ?

A. — I think it may have been, perhaps, half an hour. I think it was
not half as long as Tod Eobinson's. Still, I cannot tell precisely how
long it was.

Q- — You say that it was not more than half as long; as Tod Eobin-
son's? ^
A. — I think so.

413

Q. — And 3^ou have a distinct picture of it on your mind ?

A. — Of some remarks in it, 1 Lave.

Q. — And you heard Judge Hardy through ?

A. — I think so.

Q. — Did he not wind up liis speech by calling for three cheers for the
Constitution and the Flag of the Union ?

A. — 1 did not hear that.

Q. — And yet you heard tlie whole speech through ?

A. — I think I did. I was sitting directly in front of him, on the steps
of a saloon, on the opposite side of the street.

Q. — Were there a good many Union Democrats there?

A. — I think that the people generally were there, without reference to
party.

Q. — Did the same crowd attend the meeting on the next evening ?

A. — 1 was not there on the next evening.

Q. — Now, did, or did not, the people constituting that meeting several
times inteiTupt Mr. George with some interrogatories, when he was ex-
pressing disunion sentiments ?

A. — 1 think that there was some little stir there at that time.

Q. — Was any such interruption made to Judge Hardy when he was
speaking'/ Did anybody dissent from anything which he said?

A. — Mr. (Jeorge made use of a good many funny expressions — remarks
which created laughter, and hissing, etc. That was about all there was
of that, I think.

Q. — Was not Mr. George interruj^ted, not with laughter alone, but was
he not interrupted sharply, with interrogatories, by apparently Union
men, in meeting, when he was uttering sentiments which were oifensive
to them as Union men ?

A. — Well I do not know that he was. I could not say now. I paid
less attention to Mr. George's speech than to any of the others. He was
the last speaker of the evening, and a good many of the audience had
left.

Q. — You state that Mr. George was interrupted in the course of his
remarks ?

A. — Well, there was some laughter, and some hissing.

Q. — Were there not dissenting and indignant remarks made ?

A. — There might have been.

Q. — Now, were there the same interruptions to Judge Hardy's speech ?

A.-^l would state, that 1 think it was a pretty civil meeting. I don't
know as Judge Hardy was interrupted.

Q.— The crowd was made up of Ptcpublicans, and Union Democrats,
and Breckinridgers, was it not?

A. — Yes, Sir ; the people generally.

The Court then adjourned to Friday morning, May ninth, at eleven
o'clock.

TESTIMONY

IN THE

TRIAL OF JUDGE J. H. HARDY.

ELEVENTH DAY— MAY 9, 1863.

REBUTTAL TESTIMONY FOR THE PROSECUTION.

A PROPOSITION.

Mr. Williams. — Mr. President : I have a suggestion and a proposal to
make to the ^Managers and to the Court, in relation to the mode of the
proceedings in closing this case. It might, off hand, seem to be prema-
ture. The Senate have already refused to entertain, early in the pro-
ceedings, the question as to the order of summing up this case, and as to
how many Counsel shall be heard. They have reserved that until the
close of "the evidence. It might, therefore, seem that the proposal
which I now make to the Managers, -was premature. I shall state rea-
sons, however, which I think will be entirely satisfactory to the Court,
for making the proposal now, instead of waiting until the testimony is
closed.

We have now been, or shall have been to-morrow, two entire weeks
taking the evidence in this case. We have the evidence before us, down
to the resting of the Prosecution. We have the printed testimony of
the whole of the Prosecution's case. We have not one word of the evi-
dence on the part of the Defence. Of this I do not complain. Upon
this I do not base my action, for I care very little about the printed
testimon3^ I have tried this case as I try all cases; regularly and
thoroughly as I am capable of doing; at the same time endeavoring to
condense the proceedings upon our side as much as was possible, consist-
ently with the true interests of my client. I have deemed it important
to him not to raise objections which should exclude evidence, by reason

416

of which it might be said that Judge Hardy had been acquitted, if ac-
quitted, by the exchision of testimony which had been ottered against
him. I have endeavored to elicit and procure everything tliat could be
said against him, in the way of evidence, whether it was pertinent or
imperlinent, relevant or irrelevant, to the Articles of Impeachment,
whether it went to sustain charges that were legal, and upon which he
could by any legal possibility be convicted, or not. While I have done
this, I have endeavored to shorten the trial as much as I could ; and
now I am going to make a proposal in furtherance of that object.

This is not a jury. This is not a forum, made of men who come from
such pursuits that they would not be likely to comprehend testimony,
and its legal bearing, when it comes out. This Court is capable of appre-
ciating the evidence as they hear it, judging of it as it comes out, and
balancing it as it goes along. I propose now, to the Managers, to submit
this case, when the evidence shall have been closed, without argument
upon either side. I think the}' will have no right to complain of this pro-
ceeding. They have had one very full argument upon the case, in ad-
vance ; but I am not now complaining of that, myself, either.

But first, I will state the reason why this offer of mine should not be
deemed premature. I stated the reason why we should not wait until
the evidence is closed, before making this offer. It is for the reason that
the gentlemen ojiposed to me know, as well as I do — for they are old
stagers in the profession — that the labor of preparation for argument of
this kind is much greater than argument itself. And, if we ai-e not to
argue the case, we do not wish to bestow the night labor that will be re-
quired for the preparation of that argument. I make this proposition,
and wish to state that I do it not for the jiurpose of making any kind of
stock out of it, either favor for ourselves or prejudice against them, for
the reason that I do not propose to hold them responsible. I do not pro-
pose to ask them for an answer to it. They are employed as Counsel ;
they are under the control of their clients. The Managers arc the men
to determine this. And while I say I do not wish to throw any respon-
sibility upon them, or make any favor for myself, I will own up this far:
I do desire and do intend to fasten the responsibility of the character
of this Prosecution upon those who are the real authors of it. Counsel
are but the instruments; they do but their duty; and, while they have
done their duty thoroughly and well, zealously and actively, and as ably
as such duties have ever been performed upon a similar occasion in this
State, they have still performed that duty fairly, apj^ropriately, and in a
courteous manner.

I wish now, your Honor, to say to the Court, that I ask them to now
decide upon my proposal; not to wait until the evidence is closed, when
we must have spent nights in looking over this testimony, collating it,
regrouping the witnesses, and v.-hat they have sworn to. I ask that the
Senate shall now say, as they have a perfect right to say, for it is all
within their control, how these proceedings shall be closed. The mem-
bers of the Court have heard vai'ious interlocutory arguments; they
have heard a full opening speech on the part of the Prosecution. They
have the right now to say whether they will hear a full closing argu-
ment, or not. And with these views, I ask the Court to now say, by
their resolution, that they will not hear argument uj^on this case after
the closing of the evidence. It may be thought, perhaps, and I will not
say how justly, that I am intimidated by the strong array against me.
Let that be so. It may be thought that between two able Counsel here,
I expect to be pulverized. Let that impression go. I will take my share

417

of the responsibility. I never, so help me God, in the trial of a case,
had any other view in its progress, upon the question of whether I
would make a speech or not, than duty to nw client. I do not think
that a Court of Justice, especially a High Court of Justice like this, is
the place for a man to seek to make a personal display, if he has the van-
ity to think he can make one that will be creditable to him. I know
the gentlemen opposed to me are too experienced, too thoroughly versed
in the practice of their profession, and have too high a sense of its duties,
to desire any such thing. I know they do not desire it on their own
account, and I know that on that point the}' will sympathize with me.

Now, I make this proposition ;and I make it to the Managers, and to
those who stand behind the Managers. And if they reject it. and keep
this Senate here for another week, let them take the responsibility of it.
The testimony will not be closed until to-morrow morning, or sometime
to-morrow, probably.

The Preni'/iixj Ojfirrr. — Do you propose to move the Court that they
shall not hear argument upon the case?

Mr. Wifii>ims.—i stated that, distinctly.

The Frrs^idlmj Officer. — That the}' shall not be heard ?

Mr. Willidms. — 1 intend to ask for an order providing that the case
shall be submitted when the evidence is closed. And if thiere is any-
thing extraordinary in that, or if it is out of order — and the President
suggests it is — I will endeavor to remove that impression, or take my
seat, under the decision. Now then, I make this offer, to submit this
case upon the close of the testimony; and I ask the Managers to give
me an answer, and then I will make another motion, depending upon
their action in this matter.

Mr. Camphell. — The Counsel for the Eespondent knows, or ought to
know, as well as an}' member of the bar, that it is entirely beyond all
professional rule, to make offers of this kind, publicly, and with a view to
effect. That offer has already been submitted —

Mr. Wi/fiams. — [Interrupting.] No, Sir; No, Sir. You are mistaken.

Mr. Campbell. — [Continuing.] That offer has already been submitted,
privately —

Mr. William.f. — [Intennipting.] No. Sir; yon are mistaken there. I
never have submitted an offer of that kind privately.

Mr. Camphell. — Did not you suggest to us to meet last night, to dis-
cuss the matter? And did not we meet? And were not you so in-
formed ?

Mr. Witlknns. — I stated to Mr. Edgerton, distinctly, that we would not
make any such offer. I asked you. if, should the Senate so decide, you
would be satisfied ?

Mr. Camphell. — The Counsel desired the Managers and Counsel to have
a meeting, to know whether such a proposition should be made.

Mr. Williams. — Yes.

Mr. Camphell. — AVell, if I had understood it in that light, I would not
have been foolish enough to request the 31anagers to hold a meeting for
such a purpose. Now,"Sir, the character of this offer is as plain as any-
thing can be. But I will say, in regard to it, now, for fear that we may
be misunderstood, or that our action may be misconstrued, that the
Managers are unanimously of the opinion, and so are the Counsel whom
they have employed to assist them in this prosecution, that the submis-
sion, without argument, of a high State cause, of this character, would
be a dereliction of duty on their part, which would not be justified or
excused, either bv those who sent the Managers here, or by the people
53

418

of the State, whom they represent ; that such a course is entirel}'- with-
out precedent, and that it would justly expose them to a censure which
they would not be prepared successfully to rebut. If the Senate make
any order upon the subject, we shall cheerfully obey that order; but, so
far as giving any consent is concerned, it is the unanimous opinion of the
Managers, that such an assent ought not to be expected on their part,
and that they could not do so without a violation pf the duties entrusted
to them. The Counsel would gladly escape the labor of the summing
up of this case, and the labor of preparation therefor; but, at the same
time, they feel that it is their duty to 'agree in the opinion of the Mana-
gers— that to submit this case without argument, would be entirely un-
precedented, and that neither the Managers nor their Counsel would bo
justified in assenting to any such proposition.

Mr. Willicanf;. — I do not disguise the fact that I am anxious to close
this trial — anxious on my own account. I have, instead of being im-
pelled by Judge Hardy's request in this matter, obtained his consent to
this course.

The Presiding Officer. — I do not consider, myself, that this offer should
have been made by you to the Managers here, in the presence of this
Court, at all. If you wish to move the Court for an order, you are en-
titled to make the motion. But the proposition for a contract between
the parties, I deem, should not have been made here.

Mr. Williams. — I have made no such proposition.

Mr. Campbell. — You made the proposition distinctly, I should think.

The PreddiiKj Officer. — The Constitution says that parties have a right
to be heard by Counsel. The rule adopted by this body, in relation to
this very matter, says that they shall be heard by Counsel. I cannot
consider a derogation of that rule, and of the Constitution of the State,
is in order. It is for the Senate itself, of its own motion, to decide this.

Mr. Williams. — Under the intimation from the Chair, which, I take it,
will have a controlling influence here, 1 withdraw the motion for the
present. I am not at all certain but I shall decline to argue the cause.
If, on the part of the Prosecution, they choose to argue it after that — all
right.

Mr. Camjihell. — A little more buncombe will do. General.

[Mr. Edgerton read over a list of witnesses, and those who were pres-
ent came forward, and were sworn.]

TESTIMONY TO SUSTAIN A. P. DUDLEY EESUMiJD.

TESTIMONY OF CHARLES LOMBARD.

Charles Lombard, being called and sworn, testified as follows

Mr. Edgerton. — Where do you reside ?

A. — I reside here, now.

Q. — Have you ever lived at Mokelumne Hill ?

A.— Yes.

Q. — How long have you lived there ?

419

A. — Five years and a half.

Q. — Did 3-0U know Allan P. Dudley, at that time ?

A.— I did.

Q.— Were you generally acquainted throughout that community ?

A. — Yes.

Q.— Were you acquainted with Dudley's reputation, throughout that
community, for truth and veracity ?

A.— Yes.

Q. — Was it good, or bad?

A. — In some cases, good ; and some, bad.

Q. — Just define, and explain yourself.

A. — Well, Sir, on the street his reputation was bad; talking politics,
telling stories, and the like.

Q. — In what particular was it good ?

A. — Well, in a matter of seriousness, I should judge it was.

Q. — From your knowledge of his reputation for truth and veracity,
would you believe him under oath ?

A. — I would. Sir, all the time.

CROSS EXAMINATION,

Mr. WiUuimi^. — Have you never heard Dudley's reputation generally
spoken of without this nice distinction you have mentioned — that he
woiild lie in one place, and tell the truth in another?

A. — He had the same reputation in my county that I have given. I
have heard him talked about in different ways.

Q. — Have you heard his general character for veracity questioned,
without making this distinction?

A. — Not under oath.

Q. — 1 do not ask you as to that. I ask you as to his general character
as a man of truth ?

A. — Yes ; I have heard it questioned.

Q. — By a great many people ?

A. — By a number.

Q. — And your opinion is, that his reputation, as talked of in the streets,
is bad ?

A.— Yes.

RE-DIRECT EXAMINATION.

Mr. Edgcrton. — When you say you have heard Mr. Dudley's reputation
for truth questioned, in what manner do you mean ? As to political sub-
jects, telling stories, and joking?

A. — On political matters, telling stories in the streets, etc., his veracity
is always questioned. I believe him when I please ; when I don't, I don't.

Q. — But in serious matters you do believe him, and would, on oath ?

A. — I would, Six*.

TESTIMONY OF SAMUEL CRANE.

Samuel Crane, being called and sworn, testified as follows ;

Mr. Edrjcrton. — Where do you reside ?

A. — In this city.

Q. — Have you ever lived at Mokelumne Hill ?

420

A. — I lived there in eigbteen hundred and fifty-one and eighteen hun-
dred and fifty-two. I lived in Calaveras County ten years.

Q. — Do you know Allan P. Dudley ?

A.— Yes.

Q. — Were you generally acquainted throughout Calaveras County,
when there ?

A. — I was generally acquainted throughout the community there.

Q. — Do you know Dudlev's reputation there, for truth and veracity?

A.— Yes.

Q. — Is it good, or bad ?

A. — His reputation for truth and veracity is good.

Q. — From what you know of his reputation, for truth and veracit3%
would you believe him under oath ?

A. — I would. I would make a distinction about whether he would tell
a crow's-head story or joke.

CROSS EXAMINATION.

Mr. Williams. — Dudley was in the habit of telling crow's-head stories,
was he ?

A.^Yes ', on the stump, and about.

Q. — Upon some subjects has he the reputation of being a great liar?

A. — Well, his reputation would be this : When he was in a bar room,
talking with you, you would think he was playing you. And you would
expect to take him as you find him, and trust to your own judgment.

Q. — That is not exactly an answer to my question. I ask you :
Whether Dudley has not that general reputation, that upon some sub-
jects no confidence whatever is placed in his word ?

A. — Well, Sir, if Dudley would tell me —

Mr. Williams. — [Interrupting.] No, that is not the ansAver. I do not
want an elaboration of it. You may make any explanation afterwards,
you please. But I want you to answer this question : Whether or not.
upon some subjects, he has not the reputation there of being a great
liar ?

A. — Well, upon political subjects, and upon law questions, or about a
case. He beat me once in a case, and I thought — well, he beat me when
I was right, I thought. But then I thought he won it by getting
ahead of the jury.

Q. — Did he get ahead of the jmy by telling falsehoods ?

A. — No, Sir. He would keep them laughing all the time, telling them
stories. There are those there who think his usual reputation in bar
rooms and saloons is bad.

Q. — I want to put this general question to you : Whether, in ordinary
matters of conversation, not on oath, he is a man in whose word people
place that reliance that they do in that of men of good character and
standing in the community ?

A. — There are some who do not.

Q. — Is, or not, that the general reputation ?

A. — The general reputation of Dudley would be, I believe, that they
would believe him.

Q- — Believe him, generally ? In all ordinary matters ?

A. — Yes, I believe so. There are some who would not.

Q- — Now, in an ordinary matter, upon an ordinary question of fact,
where he has any feeling of interest, do you think his neighbors would
place that reliance upon his statement that they would upon that of

421

men of good standing, men of truth and fai^ character, other lawyers
there ?

A. — There arc some there who would not.

Q- — Is not that the general understanding there — that they would not,
where there was a question of fact depending upon a question of veracity
between him and one of his respectable neighbors — such a man as Mr.
Higby, for instance — place confidence in his (Dudley's) word as against
that of a man of good standing for truth and veracity there ?

A. — As I said before, tliere are many who would not.

Q. — Is not tliat tbo general impression there ?

A.-7-I do not say the general impression; I cannot say that it is.

Q. — Well, the general talk. Suppose such a man as I have mentioned,
stated a fact on one side, and Dudley stated tlie contrary, where Dudley
had any interest or feeling; I ask you whetlier Dudley's statement would
be taken as quickly as that of the other man ?

A. — I presume there are men who would be relied upon much quicker
than Mr. Dudley.

RE-UlllECT EXAMINATION.

Mr. E(l(fcr(on. — I understand you to say, that in all serious business re-
lations of life, Dudley's reputation is good 't

A. — I have never heard him doubted on any serious matter.

TESTIMONY. OF S. L. MAQEE.

S. L. Magee, being called and sworn, testified as follows :

Mr. Edgerton. — "Where do you live ?

A. — At Mokelumne Hill.

Q. — How long have you lived there ?

A. — Since eighteen hundred and fifty.

Q. — Do you know Allan P. Dudlc}' ?

A.— I do.

Q. — Are you generally acquainted throughout Calaveras County ?

A.— Yes.

Q. — Do you know Dudley's general reputation there, for truth and ve-
racity 'I

A.— I do.

Q. — Is it good, or bad ?

A. — It is good.

Q. — From your knowledge of that reputation, would you beheve him
under oath ?

A. — I would.

Mr. Edgerton. — That is all.

Mr. Wi/liams. — You can pass, sir.

Mr. Highy. — Don't leave, Mr. Magee. Eemain here in the room.

TESTIMONY OF HENRY ATWOOD.

Henry Atwood, being called and sworn, testified as follows ;

422

Mr. Fdgerton.—Wheve d#^^oii reside ?
• j^. — At Mokelumne Hill.

Q. — How long have you lived there ?

A. — About eight or nine years.

Q. — Are you generally acquainted throughout the community there ?

A.— Yes.

Q. — You keep a hotel there, do you not ?

A.— Yes.

Q. — Do you know Allan P. Dudley ?

A.— Yes.

Q. — How long have you known him ?

A. — About seven years.

Q. — Are you acquainted with his general reputation in that commu-
nity, for truth and veracity ?

A.— Yes.

Q. — Is that reputation good, or bad ?

•A. — Good, to me.

Q. — From what j^ou know of his reputation, in that particular, would
you believe him under oath-?

A. — Certainly.

CROSS EXAMINATION.

Mr. Williams. — What did you say M'as your business ?

A. — Hotel keeping.

Q. — You know Dudley pretty well, do you not ?

A. — Yes.

Q. — He is a customer of yours ?

A. — Yes.

TESTIMONY OF M. W. SPAULDING.

M. W. Spaulding, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you reside ?

A. — At San Francisco.

Q. — Have you ever lived at Mokelumne Hill ?

A. — I have.

Q. — How long have you lived there ?

A. — I lived at Mokelumne Hill, or in the neighborhood, five years.

Q. — Were you generally acquainted throughout that community, when
you were there ?

A. — I was.

Q. — Did you know Allan P. Dudley ?

A.— I did.

Q. — Did you know his reputation in that community, at that time, for
truth and veracity ?

A.— I did.

Q. — Was it good, or bad ?

A. — Good.

Q. — From what you know of it, would you believe him under oath ?

A. — I would.

423

TESTIMONY OF WILLIAM H. LEAVITT.

"William II. Leavitt, being called and sworn, testified as follows:

Mr. Edgerton. — Where do you live ?

A. — At Mokelumne Ilill.

Q. — How long have you lived there ?

A. — About ten years.
#Q. — Do you know Allan P. Dudley ?

A.— I do.
■ Q. — IIow long have you known him ?

A. — I think it is about eiglit years.

Q. — Are you generally acquainted throughout that community ?

A. — I am.

Q. — Do you know Dudley's general reputation there, for truth and
veracitj' ?

A. — I think so.

Q. — Is it good, or bad ?

A. — As far as the business relations of life go, I do n^t know as I ever
heard it questioned.

Q. — From your knowledge of his reputation for truth and veracity,
would 3-0U believe him under oath ?

A. — I would.

Mr. Edijerton. — That is all.

Mr. WiUiams. — No questions.

Mr. Edgerton. — May it please the Court, we are through with this
branch of the case.

Mr. WiUiaim. — You will recollect, Mr. Edgerton, that we reserved a
couple of witnesses on this question, and that I suggested to you yester-
da}' that we would give in their testimony then, or when you should
conclude on this branch.

Mr. Edgrrton. — We object to the Defence putting in any more testimony
on this subject.

Mr. TT7//m»i.s-.— The Court will recollect that we reserved the privilege,
and that it was granted us, to swear another witness, or two — no more
than two — on this question.

The Presiding Officer. — That is SO.

Mr. Edgerton. — I think General Williams mooted that question after we
begun our examination.

Mr. Eigbi/.— Oh, no. I recollect that General Williams reserved the
right to examine Mr. McIIale.

TESTIMONY OF ULICK MC HALE.

[Called by the Defence.]

Ulick McHale, being called and sworn, testified as follows

Mr. WiUiams. — Where do you reside ?

A. — In the Fifth Township, Calaveras County.

^ — What is your business ?

, — Mining.

. — How long have you lived in Calaveras County ?

. — Since eighteen hundred and fifty-six.

424

Q. — How far do you live from Mokelumne Hill ?

A. — It is considered about nine or ten miles.

Q. — Are you well acquainted in Calaveras County ?

A. — Pretty well.

Q. — Are you acquainted at Mokelumne Hill ?

A. — I have been there several times.

Q. — Do you know Allan P. Dudley ?
. A.— Yes.

Q. — Do you know his reputation for truth and veracity in that coun-
ty?

A.— Yes.

Q. — What is his reputation in that county for truth and veracity ? Is
it good, or bad ?

A. — I do not consider it good.

Q. — State whether you consider it bad, or not.

A. — Well, I would not consider it good.

Senator Crane. — The question Avas, whether you consider it bad.

Witness. — I conaider a question —

Mr. Williams. — Answer the question ; do you consider it good, or bad ?

A.— Bad.

Q. — From his reputation in that county, would you believe him on
oath ?

A. — I could not.

Mr. Williams. — Now, Mr. President, I have exhausted my absolute
right on this subject, and I ask the Court to exercise the same indul-
gence towards us which they have done to the Prosecution, in reopening
a branch of the case which the}- had closed. The Court has decided that
they should have the right, and has allowed the Prosecution to do that.
We ask to introduce a small number — say half a dozen — of witnesses
upon this point.

A Senator. — Would the other side then have the right to introduce wit-
nesses in rebuttal of them ?

Mr. Williams. — Yes.

Mr. Edgerton. — We object to this, most strenuously. There is no simi-
larity between this action, now, and that j-esterdaj'. The evidence we
introduced yesterday, on the question of loyalty, was strictly in rebuttal.
They had an affirmative case to make out against Mr. Dudley. They
have made it, and we shall claim that we have refuted their charge. It
seems to me there is no analogy between the two cases; and if they go
on and try to outnumber us, we will have to rebut, and there will never
be an end.

The Presiding Officer. — The Chair was opposed to admitting this at the
outset, but the Court held otherwise. Having once exercised discretion
in favor of the Eespondent in this matter, I shall be inclined to refuse
the application. This is the second time, upon the same point.

Mr. Williams. — That can hardly be considered so, because this witness,
just examined, was a witness who was sick and unable to be here before.

The Presiding Officer. — It is not a matter of discussion at all in regard
to that witness; his examination was a matter of right. But this appli-
cation is, I say, an application to reopen the same Class of testimony.
Does any Senator desire to entertain this testimony ?

Senator Gaskill. — I move no more be received, on either side, on this
point. I cannot see the advantage of it.

Mr. Williams. — Well, I do not desire to consume the time of the Court,
arguing it.

425

DIRECT TESTIMONY IN REBUTTAL RESUMED.

Mr. Hijhy. — With the leave of the Court, the Prosecution will call
some more witnesses.

II. .J. TILDKN, RECALLED.

H. J. Tilden, recalled, testified as follows :

Mr. Edf/erton. — Do you know W. F. Moses?

A. — I do. I know Mr. Moses — I believe W. F. is his given name — of
Mokelumne Hill.

Q. — I mean the Moses who was a witness on the stand here ';*

A. — I know him.

Q. — State whether, at the-Russ House, on the sixth of May, you heard
any statement from him in regard to the witnesses of the Prosecution in
this case ?

A. — I heard a statement there, I think it was night before last, between
five and six o'clock ; just before dinner hour, or about dinner hour.

Mr. Williams. — I object to this testimony. I would inquire of the
Court, whether, after the Prosecution have asked a witness on the stand
if he made some statement, a question not material to the case, they can
contradict him upon it ?

The PrrsidiriQ Offtcer. — The Counsel assumes the question was not mate- '
rial. "Whether it was. or was not, remains to be shown.

Mr. Eihjcrton. — It is material in this wa}' : Moses was one of their wit-
nesses. We undertook to show his animus or his malice towards the
witnesses for the Prosecution ; and we asked him a distinct question, as to
whether he made a declaration against those Avitnesses — giving time and
place.

Mr. Williams. — If that is a material question. Ave can go on and ask ques-
tions in regard to every witness here ; and the Senate will have a good
long time to sit here.

Mr. Edijerton. — It is material in this way, on the question of malice
and the feelings he is actuated by towards the Prosecution. And further,
it shows the value of his testimony on the question of truth and veracity,
because if- he made one statement there, and another here, and told a
falsehood in one particular, it is likely he would in another instance.

Mr. Williams. — I ask the Court to decide.

The Presidiiuj Officer.— The animus of one witness towards another on
the contrary side, is not material. The animus towards Judge Hardy is
the question. We must stop somewhere.

3fr. Willia7ns. — [Sotto voce.] It is to be hoped so.

Mr. Edgerton. — Well, let it go.

W. L. DUDLEY, RECALLED.

W. L. Dudley, recalled, testified as follows :
54

426

Mr. Edgerton. — You are a practising lawyer, at Mokelumne Hill, and
in Judge Hardy's Court ?

A. — Yes.

Q. — Will you state what the practice in Judge Hardy's Court is, if you
know it, in regard to the examination of jurors by the District Attor-
ney, in cases of felony ? I mean the invariable practice.

"witness. — By the District Attorney ?

Mr. Edgerton. — Yes.

Witness. — To ascertain. Sir, whether they have formed or expressed
any opinion in regard to the guilt or innocence of the person on trial.

Mr. Edgerton. — I want to know whether the practice in Judge Hardy's
Court, on the part of the prosecutor, has been what would be rather a
rigid, close, examination, or whether it has been omitted entirely ? Do
you know whether the examination, by the Prosecuting Attorney, has
been close and rigid ?

A. — Yes. Not at all times.

Q. — Well, what is the general practice there, in his Court ?

A. — The general practice in empanelling a jury in his Court, I think.
Sir, is invariably, if the District Attorney omits to ask questions in
regard to forming an opinion, or as to whether jurors have conscientious
scruples about finding a verdict, Avhere the penalty is death, for the Dis-
trict Judge to intei'pose and ask them.

Q. — You think that has been Judge Hardy's practice up there ?

A. — I know he has done so in two or three cases ; and I think he has
always done so. In the case of The People vs. Stafford, indicted for
murder, and tried there, I was associated with other gentlemen in the
defence; Mr. GTatewood being one. And in the enijianelment of the
jury, the District Attornej' omitted to ask one or two of the jurors the
question as to whether the}^ had conscientious scruples in regard to
finding a verdict, where the penalty was death, and the Judge interposed
and asked them himself.

Q. — Do you recollect the case of The People vs. Pedro Ybarra ?

A. — 1 was not in the case, and do not recollect in regard to it.

Q. — State whether you ever had any conversation with Judge Hardy
upon the subject of the naturalization of foreigners.

Mr. WiUiams. — One moment. There is a charge here, expressly on
that subject, and they have given their evidence and made their proof
thereon. They have examined this Avitness fully in chief on the case
generally, and I object to their now going back and going over the case
again.

Mr. Edgerton. — They have gone through a long investigation as to the
habits of Judge Hardy in Amador County, on this subject. We propose
to show the conversation between this witness and Judge Hardy.

Mr. Williams. — They have alread}' proved one conversation between
this witness and Judge Hardy.

The Presiding Officer. — I think you are at liberty to go into the general
practice in such matters. But this is another matter.

Mr. Higly. — I will state, Mr. President, what we expect to be able to
prove, and then it can be decided whether it will be j^roper or not. We
expect to be able to prove a question like this — resulting from an omission
of Judge Hardy when persons were being questioned who had applied
for citizenship : Why he did not ask the applicants if they sympathized
with this Southern rebellion, and that since it commenced ? And that
he excused it by saying that it was covered by the other questions.
That in connection with it, it was his habit always, or at times at least.

427

;to ask witnesses whether they had any connection or sympathy with the
'Vigilance Committee; and that the other matter was brought uj). If
not, it was intended in the connection. That is about the substance of
I what we expect to prove.

Mr. WiUiams. — AVe insist that tliat has been already gone into suffi-
ciently. At any rate, it is part of their case.

Mr. Hiyii/. — AVe claim this evidence, not as now matter. I might, per-
haps, discuss one question here at this time, and save further discussion
in connection with this. It will be borne in mind that when the Defence
commenced to introduce their proof, it was asked that they be granted a
privilege beyond what the legal rule would alloAv. A man being tried
for murder, under the laws of the State, when the proof as to the offence
which he has committed is introduced, can go into proof, under the rules
of evidence, as to his general character for peace and quietness, and
amiability; and show that all the traits of character in him were averse,
as a general rule of his life, to any such conduct as would be charged
upon liim under the allegations in the indictment. And The People,
when he opens the door to attempt to show bis good character by repu-
tation, are entitled to come in and show by general reputation that his
character is bad. That is the rule of law. But it was asked here, by
the Defence, when they commenced to introduce their proof, that that
rule of law should not be regarded ; that a broader rule should be laid
down, and the door opened wider for their defence ; that instead of show-
ing general reputation of being a good and lo3-al man to the Govern-
ment, the}' might give us a character here, made up of pieces, of inci-
dents, made of his own declarations and his own acts. And the whole
sum and substance of the general character of the Respondent here, if
any has been made up, has been made up on the part of the Defence by
incidents in life. The general law that would be applicable upon a trial
of the gravest offence known to the law, would require a more stringent
rule than the one that has been granted to the Defence. "With it we find
no fault ; but Ave hold this, your Ilonor — .

The Pnsidin;/ Officer. — It is not proper to discuss this question now.
3Ir. IIi<jhi/. — I want to discuss it, because the other questions are in
connection with it, and I do not wish to talk on the siibject more than
once. This has precisely the same bearing as the others, and I do not
wish to be occupying the time of this Court in constant discussion. I
can say what I haveto say, and it will have its bearing on other points
that will arise of the same character. We claim that this is proper testi-
mony to introduce here ; that Ave can go into these incidents, to make up
his general character; and that the rule, in order that we may be dealt
with justly, alloAvs us, if the Respondent attempts to prove his charac-
ter in this way, to help make it up, to introduce this evidence. The rule
open for them, is open for the Prosecution. The door opened for them,
it was opened for the Prosecution. Now, Ave do not say that he is
charged Avith an offence in doing this, but we use it as rebuttal to the
defence that Avas opened here, on the part of the Respondent's Avitnesses,
to his character and conduct in a certain case, concerning AA'hich there is
a charge made in an Article, in shoAving the first evidence Ihat Avas called
out in reference to his OAvn practice. This now comes in, because he has
shown proof here of his own conduct in Court, and of the manner in
which he has questioned men when they came before him to be admit-
ted to citizenship. And Avhen Ave attempt to introduce proof here, to
connect him Avith the declarations of other parties, it is not to impli-
cate, or cast reflections on the declarations of other parties, but only to

428

come at the general character of mind, out of which these specifications,
which we have- given in our Articles of Impeachment, have grown.
Whether they do come from a mind, in its general bearing and tone,
harmonizing with the language he uses on these different occasions, or
whether, in realit}', he be a good and 103'al man, and these are merely
offshoots, in jovial moments, they all have one connection precisely. VYe
are using this to show general character; to rebut the showing of the
Defence. It is rebuttal against them — general character against general
character ; rebuttal on one side, against the other. It was claimed here,
by Counsel on the part of the Defence, that we should, in the Impeach-
ment, be held to the rule of law in asking questions. "We observed it.
We claim, if the door is open for the Defence, it certainlj^ must be for
the Prosecution ; and that all these questions should be admitted.

The Presiding Officer. — The simple question now is, whether the precise
testimony offered, relative to Judge Hardy's conversation, is admissible.
You cannot discuss the specifications of the Prosecution with General
AVilliams, in order to show that on all occasions, in admitting to citizen-
ship. Judge Hardy put, or did not put, all the regular questions. Your
offer is to show that the witness put the question to Judge Hardy, and
that Judge Hardy assigned a reason why he could not do it. That
would operate as an admission that he did not, in fact, do it. I think
the testimony is admissible — as an admission, on the part of the Re-
spondent, that he did not put the question to applicants for citizenship.

Mr. Eihjerton. — [To witness.] Will you state whether you had such a
conversation with Judge Hardy, in regard to the naturalization of
foreigners ?

A. — I stated this to him, or asked him this question, at, I think, the
last term of the Court. Some person had applied for naturalization, and
been admitted, I think ; and in passing out of the Court House, (I was
going down the stairs.) I said : " Jim, why don't you ask them, when
they come up to apply for naturalization, whether they have any sym-
pathy with the Southern rebellion ? If I was on the bench, I think I
would do that." He replied : " The other questions cover the ground,
applying to the Constitution and principles of the Government."

Q. — It has been testified to, here, by A. C. Adams, a member of your
bar, that there was a sort of a general consent, of the members of the
profession, to the adjournment of the Court, last August term, to go off
and make political speeches, etc Will you state Avhether you were at
Mokelumue Hill, at that time, attending to your business in Court ?

A. — Yes.

Q. — State whether you know of any such consent ?

A. — I never consented to anything of the kind.

Q. — Did you ever hear of such consent ?

A. — I never did. It might have been so agreed among the other
members of the bar. /never consented to anything of the kind.

Q. — You were one of the Counsel in the case of McDermott vs.
Higby ?

A.— Yes.

Q. — Did you hear the evidence, here, of Mr. William Irvine ?

A. — Xot a word of it.

Q- — Who opened the arguments to the jury, in that case ?

A. — Judge Robinson, of Sacramento.

Q. — Who followed him ?

A.— Myself.

Q- — About what time did you get through ?

429

A. — My impression is, that I was through somewhere near six o'clock.
It might have been after that, and it might have been before.

Q. — "W'liere did you go. and with whom, after that?

A. — I left the Court House with the crowd, as the crowd went out.
1 think I went immediately from there into Leger's hotel, adjoining the
Court House.

Q. — Who did you find there ?

A. — I cannot tell who I found there. Immediately after, I saw Judge
Hardy there, and Williani Irvine.

Q. — State who you dined, or took supper, with, that day?

A. — Judge Hardy, Irvine, and myself, I think, took dinner together.

Mr. Wi/h'((ins. — If this is on the question of time, we admit that Irvine
was mistaken in the hour; that it was after the adjournment.

WitiKss. — It was after Judge Robinson and m^'self had made our
speeches, and after the adjournment.

Mr. EJyerlon. — You, and Judge Hardy, and Mr. Irvine, took supper
there ?

A.— Yes.

Q. — On cordial, friendly terms ?

A. — Yes, I think so.

Q. — Was there an}' drinking going on there ?

A. — We had claret.

Q. — Do you know of Judge Hardy drinking anything besides claret ?

A. — I did not watch his drink.

(^. — State whether you and Judge Hardy drank together before you
went to the table and drank claret ?

A. — We drank, I think, with others ; I presume I was one of the party
at the bar. What we took, I would not undertake to say — whether it
was gin, whiskey, or brandy.

Mr. WlUiams. — Or " pop."

ir<V/K-s.»-. — Or " pop." I could not say what Judge Hardy drank.

(I. — How long were you at that su2)pcr table ?

A. — Well, half an hour ; three quarters of an hour. I know that a
gentleman came to the door and spoke to us, and said it was half past
seven o'clock ; the Court had adjourned to seven ; so we left the table
and went into Court.

Mr. Williams. — l^'ou went into Court at seven and a half o'clock ?

A.— I think it was seven and a half. I think the gentleman said half
past seven. My recollection is, that the Court adjourned to seven, and
I think half past seven Avas the time when we went in.

[The Presiding Officer called the attention of the Counsel to the pro-
visions of the statute, in regard to the questions to be asked the attest-
ing witnesses on the subject of loyalty to the Government.]

W. JEFFERSON GATEWOOD, RECALLED.

W. Jefferson Gatewood, recalled, testified as follows :

Mr. Echjerton.—Xow are a practising Attorney at Mokelumne Hill, are
you not ?

A.— Yes.

Q. Do you know anything about the practice of Judge Hardy in re-
gard to empanelling a jury in a criminal case, a case of felony, in his

430

Court, in Calaveras County, in reference to interfering, and asking ques-
tions of the jurors, as to their capacity to sit as jurors ?

A. — I do. That is to say, I know of several instances in which he has
examined jurors himself.

Q. — In cases of that kind ?

A. — Yes. On one occasion, when I was defending a man by the name,
I think, of Stafford, indicted for murder, the District Attorney had
passed the jurors to me, and we had accepted them. The District
Judge, Judge Hardy, tlien examined them as to whether they enter-
tained such conscientious scruples in regard to the punishment as would
preclude them from finding a verdict of guilt}^ where the punishment
was death. I asked him, when he came outside the Court, whether he
had undertaken to prosecute cases in that county, or not ; and he stated
that he would not allow a farce of that character to be carried on. He
said that he would not allow a farce of that kind to be enacted in his
Court. I think that was the remark.

Q.. — When was that ?

A. — I have forgotten.

Q. — How long ago was it?

A. — Some two years ago. It may be longer. I have forgotten the
time. I think it was the case of The People vs. Stafford.

Mr. M'i//fams. — Was not that a year ago last fall ?

A. — It may have been ; I do not recollect the time.

3fr. Edrjcrton. — Do you recollect anything about the Pedro Ybarra
case ?

A. — I was not in the case; there was another Attorney in the case.

Q. — State whether you observed anything of the kind in that ease ?

A. — I saw Judge Hard}' examine some of the jurors; and upon his ex-
amination, I think they were excused.

Mr. Edjerton. — I think you have testified that you were at the last
August term of the Court, and had business there ?

A.— Yes.

Q. — Will you state whether you gave your consent to the adjournment
of the Court, in order that the Judge and members of the bar might go
off electioneering?

A. — I think that I probably spoke to ]Mr. Adams in regai'd to the mat-
ter, saying that I was a candidate before the people and would like to
canvass the county ; and I think I had no cases that would interfere with
my canvassing. I think Mr. Adams was the only one I spoke with
about it.

Mr. Edgertnn. — I mean the adjournment on the sixteenth of August. I
think 3-0U testified that you had a case set for Saturday, the seventeenth?

A. — Gatewood vs. McLaughlin.

Q. — Did you give any consent, at that time, that the Court might ad-
journ ?

A.— Xo.

Q- — Do you know of any general consent, on the part of the bar, that
the Court might adjourn ?

A. — Xo.

CROSS EXAMINATION.

Mr. Williams. — When was this last trial — The People vs. Pedro Ybarra?
-^- — The last time, it was tried in Calaveras County. It is a very old
case ; has been tried many times.
Q- — When was the case tried last ?

431

A. — I do not remember the time.

Q. — Can you state about the time ?;

A. — I think, probably, it was two years ago ; I am not certain.

Q. — It was before the Stafford case ?

A. — Yes, I think it was.

Q. — You were in the Stafford case ?

A. — Yes.

Q. — AVlien Judge Hardy interposed in the examination of the jurors,
and asked tlie juror.s-tiomc questions, when he came out of Court did you,
or not, conipUiin to him and rebuke him for it?

A. — I did not rebuke him, but I was very angry, and said to him:
*'Damn it, have you been cmi)loycd to prosecute cases in this county,
as District Attorney ? If you have, we had better dispense with the
District Attorney."

Q. — You say tliat you were angry at his interference?

A. — Yes.

Q. — You thought it improper, did you not?

A. — Well, particular!}' so, after the jury had been passed entirely over
to the defence.

Q. — Well, you thought it improper for the Judge to interfere in such
examinations, did you not ?

A. — Yes. I thought it some evidence of a desire on his part —

Mr. Williams. — [Interrupting.] I don't ask you about any desire the
Judge may have had. I ask you whether you thought it improper?
• A. — That, together with the imjjrcssion that it evidenced on his part
a determination to assist in convicting the man I was defending.

Mr. Willianis. — Do you Calaveras law3'ers always suspect a Judge,
when he decides against you?

A. — I do not know whether we do or not.

Mr. Wllllnms. — Well, I won't say i/ou do, having seen no evidence of it
in you. Xow, after you complained in this angry manner to Judge
Hardy, of his having interferetl with the Counsel on both sides, I ask
you whether you have ever known an instance since the Stafford case —
any criminal case — in which he has interposed?

A. — I do not know that I do — any criminal case. I do not think I
have defended a capital offence since that time.

Q. — I do not confine m}' question to ijonr practice. Have you ever
known an instance, in your practice in that Court, since you called
Judge Hardy's attention to it, where he has interposed ?

A. — I believe he did in the case of The People vs. Cavison, which I
prosecuted at the last term of the District Court. I am inclined to the
opinion that he did then examhie some of the jurors.

Q.— Was there not a formal challenge interposed, before Judge Hardy
asked a question or interfered at all ?

A.— Well, there was a good deal of trouble in getting the jury.

Mr. Williams. — That is" not an answer to the question. I ask you
whether, or not, this interference you speak of was not after there had
been, on one side or the other, a distinct challenge of a juror?

A. — I am of the impression that such was not the case, although he
did, after the District Attorney had so interposed, in one or two cases,
then examine them himself. But I think— and that is what I was going
to add to the reply I made to the question you asked me — that in one
instance he examined a juror, of his own motion. That is my impres-
sion.

432

Q. — "Was that since the time when von made these angry remarks to!
him about his playing District Attorney in the District Court?

A. — Yes. That was last term — the February term of our District
Court.

Q. — Were you District Attorney ?

A— Yes.

Q. — AYhat question had you neglected to ask, that Judge Hardy asked ?

A. — It was not a question I had neglected to ask.

Q. — What was it ?

A. — It was in regard, I think, to a question of citizenship of one of
the jurors. I think that was raised, but it was not asked by any of the
Counsel.

Q. — Does not a Judge ask the question, in all cases, whether the jurors
are citizens or not ?

A. — Yery frequently, at the commencement of the empanelling of the
jury, he reads that portion of the statutes which exempts persons not
citizens from sitting on jury trials ; and asks them the general question,
whether any of them come within the j^urview of the statute. That is
usually the practice ; not always.

Q. — The interference, then, at the last term of the Court, when you
were District Attorney, was to ask a question Judge Hardy always asks,
or generally asks, as to whether the jurors were citizens ?

A. — Yes ; the question he usually asks at the commencement of the
empanelling of the jury.

Q. — This time, you think, he asked it of an individual juror, later in the
proceedings ?

A. — Yes.

RE-DIRECT EXAMINATION.

Mr. Edgcrton. — General Williams drew from you that 3'ou had ft conver-
sation with Judge Hardy, in regard to this practice, when you came out
of Court. You began to tell what Judge Hardy said in reply, and were
cut off. Will you state what he said ?

A. — I have stated it once before. His reply was : That he would be
dafnned if he would have a farce of that character in his Court — or words
to that effect.

Mr. Ed fferf on. —That is all.

Witness. — Are you through with me now ?

Mr. Edyerton. — I think we can let you " slide." this time.

S. W. BROCKWAY, RECALLED.

S. W. Brockway, recalled, testified as follows :

Mr. Edgertfn. — You have testified you are a practising Attorney in Cal-
averas County ?

A. — Yes.

Q. — ^Do you know of any general consent, on the part of the bar, at
the last August term, for the Judge and xVttorneys to suspend the busi-
ness of the Court, and e;o off electioneerinf; ?

A. — I do not.

Q. — State whether you yourself gave any such consent ?

A. — I did not.

433

Mr. WiUiams. — This witness has stated all this before, in his direct ex-
amination ; stated it distinctly. But for the aversion I have for inter-
posing objections, I would say they were going over their case again.

The Presiding Officer. — That is SO.

Mr. Eilgerton. — I beg pardon of the Court. It is so long since Mr.
Brock way was first examined, that I had forgotten that he testified to
this point. [To witness.] Do you know what Judge Hardy's practice
has been in his Court, in cases of felony, in regard to interfering, of his
own motion, with the District Attorney, in the empanelling of the jury,
and examining them as to their qualifications and capacity to sit as
jurors ?

A. — I can only speak of two cases. I do not recollect of being present
in Court when the jurors have been empanelled in other cases. In the
case of The People vs. Bell, indicted for murder, I was defending the case.
Charles Leet was District Attornc}', and neglected to ask the jurors
whether they had such conscientious scruples as would preclude them
from finding a verdict of guilty, where the punishment was death. Af-
ter the jury had all been passed, Judge Hardy asked them the question,
and excused two or three, I think. I was present, also, in the case of
The People vs. Staftbrd.

Q. — What did Judge Hardy do there?

A. — Well, he examined the jurors there also. I was not employed in
that case. I recollect of Gatewood complaining.

Q. — When was the Pedro Ybarra case tried ?

A. — The Pedro Ybarra case was tried in eighteen hundred and fifty-
nine, I think. In May, I think; I am not positive.

Mr. Willlnms. — May, of what year 't

A. — It was tried in eighteen hundred and fifty-nine. I cannot tell
what term. General. If 1 had the records here, I could tell.

Mr. Eihjerton. — You think it was eighteen hundred and fifty-nine, but
are not positive as to the term '{

A. — 1 am not positive as to the term. It was in Court when Judge
Hardy came upon the bench, I think; and continued two terms, I think.
Let me see. [Reflecting.] February, May — well, I think it was August,
or Novembei", instead of May, that it was tried.

Q. — Do you know who wrote the special issues in the case of McDer-
mott vs. Higby ?

A. — Well, I believe the special issues are in my handwriting.

Q. — Then you wrote them, did you not ?

A. — I wrote them. Judge Hardj^ wanted me to go into the office, and
do some writing ; and he had a paper from which he read to me — dic-
tated, and I wrote. I do not know whether he dictated aside from what
was written on the paper, or not. I wrote entirely from his dictation.

Q. — These special issues that have been put in in this case, you say
were in your handwriting ?

A.— Yes.

CROSS EXAMINATION.

3Ir. Williams.— Rave you ever known Judge Hardy, upon the empanel-
ling of a jury, voluntarily, and of his own motion, to ask a juror whether
he had formed or expressed an opinion ? Have you ever known him to
interpose, on behalf of the District Attorney, and ask a juror whether
he had ever formed or expressed an opinion in the case?

A. — I do not recollect whether he interposed to ask that question,
55

434

whether they had formed or expressed an opinion. I think it has been
generally done, so far as my observation goes, by the District Attorney.

Q. — You do not remember Avhether Judge Hardy ever did that?

A. — No ; I do not recollect anything of that kind.

Q. — Well, the want of citizenship is an absolute disqualification by
statute, is it not ?

A. — I believe it is made so by statute.

Q. — The matter of whether an opinion has been formed or expressed,
is subject to challenge; and that is the distinction, is it not?

A.— Yes.

Q. — So of the question of whether a man has conscientious scruples
against convicting for a capital offence ; that is absolute disqualification,
is it not?

A. — I understand it so ; that a man is not competent as a juror, if he
has such scruples.

Q. — But he is expressly disqualified in such case, is he not?

A.— Yes.

Q. — While the matter of whether a man has formed or expressed an
opinion, is subject to challenge?

A.— l^es.

Senator Oulton. — Did you hear the testimony of Allan P. Dudley, in
this case ?

A. — No, Sir. I heard a very small portion of it. I came to the door
there, but I heard only a small portion of it.

Senator Oulton. — Dudley stated that in the case of The People of the
State of California vs. Hill Squires, he wrote the decision of the Court ;
and he states that after that decision was delivered by the Court, you
charged him with having written it. Did you, or did you not ?

A. — I did. If youwish, I will state the circumstances. I charged
him with it.

Mr. Williams. — That is not a competent question from anybody but a
member of the Court.

[Eecess for half an hour.]

CHARLES WOOD, RECALLED.

Charles Wood, recalled, testified as follows :

Mr. Eilgerton. — You testified, I think, that vou live at Mokelumne Hill?

A.— Yes.

Q. — Y^ou were one of the jurors in the case of McDermott vs. Higby ?

A. — Yes.

Q. — At the time the charge was given to the jury, will you state
whether you saw Mr. Brockway, and if so, where he was ?

A. — I saw him.

Q. — Where was he at the time the instructions were handed by the
Judge to the Clerk ?

A. — He sat between the Jud<i;e's bench and the Clerk's desk.

H. J. TILDEN, RECALLED.

H. J. Tilden, recalled, testified as follows :

435

Mr. Edqerton. — You live at Mokekirane Hill ?

A.— I do.

Q. — Do you know anything of a May Festival that was held at Mokel-
imne Hill by a German Society, last May ?

A. — I was there at the May Festival.

Q. — About what time ?

A. — Some time in the fore part of May ; I do not know whether the
irst day, or what day.

Q. — Slate whether Judge Hardy was there or not ?

A. — Judge Hardy was tlicre a portion of the time.

Q. — State whether Judge Hardy was called out, there, for the purpose
Df making a speech, or any remarks; and if so, what he said?

A. — In giving toasts, one was given to Judge Hardy. He got up and
made a response.

Q. — I want to know, particularly, whether there was anything in his
response in regard to his being a Union man, or a Secessionist?

A. — I have no recollection of any remarks made either way.

Q. — How near to iiim were you ?

A. — Somewhat neai'er than to you now. [Six feet.] We were at the
table at the time. He got up on the table, at the opposite end nearly,
md I was standing on the bench on the other side of the table. Neither
3f us was at the exact end, but nearly.

Q. — Ho you know anything al)out a difficulty that occurred there?
ALbout anybody coming in there drunk, or anything of that sort?

A. — There was a difficulty a while after that. A drunken man named
Carr, a worthless lellow, made some disturbance.

Q. — What was the difficulty? What were Carr's politics, and what
was he there for ?

A. — I did not .sec the whole of it. He was one that we called a wild,
ranting, Union man ; discountenanced by Union men and every body
3lse, when in liquor.

(J. — What did he say there ?

A. — I could not distinctly hear what he said. I heard the row ; I was
outside.

CROSS EXAMINATION.

Mr. Williams. — How many days did that Festival last ?

A. — It is my impression that it lasted two days — Sunday and Monday.
[ may be mistaken ; I have not thought of the subject until I read some-
thing of this in the pajiers.

Q. — You have been opposed to Judge Hardy in politics, have you not ?

A. — I have been acting with the Union Democratic party. Judge
Eardj^ has been acting, as I understood, with the Breckinridge Demo-
3ratic party. So far as that, we were opposed.

Q. — Well, you are opposed, I suppose, on many points?

A. — I do not knoAV that I am. I will say here, that I did not hear
Fudge Hardy use any disloyal sentiments at that time, or any other.
Ihe}^ have asked me the question before.

3Ir. Eilgerton. — That is not in cross examination, Mr. President ; still,
[ won't object to it.

3L\ Williams. — You never heard Judge Hardy use disloyal sentiments,
3n that or any other occasion ?

A. — I never did.

436

GEORGE SHERMAN, RECALLED.

George Sherman, recalled, testified as follows :

Mr. Edgerton. — You have testified before, that you reside at Mokelumne
Hill, and know Judge Hardy ?

A. — Yes.

Q. — Do you know anything of a Festival of some German Society
there, that was held in May last ?

A.— Yes.

Q. — State whether you were there or not ?

A. — I was.

Q. — State whether you saw Judge Hardy there ?

A. — I did. He sat alongside of me.

Q. — State whether he was called out, on that occasion, by anybody ?

A. — Not as I know of.

Q. — State whether he made any remarks ?

A. — He gave a toast there, I believe.

Q. — State whether he said anything, on that occasion, or made any
declaration in regard to whether he was a Union man, or a Secessionist,
or not? Whether there was anything of that kind in his remarks ?

A. — He did not.

Q. — You were right by him all the time he was up ?

A.— Yes.

Q. — Do you know anything about this difficulty that occurred there ?

A. — Well, a man came in there, pretty well tight, by the name of Carr.

Q. — What was he ?

A. — A Union man.

Q. — Did you hear him say what he was there for?

A. — Well, he said : " I want these Secessionists out of here." I made
the reply to him, that I did not know that we came there to talk about
polities.

3Ir. Williams. — Never mind what you said to him.

Mr. Edgerton. — That is all, Mr. Sherman.

TESTIMONY OF C. B. HOLBROOK.

C. B. Holbrook, being called and sworn, testified as follows :

Mr. Edqerton. — What is your first name ?

A.— C.'B.

Q. — Where do you reside, Doctor ?

A. — At Mokelumne Hill.

Q. — Do you know Judge Hardy ?

A. — I do.

Q. — Where were you in August or September last ?

A. — I was at Mokelumne Hill, Sir.

Q. — State whether or not, about that time, you met Judge Hardy in
the Clerk's office, at the Hill, and heard any conversation on his part in
reference to the present difficulties of the Union, and if so, what it was ?

A- — I met Judge Hardy in the Clerk's office, on a certain occasion, but
I think it was prior to that time. It must have been, I think, as early
as the month of June. He was, at that time, in conversation with Mr.

437

Genung, upon the question of slavery, I think. That seemed to be the
question they were discussing.

Mr. Williams. — To testimony of conversation upon that question, I ob-
ject.

Mr. Edgerton. — I don't think we can convict Judge Hardy of being an
Abolitionist.

Mr. Williams. — I hope not.

Mr. EdgertoR. — [To witness.] What was said in that conversation about
the Union?

A. — The war was referred to, incidental!}^, in the course of the conver-
sation, and Judge Hardy said, in effect — I do not pretend to quote his
language — That tiiis war, however protracted, would eventuate in a dis-
solution of the Union, and the formation and establishment of a South-
ern Confederacy.

Q. — Did he say anything as to the condition of the Union, at that
time ?

Mr. Williams. — I must object to this witness being led. Let him state
all Judge Hardy said.

Mr. Edgerton. — That is not leading — directing his attention to a part of
the conversation.

Mr. Williams. — I insist on the rule being enforced.

Mr. Edgerton. — It is rather too late for General Williams to enforce that
rule.

Mr. Williams. — I do not think it is. I have kept myself pretty well
within the rule, on that branch of the ease.

The Presiding Officer. — Counsel must keep within the rule.

Mr. Edgerton.— [To witness.] What did Judge Hardy state, as to the
existence of the Union ?

A. — I remember he took the position that the Union was gone. In
effect, he said that in his conversation.

Q._State whether vou saw Judge Hardy anywhere, and particularly
at San Andres, while on his way to Mono to hold Court, at any time, or
for any purpose ?

A.— I saw Judge Hardy in San Andres about a year ago. I under-
stood—I did not\now it of my own knowledge— that he was on his way
to Mono.

Q._What did you hear from him at that time ?

A.— I was passing up one of the main streets of the village of San
Andres —

3Ir. Tr<7/f«ms.— [Interrupting.] One moment. I would inquire whether
Severance was with him ?

Witness.— I do not know who was with him. Some one was. ^

Mr. Williams.— If this is some conversation that they have proved m
another part of the case, I object to it.

Mr. Edgerton.— I am told it is a different matter.

Witness.— Judge Hardy was sitting on a horse, in front of a drmkmg
saloon there— Favell's saloon— and I was passing up the street, on the
opposite side. As I was passing, I heard Judge Hardy say : ''I am a
Secessionist; I am a rebel. Hurrah for Jeff. Davis, and the Southern
Confederacy ! " That was the import of what he said— the substance.

Q.— State whether it was a single instance, or was repeated ?

A.— I passed up the street to the corner of the street, or of another
street, running transversely with that street, crossing it at right angles,
and I heard Judge Hardy repeat it as he passed, riding around the cor-
ner.

438

CROSS EXAMINATION.

3Ir. Williams. — Are you a brother-in-law of these Dudleys Avho have
testified here ?
A. — Yes.

TESTIMONY OF FRANK MOORE.

Frank Moore, being called and sworn, testified as follows :

31)-. Edgcrton. — Where do you live ?

A. — At Angels' Camp, Calaveras County.

Q. — Do 3^ou know Judge Hardy ?

A.— I do.

Q. — State whether you saw Judge Hardy at Angels' Camp at any
time, and heard him say anything, or give expression to any sentiment,
in regard to the present difficulties of the country ?

A. — He came into a saloon there, in the latter part of June of last
year; and the first notice I had, he leaned over the counter and struck
me on the head, and said, " Hurrah for Jefi". Davis ! I want a drink of
Jeff. Davis brandy."

Q.— What else '(

A. — I immediately came from behind the counter, and stood in front
of it. He made no further remark to me, went out, got on his horse,
and went away.

Q. — Did he get any Jeff. Davis whiskey there ?

A. — He got none from me.

Q. — Did any words occur ?

A. — He said nothing further to me.

Q. — What was his manner ?

A. — He came in pretty rough, I thought.

Q. — What did you say to him ?

A. — I told him I had none of that kind of liquor there ; that I did not
keep it.

Q. — And then he left the saloon, and said nothing?

A.— Yes.

CROSS EXAMINATION.

Mr. Williams. — He did not get any Jeff. Davis brandy at your shop ?

A. — He did not get any from me. I came from behind the bar, and
went in front.

Q. — Was anybody left behind the bar ?

A. — No, Sir. There was no one there.

Q. — You, only, were tending bar ?

A.— That was all.

Q. — Now, on that occasion, when you could not give him any Jeff.
Davis brand}', did not Mr. Nap Broughton, Mr. James Maginn, Mike
Gosgrove, Capt. Hanford, and Judge Hardy, drink several times, there, at
your shop ?

A.— No, Sir.

CHARLES P. DUDLEY, RECALLED.

Charles P. Dudley, recalled, testified as follows :

439

Mr. Eclgerton. — You have already testified that yon live at Mokelumne
Hill, and know Judge Hardy?

A— Yes.

Q. — 1 want to know if you saw Judge Hardy about the time, or im-
mediately after, the news was received here of the battle of Bull Eun,
and heard him say anything in reference to that matter?

A. — I did. I was at my house the night the news came of the defeat
of our arms at Bull Run. Soon after the Sacramento stage came in,
Judge Hardy came up the road to his house, with a paper in his hand ;
I took it to be the " Union." And as he was about going through his
gate into his 3'ard, he swings the paper and hurrahs for Bull Run ; says,
" We've whipped those damned Yankees," or " damned Abolitionists."
I do not know which of the two expressions he used. And he went on
into his house.

CROSS EXAMINATION.

Mr. WiUiams. — Now, which expression was it ? Did he say " Aboli-
tionists," or " Yankees ?"

A. — I am not positive which.

Q. — You don't remember which ? You don't distinguish between
them ?

A. — No ; not now.

Q. — You consider them equivalent to each other, don't you ?

A.— Yes.

Q. — " Abolitionist " and " Yankee," mean the same thing. You are a
brother of these other two Dudleys, who have testified here, I believe ?

A. — I am.

TESTIMONY OF JOHN BURNS.

John Burns, being called and sworn, testified as follows :

Mr. Edgerton. — What is your first name ?

A. — John.

Q. — Where do you reside ?

A. — I reside now at Benicia.

Q. — Where have you resided before ?

A. — At Sacramento.

Q. — You are one of Uncle Sam's children ?

A. — I think I am. That is what they call me.

Mr. Williams.— OnQ of your cousins, Mr. Edgerton, if one of your
Uncle Samuel's sons.

Mr. Edr/erf on. —That's SO. [To witness.]— Do you know the Respond-
ent, Judge Hardv ?

A.— I was introduced to Judge Hardy last September. It was on the
evening of the twelfth of September, I believe.

Q.— Where ?

A. — On the steamer, coming down to San Francisco.

Q. State whether you had any conversation with Judge Hardy at

that time, in regard to your position as a soldier, or in reference to the
difficulties of tlie country ; and if so, what it was ?

A. After I was introduced to Judge Hardy, on the boat, he made

this remark to me : That he was going down to San Francisco, and that
if it was not for the company of soldiers going down, he would not dare

440

go. As it was, he thought he could go down and not be noticed. Then
he went on talking ; drank once or twice with his friends ; said that we
were a very fine company of men, but that we were on the wrong side.
I took issue with him there, and told him that I thought we were not ;
and he gave me to understand that if he were not otherwise engaged,
he would go on the other side, against me. That was more than I could
well stand ; but being under charge of the command, I thought I would
not molest him. There was anotlier man of the comj)any — the com-
pany was standing around — who said —

Mr. Williams. — Never mind what the others said.

Witness. — I was remarking that the man (Hardy) would get into diffi-
culty, and he had told me, previous to this, that he had his wife in the
cabin.

3Ir. Edgerton. — Is that all that passed between you and Judge Hardy,
on that subject ?

A. — That is all that passed between me and him.

Q. — Did you hear anything between him and anybody else, on that
subject ?

A. — Oh, yes.

Q. — Let us have that.

A. — He was talking there for some time, probably an hour, with differ-
ent ones, until it got so that I saw he was going to get hurt ; and it was
then that I went to him and advised him to go to the cabin, where he
said his wife was — to keep him from being hurt. I was satisfied, in my
own mind, that if he talked much more secession talk, he would get
hurt; probably pitched overboard.

Q. — Were you a soldier, at that time ?

A. — I was enlisted. I had not been sworn in. I was coming to San
Francisco to be sworn in.

Q. — Did Judge Hardy know you were on that mission ? That your
company were ?

A.— Yes.

CROSS EXAMINATION.

Mr. Williams. — Judge Hardy, you say, drank several times there ?

A. — Yes.

Q. — He asked the permission of the Lieutenant, or somebody — some
officer — to treat the whole company, did he not ?

A.— Not that I know of

Q. — Did he treat the company — as many as would drink ? Did not all
drink with him ?

A. — No, Sir ; I do not think they did.

Q. — Did a good many drink with him ?

A. — There were some of them drank with him.

Q. — Did not most of them ?

A.— No, Sir.

Q. — Did you ?

A. — Well. I am not positive whether I did or not, but I am under the
impression that I did not. It is a thing I do not very often do, anyway.

Mr. Williams. — Well, if you don't drink very often, you will be likely
to remember it when you do.

Witness. — I am not positive whether I drank with him or not. I do
not think I did.

Q- — You won't say you did not drink with him ?

A. — 1 am not positive.

441

Mr. Williams. — You are a right strong Union man, I take it, from your
uniform ?

A. — Well, they call me so ; and I think I am.

Q- — Are you a Union Democrat, or a Union Republican ?

Witness. — I do not know whether I am compelled to answer that ques-
tion.

Mr. Williams. — There is no indelicacy about it.

Witness. — Well, Sir, 1 am a Eepublican, out and out.

Mr. Williams. — Well, I am sorry Eepublicans should be ashamed to own
it. [Merriment.]

Mr. E(l<jerton. — Now handle him lightly. General. He belongs to your
party. He is one of your cousins, now.

Mr. Williams. — All 1 complain of is, that he should deny being a Ee-
publican, or hesitate about avowing it. / never hesitated to. [To wit-
ness.]— Was Judge Hardy intoxicated? or sober, on that occasion ?

A. — When I requested Judge Hardy to go to the cabin, he was pretty
well elected.

Q. — Pretty well sprung, was he ?

A. — Pretty well sprung.

Mr. Eihjerton. — I have got another cousin over there. [Pointing out a
soldier in the Senate Chamber.] If the President will call him to the
stand, as I do not know his name.

Mr. Williams. — He may turn out to be a Eepublican, too.

TESTIMONY OF E. F. MAYNARD.

E. F. Maynard, being called and sworn, testified as follows :

Mr. Eihjerton. — You are in the service of Uncle Sam, arc you not ?

A.— Yes.

Q. — How long have you been in the service ?

A. — It must have been eight months the thirteenth of this month.

Q. — Where did you enlist ?

A. — In Sacramento.

Q. — Do you know the Eespondent, Judge Hardy ?

A.— Yes.

Q. — State whether you, at any place, ever heard Judge Hardy give ex-
pression to any sentiments, either Union or secession, upon the present
condition of the country, and the troubles that have existed, and were in
existence at that time.

A. — Coming down on the boat from Sacramento to San Francisco, on
the thirteenth of September last, I had a conversation with Judge Hardy.
I suppose we talked together an hour or more, at different times, but the
whole conversation I cannot recollect, because I did not expect to be here
at all, or that anything of this kind Avould transj^ire. I have not charged
my memory with it. The substance of it was : That he was opposed to
coercion ; that he believed the rights of the South have been invaded by
the North ; that the Southern States were fighting for their rights ; and
he stated that we were a very fine company ; and he was proud Sacra-
mento could produce such a company ; and hoped they would give a
good account of themselves — but, at the same time, they were on the
wrong side. I told him, after talking with him, that if I held the prin-
56

442

ciples he did, I would resign my position as a Federal officer; and he
says : " Oh, that's all right. Let's go and take a drink \" [Gfrcat merri-
ment.]

Q. — You thought that was a pretty good way to taper off with it, did
you not ?

A.— Yes.

Q. — Did you hear him say anything to other members of your com-
pany ?

A. — I heard him talk, but it was all the same thing.

Q. — Besides Burns, did you hear him talking to any one else ?

A. — Only a man by the name of Wilson, of those who belonged to our
company. I do not recollect the conversation between them, but 1 know
they had some difficulty.

Q.— What about ?

A. — The secession doctrine Jiillge Hardy was preaching, as I under-
stood it.

Q. — And this Wilson was a member of your company ?

A.— Yes.

Q. — Well, I apprehend he was on the side of Unionism, was he not ?

A.— Yes.

Q. — And Hardy was on the side of Uncle Jeff. ?"

3fr. Williams. — That will hardly do. Mr. Edgerton. I have no objec-
tion to your relating anybody on the side of Uncle Sara, but I can't
stand " tlncle Jeff." [Merriment.]

CROSS EXAMINATION.

Mr. Williams. — They seem to have been a little jolly, there, and wound
up their arguments by " Let's take a drink." Now, do j^ou not know
that Judge Hardy asked the permission of the Lieutenant to treat the
company, and that he did treat the company ?

A. — I do not know it. Judge Hardy told me, " You see I have no
prejudice against you because you disagree with me ;" I do not remem-
ber any asking the whole company to drink with him. But a large
number of the company did drink with him. I know I did, and drank
with him two or three times, before I got through with him.

Q. — Had you ever known Judge Hardy, before ?

A. — Yes; I have known him for a great number of years.

Q. — Where did you know him ?

A. — In Sacramento.

Q. — Well, you knew pretty much about what his political notions
were, before, did you not ?

A. — Yes ; I did.

Q. — You knew he belonged to the Breckinridge Democratic party ?

A. — Yes.

Q. — And you were oj^posed to him in politics, I reckon ?

A. — Yes ; I was.

Q. — You are a Union Democrat, of course ?

A. — Of course, I am not.

Q. — Ah ! you are a Republican, I guess ; are you not ?

A. — Well, I guess I am.

Mr. Edgerton. — There's another of your cousins. General.

Mr. Williams. — Oh, there are a large number of them.

Witness. — I joined the army because they said there were not any Ee-
publicans in it.

443

Mr. Williams. — Well, you found some of them after you got in the
army, I reckon.

Witness. — I did that.

TESTIMONY OF R. H. DALY.

E. H. Daly, being called and sworn, testified as follows :

Mr. Edgerton. — Where do you reside ?

A. — I reside at Sacramento.

Q. — Do you know the liespondent, Judge Hardy ?

A. — I was introduced to him last September, on the boat, coming
down.

Mr. Williams. — On tlie same occasion spoken of by these military gen-
tlemen ?

A.— Yes.

Mr. Edgerton. — Will you state what occurred there, within your obser-
vation and hearing, in reference to the existing difficulties of the coun-
try, in connection with Judge Hardy?

A. — Well, I heard Judge Hardy state that he sympathized fully with
the South in the present difficulties ; and such like expressions.

Q. — Will you state whether there was a company of United States
soldiers about him when he was talking thus?

A. — Yes, there were a few of thom; probably three or four of them.

Q. — Do 3'ou recollect the substance of what Judge Hard}^ said?

A. — Well, he said lie believed the South Avas right, and the J^orth all
wrong; that the South was only fighting for its rights, homes, firesides —
and all that. They asked him why he did not go down there and help
them; said, "If we thought as you do, we would go down there and
help them." Hardy said they had enough.

Mr. Edgerton. — And did not need him?

A. — And did not need him.

Mr. Williams. — They have got enough; more than they can feed and
pay board wages.

Witness. — Judge Hardy said something about he would go if it was not
for the position that he held in this State.

Mr. Edgerton. — If there is anj'thing more that you heard from Judge
Hardy, that 3'ou have not stated, state it.

Witne.'is. — That is about all ; that is the substance of it.

Mr. Williams. — No questions, Mr. Daly.

W. C. DENNY, RECALLED.

W. C. Denny, recalled, testified as follows :

Mr. Edgerton. — You have testified that you live at Mokelumne Hill,
and know Judge Hardy ?

A. — Yes.

Q. — Will you state whether you at any time had any conversation
with Judge Hardy upon the existing difficulties in the country, prior to
the firing upon Sumter ? And if so, what it was ?

444

A — Well, Sir, I think I had a conversation with Mr. Hardy. I hav^
had several.

3Ir. Edgerton. — I mean at that time, and upon that subject.

Witness. — There is but one that I can recollect anything about, and
that was before the firing upon Sumter.

Q. — What did Judge Hardy say then ?

A. — Well, Sir, it was at Mr. Hardy's house, at the time of the first
starting of these difficulties. I am myself a South Carolinian ; and I
had said something about being a South Carolinian to Mr. Hardy, and
we were speaking about it. And in talking about the diificulties — some
three or four States, may be six, I do not recollect particularly, had then
seceded — Judge Hardy said tbat if he was a citizen of South Carolina —
or living in the State of South Carolina — or something to that effect — he
would hope and pra}' that every sunrise might hear of the Southern
Confederacy firing into Sumter ; for the reason that that would bring
the Avhole fifteen States of the South at once out of the Union. I think
that that is as near as I can recollect, at present; I do not know.

CROSS EXAMINATION.

Mr. Williams. — He said, "If living in South Carolina" — that was the
expression he used, was it not?

A. — He said: "If a citizen of South Carolina;" or, "If living in
South Carolina."

Q. — Was it not " If he was living in South Carolina ?"

A. — Yes. That is what I stated.

S. L. MAGEE, RECALLED.

S. L. Magee, recalled, testified as follows :

Mr. Edgerton. — You have testified that you live at Mokelumne Hill,
and know Judge Hardy ?

A.— Yes.

Q. — Will you state whether you have at any time had any conversa-
tion with Judge Hardy upon the existing diificulties of the country; and
if so, the purport of those conversations ?

A. — I had two conversations with Judge Hardy in relation to the diffi-
culties of the country.

Q. — Please give us, as near as you can, the dates.

A. — The first was about the time of the breaking out of the rebellion.
It was of a mild character ; a few words. He vindicated the South, at
that time, on the State Eights doctrine ; through that channel, the com-
bined Southern States had a right to league together, and resist the
Constitution of the United States.

Q. — Is that all of that conversation ?

A. — That is about all.

Senator Crane. — When was that conversation ?

A. — About the time of the firing into Fort Sumter. About that time;
I could not remember the exact day. It was but a few words that was
then said.

Mr. Edgerton. — Where and when was the next conversation, and what
was its purport ?

445

A. — The next conversation was at Mr. Leger's hotel, at Mokelumne
Hill. It was about a month and a half affo : perhaps two months.

Q.— What was it ?

A. — Judge Hardy then proposed to drink a disloyal sentiment.

Q. — State just what transjtircd, in your own way ?

A. — I could not state the precise language.

Mr. Edgerlon. — Well, the substance of the language is all we want.

Witness. — It was disloyal towards the United States, and in favor of
the South.

Q. — You say he proposed to drink it ?

A. — lie proposed to drink- it with mo and two or three other gentle-
men.

Q. — State whether it was drank or not. •

A. — I refused to drink it.

Senator Mcrritt. — Where did this conversation occur ?

A. — At Leger's saloon, Mokelumne Hill. I refused to drink it, and
he excused me. We were conversing in regard to the Bensley franchise
bill, which had passed this body. That is how I fix the time of the con-
versation. He said wo would drink, anyhow.

Mr. Edfjcrton. — Do you recollect any words that occurred ? You say
it was a disloyal sentiment.

A. — I could not repeat the words.

Mr. Edgertun. — You say it was expressing disloyalty to the Govern-
ment ?

Mr. Williams. — He did not say that.

Mr. Edycrton. — State the substance of it.

Witness. — I cannot recollect the words. I did not treasure them up at
all.

Q. — Y''ou refused to drink it, and Judge Hardy excused you?

A. — It was something, I thought, against the Union, and I refused to
drink it^ and he said we would drink, anyhow. In the meantime —
this was a rambling conversation — the liquor had been called for, and
lay stretched out on the bar. We got into conversation, and it sat there
some time before we drank it.

CROSS EXAMINATION.

Mr. Williams. — You say this was a month, or a month and a luilf, ago;
and fix the time, you say, by a certain bill which was pending before the
Legislature in this branch ?

A. — A bill which was passed.

Q. — And Judge Hardy, yourself, and several others, were there, about
to drink, before this sentiment was uttered, were you ? You got ready
to drink before the sentiment was uttered ?

A.— Y^es.

Q. — And although you cannot remember the language, it was some-
thing that you did not approve, and you refused to drink it; and Judge
Hardy said : '• We'll drink, anyhow." Did you " drink, anyhow ?"

A. — Yes, we all drank.

Q. — You said the liquor w^as lying stretched out on the bar there ;
lying around there, loose ?

A. — No, Sir, you mistake me. I did not say it was " loose." [Merri-
ment.]

Mr. Williams. — Well, you said it lay stretched out there.

Mr. Edgerton. — Like milk, in a row.

446

Yoice. — Liquor don't lie round " loose " in Calaveras County. [Great
merriment.]

3Ir. Edgerton. — Call Mr. Brockway.

Mr. Williams. — How many more times are you going to call him ?

3Ir. Edgerton. — Only this once. This time lets him out.

Mr. Williams. — He seems to be your corps de reserve.

S. W. BEOCKWAY, RECALLED.

S. "W. Brockway, recalled, testified as follows :

Mr. Edgerton. — Will you state whether, on a certain day — I do not know
what day, or what day of the month it was — last fall, you had any con-
versation with Judge Hardy in reference to the then existing difficulties
in the country ? If so, state what your conversation was.

A. — I did have some conversation with Judge Hardy. Judge Hardy
came down the street for me, and said he had a man up at Leger's hotel
for whom he wished to do some business, or who wished me to do some
business for him — I do not recollect which. I took his arm and walked
up the street, and wo stopped two or three times, or he stopped me, talk-
ing; and we stood some time before the hotel before we went in where
the gentleman was who had the business to be done.

Mr. Edgerton. — Just tell US what the conversation on this subject was ?

A. — Tlie conversation was this: Judge Hardy was saying something
about resigning; and, talking about the Union question, he says, "You
know how it is with me here. I cannot get such a jjosition here as I am
entitled to. I do not blame you for being a Union man ; your friends
are all in the North, and your flesh and blood are there. But it ain't so
with me. My friends are on the other side, and my flesh and blood are
there; and I won't fight against them ;" or, " I will be damned if I fight
against them. I will fight for them all the time."

Q.— Is that all ?

A. — No, Sir. I could not now repeat all that was said. We talked an
hour or more. He said he would not fight against them ; that his flesh
and blood were on the other side, and that he would fight for them all
the time.

Senator Crane. — When was this ?

A. — This was this last fall ; I should think in the month of October
last. He said he knew where he could go and get such a position as he
was entitled to; and that he was going to resign when certain assurances
were given, and would go there and get it.

Q. — Anything further ?

A. — Yes. He told me he could not understand my politics ; that he
always understood me to be a State Eights man, and yet I was in favor
of the war, and ulti-a ; that there was no use in my being so daTnned ultra
as I was, although, if he was in my place, with all his friends in the
North, he would be on the same side I was — with a great deal more, of
that character. I cannot repeat it all.

Mr. Williams. — Repeat that last.

Witness. — Judge Hardy said : if situated as I was, with all his friends
in the North, he would be on the same side I was ; but that they were
not, and that he could not be.

Mr. Williams. — Tell some more.

447

Mr. Edgerton. — I am requested by a Senator to ask you, if Judge
Hardy stated, in that conversation, what position he could get?
A. — He did not.

ALLAN p. DUDLEY, RECALLED.

Allan P. Dudley, recalled, testified as follows :

Mr. Edgerton. — You have testified to attending to the political canvass,
last summer, in the County of Calaveras, with Judge Hardy ?

A. — I said as little, the last political campaign, as I could, and keep
my position with my party. I only made four or five speeches.

Q. — I want to know whether you travelled with Judge Hardy, during
that time ?

A.— I did.

Q. — He travelled with you?

A. — We Avent to Murphy's, and made a speech, at the time referred to,
when the Court adjourned. Judge Hardy and myself went there in a
carriage, and both spoke there, that evening.

Mr. Edgerton. — I want to know, whether, on any occasion during that
tour, you had conversation with Judge Hardy, in reference to the course
you were pursuing in your speeches, and as to the coui'se you were
thereafter to pursue, as regards the position you took on the Union
question, or as regards the course you would thereafter take on that
subject?

A. — My speeches were all Union speeches.

Mr. Edgerton. — I want to know whether you had any conversation
with Judge Hardy, on that subject?

A. — Yes.

Q.— Well, what was it ?

A. — Well, we talked the matter over — about our declarations when we
were with the opposite party; that the true policy, to carry our county,
was, under all circumstances, and upon all occasions, to proclaim our-
selves as strong friends of the Union, and as Union men. It was so
agreed between us that we should so do : and I kept my part of the
contract. [Merriment.]

Q. — State as to whether Judge Hardy did, or not ?

A. — Well, I must say, that in the canvass I did not hear Judge Hardy,
in private conversation, in bar rooms, or elsewhere, utter any disloyal
sentiments.

Q. — Did you, anywhere ?

A. — Well, we both advocated what were called Breckinridge principles,
upon the stump. I do not know as I heard Judge Hardy talk any more
Secessionism, on the stump, than I talked. Y^et I reckon they swallowed
mine easier than they did his, because I was born in the North.

Mr. Wdliams. — That is it. It makes a mighty sight of difference where
it comes from !

Witness. — / did not advocate any disloyal sentiments, Sir.

CROSS EXAMINATION.

Mr. Williams. — Y'ou and Judge Hardy, you say, were out, making
speeches together ?
A.— Yes.

448

Q. — You were a Union man ?

A. — I am, and have ever been. I never entertained a disloyal senti-
ment in my life.

31r. Williams. — Well, so much I give you credit for. Now, Judge
Hardy was with you, on the stump ?

A. — Yes. So was Tod Eobinson.

Mr. Williams. — I did not inquire as to Tod Eobinson.

Witness. — I did not know but you wanted to know all my associates.

Mr. Williams. — ^0. It would take too long a time, and perhaps some
might be bad company. Xow, you and Judge Hardy travelled together,
and made Union speeches ?

A. — I did not say Judge Hardy advocated the same sentiments. He
went, on one occasion, farther than 1 dared to go.

Q. — You say Judge Hardy never uttered any disloyal sentiments on
those occasions ?

A. — Not what /could call disloyal sentiments.

Q. — He was with you. making speeches — you a Union man — and you
both were advocating Breckinridge principles, you said ?

A. — No, Sir.

Mr. Williams. — I believe you said so '!

A.— No, Sir.

Mr. Williams. — Then I did not hear you aright.

Witness. — I stated on the stump, several times, that I did not indorse
the whole of the McConnell platform.

Mr. Williams. — I ask you whether you were advocating the Breckin-
ridge principles and party ?

A. — We were called the Breckinridge party. We were working for
our ticket, and the whole ticket.

Q. — And your ticket was the Breckinridge ticket ?

A. — It was so called.

Q. — Now. as to these conversations that took place between you and
Judge Hard}', when it was agreed that 3'ou should both proclaim your-
selves Union men ; were they when alone, when nobody else heard you?

A. — They were by ourselves, when travelling together.

Mr. Williams. — Like the other conversations you have testified to,
where nobody could hear you. Now, did Judge Hard}", when you and
he agreed that you should advocate Union sentiments, (you say i/ou did
advocate them, and believe in them.) utter anything in his speeches dif-
ferent from what he said you ought to proclaim ?

A. — Yes, he did.

Mr. Williams. — Well, let us see how you will dilute this testimony.

Witness. — If you will allow me, I will explain. I spoke first, at Mur-
phy's— we had a ver}- large meeting — and left the stand. Judge Hardy
had not spoken more than twenty minutes before there was a general
rush made, to tear him from the stand, because he was a rebel.

Mr. Williams. — That is not the question — what the crowd did; but
what Judge Hardy did and said.

Witness. — Well, I heard Judge Hardy justify the South seceding from
the North, and advocate the right of secession, upon the stump.

Q. — Well, 1/ou do not consider that disloyal sentiment ?

A. — Well, we did not, then, as a part}-, consider it disloyal to justify
the South in secession. It was a part, as I understood, of the platform.
I did not advocate it, but I understood it was part of the platform to
justify secession. As I told you, I did not indorse the whole of the
platform.

449

Mr. Williams. — "Well, it is in evidence that Judge Hardy endeavored to
get it out of the platform. Then you reconcile your two statements —
the one, that 3'ou never heard Judge Hardy utter disloyal sentiments,
and the other, that he did advocate the States' right to secede — by say-
ing thai you did not consider this secession doctrine disloyal sentiment ?

A. — I did not consider it disloyal, because the Virginia Resolutions
were brought up to sustain and indorse the platform and the policy of
the then Breckinridge or McConnell party. I did not indorse it; I did
not indorse the Virginia ilesolutions — the construction they gave to them
on the right of secession. But Tod Robinson, Judge Hardy, McConnell,
and other members of the party I belong to, did. And, notwithstand-
ing I did not take them up and indorse them, they were very anxious I
should go with them through the county.

Q. — They wanted you — a Union man — to go with them through the
county ?

A. — Yes. To give character, I suppose, to the thing. [Great merri-
ment.]

Mr. Williams. — Well, I think worse of those Democrats now, than I
ever did before. To give character to their party ! You mean, to give
your character to it?

A. — No, Sir. To give a respectable character to it. [Renewed mirth.]

Mr. Williams. — To give a respectable character to it ! Is not that the
same thing as giving your character?

A. — I suspect so. Sir; I suspect so. [Renewed mirth.]

Mr. Williams. — Well, if the Breckinridge party needed such assistance,
they must have been pretty badly off. [Merriment.] It is not much of
a party, any wa}^,"! reckon.

Mr. Worthington. — We admit that. [Merriment.]

Mr. Edgrrton. — I think our case is closed. We ask, however, that we
may have a few moments recess, in order to consult with the Managers
of the case, before closing.

Mr. Williams. — That is better than having a few straggling offers after
formally closing.

Mr. Edgcrton. — Do you object to it. General ?

Mr. Williams. — Not a bit of it.

Recess was accordingly taken for ten minutes.

On reassembling, Mr. Edgerton called Hon. Thomas Campbell, Chair-
man of the Managers, to the stand.

TESTIMONY OF THOMAS CAMPBELL.

Thomas Campbell, being called and sworn, testified as follows:

Mr. Edgerton. — You reside at Mokelumne Hill, Calaveras County ?

A. — About two miles from Mokelumne Hill.

Q. — You are a member of the Assembly from Calaveras County, and
one of the Managers of this Prosecution ?

A.— Yes, Sir.

Q. — Will you state what you know of the origin of these proceedings
against Judge Hardy?

A. — I believe, Sir, that I originated these proceedings myself.
57

450

Q. — State whether, or not, it was upon consultation with members of
the Assembly ?

Mr. Williams. — Well, what has this to do with the issues ?

Mr. Edgerton. — Do you object to it ?

Mr. Williams. — Yes. As to what their consultations have been, and
how the}' concocted this thing, we do not propose to inquire, by evidence
here, at all. We object to it, as entirely irrelevant to the issue here — as
to whether Judge Hardy is guilty, or not guilty.

The Presidimj Officer. — The Chair must suggest that an insult must not
be implied to the other House.

Mr. Williams. — I will take that back, and acknowledge the corn.

Mr. Edgerton. — General Williams has intimated, in one of the speeches
he has made to this Court, that this was a conspiracy, concocted with the
Dudleys, and by Mr. Higby. adding that they expected to prove it. It
may be that he has put in some testimony, which he will claim as tend-
ing to establish that fact. We offer this in rebuttal. We Avould have a
distinct definition of the position of the Defence, on that subject.

Mr. Williams. — Our distinct definition of our position, is this : That
when they offer a witness on the stand to convict Judge Hardy of the
offences charged, we have a right to cross examine him as to his feeling,
and what he has done about the Prosecution. Having done so, if we
get any evidence that seems to militate against the credibility of his tes-
timony, we have a right to comment upon it. If we make a point, and
give evidence upon the question of how this thing was gotten up, the
various proceedings, either what was done in the Assembly, or what was
done out of the Assembly, in the j^rivate consultation of the Managers,
then it would be proper for them to come in with this evidence, and re-
but it. But I submit, that when we cross examine merely as to the cred-
ibility of the witnesses, by showing, or seeking to show, that they are
prejudiced, that they are influenced by improper motives in the matter,
80 far we have a right to argue that their testimony is not of that value
that it would be without that feature in it. They are not at liberty, for
the purpose of meeting our argument as against their individual wit-
nesses, to prove that somebody else has done something else against
Judge Hardy. I object to the whole testimony, as irrelevant. If it is
to be opened, we have, then, in order to rebut it, to call other witnesses
as to what has taken place in the Assembly, as to what certain members
of the Assembly have done, outside of what Mr. Campbell has done him-
self, or what other witnesses the Prosecution might call, have done; and
it will take another week to try that issue as to how this Pi'osecution has
been gotten up and prepared. And if we did desire to do this thing, if
we did desire to open that question as to the proceedings of the House,
we should be met with a most emphatic rebuke from the Chair — that we
had no business to question the proceedings in the Assembly. Now they
propose to prove their proceedings in the House to have been something
— no matter what. We object to their opening those proceedings. We
object, principally on the matter of time, but Ave have the right to object
on legal principles. It is a matter not in issue here, upon the question
of Judge Hardy's guilt or innocence.

Mr. Edgerton. — General Williams does not disclaim the taking of the
position which I alluded to; does not disclaim the notifying the Court
that this was a conspiracy, concocted by these parties, and that he ex-
pected to prove it. And the Court will recollect certain evidence which
was given here by Mr. Brockway, and drawn out by General Williams
from certain of the witnesses, as to the circulation of a petition for the

451

abolishment of that District. Now, we do not offer this testimony as a
rule to settle the value of the evidence of these parties, or, at least,
Brockway; but we do offer it to rebut any position they may assume,
that these proceedings originated with these parties, and that this was a
conspiracy.

Mr. Williams. — Whatever I have slated in relation to this being a con-
spiracy, must be considered, if considered at all, in the character of an
opening; and the Court will very well recollect how much ground was
covered by the opening on the part of the Prosecution — and the Court
cannot fail to remember as to how much of the statements made in that
opening, they have failed to make any proof of Avhatsoever. AVe are
not at liberty to say, because they stated, in their opening, certain
positions which they expected to prove, and have not proved, or at-
tempted to prove, that we will come in and make proof to rebut that
opening, rebut what Counsel have said. If we make proof here of any
proceedings on the part of the Assembly, or on the part of the Managers,
acting as agents of the Assembly, when we have done so, then this evi-
dence will be competent; until then, not. But when we do attempt any-
thing of that kind, I have not the least doubt but that we shall be met
with the position that we have no right to attack the proceedings of the
Assembly.

Mr. Edii( rton. — It is not on the subject of the proceedings of the Assem-
bly, ]\Ir. President. Not at all. It is simply evidence that the position
assumed by (rcneral Williams is incorrect, and to do away with whatever
effect there may be in the testimony we have allowed to come in. We
offer it as rebutting evidence.

Mr. William'i. — Kebuttiug what ? My statement ?

The PrcskliiKj Officer. — I think General Williams stated something of
what he charged; but I do not understand it as evidence in the case, ex-
cepting as far as relates to a portion of the cross examination of the
Dudleys. They were asked if they did not pay money to procure wit-
nesses and their attendance. They answered this, and their answer was
a denial. That \a all on the aflSrmative of the question. Now, Mr.
Campbell says, he was the originator of this prosecution. Now, further
details —

Mr. Edgerlon. — [Interrupting.] I do not want the details, if that state-
ment made by Mr. Campbell is in evidence.

Mr. Williams. — I objected, at the start, to Mr. Campbell's undertaking
to father#this case.

The Frcsldlnij OJiccr. — According to my recollection, there is no testi-
mony, on the part of the Defence, to show that anybody instigated this
matter, except what the papers in Court show. There was some cross
examination, but I do not recollect any testimony.

3fr. EiJgerton. — Now, I am instructed by the Managers, to ascertain the
sense of the Court on this subject, with all due respect to the President,
to see whether we are right or not. If the Senate agree with the Presi-
dent, we do not desire to discuss it farther.

Senator Rhodes. — I would be glad to have Mr. Edgerton state on what
point evidence was given by the Defence, which this is to rebut.

Mr. Edrjrrton. — I think General Williams cross examined our witnesses
very closely, on the subject of the action of the Dudleys and Mr. Higby,
in reference to this Impeachment ; and much was said in reference to the
circulation of a petition in relation to the abolishment of that District.
And something was brought out, that Broekway had something to do
with such papers. I ask the sense of the Senate upon the subject.

452

Senator Gaskill. — I ask that the question be reduced to Avriting, so that
there be no misapprehension.

Mr. Williams. — 1 do not suppose that we have given evidence of a con-
spiracy at all. I will state my own intention in what we have said about
this. We have proved the action of certain witnesses who testified upon
this stand. When a witness comes upon the stand and testifies with
apparent feeling, as they have, and I am not now charging anj^body, I
do insist that I have a right to inquire whether that witness has not
been actively engaged in this prosecution. For what '/ To show a con-
spiracy ? That is not the object. For the purpose of discrediting that
witness; for the purpose of weakening the eft'ect of the testimony of
that witness; to show that his testimon}' is not entitled to that degree
of w^eight that it would be if it came from an impartial man. It is to
the credit of each witness who has testified here, who, as 1 have said,
has m,anifestcd feeling in getting up this prosecution. And, as I remarked
before, if this question is opened, we must go back and show what has
been done, and show that considerable is back of Mr. Campbell's starting
point.

Senator Merritt. — I think the Articles of the Assembly show a motive
for this Impeachment. [Merriment.]

Mr. Etlgcrtoii. — I understand that the action of the House and these
Managers is not involved in this at all. It lies further back than that.
I say, for what reason was it that General AVilliams asked Dr. Ilolbrook
whether he was not a brother-in-law of the Dudleys ? For what reason
was it that he asked Charles P. Dudley whether he was not a brother of
these Dudleys ? What was that put into this case by the Defence for,
unless to make a predicate of this position which General Williams has
assumed '{

Mr. M'illiams. — I will answer that question. It was for the purpose,
principally, as I have repeatedly ex2)lained. of manifesting the feelings
of the three Dudleys, and their relatives, in this case, to show the meas-
ure of credit that is to be given to their testimony ; and not for the pur-
pose of showing the point Mr. Edgertou seems to suppose we are driv-
ing at.

[The offer of the Prosecution having been reduced to writing, the
Secretary read it, as follows : " The Managers offer to prove at whose
instigation the Impeachment was instituted in the Assembly, and that
neither of the Dudleys, or Brockway, or Higby, had any connection
with it whatever."]

Mr. Edgcrton. — Now. Mr. President, one word. I understand the Presi-
dent to rule that offer out, because of no evidence to establish the fact
that these witnesses had any connection with the fact named. I ask the
sense of the Senate on its admissibility.

Senator Crane. — I would inquire whether there was not some evidence
given, showing, or tending to show, that there was a j:)roposition among
the Dudlej^sand some of these witnesses to endeavor to have the District
abolished. ,

Mr. Williams. — Yes. That was for the very purpose of discrediting
those witnesses.

The question being submitted to the Senate, the Senate refused to ad-
mit the offer, by the following vote :

Ayes — Messrs. Banks, De Long, Gaskill, Harvey, Hill, Nixon, Perkins,
Porter, and Powers — 9.

453

Noes — Messrs. Burncll, Chamberlain, Crane, Denver, Gallagher, Har-
riman, Hathaway, Heacock, Holden, Irwin, Kutz, Lewis, Merritt, Oul-
ton, Parks, Quint, Rhodes, Soule, Shurtleff, Van Dyke, Vineyard, Warm-
castle, Watt, and Williamson — 24.

THE LAST WITNESS.

Mr. Edgerton. — We have but one more witness to offer. He is in Marin
County. His evidence is relative to the trial of Judge Terry; I forget
the number of the Article. The knowledge of what can be proved by
that witness has, within a very short time, come to the Managers.
They regard it, on consultation with their Counsel, as of the utmost
matcrialit}'. It is in reference to an expression which is alleged to have
fallen from the Respondent at tiie time he left the bench on that oc-
casion. The Managers ask tbat they vawj have process for that witness.
They are informed that his attendance can be procured here to-morrow
morning, at eleven o'clock, by sending over a small boat, if process be
issued to-day. It is a matter that addresses itself to the discretion of
the Court, and is of very great im]X)rtance in this prosecution.

The Presiding Ofjieer. — [To Gen. Williams.] Are you ready to proceed
with your rebuttal '(

Mr. WiUidms. — Yes, but we cannot go into it until their case is closed.
I havfr nothing to say to the vSenate, by way of admonition, advice, or
objection, as to how much indulgence they shall give this Prosecution in
the wa}^ of taking up new witnesses. I have only to say, that we have
come down now to a stage in the proceedings when I have a i-ight to in-
sist, and do most respectfully insist, that they shall say they have ex-
hausted their case, and are done, before we go into our rebutting
evidence.

Mr. Edgerton. — I would say, in respect to this application, that tlie Man-
agers and their Counsel felt it due to this Court to bring this fact before
it, leaving it entirely with them as to whether they shall grant it or not.
It is a matter, which, as I said before, addresses itself entirely to the
Court. If they want this fact brought out. they can send for the wit-
ness.

Mr. Williams. — I have no objection to the indulgence, premising what
I said before.

Mr. Edgerton. — I will State that the witness we wish to procure here,
is Judge Frink, the County Judge of Marin County.

Mr. Williams. — We had him here, ourselves, as long as his term would
allow him to staj'.

Mr. Edgertem. — If the Court desire it. we will state what we expect to
prove by Judge Frink.

Mr. Williams. — I object to any such statement being made.

Mr. Edgerton. — I won't make the statement, unless the Court desire it.

Mr. Williams. — There is another objection that I may as well state here,
because, if the Court should give them two or three da;^^s, or one day, to
get this witness here, from what the Counsel has alrea'dy said — that it
relates to what Judge Hardy stated at some time, or what took place on
that trial — when the witness does come, we shall raise the question,
That the}' have gone through their case, and exhausted it. We will state
further, as regards Judge Frink, that we had him here three or four
days, under a subpoena; that he utterly refused to stay any longer, be-
cause his term was going to open, and he would go home at any rate.

The Presiding Ojfieer.—Ris term closed yesterday.

454

Mr. Edgerton. — What Gen. Williams has stated, was not in the knowl-
edo-e of the Managers, at the time. I will not say what they are informed
on the subject of Judge Frink being here as a witness for the Defence. I
will not repeat, and have no right to state, why the Defence would not
use him.

Mr. WiUiams. — The reason why, was, because he would not stay ; and
because he was not material, as we had other witnesses to the same
point.

Senator Mcrritt. — I hope this case will be closed some time or another.
If they get Judge Frink here, the Managers may then find somebody else
they would like to call.

Mr. Edgerton. — I distinctly announced that we closed the case.

Senator Merritt. — I thought you had closed your case two or three
times.

Mr. Edgerton. — We never announced that we had, before.

Senator Merritt. — Well, I thought it was coming to that, several times.

Senator Soide. — 1 wish to make one inquiry of the Managers on behalf
of the Government. Is Judge Frink the only witness they projDOse to
introduce?

Mr. Edgerton. — The only witness. I will state to the Court, if they
desire, what we expect to prove.

Mr. Wd/iams. — I do object to that; because, if the witness docs not
come, you have the benefit of the oftcr just as much as if he had sworn
to it. And when he comes, if he does, perhaps he will not swear to any-
thing of the kind.

Senator Crane. — I would like to know if this statement has just been
discovered ?

Mr. Edgerton. — Just discovered by the Managers.

Senator Parks. — I would like to know whether this proposed testimony
is rebuttal, or in chief?

Mr. Edgerton. — In chief.

The Presiding Officer. — It is in relation to a statement alleged to have
been made by the Eespondent, on leaving the bench, after the conclusion
of the Teny trial. There has been no evidence tending to show any
such statement.

Senator Merritt. — Xow, if we allow Judge Frink to come, perhaps he
may not testify to anj'thing, when he gets here. I do not knoAV what
he is going to testify to ; and I do not understand that the Managers or
their Counsel know. I understand that they have merely heard it.
And if they give this evidence, whatever it be, the Defence may desire
to rebut.

Mr. Edgerton. — I would suggest that it is a matter of importance to
have this evidence in, if there be anything in it.

Senator Rhodes. — If it is not desired that Counsel should state the pur-
port of the proposed testimony, it could be j)rivately submitted to the
President, and he could decide whether, or not, it is rebutting testimony ;
whether, if the witness was here, he could be heard, or whether it would
be a matter of discretion for the Senate to hear him.

The Presiding Officer. — The Chair has heard the statement made, six
Months ago. I do not know whether it is true, or not.

Senator Van Dyke. — I would ask if what the President heard would be
iidmissible here, at this time, as rebutting testimony ?

The Presiding Officer. — I do not oifer any opinion about it. I heard it
In the street.

Mr. Edgerton. — We learned it from what the Managers regard as a
reliable source of information.

455

The question being, as to a postponement of the case until the follow-
ing morning, at eleven o'clock, in order to obtain the attendance of
Judge Frink, the Senate so ordered, by the following vote :

Ayes— Messrs. Banks, Burncll. Chamberlain, Crane, De Long, Gaskill,
Harvey, Hathaway, Hcacock, Hill, Kutz, Nixon, Oulton, Perkins, Por-
ter, Powers, Tvhodes, Soule, and Shurtleff — 19.

Noes — Messrs. Baker, Denver, Gallagher, Harriman, Holden, Irwin,
Lewis, Merritt, Parks, Quint, Van Dyke, Vineyard, Warmcastle, Watt,
and Williamson — 15.

In giving his vote. Senator De Long said : I simply wish to state this :
I have voted for the admission of all the testimony desired on both sides,
so as to shut out nothing in this case. I shall maintain that position on
this point, and vote for the admission of the largest amount of testimony.
I want the case thoroughly ventilated.

Senator Gallagher, before voting, made the following inquiry : I would
ask the Counsel for the Ilespondent, if they will require time, if this tes-
timony is brought in, to meet it ?

Mr. Williams replied : We do not know what it is. If it becomes ne-
cessary to rebut it, we shall ask this Senate to give us an opportunity.

Senator Gallagher then voted No.

Mr. Williams. — I understand Counsel to say, that, with this exception,
their case is closed ?

Mr. Edijerton. — Yes.

Mr. Willunna. — May it please the Court, on consultation with my client,
it is impossible to say which witnesses we shall want to call. I would
like to save the State the expense, but the case has assumed such a course
that we may want to call witnesses that do not occur to us at present;
and I dare not take the responsibility of calling some and discharging
the rest. We have discharged two witnesses, and let them go home, be-
cause the Prosecution had closed their case on a particular branch, but
the Court has since opened that branch, and sworn Frank Moore, here.
We had witnesses here to contradict him, in the first instance. And
now, we must be permitted to keep our witnesses here.

The Court then adjourned to eleven o'clock on Saturday morning,
May tenth.

TESTIMONY

IN THE

TRIAL OF JUDGE J. H. HARDY.

TWELFTH DAY—MAY 10, 1863.

CONCLUSION OF THE TESTIMONY.

OATH ADMINISTERED TO SENATOR BOGART.

Senator Irwin. — Mr. President, the Senator from San Diego, Mr. Bo-
gart, is present. I move that be come forward and take the oath.

Mr. Alex. Comphell. — In reference to the witness whom we w^ere to call
this morning, I would state —

The PrcmUng Officer.— Yow will excuse me, Judge Campbell. There
is a motion before the Senate.

Mr. Campbell. — I beg pardon.

The Presiding Officer.— The Chair understands that the Senator from
San Diego has not been present during the trial, and has not heard any
of the evidence upon which he would have to pronounce a judgment.
It is a question for the Senate to decide, whether he shall be sworn in at
all, or not.

Senator PerJcins. — I presume that that question ought to be left to the
Senator's own discretion and views of propriety.

Senator Holclen. — Other Senators have been sworn in, after testimony
has been taken. I know that one was certainly sworn in, after the first

day.

Senator Watt. — I do not believe that we have a right to refuse the Sen-
ator from San Diego admission into the Cornet, even if we had the dispo-
sition so to do.
58

458

Senator Chamherlain. — I think it strange that Senators should be ad-
mitted, should be sworn in, who have not heard the witnesses, who have
not seen them on the stand, but who come in here and pi'opose, upon the
printed testimony, to make up their minds. I ask, if a man who had
not been constant in sitting on a jury, would be allowed to come in, in
this way, and help make up a verdict.

Senator Shurtlcff. — This testimony is taken down by Official Eeporters,
who are sworn to make an accurate report, and who are acknowledged
to be very skilful as Eeporters. I know that several Senators have ab-
sented themselves frequently during the proceedings of this case — at- j
tending to other and very urgent business, connected with legislation — ^
because they knew that they were going to have this testimony officially
laid before them. It appears to me, then, that there is nothing improper
in the Senator from San Diego taking the oath, at this time.

Senator Holden. — I believe that the Senator from Mariposa (Mr. Mer-
ritt) was absent two or three days. He relied upon reading the official
report of the testimony. Now, it would be impossible to exclude him
from voting upon this case.

The PrcMiling Officer. — I have no doubt, in my mind, that a vSenator^
must hear the testimony, as it is given from the stand, in order to ren-
der him competent to pass judgment in tliis case. I will submit the
question to the Senate, whether the oath shall be administered to the
Senator from San Diego, or not.

Senator Crane. — Before this question is put, I wish merely to say, that
I would be extremely loth to exclude any gentleman, a member of this
Senate, from sitting in this High Court of Impeachment, as a vSenator,
and voting upon the questions finally to be passed upon, unless there
were ijood reasons for cxcludini!; him. The Senator who makes his
appearance this morning, has heard none of the testimony. He has not
seen any of the witnesses. He is utterly incapable of forming an}^ judg-
ment as to what amount of credibility ought to be attached to any of
the witnesses' statements, from their appearance upon the stand. Now,
it strikes me that from merely reading the evidence, a Senator cannot
possibly be qualified to act intelligently in the case. Besides, the testi-
mony is not all printed. As I understand, it is not all written out.
And, of course, no reliance can be placed upon the testimony as reported
in the newspapers ; not that reliance which ought to be had in order to
form an impartial opinion in the case.

Senator Quint. — I would ask whether this question is debatable. I
suppose that questions of this kind, before the Court, should be decided
without debate.

The Premlinej Officer. — Section eighteen of the Fourth Article of the
Constitution, reads :

" The Assembly shall have the sole power of impeachment, and all
impeachments shall be tried by the Senate. When sitting for that pur-
pose, the Senators shall be upon oath or affirmation ; and no person shall
be convicted without the concurrence of two thirds of the members
present."

Section sixty of the Criminal Practice Act — having reference to the
conduct of impeachments — reads as follows :

"At the time and place appointed, and before the Senate proceed to
act on the impeachment, the Secretary shall administer to the President
of the Senate, and the President of the Senate to each of the members
of the Senate then present, an oath or affirmation, truly and impartially to
hear, try, and determine, the impeachment ; and no member of the

459

Senate shall act or vote upon the impeachment, or any question arising
thereon, without having taken such oath or aflirmation."

I think that the statute requires that the oath should be taken at the
time of the opening of the Court, and before the Senate proceed to act
on the Impeachment.

Senator Wanncastle. — I would ask if there have not some Senators come
■in and been sworn since the trial was opened ?

The Presiding Officer. — I think that the Senator from Calaveras (Mr.
Gallagher) came in on the second day.

Senator Wanncastle. — I think that the right of a Senator to act in this
case is one which cannot be denied him without expelling him from the
Senate.

Senator Gallagher. — I was sworn in on Tuesday morning. There was
some testimony given in on Monday morning.

Senator Quint. — I think that Senator Porter and Senator Hill were not
sworn in until the second day. At any rate, they were not here at the
time of the organization of the Court.

Senator Warmcastle. — I would ask how it is that we can deprive Sen-
ators of the privilege of acting in this case because they have not been
here during the examination of witnesses, and were not sworn in at the
opening of" the Court, when, at the same time. Senators who have been
absent during a good portion of the trial, but who were here at the
opening of the Court, and were then sworn in, are allowed to render a
verdict in the case ?

The Prcsidinrj Officer. — I do not think that that should affect a decision
in this case. It is true, that someSenatoi's have slumbered through this
trial, apparently paying little or no attention to what was going on.
But if they are satisfied, in their own consciences, I do not see how we
can call them to account for their negligence and inattention. I shall
certainly have to decide against the administration of the oath to the
Senator from San Diego.

Senator Harvey. — I would like to be informed whether all the testi-
mony is to be printed, so that members can read it before rendering
their judgment. For, if we are to have the official report before we are
called upon to decide this case, I think that it is very proper that this
Senator should be admitted. Because, it is well known that many Sen-
ators have left the Court from time to time, depending upon their ability
to i^ead up the testimony in the official report. We have appointed
Official Eeporters, for the Very purpose of having a correct report of the
testimony to read and rely upon when we come to make up our decision.
I would like to have some one inform this body as to whether the official
report of testimony will be printed in time for Senators to read it before
making up their verdict ?

The' Presiding Officer. — I cannot tell.

THE VOTE.

The Presiding Officer.— The question is : Shall the oath be administered
to the Senator from San Diego?

The Senate decided the question affirmatively, by the following vote :

Ayes— Messrs. Baker, Banks, Burnell, Denver, Gallagher, Harvey,
Holden, Irwin, Kimball, Lewis, Merritt, Parks, Quint, Shurtleff, Vine-
yard, AVarmcastle, AVatt, and Williamson — 18.

Noes— Messrs. Chamberlain, Crane, Gaskill, Harriman, Hathaway,
Hill, Kutz, Porter, Powers, and Soule — 10.

460

THE OATH ADMINISTERED.

Senator J. C Bogart, of San Diego, then came forward to take the
oath.

The Presiding Officer. — I would ask the Senator wliether he has read
the Articles of Impeachment and the answer of the Respondent?

Senator Bogart. — I have read them.

Senator Oulion. — I w^ould ask if the Senator has also read the evidence
which has been given in this case ?

Senator Bogart. — I would state that I have read all the evidence that
has been printed thus far.

[The Presiding Officer then administered the oath to the Senator from
San L>iego.]

APPLICATION FOR POSTPONEMENT.

Mr. CampheU. — I wish to State to the Court, that we last night dis-
patched a messenger, who attempted to get to Marin Connt3\ He put
off in a small boat, but was obliged to come back, after being out several
hours, as it blew a perfect gale of wind. He found it im])ossible to get
across the bay. He tried again, this morning, to cross the bay, but this
time, also, he made a failure. He cannot get there until to-day's boat
for Petaluma reaches Point San Quentin. He has used every means in
his power to get there before this time. The testipiony which we ex-
pect from the witness whom we have sent to Marin County for, is very
important. It is in relation to a declaration made by Judge Hardy after
the verdict had been taken in the Terry trial, and when he was in the
act of leaving the bench. If we are informed correctly, it is evidence
which will set this part of the case at rest. It is evidence of the very
highest importance. For, if we are correctly informed in regard to it,
it will settle one branch of this case most conclusively — beyond all pos-
sible argument or controversy. If it is desired, I will state Avhat that
evidence is, which we expect to give by this witness. I will state it as
a ground for our application for further time.

Mr. Williama. — I don't think that would be proper, unless the statement
is called for by the other side.

Mr. CampheU. — If I did so, it would be merely for the purpose of en-
abling the Senate to understand why it is that we are anxious for a post-
ponement.

Mr. Williams. — I don't think that that is at all necessary.

Mr. Campbell. — We expect to show, by this witness, that, upon leaving
the bench, at the expiration of the Terry trial. Judge Hardy made this
remark, or something to this effect : " If we had not got them on this
point, we had another string laying back to catch them upon." And
that he made this remark in reference to that trial.

Mr. Williams. — AVell, if that is not unprofessional, then I never heard
anything unprofessional at the bar. in all the course of my life. We
were willing to admit that the testimony was material, and that was suf-
ficient for the purpose of making the motion for a postponement.

Mr. CampJiell. — I will ask to have the question, on the postponement
of this case until Monday morning, submitted to the Court. There is no
possible way by which we can get the witness here before next Monday
morning. We will have him here then, certain.

Mr. Williams. — I do not know but that we shall then want to send to
Calaveras County, and other parts of the State, for some witnesses.

461

Then, if we don't get them here, perhaps we will make a statement of
I what we expect to prove by them — which might help us considei'ably.

Senator GasklU. — I do not see wh}' this trial may not proceed, if the
'Prosecution, or the Defence, have anj^ other witnesses on this or any
other point ; and then this witness from Marin County can be brought
iin afterwards.

Mr. Williams. — We now state to the Court, that Ave do not wish to go
on with our defence, leaving the Prosecution a corps de reserve^ with which
to come in and clinch us in the end. We have a right to have their case
exhausted at some time. We have a right to hear them say, on this day,
or on some day of this month, or on some da}" of the next month, that
they have closed their case. Then, whenever they shall have done so,
we will go into our rebutting testimony.

Senator Gaxkill. — The Defence understand what is the purport of the
testimony which the Prosecution propose to introduce on Monday, and
they can prepare themselves accordingly ; and introduce such evidence
in advance, as they choose, or at once proceed to summon such witnesses
as they choose.

Mr. Edijerton. — That is the caso, exactly.

Senator Ga.sA-ilL — If that is so, I do not see why we should not go along
■with the trial. I do not see why the Defence should not go on with their
rebuttal.

Mr. Williams. — We think we are the best judges on that point.

APPLICATION WITHDRAWN.

Mr. Campbell. — On reflection and consultation, we withdraw the appli-
cation which we have made ; and give notice that we shall apply for
leave to examine the witness on Monday.

Mr. Williams. — We shall protest, most respectfully and firmly, against
any such action.

Mr. Edgerton. — The application for a postponement is withdrawn, w^ith
notice that we shall apply for leave to examine the witness on Monday.

THE PARTIES REST.

Mr. IF(7/'('am.s.— [Addressing the Counsel for the Prosecution.] Do you
rest ?

Mr. Edgerton. — Yes, Sir.

Mr. Williams.— So do ive, may it please your Honor. The Prosecution
have rested ; we rest, and are ready to commence the argument.

MOTION TO PROCEED WITH ARGUMENT.

Senator Merritt.—l move that the Counsel proceed to the argument in

this case. , . , , ^ ^

Mr. Camphell.—lt is impossible for us to proceed with the argument ot
the case, without having minutely examined all the testimony, and with-
out having arranged it in suitable order for reference.
Mr. Williams.^You. will not get the testimony in a week.
Mr. Campbell.— \Yg can be prepared to go on by Monday. We did not
suppose that anybody expected that we should ])roceed to the argument
before that time. We shall be perfectly ready to sum up on Monday.
Of course, the argument, if commenced to-day, would be very rambling
and disjointed. "We must have time to examine the testimony of the

462

witnesses, as given in the official report, in order to collect it in proper
divisions, as it ought to be, in order to enable to prepare briefs for argu-
ment. It would shorten the argument, at least one half, to make this
delay. There is a vast amount of testimony which Counsel must neces-
Barily go over, in order to fix upon the more important parts upon Avhich
they desire to comment.

THE ORDER OF ARGUMENT.

Mr. Williams. — "While upon this subject, I Avish to renew the considera-
tion of a matter which I referred to some time ago, which the Senate
then thought was improperly introduced. I ask, that in settling the or-
der of argument in this case — considering the circumstances of the case —
inasmuch as there has been one full argument made on the other side, be-
fore the evidence was gone into — I ask that the argument be confined to
one Counsel on a side, and that the Defence have the close.

It has been said in this case, that the rule has always been in all Courts
that the prosecution has the closing argument.

Senator Galla[/her. — [Interrupting.] Inasmuch as the evidence has
been closed, I propose that the witnesses who have been summoned to
attend, be discharged from further attendance.

3Ir. WilMnns. — [Continuing.] Now, may it please your Honor, it was
originally decided in this case that in our proceedings we should be gov-
erned by the present Criminal Practice Act. The present Act provides
for the order in which a case shall be submitted to the jury. After the
jury shall have been empanelled and sworn in, the trial shall proceed in
the followin"- order:

"If the indictment be for felony, the Clerk must read the indictment
and state the plea of the defendant to the jury.

II.

The District Attorney, or other Counsel for the People, must open the
cause, and offer the evidence in support of the indictment.

III.

The defendant, or his Counsel, may then open the defence, and offer
his evidence in support thereof.

IV.

The parties may then respectively offer rebutting testimony only, un-
less the Court, for good reasons, in furtherance of justice, permit them
to offer evidence upon their original cause.

When the evidence is concluded, unless the case is submitted to the
jury on either side, or on both sides, without argument, the Counsel for
The People must open and may conclude the argument."

That is the present order of procedure — the one usually adopted.

But the next section reads as follows :

463

"When the state of the pleadings require it, or in any other case, for
good reasons, and in the sound discretion of the Court, the order pre-
scribed in the last section may be departed from."

This is the present law. It leaves it in the discretion of the Court as
to whether the usual order of argument shall be departed from. The
Counsel for the Prosecution insist that the usual order shall be adopted
here.

But this Court does not profess to be governed rigidly by that order
prescribed in the statutes. It will be seen that the Courts'of the State
have the privilege to depart from that order, and they sometimes do so,
in their discretion.

• This Court has refused to be governed strictly and rigidl}^ by the rules
laid down for the government of vState Courts. It has opened the door
for the admission of testimony, by the adoption of a broader rule than
obtains in our State Courts. That this Court has done wisely in this,
no one can doubt.

But, in regard to this assertion that this rule respecting the opening
and closing argument is invariable. I desire to call the attention of the
Court to the fact that in man}- States, and especially in Western States,
the right of closing is given to the defendant.

More than that : the Criminal Practice Act of this State, adopted in
eighteen hundred and fifty-one, gave the defence the closing argument.
I read from jjage two hundred and sixty-one of the Statutes of eighteen
hundred and filty-one :

" Fifth. — When the evidence is concluded, unless the case is submitted
to the jury on either side, or on both sides, without argument, the Coun-
sel for the people must commence, and the defendant or his Counsel may
conclude the argument to the jury."

That was the law in this S^tate. That statute has been amended.
The Legislature has seen fit, since, to go back to the old English rule,
which rule has been followed by New York, and most of the old States.

Upon that subject, it may be well to consider what is the proper rule
in this case, inasmuch as it is admitted, on all hands, that this Court has
the jjower to control this matter. When the Court come to examine
into what is the fairest and most proper rule to be adopted under such
circumstances as exist here, I ask Senators to consider the position in
which the Defendant is placed.

He is charged with a grave offence. To sustain the accusation, the
whole power of the State is brought against him. He is a single indi-
vidual, standing against the power of the State. It would seem that,
under such circumstances, a man should be allowed to answer all that is
said against him.

We have followed a rule which has come down to us from ancient
times in Great Britain, where the Government has never been known to
yield a single hair's breadth of liberality towards the defendants who
were prosecuted, especially for offences against the Crown. There, the
Government has held on, with a rigid grasp, to every iota of power
which could tend to consolidate the ability of the Attorney for the
Crown, and make prosecutions successful in all cases where they were
deemed necessary and proper. They have there held always to their
old rule — that the Counsel for the Crown has the right to close the case.
And the Counsel for the Crown can open the argument, and possess the

464

minds of the Court and the jury, before any evidence is introduced.
The defendant comes in, after he has heard the evidence on behalf of
the i^rosecution, with his own evidence, and then the Counsel for the
defence argues upon the entire evidence. Then, instead of having the
privilege of answering what the Counsel for the Crown have said against
him, by way of argument, the law gives the Counsel for the Crown the
opijortunity to come in and make the closing argument. And there are
numerous instances on record, where, by the adoption of that barbarous
practioe. a man has been crashed, who might otherwise have been saved,
and who ought to have been saved. Men have been charged with polit-
ical offences, and have been convicted upon such accusations, who might,
and would, and ought, to have been acquitted, had they had an opportu-
nity to make the closing argument in the case.

We contend that it is only fair and just, that the Defendant should
have an opportunity of replying to the final arguments made against
him. I submit, wliether, upon the rules of natural justice, upon the
principles of general equity, this is not the fair, and proper, and honest
course, for this Court to adopt, when the matter is wholly within its dis-
cretion.

I have asked this Court to make an order giving the closing argument
to the Defence, and confining the Prosecution to two arguments — the
one to be made in opening the case, and one to be made upon the evi-
dence. The Court thought that the application then, was premature ;
and I thought so, too — as a general rule. I then stated the reason why
I made the application then. I thought it was proper to make the ap-
plication then, because, if it was then understood in what order the ar-
guments would come, we could be better prepared to make such an an-
swer as it would be necessary to make under a fixed order of the Court.
But it was thought that the application was then premature. And now,
since the case is about being submitted to the Court, I renew that appli-
cation.

I ask this Senate to do that justice, to exercise that fairness, towards
the Defendant, which would tend to give him the best and fullest oppor-
tunity to vindicate himself from the charges which have been brought
against him. I ask that we shall have an opportunity to answer and
explain whatever arguments may be brought against us on the part of
The People, in this prosecution.

I ask, further : that the argument be confined to one Counsel on each
side — the Defence having the closing argument.

And I announce to the Court — lest there should be any impression or
fear of delay arising out of such an order — I announce to the Court,
that, if such an order is made. I will open my argument in five minutes,
so far as it requires any opening. If the Counsel for the Prosecution do
not want any opening from our side, then I will listen to them, and
make my final argument immediately upon the close of theirs. If they
wish a statement of the points which we propose to make, I will give
all of them, now.

If, on the other hand, they insist upon this statute rule, if they insist
upon this old English rule, which has come down to us from the ages of
barbaric tyranny, if they insist upon the application of that rule here,
and if the Senate sustain them in demanding that application — deter-
mining that they shall have the closing argument — then I ask, that the
argument be confined to two Counsel, one upon each side. And if it be
decided that the Counsel for the Prosecution shall have the closing argu-

465

merit, and that but one Counsel sliull be heard on a side, then I announce
that I am read_y to proceed with my argument now.

Mr. Cdmphell. — Mr. President, the pro[)osition made by the Counsel for
the Defence can hardly be made seriously.

Mr. Williamx. — Nothing more serious.

Mr. Campbell. — It is a proposition to depart entirely from tlie settled
usage in all cases of this character. The Counsel for the Defence cannot
find a single instance of an impeachment trial, anywhere, in the United
States Senate, in any Legislature of any State in the United States, or
in Great Britain, where any such rules as he proposes now have been
adopted. In every instance, the prosecution has opened the case; and
in every instance, the prosecution has closed the case. We did, for a
time, adopt a different rule in this State. What was the result of the
adoption of that rule? It was found that its practical tcndenc}- was,
by its operation, to secure the release of the worst criminals in the State.
It was found absolutely necessary, it was found essential to the well
being of the Commonwealth, to return to the old rule, and reject this
innovation, which had been foisted ujion the statute book through the
peculiar notions and opinions of some of the gentlemen who prepared
the Act of eighteen hundred and fift3'-one. The return to the old rule
was unanimously adopted ; so bad in its operation was the new rule dis-
covered to be. The ai)plication for a change back to the original law
was sustained by the universal experience of all persons who practised
under the Act of eighteen hundred and fifty-one.

Now, it will be remembered, Mr. President, that we have the affirma-
tive of this case to establish. We have to establish an affirmative ; and
that not merely as a balance of probabilities, but we have to establish,
beyond all reasonable doubt, the guilt of the Defendant. That burden
rests upon our shouldei's. It is for that reason the Prosecution is given
the opening and the closing of the case. Because it is for them to estab-
lish conclusively and clearly the guilt of the Defendant. So far as the
Defendant is concerned, he has nothing more to do than to raise a doubt,
in order to successfully resist the array of testimony that is produced
against him. And it is for these reasons; because this heavy burden of
responsibility is placed on the shoulders of the Prosecution ; because all
the presumjjlioiis lean in favor of the Defendant until the evidence
against him has become overwhelming, conclusive, and irresistible; it is
for these reasons, that the Prosecution is allowed to maintain the issue
in this manner on their part.

We submit to the Court that we are clearly entitled to the opening
and the close, according to the law, to the practice, to principle, and to
precedent.

We Avould say, that we shall be unable to go on with the argument,
to-day. We did not expect that there would be any call for us to do so.
And I will state to the Court, that if this case is allowed to go over until
Monday, I shall not occupy more than two hours in opening the argu-
ment. But I desire to make some preparation before I proceed.

Mr. Williams. — In regard to the time necessary for the preparation of
argument, I believe I have expressed my readiness to go on now.

^Tha Predding Officer. — So far as the rule governir)g this matter is con-
cerned, I believe that the Counsel for the Prosecution has stated the law
and the practice correctly. That is the practice in all criminal prosecu-
tions in this State — the prosecution have the opening and closing argu-
ment. And in both the impeachment cases in this State, the prosecution
had the opening and closing argument.
59

466

Mtr. WnHaams. — I do not know as in those cases an j question ^
<Mi the subject by the Defence.

J&. CkMmtpbeO. — ^Becanse there was no application made for a change c:
the ordinaiy rule.

Mr. WSIiamts. — ^I will drvide mjr proportion. The first proposition is :
Sball the Defence have the closing argonient ?

The Prttidimg Ogker. — ^That is the question before the Senate.

THE TOTS.

The Seeretaiy called the roDr with the following resoli :

Atxs — Mcissrs. Baker, Bogart, Denver. Holden, Merritt, Sonle, Vine-
yvrd, and Williamson — S.

Moss — ^Me^srs. Banks. Bomellr Chamberlain. Crane. Gaskill. Harrey.
flbrriman. Hathaway. Hill Irwin. Kimball. Kntz. Lewis. Xixon, Oalton,
Perkins^ Porter. Qiunt. Shodes. Shortleff. Tan Dvke. Warmcastle. and
Wattr— 23-

So the Court refused to aUow the Defence the closing argument.

XUMBER OF COrXSKL. A5tD DUlUkTIOS OF ABGU3IEST.

Mr. WiUiams. — ^The next proposition is. to confine the argument to one
Counsel on a side. Upon that. I ask the decision of the Senate.

Semateir Crame. — ^I would suggest that the time to be occupied by the
Counsel be fixed within a certain limit.

tfr. WUHam*. — If the Senator will pardon me, I do not think that that
would be fair, because Counsel cannot determine, now, how much time
they would like to consume.

But the proposition now is, to confine the argument to one Counsel on
a side.

MoMo^tT MeCmUottgh. — ^We have retained more than one Counsel in tb>
ease, and for the purpose of conducting this argument, and. so far as t.
know, it has always been customary to allow two Counsel on a side. W
retained that number for this purpose. The Bespondent might have r<:
tained two or three Counsel, if he had wished to do so.

Jmdge Hardj/. — The Bespondent didn't have the money.

CLOSHCG ORDER.

Stmateir Merritt. — I moTC the adoption of the following Order :

" Ordered by the Court :

That the hearing of testimony in this case be and is hereby closed ;

And that, on Monday next, the argument shall proceed in the follow-
ing order, via :

The Prosecution may open the argument, and consume not over focr
hours time ;

The Counsel for the Defence may then reply, occupying not over six
hours ;

Counsel for the Prosecution may then close the argument, occupying
time not to exceed two hours;

After which, the Court shall proceed to pronounce judgment without
debate."

467

Mr. Edgerton.—l would suggest to the Senator, that he amend the
order, bo as to give the Counsel for the Prosecution three hours iu
opening, and three hours in closing.

Senator Mn-rltf. — According to my ojunion, the Counsel for the Prose-
cution should, in their opening, state the whole case, and argue it fully.
And then, when they come to reply, in the closing argument, they will
only have to reply to the new positions taken, and the new points
advanced by the Defence. I know that it is very common for the Dis-
trict Attorney to make a mere rambling, discursive, and brief speech, at
■ the opening of a case, and then reserve his big argument until he comes to
close. That has been done in the Courts in this State where I have prac-
tised ; and the Judge has had to interpose and insist upon the District At-
torney stating his whole case, stating it fully, and ai'guing it fully, com-
menting u])on the whole testimon}' — thus enabling the defendant to know
exactly tlie evidence and positions upon which he (the District Attorney)
relied. And then, after the defendant's Counsel had made his argument,
the District Attorney could re])ly, in a short speech, to the new positions
taken by the opposing Counsel. This is only a matter of justice to the
Defence. It would not be fair to give the Defence only four hours in
which to make their closing argument, after the Prosecution had made
a brief speech in opening, and had three or four hours in which to follow
the closing argument of the Defence. No such rule prevails in any
Court of law, and it ought not to prevail here. The Prosecution should
state their case fully in their opening.

My proposition is, that the l-*rosecution open in a speech of four hours,
that the Delence make their closing argument in six hours, and that the
Prosecution then close in two hours. This gives six hours to each side.
I presume that the argument will consume two days.

Mr. E(l<i(rt(in. — There is one portion of this proposition which we
regard as objectionable. The Court has been notified that we intend, on
Monday, to renew our application to introduce certain testimony. It
seems to me that this case is of sufficient importance to provide for the
admission of that testimony, if it exists and can be produced here on
Monday morning. The resolution or order of the Senator from Mariposa
is to the effect that the evidence be now declared closed.

Tlic PrfuldhiQ Officer. — [To Mr. Edgerton.] Is six hours sufficient
time in which to make the argument for the Prosecution ?

Mr. Edijrrton. — Yes. Sir. The only thing we object to, in regard to that,
is the division of the time.

Mr. Campbell. — I will agree to finish the ojjening speech in two hours
time.

Mr. ITi'jhy. — With all due respect to the Senator from Mariposa, I wish
to offer an objection to his division of the time. 1 do not expect to en-
gage in the closing argument in this case; but 1 wish to make this re-
mark here — that t do not think the division of time is properly made,
in the order which has been submitted to the Court. The Eespondcnt's
Counsel is given six consecutive hours in which to present all that he has
to say in I'cference to this subject. Now the only question is : Can a
man answer in two hours what may be presented in six hours ? I admit
that the gentleman is correct in his general observations in regard to this
matter; that the part}" opening should present his case, and present it
fully; present his points, and all the points that will be presented in the
case. But I do not think that when the Eespondent is allowed six hours
in which to make his argument, it will be possible for the Counsel for
the Prosecution to answer in two hours. Now, it seems to me, that if

468

the Senator had made his resolution so that it would have required the
Counsel for the Prosecution to present all the points on his side of the
case in two or three hours, and then be allowed to take the balance of
the six hours in closing, in replying to the six hour argument of the
Counsel for the Defence, it would have been a fairer and more just pro-
position.

Mr. Campbell. — I think I can make a suggestion which will be satisfac-
tory all round. I do not wish to occupy four hours in opening this case.
I intend, in my opening, to present every point and consideration upon
which we shall call for a conviction of the Eespondent. I have no inten-
tion, and I say here that I would not consent, to be a party in the laying
of any trap, or in the resorting to any dodge or device whatever, for the
purpose of ])rejudicing the rights of the Eespondent in this case. But
I think that if I am allowed two hours to o])on the case, and my associate
is allowed three hours in which to close, and the Respondent's Counsel is
allowed six hours in which to make his argument, that that will be as
fair an agreement, in regard to the division of time, as can be made. Two
hours is certainly too short a time in which to ask us to close the argu-
ment in this case.

Mr. WinkiDu. — There is a perfect answer to the remarks which I^Ir.
Higby and Judge Campbell have made in regard to this matter. They
ask for an enlargement of the time in which to make the closing argu-
ment. That closing argument, I understand, is to be made by ^Ir. Edger-
ton. The answer is made b}' Mr. Edgerton himself He has announced
to the Court that he does not want to speak over two hours ; that he is
perfectly content with that time.

Mr. Kdf/crton. — I proposed that the order should be changed so as to
give the Counsel for the Prosecution three hours in which to open, and
three hours in which to close.

Senator Mcrritt. — Mr. Campbell, in his opening, can present the ease
fully, and give his arguments upon the law and the testimon}^, in four
hours. Kow, when the Defence come to reply, it will take a large por-
tion of their time to answer the affirmative arguments of the Counsel
for the Pi-osecution ; and then the balance Avill be consumed in present-
ing their own view of the case. Then, in making the final argument in
the case, the Counsel for the Prosecution will only have to reply to the
new points which the Defence may have raised. And I think, that for
that purpose, two hours is ample time.

Mr. Edijerton. — I have no objection to being confined to two hours, in
the closing argument.

Mr. Wiliiams. — That is what I understood you to say before.

SUBSTITUTE.

Senator Crane. — I desire to offer the following substitute :

Resolved, That upon the arguing of this cause, the Counsel for The
People shall open and close, occujjying between them not exceeding six
hours in tin^e ; and Counsel for the Respondent may occupy a period of
time not exceeding six hours.

Senator Merritt. — I understand that the Counsel for the Prosecution
agree to the division of time, already suggested.

Mr. Edgerton. — But we accept the substitute. [Merriment.]

Senator Merritt. — The substitute is entirely improper ; and I am sur-

469

prised that it should be offered, after the Counsel have once agreed to a
certain division of time.

The Presiding Officer. — I shall have to decide against the admission of
the substitute, at this time. I think that the time should be fixed, defi-
nitely, for the opening and the close of the argument. I think that that
is a matter for the Senate to settle. It seems to me that the time should
be fairly divided between the two sides. Now, one lawyer can make a
better argument in six hours, than two men can make, dividing that time
between them. But in a division of the time between two "men, there
will be a gain, in additional vigor. I think that the one about counter-
balances the other.

Senator Merritt. — I understood that the Counsel who is to make the
closing argument had no objection to the division of time fixed in the
order which I jiroposcd.

The Preddhuj Officer. — I think that this is a matter for the Senate to
determine. The Counsel have no right to direct the Senate.

Mr. Campbell. — We do not propose to do so.

Mr. Williamx. — Not at all.

Senator Crane. — I suppose that we can make a rule as to whether there
shall be any closing argument at all, or not. But we do not proj)Ose to
be as arbitrary as that.

Senator Soule. — [Sotto voce.] Or as foolish.

THE FIRST PROPOSITION.

The Presiding Officer. — There are three propositions embraced in the
order which has been submitted to the Court. The first is :

Shall the testimony be considered as closed ?

Mr. Edfjerton. — I have only one word to say in regard to that subject.
The evidence which we propose to introduce, will occup}^ only a very
short time in taking. If the witness does not get here by eleven o'clock,
on Monday, we will proceed with the argument at once. There shall be
no delay. We think that it is essential to the administration of full jus-
tice in this case, that this testimony should be 2:)roduced, if we can get
it. It is of great importance.

The Presiding Officer. — I think, if the witness should get here in time
on Monday morning, the Senate would then determine, upon learning
what would be the character of his testimony, whether or not they
would rescind this portion of the order and hear his evidence.

Mr. Williams. — If the Chair will permit me, I would like to make a
suggestion. It is exceedingly important to us to know whether or not
this witness is to be introduced. For, if that is to be the case, judging
from the character of this testimony as announced by the Counsel, we
shall want to call some witnesses who can testify to the only conversa-
tion which occurred between Judge Hardy and this witness from Marin
County — the onl}- word that passed between them on that day, after
Judge Hardy left the bench. We believe that that witness is in San
Joaquin County. Another witness, who may testify to the same point,
is in Sacramento County ; and another is in Tehama County.

Now, if this case is to be opened again, after we have announced, that
as the case now stands, we rest, we by no means intend to be understood
that, if they are allowed to introduce new testimony, we do rest. We
say : If they rest now, so do we. If they do not rest, then we have
several witnesses whom we propose to examine here to-day. We have
assented to resting the case where it is. If it is to be opened again,

470

then we desire that that fact be made known now, in order that we
may have time to send for witnesses, on our part, who will testify to the
very point upon which they propose to introduce this evidence. And if
the case is still open, we shall introduce witnesses whom we have now
here, and consider ourselves entitled to the privilege of introducing
witnesses to contradict such other testimony as they may hereafter in-
troduce.

Senator Merritt. — There must be a close to this ease, somewhere. It is
plain to be seen, that if we come here on Monday, with the expectation
and understanding that other witnesses will be introduced and examined,
the whole case will be thrown entirely open, and nlay thus be prolonged
for another week, and — we do not know for how long. Therefore, it is
desirable that this case should be closed now, so far as the testimony is
concerned, if possible. If it is not considered closed in this respect, it
is entirely unnecessary and out of place for us to debate any longer in
regard to the time which shall be consumed in the arguinent, and the
divisions which are to be observed by the respective Counsel.

The PresldiiKj Officer. — The question is upon deciding upon the first limb
of the order: Shall it be ordered by the Court, that the hearing of the
testimony in this case be closed ?

Sena'or Tleacoch. — I have been here some two weeks, engaged in listen-
ing to the testimony in this case. It is stated by tlie Counsel for the
Prosecution, that there is in Marin County some im])ortant evidence,
bearing upon this case. For one, I want to hear that evidence. I want
to hear everything that can contribute to our enlightenment in regard to
this case. And for one, I shall vote to sit here two months longer, if
necessary, in order to get every particle of important testimony before us.

Senator Burnt II. — I think that the Senate has been very liberal in allow-
ing the introduction of testimony, in this case. But 1 am decidedly in
favor of sustaining this order at the present time.

THE VOTE.

The Presiding Officer. — I will state the question before the Senate, for
the third time. The question is :

Shall it be ordered, by the Court, that the hearing of testimony in this
case be now closed ?

This question was decided affirmatively, by the following vote :

Ayes — Messrs. Baker, Bogart, Burnelh Denver, Gallagher, Harriraan,
Holden, Irwin, Kutz, Lewis, Merritt, Xixon, Parks, Quint. Rhodes, Shurt-
leff, Van Dyke, Vineyard, Warmcastle, AVatt, and Williamson — 21.

Noes — Messrs. Banks, Chamberlain, Crane, Gaskill, Harvej^, Hatha-
way, Heacock, Hill, Kimball, Oulton, Perkins, Porter, and Soule — 13.

THE SECOND PROPOSITION.

TJie Presiding Officer. — This settles the first limb of the order — deciding
that the hearing of the testimony is now closed.

The next question is as to the time and order of argument.

Senator Merritt. — I believe that that is agreed iipon now, by the con-
sent of all parties.

The Presiding Officer. — Then, if there be no objection, the second branch
of this order will stand adopted.

[There was no objection.]

471

THE THIRD PROPOSITION.

The Presiding Officer. — The adoption of the next, and last, limb of the
order, is involved in the question :

After the hearin<; of the arguments, shall the Court proceed to pro-
nounce judi^ment without debate?

Senator Kulz. — I would inquire whether that order renders it impera-
tive that judgment shall be pronounced immediately after the close of
the argument ?

Senator Warmcastle. — I think not.

Senator Merritt. — Of course, this order does not make it imperative that
the decision should be taken immediately upon the closing of the argu-
ment.

Senator Quint. — I understand the only effect of it to be, to cut off de-
bate in the Senate.

The Prcsif/inr/ Officer. — Is it the intention of the Senate to cut off the
privilege of filing an opinion ? I do not want to make any argument be-
fore the Senate in regard to the matter, but I may desire to file an
opinion, giving the result of my judgment in the case.

Senator Merritt. — Senators will have the privilege of filing an opinion,
of course.

Senator Gaskill. — I object to the last part of the order — providing that
the decision shall be given without debate. I call for the ayes and noes,
on that proposition.

Senator Chamhcrlain. — I am opposed to the whole order, at this time,
because I am op})Osed to the closing of the evidence now. After we
have spent thirty thousand dollars, or forty thou.sand dollars, or fifty
thou.sand dollars, in listening to this case thus lar, I am in favor of
spending a few more hundred dollars in order to have full justice done
in the premises.

Senator Warmcastle. — Will this order prevent any Senator from explain-
ing his vote on any one proposition, at the time when he comes to vote ?
I do not mean to enter upon any argument, but to make a simple ex-
planation.

The Presiding Offi/:er. — Any Senator can file an opinion in the case, if
he chooses.

THE VOTE.

The ayes and noes were then called, on the adoption of the entire
order.

Senator Merritt.— Hhe two first propositions having been adopted, we
can adopt the whole order at this time, without voting specially on this
third branch of it.

The entire order was then adopted, and ordered entered on the
minutes, by the following vote :

Ayes— Messrs. Baker, Bogart. Burnell, Denver, Gallagher, Harvey,
Harriman, Hathaway, Holden, Irwin, Kimball, Kutz, Lewis, Merritt,
Parks, Perkins. Quint, Ehodes, Soule, Shurtleff, Van Dyke, Vineyard,
Warmcastle, Watt, and Williamson — 25.

Noes— Messrs. Banks, Chamberlain, Gaskill, Heacock, and Nixon— 5.

472

WHEN WILL THE TESTIMONY BE PRINTED ?

Senator Watt. — I should like to inquire when we are going to get the
printed testimony. I intend to make up my mind, principally, on the
basis of that testimony, and not to rely upon the arguments of the
lawyers. I would like to be informed Avhen the printed cop}^ of the
official report of the testimony is to be forthcoming. I cannot rely
upon the arguments of Counsel, or the newspaper synopsis of the testi-
mony, as a basis for my decision in this case.

I move, that the Committee on Public Printing report to the Court
when the printed copy of the official report of the testimony will be
forthcoming.

llic Prrsiding Officer. — If the testimony cannot be got out in time in
any other wa}', I would suggest that a part of the cop}" be put into the
hands of some other office.

Senator Kutz. — I saw the State Printer this morning, and he stated to
me that on 3-esterday he had not yet obtained from the Reporters the
copy of the testimony taken on the fourth day. He stated that he had
not over a third part of it. He said that he had the testimony of the
fifth day in type, and that he had a small portion of the sixth day's tes-
timony. He said that he did not know the reason why he did not get the
balance of the testimony of the fourth day. He said that he was wait-
ing for copy from the Reporters. I want him to stand before the Sen-
ate acquitted of blame, if he is not guilty of any intentional neglect or
unnecessary delay. He says that he is ready to print the testimony as
fast as he gets the copy, and that he is now waiting for copy. He said
that he had not yot got tiie report of the fourth day's proceedings — that
he had only a small portion of it — that he did not know where the bal-
ance of it was. Of course he cannot print what he has not got. He
said that he would have had the testimony printed long ago, if the copy
had been furnished him promptly by the Reporters. Where the fault is,
I do not presume to say.

Senator Merrltt. — I move that the Committee on Printing be instructed
to have all the testimony printed b}' Monday morning, if they have to
employ, for that purpose, all the printing offices in town.

Senator Incin. — How can the testimony be printed, if it is not written
out?

Senator Lewis. — I understand, from one of the Reporters, that the re-
port has been written up to the sixth da}', and is now in the hands of the
State Printer; and that a part of the sixth and seventh da^^s is already
written out.

Senator Kutz. — I had the information which I have given, directly from
the State Printer himself.

Senator Merritt. — It will be the business of the Printing Committee to
find out the real cause of the delay.

The motion of Senator Merritt was adopted unanimously.

COPIES OF RECORDS FOR COUNSEL.

Mr. Williams. — I would ask whether or not the Court will not authorize
to be employed as much clerical force as is necessary to furnish the Coun-
sel on each side with one copy of the record evidence that will be required
to be used in the argument here. Much of this evidence, of course, does
not and need not go into the printed report. I understand, from the

473

Official Reporters, that they only insert in their record so much of this
class of evidence as is read in Court. We would like to have a fair en-
grossed copy of some of this record evidence which is not inserted in the
printed report. It is only needed for reference in the course of the argu-
ment.

Senator Irwin. — If the Counsel desire, I will move that a Clerk be em-
ployed to copy Avhat record evidence the Counsel may want in this case ;
the Clerk to be paid for bis services an amount not exceeding ten dollars
per day.

The Presiding Officer. — The Court can instruct the clei'ical force, now
attached to the Senate, to furnish such copies of the record evidence as
may be needed by the Counsel on either side.

Mr. Wif/iamx. — This evidence, of the character which I have described,
will be of very little use except as it furnishes matter of reference for the
Counsel. I understand that one cause of the delay in printing the testi-
mony has been, that the Reporters have found it difficult to get such
records of this character as are necessary and proper to be inserted in
their report. This record evidence has been something of a stumbling
block in the way of the printers and the Reporters, although they have
not been called upon to insert but a small portion of it in the official re-
port.

The Court then adjourned until Monday morning, May twelfth, at
eleven o'clock.

REPORT OF ARGUMENTS

IN THE

TRIAL OF JAMES H. HARDY,

BEFORE THE SENATE OF CALIFORNIA,

SITTING AS

A HIGH COURT OF IMPEACHMENT.

A^RGUMENTS

IN THE

TRIAL OF JUDGE J. H. HARDY.

THIRTEENTH DAY— MAY 13, 1863.

OPENING ARGUMENT FOR THE PROSECUTION

ARGUMENT OP ALEX. CAMPBELL.

Mr. Campbell said :

Mr. President, and Senators : — It becomes my duty, under the instruc-
tion of the Managers, to open this case before you, and to present, on
behalf of the Prosecution, those considerations which, in their opinion,
ought to influence your minds and fcontrol your judgment.

You have assembled together, to-day, to exercise the highest functions
belonging to your great office ; to pass ujion the integrity, the compe-
tency, and the judicial character of a Judge of the highest Court of
original jurisdiction.

We all know what a Judge should he ; and what his character and
demeanor, in accoi'dancc Avith his official oath, in accordance with the
high character of the duties which he is called upon to perform, should
be. We know that he should hold the scales of justice with most im-
partial hand ; that there should be no sign or symptom of favoritism,
partiality, or dislike, anywhere in his judicial conduct; that before him
all men should be equal ; and that in his conduct and in his demeanor,
both on and off the bench, he should so carry himself as to inspire
respect for himself and regard for his office.

What he should not be, it is equally easy to describe. He should not

478

be partial in his judgments. He should not exhibit unfairness or favor-
itism, or undue familiarity with the members of the bar. He should not
be found whiskey-drinking and playing cards in public bar rooms during
the terms of his Court. He should not be found influencing Attorneys
in the mode of conducting their cases. He should not be found reeling
about the public saloons in diff'erent portions of the State, in a state of
intoxication, uttering treason, and holding forth his drunken sentiments
in public, to the disgrace and degradation of his high oflice.

These are things which, if proven upon a Judge, ought to, and must,
hurl him from office. H they have been proven here ; if injustice has
been shown to have been wilfully committed ; if the conduct of the Judge
has been shown to be such as to destroy all respect alike for the man
and the oflice ; if it has brought disgrace upon the administration of
justice throughout this State — you cannot, under the solemn oath which
you have taken, escape the discharge of the duty wliich that oath im-
poses, and you cannot, in such case, acquit him.

I ask you to try him, fairly and honestly, upon the merits of this case ;
to let no preconceived ideas or opinions influence your judgment. And,
if he is not proved, bej'ond the possibility of a doubt, to have been guilty
of the things which we here impute to him, I, for one, ask you to acquit
him. And if, on the other hand, he has degraded the judicial office; if
his administration of it is a mere public scandal; if he has wilfully tam-
pered witli justice; if he has exhibited favoritism and partiality; if he
has been a Judge whose whole judicial character has been a stain and
disgrace to the State — then your equally solemn oaths compel you to
convict him.

1 shall ])roceed, gentlemen, without further preface, to tlie examination
of these charges, piece by piece, and Article by Article; presenting, as far
as I can, in tlie limited time which I shall occupy, the considerations which
induce me, on behalf of the Managers, to ask for a conviction. I shall,
necessarily, have to depart somewhat from the order in which the
charges are arrayed in the xVrticles ; because there are several charges,
relating to particular suits, which are so inseparably connected, and the
evidence in relation to which is so interwoven — the evidence on the one
charge with the evidence on the other — that it will be requisite to take
them up together, and, to some extent, consider them out of their place
in the numerical order of the Articles.

I shall consider the First and Second Articles together, as they relate
to the same subject-matter and the same suit ; the testimony in relation
to them emanating from the same witnesses.

The First Article is :

" ARTICLE I.

At the ]\Iay term, A. D. eighteen hundred and fifty-nine, of the Dis-
trict Court of the Sixteenth Judicial District, in and for the County of
Calaveras, the said James H. Hardy, being then and there the District
Judge of said District Court, a certain suit was pending and at issue
therein before the said James H. Hardy, District Judge, as aforesaid,
wherein one Gerrish Foster was plaintiff, and one Fritz and others were
defendants — that said cause came on for trial before said Hardy, District
Judge, as aforesaid, at Mokelumne Hill, the county seat of said county,
at said May term, viz : on or about the fourteenth day of May, A. D.
eighteen hundred and fifty-nine ; that at the trial of said cause the said
James H. Hardy, District Judge, as aforesaid, unlawfully, corruptly, wil-
fully, fraudulently, and with intent to perpetuate and lengthen litigation

479

between the parties aforesaid, did deny a certain motion for a nonsuit
then and there made by the Counsel for the defendants in said action."

The Second Article is :

"ARTICLE II.

At the November term, A. D. eighteen hundred and fifty-nine, of the
Court in the last Article mentioned, viz : on or about the twenty-sixth
day of November, A. D. eighteen hundred and fifty -nine, a motion for a
new trial in said case in the first Article mentioned came on for hearing
before the said James II. Hardy, District Judge, as aforesaid, at the Court
House in said County of Calaveras, and the said James H. Hardy, being
and acting as such District Judge, did then and there, unlawfully, corruptly,
wilfully, fraudulently, and with intent to perpetuate and lengthen litiga-
tion between the parties to said suit, grant to the defendants therein a
new trial of said cause."

And. in addition to that, there is a specification in the Twenty-First
Article —

" That, unmindful of the solemn duties of his oflfice, and contrary to the
same obligations bj^ which he stood bound to discharge them faithfully
and impartially, and without respect to persons, and in utter contempt
of his judicial character as District Judge of the Sixteenth Judicial Dis-
trict, as aforesaid, he, the said James II. Hardy, while District Judge,
aforesaid, at a term of the District Court, held in and for said Calaveras
County, in the month of May, A. D. eighteen hundred and fifty-nine,
and at other times, as hereinafter set forth, was guilty of unlawful and
wilful misconduct, in his said ottice committed, as follows, to wit :

First. The said James H. Hard}", at the term of said Court last above
mentioned, to wit : in said County of Calaveras, on or about the four-
teenth day of May, A. D. eighteen hundred and fiftj-'nine, did, as such
Judge, as aforesaid, scandalousl}- exhibit an indecent solicitude for the
interests of the defendants in the suit of Foster vs. Fritz et al., mentioned
in the first Article of this Impeachment, unbecoming and highly disgrace-
ful to the character of a Judge, as it was subversive of justice.

Second. The said James H. Hardy, at the term of said Court, and on
the day and year aforesaid, in said County of Calavei*as, did, indecently
and scandalously, ami of his own motion, advise one S. W. Brockway,
then and there an Attorney of said Court, and of Counsel for defendant
in said last mentioned suit, to file a statement for a new trial in said
cause, (judgment having previously, at said term, been rendered against
the defendants therein,) and did then and there, prior to the filing of such
statement, and in advance of the hearing of said motion, promise said
Brockway that he would grant a new trial in said cause."

Now, if we come to the testimony in regard to this case, I shall sub-
mit to this Senate that it is impossible to imagine conduct more utterly
disgraceful on the part of a Judge, more utterly indicative of partiality,
of an undue desire to interfere in the administration of justice, than was
exhibited by Judge Hardy on this occasion.

Speaking of this case, at page four of the printed testimony, Mr.
Brockway says :

480

'( Q — Were you Counsel in a suit in which Gerrish Foster was plain-
tiff, and one Fritz, and others, defendants?

A. — I was Counsel for the defendants.

Q. — AYas that case ever tried before Judge Hardy, and if so, when ?

A. — Yes, Sir. It Avas tried before Judge Hardy, I think at the May
term, eighteen hundred and fifty-nine.

Q. — State all the circumstances that you know in relation to that
trial; particularly with regard to a motion for nonsuit.

A. — Well, the suit was one brought, if I recollect correctly, (if I am
allowed to state the contents of the complaint — I have not looked at it
since the trial,) the suit was brought to recover for money had and re-
ceived, and an account for a small sum for work, labor, and services.
On the trial of the case, they introduced, or offered to introduce, evi-
dence, under the count for money had and received, consisting of promis-
gory notes, negotiable promissory notes, I believe j and I objected to it.
I urged my objections very strenuously indeed."

He proceeds with the narration, at page seven, and says :

"A. — I Avas speaking of the evidence that was offered on the trial by
the plaintiff. Under the count for money luid and received, the Counsel
for the plaintiff' sought to introduce promissory notes — negotiated promis-
sory notes, according to my recollection of it — and also, I think, an
assigned account for work, labor, and services; at any rate, there was
an account for work, labor, and services, in it. To the notes I objected
very strenuously-, and urged my objections. The Court overruled the ob-
jections. 1 was considerably excited, and said something which might
be termed disrespectful, not very, however. In the case all the evidence
offered by the plaintiff Avas, I believe, admitted. The jury returned a
verdict for the amount claimed, I think; the proof showing some little
more than the amount claimed, interest and all. I Avent out of the Court
House A'ery much incensed at the ruling of the Court, as I had advised
my clients that I thought, as under our practice it was necessary to set
up the real cause of action, they could not introduce any promissory
notes as cA'idence of money had and received."

Xow, let us see what took place, and what happened on the part of
this dignified Judge, Avhom it is proposed to retain in ofiice; and Avhose
honest}' of purpose, and dignity of demeanor, this Senate is asked to in-
dorse.

"After the trial AA'as over, Avhile I was yet somewhat angr}^ Judge
Hardy came and spoke to me; took hold of my arm, and told me that 1

was a fool, or a d d fool, or some expression of that kind, in a friendly

way. To Avhich I ansAvered, that I might be, and somebody else might
be, or something of that character. Said I, 'Yes! somebody else may
be,' or something similar to that. And the Judge said : ' I knoAv Avhat
your clients Avant in that case, just as Avell as you do; they are friends of
mine. They want time.' I replied, 'Judge,' or 'Jim,' I think that
was the language, 'they had no right to introduce that evidence, and you
know it; I vras entitled to a nonsuit.' (In the course of the trial, I be-
lieve, I made tAvo motions for nonsuit ; one for a general nonsuit, the
other for a nonsuit as to the notes, so far as the notes, or account for
mone}^ had and recei\'ed, was concerned, as there Avas no evidence in re-
gard to it.) Said I, ' They had no right to introduce that evidence, and

481

jou know it.' 'Well,' replied Judge Hardy, 'my ruling is right.' He
said, 'Suppose a nonsuit was granted, they would sue and attach again;
your clients want time; a new trial is worth three nonsuits.' I replied,
'Yes; if 1 could get a new trial.' 'Well,' he said, 'file your statement,
and you will get a new trial,' or words to that effect; I think those were
the words."

Here, the Judge, just after having, after solemn argument, admitted
this evidence, just after having refused a nonsuit, comes ott' the bench
and tells the Counsel for the defence, •'! know what your clients want;
they want time. I have just pursued the right course to give them time.
We will hang this case up to dry, on the "motion for a nonsuit; I will
grant your people a new trial."

Well, what then ? Why, of course, if he granted a new trial on that
ground, then the pleadings would have to be amended, the case would
have to be continued, and away it would go to another and subsequent
term; and this litigation would be lengthened and perpetuated.

And, in defiance of justice, after he has decided, after solemn argu-
ment, that such evidence is admissible, and that a nonsuit ought not to
be granted, the Judge advises the very Counsel against whom he has
decided, that it is all right, that he will grant a motion for a new trial !
In other words, he says one of. two things : Either — "I decided rightly
against you, but, in spite of that, I will grant a new trial" — or, " 1 wil-
fully decided against you, to continue the case for a length}^ period of
time oil a motion for a new trial ; and at the expiration of that tiine, I
will give you a new trial." Then, of course, if he granted a new trial,
the plaintiffs would have to amend their pleadings, to which objection
had been made at that trial ; and the cause w^ould have been thrown
over, another term.

Now, if the testimony of Brockway is to be believed — and there is
not one shadow of evidence in any way to impeach him — I ask if it is
possible for any man who has any regard for a pure Judiciary in this
State, to vote to retain in oflice a Judge who stealthily makes such
promises to a party the minute after, or the hour after, he has decided a
case against him — and tliat, too, after full argument — and that, too,
without any new light on the question to change his opinion — and that,
too, when the whole transaction, from first to last, is corrupt and dis-
honest.

But let us proceed a little further with this testimony, and we get
further light on this same subject. We see some more dignified conduct
on the part of this Judge. After saying, " Well, file your statement, and
you will get a new trial," after having decided the case in that manner,
this follows :

"And when we got through the conversation, the Judge says to me,
'Now don't you tell anylnxl}^ of this ; if ever you tell anybody of this,
I will swear'it is a lie, and that I never told 3^ou so.' ''

He thinks, perhaps, he has promised a little too much ; that there may
be some little danger that Brockway may turn out to be a leaky vessel,
and that he may mention this to some person. And then, in order to keep
Brockway in proper subjection, and in a proper position, under him, he
says : " Now, don't you tell anybody of this ; if you ever tell anybody
of this, I will swear it is a lie, and that I never told you so." Elegant
61

482

lana;ua^-e ! Honest conduct ! High judicial demeanor ! Worthy a Judge
of the highest Court of original jurisdiction in this State !

But let us go farther :

"■ I filed the statement for a new trial. When it came up in Court,
Hardy told me not to argue it ; he said Lightner — who was a member of
the Assembly from our county the Avinter before — was one of the best
friends he had ; that he was willing to serve his friends when he could ;
and told me to file a statement, and I Avould get a new trial. Said he,
• You understand me now ?' Said I, ' Yes ; 1 suppose I do.' Then he
told me tliis in regai'd to not telling any one of it. He told mo not to
argue the case."

He had already decided it in his own mind. The very day that he de-
cided against Brockwa}', he had decided to reverse his judgment against
Brockway, and to give a judgment in his favor — or, at least, to grant a
new trial.

" When it came up for hearing in the Court, I declined arguing it. Al-
lan P. Dudley and Mr. Adams were ('ounsel for the plaintiffs. Dudley
said he would argue the case ; I said, ' Very Avell ; I Avon't.' Dudley said
he should. I said, ' I shall not ansAver it.' He leaned tOAA'ai'ds me and
said, ' Well, if you arc not going to ansAver it, I shall not argue it.' The
case Avas submitted. Subsequently, tOAvards the close of the term, a ncAv
trial Avas granted, and the case continued, without any opposition from
any one, I think."

NoAV, it Avill be observed — and this throAvs light on the matter — that
this question, Avhich Judge Hardy had once decided, after solemn argu-
ment, Avas never re-argued before him. He goes to the Attorney, and
says: " You need not argue it, because I shall decide it in your faA'or."
We find, by going a step further, that he goes to the Attorney on the
opposite side, and tells Jiim, " You need not argue it." To be sure, I
think he said to each : "I have told that felloAv that I Avas going to de-
cide it in his faA or, but I Avas only fooling him, and am going to decide it
in 1/our favor." I refer, on that point, to the testimony of Allan P. Dud-
ley, at page ninety.- Here is Dudlej-'s testimony of the Judge's conduct
in relation to that same case :

" Q. — State Avhether you had any conA'crsation Avith Judge Hardy Avhile
that motion for a ncAv trial AA'as pending, and if so, Avhat Avas it?

A. — I did. On the trial of the case, tlie right to offer promissory notes
to prove a count for money liad and received. Avas discussed. I intro-
duced scA'^eral Massachusetts authorities to shoAv, that under a general
count for monc}" had and received, I might offer in CAndence promissoiy
notes. The opposite Counsel objected. There Avas another point which
arose in the case — the right of proving by the original payee of the notes,
the indorsement and negotiation of them ; Avhich points Judge Hardy
decided in my faA^or, and 1 obtained a judgment. After the statement
for a new trial had been filed and settled, but before there Avas a final de-
cision from the bench on the question, Judge Hardy took me aside in the
street, opposite the Court House, in front of a cigar shop, kej^t by a man
by the name of Weil, and told me that I need not file any brief in that
case ; that my argument and my authorities adduced at the time the

483

question was argued on the trial, were sufficient; and that he was satis-
fied: that he should grant no new trial ; that he should let the judgment
stand. I was satisfied ; I filed no brief; there is none on file. When the
case was called for hearing of the laAV question, I made no argument;
and in a very short time after that — not more than two or three days, at
the outside, from the time he told me he should not grant a new trial —
Judge Hardy announced from the bench a decision granting a new trial."

Now, we call the attention of the Senate particularly to this branch of
the evidence, for the reason that an attempt has been made here to im-
peach the testimony of Allan P. Dudley. And I desire to call the atten-
tion of Senators to the fact that not onl}' did Allan P. Dudle}- have this
conversation with Judge Hardy, but, immediately on the granting of the
new trial, as he states, he went into the open street, and, in the presence
of other persons, denounced Judge Hardy for the deception which he
had practised upon him. He puts it entirely in the pOwer of the Defend-
ant to dis}jrove all this allegation; and that, too, not by witnesses at a
distance, but by witnesses who were here in this Court room, and ex-
amined upon this stand. Dudley says :

" I was offended at his decision, and went out of the Court House de-
nouncing the Court, undoubtedly, in very bitter terms ; stating publicly
what Judge Hardy had said to me in the street ; and Mr. Brockway,
Counsel upon the other side, and Mr. Adams, my partner, laughed at
me."

Now, here is a thing not got up with a view to this Impeachment.
Here is a transaction which took place some two years ago, in the May
term, eighteen hundred and fifty-nine. And Dudley, at that time, goes
out of the Court House into the open street, and denounces Judge Hardy,
for playing him false in this transaction; does so in the presence of
Brockway and of Adams. Mr. Adams has been examined as a witness
against us here, but not one syllable upon that subject did the gentlemen
dare to ask him. I say, then, that the silence of Mr. Adams upon that
subject is conclusive. Mr. Brockway, I believe, was examined by one of
the Senators ; was asked the question, and corroborated the statement
of Mr. Dudley upon the subject.

Mr. U'ujhy. — That was in Mulford r.s. Squires.

Mr. Camphcll. — That is so. 1 was mistaken in regard to Mr. Brock-
way's corroborative statement ; it was not in reference to this case.

At any rate, Ave could not introduce it as corroborative evidence until
they had assailed it on the other side ; and Adams, one of their witnesses,
one they rely upon as one of their strongest witnesses in some features
of this case, though examined, though here on the stand, is entirely
silent on the subject, and does not venture to contradict the statement
of Allan P. Dudley.

Now, when a man is manufacturing a falsehood, he does not manufac-
ture it in such a manner that there are witnesses present who can de-
nounce the falsehood and disprove his statement. Dudley would no
more have dared to venture to make that statement, if untrue, in the
presence of Brockway and of Adams, than he would have dared to tell
any transparent falsehood in the pi-esence of this Senate; because he
would thereby have put it in their power, at that moment and at that
instant, to damn his testimony forever, by disproving the assertion
which he made.

484

There is another significant fact in reference to this matter, and that
is, that General Williams, Avith all his ingenuit}' and ability, did not
venture, and has not ventured yet, to attemjjt one single syllable of cross
examination of this witness (Dudley.) He did not think it safe to cross
examine him. The witness told his story with i-emarkable clearness
and distinctness, and in a most forcible and direct manner. And not one
question in regard to these transactions in reference to which he has
testified, came, in the way of cross examination, from General Williams,
or from his client ! I say, then, that the proofs upon this subject are
irresistible, that Judge Hardy improperly interfered in that litigation ;
that his mind was made up, from the commencement of the case, as to
the course he was to pursue ; that he did pursue that course, from begin-
ning to end ; that he made statements to Erockway, which ought forever
to damn his judicial character; that he played a sort of game of hide-
and-seek iK'tween the parties, telling each of them that he Avas going to
decide in his favor;, and that he then carried out his original intention,
in favor of Brockway.

Now. it is said, on the other hand, that it is alleged in the testimony
of Mr. Brockway. that he (Hardy) stated that Lightner was one of his
best friends, and that Lightner, when called on the stand, avers that he
had but slight personal acquaintance with Judge Hardy. Very well.
Is there any inconsistency in this, when we go on to examine the rela-
tions betAveen Lightner and Hardy? Why, Lightner had breathed the
breath of oflicial life into Judge Hardy; had been the earnest advocate
and supporter of the bill creating that District of which Hardy was
made the Judge. He had rendered Hardy, thereb}', the most essential
service. He liad placed him in a })Osition Avhich he might have adorned;
b«t which, I fear, the testimony in this case shoAvs he has most sadly
disgraced.

I pass from these Articles to the next. Article Three is as foUoAvs :

'• ARTICLE III.

On or about the first day of April, eighteen hundred and fifty-nine, a
certain case, Av^herein The People of the State of California, on the rela-
tion of the Attorney-General of the State, AA'ere plaintiifs, and one Hill
Squires Avas defendant, Avas pending in the District Court of said Six-
teenth Judicial District, in and for the County of Calaveras aforesaid,
before the said James H. Hardy, District Judge — at AA'hich time, in the
Court House, in the Count}' of Calaveras, said cause came up for hear-
ing and trial before said Hardy, as such Judge, and in which cause, after
the hearing and trial thereof, the said James H. Hardy, as such Judge,
at the count}- aforesaid, on or about the first day of June, A.D. eighteen
hundred and fifty-nine, did, unlaAvfully, wilfully, corruptly, and fraudu-
lently, render judgment in faA^or of said Hill Squires, the defendant in
said cause."

Article Sixteen is to the same purport, and can be considered Avith it.
It is a mere amplification of the Third Article, and reads thus :

••ARTICLE XVI.

On or about the first day of April, eighteen hundred and fifty-nine, a
certain case, Avherein The People of the State of California, on the rela-
tion of the Attorney-General of the State, Avere plaintifi's, and one Hill

485

Squires was defendant, was ponding in the District Court of said Six-
teenth Judicial District, in and for the County of Calaveras, aforesaid,
before the said James II. Hardy, District Judge, at which time, in the
Court House, in the County of Calaveras, said cause came up for hearing
and trial before said Hardy, as such Judge, and in which cause, after the
hearing and trial thereof the said James H. Hard}", as such Judge, at the
county aforesaid, on or about the first daj" of June, A. D. eighteen hun-
dred and fifty-nine, did, unlawfully, wilfully, corruptly, and fraudulently,
render judgment in favor of said Hill Squires, the defendant in said
cause, for the unlawful and corrupt purpose of securing his nomination
and election to the office of District Judge of the Sixteenth Judicial Dis-
trict of said State, at the general election, A. D. eighteen hundred and
fifty-nine."

Now, it is true that this charge rests entirely upon the testimony of
Allan P. Dudley; except that there is a kind of corroboration, which,
in a moral point of view, is of immense importance. Let us read the
histoiy of it, and let us consider the internal evidence of the truth of
this story — whether it is one that a man is likely to have invented —
whether it would probably have entered into the brain of the most inge-
nious deviser and manufacturer of falsehoods.

Dudley says, at page ninety :

"A. — Mr. D. L. Mulford was Sheriff of Calaveras Count}'. In the winter
of eighteen hundred and fifty-nine, the Legislature passed an enactment
dividing tlie office; giving the collection of taxes and licenses to Town-
ship Collectors. A man bj^ the name of Hill Squires was appointed
under that enactment of the Legislature the Collector for our township,
(number six.) and claimed the right to collect under tiiat appointment.
The question arose between Sheriff Mulford and Mr. Squires, as to who
should collect. My partner and Mr. Brockway acted as Counsel for
Mr. Mulford in an agreed case. Mr. Higby, District Attorney, I think,
acted for Squires. I was never consulted ; I never acted in it ; and,
indeed, my office never received a picayune, through my partner or any-
body else, for the services. It was a volunteer matter, to settle the
question. The case Avas submitted to Judge Hardy for a decision; and,
after its submissioii. Judge Hardy came to me, and asked me to take a
walk with him. I walked with him. If I should tell you where we
walked, it would be no matter of interest, but we walked out of the
Town of Mokelumne Hill ; and Judge Hardy took his decision, which he
had drawn up in the case, from his pocket, and showed it to me.

Mr. Willirnns. — You mean his opinion ?

A. — His decision; his judgment. He told me he had decided the case
in favor of my office ; my partner, Mr. Adams, being, as I have stated,
in the case. He said he did not know how he could get over one deci-
sion, which he referred to. There were two cited, (The People vs. War-
ner, 2 Denio, page 272 ; and 2 Cranch U. S. Sup. Ct. Kep., the page I
do not recollect,) in favor of Mulford.

Mr. Williams. — What is the other case ; that in 2 Cranch ?

A. — I do not recollect. The principle was, that where an office was
established by the Constitution and law, no new office could be created
by which a portion of the duties of that office are detached during the
term for which the person holding it was elected ; which principle is
stated in those tAVO decisions. Judge Hardy said he did not know how
he could get over them ; that he was afraid the decision would be an

486

unpopular one, because this Township Collector Law was a very popular
law. In that opinion which he expressed, I concurred.

3{r. Williams. — You concurred in which opinion ? That in regard to
the popular question ?

A. — Yes ; in regard to its being an unpopular decision. I told Judge
Hardy it would undoubtedly be unpopular. (Judge Hardy and myself
were of the same j^olitical party, and always have been. I vote the reg-
ular ticket, and work for my political friends.) Judge Hardy wanted to
know, if I recollect his precise language, how in the devil he should get
over these two decisions, and decide the other way. I told him if he
would allow me I would write out something that would fix that very
quick. I did go and write out something in avoidance, and gave it to
Judge Hardy. And in a morning or two after tiiat, he filed a decision in
favor of Squires and against Mulford ; adopting quite the same precise
language, as far as that part referred tp was concerned, and trimming
the rest of the decision to suit that which I had written out. May I
state, in confirmation of this, that the Counsel on the oj)posite side, (the
side of Mulford,) charged me with it?

Mr. Williams. — Yes ; if that will ease jonr conscience at all.

Witness. — My conscience is not at all annoyed, Sir. Mr. Adams, my
partner, charged me with it, and I admitted it. Mr. Brockway charged
me with it, and I admitted it. Men came to me and told me that Judge
Hardy had said he had decided the case in favor of Mulford, before that
time ; and wanted to know what the cause of it was. I can name those
men.

M?: Williams. — I would rather have those men swear to it them-
selves.

Mr. Campbell. — I waut the names.

Witness. — lean name one man; Douglas of Mokehimnc Hill, who was
then acting as Deputy. There was another man, by the name of Pal-
mer."

He says, that at the time of the occurrence, 3[r. Adams charged him
with having in this manner changed Judge itardy's decision. Now, is
it true, or not true ? If it is not true, would not Mr. Adams have been
called on to rebut it ? Why, he was in Court ; a witness, they say, of the
utmost credit and the highest reliability — and yet not one word do they
dare to ask him on the subject. Mr. Brockway says that ho charged
Dudley Avith it at the time.

Xow look at this thing. Is it a thing likely to happen in any District
where judicial corruption and judicial favoritism do not prevail? Let
me ask you whether, where Judges are honest, decent, dignified in their
demeanor, and upright in their behavior, it is a common thing for re-
spectable lawyers, the moment the Court renders a decision, to believe
that it has been done through the personal instrumentality and influence
of some particular person ? I ask you whether, if Judge Hardy's oflS-
rial conduct had been of such a character as not to give rise, and credit,
::nd belief, to such suspicions, any such thing would have been likely to
'( ake place ?

I ask, again, is it likely that any man w^ho desired to injure another,
\^ould or could invent, out of whole cloth, without one shadow of foun-
dation in fact, such a story as that which has been clearly and distinctly
told by Allan P. Dudley on this subject? I am certain there is not a
lawyer upon the floor of this Senate, accustomed to consider, examine,
and weigh evidence, who will not at once see the almost absolute impos-

487

sibility of any human bein^ being gifted with such a degree of imagina-
tion, and such a faculty of creating something out of nothing, giving
details of the most horrible character, disgraceful and degrading to the
Judge, unless there was some foundation for the story. Do j^ou believe
it possible, or probable? lias it ever come within the range of your
experience? When men are telling falsehoods, usually they color facts;
or else they make up some sort of simple statement which cannot be
easily met or contradicted. But when you come to examine the details
of this stor}', from beginning to end ; when you find that at the very
time of the occurrence, his agency in the transaction is charged upon the
party who hero narrates the story — I ask you whether it is probable
that he invented it ?

Now, so far as the credit of Mr. Dudley is concerned, I will, once for
all, say this: I do say, that, in my judgment, this transaction, and his
part of it, were alike unwarranted. I have no excuse to offer for his
conduct in that ])articular. It was not professional ; it was not right ;
it was not fair towards his client. lie probably considered, that, as he
was acting gratuitously, and without a fee, and as the case would neces-
sarily- go to the Supreme Court for adjudication, it was perfectly imma-
terial which way the case should be decided in the District Court; and
that by the decision being rendered in favor of the plaintiff, and against
his client. Judge Hardy would be enabled to obtain additional ]X)pularity
for the ticket which they were about to vote. Being himself an ardent
j)olitical partisan, connected with Judge Hardy in that manner, Dudley
[)robably thought — "Well, I can do my client no harm. This case will
go to the Supreme Court, anyhow, and there I shall be all right." That,
(loubtless, was his process of reasoning. I do not justify it; I consider
it wrong, and that it was his duty, in the first instance, as in the last, to
procure a decision favorable to his client, and to object to any such
change being made.

And there is another circumstance in the balance of probabilities in
favor of the truth of Dudley's inirration, namely: That men do not in-
vent stories which are discreditable to themselves, for the purpose of
injuring another. If Dudley had desired to invent something for the
injury of Judge Hardy, he would have invented something that would
have left his own skirts entirely clean ; and the mere circumstance that
his conduct was such as could not be justified in a professional man, is a
circumstance tending strongly, in one point of view, to corroborate the
truth of his statement. Take that, in connection with the circumstance
of its being charged upon him at the time, and the belief existing among
members of the bar that sucli a course had been pursued, and it is a cir-
cumstance strongly in corroboration.

I shall now proceed, gentlemen of the Senate, to the consideration of
several of these Articles together. They are all connected with the
same transaction. They all' arose out of one litigation in that county ;
and the evidence belonging to each of these charges links and combines
itself with the evidence in relation to the others to such an extent, that
it is necessary to consider them all en mmse. I will take them up in
the chronological order, and follow the proceedings through, step by
step, from the commencement to the termination.

1 refer, in the first instance, to Article Sixth of the original Articles.

Mr. Williams. — Which case are you now alluding to?

Mr. Campbell. — The case of Mercier vs. Denny.

Senator Perkins. — That is not Article Sixth.

Mr. Campbell. — There are several Articles in which Mercier and Denny

488

figure. And. in tracing out this litigation. I shall commence with Arti-
cle Sixth; because that is the one inVhich the fii-st transgression, as we
charge, was committed. Article Eighteen is to be taken in connection
with it.

• ARTICLE VI.

That, at the August term. A. I), eighteen hundred and sixty-one. of the
District Court ofthe said Sixteenth Judicial District, in and for the
County of Calaveras, a certain cause was pending and at issue in said
Court! the said James H. Hardy being then and there Judge, as aforesaid,
between one E. Mercier and another, plaintiffs, and W. C. Denny and
othei-s. defendants, and that on thetifteenthday of said August, a motion
was there made by the plaintiffs in said case to change the place of trial
of said case to some other county in said State of California, which said
motion was made at the Court House in said County of Calaveras, where
the term of said Court was being held by the said James H. Hardy. Dis-
trict Judge, as aforesaid, and that the said James H. Hardy, then and
there, wilfully, unlawfully, and corruptly, refused to decide, and abstained
from deciding, the said motion.

ARTICLE XVIII.

That, at the August term. A. I), eighteen hundred and sixty-one. of the
District Court of the said Sixteenth Judicial District, in and for the Count}'
of Calaveras, a certain cause was pending and at issue in said Court, the
said James H. Hardy being then and there Judge, as aforesaid, between
one E. Mercier and another, plaintiffs, and W. C. Denny and others,
defendants; and that on the tifteenth day of said August a motion was
there made l>v the plaintiffs in said action to change the place of trial of
said case to some other county in said State of California, which said
motion was made at the Court House, in said County of Calaveras, where
the term of said Court was being held by the said James H. Hardy,
District Judge, as aforesaid, and that the said James H. Hard}', then and
there, wilfully, unlawfully, and corruptly, refused to decide, and ab-
stained from deciding, the said motion, for the unlawful and corru])t pur-
pose of influencing and securing the votes of certain naturalized citizens
residing in Calaveras County, and certain voters therein residing, at the
then next ensuing general election to be held in this State, to the sup-
port of the candidates of a certain political party commonly known as
the Breckinridge party, of which party the said James H. Hardy was
then and there a member."

The first testimony in relation to this subject-matter, is that of A. P.
Dudley. The evidence will be found at page ninety-two of the printed
testimony. Dudley says :

'• There was a motion made for a change of venue, on the fifteenth
day of August last, during the August term of the Court, as appears by
the record. The election came on in September. After that motion had
been submitted, at the August term, I inquired of Judge Hardy if he
was going to grant a change of venue in the case, as I was opposed to a
change of venue, and was upon the other side. Judge Hardy told me
that he had considered the subject, and was not going to grant a change
of venue; but that he was not going to announce his decision at that
term of the Court — that it would not do ; that it would offend the French,

489

and they were, if not disturbed, going to vote the Breckinridge ticket.
And. therefore, he should not announce the decision at that term. And,
of course, in that I concurred."

The Judge and the Counsel — alike active partisans — to secure the French
vote, concurred upon that subject I Xow, it will be urged that this
stands upon the testimony of Allan P. Dudley alone, and the opposite
Counsel will attempt to discredit him. I answer, that when you take
this charge in connection with the surrounding circumstances, and in
connection with other charges relative to this same suit, which are sus-
tained bj' the undoubted evidence of a number of respectable witnesses,
you cannot come to any other conclusion than that the entire conduct of
Judge Hardy, throughout this litigation, from first to last, has been char-
acterized by injustice and favoritism of the grossest description.

What is this? A motion for a change of venue, presented at the mid-
dle of the term, at a time when it might have been decided at once, as
such motions usually are. They are not usually kept any length of
time under advisement. There is nothing in them, ordinarily, that can-
not be decided upon the spot, and in a few moments. Yet you find this
case continued over to another term ; and then, when you follow up the
case, and see what happens next, you find that it is on the calendar at
the February term. The motion is decided at the end of the November
term — the thirtieth of November — about the last day of the next term.
This motion, which ought to have been decided in the August term, is
kept over, not only through that term, but through the whole vacation
of the Court, and through the whole of the next term, up to within a
day or two of the close of the session, when the parties have no oppor-
tunity to prepare for trial. It is a most significant tact, in corroboration
of Dudley's testimony, that this case is kept back in this manner, and
thrown over to the end of the November term. And what do we find
that the minutes of the Court show ? There is no doubt or dispute in
reference to that point.

We find the same case coming up at the February term. It is set for
trial on the seventeenth day of February. Now. let us see what shifts,
what artifices, what dishonesty, is practised, in relation to the continu-
ance of that case, during the February terra, and to its termination.

The seventeenth of February came, and the cause is about to be called
for trial, or is called. The time has arrived for its trial. The rules of
the Court are. that when a cause is called for trial, it shall be too late to
make any amendments to the pleadings. Judge Eobinson. Counsel for
the plaintifls. who tries causes, but does not draw pleadings, and. there-
fore, is not very familiar with matters of ordinary practice, gets up,
and. without any paper, or anything of the sort, proposes to amend his
pleadings. Well, that is objected to. The defence think that they are
entitled to judgment upon the pleadings as they stand, and they resist
the motion to amend. What does Judge Hardy do ? He does not say
to the plaintitfs. as he ordinarily would do. •■ Why. gentlemen, you have
had plentv of time to make this motion, before." Well, he might have
got over that, and said. •• Well, to be sure, the error was not discovered
by one of the Counsel until a day or so ago." But then, what happens?
Whv. it was the easiest thing in the world, in order to try the cause at
that tei-m — the cause which Judge Hardy has been delaving throughout —
to tell the other party, •• Well. now. if you object to the amendment, you
must show cause to-morrow, or at any time during a limited period."
62

490

Or, he might have continued the cause, to give statutory notice — which
is live days — of intention to move for an amendment.

But what does he do ? The Court is to adjourn at the end of the
month. Instead of giving this statutory time, he leaps over all barriers,
and gives ten days instead of five ; and the result is, the cause goes off
to the twenty-seventh day of February — within three days of the end of
the term.

And now let us see, when we come down to the twenty-seventh of Feb-
ruary, what the course and conduct of Judge Hardy is. And this does
not rest upon the testimony of Allan P. Dudley, nor does it rest alone
upon tiie testimony of ]a\v3'ers in the ca.se, but is established by testi-
mony which no attempt has been made to overthrow.

The twenty-seventh of February approaches; and a day or so before,
the Judge commences his usual practice of approaching Counsel, and
does not want the case tried. I refer you to the testimony of William L.
Dudley, i)agc fifty-nine. Speaking of this case, he says :

" The case was postponed until the twenty-seventh of February, as I
understood, for the purpose of hearing the motion to amend the replica-
tion. It had been previously set down for trial on the seventeenth of
February. On the morning when the case was called for trial, Tod Rob-
inson came in with Mr. Geoi'ge, to make his motion to amend the repli-
cation.

Q. — State what happened between you and Judge Hardy, if anything,
between the seventeenth and twcnty-seventlt of February, at any time
between those dates.

A. — Yes, Sir. A few days — the precise number I do not recollect — a
few days before the motion came up for argument, Judge Hardy came to
me in the Court room, after the Court liad adjourned, and said that he
wanted to ask a favor of me. Said I, 'Certainly, what do you want?'
Said he, ' I have got to have time, and I have got to have it in this case
of Mereier vs. Denny.' I asked liim what he meant by saying that he
wanted time in this case. He said he wanted to avoid either the trial of
this other cause, or the hearing of the motion in regard to it — I would
not be certain which. Said I, ' Very well.'. Said he, ' I want you to
consume as much time as you can in your case, so as to throw this case
of Mereier vs. Denny over the term.' "

He had thrown it over terms, pretty well, before. He had delayed
deciding the motion for change of venue, from the fifteenth of August
to the tbirtieth of November. In that way he had kept the case off the
calendar for two terms. The third term, he delayed it again, as is
proven here, up to within three days of the end of the term — in order
to enable one of the parties to file an afiidavit to amend the replication;
and then, after all, finding some cause to fear it might be reached before
the end of the term, he goes to W. L. Dudley and asks him, as a matter
of favor, to consume as much time as he can in a case he is then trying,
and in other cases, for the purpose of throwing this case of Mereier vs.
Denny over the term.

" I told him that I would do as he desired, and I did do as he desired."

Mr. Dudley then states the cause that was then on trial ; and that he
was associated with Judge Robinson in the case. He goes on to say,
that, after that case was over, the case of McDermott vs. Higby came

491

■up; and that he was Counsel in that case. And he then narrates those
■ proceedings concerning which so much has heen said in this Court room,
concerning the plea in abatement and his conversation with Judge
i Hardy. I will, at this time, read just so much of it as relates to this
; subject. Pages sixty and sixty-one.

[ "In the progress of the trial lie made another ruling, and after we left
I the Court room, I mentioned the fact to him. Said'l, 'You hold this
I plea in abatement not true, and, if that ruling is good, your ruling in
regard to the answer cannot be proper.' 'Damn it,' said he, 'Bill, what
dilfei'cnce does it make to you? Your plea in abatement is good.' ' Yes,'
said I, 'but I shall have to go to the Supreme Court.' Said he, 'Have I
not told 3^ou that I have got to have time. Don't you understand me V
He said that this case must consume the balance of the time — Friday
and Saturday. To this I remarked that it was very well for him to have
time — but that it was very expensive to me and my clients. He said
nothing more after that, except tbat he wanted to avoid hearing the
motion in the other case, and that my plea in abatement was good — that
it made no difference to me what bis rulings were in the case of McDer-
mott against Higby."

Now let us refer to the testimony of Mr. Denny, who was a party to
the suit of Mercier v.^. Denny, upon this subject.

Perhaps an attempt will be made to show that Judge Hardy's extreme
solicitude in reference to that matter arose from the fact that something
had transpired which rendered it improper for him to try that case.
The answer to all this, in the first place, is : That we find that from the
commencement to the determination of this whole matter, delay in this
suit lias been Judge Hardy's prominent object ; and that the records of
his Court, as well as the testimony of the witnesses who have been
examined, show that to be the case.

But, here is the testimony of Denny ; which discloses the most singu-
lar state of facts in the world, and which, if there were any doubt left
in regard to the motive and the conduct of the Judge, entirely obliterates
it, and shows, clear as the sun at noonda}^, that his motives were im-
proper. It seems that Mr. Denny's Counsel had informed him that Judge
Hardy wanted this case over ; and had advised him to let it go over —
and why ? Because he was afraid of the bench ; because in the Sixteenth
Judicial District it was somewhat dangerous to run counter to the
whims, will, or caprice, of the presiding Judge ! And it is because the
Attorney, who was asked for these little favors at the expense of his
client, finds that perhaps the interest of his clients will be subserved, in
the long run, by granting the favor asked ! In other words, that he is
at the mercy of that so-called jwlkkd discretion, which, as the testimony
shows, Judge Hardy always has at the service of his friends ! Now,
here is the "testimony of Denny — to be found at page one hundred and
sixteen :

<' Q. — State whether you had any conversation with Judge Hardy in
relation to his refusing to try that case ? If so, state when and where
it occurred, and what it was.

X. — I had a conversation with Judge Hardy during the last February
term, in Leger's saloon. I think it was on the last day of the term.
Judge Hardy was in the saloon, talking to a friend of mine by the name
of Eobinson. While they were talking there, he beckoned to me, or

492

Eobinson beckoned to me — I don't recollect now, distinctly, which — to
come where they were. I went to them, and Judge Hard}- told me that
a certain man had been to him, and told him that I had been told that
he had requested to have time in my case."

Judge Hardy has heard that his application to Counsel has come to
the ear of the client.

" I asked him who was his informant. He said that he Avould not tell
who his informant was, imless I emphatically denied being told so. I
denied it; having been told by Mr. Dudley to keep it to m3-self."

Dudley, of course, had communicated the matter to his client, because
it was necessary in order that his client might appreciate the position
in which he stood in reference to the Judge; and that, if he did not
yield to this judicial whim and caprice, by postponing the case, it might
endanger his interests. Therefore, Dudley had communicated it to him.
But still, Dudley Avas not desirous that Hardy should know that he had
told his client.

"I denied it; having been told by Mr. Dudley to keep it to myself.
Judge Hardy then told me that he knew that I had been told of it, and
he acknowledged having asked for further time in my case. I asked
him for his reasons for making such a request. Ho said that at that
time he would not give me his reasons. But, after a little more conver-
sation, he said, that within the course of the last five or six days there
had some information come to him, Avhich made him a partial Judge in
the case ; and that he would tell me more after the case was decided.

3Ir. Eihjcrton. — Go on.

WitncKs. — [Continuing.] And after a little more conversation, he told
me that which drew the remark from me. that I did not think a Judge
had a right to have any such knowledge from either party."

Denny, a litigant in the Court, has a far more accurate and distinct
idea of the duty of a Judge than the presiding officer of the Sixteenth
Judicial District.

Judge Hardy then puts a supposed case :

*' He then expressed himself like this : He asked me, if I was a Judge,
and a case was pending before me, and. while the case was pending,
I was to find out that one of the parties was a damned rascal — if, under
such circumstances, I could sit and try that case impartially. I asked
him if he had found out that such was the fact in the case in which I
was interested. I do not know whether he told me distinctly that he
had, or had not; but he intimated that he had. I asked him Avhether it
was me or my Counsel that he had found out to be such a person as he
had represented. He said. Xo. But he said that he did not want to try
the case ; that he was partial against one of the parties in the case, and
was therefore not fit to try it ; that Judge Creanor would be at his Dis-
trict at the next Court, and that the case could be tried before him.
That was about all the conversation.

Q. — Did he state how he had found out that one of the jjarties was a
damned rascal ?

A. — No, Sir, he did not; but he stated that he had found it out, that
he was partial on that account, and that he did not want to try the case
on that account.

493

Q. — Has that case ever been tried ?

A. — Xo, Sir.

Q. — I am instructed to ask jou whether anything was said between
v^ou and Judge Hardy, on that occasion, on the subject of bribery?

A. — I thiniv that I made use of an expression something like' this. I
ihink that I said to Judge Hardy : • Then I am to understand, by what
you. have said to me, that you have been offered a bribe in this case ?'
He made no answer to this, but merelv shrugged up his shoulders, like
this :

[Witness imitates the motion of shrugging one's shoulders.]

Q. — I ask you, distinetl}-. Did Judge Hardy, or did he not, in any
manner deny that he had been offered a bribe in the case ?

A. — I do not know that he denied or admitted it, either the one way
Or the other. He merely shrugged his shoulders, and said that he would
have no more to say about the matter to me, until after the case was
over."

Tliat is the statement of Denny on this subject. And I ask you if it
is not proven that Judge Hardy had been improperly interfering in that
litigation that was before him; and whether it is not shown that, af-
ter he had discovered that the client against whom he had interposed,
had discovered the fact of his interference, he sought, by the silliest,
flimsiest, falsest, of excuses, to shirk the responsibility of his misdeeds,
or to give an air and coloring to his conduct, which one moment's inves-
tigation Avill not permit it to bear? Look at his excuses; and, first of
all, look at the time when they are given. The last day of the February
term — a very signiticant period — the day when Higby's affidavit was
filed against hiju — when the evidences of gathering suspicion and dis-
trust were accumulating Avith fearful power around his judicial head —
when Attorneys and clients began to talk to one another in tones not
easily misunderstood, concerning his partiality, and favoritism, and in-
justice, upon the bench — when, in his own Court, he was publicly
bearded with an affidavit charging him with partiality; at that time he
sought to smooth down, apologize for, and excuse conduct, which never,
under any circumstances, could be justified or excused in any judicial
officer.

And what is his excuse ? He, first of all, feels around and makes cer-
tain, from Denny's manner — because Denny denied it — until he assures
himself that Denny is aware of his improper interference in Denny's
suit. And he goes to him; and the pretext, first of all, is, that he will
not give his reasons until after the case is determined. He then states :

" That within the course of the last five or six days there had some
information come to him, which made him a partial Judge in the case;
and that he would tell me more after the case was decided."

What, in the name of Heaven, was this information ? Has he devel-
oped it here ? Has it come to light anywhere, or to the ears of any
person living, up to this moment ? Who was his informant ? How was
it that the equal mind, so fair and unprejudiced nnder ordinary circum-
stances, became suddenly swayed by something it has heard ? Is there
any explanation ottered here ?

Let ns follow the testimony. A man might say, " Well, possibly an
attempt had been made " — it suggested itself to Denny's mind that some
attempt might have been made — " to bribe him." He had become a par-

494

tial Judge in the case within five or six days ! After de]a3nng it for
month alter mouth, over and over again, within fi\:c or aix days some-
thing happens! What was it? AVas it briberj'? AVhy, gentlemen, if
such an attempt had been made — if any suitor in his Court, or any At-
torney practising before him, had offered him a bribe, what was his duty ?
He had power, as a Judge, in the first pkice, to punish the party so of-
fending, for a contempt. He had not only that power, but such an at-
tempt Avas a high offence under the criminal law, for which the severest
punishment could be inflicted upon the party offending. It was his duty
as a Judge, it was his duty as an honest man. it Avas his duty by eA'ciy
high and solemn consideration of public justice, to inform a magistrate
in relation to the attempt to bribe made, if one had been made. Does
he do these things? Does he ever assert to any human being that any
such offer had been made ? Would an honest Judge have locked such a
thing as that up, a secret in his bosom, there to rest until he Avas im-
peached, and, even then, not divulge or develop it ? I ask you whether
conduct like that is consistent with innocence ? or, Avhether it does not
stamp him, in the deepest and clearest manner, Avith an air of guilt,
which no ingenuity of Counsel, and no effort in the shape of argument,
can throw off?
J5ut let us follow him :

"He asked me, if I Avas a Judge, and a case Avas pending before me,
and Avhile the case Avas pending, 1 Avas to find out that one of the parties
was a damned rascal — if, under such circumstances, I could sit and try
that case impartially. I asked him if he had found out that such was
the fact in the case in Avhich I was interested. I do not knoAv whether
he told rac distinctly that he had or had not; but he intimated that he
had. I asked him whether it Avas me or \\\y Counsel that he had found
out to be such a j^erson as he had represented. He said, No. But he
said that he did not Avant to try the case; that he Avas partial against
one of the parties in the case, and was therefore not fit to try it."

My answer to that is : That there is not a Aveek Avhich transpires in
this tOAvn, Avherc Judges do not sit and try cases of parties Avhom they
knoAv to be rascals. I haA'e yet to learn that it is a disqualification for
a Judge to sit upon a bench — that he has private knoAvledge that one of
the parties before him is a rascal. All that he has to do, is, to sit upon
the bench, give his rulings upon the evidence that is offered, and charge
the jury upon the law of the case. With the facts of the case, he has
nothing to do. And it is the first time in the judicial history of the
world, that it has been supposed that the fact that a Judge believed a
part}' in a cause before him to be a dishonest man, Avas considered as a
disqualification from trying the cause in Avhich that person Avas a party.

But Avho Avas the dishonest man ? Will he tell us noAV ? To this hour,
and to this moment, he remains silent. When he is directly asked, by
Denny, the question on the subject of briber}', he has not any ansAver to
make ; but ho merelj' shrugs his shoulders. He Avill not commit himself;
he will not make a charge openly against one party or the other; he Avill
not go before a magistrate; he Avill not punish the contempt — if any
such thing has been attempted tOAvards the Court of Avhich he is Judge.
He disregards alike the dignity of a Judge and the self-respect of a man,
and he keeps the secret nestling in his bosom. I ask 3'ou, gentlemen, to
take these pretexts, and put them together Avith the entire history of
this litigation, from beginning to end ; and the inference is irresistible,

495

that the whole course and conduct of Judge Hardv, from the commence-
ment of that suit to the present time — for it still remains suspended, like
Mahomet's coffin, between heaven and earth — has been one of clear, dis-
tinct, unmistakable, and gross, partiality, without one palliation or one
excuse.

The next charge, gentlemen, to which I propose to proceed, is the case
of Robinson is. Leger.

And here, too, is a singular slate of things for a judicial officer. This
Kireorge Leger keeps a hotel, a bar room, at Mokelumne Hill. It comes
to be a favorite stamping-ground of the Judge of the Sixteenth Judicial
District. His time, during the intermissions of the Court, was spent in
playing cards and drinking with those in the bar room there — if the wit-
nesses are to be believed.

The charge is as follows :

"article v.

At the February term, A. D. eighteen hundred and sixty-two, of the
District Court of the said Sixteenth Judicial District, in and for the
County of Calaveras, a certain case was pending and at issue in said
Court, the said James H. Hardy being then ancl there Jutlge thereof,
as aforesaid, between J. R. Robinson and others, plaintiffs, and one George
Leger and another, defendants, and the said James H. Hardy, acting as
such Judge, then and there did, unlawfully, wilfully, and corruptly, con-
tinue and cause to be continued, the said case to the next term of said
Court, with intent to hinder, delay, and defraud, the plaintiti's in said
suit."

Now, we have, upon that point, the testimony of William L. Dudley;
page sixty-two. All he says about it, is this :

-' Q. — Do you know anything about the case of Robinson against
Leger ?

A. — I know that there was such a case, Sir.

Q. — Well, do you recollect when it came up before Judge Hardy the
last time ?

A. — It came up the last February term.

Q. — Did you have any conversation with Judge Hardy in relation to
it?

A.— I did, Sir.

Q. — State what it was.

A. — I was once in the case, but withdrew from it. Judge Hardy re-
quested me to see Mr. George, and ascertain if he (Mr. George) would
consent to a continuance of the case. Judge Hardy said that the plain-
tiffs in the suit were bound to recover something when the case came uj)
for trial, and that the longer it was put off, the better it was for them,
(the defendants.) Judge Hardy wanted me to see Mr. George, and ask
him not to light the motion any further, but to consent to an adjourn-
ment."

It appears that Mr. George had pretty strenuously resisted it.

" Q. — Did Judge Hardy assign any reason why it would be better to
put the case off?

A. — He said that time might wear the case out ; but that the plaintiffs

496

were certain to recover something wlien the case came on trial — the only-
question being as to the amount. I went to Mr. George accordingly, and
stated to him that he had better consent to a continuance of the case ;
and I also told him at that time that it Avas Judge Ilardj^'s desire to have
the case postponed."

JS'ow observe, gentlemen, here is a statement of Dudley's, which might
be contradicted by Mr. George, if it were not true. Dudley sa^'S : that
at the request of Judge Hardy, he went to Mr. George, to use his influ-
ence Avith him in favor of a continuance; and that he so communicated
to Mr. George, and told him that it was Hardy's request that the case
should be continued.

Now, let me ask you, .Senators, Avhether you are disposed to sanction
this perpetual interference of a Judge in the conduct of causes before
him ?

NEWS OF A FEDERAL VICTORY.

At this point in Judge Campbell's argument, a tremendous cheering
was heard troin the Hall of the Assembly, creating much commotion and
excitement in the Court, as to its cause. Judge Campbell attempted to
proceed, but the confusion rendered it useless, despite the efforts of the
Presiding Officer to preserve order. Finally, Senator Crane rose and
said :

" There is a great disturbance here, and I may as well announce the
cause of it, and then we can go on. I am informed that the Monitor has
sunk the Merrimac. in Hampton Roads. [Tremendous cheering.] We
shall probably hear something better in a short time."

ARGUMENT RESUMED.

Mr. CamphdI. — You observe, then, Mr. President and Senators, that Mr.
George, the personal friend of Judge Hardy, who has been about this
lobby during this trial, and who could have been called to contradict
this statement of Dudley's, is appealed to by the Judge — if the statement
is true. The Judge sends messages by one Attorney to another, begging
him to pursue a particular course in regard to a case, for the reason that
that course is in favor of the man in whose whiskey shop he (the Judge)
spends his time I Solicits it, in order that the evil day may be post-
poned— as the plaintiff is sure to recover, and it is merely a question of
time !

I ask whether there is a man within the sound of my voice who be-
lieves that such conduct as that should be tolerated and sanctioned by
Senators on their oaths ? \Yhether the Judges of our Courts are to go
about pleading with Counsel practising at their bar as to the regulation
of the cour.se of proceedings — begging that this case may be tried, and
that not tried — urging Counsel to spend so much time in the summing
up of a particular case as to occupy the balance of the session of the
Court, in order tliat some other case, in which the Judge feels some un-
knoAvn, undefined interest, may not be heard ?

I ask Avhether there can be a doubt, or a shadow of doubt, of this
interference? Here Avere the men to contradict the statement ; here
was Mr. George, around the lobbies of this place, ready to contradict it,
if it Avas untrue that he AA-as appealed to to consent to continue the case,
and was told that it was the earnest request of Judge Hardy. And yet
there is no attempt to explain, to contradict, or to show any reason !

497

There is no pretence of bribery bere ; notbing of tbe kind. But Judge
Hardy tinds tbut liis friend Leger, wliose wbiskc}' be drinks, ut Mokel-
nnuie Hill, luid wbose barroom be occupies during tbe recesses of bis
Court, bus a case in wbicb be is bound to be beaten. And it is a ques-
tion of time; "Time may wear tbe case out." So be interferes, and
endeavors to bave tbe case postponed, in order tbat time may bave its
eft'ect.

Now, if tbat be tbe conduct of a Judge, if it is anytbing sbort of im-
peacliable conduct, in God's name wbat degree of criminality should we
consider tbe measure wbicb Avill fill and overflow until a conviction can
be bad '{ I can onl}- say tbat if you, by your votes, sanction or sustain
sucb conduct as tbis, yoii will bring a degree of disgrace and pollution
upon tbis State wbicb years cannot Avipe out ; tbat you Avill make our
Judiciary and bar a reproacb everywhere ; tbat you will set tbe example
of cori-ui)t and improj)er conduct, and entire disregard of judicial duty,
to all tbe Judges ot' tbis State. And, if boreafter 3'ou find them running
about, as Judge Hardy has run about in these cases, influencing litigants
and lawyers, intermeddling bere, and interfering tbere, shedding their
frowns in one direction, and their smiles in another, exercising their judi-
cial discretion — as Judge Hardy terms it — for tbe benefit of their friends,
naught can be said by you ; for if you sanction the conduct of tbis Re-
spondent, you at once pronounce tbat tbere is no ofl'ence so great as to
be impeachable, in a Judge.

There is other testimony upon tbis same subject. Brockway, at page
fourteen, speaks in reference to this matter, also. And be says :

"A. — Judge Hardy told me be wanted tbe case continued. In fact,
when that case and tbe Mercier case were called, on tbe first day of tbe
term, I understood bim, altbougb not very distinctly, to say something
about not trying the cases from tbe bencb. He spoke to me about con-
tinuing the case. 1 told bim 1 did not think m}^ clients would consent to
continue it, but I would speak to them, and if they bad no objection, I
would continue it. He said it would be better for tbeni to-do so."

In connection with tbat, in regard to tbis very case, it seems that Mr.
George, for some reason, was obdurate; be dift'ered in opinion witb tbe
Judge, and thought tbat it was best not to continue the case. Well, un-
der those circumstances, Allan P. Dudley is approached by Judge Hardy,
and be is asked whetber be will take a fee in a case; and be saj^s, "Yes,
I will take a fee in a case." " Well, you wait bere a little Avhile, and
tbere will be a man to see you." He goes out, and returns in a little
while, and when be comes tbere, Leger comes and makes a communica-
tion to bim. Wbat tbat communication Avas, we were not permitted to
bave in evidence. But I think tbe fair inference is, tbat Leger was sent
by Judge Hardy. He is the only person who comes tbere witb a fee;
and Dudley takes tbe fee and goes into Court for tbe express purpose of
carrying out tbe will of tbe Judge in tbe case. Mr. George, undoubtedly
disgusted Avitb tbe course be has pursued in the case, takes his bat, and
leaves it, and Dudley comes in; and tbe Judge's will is carried out.
Brockway consents to tbe continuance ; not willingly, but because be
feels it is unsafe to brave tbe judicial displeasure in the case.

Now, in reference to these matters, Mr. George, who was Counsel, bas
not been examined at all. The Defence have seduloush^ avoided any-
tbing and everytbing in relation to these cbarges of corruption. Tbere
is no explanation given ; and tbe wbole defence in tbis case seems to
63

498

rest upon nothing in the world but the attempt to impeach Allan P.
Dudle}', and the attempt to prove that Judge Hardy got drunk on an
affidavit, and got sober on whiskey, and that he is a loyal patriot, who
goes about from town to town, shouting hosannas to Jeff. Davis. On the
corruption branch of the case, there is no evidence produced here to ex-
plain away, or soften down and mitigate, one particle of that which has
iDcen alleged against the Eesj^ondent.

I pass now to the McDermott vs. Higby case — Article Seven. And I
will sa}'. in reference to this case, that there was a great deal of evidence
taken in relation to it before the Senate; but, on consultation with Mr.
Edgerton last night, we determined that as Mr. Higby, Avho was a party
in that suit, was our Associate Counsel in this action, we would not make
that subject a matter of discussion here, but would simply leave it to the
Senate to vote upon, unless something should be said on the other side,
which would call for a reply on our part.

The case of McDermott vs. Burke, in Article Eight, we abandoned ;
because we did not think it had Iteen made out.

The next Article is Article Nine ; the iiobinson and Leger litigation, at
the first trial — this same cause in which Judge Hardy always shows so
much interest on behalf of his friend Leger. And we find there, that an
offer is made to prove certain facts. I will give you the language which
is there made use of, because it is highly significant, as showing the tem-
per of the Judge, and his feeling towards the parties.

Senator Crane. — Senators around me, relying somewhat on the discus-
sion, if the Seventh Article is not abandoned, would like to hear what is
to be said on that subject.

3Ir. Campbell. — We do not abandon it. I will state, in reference to that
Article, that having come to the conclusion 1 have stated, I have made
no specific notes as to the portions of the testimony referring to it ; and
will have to discuss it generall}^

Senator Rhodes. — I hope Mr. Campbell will pursue his own course.

Mr. Camjibe/l. — I have but little time, and accommodated my time to
my intended discussion. I hope, therefore, I shall be permitted to adopt
my own course in regard to it.

In this case of Robinson vs. Leger, we have the testimony of Mr.
Brockway, which is to be found at pages ten and eleven, and which pre-
sents rather a graphic picture of the conduct of Judge Hardy, in refer-
ence to these whole transactions. He here describes the conduct of the
Judge upon the trial. After a good deal of preliminaiy matter, going to
describe the case, he states :

*' Q. — State what took place on the trial of that case ?

A. — It was a suit brought on an injunction bond, to enjoin the defend-
ants from working upon the claim, running water and washing earth into
Chile Gulch. The plaintiffs, or I, as Counsel for the plaintiffs, in the
course of the trial, tried to prove that the injunction prevented them
from running their water through the ditch and flume which led the
water to the claim. For the purpose of showing the damage which they
had sustained by means of injur}- to the ditch and flume. Judge Hardy
said : ' Mr. Brockway, I won't let you prove that.' Said I : ' Why, your
Honor?' Said he: -The injunction didn't prevent your running the
water through the ditch and flume.' Said I : ' Yes, it did. your Honor.'
Said he : ' li did not. I would not grant an injunction which would do
it.' Said I : ' I can't help what your Honor would not grant. This in-
junction did do it. I have so alleged in the complaint, and they have
not denied it in the answer.' Said he : ' I deny it.' "

499

He was not conteift with what denials the parties, those who were in-
terested, might make ; hut he must step forward and come in with his
denial.

" Mr. Adams, who, under the arrangement I have spoken of in regard
to assisting him in trying a ease in which his firm was interested, was
helping rae in this action, was sitting by me, taking notes in the trial.
And he whispered to me, saying, ' Who is trying this case, the Court or
the Counsel V "

Now, Mr. Adams comes here very strongly indorsed by this Defence;
and it seems, that upon this trial, and before even the (/mvameu of this
offence had been committed, Mr. Adams, whom they represent as so
honest, upright, and impartial a man, was struck by the partialit}' of the
Judge, and wanted to know who was trying the case — the Court or the
Counsel !

"And, in my excitement, I immediately said to the Court, ' I would
like to know who is this trying this case ; whether it is the defendant's

Counsel or the Court ?' Judge Hardy said : ' That ' and stopped.

Nothing further was said."

lie then goes on to state that the evidence was refused to be admitted ;
that a statement was made. And then the Judge interpolates in that
statement, about an objection having been made to this very testimony,
on the part of the defence, and about an exce2)tion having been taken
to its being ruled out ; when, in point of fact, no objection was made,
and no exception was taken ! It is too length}^ for me to read it all, but
that is the substance of what Mr. Brockway states. Mr. George, who,
as I said before, might have been called to contradict him, and who was
on tiie other side. saj'S nothing on the subject, and is not examined in
relation to it. Mr. Adams was struck with the favoritism exhibited, at
the time. Tlie bill of exceptions, or, at least, the settled statement,
shows the interpolation, by Judge Hardy, of a pretence that an objec-
tion of this character had been made, and that that objection had been
sustained by the Court, and that an exception had been taken ; all of
which things, according to the testimony of Mr. Brockway, did not take
place. Now, if they did take place, Mr. George was here, and Mr.
George could have been examined. The paj^ers do not show it; the
records do not show it. It is not likely that, if such had been the case,
it would not have been noted; and that, when seeking for a new trial,
Mr. George would not have availed himself of it.

So thei-e can be no doubt about this thing — that after interposing,
himself to make objections to evidence which was not objected to by
the parties, and after ruling out that evidence, the Judge inserts, in the
bill of exceptions, that the defendants had objected to it, that he had
ruled it out. and that the plaintiffs had taken exception to it. He wants
to lay a foundation for a new trial, which he did subsequently grant, as
the record shows; and in order to do it, it was necessarj^ that the record
should be perverted and falsified, and that a statement should be in-
serted which had no foundation whatever in truth or in fact.

The Tenth Article, I have already discussed.

Now comes the Eleventh Article, which is to be taken in connection
with Article Twenty-Second. The Twenty-Second xlrticle is simply, I
believe, an amplification of Article Eleven. These Articles charge the

500

Eespondcnt with intoxication on the bench, si^ecially, at a particular
time ; and with general habits of intoxication, during the terms of his
Court, to great public scandal and disgrace.

Now, I do not suppose there is a Senator upon this floor, who will dis-
agree with rae in saying this : That it is a matter of the very highest
importance that the Judges of our Courts, especially those of the high-
est Courts of original jurisdiction, should set a reasonable example to
the community in which thej^ live, by preserving, at least, a tolerable de-
o-ree of sobriety ; and that if there is any exhibition on earth which can
tend to degrade the administration of justice, it is that of a maudlin,
drunken Judge, muttering forth charges from the bench to a half bewil-
dered jury ; and that if tliero is any exhibition which can be disgraceful
and dishonorable to the State, and which culls for the interposition of
this high tribunal, it is the exhibition of a Judge staggering about the
streets during the day, during the terms of his Court, in a state of in-
toxication.

Now, let us see whether these charges are proved, or not, to the very
letter ; perhaps i\\Qj Avill say that they have proved negatively that the
man was sober. I shall discuss, somewhat at length, the evidence on
this point; because, on full examination of it, I find it perfectly irresisti-
ble.

The first question is : Was the Respondent drunk on the last day of
his February term ?

Now, what testimony have we on that subject ? No less than five of
the jurors who were present on that occasion, observed that thing.
The}' noticed the thickness of his tongue, upon the bench; they noticed
the peculiarity of his manner. It struck them at once that he was in-
toxicated, lie could scarcely articulate — as some of them state. He
stumbled and hesitated in the course of his charge ; gave every indica-
tion that a man could give, who was laboring under the influence of
liquor.

Their testimony is sustained by that of a number of witnesses in sup-
port of it. The very Sheritt" of the county, who is called upon to dis-
prove it, 3Ir. Paul, testifies that he., on that occasion, noticed it, and
observed that the Judge Avas intoxicated. The Clerk of the Court also
noticed that he was intoxicated. Five of the jurymen who have been
examined, noticed that he was intoxicated.

Mr. Williams. — You are mistaken about the Sherift* noticing that the
Judge was intoxicated on the bench. I will show that, when I come to
reply.

Mr. CdwphcU. — AVell, it was after he came off the bench. At any rate,
there is the testimony of the jurors, and of Tilden, Sherman, Charles P.
Dudley, and Hanson, who saw him intoxicated on the bench.

There are all those witnesses, who swear — some eleven or twelve of
them — to the fact of distinctly noticing this thing on that occasion.

And how is it disproved ? Why, by the most extraordinary array of
contradictory testimony that I ever heard in my life. Here is the
theoi-y of the defence : The theory of the defence is, that the Judge
that Diorning got drunk on an affidavit, and remained drunk all day and
all night; that — and that is ]\Ir. Adams' theory — ]\Ir. Higby made his
aflSdavit in the morning, about nine o'clock, stating that he could not
have a fair trial in the cause ; that immediately Hardy turned jjale, and
a shade of sadness cast itself over his brow — and the melancholy Judge
had a perceptible change in his manner during the remainder of the day.
He was wounded, that his friend, Bill Dudley, should have so hurt him;

501

and his speech was a little hesitating ! Mr. Adams noticed, that when-
ever he either delivered a charge or gave a ruling on evidence in the
case, on that day, there was a kind of hesitation, a subdued manner
about him ! And that is the theory of the defence — that this thickness
of the tongue, which appeared to other persons like intoxication, was
the mere result of judicial intoxication, produced by j\Ir. Higby's affidavit
in the morning I

That is the Adams theory, in answer to this testimony. The fore-
man of the jury, whom they summoned, presents a ditferent theory.
He says he was not drunk at all — neither by means of affidavit or
whiskey ; and that he delivered his charge in a clear, loud, ringing
voice.

Mr. Williamx. — lie did not use any such terms. You cannot find in his
testimony any such words as " clear, ringing voice."

Mr. Cdmphell. — That is my recollection of it.

Mr. Wi/liatm. — Well, then you recollect wrong.

Mr. Comphi'll. — At any rate, I remember the words " clear and dis-
tinct ;" and, I think, " loud." '•' Clear and distinct voice."

Mr. Williams. — You may bo right in that.

Mr. CamphcU. — Somewhat different, Mr. President, from this hesitation
which Mr. Adams had perceived ! Tlie foreman of the jury makes the
Judge deliver the charge just as he usually did. Mr. Adams makes him
deliver it in an entirely different wa3^ The witnesses whom we have
])roduced, and there is a cloud of them, show the most unmistakable
and clear symptoms of intoxication. And, moreover, we find, that after
the Court adjourns, the Judge of the Court is staggering around from
saloon to saloon in that place, preaching disloyalty and shouting huzzas
to Jefferson Davis, and drinking toasts to the Southern Confederacy — a
thing that he does in moments of excitement, Avhen he occasionally takes
a little liquor, as his Counsel says I Now, I wonder whether this judicial
sadness manifested itself in treason, or not — whether in toasts to the
Southern Confederacy — whether in declarations " that his mother was
born in the South, and he was a rebel, and didn't care a damn who knew
it ! " Jadicial sadness, that is ; of the Adams school !

Now, which are we to believe — which of these two theories ? Here
are a set of men swearing to a negative ; swearing that the man was not
drunk. Here, on the other hand, are a set of men swearing that he was.
The men who swear that he was, show you the indications which usually
attend intoxication. And they show you not only his conduct and man-
ner in Court, but a number of other witnesses, speaking of another sub-
ject, show that he was engaged in the evening, when his Court adjourned,
in passing from bar room to bar room, just as a man who had started on
an extensive fit of intoxication would, shouting his sentiments of treason
in the ears of a reluctant audience. Now, which are you to believe?
And I ask whether such transactions as these are to the credit of the
bench, or whether they are to its disgrace ?

Charles P. Dudley, W. L. Dudley, the Sheriff", and several of the jurors,
all swear to the Kespondent's intoxication immediately after leaving the
bench.

Mr. Williams. — The Sheriff" does not say what time afterwards.

Mr. Campbell. — Very shortly after, he says.

Mr. Williams. — He does not fix an}^ time.

Mr. Campthell. — At any rate, these men all swear to an affirmative ; the
others, to something they might or might not have observed. It might
very well happen that a Judge might be in a very gross degree of intox-

502

icatioK, and, if a man of great control and will, whilst upright on the
bench, it might not be observed by every person who happened to be in
his Court room. The same thing has happened, I have no doubt, in the
case of an actor on the stage. Many of you. gentlemen, probably, have
been to a theatre with some friend of yours, and your friend ma}' have
turned to you and said, " Do you notice how drunk so and so is ? " point-
ing to some actor on the stage. You have not noticed it before, but after
a while, addressing your attention closely to it, you notice a thickness of
the tongue, and notice all the other indications of intoxication, and are
satisfied your friend was right, although you had not observed it previ-
ously. So with these men. They did not notice these indications, and
swore truly that they thought he was sober, when his whole coui'se of
conduct proves tliat he was intoxicated ; when the occurrences which
took place after tlie adjournment of his Court stand in direct and full
contradiction of his sobriety, and when it is impossible for any man rea-
sonably to believe it.

Again, on another occasion, while sitting at chambers, in the January
term, while engaged on chamber business, he was again drunk on the
bench. That is what Charles P. Dudley, Tilden, Boucher, and Wood, all
testify to. Xow. if you believe that conduct of that kind is to be pal-
liated; if you believe that a Judge is to be permitted to hold a Court in
that condition ; and if you are to go into speculation as to whether he
was so drunk as to absolutely disqualify liim from doing any business —
you set an example to Judges in this State which will be followed, to the
great detriment of the course of ])ublic justice in all time to come. If
you desire, however, to keep a sober Judiciary ; if you desii'e to have
your cases decided by men who do not come reeling out of whiskey shops,
fresh from a game of ''seven up," during the recesses of their Court, and
take their seat upon the bench to administer what they call justice — then
you will fix upon this conduct the stamp of your reprobation.

Most of these witnesses testify to the frequency of this Judge's intox-
ication, and the various times they have seen him, alike b}' day and by
night, around the saloons in Mokelumne Hill. True, in the da3'time
not 80 drunk that he would fall down ; but, while able to move around,
to a greater or less extent under the influence of liquor. As Dudley
graphically describes it, he would hug one Attorney — and then another,
feeling jealous, would ask the Judge to drink, that he might get hugged
too; and then a third, having a fit of jealousy also, would take a drink
Avith the Judge, likewise.

I do submit, Mr. President and Senators, that the whole testimon}* —
and it would be idle to take it up piece by piece, and witness by witness,
nor have I the time to do so — develops this state of facts : That, al-
though there are several men who perhaps have not seen Judge Hardy
drunk — who perhaps are somewhat charitable in their interpretation as
to what constitutes a drunken man. yet still there is a mass of testimony,
coming from citizens of towns where he lived and through which he
passed along, that shows he was in the frequent habit, as well by day as
t>y night, of getting into a state of intoxication — which is a disgrace to
the position he occupies, and a dishonor to the administration of justice
in the State ; and that occasional instances occur — although he generally
manages to straighten up sufficiently to go through the exercises of his
Court without public observation — where the barrier is broken down,
and where the demon obtains the ascendency, even in the Court room.

In reference to the Articles concerning neglect of judicial duty. I
shall say nothing. I am free to say, that so far as attending at the

508

terms of the Court is concerned, with the exception of one instance,
which, in my opinion, was one that ought to call for the severest repro-
bation, and another instance where the Judge went off to make political
speeches, Avhen he ought to have attended to the business of his Court,
I do not think there is any evidence which would warrant a conviction
upon that branch of the case. His going oif to lobby a bill through in
relation to the trial of another person for murder, at a time when he
ought to have been attending to the administration of justice, instead of
seeking to interfere with it —

Mr. Wi/limm. — [Interrupting.] That is the November term.

Mr. Cumphcll. — No ; it was last winter, when the Legislature was in
session.

I say, that his going off to Sacramento to lobby in favor of a friend
who was indicted for murder, with the view of changing the ordinary
course of the administration of justice in this State, is censurable in the
highest degree ; and would be, b}" itself perhaps, sufScient ground for
impeachment, were there no other things which, taken en 7n(tsse, or taken
separately, are sufficient to overwhelm and impeach him, independent of
this. For that reason, and for that reason alone, I pass over that charge
without an}' remark.

I now come to a part of the history of this State, which has done more
to disgrace our Judiciary abroad, than anything else which has ever
occurreil here. I refer to the monstrous judicial farce in Marin County,
to which Judge Hardy was a party. The charge in relation to that is
contained in Article Fourteen.

Now what were the facts' And let us see whether there is a reasona-
ble excuse, or a shadow of an excuse, for the conduct of Judge Hardy
upon that occasion.

The cause (The People vs. D. S. Terry,) had been set for the second of
July. The case was read}' for trial on the part of the prosecution. It
was then adjourned to the sixth. The usual hour of opening the Court
for the transaction of business, Avas nine o'clock The District Attorney
subpcenas his witnesses for ten o'clock — one hour after the meeting of
the Court. Well, now that, possibly, if it was not connected with other
circumstances, might seem somcAvhat strange. It would seem a little
strange that a District Attorney should subpoena his witnesses for a
period one hour after the opening of the Court; especially when those
witnesses reside in another county, between which and that there was
some ditticulty of communication.

But what happens next? Why, the District Attorney having subpoe-
naed his witnesses for ten o'clock, announces himself ready to proceed,
immediately after the opening of the Court ! Well, now, would not
that strike any Judge as most extraordinary ? There is not a witness in
attendance in the Court room ; there is not one present in the town,
that anybody knows anything about — yet the District Attorney pro-
poses to go on and empanel a jury, at that stage of the case ! Now I
would like to know what District Attorney in this State ever undertook
to empanel jurors in the absence of his witnesses — especially, an hour
before the time his witnesses had been summoned for? Why, it was the
easiest thing in the world for any of those witnesses who were material
and necessary on the trial, to have met with some accident; to have
been sick and absent. The clear, plain duty, of the District Attorney,
known to the Court as well as the District Attorney, and known also
to every lawyer anywhere, was to see if his witnesses were there, before
he announced hims^elf as ready for trial ; at least, to wait for the hour

504

for which he had subpoenaed them, before proceeding to take any action
in the matter.

But this extraordinary proceeding is not noticed. The Judge says
nothinsr about it. He does not say. as every Judge in the State, except
Judge Hardy, would say: •• How do you expect your witnesses to get
here ?' (It appears that it was known that the witnesses were coming
over in a sailboat.) '• Your witnesses are not here. Tou had better
wait and see whether you have your witnesses, before you empanel the
jury." That would have been natural. " You have subpoenaed them for
ten o'clock. At any rate, wait until ten. and see whether they are here
then ; and if not, the reason why they are not here at that hour." But
no ; they go on with the empanelment of the jury. And under what
circumstances ?

Why. a Judge of the highest Court in this State had stepped down
from the bench, to tight a duel with a Senator of the United States.
They were both men of mark* in the community ; well known through-
out the State. Both men had warm friends and warm partisans, and
both had bitter enemies, throughout the State. The occasion which had
led to that occurrence, and the occurrence itself created a degree of sensa-
tion throughout the State, which no similar public otfence ever has caused
within our limits. It was a matter of discussion from one end of this
State to the other. The venue had been changed from the County of
San Francisco over to the County of Marin. It was the duty of the
prosecuting officer there, under these circumstances, the cause being one
of such a character, with such public excitement surrounding it. with
partisanship and intluence all around it, to have made the most careful,
clear, clean, scrutiny of every juror who should be called up, there.
That is not a matter about which it is necessary to take the opinions of
lawyers. It is a matter on which the ordinary common sense and obser-
vation of every layman will instruct him just as well as any lawyer can.
Y'ou will see. that in order to stand the slightest chance of having justice
administered, there must be a rigid scrutiny of the jury.

But what was the tirst step taken ? Of course, in such cases, the
defence always look at the list of jurors, to see what jurors will suit
them. On looking over the list, they see that the jurors in the first part
of the list are mainly such juroi-s as they want in the case. So they
propose to the facile and easy District Attorney, that they shall take the
jury from the list, and that they shall not draw them, as required by
law to do, from the jury box. And the facile District Attorney assents;
and the Court offei-s no interposition and no objection, but sits there
quietly, allowing this farce to proceed before him.

What took place ? The usual examinations are omitted. You cannot
get at the time precisely, from the testimony, but. taking into considera-
tion the opening motion business which 3Ir. Shafter alluded to. and which
the records of the Court showed must have taken some few minutes af-
ter nine o'clock, and taking into consideration that they were waiting
some twenty or twenty-five minutes after this jury was empanelled, ac-
cording to the showing made, they could not have been, by any possi-
bility, half an hour in empanelling that entire jury. During all this
time, the District Attorney sits like a block. Although it is not likely,
in any such case as that — and I do not think any Attorney, except Mr.
Haralson, in a case like that, ever allowed a single juror to pass unex-
amined— it might happen, from a peculiar knowledge of a particular per-
son, his habits and character, that he might think it was safe to take
that man without question. But when it comes to juror after juror ;

505

when his assent is given to the selection from the list, instead of the jury
box ; when the defence is picking out juror after juror, and no objection
is made on the part of the prosecution, and the District Attorney, with
the appearance — as described by the President of this Senate, and most
correctly described — of a week's debauch upon him. sits there, perfectly
imbecile, or determined to defeat justice — I care not which — I ask
I whether, at such a time as that, the common sense and reason of every
man in this State does not tell him that it was the duty of the Judge to
interfere ? Why, it is not the duty of a Judge to stand' by and see c-ollu-
sion. It is not the duty of a Judge to see the District Attorney sit by
and sacrifice public interests. It is not the duty of a Judge to quietly
see a public oiiicer making a public mocker}- of justice, and turning a
public trial into a mere public farce.

All this the Judge saw. No syllable of interference 3'et !

And what at last comes ? Why, a faint suggestion, or, rather, a sug-
gestion— call it a faint one. or not — on the part of the Judge, that, as
the witnesses had been subpoenaed for ten o'clock, as the jury was all
fixed, as there was no probability of the witnesses getting there by ten
— because the communication was by water, and the wind adverse, and
they were not in sight, and had to come five miles by land — a delay would
be made of some ten or fifteen minutes, under the circumstances I And
that is M'hat is called discharging his duty to the State I In other words,
he would not let them take a verdict until the hour for which the wit-
nesses had been subpo-naed. The hour for which the witnesses had been
subptenaed came ; and down goes the hammer, and up comes the ver-
dict.

Now. is that anything but a farce ? What does 3'our 'plain common
sense and judgment — I do not ask the opinions of lawyers about it —
honor, integrity, and desire to see the laws of your country fairl}'^ and
honorably administered, say to such a ti-ansactiou as this? Was it not
the clear and obvious duty of the Judge to interfere at once, when this
miserable farce was being enacted before him ? Do you doubt that he
saw it? that he knew it? that he was there aiding and abetting? But
he thought they were playing it a little too openly when they proposed
to take the verdict in the absence of the witnesses, before the hour for
which the witnesses were subpoenaed had arrived. That was a little too
bold and transparent, he thought. The}" would wait mh?// ten o'clock!
There stood Mr. Hoge. Avatch in hand. All right I Time up ! Case sub-
mitted ; verdict given ; justice defeated ; Judge starts otf the bench.
And that is called a judicial trial !

Well ; now, gentlemen, I put it to you, on your oaths and consciences,
whether there is a man among you who will be willing to sustain and
indorse a farce like that ; whether there is a man among you who is not
fully satisfied that Judge Hardy was just as well aware of the pro-
gramme that was laid out there, as you can see it now — that he was a
party to that transaction — that he just sat there to have the thing
managed through, with his assent and with his cognizance? And if he
did. I'^ask you whether there is a man here Avho says he ought to be
trusted for one hour longer on the bench ? Whether sufficient cause for
impeachment is not made there, to overwhelm a dozen Judges? I do
submit that there has been nothing in the history of this State, though
manv things have happened of a disgraceful character, equal to this
farce, by which a Judge of the Supreme Court was acquitted of killing a
Senator, through the interposition of the oflicers of the law, who were
64

506

bound to enforce it. I leave it to your oaths to answer these ques-
tions.

And now, upon the question of disloyalty.

We have proved every charge that we have made, specifically and
clearly. There has been no dispute made in relation to a single witness
examined upon this subject, with the solitar}" exception of Finnigan;
and he has been sustained by two witnesses who were present at the
time of the transaction, and whose afiirmative testimony rests against
the testimony of Mr. Botts, Mr. Aylett, and the other witness, Mr. Las-
pevre, in the negative. jSTow, we all know the difference between affirm-
ative and negative testimony. Those gentlemen (Messrs. Botts, Aylett,
and Laspej're,) would naturally forget an occurrence of the kind. We
all know, that at the time of the election of General McDougall, there
was very great political excitement in Sacramento; that, while there
was very great rejoicing, on the one hand, among the friends of the
Union, there was very great depression, on the other hand, among those
who sought to give aid and comfort to the enemy ; that men got into
little knots, drank together, and gave toasts together, and that a large
number of the persons who were in Sacramento on both occasions of
McDougall's election, were in very much the condition of Judge Hardy
on the last day of the trial of McDermott i-s. lligby. Those gentlemen —
Botts, Aylett, and Laspeyre — cannot recollect any such transaction, and
that is the utmost extent to which they have gone ; while three wit-
nesses, whose character they have not attempted to assail, testify
directly as to the matter — which settles the question of Judge Hardy's
loyalty, forever.

Jefferson Davis compared to the immortal AVashington ! The same
wishes extended towards him ! The hope that he might be as immortal
as the one great man whom the whole civilized world looks to, as " First
in peace, first in war, and first in the hearts of his countrjnnen !" Could
a loyal citizen of the United States, especially on such an occasion, give
such a toast? Had it stood alone, unsupported and uncorroborateil by
any other evidence, I do say, that there is no man who could doubt that
the heart which uttered that sentiment was as deeply imbued with hos-
tility to this Government, as that of the man whom Hardy toasted and
sought to immortalize, on that occasion.

Now, here are other expressions. We will see what an excuse for
them is presented. I will run over them.

''Here's to Jeff. Davis I"

That is the night when he got drunk on an affidavit. No ; this is in
the County of Amador, on the twenty-fifth of June, eighteen hundred
and sixty-one. This is pi'oved by Severance, Allen, and Coolidge. Here
is Judge Hardy's language : " Here's to Jeft'. Davis and the Southern
Confederacy 1" On that same night, he rushes around, shouting drunken
huzzas for Jeff. Davis, and wakes up Mr. Coolidge, who is in a sound
sleep. He is so noisy about his Secessionism, that the quiet citizens of
the town cannot even sleep in their houses without his invasion.

Then, on the twenty-sixth of June, eighteen hundred and sixty-one,
at Angels, as he is riding along, he comes in sight of the American flag,
and he says: "That is an old woman's rag, and ought to be torn
down."

I ask you, gentlemen, whether it is possible that any loyal man ever
gave utterance to any such sentiments ? You have all had a good deal
of observation of the character and conduct of different persons, under
the circumstances which have recently arisen in our country ; and I ask

507

you, whether there is, or ever "vvas, any other man in the State of Cali-
fornia, except Judge Hardy, (who. Avhenever lie happens to get a glass
of liquor — and, as I shall presently show, on many other occasions —
indulges in the utterance of sentiments utterly hostile to the Governinent
which he. for the purposes of this trial, pretends to admire and rev-
erence and res]iect,) who has an}' particle of lo3-alty, or suspicion of loy-
alty, left in him, who indulges in that kind of conversation ? Mij obser-
vation, and I presume yours, is : That when a loyal man becomes intox-
icated, his intoxication rather intensifies his loyalty. Eum does not
convert a loyal man into a traitor. It would be an anomaly in the con-
struction of man, if that were the case — if a loyal man, especially a man
like Judge Hardy, who has so much self-control, should constantly, un-
der the influence of a glass of whiskey, go about, shouting these drunken
huzzas in favor of Jeff. Davis. But, see the malignity of the expression.
It is not a joking expression. A man might say, "Hurrah for Jeff.
Davis," once or twice, possibly, as a mere joke, to a friend. But, be it
observed, that on none of these occasions was it addressed as a joke, or
regarded as a joke.

Mr. Wil/iams. — [Sotto voce.] You are mistaken.

Mr. CamphrU. — [Continuing.] -'That is an old woman's rag, and ought
to be torn down !" •• Well," says Severance, -'I made reply, 'When that
takes place, I shall be ready to leave the country;' and a person Avho was
passing by, remarks, 'Your head is right.'" Now, does Judge Hardy
attempt to explain that remark of his 't Does he attempt to apologize for
it ? Does he say, " I merely said that in joke. Severance ; I don't mean any-
thing of the kind ; I respect that flag as much as you do '(" Nothing of
the kind. '-AVhen the wine is in. the wit is out;" and when he gets to a
certain stage of intoxication, the real sentiments of the man develop
themselves, and, from having been suppressed in a state of sobriety, are
intensified in bitterness.

"Here's to the Stars and Stripes! As to the Constitution, there is
none; the Constitution is gone to hell!" Another elegant expression!
Y\x\e judicial language ! Suitable to one occupying a seat on the bench
of so high a Court as that. In all parts of the State— at Jackson, at
Mokelumne Hill, at Angels, on steamboats, everywhere throughout the
State— this man has gone, uttering his disloyalty, and that in no measured
language. .

Again, on the verv n'ight when he got drunk on an aflSdavit, he said:
"My Court is adjourned, and J am now off the bench. My mother was
born in the Soutli, and I am a rebel ; and I don't care a damn who knows
it." Look at the language ; look at its significance ! It is not a joke,
that would be got off ^bv a man on a frolic. No ; it is, in effect, this : " I
have thrown off my judicial restraint. I am no longer tied up to an
exhibition of common loyaltv. decency, and patriotism; and now I am
going to let myself loose." He was all ready for it ; he was on a spree;
his tongue Avas already thick— as testified by jurors and others ; and he
comes off the bench muttering maudlin declarations of treason.

Xow that is proved, not by one, but by several witnesses. That de-
claration is proved by A. P. Dudley, Charles P. Dudley, Mr. AVood, and

Mr. Sherman. ^ ^ ^ x xt.

Tod Eobinson is stated by Allan P. Dudley to have been present at the
time that this declaration was made. He has been examined here on the
stand ; and there has been no attempt made by the Defence to contradict

it by him. .

Then, again. Judge Hardy goes to Sacramento, and there gives utter-

508

ance to this : " Gentlemen, I will give you — The perpetuation of the South-
ern Confederacy, and the sovereignty of Jeff. Davis. Ma_y his name he
perpetuated in the same light that they hold the immortal Washington !"
That is the toast testified to by Finniganand others. The witnesses may
differ a little in the precise language of it; but, of course, it is impossible,
after the length of time that has elapsed, to give the precise words.
They merely give the substance of it. And no less than three witnesses
have so given the substance, who were present at the time Finnigan
threatened to cram the tumbler down Judge Hardy's throat. Fin-
nigan says he wrote a letter to the Calaveras Chronicle, a paper pub-
lished in the county where Judge Hard}' resided, stating what he had
seen, who the persons were, and how the Judge of that District was
conducting himself on that occasion.

In another instance, we find liini drinking to the health of Davis and
the Soutliern Confederacy. And that, also, is established.

Then, under the eighth specification, we find :

" Eighth. That on or about the first day of September, A. D. eighteen
hundred and sixty-one, the said James H. Hardy, at Mokelumne Hill,
in said County of Calaveras, being then and there District Judge of said
Sixteenth Judicial District, as aforesaid, did. in violation of his said oath
of ofiice and duty as aforesaid, publicly declare, in the presence and
hearing of divers good citizens of this State, and say, in substance, as
follows: That he was a Secessionist, and that if a foreigner siiould come
before him. holding the same sentiments that he, the said Hardy, enter-
tained, as a man, towards the Constitution and (xovernnient of the United
States, and applied for citizenship, he, the said Hardy, as a Judge, would
not admit him to citizenship."

That is the language that is proved by not only one, but by three dif-
ferent witnesses. Judge Axtell, who appears to be a man of high re-
spectability, and who stands wholly unimpeached, states that he was
having a political conversation with Judge Hardy; and he then goes on
to say that if those were Hardy's sentiments, he did not see how he couM
naturalize any foreigner who came before him ; and Hardy replied, that
if a foreigner, should come before him, holding the same sentiments that
he did —

Mr. Williams. — [Interrupting.] No, Sir. He assented to Mr. Axtell's
proposition to that elfect.

Mr. CampbclL — I will turn to the testimony and read it.

Here was not a matter of joke. Judge Hardy was sober at the time ;
engaged in serious conversation. And we find that at that time, and in
that conversation, he declared that if a man entertained his sentiments,
he would not naturahze him, as a Judge. Why? Why, for no other
reason than because Judge Hard}' felt that he could not "entertain those
sentiments of loyalty towards the Government which are absolute requi-
sites and essentials in an American citizen. This testimon}' of Mr. Ax-
tell is corroborated by two other Avitnesses; page one hundred and
twenty-seven :

" I asked him the direct question : If he should ascertain that an appli-
cant for admission as a citizen entertained the same views which he did
in relation to these matters, what he would do under such circumstances ?
He said, that as a Judge, acting under the obligations of his oath of
office, he could not admit such an applicant to citizenship. That is about
the substance of our conversation."

509

Now, that is no joke. He had not been down to his friend, Leger,
then, taking his whiskey.

And then, again, we tind further on, that he endeavors, virtually, to
seduce — and 1 shall not dwell upon this, for I have but a few minutes
longer to speak — from their loyalty, soldiers serving in the army, who
had enlisted and who were coming down to take the oath of allegiance.
He endeavors to seduce Burns and Maynard from their allegiance ; and
says that if he had the position which he ought to have at the South,
he would resign his situation as a Judge, to take it. And he becomes so
oflFensive in his expressions of dislo^-alty, that one of them is obliged to
get him off to his stateroom, in order to prevent his getting into diffi-
culty there. Now, here is a Judge trying to seduce our soldiers from
their allegiance ; and yet he is a lo3^al man ! He has great reverence for
the Constitution and the Union ; but he cannot bear to see anybody en-
list to fight for either! He is willing to denounce the Constitution; to
assert that it has '' gone to hell," and to declare that our national banner
is "an old woman's rag, and ought to be torn down;" he is willing to
declare •' that his mother was born in the South, and that he is a rebel,
and don't care a damn who knows it;" he is willing to immortalize Jelf.
Davis and the Southern Confederacy — and he does all that, not joking
and jesting among Union men, but in the company of Botts, Laspeyre,
Crittenden, (now in the rebel army,) Dr. Aylett, and others of the same
stripe, who, had they it in their power, would crush the Government of
the Union in an instant, and would lend any aid and comfort ])ossible to
the enemy, who make no disguise of their treasonable sentiments, but
proclaim them alike on the witness-stand and \n the public streets. And
in such company as that, Hardy is found drinking to the President of
this sham Confederacy. And yet, he is a loijal man ! And, in order to
jjrove it, the}' show that in certain conversations with certain persons, he
has professed loyalty ! It is skin-deep loyalty.

He rejoices very much, as is proved by five Illinoisans, over the
bravery displayed by the Illinoisans at Fort Donclson.

It is said he made a speech in which he professed Union sentiments,
and said he was not a Secessionist. Three gentlemen from there, who
were present at that meeting and heard the speech, did not hear a loyal
sentiment uttered in it.

He has brought forward one gentleman to whom he admitted his dis-
loyal declarations, but assigned, as a reason for them, that when he saw
men shouting -'Union," who had no Union in them, it angered him so much
that he talked Secession I Well now, we prove, God knows, that he has
talked Secession enough. But he has not undertaken to show us one
single man who was tafking " Union," who had no Union in his heart. He
cannot, and does not, undertake, in any way, to show that he was pro-
voked by any human being into any one of these declarations. I do not
suppose Botts and Aylett were talking "Union " at the time he gave his
toast to Jeff. Davis, and desired his name to be perpetuated into immor-
tality. I do not suppose, that on any one of these occasions, he waspro-
voked into the utterance of disloyalty. If he was, he has failed to show
it. He has failed to show that a single word was uttered by any human
being which could lead to any such declai'ations, statements, or toasts,
as he gave vent to on these several occasions. At the very time he was
seducing men to leave their allegiance, men who had enlisted, he does
not show any provocation.

I say, then, the proof on this subject is as overwhelming as it is possi-
ble for any proof to be. '

5iU

And now, gentlemen, let me ask you, whether there is not one very
extraordinary feature about this whole case ? Is it not something
strange, that such a mass of charges should have accumulated uj)on the
head of this Defendant, within the short space of three years ? that so
man}- instances should be pointed out and designated, on which he has
degraded his high office? that not only his conduct in particular, but his
conduct in general, his demeanor and mode of life, should here be brought
before this Senate for public investigation ? I say, that if any Judge had
decently behaved himself; if an}^ Judge had conducted himself Avith the
commonest propriety — uo set of men in his District would dare to make
chai'ges against him such as have been made against this Respondent.
And I sa}', that if they had been made, and the man had been innocent;
if they had not been true, and if the unerring -judgment of the public
had not pronounced them true — no man would have ventured to bring
them here. They would have been laughed to scorn. Would you expect
such charges to be made against Judge Norton, Judge Camjjbell, or any
other Judge of rcspectal)lc standing in the ditterent Districtsof our State?
Why do not we hear anything of tlieir doings 'i of their hugging Attor-
neys, and interfering in the business of clients, and getting drunk
about the streets, and appearing drunk on the bench, and howling dis-
union sentiments about the whole State, and in every portion of it ?
Why, Sir, if any man should make such charges as these, against those
men, they would be laughed at, as too ridiculous for investigation. But
we find a mass of testimony, accumulated here, upon this Respondent,
enough to damn a thousand Judges ; unanswerable, uncontradicted, un-
disputed; attempted to be explained only in the most extraordinary
manner. AVe prove that the man staggers about in his Court room, and
out of it — and men are called to say that th-ij did not see it ! AVe prove
that he has been guilty of the grossest treason ; that he endeavored to
persuade soldiers enlisted, coming down to be sworn in, not to enter the
service: and that on every occasion, he uttered the most offensive senti-
ments ; and he says that he is a loyal man, because he has told some
people so. when it was convenient for him to do so I And what is the
key to that 't Why, Dudley gives it. He says : " When you come to a
Union camp, or are among Union men, you must talk Union to them."
He found it convenient; found himself getting into difficulty; found his
party was in the minority — that his Secessionism would not pay — and so
when he got among Union men, he frequently i^repared himself for
Union contingencies, by declaring TTnion sentiments. And that is all of
it. But whenever, in the heat of argument, or the heat of whiskey — one
or the other — the real man developed himself, there was James H.Hardy,
the unmistakable Secessionist, prepared to rejoice over the triumphs of
our enemies, and to mingle his regrets with theirs in any defeat they
might sustain.

Now, gentlemen, I have but a few words to say. Put this case to one
plain test. Imagine a single scene in this whole drama. AVe will sup-
pose that some intelligent foreigner, anxious to become acquainted with
our institutions, should visit tJiis .State. He desires to ascertain the
amount of civilization among us ; he desires to know how our laws are
made, and how administered. And, in the course of his travels, he goes
to the county seat of Calaveras County, on the last day of the February
term, and he happens to be there during a recess of the Court. And he
finds a gentleman — a very intelligent looking man — sitting at a table,
with a glass of whiskey before him, in a public bar room, playing " seven
up." He asks, '^ AVho is that V " AA^hy, that is Judge Hardy." " Judge

511

Hardy ! ^Yhy, is that the way your Judges amuse themselves during
their Courts, sitting out here in publie barrooms, and o-etting drunk?"
And shortly afterwards, he thinks he will see the remainder of the scene.
The Judge gets up from the game — perhaps participated in by suitors,
or litigants, or Attorneys, before him — and goes up to take a " smile" at
the bar, and a hug with an Attorney; and from that he staggers out
into the street, and goes upon the bench, where, with heavy voice and
thick tongue, he delivers his drunken charge to the jury — and the remark
is made, "How drunk Jim Hardy is !" And then he finds the Judge
coming staggering off the bench, a sworn officer, who has taken a solemn
oath to support the Constitution of the United States, and finds him
declaring himself a rebel — that his mother was born in the South, and
that he is a rebel, by (rod, and don't care a damn who knows it — and
rushing around the bar rooms and the saloons in a state of drunken
mania, shouting for the head conspirator against the laws, liberty, and
Government, of his country. And he finds that such a man as that is
Judge of the highest Court of original jurisdiction in this State !

We will suppose this same traveller, thinking, perhaps, that he had
met with an unfavorable sample of the administration of justice, passes
over to the County of Marin. There are preparations made for a some-
what solemn scene. A Senator of the United States, one beloved by
large masses of the people, looked up to as their champion, defender,
and protector, lias been slain by a Judge of the Supreme Court, who has
descended from his place on the bench, to take the life of a rival in pub-
lic life. The deed has been done ; the Senator lies in his bloody shroud
— and public justice calls for at least an investigation of the circum-
stances. An indictment is found ; it is alleged by the defendant, that
he cannot have a fair trial in the County of San Francisco, and the mat-
ter is transferred to Marin. By some curious coincidence, it so hajij^ens
that Judge Hardy is taken down from Calaveras County, to Marin, at
this particular term of the Court. Our traveller entei-s the Court room,
supposing that he is going to see justice administered. But when he
sees that Hardy is on the bench, he begins to have his doubts. He be-
gins to think, that if justice is administered in Marin as it is in Calaveras
County, he has come in vain. And what happens? Why. a drunken
District Attorney stumbles into Court, and at nine o'clock announces
himself ready to empanel a jury — when his Avitnesses are subpoenaed for
ten, and he cannot, by any possibilit}^, know whether they will be there
or not. The Judge sits b}', in silent acquiescence. Man by man is se-
lected by the defendant. The District Attorney is silent. No attempt
is made'^to find whether these men have formed or expressed an opinion
hostile to the prosecution ; but just Avhat men the defence wish, are put
on the jury. And just before the hour arrives for the witnesses to come,
the jur}' is empanelled; and then the District Attorney desires the case
to be submitted. And then the Judge suggests that it may be as well,
in order to let the farce be played, to Avait until the hour for Avhich the
Avitnesses had been subpcena'ed. And when Hardy finds that it is
time, off he goes. The time is up ! The jur}- is empanelled ; cause sub-
mitted ; no Avitnesses heard ; party discharged. An hour and a half af-
terAA'ards, the Avitnesses arriA^e — and the judicial farce is played out.

'Now, gentlemen, in the name of God, in the name of common justice,
in the name of common humanity, I Avould ask what any civilized, intel-
ligent traveller, passing through these scenes, and witnessing them,
would say of the State of California ? And A\diat will history say, if it
should tiirn out that this Senate, viewing these scenes with calm indif-

512

ference, should say that the man whose record is such, is still worthy to
hold a judicial office ?

I submit to you, gentlemen, as a solemn duty on your part, that you
must now, if you wish to be respected now and hereafter, if you have
any regard for the honor of this young State, or for her reputation
either at home or abroad, throwing aside all feelings of sympathy, act
ujDon this evidence. And when j'ou act upon it, there can be no doubt.

The judicial name has been disgraced; the judicial office has been per-
verted ; the ermine has been trailed in the dust. It is for you to say
whether this shall be done with impunity. And to you, who have heard
the testimony and have seen the witnesses, 1 submit this question, con-
fident that the honor of this State will not be degraded in your hands.

[Eecess for thirty minutes.]

1 1 "^

AEGUMENT FOR THE DEFENCE

ARGUMENT OF C. II. S. WILLIAMS.
Mr. Williams said :

Mr. President, and Senators : — I have never, in the eour.se of more
than tliirty years ])ractice of my profession, risen to address a Court
under such a wei<;lit of responsibiUt}' as appears to me to rest upon me,
as well as upon you, upon tliis occasion.

You have heard from the learned and eloquent gentleman upon the
other side, of the importance and magnitude of this case so far as the
interests of the State are concerned. I propose to show you, not by
argument, but by evidence, and by reference to your sense of this case,
that it is one of more importance, more magnitude, and more deeply
thrilling interest to this Defendant, than to any other person who hears
my voice to-day.

You have been assured that the eyes of the public are upon 3-ou. You
have been reminded that you sit here to vindicate the maje^sty of the
State. Unfortunatel}- for my liumble, helpless client here, tec have but
the rights of an American citizen, the rights of a single individual to
present to j-ou. I cannot boast of being backed by the power of the
State; /cannot call upon you to show, by your decision in this case,
that the credit of the public is to be determined, its value settled, by
your action here. But I have here to present your fiellow citizen — a
single man — a single citizen of this Eepublic — a single citizen of this
young State of Calitbrnia. And I have to invoke your candid, fair, de-
liberate, impartial judgment, upon the evidence that has been given
before 3'ou ; and to implore you, before you sacritice a fellow citizen, a
single citizen, to a tornado of persecution which has been raised against
him here, and Avhich is invoked and brought to bear by your co-ordinate
branch of this Legislature, to judge before you shall pronounce his doom
here — a doom that is more severe, a doom that must be more blighting,
more utterly annihilating to him and all his hopes, than any verdict of
any jury upon a trial of an ordinary offence against the laws of the
counUy.

You have before you a citizen occupying a high position ; one in whom
the people of his District have reposed that contldence which induced
them to elect him to this position. The peojDle have not acted blindly
in this matter. The people have not acted in ignorance of the man they
were voting for. He was appointed, first. Before thejseople were called
upon to pass on his qualifications, he was appointed to the olScc he now
holds, by the Executive power of the State. The people had him on
probation from January to September. They had an opj^ortunity of
seeing him. They had before them his conduct. They had his charac-
ter as exhibited in his official conduct ; and, with all that light, and with
the very same light which the witnesses Avho appear here against him
had when they supported him for the high office of Judge — the very
65

514

men who now chai'ge bini with offences committed before that election —
they had before them then all this evidence, and the people in his Judi-
cial District have pronounced their verdict upon him, so far as his gen-
eral qualifications and the integrit}' of his general character is con-
cerned ; and they have rendered their verdict in regard to him, so far as
the manner in which he had discharged his official duties from January
to September could enlighten them.

If there is anything solemn on earth, it is seen where a single citizen
is arraigned by the power of the Government. If there is a tribunal on
earth which sits under the weight of solemn judicial duties, it is the one
organized as this is, sitting as this is — the arbiter of the destiny or the
crusher of the hopes of a fellow^ citizen, or the vindicator of a fellow
citizen against what I do not hesitate to pronounce the most unexam-
pled persecution on the part of those now seeking his destruction.

If laws are good for anything, if our institutions have any merit, if
we stand out before the world as a nation peculiar to ourselves, Avith
institutions peculiar to our Government — those peculiarities rest upon the
fact that the policy of our Government is that every citizen, liowever
humble, is under the protection of the laws of his country. It is that,
•when accused of crime, accused of a political offence, he has the ability
and he has the right to present himself before a high and solemn tribunal,
and be fiairl}- tried, and his cause fairl}' judged.

I do not propose to occupy your time by general remarks. I do not
propose to consume any considerable portion of the time which has been
allotted me by dealing in general remarks upon the character of this
evidence, until I shall have given you some of the details of that evi-
dence.

The charges against my client have been taken up in their order by
the learned Counsel who has preceded me ; and you have heai'd his in-
genious, his strong, his zealous and vivid argument, upon each of these
accusations, based upon just so much of the testimony as he chose t(
present to you.

It is my duty now, in the presenting of our side of the case to you, t(
show you the remainder of the evidence.

You are sitting here to pass upon the evidence; and when you shal
have heard both sides, when you shall have heard the evidence presentee
to you ujion one side as well as upon the other, as collated by th(
Counsel for the respective parties, then, and not till then, will you alloM
your judgments to be swayed. Xor will you come to any conclusion, o
any decision, ujiou the merits of this prosecution, or the demerits of th
defence.

[Mr. Williams was here interrupted by the announcement and rece
tion of a message from the Assembly.]

J/r. IVilliams. — [Continuing.] If I was influenced, Senators, by th
popular notion abroad, that this man is prejudged; that his doom i
pronounced before you have heard the evidence; that there will be
strict party vote against him; that every member of this Court, oppose^
to him in politics, will vote for his conviction here; if I had a suspicio:
that that was the fact, I would not stand here to address one word t
you. I should despise myself for doing so, if I did.

I do only ask you, then, to divest yourselves of all feeling, if you hav©
any; of ail prejudice, if it has ever approached you; of all inclination to
give undue weight to the testimony, either upon the one side or the
other; and I have not the least doubt that this will be done.

I have the good fortune to belong to this slandered party — this party

515

which it has been undertaken to say was going to cany this conviction,
evidence or no evidence ; and while I do not stand here to discuss politi-
cal parties, their merits or demerits, I do insist that I have a right to
vindicate my party as against so foul a wrong as such a vote in this case
would cast upon it. I have a right to vindicate the character of Sena-
tors against such aspersions. I have a right to expect that when this
vote comes to be given, that instead of corroborating this slanderous
allegation, which has been publicly made, it will rebuke the slanderers,
and show that each man's vote is given upon the evidence ; upon the gi-eat
principles of eternal truth, which should govern the members of such
Courts; upon the law and the justice that bears upon and should be
made manifest in the conduct and conclusion of the case.

Now, Senators, what is this charge ? Or, what are all these charges —
when considered together, or separately ?

They are: First, that Judge Hardy has been guilty of corrupt miscon-
duct in the exercise of his Judicitd office. Tiiat is the only charge 3 and
there are various specifications under that charge.

He is charged again : Secondly, with being a disloyal citizen. He is
charged with entertaining sentiments which are not in unison with the
sentiments of those patriotic citizens who are read}' and willing at all
times, and under all circumstances, to render the aid of their right arm,
as well as the aid of their fortunes, for the protection of the Govern-
ment— not only from foreign invasion, but from internal treason. He is
charged with being a disloyal man. He is charged with entertaining
secret enmity, secret hostility, to the Government, as opposed to his open
declarations and calm, deliberate, expressions of sentiments upon the
ditticulties before the country.

Thirdly, he is charged with having exhibited before the public, in the
exercise of his office, a want of that self-respect, and that veneration for
the office which he fills, and the cause of virtue in the abstract, and with
the violation, in particular, of a single virtue. He is charged with a sin-
gle vice; and it is the only one in this connection which they pretend to
fasten upon him. It is, that he has been intemperate. It is, that he has
80 far forgotten his selt-respect, or so far lost his self-control, as to in-
dulge, at times, in dissipation. And upon that charge they are trying
him here.

These three classifications, when fairly divided, will cover every charge,
whether substantial, legal, trifling, or frivolous, made in these several
Articles of Impeachment. These are the three classes of ofl:ences with
which they charge hi in before 3-ou, and upon which they ask jou, in the
strong language of Counsel, to •' hurl him from the office which he holds."

Near the close of the argument of ray learned friend who pi-eceded me
here, on the part of the Prosecution, he came to a single charge under
the first class of specifications, namely, misdemeanor in office, while in
the exercise of his judicial functions upon the bench. After having ex-
hausted all that could be said on an ex parte, one-sided statement of the
evidence, as Counsel, he chose to glean and separate a specification from
all the rest, and present it to you here at that stage of his argument.
And he comes down to this single charge, and he centres the whole force
of his intellect, and of his zeal, and of his talents generally, upon this
one charge ; showing by the manner in which he presented it, that that
was the only one in which he had any hope of success.

The charge to which I allude, is that of misdemeanor while upon the
bench, in the trial of Judge Terry for fighting a duel and killing Senator
Broderick. When he comes to that, he presents it to you as the real
charge upon which he bases his argument.

516 *1

And I propose, as briefly as I can, to examine that case and bring be-
fore you the evidence concerning Judge Ilardj-'s conduct on that occasion.
As that is the gravest charge, as that is the charge upon which they fall
back and rely, I therefore propose to present that charge to your consid-
eration first.

The indictment charged Judge Terry with having fought a duel " by
previous agreement" — that is the language of the statute, having fought
a duel by previous agreement — and in that duel having killed one David
C. Broderick. That Avas the chai'ge in the case brought before the Dis-
trict Court in Marin County, where Judge Hard}^ was pi*esiding.

JSTow. Senators, let us look at this evidence. Let us see if the conclu-
sion Avhich the Counsel arrives at with such apparent confidence, and
with so much triumph of tone, is well founded, well sustaiuetl by the evi-
dence, when you take the evidence upon botli sides.

And what is the evidence. I think I can state the evidence from
memory, Avithout referring to the printed testimony as officially rcjiorted.
If I should make any mistake, if I should fall into an}' error in stating ,
this evidence, the learned and eloquent Counsel who is to follow me has
ample opportunity for correcting me, and he will not fail to do so.

On the second day of July, eighteen hundred and sixty, the case of i
The People vs. David S. Tci-ry, was presented to the District Court of j
Marin County, to Avhich it had been removed from the City and County
of San Francisco, where the indictment had been found.

The People appeared there, with the District Attorney of Marin County, j
and the District Attorney for San Francisco Cit}' and County, or his part- !
ner, for Counsel. They brought their witnesses there. It was near the
Fourth of July. The trial, if proceeded with, must necessarily last until
the Fourth of July. For the convenience of all parties concerned, it was
understood and arranged that the case should be set for the sixth day of
July. It was so set. It was set, in the language of the record, "for the
sixth day of July, at nine o'clock in the morning." That is the time for
which the case was set. That is the time for which the trial was an-
nounced. That is the time tliat the Judge sitting upon the bench was
notified and understood Avas the hour at Avhich that trial Avas to com-
mence. Is there one Avord of evidence here that he (the Judge) kneAV
that any other iiour Avas fixed ujwn by anybody else ? Is there any evi-
dence that the Judge kncAv that the District Attorney of San Francisco,
or his -partner, Avas going to take doAvn to San Francisco subpoenas re-
turnable at a later hour? I ask the gentlemen: Where is the evidence
of any such knoAvledge on the part of Judge Hardy ? Not one Avord has
appeared.

Remember. Senators, you are not here trying tlie District Attorney for
having made those subpoenas returnable for an liour after the time for
which the case was set. Eemember that you are not trying anybody
here but Judge Hardy. And, belbre Judge Hardy can be convicted upon
any cAndeuce of any act of a public officer, or of anybody else, in rela-
tion to that trial, it must appear that Judge Hardy was a i)arty to any
guch arrangement, and that he had, at least, a knoAvlcdgc of such a fact.
There is no such knoAvledge proven here. Judge Hardy was as ignorant
of the time Avhen the subpoenas would be made returnable, as Avas the
man the most remote from the spot where the trial took place.

The time Avas fixed for commencing the trial at nine o'clock in the
morning. Judge Hardy knew that fact ; and that Avas all that he kncAV
until after the jury Avere empanelled.

I ask you, is there any evidence in this case at all, that there w^as one

517

word Raid about the subpoenas being made returnable at ten o'clock, un-
til after the jury were ein))anelled 'r

They charge Judge Hardy here with two offences upon that trial. They
charge Judge Hai-dy here with permitting the District Attorney to em-
panel that jury before he (Hardy) knew that his (the Prosecuting At-
torney's) witnesses were present. And their theory, the theory of their
accusation, is, that Judge Hardy was bound to exc.i«cise a censorship over
the public officers of that county; that he was bound to see that the
Sheriff, and the Clerks, and the otlier officers, did their dut}' as officers,
in sununoning and drawing a jury. I say that their theory requires all
this in effect. Because, if lie was responsible for the acts of the District
Attorney; if he was bound to sec that the District Attorney issued the
proper subpcBnas, put in the proper names, made thorn returnable at the
proper time, he was equally bound to sec that those subpoenas were prop-
erly served here in San Francisco.

Look to the extent to which their tlieory will carry them — requiring
Judge Hardy to have that kind of prescience, which will inform him, or
should have informed him. judicially, that these officers were not doing
their duty ; should have informed him that the jury had not been properly
drawn by tlie proper officers and in the proper manner, before the venire
was issued ; requiring him to see when the venire was issued ; to see that
the Sheriff did his duty, in summoning the jury properly, and to summon
them all. instead of selecting a given number. He Avas bound to under-
stand and do all this, if their theor^^ is correct.

And he was bound to go farther : When the acting District Attorney
of San Francisco, who went up to prosecute this ease, when that officer
took the subpoena from the Clerk of that county, or from the proper au-
thority for issuing it there, he (Judge Hardy) was bound to see that
Judge Cam])bell, who represented the Disti-ict Attorney, performed his
duty down here, in delivering that subpoena to the Sheriff in proper
time.

The evidence is, that the subpoena was sent down by the hands of those
who went up there to attend to the case on behalf of The People.

Eight here, let me ask you : Do you remember when that subpoena did
reach the hands of the Sheriff here ? Look at the testimony of Mr.
Taylor, the Clerk of that Court, who exhibits the record here, and a copy
of the subpcena, with the official certificate upon the back of it, signed
by the Sheriff of this county, who summoned the witnesses.

On the second day of July, mark you, this subpcena was issued and
put into the hands of the prosecuting officer, who came up there for the
purpose of seeing that the law was vindicated — seeing that the case was
properl}^ prosecuted — that case which was based upon an accusation of
an offence which must be proved, if at all, by the evidence of citizens of
this city, an offence committed in this county.

What docs Mr. Sheriff Doane's certificate show ? Look at Mr. Tay-
lor's testimony and the record which he exhibits here, and you will find
that it shows this :

"Sheriff's Office, | ^^

City and County of San Francisco, j '
I hereby certify that I received the annexed subpoena on the 5th day
of July, A. D. 1860, and on the same day duly served the same on F. A.
Holman, J. M. McNulty, (or C. A. McNulty,) D. D. Colton, Thomas
Hayes, Henry Fritz, J. W. Lees, B. Lagarde, (or Legarde,) and M. J.
Burke — witnesses therein named — by showing and explaining to every

518

one of said witnesses, personally, in the City and County of San Fran-
cisco, the said annexed original. And further, that after due diligent
search and inquiry, I have been unable to find Doctor Sawj^er, Leonidas
Haskell, Calhoun Benham, and Joseph C. McKibben, other witnesses
therein named, within my city and county, and that I am told and be-
lieve that the said Benham and the said McKibben are at present not in
the State of California.-

CHAELES DOANE, Sheriff.

By John Hill, Dej)uty.
San Francisco, July 6, 1860."

This case was set for trial on the sixth of July, and had been so set
ever since the second of July. And, not only were the usual and ordi-
nary officers of Mai'in County charged with this prosecution, but here
was an officer sent up from this city to urge that pi'osecution. That of-
ficer from this city, acting District Attorney, Avas entrusted with that
subpoena — to be brought down here — and he was to see that it was
properly executed. And Judge Harch' is sought to be charged with the
consequences of that subpteiia not having been properly executed here.

From the second day of Jul}', eighteen hundi-ed and sixty, to the fifth
day of July — and it don't appear how late on the fifth — there never was
the first step taken in regard to this matter, excejit to insert some new
names in the subpoena. On the fifth day of Jul}- — how late in the after-
noon of that day I have no right to say, because the recoi-d don't show
^on the fifth day of July. (when, it will be remembered, the trial was
set for the sixth, at nine o'clock in the morning,) the public officer en-
trusted with the charge of this business, of this particular duty, delivers
that subpcena to the Sheriff of the City and County of San Francisco,
authorizing that officer to summon witnesses to appear at Marin County
on the next morning, at nine o'clock.

Is Judge Hardy responsible for that ? Do they seek to hold Judge
Hardy liable to Impeachment here, because of the neglect to procure
the summoning of those witnesses in time? Judge Hardy is the man
on trial here. Before you can convict him, you must show that he has
been guilty of wilful and corrupt misconduct in this matter.

The return states the names of the witnesses — those whom the Sheriff
found, and those who were out of the State :

"And further, that after due diligent search and inquiry. I have been
unable to find Dr. Saw3'er, Leonidas Haskell, Calhoun Benham, and Jo-
seph C. McKil>ben, other witnesses therein named, Avitliin my city and
county, and that I am told and believe that the said Benham and the
said McKibben are at present not in the State of California."

May I appeal, for a moment, to the history of those times, so fre-
quently and so freely referred to in the argument of Counsel here ? May
I be permitted to ask Senators to remember, when I shall come to an-
other branch of this argument, that Joseph C. McKibben and Calhoun
Benham, if anj-body, were the men who arranged this duel — McKibben
on the one side, and Benham on the other. This is not in evidence. I
state it only in answer to the statements of Counsel, as to the history of
the prosecution in the case on trial there.

Now, Avhat is the next step in this proceeding, concerning which they
accuse Judge Hardy ?

Why, the witnesses did not arrive at nine o'clock. Judge Hardy did

519

not know, until after the jury had been cmijanelled, when tlie subjioena
was made returnable. I appeal to yonr recollection of the testimony
on this point. I have not time to read it now, but I Avill point it out, if
Counsel will question this fact. I will show the testimony in relation to
this matter at the proper time, and thus save the necessity of recurrini;
to it in detail now. Tlie evidence upon that point is, that Judge Hard}',
after the jury had been empanelled, and when the Counsel for Judge
Terr}- were pressing on the trial, and insisting that it should proceed,
or a verdict be taken — that then Judge Hardy asked the District Attor-
ney for what hour the subpoenas were returnable, and was answered,
" ten o'clock." Down to that time, or up to that time. Judge Hardy
had no knowledge contrary- to the supposition that the subpoenas were
made returnable at nine o'clock.

Wh}' that subpoena Avas not made returnable at nine o'clock — why
that process did not summon these witnesses to appear at the hour for
which this trial was fixed, does not appear. There is no pretence, or
shadow of pretence here, that Judge Hardy knew anj-thing about this.

But the vory moment that Judge Hardy was informed "that the wit-
nesses for the prosecution were summoned for ten o'clock, he utterly re-
fused to proceed any flirther in the matter before the expiration of the
time in which they had to appear.

Wh}' did those witnesses not appear? Wh}-, say Counsel, it is a well
known fact that the steamboat leaves here, for San Quentin, at one
o'clock in the afternoon. By that boat they Avould have been too late
on that day.

But, if tlie officer who had charge of that subprena, if Judge Camp-
bell, who was partner of the District Attorne}^ of this city, at that time,
had put that subpix'na in the hands of the Sheriff on the second day of
July, immediately after his return here, or on the third day of July,
what would have been the result ? When would the witnesses have gone
then ? When did Terry's witnesses go ? When did Terry and his
Counsel go ? They went on the day before. They arrived there about
the middle of the afternoon, or a little later, by the regular conveyance
— by the cei-tain, safe, reliable, mode of communication. They went by
steamer. Is there any excuse for the witnesses of the prosecution not
having taken the same course ? So far as their individual excuse is con-
cerned, it may be urged, for aught I know, that they were not sum-
moned until after the one o'clock boat had gone, on the day preceding.
It may be urged, for aught I know, that the Sheriff did not get the sub-
poena from Judge Campbell until after one o'clock on the fifth.

If this is so, shall Judge Hardy be made the victim of the consequen-
ces of that neglect ? If that is the fact, will 3'ou hold Judge Hardy
responsible for these witnesses not being there ; or for having gone on
at the usual hour for opening the Court, and commencing this trial after
having prosecuted some little business for the President of this body,
who Avas there as Counsel in some civil matters ? Will you hold Judge
Hardy responsible for this, and, in the language of Counsel, for this
" hurl him from the high position he now occupies ?"

The Avitnesses could have been there if they had been subpoenaed in
time. If they had been subpcjenaed in time, there is no good reason Avhy
they should not liaA-e been there in time.

They did not arrive at the county seat of Marin County until after
half past tAvelve o'clock on the next day — on the day when the case Avas
eet for trial. The trial Avas set for nine o'clock in the morning ; and the

520

witnesses, without the knowledge of Judge Hardy, were summoned to
appear at ten o'clock.

The Avitnesses started in time to get there (at San Rafael) at half
past twelve o'clock — three and a lialf hours after the time fixed for the
trial ; two and a half hours after the time mentioned in the subpoena.

And because of this dereliction of duty somewhere ; because of the
failure to prepare that prosecution, and to bring those witnesses there in
time, they ask you to " hurl " Judge Hardy from the Bench.

Not only did tliey not get in all their witnesses there by the time
fixed by the subpoena, or Avithin reasonable time thereafter, but when
they came there, I undertake to saj^ in answer to a statement made be-
fore you, which was evidently intended to operate as evidence — in an-
swer to tluxt, I undertake to say : Had they been there, they could not
have made out a case against Judge Terry, according to the terms of the
indictment.

When Judge Campbell stated, for the purpose of showing Judge
Hardy's "wilful," and •• partial," and "'corrupt" feeling, and conduct, in
this case, when he undertook to state that he could procure a witness
who he liad been informed would swear that when Judge Hardy came off
the bench he declared that " If this had failed, they had another string
that would catch them." That declaration was made before you. Sena-
tors, in open Court. That declaration has gone into the public newspa-
pers, and has produced its effect uj)t)n Judge Hardy. It has gone into
the papers, too. without one single allusion to the re])]y that I made ;
which was, that Judge Hardy's solemn assurance was to me, in the con-
fidential relation of Counsel and client, that Judge Frink could not
testifj' to any such statement of his ; luit that, on the contrary, Judge
Hardy, when he came from the bench, did express to the Counsel for
Judge Terry, his regret that they should have pursued the course which
the}^ did, and insisted upon their strict right.

And, when I state that tlie prosecution in that case had failed to use
ordinary diligence — that it was their fault — that the fault in the case all
lay at their door — I will ask the Counsel to point me to one word of
evidence which they had witnesses there to give, which could have made
out even i\. prima far ie case against Judge Teny, upon that occasion.

They say that Judge Hardy knew, in advance, about the course of this
defence. They charge Judge Hardy with information as to the line of
defence. If he did know, if he was aware of the theory of the case on
the part of the defence, what evidence was going to be given, and what
course was going to be pursued — I say, " the course that was going to be
pursued." because Judge Campbell told you, this morning, that Judge
Hardy was familiar with the whole programme of the defence — I say,
that if Judge Hardy had a knowledge beforehand of the entire pro-
gramme, he knew that the prosecution could not make out their case, as
the^" had prepared it.

What was that charge ?.

" The People of the State of California against David S. Terry, in-
dicted for killing David C. Broderick, in a duel fought Uj preoiom agree-
ment." That is the offence the statute makes. And that is the offence
for which Judge Terry was indicted. He was not indicted for, and could
not be convicted of, having killed David C. Broderick, in any other man-
ner, under our statute. Under that indictment, the prosecution could
not have proved that Terry killed Broderick, and rested there. The
offence would not then have been made out. The offence consisted in
fighting a duel hy previous apjyointment and agreement. And I need not ask

521

Counsel if there is one word of evidence here going to show that the
prosecution Avas pre2)arcd to make out this offence. And if Judge Camp-
bell was here — and I regret exceedingly tliat he is not — I would ask
him — since he lias made a statement here, which we took as evidence,
without oath — whellicr there was a man there, or whether there was a
man who was coming there, as a witness, who could have sworn to any
previous arrangement to fight this duel ?

There is something very significant in Sheriff Doane's return. Joseph
McKibben and Calhoun Ben ham are out of the State. Judge Campbell
appealed to j-our knowledge of the history of this transaction. I appeal
to your knowledge of the history of this transaction, too. He appealed
to your knowledge of the case, for the purj)ose of showing the import-
ance of the case, the excitement it produced, the character of the par-
ties that were engaged in it — for all this is not in evidence. I appeal to
your knowledge of the history of the case, to show that it is just as well
known from that history that Joseph C. McKiliben and Calhoun Ben-
bam were the only men who knew anything about this '-previous ar-
rangement and agreement " to fight a duel. And if Judge Hardy had
been the warm friend of Judge Terry which they accuse him of having
been, if he had had the knowledge which they accuse him of having had,
if he had known the programme of the case, he would have known that
upon a trial of the merits of the case, there would not have been a legal
possibility of convicting Terry.

In connection with Judge Campbell's statement, that Judge Frink
would swear to an expression by Judge Hardy : That there was another
string that would catch them. That is a mere para))lirase upon what
Judge Frink would have sworn to. The proof would Jiave been, that
Judge Hardy, on that occasion, expressed to Counsel for Terry his re-
grets at what had taken place, rebuked them, declared that he thought
they were unwise in taking the course they did. and insisting upon their
strict Icijcal ri<rht : avcU knowiny;, if he had the knowledge which they ac-
case him of having; knowing, probably, at that time, after the trial was
over, after he had come off the bench ; knowing by that time, from the
conversation of Counsel and bystanders, what the proof on the part of the
prosecution would have been ; knowing that the}^ could not have made
out any case against Judge Terry — for the reason that they had not pre-
pared "their case properh', that they had not the evidence of a previous
arraiigement and agreement to fight the duel.

This is the answer, which I only make for the purpose of counteract-
ing that most extraordinary statement of Judge Campbell — concerning
wiiat he could prove by a witness which he could not get here. True,
you have no right to attach one particle of credence or importance to
that statement ;'but I have seen fit to contradict it to this extent — be-
lieving that I have gone no farther than the circumstances which sur-
roundthe evidence in the case warrant me in going.

Now, let us see what the evidence is of the proceedings before Judge
Hardy on that morning.

You have Mr. Shafter's testimony first. And I beg leave to give you
the Avhole of that again. I want every word of it ; and 1 want you to
remember it.

Mr. Campbell asks the witness. Mr. Shafter, his place of residence, his
occu])ation, and how long he had resided here.

I read from page one hundred and twenty-nine of the ofiicial report :

522

(£ Q. — Did you attend the July term of the Seventh Judicial District,
held in Marin County, in the year eighteen hundred and sixty?

A. — I have been in attendance upon the Marin Circuit Court almost
every term since eighteen hundred and iifty-six. I think that I was
there present at this Jul}" term, eighteen hundred and sixty. I see, by
this piece of paper which I hold in m}- hand, that I must have been pre-
sent at the Jul}' term, eighteen hundred and sixty.

Q. — Do you recollect the pendency of a case in that Court, daring that
July term, entitled ' The People of the State of California against David
S. terry ? '

A. — I was in San Rafael on the second or third of July, eighteen
hundred and sixty, when the case was called in the Diati'ict Court there.
According to my recollection, it was set for trial for what seems to have
been the sixth of July. I should not remember the day, but that I see
the minutes state that it was the sixth of July.

Mr. Williams. — At what time was it that it Avas set for trial ?

A. — I think it was the second or third of July when the order was
entered.

Mr. Camphell. — Who presided at that term of the Court ?

A. — The present Respondent, Judge Ilai'dy.

Q. — The case to which you allude was founded upon an indictment for
the killing of David C. Broderick in a duel, fought by appointment?

A. — I never read the indictment, myself I was present, perhaps, and
beard it read in Court. But I do not know that I even heard it read.
That was the indictment, undoubtedly.

Q. — Xow state all you know in reference to the proceedings on that
trial.

A. — I think thht on the day on which it was set for trial, it was set for
nine o'clock of this day — the sixth of July, eighteen hundred and sixty.
I was there in the Court room, having some business of my own, at that
time, to transact before the Court. The Court went in in the morning, and
the case Avas called. Upon the case being called, there was sometliing
said by the District Attorney about his not being able to go on Avith the
trial, on account of the absence of witnesses. He stated that he had
caused them to be subpanaed ; and I think that the phrase was, that he
bad exhausted all the means known to the law to get them there. He
said that they were not there. But I undei'stood him to say that they
were then in a boat in the 'creek' — a small creek in Avliich boats come
up to within a mile and a half of the Town of San Rafael."

This is Avhat took place before the empanelling of the jury.

They tirst charge Judge Hardy with misconduct, in allowing that
jury to be empanelled at that time. They then charge him with miscon-
duct in not having delayed the trial after the jury had been empanelled,
and a recess had been taken, and the hour for the return of the subpoena
had arrived.

Upon this first branch, as to whether Judge Hardy erred — not
whether he wilfully and corruptly pressed on that trial — but as to
whether he even erred, as a Judge, in any respect, in allowing that jury
to be empanelled before the witnesses had arrived — upon this branch of
the case. I have now a word to say.

The District Attorney stated that the witnesses had not arrived ; that
he had issued his subpoena, and exhausted his power to get them there.
It was there stated, when that jury were about to be empanelled, that
the witnesses were in the creek, in the creek that comes up within a

523

mile and a half of the Court House. That was stated in open Court.
That was communicated to Judge Hardy sitting upon the bench, and
Judge Hardy. U])on that information, permitted tliem to proceed with
the omjianelling of the jury ; believing, Tindoubtedly, as eveiybody
there believed, that that statement was true — that if the witnesses
were there in the creek, they would be up at the Court House by the
time the Jury were empanelled. Was there any error then on the part
of Judge Hardy, in allowing that trial to proceed t Not in pressing on
the trial — as they sought to show ; not in saying "Time is up;" not in
doing anything in favor of accelerating proceedings in that case — ^but
was there any error on his part, in that he did not, when the District
Attorney said that the Avitnesses were in the creek, that he did not stop
the District Attoi-ney from empanelling the jury until such time as the
witnesses should arrive? Whj', if he had done that, would it not have
been the most extraordinary proceeding, on the part of a Judge, that was ,
ever heard of in criminal jurisprudence? When a public oliicer, ANdio is
entrusted with this class of business, avows that his witnesses are in
sight, or in a boat in a creek near by, and asks to have the jury em-
panelled, would it not be a most extraordinary thing for a Judge to say :
" Mr. District Attorney, I will not allow you to go on, until I see your wit-
nesses here in Court. I will not take your word in regard to their being
in sight, or near at hand. I want to see the men here; I want to see
who 3"0u can rely upon as witnesses, before I wnll let you go on and em-
panel a juiy." Would not that have been a most extraordinary exer-
cise of judicial power?

" I understood him [that is, the District Attorney] to say that they
were then in a boat in the ' creek' ''—

Who were in the boat ? The witnesses for the prosecution, of course.

" — A small creek in which boats come up to Avithin a mile and a half
of the Town of San Eafacl. If wax then sw/ucMed" —

" Suggested " by whom ? By Judge Hardy ? No. Judge Hardy
made no such suggestion. It was then "suggested" between Counsel
that the empanelling of the jury should proceed ; that the witnesses
were in the creek. '• They will be here befoi'e we can get our jury em-
panelled." is the " ^iggestion" of Counsel among each other. And
right here Judge Hardy is made the object of a grave accusation, upon
which he is sought to be removed from office, and forever disgraced.
And this is their strong charge; this is the accusation Avhich they sup-
pose is a clincher upon this wliole charge of misconduct in office — saved
for the last, and presented Avith such apparent confidence.

" It Avas then suggested that the trial should proceed — as I understood
it, with the expect'ation that these Avitnesses might arri\-e in time to be
examined in the case. The Clerk of the Court, Mr. Taylor, w^ho is pre-
sent here, from a paper in his hand was directed to, or on direction did,
read the call of the jury."

Not to empanel the jury then, upon that paper.

If there Avas this haste, if there was this precipitation, Avhicli is
charo-ed, in reference to this case, why did they alloAv this time to be
wasted in reading over this long list of names made by the Clerk, or the
venire that had been returned by the Sheriff.

" The Clerk of the Court, Mr. Taylor, who is present here, from a
paper in his hand, was directed to, or on direction did, read the call of
the jury."

52-1

The whole jury. Eead the list of the names of the whole jury sum-
moned. And yet they have endeavored to cany the idea here, that
there was nothing done in that case, except to merely take up a paper
and read from the top — by agreement of Counsel — the first twelve
names, and put their owners in the box. Precipitation ! Were they in
a hurry ?

Who gave the direction to use up this time iu the calling of the whole
panel, so as to see who were present, before proceeding to empanel the
jury ?

"J/r. Camphell. — Who gave that direction ?

A.— The Court. I think, Sir.

Q. — Judire Hardv ?

A.— YesT Sir."
•

Was Judge Hard}' in a hurry ? Did he want to '• precipitate " this
trial ? Why did he waste this time, pray, if he did ?

"j|/r. Camphell. — Who gave that direction ?

A.— The Court. I think. Sir.

Q.— J udge Hardy ?

A. — Yes, Sir. That call was for the purpose, I suppose, of ascertain-
ing what jur3'men were present under the venii-e. I do not know the
number of names that were called ; but there must have been quite up
to thirt}- or forty names, I should think. 1 might overstate the number,
perhaps, but 1 sliould think there were thirtj' or forty names. Most of
those who w^ere called, responded. Some few were absent. After the
call had been gone through with. Judge Hardy asked the Counsel how
they Avould have the jury empanelled ; whether it should be taken from
the Clerk's list, or drawn from the box. Mr. Hoge, who appeared for
the defendant, after a moment's hesitation, responded that they were
willing, or that they consented — I do not recollect the precise terminol-
ogy of the phrase — that thc}' were willing to take the jury from the
Clerk's list. And the District Attorney, either with or without being
appealed to, assented to that mode of drawing the •jury. According to
this agreement, twelve names were called, and the individuals who re-
sponded to those names took their seats in the jury box."

They agree that the names should be taken from the Clerk's list.
And the Prosecution here make that the sultject of accusation — that
Judge Hardy allowed the District Attorney, that Judge Hard}- did not
interfere to prevent the District Attorney from consenting to this mode
of calling and empanelling a jur}' I And it was stated here, in one of
these interlocutory discussions, that such a thing was never heard of before,
as calling the list of jurors from the venire, without the list of names hav-
ing been cut up and put into a box. We proved, bj^one of their own wit-
nesses, that it had been done ; proved that it had been done in the Third
District, in Alameda County, by the consent of the District Attorney.
And the Judge did not venture to interfere with that consent, and with
that mode of empanelling a jurj^. In that case, the whole jury were em-
panelled in as short a time as was this. Their own evidence shows that.
Their witness swears to that. On the trial of a capital offence, too.
On a trial which was to involve the death of the defendant if he was
convicted. And there the Judge allowed the Counsel to pursue their
own course.

525

But what is the objection to this ? What is the objection to calling
the names right down througii ? Was it an agreement that they would
positively take the first twelve jurors named? ~No ; there Avere some
challenges. Three, at least, were rejected. Two rejected upon exam-
ination, one peremptorily challenged, as they went along.

Where is the wrong in this'/ Counsel told you that it was the usual
course for the defendant's Counsel, as well as the prosecutors, to have a
copj^ of the jury list from the Clerk before a criminal trial commences.
The}' know, on both sides, what names are on that list. Does it neces-
sarily result, that because they agree to waive the putting of the names
in the box, objectionable men are taken as jurors "/ Why, the right to
object to each and every name, when called, that is seen upon that list,
is just as perfect as if the names had been put into a box and drawn
therefrom. And that right was exercised. A name was called, and the
man was objected to on the one side or the other. Questions were asked,
and upon the answers two jurors were set aside. Another one was asked
whether he sympathized with the Vigilance Committee or not. He
replied that he did. He was objected to b}' Terry's Counsel. Judge
Hardy decided that the entertaining of that sympathy did not consti-
tute a disqualification on the part of that juror. And Judge Hardy was
Terr^-'s friend, they say. He was hustling through this trial, they say.
He was bent on an acquittal of Terry, right or wrong, they say. Upon
that examination Judge Hardy decided that Judge Terry's objection to
the juror was not well taken, that it was not a valid objection. '^ Then,"
said the Counsel for the defence, " we challenge him peremptorily."
And that man was challenged peremptorily.

Does this look like '-hurrying through the empanelment of a jury" —
" taking the first twelve names called T' Does this look as though there
was an understanding and intention exhibited there to empanel that
jury in the shortest possible time, and take a verdict before those wit-
nesses could arrive from their reported distance — a mile and a half dis-
tant from the Court House — in the '• creek?"

They went through the list in the usual manner. Mr. Hoge tells you
that there was nothing unusual in the mode of empanelling that jury.
He has tried a great many jury cases. He has thirty years' exj)erieuce, I
think — twenty or twenty-five years' experience, certainly. He has tried
a great many cases; and there was nothing in the mode of empanelling
that jurj-, or in the time in which it was empanelled, that was at all
unusual, or that struck him as anything extraordinary.

Other witnesses testify to the same thing. Other witnesses whom
they call, testify that there was nothing unusual in the mode of em-
panelling that jury. Judge Hardy overruled Judge Terry's objection to
a juror.

Mr. Shaffer testifies, in reply to the question as to who gave the direc-
tion to call the entire list of jurors before commencing to empanel a
jury — " The Court, I think, Sir." The Court ordered this consumption
of time.

Mr. Shaffer subsequently says :

" That call was for the purpose, I sujspose, of ascertaining what jury-
men were present under the venire. I do not know the number of
names that were called ; but there must have been quite up to thirty or
forty names, I should think. I might overstate the number, perhaps,
but I sliould think there were thirty or forty names. Most of those
who were called, responded. Some few were absent. After the call had

526

been gone through with, Judge Hardy asked the Counsel how they
would^have the jury empanelled; whether it should be taken from the!
Clerk's list, or drawn from the box. Mr. Hoge, who appeared for the
defendant, after a moment's hesitation, responded that they were wil-
ling, or that they consented — I do not recollect the precise terminology
of the phrase — that they were willing to take the jury from the Clerk's
list."

Take it, of course, subject to objection on either side, as each name
should be called.

Mr. Shatter continues :

"And the District Attorne}-, either with or without being appealed
to, assented to that mode of drawing the jury."

According to the theory of the Prosecution, Judge Hardy ought to
have interposed then, and said, '• You must not draw the jury in that
way, Mr. District Attorney. You are not doing 3-oar duty to the public.
You must Have the names cut up and put in a box." And the Counsel
have claimed that the mode adopted here, was an unprecedented, un-
heard of way of empanelling a jvLry. And yet the evidence shows that
this was not an unprecedented, nor an unheard of, nor a very unusual
mode of drawing a jury.

"According to this agreement, twelve names were called, and the indi-
viduals who responded to those names took their scats in the jury box."

Took their seats in the jury box, preparatory to being examined.

After they had taken their'seats in the jury box, they were examined,
and three of them w.ere set aside ; and, of course, three more were sum-
moned into the box. subject to the same kind of examination, subject
to the same right of cross examination which existed before, subject to
the fullest scrutiny from both sides.

And why was not this kind of scrutiny exercised ? Why did not the
District Attorney exercise this kind of scrutiny which they say ought to
have been exercised ? "Whj^ did they do what Judge Campbell says is
always done in this city — spend a day, at least, in empanelling a jury ? |
Spend a day, at least, in questioning and empanelling a jury in a small j
county like Marin County, where the District Attorney knows every man '
who is summoned on a jury, is aware of every circumstance by which he
is surrounded, and is as well prepared, when he sees a man's tace in the j
box, or hears his name called, to say whether there is any objection to {
that man, as he would be if they spent a day in examining, and made all
the parade and all the display, and exhibited all the zeal on each side,
which Judge Campbell says they are in the habit of making here.

"J/r. Camphdl. — Just let me ask you how that list was made out ?

A. — "Well, it Avas read from a paper by the Clerk. Whether the list
was prepared specially by the Clerk, or whether the Clerk read from the
venire itself, I have no means of knowing. I have no personal knowl-
edge of that matter."

Mr. Taylor tells you that it was read from the venire, as the Sheriff
returned it. .That fact is established. The Clerk did not make it out
arbitrarily. The Clerk himself says that he read it from the venire it- !
self, just as the names stood there and came to his hands from the Sheriff.

527

" The first twelve iiamea which he called off, or the first twelve names
to which there were responses, came into the box. The first person
called was Jacob Short, I think, who was accepted. Then they were
taken down through the list regularly, I suppose; perhaps not. One
man was called up, and a challenge for cause sustained against him."

Not taking the first twelve names arbitrarily and absolutely. Here
was a man cliaUtjngfd for cauac^ and the challenge sustained.

" I don't know as it is essential to state all these proceedings. I
^self acquainted with almost all the jurymen."

Mr. Shafter, who is only there occasionally — only there occasionally —
who lives in 8an Francisco, where his business is, he was acquainted with
nearly every juryman. And, if he had been District Attorney, he could
have told, when a man was in the box whom he knew, whether he would
be a competent and fair jurj^nan, without going through this idle cere-
mony of spending a day to emjninel a jury. How much more readily
would a person who was the District Attorney of that small county, who
resided there, who was in the habit of seeing jurors there regularl}', from
term to term of C'ourt, how much more readily would he know any man
when he came into the box, and how much more easily, and positively,
and frequently, would he know when he saw a man to whom he could
have no legitimate objection?

" Jacob Short, I think, was the first man. I am not positive. Mr.
Frank, or Franklin Miller, was asked if he had been a member of a
Vigilance Committee, and 1 think he responded that he had been. He
was challeno-ed, and I think that the challenoe was allowed. After he
left the box. another person was challenged, as prejudiced, and excused
for the same reason."

Not quite so " precipitous !"

They examined one inan here, as to whether he had been a member of
the A'igilance Committee. The case was presented to the Court —
whether argued or not, does not appear. The Court passed upon it, de-
cided upon it, and he left the box. Another person was challenged,
as prejudiced, and excused for the same reason.

" Q. — Who were those jurymen challenged by?

A. — By the defendant's Counsel ; by the Counsel of Terry.

Q. — Go on with 3'our account of the pi-oceedings, if you please.

A. — A man was called, whose name I have forgotten, and was asked
if he had ever belonged to a Vigilance Committee. He replied that he
had not. He was asked if he s^'mpathized with the Vigilance Commit-
tee. After a moment's reflection, he said No.

Q. — Who were these questions asked by ?

A. — By the defendant's Counsel. I think that he was peremptorily
challenged."

" Peremptorily challenged," after the Court had decided that it was
no objection to a man that he had sympathized with the Vigilance Com-
mittee.

Mr. Shafter continues :

528

" There were no Triers, according to mj recollection. After these
two or three persons left the box, others were called, from the list the
Clerk had. to till iij^ the panel. The District Attorney interposed no
challenge, according to mj^ recollection. I beg pardon; there was one
case, Avhicli I overlooked. One of the persons called to the box was
inquired of as to whether he s^-mpathized with the Vigilance Committee.
He stated that he did. For this he was challenged by the respondent's
Counsel. But Judge JIardy intimated that he did not think 'that this
constituted sufficient ground for challenge. The District Attorney — I
sat in the bar, only three or four feet from him — then said something in
a kind of a mumbling tone, which I could not hardl}* understand. From
what I did understand, however, I gathered that he assented to the
challenge.

Q. — You understood that the District Attorney allowed the challenge?

The Fresidi'nj OJiccr. — [Interrupting.] There is evidently a misprint
there. That particular juryman did not take his seat then. The jury-
men who were accepted then took their seats. That particular juryman
was undoubtedly discharged.

Mr. WUliams. — Yes, Sir.

According to Mr. Shafter. I have now given to you all that happened
up to the time of the completion of the enipauelling of the jury.

Mr. Shatter's examination then proceeds:

" Q. — How long did that occupy ?

A. — Well, I suppose this whole proceeding occupied from ten to fifteen
minutes. I do not think over that time. 1 mean, the mere proceedings
in emjianclling the jury, after the reading of the names. After the jury
was empanelled, the District Attorney was called upon to proceed ;
when he made substantiall}' the same statement as before. The defend-
ants then chiimcd — 1 think that they claimed — either that the case pro-
ceed, or that a verdict be rendered. I think that they claimed a ver-
dict.

Q. — I will ask you if you have a memorandum made by you at the
time, concerning this matter?

A. — I came home, and made a memorandum the next morning.

Mr. Camphdl. — Perhaps you had better refer to that, for the purpose of
refreshing your recollection.

A. — I should only do so for the purj^ose of refreshing my recollection;
I think that I recollect all the circumstances now, without the aid of any
such reference. I may not give the precise order in which matters pro-
ceeded. Judge Hard}^, at this moment, upon the verdict being claimed,
asked the District Attorney, Haralson, at what hour the witnesses
were summoned to appear, or when the subpa^nas were returnable. I
believe that Mr. Haralson said ten o'clock. Judge Hardy then looked
at his watch, and told the Counsel for the defendant that they had better
wait until the hour had arrived when the subpoenas were returnable."

Here is the first intimation that Judge Hardy ever had that the sub-
poena was not returnable at nine o'clock. Before that time, knowing

529

that the case was set for trial at nine o'clock, he presumed that the wit-
nesses for the prosecution Avere summoned to appear at that hour. And
when proceedings were commenced, the District Attorne}^ stated that
the witnesses were in sight, in a small boat in the creek. That was
Judge Hardj-'s idea of the matter, until the empanelling of the jury
was completed. When the empanelling was completed, the Counsel
for the defence moved that the trial proceed; that the prosecution
produce their witnesses; and that, if the prosecution had no wit-
nesses, a verdict be taken in favor of the defendant — to which he was
entitled. The defendant then, under those circumstances — as has been
testified bj^ competent Avitnesses on the stand — Avas strictly entitled to a
verdict.

"After the jury was empanelled, the District Attorney was called upon
to proceed ; when he made substantially the same statement as before.
The defendants then claimed — I think that they claimed — either that
the case proceed, or that a verdict be rendered. I think that they
claimed a verdict.

Q. — I will ask you if you have a memorandum made by you at the
time, concerning this matter?

A. — I came home and made a memorandum the next morning.

Mr. CamphrU. — Perhaps you had better refer to that for the purpose of
refreshing your recollection.

A. — I should do so only for the purpose of refreshing my recollection;
I think that I recollect all the circumstances now, without the aid of any
such reference. I may not give the precise order in Avhich matters pro-
ceeded. Judge Hardy, at this moment, upon the verdict being claimed,
asked the District Attorney, Haralson, at what hour the Avitnesses
were summoned to aj)pear, or Avhen the subpoenas were returnable.
I believe that Mr. Haralson said ten o'clock."

This is the first intimation that Judge Hardy ever had of ten o'clock
in connection Avith these Avitnesses.

" I believe that Mr. Haralson said ten o'clock. Judge Hardy then
looked at his watch, and told the Counsel for the defendant that they had
better wait until the hour had arrived when the subpoenas were returna-
ble. He said that it lacked five miimtes of that hour. I looked at my
OAvn Avatch, and found that it lacked tAventy minutes often. I then went
out on the stoop before the Court House, and looked to see if I could
discover the boat containing the Avituesses Avho were expected. I could
not discoA'er it. I then Avent down stairs, and into a saloon kept by Mr.
Gordon. His clock was a little faster than my watch — some few min-
utes. I compared my watch Avith his clock."

Senators will remember that another witness testified that Gordon's
clock Avas a A-ery poor time-keeper ; that sometimes it was too fast, and
sometimes it was too slow. Mr. Shafter verified his watch by that clock
in Gordon's saloon. He did not know but that it was a regular time-
keeper. He presumed that it was. He comjDared his Avatch with that
clock, and found that the clock Avas a few minutes faster than his watch.

" I then went back to the Court House, and started to go up the in-
side stairs. There are inside and outside stairs to the Court House, and
the Court room is in the second story. As I got into the vestibule of
67

530

the Court room, I met the jurymen coming out. I then looked at my
watch ao-ain, and found that it lacked some minutes of ten. I then
passed into the Court room to attend to some business of my own. I
believe that I have stated all the substantial facts connected with the
transaction, so .far as they came under my observation ; except that I
may have overlooked some incidents which did not come to my memory
in the course of the recital which I have made.

Q. — The case was then ended, was it ?

A. — Yes, Sir ; I believe it was. I stayed there the balance of the
morning hours, and left at one o'clock. When I got back into the Court
room, I ascertained that a verdict of " ^N'ot Guilty " had been entered,
and the jury discharged. Of the circumstances attendant upon the ren-
dition of the verdict, I have no personal knowledge whatever.

Q_ — State whether this case was one which had excited a great deal of
public interest throughout the State.

[Mr. Williams objected to this question, on the ground that the testi-
mony it would draw forth would be immaterial.]

Mr. CamphcU. — I think it x>>. material. It is material in this point of
view. We propose to show that this case had excited extraordinary in-
terest throughout the State ; tliat there was a very general feeling of
excitement in relation to it ; that the venue had been changed from the
County of San Francisco, where the indictment was found, to the County
of Marin. We propose to show that during this trial — I can hardly
designate it by that name — no attempt was made to interrogate a single
juryman as to whether he had formed or expressed any opinion in rela-
tion to the merits of the case. Tbat there was an evident, clear, palpa-
ble combination, between all parties there engaged, to throw the case
out of Court by resort to indecent haste in the empanelling of the jury.
That the course of proceeding, then and there, was entirely unprece-
dented. That from all the facts and circumstances then and there exist-
ing, it was the clear duty of the Judge to have interfered in such a man-
ner as to have delayed the case, at least — when he had every reason to
believe that the witnesses for the prosecution would shortly be in attend-
ance.

[Mr. Williams interrupted Mr. Campbell, by saying, that as a compro-
mise, and for the purpose of avoiding the summing up of the case at this
stage, he would withdraw his objection to the question.]

Mr. CampheU. — Please state. Mr. Shafter, whether you know that this
was a ca.se Avhich was considered in common popular conversations ?

A. — Undoubtedly it was so, throughout the State.

Q. — In regard to vs^hich, popular feeling was very genei-ally excited ?

A. — Xo doubt of it. I do not think tbat there ever was a case in
California which excited so much public attention, or excited more gene-
ral feeling. The people of this State are, perhaps, more familiar with
affairs of a horrible character than the people of any other State ; but I
think that this affair attracted far more than an ordinary share of atten-
tion, and aroused far more than an ordinary amount of interest and ex-
citement. I should say that there was far more excitement or feeling in
relation to the matter, than there was in regard to the case of Pen Johns-
ton, who was tried in the same county for the killing of Ferguson in a
duel. I know that most people were talking about it. 3Iany people
were in the habit of talking about it in a very excited manner. The pub-
lic press indulged in several very severe animadversions, or comments,
rather, in regard to the removal of the case from the Fourth to the Sev-
enth Judicial District. No; I think I may say that animadversions is

531

the proper word to use in that connection. I recollect that the public
press denounced the transaction ; and assigned as a reason for the change
of venue, the desire or intention of clearing the defendant by an unfoir
proceeding.

Q. — Was the person whose killing was mentioned in the indictment a
Senator of the United States ?

A. — Yes, Sir, he was.

Q- — And was the defendant, who was charged with the killintr of a
United States Senator in a duel, a Judge of tlie Supreme Court oi' this
State, immediately previous to the occurrence of the duel ?

A. — Yes, Sir.

Q. — And did he leave the bench of the Supreme Court of this State,
resign his commission as one of the Judges of our Supreme Court, just
before engaging in that duel ?

A. — Yes, Sir.

Q. — State what is the usual practice in regard to the examination of
jurors, and the empanelling of persons as jurymen, in criminal cases
which have excited a general public interest?"

And here Mr. Shafter states the general practice, according to his ob-
servation. Upon that subject, there is some conflicting testimony. I
will, therefore, mark this, and leave it until I come to remark upon the
subject of the duties and the customs of a Judge, generally.

" Q. — And the whole matter ended when, by your Avatch, it wanted
some little time of ten o'clock?

Mr. Williums. — AVell, if it please the Court, I object to this recapitula-
tion of evidence by the Counsel.

Q. — Was anytliing said there by the Court, or District Attorney, in
regard to issuing attachments for witnesses?

A. — As to that. 1 have no conclusive recollection. There might have
been something said in regard to that; but I think not.

Q. — Did the District Attorney say anj-thing in relation to the wit-
nesses for the prosecution being on their way to the Court ?

A. — He stated, at the outset, that he was either inibrmed, or knew of
his own knowledge — I think that he stated it as a fact — that the wit-
nesses for the prosecution were in the creek, and would be up in a short
time.

Q. — What were the modes of communication, at that time, between
San Francisco and San Eafael, the county seat of Marin County, when
these proceedings took place ?

A. — Well, there was the regular steamboat communication, as it ex-
ists at the present time. There was a steamboat that ran daily between
San Francisco and Petaluma, which touched at Point Quentin, which is
at a distance of four or five miles fro^ San Eafael. There was not a
wharf at San Quentin at that period, however. At the same time there
were a number of small sailing vessels which ran up into the ' creek,'
to within a mile, or a mile and a half, of the Court House. The steam-
boat always landed at San Quentin. These witnesses were understood
to be expected by a sailboat, and it was said that this boat had actually
arrived in the ' creek.'

Q. — At what time did they arrive ?

A. — At about one quarter to twelve.

Q. — Do you recollect what was the state of the wind on that day ?
Whether it was adverse or propitious for their getting up ?

532

A. — Mj impression is, that it was adverse to their getting up then. I
think they landed at Point San Quentin. instead of coming np the creek;
and came" up to the count}* seat hy stage, or other conveyance — a dis-
tance of four miles, or four miles and a half I know that I went out
when the District Attorney said that they were in the 'creek,' and looked
for them. Standing on the balcony of the Court House, you look
toward the 'creek,' as I now look, standing where I am, towards the
door of this room j while Point San Quentin lies off at an angle in this
direction, [pointing] southeasterly. Standing on the balcony you can
look clear down to the mouth of the 'creek.' So you would be enabled
to see the boat distinctly if it was in sight in the -creek.' But as I
said, the yacht which brought these persons up. landed at Point San
Quentin. The place of landing at that point is not in sight from the
Court House. The witnesses came up from Point San Quentin in the
stage, and I returned with them to San Francisco, in the yacht.

Q. — At what time do you sa}- that they arrived at San Rafael ?

A. — I think about a quarter to twelve o'clock."

The difference between Mr. Shaffer's time and the time of others
would make it about half past twelve o'clock — which is the testimony of
our witnesses.

Mr. Shafter continues his answer :

•■It was nearly twelve o'clock, at any rate — either a little before, or a
little after. That is. b}- my time.

Q. — All this transpired on the sixth of July ?

A. — I could not speak positively, from my mere recollection, as to that.
I should have to reckon back from certain days, in order to do that. But
I know, by reference to my memorandum, that this occurred on the
8ixth of July. 1 know that this memorandum was made by me the next
morning after my return from San Rafael, That the trial was had on
that day. I am positive, from reading this memorandum. I know that I
headed it thus :

•District Court, Seventh Judicial District, County of Marin, July sixth,
eighteen hundred and sixty. People of California vs. David S. Terry.' "

"Well, there is no question about that. It was the sixth of July.

"Jl/r. Campbell. — Have you stated everything 3'ou know in relation to
this case ?

Mr. Shafter. — Mr. Campbell, and General Williams : as one of the Triers
of this case, I feel compelled to state a farther fact, which left a deep
impression on my own mind. I think I should state it, whatever may
be its effect, as it is a fact which the Senate is entitled to know. As I
understood, there was one man who sat upon that trial, as a juryman,
who had before sat upon the jury at the time of the trial of Johnston
for the killincr of Feriruson."

Mr. Shafter did not know that fact, I believe. -'As I understood," he
says. He heard that there was one man sitting upon this trial who had
sat upon the John.ston trial. AYell, suppose that this was the fact. Sup-
pose that Mr. Shafter A-n<?ii-- that this was the fact. Suppose it was proved
to be the fact. Does that necessarih' disqualify a man from sitting upon
another trial of the same kind ? Because a man has sat upon one jury,
empanelled for the trial of a man accused of killing his fellow in a duel,

533

does that forever disqualify that man from sitting upon another jury,
empanelled to try a man for a similar otfence ? If so, then every man
who has ever sat upon a jury during a trial of a man for grand lar-
ceny, is precluded from sitting upon a jury on another trial for grand
larceny.

•' He had openly declared, upon the streets, and in my hearing, that
he would never convict a man for killing another in a duel, provided the
duel w^as a fair one."

Well, suppose he had made this declaration in Mr. Shafter's hearing ?
Did he declare it in Judge Hardy's hearing? Is Judge Hardy responsi-
ble for that 't Did Judge Hardy ever know anytliing about this man's
sentiments on this point? Did Mr. Shafter ever communicate this infor-
mation to Judge Hardy ? You are trying Judge Hardy, Senators.

'•I have every reason to believe and know that information of this
fact was conveyed to the District Attorney, and that he was well informed
as to this matter."

I repeat, you are not trying the District Attorney.

"Another fact: There was a man on that jury, who. at the time of
its empanelling, was under indictment for murder; and who has, since
that time, been convicted of murder in the second degree."

Mr. Shafter is mistaken in that. He probably discovered his mistake
from the testimony which was subsequently given in this case. A wit-
ness from ^Marin County, who knows all about tlie matter, swears that
this man was not under indictment for murder. He had been arrested
for having been engaged in an affra}^ there, for having had a fight, his
case had been examined before the examining Magistrate there, and he
had been discharged by that Magistrate. That was the condition of
that man.

Now suppose Judge Hardy knew this fact. Suppose Judge Hardy
knew that this man, one of the jurors to whom the District Attorney
did not object, had been arraigned before a Justice and examined upon a
charge of murder, and that the Justice had discharged him. I ask you,
whether you think tliat a knowledge of that fact would warrant Judge
Hardy in interfering ajid taking the case out of the hands of the Dis-
trict Attorney ?

But Judge Hardy did not know this foct. He was as ignorant of it as
you were before you heard this testimony.

Subsequent to this time, the witnesses say, this man was arrested
again. Subsequently, the grand jury did indict him, and he was con-
victed of murder in the second degree.

But how was Judge Hardy to know of these prior facts — that this man
had committed an offence, been engaged in a deadly affray ? Or how
was Judge Hardy to know that although this man had been discharged
and had the judicial evidence of his innocence, that there was any proba-
ble cause for putting him on trial for that crime or offence ?

If Judge Hardy did know of all this, did he know that this man was
going to be indicted thereafter for this offence ? Did Judge Hardy know
of this trial, indictment, and conviction, which were going to take place,

534

and which, according to Mr. Shaffer's recollection, had then taken place
— with the exceiDtion of the conviction ?

Mr. Shafter's mistaken recollection was, that this man had been indict-
ed, and was then under indictment. And it might seem to Mr. Shatter
to volunteer this statement, because he thought the Senate ought to know-
it. If there was a man there so notoriously improper to sit as a juror
as that man must be who is under an indictment for murder, and if
Judge Hardy knew this at that time, this would have been very proper
evidence. But not only did Judge Hardy not know that fact, but that
was not the fact. Mr. Shafter Avas mistaken. The indictment was found
at a later period. The fact was, that instead of this man's resting under
an indictment, under a conviction, or a quasi, ex parte conviction, he then
had been pronounced innocent. The magistrate who had sat upon his
case had not only pi'onounced that he had not been proven guilty, but,
according to the statute, he pronounced that there was no probable cause
for holding him for trial.

'' Of course, the fact that he was under an indictment for murder was
known to all the county officers there assembled."

" Of course," it was known to the officers there assembled, when the fact
did not exist !

Is that a fact ? Did Mr. Shafter mean to swear that he knew that the
county officers were aware of the fact that this man Avas then under an
indictment? " Of course," by this remark, Mr. Shafter meant to be un-
derstood as saying, that it must, in the regular course of business, neces-
sarily have come to the knowledge of these county officers that such was
the fact — if it was a fact — which it was not. That is what he means by
the term *' of course." He could not have directly sworn to that. That
is a matter of argument.

I do not think that inferences of witnesses ought to be presented here.
I don't think tliat witnesses ought to say " o/ c-o!<;-.se," etc. Not even
when speaking of facts tltat do or did exist — which was not the case in
this instance. I do not think that that is competent testimony. I do
not think that Counsel have a right to call out such " of courses." If
tliis had been called out on the other side, I should have objected to its
being given in evidence. '■• Of course tliey must have knou-n it." Coming
voluntarily from the President of this honorable Court, I did not choose
to take that liberty, I did not choose to have, I would not have, upon me
even the semblance of disrespect toward the Chair, by making an objec-
tion to this statement that " Of course, the public, the county officers, all
knew of this fact ;" meaning, '• of course," that the Clerk and the Dis-
trict Attorney knew of this. And then the Prosecution seek, of course,
to make Judge Hardy responsible for Avhat the District Attorney knew.
What the District Attorney did not do, and what Mr. Shafter thinks, of
course, the District Attorney did know, the Prosecution would hold Judge
Hardy responsible for. " Of course." all the officers knew this fact — if
it existed — and the inference that was to have been drawn from this was,
that Judge Hardy knew of it. But, unfortunatel}^, the fact did not exist;
and. of course, neither the county officers nor Judge Hardy knew of it.

President Shafter. — [Interrupting.] I was, most unquestionably, mis-
taken about the time when the indictment was found. I ought, properly,
to have state'd at the time of giving my testimony, that I knew that the
public officers must have known that this man was there, because I saw

535

him, myself, in the jail. They were, undoubtedly, better acquainted with
him than I was.

Mr. Wt'Uiams. — Oh, undoubtedly, it was the fact that this man was upon
that jury ?

Mr. Shaffer. — Unquestionably. And if there had been an indictment
against him, the public officers must necessarily have known it.

Senator Mcrritt. — " Of course."

Mr. Williams. — Now, if anybody supposes that I am complaining of Mr.
Shafter for having volunteered this statement, they are mistaken. It
was very proper for him to make that statement — if such had been the
fact. And, if he had stated it in this connection, " I know they must
have known it, because the man was in jail." why, then, of course, the
argument, *' Of course they kncAv it." would have been explained.

But the answer to the whole thing is, the fact did not exist. And Mr.
Shafter, on being reminded of it by the other witnesses, remembered that
it did not exist.

•' He [that is. the man who was supposed to be under indictment for
murder] sat upon that jury; as did also the man who had formerly sat
upon the jury in the Johnston trial."

That is the statement which was presented to this Court against Judge
Hard3^ In addition to the outrages committed by the District Attorney,
Judge Hardy, assenting, silently acquiescing in them, as they say, in ad-
dition to all these, it is sumn\ed up that there were two men on the jury
who should not have been there. Mr. Shafter does not tell you that
Judge Hardy knew anj-thing about this fact — if the fact were so. Mr.
Shafter does not tell you that Judge Hardy knew about these two men,
whom he declares to be improper men to sit upon that jury.

One of these men, the President thought, was under indictment for
murder — known to the public officers to be under indictment for murder
— and. consequently, an improper person to sit upon that jmy. Does a
member of this Court think that there was anything in the fact of this
man's having been examined before a magistrate and discharged, that dis-
qualified him from sitting upon that jury ?

But the other man — what is the matter with him, that he cannot sit
upon that jury ? Wh}^ he had sat in a duelling case before. Pen Johns-
ton was tried "in that county, and this man had sat upon the jury in that
case, and therefore he could not sit upon another jury in a duelling case.
His functions, as a juror in duelling cases, were exhausted. He never
could sit again in such a case. This is the inference that Counsel for the
Prosecution would draw from this testimony, if they had remarked upon
it, if they had deemed it of importance enough to comment upon at all.

This man had sat upon the trial of George Pen Johnston.

" Q. — When you speak of the Johnston trial, what trial do you refer
to?

A. — I mean the trial of George Pen Johnston, for killing Senator Fer-
guson in a duel, on Angel Island."

Then comes a question about Judge Terry's position, which we all
know.

a Q. — Was the defendant in that case a person who very recently held
the position of Chief Justice of the Supreme Court of this State ?
A. — I so stated."

536

And then the direct examination closes.

" Q. — Have you now stated everything that you know in relation to
this case ?

A. — I believe I have."

And then, in answer to this question of my own :

" i/r. Williams. — You speak now of certain individuals who sat upon
that jury ?

A. — No, Sir. I did not state that I knew, of my own knowledge. Of
this I was informed."

Mr. Shafter did not pretend — no, " pretend " is not a proper word — did
not say that he knew it positively, although he thinks now that he did.
He knew that one of these men had been in jail, but he is mistaken about
the time he was in jail.

" A. — No, Sir. I did not state that I knew, of my own knowledge.
Of this I Avas informed; / had no personal knowledge of it tvhatever."

Then this statement, made before by Mr. Shafter, about these two im-
proper jurors, was mere hearsa}'. The President has given you what he
heard — has given you a rumor.

" Of this I was informed ; I had no personal knowledge of it what-
ever.

Q. — And you are speaking of mere hearsay ?

A. — As to the fact of that man's being upon the jury, I speak from in-
formation."

He knew that the man was upon the jury, but of his existence he was
onlj^ informed.

" Q. — Do you know whether anybody told Judge Hardy that this man
was on the jury ? And that this was his condition ?

A. — I have no personal knowledge as to that, whatever. But the in-
dictment against this man. Miller, was then pending in that Court."

The question is : Mr. Shafter, did Judge Hardy know anything about
this ? The reply is : I have no jDcrsonal knowledge that he did, but the
indictment was then pending in that Court.

What conclusion would Counsel draw from that ? Why, that Judge
Hardy, coming from another Court to hold a criminal term in this county,
must have known of this matter from his reading of the docket. Counsel
would say, directly, that Judge Hardy must have known this.

But the fact did not exist. There was no indictment.

"I have no personal knowledge that Judge Hardy knew of this fact.

Q. — Judge Hardy was not living there, was he ?

A.— No,^Sir.

Q. — That was not his District ?

A. — No, Sir.

587

Q. — ^You don't know that Judge Hardy ever heard of these facts, do
you?

A. — I do not know that Judg-e Hardy had ever been personally in-
formed regarding them. I cannot say whether Miller's indictment was
called, and his trial continued that term or not."

If it was called, as it might have been, Judge Hard}^ must have known
it. That is the inference left. Must have known it from the identity of
names, I suj)pose.

" I am of Counsel in Miller's case now, but was not at that time. I
don't know as Judge Hardy knew of its pendency then."

Well, I don't think he did; because it was not pending.

" Q. — Now as regards the custom and practice."

This is in connection with what 1 omitted to read before. I intended
to read it Avhen I remarked on the testimony of other witnesses on that
subject. But I do not know but I may just as well read all of Mr. Shaf-
ter's testimony now, in order to do him justice.

So I will turn back to page one hundred and thirty-three of the official
report of the testimony, and read the portion I omitted before.

" Q. — State what is the usual practice in regard to the examination of
jurors, and the empanelling of persons as jurymen, in criminal cases
which iiave excited a general public interest.

A. — So far as my own practice, and my observation of the practice of
others, extends, it has always been, in all cases, the practice of lawyers to
examine candidates for jurymen rigidly, in order to ascertain their precise
mental condition in reference to the case which was to be brought before
them. In every other case which I have ever known, this course has
been pursued. Of course, this must be done, in order that the Counsel
on both sides may knoAV what ground they are treading on. The exami-
nation of jurymen, in every other case which I have known of this
character, has always proceeded at some considerable length. I do not
recollect of any case which ever came to my knowledge, before or since
the time of which I am now speaking, when it has not been the prac-
tice to examine jurymen with particularity in regard to their having
formed or expressed an opinion respecting the guilt or innocence of the
prisoner. I wish to say that I believe that Judge Hardy inquired of the
jurymen as to their legal qualifications ; as to whether they were citizens
of the State, and as to how long they had resided in the county."

Judge Hardy did inquire of jurymen as to their legal qualifications.

Now there is a distinction here, which is recognized by Counsel all
around. Legal qualification is one thing. A challenge on account of
some other disqualifications than those expressed in the law, is another
thing. Challenges of favor, challenges of any prejudice, challenges on
the ground of any circumstances, which do not, of themselves, absolutely
incapacitate a man from sitting as a jurjnnan — these are not technically
known as '4egal challenges." A man must be a citizen, or he is nxOt com-
petent to sit as a juryman. This is a legal disqualification.

Judge Hardy stated all the legal qualifications — submitted them to the
jury — asked them about them. " One of the witnesses testified that he
68

538

asked them all together — which, I believe, is the usual custom of Judges
— if they interfere at all. It is the custom to ask them, or say to them :
'• If any of you are not citizens, if any of you know of any other legal
disqualification, you will make the fact known to the Court." Or, "Are
you all citizens?" — and if they all bow to that inquiry, that is the an-
swer to that. '' Have 3'ou all the qualifications which the law requires ?"
— and if they respond affirmatively to that, that is the end of that matter.
Judge Hardy did this. Mr. Shafter says, in terms, that they assented to
that inquiry.

" I wish to say that I believe that Judge Hardy inquired of the jury-
men as to their legal qualifications; as to whether they were citizens of
the State, and as to how long the}^ had resided in the county. Outside
of that, the examination of the jurymen was conducted by the Attor-
neys.

Q. — "Was anything asked by the Attorneys as to whether the jurymen
had formed or expressed any opinion in regard to the merits of the
case?"

That is a mere matter of challenge — the expression or formation of
opinion — that is not a " legal disqualification." That sort of challenge
belongs exclusively to the Attorneys.

''A. — I do not recollect of a solitary instance of that kind.

Q. — Then the only interrogatories propounded by the Court were as
to the residence and citizenship of the jurymen ?

A.— Yes. Sir.

Q. — And the Avhole matter ended Avhen, by your w^atch, it wanted some
little time of ten o'clock ?

Mr. Williams. — Well, if it please the Court, I object to this recapitula-
tion of evidence bj^ the Counsel.

Q. — "Was anything said there by the Court, or District Attorney, in
regard to issuing attachments?"

Ko ; the latter ])art of this I have read.

I believe that I liave now read all that I omitted to read before. Now
I will go on with the testimony given on the cross examination.

" Q. — Now, as regards the custom and practice upon criminal trials.
You sa}' that it is the practice, rigidly to interrogate every juryman in
an important trial ? Now is it not the duty of the Counsel on both sides
to make these interrogations ?

A. — Y"es. Sir.

Q. — Is it the practice of the Judge ever to make these interrogations ?

A. — I did not state it was the practice of the Judge."

Now they claim that they have the opinion of Mr. Shafter, as an
expert, that it was the duty of Judge Hardy to interfere with tlae Dis-
trict Attorney in this case. But I ask him : " Is it the i^ractice of the
Judge ever to make these interrogatories ?" His answer is : "I did not
state it was the practice of the Judge." He then proceeds :

" I don't think you can infer any rule of practice from the proceedings
in that case. It was a very remarkable case.

Q. — In criminal cases, is it the practice of the Judge to interrogate

539

jurors, after they have been accepted both by defendant's Counsel and
the Counsel for the prosecution ?

A. — It is not usual for him to do so; because, generally, Counsel do
their duty. So far as the practice is concerned, it is evidently the duty
of the Attorneys to make the examinations, and not the Judge."

This is Mr. Shafter's opinion. It is his opinion that it is the duty of
the Attorneys to make this examination, and not the Judge.
Again :

'• Q. — By the Counsel on both sides ?

A.— Yes, Sir.

Q. — Did 3^ou ever know a case, Avhere the Counsel for the prosecution
and the Counsel for the defence were present at the trial — did you ever
know in such a case, in a single instance, a Judge to interfere and take
charge in tlic examination ?

A. — I have known Judges to interfere and meddle with business that
did not concern tbem."

Mr. Shafter, did you ever know a Judge to interfere, as it is claimed
here by the Prosecution Judge Hardy ought to have interfered ? I am
not giving the language of the question, but that is the purport. His
reply is, No, Sir; but I have known Judges to interfere and meddle with
business that did not concern them. And then he goes on :

" But the custom is, for Counsel solely to conduct the examination."

I am giving the Prosecution's testimony. I am giving the testimony
of the President of this Court. Mr. Shafter, their own witness, says :
" But the custom is, for Counsel solely to conduct the examination."

" Q. — Now you speak of one of the jurymen having been challenged.
He Avas asked whether he was a member of the Vigilance Commit-
tee. Another was asked if he sympathized with the Vigilance Com-
mittee. Now. upon that last challenge, did or did not Judge Hardy
then appoint Triers to ascertain the competency or incompetency of
the jurymen ? and were they not tried before those Triers ?

A. — It is possible that I may have become a little confused on that
point. I have no recollection of any Triers being appointed. It is pos-
sible that Triers were appointed in Miller's case; but I think not.

Q. — I ask you whether, in any one instance, Triers were appointed by
the Judge, and a juryman tried by them as to his competency ? You
answer that you have no recollection that any were appointed.

A. — I said that I thought there were no Triers appointed; and of
course no jurj-man was tried by them.

Q. — Now, by way of refreshing your memory, I will ask 3-ou — while
the proceeding was pending for the appointment of Triers, did not the
District Attorney admit the challenged ? I mean in the case of Miller —
Frank Miller.

540

sympathizing with the Yigilance Committee, Mr. Hoge, of Counsel for
the defence, contended that the same matter was involved as when a
man was challenged for belonging to a Vigilance Committee. Judge
Hardy did not think that it fell within the same rule.''

Judge Hardy overruled Mr. Hoge, Judge Terry's Counsel.

" Q. — "When the District Attorney stated that his witnesses were on
their way to the Court House, and before any proceedings were had be-
fore the jury, did not Judge Hardy ask the District Attorney if he would
take out an attachment ?

A. — Well, I cannot say positively, as to that. I have an impression
that there was an inquiry of that kind made."

Does this look like Jud^e Hardv's hurryin<r this thina- throuo-h ? Seiz-
ing the earliest opportunity to close the case, and take a verdict for
Terry ?

" I have an impression that there was an inquiry of that kind made."

That is : Whether the District Attorney would take out an attach-
ment.

" I know that the District Attorne}^ stated that he expected that the
witnesses would be there soon ; he said that they were inside, in the
creek."

He said that before the jury was empanelled — not after. The District
Attorney said this before the jury was empanelled. And that was Judge
Hardy's reason for allowing a jury to be empanelled.

" Perhaps he stated that it was for the same reason that he declined
taking an attachment, just at that time, if one was tendered to him; but
I do not pi'etend to have any recollection upon that point.

Q. — Did not the District Attorney state, as a fact, before the com-
mencement of the empanelment of the jury, that the witnesses for the
prosecution were in the ' creek,' and were coming up to the Court House ?

A. — He undoubtedly stated that they were in the • creek;' and he un-
doubtedly assented to the case going on — so far as the empanelling of
the jury was concerned. I do not think he suggested that they should
go on; but he assented to it, most undoubtedly."

Well, he did not suggest that it should go on. Mr. Hoge's testimony
shows you a true picture of that. Mr. Hoge was there for the defendant.
He was there as the defendant's Counsel. It was his duty to jjress every
chance of an acquittal. He deemed it his duty to insist upon every legal
right. He wanted a jury empanelled. The District Attorney did not
suggest it, but he assented to it. But even the District Attorney was
not in the wrong in that, for he was informed that the witnesses were in
the creek. Much less was Judge Hardy in error, or to blame, for he
knew nothing about the subject.

"A. — He undoubtedly stated that they were in the ' creek ;' and he
undoubtedly assented to the case going on — so far as the empanelling

541

of the jury Avas concerned. I do not think he suggested that they should
go on; but he assented to it, most undoubtedly.

Q- — I "vvill ask you to state, Mr. Shatter — inasmuch as you have given
evidence that properly pertains to the record — state what the record
shows as to the hour at Avhich the jurors were summoned to appear.

A. — I believe that 1 state'd, in ray testimony in chief, that the case was
assigned for nine o'clock in the morning. The entry shows that on the
second day of the month, a venire was issued, returnable at nine o'clock '
in the morning. I see that there were twenty-five jurors summoned,
instead of thirty or forty. I said that I might be mistaken in regard to
the number. I did not remember as to the venire being issued on the
second of July — only that the case was set for the sixth, and 1 presume
the jurymen were summoned to appear on the opening of the Court.

Q. — Yo^i stated that there was a change of venue troni the County of
San Francisco to the County of Marin ?

A. — There is no question about that, of course.

Q. — Who was District Attorney of this county, then ?

A. — Harvey Brown.

Q. — Were Harvey Brown and Judge Campbell both present there, upon
the part of the prosecution, when the order for setting the day for trial
was made ?

A. — Well, I do not know as I can say as to that. I think that the
Counsel for prosecution were there on that morning. On that morning —
I must beg leave to say — I went over to San Rafael, with Judge Hey-
denfeldt. to attend to some cases of our own. When we got there, Judge
'Hardy was on the bench. As a matter of convenience, the Court ad-
journed over the Fourth of July. As soon as the Court adjourned, I
immediately went and got up my team, and started for my place, twenty-
five miles back of San Kafael. You don't mean to ask me whether the
order for setting the trial was made, or not, on that day ?

Mr. Williams. — Oh, no, Sir; I don't mean that, at all. My question is,
whether Mr. Brown and Judge Campbell appeared there, then, against
Judge Terry. Were they not present there on that morning ?

A. — To the best of my recollection, persons representing the prosecii-
tion were in attendance on that day. I cannot say whether Judge
Campbell or Judge Brown were in the Court room."

Judge Campbell says he was there. Judge Campbell says that he
went over there on behalf of the District Attorney of this city and
county. He went with the witnesses, on the second of July. He went
again on the sixth; although he says that the District Attorney had de-
clined his assistance. a*^otwithstandiug that fact, having jjut this sub-
poena into the hands of the Sheritf on the fifth, he accompanied the wit-
nesses over there, on the sixth, and was there with them when they
arrived.

"ifr. Campbell. — What time do you allude to?

A. — Monday morning, the second of July.

Mr. Williams. — At the time of setting the cause for trial ?

A.— Yes, Sir.

Q. — Were not several witnesses, on the part of the prosecution, from
this city, there in attendance at that time ? I mean on the second of
July. Was not Mr. Haskell, Mr. Sawyer, and others, present?

A. — AYell, when I go there, I always attend to my own business, and
so I did not attend particularly to this matter. But I am quite sure that

542

a portion of the witnesses were there on the morning of that day whei
the case was set for trial. I have been trying to study out in my mine
as to the different occurrences on those separate days. I know that the
next day I Avent over to our place, a distance of twenty-five miles. How
lono- I stayed there, I don't know ; but I think I was back on the morn-
ing of the fifth. 1 think that Judge Hardy tried a case of my own upon
that day. The case was one of Iveyes vs. McCauley and others. I tried
one or two cases — one, I am certain — in which I was a party plaintiff,
and I think I tried it before this case came on ; because, I recollect par-
ticularl}', that I left on the afternoon after the Terry trial, and came
back to this city. I don't think it Avas possible that I should have time
to try that case, after the Terry trial was closed, and before the hour at;
which we left San Rafael.

Q. — On Monday, the second day of Jul}-, the morning when this case
was set for trial, was it not well understood, and was it not announced
distinctly from the bench, that the Court would be opened at nine o'clock,
on the morning of the sixth, in consequence of the necessit}' which ex-
isted for Judge Hardy to go to Mendocino County, to hold Court there ^

A. — 1 cannot say that. I knew that the Court was going to sit at nine
o'clock, and I hurried back, with Judge Heydcnfcldt, in order to be ready
to attend to my own business at that hour.

Q. — Do you remember how you got that information, as to what time
the Court Avould sit ?

A. — I do not know whether it was from Judge Hardy, speaking from
the bench, or from examining the record, that I found out this fact. I
do not doubt, however, that it was from hearing the announcement from
the bench. I do not come away from a Court without knowing Avhen I
ought to get back — that is certain."

"Well, it is agreed on all sides that the Court did adjourn to the sixth;
and the record shows that this case was set for the sixth of July, at nine
o'clock in the morning.

'J//-. Camphell. — Are you not mistaken as to there being any Counsel
for the prosecution present on either occasion ?

A. — 1 am not mistaken with respect to the last occasion — because they
did not get up there.

Q. — Were there any Counsel for the prosecution there on the first
occasion ?

A. — I could not say whether you or Judge Brown was there. But my
strong impression is that somebody was there, professing to act for the
prosecution.

Q. — Do you remember whether either Judge Brown or myself was
there at the time when the case was set for trial ?

A. — I could not remember distinctly whether you or Judge Brown
was in the Court or not. District Attorney Haralson was there.

Q. — Do you not know that the District Attorney absolutely refused to
have any assistance of Counsel in that prosecution ? And do you not
remember that there was a good deal of public excitement as to that
fact ? Do' you not recollect the correspondence published in the news-
papers in regard to that refusal ?

A. — As I luive said before, my recollection is. that some one was there,
on the part of the prosecution, at that time. I know that this matter,
of which you speak, was a good deal talked about. I know that District
Attorney Haralson came and talked to me about it.

543

Q- — Did lie state that he had refused to have any Associate Counsel in
the ease ?

A.— Yes, Sir.

Mr. Wiilitnns. — I was inquiring about the second of July, when this
case was set for trial — before there Avas any refusal to receive Associate
Counsel. Now, then, the recollection of the witness is not taxed as to
whether Mr. Campbell or Mr. Brown was or was not rejected as Asso-
ciate Counsel — that is not the question. The question is, whether Mr.
Campbell or Mr. Brown Avere there present on this day — the second of
Jul}', eighteen hundred and sixty ?

A. — I do not remember whether these gentlemen were there or not.
Somebody was there, appearing for the prosecution, as I recollect.
Whether these persons whom you named, were there or not, at that
time, 1 cannot say.

■Senator De Long. — "Was there any clock or time-piece in tJie Court
room, ordinarily, used there to designate the time of meetiuii; of the
Court ?

A. — No, Sir ; I never knew of there being any in the Court room. I
never observed any time-piece there.

Senator De Long. — AVere you there at the time the Court opened on
that day ?

A.— Yes, Sir.

Senator De Long. — Did you have a watch with you ?

A. — Yes, Sir.

Senator I)e Long. — Did 3"0u look at your Avatch then, to see at what
time the Court opened ?

A. — I do not think that I did. I went in upon the Crier announcing
the Coui-t in session. I presume that the Crier made the announcement
under the direction of the Court.

Senator De Long. — What time was it when the jury were empanelled,
and everything ready to proceed to trial, except the lack of witnesses
on the part of the prosecution ?

A. — By my Avatch, it was seventeen minutes, or fifteen minutes, before
ten. My time varied a little from the time of the clock in (Gordon's
saloon, and it varied a little from the time in this city. I knoAv, because
I compared it Avith both.

Senator De Long. — You say that there was no time-piece in the Court
room ?

A. — No, Sir ; I am positive there was not.

Senator De Long. — I wish to inquire if Judge Hardy stated Iioav many
minutes it lacked of ten o'clock, by his watch, Avhcn he told the Counsel
that he Avould Avait until ten o'clock before ijroceeding Avith the Cfise ?

A. — I think tliat Judge Hardy stated that it lacked five minutes often
o'clock, by his Avatch.

Senator Crane. — Did he then Avait fiA^e minutes ?

A. — Yes, Sir.

Senator De Long. — The question I noAv Avish to ask 3-ou is this : Did
you at that time make an examination for the purpose of finding out
whether your Avatch agreed Avith other watches besides that of Judge
Hardy?

A. — I have stated tkat I went over to Gordon's saloon, ajid looked at
the clock there, and compared my watch with his clock. My watch was
a little sloAver than his. It Avanted fourteen or fifteen minutes of ten by
his time, and sixteen or seventeen minutes of ten by my Avatch.

544

Senator Be Long. — Do joii say that his was slower than j'ours ?

A. — No, Sir. His clock was faster than my watch.

Mr. Cami^hell. — You have been asked as to whether it was usual for
Counsel to exclusively conduct the examination of jurors. Is it not the
invariable rule in all cases, j^roperly conducted — especially in criminal
cases that have excited a good deal of public interest — for the Counsel
for the prosecution to strictly examine witnesses in regard to their bias
or prejudice resjDecting the case which is to come before them ?

A. — I have never before known a case where this was not done. At
that time I had been in practice twenty years, and never before, or since
that time, did I know of an instance where this examination Avas neg-
lected.

A. — Well, a case of that kind I never saw before, or since."

That is a case which did not exist here ; this was not a case where
Counsel on both sides neglected to inquire of jurors. The Counsel for
the defence did inquire of such as he had reason to question, and he was
satisfied with the rest.

" Q. — As a professional man, what do j'ou %\xy it would be the duty of
the Judge to do under such circumstances ?

A. — \V'ell, Sir, the lawyers themselves are divided upon that question."

Now, liere comes the answer to the question as to what is the duty of
a Judge. They have introduced, and we have admitted, to make up part
of their case, testimony by lawyers as to what is the duty of a Judge
with respect to interfering Avith the duties of Counsel, upon the one side
or the other.

"A. — Well, Sir. the lawyers themselves are divided on that question.
I think that it is the duty of the Court to try the case according as it is
presented and conducted by Counsel. I think, unless the Judge is satis-
fied from appearances that there is collusion, or that the District Attor-
ney is absolutely incompetent to discharge the duties of his office — as
most undoubtedly was the case in this instance^ — the Court has no right
to interfere in the premises."

Not only -'it is not his duty," but " he has no right to interfere in the
premises."

" I don't know that he should in any case."

He " has no right to interfere in the premises." unless an extraordinary
case should ai'ise, and " I don't know that he should in any case." That
is the opinion of the President of this Court — a lawyer of twenty yeai'S
standing. " I don't know that he should interfere in any case." That
is my own opinion, says Mr. Shafter. The lawyers are divided on this
very subject. But it is my own opinion that the Judge should try the
case as it is given to him. And upon this question as to the right of a
Judge to interfere with the examination by Counsel, Mr. Shafter's opin-
ion is expressed to this farther extent : I don't know as he should do it
in any case.

545

" Q. — You speak of the incompetency of the District Attorney. What
knowledge have you in that respect ?

A. — Well, I never regarded him as competent at any time to try any
case. As for this particular instance, he had been sodden with drink for
a week. I don't know as he was drunk on that naorning, but he looked
to me as if he had been drunk for the whole week previous. The habits
of this gentleman are notorious in his neighborhood, and 1 do not speak
of them from anj' unkindness of feeling. He is a personal friend of
mine, but these are the facts in this case, which ought to be known."

Now, then, two of our witnesses from there live right alongside of
this District Attorne}', in that little town, where, Mr. Tajdor says, every
man runs against every other man every day, almost — the town is so
small. We have here witnesses who are accustomed to associate with
this District Attorney, as a neighbor. The}' swear that there was noth-
ing in his ap])earance at that time indicating that he was drunk, or that
he had been drunk recently, or was under the effects of liquor, or that
he was in any degree incompetent to discharge his duties in the ordinary
manner in which those officers perform those duties. I do not give their
language, but that is the idea which they convey most distinctly.

ISow, here is another case where witnesses disagree, in a matter of
mere opinion, as to the condition of another man.

'■J/r. CamphcU. — From the circumstances of the case, the proceedings
in which you have been describing, what was the duty of Judge Hardy
in reference to the proceedings in that trial ?

Mr. Williams. — Mr. Shatter Avill have an opportunity to vote on that
question, by and by.

Mr. Campbell. — I withdraw the question."

This is the end of Mr. Shafter's testimony. I believe, now. Sir, I have
read every word of your testimony, from beginning to end. I believe I
have not misread, misstated, one single word of it. I am not conscious
of having done so. I have gone through it, and read all that is material
and immaterial, with the exception, perluqis, of some straggling ques-
tions and answers that are of no consequence whatever. And 1 submit
to the President himself tliat I have presented his testimony fairl}-.

Senator Far/t!<. — General Williams, do you say at what hour this trial
was set for the sixth — at nine or ten o'clock ? Some of the Senators do
not seem to understand fully as to that point.

Mr. Williams. — I have the record here, and it shows — and Mr. Taj^lor's
evidence will bear me out in this — that this case was ordered to be set
for trial on Friday, tlie sixth day of July, at nine o'clock in the morn-
ing. The testimony of Mr. Taylor contains a copy of the record. The
record is on page one hundi-ed and forty-one of the official report of the
testimony.

The Presiding Officer. — The record shows that the case was set for the
morning of the sixth of July, and the witnesses were summoned for ten
o'clock. No joarticular hour was named in setting the case for trial.

Senator Merritt. — The record shows that the witnesses were subpoenaed
for ten o'clock ; but there is no evidence to show that the Judge knew
anything of that fact.

Mr. Williams. — That is so. On the contrary, the evidence shows that
the Judge did not know that the subpoenas were made returnable at ten
o'clock, until after the jury were empanelled. AVhen Mr. Hoge pressed
69

546

the trial, Judge Hardy, instead of assenting to that proposal, and allow- '.
ing him to press it, institutes a series of inquiries. He inquires : " Mr.
District Attorney, at what time did you subpoena j^our witnesses to be
here?" The answer is : "At ten o'clock in the morning." That is the
first intimation that Judge Hardy ever had of "ten o'clock i]i the morn-
ing" as an hour important to an}^ fixed stage of the proceedings.

Now, the President corrected me for saj'ing that the case was set for
the sixth of 3u\y, at nine o'clock in the morning. He states that it^was
set for the sixth of July, but not for nine o'clock in the morning.

I beg leave to read the record, as presented here by Mr. Tavlor. Mr.
Taylor reads from the Court minutes of July second, eighteen hundred
and sixty, as follows :

" District Court, 7th Judicial District, }
County of Marin. j

Now, on this 2d day of July, A. D. 1860, at the oi^cning of said Court,
a jury becoming and being necessary in said Court for and during this i
term thereof, and no Jury having been ordered or drawn for this term of
said Court, it is hereby ordered by the Court, that the Sheriif summon,
from the citizens of the count}-, and not from the bystanders, twenty-five
persons, to form a trial jury for said Court, to appear at the Court room,
in San Eafael, on Thursday, .luly oth, 1860, at 9 o'clock, a. m.

And it is further ordered, that the Slieriff summon, from tlie citizens
of this county, and not from the bystanders, sixty persons, to form a trial
jury for said Court, to appear at the Court room, in San Eafael, on Fri-
day, July 6th, 1860, at 9 o'clock, a. m."

That is the order for summoning the jury. The order setting the case
for trial reads as the President has stated it. It sets the case generally,
for the sixth day of July. The hour for opening the Court was well
known to everybody to be nine o'clock. The jury were summoned there,
b}'' an order made in open Court, for nine o'clock. This case was set for
the sixth day of July, and with these other matters of record, this set-
ting fixes the time for commencing the trial at nine o'clock in the morn-
ing.

In addition to what I have already read concerning the jury's being
ordered to be summoned for nine o'clock in the morning, all the evi-
dence goes to show that everj'bod}' understood that nine o'clock was the
hour for opening the Court and commencing the trial.

I will now read the order to Avhich the President calls my attention

" The People of the State of California,

vs.

David S. Terry.

Indictment for Fighting a Duel, by previous Appointment and Agree-
ment, and Killing his Antagonist, July 2d, 1860.
This action having been heretofore transferred from the District Court
of the 4th Judicial District, in and for the City and County of San Fran-
cisco, to this Court, for trial, now at this day appeared J. H. Haralson,
Esq., District Attorney of the County of Marin, on the part of The Peo-
ple, and David S. Terry in person, and by Counsel, and, by consent, it is
ordered that the case be set for trial on Friday, the sixth day of July,
1860."

These three orders, altogether — the order for opening the Court at nine
o'clock in the morning on the sixth of July, the order summoning jurors

547

to appear at nine o'clock on the morning of that da_y, the order setting
the case for trial on the sixth of Julj^ — necessarily give notice to every-
body that the trial is to commence at nine o'clock on the morning of that
day.

There seems to be The People's case.

It would seem that when they have got the testimony of Mr. Shatter,
they have got all they can ask or expect. They have got a version of it
with which they seem to be satisfied — a version of it which they say Mr.
Shafter reduced to writing.

And I ask you, Senators, upon that evidence — suppose thej' stopped
right here and asked your decision upon this point — whether Judge Hardy
was guilty of impropriety im empanelling that jury, or not, as he did, or
as he permitted i' 1 ask 3'ou whether Judge Hardy, when the Court
opened at nine o'clock, when the venire was returnable at nine o'clock,
when the Court convened at nine o'clock, when the defendant was there
with his witnesses and Counsel at nine o'clock, when the case was called
some time along after nine o'clock, no intimation 3'et being given that
the witnesses for the prosecution were not subpoenaed to a])pear at nine
o'clock, when the Court, by way of caution, asked the District Attorney,
"Are you ready to go on ? " and the District Attorney answers " Yes,
Sir;" and also asks him. '-Are your witnesses here?" and the response
is, " They arc in the creek. Sir, in sight" — I ask you, if this was the only
charge of impropriety — Judge Hardy's allowing that jury to be then em-
panelled, when the District Attorney was willing to proceed to the empan-
elling, and said that his witnesses were in the creek — I ask you, whether
you will convict a man of a foul and infamous crime upon such evidence
as that? whether you Avill say that he was guilty of judicial corru2)tion
in allowing the Counsel upon both sides to empanel a jury when the wit-
nesses on the one side were present, and the witnesses for the prosecu-
tion were said by the prosecution itself to be in the "creek," and in sight?
Convict a man on such evidence as that, of such an offence as this !
Convict a man of the high crime of judicial misconduct, because he al-
lowed a jury to be empanelled when Counsel on both sides expressed
themselves ready and prepared to go on with the case, when the Prose-
cuting Attornc}' avowed that he was ready, and that his witnesses were
in sight! Convict him of judicial corruption upon such evidence as
that!

Mr. Shafter's testimony alone, striking out that part of it wherein Mr.
Shafter admits that he was mistaken — and it is a very significant ])art of
his evidence too — striking out that part of his evidence, and Mr. Shafter
tells a veiy diff'erent story from what he does with that evidence in.

Mr. Shafter says that one of these jurj^men was under indictment for
murder. He says — of course, all the public officers there knew it. Coun-
sel Avill infer that Judge Hard}- must have known it. The question was
asked Mr. Shafter, "Did Judge Hardy know it?" The answer substan-
tially is, " I don't remember whether the case under that indictment was
called and continued before Judge Hardy, or not."

Is not that a very material part in Mr. Shafter's testimony ? Is it not
the Avhole heart, the whole substance, almost, of Mr. Shafter's testimony,
so far as they seek to fasten misconduct on Judge Hardy there in allow-
ing that man to sit in the box ? With that testimony in, undisputed, a
strong case might have been made out upon the argument. With that
particular testimony stricken out, I would be willing to submit the case
to you, upon this point, on Mr. Shafter's testimony alone. But striking

548

that out, and taking the rest, is like the tragedy of Hamlet with the
part of " Hamlet " left out " by particular request."

Now let us see what Mr. Taylor sa3'S. He is a witness on the part of
the Prosecution. He is one of their own w'itnesses. By his testimony
they are going to " hurl Judge Hardy oif the bench ; " because Judge
Hardy allowed this jury to be empanelled when the witnesses were in the
creek — as it was announced to him ; because he sent out a messenger,
after the jury were empanelled, to inquire, and it was ascertained that
the witnesses were not in sight, and that there was no reason to expect
them immediately.

Judge Hardy inquired of the District Attorney, substantially: "What
have you done, Sir, to procure j^our witnesses ? " "I have exhausted all
the power that I have as a District Attorney," was the reply. " Will you
take an attachment ?" then inquires the Judge. Mr. Shafter is not quite
certain that this inquiry was made, but the other witnesses are. Judge
Hardy asked the iJistrict Attorney if he would take an attacliment.
The repl}^ is : "I cannot take an attachment, because the subpceua has not
been returned, and it does not appear that the witnes>^es are in any fault,
and I cannot attach them." That is the legal eftcct of the District Attor-
ney's answer. The subpoena was not returned, and he had nothing to
base an attachment upon. And now they say that Judge Hardy was
bound to step into the District Attorney's place — bound, in effect, they
say, to come down from his judicial seat, and assume the prosecutor's
chair, object to the proceedings going on, make himself Counsel for the
prosecution, or else he is partial, or else he is wickedly trying to acquit
Judge Terry, "by hook or b}" crook."

I read from Mr. Taylor's evidence :

" J/r. Camphell. — Mr. Taylor, you are County Clerk of Marin County ?

A. — Yes, Sir.

Q. — Were you County Clerk in the year eighteen hundred and
sixty .

A. — Yes, Sir.

Q. — Have you in your possession here the records and papers on file in
relation to an indictment that was transferred from the Fourth Judicial
District to the County of Marin, in the case of The People vs. David S.
Terry ?

A.— Yes, Sir.

Q. — Will you produce these papers now, if you please ?

[Witness produces papers.]

Q. — Are these the papers referred to ?

A. — Yes, Sir.

Mr. Camphell. — Some of these papers, if it please the Court, we do not
wish to offer immediately in evidence. But we offer the papers, gene-
rally, in evidence, expecting to use those we deem of importance or per-
tinent to this case. They are all to be considered in evidence, as read.
Let me see the indictment. As there has been some question among
Counsel as to the time when the case was set, I will read the order
setting the case for trial :

549

The People of the State of California,")
vs. y

David S. Terry. )

Indictment for Fighting a Duel, by previous Appointment and Agree-
ment, and Killing his Antagonist, July 2d, 1860.

This action having been heretofore transferred from the District Court
of the 4th Judicial District, in and for the City and County of San Fran-
cisco, to this Court, for trial, now at this day appeared J. H. Haralson,
Esq., District Attorney of the County of Marin, on the part of The Peo-
ple, and David S. Terry in person, and by Counsel, and, by. consent, it is
ordered that the case be set for trial on Friday, the sixth day of July,
1860.

There was no hour mentioned.

Mr. Wi/liams. — The Court will take notice that this paper, which has
been engrafted in the judgment roll in the case, does not purport to be
signed by the Judge. The record from which this is originally taken is
the current minutes of the Court. However, that can yet be proved.

Mr. Campbell. — Well, turn to the minutes of July second.

Mr. Willimnx. — And read the minutes as they there stand.

Witiipss. — [Heading from the Court minutes of July second, eighteen
hundred and sixty :]

District Court, 7tii Judicial District, )
County of Marin. j

Now, on this 2d day of July, A. D. I860, at the opening of said Court,
a jury becoming and being necessary in said Court for and during this
term thereof and no jury having been ordered or drawn for this term of
said Court, it is hereby ordered by the Court, that the Sheriff summon,
from the citizens of the county, and not from the bystanders, twenty-five
persons, to form a trial jury for said Court, to appear at the Court room,
in San Eafacl, on Thursday, July 5th, 1860, at 9 o'clock, a. m.

And it is further ordei-ed, that the Sheriff summon, from the citizens
of this county, and not from the bystanders, sixty persons, to form a
trial jury for said Court, to appear at the Court room, in San Eafiiel, on
Friday, July 6th, i860, at 9 o'clock, a. m.

Mr. CamphcU. — What was the usual hour of the meeting of the Court ?

A. — Nine o'clock.

Mr. Camphell. — Where are the subpoenas in the case for the prosecu-
tion ?

3Ir. Williams. — You have got the venire.

Senator Crane. — When are the sub])cenas made returnable?

Mr. Campbell. — They are made returnable at ten o'clock. Some of the
witnesses lived in the county, and some of them lived at a distance, out
of the county, wdiich made this order proper. [To witness.] — You were
present during the trial of Judge Terry ?

A. — Yes, Sir.

Q. — Do you recollect at what time the jury were empanelled ?

A. — I do not, Sir.

Q. — How long after the jury was empanelled, before the verdict was
rendered ? If you recollect, state what was done on that occasion ?

A. — I think that it was between five and ten minutes after ten o'clock
when the verdict was rendered. I think that Mr. Haralson, Districtr
Attorney of Marin County, got up and said to the Judge that he had
issued subjjoenas for witnesses, and that the subpoenas had not been re-
turned, and that therefore he could not ask for any attachment. He
said that he had issued subpoenas for witnesses, but the subpoenas had

550

not been returned, and the witnesses were not present. Therefore he
could not ask for an attachment.

Q. — When were the subpoenas returnable ?

A. — They were returnable on July sixth.

Senator Crane. — "When are those subpoenas dated ?

A. — The second of July.

Mr. Campbell. — I will read the subpoena, by request of Senator Perkins
and Senator De Long.

[Mr. Campbell read :]

State of California, Marin County,

District Court, 7th Judicial District.
The People of the State of California to Doctor SaAvyer, Leonidas Has-
kell, F. A. Holman, C. A. McXulty, Calhoun Benham, Joseph C. McKib-
ben, D. D. Colton. Thos. Hayes, Henry Fritz, J. W. Lees, Legarde, M.
J. Burke :

You are commanded to appear the District Court of the 7th Judicial
District, in and for the County of Marin, at the Court House in said
county, at San Eafael, on the Gth day of July. A. D. 18G0. at lU o'clock,
of the forenoon of that day, then and there to testify on behalf of The
People of the State of California, in a criminal action there pending, be-
tween The People of the State of California and David S. Terry, defend-
ant, on the part of The People.

Given under my hand this 2d dav of July, A. D. 1860.

J. H. HAEALSON,
District Attorney Marin County.

State of California, \

Marin County, j
The People of the State of California,
afjain.^t
David S. Terry.
The proper affidavit having been made by the District Attorney of the
County of Marin, let the witnesses within named attend at the time and
place mentioned in the within subjJCEna, according to the requirements
thereof.

R. B. FRINK,
July 2, 1860. County Judge of Marin County.

The return is as follows :

Sheriff's Office, )

City and County of San Francisco, j **'
I hereby certify that I received the annexed subpcena on the 5th day
of July, A. D. 1860. and on the same day duly served the same on F. A.
Holman. J. M. McNulty. (or C. A. McNulty,) D. D. Colton, Thomas
, Hayes, Henry Fritz, J. AY. Lees, B. Lagarde, (or Legarde,) and M. J.
Burke — witnesses therein named — by showing and explaining to every
one of said witnesses, personally, in the City and County of San Fran-
cisco, the said annexed original. And further, that after due diligent
search and inquiry, I have been unable to find Doctor SaAvyer, Leonidas
Haskell. Calhoun Benham, and Joseph C. McKibben, other witnesses
therein named, within my city and county, and that I am told and be-
lieve that the said Benham and the said McKibben are at present not in
the State of California.

CHARLES DOAI^E, Sheriff,

By John Hill, Deputy.
San Francisco, July 6, 1860.

651

Mr. Campbell. — Do you recollect the time when those witnesses for the
prosecution arrived there ?

A. — I think that they arrived between eleven and twelve o'clock."

Mr. Taylor is evidently mistaken in regard to this time. Mr. Shafter
sajT^s that it was twelve o'clock when they arrived. Allowint^, then, the
difference there was between his watch and the watches of those with
whom Judge Hardy compared his time, and it would be at least half
past twelve o'clock before the witnesses arrived.

'• They brought over with them the subpoena and the return."

That subpoena that had been issued on the second of Jul}-, returnable
on the sixth. It was not Mr. Haralson who was guilty of neglect. If
Mr. Haralson had been sodden with drink for a month, he would not
be chargeable with this. Drunk as he might have been — if Mr. Shafter's
suspicions are well founded — right on the heel of the adjournment of
this Court on the second of July, at which time this case was fixed for
the sixth of July, he procures a subpoena, with the order of the County
Judge upon it, (it is dated on the second,} gives it to the special District
Attorney who came over there to see that this prosecution Avas well
conducted, (Mr. Campbell,) sent it to this city on the second of July, by
the hands of Judge Campbell, to be served here.

It never reached the hands of the Sheriff here until the fifth of July !

Did Judge Hardy know all this? Was Judge Hardy responsible for a
delay in issuing this subpoena '/ Was he responsible for delay in its ser-
vice?

Not only should that subpoena have gone into the hands of the Sheriff
on the third of July — at least as earl}^ as that — but at least as early as
I'V the boat in which Terry and his witnesses went over to Marin, there
sliould have gone over the Sheriff's return ; and then if the witnesses did
not appear in due time, the District Attorney could have asked for an
attaclnuent for them.

Now, then, they say that Judge Ilardj' manifests great precipitancy
here, that he shows that he is in a great hurry to rush this trial through.

Judge Hardy asks the District Attorney : " Will you take an attach-
ment?" What does he mean by that? Does he mean : " If you will
take an attachment now, Mr. District Attorney, I will go right on, and
take a verdict in this case " ? Is that what the Judge means? Why,
Counsel will surely not pretend that he means that ? AVhat is the neces-
sary legal consequence of issuing an attach n\ent ? That the trial is sus-
pended until a return is made on the^attacliment. It follows, just as
surely as night follows day. Judge Hardy asks : " Will you take an at-
tachment. Sir?" And he asks in effect — and that is what every lawyer
knows that it means — '- Will 3'ou take an attachment, Sir, and have these
proceedings suspended until yoii can serve it, and bring those witnesses
here ? " That is what Judge Hardy does. And if Judge Hardy Avas in
such a hurry to get through with this case, as they would hke to repre-
sent, do you think that he would have proposed to the District Attorney
to take an attachment, and suspend proceedings in the case until an offi-
cer could be sent to San Francisco and arrest these witnesses and bring
them up there? Does this look like precipitancy? Does this look like
fixed determination to have Judge Terry acquitted, technically and le-
gally, without a trial ?

District Attorne}^ Haralson says : " I cannot take an attachment, Sir,
for I have got no return from the subpoena."

552

What conld Judge Hardy do ?

Wliat do these gentlemen require Judge Hardy to do? Tlie officers
who attempted to assist 3'ou here, Mr. District Attorney — these San
Francisco lawyers, who came over to see that you did your duty, the
San Francisco District Attorney and his partner — they have taken the
subpoena, and you have no return from it. The Judge may well ask
himself: What shall I do? What could the Judge do ? Mr. Hoge was
pressing him up with claims for the rights of his client.

All this was after the jurj- Avere empanelled. Judge Hardy never
heard, before the jury were empanelled, that the subpoena was not re-
turnable at nine o'clock. The jury were there, ready to go on with the
trial. Mr. Hoge Avas insisting that the trial sliould go on. " Mr. Haral-
son, will you take an attachment, and have the case suspended until the
officer can be sent to arrest these Avitnesses? " '-No, Sir, I cannot do
that; fori cannot make any showing. The special District Attorney,
down there in San Francisco, who has charged himself with the care of
this prosecution, has not sent me any return on this subpana. I cannot
ask for an attachment."

What then ? Is the Judge to sit there duml). until sunset or the next
morning, or adjourn the Court for a da}' — Mr. Hoge all the while press-
ing his rights, insisting that, as a matter of altsolute legal right, he should
be allowed to go on and take the verdict of the jur}' ?

The Judge sends out a messenger to see if the witnesses are in sight.
For what purpose ? Wh}-, to wait for them, if they are in sight. The
messenger returns, and reports that the witnesses are not in sight. The
boat is not in sight. This report is confirmed by Mr. Shatter, for he
says that he went out and looked, and they were not in sight. Mr. Shaf-
ter seems to have taken some interest to see that public justice was done
in that case. Well, the messenger reports that the Avitnesses are not in
sight. AVhat should the Judge do ? Whj', they say that he ought to
have adjourned the Court over until the next day. According to Judge
Lake, there might be such conduct as Avould CA'ince such collusion be-
tAveen Counsel as Avould induce him to hold the case open for half a day,
for a Avhole day, for tAvo or three days — and I don't knoAv but he Avould
have held it open until this time — until McKibben should come back, so
that they could proA-e that this duel Avas fought by prcAious agreement,
and 80 brought this case Avithin the statute.

It is the duty of the District Attorney to have his case ready. It is
the duty of the District Attorney, Avhen called upon, to say Avhether he
is ready to empanel a jury or not. Here the District Attornej" Avas un-
doubtedly misinformed as to the fact of these witnesses being in the
creek. Somebody told him so. beyond a doubt. He believed, on the
strength of this information, that he could go on. The jury Avere em-
panelled. Judge Hardy did not knoAv that the subpoena AA^as returnable
at ten o'clock.

Well, what next ? Mr. Haralson says : " I have no witness here. My
witnesses have not arrived." The messenger, who is sent out by the
Court, returns, and reports that the witnesses are not in sight. But the
Judge saA's to the District Attorney : " What time did you make 3-our
subpoena retui-nable ?" ■• Why, at ten o'clock." And this is the first
time that Judge Hardy had CA'er heard of '• ten o'clock " in connection
with this case.

" Well," says the Judge, '• Mr. Hoge, I cannot grant your application
here. You must Avait until that hour — ten o'clock — is pa.ssed, before 3'ou
can claim any strict legal or technical right." At any rate, the District

553

Attorney has the right to wait until the time his subpoenas were return-
able; and this waitin<>; was made. A recess was taken. There is a ques-
tion as to whether this recess was a formal one or not. Two or three
witnesses testify that the Court took a recess until ten o'clock. Mr. Han-
son testities to that. Another witness testifies to the same thing. At
any rate, whether the recess was entered in the minutes, or whether it
was simply announced from the bench, in the Court, that a recess Avould
be taken, and everybody rushed out to take a drink — as they do in Cali-
fornia— is not material. There was a recess taken. There was a sus-
pension of all business. Whether Judge Hardy left the bench or not, is
of very little importance. They sa}' that he was in the habit of leaving
the bench, and taking a drink. Now, they complain that he did not
leave the bench. It is enough to say that there was a recess. Whether
it was only a suspension of business or not, is not material. There was
nothing to do there until it was ten o'clock. They sa}' that Judge Hardy
did not leave the bench. The}' impeach him for not going out to take a
drink !

Well, Mr. Hanson, at the recess, goes over to his office. Mr. Critten-
den is Counsel with Mr. Hoge, and Mr. Hanson has volunteered, out of
friendship to these gentlemen, Mr. Crittenden and Mr. Hoge, who are
not acquainted with jurors there. From his acquaintance with jurors
there, he tells them what jurors are objectionable, and what jurors are
not. They are seated in Hanson's office, when Hanson ascertains that
the hour often o'clock has arrived. How did he ascertain it? By look-
ing at a time-piece. He swears that that was the time — that ten o'clock
had arrived. Therefore, he and Mr. Crittenden started for the Court
room after ten o'clock, as Hanson understood it. They started for the
Court room, and got there before anything had been done.

Now, then, as to whether it really was ten o'clock or not ? How ma-
terial is that. Senators ?

What is it that Judge Hardy is charged with here ? With having ac-
tually, technicall}'. and without any intent whatever, concluded this case
and allowed a verdict to be taken before ten o'clock. Is that it ? Would
that affect him ? He is charged with corrupt misconduct in office. Cor-
ruption implies knowledge. If he did wrong there, if he ordered a ver-
dict of acquittal at the wrong time, before you can convict him of acting
in that manner, you must convict him of knowing that he did a wrong.
You must conclusive!}' show that it was not ten o'clock, and you must
conclusively show that he knew that it Avas not ten o'clock, or else the
evidence does not affect him at all. Is there any evidence that he knew
that it was not ten o'clock ? Did he go over to the saloon, and compare
his watch Avith the saloon keeper's clock, (Mr. Gordon's,) that is some-
times twenty minutes too fast, and sometimes twenty minutes too slow?
Is there any evidence that he had any notice how Gordon's clock was
running that day — whether it was one of its fast days, or one of its slow
days ? Or whether it had run down, and Gordon had set it running that
day at random ? Is there one Avord of evidence that anybody ever inti-
mated to Judge Hardy that it Avas not ten o'clock ?

Upon a question of propriety it is material to show that Judge Hardy
did not act before he supposed it to be ten o'clock. Whether he acted
before ten o'clock or after ten o'clock, is not a very important fact,
abstractly considered. But hoAvcA^er important it might be, it cannot be
material in this prosecution, unless Judge Hardy knew that he was act-
ing before ten o'clock. Did he knoAV it ?

Look at the facts.
70

554

What do they charge him with here? Why, they charge him with a
desire to wait just one hour from the opening of the Court, and no more,
and then allow this verdict to be taken if the witnesses did not come.
That is what they charge him with ?

Now, if he really did mean to do this thing, if he really did mean to
make himself technically and legally right, don't you suppose that he
would have waited until ten o'clock ? If his watch was a little too slow
or too fast, and he did mean to bring himself within the letter of the
law, do you think that he would have called on that case before ten
o'clock ? If he is as bad a man as they say he is, if he meant to give
just the legal time and no more, do j^ou think that he would have run
the risk of calling the case and taking a verdict before he believed it to
be ten o'clock ?

Now suppose I asked for a vote right there : Do you believe that
Judge Hardy knew that it was not ten o'clock when that verdict was
taken ? Cast it over in your mind, and say whether you think he did.
Is he an idiot as well as a rascal ? Nobody but an idiot would do that
which they charge him with doing here, if he had that corrupt intention
they accuse him of entertaining.

The Court adjourned until Tuesday morning, May thirteenth, at eleven
o'clock.

^HaXJMENTS

IN THE

TRIAL OF JUDGE J. H. HARDY.

FOURTEENTH DAY— MAY 13, 1863.

ARGUMENT FOR THE DEFENCE

ARGUMENT OF C. II. S. WILLIAMS CONTINUED AND CONCLUDED.

CITATION OF AUTHORITIES BY MR EDGERTON.

Mr. Eflf/erton. — Inasmuch as General Williams has no opportunity to
reph' to me, I desire to call the attention of the Court, and the Counsel
for the Defence, to the authorities which I propose to cite in the course
of my argument, in order that the Counsel may now have an opportu-
nity to reply to them.

In the tirst place. I shall cite an authority to which reference was
made during the progress of the trial. Judge Story — to the effect that
although the forms that prevail in Common Law tribunals do not pre-
vail here, yet the Common Law rules of evidence, and the Common
Law rules in regard to misdemeanors, are the law in this case ; that
the substance of the Common Law is preserved here ; that the rule of
decision here, in estimating the value of testimony and the degree of
guilt imputed and proven, is the same rule that prevails in the ordinary
Common Law tribunals of the country.

Again : upon these specifications as to the use of treasonable language,
we concede that thej^ do not amount to treason. But I shall cite Black-
stone to the effect that at the Common Law, as well as under the statute

556

of Edward the Third, seditious words, treasonable language, did amount
to a high misdemeanor ; and, although it was not treason, it was indict-
able and j)unishable at Common Law.

And I will further quote Stor}-, (the authority I will furnish General
Williams,) to the eflfect, that the countenancing, merely, by a Judge, of
a conspiracy, is a high misdemeanor at Common Law, and an impeach-
able offence.

ARGUMENT OF MR. WILLIAMS RESUMED.

Mr. Williams said :

Mr. President, and Senators : — I closed so much of vdj argument as I
made on yesterday, in the midst of a discussion of the charge made
against Judge Hardy, of official misconduct on the trial of Judge Terry,
at San llafael, Marin County, who was indicted for having killed an
antagonist in a duel. I had proceeded so far as to state the testimony —
or, rather, to read it, every word of it — of the principal witnesses on
the part of the Prosecution, referring to that charge.

In the remarks which I shall find it necessary to submit to you to-day,
it is my intention to jjass over, as briefly as my duty will ])ermit me, the
various charges here which do not seem to have struck the opening
Counsel with very great force, and which seem to have been used in his
argument principally for the pui'pose of bringing your minds to the
proper stage to receive the evidence and the argument upon this grave
charge, which they certainly consider — from the manner in which they
have treated it — the principal, the cardinal cliarge, in tliis complaint.

And in doing what I shall find it my duty to do, I shall bear in mind the
patience with which you listened to my dry an^ discursive argument of
yesterda}'. And I shall ask j'ou — as I need not ask you, I am sure —
to extend, to continue that patience, until I shall have discharged ray
duty to my client, according as my feeble abilities will allow — my duty
to my client, standing here in the unfortunate position in which you see
him before you.

In discussing these questions, I shall confine mj'self to the evidence.
My argument will be dry and uninteresting, except to you who are
looking for the truth from the evidence — an uninteresting, and perhaps
tedious, anal^'sis and abstraction of the testimonj^ which has been given
here. I shall attempt no appeal to your sympathies. I shall attempt
no effort of oratory or of eloquence. I have not the vanity to suppose
that I could succeed in it, if I tried.

For that part of the case — the interesting part of summing up this
case, so far as it depends uj^on those gifts which make the brilliant ora-
tor— for that, you must wait patiently until ray friend upon the other
side, who is to conclude the argument in the case, (Mr. Edgerton,) shall
come to address you ; and then I will guarantee that you will be amply
repaid for the patience you have exhibited during the dry and unin-
teresting discussion on ray part.

We had proceeded, yesterday, so far as the testiraony of the President
of this bod}' ran.

I read from the testimony of Mr. Taylor, Clerk of Marin County, in
relation to the pi'iucipal charge, as the}' present it.

I read the record evidence which Mr. Taylor gave before you here ;
records in the Court in which, it is charged, this high misdemeanor was
committed.

I had remarked upon that testimony somewhat briefly, for my time was
mostly occupied in reading it. I had remarked upon that testimony with a

557

view to the hard, unusual manner, in which it had been brought against
us. I had remarked upon the fact that Mr. Shafter, a witness in this case
on the part of the Prosecution, had testified to his impressions as to the
manner in which that case had been conducted by the District Attorney
on that occasion. And I had complained, briefly, that Mr. Shafter, under
a misapprehension of the truth in the case, had stated a ftict which he
subsequently ascertained did not exist — a fact which was the whole core
of his testimony, so far as it bears on Judge Hardy. I had remarked
that Mr. Shafter had vohmteered, after the Counsel had exhausted their
examination of him — that he volunteered to state what he thought the
Senate ought to know. This was after the Counsel had examined him
in regard to the conduct of that case, and Judge Hardj-'s relation to it.

The great point was, to show that Judge Hardy knew of the incapac-
ity, or the neglect of duty, on the part of the District Attorne}^. That
was the point. They contend that if he knew of this, as a fact, it was
his duty to take the business of the District Attorney out of that officer's
hands, attend to the prosecution himself, challenge the jurors, inquire of
each and every one of them whether they were competent to serve, or
not.

All these facts relating to the conduct of the District Attorney on that
occasion, could avail nothing as against Judge Hardy, unless it was proved
that he knew that there was some misconduct, or some bad intention, or
some imbecility, (as was suggested here,) on the part of the District At-
torney.

Now, that evidence, you will'bear in mind, was this: After they had
examined Mr. Shafter in regard to what took place at that trial, and had
ended and ceased their examination, Mr. Shafter volunteered to say —
testifying then, as he was, upon the improper manner in which that jury
were empanelled — volunteered to say that one of the jurors put into that
box was under an indictment for murder, in that same county. And
when we asked Mr. Shafter whether he knew or had any reason to be-
lieve that Judge Hardy knew of that matter, his answer was : " Of course,
the public officers of the county knew it."

" Of course," the public officers of the county must have known it.
Mr. Shafter was right in that — if the fact had existed.

Of course, the public officers knew it. But did Judge Hardy know it?
Did Judge Hardy know that that man was under indictment for murder,
in that very Court? What was Mr. Shafter's answer to the question?
Did Judge Hardy know that there was a man put into that box in that
case who was under an indictment for murder in that same county ?
What was Mr. Shafter's answer to that? "I don't remember whether
that man's case, under that indictment, was called up and continued be-
fore Judge Hardy, before this trial took place, or not."

What was the impression sought to be produced on your minds by this
testimony ? " I don't know whether his case had been called up before
Judge Hardy, (in which event Judge Hardy must have known of it,) or
not"" leavino- the impres.sion that it was quite probable that this man,
Frank Miller'' Avho was one of the jurors there, was an improper man to
serve as juror, and that Judge Hardy knew that he was an improper
man Mr. Shafter left that impression on your minds by his answer-
that he did not know whether the indictment had been called up before

Judo-e Hardy, or not. ••/.,■,

But how does the fact turn out to be ? The man had not been indicted

for murder " I don't know whether the indictment had been called up

before Judge Hardy, or not 1" "Of course, the county officers knew ol

558

the indictment !" Judge Campbell stated distinctly here, in the course
of his statement of the facts on that occasion, that that man had not
been indicted for murder at that time, and that there was no indictment
pending against him. There has been an indictment brought against
him since that time. Aye, and not only that : but the facts were, as was
afterwards shown here in evidence, that man had been arrested on a
charge of murder ; he had been examined before a magistrate on that
charge, and the magistrate not only did not find him guilty, but, under
the statute, in discharging him, found, as he was bound to find, if that
was his mental conviction, that there was no reasonable ground for believ-
ing that this man was guilt}' of the alleged crime — no reasonable ground
for putting him on his triah This was the man, "Frank Miller." This
was the juror complained of Tiiis was the man who had been arraigned
before a Justice of the Peace, and the Justice of the Peace had decided
that there was no probable ground for putting him on his trial. That
was the condition of that man when he went into the jury box. And
they brought out here, through the volunteer testimony of Mr. Shafter,
the fad that he was under indictment for murder; the /oci that the
public officers of that county must, '• of course," have known it ; and if the
public officers knew it, the probabilities were, the Counsel Avould say,
that Judge Hardy, "of course." must have known it, for the man would
have been arraigned before him. Judge Hard}-. Did he know it? "I
don't know whether the indictment had been called up and the case post-
poned before Judge Hardy, or not." If it had been, "of course" Judge
Hardy must have known it.

But it turns out that there was no indictment in relation to this mat-
ter. So much for that part of the argument.

]S"ow I bring this matter before your attention again, for the reason
that the volunteer testimony on the part of the witness, Mr. Shafter,
constituted almost the entire of his testimony which went to show any
negligence on the part of Judge Ilardy, in not interfering with the duties
of the District Attorney and challenging jurors. Strike that out, and I
am willing to take Mr. Shaftcr's testimon}' as to the rest of the proceed-
ings on that trial, and let that guide 3-our deliberations.

In stating this, you, of course, understand me to say, that Mr. Shafter
spoke under a mistaken impression, a mistaken recollection.

When the witnesses came to state here that it was not so, that this
man had not been indicted, Mr. Shafter then remembered that he was
mistaken, and very frankly and properly avowed it.

But, gentlemen, is not this kind of testimony a little dangerous to a
man who is arraigned for an infamous offence — an offence infamous not
alone upon a single point in his character, not alone upon a single act of
his life, but infamous as casting a shadow upon him and blackening his
character for all time to come, for the remainder of his life, so long as
his life shall continue ?

Is not it a little dangerous to allow the introduction of such testimony ?

Is not it a little careless to volunteer such testimony?

I speak with respect of this witness. I am speaking of him now as a
witness, not as the President of this Court.

I had passed on to show you, by the testimony of Mr. Shafter himself,
that when this case was called up, and it was j^roposed to empanel the
jury, Judge Hardy was informed that the witnesses were in sight — that
the witnesses were in a boat in the "creek;" so that there was no oc-
casion for delaying the empanelling of the jury.

And I don't believe, from the fairness of his character, that my friend.

559

Mr. Edgerton, will urge before you here any charge of misconduct, on
the part of Judge Hardy, in allowing the jury to be empanelled before
he 8aw the witnesses present in Court — before he saw that the District
Attorney had done his duty, and had brought his witnesses into Court.
I don't believe that Mr. Edgerton will claim, that when the District
Attorney says, " My Avitnesses are here in sight " — I don't believe that
the Counsel will claim here that it was the duty of Judge Hardy to then
inquire of the District Attorney Avho those witnesses were, what they
were going to prove by those witnesses after the roll was called ? That
was the business of the District Attorney.

And the President, in his testimony, says, emphatically, wiaen w^e ask
him if he ever knew of a Judge interfering with the duties of a District
Attorney: "Judges often interfere and meddle in matters which don't
concern them." In the language of the President, Judge Hardy would
have been interfering and meddling in a matter which did not concern
him, if he had undertaken to inquire into particulars as to the attendance
of witnesses — who were and who were not present — before proceeding
to the empanelling of that juiy. I am confident that that charge will
not be urged against Judge Hardy.

1 am confident that the charges against Judge Hardy, in regard to this
matter, in the final argument, will begin at a later stage of these j)ro-
ceediugs.

I am confident that the argument will be centred on a single j)oiiit :
After the jury was empanelled, a recess of the Court having been taken,
the Court having waited, or compelled the District Attorney to wait,
until ten o'clock, the time at which the witnesses for the prosecution had
been subp(X'naed to a])pear — that then, and not till then, there will be the
concentration of the force of the argument of Counsel against us in this
case, upon this charge.

Now, upon that charge.

We have established, up to this time, the facts which I have just
stated.

The jury were empanelled. It did not take very long to empanel the
jury. I do not believe that there will be a complaint made in relation
to that. I believe that the experience of the Counsel who will follow
me has shown him that it is a very common occurrence in a country
county, where the District Attorney knows every juror, not to question
every juror. When the District Attorney sees a man come into the box,
whom he knows from general acquaintance to be a proper man, he does
not ask him any questions at all.

Why. it has been said and harped upon here, that it ordinarily takes a
day, in an important case, to empanel a jury. Judge Campbell has
stated his own experience in that respect, in his argument here. Judge
Campbell says that it usually takes a day.

My experience as a Prosecuting Attorney has been, that in many very
important cases I have empanelled a jury in from ten to fifteen minutes.
I remember a case, a capital case, where we empanelled a jury m less
than twent3'-five minutes, and the man was convicted and hanged. And I
doubt whether there would be any propriety in charging me there, as
District Attorney, with any neglect of duty in not questioning every
one of those jurors. And still less propriety would there be in impeach-
ing the honorable gentleman who presided over that Court with having
been o-uilty of any dereliction of duty in not interfering and taking the
case out of my hands, and examining each and every one of those jurors.

Why, I remember a case in this very room, or in the room across the

560

hall, not very long since, where a man, an ex-officer of this Government,
an ex-Federal officer, was charged with a — I don't know exactly what
they called it — with a " deftilcation " (to give it its mildest term,) in bis
accounts, and in the payment over of the amount which he himself -
acknowledged having received. His own books showed a balance
against him of one hundred and sixty-six thousand dollars. There was
an indictment pending against him for a felonious otfence. That indict-
ment was not on trial ; but it was a civil case.

I remember that there was a gentleman called there as a juror, when
I was questioning, as I did occasionally, a portion of the jurors, and
only a portion of them, who, I individually and perfectly knew, had
made up his mind that my client was guilty. I knew that he had pro-
claimed it. He had written newspaper articles about it. He had
written several articles for publication in the newspapers in this city,
charging Federal officials here with grave offences in office, and in par-
ticular accusing this officer on trial with liaving committed the particular
fraud alleged against him. When he was called as a juror there I knew
the man, and my client complained because T did not object to him.

Suppose he had gone upon that jury. Suppose that I did not object
to him, knowing the fairness of his mind, knowing that he was an
honest man, knowing that he would impartial!}' hear the evidence, and
decide according to the evidence — that he would not do what has been
attributed here, as about to be done by members of this Court — vote
upon preconceived notions and part}* prejudices. I knew that he would
find a verdict according to the evidence.

He, however, excused himself He said: "I am not a fit man to sit
upon that jury, for I have formed and expressed an opinion against the
defendant." And he was excused.

I did not challenge him. And would my client have maintained an
action against me for negligence in not having challenged him, if he had
gone upon that jury ?

That very man, if I am not misinformed — greatly misinformed — that
very man, when he heard the evidence in that case, pronounced that he
would have found the defendant innocent.

And 1 am happy to say, that man sits in your body to-day to try my
client.

I want such judges for my client. I want this case tried by such men.
And I don't deem it a dereliction of duty on the part of a District
Attorney, not to ask all the questions that are contained in the formula
of examination when he knows the jurors.

Then they pass on to the charge upon which most stress seems to be
laid. Judge Hardy, after the jury had been empanelled, and after the
Counsel for the defence had pressed that the case should go on — either
go on with the evidence on the part of The People, or that a verdict
should be taken for want of evidence — pressed it importunately, pressed
it strongly upon the Court, as the Counsel for Judge Terry himself
swears — Judge Hardy, instead of acceding to that proposition, does
institute an inquiry. He turns to the District Attorney, and says :
"Mr. District Attorney, where are your witnesses?" The answer is:
" I believe they are coming ; I believe they are in the ' creek.' " Judge
Hardy sends out a messenger to inquire. He learns that they are not
in the " creek." He learns that they ai'e not in sight. They have not ;
been seen or heard from, " \

Then Judge Hardy inquires of the District Attorney : " Mr. District I

561

Attorney, for what hour did 3'on summon your witnesses ?" Tlie case is
set for nine o'clock in the morning. " For what hour did you summon
your witnesses?" The District Attorney replies: "For ten o'clock."
Then it lacked a few minutes of ten o'clock. " Well, then," says Judge
Hardy, " we will not proceed further in this case until the hour of ten
o'clock has arrived."

Judge Hardy did interfere ; and in a manner complained of by the
Counsel for the defence. Judge Hardy suspended proceedings in the
case, and took a recess of the Court. Everything ceased. All action in
the case stopped until the hour should have arrived for which the Dis-
trict Attorney had subpoenaed his witnesses.

That the witnesses did not arrive there until half past twelve, is in
the evidence before you.

The case was set for nine o'clock in the morning. The Court convened
at nine o'clock in the morning. The District Attorney announced, along
towards ten o'clock, or at half past nine o'clock, that he was ready to
proceed. Judge Hard}' asked him whether he had his witnesses there.
The reply of the District Attorney is : " They are in sight."

Now, what does Judge Hardy do, after Ihe jury Avere empanelled,
after the Counsel proceeded in pressing their application to crowd this
trial on ? He stops all proceedings until after ten o'clock.

And he is charged here with j>/Yr/};/to??ry / He is charged here wnth
knoicinf) the prixjnnnine ! He is charged here with knowing that these
witnesses were not coming until after ten o'clock ! And yet there is
not one word or one s^dlable in the testimony in this case, from the tes-
timony of Mr. Shafter down to that of the last witness who testified in
regard to this matter, going to show that Judge Hardy ever had the
slightest intimation of wdiat the programme of the defence Avas, or was
tohe. Not one word or one syllable of evidence of that kind. On the
contrary, one of tlie Avitnesses, Avho was there and saw the whole pro-
ceedings, a professional gentleman^ a member of the bar, testifies, in
unison with two other witnesses, to the same point, and says: "I have
not the slightest idea that Judge Hardy ever had the least intimation on
that subject."

And it is Judge Haixly we are trying here. We are not trying the
District Attorney of that county.

They have tried this poor old man, Judge Haralson, who lies upon
his back, confined to a sick bed, and who cannot, therefore, come here
and vindicate himself Mr. Shafter has testified before you that he
thought this man had been pursuing a course of conduct that would
unfit him for the performance of his duties. That is the conclusion to
be drawn from Mr. Shafter's testimony concerning him. Other wit-
nesses, who are his neighbors there, who know him well, who see Ijim
every day in that little'town Avhere everybody daily meets with every
Other person — where, as Mr. Taylor says, " Almost every person runs
against his neighbor some time in the day" — and they swear that they
saw nothing in Judge Haralson's appearance on that occasion which
would indic^ite ground for such suspicions as Mr. Shafter swears to.

If that old man could be here himself, if he could have been called
upon to bring witnesses to exculpate himself from this charge made by
the witness, Mr. Shafter, I think I may safely say that you would have
had an array of witnesses here quite equal to that which the collateral
client of the Prosecution, Allan P. Dudley, brought in here — the Allan
P. Dudley who has appeared here and taken his seat by the side of
Counsel, and defended his own character, because w^e had impeached it
71

562

by twenty witnesses. I think that if this poor old man, confined by a
dangerous sickness to his bed, could have had the opportunity Allan P.
Dudley had, he would have rebutted, most triumphantly, these insinua-
tions made against him by the witness, Mr. Shaftcr. And I do not ex-
pect on the other side anything so ungenerous, so unmanly, as the urging
of this evidence before j'ou, which would point to any peculiar condition
of that man at that time; especially, since we proved incidentally — inci-
dentally, for we had made no preparation for it — proved by those who
knew him well, proved by those who had seen him during the week
when Mr. Shaffer thought that he must have been on a debauch by his
appearance on this particular occasion, that it was not as Mr. Shafter
suspected ; that there was nothing about him to indicate any such con-
dition or experience during .the previous or past week. I think that
this charge will not be urged here.

Why should this charge be urged here? Why is this old man assailed?
Why are his shortcomings brought in here ? Why, for the purpose of
showing that Judge Hardy neglected his duty in not taking the func-
tions ol'bis office out of his hands, and playing District Attorney him-
self!

Now, what is the evidence, taken together, altogether, in relation to
Judge Hardy's conduct, on that trial ?

We have asked witnesses, professional witnesses, who were there and
saw him during that trial, men utterly indifferent between these parties,
men utterly indifferent to this prosecution, and to this defence, and what
do they say in regard to the conduct of Judge Hardy? They sa}'' that
it was proper, dignified, and appropriate. They did not hear the slight-
est word, or see the slightest motion or action, on the part of Judge
Hardy, that indicated any disposition to precipitate that case to a trial.
They did not see anything in the conduct of Judge Hardy that was im-
proper, or know that he was apprised of any fact that should have
aroused his suspicions, and put him upon inquiry as to unfair intent in
the case. These are witnesses who Vere there, observing.

Well, I don't understand Mr. Shafter to testify that he saw anything
improper in Judge Hardy's conduct. I cannot find in the printed testi-
mony that I read through, from end to end, on yesterday, anything that
indicates a charge against Judge Hardy of improjDer conduct; unless it
is in allowing the defence to insist upon going to trial after the recess of
the Court, and after it was ascertained that the witnesses had not been
seen or heard from and the subp'ena had not been returned.

Mr. Shafter did state his own convictions : that he thought it an ex-
traordinary proceeding, and therefore wrote down a memorandum. He
testifies not only from the recollection which he now has, but, probably,
from having seen his memorandum since.

In that memorandum, did he write that Frank Miller was under in-
dictment for murder at that time, and that, as a juror, he was not chal-
lenged ? Did he write down that Miller had been arraigned before Judge
Hard}^, and that, therefore, Judge Hardy must have known of his indict-
ment ?

I don't understand Mr. Shaffer's testimony to impugn Judge Hardy's
conduct — except by way of insinuation, that the trial Avas a short one,
for one of so much importance. I think that the mind of the Presi-
dent is too fair to allow of his stating such a fact, or such a conclusion,
upon the strength of such facts as he witnessed.

Now Mr. Taylor's testimony. Mr. Taylor is the next witness, in reg-
ular order.

563

Mr. Taylor's testimony will be found at page one hundred and forty
of the official report.

Mr. Taylor was the Clerk of Marin County. He was the Clerk of the
District Court there, over which Judge Hardy Avas called upon to pre-
side for that one occasion, on account of the inability of the Judge of
that District to hold that Court. He was never there before, in his life.
He did not know a man in the county, probably. Certainly, there is no
evidence that he did.

Mr. Taylor swears that he was then County Clerk. Then they prove
the records by hini.

Among those records, is the subprena and the return.

On the second of July the subptena issued, was delivered to the spe-
cial Attorney, who had gone up from this city to attend that prosecu-
tion, was sent down here by him to be served upon the witnesses here,
and notify thctn to be up there in time. The Sheriff returns that it never
reached him until some time on the day of the fifth of July, the day be-
fore the very day on which the trial was to come off. And Judge Hardy
is sought to be held responsible for the absence there at the appointed
time of the witnesses for the prosecution.

This return is one of the records introduced and proved here.

Judge Campbell is questioning Mr. Taylor :

" Q. — Do you recollect at wliat time the jury were empanelled ?

A. — I do not. Sir.

Q. — How long after the jury were empanelled, before the verdict was
rendered i* If you recollect, state what was done on that occasion ?

A. — I think that it was between five and ten minutes after ten o'clock
when the verdict was rendered. I think that Mr. Haralson, District
Attorney of 31arin County, got up and said to the Judge that he had
issued subpcenas for witnesses, and that the subpoenas had not been re-
turned, ami that therefore he could not ask for any attachment. He
said that he had issued subpcBuas for witnesses, but the subpoenas had
not been returned, and the witnesses were not present. Therefore, he
could not ask for an attachment."

Right there, let me ask, if this old man Haralson had not done his
dutyl* He had issued his subpcenas on the second of July, returnable on
the sixth ; and he had entrusted them to officers from San Francisco, who
had come uj) there to prosecute that suit.

- I think that Mr. Haralson, District Attorney of Marin County, got
up and said to the Judge that he had issued subpoenas for witnesses and
that the subprenas had^not been returned, and that therefore he could not
ask for any attachment. He said that he had issued subpoenas for wit-
nesses, but the subpoenas had not been returned, and the witnesses were
not present. Therefore he could not ask for an attachment.

Had the District Attorney other witnesses there on that occasion?
Judge Hardv asks him, - Have your witnesses come ?' And he answers,
" No Sir " .Judo-e Hardy sent out a messenger to see if the witnesses were
in sight, and found that they were not. He says : "Mr District Attor-
ney what do you propose to do ? Will you take an attachment for these
witnesses, and have this case postponed or held over until the^ attach-
ment can be served and the witnesses brought here? Ihe District At-
torney replies : " They have not returned my subpoenas to me, and i have

564

no evidence that the witnesses have been subpoenaed. I cannot take out
an attachment until I know that they have been subpoenaed." These San
Francisco lawyers, who are so zealous in the prosecution of this case that
they go out of their own county to prosecute it, have taken his subpoenas
down here and kept them in their pockets from the second of July to the
fifth of July — until how late an hour in the afternoon of the fifth of July,
does not appear. The District Attorney says: '' They have not returned
me my subpoenas. I have no evidence of their having been served, and
therefore I cannot ask for an attachment. I have done everything that
I could do. I have exhausted all the power the law gives me."
I will read again :

"He said that he had issued subpoenas for witnesses, but the subpoenas
had not been returned, and the witnesses were not present. Therefore
he could not ask for an attachment.

Q. — When were the subpoenas returnable?

A. — They were returnable on July sixth.

Senator Crane. — When are those subpoenas dated ?

A. — The second of July.

Mr. CamiiheU. — I will read the subpoena, by request of Senator Perkins
and Senator I)e Long.

[Mr. Campbell read :]

State of California, Marin County, \

District Court, 7th Judicial District. |

The People of the State of California to Doctor Sawj-er, Leonidas Has-
kell, F. A. Holman, C. A. McNulty. Calhoun Benham, Joseph C. McKib-
ben, D. D. Colton, Thos. Hayes, Henry Fritz, J. W. Lees, Lcgarde, M.
J. Burke :

You are commanded to appear the District Court of the 7th Ju-
dicial District, in and for the County of Marin, at the Court House in
said county, at San Eafael, on the Gth day of July, A. D. 1860, at 10
o'clock, of the forenoon of that day, then and there to testify on behalf
of The People of the State of California, in a criminal action there pend-
ing, between The People of the State of California and David S. Terry,
defendant, on the part of The People.

Given under my hand this 2d day of July. A. D. 1860.

J. H. HARALSON,
District Attoraey Marin County.

State of California, \

Marin County, j

The People of the State of California,

againat

David S. Terry.

The proper affidavit having been made by the District Attorney of the
County of Marin, let the witnesses within named attend at the time and
place mentioned in the within subpoena, according to the requirements
thereof.

R. B. FRINK,
July, 2, 1860. County Judge of Marin County.

The return is as follows :

Sheriff's Office, |

City and County of San Francisco, j '
I hereby certify that I received the annexed subpoena on the 5th day

565

of July, A. D. 1860, and on the same day duly served the same on F. A.
Holman, J. M. McNulty, (or C. A. McNulty,) D. D. Colton, Thomas
Hayes, Henry Fritz, J. W. Lees, B. Lagarde, (or Legarde,) and M. J.
Burke — witnesses therein named — by showing and ex])laining to every
one of said witnesses, personally, in the City and County of San Fran-
cisco, the said annexed original. And further, that after due diligent
search and inquiry. I have been unable to find Doctor Sawyer, Leonidas
Haskell, Calhoun Benham, and Joseph C. McKibben, other witnesses
therein named, witliin my city and county, and that I am told and be-
lieve that tlie said Benham and the said McKibben are at present not in
the State of California.

CHARLES DOANE, Sheriff.

By John Hill, Deputy.
San Francisco, July (5, 1800.

Mr. Campbell. — Do you recollect the time when those witnesses for the
prosecution arrived there ?

A. — I think that they arrived between eleven and twelve o'clock."

It was afterwards proved that it was half past twelve o'clock when
they arrived. Mr. Shafter thought that it was about quarter past
twelve o'clock. Add the difference between his watch, and that of
Judge Hardy, and it would make it about half past twelve o'clock.

Senator Crane. — What page is that'/

Mr. Willianis. — Page one hundred and forty-three.

"3//-. Campbell. — Do you recollect the time when those witnesses for the
prosecution arrived there?

A. — I think that they arrived between eleven and twelve o'clock.
The>/ brought over uith them the subpoena and the return."

The witnesses, or those who came over with them, had the only evi-
dence u])on which these witnesses could have been attached for not
having obeyed the subpoena.

Why had the}' not obeyed the subpoena? Why were they not there
on the opening of the Court in the morning? Judge Teriy was there,
with his witnesses and Counsel. They went up the afternoon before, in
the one o'clock boat from here. Why did not these witnesses go up
then ? Why, I suppose that the witnesses would say that they were not
subpoenaed until after the boat left. Very likely.

If so, then certaiidy the District Attorney of Marin County was not
responsible. He had done his dut3^ In his own language, he "had ex-
hausted his power." He had placed his subpoena in the hands of prose-
cutors, in the hands of the special District Attorney, or the District
Attorney's partner, who had drawn and presented the indictment which
had been removed from this county to Marin.

I think that Judge Haralson was right in saying that he had done his
duty. He had done all that he could do. He had issued a subpoena, had
put it in the proper channel for transmission to San Francisco for ser-
vice. It had not been returned to him. He could not ask for an attach-
ment. What more could man do ?

I am talking now in relation to the duty of the District Attorney, not
the duty of Judge Hardy— for Judge Hardy knew nothing of these
facts.

" Q. — The return came over with the witnesses ?
A. — Yes, Sir.

566

Q. — On what day ?
A. — July sixth.

Q. — Was there any motion made for a continuance of the case, on the
ground of the absence of witnesses on the part of the State ?
A. — No, Sir, there was not."

Upon what ground, let nie ask you, Senators, could the District Attor-
ney ask for a continuance in the case ?

When an application is made for a continuance in a case, don't you
know, from your observation — those of you Avho are not lawyers — that
it is necessary for you to show not only that you want a witness, but
that you have used proper diligence to secure his attendance; and don't
you know that no Court, having a proper sense of its duty, will ever
grant a continuance, to secure the attendance of a witness in a case, who
is known to be an important and material witness, unless it is shown
that proper diligence has been used to secure his attendance ?

" Q. — AVas there any motion made for a continuance of the case, on
the ground of the absence of witnesses on the part of the »Statc ?

A. — No, Sir, there was not.

Q. — Was the indictment read, and was the pleading made after the
jury was empanelled ?

A. — No. Sir. lie pleaded in San Francisco."

Aye, here is an attempt to prove by Mr. Taylor that there was another
effort to hurry on this case to a conclusion, because they didn't read the
indictment and arraign the prisoner.

The answer is pertinent and to the point :

" No, Sir. lie pleaded in San Francisco."

Is it usual to do this, which they complain was left, improperly, un-
done? Did anybod}' ever hear of a case where the District Attorney
read the indictment over to the prisoner, when the trial was called, after
he had once read it to the prisoner who has been arraigned and who has
pleaded to the indictment ?

" Q. — Was the indictment read, and was the pleading made after the
jury was empanelled ?

A. — No, Sir. He pleaded in San Francisco.

Q. — AVho pleaded in San Francisco?

A. — Judge Terry.

Q. — Was the indictment read to the jury?

A. — I cannot recollect.

Q. — Was there any other business transacted in that Court, after that
trial, on that day ?

A. — No, Sir. I believe not.

Q. — That was the last business done ?

A. — Yes, Sir.

Q. — Did you see Judge Hardy and Judge Terry together at any time
dnring that day ?"

Here is an effort to fix complicity upon Judge Hardy, b}" showing that
he and Judge Terry were seen together after the jury had been dis-
charged, after the verdict had been pronounced in Terry's favor. But

567

even that effort, extreme as it was, even that effort ftiiled. They failed
to prove the fact of companionship at the time they desired to establish
it.

" Q. — Did you see Judge Hardy and Judge Terry together at anytime
during that day ?

A. — Well, Sir, that is a small town. They might have been together.
Almost every person runs against his neighbor there some time in the
day.

Q. — Did you see them together?

A. — Not to the best of my recollection. I saw them together during
that term, but not during that day. Not that I recollect of

The Attornnj-Gcnn-al. — Did Judge Terry and Judge Hardy both leave
town on that day 't

A. — I cannot say whether they did, or did not."

This is the Prosecution's witness. This is a man who was brought
here to sustain these charges against Judge Hardy. He is not our wit-
ness.

'' Q. — Do you know whether Judge Hardy left on that day ?

A. — No, Sir, I do not know. I am inclined to think, however, that
they both did leave on that day. I am not positive. I would not like
to swear to it.

Q. — Was there any objection made to the case going to the jury, on
the part of the prosecution ?

A. — No, Sir; none whatever. Mr. Haralson stated that he had issued
8ubpa>nas for witnesses, and that they had not been returned, and that,
therefore, he had no ground to ask for an attachment.

Q. — How long were the jury out?

A. — They did not leave the box.

(.}. — Will 3'ou read the record of the verdict which they rendered?

[Witness read:]

In the District Court of the Seventh Judicial District, Marin County,
July term, 18(JU. July 6th, 1860 :

The People OF THE State OF California, ~\ Indictment for fighting a
vs. > duel by previous appointment

David S. Terry. ) and agreement, etc.

This cause being regularly called for trial, J. H. Haralson, Esq., Dis-
trict Attorney of the County of Marin, appearing on behalf of The Peo-
ple of the State of California, and David S. Terry, the defendant, ap-
pearing in person and by Counsel, the following named persons were
duly sworn and empanelled as a trial jury : Jacob Short, Matthias Blow-
ers, Gilbert Leonard, Parker W. Coard, James B. Stafford, Benjamin
Miller, G. King, Jonathan Bickerstaff, James (31cott, Solomon Helser,
Charles Sauff, Hiram J. Nott.

And the case was submitted to said jury, who returned the following
verdict, to wit :

'We, the iurv, find the defendant not guilty.

'GILBERT LEONARD, Foreman.'"

Now, as to the mode of empanelling the jury, they go on and inquire
of him again as to the list of jurors.

It was complained here, in the course of this trial, that the jury was

568

empanelled in an unusual manner. It was complained that they were
emi^anelled by calling the names from the Clerk's list, which the Clerk
had made up by copying from the venire and return of the Sheriff, in-
stead of 2:)uttiug the names in a box and drawing them out. That was
claimed as unprecedented — that that mode should be adopted which was
pursued in this case.

The question was asked: How shall this jury be empanelled?

Will you have their names called, man by man, and let each party
make his objection to each or any man, as he is called ? Or, will you
have their names put into a box and drawn out ?

It was suggested on the one side and assented to on the other, that the
names might be called from the Clerk's list, each party, of course, re-
serving his right to object to any of the jurors. They exercised that
right. Three jurors were excluded. Challenges were intei-posed. But
they did not challenge every juror; and Judge Hardy is responsible for
that.

'M/r. Camphell. — In regard to the list of jurors — how were they made
out?

A. — I called them off from the original venire. I read the first twelve
names.

Q. — No names were drawn from the box?

A. — Xo. Sir. That was waived hy both parties."

Senators : Do you remember Judge Campbell's very frank and fair
statement of the fact, as a witness heie, although not on oath, that the
jury were drawn in the usual manner; that is, the jury were summoned
in the usual manner ? That the Clerk's list was made up in the usual
manner ?

Judge Campbell testified before you that it was always the practice
for a person accused of crime to obtain a copy of that list, in order that
he might see if there were any objectionable names upon it — names of
those whom he would desire to challenge. The defence always obtained
a copy of this list.

'' Q. — Who made that original list ?

A. — The Sheriff". I suppose. I know it was in his handwriting.

Q.— Who is the Sheriff of Marin County?

A.— Mr. Y. D. Doub.

[Several papers were handed to the Presiding OflScer, to be marked, as
placed in evidence.]

Q. — Is the list in the Sheriff's handwriting?

A. — No, Sir; it is in my handwriting. The return is in the Sheriff^s
handwriting.''

He made the list from the return, and says he copied it truly.

'■^ The Presiding Officer. — What are these pencil marks? [Pointing on
the venire.]

A. — These [pointing] were selected as jurors. [Showing a mark on
the venire, which served to designate the chosen jurymen.]

The Presiding Ofiicer [the witness, Mr. Taj'lor, being ill,] read the list
of chosen jurymen.

The jur^'men were as follows : Gilbert Leonard, [Foreman.] Jacob
Short, Matthias Blowers, Parker W. Coard, James B. Stafford, Benjamin

569

Miller, G. King, Jonathan Bickerstaff, James Olcott, Solomon Helser,
Charles Sauff, Hiram J. Nott."

Among the list, is the name of "Benjamin Miller." I don't see the
name of " Frank Miller " here. I see " Benjamin Miller," but no " Frank
Miller."

J ask the Chair, whether, according to his recollection, it was "Ben-
jamin Miller" or " Frank Miller" who was indicted.

The Proiidhig Officer. — Benjamin Miller.

Mr. Wlllidma. — Ah 1 I understood it was Frank Miller.

Benjamin Miller was the man who, since that time, has been indicted
for murder. He had not been indicted then. He had been arrested, ex-
amined, and discharged. Judge Hardy ought to have foreseen that he
was going to be indicted for murder; and. therefore, he ought to have
taken the examination out of the hands of the District Attorney, and
excluded him.

"i/r. Pcrklm. — 1 understand the witness to state that the first twelve
men on the venire were called and sworn in as jurors?

A.— Xo, Sir.

The Attorney -General. — The first twelve men on the venire were first
called up by agreement ?

A.— Yes, Sir.

The Attorney- General. — How came they to waive the box?

A. — AVell, Sir, they agreed to take the first twelve names. The first
twelve names were called, and those who answered went into the jury
box to be examined.

Judfje Ilartlij. — The first twelve names on the venire did not comjDOse
th e j u ry , did they?

A.— No, Sir."

Mr. Perkins was mistaken when he supposed that the testimony
showed that an agreement was made that the first twelve names should
be taken, absolutely. It was only agreed that the Clerk should first call
twelve names, and that those who responded should go into the jury
box, and then be examined. They called the first twelve names. Twelve
men were put into the ]\\vy box for examination. And they did examine
some of them. And some of them were sworn in.

Mr. Hoge testified to the fact that they were examined as to whether
they sjnnpathized with the Vigilance Committee. One man was chal-
lenged by Mr. Hoge, Judge Terry's Counsel, on the ground that he
sympathized with the Vigilance Committee. Judge Hardy overruled
that objection. Judge Hardy decided that sympathy with the Vigilance
Committee amounted to no disqualification. He overruled Judge Terry's
objection on that trial. And Judge Hardy is charged here with collu-
sion with the Counsel of Terry in that case, or with Terry himself

Then the first twelve names on the list were called ; twelve men were
put into the jury box; and then they commenced to examine them.
When Counsel could see one, two, or three men, before them, whom
they thought were doubtful characters, they examined them. "When
the}^ saw men there, whom they or their client knew well — knew would
make fair jurors — they accepted them. They were not endeavoring to
give an adventitious importance either to the case itself or to the
services of Counsel in empanelling a jury.
72

570

"CROSS EXAMINATION.

Mr. Williams. — You were inquired of, whether you saw Judge Terry
and the Eespondent here, together during the term. Your first answer
was, that almost everybod}- there was together, more or less. You had
seen them together during term time, but not on that day. Now, did
you ever see them during that term time together alone ?

A.— No, Sir."

That is the point of the question. It is not whether they were
together in a crowd. They could not help being together, in that little
tOAvn, in a crowd.

My question was : Mr. Ta3'lor, did you ever see them alone together,
from the first to the last — from the moment they arrived until the
moment they left? What is the answer? ''No, Sir."

" Q- — When the jury had been empanelled, and the defendant's Coun-
sel was pressing on the trial, was urging progress in the cause, did Mr.
Haralson, the District Attorne}', on being called on by the Judge and
asked whether he would take out an attachment, say that he had
exhausted all the power he possessed j that it had not been sufficient;
that his subpoenas had not been returned; and that therefore he could
not ask for an attachment ?

A. — I think so.

Q. — Are you certain that he stated that he had exhausted all his
power, and therefore could not ask the Judge for an attachment?

A. — I think he said that the subpoenas had not been returned, and
that therefore he could not ask for an attachment.

Q. — I believe you have already stated that the subpoena came over
with the witnesses ?

A. — Yes, Sir.

Q. — This case had been presented in San Francisco County, had it
not?

A.— Yes, Sir.

Q. — When the case was called there to be set for trial, was not the
District Attorney of San Francisco, together with Mr. Campbell, there
present in Court ? I mean, the first day.

A. — I don't recollect whether Mr. Brown was there or not, as an
Attorney in the case.

Q. — lie was there present, was he not?

A.— Yes, Sir."

Whether he was present in the case or not, he don't know. He Avas
there present. And Judge Campbell himself states that he was there;
and Judge Campbell was Mr. Brown's partner.

One would have thought that the duties of a District Attorney might
have been performed among these three gentlemen without the aid of the
Judge, without the Judge coming down from the bench — metaphorically,
at least — to assume the duties of a District Attorney.

That is answered, however, by Judge Campbell's statement : That
when he proposed to go over, on the sixth, and help Mr. Haralson try
that case, Mr. Haralson declined his assistance.

But did not Judge Campbell go over on the sixth ?

Judge Campbell and his partner, the District Attorney of this county,
were there with their witnesses on the second of July, ready to try the
case. The Fourth of July was about to arrive. It would arrive during

571

the progress of tlic trial. It was proi^osed to postpone the trial until
after the Fourtli of July. Then, by agreement, the case is sot for the
sixth (lay of July, at nine o'clock in the morning. The subpoenas are
sent by the District Attorney and his partner, who are over there, to
San Francisco, to be served. And the subpoenas were handed to the
Sheritl' on the fiflb day of July — thej^ being placed in the hands of the
Assistant District Attorney on the second of July, and the trial being
set for the sixth of July.

"il/r. Cam])h(U. — [After consulting with General Williams.] I am re-
quested to state, by gentlemen on the other side, that, as far as these
subpoenas are concerned, iXx^Jirst subpoenas were tilled out by me."

Filled out by Judge Campbell himself

Senator Crane. — What page is that ?

Mr. Wil/iams. — Page one hundred and forty-six.

•' I was then a jiartner of Mr. Brown, who was then District Attorney
of San Francisco County. They were brought over by me, and handed
to the Sheriff" for service."

Handed to the Sheriff' Avhen?

This, however, was before the second subpoena was filled out. This
was a subpoena for the witnesses who went over there on the second of
July.

''As far as the second subpoenas were concerned, when I went over
there, on the second of July, for the purpose of attending to the case,
Mr. Haralson, the District Attorney, utterly refused to have any asso-
ciate in the case. T then furnished him with the names of witnesses,
and filled these names into the subpa'na. Avhich he then issued. These
names were in the subpoena which was brought over by the witnesses
who came over in the boat. The names arc in my handwriting."

This was the subpoena for the sixth of July. The names were in
Judge Campbell's handwriting.

Does Mr. Campbell charge Mr. Haralson with any neglect here?
They offered to relieve Mr. Haralson of what should have been his duty.
The prosecution was a San Francisco prosecution. San Francisco otficers
were there to prosecute it. And even after Mr. Haralson declined to
have any assistance from any man, that prosecution proceeded in pre-
paring the case ; got the subpoena from Mr. Haralson, and Judge Camp-
bell inserted the names himself

Then I asked Judge Campbell :

" I will ask you to state if you ever communicated to Judge Hardy
the fact that you were rejected by the District Attorney, as Counsel in
that case ?

Mr. Camphell.—l do not think that I ever did. After filling in the
subpoenas, I immediately came over to San Francisco. Then, in order to
set ourselves right before the community, Mr. Brown and myself jointly
addressed a letter to District Attorney Haralson, on this subject, in
which we again stated that our services were at his disposal in that case.
We had had charge of the proceedings here in San Francisco, and were
willing to aid in the prosecution there. We received a reply from Mr.

572

Haralson, declining our services. These communications were published
in the daily papers."

All this is to set Mr. Brown and Judge Campbell right before this
communit}'.

And after all these shortcomings, they charge, first. District Attorney
Haralson with neglect of duty, and then they charge Judge Hardy with
having known alT these facts, and negligent!}' and corruptly permitting
that case to go to trial. And when I asked Judge Campbell to state
whether Judge Hardy knew anything about the fact that tlieir services
had been rejected, he discloses that he had no idea that Judge Hardy
had any such information.

I asked Judge Campbell again : (he was then testifying as a witness,
making his statement as a witness, without oath — we waived his oath :)

" Were 3'ou and Judge Hardy together during the latter part of the
day, after the Court adjourned ?

Mr. Camphdl. — I saw him in the latter part of the day. I talked with
him a very few minutes.

Senator Crane. — Do 3'ou know whether Judge Hardy knew that you
had been refused as Counsel ?

Mr. Camphdl. — I do not know that he did. I am not aware of having
said anything to Judge Hardy about it myself. I think I did not."

Here is the knowledge of Judge Hardy. Judge Crane directs him
right to the very point — whether Judge Hardy knew these facts about
Counsel in the case.

Judge Campbell goes on with his answer:

" My impression is, that I did not. In fact, I am pretty certain that I
did not. I saw Judge Hard}' over there that day, I know ; but I did
not say anything to him in regard to that matter."

This is Judge Campbell's fair, manly, dispassionate statement.

"ifr. Ed(/erton. — I am requested by a member of the Court to ask
whether the District Attorney interposed any challenge whatever in that
case to any jurjmian ?

A. — I think not, Sir.

Q. — I am further asked to inquire of you whether there was more
than one subpoena made on behalf of the State ?

A. — There were two. They are both here. One is dated in June,
returnable on the second of Jul}'. I believe the witnesses were all there
then.

Q. — Did more than one subpoena for witnesses issue for the sixth of
July?

A. — I did not issue that subpoena myself. I mean the subpoena for the
prosecution. The District Attorney issued that. I know of only one
subpoena.

Senator Crane. — You mean, on the part of both sides ?

A. — No, Sir. On the part of the State, only. I issued the subpoenas
on the part of the defendant, myself

Mr. Edgerton. — A member of the Court again desires to know whether
the witnesses for the prosecution were there, on the second ?

A. — Some of them were there, on the second.

0(0

Senator Crane.— And was it on the second of July that the trial was
fixed for the sixth of July ?

A. — Yes, Sir.

Senator Perkins. — What was the form adopted in summoning the jury ?

A. — Well, there was no order for a drawn jury. The Sheriff went and
summoned a jury right around the town."

That is the statutory mode, where the original venire foils to order the
summoning of a jury from among the citizens of the county generally,
and not from bystanders.

Here the order was to summon sixty jurors, and the Sheriff summoned
that number. And as many of them as were necessary were called.
They took time enough to call about, or nearly, sixty jurors, before com-
mencing the empanelling of this jury.

That is the testimou}- of the Prosecution's second witness.

Does that show malfeasance in office on the part of Judge Hardy ?

Does that show a knowledge of any collusion, or a neglect of duty on
the part of the District Attorney ?

Does that show any guilty intent or any dereliction of the strictest
duty, on the part of Judge llardy ?

I leave these questions to you. Senators, upon the evidence so far.

I will call your attention, however, for a moment, to the testimony of
the additional Avitnesses on our side, who have testified to the same
points.

There was the testimony of Mr. Southard. Now let us turn to his
testimony.

Mr. Southard is a lawyer in Petaluma. He is attending Court in this,
a neighboring county.

You will find !Mr. Southard's testimony on page one hundred and
ninety-two of the official rejjort.

"J. B. Southard, being called and sworn, testified as follows :

Mr. Willlanu. — Where do you live ?

A. — At Petaluma, in the County of Sonoma.

Q. — Are you a lawyer, Sir ?

A. — Yes, Sir.

Q. — Were you at San Eafael at the time of the trial in the Terry case ?

A.— Yes, Sir.

Q. — Will you give the Court a historv of what took place upon that
trial ?

A. — I will attempt to do so, Sir, as far as my recollection will permit
me. I went to San Eafael, from Petaluma, in company with Judge
Hardy. I believe I had some business at San Eafael. at the Court there.
I was present during the proceedings in Court, when Judge Terry was
tried. The jury was called, and then something was said about not pro-
ceeding witlti the trial until some witnesses from San Francisco, who
were absent, had arrived. The District Attorney said that he expected
the witnesses would be there. They empanelled the ]Xivj, and then the
District Attorney wanted to dismiss the case on account of the absence
of witnesses."

There is a charge which they make against the District Attorney, on
) this evidence that he wanted to '• dismiss " this case. " He wanted to
I 'dismiss' the case," say they. 1 will show you, by and by, what that
means.

574

<' Q. — What do you mean by 'dismiss?'

A. — I mean that the District Attorney wanted to take a verdict.
Q.— The District Attorney ?

A. — Yes, Sir ; the District Attorne}', himself. Judge Hardy said that
the time was not up."

Judge Hardy would not permit him to take a verdict then.
Mr. Southard continues :

•' Or, first, Judge Hardy asked : ' What shall I do with this ease, Mr.
District Attorney ?' I believe that the District Attorney said : ' I will
take a verdict.' The Judge asked : ' How about the witnesses for the
prosecution V The District Attorney responded : • I have exhausted the
process of the Court to get tliem here, and the}* are not here.'

Q. — Then what happened 't

A. — Judge Hardy responded : 'You know best about that, Sir.' The
Judge then waited some time, until he said the time was up. I know
that he had liis watcii with him. and took it out, and looked at it several
times. They took a verdict then for the defendant, without producing
any proof

Q. — After the affair was over, after the defendant had been discharged,
did you come down here with Judge Hardy?

A. — 1 believe so.

Q. — Had anything been said to attract your attention to the time
when the verdict was taken ; as to whether it was right or wrong,
according to the announcement of the Court?

A. — Yes. Sir. I recollect that Mr. Shafter was there at San Rafael.
I heard him say that the time was not up, when Judge Hardy took the
verdict?

Mr. Campbell. — State whether this was in the presence of Judge Hardy
or not ?

A. — No, Sir. I do not think that what Mr. Shafter said was in Judge
Hardy's presence. I had heard Mr. Shafter say that the time was not
up; tliat tlie witnesses would have been there in tiniQ if they had waited
a little. That was, I think, shortly after the discharge of Judge Terry.

Mr. Williarn.i. — How did you find the time really was ?

A. — I had no watch with me myself, at the time. But when I heard
these statements, I felt anxious to learn the facts about the case. I
asked several persons w^hat their time was. and it agreed with that of
Judge Hardy's. I think that I inquired of Mr. Carder, of Petaluma,
who had a watch. I think I also inquired the time of others. Because,
when I heard this remark about the verdict being taken before the time
was up, I wanted to know whether it was true or not. It had not
occurred to mc that the verdict vras taken before the time was up.

Q. — You are a Union Democrat, and you were a friend of Broderick ?

A.— Yes. Sir.

Q. — Did you hear the testimony of Finnigan, yesterday?

A. — No, Sir. I just got here to-day.

Q. — Did you hear the testimony of Senator Irwin, this morning ?

A. — No, Sir.

Senator Be Long. — I desire to ask the witness a question. At the time
of this Terry trial, did you bear the District Attorney, or an}'^ other per-
son in the Court room, in the presence of the Judge, and before the ver-

575

diet was rendered, state that the witnesses for the prosecution were in a
boat in the ' creek,' and would soon be there ?

Witness. — In tlie Court room?

Senator De Lonj. — Yes, Sir. Was that statement made in the Court
room, before the Judge, before the verdict was rendered ?

A. — I think that the District Attorney said that the witnesses were
somewhere near at hand.

Q. — Before the verdict was rendered ?

A. — Yes, Sir.

Mr. Williams. — Before the jury was empanelled?

A. — Yes. Sir, I think it was. After I heard these reports, I went to
Judge Hardy and asked him what time it was by his watch. I then made
inquiries about the time from others; and the decision whicli I came to
from the inquiries I made of scvei-al individuals, was, that Judge Hardy
was right.

Senator Van Dyke. — AVhen was that ?

A. — That was at San Rafael, at the time of the Terry trial.

Senator Perkins. — Did you see Judge Hardj^'s watch?

A. — Yes, Sir; he showed me his watch.

Q. — Did you compare it with other watches ?

A. — No, Sir. I didn't compare it with other watches. I went and
asked him to let me see his watch. I then told him what had been said
regarding the time when the verdict was rendered. 1 then went and in-
quired of other peo))le what time they had.

Senator Perkins. — What time was this ; before or after ten o'clock ?

A. — It was after ten. It was probaI)ly half an hour, or fifteen minutes
after the jury had been dismissed. It was after I had heard the report
that Judge Hardy had dismissed the case before the time Avas up.

Mr. Williams. — Another question, if you please. When it was intimated
that the boat containing the witnesses for the prosecution was in sight,
do you know whether or not Judge Hardy sent somebody to look out,
and see if that was the fact or not ?

A. — I think so.

Q. — And after the jury was empanelled, did not Judge Hardy say that
they had better wait until the witnesses came?

A. — T said so.

Q. — And did it not turn out that the witnesses were not in the
' creek ' ?

A. — I believe that was the fact. I saw Judge Campbell and Leonidas
Haskell, ami told them about it, and I understood them to' say that they
did not come up the ' ci'cek.'

Q. — Do you know how that Avas — whether they did not land at Point
San Quentin ?

A. — I believe they did. I believe they came up from there in wagons.
I recollect seeing one of them get out of a wagon or a stage.

Q. — Now. when Judge Hardy w^as applied to to empanel the jury be-
fore the arrival of witnesses, did or did not Mr. Haralson, the District
Attorney, say that the boat was in sight, containing the witnesses ?

A. — Yes, Sir. I understood, from what he 'said, that the witnesses
would be up there in time.

Q. — ^Yas it announced to Judge Hardy, before the empanelling of the
jury was commenced, that the witnesses were in sight ?

A. — I could not tell whether it was before or after the erapanelment of
the jur}'. My impression is that Mr. Haralson said the witnesses were
in sight before the empanelling of the jury commenced.

576

Q. — Which preceded the other — the empanelling of the jury, or the
information from the District Attorney that the witnesses were in

sight ?

A. — I think that the information from the District Attorney, that the
witnesses were in sight, preceded.

Q. — Then the empanelling of the jury followed ?

A.— Yes, Sir.

Q. — I understand you to state that there was a lookout sent out by
Judge Hardy to see whether the boat was really in sight, or not ?

A. — It is my impression that some one was sent out to see if that was
the fact.

Q. — Now, what was the report upon that ?

A. — I cannot state.

Q. — Was it that the witnesses were coming?

A. — No, Sir ; I do not remember that it was.

Q. — You do not rememl)er Avhat that report was ?

A.— No, Sir.

Q. — But upon the announcement being n^ade by the District Attorney
to the Court, that the witnesses for the prosecution were in sight, the
empanelling of the jury was proceeded with ?

A. — Yes, Sir.

Mr. (JampheU. — Are you positive upon that subject. Sir?

A. — No, Sir. I would not swear to anything positively that happened
so long ago. I so stated.

Senator Crane. — You made no memorandum, did you ?

A. — No, Sir; I made no writing.

Senator Perkins. — When did these witnesses for the prosecution arrive?

A. — I think they arrived somewhere near noon.

Q. — After the jury was emjjanelled, what was said about the wit-
nesses ?

A. — The District Attorney, Mr. Haralson, said that they were not
there. He said that he wanted to take a verdict from the jury some
time before the Court would let him.

Q. — Are you sure about that ?

A. — Yes, Sir; I am sure about that. That is certain."

That is the testimon}" of Mr. J. B. Southard, in reference to this mat-
ter.

NoAV comes the testimony of Mr. Hanson, who is a practising lawyer
in Marin County. The official report of his testimony has not yet been
printed.

I can state the testimony of Mr. Hanson, so that Counsel will be sat-
isfied with my statement of it. That testimony has not yet been fur-
nished us by the Printer.

Mr. Hanson testifies that he was practising law, in Marin County, at
the bar of San Eafael.

Mr. Hanson testifies that on this occasion, Mr. Hoge and Mr. Critten-
den were Counsel for Judge Terry. These men were his personal
friends. They were there in a strange county. Mr. Hanson knew all
the jurors in that county. He assisted those gentlemen in the empanel-
ling of that jury, for the purj^ose of giving them that proper informa-
tion, which they did not possess — which the District Attorney did pos-
sess— in relation to the character and condition of those jurors.

He details the proceedings there very much as they have been given
by Mr. Shafter. There was some slight variation — not very material,

577

perhaps, except in this : There is a discrepancy or variation between hia
testimony and that of Mr. Shatter's, in regard to the precise time. Tliere
was a variation or difference between Mr. Shafter's watch and the time
kept there at San Eafael, which the witness here says agreed with the
time which Judge Hardy brought there with him.

With regard to the time, Mr. Hanson says this : After the jury had
been empanelled, the Counsel for the defence pressed the trial. Judge
Hardy inquired of the District Attorney : " For what hour did you sub-
poena your witnesses '( " '' Ten o'clock,"^' was the answer. '' WeU," says
the Judge, " we will not proceed any further until ten o'clock " — thus
overruling a strenuous request on the part of the Counsel for the de-
fence. The Court took a recess. Whether the Judge came down from
the bench, or not, is not very material.

"I went to my office," says Mr. Hanson. ''Mr. Crittenden was wnth
me. When the time arrived — bj' the time we had there — Mr. Critten-
den says : ' It is ten o'clock, and we will go over.'" As Mr. Hanson un-
tlerstood it, they reached the Court room a little after ten o'clock.

After they got there, the proceedings took place which have been de-
scribed by the other witnesses.

Tlic Counsel for the defence insisted, as a matter of absolute right,
that the case should go on, unless there was good cause shown for post-
ponement; unless there was an attachment issued for witnesses. (This
is not his language, but it is the effect of it.) And the case was sus-
pended, on that account.

Then ibllows what has been detailed by the other witnesses.

Now Mr. Hanson did not see anything in the conduct of Judge Hardy
at that time, which was out of the usual course of Judges presiding in
criminal cases. He said that he saw nothing in Judge Hardy's conduct
that excited his attention, on account of its strangeness, or roused his
suspicions about unfairness. He says that his conduct there was per-
fectly fair, and so far as he could see and determine, perfectly appropriate
for a Judge.

Mr. Hanson did not see au}^ jorecipitancy ; did not see any hurry on the
part of Judge Hardy to get this case before the jury. On the contrary,
he saw that Judge Hardy tried to keep the case back, notwithstanding
Mr. Hoge claimed that it was his absolute right to have it proceed.

Mr. Carder swears to the same thing. He was a member of the bar
there, and a witness of the whole proceeding.

He did not see anything there that w^ould entitle anybody to make a
charge against Judge Hardy of having neglected his duty, or having de-
viated, in the slightest degree, from the proper course of a Judge on a
criminal trial.

It comes, then, to the question as to whether Mr. Shafter's watch was
right, or whether Judge Hardj^'s watch was right.

Mr. Shafter's watch was verified, he says, by the clock which hung in
a saloon there in San Eafael. He went right over to the saloon there,
and compared his watch with the saloon clock. The saloon clock was a
little slower than his watch — three or four minutes.

We proved, by another witness, that tliat saloon clock w^as a very ir-
regular time-piece. We proved that it was generally several minutes
out of the way, on the one side Or the other — either too fast or too slow.
So that Mr. Shafter's watch, whether impeached at all or not, was cer-
tainly not sustained by the clock in the saloon.

But, suppose it had been. Suppose the time by Mr. Shafter's watch
was right, and the time of Judge Hardy's w^atch, and the time of all
73

578

those other watches with which his was compared — for this was a suh-
ject of discussion — was wrong. Suppose, for a moment, that Mr. Shat-
ter's watch was right, and the other watches were all wrong. What fol-
lows ? Does it follow that Judge Hardy knew that his time was wrong ?
Does it follow that Judge Hardy, knoAving that his time was wrong, cor-
ruptly accelerated the trial of this case ?

Do you remember what the Counsel [Higby] said in his opening here,
when he, before a word of evidence had been uttered by a witness on
the stand, assumed all his facts, and made a regular, artful, ingenious, and
somewhat eloquent, summing up, upon the evidence which had not been
given? Do you remember that the gentleman told you, significantly,
that there would be some evidence given here about the hands of the
clock in the Court House having been turned along ? Every witness
swears that there was not a clock in the Court House. The hands of
the clock in the Court House were no more turned along — ^there was no
more reality in the statement that such Avas the case, than there was in
the volunteered statement of Mr. Shafter that Benjamin 31iller had been*
indicted for murder before he went into that jury box. And, not only
the hands of the clock had not been turned along, but there was not any
clock in the Court House. And. not only did Judge Hardy not know
that Benjamin JMiller had been indicted for murder, but he had not been
indicted.

Upon this branch of the case. Senators, 1 am content to leave my
client in your hands, now and here. And if 3'ou can find, upon such evi-
dence as that, that a public officer can be impeached, that a public officer
can be deprived of his office, and incapacitated forever afterwards from
holding office in the State, upon such accusation and evidence as that,
why, in God's name be your finding so. I wash my hands of such a
thing — having done my duty, as far as my feeble ability will allow.

Now, I proceed with what the Counsel [Cam]jbell] who opened this
argument, in summing up, seemed to have regarded as a kind of prepara-
tory exercise of your minds.

There is an accumulation here of twenty-two Articles of Impeachment.
And, although containing specifications — three or four in one, and five or
six in another — it is not very important how many — he has passed over
all these; and, if you failed to come to the conclusion, when he left each
one of these accusations, that it was not made out by the proof, that it
was not made out so as to charge Judge Hardy, upon the evidence, with
misconduct, with misdemeanor in office, then 3^our minds are dift'erently
constituted from mine. I watched Judge Campbell's argument with
great care. I followed his logic and his train of reasoning upon each
one of these Articles, so far as it was based upon the evidence in the case,
and I could not help feeling, when he had got through, and had come
down to this one which he said Avas the great graA'e charge of this case,
that it AA'as asking too much of your patience to require you to listen to
an argument against it.

But it is my duty to refer to it. I do not knoAv hoAv all men's minds
are constructed. I do not knoAV hoAV some of you Avill view this e\n-
dence. I do not knoAv hoAv far 3'Ou will seize upon susj^icious circum-
stances, and call that CAidence. It is my duty to pass over, as briefly as
the nature of the case will permit, the evidence upon each and every
of these tAventy-one remaining charges.

In order, hoAvever, that you should be able to measure the value of
the evidence in the case, I beg leave to call your attention for a little
Avhile to the character of that evidence ; not only to the character of

579

the men who have given that testimony, but to the spirit, the feeling,
the animai<, in which they have given it.

Who are tlie witnesses to sustain these Calaveras County charges?
Judge Hardy's District consists of Calaveras and Amador Counties.
Where docs this Prosecution come from ? It comes from the pure at-
mosphere of Calaveras Count3^ It comes from that community whose
bar have made an exhibition of themselves, to some extent, before you.
It comes from that community, the leading members of which — those
who ought, by their talents and their virtues, to be the leading members
of that community — exhibit themselves on the stand here, swearing to
their own inflimy ; making an exhibition of the character of their own
bar, whose honor they should protect, whose reputation they should be
prepared at all times to defend ; showing the real position in which law-
yers stand there, in reference to Judges and to juries.

Amador and Calaveras Counties constitute Judge Hardy's District.
This charge comes fi*om Calaveras County; No; not from Calaveras
County. It comes from that little hot-bed of corruption, that sink of
dishonorable lawyers — according to their own swearing: — "Mokelumne
Hill." .

Why did not the people of Amador County complain of Judge Hardy ?
Why do you not see witnesses here from Amador County charging Judge
Hardy with misdemeanor in office, while holding Court in that county?
They may thank their stars that they have not been involved in this
furnace of persecution. The bar of that county, I take it, the leading
men there, are above this effort to crush a man because they cannot use
him as a Judge.

It is not Calaveras County, it is not Amador County, that is pushing
this prosecution. It is Mokelumne Hill. No; it is not Mokelumne Hill
either; for I take it that there are a great many respectable gentlemen
there who are as much above lending themselves to this crusade against
Judge Hardy, as they are above polluting their hands by allowing them
to be taken by such men as the witnesses from Mokelumne Hill, who
have appeared on this stand against Judge Hardy.

Who are these prosecutors. Senators ? Who are the witnesses here
who swear to every one of these malfeasances in office ? Who are the
men who swear to the corruption of Judge Hardy ? Who do they prove
themselves to be. by their own testimony ?

First in the rank*^of infamy stands Allan P. Dudley ; proved by twenty
of his neighbors to be an infamous liar. One of them swears he is "the
best liar" in that part of the country.

William L. Dudley, his brother, swears to professional conduct on his
own part, that should damn to eternal infamy every man who has such
evidence of being a gentleman as an attorney and counsellor's license
furnishes him.

S. W. Brockway. Now, in some respects, I cannot rank Mr. Brock-
wa}' with these Dudleys ; but, unfortunately, he has lent himself to their
machinations. Mr. Brockway may be, in many respects, a good man.
He seems, to be a kind hearted, peaceable, amiable man, but he is a very
weak man. His own testimon}^ shows him to be so. He swears that
some time ago the project was agitated by these Dudleys and some one
by the name of Treat, of abolishing their Judicial District, in order to
o-et rid of Judge Hardy. Finding they could not use Judge Hardy,
thev were going to get the Legislature to abolish the District. What
did^Brockway do then ? He wrote the petition, he says very reluctantly
— after he had come in here and testified upon the main branches of this

580

prosecution — testified as the Dudleys did, each to a private conversation
with Judge Hardy, when no living soul was within ear-shot of them,
when he knew he could not be contradicted. Both of the Dudleys
testify to conversations, each by himself, sej)arately, and Brockway
weakly follows, and he has got some conversations to swear to.

Mr. Brockway's wickedness comes from his weakness, rather than
from a naturally depraved heart. Brockway is one of those men so well
described in King Henry VI, where the author says :

" Look, as I blow this feather from my face,
And as the air blows it to me again.
Obeying with my wind when I do blow.
And yielding to another when it blows.
Commanded always by the greater gust ;
Such is the lightness of your common men."

This is the lightness of the man they put ujjon the stand here to swear
to private conversations.

Brockway says that when this effort to abolish this District came up,
he was told that the Dudleys would join in it. He says Frank Treat —
I think that is what he calls him — told him so. Then, if the thing was
to be well supported, he was ready to go into it.

Mark you how I drew these facts out of him. He gave them to mc
with the greatest reluctance; I brought him to it inch by inch, and
question by question, until he was obliged to admit it, or be contradicted
by Treat. 1 asked him wliether he had always entertained friendly
feelings towards Judge Hardy. -'Oh, yes! An excellent friend of
Judge Hardy ; like him very much ; love Judge Hardy." " But, Sir, do
not you say you were instrumental in getting up a petition to abolish
the Judicial District, for the sake of getting rid of Judge Hardy ?"
•'Well, yes; I did draw that petition. I signed it, but I backed out of
it afterwards." •• How came you to desist from it?" " Well, I found
the Dudleys were playing false:" That is the substance of it.

William L. Dudley, who was to have headed the thing — William L.
Dudley, who Avas to be the figure-head of the prosecution of that
scheme — had privately written a letter to Judge Hardy that he (Dud-
ley) was opposed to the scheme. Brockway found it out. They were
going to ])ush Brockway out, and then the deep designing villains were
going to use the weak and facile instrument to undermine Judge Hardy,
and get rid of him, by coming before the Legislature and representing
that the District ought to be abolished. Did they mean that they could
get the Legislature to abolish the District simply because they did not
Jike Judge Hardy ? Oh, no ! I suppose not. I suppose they meant that
they would be able to got up a plausible excuse for the abolishing of the
District.

"What did you do then, Mr. Brockwa}'?" " Well, when I found Bill
Dudley had played false in the matter, that he had been writing to
Judge Hardy that he was opposed to it, why, I withdrew the petition,
and destroyed it." Brave man, he 1 if he really thought that the District
ought to be abolished, and was going into it under the wing of Bill Dud-
ley, as he says. When he found that Dudley was withdrawing his pro-
tection, he backed out. That is Mr. Brockway I

What does Mr. Brockway principally testify to. in this case ? Private
conversations with Judge Hardy. Private conversations, in the confi-
dence of gentlemen ; private conversations, in the professional confidence
of lawyers and Judges ; private conversations, when, he says, no earthly

581

ear heard hina, and no man can contradict him. If he is weak enough to
lend himself to that scheme to abolish the District, as he did, and then to
retreat from it because one of the band was playing false, is not he
weak enougli to bring this kind of evidence to bcai'to sustain him when
he afterwards does enlist under the banner of these Dudleys to procure
this impeachment?

What did this Mr. Brockway really believe of Judge Hardy? What
does Mr. Brockway swear against Judge Hardy ?

Judge Hardy was appointed b}^ the Governor, in January, eighteen
hundred and fifty-nine. A Judge was to be elected to fill the office, at
the next general election, which was in September, eighteen hundred and
fifty-nine. In eighteen hundred and fifty-nine, at the February or May
term — I do not remember which — the Foster vs. Fritz case came on ; the
case where Mr. Brockway complained of Judge Hardy's misconduct, as
exhibited in Judge Hardy's ])rivate confidential conversations with him,
which be comes liere and unblashingl}- proclaims. After he knew of the
turpitude whicli he now charges upon Judge Hardy, in connection with
that case, in the winter or spring of eighteen hundred and fifty-nine,
what does this Mr. Brockway do ?

If Mr. Brockway tells the truth, he knew that Judge Hardy had said
these things that he complains of in the case of Foster vs. Fritz and
Lightner. He says that Judge Hardy told him, "I know what your
clients want, better than you do. Tlie decision I have made in that cause
is one tliat you need not complain of. It don't hurt your clients. Light-
ner, one of your clients, is one of the best friends I have got in Califor-
nia." That is what Brockway swears to.

Mr. Lightner swears that every word he ever exchanged with Judge
Hardy in his life could be condensed within a five minutes' conversation.

Brockway says, that Judge Hardy, evincing corruption, told him that
he was acting for his friend liightner; that he knew Lightner's interest
better than flic Counsel did. The course which had been adopted did
not injure Lightner. although he believed it to be correct. Lightner was
his best friend in California, or one of the best friends he had. In regard
to that, Brockway is contradicted point blank by Lightner, who says
that Judge Hardy never was his friend; that they never were intimate;
that they never had five minutes conversation together in all their lives.

And that is the man you are asked to believe here, when he details to
you private conversations which cannot be contradicted by any other
witnesses.

Is Mr. Brockway contradicted in anything else ?

Brockway swears — and this is not contradicted — that at the time of
the election, in September, eighteen hundred and fifty-nine, after this
February or May term, when the Foster vs. Fritz case was up, he sup-
ported Judge Hardy's nomination for the District Judgeship, supported
his election to the judgeship, and urged his clients to support and vote
for him. And this is the hi'ryh minded gentleman Avho comes here to
damn the reputation of a high judicial officer to infamy, upon his testi-
mony of confidential, private conversations !

He knew Judge Hardy was corrupt, if he has told the truth in regard
to the Foster vs. Fritz case. He had been knowing to his corruption,
yet afterwards supports him, and advises his clients to support him in
the election ! If that story is true, then is Mr. Brockway disgraced be-
fore hi^ fellow citizens. If it is true that Judge Hardy ever had such a
conversation as is charged upon him, then Bi'ockway is not entitled to
the confidence of anybody ; for Brockway did urge his clients, knowing

5«2

him to be so corrupt, to sujjport and vote for him; and did, not only at
the primary meetings, urge his nomination, but in the election campaign
made a speech for him.

Is Brockway contradicted in any other respects ?

We examined him here as to his motive in joining in this persecution
— for I call it persecution. We asked him about his feeling. We asked
him what he had done, and what he had said. " Did not you say, in the
presence of Mr. Farley and Col. Bicknell, both highly respectable gen-
tlemen, that this was a mean persecution on the part of the Dudleys
and Higby ?" — giving Mr. Higby a nickname, which I will not repeat
here. '' Did not you say, that this was a vile or a mean persecution on
their part, to get rid of Judge Hardy from that District ?" " No, Sir;
no recollection of saying any such thing, and do not think I did." " Did
not you say it to Mr. Farley ?" '' Xo. Sir." '• Did not you say it in the
presence of Col. Bicknell?" "No. Sir; 1 do not think I did; very
sure I did not."

Mr. P^arley swears, upon the stand here, that when the subject of
abolishing the District was under discussion he warmly remonstrated
with Mr. Brockway. Mr. Farley is an Amador County man, I believe.
Colonel Bicknell, I know, is a public officer there. The}^ both remon-
strated with Brockway. They said : '• You hav.e got a quarrel here in
Calaveras. You have got a spite against Judge Hardy ; and you are
endeavoring to destroy our interests, the interests of these two counties,
for the purpose of accomplishing your object personally against Judge
Hardy." •' Well," says Brockway — and both these highly respectable
gentlemen, Farley and Bicknell. swear to this — "it is against Judge
Hardy, and I think myself," or. " I know that it is a mean persecution,
got up by the Dudkys and Higby." That is Mr. Brockway's view of
the charii,cter of this prosecution. "It is a mean persecution against
Judge Hardy, got up by the Dudleys and Higby, because they cannot
use him on the bench." That was Mr. Brockway's idea of it, and that
not ver}' long ago. It is not six weeks since this effort was made before
this Legislature to abolish that District, and it was after the bill had
come before the House that this conversation took place. Mr. Brock-
way could not remember that he had ever said such a thing as that
these gentlemen swear that he did.

But Mr. Brockway undertakes to go back to eighteen hundred and
fifty-nine, nearly three and a half years ago. and swears to conversa-
tions of Judge Hardy, in which he told him that he knew Lightner's
interests better than he, Brockway, did; and that Lightner was one of
the best friends he had. He swears to that three and a half years of
recollection with the accuracy of a man who had written it down at the
i ime, and testified afterwards ; but he never did write it. Six weeks ago
1 e had a conversation with Mr. Farley and Colonel Bicknell, and now
lie don't remember that he said to them that this was a mean persecu-
tion, got up by the Dudleys and Higby I His memory is excellent when
it is three and a half years old ; it is good for nothing when it is from
four to six weeks old. It is like wine ; it improves by age.

And this is the man upon whose testimony of private conversations
you are to convict Judge Hardy and disgrace him forever ! They fall
back on Brockway. Judge Campbell owns up on Allan P. Dudley. He
says Dudley's conduct was disgraceful to the profession. He says he
does not pretend to justify it — Dudley's betraying his client, as.he said
he did, and doing what he said he did. Judge Campbell does not pretend
to justify it. "Ah, no I But we have got another charge here, another

583

specification, supported by Mr. Brockway" — this reliable witness ! this
man who says that this very effort to get rid of the District is aimed at
Judge Ilai'dy, and that it is a mean and contemptible persecution on the
part of the Dudleys and Higbj- ! He don't remember that. This man,
who drafts and signs a petition for the abolishing of the District, and
then, because Bill Dudley won't go with him. gets it back and burns it
up, and whom you then find one of the witnesses of the Prosecution in
this case, furnishing evidence of private conversations — this is the man
upon whose testimony tliey base these charges !

Well, Senators, I only ask you to weigh his testimony with a proper
and natural scale. 1 only ask you to do ample and fair justice to the
testimony of Mr. Brock way, and say whether, upon that testimony,
unsupported, exce])t by that of an infamous man — and as to these private
conversations, not supported at all — sustained by such evidence alone,
you arc willing to sa}' the Respondent is guilty of any charge ?

William L. Dudley is another of the Dudley family. William L.
Dudley has been called here ; Charles P. Dudley has been called here.
William L. Dudley undertakes to swear that Judge Hardy was drunk
upon the bench in the trial of the Higby case.

The Higby case I That great fii-st cause whereby sin came into the
world — and this prosecution. [Merriment.]

If Higby had not been beaten before a jury in that case, this prosecu-
tion would never have raised its head.

These men, the Dudleys, with all their venom, with all their malice,
with all their dishonesty, never could command respect enough to
procure an impeachment by the House of Assembly. They wanted
somebody to aid them, in whose word some degree of confidence was to
be placed.

It was a fortunate thing for them when they found that Higby's bilious
temper had been roused against Judge Hard}', when they found that he
was indignant against Judge Hardy, because Judge Hardy had decided
a law question against him. And 'they were well apprised of Higby's
feelings of hatred toward Judge Hardy, because he had offered a gross,
outrageous insult to Judge Hardy, while sitting upon the bench.

Higby was just the man to be associated in their scheme of persecu-
tion.

I did not know that this was the man until I heard so much of the speech
as related to that case, and then I could see that this deep-seated feeling of
antipathy which he had towards Judge Hardy, was oozing out at every
pore. And then I turned to my client, and asked him if he was the
" Higby " Avho was a party in that case. Judge Hardy replied that he
was.'^ Then that accounts" for this speech, thought I. And not before
that did I suspect the identity of the persons.

Now, there are some men who experience a momentary feeling of
resentment, which passes off almost with the occasion of it. They have
that active temperament, those warm impulses, that would be roused
for an instant at some su^jposed injury; and when they find that the
injury has not really been sustained— that they have exaggerated it-
why, they are the first to hasten to apologize, and seek and effect a
reconciliation. Unfortunately for Mr. Higby, he is not of that tempera-
ment, and does not possess that class of impulses.

Falstaff would not retain a feeling of resentment for any considerable
length of time, but the lean and" hungry Cassias never forgave an
injury! [Sensation and merriment.]

'l repeat, I do not mean to say an unkind thing in relation to the

584

general charactei^ of Mr. Higby, for I am told that he is esteemed by
his neighbors, in general, as a very good man. I have heard nothing to
the contrary, except what has been disclosed by his conduct in this
prosecution ; and I account for that upon physiological principles.
[Merriment.]

Mr. Wm. L. Dudley says, that on the trial of this Higby case, Judge
Hardy was drunk on the bench. "' AYhat makes you think so ?" I ask.
"Well, his tongue was a little too thick, I thought." Judge Hardy,
according to Dudley's imagination, did not enunciate distinctly when he
read his instructions to the jury — when he read his written charge. He
thought that Judge Hardy did not enunciate quite as distinctly as usual.
I inquired : •' Well, Mr. Dudley, what was your condition about that
timer" " Well, rather tight." [Merriment.] " Pretty tight." And
befoi'e I got through with his examination, everybody Avho heard his
testimony knew that on that occasion he was as drunk as an owl;
[great merriment ;] that he was. on that occasion, when he undertook to
criticise Judge Hardy's enunciation, to observe intonations of the voice
and measure the tongue of Judge Hardy, so drunk that he could not see
through a ladder! [Merriment.]

He, too, testifies to private conversations. Is he after Judge Hardy
too? Is he engaged in this persecution ?

Look back to the time when he promised to support the bill to abolish
the District, and so get rid of Judge Hardy. Look at his double dealing
then; look at his treacherous conduct toward his co-conspirators. After
having stimulated this weak man Brockway to draw up a petition on
the subject, having got him fairl}" into the breach, he ste])s back and
hides himself behind a i)uttress ; writes to Judge Hardy that he is
opposed to the move. That is the kind of man who comes here and
swears to private conversations — un-supported, of course — conversations
which are said to have taken place when no other living soul was
present.

That is the character of witness " No. 2." Or, this is witness " No.
3"; because Mr. Higby has made himself a witness in this case, in his
two-hour opening speech.

Higby has told you how he felt in regard to Judge Hardy. Bill
Dudlc}' has told you how he acted towards Judge Hardy. And Brock-
way has told you what Higby didn't ; to wit. that the Dudleys and
Higby engaged in a most bitter persecution against Judge Hardy; first
attempting to abolish the District.

One fact I foi-got to mention : Avhat Brockway said in this same con-
nection. It is what Brockway said to Col. Bicknell about Judge Hardy
and the bill to abolish his District. He told Col. Bicknell that it was
"a malicious thing, gotten up b}' Higby and the Dudlej^s."

In the same connection comes in the testimony of J. T. Farley.

"J/r. Wif/iams. — Did yon have a conversation with, or did you hear a
conversation by, Mr. Brockway, on or about the twent^^-fifth of March
last, at Mokelumne Hill, about this prosecution against Judge Hardy,
and its origin ?

A. — I had a conversation with Mr. Brockwaj' on the evening of the
twenty-fifth of March, at Mokelumne Hill. I did not hear the conversa-
tion between him and Colonel Bicknell. The conversation that I had
with Mr. Brockway took place at the Union Hotel, about ten or eleven
o'clock at night. Colonel Bicknell and myself had been to San Andres,

585

in Calaveras County, and returned to Mokelumnc Hill to stay all night.
The question of dividing the District was then up, and was a subject of
remark in both counties. That was on the evening before the resolution
for the appointment of an Investigating Committee to inquire into
charges made against Judge Hardy, was introduced into the Assembly.
I asked Mr. Brockway how he stood on the division of the District. He
said that he was opposed to it.

Q. — Opposed to what?

A. — Opposed to a division of the District. And I believe that I made
use of the remark to Mr. Brockway, at that time, rather inelegant, it is
true : ' Damn Judge Hard}^ ! That was not the way to get revenge on
him; that if he had done anything wrong, he ought to be impeached,
and not to divide the District.' Brockway said those were his senti-
ments, and at the same time he used the same kind of inelegant lan-
guage, also : 'Impeach hell! lie h(ts clone nothhif/ to he impeached for.'

Q. — Wiiat did Brockway say, if anything, about this being a persecu-
tion ?

A. — Immediately after that part of the conversation, I asked Mr.
Brockway what was the origin of this feeling in Calaveras against Judge
Hardy ; that I knew not of an}' such feeling in Amador. Brockway said
that it originated with the Dudleys and • Bill Higby' — to use his own
language — (meaning Mr. Higby here,) because they could not use or con-
trol'Jim Hardy' — to again use his own language — on the bench; that
it was a damned ' malignant ' or • mean ' persecution."

It was six weeks, probably less than five weeks, after this conversation,
when this same Brockway goes in before a Committee of the Assembly,
to give testimony to impeach Judge Hardy. Goes in to testify before a
Committee of the House — a grand jury — where Judge Hardy could not
be heard, and where Mr. Brockway could not be cross examined. He
takes his swearing there.

And he comes here now, with his testimony as prosecuting witness, to
swear to confidential conversations which he says took place between him
and Judge Hardy, three weeks ago.

Did lie think,' five weeks ago, that Judge Hardy ought to be im-
peached? '•Impeach hell! He hasn't done anythinrj to be impeached for."
Then, he agreed that if they wanted to get rid of Judge Hardy they
must abolish the District. Now, he comes here and swears that Judge
Hardy has done something he ought to be impeached for.

And Mr. Farley testifies further, in regard to this conversation with
Brockway on the twenty-fifth of March last :

" I inquired of Brockway why that feeling existed in Calaveras, and
he gave me the language Ihave just used for the reason. I believe that
he said further, in connection with that, (I state this, in justice to Mr.
Brockway. and for the purpose of giving the whole conversation,) that
as long as Bill Dudley and Hardy were friendly, it was all right ; that Bill got
drunk at the last term of the Court, and thought Hardy had not acted right
towards him ; and that that was what it originated in."

That is Mr. Brockway.

I will speak more particularly of William L. Dudley, of his character,
as the testimony exhibits it, when I come to examine his evidence.

We now come to the hero of this farce, Allan P. Dudley.
74

586

Allan P. Dudley, who never had respectable influence enough to get a
member of the House of Assembly to rise in his place and introduce a
bill to abolish this District, or introduce an accusation against Judge
Hardy upon Avhich this Impeachment could be founded !

How does this man, Allan P. Dudle}^, stand before you ? Because,
mark you, b}^ the testimony of Allan P. Dudley alone, there are four
charges sworn to, which, without the testimony of Allan P. Dudley,
cannot be supported, and are not even countenanced by any other piece
of evidence. vSorae of this testimony, too, about private conversations.

How does Allan P. Dudley stand before you? Well, you will remem-
ber the evidence. You will probably I'eniember his entire testimony.
You will certainly remember his testimony in regard to one case. I
think that by reference to one single case you can determine whether
any reliability ought to be placed on his evidence or not.

Do you remember what he said about that case of The People, on rela-
tion of the Attorney-General, against Hill Squires ?

It seems that the Sheriff was ex officio Tax Collector of foreign miners'
taxes. The Legislature had passed an Act providing for the election of
Township Collectors in that county. That took so much out of the
pocket of the Sheriff. Therefore he insisted upon it that the Act was
unconstitutional. He insisted that this collecting, being within the scope
of the duties of his office when elected, and previous thereto, he could
not be divested of it until a new election. The Sheriff employed, among
others, Allan P. Dudley, to attend to his case. Allan P. Dudley was one
of the Counsel for Mulford, the Sheriff.

In order to test the question at issue, he, Allan P. Dudley himself, I
think, or else one of his associate Counsel, with the Counsel for Hill
Squires, the Township Collector, drew up and agreed upon a statement of
facts upon which the decision of the Court should be asked.

Now there was a case which was all on paper. There was a case
where Dudley, Brockway & Co., could not come in and swear to out-
side, unrecorded, " private " declarations. But Dudley does try to do
that here, after a while.

The case is all on paper. It is argued at length, and submitted to
Judge Hardy for his decision.

Now comes the testimony of this man, Allan P. Dudley. He is an
Attorney and Counsellor at Law. He had taken an oath to faithfully
discharge the duties of Attorney and Counsellor at Law. The first duty
under that oath is, fidelity to his client in all cases.

Allan P. Dudley swears that after the argument, after the case was
submitted, he had a private conversation with Judge Hardy, in the course
of which Judge Hardy said that he was going to decide that case in fa-
vor of Dudle3''s client. Dudley swears that Judge Hardy told him that
he was constrained to decide in this manner by two cases, which he cited —
one from New York, and one from the United States Supreme Court. He
did not see how ne could decide it any other way. He must decide in
favor of Dudley's client upon those two cases. He did not see how he
could get over those cases. That seemed to settle the law, although the
correct principle would appear to be otherwise. Now, take his own •
story : Here he was informed that the Judge was about to decide the
case in favor of his client. Sheriff Mulford. Dudley tells Judge Hardy,
" I will show you how to get around those cases. That decision which
you propose making, will be very unpopular. This township law is a
very popular law. And a decision in favor of my client will be very
unpopular." " But," there is the law," says Judge Hardy. "There are

587

those two cases. Those cases seem to govern me in this decision." " I
will show you how to get over them," says Dudley. And he sa3^s he did
show him how to get rid of those two cases. He says that he did write
out an opinion, so as to evade those two cases, and show that they were
not the true law of the laud. He says that Judge Hardy did look at his
written suggestions, and did adopt them. He swears that Judge Hardy
did, on that account, change his opinion ; that he did decide against
Dudley's client, Sheriff Mulford — after having told Mulford's Counsel
that he was going to decide in his favor, because he was constrained to
do so by the law, by the authorities, particularly by the authority of
thfjse two cases, which seemed to cover the whole ground. Dudley sug-
gested that there were some other authorities and principles of law,
which would obviate the force and effect of those two cases, so far as
they bore upon this matter. And he says that Judge Hard}^ adopted
his suggestions. He says that after Judge Hardy had made up his mind
in favor of his client, he showed him how he could decide the other way,
and how it was that tlicse two cases, upon which Judge Hardy at first
relied, were not the law. He swears, in substance : '' He did decide
against my client, on m}- showing and at my request, after he had de-
clared to me hifs determination to decide in favor of my client."

That is the effect of Al. Dudley's testimony.

In another case, he testified as to the manner in which he came into
the case.

He testified that his office, the firm "Dudley & Adams," had been
retained with Brockway in the trial of a case. It had been once tried,
and a new trial had been granted. They were going on to try the case
again. Then he, Al. Dudley, took a retainer on the other side, and went
into Court on the other side, against his former client. Allan P. Dudley
swears to that, himself. He comes upon the stand here, and, himself,
•swears to his own professional infamy. And, he having made that ex-
hibition of himself on the stand, it did not seem to me necessary to im-
peach him. And when Judge Hardy told me that he could bring here
twenty, thirty, forty, persons, wdio"^ would swear that they would not
believe him under oath, that his character for truth and veracity was as
bad as bad could be, that he was an infamous wretch, I told him, as my
elicnt, that I did not think it was necessary to adduce any such testi-
mony. I said that he had impeached himself more thoroughly and
cilcctuall}'- than a hundred witnesses could impeach him.

He had sworn that he had violated his professional oath. He had
s\\ orn that he had violated one of the most sacred obligations which it
i« possible for a man to take upon himself— that of Counsel to client.
He had sworn that his office having been retained in a certain case — his
partner having tried the case on one side — he w^ent into Court on the
•second trial, and took a fee from the other side, and practised upon that
side of the case, against the remonstrance of Mr. Brockway, who was
then against him, but with whom he was formerly associated in the
same case.

' And. upon that occasion, the outrage appeared so gross that his part-
iner, Mr. Adams, got up in Court, and announced to Allan P. Dudley that
ithe firm of Dudley & Adams was dissolved. And Dudley, in his usual
Igassy, laughing manner, said : "Yes; it is dissolved for the purposes of
'this case." One of the witnesses says that Dudley said : " It is dis-
, solved for the time being." Brockway swears that Dudley said : " It is
dissolved for the purposes of this case." Mr. Adams indignantly retort-

588

ed : '• Xo. Sir : our partnership, from this moment, is dissolved, abso
lately, and for all time."

Did Tou think. Senators, that there was any necessity for introdacin^
impeaching testimony against Allan P. Dudley, after that ? At our owi
suggestion we -should not have called any impeaching witnesses. Bu
some of the Senators, knowing that we intended to rely, to a certaii
extent, upon asking the Senate not to believe this class of testimony—
that, from the character of the witnesses, it was not entitled to one iotj
of weight — some of the Senators requested us. in order that the whol
character of the man might be presented, to introduce our impeachin|
witnesses. We called twenty witnesses. They were among the moa
respectable men in Calaveras and Amador Counties. Thoy knew Allaj
P. Dudley well. Every one of these witnesses swore that his reputa
tion for truth and veracity, in that community, was bad. One of them
yes. two of them, wanted to add — and did. before the interruption cam'
— that they knew that his character was very bad. for the further rea
son that he had the reputation of throwing off his clients. That wa
not strictly pertinent to the question as to his reputation for truth an<
veracity, and the Court thonght that we could not go any farther oi
that subject. And one of our witnesses, when Mr. Edgerton undertool
to cross examine him about Dudley's reputation — whether he had not i
partial kind of character as a liar, replied : " Well, he is generally coi
sidered as the best liar in that part of the country."

I asked the witnesses what was his character for truth and veracity
They answered. •• Bad." — firmly and emphatically. 'Bad." That i
enough. If his character for truth and veracity is bad in the neighboi
hood where he lives, he is not to be believed by a Court and jury. Moa
of them, however, answered — not less than fifteen answered — all
asked, answered, I believe, that they would not believe him under oatb

On the cross examination of one of our witnesses, when they came t
cross examine him. they asked him whether or not Dudley was not
man who had a kind of innocent habit of telling stories in political cam
paigns. and about political opponents. Well, he said his reputation wa
worse on that subject than the general subject, if possible.

Every one of their witnesses, called to support him. every one calle*
to sustain him, whom we have asked, has testified substantially in th
language of one who. I think, expressed the essence of their ideas — tha
Dudley has gi)t two characters for truth and veracity ; that, about poll
tics, and in a bar room, no sort of credence is given to what he sayi
That is what their witnesses say. substantially ; I cannot stop to g
through the evidence of all. in detail. But they every one drew tha
distinction, where I cross examined them, so far as my recollection goei
Nobody pretends to deny that he has a practice of telling stories. Bo
some of them say that when you come to business matters, they do nc
know that his reputation for truth is bad; it is only when he is '-gaai
ing, ' only when he is making political speeches, or talking politics, tha
he is not to be believed. It is only when he is talking against som
political opponent, a man of good and fair standing in the communitj
that he departs from truth ; and then he is in the habit of telling mo€
egregious and damnable lies about a respectable man — lies that wi
pass as current stories relating to that man. And yet his character, fo
truth and veracity, in business matters, is pretty good ! pretty good !

We called these witnesses more as matter of form than anything else
more to show how the neighborhood there regarded him. and how li
appears upon the stand here, than because I thought it was necessary.

589

He did the work of impeachment for me. I did not need to impeach
him. I could not inquire into particuhirs. I could not jn-ove by this
witness as to what particular falsehoods he had told them. That is not
admissible on this question. When they talked about his lies only heina-
about politics and bar room subjects!! I asked thorn if that kind o1'
political and bar room lying did not extend to slandering his neio-hbors •
but they would not let me ask that. I asked them whether this pro-
pensity of lying of his did not extend so for that the people of Yalle-
cito ran him out of town for slandering a Avoman most infamously • but
they would not let me ask that. '

_ And this is the man who comes here to testify to private conversa-
tions, and convict Judge Hardy, depose him from the high otRce he
holds, and stamp him with disgrace forever! Place yourselves. Sen-
ators, each of you place yourselves in the position of Judge Hardy here.
Fancy three, or four, or half a dozen, such witnesses as Dudlev, coming

up, each to swear to a separate conversation — private conversation

'wherein you evince your criminality. Why, you all stand in jeopardy
under such a rule — if you are to believe this man after all this evidence.
They say he is a talking man ; talks a great deal ; gasses a great deal •
but in business matters they think he generally tells the truth. Some
'of them would want some confirmation. I asked one of their strou<)-est
witnesses, who testified nearest up to the line of the general character

.of Dudley for truth and veracity — that in all ordinary matters it was
pretty good — I asked him to foncy a case of a question of veracity aris-
ing between Dudley and Mr. Higby, his neighbor there: "Let one state
one side, and the other state the other side, which do you think they

.would believe ? How much weight would they, in such a case of a ques-
tion of veracity between Dudley and a respectable citizen, give Dudley's

^testimony ■'" Well, he said he did not think they would beUeve Dudley
then.

' Did you ever know, Senators, did you ever hear of a man, who is a
politician, a man of the prominence Dudley has managed to give himself

"there, who could not produce some of his neighbors and partisans — some
of his personal hangers-on — to swear that his character was good, as far

.as they knew ? It can always be done.

'' What is the ditTercnce between their testimon}* and ours ?

' Ours is : That the community have pronounced an emphatic ojDinion

'upon Dudley — that his character for truth and veracity is infamous.

j Their testimony is of a negative character. They do not know that

'the community have given him that character, except when he is -'gas-

'sing," talking in bar rooms, making political speeches, or discussing

'politics; and then nobody pretends to believe him.

! Now, will you believe such a man as that ? They say it is all gas — all

'talk; that he is a great talker, tells a great many stories, tells a lie fre-

' quently, to make men laugh. Is that the kind of evidence upon which
men. respectable men, are to be convicted of crimes ? Hear their ajDol-

■ ogy for him : That he is a great talker; talks so much that he cannot

' find truth enough to tell, and has to draw on the field of falsehood. He

I is one of those men Shak.si)eare describes :

I " Ami men are only turned into tongue, and trim ones, too. He is now as valiant as Her-
i cules, that only tells a lie, and swears it."

It seems to have been made for Dudley — " a man turned all to
tongue." jSTow he is " as brave as Hercules," for he " does but tell a lie,
and swear to it."

590

I should be ashamed to spend any move time on Allan P. Dudley.

You have now some idea of tl»e kind of testimony upon which they
seek to convict Judge Hardy. Let me remark, right here, before we go
into the examination of this testimony, one word in relation to the diffi-
culties Judge Hardy labors under here when he comes before you on this,
accusation. I do believe that the enemies of Judge Hardy have been soi
far successful throughout this State, that they had made him before this
trial the most unpopular man in California. I believe that is the condi-
tion in which I found him when I entered upon this case. And he may
thank his God that this prosecution has been instituted, in order that he
can show to this Court, and all the world, precisely what his charaelcT
is, although it exposes some faults, and frailties, and foibles, incident to
human nature — for I do not claim he is perfect; he is far from it. Al-j
though he may not be free from faults, yet from corruption he stands en-|
tirely vindicated. He stands an honorable man before the community ;■
and the community have had an opportunit}' of knowing just how much:
foundation there is for this prejudice that has been excited against him.

He has been exceedingl}' unfortunate. You all know, as a i)art of the
history of the times, one of the causes which has made him so unpopular;
and I do not attribute that to the action of his enemies alone. That was
the accidental effect of fortuitous circumstances, over which he had no con-
trol. He has been linked with a homicide, in public accusation. Every
newspaper throughout the State has published it. It is well known that
Horace Smith took the life of Newell ; and it is equally well known that the
whole press throughout the State connected .Judge Hard}'- with it, charg-
ino- him with having come down here with Smith to aid him in his ven-
gcnce against the slanderer of his wife. .Tudge Hardy was indicted for the
offence of being accessory to that homicide. He was tried in your neigh-
boring county, where people have all the information and all the ru-,
mors of your San Francisco community; tried, and triumphantly acquit- 1
ted. Not upon technical grounds, not upon a legal quibble, not because
the indictment was not well drawn, not because some legal form had not
been complied with. He was acquitted upon the evidence, upon a full in-
vestigation of all the facts which could be brought against him. You
know, as a part of that prosecution, that the theory of the prosecution
was, that he was there to help Horace Smith. He was there prepared to
prove, that instead of coming down to help Horace Smith kill Newell, he
came down to keep Horace Smith from finding him. He came down to
prevent his brother-in-law, Horace Smith, from involving himself in the
consequences which he knew his impetuous nature was well calculated to
bring upon him. He ascertained at what hotel Newell stopped. He
was prepared to prove that he ascertained the hotel at which NcAvell
stopped, and procured an alteration of Newell's name ui)on the register,
so that Smith could not find him. His friend left a message at the hotel,
for Newell to keep out of Smith's way. All this is well known, as part
of the preparation, and what took place on the trial when they came to
make their proofs. No complaint that witnesses were not there. No
complaint that they had not every witness they could get. They went
into their prosecution with full preparation. The witnesses who testified
on the stand that they saw Judge Hardy with Horace Smith on the oc-
casion in question, testified to it without any doubt — Judge Hardy, in
the meantime, sitting on a back seat in the bar. They were called on to
pick Judge Hardy out. " Did you ever see him before V The reply was,
"Never." - Wliich of those men, sitting in that row, is Judge Hardy ?"
" Neither of them." Judge Hardy sitting there in the row, they could

591

not indentify him; one witness admitting on the stand that it was an-
other man he took for Judge Hardy, because somebody said it was Hardy.
Another man lie took for Judge Hardy, because the newspapers said the
next morning that it was Hardy who was with Smith when the homicide
was committed.

That is one of the sources from which has flowed this torrent of pub-
lic indignation, this deep channel of public reprobation upon Judge
Hardy.

I am glad this prosecution has taken place; and, although it has origi-
nated in the worst motives of which human nature is capable, yet the
eifect of it upon the liespondent will be, that while it exposes his foibles
his faults as a man, it shows that he is free from corruption. It shows'
that tiie opprobrium which has been cast upon him, which has laid the
foundation of a great deal of his unpopularity, is unfounded in fact. I
know very avcU that there were many persons, many respectable per-
sons, who, when this statement came out that Judge Hardy was about to
be tried for having aided his brother-in-law to slay the slanderer of his
wife and Judge Hardy's sister, would not. if they could have been called
upon, have raised a hand to punish him for it. I know that they have
that kind of spiiit, as ver}- many individuals of the community have
that thinks a man who ruins the character of an innocent woman, and
boasts his own infamy in connection with it, deserves lo be slaughtered
by her brother or her husband.

But Judge Jlardy was not even guilty of this. I know there is many
a man who takes the thing home to himself. '-Suppose another man,
who has his indignation aroused against my wife or my sister, comes out
and proclaims a vile slander upon her; a slander calculated to exclude
her from society, from all her associations, forever." I know there is
man}' a man who would choke down his religious principles for the time,
and would punish the vile slanderer. I do not plead Judge Hardy's jus-
titication upon any such ground. However great the provocation ; how-
ever great the injury ; however dear is the reputation of a sister or a
wife, I do not plead the justitication ujDon that ground. Dear it certainly
is ; dear it must be ; and he who would not, at a proper time, vindicate
the character of sucli a relation from such aspersions, is unworthy to be
called a man. If, in a projier manner, he did not raise his I'ight hand to
smite the slanderer, his right hand ought forever afterwards to •■ forget
its cunning, and his tongue cleave to the roof of his mouth." [ApjDlause.]

" Good name, in man and woman, dear my lord,
Is the immediate jewel of their souls ;

Who steals my pnr.^e, steals trash : 'tis something, nothing ;
'Twas mine, 'tis his, and has been slave to thousands ;
But he who filches from me my good name,
Robs me of that which not enriches him,
And makes me poor indeed."

I will pass on to the dry and uninteresting discussion of these charges,
and endeavor to answer, so far as they deserve an answer, the comments
of the opening Counsel upon them.

What is the first charge here, Senators, against this man, Judge
Hardy ?

" ARTICLE I.

At the May term, A. D. eighteen hundred and fifty-nine, of the Dis-
trict Court of the Sixteenth Judicial District, in and for the County of

592

Calaveras, the said James H. Hardy, being then and there the District
Judo-e of said District Court, a certain suit was pending and at issue
thei-ein before the said James H. Hard^', District Judge, as aforesaid,
wherein one Gerrish Foster was plaintiff, and one Fritz and others were
defendants — that said cause came on for trial before said Hardy, District
Judd-e, as aforesaid, at Mokelumue Hill, the county seat of said county,
at said May term, viz : on or about the fourteenth day of May, A. D.
eighteen hundred and lifty-nine ; that at the trial of said cause the said
James H. Hardy, District Judge, as aforesaid, unlawfully, corruptly, wil-
fully, fraudulently, and with intent to perpetuate and lengthen litigation
between the parties aforesaid, did deny a certain motion for a nonsuit
then and there made by the Counsel for the defendants in said action."

What did the Eespondent do in that case, and for what motive, for
which they seek to inpeach him ?

He did deny a certain motion for a nonsuit then and there made by
the Counsel for the defendants in said action. On that day and at that
place, Counsel for the defendants made a motion for a nonsuit, and
Judge Hardy did then and there incontiiiciilly deny it — refused to grant
the motion.

What is the motive they furnish for this ?

" With intent to perpetuate and lengthen litigation between the par-
ties."

With intent, first to perpetuate the litigation between the parties ;
and then to lengthen it beyond the bounds of perpetuity !

What motive can a Judge have to '' perpetuate and lengthen " litigu-
tion in his Court ? He docs not receive fees upon every ease that comes
before him. What motive can he have ? Well, Mr. Brockway's testi-
mony is intended to give some point to that. They do not la}' much
stress on this denial of the nonsuit, however. Judge Campbell passes
over it rather lightly.

ARTICLE II.

At the November term, A. D. eighteen hundred and fifty-nine, of the
Court in the last Article mentioned, viz : on or about the twenty-sixth
day of Kovember, A. D. eighteen hundred and fifty-nine, a motion for a
new trial in said case in the first Article mentioned came on for hearing
before the said James H. Hardy, District Judge, as aforesaid, at the Court
House in said County of Calaveras, and the said James H. Hardy, being
and actino- as such District Judge, did then and there, unlawfully, corruptly,
wilfully, fraudulently, and with intent to perpetuate and lengthen litiga-
tion between the parties to said suit, grant to the defendants therein a
new trial of said cause."

Article Second is to be taken together with Additional Article Twenty-
First. Additional Article Twenty-First is intended to cover the same
ground as Article Second, and supersedes it, perhaps.

"article XXI.

593

trict, as aforesaid, he, the said James H. Hardy, while District Judge,
aforesaid, at a term of the District Court, held in and for said C'ahiveras
County, in the month of May, A. D. eigliteen hundred and fifty-nine,
and at other times, as hereinafter set forth, was guilty of unlawful and
wilful misconduct, in his said office committed, as follows, to wit :

First. The said James II. Hardy, at the term of said Court last above
mentioned, to wit : in said County of Calaveras, on or about the four-
teenth da^- of May, A. D. eighteen hundred and hfty-nine, did, as such
Judge, as aforesaid, scandalously exhibit an indecent solicitude for the
interests of the defendants in the suit of Bister vs. Fritz et al., mentioned
in the first Article of this Impeachment, unbecoming and higldy disgrace-
ful to tlie character of a Judge, as it was subversive of justice.

Second. The said James IL Hardy, at the term of said Court, and on
the day and 3'oar aforesaid, in said County of Calaveras, did, indecently
and scandalously, and of liis own motion, advise one S. AV. Brockway,
then and there an Attorney of said Court, and of Counsel for defendant
in said last mentioned suit, to file a statement for a new trial in said
cause, (judgment having previously, at said term, been rendered against
the defendants therein,) and did then and there, prior to the filing of such
statement, and in advance of the hearing of said motion, promise said
Brockway that he would grant a new trial in said cause.

Third. That subsequently, at the term of said Court, held in and for
Baid County of Calaveras, in the month of November, A. D. eighteen
hundred and fifty-nine, the said James II. Hardy, District Judge, as
aforesaid, a motion for a new trial having been made and a statement
filed in said last mentioned cause, did. scandalously and indecently, confi-
dentially, privately, and aside, advise and direct one Allan P. Dudley,
then and there an Attorne}' of said Court, and of Counsel for the plaintiff
in said cause, not to file a brief on said motion for a new trial, and that
he was going to decide said motion in his (the said Dudley 's) favor, in
consequence of Avhich, said Dudley omitted to file said brief and to argue
said motion, and did, then and there, at said term of said Court, decide
said motion for a new trial in favor of the defendants in said cause, and
against said Dudley, granting, by his said decision, a new trial in said
cause ; all of which the said Hardy, then and there, did, wilfully and un-
lawfull}', and with the intent to deceive and mislead the said A. P. Dud-
ley, Counsel, as aforesaid.

Fourth. That the said James H. Hardy, while District Judge, as
aforesaid, has indecently and scandalousl}^, and with corrupt intent, here-
tofore, to Avit : in said Calaveras County, on or about the fourteenth day
of Ma}^ A. D. eighteen hundred and fifty-nine, and at other times, while
such District Judge, told and advised the said A. P. Dudley, and the said
S. W. Brockway, and one William L. Dudley, practising Attorneys before
said Court, that whenever he had any discretion to use, as such Judge, he
should use such discretion for his friends.

Fifth. That, at the February term of said Court, held in and for the
County of Calaveras, aforesaid, A. D. eighteen hundred and sixtj^-two,
the said James H. Hardy, being then and there District Judge of said
District, and presiding at said" term of said Court, did, indecently and
scandalously, and out of wilful and unlawful favoritism and partiality for
the plaintiffs in a certain cause then and there pending in said Court,
wherein one E. Mercier and another were plaintiffs, and one W. C.
Denny and others were defendants, unlawfully urge and solicit one Wil-
liam L. Dudley, then and there a practising Attorney in said Court, and
engaged as Counsel in other causes then and thei-e pending, to expend
75

594

and consume .as much time as possible in the trial of such causes, in
order, unlawful!}', wrongfully, and fraudulently, to effect the continuance
of said cause, E" Mercier et al. vs. W. C. Denny et al., until the then next
term of said Court, it being important to the interests of the said E.
Mercier et al., plaintiffs in said cause, that the same should be continued
until the said next term of said Court, and they liaving no sufficient or
legal ground for such continuance ; all Avhich the said James H. Hardy
then and there well knew, and all of which he then and there did, for the
unlaAvfal and corrupt purpose of subserving the private interests of said
E. Mercier et al., to the great wrong and injury of the public welfare,
and to the great oppression of the defendants in said cause; all of which
is to the great scandal and disgrace of the dignity and purity of said
office, of great detriment to the jjublic good, and of corrupt and evil
example."

What is the evidence to sustain that? Mr. "Rrockway's testimony of a
private conversation between him and Judge Hardy, where Judge Hardy
says that Lightncr is his friend, one of his best and most intimate friends.
Stopping there, it might very well have raised a suspicion, perhaps — be-
ing his intimate friend, knowing his interest was delay — that Judge
Hardy was corrupt, in refusing that nonsuit and carrying the case along
to farther litigation. But Mr. liightner swears he never liad five minutes
conversation with Judge Hardy in his life; that he has two ])artner8, and
he knows they are unacquainted with Judge Hardy. That disposes, I
take it. of all the motive of Judge Hardy in "favoring the defendant^,
manifesting an indecent solicitude for the intei'cst of the defendants."

But is not that a strange way to manifest his solicitude? Is not it
most extraordinary? Why, Brockway says, " I went to Judge Hai"dy
and eom])laincd to him, ' You ought to have nonsuited the plaintiffs.'"
Why ? Why, because their complaint was not drawn right. Brockway
tells you that it was a complaint for money had and received, and that
under tliat, no evidence could be had of promissory notes — a legal ques-
tion, about which Counsel differ. This immaculate man, Dudley, testi-
fies on the stand, that he produced authorities to show that he Avas right;
that a nonsuit ought not to have been granted. And he produced some
Massachusetts Reports in support of his position. J think Judge Hardy
was wrong. I think our system of pleading requires the notes them-
selves to be set out. But there were the authorities; and, on the spur
of an off hand, nisi ]»• ins decision, Judge Hard}- decided the question and
refused the nonsuit. He thought that the complaint was sufficient. To
what conclusion would Judge Hardy ordinarily arrive, when he came to
reflect on the case a little, and look into it a little, turning to the Code of
Practice, for instance, before he left the bench ? Suppose that he was
wrong. What ought a Judge to do, when satisfied he was wrong ? Do
as old Chancellor Kent always did — take the first opportunity to take
back his decision. When, on a certain occasion, a lawyer, in the course
of his argument before him — Kent being then Chief Justice — proceeded
to justify and uphold his side of the case by stating that Chancellor Kent
had decided so and so, the old man said. '• Well, give my compliments to
Chancellor Kent, and tell him that Chief Justice Kent thinks his decision
was wrong." In that great Livingstone case, involving a monopoly of
the waters of New York Bay, and all the rivers, for the Fulton Steam-
boat Company, Chancellor Kent drew up a very elaborate opinion — and
always insisted that he was right. The case was taken up to the Supreme
Court of the United States, to be argued there. He always insisted that

595

they could not disturb that decision. " They can't get rid of it. They
will never reverse it." He sat there and listened to the argument; heard
the ablest lawyers in tlie United States upon it. lie said, "It cannot be
reversed." He came into Court three days afterwards, when Chief Jus-
tice Marshall delivered his opinion, reversing Kent's decision. The old
man turned around to a friend, and said, "//e h right, and I was wrong."

That is the dut}' of a Judge. And yet that is what they complain of
here.

Brockway says, that after this decision of Judge Hardy, refusing to
nonsuit the plaintiff, Judge Hardy came to him and told him he could
get a new trial upon that ground ; told him to make his motion for a
new trial.

Is there any impropriety in that? Fanc}' yourself on the bench.
You have made an error, an error that strikes to the bottom of the whole
case. You are satisfied, on reflection and turning to the law, that you
are wrong. You come down from the bench, and, in the presence of the
other party, perhaps, say : "I am satisfied that I have made a mistake
here, and 1 wish you would move for a new trial and let me correct it."
What did Judge Hanly say to Brockway? "Make your motion for a
new trial, and 30U will get it." And now they come here and charge
\\'\\n with corruption, for saying that they would get a new trial if they
moved for it. "It is not necessary to argue it. I have satisfied myself
upon it." And this is corruption !

" Oh !" they say, " but Dudley says he told him so, on the other side."
Dudley says, that in a private conversation with him, he (Judge Hard}-)
said : " On tlie motion for a new trial, you need not argue ; you need not
tile any brief" Dudley tells you that he has been in the habit of " blow-
ing" with the Court whenever he was permitted to do so. Judge Hardy
knew it. Y^ou have seen these Dudleys on the stand, and you know just
what kind of vermin they would be upon a Judge who presides over
their bar; men who rely, in their practice, upon influencing somebody —
influencing a Court, or bribing a jury. That is part of the legitimate
practice of that class of Calaveras lawyers. I am thankful and happy
to find that there are those who do not belong to that class.

Dudley goes to Judge Hardy, and talks about it; and he probably
tells him, "Now, I want you to decide this for me. l^on have decided
it, and you must sustain your decision; and I do not think I need argue
it." "No," sa3'S the Judge; "you need not argue it. You need not file
a brief, or argue the case." That, Dudley swears. Dudley, finding
Brockway was going to swear that Judge Hardy had, after he discov-
ered his mistake in deciding that question, proposed that there should
be a motion for a new trial, to enable him to correct that mistake,
thought that he would have something to say about it, too. He comes
in, and because Brockway's testimony looks pretty good against Judge
Hard}', he is going to swear : " AYell, he told me the same thing."

Well, maybe he did. He ought to. For, when such men come around
him, importuning him for decisions, and endeavoring to influence him
when off the bench, I say he has a perfect right to fool them if he could.
Dudley thought that he could influence Judge Hardy. He thought he
could sway him by talking to him; went to him for that purpose, and
importuned him to decide in his favor — and Judge Hardy fooled him.
For one. I think he served him right. He ought to do it in the case of
all such law^-ers.

But the difficulty about it is, that it is an entire fabrication. Nothing
of the kind ever happened. I have a right to say so, from the evidence ;

596

because nobody but that man Dudley swears to any such thing, and he
swears to it in a private conversation, where he cannot be contradicted.
And upon his testimony you cannot convict anybody. You could not
hang a dog for killing a sheep, upon his deposition.
•So much for the new trial.

All there is. then, in this case of Foster r*\ Fritz, is in these three
Articles. First — ^Judge Hardy refused a nonsuit. All that can be said
about that is. that he erred in Judgment. Second — He told Brockway
to make a motion for a new trial. He had discovered his error, and
wanted it corrected. Third — They say. on the evidence of this beautiful
witness. Dudley, that he told Dudley he need not file any brief. Xow.
did Dudley tell the truth in that ? I say he lied, judging from the evi-
dence, aside from his being so thoroughly impeached ; and I say so from
the record that Mr. Genung read to you here.

You will bear in mind that the evidence of Brockway and Dudley is.
that Brockway says, when the motion came up, *• I am not going to
argue it." The Counsel on the other side says. •/ shall argue it."
Brockway says. • I will not answer you. if you do." ■ Well, then I will
not argue it." Dudley was going to argue it, notwithstanding what
Judge Hardy had said. Brockway would not argue it. Knowing the
Judge was convinced he had committed an error, and that he was going
to grant a new trial, he would not argue it. Dudley says he relied upon
the assurance of Judge Hardy that he need not file any brief, and need not
argue it. and therefore he did not. Broekways testimony shows that
Dudley, or his partner — I do not know which — insisted on arguing it.
Does that show that he relied upon Judge Hardy's statement?

What does the reconi show?

Beyond that, the record shows: that on such a day, such Counsel ap
peariui; in this cause for plaintiff and defendant, -motion for a new trial
was submitted upon briefs, to be filed this week."

Does that look as if they relied upon Judge Hardy's assurance that
they need not file any briefs ? Dudley says judge Hardy told him he
need not file any brief, or argue it ; that he was not going to argue it,
and did not argue it. for that reason. Yet he. or his partner, were
there, pressing an argument. Finally, it was agreed that they should
file briefs within a week. But he says — and you may remember the
manner in whivh he testifies that — that there are no briets on file.

There are a gofxl many papers. Senator's, not on file, in cases where
these Dudleys were engineering.

Do you remember the charge they pressed so hard here — of Judge
Hardy having appointed an incompetent Receiver? A charge the}' after-
wards withdrew'

Do you remember how it came out in evidence that the Dudleys were
sureties on that Receiver's bond, and that the Receiver turned out to be
a detaulter to a large amount ?

Do you remember the testimony of Mr. Genung — that that bond had
been stolen from the files?

Do you remember Mr. Genung's further statement — that the Attor-
neys were in the habit of taking papei*s off the files and taking them tc
their offices ?

Who stole that bond from the files ? Who had any interest in steal-j
iug that bond from the files ?

Tlie Receiver for whom it was given had become a defaulter. Thij
sureties on that bond were liable for a large sum of money. These Dndj
leys were the sureties, and were themselves liable.

S97

T!te bond disappeai^. aw^ eaww^t be fbmid, and has nerer been, to this

lay. Who had an in ' -tbond?

One step farther — V , -. bond?

-ui it' these brie& were liied and upon the tile, what has become of

^ here and swear ther did not intend to file any brie^

- - -i .--^ .J - ._.' j.L*rdy had assured them they need not : and if the brielB
•vere here, staring them in the face, they could not very well swear to

vill not waste any more time upon that.

"ARTICLE m.

• '". or aborrt the 5rst dav of April, eighteen hundred and fifty-nine, a

i the State of California, on the rela-

: --.-.-: --:e State, were plaintitfs, and one Hill

Sf«ires - -. was pending in the District Court of said Stx-

teemih Ju L.. ... .. .-:.\ct. in and for the County of Calaveras atbresaid,

before the said James H. Haniy, District Judge — at which time, in the
Court House, in the ♦' - " ■" Calaveras, said cause came up for hear-
iBsr and trial before s; •-. as such Judge, and in which cause, after

t* ' : -aid James H. Hardy, as such Judge,

i :: the tirst day of June. A.D. eighteen

haadriLxi - ,. did. unlawfully, wilfully, corruptly, and traudu-

Icntly, rv _ it in favor oi said Hill Squires, the defendant in

said eaose.

Here the dev'ision was made in the spring. " for the corrupt and un-
lawful purpose oi securing his election^ the next fall;" and he had not
been in otnv.e three months.

What is the evidence upon this point ?

That of Allan P. Dudley. Allan P. Dudley is the witness, and the
only witness.

What does be swear to ?

He swears " r Judge Hardy had deiideii. and written an opin-

kyn. in favor -at. he prt>poseii to Judge Hanly to show him how,

'I .ise. he could change his opinion to one against Dud-

Ir ~ : ; - I ..: Judge Hardly did so.

5»ow, was Jud;^ Hardy's opinion right, or wrong? First, he was
»<-»in.j- -.. deoide for Mulfo rd — against what Dudley says is the popular
? -^ question- Dudley proposed to him to decide against Mulford.

I/v^-^.v. . .- client- Judge Hardy did so decide. The case went to the Su-
preme Court. It was" a case submitted to Judge Hardy, solely upon a
written statement of facts agreed upon. Xo outside influence here, to
be sworn to. It came before Judge Hardy, and Judge Hardy decided
that Hiil Squires was entitled to the office ; and they say that that
deeidcm was not only erroneous, but wilful, and from a corrupt motive,
Tliat ease went to the Supreme Court, upon that same written statement
of fiK'te agreed upon. The Supreme Court affirmed that decision, and
declared the law to be just what Judge Hardy decided. And they come
here to impeach him for that !

Judge Hardy decided the ease right, as the Supreme Court say. Dud-
lev says Judo^e Hardy had made up his mind to decide it wrong : that is,
the Supreme Court's opinion says the decision would have been wrong-
Dudley says he had made up his mind to decide it wrong — to decide it in

598

favor of Mulford — to decide it on the unpopular side, because the author-
ities cited compelled him to. And Dudley showed him how he could
legally change his decision; and if he did show him, showed him cor-
rectly, for the Supreme Court sustained him.

It would not he proper for me to argue this much more. A corrupt
decision, when the Supreme Court say that that decision is right !

"ARTICLE IV.

That, at the February term, A. D. eighteen hundred and sixty-two, of
the District Court of the Sixteenth Judicial District, in and for the
County of Calaveras, a certain suit was pending and at issue in said
Court, before the said James H. JIardy, District Judge, as aforesaid,
wherein one E. Mercier and another, were plaintiffs, and AV. C. Denny
and others, were defendants; that it was important for the interests of
the plaintiff's therein that said cause should not be tried at said Feb-
ruary term, but should be continued to the next term of said Court, and
the said James H. Hardy, being then and there such District Judge, and
well knowing the premises, on the twenty-fifth day of February, eight-
een hundred and sixty-two, as 3-ot of said Februaiy term, wilfully, un-
lawfully, corruptly, and in violation of his official duty, and for the pur-
pose of effecting such continuance, and favoring, and benefiting the
plaintiffs in said action, at Mokehimne Hill, in said Count}' of Calaveras,
solicited and urged one "William L. Dudley, who was then engaged as
Counsel in another case on trial before said Hardy, to consume as much
time as possible in such trial, and in the trial of other cases in which
said Dudley was engaged in said Court, so as to prevent the trial of said
suit of E. Mercier and another, against W. C. Denny and others, at said
last mentioned term."

They elaborate that in Article Eighteen.

"ARTICLE XVIII.

That, at the August term, A. D. eighteen hundred and sixty-one, of the
District Court of the said Sixteenth Judicial District, in and for the County
of Calaveras, a certain cause was pending and at issue in said Court, the
said James II. Hardy being then and there Judge, as aforesaid, between
one E. Mercier and another, plaintiffs, and W. C. Denny and others,
defendants; and that on the fifteenth day of said August a motion was
there made by the plaintiffs in said action to change the place of trial of
said case to some other county in said State of California, which said
motion was made at the Court House, in said County of Calaveras, where
ihe term of said Court was being held by the said James H.Hardy,
District Judge, as aforesaid, and that the said James H. Hardy, then and
there, wilfully, unlawfully, and corruptly, refused to decide, and ab-
stained from deciding, the said motion, for the unlawful and corrupt pur-
pose of influencing and securing the votes of certain naturalized citizens
residing in Calaveras County, and certain voters therein residing, at the
then next ensuing general election to be held in this State, to the sup-
port of the candidates of a certain political party commonly known as
the Breckinridge party, of which party the said James H. Hardy was
then and there a member "

A motion to change the place of trial was made by Denny, the de-

599

fendant in that cause — Mercier being plaintiff — and the ,Tud<jje.i'c fuses to
decide it at the same term, and did not decide it until the next term;
for the i)urpose of favorini); the plaintiff, it is said.

The Counsel (High}') told you, in his ojjening speech here, that there
would be evidence to show that Judge llardy was on such terms with
Mercier as to fasten upon him (Judge Hardy) the charge of ])artiality to
him. Have they proved it? One expression of Mr. Higby's I remem-
ber very well. He says : " I do not know whether Judge Hardy lived
on Mercier, or how that was." Is there one word of evidence to sustain
that insinuation ? Not a syllable.

The Article says this action of Judge Hardy was for the unlawful and
corrupt purpose of securing the votes of naturalized citizens, etc.
Whose testimony sustains that? Dudley's. Judge Hardy said he Avas
not going to decide the motion that term — it was the August term, and
the election was going to come on in September — because it would be
unpopular with the French voters, and the Breckinridge party would
lose votes. That is the testimony of Allan P. Dudley alone; and that is
argument enough iipon this subject — as he has shown himself here.
Judge Hardy did decide it at the next term; denied the motion, and the
cause proceeded.

The Counsel (Campbell) opening the argument for the Prosecution,
complainetl that the Kespondent did not decide the motion until the end
of the next term. It is in evidence that at that next term — the Novem-
ber term — Judge Hardy was down here in attendance on this famous
trial (The People y.s. James H. Hardy) in Alameda County; and the
Counsel admitted here tluit that was the fact, when that evidence was
being put in. The records of the Court show that Judge Hardy did not
hold Court, at that November term, but one week, and that was the last
Aveek ; and he could not, therefore, decide this motion in the case of
Mercier vs. Denny until that last week.

The motion was made in the August term; and it is made the subject
of a charge that he did not decide it at that term. How many cases,
Senators, do you suppose Judges hold over from term to term to decide ?
Go and ask Judge Campbell, Judge Keynolds, or Judge- Norton — though
the latter is not^ now on the bench ; all men of great industry ; all men
of undoubted integrity. Go and look at their calendars, and see_ how
many of their cases go over from term to term ! As to the motive of
Judge Hardy in doing it, you have Allan P. Dudley's testimony, and
nothing else; and that testimony, too, is of another j^rivate conversation.

Now, there is something to be done before a Jmlge can decide a motion
of this kind. As this charge stands now, with the evidence given upon
it, 7l is a frivolous charge. The charge itself and the evidence establish
that position for it. It is a frivolous charge.

Then it is charged, in this same case of Mercier vs. Denny, that the
Kespondent continued the cause ten days at the last February term,
fraudulently, corruptly, and with intent to favor Mercier and injure
Denny.

The onl}^ argument I will make to you, Senators, against this charge,
is a reference to Tod Eobinson's testimony. Tod Ptobinson says ho
went there prepared to try that cause. The pleadings were drawn, and
he goes to the place of trial. The evening before the trial was coming
on, in looking over the pleadings he discovered that the replication was
insufficient. The defence had pleaded a matter in the answer which was
not sufficiently denied' in the replication ; had pleaded a former suit in-
volving the same questions. And Tod Kobinson says — he has been on

600

the stand here himself — that the denial in the replication \ras inartisti-
callv drawn ; that the denial of that former suit was not sufficient ; and
he did not dare to go to trial with the pleadings in that condition. His
client was there, pressing him to go on. blaming them for not going on.
Tod Eobinson came into Court the next morning, made a motion for
leave to amend that replication, so as to go on with the trial of the
cause on the merits. Judge Hardy refused it to him, because he did not
produce an affidavit showing its necessity ; and because required by
statute or rule to give notice of a motion, and there was not time t
give it. The case was set for that day. and was to be the first can-
called up after these preliminary proceedings. Now there was a rule in
Judge Hardy's Court, that after a case was called for trial no amend-
ment to the pleadings would be allowed. It was a rule Judge Hardy
could not depart from, if he desired to. But he did not desire'to do so.
He desired to keep himself within the rule. But he saw that by reason
of a replication not being artistically drawn, the plaintiff was to lose his
whole ease ; and these men. who thought they had got the opposite side
into that trap, complain of corruption on the part of Judge Hardy, be-
cause he postponed that cause ten da3'S to give them time to make their
affidavits and come in with this motion and have it decided before the
case was called for trial I

Xow, the statement of that is enough for lawyers; and I think it is
enough for laymen. Why. they thought they had caught the other
party in the door; that they had got them in a trap. The plaintiff
could not be permitted to prove anything, because of the replication.
On the pleadings. Judge Robinson says, there must be judgment against
his client. "Now. shall we be permitted to amend?" he asks of Judge
Hardy.

Why. may it please the Court. I could cover this table over with
authorities showing the greatest liberality in allowing amendments.
It is not three weeks since the Judge of the Fourth District Court, in
this city, right in the middle of a trial, put a stop to the proceedings,
because it was discovered that the answer of the defendant did not deny
some material allegation of the complaint ; that the denial had been
accidentally omitted. There must be notice of a motion ; there must be
an affidavit showing necessity for amendment. The Counsel Avho drew
the pleadings, or who was for the defence, asked leave to amend on the
spot. That was opposed. Judge Reynolds says to the plaintiff's Coun-
sel, '• If you consent to the amendment, we will go on with this case.
If you will not permit it to be made now. I shall Avithdraw a juror, stop
this trial here, give the defendant time to make his motion regularly,
and he can bring it on at the next term. I shall make the plaintiff pay
the costs, if the case goes over." That is what all Judges do. But
here, because Judge Hardy did not lend himself to spring this trap upon
Counsel and parties litigant, whereby a judgment would have been taken
without a trial, and against the facts, they say he is corrupt, and come
and ask this Court to impeach him I

That is all I have to say on that point.

Article Five is superseded by Article Seventeen. The Articles read as
follows :

"ARTICLE V.

At the February term. A. D. eighteen hundred and sixty-two, of the
District Court of the said Sixteenth Judicial District, in and for the

601

County of Calaveras, a certain case was pending and at issue in said
Court, the said James 11. JIardy being then anil there Judge thereof,
as aforesaid, between J. R. Jiobinson and others, pUiintifts, and one George
Leger and an(jther, defendants, and the said .lunies 11. Hardy, acting as
such Judge, then and there did, nnhiwfully, wilfully, and corruptly, con-
tinue and cause to be continued, the said case to the next term of said
Court, with intent to hinder, delay, and defraud, the plaintiffs in said
suit.

ARTICLE XVII.

At the February term, A. D. eighteen hundred and sixty-two, of the
District Court of the said Sixteenth Judicial District, in and for the
County of Calaveras, a certain case was ])onding and at issue in said
Court, the said James H. Hardy being then and there the Judge thereof,
as aforesaid, between J. R. llobinson and others, plaintiffs, and one
George Leger and another, defendants, and the said James H. Hardy,
acting as such Judge, then and there did, unlawfully, wilfully, and cor-
ruptly, continue, and cause to be continued, the said case to the next
term of said ( -ourt, then and there well knowing that there was no legal
or sufficient cause for such continuance, with intent to hinder, delay, and
defraud the plaintiffs, and out of favor and partiality to the defendants
in said suit."

How was that case continued ? Hero Mr. Allan P. Dudley figures
again ; and here, they say, they have got Judge Hardy on a question of
motive. Judge Hardy wanted that case continued, they say ; and they
charge, that out of favor and partiality to the defendants, Leger and
Others, he wanted it continued.

What is the evidence ? I cite you to the testimony of Mr. J. R. Robin-
son, the plaintiff, himself. I will simply remind you of what the testi-
mony is, and leave it for Senators to read at their leisure.

What are the facts ? Judge Hardy did want that cause continued.
Why ? He did not want to try it. The testimony all shows that he did
not want to tr}- it. Why did not he want to try it '( Well, he did not
choose to disclose why he did not want to try it. He told both parties
"that he did not want to; he besought the plaintiffs' Counsel and the de-
fendants' Counsel, both, to continue that cause to the next term. Was
that out of favor to the one or the other 'r'

Mercier vs. Denny. •

Mercier is a Frenchman ; has a fine garden, they say. Mercier had
brought a suit once against llobinson and others, miners, for digging up
his garden. The suit was to restrain the miners from digging up his
garden ; he had got an injunction and given a bond. Leger was surety
on the bond. Robinson, and others, had sued him upon that injunction
bond, he having been beaten in his suit against them, and the injunction
dissolved. Mercier Avas Leger in the suit, because Leger was only his
surety. So those two cases group themselves together as Judge Camp-
bell groups them. Mercier vs. Denny is another case ; but Mercier is de-
fendant in the case of Robinson vs. Leger, because Leger is only his
surety, and Mercier has to back up Leger.

Mercier is a party in both. Now, what does the defendant, Denny,
say aboiit this case ?

Brockway undertakes to tell you what took place. He has told you
of private conversations with Judge Hardy ; told you that he told Denny
70

602

what Judge Hardy said ; stated that he endeavored to get his own client,
Denny, to consent to this postponement. Both parties were anxious to
try the cause; neither part}' would consent to continue. Judge Hardy
manifested a great reluctance to tr}' it. Mr. Denny pressed him, when
Judge Hard}' put it to Mr. Denny himself, saying he thought he could
persuade Mr. George, or Brockway, whichever it was, to consent to it,
on his side, and asking Mr. Denn}^ to also consent to a continuance of
the cause. Denny asked him why. He said facts had come to his knowl-
edge, Avithin five or six days, which made him indisposed to try that
cause; that he did not want to try it at all ; that he wished it put off to
another term. Because, as he told Denny, there were facts which ren-
dered him an improper Judge to try that cause. Denny asks him what
they are. '• Well. I won't tell you now. I will tell you after the cause
is decided." Judge Hardy replies. " But why put it over another term,
and try it then ?" Denny asks. " I will get Judge Creanor to come here,
and tr}^ the cause then. If the case goes over this term, at the com-
mencement of the next term 1 will have Judge Creanor here to try it.
/do not want to try it," is the answer. '• Why not ? I would, if I were
a Judge," says Denny. " If you were a Judge, and had ascertained to
your knowledge that one of the parties in a cause was a rascal, do you
think that you would sit impartially on the trial ?" inquires Judge Hardy.
" Well, do you mean me or my C'ounsel V says Denny. " No, not at all."
replies Judge Hardy. " AVell. then, I suppose you mean that one of the
parties on tlie other side — you mean Mercier, I suppose — has offered you
a bribe; and you do not, therefore, want to try the case?" said Denny.
The Judge shrugged his shouklers, and told him he would not give him
any further (.'X])laiuition until after that trial was over.

Now, a shrug of the shoulders and silence is as good an expression of
a fact as words. Judge Hardy would not be very likely to desire to try
a cause for lyiercier— either of these causes in which Mercier was princi-
pal or a party — if Mercier had approached him and offered him six hun-
dred dollars, or any other sum, to decide the case in his favor.

But why not proclaim it? says Counsel. Says Judge Campbell, Why
did not he proclaim it, and present Mercier to the grand jury, and make
a splurge over it ? Well, gentlemen, a Judge does not feel much in-
clined, ordinarily, to do such a thing as that; to open up such a thing as
that. He probably explained to Mercier the impropriety of approaching
him in that way. At an}- rate, he would not try his cause, and made up
his mind that he would not, come what would. And he so intimated to
Counsel on both sides. He avouIc^ not try either of the cases in which
Mercier was party — Mercier vs. Denny, and Eobinson vs. Leger ; Leger
being but a surety, and Mercier the party in interest. But, say they, he
ought to have had him indicted. Do notj'ou know that in the early his-
tory of this State, there wei'C a gi'cat many cases of that kind, where
tb'^y did not get them indicted? Do not you know that a great many
charges of that kind have been made, by the Justices of the Supreme
Court, against many in high places ; and because they do not choose to
present the case for indictment, and make a stir over it, and show how
pure they are, how far beyond the reach of prejudice or bribery — be-
cause they do not choose to make that exhibition of themselves, are
they to be charged with corruption ?

That is the whole secret of that charge of desire to put those two
cases — the Leger case and the Mercier case — over the term, and it is all
there is of it; and. when you look at the evidence, you will see that is
all that it means.

603

Now comes the case of JVIcDermott vs. Higby.

The Counsel (Mr. Campbell) tacked ancf tilled on this case. He de-
clined to avii'iie it, and yet he did not withdraw it. He declined to argue
it, because Mr. Higby, the defendant in that cause, is Counsel in this
case. Well, /suppose he declined to argue it, because he thought that
wouhl cut oft' our argument on the conduct of Mr. Higby on that trial,
as connected with tlie origin of this prosecution. Judge Campbell did
not withdraw it. Senator Crane proposed to him to argue it; he would
not argue it, but passed it.

The conduct of Mr. Higby in that trial is material under another
charge. There is a charge against Judge Hardy for having been drunk
upon the bench on that occasion. The conduct of Mr. Higby on that
occasion was without a single precedent in the judicial history of the
whole of these United States. Judge Hardy had ruled some questions of
evidence against him — Judge Hardy had decided a plea in abatement
against him. He pleaded, in abatement, that there was a former suit
between the same parties pending. That former suit had been dismissed
by the District Court; so that unless it was in the Supreme Court,
there was no suit pending. Mr. Higby's Counsel claimed that the case
was in the Supreme Court, and that, therefore, it was pending, and the
plea was true. The facts, sworn to by witnesses and agreed to by the
parties, are — and there was an agreed statement to that effect, on sub-
mitting the plea in abatement to the Judge — that after the judgment of
dismissal, the plaintiff undertook to appeal from that judgment of dis-
missal, and gave notice of appeal, but did not file any ap2)eal bond.
They were compelled to file that within five days, and could not file it
afterwards. Nineteen days had passed Avhen that plea was put in, and
they had not filed their appeal bond. The case had been dismissed from
Judge Hardy's Court; there was no appeal pending to keep it alive, and
the case was dead. 1 read i'rom the Practice Act :

"To render an appeal elFectual for any purpose, in any case, a written
undertaking shall be executed on the part of the appellant, by at least
two sureties, to the eftect that the appellant will pay all damages and
costs which may be awarded against him on the appeal, not exceeding
three hundred dollars ; or that sum shall be deposited with the Clerk
with whom the judgment or order was entered, to abide the event of the
appeal. Such undertaking shall be filed, or such deposit made, with the
Clerk within five days after the notice of appeal is filed."

To render an appeal efiectual for any pui-pose, that bond must be filed
■within five days after notice of appeal. Judge Hardy's Court had dis-
missed the case. They had attempted to appeal, so as to keep it alive ;
they had given notice of appeal, but had not within five clays filed
the bond. Nineteen days had passed, and the statute says it shall not
be an efteetual appeal for any purpose. Judge Hardy decided that
that plea in abatement was not true ; that that case was not pending
in the Supreme Court. Did not he decide rightly and correctly ? No
bond had been filed ; and the statute says that to make an appeal eifectual
for any purpose, a bond shall be filed within five days. It was submitted
to the Judge, on that plea in abatement, that that suit was pending in
the Supreme Court. The Judge held that plea was not true; that the
cause was not pending in the Supreme Court. If under that statute he
had made such an extraordinary decision as sustaining that plea in abate-

604

raent, they might with some plausibility have accused him of some wroiiic
motive.

This is material in another respect. Another of these Articles charges
the Respondent with deciding that plea in abatement against ^Ir. Higby.
in order to drive Mr. Higby to trial on the merits, and thereby to crowd
out one of those Mercier cases that he (Judge Hardy) wanted to put
over the term. This is the charge, and the thing charged. Judge
Hardy decided rightly. Did he do it with a corrupt motive ? He could
not have decided any other wa}' ; but Mr. Higby's Counsel was angry,
and I supi)Oso Mr. Higby was angry himself

The case then went to trial. On offering their evidence some questions
arose. Judge Hardy had the firmness to decide some questions of evi-
dence against Mr. High}'. William L. Dudley, his Counsel, became
enraged ; charged the Judge with improper conduct, because he decided
questions against him — Calaveras fashion. Mr. High}' M'as angry, too.
And on the second morning. Mr. Higby comes in with that extraordinary
affidavit. He goes in there and appeals from the Judge to the jury. In
the presence of and in contempt of the Judge, he appeals to the jury
upon questions of law ; swears that the rulings of the Court against him
are not correct — t])at he cannot have any fair trial from the Judge — that
his only ho]>e is with the jury to save him from the Judge. He presents
that affidavit, and has it reatl in open Court in the face of Judge Hardy.

Now, right in this connection. 1 am going to dis])atch the question of'
Judge Hardy being drunk on the bench on that evening. It is the only
charge of the kind made, of which there is any proof, except that
Charles P. Dudlcj' and somebodj^ else say, that at chambers, in deciding
some chamber motion, he appeared to be under the influence of liquor;
but there is not evidence enough to induce me to talk about it.

But they charge, and charge seriously, that on the evening of that last
day of the trial of the McDermott v.<. Higby case. Judge Hardy was in-
toxicated on the bench. That affidavit of Mr. Higby came in about
eleven o'clock in the forenoon. There was a recess for an hour, or an
hour and a quarter, for some purpose, to accommodate Counsel. Judge
Hardy went out. Irvine was with him from that time until he came
into Court again ; and Irvine knows that Judge Hardy did not drink on
that occasion — knows that he refused to drink, except that, once or
twice, he did drink soda '• pop." When he was invited to drink, he 8ai<l.
" Don't ask me to drink." He said he was deeply, strongly moved, by
this insult he had received on the bench. He seemed agitated. There
had a gloom settled upon him, a deep depression ; he would not drink.
Well, they went back to the trial, and worked away at it until dinner
time. They adjourned for dinner. During that adjournment, one
of the witnesses (W. L. Dudley) for the Prosecution swears he saw
Judge. Hardy drink. The barkeeper swears that he drank nothing but
"pop" there on that day. Their witness swears he drank claret at din-
ner. One witness thought it was after the final adjournment, but that
was wrong ; it was during that recess, at dinner. He did drink a little
claret wine. Mr. Irvine was with him, and had him under his eyes
almost constantly every moment he was off the bench and out of Court
on that day. and knows that on that occasion he did not drink at all,
except to this limited extent which I have mentioned.

But they say they have the evidence of it on the bench. He came
into the Court room at seven o'clock ; and the argument of the evening
was gone into. Part of the argument on Saturday evening — this is Sat-
urday I have been speaking of — was closed before dinner. They went

605

out to dinner, and then this claret wine was drank, and then the Judge
came back on the bench, and heard one or two arguments — no matter
which — arguments that lasted until ten or eleven o'clock at night, any-
how. Then Judge Hardy wrote out his charge. He had previously
written special issues, to be submitted to the jury ; at one of the recesses
he had dictated them to Counsel, who wrote at his dictation. He was
there on the bench, having, as Irvine described to you, been remarkably
abstemious, but under that deep depression, that crushing sadness, which
came over lum, arising from this most extraordinary insult he had
received. Knowing that war was opened against him, knowing that
they had dechired hostilities against him, and were baund to ruin him if
they could, he came back upon the bench, and did everything he did
with the utmost deliberation. At the close of the argument, he drew
up the charge to the jury, and read it to them ; read the special instruc-
tions that Counsel on both sides had asked ; read the special issues they
were to find upon; and the jury went out.

Isow then, five of those jurors, tlie Counsel says, swear that they
thought Judge Hard}' under the influence of liquor. Why did they
think 80 ? They saw something peculiar in his manner of speak-
ing; something in his utterance. One of them tliought it was thickness
of tongue. One of these Dudleys led off with the thick-tongue theory
— a man so drunk himself that 3-ou could not tell whether his tongue
liung in the middle and played both ends, or hung on the point and
played in the throat. [Merriment.] The thing seemed ])lausible. Dud-
ley thought he was drunk. But Irvine was with him all day. and knows
he did not drink.

One of those jurors swears that he discovered this thickness of the
tongue when the jury came in and Judge Hardy read the verdict. Judge
Hardy never read the verdict ; never does read the verdict. No Judge
ever does read the verdict.

Another juror says he noticed it. "When we got out, we could not
understand his instructions; he must have been drunk when he read
them; and we came in and asked for further instructions." They did
no< come in and ask for further instructions. The minutes show that.
They came in with a general verdict. The verdict was informal. Judge
Hardy was sober enough io send them out again and instruct them to
come in with a regular verdict ; and they did so. The witnesses all
agree in this respect, except this one juror. Five of the jurors, upon
the Dudleys' intimation, suspected this peculiar appearance of the Judge
to be the result of drink. The foreman of the jury has testified before
you that he knew Judge Hardy well, and that he did not see in Judge
Hardy the least appearance of intoxication on that occasion. He did
see that there was something unusual in his manner, but he did not at-
tribute it to intoxication.

We called Doctor Hepburn, the family physician of Judge Hardy ; a
man you saw upon the stand; a venerable man; a man who stands as
high in that community as any other individual; a man who. when Di-
vine Providence comes to play Sodom and Gomorrah with that town,
(Mokelumne Hill.) will be taken out in advance, and sent over to Ama-
dor Countv, I think. He testifies that he knew Judge Hardy well ; had
seen him imder the influence of liquor frequently, but not in his Courts,
nor during the terms of his Courts. He testifies that he discovered
nothing there and then to indicate intoxication.

AVe prove, by several other witnesses, the same thing.

Mr. Adams, the partner of Allan P. Dudley— a man you saw upon the

606

e^r^j^cl — a man who, I am happy to sa.y, does stand aloof from this gang
of Dudley & Company — a dittercnt man altogether — a fair minded, frank,
candid, honest man — he saw nothing of the sort.

We called several other witnesses — and I am not going to stop to
enumerate them ; you will Und them in the pamphlet testimony — who
testified to the same thing. They knew Judge Hardy well. They had
seen him when he had heen drinking. They saw liim there on that oc-
casion, and thej' did not believe him under the influence of liquor. They
all did discover something in his appearance.

Irvine gave the cause of that something; and Judge Campbell at-
tempts to display a mild piece of wit — that Judge Hardy got drunk on
an affidavit. Well, gentlemen, that would have been a little smart if it
had been original ; but I heard the joke passed around among the Sena-
tors four daA's ago. Drunk on an affidavit ! Judge Hardy did become
agitated and somewhat excited b^' reason of that affidavit, as any mor-
tal man would. Any one not more or less than a man must have felt the
insult deeply.

That accounts for his ap]>earance on that occasion.

In discussing this, in connection with another point, I have disposed
of an Article which lies further along — an Article charging the Respond-
ent with drunkenness on that occasion.

I am admonished, by looking at my watch. Senators, that my time is
running short, and I am going to leave most of these Articles to you.
There is not one amongst them that 1 am at ail afraid of upon the merits
of the case.

There is the charge of disloyalty. There is the charge upon which the
community have expected there would be a party vote. There is the
charge where party prejudice, political prejudice, partisan prejudice, is
expected to take the jjlace of law, and im])el this high body to a vote
against Judge Hardy. And I am merely going to remark upon that
charge. I have not time — I have already spoken so long — to dilate
upon the point.

Judge Campbell relied upon this charge fully, very fully. But there is
this genei'al fact in relation to it. I ask each and all of you. Senators,
to look into your minutes of the testimon}-, and see if you do not find
this to be the case : That on all these occasions, wherever Judge Hardy
is accused by witnesses of having made dislo3'al expressions, it has been
either in a sjjirit of joke and badinage, or in some frolic when be had
been indulging in this vice they charge him with upon the bench.

And, in that ver}' connection, j-ou will see, once for all, that on this
question of drunkenness they charge him with a misdemeanor in office;
and if he has been drunk forty times during the vacation, or in the night,
out of his Court, it is not a misdemeanor in office. You are not the cen-
sors of the morals of a public officer, so long as he discharges his duties.
If they say a Judge disqualifies himself to perform his duties by dissipa-
tion throughout the night, because his head is not as clear,. his intellect
not as keen, why, by the same rule you might say that if a Judge
neglects his health and is not in condition to discharge his functions, he
is to be impeached for it. If he does not take care of his digestion, and
allows his biliary secretions to get out of order, why he is dys])eptic, and
his mind does not work well. You are not the arbiters and correctors
of such offences. You do not sit here to try public officers for such
offences. Why, if you can call in question every time a public officer
has drank, when not in the discharge of his duty, without connecting it

607

vvitli the discharge of a public duty, you can gofarllier; yau can say,
by and by, ^vhen we get our morals so far sublimated that all these
little vices that men indulge in now are to be frowned down, when Ave
all come to be church members, and opposed to dancing, if a public
officer goes to a private dancing party at a gentleman's house and
dances over night, he is setting a bad example to the community ; not
mindful of his high judicial position, he is holding out a bad exhibition
of himself before the public, before whom he is bound to exhibit a fair
character. I need not argue this question.

In this same connection, however, I will mention, on the subject of
this charge of disloyalty, that here is the oftence with which the Ee-
spondent is charged: Seditious language — say the authorities; and I am
not even going to stop to read them.

Seditious language ! Where is the statute about sctlitious language,
in this country ? Are you called upon to create an offence, because a
new state of things has arisen in the country? Because greater devo-
tion, more zealous activity, in support of our institutions, are required
now, are you called upon here to create offences? Has the co-ordinate
branch of the Legislature power to create an offence, and send it here
to be tried, which is not an offence known to the law? Where is the
Sedition I^aw ? Why, old John Adams' Sedition Law has been rejicaled.

Sedition Law ! Why, they have got the law of England here to bear
upon you ; where it is seditious language to speak disrespectfully of the
Queen; where it is seditious language to say anything that can tend to
alienate the hearts of the people from the reigning monarch. Have we
any such laws as these ? Wliy, don't you, every day, during political
campaigns, hear the fiercest tirades against the President of the United
States, whichever party you happen to belong to ? Is liberty of speech
so fiir curtailed in the country, that it is seditious to speak against the
Government? I do not attempt to justif}' these expressions. I do not
attempt to say to a man, " You are praiseworthy, or excusable, for
making use of such expressions in the community." I think the times
call for a different course.

I think this evidence shows that Judge Hardy, at heart, is as loyal as
you or I. I think he has been guilty of a good many foolish, idle ex-
pressions, in times of frolic, or in political badinage ; and I am sorry for
it. But it is not a legal oftence, of which you can convict him. As I
said before, you are not here to create oftences. The Eespondent is to
be tried by the law of the land as it exists; and Avhere is the law which
makes this a misdemeanor? Misdemeanor in office, says the Constitu-
tion, shall be the subject of impeachment. Misdemeanor In o£ice; not a
misdemeanor in drinking too much during the night, in vacation or in
term time. Drinking too much, so as to affect his ability to discharge
his duties when he is on the bench, and going on the bench in a state of
intoxication, would be a misdemeanor, I admit. But a misdemeanor out
of office, is not punishable here. If it is punishable at all, it is in another
tribunal.

I am going now to pass over — I have occupied so much time — these
other cases ; and will leave them to you. I am going to ask you to take
these cases for 3^ourselves.

In relation to settling a statement. You well remember. Senators,
that Mr. Brockway undertook to swear, that in settling a statement
Judo-e Hardy put in exceptions that were not taken on the trial. Do
you remember what that trial was ? Eobinson vs. Leger, upon an injunc-
tion bond. Brockway says he offered certain evidence ; evidence of a

608

peculiar kind of damage. It was excluded. "When they came to settle
the statement, Brockwaj says that Judge Hardy put in an exception
there on the part of the defendant. Do you recollect what Erockway
said, farther along? Look at the report, and you will see he says that
subsequently he got the evidence in ; and that was the time the excep-
tion was taken, if taken at all. That is the time Judge Hardy had in
his mind, when he made this memorandum in this statement. Brock-
way got his evidence in against the defendant. Whether the defendant
excepted or not, Judge Hardy did not know when he settled that state-
ment. Now, how did he settle it? As follows :

"Jlfr. Campbell. — [To Mr. Brockway.] State what 3-ou know about the
statement.

A. — In this statement the evidence was pretended to be set forth by
Mr. George, and exceptions taken b^' the plaintiffs. I have the written
exceptions, which were taken upon the trial, up at my room at the hotel;
I have not got them here ; I proposed amendments to the statement ;
the amendments proposed are these that I now hold in my hand. [Ex-
hibiting a paper.] I proposed amending ilie evidence, so as to set out
more fully the testimony given by the phxintiffs on the trial. The state-
ment was submitted to the Judge for settlement, and the amendments
are marked along. The first ])ropose(l amendment is marked ' allowed,'
and also the second, third, and fourth. Tlic fifth has written beside it,
b}' tlie Judge, as follows : 'This amendment is allowed; but after the
question asked by pUiintiffs' counsel, on line 41, the objection and excep-
tion of defendants' counsel must be noted; also, the objection and ex-
ception to the answer on this point.'"

What is that? Did he say what to put in? Did Judge Hardy write
anything? There is the paper ; there is the original paper. Did Judge
Hardy write in there that an exception was taken ? No such thing. Ex-
ceptions are taken, and usually put on file ; Brockway carries his in his
pocket. Judge Hardy refers to the file when he says, " The objection
and exception must be here inserted;" meaning simpl}- nothing more
than that the exception, if one was on file, must be put in by the Clerk
when he comes to engross the statement. Judge Hardy did not write
out an exception ; he did not write out a form for the Clerk to put in ;
he did not write a statement. ■• Insert the exception here;" that means,
if one is on file it must go in. The exception Judge Hardy had in his
mind was when the objection was taken by the defence to the subsequent
introduction of this evidence which was first excluded. Brockway says
he did get that evidence in afterwards ; and that was the time Judge
Hardy recalls, that an exception was taken. If taken, it would have
been on the file. There is an instruction to the Clerk to insert it, such
as it is, neither more nor less; and if no exception were there, none can
be inserted. But I must pass this over.

I ask you, Senators, to take this man, your fellow citizen, and deal
with him as you would be dealt b}', or have your friend dealt by, under
like circumstances. Measure out justice to him, as you would have justice
measured out to you. Remember, that while you have a high and solemn
duty to perform to the State, you have an equally high and solemn duty
to perform to the Respondent ; and one, too, more terrible in its conse-
quences to him than any consequences can be to the State. You are sit-
ting here, the arbiters of his future destiny. You are to pronounce

609

whether lie slmll be condemned by the machinations of these enemies of
his ai^aiust him; Avhether his name shall be spotted, his hopes blasted;
whether his family shall sit down in disgrace under the disgrace of the
family- head — and that, too, brought about by such men as these Avhom
you have seen here ; — or whether, by taking a fair, liberal view of his con-
duct, and of the evidence, weighing it pro]jei-ly, you will do justice be-
tween these parties, according to your oaths, b}^ acquitting him — sending
him back to his duties — sending him to his home again, to render it
haj)py.

The Counsel said to you, in his opening speech, "The consequences are
HO light to the defendant I lie cannot be imprisoned ; he cannot be fined ;
he cannot be hung I"

" So light ! " Ah ! the consequences are so light I Arraign a man
for offences like these charged upon him ! Put him upon his trial
before the highest tribunal known to our institutions! Accumulate
charges against him. in great number! Roll up evidence constantly!
Bring against him testimony of his declarations made to men Avho are
shown to be infamous! Convict him upon such evidence, and upon such
charges — Oh! the consequences are very light, very light ! You only
destroy his hopes for life. You only crush his ambition. You only set
him down, hopeless and in despair, in the community. Some men may
stand up against such a calamity. A man of hard, stern, wiry nature,
conibative in his character, may meet such things with defiance, and
brave them, if he stands alone in the world; but if he is at the head of
a family — a family he loves and cberishes — the man who would stand up
thus bravely, and defy the world, will be crushed and ruined.

" Man's heart is a stronj; tbincf, and
God-like in the }rr;isp of puiu
That wrin<rs inortality : —
But tear one cord affection
Clings to : part one tie that binds
Him to a wouian'^ love :
And his high will doth wither like a reed."

Crush him, and you crush his wife, whose hopes, fears, and anxieties,
are hanging upon your verdict. And unless Nature made him of sterner
stuff than most men, you will find him gradually sinking and withering
Tinder the blight you are asked to fix upon him. You will find, that
although he may retain his apparent vigor of intellect to some consider-
able extent, when it comes to be exerted you will see that the shaft
comes from a loosened bow. You will see that a fine mind has grown
dim. Shadow after shadow has broken over the human temple, until
the light is extinct at the altar and the priest has passed out, and the
owl and the wild bat, and the bird of night are cowering and brooding
over the holy of holies, gibbering and wild, and flitting restlessh^ to and fro.
And as the sun of his existence goes down in the afternoon horizon, the
shadows, lengtlicning, reach fjirtber and farther over his faculties, until
his soul is broken, and the light goes out in despair.

I do not ask your mercy upon any legal charge, upon legal evidence.
T ask for justice; such justice as you would have dealt out to you, upon
all legal questions, upon all questions legally cognizable, and upon all
charges of such misdemeanors as are in office — and I have here to appeal
not to mercy on those grounds.

Bui there*^ is a department in Judge Hardy's character, upon which I
appeal beyond this high tribunal, to the tribunal of public sentiment, and
the hearts of his fellow men. He has been shown here to be a man of
77

610

faults and foibles. He is not above the frailties of human nature. He
is not perfect — and which of us is ? And, while you are doing justice
to him upon the grave part of this accusation, I ask that great, broad,
high, tribunal, to be merciful to his faults, to extend that mercy to him
which the great poet of the human heart so well describes:

" The finality of mercy i.« not strained ;
It droppcth as the gentle rain from heaven
Upon the place lieneath : it is twice blessed ;
It lilesscth liini that gives and him that takes.
'Tis mightiest in the mighty ; it becomes
The throned monarch better than his crown :
His scejvfre shews the force of temporal power.
The attribute to awe and majesty,
AVhcrein doth sit the dread and fear of kings ;
I?ut mercy is above this sceptred sway.
It is enthroned in the hearts of kings,
It is an attribnte to (lod Himself;
And earthly |iower doth then show likest God's,
When mercy sea.*- on s justice."

I ask this great, broad tribuiuil of public sentiment, elevated as it is,
to exercise that kind of mercy to my client, u])on these frailties and
these follies and foibles; while they are doing stern justice u])on questions
which require the exercise of another depart ment of their intellects.

I submit my helpless client; the man against whom the power of the
State has been invoked; the man against whom this mighty engine of
public power has been set in motion by the machinations of malignanL
men. I ask you to deal with him as j'ou would be dealt by. I ask 3011
to raete out such justice to him, that hereafter, when you la}' your beads
upon your pillows, the conviction shall not come down upon you, ■ 1
may have done that man wrong." If you were only going to take his
life, I should think less of it. -'I may have done worse than that; i
may have been instrumental in inflicting a lifetime of torture upon him,
and upon his family."

I ask again from you, justice to my client.

2\.nd from the great tribunal of ])ublic sentiment, for his frailties I ask
for mercy.

On motion of Senator Mcrritt. at the request of Mr. Edgerton, the
Court then adjourned to Wednesday morning, May fourteenth, at ten
o'clock.

^RaUMENTS

IN THE

TRIAL OF JUDGE J. H. HARDY.

FIFTEENTH DAY— MAY 14, 1863.

CLOSING ARGUMENT FOR THE PROSECUTION.

ARGUMENT OF HENRY EDGERTON.

Mr. EOgerton said :

Mr. President, and Gentlemen of the Court : — Rarely, if ever before in
the history of this commonwealth, has there been Avitnessed such a spec-
tacle as the proceedings of this day present.

The extraordinar}^ character of this tribunal, the highest known to
our Constitution and laws; its imposing forms; the emblems of its power;
the vast rcs])onsibilities that environ it; the individual dignity, integ-
rity, and ability, of those composing it; the character of the parties at
its bar — on the one hand the majesty of the people, arrayed against a
high judicial officer of the Government on the othei* — the heinous nature'
of the crimes imputed; and above all, the awful sentence invoked up.ooi
the accused, unite to invest the occasion with a solemnity and impx^rt-
a nee it would be impossible to over-estimate.

It is of incalculable importance to the accused, inasmuch as the jiudg-
luent to be pronounced involves the removal of a load of imputatio/U
and suspicion cast upon him by the Impeachment, and his restoration to
tlie pedestal of power and honor, from which he has been temporarily
displaced; or, the infliction of an indelible stigma of infamy, up,oii his

612

race and name, and his perpetual ostracism from the confidence and
esteem of his felloAv citizens.

But it is also of the most serious public concern. A few years will
bear the accused, and those who must suffer with him in common, beyond
the consequences of a judgment of condemnation. But when the grave
shall have closed over him and over his accusers and his Judges, the State
will remain. With an abiding hope, deepened and contirmed by events,
the most remarkable of any age, that are occurring in quick succession
around us, we confidently believe this young Republic will endure forever.
To borrow the fine expression of a distinguished statesman, " It is now, by
analogy to the life of an individual, in that period of its existence when
habits are formed and character is established." Your action to-day, the
judgment you shall pronounce, will fix the character of this young, yet
great and rising commonwealth, for justice, or for injustice. These pro-
ceedings will pass into history- and become a precedent. It is therefore
of the most solemn moment, that your judgment be based upon the high
and impregnable grounds of a wise, comprehensive State policy, upon
the severest principles of public morality and law, and an enlightened
regard for the individual liberty of the citizen. For. if from any cause,
an erroneous judgment should be pronounced, by an inexorable law of
moral retribution, which follows nations and individuals alike relent-
lessly, the State in the end will be the greatest sufferer.

Much has been incidentally said, during the progress of the trial, as
to what considerations should govern you in weighing and determining
the momentous issues involved in this Im})eachment. The Attorney-
(xcneral has feelingly reminded you that the accused is but a single indi-
vidual. M'ho stands, shudderin«r and tremblino;. at the bar of this most
august Court. He has admonished you of the mafjnanimiti/. iha generosity^
and the extreme liheraliti/. due from a great and powerful State to an;
humble and powerless citizen. To such an extraordinary length did he]
press this style of remark, the other day, upon a question of the admis-
sibility of evidence, that a quite unprejudiced auditor, to whom the cast!
of characters in this drama was unknown, would have thought himselfj
listening to the earnest appeal of an advocate of the accused. It is not
for me to impute motives to this high public functionary. Every witness!
of his conduct in this cause will pass his own criticisms upon it. If he
can justify it to himself, although it will be b}' some rule of propriety t
me unknown. I cheerfully leave him to the consolations he may derive
from an approving conscience. But I cannot forbear to remark, that if
the strange and extraordinar}'. not to say unprofessional, conduct of the
-Attorney-tieneral is to be accounted for b}' an exalted passion for jus-
tsice, by an honest fear lest the heavy hand of State power should fall
too ruthlessly ujjon the accused, it has displayed itself in a manner so
extravagant and overweening, as to betray him into the appearance, at
least, of a partisan of the Defence. AVe have seen, too palpably to admit
of mistake. Avhat aid and comfoj-t the accused has drawn from this
seeming sympathy of .the Attorney-General. And we have all felt the
power and eloquence with which the learned Counsel for the accused has
echoed the sentiments of the Attorney-General, and enforced his views.
If b^- all this is only intended a mere rhetorical flourish, to give expres-
sion to the fact that the accused, until convicted, stands here in all the
erectness of character belonging to an American citizen ; that, though
arraigned at your bar, as a high political, social, and moral offender, he
is nevertheless guarded and hedged by all the humane and beneficent pre-
sumptions of the law; that the broad shield of this loyal Court should be

613

interposed between him and the malice of persecution — I can readily un-
derstand it. But if, from the suggestions of the Attorney-General, he
would have you infer that you are to estimate the conduct of the ac-
cused by any other than the severest tests of public and private moral-
ity ; that in a trial of this kind you are released from the most stringent
rules of legal decision ; that you are to extend to him any greater
degree of liberality than is accorded to those arraigned on a criminal
charge in the ordinary tribunals of the law, I enter my earnest protest.
While the accused should be protected against imputations engendered
by partisan heat ; while he should be shielded from everj^thing lilce Star
Chamber oppression ; nevertheless, as the post he has occupied is one of
the highest under the Government, and full of responsibility and honor,
the standard by which his deportment in it is to be measured should be
commensurately high and severe.

The learned Pi-esident of the Court, from whose views I usually dis-
sent with great dirtidence, has also made an observation, pending the
trial, the enect of which I feel called upon, if possible, to remove. He
has instructed you. as I understand him, that there is no settled rule
by whicli your deliberations should be governed. That in trials of this
character, there is nothing in precedent to which appeal can be had for
a guide ; that there is nothing uniform or established in principle in
cases of Impeachment, by which justice can be accurately ascertained
and rigidl}' administered. The intimation is, as I understand it, that in
this tribunal, shifting theories of right and wrong are to prevail, and
that rules are to be applied manufactured to the hour. Unfortunately,
perhaps, for tlie public morality of the country', but fortunately for the
purj>oses of this trial, there are many precedents to guide us, and we
arc not without the light of elementary law.

The learnetl Counsel for the Defence asserts that no offences are im-
peachable except statutable misdemeanors. I submit that the Constitu-
tion of our State, in providing for the impeachment of certain public
officers for " misdemeanor a in office," does not limit the impeachable otiences
to misdemeanors defined by statute, as contended by the learned Counsel.
There is no doubt but that the misdemeanor must be committed in office;
that is, under color of office, while in the discharge of official duty, in
order to give this tribunal jurisdiction. AVhat I maintain is, that your
jurisdiction extends to a multitude of offences, both legal and political,
any one of which, if proj)erly alleged and proven, though not defined hy
atcttutc lau\ should convict the accused, and remove him from office. One
of the purest and most learned jurists of his age, in his elementary trea-
tise on the Constitution, in sj^eaking of the Court of Impeachment, says:
"In the first place, the nature of the functions to be performed, the
1 offences, to which the power of impeachment has been, and is, ordinarily
applied as a remedy, are of a, political QhfKYVkCtQV. Xot but that crimes of
a strictly legal character fall within the scope of the power, (for, as we
\ shall presently see, treason, bribery, and other high crimes and misde-
I meanors, are expressly within it;) but that it has a more enlarged
operation, and reaches what are aptly termed political offences growing
out of personal misconduct, or gross neglect, or usurpation, or hahitual disregard
of the public interest in the discharge of the duties of office. Those are so
various in their character, and so indefinable in their actual involutions,
that it is almost impossible to provide for them systematically by posi-
tive law. They must be examined upon very broad and comprehensive
principles of public policy and duty."

614

I read from Justice Story's Commentaries on the Constitution.
Again he says :

"The next inquiry is, What are impeachable offences? They are

• treason, bribery, or other high crimes and misdemeanors.' For the
definition of treason, resort may be had to the Constitution itself; but
for the definition of bribery, resort is naturally and necessarily had to
the common law; for that, as the common basis of our jurisprudence,
can alone furnish the proper exposition of the nature and limits of this
offence. The only practical question is, What are to be deemed high
crimes and misdemeanors ? Now, neither the Constitution nor any stat-
ute of the United States has, in any manner, defined any crimes, except
treason and bribery, to be liigh crimes and misdemeanors, and, as such,
impeachable. In what manner, then, are they to be ascertained? Is
the silence of the statute Look to be deemed conclusive in favor of the
party, until Congress have made a legislative declaration and enumera-
tion of the offences which shall be deemed high crimes and misde-
meanors ? If so, then, as has been truly remarked, the power of im-
peachment, except as to the two expressed cases, is a complete nullity ;
and the party is wholly dispunishable, however enormous may be his
corruption or his criminality.

" Again : There are many offences, purely political, whicli have been
held to be within the reach of parliamentary impeaclnnents, not one of
ichich is ill the s/ii/h(est mnnnrr aUmled to in our statute hook. And, indeed,
political offences are of so various and complex a character, so utterly
incapable of being defined, or classified, that the work of positive legis-
lation woukl be impracticable, if it were not almost absurd to attempt it.

"Congress have unhesitatingly adopted the conclusion that no j^rcvious
statute is ncccssari/ to authorize an impeachment for amj official miscanduct ; and
the rules of proceeding, and the rules of evidence, as well as the prin-
ciples of decision, have been uniformly reguUited by the known doctrines
of the common law and parliamentary usage. In the fcvj cases of im-
pcachynent which have hitherto been tried, no one of the charges has rested Ujoon
any statutable misdemeanor."

The learned commentator cites several instances of impeachment for
offences not defined by any law.

" Thus, Lord Chancellors, and Judges, and other magistrates, have not
only been impeached for briber^', and acting grossly contrary to the
duties of their oftice ; but for misleading their Sovereign by unconstitu-
tional opinions, and for attempts to subvert the fundamental laws, and
introduce ai'bitrary power. So, where a Lord Chancellor has been
thought to have put the great seal to an ignominious treaty; a Lord Ad-
miral to have neglected the safeguard of the sea ; an Ambassador to have
betrayed his trust; a Priv}- Counsellor to have propounded, or sup-
ported, pernicious and dishonorable measures ; or a confidential adviser
of his Sovereign to have obtained exorbitant grants, or incompatible
employments; these have been all deemed impeachable offences. * *

* * Suppose a Judije shoxdd countenance or aid insurgents in a medi-
tated conspiracy or insurrection against the Government. This is not a ju-
dicial act ; and yet it ought certainly to be impeachable."

It is by no means contended, nor can it be inferred from the authority
quoted, and the precedents therein cited, that what are impeachable offen-
ces is left to the arbitrary discretion of the Senate for the time being.
The same authority says : " This is so incompatible with the genius of our
institutions, that no lawyer or statesman would be inclined to counte-
nance so absolute a despotism of opinion and practice, which might make

615

that a crime at one time or in one person, which would be deemed inno-
cent at another time or in another person. The only safe guide in such
cases must be the common law, which is the guardian at once of private
rights and public liberties. And however much it may fall in with the
political theories of certain statesmen and jurists, to deny the existence
of a common law belonging to, and applicable to the nation in ordinary
cases, no one has as yrt been hold enoiKjh to assert, thai (he power of impeach-
ment is limited to offences posit tech/ defined in the statute hoolc of tile Union as
impeachahle hifjh crimes and misdemeanors."

The learned commentator further says upon this subject: "The doc-
trine, indeed, would be truly alarming, that the Common Law did not
regulate, interpret, and control the powers and duties of the Court of
Impeachment. What, otherwise, would become of the rules of evidence,
the legal notions of crime, and the application of principles of public or
municipal jurisprudence to the charges against the accused ? * * *
It is the boast of English jurisprudence, and without the power of im-
peachment would be an intolerable grievance, that in trials by impeach-
ment the law differ i not in essentials from criminal prosecutions before inferior
Courts. The same rules of evidence, the same legal notions of crimes
and punishments, prevail. For impeachments are not framed to alter
the law ; but to carry it into more effectual execution, where it might be
obstructed by the influence of too powerful delinquents, or not discerned
in the ordinary course of jurisdiction, by reason of the peculiar quality
of the alleged crimes." Every lawyer and layman knows that the main
body of the common law of England is made by our statute the law
of this vStatc. It is the basis of our jurisprudence.

I have felt it necessary to cite thus much of precedent, to quote thus
much of authority, to correct whatever erroneous impressions may have
been produced on the mind of the Court by the suggestions of its presiding
officer, and the ingenious argument that has been made on the part of the
Defence. Im])ressiuns, which, if they were to prevail, could not but be
fatal to a just determination of this trial. I affirm, in contradiction to the
position assumed by the learned Counsel, that while statutable misde-
meanors form an im])ortant and perhajis the broadest ground of your juris-
diction, you are not limited to such offences in passing judgment upon the
accused. For example : drunkenness while in the discharge of official
duty, the oppression and tj-rannical partiality of Judges, Justices, and
other magistrates, in the administration, and under color of their offices,
are nowhere defined as crimes b}' the statutes of this State. Yet they
are misdemeanors at common law, and punishable by indictment or
information, and if committed by a Judge, arc impeachable in this
forum. In a case reported in 4 Henning & Munford, it was held, that,
being intoxicated with spirituous liquors, while in the discharge of offi-
cial duties, was a sufficient misbehavior, for which a Justice of the Peace
ought to be amerced and removed from office. Yet, the offence was not
Btatutable. It is not a statutable offence in this State. But every one
looks upon it as an intolerable misdemeanor in a Judge, of the most evil
public example, degrading to the office, and full of danger to public
rights and the liberties of the citizen. Every right-minded man feels
that the public safety would require the removal of a Judge from office
■who should be guilty of such an offence. And the only way, under our
Constitution, in Avhich he can be reached and punished, is by impeach-
ment. Seditious words, spoken for the purpose of weakening the Gov-
ernment, to bring it into disesteem, to alienate the affections of the
people living under it, is a high misdemeanor at common law. In a

616

Judge, sworn to support the Constitution of his country, it is a crime of
danmino; dye. It is indictable at common law. It is certainly indictable
and puiiislialtle in the (Criminal Courts of this State. A Judge guilty of
the offence should be removed from office. But there is no mode of
effecting his removal but by impeachment. The Articles of Impeach-
ment charge the accused with the commission of nineteen distinct, spe-
cific offences, either one of which, if proven, is sufficient to disqualify
him for the discharge of the duties of his high office. If prov.ed in
mass, they are overwhelming. The toleration of such an incumbent
would be the foulest dishonor that could be inflicted on any Government.
Yet no one of the offences charged is declared to be indictable or im-
peachable, by any positive legislative enactment. The common law of
England, therefore, having been adopted, by statute, as the law of the
State, so far as it is not repugnant to or inconsistent with the Constitu-
tion and laws of the United States, and the Constitution and legislative
acts of California, must be referred to in determining what offences are
within j-our jurisdiction. And, although you should survey this case
from the stand-point of a statesman, and not in the close technical spirit
of a lawyer, the same principles of legal decision, and the same rules of
evidence, which prevail in the ordinary Courts of criminal jurisdiction,
should be the guide of your deliberations here in this forum.

With these preliminary observations, as to what offences arc impeach-
able and within your jurisdiction, and as to the rules that should control
your determination of the case, I proceed with my argument u]ion such
of the issues involved in it as I may be able, within the limited time
allotted to me, to examine and elaborate.

1 ])ropose. as nearly as I can, to follow the line of argument adopted
by the learned Counsel for tlio Defence. And I invite your attention,
first, to the charge of wilful and corrupt conduct on the part of the ac-
cused in the trial of Judge Teny. In the year eighteen hundred and
fifty-nine, and immediately upon the close of one of the most remarka-
ble contests in our political history, the Chief Justice of the State de-
scended from his elevated j^osition. laid aside the robes of his office, and,
in violation of the laws he had sworn to administer and conserve, chal-
lenged a fellow citizen to mortal combat. The challenged party was a
great, illustrious, and a good man. lie was a United States Senator.
The purity of his ])rivate life, the rectitude of his public career, his
heroic attachment and fidelity to principle, his unfaltering constancy in
the cau^e of ]iublic justice and libert}', had made him a distinguished
character in the higliest council hall of the nation. He had engaged the
admiration, and centred in himself the confidence and highest hopes of
the whole country. He was slain in that conflict. Judge Terry, his an-
tagonist, was indicted in this cit}^ for a felonj' — the fighting of a duel hy
]»-ei-ioits (ippointmcnt (as General Williams suggests j being, under our
statute, a felony. The trial of the indictment was transferred from the
County of San Francisco to Marin County, in the Seventh Judicial Dis-
trict, at the instance of Terr}-, and the accused presided at the trial, as
Judge, in the absence of the Judge of that District. The origin of the
conflict, the facts out of which it sprung, the high character of the prin-
cipals engaged, and the ])arties implicated, the associations surrounding
the conflict, and its fatal termination, all concurred to invest the trial
with an unprecedented degree of public interest and solicitude. The
State — aye, the whole country — was at the portals of the tomb of one of
her most cherished sons, a mourner. Public opinion condemned the act
by which he fell, as murder. Solemn legislative enactment had made

617

it a hiirb crime. The voice of tbe communitv, and the voice of the law.
called loudly for tbe vindication of public opinion, and the enforceinenT
of the law. The public eye was upon the trial, upon the Jud^re, lie
jurv. and all tbe offic-ers of tbe Court, watching with jealous anxiety, lest
tbe ends of justice should be defeated, and a conspicuous offender go un-
puni>lied. 1 submit, that official delinquency on tbe part of those en-
tru<U'd with tbe administration of tbe laws, in such a case — most espe-

iily the collusion of a Judge with the defence in such a cause — compli-

y on bis ]ia7-t in a shameless trick to procure an unjust acquittal — is
' 1 Tuption in office of such a grade as to be impeachable ; and if proven
.]' m tbe accused, you cannot hesitate to convict and remove him from
■:nee.

Before 1 enter upon a detail of the circumstances of that most remark-
able trial and acquittal, I desire to notice a remark made by tbe learned
Counsel for tbe Defence in regard to tbe evidence of Judge Frink,
otiered by the Managers, but rejected by the Court, on the ground that
tlie offer was made at too late a stage in the trial. Greneral Williams,
undoubtedly from no motive of disrespect, characterized the offer as
hutiromltf.

Mr. WH'iTTi'. — I beg pardon. Not as against yow. Sir.

Mr. ! — Not as against me. I can answer for myself and for my

associa: - we desire to carry no point in this case by means of •• bun-
combe." nor any other unworthy expedient. Tbe offer of Judge Frink s
evidence was made in the most perfect good faith. And though made
at\er tbe testimony in the case was formally closed, it was offered as
soon as it was discovered ; and it was of such a character, and. in the
judgment of those having in charge the Prosecution, it bad such a de-
cisive bearing upon tbe charge under consideration, that they deemed it
their duty to a]i]»rise the Court of the fact to be proven, and leave tlie
rc^- - "V t>f its admission or exclusion with them. It was authori-
tai limunic-Uod to tbe Court, on Saturday, that tLe accused, im-
mediaicix upon descending from tbe bench, immediately after tbe farce
in which be was so prominent a character had been enacted, remarked
to Judge Frink. •!/ that trirJc. hal not won, tec had another stri.nj for them..'"
Judge Frink is a gentleman of high character. Both tbe accused and
his Counsel well know that his statements are to be received as absolute
truth. Tbe Court will also recollect with what an extremely liberal
spirit the Defence entered upon the trial oi' this CAse. Xo technicalities,
no irregularities of any kind, were to be taken advantage of ami testi-
monv luiirbt be offered at any time, in order, or out of order. This im-
maculate Defendant sought. 'said bis Counsel, the revelation of the truth,
tbe whole truth, and nothing but the truth. Moreover, the witness
offereii was here on their own" suVtpoena. It is fair to presume that th«
I)efence bad communicated with him. and knew what facts could be
proved bv him. A fact so evincive of crime it was most important to
suppress.' And it is a little significant, that for the first and only time
in tlie progress of the cause, the Defence objected to the admissibility of
this evidence because it was offered out of order. The Defendant well
knew that if he had not given utterance to the expression attributed to
him, Judire Frink would have so testified ; and he also knows that if he
did utter'^it. it would come out against him. Why. then, did he make
this exceptional point of order? "Those who witnessed tbe agitation of
the accused when tbe offer of this evidence was made, will find a ready
answer. I would not be so unprofessional and unjust, as to argue from
the objection of the accused to tbe admission of the rejected evidence,
78

618

that you should infer the truth of the fact offered to be proved. I
alluded to the circumstance of the offer for no other purpose than to
reply to the charge of '' buncombe" that has been brought against tht-
Prosecution. I need do no more to repel the charge than to remind you
of the wild excitement, the blanched cheeks, and chattering lips, of the
accused, consequent upon this offer. If it was " buncombe." it was of a
kind that produced strange and telling effects. General Williams tells
3^ou. that the accused has assured him. in the "sacred confidence which
exists between Counsel and client." that, if Judge Frink were here, he
could prove by him that he, Judge Hardy, •• had expressed regret, at the
time of the trial, at the manner in which it was conducted ;" that he had
" rebuked Counsel fur the course they had taken." You will remember,
that when we applied for an adjournment, to procure the attendance of
Judge Frink, General Williams urged as a reason why the trial should
not be delayed. •• that the witness had been here three days on their
subpoena, and had been discharged l>y them." If this be true, and un-
doubtedly it is, and if Judge Hardy could have proved facts so vitally
important to his reputation as a Judge, and to his security in this trial,
as in the •• sacred confidence which exists between Counsel and client"
he affirmed he could — why. in the name of that legal acumen and skill
for which both the accused and his Counsel ai*e so pre-eminently distin-
guished, did they not make a witness of Judge Frink themselves? If
there is any " buncombe" in this case, I leave it to the Court to say upon
whom the imputation shall be made.

General Williams tells you, -Judge Hardy knew Terry could not be
convicted." This is certainly a strange admission on the part of the
Defence. How did he know it ? What business had he to know it ?
Had he been studying Terry's defence, and had he prejudged it ? '• He
knew beforehand that Terry could not be convicted." says General Wil-
liams. Where and in what manner did he get this previous knowledge!'
According to the prevailing notions of judicial propriety and integrity.
Judges are presumed to "/rnojc" nothing of a case, to have no opinion-
as to its merits, until it has been subjected to the test of a trial before
them. This remarkable admission, that •• Hai'dy knew Terry could not
be convicted." taken in connection with the facts established by the tes-
timony in the case, and the fact offered to be proved by Frink. is full of
significance. Taken together, the belief is irresistible that Hardy did
know '•beforehand" that Terry could not be convicted ; that if the dis-
graceful farce, which resulted in his acquittal, had failed, •' there ica*
another stn'nj the}/ could have plaijedj'

Mr. Wdlianix. — [Sotto voce.] You do us injustice, Mr. Edgerton.

Mr. Ed'jprton. — I submit it to the Court whether my observations are
not fair. They certainly are made in that spirit, and I adhere strictly
to the record of the evidence.

The gravamen of the charge set forth in the Article upon which I am
commenting, is : First ; That the accused caused a jury to be empanelled
in the trial of Judge Terry with indecent haste. The facts, as I shall
attempt to demonstrate them, are. that the jury were empanelled, the
District Attorney and the accused well knowing that there were no wit-
nesses present on the part of the State ; that there was no examination
of the jurors as to their capacity to try the cause.

It is said by the Defence that the District Attorney of Marin County
is not on trial here. In one sense, this is true. But the conduct of that
ofl&cer, pending the trial of Terr}', is a necessaiy subject of inquiry b}' this
Court, with a view to ascertain whether it was of such a character, and

G19

so open and undisguised, as to demand the interposition of the Judge to
prevent a fraud upon public justice. IsTo one that has heard the manage-
ment of that ]n-osecution dctaik'd by the witnesses, can fail to pronounce
it otherwise than extraordinary and unskilful, and to such a degree, as to
be attributable to nothing hut corruption or positive idiocy. Watch the
conduct of this District Attorney, from the beginning. Learned and elo-
quent Counsel are sent from this city to assist him. Their aid was offered
courteously, and in a spirit perfectly in accordance with professional pro-
priety. Their services were contumeliously rejected. The plan of escape
was matured, the District Attorney was a party to it, and the presence
of honest (Jounsel on the part of the prosecution would have thwarted the
j)lot. The learned Counsel has urged it upon you as a fact exculpatory
of the District Attornc}', that he issued sulipoenas for the defence with
due diligence. Granted, lie further urges as a proven fact in the case,
that, prior to empanelling the jur}', the Judge asked the District Attorney
if his witnesses were ])rescnt, and that he replied, they Avere "near by,
in the creek." lie relies u])on the testimony of Mr. Shafter to establish
this fact. An examination of all the evidence in the case, however, con-
clusively shows that such is not the I'act. Mr. Shafter does not testify
positively tliat this conversation passed between the Judge and District
Attorney ^>r/Vj/- to the em]>anellingof the jury. He says, on the contrary,
that such is his impression merely; while Mr. Taylor, the Clerk of the
Court, and yiv. Hanson, a practising Attoi*ney at that bar, both testify-
positively that nothing whatever was said as to the witnesses, until after
thejuri/ u-rre cwpaiu-llrd. I call the attention of the Court to page one
hundred and forty-four of the printed testimony, to that portion of Mr.
Taylor's examination which is as follo'ws :

'''■Senator Crane. — Was any suggestion made b}- any one, in your hear-
ing, that upon a little delay the witnesses for the prosecution would
probably arrive 't

A. — l" think that Mr. Haralson, as Mr. Shafter stated, said that the
witnesses were in the 'creek;' or that he heard that they were. I
think that he stated that they were in the creek, in a small boat.

Mr. ]V7//.V;7»o.— Was that before or after the empanelling of the jury ?

A. — It was after. Mr. Haralson said, ui)on his own authority, or else
he stated what he had heard, that the witnesses for the prosecution were
in a small boat, in the 'creek.' Judge Hardy looked at his watch and
said that it Avas not yet ten o'clock. It lacked so many minutes. I
don't know how many. He said : ' I will wait until ten o'clock.' "

Mr. Hanson, who was engaged in the defence of Terry, and who
volunteered to assist in selecting and packing the jury, testifies as fol-
lows. Bear in mind, that Hanson is a witness for the Defence. He par-
ticipated in the disgraceful farce under examination. He is naturally
interested to ijive to those proceedings as great a coloring of propriety
as possible. What he testifies to, against the Defence, may safely be
relied on as true. He says :

ct Q. — At what time did the Court open on that day ?

A.— I think that the Court opened at the usual hour— at nine o'clock.

Q._Do you remember at what time the District Attorney announced
himself as ready to commence the trial, or ready to commence the em-
panelling of the jury for the trial of the case ?

A. — T think as soon as the Court opened.

620

Q. — The record seems to say something else.

A. — Well, I do not recollect now, positively, about that matter. I
know that he said the witnesses were summoned to be there at ten
o'clock.

Q. — Did he say anything about the witnesses being absent, before the
jury were empanelled '(

A. — According to the best of my impression, he said nothing about the
witnesses being absent, until after the jury were em])anelled. If he said
anything about the jnatter before the empanelling of the jury, 1 did not
hear it. I recollect distinctly', hearing him say, after the jury were em-
panelled, that the witnesses were summoned to appear at ten o'clock.
and that the hour had not then arrived."

The fact is distinctly before the Court, that the jury were empanelled
without an intimation on the part of the Court, the District Attorney,
or any one else, that the witnesses were near the Court. The District
Attorney liad made his Kul)p(enas returnable at ten o'clock. The Court
met at nine o'clock. The ])lan was. to get the jury empanelled before
the witnesses could arrive. The object to be gained was, to put the de-
fence in a ]K)sition to demand a verdict, without the evidence of a single
witness lor tiie prosecution. So soon as the jury were empanelled, the
District Attorney announced to the Court that the subpoena had not
been returned, and that no witnesses were present on the part of the
State. The Judge asked him if he would take an attachment. Here-
plied that he had exhausted the process of the Court, and himself moved
the Court that the jury be directed to return a verdict for the dffndant.

The Counsel for the Defence saj'S he sees nothing in all this extraor-
dinary conduct of the District Attorney that is rejjrehensible. I know
not how it strikes the mind of the Court, but to my mind it evidences
the most glaring wickedness and corruption in office I ever knew a
Prosecuting Attorney to be guilty of An honest servant of the State
would have postponed the empanelling of the jury until his witnesses were
called, if the subprjena was returned; and if it was not returned, and he
bad used due diligence, as General Williams insists the District Attorney
did use in this case, he was entitled to a continuance of the cause until he
could get a return, and it was his duty to apply to the Court for a contin-
uance, and it would have been the duty of the Court to have granted it.
The learned Counsel for the Defence dwells with great em])hasis upon the
fact that the District Attorney could not have obtained an attachment
for the absent witnesses, the subpaMia not having been returned. I con-
cede this. But he also says that the District Attorney used due dili-
gence in issuing his subpcenas. I accept this, also, as a fact. And I ask,
if he had thus used due diligence, why did he not apph' to the Court for
a continuance of the cause':' Such was his solemn duty. And it would
have been the grossest and most culpable abuse of discretion on the
part of the Court to have refused it. Instead of honestly discharging
his duty to the State, he himself, as Mr. Southard testities, vioves the
Court to instruct the Jury to return a verdict for the defendant. His zeal for
the defendant outran that of the defendant's own Counsel. AVas ever
corruption in office more ojjen and unblushing? And this model Judge
sits upon the bench, and winks at all this wickedness.

The next step in this most remarkable trial, in the conduct of which the
learned Counsel for the Defence sees nothing to criticise, nothing irregular,
is the mode of empanelling the jury. The whole ceremony was a clear
violation of law, from its inception to its close. The trial commenced

621

with a violation of law, its entire progress was a fraud upon public justice,
and its termination brought indelible dishonor ujion the Judiciary of the
State, at home and abroad. Our Criminal Practice Act prescribes the man-
ner in Avhich trial juries in criminal cases shall be formed. In Article fifteen
hundred and ninety-seven, of Wood's Digest, is the following provision :

'• Trial juries for criminal actions shall be formed in the same manner
as trial juries in civil actions." And the law provides that trial juries shall
be formed in civil actions in the following manner: "The Clerk shall
properly separate ballots, containing the names of those in attendance,
and deposit them in a box. He shall then, in open Court, draw from the
box twelve names, and the persons so drawn shall form a trial jurv."
The object of this salutary provision of the law is to secure purity and
integrity in the panel. The end to be accomplished by it is, to put it
beyond the power of dishonest lawyers and litigants, and corrupt officers,
to pack juries.

Now, mark the manner of empanelling the jury in the case under con-
sideration. Jt is in evidence, that the Clerk of the Court, under the sanc-
tion of the Judge, and in j)ursuanc€ of a jivevious agreevicnt hetivccn the District
Attorney and the Counsel for Tcnyj, called the first twelve names from the
list, and that the persons so called took their seats in the panel, only two
of them being excused, both on challenges interjjosed by the defence.
There are distinguished law3-crs in this Court. I appeal to their experi-
ence, and ask. if in all their practice, one of them ever knew a jury to be
empanelled in a criminal case, particularly in a case of the importance of
this one, in a case that excited so much of public interest, so much of pub-
lic feeling and comment, and concerning which the opinionsof men were
so likely to have been ])reviously formed, in the manner in which this jury
was empanelle<l. The law peremptorily prescribed to the Court the man-
ner in which the jury should be formed. But the injunction of the law
was utterly disregarded; and that, too, as the defendant's own witnesses
disclose, hi/ previous aijrecment beticcen the Prosecuting Attorney and the defend-
ant's Counsel. The law was purposely ignored, and the jurj- was empan-
elled in an unprecedented and illegal way, in order to subserve the inte-
rests of the defence.

Mr. Williams. — I believe, Mr. Edgerton, you misapply the statute.
That refers to the calling of the jury at the commencement of the term —
to the general empanelling of the jury.

Mr. Edgrrton. — Most clearly the statute contemplates the mode of em-
panelling the jury for the purpose of trying a given case. The general
panel is drawn by the County Clerk, the Sheriff, and County Judge,
several days before the commencement of the term. The statutes I
have referred to prescribe the mode of forming the jury for the trial of a
cause, in open Court, when the cause is called for trial.

Judge Hardy. — You will find that you are in error, if you will read the
whole section of the statute.

Mr. Edgerton. — 1 have read both sections entire. If you will find any
statute prescribing a different method of empanelling a trial jury from
the one I have indicated, I will cheerfully read it, and acknowledge my
error. And I invite interruption, when you may be so fortunate as to
find it.

Mr. Williams. — You will discover your error, upon reading the whole of
the section.

Mr. Edgerton. — I repeat, that I have read to the Court the Avhole of
both sections, without the suppression of a word.

But to return to the course of this remarkable trial. After the twelve

622

jurors were put into the panel, they were sworn to tr}- the cause, with-
out one word of examination, on the part of the District xVttorney, as to
their qualifications as jurymen. Eminent lawyers, both from this city
and from the country, actinii; Judi^es, and cx-Judges, have been examined
before you in regard to the duty and the universal practice of Prosecut-
ing Attorneys in this particular. They testify from proibssional obser-
vation and experience, ranging from ten to tAventy-five years. They all
concur in the opinion that it is the duty of a District Attorney to subject
each juror to a rigid examination, as to his prejudices, bias, feelings, and
opinions. It will readily occur to the most ordinary common sense,
that this is al)solutcly essential to the attainment of a just verdict.

In the Terry case, the considerations are obvious and overruling
why this examination should have been rigidly had. The charge
against Judge Terry was, killing a fellow-being in a duel, fought under
a previous arrangement. It is well known that in this State, and
in every county in the State, the opinions of citizens of this State are
very much divided as to the criminality of duelling; that there is a very
large proportion of our population Avho were educated to believe in the
lawfulness of what is called the "code of honor," and who would in no
case return a verdict of guilty, upon a charge of duelling. It has been
suggested by the President of the Court, in his evidence, that one of the
jurors in the Terry case had openly declared, prior to the trial, that he
would in no event convict a man upon a charge of duelling. The cir-
cumstance mentioned by Mr. Shafter, in regard to one Benjamin Miller,
shows the necessity of a rigid examination of jurors in capital cases.

The learned Counsel for the Defence has devoted much of his time to a
severe criticism of Mr. Shafter's evidence. I admit that ho was mistaken
in saying, that at the time of Terry's trial. Miller was under an indict-
ment for murder. But it is unmistakably proven, that prior to the trial,
this man, Miller, had committed a foul murder, and that subsequently he
was indicted and convicted, and is now expiating his crime by serving
out the term of his natural life in the State Pi-ison.

In repl}' to all this, the learned Counsel for the Defence tells you, that
there is no necessity for an examination of jurors as to their qualifications
to try causes in small counties, because, he says, the population is sparse,
and everybod3' knows everybody's sentiments in advance. And particu-
larly, that the Prosecuting Attorney in those counties, mingling, as he
does, with all the people in his county, knows all about their ante-
cedents, their prejudices, characters, and opinions. If this be true, the
argument tells most strongly against the District Attorne}^ in this in-
stance, for he knew that he was submitting a most important criminal
case to the decision of a felon and a murderer. The Defence is welcome
to all the force of the argument, and may make the most of it.

But I deny the proposition. The necessity of a rigid examina-
tion of juries, in the " cow counties," is equally as great as in a city.
Most especially is it so in Marin County. That county is the Botany
Bay of the State. For some reason or other, and probably on account
of the loose notions which prevail there upon the subject of duelling, that
county seems to be the chosen spot for all these conflicts. And it almost
always happens, that if a duel is fought anywhere else, the offender, by
some hocus-pocus or other, either by a judicial or legislative change of
venue, gets his trial transferred to that county. And the course of the
law there, seems to be singularly uniform; there having been no instance
of a conviction. And yet this JDistrict Attorne}^ well knowing the state
of public opinion in that county, according to the assertion of the learned

623

Counsel for the Defence, assents to the empanelment of a jury to try a
charge for dueUini!;, without interrogating one of them as to their
opinions upon the criminality of that otfence.

But this is not all, or by any means the strongest evidence of the cor-
ruption of this District Attorney. The defendant''in that trial, Judge Ter-
ry, challenged one juror, oa the ground that he had been a member of the
San Francisco Vigilance Comniittee. This challenge Avas made for cause ;
and the District Attorney not denying the challenge, it was allowed by
the Court. A challenge was interposed to another juryman, by Terry, on
the ground that he had sympathized with the Vigilance Committee; which
challenge, the Court intimated, he would overrule, if it was denied by the
District Attorney ; whereupon, the District Attorney said Ae would alloio
thr <hnllengr, and the juror was excused. Two other jurymen were called,
and, without further examination, the jury were sworn to try the case.

And now comes the most extraordinary conduct of the District Attor-
ney in the whole trial. Immediately upon the jury being sworn, and be-
fore the hour of ten o'clock had arrived, the hour at which the witnesses
had been subpoenaed to be present, the District Attorney himself moved
the Court to instruct the jury to return a verdict of not guilty. Could
anything more clearly evidence the venality and the corruption of this
wicked and dishonest officer ? lie violates law, he perjures his oath of
office, he defiles the noble profession to which he is such a disgrace, at
ever}' op])ortunity, to prostitute his high and honorable position to the
base service of a duellist and a murderer.

But there is still another, and a most flagrant violation of law and de-
cency, in those proceedings. The Criminal Practice Act prescribes the
order iu Avhich the trial shall proceed. And, among other things, it
provides that the indictment shall be read by the Clerk to the jury. In
this case, the indictment was not read to the jury. And they returned
a verdict of acquittal, under the direction of the Court, without knowing
upon what charge the defendant was arraigned. Such is the infamous
conduct of this District Attorney, in the presence of the Court, in his
official capacity, during this Terr}- trial.

Let us recapitulate. He makes his subpoenas returnable at ten o'clock,
A. M., the hour of opening the Court being nine o'clock. Immediately
upon the opening of the Court, before his subpoenas were returned,
and not one of his witnesses being present, he consents to the empan-
elment and swearing of the jury to try the case. He omits to ask
a single juror a question touching their qualifications to try the case. A
convicted murderer was a member of the panel. For aught that is
known, the panel may have been composed of professed duellists. A
challenge is interposed to one jur^nnan, because of his membership in the
Vigilance Committee, and the Court allows it, the District Attorney
making no objection. Another challenge is interposed by the defence, to
another juryman, on account of his sympathy with the Vigilance Com-
mittee. The Court ovei-ruled the cliallenge, whereupon the District
Attorney flies to the relief of the defence, and in order to save to Terry
as many peremptory challeiigos as possible, agrees to this last challenge,
and the juror slides. Immcdiateiy upon the empanelment of the jury,
the District Attorney, without waiting until the hour at wliieh his sub-
poenas were made returnable, and without applying to the Court for any
delay of the case, to which he was clearly entitled, and which an honest
Judo-e would, of his own motion, if necessary, have ordered, himself
moves the Court to direct a verdict of acquittal. And here let me sug-
o-est that it was the duty of the District Attorney, if he had had no

624

other alternative, to have applied for a dismissal of the case, and an
order re-submitting it to the next grand jury, so that the case might
have been brought up anew, and tried upon its merits. Our statute pro-
vides and directs such a course when, from any irregularity or technical
errors in a criminal prosecution, justice is likely to be defeated. But the
plan vras to secure to the defendant a verdict of acquittal, in order that he
mio-ht be rescued from a second trial for the same offence. The friends
of the dead Senator, and an outraged community, dispatched eminent
Counsel to aid the District Attorned' in the prosecution, and he rejected
them. Such are the remarkable facts in the conduct of tins District Attor-
ney. They are conclusively established by the testimony of gentlemen
of the highest character, who have been summoned and brought upon the
stand by Judge Hardy himself

It has been necessary to examine the acts of the District Attornc}" thus
minutely, in order to enable this tribunal to determine the main question
before it. to wit : The criminality of Judge Ilardy, who was the presiding
Judge at the trial, in not interfering to arrest the proceedings, and to pre-
vent the perpetration of an enormous fraud upon public justice. Every
member of the Court knows the history of tiiat trial. Every member of
the Court knows that it brought infamy and disgrace upon tlie reputation
of our Judiciary, at home and abroad. Every true-hearted CalifoiMiian
feels that it is a blot ui>on the escutcheon of his adopted State, and will be
moved by an honest satisfaction in seeing the guilty j)articipants in the
crime brought to justice. Xo sane man can impartially consider the
conduct ol" the District Attorney upot» that trial, and not denounce it as
venal and corrupt in the highest degree, or as the result of sheer nega-
tive impotence.

And this brings me to a consideration of the conduct and duty of Judge
Hardy, who presided over the trial. He silently countenanced all theee
disgraceful jjroceedings. Xot one word of rebuke, not a suggestion as
to the duty of the District Attorney, fell from him. He aided the de-
velopment of the wicked plot, and consummated it by directing 'a ver-
dict of ac(|uittal. What was his dut}'? He was sworn to see that the
law was faithfully and impartially executed. In defence of his conduct
on that occasion, his learned and eloquent Counsel, with apparent
seriousness, contends that it is never the duty of a Judge to interfere
with the mode of trying a cause. That it is his dut}' to take a ease
and dispose of it as it is presented by the Counsel trying it. That, no
matter how open!}' dishonest a lawj-er may be to his client; no matter
how palpulile may be the evidence of collusion and fraud between Attor-
neys trying a case before him ; no matter how apparent it may be that
a great and shameless fraud upon public justice is about to be committed
before his face, a Judge should sit quietly upon the bench and oppose no
obstacle to its perpetration. I have too much respect for the intelli-
gence, and too much confidence in the moral sense of this Court, to
enter upon any labored argument to refute this proposition. Its bare
enunciation is revolting to ever}- professional mind, and it will excite
abhorrence in the mind of every honest layman that heard it. The
honest instincts of every member of this Court will teach him, without
the aid of external evidence, that the circumstances of that trial imper-
atively demanded of Judge Hardy to interpose his official authority, and
check this gigantic swindle upon public justice. A Judge of the highest
Court of original jurisdiction in the State, and as such sworn to see that
the law^s are faithfully administered ; the conservator of the Constitu-
tion, of the laws of the land, of public peace and order; the custodian

625

and arbiter of public and private rigbts. his official oath is a solemn in-
junction upon him to watch vigilantly the currents of justice, and see
to it that they run pure and uncorrupted. But we are not without the
evidence of eminent lawyers and jurists as to what was the oflScial duty
of Judge Hardy upon the occasion of this trial. Judge Lake, for many
years a District Judge in this city, and a lawyer of twenty years expe-
rience, tells you that in case of a palpable omission of duty on the part
of an Attorney, in the trial of a cause, it is the duty of the Judge to
interpose ; that it was the duty of Ilardy, upon the trial under consider-
ation, to have taken the examination of jurors into his own hands; that
of his own motion he should have directed a continuance of the case —
the District Attorney having used due diligence — one day, one week, two
weeks, three weeks, or for the term, if necessary, in order to procure
the witnesses on the part of the State. He tells you that in the trial of
a capital case, it is the official duty of a Judge to see that justice is
done.

His testimony is confirmed by that of Judge Freelon, for many years
a Judge of the County Court in this county. It is confirmed by the
sworn experience of Mr. B3-rne and Mr. Brown, both of them formerly
District Attorneys in this county. They both tell you, that often in
their practice as prosecuting officers. Judges have interfered and exam-
ined jurors as to their qualifications to try a cause.

There is also the testimony of other lawyers of eminence from differ-
ent quarters of the" State, that such is the duty and the custom of
Judges.

Moreover, we have the testimony of members of the Calaveras bar,
that such has been the practice of Judge Hardy in his own District.
Mr. Gatewood tells you that frequently Judge Hard}' has thus interfered
in the trial of criminal cases in which he has been employed in the de-
fence. In one case, he testifies that Judge Ilardy carried this interfer-
ence to such a length, that upon the adjournment of the Court he com-
plained of it to him, and that Judge Hardy replied, '-I will not submit
to a damned farce in the empanelment of juries in my Court." This saint-
like Judge's sense of dut}* is correct and quick in cases comparatively
unimportant in his own District. But when he comes to another paral-
lel of latitude, when he gets to Marin County, and presides over a trial
involving a most heinous crime, concerning which the voice of the whole
State catls aloud for a rigid vindication of the law. he squares his official
conduct b}' another rule. He sits with the silence and indifference of a
mummy, and permits the consummation of a trick upon justice.

His defence is, that a Judge should never interfere; that he should
take a case and dispose of it as it comes from the unclean hands of
wicked Attorneys. The defence is revolting to the sense of judicial
decency, and to every instinct of integrity, public or private. It is a
denial of Judge Hardy's own previous practice, and totally ignores his
own previously confessed sense of duty. He saw before him a dishonest
District Attorney playing into the hands of the defence, and surrender-
ing to it the rights of the State at every step. He Avould not sit as
Judge and •' see a damned farce enacted in the empanelment of a jury in
his own District."' It would have been well for him, and for the honor
of the Judiciary of the State, if he had been moved by a little of the
same kind of official morality while presiding over the trial of Terry
for slaughtering Broderick.

Mr. Williams. — The witnesses do not testify that it was Judge Hardy's
unilbrm practice to interrogate jurors as to their qualifications.
79

626

Mr. Eclgerton. — Perhaps there is not sufficient evidence to show what
his uniform practice in this respect was. Of course I do not supj50se a
Judge should interfere in an}- manner in the trial of a case, unless a
dereliction of dutj- on the part of the Prosecuting Attorney is manifest.
But it seems, Judge Hardy's own sense of his official duty has prompted
him in other criminal cases that have been tried before him, to take the
examination of jurors out of the hands of Counsel, and carry it on him-
self. Gatewood complained to him for so doing, and he told him he
"would be damned if he would have a i'arce enacted in his Court."

I am trying Judge Hardy's conduct in the trial of Terry by his con-
duct, and his own confessed sense of his judicial dutj' in other trials.

Again, Judge Hardy failed in the performance of his duty, in not, of
his own motion, ordering a continuance of the case until the witnesses
could arrive. He kncAv that subpoenas had issued in due time, and that
\>\\Qy had been placed in the hands of the officer for service. There was
nothing to interfere with such a continuance. The term had not yet
expired by several days. There was no other case to be tried. The
subpoenas were returnable at ten o'clock ; they had been served, were mo-
mentarily cxjiected to arrive, and actually did arrive within two hours
after the verdict was rendei-ed. The District Attorney applied to the
Court for an attachment for them.

Mr. Williams. — [Interrupting.] He did not apply for an attachment.

Mr. Eilgerton. — 1 Stand corrected. I am giving this District Attorney
too much credit. He was too dead to his sense of duty to apply to the
Court for any delay in the case.

Mr. WiUiaia^. — The Judge otfcred it to him; asked him if he would
take an attachment.

Mr. Edjcrtoa. — But Judge Hardy well knew, and every lawyer well
knows, tliat no attachment could issue. The subpoena had not been re-
turned ; there was no evidence before the Court that the witnesses had
been served, and were in default.

But if, as General Williams says was the case, the District Atrorney
had used due diligence in taking out his subpoena and placing it in the
hands of the officer for service, was he not clearly entitled to a continu-
ance of the case ? Was it not his professional duty, and would not an
honest prosecutor have made his affidavit, setting forth the facts, and
upon that atiidavit have based an application for a continuance? And
would it not have been the duty of the Court to have granted it ?

Judge Hardy has been held up to you Ijy his learned Counsel as a
Judge of great legal acumen. He knew that the offer of an attachment
was sham, and that the only remedy' was a continuance; and with the
palpable evidences he had before him of the dereliction of duty on the
part of the District Attorney, it was his duty to have ordered a continu-
ance of the case until the witnesses could arrive, of his own motion.

But, says General Williams, in his opening, '' Judge Hardy knew Terry
could not be convicted." I have before commented upon this most re-
markable declaration in another connection. I allude to it now for the
purpose of removing whatever false impression may have been pro-
duced upon the mind of the Court by the manner in which the learned
Counsel tried to explain this previous knowledge of Judge Hardy.

Mr. Williams. — Xo, Sir ! No, Sir ! Here I should have corrected yon
before. I said, that if Judge Hardy had the knowledge you attribute,
and the opening Counsel accused him of having — that if he was a rascal,
and knew that programme, he knew Judge Terry could not be convicted.
I never said he did know it.

627

Mr. EJgerton. — Perhaps it would not be safe for the learned Counsel to
appeal to the memory of those around him, to know whether he made
use of the expression I have attributed to him or not. He not only
made the declaration, as I assert, but went on to explain how Judge
Hardy knew a conviction could not be had.

He said, that under our statute, an indictment for duelling could not
be sustained, unless it was shown that the duel was fought "by previous
appointment. And then he read the officer's return upon the subpoena,
showing that McKibbin and Benham, the seconds of Broderick and
Terry, and, as he says, the only witnesses by whom the jjrevious ajypoint-
ment could be proved, were in "Washington, and had not been served
with the subpoena. I understood General Williams to add this, in ex-
planation of his statement that Hardy knew Judge Terry could not be
convicted.

Mr. WiUkana. — I understand that I did not do any such thing.

Mr. E'ljerton. — I am informed, by those around me, who heard the
opening of the learned Counsel's argument, that he did make the declara-
tion and the cxphmation I have attributed to him.

Mr. Williams. — Well, I know I did not ; no matter what any party in-
forms you. I said —

Mr. Edt/nfon. — [Interrupting.] Whether you did or not is a question
which the Court will settle between us. I submit it to the Court that
you did. It is immaterial to me whether you did or not, except for the
purpose I have before stated.

But the learned Counsel goes entirely outside the record when he says
that there was no testimony but McKibbin's and Benham's by which to
establish the " previous appointment."

Mr. William.^. — I assume that.

Mr. Ed<jerton. — There is no basis for such an assumption.

The return on the subpoena shows that David D. Colton and Thomas
Hayeg were both duly subpoenaed, and that they were present at the
Court House, read}' to testily, within one hour after the verdict of ac-
quittal was rendered. The history of that duel bears me out in saying
that both Colton and Hayes could have proved the " previous appoint-
ment;" they having acted as seconds, together with McKibbin and Ben-
ham. In contradiction to what has fallen from the learned Counsel, I
assert, that within one hour after the acquittal of Terry the witnesses
'were present, and every fact essential to his conviction could have been
established.

A thorough and impartial consideration of the facts of that trial can
leave no other conviction upon the mind than that it was a mock-
ery. In view of the overwhelming evidences of the collusion of the
District Attorney with the defence, his indecent zeal for the discharge
of Terry, his shameless abandonment of the public interest, and in
view- of the fact that Judge Hardy permitted all this villany to be
consummated in open Court, within Lis immediate observation, without
rebuke or attempt to arrest it — does not the conclusion irresistibly force
tself upon your minds that he, too, was in complicity with this iniqui-
tous scheme to cheat the law of its victim?

Are you satisfied that Justice sat there a virgin, clothed in spotless
robes, with bandaged eyes, the scales evenly poised in her hands, intent
on the pure administration of the law? Or was she a wanton, defiled
\)j venal corruption, sold to the embraces of a felon?

I should have thought, that in the midst of that solemn mockery, the
■host of the murdered Broderick would have knocked the accused from

628

his bench, as the ghost of Banquo knocked from his stool a certain other
noted character, distinguished for his treasons and his crimes.

There is no refuge for Judge Hardy, from the charge of the most
wicked criminality in his official conduct on that occasion, unless he flies
to the shelter of imbecility. Settle upon either alternative, and he is a
dangerous man to retain in the service of the Government.

The next branch of the case to which I call the attention of the Court,
embraces the charges set out in Articles First and Second, together with
specifications first, second, and third, in the Additional Articles. It
involves the conduct of Judge Ilai'dy in the case of Foster vs. Fritz.

Before proceedmg to a consideration of the facts of that case, I shall
notice and reply to the observations of the learned Counsel for the De-
fence, upon the characters of the witnesses by whom the Government
has sought to sustain the charges contained in these Articles and specifi-
cations.

The evidence under tliem is confined to that given by Brockway and
Allan P. Dudley.

The learned Counsel insists that Brockway is not worthy of credit, for
two reasons : First, he says, Hardy was a candidate for election to the
Judgeship in the fall following the transactions to which Brockway testi-]
fies as having taken })lace in the case under consideration ; that if the!
conduct of Hardy in that case was such as Brockway swears it was, he,I
Brockway. must have known that Hardy was a rascal, and unfit for a]
Judge; that Brockway has confessed, in his evidence, that he was an ac-
tive friend of Judge llardy in that canvass, and did all in his power t<:
secure his election.

The argument is, that, according to Brockway's own evidence, he
[Brockwa}'] was engaged in an attempt to foist a dishonest aspirant upoi
the Judiciary, and that tiierefore he is unworthy of credit.

The second, and last point of attack, is : That he is a co-conspij'ator ^
"William and Allan P. Dudley, in a plot to get rid of Judge Hardy; that,^
together with them, he has for a long time been engaged in a plot to
remove the accused from office; that he has originated and circulated
petitions at divers times to abolish his District; and that having been
foiled in all their attempts, they have at last resorted to the grand
inquest of the State, and deceived it into the presentation of Articles of
Impeachment against the accused ; and now seek, by means of false
swearing, to make this High Court the instrument b}' which to consum-
mate their conspiracy.

Let me carefully examine these specifications against the veracity of
Brockway.

And first, I submit that the evidence does not warrant the statement
that Brockway was an active supporter of Hardy in that canvass.

In the opening of the campaign, during the primary elections, Brock-
way advocated and worked for the election of delegates to the conven-
tion called to nominate a Judge, who were inimical to Hardy.

Hardy, however, succeeded in getting the nomination. He and Brock-
way were both members of the same party. They were both in good
and regular standing in that proud, arrogant, and dominant party,
known as the Buchanan-Administration-regular-organization-Democracy.

Every one here knows what rigorous, unwavering fealty was exacted
from all within the pale of that political order. One of its cardinal
tenets was, that no man was at liberty to think for himself, but must
subscribe implicit faith to the dogmas j)rescribed by the great political

ktgk pneit at the eapitdl of the BatMMi. That the U^lMst politieal d«t^
devoltue apoa the citix^ wm» to ghre a Ifiad. miu<Actihg. sad mq[«e»-
liouB^ adherence to whaterar ticket pam- iatruwe Bught make «pL
The great t-ilwman of that pany va$v al^eet'serrilsty ol* iiMiiTidaal opin-
>oa.^^^Mi aaeoMiitioBal obedience to the behests offower : and it held
impcno«» svajr oTer its me^bas. Diagent from any one principle in its
platfcim. opfMxatioB to any one d its candidates, no matter how im-
moval or compt. sealed the Asscatient's poGtieal domn. Its acme of
poGtieal momiity va5w to beliew in and disseminate the fiuth. and rote
ihe nnight tklDiet. It 2$ a hnmifiating: leiettkm npon repnblican insti-
tntioBf^ that sneh a pofitical tyranny dkoald em- haTe existed in onr
midit. Bnt that I ha^e not OTerchaiged the pictnie. i» swficiently at-
;eetcd by the history of that parly, its trinmphs. the evils it iniieted
3pon the coantiy. which we feel and deplMe to thu day.

Bkockway had the mirfbrtnne to be within the ~ legnhg oiganiiatiom.'"
And dodbtlessi he sqnaied his politick condnct by all its precepts and
T«gnlation£w He yielded to the &ith. and Toted the straight tkket. no
matter who was on it. He opposed Hardy np to the point to which,
aecordia^ to the code ot* his party. oppositMMi was pomissible. becaaan
he thon^t him a bad a^an. Bat the action of the nominating conTen-
don wn» his political law. and party ties commanded and reci»Ted his
obedience.

The impntatioa is tme. He <fid Tote ior Hard^ far Jndge of the ^^-
tcenthJndicial I>i»tnc;.knowinghimtobeabadman; and he mast abide
by the eHect that that misgnided Tote may hare npoa his Teiacity to-

3-r :5 it cnficient to dtscotedit hi$ testimony ? If so. the sworn word

: i-j. V of the moet apright and reracioas men in the coantiy mnsfc

nereancr p«B for nothing^in Coaorts of Jnstice. Sixty thoasand men in

this State woe Hadn* the aaaie rod of poiitieal <^if««saion tlsst Bro^-

way was^

I U^ard an ex-Govemor of this State, a gentleman who has filled the
highest and most r«spoi^ble positions in the gift of his coantiy. for-
merly a Bepresentative in Congrees frtMn CHiio. a United States S^iator
mim' tki? Ssate. and lately a lepresentatiTe of the nation in a most re^
sponsilv'' - --" _" ^ ■ *<" "^ 'dedare. in a pabGe speech, and about the same
dme. V was voting for Hardy, that he never TOted any

otho- iii»Li a >.-i-^-. i..iet. He was enjoimng npen his Democratic
biethren to vote l^e whole ticket, and nothing bat the whole tieket.
And bv wav of UlBStration ci his fidelity to his party, he declared that
he had knowingly \x>ted for a gamble- and a villain, for ^miff of this
oioanrv. simplrbecaase be was'the -= r^^lar nominee." [SiHisati<».] I
hardly think his constitnents in Ohio, or his constitn^its in Califonua,
wonld r«iect his testimony nnder oath, on this aceoont.

Jfr. WWimmuL — ^He was a Bemoerat. was he not ?

M-. EdftT^mL. — ^I understand he claims to be a Bepabliean now. [Mer-
riment.}

Srmmtcr PerHmt^ — ^He won't do SO any more then. [Benewed mein>

men!.]

Mr. Eiferiam. — ^I only ask for a little of the same kind of (Parity for
Mr- Brockwav.

Bat Brwrkway's vote for Hardy can be otherwise acconnted for. and m

: ru^nner whoUv consisi«it with "bis veracity. His ehoace oi Hardy, bad

i: wats- was the best he conld make anKHig the candidates running for

the office. His clients had great pecnniaiT mtnrMts at stake and in Kti-

630

gation in thcat District. Badgly, one of the opposing candidates, had
been employed iigainst them. And, as is often the case, the litigation
had engendered a bitter partisan feeling between them and their clients.
Brockway's clients were fearful of the power and influence of a Judge
who was so hostile to them as Badgly Avas. They impei'atively de-
manded of Brockway that he should support Hardy. Every law3'er in
this Court well understands, and will properly api)reciatc, Mr. Brock-
way's motives in voting for Judge Ilardy under the circumstances that
he did. There is no practising Attorney in the State but will exert him-
self to secure the election of a Judge who has had the least to do with
litigation in "which his clients are interested. And it is an undisguised
fact, that lawyers of the highest eminence and character in the State
have frequented political conventions, and used their influence to secure
the nomination of candidates to the office of Supreme Judge, because of
certain theories of the law entertained by them, favorable to the inte-
rests of their clients. And in saying this, I make no reflection on any
Judge in the State.

Then, as to the petition to abolish the District : It is true Brockway
did sign such a petition. But his signature may be accounted for in
many ways, other than the harboring of any hostility toward Judge
Hard}'. There is no doubt that that District was created for political
purposes, and for the especial benefit of Judge Hardy. Judge Creanor,
out of whose District the Sixteenth District Avas carved, wrote to the
Legislative (,'ommittee to whom the bill creating the new District was
referred, that there was no necessity for its creation, because he could
easily do all the business of the two counties of which it was to be com-
posed. Brockway may have signed the petition because he thought the
District might well be dispensed with. Doubtless he signed it because
he felt that Judge Ilardy Avas an incubus upon the Judiciar}' of the State;
because he had suffered long from his maladministration of the laAv, and
from his partiality and oppression on the bench ; and because he thought
the speediest mode to get rid of him was to abolish his office. *

Nor is Brockway alone in signing the petition. It Avas pretty gene-
rally signed by the members of the Calaveras County bar. Mr. Adams,
a prominent member of that bar, and a Avitness here for Judge Hardy,
signed it. The learned Counsel has not asked you to discredit his evi-
dence, because of his connection with that petition.

Again : the learned Counsel places great stress 'upon the conversation
of Brockway Avitli Farle}'. They met at Mokelumne Hill, and had a con-
versation, in Avhich Farley testifies that Brockway told him, " This pro-
ceeding against Hardy is a damned persecution, got up by the Dudleys
because they could not use him any longer."

BroclcAvay does not deny this conversation. But it is susceptible of
an explanation that is entirely compatible Avith the truth of his testi-
mony in this case. He kncAv he Avas talking to one of Hardy's most
intimate friends, Avho Avould communicate to him every Avord he uttered.
He had a large and valuable practice in Hardy's Court. He kncAv that
Hardy Avas a vindictive and a dangerous man ; that he Avas in the habit
of playing into the hands of his friends, CA^en Avhen on the bench, and of
oppressing and tyrannizing over his enemies. He kncAv that if Ilardy
should be restored to the exercise of his office, and should carry back
with him the memor}'^ of any act or Avord on his part adverse to him,
that he would be a sure victim to Judge Hardy's judicial corruption and
wrath.

I submit to the Court, and with entire confidence, that there is nothing

631

in the testimony of Brockway, nothing in his conduct or conversations,
anterior to or preceding this trial, that is at all inconsistent with the
truthfulness of his story. The attack that has been made upon hiin is
most unjust, and unwarranted by anything disclosed in the case. It was
a veiy necessary part in the plan of tins defence, however, to break
Brockway down, and if the attempt fiiils, the fate of the accused is
sealed.

Now, as to the facts of the Foster and Fritz case.

It was an action brought by the firm of Dudley & Adams, for Foster,
against Fritz, for money had and received. On the trial, the plaintiff
offered certain assigned promissory notes in support of his case. Mr.
Brockway, who appeared for the defence, moved for a nonsuit, on the
ground that promissory notes did not constitute competent evidence to
sustain an action for mono}' had and received. The motion for a non-
suit was overruled. Immediately npon Hardy's leaving the bench.
Brockway accosted him, and said: "I was entitled to a nonsuit, Jim,
and 3-0U know it." To Avhich Judge Hardy replied : " You are a damned
fool. I know what your clients Avant, better than you do. Lightner
(who was one of the defendants) is a friend of mine, and I am willing to
serve my friends. A new trial is worth more than three nonsuits. You
move for a new trial, and you'll get it." The motion for a new trial is
made ; it passes over the August term of the Court, is not heard until the
November term, and then tlie new trial is granted. The case dra2:":ed
its slow length along, until the plaintiff Avas exhausted, and finally it was
settled ; in what manner Ave have been precluded from shoAving by the
objection of the Defence. When the NoA-ember term arrives, BrockAvay
swears that Judge Hard}' told him he need not file any brief, as his mind
was made up. and that he should grant the ncAV trial. Allan P. Dudley,
the Attorney upon the other side, testifies, that on the day the ncAv trial
Avas grante(i he met Hardy on the street, a short time before going into
Cour.t, and that Hard}' said to him, " You need not file any brief in that
case, as my mind is made up, and I am going to decide it in your favor."
Dudley further testifies that in consequence of this intimation he filed no
brief in the case. And both Brockway and Dudley testify, that the
motion Avas decided Avithout any brief being filed, or any argument being
heard on either side.

Behold this model Judge ! this bright exemplar of judicial morality !
prostituting the great trust reposed in him by a generous and confiding
people, to his private friendships. I beg pardon : this high handed act
of judicial depravity Avill not bear the coloring Avhich the accused sought
to borrow for it, from the partialit}'- of friendship.

The exalted sentiment of friendship forms no element in the composi-
tion of such a villanous character as the development of this case has
cast upon the Defendant. It is a kind of friendship in which is seen
the glitter of a bribe.

I readily admit there is nothing extraordinaiy or unusual in the com-
mission of an error by a Judge, in the trial of a cause, and its cprreetion
by o-ranting a ncAV trial ; that there is nothing in this alone which raises
the slightest presumption of wilful misconduct in office. But the cir-
cumsta'nces of this case flisten the imputation of corruption upon Judge
Hardy beyond the possibility of removal.

The case was thoroughly tried at the time BroclcAvay submitted^ his
motion for a nonsuit. "lt'A\^as elaborately argued, and the authorities
were read at length on both sides. It is fair to presume that Judge
Hardy's impressions of the law of the case Avere at that time clear, and

632

that bis mind Avas sufficient!}^ enlightened to render an intelligent judg-
ment. And yet, long after this, after the lapse of many months, after
his mind had been distracted by the trial of an hundred causes ; after
politics had intervened, and he had participated in all the excitement
and dissipation of a political campaign, without one word of solemn
argument, without the aid of a brief, without the addition of a single
light to those he formerl}' had before him, without a suggestion of error
in his tirst ruling, from any quarter, he reverses his former judgment, and
grhnts a new trial.

Is this usual ? Did it ever happen in the professional experience of
any member of this Court ?

My experience teaches me, that after a case has been once thoroughly
tried before a Judge, it requires a good deal of research, and a good deal
of demonstration, to point out error and get a new trial.

Instead of requiring argument and authority to convince him of the
error of his former ruling, he suppresses it. By means of an infamous
lie, he dupes Dudley, and cheats him into the belief that a new ti-iul Avill
not be granted, and that he need make no argument and file no brief

But, says the learned Counsel, Dudley's evidence is not to be ci'cdited.
He has brought infamy upon himself by his own story, he says. He
reminds you -of the disgraceful transaction in the case of Robinson
against Lcger, in wliich the firm of Dudley & Adams had once tried the
cause for the ])laintitf, and subsequently Dudley took a fee and appeared
for the defendant.

I confess I see much in the character and the professional conduct of
Allan P. Dudley that merits the severest denunciation. I am no apolo-
gist for him, nor would I ask the credence of any honest man to his
story unless most strongly corroborated. I am not called upon by any
exigency of this prosecution to vindicate him from the opprobrium that
has justly fallen upon him.

But let me remind you, and the learned Counsel who has so eloquently
inveighed against this flagitious conduct, that it was perpetrated in the
presence of Judge Hardy, and he not only permitted it, but suffered it
to go unrebuked. When Dudley appeared for the defence, and applied
for a continuance, Mr. Brockway opposed the application, and he objected
to Dudley's acting for the defence, on the gi'ound that he had already
tried the case once on the other side ; that he had been formerly asso-
ciated with Brockway himself on the same side. Brockway thought it
a little strange that tlie very firm he had himself emplo^-ed to assist him
in the trial of the case, on account of their supposed influence with
Hard}', should so throw him ort", and work against him. He stated the
facts to Judge Haixly in open Court, animadverted severel}' upon Dud-
ley's conduct, and said he should not appear for the defence unless the
Court decided that a member of the bar could take a fee on both sides
of the same case. Mr. George, another member of the bar, and prior to
this time the leading Counsel in the case, desirous that it should be
tried and disposed of, upon witnessing this strange and unprofessional
conduct, withdrew from the case, in disgust. Whereupon Judge Hardy
caused an entrj^ to be made in the minutes of his Court to this effect:

"EOBINSON

vs.
LectEr.

" This cause, upon application of A. P. Dudley, is ordered continued.
Mr. George withdraws from the case.

[Signed] "James H. Hardy, Judge."

633

Brockway felt outraged that the cause was not tried. He felt that an
3utra<>:e had been committed upon the noble profession to which he
belonged.

When Hardy came off from the bench, Brockway expressed his dis-
approbation of the proceeding, and Hardy says to him, of Dudley, "Let
him go ; tlie quicker he kills liimself, the better for you."

Admit (as I do admit) that Dudley is in professional disgrace ; that he
has brought disgrace upon the bar of the State. His conduct, neverthe-
less, had the sanction of Judge Hardy. You have the uncontradicted
evidence of Brockway, and you have the evidence of the minutes of
Judge Hardy's own Court, that he knowingly permitted this perfidious
conduct. Is it not a little difficult to '' distinguish between the Justice
and tlie thief ?" If this conduct is sufficient to bring infamy upon Dud-
ey, in what light does it place the Judge who tolerated and sanc-
tioned it ?

The learned Counsel, in his graphic st3de, has characterized the Cala-
veras bar as a " sink of dishonoral)le lawyers." If the currents of justice
have run muddy in that District, the}' have been corrupted at the foun-
tain head. If the&e lawyers are what General Williams says they are,
if that bar is what he has described it, how will he characterize the Judge
who presides over it, and winks at all this wickedness ?

Depend upon it, the moral tone of the bar derives its standard 'from
the character of the Judge who presides over it. If he be learned in the
law, dignified in habit, and exem])lar3' in character, he inspires an awe, a
sense of respect, a certain moral fear, that precludes the attempt at dis-
honest practices before him. AVho ever heard of such disreputable pi*o-
ceedings before the Nortons, the Fields, or any other honest, upright
Judge in the land ?

Judge Creanor once presided over this same bar. We hear of no such
iniquity being attempted before him. It is not until this wicked and
huckstering Judge, now on trial, comes to preside over this bar, that its
immoral instincts begin to develop, and this series of judicial atrocities
commences.

The learned and eloquent Counsel left his picture incomplete. If he
had put upon his canvas the dark and sullen figure of Moral Depravity
incarnate, in the person of this perfidious Judge, if he had added to his
tirade upon poor Dudley, and applied to the accused, now on trial, every
vituperative epithet his'gcnius for invective could suggest, ho would have
crowned his work and made it perfect.

But let us see how far Dudley is corroborated ; for only so far do I
ask 5'ou to give credit to his story.

He is corroborated by Brockway. If Judge Hardy would descend to
such shameless conduct as he did with Brockway, is it difficult to believe
he would play the knave with Dudley ? He is further corroborated by
the history of the case. He is also corroborated by the indisputable fact,
that Hardy was in the common habit of dealing with other Attorneys
of his Court in the same manner he did with Brockway and Allan P.
Dudley. William L. Dudley has testified to kindred circumstances in
the course of his practice before Judge Hardy, wliich show that he has
a natural propensity for these judicial tergiversations. _ /

The learned Counsel for the Defence has indulged in a severe criticism
upon the character of William L. Dudley, both professionally, and for
truth and veracity. I am happy to be able to vindicate him from every
aspersion that has been cast upon him. He has passed through the
ordeal of a most trying cross examination, and all his conduct has been
80

634

unreservedly disclosed. And he has come out of that ordeal without a
moral scar, without an unprofessional taint upon him. There Avas that
in the straight-forward, undisturbed manner in which he delivered liis
evidence, in the perfect good temper Avith which he received and parried
every attempt of the ingenious Counsel to disconcert and entrap him,
that must liavc left upon the mind of the Court an abiding impression
of his truthfulness.

He tells 3'ou that Judge Hard}", in the trial of the case of McDermott
against Higby. approached him and wished him to consume as much
time as he could in that trial. The case of Mcrcier against Denny was
the next case set for trial. Denny, the defendant, was anxious to have
it disposed of at that term of the Court. He was in perfect readiness
for a trial, and there was no pretext for a continuance. But, for some
reason which Judge Hardy has failed to explain, he did not wish to have
it tried. Dudlc}', when thus applied to for time, replies, "All right ; I'll
consume as much time as I can. provided it docs not interfere with the
interests of my clients." To which Judge Hardy replies, " Damn it, I've
told you I want time. Don't you understand me ?" Dudle}', like an
honest man. goes at once to his client, Denny, and tells him what had
transpired between him and Judge Hardy; and Denn}^, fearful lest a
refusal to grant Judge Hardy's request would jeopardize his case,
assented, and Dudley did consume all the time he could.

But we are not without further light upon this subject.

Denny has been on the stand and testified before you. He tells you,
that, at the same time, Judge Hardy had a conversation of the same
character with him. In that conversation Hardy admitted he had applied
to AVilliam L. ])udley to consume all the time he could in the McDermott
and Higby case, because he did not want to try the case of Mercier
against De^n3^ Upon being interrogated as to his reasons, he replies,
"Suppose 3'ou were Judge, and a case should come before 3'ou, and you
knew one of the parties Avas a damned scoundrel, Avould 3'Ou Avant to try
it?" Denn3' asked him Avho the scoundrel AA'as. If it AA^as himself ? To
which Hard3' replied in the negative. Denny then said, " Then I am to
understand that some one has tried to bribe 3'Ou ?" To this Judge Hardy
made no reply, but simply shrugged his shoulders.

Such is Denn3''s narrative.

NoAv let us analA'ze this remarkable couA'crsation. Who Avas the party
to the suit of Mercier against Denn3' that Avas the "damned scoundrel y"
Evidenth' it Avas not Denn3'. Hard}- himself exonerates him. Mercier
was Hard3''s bosom friend. He had a fine garden and A-inc3'ard, from
which, it is in proof, Hardv' Avas receiving presents of A'cgetables and
wine. It is a significant fact that Mercier Avas the part3^ AA'hose interests
were to be subserved by " time." If Hard}^ had been approached by
him with a bribe, for the purpose of obtaining delay in the trial of his
case, his application to Dudle3" to " consume as much time as possible in
the McDermott and Higb3' case," was in singular unison Avith Mercier's
interests and AA-ishes.

Is Judge Hard3''s conduct at all compatible Avith the idea that he was
80 pure of heart, so conscientiousl3' squeamish, as to be unAA'illing to try
a cause because he entertained an opinion that one of the parties Avas
a " damned scoundrel ?" I have been taught that Judges should sit upon
the bench AA'ith their eyes bandaged as to avIio the parties are before
them ; uninfluenced b3" opinions of jji-ivate character.

If Judge Hard3^ had been approached Avith a bribe: if one of the par-
ties to the suit had been guilty of conduct toward him, as Judge, that

G35

merited the application of the epithet "damned scoundrel," why did he not
expose and punish liim ? Yet nothing of this kind is heard from Judge
Hardy. He takes no notice of it, except to carry out the purposes of the
rascality.

It is true that something was said by him to Denn}- about getting
another Judge there to try the case at the next term. But if it was his
object to get the case before some other Judge, why did he not announce
from the bench, the proper place, that he was disqualified, by ]n'ejudice,
to try the cause, and in his place, as Judge, order a continuance ?
"Why this sneaking, mysterious, and secret log-rolling, with Dudley, to
get him to consume time ?

After such samples of Judge Hardy's judicial conduct in other cases,
is it not easy to believe he was guilty of the conduct ascribed to him, by
lirockway and Dudle}^ in the case of Foster against Fritz ? Their tes-
timony derives support from his entire judicial character.

But, says the learned Counsel, Judge Hardy had no motive to perpet-
uate the litigation in the Foster and Fritz case. And Mr. Lightner has
been put upon the stand to prove that no relations of intimacy existed
between them.

It is in evidence that Judge Hardy has repeatedly said, that whenever
he had any discretion to use he would use it for his friends. What de-
gree of intimacy was necessary to secure to a fortunate friend this abuse
of judicial discretion, does not exactl}' appear.

it is in evidence, however, that Lightner and Hardy were members of
the same political party, and that they were both acting together on the
same side, in the convention that nominated Hardy for Judge ; that at
that same convention Lightner was nominated to the Assembly; and
that the Legislature of which Lightner was a member, created the Six-
teenth Judicial District, for Hardy's especial benefit, and that he [Light-
ner] actively sujiported the bill creating it.

Judge Hardy appears to be a man wlio estimates every one by a cer-
tain price. A desire to discharge political obligations to Lightner is the
most creditable motive to which Judge Hardy's conduct in the Foster
and Fritz case can jiossibly be ascribed.

The clock admonishes me that my time is rapidly expiring, and I must
hasten on.

I have barely been able to marshal the facts of the Foster and Fritz
case before you, and must leave you to make your own deductions as
to the conduct and motives of the accused.

If you believe Brockwav; if you believe Allan P. Dudley; if you be-
lieve William L. Dudley, and Denny; if you believe the minutes of Judge
Hardy's Court— the conduct of the accused in that case was most base
and dishonorable, and can be attributed to none but the most corrupt and
unworthy motives. And let me remind you, that this mass of evidence
is uncontradicted by a single witness or a single circumstance in the case.
By every established rule'^of evidence, it is entitled to full credit in this
tribunal. Each distinct fact narrated by these several witnesses, forms
a part of a complete and consistent whole. In all its details, it is in en-
tire keeping with the probability of truth.

Is such a man, as this testimony shows Judge Hardy to be, fit for a
Judo-e of a Court of the highest original jurisdiction in the State ?

Is' such a character, as the testimony shows Judge Hardy to possess,
an ornament to the Judiciary? _

Would it be wise to retain the accused in this exalted position .'' io

636

continue him as Judge of the Sixteenth Judicial District, and let him
"use his discretion for the benefit of his friends?" To let him refuse
nonsuits, and grant new trials, and perpetuate litigation — to wear out
and exhaust honest litigants; to defeat legal and equitable claims, "for the
benefit of his friends ?"

Why, in one case alone — just referred to — the accused committed offi-
cial iniquity enough to turn an ordinarily sensitive criminal to stone.
And yet, you are asked to retain him in oflfice, with all his sins upon him.

In the name of the people of this State ; in the name of that noble
profession I represent; in the name of society, wiiose highest and most
vital interests he has despised and trampled upon ; in the name of a
Christian and enlightened jurisprudence, upon which he has brought dis-
grace ; in the name of the Judiciary of the State, upon which his high
crimes and misdemeanors have brought sliame and re])roach, I demand
the terrible sentence of this High Court of Impeachment: that he be re-
moved fi'om office, and that he be perpetually debarred from holding any
position of honor or profit under the Government of this State.

Such a punishment will be trifling, in comparison with the magnitude
of the crimes you have to reach ; and the honor and dignity of the State
imperatively demand its infliction.

I now pass to a consideration of the Article, and its specifications, im-
puting to the accused disloyalty to the General Government.

Before detailing the evidence, I desire to take a brief view of the law,
as applicable to the charge contained in this Article.

I do not maintain that there is anything in the allegations, or that any-
thing has been disclosed by the evidence in the case, which constitutes
treason, as that crime is defined either in the Constitution of the United
States, or of the State of California; nor is it necessary that I should.
The charges brought against the accused, in support of which evidence
in adduced, although not amounting to treason, constitute, neverthe-
less, a high crime and misdemeanor, over which you have full jurisdiction,
and which it is the duty of this tribunal to punish, by removal from of-
fice, if proven upon the accused.

The legal question for you to determine, is, " Do words, such as are
ascribed to Judge Hardy in the Article and specifications under consid-
eration, constitute an impeachable off"ence ?" And I maintain that they
do. They are seditious, and punishable by indictment or information at
common law.

Says Judge Blackstone, in his Commentaries upon the Common Law :
I 5" It is now well settled, that, both at the common law and by statute
of Edward III., the speaking of seditious words is a high crime and
misdemeanor."

In Wharton's American Criminal Law", it is said :

" Every man may publish temperate investigations on the nature and
form of government ; such matters are proper for public information ;
but if such publication is serh'tioush/, malicioush/, and icilfullij aimed at the inde-
pendence of the United States, or the Constitution thereof, or of any other
State, the publisher is guilty of a libel. Important as is the privilege of
the press, if it be so employed as to disturb the peace of families, or the
quiet of society, even where the truth alone is uttered, it becomes sub-
ject to indictment. In England it has been said, in illustration of the
same doctrine, that, if a man curse the Queen, wish her ill, give out
scandalous stories concerning her, or do anything that may lessen her
in the esteem of her subjects, may weaken her Government, or may raise

637

jealousies heticeen her and her people ; or if lie deny the Queen's right to
the throne, in common and unadvised discourse, (for, if it be by advtsedly
speaking, it amounts to privmunire.) all these are sedition. It was said
by Lord Ellenborough, that if a publication be calculated to alienate the
ajfcctions of the people, hy hrlnging the Government into disesteem, whether the
ej-pedient resorted to be ridicule or oblogvt/, the writer, p>uhlisher, etc., are punish-
able. "Whether the defendant really intended, by his publication, to
alienate the aitections of the people from the Government, or not, is not
material. If the publication be calculated to have that effect, it is a
seditious libel. In the language of a still greater authority: 'If men
shall not be called to account for possessing the people with an ill opinion of the
Government, no Government can subsist ; nothing can be worse to antj Govern-
ment than to endeavor to procure animosities as to the management of it; this
has alica>/s been looked upon as a crime, and no Government can be safe unless
it be punished.' "

And, again, the same authority says:

"Seditious words, though not in writing, are in themselves indictable."

Again : Judge iStory, in his treatise wpon impeachment and upon im-
peachable offences, says :

'* Suppose a.Iudge should countenance or aid insurgents in a meditated
conspiracy or insurrection against the Government. This is not a ju-
dicial act; and yet it ought certainly to be impeachable."

I submit that these authorities clearly set forth the legal rule by
which you are to judge the accused.

If bj- this discourse with his fellow citizens he has sought to weaken
the General Government; if he has attempted to raise jealousies be-
tween it and its subjects ; if he has sought to alienate the affections of
the people by bringing the Government into disesteem; if he has at-
tempted to possess the people with an ill opinion of the General Govern-
ment, of the Constitution and Laws of their country; if he has counte-
nanced or aided the gigantic conspiracy now going on against the Con-
stitution and the Government, he has committed a high political crime
and misdemeanor — one for Avhich he is impeachable, and should be re-
moved from office.

Of course, the patriotism and loyalty of the Defendant must be meas-
ured by the evidence given under the Article which charges sedition and
disloyalty. It is fuH}- proven that at the times and places alleged, he
uttered the seditious language specified.

The Court, in its extreme liberality, has opened broad the door to him,
to show, by his declarations and his conduct at other times and on other
occasions, 'that he is in reality loyal and true to his Government; that
these seditious " toasts," these disloj^al expressions, and his unpatriotic
conduct on various occasions, do not afford a true reflex of his political
sentiments and affections. That these "toasts" were drank, _ these
declarations were made, and this conduct w^as enacted, under circum-
stances which raise the inference that it w-as only a "joke;" that it was
onlv " idle political badinage," as the learned and eloquent Counsel has

It is for you to determine whether a Judge of the highest Court of
original jurisdiction in the State, sworn to support the Constitution and
the^laws, in times like these, that so sorely " try men's souls " ; while
calamity and disaster are gathering upon us, threatening the stability of
our institutions, aye, the very existence of the Government itself— I say
it is for this loyal Court to determine whether, at such a time, and in

638

such a crisis of our Government and institutions, a Jiuhje. may practise
this kind of joking, and "idle political badinage," with impunity.

But let us examine and see whether these declarations wore made,
these toasts drank, and this conduct enacted in "joke," in " idle polit-
ical badinage," or Avhcther they are the wicked imaginations of a wicked
and treasonable heart.

I commence Avith the scene in the saloon at Jackson, in Amador
County. Judge Hardy enters with a party of gentlemen, and calls for
a drink. It is a very public place, much frequented, and there were
many persons present on this occasion. Upon getting his drink. Judge
Hardy gives the following toast : " Here's* to Jetf. Davis, and the South-
ern Confederacy." This specification is uncontradicted. The Defendant
answers to it by saying, " it was a joke." But the circumstances under
which it was said, and immediately following, show that Judge Hardy
was speaking his real sentiments. It certaiidy was not taken as a joke
by those present. The party present were strongly Union in sentiment.
Davis, a Union man, who was present, and who was much affronted at
the offer of such a sentiment, took it up, and they had an altercation
about it.

If Hardy was joking, if that was not a wicked emanation of his heart,
why was there such a scene there, as was testified to here by Severance,
and particularly by Allen, who says they had loud words, altercating?
Men joking about such subjects, in these times, acknowledge the joke.
If they ever practise such jokes, they do not have loud words, get angry,
and quarrel over it.

Mr. William^. — Judge Hardy drank to Lincoln, on that occasion, sev-
eral times.

Mr. Edgerton. — He drank to Lincoln, because he dare not do otherwise.

Follow him out into the streets at Jackson that night : shouting huzzas
for Jeff. Davis, ivntil he wakes up the slumberers in the town. He dis-
turbs the public peace with his seditious declarations. Go down to Chile
Gulch, and there, again, you find him shouting these same huzzas to Jeff.
Davis. Go to Mokelumne Hill, and there he says : " The Constitution is
gone to hell." He goes to Sacramento, and there he says : " Here's to
Jeff. Davis, and the Southern Confederacy ! "

Is not it cai'rying the "joke" a good ways, when you come to spread
it all over that territory, and all over that time that intervened?

Now let us see what this " loyal " Judge does in his sober moments.

Mr. S. B. Axtell comes upon the stand and swears that he had a solemn
and deliberate argument with him, when he was in his sober moments;
that he took up and discussed the question with him; that he acknowl-
ed<'ed he was a Secessionist, and tried to defend that side of the case, and
went so far as to say that a foreigner coming before him for naturaliza-
tion, entertaining the same opinions that he did in regard to secession,
and the rights of the South, could not be admitted by him to citizenship.

Was there any "joke" about that?

Why, he tells Brockway, in a sober, deliberate conversation, that he
had not the position that he was entitled to here; that he was entitled
to a higher position, and when he got assurances that he could get the
position that he was entitled to, at the South, he would resign, and go
and get it.

Again — and this comes pretty near to treason. It is the very sub-
limated essence of sedition. He finds a couple of United States soldiers,
knows that they are enlisted, knows that they are just going to be sworn
into the service of their country, and ho tampers with them, tells them

639

that tbey arc on the wrong side, that they ought to be on the other;
and when asked by them wh}^ he did not resign — " Oh ! let's go and take
a drink." And lie goes so far there with his damnable sentiments as to
arouse the indignation of the compan}', and they were going " to tear
him all to pieces, and throw him overboard," as one of the witnesses
says ; and these two men had to take him to his room, in order to pro-
tect him from the assaults that were then and there threatened to be
made upon him by the enraged soldiers.

The idea of his trying to tamper with and corrupt the patriotism of
two of General Williams' Republican friends — as they were ! [Merri-
ment.]

Mr. Williams. — lie could not do it.

Mr. Ed/rrton. — What says Mr. Charles P. Dudley — this conspirator, as
General Williams calls him? I have not heard a word of imputation
upon his veracity, in all this case, except what has been said by General
Williams.

Mr. Williams. — His brother (Allan P. Dudley) said he was a liar, in
open Court.

Mr. Edf/erton. — Charles P. Dudley says, that immediately upon the
news of the battle of Bull Eun transpiring here, Judge Hardy came home,
sober, and shouted, " Hurrah! we've licked these damned Yankees once."

Mr. Williams. — Abolitionists.

Mr. Eilijcrton. — I am a Yankee, and I confess I believe that was sedi-
tion. [Merriment.]

Mr. William.s. — " Sedition," to lick a Yankee ? [Merriment.]

Mr. Echjerton. — Yes, Sir.

Again. You recollect the testimony of Mr. Denny, who is a South
Carolinian. He says that he had two conversations with Judge Hardy
upon this subject, at two different times. No; Magee had two, Dcpny
but one. And Denny says that Hardy told him then and there, in that
discussion, solemnly and soberly — not in a drunken moment— that the
South was right.

Mr. Williams. — You are wrong there, I believe, Mr. Edgerton.

Mr. Eihjcrton. — I was going on to state what he said.

Mr. ]ram??t.s.— Suppose you read Denny's testimony, if you have time.

Mr. E(lgerto7i.— Then there is the testimony of J. G. Severance, who
swears that on one occasion Judge Hardy says : " The Stars and Stripes
are played out;"— calling the flag "an old woman's rag."

Mr Williams.— Yon have not got that right, either, Mr. Edgerton.

Mr Edgerton.— \Yq\\, he says Hardy said, " That is an old woman's
rag, and ought to be torn down." Does that suit you any better. Gen-
eral ?

Mr. Williams. — Yes, Sir.

Mr Edgerton.— It seems to me it is about the same thmg.

Mr Williams.— It suits me better, because it is what the witness stated.

Mr. Ed</erto7i.— Now, again : observe the conduct of the man on the
'bencli. (Testimony of W. L. Dudley.)

When persons come to him as applicants for citizenship, he can go so
far as to ask them whether they were ever members of or sympathizers
with the Vio-ilance Committee; but when interrogated by a member of
his bar why^'he did not ask them whether or not they sympathized with
Jeff. Davis or the Southern Confederacy— oh, that wouldn't do.

3Ir. Williams.—'' That wouldn't do ?" _

Mr. Edgerton.—'' That is covered by the other question.

Mr. Williams. — Precisely.

640

Mr. Edgcrton. — The Vigilance Committee would not cover it. Sympa-
thy with the Vigilance Committee, a local organization, or with any
local mob, would not cover it. As to sympath}- with the mob who are
trying to tear down the fairest fabric that ever was reared — no ques-
tions need be asked on that subject.

Frank Moore, too, testifies that at Angels' Camp — and here is shown
how much of a joking character this thing will bear — Judge Hardy
comes into his saloon, and demands some " Jeff. Davis whiskey." Frank
Moore indignantly comes from behind the bar, and says that he don't
keep any Jeff. Davis whiskey ; and Judge JIardy don't stop for any ex-
planations, lie does not propose to drink to Uncle Sam, or Uncle Abe.
or the Flag. He leaves, without saying a word.

Is there any joking there ?

Is it compatible with patriotism, is it consistent with the dignity of
the Judiciary of this great State, that this Judge should go bawling his
sedition in this manner about the whole country, from the north to the
south, in the saloons, the hotels, and the public streets, by night and by
day, until you can taste his treason in the very air ?

Is this Court going to keep such a man in a high judicial position,
sworn to support the Constitution and the Laws ?

What does that word " support " mean ? It is a word of comprehen
sive energy. It means active su]iport ; it means, that in times like
these, every energy a man has, and all his example, everywhere, should
be given for the benefit of his country, the Constitution, and the tlag.
And it means tliat he is guilty of a most foul and culpable crime, who,
if he be a Judge, descends so far from the dignity of his oflfice and the
character of a patriotic man as to be bawling these "idle jokes" and
this "political badinage" about the country.

It remains for you to determine whether, from the general character
that is proven upon Jpdge llardy in this particular, the specifications
that are set forth here, and proven, speak the sentiment of Judge Har
dy's heart, or whether an idle joke.

If he is loyal, keep him where he is, if you can consistently with the
other charges. But if he is disloyal — nay, I go farther — if j'ou believe
that he has been guilty of this joking and this kind of political badinage
to the extent proven — in the name of the loyal people of this State, I de
mand of this loyal Court his removal from the position he has been tem-
porarily suspended from.

He says the flag of his country is " an old woman's rag !"

It is the emblem of all that is pure and perfect in human government j
of all that is good and beautiful and true in human life. It is the banner
of the grandest and sublimest hopes; and, from victoiy to victory, now
upon more than an hundred battle fields, it still goes " marching on !'
[Great applause.]

Ao^ain : Dr. Peck heard the Eespondent make a political speech, before
a promiscuous crowd, at Copperopolis. You saw Dr. Peck. There can"
be no mistake about the credit due to his evidence. But what does he
say ? He tells you that Judge Hardy was at Copperopolis in company
with Judge Robinson and Mr. George, two notorious Secessionists ; that
each of them made speeches there ; that Hardy, in his speech, openly
defended the secession of the South; that he denounced the war; that
he expressed the deepest sympathy with the rebellion, and traduced the
General Government and those having control of it.

Those are his sober sentiments, publicly expressed before the people of

641

Calaveras County. Is it true— is it possible that be is an bonest, loyal
man, who can go round the country speaking in tbat strain ?

\ye do not want any such loyalty, cither on the bench, or in any other
position under this Government. There is no honesty in these last death-
bed professions of loyalty.

lie is a Secessionist; and one toast he gives explains it, perhaps. He
descended from his bench, and, within a few moments, goes into a saloon,
and says :

"I am oft" the bench. My mother was born in the South; and, by
God, I am a rebel, and I don't care a damn who knows it."

His flesh and blood, it seems, originated in the South ; and how many
a rank Secessionist may you meet who oft'ers that as his partial apology :
" My friends are in the South ; my sympathies must follow ni}^ kith and
kin."

I think I am fully warranted by this testimony, bringing it all to-
gether, in its proper connection — fully justified in saying that the occu-
pant of the bench of the Sixteenth Judicial District, sworn to support
the Constitution and the laws, is and has been a Secessionist of the very
darkest hue ever since these difficulties commenced.

Where are his associations ? And I call to j^our attention a homely old
proverb : •• A man is known by the company he keeps." Why, he is
training round the country, with Secessionists. He got into a party of
them at the St. George Hotel. A member of j^our Court (Senator
Irwin) began to suspect him. and thought his associations so highly im-
proper that he must go and touch him on the elbow and tell him he was
in a bad crowd — that they were Secessionists.

Now, I hold, that instead of being guilty of these "jokes," — as they
are caHed — instead of circulating this '-political badinage," it was Judge
Hardy's solemn duty, in view of the solemn oath he had taken to sup-
port the Constitution, to keep aloof from people of that stripe, and asso-
ciate hinisolf publicly, in times like these, with loyal men, and give them
the benefit of liis power, moral and social; that, instead of being about
the country, making speeches in behalf of the Southern Confederacy,
and tryiuL' to corrupt the sentiment of the State, instead of tampering
with "UncTe Sam's boys in uniform, and telling them that they are on
the wrong side, it was his duty to come out in public speeches and pub-
lic acts, defining his position as a loyal man.

There is one other point I propose to notice briefly.

[To General AVilliams.]— We may as well settle this, General, and see
who is right. I refer to the entry in the minutes in the case of Eobin-
80n vs. Leger.

I call the attention of the Court to page fifteen of the prmted testi-
mony. It is in reference to a fact that 1 asserted was disclosed by the
testimony-— that, as to Allan P. Dudley being guilty of unprofessional
conduct, which General Williams alleged yesterday, in assertmg that he
was not to be believed, all of that unprofessional conduct transpired in
the sight of Judge Hardy ; and that he did not even remove the Attor-
ney from his Court, did not rebuke the act, but tolerated it, and made
himself a party to it. Brockway testifies as follows :

" I thought then, as the responsibility of the trial would be thrown on
Mr. George, we would go to trial."

Mr. Willlaim.—Yon are not reading the order, or entry.
Mr. Edgerton. — It is in this connection.
81

642

3Ir. WiUiams. — "We admitted the testimony, but denied the order.

3Ir. Edrjtrton. — [Continuing to read.] " In a moment, A. P. Dudley-
came in. There had been some talk in my presence. I was sitting in
Leger's hotel, and Dudley came in and said he had been employed for
the defendants in the case."

You Avill recollect that Allan P. Dudley, and Brockway and Adams,
had been emjDloyed for the plaintiff. Adams had been, and that is the
same thing, so far as Dudley Avas concerned; it was their office. And
Mr. George was for the defendants. Brockway was Attorney of record
for the plaintiff in the case. Dudley and Adams had assisted Brockway
in the case before, in Judge Hardy's Court. Dudle}- and Adams were
both together, and made a unit, so far as this case is concerned.

Brockway continues:

•' I was sitting in Leger's hotel, and Dudley came in and said he had
been employed for the defendants in the case. I think Judge Hardy was
present ; he was out and in, and I think was present at this conversation.
I told Dudley he should not help try it for the defence ; that his office
had helped try it for the plaintiffs once, when Adams, his partner, had
sat by me and taken notes for the plaintiffs, and that he, Dudley, should
not act for the defendants. He said that he should ; that he had taken
a fee, and should help empanel a jury, at any rate. I told Judge Hardy
that Al. Dudley shoiikl not help try that case for the defendants, unless
the Court decided, in Court, that a man had a right to do it, after having
helped try it on the other side. The Judge told me not to do any such
thing ; ' Let him try it ; the quicker he kills himself, the better it is for
you.' "

Pretty advice and counsel that, from a Judge, in regard to such a
transaction I

Xow let us see the entry when the case was called. Page fourteen.

"The entry is on page 567. under date of case — 'J. R. Robinson et al.
ts. George Leger et al. — S. AV. Brockway appears for plaintiffs, and on
his motion the case is ordered set for trial Wednesday, February 12th.'
On page 580, under date of February twelfth, eighteen hundred and
sixty-two. the detailed entry in the record is: 'J. R. Robinson et al. vs.
Geo. Leger et al. — In this action, S. W. Brockway and A. C. Adams
appeared for plaintiffs, and W. P. George and A. P. Dudley for the de-
fendants; and, by consent of Counsel, the case is ordered continued.
W. P. George withdraws from the case ; whereupon the Court adjourned
until to-morrow at 10 o'clock. James H. Hardy.' "

There is James H. Hardy's signature to the minutes of the Court,
showing it.

Mr. WiUiams. — But where is the order that Dudley should be substitu-
ted?

Mr. Edgerton. — I never said anything about anj" order; of any order
substituting anybody.

I say that transaction was known to Judge Hardy. The minutes of
his Court, over his own signature, show that he personally knew of this
disgraceful transaction, which General Williams says ought to have dis-
barred Allan P. Dudley. And Judge Hardy never even rebuked it, but
on the contrary, says to Brockway : " Let him try it. The quicker he
kills himself, the better it is for you." Nice conduct for a grave^ an honest,
and an upright Judge !

643
Mfje HarJij—LQi mc call the attention of the Court to tlie fact, that

.. T 1 . , , -' "- my comments

upon It. i do not wonder at the sensitiveness of the Defence on that
subject.

Mr. W;n;avu.—\YQ are sensitive as to your misstatements. I know
you Avoulcl not make them intentionally.

Mr. E<lgerton.—(^QviQ\n\y not. But I think, if you would read the evi-
dence, General Williams, you will see that I am right.

Xow, then, there is one other charge, which I hold is amply proved
which ouglit to remove Judge Hardy from office. '

General Williams says you do not sit here as the censors of the pri-
vate morals of Judge Hardy. I agree to it. He can be as habitually
drunk as he pleases to be, out of term time, when he is not engaged in
the business of his Court, and perhaps not be punishable by Impeach-
ment. But if, while he is in the exercise of his office, while he is in the
discliarge of official duty, it is proved to you that he has been under the
influence of li(pu3r, has brought the high position that he holds, into dis-
repute, has been so lost to a sense of self-respect, and respect for that
position, as to be drunk upon his bench — I hold, that even in California
that ought to remove a judicial officer from place. And it is not proven
in one instance only. The evidence fully shows that Judge Hardy has
repeatedl}-, during the terms of his Court, and twice, while sitting as a
Judge, been intoxicated.

H. J. Tilden, on pages ninety-seven and ninety-eight, swears about
Hardy I>eing drunk on one occasion, when on the bench, doing chamber
business; and he says there is no mistake about it. He saw him there.
And he goes on to tell how he discovered it; and he says this Judge was
so sodden with rum, that it betrayed itself in the muscles of his face, in
his eyes, in the manner in which he walked, and in the manner in which
he gave utterance to Avhat he said. That one occasion is sworn to by
Tilden, Boucher, AVood, and C. P. Dudley; and there is not a word of
evidence in the case controverting it.

Again : Here are some six or seven witnesses, who swear generally
that tliey have seen Judge Hard}^ during the terms of his Court, under
the influence of liquor.

Genu^ig, one witness, swears that he has seen him under the influence
of liquor in the Court room, and in the Clerk's and Sheriff's offices, dur-
ing Court time.

Two other witnesses swear that it was his habit, at intermissions, to
o-o to the saloon of Leger, his friend, for whom he would use his discre-
tion, and tipple there, to the extent of five or six drinks, during a recess.

And I hold, that by every rule of estimating the value of evidence, it
is conclusively proved, that during the trial of the McDermott vs. Higby
case, he was drunk.

"What witnesses do thej^ put on the stand, on that subject ? And mark
the discrepancy in the testimonj- in regard to it.

Dr. Hepburn, who is first put on, I believe, swears that he went away
from the Court before the jury came back, and did not go back again.
He could not have observed what transpired in the meantime. Thomp-
son, the foreman of the jury, swears that he did not discover anything
at all. And Irvine does a very unusual thing ; a thing I never noticed

644

before. He dogs this Judge from morning to night ; says he was stand-
ing there, and he did not see anything.

But Adams comes on the stand, and says he did see something unusual
in Judge Hardy's conduct ; and he undertakes to account for it.

The theory is : That Judge Hardy was under tiie influence of saddened
feeling. He had been so deeply moved ; his nice, delicate, strongly
nervous organization, had been so disturbed b)^ an affidavit, presented by
W. L. Dudlej^, and his accompanying remarks, at eleven o'clock in the
morning, that he could not read a charge clearly at eleven o'clock at
night ; so that people thoiight his tongue was thick, and that he was
drunk.

Now, let us see how much disturbed he was, and how much saddened
he was in tone.

He went and took supper, and drank claret, they say. at least ; tippling
there in Leger's saloon, with this same Bill Dudley, whose remarks, they
say, had excited Judge Hardy so much, and put him so greatly off his
equilibrium — this same Bill Dudley, who, according to the theory of the
Defence, had so aroused Judge Hardy that he could not read a charge
without stuttering, and rolling his tongue like a piece of sole leather.
He was there, tippling with Dudley and Irvine, at half past seven o'clock.

Mr. Wi/d'ams. — There is no such evidence.

3Ir. Edgcrton. — The testimony is, that Judge Hardy and Irvine and
Dudley were at supper together, at half past seven o'clock.

Mr. Willlaim. — The evidence is, that they were sitting at the dinner
table, where thej' drank some claret. The only evidence is, that at the
dinner table Judge Hardy drank some claret. There is no other evi-
dence that Judge Hardy di-ank anything on that day. excejit ginger and
soda pop. But there is evidence that he refused to drink, several times,
on that day.

Mr. Eihjcrton. — I hold that I am right, and that the evidence will bear
me out. But I have not time to refer to the evidence in detail on this
point. There is William L. Dudley, for one. I can give the names of
some of the witnesses to this point. William L. Dudley swears, that
about the time the Court adjourned to, and Higby came in there and
found them, it was half past seven o'clock. Higby was finding fault
and expressing some astonishment that the Court should be there, drink-
ing claret, so late.

Mr. Williams. — There is not one word about his having found fault
with Judue Hardv's drinkinii; wine.

Mr. Edgcrton. — There is the evidence of the Sheriff", and of two officers
of his own Court : one of them, Mr. Genung, swearing that he has
seen Judge Hardy, time and time again, under the inffuence of liquor,
in the streets, in the saloons, in his Court room; swears he was drunk
that night.

Then comes another of their own witnesses, Mr. Paul, the Sheriff of
that count}'^.

Mr. Williajns. — Genung is your witness.

J/r. Edgcrton. — Mr. Paul swears that Judge Hardy was under the influ-
ence of liquor on that night. He discovers it.

" Q. — Have you ever seen Judge Hardy, while holding his Court, in
any degree under the influence of liquor?
A. — Only once.
Q. — When was that ?

645

ary t"^-n^^ '^^' ^^' ^""'^ "^"^ ^^ *^^' ^^'* *^^'^^^ ^^ ^^^^ Com-t-tbe Febru-
Q- — What time in the daj, or nii^ht?
n'~\\ ''''^^ ^^" °^' ^'^^®" o'elocklii the night.
^.—Aboiit the time the jury was retiring_is that the time you mean ?

Q.— Was it before or after the jury went out ?

,nnt'"h"n lf.'''\u '''^' J"'^ '''' ^l'^^ '^'^"^ °^*- T^^'-^t i« "T impression. It
may be after they went out, though.

TT^T^J^''^ ''''^ ^^'^"^ ^^^ *^^^'^ ^'^"'^t attracted your attention to Jud-e
liar* IV . o

1- '^"T^i!'- / .^'"*"^-''^ that Judge Hardy was under the influence of
liquor at that tune.

Q- — What made you think so ?

^'^■—^^"•i"- I ^'o "^^t know, I am sure, Avhat made me think so. His
conduct. 1 suppose, and the way he talked.

Q.— Vou judged by Judge Hardy's conduct?

A. — Yes.

Q- — Was this out of the Court, or in it ?

A.— I noticed him when not on the bench. It was after Judi^e Hardy
left the bench that I noticed him.

****** *****:^

Mr. Camphelt. — Where was Judge Hardy when you noticed him under
the influence of liquor on the occa.sion you have referred to ?

A. — It was in the Court room.

Q. — In what ])art of the Court room ?

A.— Well, I do not know. It was right about in the centre of the
Court room, when he came down oft* the bench.

Q- — Was that immediately after the jury retired?

A. — Yes.

Q- — What peculiarity in Judge Hardy's manner did you then observe ?
A. — AVell, he spoke a little thick. He did not speak with the same
clearness and distinctness as usual."

_ Now, let us see how saddened he was in tone on the last day of
his Court — ''• something past midnight, on Saturday night." Hoav full
and sonorous his voice becomes, when, on that occasion, he is on his way
to Leger's saloon — so loud that he is heard all through that community,
exclaiming: "I am now oft' the bench; my Court is adjourned. My
mother was born in the South; by God, I am a rebel, and I don't care
a damn who knoM's it."

There was not much sadness about that tone.

Mr. Williams. — He had got awaj' from your hounds then.

Mr. EJgerton. — He had got into the free air, away from his Court, off
from his bench. His tongue would play a little freer when he got ujjon
a topic of that kind, than when he was giving instructions in his Court
to a jury.

Five Jurors swear positively, that they observed that he was di'unk in
his Court. And in addition, eight witnesses come to your bar and swear
j>ositivcly, that they observed his inebriation on the bench on that occa-
sion— that he was intoxicated to such an extent as, partially, at least, to
make him a bad public examjDle, and jmrtially to disqualify him from the
discharge of his duty.

646

It is suggested to me that my time has expired.

I have no disposition to trespass farther ujDon the attention of this
Court, after its long and arduous labors.

In conclusion. I have simply to say, that, in behalf of the Managers
for the Assembly, in this ease, in behalf of myself and the other Coun-
sel for the Prosecution, I feel called upon to say that Ave are under very
great obligations to the members of this Court for the patience and
kindness that have been extended by them to us.

And, Mr. President, we thank you, Sir, for the very able, dignified,
and impartial manner, in which you have presided over these proceed-
ino-s.

Senator Iricin. — I desire to state that there is another person of the
same name as mine, who has given evidence in this case, and whose tes-
timony has been referred to in the course of the argument. I would
like, if possible, to have any confusion in regard to our respective testi-
mon}' avoided. There is another Mr. Irwin —

3Ir. WiUlamx. — [Interrupting.] Another man entirely. His name is
Irvine, not Irwin.

Mr. Edjorton. — Mr. President, it was to the testimony of Senator Ir-
win that I referred when speaking of the disloyal toast given at the St.
Geoi'ge Hotel. He testified in regard to tlmt matter. It was Mr. Wil-
liam Irvine, of San Andres, who testified in regard to the charge con
tained in the Seventh Article.

I would not have it understood by this Court, or this audience, that I
think Senator Irwin would follow Judge Hardy one single inch, for a drop
of whiskey. [Merriment.]

RECESS.

Senator Paris. — I move that the Court take a recess for half an hour.
Senator C'ran^. — It may as well be announced here, now, that when we
meet here again we go into secret session.

To this suggestion of Senator Crane, there was a general exclamatory
reply : " 2s^o )''' '^ No I" -'No 1"

The motion of Senator Parks was agreed to. and the Court took a re-
cess until twenty minutes past twelve.

REPORT OF FINAL PROCEEDINGS

IN THE

TRIAL OF JAMES H. HARDY,

BEFORE THE SENATE OF CALIFORNIA,

SITTING AS

A HIGH COURT OF IMPEACHMENT.

FINAL PROCEEDINGS

IN THE

TRIAL OF JUDGE J. H. HARDY.

FIFTEENTH DAY—MAY 14, 1863.

VOTE ON THE ARTICLES, AND SENTENCE

ROLL CALL.

The time of the recess having expired, at quarter to one the Court
reassembled.

The Presiding Officer. — The Secretary will call the roll of the Senate.
On the calling of the roll the following named Senators responded :

Messrs. Baker, Banks, Bogart, Burnell, Chamberlain, Crane, Denver,
Gallagher. Gaskill, Harriman, Hathaway, Heacock, Hill, Holden, Irwin,
Kimball. Kutz, Lewis, Nixon, Oulton, Parks, Perkins, Porter, Powers,
Quint, Rhodes, Shafter, Soule, Shurtleff, Van Dj-ke, Warmcastle, Watt,
and Williamson.

The following named Senators were absent :

Messrs. De Long, Harvey, Merritt, and Vineyard.
Senators Doll, Pacheco, and Thomas, were absent on leave.

The Prcsidiinj Officer.— The Sergeant-at-Arms will take a list of the
absentees, and pi-oduce them in Court.

1 82

650

The Sergeant-at-Arins, having been dispatched for the absentees,
returned with Senators Harvey, Merritt, and Vineyard.

The Sergeant-at-Arms returned that he was unable to produce Senator
De Long.

Thirty-six Senators were present.

INQUIRIES. "

Senator Irwin. — Mr. President, are we now sitting in Senate, or in.
Court ?

The Presiding Officer. — It seems to me that the session of the Court'
must be held as continued. The Court itself was continued to this hour.

Senator Perkins. — Mr. President, are all those who were marked as
absent, on the calling of the roll, now present ?

The Secretary. — All are here, except Senator De Long.

AS TO SITTING WITH CLOSED DOORS.

Senator Perhins. — Would it be in order now for the Court to determine
whether we shall act upon these Articles of Impeachment with closed
doors, or not ?

The Presiding Officer. — Undoubtedly it is competent for the Court to
determine that matter now.

Senator Perkins. — In order to test the sense of the Court upon that'
subject, I would move that we act upon these Articles of Impeachment
in open Court.

Senator Crane. — I second the motion.

The Presiding Officer. — The question is :

" Will the Court act upon these Articles of Impeachment with open
doors ?"

The motion of Senator Perkins was agreed to, by a unanimous vote.

FILING OPINIONS, AND MODE OF VOTING.

President Shafter. — At the commencement of this trial, Senators, I no-
tified the Court, that as a member of the Senate, I should desire to have
the opportunity to express the reasons for my judgment in the case.

I still desire to put on file, in the record here, my reasons for the judg-
ment which I shall render on these Articles of Impeachment.

But, as other Senators may or may not desire to avail themselves ol
this privilege. I proposed that a list, which is ordinarily termed a roll
be prepared, upon which the names of the Senators are arranged ir
alphabetical order, and against which spaces are marked, headed by th(
numbers of the several Articles of Imj^eachment, up to the Twenty
Second. When the name of a Senator is called, he can render his de
cision upon each one of the Articles in their order. This will avoid th(
necessity of calling the entire roll of the Court upon each and every on«
of the Articles. The name of the Senator being called, he may h
asked for his vote upon the First Article — " Is the Respondent guilty, o;
not guilt}', under that Article ?" — " Yes," or " No " — and upon his answer '
ing vote upon that Article being recorded, he may be called upon for hi
decision upon each and every one of the following Articles, in thai «
order, and in like manner.

651

_ Is it j'our pleasure that the vote be taken in that manner ? The list
18 here, already prepared.

Do you desire that the vote be taken upon the Articles in tliis manner
and not in detail, by calling the entire roll of the Court upon each and
every Article separately ?

Senator Rhudei^.—l desire to state, that I think it is the wish of the ma-
jority of the Senators that the President first deliver his opinion in the
case, for the information of the Senate. If it is to be read at all, I
think it would be the general desire to have it read now ; and I accord-
ingly move that we proceed in that form.

Smator M^-rritt.— No. Sir ! We do not want the President's opinion on
this case. lie desires to put his opinion on record, for his own satisfac-
tion; and I have no objection to his enjoying that privilege. But if he
is permitted to read his opinion here before the vote is taken, it will
throw the whole matter open for debate.

Senator Lncis. — Of course it will. We have already agreed, as I un-
derstand it. to take the vote on the Articles without debate.

The FrrsH/hig Ojfirrr. — I shall onl}^ claim, as one of the Judges of this
Court, the right to file my ojiinion on this case in the records here.

Senator Parks. — I would like to inquire when the President desires to
file that opinion.

The Presiih'tiij Ojfieer. — I suppose I have that privilege at any time.

Senator Par/cfi. — I am aware that we have adopted a rule declaring
that tiie vote shall be taken on these Articles without debate. If that
were not so, I would be willing to hear the President's opinion in the
case. It seems to me as though he had a peculiar right to present his
opinion here, inasmuch as he has not only been the Presiding Officer of
this Court, but, also, a witness in the case. So far as I am concerned,
I would like to see that rule changed, so as to allow every Senator to
briefly express his opinion in the case. But I take it, that if one of the
Senators is allowed to state his opinion in the premises, every other
Senator would desire to avail himself of a like opportunity. And I
certainly should object to giving an advantage or precedence to one
Senator over another, in regard to this case. I would like, mj^self, to
have fifteen minutes in which to give my views on this case; but I am
willing to vote without enjoying that privilege.

The Premllnii Offieer. — I understand that the rule was adopted for the
purpose of cutting off any debate or discussion in regard to the several
Articles. I do not understand, that, under it, any Senator is deprived
of the privilege of briefly stating his reasons for the particular vote
■which he may be called upon to give.

Senator Crane.— I propose that any Senator be allowed to rise in his
lace when his name is called, and state the reasons for his vote. As

understand the rule, it does not prohibit a Senator from giving orally
the reasons for the judgment he pronounces. It is not absolutely neces-
sary that he write those reasons out, and file them here. I presume
that such a privilege may be accorded under the rule which we have
.dopted.

Senator Quint.— I do not think that there is any rule which would pre-
p-ent a Senator from doing that.

Senator Crane.— In my opinion, there is a very evident and palpable
lifference and distinction between a Senator giving his opinion on a
luestiou and debating a question. I simply wish to give my reasons for
my judgment. That is what I understand we are permitted to do under
the rule.

652

TIlc Presiding Officer. — There is no judgment whatever pronounced by
Senators in this manner. It is a mere matter of votes, and reasons for
votes. The judgment is another thing entirely.

Senator Merriit. — I understand that we are to take a vote on each of
the Articles separatel}'; and that as their names are called on the differ-
ent Articles, Senators are to state speciticall}^ whether they decide that
the defendant is guilty or not guilty under the particular Article on
which the roll is being called. Then, if the Defendant is found guilty
under one or more of the Articles of Im]>eachment, we proceed to pro-
nounce the judgment of the Court. I understand that it takes a two-thirds
vote to convict. After we have voted upon all the Articles of Impeach-
ment, we pronounce the judgment of the Court, if the defendant has
been found guilt}' under any one of those Articles. That judgment ma}''
be a remuval from olKce, with perpetual disqualitication for ofticial eligi-
bility attached, or it may be a removal from office without future dis-
qualification, or it may be merely a suspension from office. As I under-
stand it, the judgment of the Court, if we are called upon to pronounce
it, may take any one of these several forms.

Am I correct ?

The Pnsi(Ii)ifj Officer. — That is correct.

The Defendant cannot be convicted without a concurrence of two
thirds of the members present in tlie verdict that he is guilty under one
or more of the Articles of linj)eachment. If two thirds of the members
of this Court vote that the Respondent is guilty under any of the Articles
of Impeachment, the Court will then proceed to pass judgment. After
conviction, the Senate will immediately, or at such other time as they
may see fit to appoint, proceed to pronounce judgment, which shall be in
the form of a resolution, to be entered upon the Journals of the Senate,
with the vote attached. The vote upon the conviction under any of the
Articles, will, in like manner, be entered on the Journals of the Senate.

My own impression is. that it is the right of every Senator to express
his reasons for the opinion which he may be called upon to give on the
different Articles of Impeachment.

Smuitor Ferk-ina. — Then, in order to test the sense of the Court, I move
you that the vote be taken on each Article without debate.

Senator Crane. — You cannot get me to vote under such a rule. .If that
rule is adopted. I shall not vote at all.

Senator Perkina. — Xow, if a Senator is permitted to explain his vote
here, it is equivalent to allowing him to discuss all the issues raised in
this trial. Because, if he is allowed to explain his vote on one Article
of Impeachment, he must, of course, be allowed to explain his vote on
every Article. Now, we have heard all the testimony and all the argu-
ments on both sides. Let us. then, proceed to vote on the Articles of
Impeachment, and if the Respondent is convicted on any one of them,
then the Court can determine whether, on the pronouncing of the judg-
ment. Senators may discuss the issues in the case. I think that would
be the proper course to pursue. But if the door is opened, so as to allow
us to discuss these Articles as we proceed to vote upon them, we shall
need to jDostpone the adjournment of this Legislature for another week,
which we cannot do, because the other House will not consent to a fur-
ther extension of time. Now, we are limited until twelve o'clock to-
morrow ; and I undertake to say that it would be perfect folly to think
that we could get through with this trial by that time, if each Senator
was allowed to explain his vote upon these Articles of Impeachment.
If that liberty is granted — and if one Senator has the right to explain

653

his vote licrc, every Senator will take advantage of the same rio-ht— we
sliall consume, in our explanations in regard to this first Article on the
list, the time that wdl intervene between now and to-morrow at hio-h
noon. Now, I hope that this Court will do no such thing. I hope tlilt
they will su.stain the motion to vote on these Articles without debate
And if we find the Respondent guilty on any one of these Articles, then
senators may have an opportunity to explain when we come to pro-
oouncc judgment.

Snxator Q,mit.—K» I understand the motion of the Senator, it is this :
That the votes on the Articles shall be taken without debate. We al-
ready have a rule to that effect The simple question here is, whether
Senators shall Imve a right to explain and give their reasons for the vote
which they are about to cast.

^S'twtur Pcrkiitx. — That would involve a discussion of the issue pre-
sented in the Articles.

Senator Q,u„t.—l do not think so. There is a difference between a
Senator giving his reasons for bis vote, and arguing the questions in-
v^olved in the Articles.

Sniutor Mrrritt. — It will be recollected, that at the lime the Senate de-
hired that the testimony in this case was closed, I offered an order,
which was adopted by a large vote, Avhich, after fixing the time, or
iniiting (he time, for argument — which portion of the order was
imended — provided that the Court, after voting upon the Articles of
[mi>eachment, should j)roceed to pronounce judgment, without debate.
Now, it seems to me that that order settles this question. If any Sen-
ator desires to file his reasons for his vote, in order that they may go to
:he country, and upon the record, why, I am in favor of allowing him to
lo so. I should object to any Senator filing any written opinions at
ill ; but I know that the Senator from San Francisco, the President of
his Court, may naturall}' have peculiar reasons for desiring to file his
jpinion in the case, lie occupies rather an anomalous position here, in-
ismuch as he is not only a Senator, and the Presiding Officer of this
30tly, but, also, a witness in this case. As has been suggested, there are
leculiar reasons why he should desire to procure, and avail himself of,
}uch a privilege as this. In the course of his examination here, as a
.vitncss, he volunteered some testimony, which he afterAvards found was
lot entirel}' correct. If he desires to vindicate himself, and set himself
ight on the record, I have no objections to his doing so. But I object
o opening this whole question here for discussion. It would make the
lebatc interminable. I am not afraid to give my vote here without pre-
ixing or appending a long explanatory speech. I have no objection to
,he motion made by the Senator from San Francisco, (Perkins,) but 1 do
lot think there is any necessity for it. I think that we have already
lefinitely settled this matter.

The rrrsiiliiK/ Officer. — The question before the Court is on the motion
)f the Senator from San Francisco, Mr. Perkins :
Shall the vote be taken on each one of these Articles, without debate ?
Senator Crane. — Before the vote is taken on that motion, I want to state
hat I cannot be compelled to vote with any such gag in my mouth.
Senators cannot compel me to give my determination on either one of
hese Articles here, without allowing me to briefly assign my reasons for

ay vote. . .

Senator iV/.-/».s.— [Interrupting.] You can file your opinion.

Senator Crane.— I do not want to file any opinion. And I do not want
O consume any great length of time in giving my reasons. I am per-

654

foctly willing to give my pledge that I will not take up one minute'^
time, by the watch of any Senator here, in delivering any .speech which J
may desire to make. But I do want to assign my reasons for my vote oi,
some of these Articles. And as to its taking a long time, I say — Bett
consume the time that is necessar}-, than do wrong. I apprehend, that 1
allowing the privilege which I claim each Senator ought to enjoy, in ex-
plaining Iiis vote, we shall not involve ourselves in any very great expen-
diture of time. I think we can get through with the whole of the^ic
Articles before the sun sets, while allowing each Senator the right to
bi'iefly as.><ign his reasons for his vote.

Senator llarvnj. — I have a distinct recollection of the order which Mas
introduced here by the Senator from Mariposa, and which is now the i--
tablished order of this Court. It provided that the vote should be taken
upon the several Articles of Impeachment without debate. The projjtr
mode of ai-riving at an issue in regard to this question, would be for soiu ■
Senator who desired to have a change in this respect, to make a motion
to reconsider the vote whereby that order was adopted. At the samu
time, tliis being the order of the Court — that the vote shall be taken on
the Articles without debate — I thought that any Senator, if he desired lo
do so, might tile a statement of his reasons, in writing, which need not
necessarily be read. I hope that that action will be taken, so that we
may ari-ive at a definite understanding in regard to this matter.

Srnator Rliuihs. — I will state this: We could, perhaps, have got througii
with one or two of these Articles in the time which Ave have consumed
in discussing this question. And I would suggest, that instead of debat-
ing this question now, wo go through with one of these Articles, with
the understanding that each Senator shall be allowed to make a mere
explanation of his vote, and thus we can test whether we are going to
consume an extravagant amount of time by that mode of procedure.
There maj' be one or two Articles on which Senatoi-s are very desirous
to express their opinions; while as to the balance, they would be per-
fectly willing to vote without making any remarks whatever.

S'Hdtor liururll. — I hope that this question will be settled now. I hope
that when the roll is called, every Senator will be required to give" his
vote without debate. I hope that the motion made by the Senator from
San Francisco, (Mr. Perkins.) Avill be sustained. There are thirty-five
Senators here. If each one is to be allowed to explain his vote, we can-
not fix any time for the adjournment of this Court. No explanations
are necessary. This is the last ])lace in the world, and the most im-
proper period of time, in which to attempt to make buncombe. If I am
permitted to assign one reason for casting a vote thus or so, I may be
ready and anxious to assign a hund]-ed reasons; and so it will be with
the other members of this body. And so we may sit here until next
June, assigning reasons, pro and con.

Snmtor Perhins. — The Senator from Alameda, (Mr. Crane,) thinks that
this would be a '' gag rule " — to use his own language. He thinks that it
would be putting a ''gag" upon his mouth, not to allow him to explain
every vote he gives here. Now, .suppose that he does explain every vote
that he gives here ; how does he stand then ? Why, his reasons would
not appeal to my judgment, perhaps, or to the judgment of other Sen-
ators here; and he would stand no better, after giving his reasons,
than he does now. We have listened to all the testimony and the argu-
ments that have been given here, and are responsible for the votes that
we shall record. And I propose to take that responsibility before this
Court, this community, and the people at large. If we are challenged

655

lereafter for our action here, I presume that we all feel competent to
vindicate ourselves. And there arc abundant means and modes by which
we can sustain our course, before the public, if we feel called upon to do

ISO.

^ Senator Crane. — I hope that the motion of the Senator from San Fran-
cisco will l)e withdrawn, and that the proposition of the Senator from
Santa Chira (Ehodes) will be acceded to.

Senator Van iJi/ke. — I would ask if the motion of the Senator from San
Francisco is not erpiivalent to the order introduced by the Senator from
'Mariposa, which is already adopted ?

Sfveral Senators. — Yes, Sir.

The Prcsnlin(j Officer. — The motion before the Court is :

Shall the vote on the Articles of Impeachment be taken without
debate ?

Senator Perkins' motion was adopted by a nearly unanimous vote.

Senator Crane. — Xow, what is the effect of that motion ?

The Presiding Officer. — When the name of a Senator shall be called, he
shall vote on the Article which has just been read, without debate or
explanation.

656

THE VOTE.

The Fresuling Officer. — The Court will now proceed to vote upon the
First Article of Impeachment.

The Secretary will read the First Article.
The Secretary read as follows :

ARTICLE I.

At the 3£ay term, A. J), eighteen hundred and fifty-nine, of the Dis-
trict Court of the Sixteenth Judicial District, in and for the County of
Calaveras, the said James H. Hardy, being then and there the District
Judge of said District Court, a certain suit w^as pending and at issue
therein before the said James H. Hardy, District Judge, as aforesaid,!
wherein one Gerrish Foster was plaintiff', and one Fritz and others were
defendants — that said cause came on for trial before said Hardy, District
Judge, as aforesaid, at Mokelumne Hill, the county seat of said county,
at said May term, viz : on or about the fourteenth day of May, A. 1).
eighteen hundred and fifty-nine ; that at the trial of said cause the said
James H. Hardy, District Judge, as aforesaid, unlawfully, corruptly, wil-
fully, frauduleiitly. and with intent to perjictuate and lengthen litigation
between the parties aforesaid, did deny a certain motion for a nonsuit
then and there made by the Counsel for the defendants in said action."

The Presiding Officer. — Each Senator, when his name is called, will b(
asked : »

How say you — Is the Respondent guilty, or not guilty, of the higl
crimes and misdemeanors charged in this Article ?

Then the response will be, Yes, or No.

Senator Crane. — What does "Yes" mean?

The Presiding Officer. — If " Yes," the Senator so responding votes tha
the Respondent is guilty under the Article on w^hich the vote is bein^
taken. If " No," he votes that the Respondent is not guilty.

Senator 3Ierritt. — I suppose it would be proper for Senators to answe
"Guilty," or " Not Guilty."

Senator PerJcins. — And rise as they make their response.

VOTE ON ARTICLE ONE.

Names.

Guilty.

Not GuUt.

Baker

Banks

Bogart

657

Names.

Guilty.

Not Guilty.

Burncll

Chamberlain

Crane

Denver

Gallai^her

Gaskill

Ilarvcy

Harrinian

1
1

Hathaway

Hill

Irwin

Kill/.

Merritt

Oulton

-1

Perkins

Powers

Rhodes

Soule . .

"Van Dvke

"Warnicastle

Williamson

Totals

EXPLANATION OF SENATOR CRANE.

When Senator Crane's name was called for his vote on the First Arti-
cle, he rose and said :

I hope that the Senate will give me leave to very briefly explain my
vote on this Article. I will not exceed half a minute in making my ex-
planation.

Cries of " Object !" " Object !" , -rx ^ ,

Senator Crane— Now I am called upon to say whether the Defendant
is guilty under this Article, and I will not occupy over thirty seconds in
explaining my vote.

Cries of •' Object !" renewed from all parts of the Senate Chamber.

Senator Crane.— And I not only will not occupy over thirty seconds in

358

makinir my explanation, but I will assure the Senate that it is the only
indulgence of the kind that I will ask throughout this vote.

Cries of " Object !" and "Leave!" — amid which Senator Crane com-
menced his explanation, which was as follows :

This Article charges the Eespondent with unlawfully refusing to grant
a nonsuit. The complaint had in it an account for money had and re-
ceived, and an account for work, labor and services. Under that ac-
count a promissory note could not have been received in evidence, as an
account for work and labor could have been. Therefore, the Judge
could not grant a nonsuit; and I shall vote Not Guilty.

[Senator Crane's announcement of his vote was received with applause
by the lobby.]

The Presiding Officer. — Persons in the lobby will preserve order while
the vote is being taken.

Senator Parks. — I hope that the Presiding Officer will order the lob-
bies to be cleared, if another demonstration of this kind is made.

The Presiding Officer. — The Sergeant-at-Arms will be instructed to clear
the lobby, if order is not preserved in that quarter, hereafter, during the
progress of the vote.

The Presiding Officer. — The Secretary will read the Second Article.

The Secretary read as follows :

"ARTICLE II.

At the November term, A. D. eighteen hundred and fifty-nine, of the
Court in the last Article mentioned, viz : on or about the twenty-sixth
day of November, A. 1). eighteen hundred and fifty-nine, a motion for a
new trial in said case in the first Article mentioned came on for hearing
before the said James II. Hardy, District Judge, as aforesaid, at the Court
House in said County of Calaveras, and the said James II. Ilardy, being
and acting as such District Judge, did then and there, unlawfully, corruptly,
wilfully, fraudulently, and with intent to perpetuate and lengthen litiga-
tion between the parties to said suit, grant to the defendants therein a
new trial of said cause."

VOTE ON ARTICLE TWO.

Names.

Guilty.

Not Guilty.

Baker «.

Banks

Boffart

B ur n e 1 1

1 .

Chamberlain

Crane

Denver

Gallacrher

1 i

Gaskill

1
1
1
1

Harvey

Harriman . .

Hathaway

Heacock

Hill !!!!!!!!!!!!.!!!!!!!!!!!!!!!!.

659

Name?.

Guilty.

Not Guilty.

Holden

Irwin

Kimball

Kutz

Lewis

Merritt

Nixon

Oulton

Parks

Porter

1
1

Powers

Quint

Shafter

1
1

Shurtleff

Vineyard

Watt

9-7

The Presiding Officer. — The Secretary will read the Third Article.
The Secretary read as follows :

"article III.

On or about the first day of April, eighteen hundred and fifty-nine, a
certain case, wherein The People of the State of California, on the rela-
tion of the Attorney-General of the State, were plaintiffs, and one Hill
Squires was defendant, was pending in the District Court of said Six-
teenth Judicial District, in and for the County of Calaveras aforesaid,
before the said James H. Hardy. District Judge— at which time, in the
Court House, in the County of Calaveras, said cause came up for hear-
ing and trial before said Hardy, as such Judge, and in which cause, after
the hearing and trial thereof, the said James H. Hardy, as such Judge,
at the county 'aforesaid, on or about the first day of June, A.D. eighteen
hundred and fifty-nine. did. unlawfully, wilfully, corruptly, and fraudu-
lently, render judgment in favor of said Hill Squires, the defendant m
said cause."

VOTE ox ARTICLE THREE.

Names.

Guiltv.

Not Guilty.

Baker..
Banks..
Bogart

660

Names.

Gmltj. I Not GuUty.

Burnell

Chamberlain
Crane

Denver

Gallatrlier . .

Gasktll

Harvey

Ilarrimau..
Hathaway .
Heacock.,..
Hill

Holden.,
Irwin... .
Kimball

Kutz

Lewis....
Merritt .
Xixon ...
Oulton..

Parks

Perkins.
Porter....
Powers.
Qaint ....
Rhodes..
.Shatter .,
Soule

ShurtletT

Van Dyke....
Vineyard ....
"^armeastle .
Watt

Williamson

Totals.

The Presiding OJicer. — The Secretary will read the Fourth Article.
The Secretary read as follows :

"article iv.

That, at the February term. A. D. eighteen hundred and sixty-two. of
the District Court of the Sixteenth Judicial District, in and for the
County of Calaveras, a certain suit was pending and at issue in said
Court, before the said James H. Hardy, District Judge, as aforesaid,
wherein one E. Mercier and another, were plaintiffs, and TT. C. Denny
and others, were defendants ; that it was important for the interests of
the plaintiffs therein that said cause should not be tried at said Feb-
ruary term, but should be continued to the next term of said Court, and
the said James H. Hardy, being then and there such District Judge, and
well knowing the premises, on the twenty-fifth day of February, eight-

661

cen hundred and sixt\--two. as yet of said February term, wilfully, un-
lawfully, coiTuptly. and in violation of his official duty, and for the pur-
pose of effecting such continuance, and fevoring, and benefiting the
plaintiffs in said action, at MokeluDine Hill, in said County of Calaveras,
solicited and urged one William L. Dudley, who was then engaged as
Counsel in another case on trial before said Hardy, to consume lis^much
time as possible in such trial, and in the trial of other cases in which
said Dudley was engaged in said Court, so as to prevent the trial of said
suit of E. Mercier and another, against W. C. Denny and others, at said
last mentioned term."

VOTE ox ARTICLE FOUR.

Names.

Guilty.

No(

Guilty.

Baker

Banks

Bogart

Burnell

Chamberlain

Crane

Denver

Gallagher

Gaskill

1
1

Harvev

HaiTiman..
Hathaway
Heacock....

Hill

Hold(
Irw

len,

Kimball

Kutz

Lewis

Memtt

Nixon

Oulton

Parks

Perkins

Porter

Powers

Quint

Rhodes

Shaffer

Soule

Shurtleff.

Yan Dyke....

Vineyard

"Warmcastle.

Watt

Williamson..

Totals.

662

The Presiding Officer. — The Secretary will read the Fifth Article.
The Secretary read as follows :

"article v.

At the February term, A. D. eighteen hundred and sixty-two, of the
District Court of the said Sixteenth Jiidicial District, in and for the
County of Calaveras, a certain case was pending and at issue in said
Court, the said James H. Hardy being then and there Judge thereof,
as aforesaid, between J. E. Robinson and others, plaintiffs, and one George
Lcger and another, defendants, and the said James H. Hardy, acting as
such Judge, then and there did, unlawfully, wilfull}^ and corruptly, con-
tinue and cause to be continued, the said case to the next term of said
Court, with intent to hinder, delay, and defraud, the plaintiffs in said
Buit."

VOTE ON ARTICLE FIVE.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bo <Tart

Burncll

Chamberlain

1
1

Crane

Denver

Galla'^her

Gaskill

Harve V

Harri man

Hathaway

Heacock

Hill

Holden

Irwin

Iviniball

Kutz

Lewis

Merritt

Nixon

Oulton

Parks

Perkins

Porter

Powers

Quint

Shafter

Shurtleff.

Yi n e V ar d

663

Names.

Guilty.

Not Guilty.

Warmcastle

1
1
1

Watt

"Williamson

Totals

The Presiding Officer.— The Secretary will read the Sixth Article.
The Secretary read as follows :

"article VI.

VOTE ON ARTICLE SIX.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bogart

Burnell

Chamberlain

Crane

Denver

Gallagher

Gaskiil

Harvej"

Harriman

Hathaway....

Heacock

Hill

Holden

Irwin

Kimball

Kutz

Lewis

664

Names.

Not Guilty.

3ferritt.
IS'ixon .
Oulton..

Parks

Perkins

Porter ,

Powers

Quint

Ehodes

Shafter

Soule ,

Shurtleff.

Van Dyke...

Vineyard

Warnicastle

Watt

"Williamson .

Totals

The PresuVnig Officer. — The Secretary Avill read the Seventh Article.
The Secretary read as follows :

"article VII.

The said James IT. Hardy, District Judge of said Sixteenth Judicial
District, at the February term, A. D. eighteen hundred and sixty-two,
of his said Court, held in and for the said County of Calaveras, while
presiding as such Judge in a certain action then and there tried before
him as such .Tudge, wherein one W. F. McDormott was plaintiff, and
one William Higby was defendant, did, falsely, Avilfully, unlawfully, and
corruptly, find for the plaintiff, and against the defendant, and render
judgment for the plaintiff upon the issues raised by a certain answer in
abatement filed by the defendant in said suit, to which the plaintiff in
said suit had replied, the said Hardy then and there avcU knowing said
decision and finding to be unjust and unlawful."

VOTE ON ARTICLE SEVEN.

N.imes.

GuUty.

Not Guilty.

Baker

Banks

Boffart

Burnell

Chamberlain

Crane

Denver

665

Names.

Guilty.

Not Guilty.

Gallagher...,

Gaskill

llarvcy ,

Harrimiui...

IlathaAvay ..

Heacock

Hill

lloldcn

Irwin

Kimball

Kutz

Lewis

Mcrritt

Kixon

Oulton

Parks

Perkins

Porter ,

Powers

Quint

Rhodes ,

Shafter

I Soiile

;Shurtleif.

Van Dyke...

Vinej'ard ....

Warnicastlc.

Watt

Williamson .

Total.

1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1

i The Presiding Officer. — The Secretary will read the Eighth Article.
The Secretary read as follows :

' "article VIII.

' On or about the iarst day of July, A. D. eighteen hundred and sixty,
•a certain case, wherein W. F. McDermott was plaintiff, and S. W. Burke,
et al., Avere defendants, was pending in the District Court of said Six-
teenth Judicial District, in and for said County of Calaveras, before the
said James H. Hardv, District Judge, in which case, Joseph P. Vaughn
had been appointed Receiver, previous thereto, by said Hardy, to take
.charge of. and have the care and custody of, certain property in litiga-
tion, in said case, and said James H. Hardy, District Judge, as aforesaid,
did, at the Court House in said county, on or about the day last aforesaid,
wilfully, unlawfully, and corruptly, refuse to hear, and abstain from hear-
iuo-, a motion, on the part of the defendants in said case, to remove said
Jo'seph P. Vaughn, Receiver, as aforesaid, and did, then and there, wil-
fully, unlawfully, and corruptly, continue said Joseph P. Vaughn, such
84

G66

Eeceiver, in said action, to the great prejudice and injury of the rights
of the defendants in said action."

VOTE ON ARTICLE EIGHT.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bogart

BurucU

Chamberlain.

Crane

Denver

Gallagher

GaskiU

Harvey

Harriman

Hathaway

Heacock

Hill

Holden

Irwin

Kimball

Kutz

Lewis ,

Merritt

Nixon

Oultou

Parks

Perkins

Porter

Powers

Quint

Rhodes ,

Shafter

Soule

Shurtleff.

Van Dyke....

Vineyard

"Warmcastle..

Watt

AYilliamson ..

Total.

The Presiding Officer. — The Secretary will read the Ninth Article.
The Secretary read as follows :

ARTICLE IX.

At the May term, A. D. eighteen hundred and sixty-one, viz : on tlw
thirty-first of May, A. D. eighteen hundred and sixty-one, of the 1Mb

G67

tvict Court of the Sixteenth Judicial District, in and for the County
of Calaveras, held at Mokelumne Hill, in said county, a certain suit,
wherein J. R. Robinson et al. were plaintiffs, and George Leger et al. were
defendants, came on before the said James H. Hardy, District Judge, as
aforesaid, for trial, and the said James H. Hardy, District Judge, as afore-
said, then andthere, wilfully, corruptly, and with intent to oppress the
plaintiffs in said cause, of his own motion and without any objection to
such evidence on the part of the defendants, refused to admit, and ruled
out, certain evidence then and there upon said trial offered by the plain-
tiffs in said suit, for the purpose of proving that, in consequence of a cer-
.tain injunction theretofore granted by the said James H. Hardy, as Dis-
trict Judge, said plaintiffs were prevented from running water through
a certain ditch for mining purposes ; and the said James H. Hardy after-
wards, viz: on or about the first day of June, A. D. eighteen hundred
and sixty-one, upon the settlement of a statement presented before him,
the said Hard}', as such District Judge, by the defendants, for the pur-
pose of obtaining a new trial in said cause, did, at the County of Cala-
veras, aforesaid, falsely, fraudulently, corruptly, and for the purpose of
benefiting the defendants in said suit, insert, in said statement, language
to the effect that such evidence had been offered at the trial by the
plaintiffs, etc.; that the admission thereof was objected to by the defend-
ants; tiiat the Court admitted the evidence; and that the defendants
then and there excepted to such last mentioned ruling of the Court."

VOTE ON ARTICLE NINE.

Names.

Guilty. Not Guilty.

Baker

Banks

Bogart

Burnell

Chamberlain .

Crane

Denver

Gallagher

GaskiU

Harvey

Harriman

Hathaway....

Heacock

Hill

Holden

Irwin

Kimball

Kutz

Lewis

Merritt

Nixon

Oulton

Parks

I Perkins

Porter

668

Names.

Guilty.

Not Guiltv.

Powers

Quint

Ehodes

Shaftcr

Soule

Shurtleff

Yan Dyke ....

Yineyiird

Warmcastle ..

Watt

"Williamson ..

Totals.

1
1
1

1
1
1
1
1
1

The Presulinr/ Offirrr. — The Secretary will read the Tenth Article.
The Secretary read as follows :

ARTICLE X.

That, at the Februar}' term, A. D. eighteen hundred and sixty-two,
the District Court of the Sixteenth Judicial District, in and for the-
County of Calaveras, and on the seventeenth day of said month of Feb-
ruary, eighteen hundred and sixt^'-two, at Mokclunine Hill, in said
county, the said James II. Hardy, then and there being District Judge, as
aforesaid, and acting and holding said term in such capacity, did, unlaw-
fully, wilfully, corruptly, and for the piirpose of injuring the defendants
in a certain cause, then and there pending and at issue before him in said
Court, wherein E. Mercier et al. were ]daintiffs, and W. C. Denny et al.
were defendants, and, in violation of the rules of said Court, continue
said cause from the said seventeenth day of February, A. D. eighteen
hundred and sixty-two, to the twenty-seventh day of February, A. D.
eighteen hundred and sixty-two."

VOTE ON ARTICLE TEN.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bo^art

Burnell

Chamberlain

Crane

Denver

Gallagher

Gaskill

Harvey

Harriman

669

Names.

Guilty.

Not Guilty.

Hathaway

Heacock

Hill

Holden

Irwin

Kimball

Kutz

Lewis

Merritt

Onlton

Perkins

Powers

l^Iiodes

8011 Ic

Van Dyke

^Varnicastle

^Villianison

Totals

The PresidiiKj Officer. — The Secretary will read the Eleventh Article.
The Secretary read as follows :

"article XI.

The said James H. Hardy, District Judge, as aforesaid, at divers times,
.within two years now last past, to the great scandal and detriment of the
idministration of justice, has frequently appeared upon the bench and
Dresided in Court, in his said District, and in the County of Calaveras,
svhen in a state of gross intoxication ; and especially did preside at said
::!ounty of Calaveras, at the trial of said case of McDennott vs. Higby, at
:he February term, A. D. eighteen hundred and sixty-two, of said Dis-
;rict Court of the Sixteenth Judicial District, in and for the County of
Calaveras, as Judge thereof, when so drunk as to be scarcely able to ar-
iculate."

VOTE ON ARTICLE ELEVEN.

Baker..
Banks..
Boirart

Names.

Guilty. Not Guilty.

1
1
1

670

Xames.

Guilty.

Not GuUty.

Tin rn ell

Chain berlaiu

Crane

Denver

Gralla'^'"her

Gaskill

iEarve V

Hari'i man

Hat haAvay

Heacock

Hill

Holden

Irwin

Kimball

Ivutz

1/6 wis

Merritt

1 1

Nixon

Oulton

Parks

Perkins

1
1

Porter

Powers

Quint

Phodes

Shafter

S 0 u 1 e

Shurtlcff

Yan Dyke

Vineyard

AVarmcastle

"Watt

1 i

"Williamson

1 1

Totals

30 M

The Presiding Officer. — The Secretary will read the Twelfth Article.
The Secretary read as follows :

■ARTICLE XII.

The said James H. Hardy, District Judge, as aforesaid, at the February
term, A. D. eighteen hundred and sixty-two, of said District Court, in and
for the County of Calaveras, held by him at Mokelumne Hill, aforesaid,
did, wilfull}', unlawfully, and corruptly, delay the business of said Court,
to the great prejudice and injury of parties litigant in said Court at the
term aforesaid."

671

VOTE ON ARTICLE TWELVE.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bogart

Burnell

Chamberlain

Crane

Denver

GalUigher

Gaskill

Harvey

Hathaway

Hill

Irwin

Kiitz

Mcrritt

Oulton

Perkins

1
1

Po wers

lihodes

Soule

\ an Dyke .

\\ arnicastle

V\ ilIinmsnTi

Totals

he whole of said period District Judge of the said

Thirteei

st, he beir
Sixteenth
of said o:

ith Arti-

ig during

Judicial

fice with

672

reasonable diligence, thereby causing great delays in the transaction of
the judicial business of said District, and causing great loss, damage, and
inconvenience to suitors before the District Court of said District,
especially at the August term, eighteen hundred and sixty-one, held in
and for said County of Calaveras."

VOTE ON ARTICLE THIRTEEN.

Names,

Guilty.

Not Guihv.

Baker

Banks

Bogart

Burnell

Chamberlain,

Crane

Denver

Gallagher

Gaskill

Ilarvey

Harrinian

Hathaway....

Heacock

Hill

Holden

Irwin

Kimball

Ivutz

Lewis

Merritt

Kixon

Oulton

Parks

Perkins

Porter

Powers

Quint

Ehodes

Shafter

Soule

Shurtleft'.

Van Dyke

Vineyard

AVarmcastle..

Watt

Williamson...

Totals.

cle.

The Presiding Officer. — The Secretary will read the Fourteenth Art
The Secretary read as follows :

673

"article XIV

H.d^ ^^"^ '^?'? ^I'^^'^n^ ^^"^ ^^'^"^^^ ^^^^"^ Of t^e Seventh Judicial Dis-
tiict, in and tor the County of Marin, the said James H. Hardy did pre-
side over and hdd said Court, as Judge. Among other cases then pend-
ing bctore said Court, was a certain prosecution against one David S
Terry, for having feloniously killed one David C. Broderick. in a duel

I '^""^Tv^ T^ ' -J''^^ '"".'^^'^ '"^'^ *^^ ^^^d ^a^id S. Terrv had theretofore
pleaded A o: Guilty to the indictment found against himVor such oifence •
that said c.ise was duly set for trial on the sixth day of July A d'
eighteen hundred and sixty, and that at the time fixed for the commence-
ment ot the trial of said cause, the witnesses for the prosecution were on
tJieir way from San Francisco, where they all resided, to the county
seat ot .Marin County, where said Court was held, (the distance between
the two places being about fifteen miles.) and the said James H. Hardy
acting as such District Judge, then and there, viz : at San Eafael, in said
County of Marin, well knowing the premises, and desiring and fraudu-
lently intending and contriving to prevent a fair trial of said cause, and
the due and proper administration of justice therein, unlawfully,' cor-
ruptly, and wickedly, before said witnesses were able to arrive at said
Court, (they having been detained by a calm while attempting to reach
Marin County by water, as the said James H. Hardy then and there
well knew,) did, on the said sixth day of July, A. D. eighteen hundred
and sixty, aforesaid, at the said County of Marin, cause a jury to be
empanelled with indecent haste in said cause, before the hour often a. m.
of that day, and then and there forced on the trial of said cause, and
caused the same to be submitted to the jury without any testimony on
the part of the prosecution, and in the absence of said witnesses, or
any of them, to the great scandal and disgrace of the administration of
the law in the State of California."

VOTE ON ARTICLE FOURTEEN.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bogart

Burnell

Chamberlain.

Crane

Denver

Gallagher

Gaskill

Harvey

Harriman

Hathaway ...

Heacock

Hill

Holden

Irwin

Kimball

Kutz

6.74

Names.

Guilty.

Not Guiltj.

Lewis

Merritt

Nixon

Oulton

Parks

Perkins

Porter

Powers

Quint

Ehodes

Shafter

Soule

Shurtleft'

Van Dyke....

Vineyard

Warmoastle.

Watt

Williamson .

Totals

1
1
1
1

The Frvsiding Ojficcr. — The Sccretarj'' will read Article Fifteen.
The Secretary read as follows :

•ARTICLE XV.

The said James 11. Hardy, at various times within one year last past,^
and especially at the times and places hereinafter mentioned, while '
holdinji^ the office of District Judge, as aforesaid, and bound by hi<
official oath to support the Constitution of the United States, has, ii
violation of his oath of otBce, and his duty and obligations as a JudgeJ
publiely used seditious and treasonable language of and concerning th<
Constitution and Government of the United States, and aided, an(
abetted, and given comfort to, the enemies of said Constitution an<
Government, as follows, viz:

First. On or about the twenty-fifth day of June, A. D. eightcei
hundred and sixty-one, at the Town of Jackson, County of Amador?
in the State aforesaid, he, the said James H. Hardy, then being Judge of
the Sixteenth Judicial District, as aforesaid, and divers States of the
United States of Ameriea, and divers of the people thereof, being then
in open rebellion against the Government, Constitution, and laws, there-
of, and then seeking to subvert the same by force of arms, and then
actually in arms for "that purpose, the said James H. Hardy. avcU know-
ing the premises, did, then and there, viz : at the said Town of Jackson,
County of Amador, in violation of his official oath and duty as such Dis-
trict Judiiie. openly give aid and eomfort to the enemy, and wilfully,
treasonably, and corruptly, aid and abet their treasonable purposes and
practices, by openly and publicly declaring, in the presence and hearing
of divers citizens of the State of California, and giving a toast in sub-
stance as follows : ' Here is to Jeff. Davis, (meaning one Jefferson Davis.

675

then a leader of said rebels, and engaged in said rebellion,) and the
bouthern Confederacy/ (meaning a certain pretended Government
whteh said rebels had set up m opposition to and defiance of the Con-
stitution of the United States.)

Third. On the twenty-sixth day of"'june, A. D. eighteen hundred and
sixty-one, at or near the Town of Angel, in the County of Calaveras, the
said James H. Hardy, then Judge, as aforesaid, in violation of his official
oath and duty aforesaid, seeing the American flag waving from a flag-
staff, declared, in the presence a"nd hearing of divers good citizens of the
State of California, referring to said flag, substantially as follows: ' That
is an old woman's rag. and ought to be torn down.'

Fourth. That on or about the twentieth day of August, eighteen hun-
dred and sixty-one. the said James H. Hardy, then Distric't Judge, as
aforesaid, at said Mokelumne Hill, in a public barroom, offered substan-
tially the following toast : 'Here is to the stars and stirpes; as to the
Constitution, there is none — the Constitution is gone to hell.'

Fifth. On the first day of March, A. D. eighteen hundred and sixty-
two, at said Mokelumne Hill, and immediately after the adjournment of
the February term of the District Court of the Sixteenth Judicial Dis-
trict, in and for said County of Calaveras, the said James H. Hardy,
then District Judge, as aforesaid, used substantially the following lan-
guage, in presence of di\:ers citizens of said county: 'My Court has ad-
journed, and I am now off the bench; my mother was born in the South,
and I am a n-liel, and T don't care a damn who knows it.'

Sixth. That at the City and in the Count}' of Sacramento, on or about
the second dav of April, A. D. eighteen hundred and sixty-one, the said
James H. Hardy, being then such District Judge, as aforesaid, in violation
of his said official oath and duty, offered, in a public bar room, substan-
tially the following toast : ' Gentlemen, I will give you the perpetuation
of a Southern Confederacy and the sovereignty of Jeff. Davis ; and may
his name be perpetuated in the same light they hold the immortal Wash-
ington.'

Seventh. That on or about the twent^^-sixth of June, eighteen hun-
dred and sixty-one. the said James H. Hardy, then being District Judge,
as aforesaid, at Chile (Julch, in Calaveras County, in further violation of
his official oath and duty, drank to the health of said Jeft". Davis and said
Southern Confederacy.

Eighth. That on or about the first day of September, A. D. eighteen
huncil-ed and sixtv-one, the said James H. Hardy, at Mokelumne Hill,
in said County of Calaveras, being then and there District Judge of said
Sixteenth Judicial District, as aforesaid, did, in violation of his said oath
of office and dutv as aforesaid, publicly declare, in the presence and
hearing of divers good citizens of this\State, and say, in substance, as
follows^: That he was a Secessionist, and that if a foreigner should come
before him, holding the same sentiments that he, the said Hardy, enter-
tained, as a man. towards the Constitution and Government of the United
States, and applied for citizenship, he. the said Hardy, as a Judge, would
not admit him to citizenship."

676

DEBATE IN REGARD TO THE "DISLOYALTY" ARTICLE.

Senator Parks, as the Court was about to i^roceed to vote upon Arti-
cle Fifteen, rose and said :

I move that the Court postpone the vote upon this Article until to-
morrow morning. This is the only Article in regard to which there is
any doubt in ni}^ mind. I had relied upon the Counsel presenting the
law in regard to this Article.

Senator Perkins. — [Interrupting.] I thought that there was to be no
debate allowed.

Senator Parks. — I think I have a right to make this motion to post-
pone, and I am giving my reasons for making this motion.

Senator Perkins. — There Avas no second to the motion.

Senator Parks. — I wish to say, that I have relied upon Counsel pre-
senting the law bearing ujjon this particular part of the case, but they
have not done so. And 1 will confess that I am at a loss to know whether
the language charged to have been used by the Kespondent, if it was
used, would be, as ai)plied, faiily considered treasonable or seditious. I
am at a loss to know whether it would be justitying cause for Impeach-
ment, if fairly proved and considered.

Senator Van Dijke. — Mr. President, I rise to a question of order. This
has nothing to do with the guilt or innocence of the Resj^ondent under
this charge. The Respondent is accused, in this Article, with using cer-
tain language. Has it been proved, or has it not been proved, that he
did use such language ? As to whether tiie language charged to have
been used, b}- its use constitutes an impeachable olfencc, is a matter
which we vote upon in passing judgment..

The Prcsidinij OlJiccr. — The Senatcjr from Sutter asks for an adjourn-
ment of the Court until to-morrow morning.

Senator Parks. — I made a motion to that effect.

Several Senators. — There was no second to the motion.

The Presiding Officer. — No one has a right to second the motion until it
is made.

Senator Parks. — I make that motion. I say that I am at a loss to
know how to vote upon this count, and would like to have until to-mor-
row morning to examine into the matter. I do not propose to argue
the matter, at all, here. I say that I have relied upon Counsel producing,
in their summaries, the law that is ai)plicable to this Article, and the
Respondent's guilt under it. But, to my surprise, there has not been
one single particle of law, not one single precedent produced by Counsel,
which can govern us in regard to this matter. And I would like to have
until to-morrow morning to make the examination for myself.

Senator Crane. — I hope that there will be no postponement. The ques-
tion raised by the Senator I'rom Sutter has nothing to do with our vote
upon this Article.

Senator Perkins. — The motion has not been seconded yet.

Senator Lewis. — I second the motion.

Senator Van D^jke. — It seems to me that there can be no valid reason
given for this postponement, of the nature of the one assigned by the
Senator from Sutter. Evidently, the vote Avhich we are about to cast
now is upon a question of fact. As to the bearing of the law upon the
case, in the particular referred to by the Senator from Sutter, we shall
give our opinion when we come to pronounce judgment.

Senator Par/cs.— Will the Senator from Humboldt allow mc to ask hira
one question ?

677
Senator Van Dijhe. — Certainly.

.o5"/K^^f "■^■7/"rr'"^'''^'.'''^^^ •" ^^^ affirmative, would he merely
8ay, that the fact had been established that the lano-uag-e char^red to havi
been used by the Eespondent was uttered by him at the times and places
mentioned ; or, would he say, that that lam^uage was seditious ^ By our
votes on this Article, do we say that it is, or is not, aiding, and abettinff
treason to use the lan£rua,^e attributed to the Respondent ^

Senator Ferkms.— In voting upon this Article, we are only goino- to say
whether or not the Respondent is guilty or innocent of usino-^the lan-
guage attributed to him ":* °

Senator Van D,//cc.— For one, I will say. that I understand my duty to
be, under this Article, at this time, to respond merely as to the truth of
the allegations— as to whether the Respondent did or did not use the
language charged to have been uttered by him. The single question
comes up, as to whether these allegations are correct or not.

Senator Farkx.—U the Chair will answer the question which I put I
will be satisfied. '

The Presuh'ntj Officer.— I can give my opinion as a Senator and as one
of the Judges in this case. It is not my province to give any authorities
on the subject. Tiiey ought to have been given hy the Counsel.

Senator J'arks. — If this vote is merely to determine whether we con-
sider this Article well sustained or not, without putting any legal inter-
pretation upon the effect of the language used, then I am prepared to
vote.

T/ie Presiding Officer. — I think that this vote passes not only upon the
question as to the utterance of the language, but also upon the legal
character of the language.

Senator Far/c.<. — Tliat is the way in which I understand it; and conse-
quently, I am not prepared to vote upon this Article now. I must say,
that to my mind.it is a very doubtful proposition whether Judge Hardy,
in uttering these expressions, was guilty of using treasonable and sedi-
tious language in- such a manner as to constitute an impeachable offence.
I have not heard any authorities offered here on that point.

Senator Merritt. — As I understand the charges contained in Article Fif-
teen, they are : First — That the Respondent used the language attrib-
uted to iiim in the Article, the various specifications of the Article;
and secondly, that by using the language attributed to him, he violated
his oath of office, and his duties and obligations as a Judge. The very
gravamen of the charge is. that by using this language, under the circum-
stances in which it \\'as uttered, the Respondent aided, and abetted, and
gave comfort to the enemies of the United States Government. ^ That is
what I understand is involved in this charge and the vote upon it.

Senator Crane. — Xo, Sir ; there is nothing of that kind in it. This is
the language of the Article :

" The said James H. Hardy, at various times within one 3-earlast past,
and especially at the times and places hereinafter mentioned, while hold-
ing the office of District Judge, as aforesaid, and bound by his official
oath to support the Constitution of the United States, has, in violation
of his oath of office, and his duty and obligations as a Judge, publicly
nsed seditious and treasonable language of and concerning the Constitu-
tion and Government of the United States, and aided, and abetted, and
given comfort to, the enemies of said Constitution and Government."

The Presiding Officer.— 1 think that this point has already been decided

678

in the admission of testimony, -which was ruled in, on the ground that
the charge -was double ; that it included a charge as to the fact of the
Eespondent having used this language, and the separate and distinct
charge of his having aided, and abetted, and given comfort to the ene-
mies'of the United States Government, by using such language. Testi-
mony was admitted here, on that very ruling.

Senator Wanncastle. — I understand the Chair to give expression to this
opinion: That this Article, if proven, is to be considered as declaring
that the Eespondent, in using the language attributed to him, has done
80 in violation of his duty as an officer of the State — thereby violating
the Constitution and the laws of tlie State.

The Presiding Officer. — The Chair does not undertake to make any de-
cision on that point. I have given my opinion as a member of the Court,
and one of the Judges in this case, in regard to the charges contained in
this Article, and the eftect of a vote upon it.

The question before the Court, is on postponing the vote until to-mor-
row morning.

The Court refused to postpone the vote.

Senator Parks. — I will ask to be excused from voting on this Article.

Senator Crane. — No! No! No dodging !

The Presiding Officer. — The Senator's vote will count, whether he votes
or not. as a concurrence of two thirds of the members present is required
to convict.

Senator Parks. — Then I will vote to sustain the Article.

The Presiding Officer. — The Secretary will now call the roll on the Fif-
teenth Article.

VOTE ON ARTICLE FIFTEEN.

Names.

Guilty.

Not GaUty.

Baker ..

Banks

Bogart

Burnell

Chamberlain

Crane

Denver

Gallao'hcr

Gaskill

IIarve\'

Harriman

Hatha wav

Heacock

Hill

Holden

Irwin -

Kimball

Kutz

Lewis

Merritt

Nixon

1
1

Oulton

679

Names.

Guilty.

Not Guilty.

Parks

Perkins

Porter

Powers

Quint

Rhodes

Shafter

Soule

Shurtleff'.

Vineyard

Watt

Totals

r-*

The Presiding Officer. — The Secretary will read the Sixteenth Article.
The Secretary road as follows :

"article XVI.

On or ahoiit the first day of April, eighteen hundred and fifty-nine, a
certain case, wherein The People of the State of California, on the rela-
tion of the Attorney-General of the State, were plaintiffs, and one Hill
Squires Avas defendant, Avas ])ending in the District Court of said Six-
teenth Judicial District, in and for the County of Calaveras, aforesaid,
before the said James II. Hardy, District Judge, at which time, in the
Court House, in the County of Calaveras, said cause came up for hearing
and trial before said Hardy, as such Judge, and in which cause, after the
hearing and trial thereof, the said James H. Hardy, as such Judge, at the
county aforesaid, on or about the first day of June, A. D. eighteen hun-
dred and fift3'-nine, did, unlawfully, wilfully, corruptly, and fraudulently,
render judgment in favor of said Hill Squires, the defendant in said
cause, for the unlawful and corrupt purpose of securing his nomination
and election to the office of District Judge of the Sixteenth Judicial Dis-
trict of said State, at the general election, A. D. eighteen hundred and
fifty-nine."

VOTE ON ARTICLE SIXTEEN.

Names.

Baker

Banks

Bogart

Burnell

Chamberlain,
Crane

Guilty. Not Guilty.

1
1
1
1
1
1

680

Denver....
Gallascher.
Gaskill....
Harvey....
Harriman.
Hathaway
Heacock .
Hill

Holden

Irwin

Kimball

Kutz

Lewis ,

Merritt

Nixon

Oulton

Parks

Perkins

Porter

Powers

Quint

Rhodes

Shafter

Soule

Shurtleff ....
Van Dyke...
Yincj'ard ...
Warmcastle.

Watt

Williamson .

Names.

Guilty. Not Guilty.

Totals

The Presiding Officer. — The Secretary will read the Seventeenth Ar-
ticle.
The Secretary read as follows :

"ARTICLE XVII.

At the February term, A. D. eighteen hundred and sixty-two, of the
District Court of the said Sixteenth Judicial District, in and for the
County of Calaveras, a certain case was pending and at issue in said
Court, the said James H. Hardy being then and there the Judge thereof,
as aforesaid, between J. E. Robinson and others, plaintiffs, and one
George Leger and another, defendants, and the said James H. Hardy,
acting as such Judge, then and there did, unlawfully, wilfully, and cor-
^'^ptly, continue, and cause to be continued, the said case to the next
term of said Court, then and there well knowing that there was no legal
or sufficient cause for such continuance, with intent to hinder, delay, and
defraud the plaintiffs, and out of favor and partiality to the defendants
in said suit."

681

VOTE ON ARTICLE SEVENTEEN.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bo":art

Burnell

Chambcrlai u

Crane

Denver

Galla<;jher

Gaskill

Harvey

Harriman

Heacock

Ilolden

1 Kimbal 1

Lewis

Nixon

Parks

1
1

Porter

Quint ..

Shafter....

1
1

Shurtlcff

Vineyard

Watt

The Presiding Officer.— Tha Secretary will read the Eighteenth Arti-
The Secretary read as follows :

"ARTICLE XVIII.

682

said James H. Hardy being then and there Judge, as aforesaid, between
one E. Mercier and another, plaintiffs, and W. C. Denny and others,
defendants; and that on the fifteenth day of said August a motion was
there made by the phiintiffs in said action to change the place of trial of
said case to 'some other county in said State of California, which said
motion was made at the Court House, in said County of Calaveras, Avhere
the term of said Court was being held by the said James H. Hardy,
District Judge, as aforesaid, and that the said James H. Hardy, then and
there, wilfully, unlawfully, and corruptly, refused to decide, and ab-
stained from deciding, the said motion, for the unlawful and corrupt pur-
pose of influencing and securing the votes of certain naturalized citizens
residing in Calaveras County, and certain voters therein residing, at the
then next ensuing general election to be held in this State, to the sup-
port of the candidates of a certain political party commonly known as
the Breckinridge party, of which party the said James H. Hardy was
then and there a member."

VOTE ON ARTICLE EIGHTEEN.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bogart

Burnell

Chamberlain

Crane

Denver

Gallagher

Gaskill

Harve}-

Harriman

Hathaway....

Heacock

Hill

Holden

Irwin

Kimball

Kuiz

Lewis

Merritt

Nixon

Oulton

Parks

Perkins

Porter

Powers

Quint

Rhodes

Shafter

Soule

Shurtleff.

Yan Dyke ...

683

Names.

Guilty.

Not Guilty.

Vineyard

Warmciistlc

Watt

Williaiason

Totals

The Presiding Ojjicer. — The Secretary will read the Nineteenth Article.
The Secretary read as follows :

"article XIX.

The said James H. Hardy, District Judge of said Sixteenth Judicial
District, at the February term, A. D. eighteen hundred and sixty-two,
of his said Coui't, held in and for the said County of Calaveras, while
presiding as such Judge in a certain action then and there tried before
him, as such Judge, wherein one W. F. McDermott was plaintiff, and
one William iligby was defendant, did, falsely, wilfully, unlawfully, and
corruptly, find for the plaintiff, and against the defendant, and render

udgment for the plaintiff upon the issues raised by a certain answer in
abatement filed by the defendant in said suit, to which the plaintiff in
said suit liad replied, the said Hardy then and there well knowing said
decision and finding to be unjust and unlawful, which said judgment was
so rendered and decision made for the unlawful and corrupt purpose of
bi-inging said cause to trial upon complaint, answer, and replication, on
the merits thereof, thereby to consume and occupy the time of said
(yourt, so as to prevent the trial of a certain other suit then at issue and
before said Court and on the calendar thereof for trial, wherein E. Mer-
cier et al. were plaintiffs, and W. C. Denny et al. were defendants, it
being then and there important for the interests of said E. Mercier et al.,
plaintiffs, as aforesaid, that they should have a continuance of said cause
until the then next term of said Court, and they having no sufficient or

egal ground for such continuance — all of which he, the said James H.
Hardy, then and there well knew, and all of which the said James H.
Hardy, then and there acting as such District Judge, as aforesaid, un-

awfu'lly and corruptly did, out of ftivor and partiality to the plaintiffs in
said last mentioned cause."

VOTE ON ARTICLE NINETEEN.

Niimos.

Guilty.

Not Guilty.

Baker

Banks

Bogart

Burnell

C^hamberlain,
Orane

(j84

Names.

Guilty. Not Guiltv.

Ponvor

Galhmher..

Ciaskill

Harvoy

llarriiuan .
Hathaway
lloaeook ...

Hill

lloKiou

Irwin

Kimball ....

Kiitz

liowis

Men-it t

Nixon

Oulton.

Parks !

Perkins.
Porter..
Powei*s.

Quint

KlKxles

Shatter

Soule

Shurtlert*

Van l\vke...
Vineyard ...
Warmcastlo.

Watt

Williamson .

Totals..

The Prrsuiini/ Ojn.rr. — The Secretary will read the Twentieth Article.
The Secretary read as follows :

"ARTICLE XX.

The Siiid James H. Hardy, at the Aujjast term of the District Coart
of the said Sixteenth Judicial District, neld in and for the County ol
Calavems. atoresittd. in the year of our Lord one thousand eight hundred
ai\d sixty-one. he Wing District Judge of said District, and presiding al
the sitid term. did. wilfully, corruptly, and in gross violation of his duty aj
said Judge, neglect and omit to perform his duties of said office. an<
cause great delays in the business of said Court, then and there pendin|
therein, and great cost, trouble, and inconrenience to suitors then aiu
there Wlore said Court, and great detriment to the public \relfepe, b
abandoning his said official duties on the thirtieth day of August, A. I
eighteen huudrett and sixty-one. and going to divers places in said Call
veras County, for the purpose of making" political speeches, and j&ilii^

685

and neglecting to appear in. or to bold said Court, during the remainder
of said term, there being several suits set and ready for trial on that
day, and the succeeding day of said term, and a jury being then and
tliere in attendance, whereby said suits were necessarily continued until
the next term of said Court."

VOTE ox ARTICLE TWENTY.

Baker

Banks

Bogart

Burnell

liamberlain
rane

Denver

iallaghcr
iaskiU ...

[larvey

larriman
la t ha way
Toaeock...

lill

lolden....

rwin ....
iiniball
\utz

jCWlS

Jerri

itt.

■sixon

)ulton

arks

'erkins

orter

owers

Juint

Rhodes

hafter

oule

hurtleff.

an Dyke...

ineyard —
Varmcastle.

Vatt

\'illiamson .

Totals.

Xames.

Guilty.

Xot GuUty.

The Presiding Officer.— The Secretary will read the Twenty-First Arii-

The Secretary read as follows :

686
"articlj: XXI.

That, unmindful of the solemn duties of his office, and contrary to the
same obligations b}" which he stood bound to discharge them faithfully
and impartially, and without respect to persons, and in utter contempt
of his judicial character as District Judge of the Sixteenth Judicial Dis-
trict, as aforesaid, he, the said James H. Hardy, Avhile District Judge,
aforesaid, at a term of the District Court, held in and for said Calaveras
County, in the month of May, A. D. eighteen hundred and fifty-nine,
and at other times, as hereinafter set forth, was guilty of unlawful and
wilful misconduct, in his said office committed, as follows, to wit :

First. The said James II. Hardy, at the term of said Court last above
mentioned, to wit : in said County of Calaveras, on or about the four-
teenth day of May, A. D. eighteen hundred and fifty-nine, did, as such
Judge, as aforesaid, scandalously exhibit an indecent solicitude for thai
interests of the defendants in the suit of Foster t-.s. Fritz et al., mentioned
in the first Article of this Impeachment, unbecoming and highl}- disgrace-
ful to the character of a Judge, as it was subversive of justice.

Second. The said James H. Hardy, at the term of said Court, and on
the day and 3'ear aforesaid, in said County of Calaveras, did, indecently
and scandalously, and of his own motion, advise one S. W. Brockway,
then and there an Attorney of said Pourt, and of Counsel for defendant
in said last mentioned suit, to file a statement for a new^ trial in said
cause, (judgment having previously, at said term, been rendered against
the defendants therein,) and did then and there, prior to the filing of such
statement, and in advance of the hearing of said motion, promise said
Brockway that he would grant a new trial in said cause.

Third. Tliat subsequently, at the term of said Court, held in and for
said County of Calaveras, in the month of November, A. D. eighteen
hundred and fifty-nine, the said James H. Hardy, District Judge, as
aforesaid, a motion for a new trial having been made and a statement
filed in said last n\entioned cause, did, scandalously and indecently, confi-
dentially , privatel}'. and aside, advise and direct one Allan P. Dudley,
then and there an Attorney of said Court, and of Counsel for the plaintiff
in said cause, not to file a brief on said motion for a new trial, and that
he was going to decide said motion in his (the said Dudley 's) favor, in
consequence of which, said Dudley omitted to file said brief and to argue
said motion, and did, then and there, at said term of said Court, decide
said motion for a ncAV trial in favor of the defendants in said cause, and
against said Dudley, granting, by his said decision, a new trial in said
cause ; all of which the said Hardy, then and there, did, wilfully and un-
lawfully, and with tiie intent to deceive and mislead the said A. P. Dud-
ley, Counsel, as aforesaid.

Fourth. That the said James H. Hardy, while District Judge, as
aforesaid, has indecently and scandalously, and with corrupt intent, here-
tofoi-e, to Avit : in said Calaveras County, on or about the fourteenth day
of May, A. D. eighteen hundred and fifty-nine, and at other times, while
such District Judge, told and advised the said A. P. Dudley, and the said
S. W. Brockway, and one William L. Dudle}', practising Attorneys before
said Court, that whenever he had an}- discretion to use, as such Judge, he
should use such discretion for his friends.

Fifth. That, at the February term of said Court, held in and for the
Couniy of Calaveras, aforesaid, A. D. eighteen hundred and sixty-two,
the St. id James H. Hardj', being then and there District Judge of said
District, and presiding at said' term of said Court, did, indecently and

687

8eandalous^v^ and out of wilful and unlawful favoritism and partiality for
the plaintitts m a certain cause then and there pending in said Court
whcrem one K Mercier and another were plaintitts, and one W c'
i)cnny and others were defendants, unlawfully urge and solicit one Wil-
liam 1. Dudley, then and there a practising Attorney in said Court, and
engaged as Counsel in other causes then and there pending, to expend
and consume as much time as possible in the trial of sucS causes, in
order unlawtully wrongfully, and fraudulently, to effect the continuance
of said cause, h. Mercier et al. vs. W. C. Denny etal., until the then next
term ot said ( ourt, it being important to the interests of the said E
JVlercier ct al plaintiffs in said cause, that the same should be continued
unti the said next term of said Court, and they having no sufficient or
legal ground for such continuance ; all which the said James H. Hardy
then and there Avell knew, and all of which he then and there did, for the
unlawful and corrupt purpose of subserving the private interests' of said
E. Mercier et al.. to the great wrong and injury of the public welfare,
and to the great oppression of the defendants in said cause j all of which
is to the great scandal and disgrace of the dignity and purity of said
office, of great detriment to the public good, and of corrupt and evil
example."

On motion, the Court decided that the vote on Article Twentj^-One
should be taken on each of the Subdivisions of that Article, separately.
The Secretary read the First Subdivision, as follows :

" SUBDIVISION FIRST.

The said .lames II. Hardy, at the term of said Court last above men-
tioned, to wit : in said County of Calaveras, on or about the fourteenth
day of May, A. i). eighteen hundred and fifty-nine, did, as such Judge.
as aforesaid, scandalously exhibit an indecent solicitude for the interests
of the defendants in the suit of Foster vs. Fritz et al., mentioned in the
first Article of this Impeachment, unbecoming and highly disgraceful to
the character of a Judge, as it was subversive of justice."

VOTE OS SUBDIVISION FIRST OF ARTICLE TWENTY-ONE.

Names.

Guillj.

Baker

Banks

Bogart

JJuTMiell

Chamberlain

Crane

Denver

Gallagher

Gaskill

Harvey

arriman

athaway ....

eacock

ill

Not Guilty.

688

Names.

Guilty.

Not Guilty.

Holden

Irwin

Kimball

Kutz

Lewis

Merritt

Nixon

Oulton

Parks

Perkins

Porter

Powers

Quint

Rhodes

Shafter

Soulo

Shurtletr

Van Dyke....

Vineyard

Warmcastle..

Watt

Williamson ..

Totals

1
1
1
1

The Secretary read the Second Subdivision, as follows :

"subdivision second.

The said James II. Hard}'-, at the term of said Court, and on the day
and year, aforesaid, in said County of Calaveras, did, indecently and
scandalously, and of his own motion, advise one S. AV. Brockway, then
and there an Attorney of said Court, and of Counsel for defendant in
said last mentioned suit, to file a statement for a new trial in said cause,
(judgment having previously, at said term, been rendered against the
defendants therein.) and did then and there, prior to the filing of such
statement, and in advance of the hearing of said motion, promise said
Brockway that he would grant a new trial in said cause."

VOTE ON SUBDIVISION SECOND OF ARTICLE TWENTY-ONE.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bogart

Burnell

Chamberlain

689

Names.

Guilty.

Not Guilty.

Crane

Denver

G a 1 1 1 1 <; h c r

Gaskill

1
1

Harvey

Ilarrinian

Hathaway

] Teacoek

Hill

1
1

Irwin

Kutz

1
1

.A[erritt

Oulton

Perkins

1
1
1

Powers

Rhodes

1
1
1

Soulc

Van Dvke

Warmcastle

W^illianison

Totals

The Secretary read the Third Subdivision, as follows :

" SUBDIVISION THIRD.

That subsequently, at the term of said Coiu-t, held in and for said
County of Calaveras, in the month of November,* A. D. eighteen hun-
dred and fifty-nine, the said James H. Hardy, District Judge, as afore-
aid, a motion for a new trial having been made and a statement filed in
3aid last mentioned cause, did, seandalousl}'- and indecently, confiden-
ially, privately, and aside, advise and direct one Allan P. Dudley, then
md there an Attorney of said Court, and of Counsel for the plaintiff in
laid cause, not to file a brief on said motion for a new trial, and that he
as going to decide said motion in his (the said Dudley's) fiivor, in con-
equeuce'of which, said Dudley omitted to file said brief and to argue
aid motion, and did, then and there, at said term of said Court, decide
id motion for a new trial in favor of the defendants in said cause, and
87

690

ao-ainst said Dudley, jrranting, by his said decision, a new trial in said
cause ; all of which the said Hardy, then and there, did, wilfully and un-
lawfully, and with the intent to deceive and mislead the said A. P. Dud-
ley, Counsel, as aforesaid."

VOTE ON SUBDIVISION THIRD OF ARTICLE TWENTY-ONE.

Names.

Guilty.

Not Guilty.

Baker.
Banks.

Bogart

Burnell

Chamberlain
Crane

Denver

Gallagher ..

GaskiU

Harvey

Harriman ..
Hathaway.
Heacock....

Hill

Holden

Irwin

Kimball....

Kutz

Lewis

Merritt

Nixon

Oulton

Parks

Perkins ....

Porter

Powers

Quint

Rhodes.
Sbafter.
Soule....

Shurtleff.....
Van Dyke...
Vineyard....
Warmeastle.
Watt..

Williamson.

Totals

The Secretary read the Fourth Subdivision, as follows :

691

SUBDIVISION FOURTH.

That the said James H. Hardj, while District Judge, as aforesaid, has,
indecently and scandalously, and with corrupt intent, heretofore, to wit :
in said Calaveras County, on or about the fourteenth day of May, A. D.
eighteen hundred and fift3--nine, and at other times, while such District
Judge, told and advised the said A. P. Dudley, and the said S. W. Brock-
way, and one William L. Dudley, practising Attorneys before said Court,
that whenever he had 'dny discretion to use, as such Judge, he should use
such discretion for his friends."

VOTE ON SUBDIVISION FOURTH OF ARTICLE TWENTY-ONE.

Guilty.

Not Guilty.

Baker

Banks

Bogart

Burnell

Chamberlain.

Crane

Denver

Gallagher ....

Gaskill

Harvey

liar ri man

Hathaway....

Ileacock

Hill

Holdcn

Irwin

Kimball

Kutz

Lewis

Merritt

Nixon

Oulton

Parks

Perkins

Porter

Powers

Quint

Khodes

Shafter

8oule

81mrtleff.

Van Dyke

Yine^'ard

"NVarmcastle .

Watt

Williamson ..

Totals.

1
1
1
1

692
The Secretary read the Fifth Subdivision, as follows :

" SUBDIVISION FIFTH.

That, at the February terra of said Court, held in and for the County
of Calaveras, aforesaid, A. D. eighteen hundred and sixty-two, the said
James H. Hardy, being, then and there, District Judge of said District,
and presiding at said term of said Court, did, indecently and scanda-
lously, and out of wilful and unlawful favoritism and partiality for the
plaintiffs in a certain cause then and there pending in said Court, wherein
one E. Mercier and another were plaintiffs, and one W. C. Denny and
others were defendants, unlawfully urge and solicit one William L. Dud-
ley, then and there a practising Attorney in said Court, and engaged as
Counsel in other causes then and there pending, to expend and consume
as much time as possible in the trial of such causes, in order, unlawfully,
wrongfully, and fraudulently, to effect the continuance of said cause, E.
Mercier et al. vs. W. C. Denny et. al., until the then next term of said
Court, it being important to the interests of the said E. Mercier et al.,
plaintiffs in said cause, that the same should be continued until the said
next term of said Court, and they having no sufficient or legal ground
for such continuance ; all which the said James II. Hardy then and there
well knew, and all of which he then and there did, for the unlawful and
corrupt purpose of subserving the private interests of said E. Mercier
et al., to the great wrong and injury of the public welfare, and to the
great oppression of the defendants in said cause ; all of which is to
the great scandal and disgrace of the dignity and purity of said office,
of great detriment to the public good, and of corrupt and evil example."

VOTE ON SUBDIVISION FIFTH OF ARTICLE TWENTY-ONE.

Names.

Guilty.

Not Guilty.

Baker

Banks

Bo'i"art

Burnell

Chamberlain

Crane

D enver

Gall a gher

Gaskill

1
1

Harvev

Harriman

Hathaway

Heacock

Hill

Holden

Irwin

Kimball

Kutz

Lewis

Merritt

Xixon

693

Names.

Guilty.

Not Guilty.

Onltou

Parks

Perkins

1
1
1

Porter "

Powers

Quint...

Kliodes

1
1
1

Shafter

Soule

Van Dyke

W a r nicas t le

Williamson

Totals

The Presiding Officer. — The Secretary will read the Twenty-Second Ar-
ticle.

The Secretary read as follows :

"ARTICLE XXII.

The said James H. Hardy, in entire disregard of his duty as such
Judge, as aforesaid, and in violation of public decency, order, and good
morals, has, during two years now last past, and while holding said
office, been in the frequent and common habit, while holding the terms
of the District Court of the Sixteenth Judicial District, in and for the
County of Calaveras, and in and for the County of Amador, of becoming
grossly intoxicated, and exhibiting himself to the public, as well by day
as by night, in a state of gross drunkenness."

VOTE ON ARTICLE TWENTY-TWO.

Names.

Guilty.

Not Guilty.

Baker

Banks

l>ogart

Burnell

( 'hamberlain

( 'rane

Denver

(lallagher

(iaskill

Harvey

llarriman

694

Names.

Guilty. Not Guilty.

Hathaway
Heacock ...

Hill

Holden

Irwin

Kimball.

Kutz

Lewis ...
Merritt..
Nixon ...
Oulton ..
Parks ...
Perkins .
Porter...
Powers . .

Quint
Khod

es.

Shafter.
Soule...

Shurtleff.....
Van Dyke...,
Vineyard ....
Warmcastle ,

Watt

Williamson .

Totals.

ANNOUNCEMENT OF VERDICT.

Thf Presiding Officer. — Two thirds of the Senate, composing a constitu-
tional majority, having voted for the conviction of the Respondent on
the Fifteenth xlrticle of Impeachment, he stands duly convicted on that
Article.

Less than two thirds of the Senators present having voted for the con-
viction of the Eespondent on all the other Articles of Impeachment, he
stands duly acquitted on those Articles.

What course do Senators propose to pursue in regard to pronouncing
judgment ?

MOTION TO POSTPONE TIME OF SENTENCE.

Senator Parks. — I move that the Court now adjourn until to-morrow
morning at ten o'clock.

Senator Crane. — I hope that that motion will not prevail.

Senator Parks. — We have a rule here which prevents us from doing any
Legislative business after to-day, and we shall need the balance of the
time to complete the Legislative business on hand and which ought to
be disposed of. I think" that to-morrow morning will be a sufficiently
early time to pass this resolution of sentence.

695

I strictly resented my right to reverse my action, on to-morrow morn
ing, upon those propositions contained in the Fifteenth Article. I asked
for time in M-hich to consider ray action in regard to that Article, and I
asked to be excused from voting ; and the Court refused to accede to ray
request, in both instances. Now, I ask that the vote on the sentence be
postponed until to-morrow morning, when I will be prepared to vote
understandingly.

^ ^Senator Burndl. — I hope that this proposed postponement until ten
o'clock to-morrow morning will not take place. Now, Mr. President, it
was very wn'U settled that this body could not sit as aCourt of Impeach-
ment after the Assembly had adjourned. We have passed a resolution
to adjourn sine die at twelve o'clock to-morrow morning. 1 think this
whole matter can bo disposed of to-day as well as if we postponed it
until to-morrow.

1 hope, that if any adjournment is had at all, it Avill be to some hour
this evening. And I make the motion, that we adjourn to half past
seven o'clock, this evening.

ISniator Merritt. — How many votes does it take to pronounce judg-
ment? I should like to know that. Does it take two thirds ?

S''nator Frrkim. — I think that we can pass judgment now, as well as
at any other time. Evening sessions are always disagreeable; usually
somewhat disorderly — all the evening sessions that I have ever wit-
nessed were. This is a matter of serious consequence. Our judgment
in regard to this matter should be, I think, given in the daytime.

The statute provides that it maj^ be one thing or another: removal
from office, with perpetual disqualification from ever holding office
again ; removal from office, without any disqualification attached ; sus-
pension from office, for an}' length of time we see fit to designate.

Now, I hope that the judgment will bo given to-day, immediately, be-
fore we adjourn. And then, what little Legislative business remains
unfinished, we can, immediately after, proceed to dispatch.

I should sujipose that it would be most agreeable to all the Senators
present to finish up this matter entirely to-da}'.

Senator Gnllanlitr. — One Senator has asked that we should adjourn
until half past seven o'clock, to-night. Now I, for one, shall accede to
that request, and I sincerely hope that every Senator on this floor will
do the same thing.

Senator Parks.— I hope that the Senate will adjourn until this evening,
at least.

Sniator Gallagher. — The Senator from Sutter has given his reasons for
desiring an adjournment, and to my mind they are good reasons.

I think this is a matter of too much importance, of too great weight,
to be rushed through with in a hurry. There are one or two Senators
here, who have intimated that they have not a distinct understanding of
the bearing of the law upon the point on which this Eespondent has
been convicted. So far as I myself am concerned, I might state that I
feel perfectly satisfied in regard to this proposition. I can only speak
for myself, of course.

I sincerely hope that the motion for an adjournment for a few hours
will obtain; and if the proposition to adjourn until to-morrow morning
at ten o'clock, is pressed, I shall vote for it.

Senator Crane. — I suppose that an adjournment until seven o'clock this
evening Avould suit the Senator from Sutter.

Senator Parks. — Just suit yourselves about that. I should prefer, of
course, to have an adjournment until to-morrow morning.

696

Senator Harvey. — I think that the Senator from Sutter will withdraw
his motion for a postponement. It seems generally desirable that we
should take final action in regard to this matter now. He says that the
Senators can suit themselves.

Senator Burnell. — As it seems to be generally desired that we should
dispose of this matter at the present time, I Avithdraw my motion to
adjourn.

THE SENTENCE

The Presiding OJficer. — The statute declares that the judgment shall be
in the form of a resolution.

Senator Crane. — I ofl'er the following resolution, as the judgment of the
Senate in this case :

Resolved, That James H. Ilardy, having been duly convicted of certain
high crimes and misdemeanor.s, it is hereb}' adjudged —

That the said James 11. Hardy be and is hereby declared suspended
and removed from the oliice of Judge of the Sixteenth Judicial District
— the oliice which he now holds.

Senator Crane. — I have purposely refrained from adding to that resolu-
tion a provision disqualityiiig the Respondent from ever holding office
hereafter in this State. W any Senator proposes to amend the resolution
in that particular, he can do so.

Senator Waimcastle. — I desire to ask the Senator from Alameda, what
he means by the words ''high crimes and misdemeanors?"

Senator Crane. — I suppose that this resolution will occupy in the record
of these proceedings precisely the same position as a judgment on a judg-
ment roll. In that, all the proceedings which have taken place in regard
to the trial are made a part of the record, and the nature of the judg-
ment is fully explained, if it needs any explanation outside of itself, by
the record of the charges on which the defendant is found guilty, which
charges are contained in that roll.

Senator Parks. — I would like to inquire whether there is not some
lighter penalty which can be determined upon in passing judgment.

Senator Merritt. — I propose to ofter a resolution, suspending Judge
Hardy from his office for the period of six mouths :

Rewhed, That James H. Hardy, District Judge of the Sixteenth Ju-
dicial District, having been convicted by the Senate, sitting as a High
Court of Impeachment, of uttering treasonable and seditious language
concerning the Government of the United States,

That the said James H. Hardy be and is hereby suspended from said
office of District Judge of the Sixteenth District, and from exercising
the duties and receiving the emoluments thereof, for the space of six
months.

Senator Crane. — Six months ! Why not say six days ?

Senator Perkins. — Is this resolution debatable ?

Se7iator Crane. — It is offered as a substitute, as I understand it.

697

Settator Perkins.— Now, I am not disposed to vote for that substitute,
llus Senate, by a two thirds vote, has recorded its deliberate judgment,
that an officer of one of the highest Courts of original jurisdiction'in our
State has been guilty of disloyalty to the Government. He has been
found guilty, whilst wearing the ermine, of uttering sentiments of hos-
tility to our Government; sentiments of hostility to that Government
which he was sworn to support, and from which he Avas receiving his
daily bread.

Senator Van Dyhc. — I think it is hardly necessary to occupy time here
in discussing this matter.

Senator Fcrkins. — I propose to discuss that substitute resolution.

Senator Van Dyhc. — I think that there is no necessity for discussing
that resolution ; for I do not think that we have any legal right to pro-
nounce such a judgment as is contained in it. The Constitution says
that the punishment shall be removal from office.

Senator Perlcins. — This resolution is offered as a substitute here. And
while I have no wish to occupy the time of the Senate in discussing it
at any great length, I must say that I feel indignant that such a resolu-
ti(ni should have been offered before this body at this time. Six months
suspension from office ! after a conviction of sedition and disloyalty. I
feel indignant that such a substitute should be offered here, for my vote.

Senator Merritt. — If I may be allowed, I Avill express my hope that the
Senator from San Francisco will permit his indignation to cool outside
of this Chamber, if it be just as convenient for him to have it so.

I offered that resolution because I thought, in the first place, that this
man had been unjustly convicted. Whatever may be my own opinion,
Sir, and whatever may be my views, about the taste of giving utterance
to such sentiments as Judge Hardy is alleged to have uttered, as this
Senate sa}' have been proved to have been uttered by him, I think that a
removal from office would be a punishment entirely too severe for such
an offence.

In order to arrive at the conviction which has been had here, and
which I say is un])recedented in the histor}^ of the United States, we
have had to go back and adopt the theory of monarchists in England
and other European countries.

If you remove this man from office, you wull establish a precedent — a

tj^'annical precedent — which w411 eventually crush out all free sentiment

! whenever it may be expressed against the Government. Why, Sir, if the

I gentleman will read the history of England, he will find that English

?! peers in Parliament, brethren of the King, have uttered sentiments

■ against the Government, stronger than those which have been charged
against this Defendant here, and they Avere not, even in monarchial Eng-
hmd, considered treasonable or seditious. Why, the Duke of Cumber-

■ land said he hoped that every British soldier who put his foot on Ameri-
can soil, during the Eevolutionary War, never Avould return alive, and
that all the British army here would be defeated. Was he arrested and
punished for using such language ?

Shall it remain^for Eepublican America, for the Legislature of a sover-
eign State in this Eepublic, to say, that if a man in jovial moments did,
pediaps, give utterance to his feelings and his sympathies in regard to
•the difficulties in the country, because he could not then control his ex-
pressions— shall it remain for a Republican Legislature to declare that
that man is thereby disqualified from, holding the office to which the peo-
ple in their sovereign capacity have elected him ?

If this Senate wants to teach this Respondent a lesson— if they want

698

to tell him that it is not creditable oV proper for him to use such language
in regard to the Government under which he is holding office, as he has
been charged with using — they can do that elfectually by adopting the
resolution which I have offered.

I am perfectly free to say, here, that I think that Avhatever may be a
gentleman's opinions in regard to the present crisis in the country, I
think it is in very bad taste for him to utter any sentiments of hostility
or dislike towards this Government, and especially to utter such senti-
ments in California. I do not utter such sentiments myself — whatever
may be mj'- feelings.

I think that a judgment of the Senate, removing the Eespondent from
office absolutely, is altogether too severe, is altogether disproportionate
to the offence.

Besides, the vote by which you found the Respondent guilty was the
vote of one or more gentlemen who exju'cssed themselves as exceedingly
doubtful concerning this very point of loyalty or disloyalty, and the
effect of using such language as has been alleged here — whether it con-
stituted treason or an impeachable offence. The Senator from Sutter
expressed grave doubts in regard to this matter.

At the same time, it was believed by many other Senators, that it
took a two-thirds vote to pronounce judgment.

I understood the gentleman from Sutter — and I think I understood
him righlh' — to say, that he reserved the right to retract or correct the
vote he gave on the Article under which a conviction was found, when
he came to pronounce judgment. 1 think, that on a fair expression of
this question, he would not have voted as he did, and then the ilespond-
ent Avould not have been convicted. And if that is the fact, I think that
it would be an outrage to deprive the Respondent of his office, under a
conviction obtained in such a manner.

These are my sentiments, Mr. President.

AVliatever may be my views and feelings in regard to the present con-
dition of the country, as a matter of taste, I keep them to myself. I
have them, I entertain them, and I shall utter them in respectful lan-
guage on all occasions when I deem it proper to do so.

Senator Crane. — I shall not occupy the attention of the Senate but for
a moment, on this question. I do not rise to discuss this question of
loyalt}' or dislo3'alty. That has been discussed enough.

The Senator from Mariposa seems to think it a very trivial offence
that is charged against the Respondent here — committed at a time when
we are involved in a tremendous civil war. w^hen the institutions of our
country are sought to be overthrown, when our Government is engaged
in suppressing the most infamous rebellion that the world has ever
known, and when the loj'alty of every citizen is appealed to, immedi-
ately, to sustain the Constitution and the Union. The Senator from
Mariposa seems to consider it a light matter, that a citizen, not in the
private walks of life, but occupying a high office and a distinguished \)0'
sition under the Government, should be found guilty, not on one occa-
sion merely, but on numerous and repeated occasions, of giving utterance
to language the most seditious. Here, an officer who has sworn to sup-
port the Constitution of the United States and the Constitution of this
State, is found endeavoring in every manner in which he can adopt, by
every species of abusive language towards the Government which he can
devise, to bring that Constitution of the United States into disrespect,
and thus to aid in overthi-owing it. The Senator from Mariposa seems
to think that for this great offence a six months suspension from office

699

is a sufficient punishment. I have no doubt, Sir, but what that distin-
guished gentleman to whose health the convicted party here has so often
proposed his toasts, Avould heartily agree with the Senator from Mari-
posa.

Now, what do we propose to do ?

We do not propose, by the resolution which I have offered here, to
prohibit Judge Hardy from holding office again under the Constitution
of tliis State, as we might very well do, and as I undertake to say, we
have the power to do.

I am willing, as a Senator here, acting from motives of liberality, and
with due charity to\vards the sympathies which we all know men must
feel for kindred and friends engaged in dangerous undertakings, to leave
the door open for this Eespondent to return to loyal citizenship again,
and become worthy — as he will remain eligible — to hold that highland
distinguished office from which we are about to depose him.

AVe propose now to simpl}^ declare that we remove this Eespondent
from the office of Judge of the Sixteenth Judicial District of this State.

Then Avhat follows ? Here is the point. The Governor will proceed
to ap])oint some one else to fill that office. That appointee will remain
the incumbent of that office until the next election in September. Then
let Judge Hard}' go before the people of that District and again present
liis clainis to their suftrages, as a candidate for this office. And if the
people of that District have a mind to say, in four months from this
time, that this person is a fit man to preside over their District Court, in
God's name let them say so.

But do not let us force this man npon them again, after the conviction
which we have arrived at in regard to him and his actions, and his lan-
guage. By this resolution which I have introduced, we leave this whole
(piestion of re-election to the people of that District; and if, by the date
of the next election — which is only four months hence — they choose to
reverse the verdict which has been given here, we grant them the entire
jKMver to do so. And if the Defendant here is sincerely desirous of
evincing his loyalty, he should be desirous that such a judgment be pro-
nounced, rather than one which takes it out of the hands of the people
to vindicate him from the charges which we believe to have been sus-
tained here. For, if you suspend him at all, at the expiration of the
time for which he is suspended he goes back upon the bench without the
indorsement of an election, and holds his terms until the expiration of
his last commission.

I hope that this substitute will not be adopted, but that the original
resolution will be sustained.

Smator Par/i-s.— Now, Sir, it appears to me that this Court is going to
ibe placed before the public in a similar position to that in which Judge
Hardy was placed by his arraignment before this body. We have already
been placed in the position of convicting him — the ayes and noes have
been called in the public press — by a strict party vote.

Now it is proposed that we proceed immediately to pronounce sentence.
This has been the strongest charge of corruption brought against Judge
iHardy on this trial — that of undue precipitancy in conducting legal busi-
fiiess before him. Judge Hardy has been accused here of indecent haste
lin taking a verdict in his Court. I say that I think that this Senate has
ibeen guiUy of a similar offence, or would render itself liable to a similar
Dharge.

In\'oting to sustain this Fifteenth Article, I voted " Guilty," because

700

I believed that the evidence was guffieient to prove that the Eespondent
had used the language attributed to him in all the instances named in the
specifications. But, Sir, I am not satisfied in my mind that that language
was such as to come within the meaning of "Treason" or "Sedition,"
as signifying a crime against the Government. The great latitude that
has been allowed every American citizen in expressing himself against
the action of the Government, affords something of a license for a man's
indulging in remarks about the institutions of this country.

But I must say, for one, that great doubt exists in my mind, whether,
if this Article is thoroughly proved — as I believe it is — the llespondent
is impeachable for using the language attributed to him. And I ex-
pressed my surprise before, at not having seen some authorities produced
upon that point. And I was astonished, in the first place, that the At-
torney for the Eespondent did not demur to the complaint, at least, on
that point. And I rose here to ask for some authority on that point — to
what extent a man could speak against the Government and not render
himself legally liable for the use of seditious and treasonable language.
But not one single sj'llable has been read here before us in regard to
that matter. We have been sitting here as jurors; and I, for one, was
attempting to listen as impartially as possible to tbe testimony and tlie
arguments, and decide tbe case presented to me, with candid deliberation.
But this Court forced me to vote. I was willing to vote that the Prose-
cution had thoroughly proved that the language attributed to the
llespondent was used ; but I am not willing to vote to expel the Respond-
ent from office, because I do not know as the uttering of the language
used by the Respondent comes within the purview of the law laid down
for the punishment of the crime of treason or sedition.

I shall vote for the substitute; and then I shall vote against that, if it
is adopted.

Si-nator Van Dt/he. — Senators speak in bad taste when they say that
we are endeavoring to improperly hasten the termination of this trial,
for they seem to forget that on to-morrow, at twelve o^clock, noon, the Le-
gislative session expires. "We have got to make sufficient progress with
this trial to enable us to get through with our Legislative business to-
night. I think, therefore, that the charge that we are endeavoring to
improperly hasten the proceedings in this trial to a conclusion, is un-
called for and unwarranted.

Now, in regard to the freedom tolerated in the expression of opinion
relative to the Government, it seems to me to have no application what-
ever in this case. The Respondent here, when he assumed the duties of
the office he now holds, swore to support the Constitution of the United
States, and we are bound here in our action to be governed by the testi-
mony submitted to us, in which we are told that he said, that the Con-
stitution had gone to hell. Kow, Sir, nothing less than actually bear-
ing arms against the Government of the United States can equal that.
And even the taking up of arms against the Union, might, in some in-
stances, be construed to constitute an oifence less grievous than was such
an utterance under all the circumstances amid which it was made.

Senator Parks. — It has been remarked in this Senate, a thousand times,
during this winter, that the Constitution was " played out." But no
man thought of impeaching a Senator for making such a remark. But
the remark was made just as much in violation of an oath to support
the Constitution of the United States, as was this remark, which was
made by Judge Hardy.

701

Senator Crane— [Sotto voce.] The character of the offence would de-
pend very much on the spirit in which the language was uttered.

Senator Pnrk^.—l suppose that it may have been uttered on this floor
in very much the same spirit in which judge Hardy uttered it, perhaps.

Sniutoj- Rhodes. — A single word, before the vote is taken on thi.s ques-
tion. 2sow. in many cases I would be perfectly willing to adopt the
substitute offered by the Senator from Mariposa. But he must remem-
ber this, and all Senators must keep this fully and fairh- in mind : if the
Respondent is guilty on this charge — and we have voted that he is — we
know that these expressions are'the result of a deliberately formed
opinion. This is not an offence which he might have committed in undue
excitement, or in a violent bur.st of passion. It is not an offence which
ho ma)' have committed once or twice, because he had become intoxi-
cated from drinking. But, if he is disloyal, I take it that these are the
deep expressions of his heart.

I think that the sentence should be, complete removal from office. If
he is liable to be removed at all, it is because he is an improper and in-
competent man, on account of entertaining these sentiments, to hold this
judicial position. Then, if, by reason of entertaining these sentiments,
-lie is an incompetent person to sit as Judge in one of our Courts to-day,
he will be no more competent to hold that position at the expiration of
■six months; no more competent then than he will be at any time during
iiis term of office.

Senator Soule. — Will the substitute be open for amendment after it is
dopted ?

Senator Merritt. — Amend it now. if you like.

Senator S(mle. — I should like to hear the substitute read again, before
I vote upon it.

[The Secretarj' re-read the substitute.]

Senator Perkins. — I demand the ayes and noes on the question of the
iloption of the substitute.

VOTE ON THE SUBSTITUTE.

t The roll being called by the Secretary, the following vote was re-
i orded on the substitute resolution offere'd by the Senator from Mari-
na :

Ayes— Messrs. Baker, Bogart, Burnell, Denver^ Holden, Lewis, Mer-
•itt. Parks, Vineyard, and Williamson — 10.

XoES— Messrs. Banks, Chamberlain. Crane, Gallagher. Gaskill, Har-
.ov, Harriman, Hathaway, Hill, Irwin, Kimball, Kutz, Xixon, Oulton,
Perkins, Porter, Powers, Quint, Ehodes, Shaffer, Soule, Shurtleff, Tan
Dyke, and Watt— 24.

Senators Heacock and Warmcastle declined to vote.

After the Secretary had finished calling the roll, Senator Irwin— who
It first voted '• Aye" — rose and said :

•' Call my name again, Mr. Secretary. I see that the Senate is gomg
0 vote the ' whole hog,' and so I will vote 'No,' too."

The Presiding Officer.— The question is on the adoption of the original

Senator Gallagher.— I have refrained thus far, Mr. President, from say-
11 g anything in regard to this matter, but before the final vote is taken,
have one remark to make.

702

In regard to these Articles, Sir, of every charge contained in them,
Judge Hardy sits before me to-day, in my judgment, an innocent man,
except with reference to the charges contained in the Fifteenth Article.

I shall vote for this resolution, on the ground of that one Article
alone.

Seimtor Quint. — I move that the resolution be amended so as to read,
that the llespondent is found guilty, as charged in Article Fifteen,

Senator Crane. — I have no objection to that.

Senator Merritt. — The accused, before judgment is pronounced by this
Senate, desires to ask leave to address the Senate for five minutes. [Cries
of " Leave !" " Leave !"]

Senator Irwin. — Let us take the vote first; he can speak afterwards.

Senator Merritt. — Oh, no ! That would amount to no opportunity at
all. What would a man want to speak for, after he is sentenced ?

SPEECH OF JUDGE HARDY.

Judge Hardy rose and said :

Mr. President, and Gentlemen of the Senate: — The position in which
I stand before you to-day, is not a new one. I am not the first man who
has fallen a victim to p(>j)ular frenzy. I. do not stand here to censure any
Senator upon the flooi* of this Senate, for the vote which he has cast, or is
about to cast to-day. I have no doubt that every Senator has been actu-
ated by a conscientious conviction in the discbarge of his duties.

There is a tribunal, however — the lower branch of this Legislature — ■
the " Investigating Committee " of the Assembly — which I do arraign
for higher crimes and misdemeanors tlian evCr my heart conceived, or
ever this Senate could try. And the hour will approach, as certain as
God is just, when Senators on this floor will lay tlieir hands upon their
hearts, and regret their vote against me this day, as the worst of their
lives.

Thank God, and a clear conscience, this Senate has acquitted me of all
dishonor. This Senate has disrobed this Prosecution of all within it
that could taint and tarnish my reputation for honesty and integrity.
That reputation was the dearest jewel of mj life. Had I cherished it
otherwise, I should not have appeared at the bar of this Senate at all.

But as I have told every friend, as I have told that little family, to
the bosom of which I shall soon retire in private life, I never doubted
the very result that I have witnessed here to-day.

I came here with a certain and abiding conviction in my mind, that I
would be able to protect my reputation ; and, as to my politics, if I fall
under them, I have this consolation : Better men than I have perished
likewise.

Senators : When the great and good, the world-renowned Algernon
Sidney, laid his head upon the block, and was asked by the executioner
whether he should ever rise again, his answer was : " Not until the Res
urrection : Strike on !" Strike I Senators ; the victim is ready for the
sacrifice, and the mob is eager for his blood. [Applause and hisses.]

Senators : I have always despised the rabble. I have always despised

703

those who would violate or sacrifice the laws of the land in which they
lived. And that man who lays treason to my soul, is in his own heart a
traitor. That I have been jovial, that I have been jocose, that I have
been good-humored with those with whom I associated on terms of
friendship and intimacy, is most true; but that I have ever, in one single
hour in my life, harbored one thought that was not for this country, the
whole country, the Constitution and the flag of the Government under
which I was born, is not true. [Applause.]

Senators : You have been told that I used language disloyal in its
character, in fits of mirth over the Avinc table, perhaps — at the bar of the
saloons, perhaps — when in diftcrcnt places with my friends. I have heard
one Senator say that his vote for my conviction was produced by the
positive assurance and belief that my disloyal expressions were the
avowals of deliberately formed opinions. I ajipeal to that Senator's con-
science, if every witness who appeared upon the stand and spoke upon
that subject, did not tell him that those expressions were uttered in the
midst of frivolity and jovial mirth. Not one exception to this, save in
the single instance when I said that I would not, and coiild not, under
the sanctity of my oath, naturalize a man who held sentiments not fa-
vorable to the Constitution and the Union of these States. If that be a
ci'ime. then I suppose that if I had told that gentleman, who testified to
that matter, that I xcould naturalize such a man, I should have confessed
a willingness to do that which would have been no crime. I suppose
tluit it would have been no crime if I had just reversed this — the only
deliberate expre.ssion of sentiment in regard to the Constitution and the
Union which has been shown here, by the Prosecution, to have ever
^passed my lips.

Senators : I now say to you, as said that man whose name I men-
tioned to 3'ou a little while ago, Strike on!

I Senators : It is a matter of perfect indifference to me whether the
igubstitute offered by my friend, Mr. Merritt, be adopted, or whether you

! adopt the resolution which has been introduced by the gentleman from
Ahuneda. That is a matter of perfect indifference to me; for in either
event I assure you the result will be precisely the same, as it affects my
.own action.

I This much I promise you : That those Senators who have voted to-
' day to sustain me in mj' position, who have given it out to the world as
their sincere and abiding conviction that I am an innocent man, shall
never regret the vote which they have cast to-day— if the grateful aid of
;i strong hand, a willing heart, and a clear conscience, to the end of my
life, shall be a gratification to them. My own self-respect will call for a
lirterent treatment to others.
I thank you, Senators, for your patience and attention.

704

THE GEOUN^D OF CONYICTION SPECIFIED.

The Presiding Officer. — The question before the Court is on the propo-
sition of the Senator from Mono, (Mr. Quint.) to amend the original res-
olution of sentence, so as to embrace within it a specitication of the Arti-
cle under Avhich the Eespondcnt has been convicted.

Senator Crane. — If the Senator from Mono insists upon that amend-
ment, I shall not offer any objection to it. It seems to me, however,
that it amounts to the same thini!;.

Senator Quint. — It certainly ouirht to be stated in this resolution, that
Judge Hard}' was convicted on this one Article alone. Here are twenty-
two Articles, and upon twenty-one of them ho lias been acquitted.

Senator Mvrritt. — Certainl}'. Let it go to the world, that the Defend-
ant here has been convicted under the Fifteenth Article. Let that be-
come a part of the history of the country; and, also, that he was not
convicted under any one of the other Articles. I move to amend the
resolution, so that it shall read, that the liespondent was found guilty
under the Fifteenth Article.

Senator Crane. — I have no objection to that. Let it read, that the Re-
spondent was found guilty of the high crimes and misdemeanors con-
tained in all the specirications of the Fifteenth Article of Impeachment.

Senator Mcrritt. — That is it ; call them what you like.

Senator Rhodes. — I do not suppose that there can be any objection to
that. It will only be indicating precisely what we have done, and will
probably be more acceptable to the Eespondent.

While the resolution, as amended, is being written out, I desire to
state this, in justice to Judge Hardy : 1 do not wish either Judge Hardy,
or his friends, to be under the impression that I made a charge against
him, as an individual, that these sentiments, attributed to him, and
proved to have been uttered by him, were deliberately expressed.

I was merely stating to the Court what I understood to be the legal
consequence of the Ee.spondent having been found guilty under the spe-
cifications which the Prosecution made in Article Fifteen. Kot that I
knew of, or had any outside information or belief on the subject at all.
But I merely asserted that such was the legal result of the deliberations
of the Senate in regard to that Article, and the Eespondent's guilt under
it.

I made no charge against Judge Hardy, personally. His demeanor
during the progress of this trial has been exceedingly proper — as appro-
priate as could have been expected from any gentleman in the world.
So far as his conduct here in Court is concerned, it has been calculated
to produce a very favorable impression respecting him. Of course he
will not imagine, for one moment, that I desired at such a time as this
to knowingly say one word to insult him, or unnecessaril}^ wound his
feelings. In saying that these expressions, which in Article Fifteen he
is charged to have used, were the utterance of deliberately formed sen-
timents, I desired simply to convey my opinion as to their legal effect,
according as the Senate had determined that by their vote here to-day.

705

THE AiMENDED RESOLUTION.

The Secretary read the amended resolution, which was as follows :

Resolved, That James II. Hardy having been duly convicted of the high
crimes and misdemeanors charged in Article Fifteen of the Articles ot
Impeachment presented hy the Assembly, it is hereby adjudged that the
said James II. Ilni'dy be, and is hereby declared, suspended and removed
from the office of Judge of the Sixteenth Judicial District of this State.

Senator Quint. — I move that the resolution be furthei- amended by add-
ing : "And that he is hereby acquitted upon all the other Articles."

The Preaiding Officer. — That is not required, at all, for under the stat-
ute the Respondent could not be convicted without a two-thirds vote ;
and the record shows that it was onl}' upon this Fifteenth Article that
the constitutional majority voted to sustain the Impeaclnnont.

VOTE ON THE RESOLUTION OF SENTENCK.

The Secretary called the roll on the adoption of the resolution of sen-
tence given above, with the following result :

Ayes — Messrs. Banks, Chamberlain, Crane, Gallagher, Gaskill, Harvey,
Ihirriman, Hathaway, Heacock, Hill, Kimball, Kutz, Nixon, Oulton,
Perkins, Porter, Powers, Rhodes, Shafter, Soule, Shurtleff', and Van
Dyke— 22.

Noes — Messrs. Baker, Bogart, Burnell, Denver, Holden, Irwin, Lewis,
Merritt, Parks, Quint, Vincyardj Warmcastle, Watt, and Williamson — 14.

EXPLANATION OF VOTES.

SENATOR parks' EXPLANATION.

Senator Parks, when his name was called, rose and said :

Mr President, I shall vote •' No," on this resolution, for the very rea-
son which I stated before. I am satisfied that the Respondent used this
lano-uao-e set forth in the specifications of Article Fifteen, but I am not
satisfied that in so doing he committed a crime for which he can be
impeached. I vote "No."

SENATOR BURNELL's EXPLANATION.

When the name of Senator Burnell was first called on this roll, he did
not respond. After Senator Parks had finished his explanation, Senator
I Burnell was called upon to give his vote.

Senator Burnell— 1 wish to be excused from voting on this resolution.
[ am in some doubt about it. I voted for the substitute, and did so in
(rood faith. I do not feel disposed to shirk any responsibibty in regard
89

706

to this matter. I cast my vote in favor of convicting the Ivcspondent,
knowingly and understandingly, both with respect to the facts and the
law. Ihavc no apologies to make ; none arc necessary.

Senator Williamson. — Then vote.

Senator Burncll. — I ask to be excused from voting on this resolution.

[Cries of '• Object !" " Object !"]

The Presiding Officer. — The question is, Shall the Senator from Amador
be excused from voting '(

The Court refused to excuse Senator Burnell from voting.

Senator Burncll— T\\(iV\ I vote " No."

SKNATOR HKACOCK's KXI'LANATION.

Senator Chamhcrlain. — I would ask to have the name of the Senator
from Sacramento, Mr. Ileacock, called.

Senator Jle^iank. — I believe that my vote has already been recorded by
the Secretary. But since I have been called up by the very anxious
Senator from San Joaquin, I desire to state. Sir, that I have sat here to-
day to discharge the most painful duty that I have ever been called upon
to perform in the whole course of \\\\ life. I have discharged that duty
according to my understanding of the law and the testimony. Could I
have fornicd in my own mind any valid reason for being in my own
county, many miles away from here, I certainly should not have been
present in this Court to-day. Such have been my relations with the
Respondent in this case for the last nine or ten years — I may say that I
have been a part of his family — that, if possible. I would have avoided
being here to-day. But I felt it to be my duty to remain at my post,
and —

Here Mr. Ileacock. who had given utterance to the above remarks
with evident and great embarrassment, found it impossible to proceed.
His power of distinct articulation failed him, his eyes brimmed with
tears, and apparently overborne with a burden of grief he resumed his
seat — as he did so, ejaculating, in tones of profound emotion : '• Mr.
President, I am not a man — I cannot talk. Sir — I am not a man !"

ANNOUNCEMENT 01' THK VOTE.

The Presiding Officer. — The resolution is adopted b}' the following vote :
ayes — 22 ; noes — 14.

The judgment will be entered upon the record.

A HOPE.

Senator Merritt. — Now 1 hope that Governor Stanford will appoint
some very black Republican to the office of District Judge of the Six-
teenth Judicial District.

AN INQUIRY.

Senator Crane. — I would inquire whether it is not usual, in parliamen-
tary proceedings of this kind, to inform the Respondent, officially, of
the character of the final judgment, in the presence of the tribunal
which has made the decision '{

Senator Merritt. — It is not necessary to add insult to injury.

707

THE HIGH COURT OF IMPEACHMENT DISSOLVED.

The. Prrsiding Officer. — This High Court of Impeachment, having heard
all the testimony and the ai'guments produced upon the Articles of Im-
peachment presented by the Assembly against the Eespondent, James
H. Hardy, has discharged the Eespondent, without day, on all the Arti-
cles of Impeachment except the Fifteenth. Upon that Article, judgment
has been pronounced.

There being no further business before this High Court of Impeach-
ment, I hereby declare that it is dissolved.

The Sergeant-at-Arms proclaimed that the High Court of Impeach-
ment, organized to try charges preferred by the Assembly against James
II. Hardy, late Judge of the Sixteenth Judicial District of the State of
('alifornia, was dissolved.

INDEX TO PRELIMINARY.

Page.

Annonnocment by President Chellis 5

Announcement by President Shafter 11

Announcement of Counsel 10

Answer of Respondent 11

Appointment of Official Reporters 6

Articles of Impeachment 14

Calling of the Roll 8

Concerning Taking of the Oath 12

Concerning Counsel for the Prosecution 24

Entrance of Prcsentors and Counsel 9

Pormality waived 24

Page.

Opening of the Court , 6

Opening for the Prosecution 27

Order of Institution 9

Proclamation 9

Reporters sworn in 11

Respondent appears 9

Return on Subpoenas 9

Rules of the Court 6

Senator Hill sworn in 39

Senator Porter sworn in ,.. 24

The Oath 8

INDEX TO TESTIMONY.

Observe. The Report of " Preliminary Proceedings" is printed under pagings separate and
diatinct from those which cover the print of Report of Testimony, Arguments, and Final Pro- i
•eedings. The Report of "Preliminary Proceedings "—occupying the first thirty-nine pages of ^
ihis book — is separately indexed.

Page-
Allen, Alfred 123

Allen, James 340

Armstrong, John W 234

Askey, Armstrong 247

Atwood, Henry 421

Avaline, 0. D 330

Axtell, S. B 127

Aylett, W. D „ 181

Badgcly, W. H 385

Benjamin, Jacob 237

Bicknell, J. W 315

Botts, Charles T 182

Boucher, T. C 338

Boucher, W. K 107

Bradley. B. T 251, 343

Brockway, S. W 3, 7, 21, 26, 432, 446

Brown, Harvey S ~. 369

Brown, Joel 118

Barke, John 336

Bnms, John „ 439

Byrne, H. H 365

CMnpbell, Thomas [Manager] 449

Carder, E. D 297

Coolidge, W. S 125

Cornwall, P. W.„. „ 387

Crane, Samuel 419

Daly, R. H - 443

Dwny W. C „ 116, 443

Pagsl
.. 34P«

Doak, J. R 3*

Dudley, Allan P 89, 447

Dudley, Charles P 100, 438

Dudley, William L 59, 65, 4291

Eproson, Robert 337

Evans, Ellis 2S#

Farley, J. T 314

Finnegan, J. H 14"

Fisher, Leroy S 381

Freelon, T. W 363

Gatcwood, W. Jefferson 114, 188, 42$

Genung, A. W 5, 17, 84, 21f

Gordon, Marion 1''

Griswold, J. W 109, 39<

H I

Hansom, John 113, 39i

Hanson, Thomas M 283, 31'

Hepburn, Dr. James 25

Hoge, J. P 28

Holbrook, C. B 43

Hubbard, James F 39

Irvine, William 261, 34

Irwin, Richard [Senator] 1"

711

Page.

Kincaid, B 324

Kress, George 243

Uake, Delos 347,363

[laspeyrc, Thomas 153, 174

jatimer, D 342

^cavitt, William H 423

[jevy, Isaac 189

[lightDcr, C. W 273

[lOckwood, George 391

iombard, Charles 418

3VC

Matrce, S. L 421, 444

Vlanchcster, J. B 399

Vlurshall, B. F 345

vliisterson, Terence 332

vluyiiard, E. F 441

Vlc(iannin, James C 397

klcUale, Ulick 423

»Ioore, Frank 438

tlorrill, Jesse 397

tlosrs, William F 333

isr

>ioUis, WUliam 103

lelsoD. W. H 328

aul, Robert H 240

•eak, William 388

'eck, George 410

'hillips, Henry 105,390

Ray, Horace 395

Robinson, J. R 315

Robinson, Tod 275

Rose, A. H 322

Sawyer, E. D 326

Scrober, Frederick 190

Seaton, G. W 207

Segar, George 398

Severance, J. G 119

Shafter, J. McM '.'.'.... 12Q

Sherman, George 106,436

Smith, Joseph 392

Smith, J. S 102

Snyder, Francis 185,393

Southard, J. B 192

Spaulding, M. W 422

Sturgis, H. M 389

Taylor, Daniel T 140

Thompson, Peter 249

Thorne, B. K 203,316

Tilden, H.J 97,394,425,434

Treat, J. F 259

Triplet,.Daniel L 343

Troube,' Henry 246

Turner, J. F 211

Walch, William 201

Walker, George R 199

Wallace, William 345

Weller, Conrad 198

Wells, WUliam 206

White, E. B 111,398

Wood, Charles 98,393,434

INDEX TO ARGUMENTS AND FINAL PROCEEDINGS.

Page.

Opening Argument for the Prosecution 477

Argument for the Defence 513

Argument for the Defence, continued and

concluded 555

Closing Argument for the Prosecution 611

Piling Opinions, and Mode of Voting 650

Vote on Article One 656

Vote on Article Two 658

Vote on Article Three 659

Vote on Article Four 661

Vote on Article Five 662

Vote on Article Six 663

Vote on Article Seven 664

Vote on Article Eight 666

Vote on Article Nine 667

Vote on Article Ten 668

Vote on Article Eleven 669

Vote on Article Twelve 671

Vote on Article Thirteen 672

Vote on Article Fourteen 673

Vote on Article Fifteen 678

Vote on Article Sixteen 679

Vote on Article Seventeen 681

Vote on Article Eighteen 682

Vote on Article Nineteen 683

Page.

Vote on Article Twenty 685

Vote on Subdivision One of Article Twenty-
One 687

Vote on Subdivision Two of Article Twen-
ty-One C88

Vote on Subdivision Three of Article Twen-
ty-One 690

Vote on Subdivision Four of Article Twen-
ty-One 691

Vote on Subdivision Five of Article Twen-
ty-One 692

Vote on Article Twenty-Two 693

Debate in regard to the " Disloyalty" Ar-
ticle 676

Announcement of Verdict 694

Motion to postpone Time of Sentence 694

The Sentence 696

Vote on the Substitute 701

Speech of Judge Hardy 702

The (iround of Conviction specified 704

The Amended Resolution 706

Vote on the Resolution of Sentence 706

Explanation of Votes 706

Announcement of the Vote 706

High Court of Impeachment dissolved 707

[NoTK. — On page 105, twelfth line from bottom of the page, for " drunk " read "drink."]

REPORT OF TESTIMONY

TAKEN BEFOBE

THE SENATE COMMITTEE ON ELECTIONS,

IN THE

CONTESTED ELECTION CASE.

JOSEPH M. CAVIS, Contestant, against LEANDEB QUINT, Eespondent.

rora before I did; that is all the men I saw about the mountain, except
mv own cojnpany of six. 1

Q. — "What indications did you see that other parties had been there ? 1

A. — I could see, occasionaily, where horses that had been shod had
passed, and, occasionally, where a camp fire had been, which I judged
to be the camps of white men. by seeing bottles lying about. IS'o
other indication, no well beaten trail, nothing but Indian trails. This
was in July. I made inquiries for white men, of the Indians. I saw
where there had been some picking and digging, which would take a man
an hour to do ; saw it in two or three different places.

Q. — If at this place designated as Big Springs, what stream is that
on?

A. — There is no stream. It is a small lake. The stream sinks.

Q. — What indications, if any, were there at that place, of white per-
sons having been there?

A. — Saw signs of horses and men having camped there ; also, two or
three places where fires had been, but no indications of permanent resi-
dence.

Q. — Did you come across any cabins or tents while you were gone ?

A. — 1 did not see any cabins, tents, or tent poles, nor any indications
of remains of any cabins or tents about the White Mountains.

Q. — What mining camps are nearest to the White Mountain District?

A. — Mono and Auroi-a are the nearest and onl}- places for supplies.

Q. — Are the Adobe Meadows in tlie White Mountains?

A. — About thirty miles from the White Mountains. Saw two persons
at Adobe Meadows, who were travelling on the road between Mono and j
Visalia. '

Q. — Were you ever at the White Mountains again, after your return ?

A. — I was.

Q.— When ?

A. — In October last. Don't recollect the date. Messrs. Clias. Schultz
and Auld were with me. We went the same road I went before, to Cot-
tonwood Creek; then went south across the creek, and up said creek to
the summit of the mountain on the southeast side. Found a Inibitation at
the head of the creek ; also, five men — William (iraves. (said his name was
William B. Graves.) Col. C'rawley.and Mr. Wyman; don't recollect others,
Eemained there over night. Crossed over to the southwest side of tho -,
mountain, near Owens' River. We camjicd at a place called Big Springs,
about six miles from Owens' River. Judged the distance by seeing stock
grazing. AVe then went up on the west side of the mountain, northerly.
Passed within sight of the Lone Pine. Camped at the Hot Springs Val-
ley, some four or five miles from the base of the mountain, and somo
twenty-four miles from where we camped the night before, and within
sight of the Big Springs that I have spoken of before, the first on the
north end. Did not go quite round the mountain; within somo ten or
twelve miles on the east side, and five or six miles on the west side, from
the southerly end. Am not positive about any of the distances. I have
named all the persons I saw on the trip, except two I met on the road
going to Owens' River District, who were my acquaintances. Met three
others of my acquaintance, from Mono, who said they were going to Vi-
salia. o o

Q.— What indications of parties residing in the White Mountains did ■
you see on this trip ?

■^- — I saw no indications at anyplace except at the cabin where I saw
these men. At the base of the mountain, on the southwest side, there

,werc the same indications of camps. At the Big Springs, as at the springs
on the other side, there were no indications that cabins had ever been
erected ; nothing to build with.

(^. — Did you have any conversation with these persons whom you saw,
relative to the iSeptember election ?

[Objected to. on the ground that it is leading and hearsay evidence,
giving tlie declaration of a third party. Objection sustained.]

(^. — How long were you gone on this last trip?

A.—Ten days.

(^. — What object had you in view, in making that trip?

A. — To i»rove that the election returns from that district were a frauds
I went i^) set' William (Jraves, who was reported to have headed a peti-
tion to the Hoard of Supervisors of Mono County to establish an election
district in the White Mountain Precinct — to prove that no such petition
■^as over sent.

(}. — Have 3"ou examined the original election returns of Big Springs
Camp, on file in the ottico of the County Clerk of Mono County ?

A.— I have.

(-1. — IIuvo you examined the list of voters returned on file in that
oiVuc '{

A. — I have.

(-1. — Are you acquainted with any men bearing the names contained in
that list?

A. — 1 am acquainted with several on that list, in Aurora. They were
in Aurora on election day.

(^ — Do you know ol" any men bearing the same names as those upon
the list, whom you know to have been at any time in the White Moun-
tains ?

A. — I do not.

(^. — 1)1,1 yoii ever know of any men bearing the names of those
returned either as Judges, Inspectors, or Clerks ?

A. — 1 dill not.

(^. — What was the appearance of the original returns, on file in the
office of the County Clerk ?

[Objected to, on the ground that the testimony is illegal — irrelevant.
Objection sustained.]

C^. — I),, you know of any others except those you knew in Aurora?

A. — 1 know a great many men, in diticrent sections, bearing similar
names to those on the list.

(^._l)i,l you make other inquiries, other than at the White Mountains,
conccrning'the parties whose names were upon the poll list?

A.— I inlide inquiries, generally, of parties I was acquainted with. I
took particular pains to ascertain about the election.

Q._lIow many parties, bearing the names upon the poll list, have you
been able to ascertain ? , • a

A.— Five or six. Three, of the same names, I knew to be in Aurora on
the dav of election.

Q.—'Besides those, have you been able to find any other parties.''

A. — I have not. , ,^^, ., ,,

Q.— How many places in the vicinity of the White Mountains are

designated as the Big Springs?

A.— There are three 1 have visited.

Q._Wherc is the third one ?

A.— One on tho easterly side j forms a httlc lake.

Q —How far from the base of the mountain ? ^

A.— I should think about six miles. Forty miles from Crawley Campj

Q __Did you find any indications of parties having been there ?

A. — The same as before.

Q. — Any appearances of remains of buildings?

A. — Nothing of the kind ; not even a beaten road.

Q. How far arc the Springs on the southwest side of the mountain

from Crawley's ?

A. — They call it fifteen miles. I should judge it is about twenty.

Q. — Do you know of any other springs designated as the Big Springs,
in the White Mountains ?

A. — Know of none. ,

Q. — Have you found any indication of any parties having worked at
any of the springs or camping places, other than those you have stated ?

A. — I found indications of some work having been done on a copper
lead, about twelve miles from the White Mountains, in the range west
of Death'sValley. 1 found also, at that point, tracks of shod horses — I
judge three horses — which wc tracked from that jjlace to the mouth of
the gulch, where the work was done. This was the first trip.

Q. — Did you examine the original jictition i'or establishing a voting
precinct at the White Mountains, on file in the Clerk's office?

A. — I did. There were five names signed to it.

Q. — At any time after 1 [Cavis] arrived at Aurora, did you make
search for that paper at the Clerk's office ?

A. — I believe I did, in company with Judge Macbin.

Q.— Did you find it?

A. — I think not.

Q. — AViio assisted you in the search, besides Judge Machin ?

A. — Either the Clerk, or his Deputy ; I have forgotten which.

Q. — Have 30U known of any parties coming from the White Moun-
tains to Aurora, for supplies, at any time ?

A. — When I left the White Mountains the last time, I came in company
with the Crawleys as far as the Adobe Meadows ; they were going to
Mono.

Q.— No others ?

A. — I know of several parties getting supplies, going out from Aurora
before I did, and coming back ; tliey were out prosjtecting.

Q. — Did you ever receive any papers from the Clerk of Mono County,
to serve on Judge Quint ?

A.— I did.

Q. — What were they?

A. — Notice of contesting his scat in the Senate, Avith my specifica-
tions, which I had filed, and the grounds on which it was contested.

Q. — What did you do with them ?

A. — I gave them into the hands of Judge Machin, to send to Tuolumne
County.

Q- — Do 30U know with what regularity the mails or express ran be-
tween Aurora and Sonora ?

A. — I do not know of any other than by Placerville. There was a
conveyance twice a week, by way of Placerville.

Q- — How long docs it take a package to go from Aurora to Sonora, by
that conveyance ?

A. — Throe days to Placerville. Don't know how long from Placer-
ville to Sonora.

Mr. Kimhall. — Are taere any inducements of any kind in tho White

Mountains, or vicinity, for any considerable parties to visit or settle
there '.

A. — None whatever. Occasionallj^ a green spot, where j^ou find ante-
lope and Indians. That is the general character of the country, as far
as I have been, around the mountains. Near the summit of the White
Mountains, on Cottonwood Creek, there is a habitation, and a company
prospecting, to try the value of some quartz, called the Crawley &
(J raves Company. These are the only persons I saw located in the dis-
trict.

^l — ^^'orc there any evidences of those persons being permanently
located there ?

A. — (braves' company were putting up an arastra, to try some quartz,
and had a cabin iTi'ded.

CROSS EXAMINATION.

Q. — llow long have you resided in Mono County?

A. — 1 went there the eighteenth day of January, eighteen hundred
and si.xty-one. and lell there the tifth of December.

(^. — At what |>hices did you reside while you were living there?

A. — .\t Aurora and Mono.

il- — Wiiat is the character of the country in Mono County, in respect
to the pursuits ?

A. — About Mono a great many people arc engaged in placer mining
and merchandising, and a few in ranching stock.

Q. — In other htealities?

A. — About twelve or fourteen miles from Mono there is a place called
Boda ; some jtrospecting for silver and quartz. Aurora is the largest
place in the county ; is the county seat ; and is a rough, hilly, and barren
country, covered with pines. The Esmeralda District abounds with
quartz! and gold, and silver; otherwise, it is a barren and desolate sec-
tion of country.

Q. — In what respect, il" any, does it differ from the AVhite Mountain
District?

A. — There is not any quartz about the White Mountain District, and
no placer diggings, that 1 ever heard of There are over a thousand
ledges in Aurora and vicinity, and I never heard of but a few in the
Wliito Mountain District. In other respects it is very similar to Au-
rora.

g._Do you not know that some time during last summer there was
quite an excitement at these mountains, in regard to the mines in that

localitv?

A.— iThere was quite an excitement around Aurora, and also at Mono,
about some supposed mines at Walker's Lake, northeast of Aurora.
Large parlies went there during the last of June and the first of July.
All whom 1 knew, returned in the month of July. Several parties, after
that excitement, visited the White Mountain District; among them was
my own party. This was during the last of July, and the first of Au-
gust. , • A 1

Q._l)on't you know of a large number of men leavmg Aurora and
Mono, for the^Whitc Mountains, about the time you did ?

A.— I know of seventeen or eighteen, including myself I left Aurora,
but was at Mono, however, two or three days before I left. I heard ol
the excitement before I left Aurora. .. j v 4.

Q._Wcre not the people considerably and extensively excited about

the prospects of gold and silver said to have been discovered in the
White Mountain District?

j^ I never heard of any in the White Mountain District ; it Avas at

Walker's Lake — more remote from the White Mountains tlian Aurora
is from the Lake.

Q W'as it not in consequence of the excitement that you started for

the White Mountains?

A.— It was not. Before I started, parties were returning, and pro-
nounced it a humbug.

Q._Were you ever at the 8ink of Walker's liivcr ?

A. I have been very near it — in sight of it. Believe it is called

Walker's Lake.

Q. — When was that ?

A. In February and March ; I assisted to organize Union District.

Q. — How man3^ people were there ?

A. — I believe five, when we organized the District.

Q. — How many do you know to have been there at any time?

A. — I believe there were forty at one time.

Q. — Was the camp forsaken ?

A. — Yes, Sir.

Q. — How long did it continue to be settled ?

A. — About three days. There were five or six of us in a party, that
remained about two weeks.

Q. — Dij you erect any habitations, or anything of the sort, at that
time?

A. — None at all; had a tent with us. When wo left, we left evidence
of peoi)le having camped there, and what little work we did.

Q. — Do you know, at any one time, of from three hundred to six hun-
dred men in that locality, camped, and prospecting for gold and silver?

A. — I do not.

Q. — Do j'ou not know that in that section of country, and all mining
localities in the State, excitements frequently occur which bring together
a large number of men for a short time ?

A.— I do.

Q. — Do they not frequently desert the locality within a few days,
without making any permanent location, or erecting habitations?

A. — It is frequently the case.

Q. — Did }ou ever hear of any excitement about gold and silver mines
in the White Mountain District?

A. — I heard of no excitement about the White Mountain District, but
considerable excitement about Walker Lake.

Q. — What is the character of the soil about the White Mountains?

A. — Sandy plains and alkali deserts. There are no trees or timber
with wliich to erect residences, only in the mountains. There is timber
all through the mountains.

Q. — How long have you been engaged in looking up testimony and
preparing this case ?

A. — Since the first of October, or last of September. I commenced
getting the testimony about a week previous to my filing the petition.

Q- — How far is it from Aurora, or Mono, to the first Big Springs you
have spoken of?

A. — It is about sixty-five miles from Aurora, and about the same from
Mono. From that spring to the spring cast of the White Mountains is
from forty to fifty miles. It is about a Imndred to a hundred and ten
miles from Aurora to the last spring spoken of. From the last named

spring to tlic third big spring, is about sixty-five or seventy miles. The
last iuuiumI spring is about a hundred miles from Aurora, and about the
same lo Mono.

Mr. Crnnr. — Arc all these springs in Mono Count}'?
A. — 1 do not know.

Mr. L'uts. — Have you ever been in the silver district?
A. — I have not.

Mr. Iru-in. — Is it a sandy country?
A. — It is.

(^. — Were tliere heavy winds there?

A. — At times tliere were ; have seen the sands drift five or six feet.
(.}. — Do 3-ou think those sand drifts would cover up evidences of
cam])s?

A. — It might cover up evidences of small camps, but not about springs,
because they are grassy.

Mr. Crane. — What persons bearing the same names of those on the poll
list, did yon sec on election day, in Aurora?

A. — W illiain IMiillips, Samuel Smith, and William Davis. I saw them
Bcvcrni times during the day; saw them after noon.

(^. — II<»w long alter the election had terminated did you first hear of
this j>«»ll having been held at the Big Springs?

A. — It was several days after the election that T heard of any such
jireeinet being established. It was not in the proclamation of the Board
of SupervisopH.

Mr. Quint. — How many men did you ever know, bearing the name of
Samuel Smith ?

A. — I recollect of two.

Q. — How many bearing the name of William Davis?
A. — Never knew but one.
(l- — How many of William Phillips?
A. — Never knew but this one.

Mr. r<;rM.— Did you not, at the last election, work for and vote for
Judge (^iiint ?
A.— I di<l.
(^._How far is the Sink of Walker's River, you speak of, from the

White Mountains ?

A. — 1 judge it is ninety miles, to the nearest point.

Q._How far fron\ Crawley's Camp, in the White Mountains?

A.— I shouhl judge, a hundred and fifty miles.

Q._When was this great excitement about the diggings at Walker 8
Lake ?

A.— The last of June and first of July. -„ c ^r a or^AT

B. S. MASON.

Subscribed and sworn to, January twenty-ninth, eighteen hundred and
sixty-two.

TESTIMONY OF CIIAELES EDWARD TREBLE.

Q. — Have 3'ou ever resided in Mono County ?

A. — I Iiave.

Q. — State where, and when ?

A. — I have lived in the Towns of Mono and Aurora. I went to Mono
in May, and left in October for Aurora. Stopped in Aurora liftecn or
sixteen days.

Q. — In wliat bu.sincss were j-ou engaged in ^lono ?

A. — In tending ditch, tending store, and fliiining.

Q. — What ditch, and lor how long a time were 3'ou engaged in tend-
ing it ?

A. — Mono Ditch, and the new ditch, for twelve nights.

Q. — In what store were you engaged ?

A. — In the store of Carter, Crocker & Co. j engaged in posting their
books and tending store.

Q. — For how long a time were you engaged in tho store ?

A. — All the time, until I left for Aurora. Was not there all the time,
but occasionally every day.

Q. — Do 3"ou know a region of country known as the White Moun-
tains?

A. — Yes, Sir.

Q. — Do you know any pai'ties, during the past season, living, mining,
or prospecting in the \Vliitc Mountains?

A. — I do not. I remember one party telling me that they liad been
there, and discovered a lead, or j)lacer diggings; I don't recollect which.

Q. — Have they ever sold, in your store, to your knowledge, to any
parties, goods to go to the White Mountains ov vicinity ?

A. — They sold some goods for that vicinity.

Q. — To whom were they sold ?

A. — I think tliev were sold to a party named (jJraves; am not sure of
it.

Q — Do you know of any excitement as to gold being discovered in
any locality in Mono County, at any tinu; during your i-esidenco in
Mono ?

A.— I do.

Q. — When, and at what place ?

A. — There were reported gold discoveries at the Sink of AValker's
River, or Walker's River Basin, about the last of June, or first of July.
Also, gold discoveries were reported to be on Levine's Creek, southwest
from Mono, aljout twelve miles.

Q. — Do you know of any parties going off at the time of that excite-
ment ?

A. — A great many went off at the time of the Walker River excite-
nient. 1 was then working at the foot of Mono Gulch. The road run
directh- by where I was at work, and I should think some days as many
as a hundred men passed. Some days, not more than ten.

Q- — What etitect had that excitement upon the population of Mono ?

A. — There were very few left then in M(jno.

Q. — Do you know anything about those people, after you saw them
pass by ?

A. — I knew nothing about them until some of them got back. I should
think they commenced to come back in six or seven days.

Q- — What number do 3-ou know to have returned ?

A. — Most of the parties that I knew, returned. Kept coming back
every (\iiy-

(^. — Do yon know of any persons who left Mono that did not return
again within six weeks from the time the excitement broke out ?

A. — The most of them. I think, returned. I was personally acquainted
with those who returned. There was one man and his party, some
three or four, wluj never returned.

Q. — Wliat was tlie jjopulation of Mono, six weeks after the excitement
broke out. compai-oil with its ]>opulation just prior to that time?

A. — The population was about the same. Not quite so many people
there.

(^. — What was your acquaintance with the people residing in Mono
and vicinity '{

A. — I knew most every one I met, but do not know their names.

Q. — Are you acquainted with many of the I'csidents of Mono bj
name ?

A. — I am. with many.

Q. — Have you examined the names upon the poll list now presented to
you ?

A. — I have.

(^. — Stale the names of any person on it of whomj'^ou have ever heard,
or been ai<|uainted.

A. — Pat Murray — he was at Mono when I arrived there — William
Davis, J. K. Crosby, (Jeorge Gilbert, A. Gamble, C. Patterson, J. Parker,
Oliver Hii.ss, J. Jordon, C Weston.

il — Where (lid you know Pat Murray?

A. — I knew him in Mono, lie was working in a quartz mill after-
wards. He got drunk, went into Mitchell's store and drew his salary,
and left. Did not see him about there, after. William Davis I have
known in Columbia, Sonora. all through Tuolumne County, and Mono.
He wa.s in Aurora when 1 left. He was in the horse-racing business in
Mono, and in the stable business in Aurora. Don't know where he was
on election day. Same man that killed Shelly in Sonora. Knew Crosby
in Columbiii and Visalia. Never was in Mono to my knowledge. Knew
George (Jilltert in Mono and Aurora. I do not know where he was on
election day. Knew A. Gamble, by reputation, in Aurora. He was quartz
mining in Aurora. Do not know where he was on election day. Knew
(;. I'allerson in Columbia. Never knew him to be in Mono County.
Knew J. Parker in Visalia, and also in Mono. I could not say where he
was on eleetion dav- The last I saw of him was in May. Knew O. Bliss
in Columbia. Never knew of his being in Mono County. Knew of his
being in Tulare and Fresno Counties, but never saw him there. Have
heard of his place of business being there. Can't say I know J. Jordon,
only by reputation ; he used to be in the hog business. Never knew
of his being in Mono. Knew Charles Weston in Mono and in Sonora.
Don't know his whereabouts on election day. , , .

Q — Kxamine the names of the officers signed to the election returns,
before tl'.e Committee, and state if you ever knew of any men bearing
those names.

A.— Could not say that I ever did. ,

Q.— What cami)s are nearest to the White Mountains ?

A.-I .hould timdc that Mono is. The Kuss District, I think, is nearer.

Q —Can sui.plios for miners be obtained in the Kuss District { _ i

A —There could not, when I was there. This was somewhere in the

last of March, or first of April. I passed up the road very near the Russ
District, on my way from Visalia to Mono.

Q. — What is the next camp to Mono, where supplies can be obtained ?

A. — Aurora.

Q._What is the next ?

A. — It is pretty hard to tell whether it is Kcysville, or on this side
of the mountains. I mean to state, that if I could not obtain provisions
at Keysville, I should come over this side of the mountains.

CROSS EXAMINATION.

Mr. Crane. — What is the most populous place in Mono County ?

A. — Aurora is the most populous at this season of the year. In the
spring, Mono is the most populous. At election time, Aurora is the most
populous.

Q. — Have you any knowledge of a place called Big Springs?

A. — I have not.

Q. — State whether, if there had been, at the time of the last election, a
voting precinct at Big Springs, where five hundred votes, or over, could
be polled, you would have been likely, from your acquaintance in the
county, to have known or heard of it.

[Objected to, on the ground that it is irrelevant and improper, not
proving, or tending to prove, a fact or any issue involved in this case.
Objection overruled.]

A. — I should have thought I would; and, furthermore, I never heard
of such a place in the county.

Mr. C/ivis. — Do you mean to state that you have not heard of any elec-
tion having taken j^lace in the White Mountains?

A. — 1 have hoard that an election took place in the White Mountains.
Do not know at what ])lace. llave heard it called the White Moun-
tains.

Mr. Lcu-ix. — How far is that White ^fountains from where you live ?

A. — I should think it is one hundred and fifty miles, by the road. I
voted in Mono on election day.

Q. — Were you away from Monoville from the time 30U went there
until you left for Aurora? If so, state when and where you went.

A. — I went to Columbia. I think it was in August. I was gone ten
days.

Q- — Do you not know, that in the n\onths of July and yVugust, or about
that time, there was an excitement in regard to gold and silver discov-
eries in the White Mountain J^istrict ?

A. — There was some excitement; there was talk about gold being dis-
covered there.

Q. — Do you not know of parties leaving Mono, at the time of that
excitement, for that locality?

A. — I do not.

Q- — What time were those goods, you speak of, sold, for the purpose of
being taken to that locality?

A. — It was after the election.

Q- — How long after election ?

A. — It might have been a week, or might have been less; I can't state.

Q — Don't you know of other merchants selling goods for that
locality? ^ ^

A.— Only from hearsay; that Mr. Nye had sold goods.

Q.— Could there not have been a voting precinct at White Mountains,
and you not have known it?

A. — There could have been.

Q.— How near were j'ou, at any time, to the White Mountains ?

A.— I was within ten or twelve miles of the White Mountains.

Q.— When was that?

A.— On my trij) from Visalia to Mono, in March or April, last.

(^— Have you ever been nearer to the White Mountains than Aurora
or Mono, sinci' ''.

A.— I havt> been to Mono Lake, a little nearer than Aurora or Mono,
which is within six or seven miles.

Q- — What was the man you speak of as C. Weston, eno-affcd in, at

ono {

A. — lie was in the store with Davis or McQuaid, part of the time,
buyin<;^ i;r)ld dust. Am certain, now, it was McQuaid's. The two stores
were somethini,' like this room, with a canvas between them. He was a
lame man ; used to collect licenses when 1 knew him in Sonora.

Q. — Were you at all familiar with the business of that store?

A. — No. Sir. I know he (Weston) bought gold dust, because I sold
bim 8omo.

(^. — Do you know of their ever selling goods to go to the White
Mountains?

A. — No, Sir.

Q. — Who do you now recollect of liaving returned, after the excite-
ment ?

A. — Sprague, Chase. John Canavan, and Hob L^'ons. Can't recollect
tlie names of others, exccjit the names they went by; Little Shorty, and
Kod-Faced Carpenter. Can't recollect any others now.

<^. — What was the voting jiopulation of Mono County in June last?

A. — I can't |>ositively state.

Q. — What was the voting population at Mono at that time, as near as
you can recollect ?

A. — I should suppose there were some five hundred or six hundred.

Q. — Wliat was it in September, as compared with the population in
June ?

A. — In September, in the Town of Mono, I should not suppose there
were anything near so many jieople as there were in June..

Q. — What sliould you think was the difference?

A. — It is perfectly useless for me to try to tell; if I could not tell
how iimny there were in June. I could not tell the difference. The dif-
ference might be one third or one half, in September, less than it was
in Juno.

Mr. Cart's. — Do you not know that many persons, between June and
September, left Mono for this side of the mountains?

A.— I know of some that left during that time, but no great amount.
A great many went out from Mono, and no one knew where they were
going.

Q._Do you not know of parties leaving Mono during that time for
other places in the countv, other than the White Mountains?

A.— 1 never knew of any leaving for the White Mountains. Know of
them leaving for other places.

g.—Ilow" many did you ever know of leaving for other places, and

who were they ? , . ^ ^ i • , ^ttm

A — vSaul Carter, A. W. Crocker, Frank Edgerly, A. C. Goodrich, Wil-
liam Meredith, Thomas Locher, William Vaughn, Dr. Mitchell, Monroe

Williamson, Cross, A. P. Crary, C. A. Parsons, and S. Chandler.

Don't recollect the names of any others.

Q._Do you not know that all, or nearly all, of these parties you have
named, returned to Mono, and were there at election time?

A. I think that every man I have mentioned had returned to Mono,

but can't say they were all there on election day — the most of them

were there.

CHARLES E. PREBLE.

Subscribed and sworn to, January twenty-ninth, eighteen hundred and

sixty-two.

TESTIMONY OF C. O. RICHARDSON.

Q. — Where do you reside ?

A. — I reside here, at present; have been here a little less than two
months.

Q. — Were you ever in Mono County? If so. when ?

A. — I was in Mono the latter part of July. I left Coulterville on the
twenty-first, and was about six daj's goin<; over.

Q. — Where were you. in Mono County ?

A. — In the Town of Mono. From there I went to the White Moun-
tains. I think I was three days in the neighborhood of Mono, before I
went over; possibly four.

Q. — State the route you travelled, the places j'ou went to, who you
saw, and M'hen you saw them.

A. — AVe went by tlio Tulare wagon road, going to Owens' River.
We camped the first night at the Big S))rings. at Mono Jiakc, some
twelve miles from Mono. Saw no persf)n there that I recollect of, ex-
cept Indians. The next day, on the Desert, between tlie lake and the
Adobe Meadows, saw some of Hill's party. There were two in a four-
horse wagon, and I think not less than three on animals behind, but
within sight. They were going to Mono. Don't know their names.
At the Adobe Meadows I think we saw no one but Indians. The next
place was Black Lake, some ten miles from the Adobe Meadows. Saw
two persons there, prospecting ; heard their names at the time, but don't
recollect them now. The next place was Hot S])rings, about ten miles
further, going towards Owens' River. Saw no parties there. The next
place was Rancheria Camp. Saw no person there. In going from
there the next day, we met two persons going to Mono. Don't recollect
their names now. Had a conversation with one. Crossed Owens' River
at the upper crossing. Camped about two miles above the crossing,
over night. The next daj' we crossed the upper crossing, and went on
to the Upper Pincy Creek, some fourteen miles. We camped there, and
Colonel Crawley and a man named Brawley came in from the southward.
The next day we Avent on to Oak Creek. There we saw one man. I
think his name was Wilson. He was gardening. He had peas up. and
vegetables planted — so I judged. Tlie ground appeared as though it
had been dug up with a hoe, although 1 saw a plough there. The dis-
tance I don't recollect near enough to say. It was between the Upper
and Lower Pineys. I think it was some eight miles from the Lower
Piney. From Oak Creek we went on to the Lower Piney. and camped.
There was a man there, named Putnam. I am not certain but there was
another white man there. Putnam's wife was there. We got fifty

pounds of flour from him, as an accommodation. He appeared to be
establishing himself there, as though he intended renuiining. From
there we turned back to Mono, to get provisions. Don't recollect the
distance travelled that da}-. Did not go so far as the Upper Piney.
The next day, we crossed at the mouth of Upper Pincy, and went out to
n spring at the foot of the mountain, where there was grass. I don't
know any name. We camped there. It is in the neighborhood of Craw-
ley's Pass. Saw no one there. The next day, two of our party started
back to Mono. There were four of us in the party, and we started
Bouth. Wo went on five miles that day, to a canon, where there was
grass. We went up to the top of the mountain as far as we could see,
to the east ; returned and camped there that night. In coming down,
wo passed through some large ravines, farther south. The next day we
went on some eight or ten miles, and prospected again. The next day,
I think, we passed what is called Ilill's Old Camp. Saw no one there.
Prospected more or less each day, as we travelled a^long. We went from
Hill's Camp to opposite Mono Camp, on the river, about four miles from
Union Ca!n}». 1 he next day we went to Union Camp, and found two
persons there ; one of their names was Badger; don't know the other's.
They were watching a elaim. and waiting for jn-ovisions and word from
their company ; were waiting for assays of quartz, and could not work,
on account of the Indians. The next day we went farther south, pros-
pecting along the mountain. The next day we went on, still prospect-
ing, to within five miles of Owens' Lake, where the mountain seems to
terminate, or break off, to the east. The next da}' Ave prospected again,
by going up the caiion and sometimes going over tlie mountains. Did
not see any one at Owens' Lake. Did not see any persons except those
I have s])o"ken of The next day we got back to Union Camp. There
we saw two other men. who had just come in from Visalia. They had
two anitnals. and 1 thiid< had two" or three extra animals, besides those
they rode. Could not call their names; never saw them before. From
there we went up the river, eight or twelve miles, and camped. The
two men that I spoke of camped at the same place with us, where there
was a lone will.»w. Pemained there several days, prospecting in the
mountains where we cainiu-d, sometimes north and sometimes south,
ranging some six or seven miles. The other men stopped there several
days. "^They were apjtarently pros])ecting, or going out into the hills
and back. 'Saw no other parties during the time I stopped there. After
remaining several days, the other two of our party came down with pro-
visions. "^Two of us' went over the mountain, eastward, prospecting;
were over there four davs, I think. AVe went about east, straight over
the mountain, down to' its foot. We prospected more northerly from
the foot of the canon. The creek which we went down bore about
southeasterlv. Then we went northerly, prospecting for silver and
gold. There is water all the way down this creek. We came to some
other waterino- jdaces, as we went back into the mountains. We pros-
pected northerly from where we had previously prospected most, strik-
ing the creek higher up; probably in a southwesterly course. Irom
there, I followed up to the gap in the mountain, and my partner kept up
on the ridge, to the same gap. From the top of the mountains we went
down the West side, to our old camp. From there all four of us started
north, along the base of the mountains, and travelled into the moun-
tains some five or six miles a day. We were quite a number of days,
(don't recollect the distances) getting as far as the Lone Pine, i should
have stated, that before leaving the river, and before getting to the Lone

Pine. I saAv three men, with a band of cattle ; don't know their names.
About the same time, or the day before, am not certain which, wo met
three men going south, prospecting ; don't know their names. Wo ar-
rived at the Lone Pine before noon, and left there the next afternoon.
There was no one there. From there we went on to Mound Springs,
four miles from Eaneheria. From there we went on to the Adobe Mead-
ows, the next day. Two men arrived at the Adobe Meadows with cat-
tle, the same day. Do not know their names. Fi'om there we took tho
trail to Aurora, and camped within three or four miles of that place.
Met one man about eight miles south of Aurora, going towai-ds tho
Adobe Meadows. Stopped in Aurora two or three days. Was at tho
camp about three days. P^rom there we went to the springs I s))oke of
before, on Mono Lake, twelve miles fi'om Mono. I got there late in tho
night, sonic time in the fore part of September. The next day was
election day, and we went into Mono and voted, and went on to Virginia
Creek. On our way over tlie mountains wo camped near tho saw mills,
on Virginia Creek, about six miles from Mono. The next day we passed
the summit, east, to the west side of the mountains. 1 think we did not
cross until the next day, as we lost our horses.

Q. — Did you see any cabins, or jilaces where there appeared to havo
been any cabins, at any i)lace. dui-ing your trij) to the White Moun-
tains? If so, where wore the}' 'i

A. — There were two ailobe cabins at the Adobe Meadows, unoccu])ied.
At a place called Hill's (Jld Camp there was a tulo shelter. At the UaU
Creek there was a sort of brush shelter, for pi-otection from the sun, and
the same descrij)tion of house at the Lower Piney. At Union Camp
they had a tent. That is all the improvement I think 1 saw.

Q. — Did you see any other parties than those you mentioned, during
your trip?

A. — There riiight havo been one or two others, but I don't recollect
them.

Mr. Levin. — AVhat time was it you took this trip?

A. — About the twentieth or twent3'-first of July, wo left Coultorvillo.
Were about six days going over.

Q. — What time did you get back?

A. — Got back to Mono about tho first of September. Was six or sovoii
days coming over.

Q. — Have you ever been in the Silver Mountain District ?

A.— Xo, Sir.

CROSS EXAMINATION.

Q- — How long did 3'ou remain in Mono ?
A. — Three or four days.
Q. — What induced you to start on this trip ?
A. — Prospect of gain.
Q. — Who composed your party ?

A. — Besides myself, there were Dave Johnson, Stith, and Thomaa Ken-
nedy.

Q. — Did 3-ou all come back to Mono together ?

A. — Yes, Sir.

Q. — Did you all come over the mountains ?

A. — Yes. Sir.

Q- — Where did you separate ?

A.— At Snelling's. Stith, I think, left at Coulterville.

Q.-Ifmv long is it since you have seen eitlicr of those parties ^

KofiTl 7 /T"."'''"V" '''^'^.^ saw Johnson an.l Kennedy; a le\v days
before 1 started <lown here. I have not seen Stith. " ^

(^. — II()\v h.nif liave you been in this town ?

A. — A little less than two niontiis.

Q.— When were yon first spokcMi to in regard to this case '

A. — 1 esterday evening.

Q. — Hy whom 'f

A.-l don't know the -gentleman's name. He came into a bar room
where I was. and was speaking abont the White Mountains. JIuve not
seen h.m suu-e. lie was talking about the White Mountains. J asked
him what time he was in the White Mountains. He stated somethin..
about tlie case, and spoke of some one wiio woidd like to see me and
a.scertain what I knew about the White Mountains. The person he
spoke of. 1 suppose, I saw this morning, but I don't know.

t^ — Where did you see him/

A.— .\t the Cariboo Sahx.n. nearly opposite the What Cheer IIou.se-
saw him this .norning; d.mt know his name, although I was introduced
to him.

(^. — Did he tell you what he wanted of you ?

A. — I think he did not.

Q-— ^^''l><-'^ were you first informed you was wanted as a witness in
this case 't

A.— I suppose it was after the conversation I had with tliat gentle-
man [Cavis] this morning.

(^.— Do you kmiw whether that gentleman is claiming a seat in this
Legislature"'

A.— I do not; but presume so. I don't recollect whether he said so
or not.

(i- — What is your buKiness here ?

A. — No particular business here. Came down to perfect an invention,
for the purpose of getting out a patent.

^i — ^^ bi't bas been y(»ur ((ecujiation since you have been in this city ?

A. — Nothing, further than that.

^2- — Where is your j>Iace of business?

A. — Have none, llave some work being done at a gunsmitli's on
Kearny street.

^i- — Where do you stop'/

A. — 1 have a room on the street below Mcuifgomery street, not far
from California; don't know the number; between California and the
next street south of that.

(^. — How near did y(ni go to Owens' River?

A. — I was on Owens' River several times while on my trip.

^i- — Where did you speiul the most of your time?

A. — The most of the time I sy)ent on Owens' Kiver, along the range of
the White Mountains, on the west side.

(^. — How many days, or what portion of that time, did you spend on
Owens' liiver ?

A. — AVe spent the most of our time near that river. We prospected
out a few miles, and came down to the river to camp. As a general
thing we camped near the river, but sometimes on the mountain.

(}. — How far is this river from Monoville, where you first struck it ?

A. — Al>out eighty-five miles, to the Ui)per Crossing, where we struck
the river.

Q. — How far down the river did you go ?
3

A. Down below, some fifty-five miles, on the river.

Q. On which side of the mountain did you travel?

X. On the western side, or slope, where our principal work was done.

Q. Did you hear of any excitement at Mono, previous to your leaving?

Of any gold or silver discoveries at White Mountains ?

A. — I heard of it before I went over, at ("oulterville ; after I got to
Coulterville I heard of it. and at Mono. The excitement was at Walker's
Elver, not White Mountains.

Q. — Was it not this report which induced you to make the trip ?

A.— Xo, Sir.

Q. — What then did induce you ?

A. — One circumstance; some parties from Snelling's had been over
there — one of them had returned, and gave a re])()rt of the discoveries.
Another was, I intended for some time to go over thci-e and prospect,
from the reports I had heard. These were the principal iniluccments.

Q. — Do you know a place in the White Mountains, called the Big
Springs ?

A. — I don't know a locality by that name. There is a big spring at
Union Camp, and others; but don't know of any that goes by that
name.

Q. — Were 30U ever at Walkei-'s JJiver?

A. — Xo, Sir. May have been at the head of it, a.s I crossed to Mono.
I onh' traversed one side of the mountain, except the time I spoke of,
next to tlie river — the western slope.

Mr. Cdiis. — Did you ever see me before this morning?

A. — Xot that I know of Don't recollect your countenance.

Q. — Has any one ever sj)oken to you about being a witness, with refer-
ence to my election, connected with the White Mountains, beloro last
evening ?

A.— Xo.

Q. — Have I ever stated to you that I was contesting the seat of any
person tor ottice ?

A.— Xo, Sir.

Mr. (Jiiiiif. — What time was it that you saw Colonel Crawley ? How
man}- days after you left Mono ?

A. — About four or five "days after I lel't Mono.

Q. — Where was he going?

A. — He was travelling towards Mono, northerly.

C. O. RICHARDSON.

Subscribed and sworn to, January thirtieth, eighteen hundred and
sixty-two.

TESTIMOXY OF JOHX ROSS.

— Where do you reside ?

— At present at Mar3'8viUe.

— How long have you been there ?

— About five weeks.

— Where were you residing prior to going there?

— At Aurora.

— How long did you reside in Aurora ?

—I went there about the middle of January, eighteen hundred and

DecemNer""' '"""'""^' ""^'^ ^ ^^^"^^ «^<^^' to this side, about the first of

Q- — Where did yon ^o prospectino-^

n~u'r'!\-" t''^.Y''»'t^''^Io»»tai,ri)istriet-down on Owens' Eiver.

V'~ . "^ ' ^'"" ^^"^^■^' t"^ M*^ pros])eetiiio-v

A.— Ahout the sixth of MuitI,, us near as I can recollect.

(^.— State the route .vou took, the places you visited, who you saw
an.l what yo, toun I ; and the description of vour ionmo.' <,nnni.iK '

to another 8pnIl,^^ don t recollect the name, and ironi there to Lone Pine
Canon, on the west side of the White Mountains. AYe prospected in
that o.-mon son.e days, .hn.'t recollect the number, and then went down
the White Mountains as far as Owens' Kiver; prospected in different
phices as we went d(.wn. Went up the river some ten or twelve miles
Iruni where we first struck it, which was where tlie emio-rant road leaves
It. W hen we ^'ot that far, we could j^'o no farther, and turned back to
Aurora. We had to return to Aurora for more provisions. We pur-
sued the same route in returning,', that we came, with the exception that
we followed the emi<rrant road from the river. We did not prospect at
all in Adobe Valley, nor did we find any one there. Passed on thence
to Hot Spring' Valley ; saw no one on that trip, nor at that place; saw
no buii.lini^s. nor appearance of buildini^^s bcin<^ there; found other
.si)rinjLCs, but saw ?ioihiii^' there; they were about twelve miles, more or
less, from the Hot Spring Valley ; found nothing, nor saw an}' person
between th(.se springs ; I speak ()f the last springs and the Lone Pine.
After I letl the river I went into the mountains again, and ])rospected
on the west side of the White Mountains. At the Lone Pine found
ledLres hpiartz ledges.) I supposed- there were men in the vicinity.
I |»asse<l on from the Lone Pine down the river, prospecting; saw no
parties.

Q- — IFow near to the southerly end of the mountain did you go?

A. — I don't know how nuich farther it extends down than I went.

Q- — How was your time engaged from the time you left Aurora until
you returnetl 7

A. — Most of the time in jjrospecting.

Q. — How long were 3'ou gone on that trip ?

A. — About five or six weeks.

Q. — How long did you remain at Aurora?

A. — About five or si.x days.

Q. — What did yf)u do then ?

A. — I went back again, pro.specting down the river.

Q. — State who went with you.

A. — James (.'ondon, Charles Schultz, and Dan. Wyman, were all that
•started with me from Aurora.

(1- — Lid any other persons join your company afterwards?

A. — -There diil.

(l- — Name them.

A. — William Stanlc}', John Cook, and William Eeynolds; and another
man, whose name I forget. They joined us at Owens' Eiver, in the val-
ley.

Q. — State the route you pursued from Aurora, on this trip ?

A. — We took the emigrant road, from Aurora to Lone Pine Canon.

Prospected there about a week. Then travelle<l down the river nearly a
week, and tlien returned up tlie valley again. We were prosjieeting at
the foot of the Sierra Madre, and got in company with another party
after we met the first party. Tiiey" were Colonel Crawley, Mr. Graves,
Anariah Eoot, and D. N. Van Dyke; no others. We cros«ed the White
Mountains, on the east side. AVe went up a caiaon, near some springs,
near the foot of the W^hite Mountains, on the west side, about ten or
twelve miles from where the road leaves Owens' River. Did not pros-
pect any as we went over the mountains. Found (juartz ledges. Formed
a district there, to which we gave the name of White 31<»untain District.

Q. — Can you give the bounds of that district y

A. — Yes, Sir. On the east, a desert, don't know the name; it extended
down the mountain; on the south, the foi-d of Owens' River; on the
west, the emigrant road from Owens' Kiver to Aurora; on the north, a
low divide, about twenty-five miles above the crossing, where we crossed
the mountain, to the east.

Q. — Did you select any officers for the district ?

A. — Wc selected a Recorder. President, and Secretaiy.

Q. — Who did you select as Kecorder '/*

A. — Colonel Crawley.

Q.— Who as President?

A. — William (i raves.

Q. — AVho as Secretary?

A.— D. M. Van Dyke.

Mr. Quint. — Did you keep a recoi-(l — a record of your proceedings, and
were they ])ublished ?

A. — Yes, Sir. Colonel Crawley, or the Secretary, ktpt the record, and
it was publislied in the Silver Age. a newsj)a})er piililished in Carson.
I thiidv it was ])uhlished in .lune. I»iit never saw it myself

Mr. Can's. — Were you a meml»er of the Crawley Company at the time
the district was formed?

A. — Yes, Sir.

Q. — Are you a partner with them now '/

A. — We all took uj) claims. We had a small book at the time, in which
Crawley was to record them. It was a light, thin book, about five inches
long, and four inches wide; never noticed it particularly.

Q- — AVhere were 30U located, at the time you formed this district?

A. — We named the place, where wc formed this district, lioot's Valley.

Q. — Where, in the White Mountains, is that ?

A. — From where we crossed it. it is about four miles from the summit,
on the east side.

Q- — Did you go to any valleys or gulches, other than those you have
named, on the east side of the tnountain ?

A. — We went to Wynan's Canon. This canon was not named in the
record ; we named it ourselves. We were in no other places, except
prospecting around there.

Q. — How ft\r up or down the mountain, from where you struck the
foot of it, did you prospect, on the east ?

A. — About six miles. I should think, on the ea.stern slope of the White
Mountains.

Q- — How long were you gone, on this last trip ?
A. — Kearlj- seven weeks.
Q- — How many of you returned ?

A.— I am not sure whether there were three or four; but I think there
were only three.

Q — AVho were they?

ot^rfi;;:v:,^™;!;;:i,*^ir?^,^:?'""=' """ "^-"^ " ">«- was an.

A. — No, Sir.

KnST".r\'"'"'^^' •''^'•"^'?'^ '^''l }''>'• ^^'P prospecting, while you were -one
besides the t\vocnm|.:uiies you speak of? j^u >> tit ^^one,

A. — Not cxcce<liiiir thirty.

g— After y.,u returned 'to Auroni, did you know anvthin.r ^ibout anv
gold exntenirnt anywhere ? 'J ^ '.> luim^ aoout any

A. — Yes. Sir.

Q. — Where was it ?

A.— It was reported to be near Walker's Lake.

(^— Have you ever known any persons in Mono County, by the same
nanies as any of those upon the poll list now e.xamined 'by you: if so
state who. -^ -^ ' '

A.— There is one, T know, by the name of J(,hn Jordon. Met him in
Uwens \ alley Don't kn<.w it is the same man as J. Jordon, on the poll
li.st. I hey called him .Fohn Jordon. ^

(^— Kxamine those names signed to the election returns, as officers,
and state whether yon kiu.w any such persons as those whose names
are signed to them ?

A. — I do not.

Q—\itvr the Sej>tember election, and before you left Aurora, did you
know of any persons returning to Aurora, from the White Mountains or
vicinity ? If so, how many ?

A.— There were three: William Graves, and Dan Wyman ; I don't
know the other man's name. No others, that I know of, came up from
there. ^

Q- — F"r what |Miri>()se did they come up?

A. — Wyman canie up to got more provisions, and other things; don't
know what.

Q. — Was Graves with him at the time?

A. — Yes, Sir.

Q- — What camps are nearest to the White Mountains, besides Aurora,
from which provisions can be obtained?

A. — Monoville is the only place I know of, exco^Jt in crossing the
Sierra Nevada ; or was, at that time.

CROSS EXAMIXATIOX.

Mr. Quint. — What time was it when 3'ou returned from the White
Mountains the last time ?
A. — .Some time. I think, in the first part of Jul}".
Q. — What was the extent of the district you located ?
A. — Can't tell; the extent must have been in the neighborhood of

thirty or fort}' miles in length ; in width, eight or nine miles, more or

Q.—Wliat is the character of the soil and country of the district ?

A. Brush, mostly ; except on the east side of the White Mountains,

where there is some timber, and some small valleys.

Q. Do not the White Mountains embrace a much larger extent of

countrj- than what you located ?

A. They do. They extend south of the district ; don't know how

far; extend down in the direction of the Coso mines, as they are called;
don't know whether they extend to the Coso mines or not ; can't tell
how far they extend ; was never down to the end of them.

Q. — What time was it when you saw these emigrants ?

A.— In the months of May and April; some few in June. These
emigrants were from Visalia and vicinit}'.

Q. — What time was it Avhen you got l»ack to Aurora, the first time ?

A. — About the second or third week in April; stayed there about a
week.

Q. — What was the character of the inines you located ?

A. — Gold and silver — sujiposed to be.

Q. — What number of claims did you locate?

A. — Don't know.

Q. — Was there a record of them kept ?

A. — I suppose there was. Col. Crawley had them in his pocket book,
and was to j)ut them on record; don't know Avhether he did or not.

Q. — When was this excitement, that you have spoken of, at Walker's
Eiver ?

A. — Some time in the latter part of June, or the first of July; can't
say, exactly.

Q. — Was that a i)retty general excitement ?

A. — It was. It extended pretty much through the county.

Q. — Do you not know that it extended beyon<l and out (jf the county i*

A. — No, Sir; I do not know whether the Sink of Walker's Kiver is in
the count}' or not; do not know whether it extended beyond the county
or not. It extended, I think, to the southeast of the Sink of Walker.

Q. — Do you not know that a great many jicrsons lelt Mono County
during that excitement, for that locality ?

A.— I do.

Q. — How long diil the excitement keep up ; about how many did you
know of, or see going ?

A. — About ten days ; saw one hundred and fifty going from Aurora
and Monoville.

Q. — Do you know how man}' were at that locality at any one time?

A. — I do not.

Q. — Was not there an excitement about the White Mountain mines,
some time in the months of July and August ?

A. — Not that I know of

Q. — Do you not know that mining camps frequently spring up, and
that a large population gather together and only remain a few days?

A. — I do not.

Mr. Iru-in. — How long have you lived in the mining districts ?

A. — About twenty months.

Q- — What were you doing while in the mining regions?

A. — Miaing and prospecting.

Mr. Quint. — What is your occupation ?

^- — I had been clerking before I came to California; since my arrival.

I have been mininir and prospecting; sometimes doing nothino-: I have
been in Culitornia nearly two years.

Q. — Then you have never known a mining camp to sirring up sud-
denly, and many men to flock in ? " i t« i

A.— No. Sir ; never, in a few days, so many as two or three hundred.

Q- — ^^ l»t*'"i' wore these emigrants you speak of, going?

A.— Some uf them to Aurora and Mono, and some toljarson for au<"ht
I know. "^

Mr. Tarw.— Did you cvi-r go to tlie soutlicru bouudarvof your district;
below the jiass through wliieli you crossed the mountains?

A. — No, Sir.

Q. — How far is it from the foot of the mountains, on the east side.
across the mountains, to the foot of the mountains on the west side ?

A. — Don't know, only from hearsay. Was never down to the foot of
the mountains, on the east side.

Mr. (,hiinf. — Did you know the location of what was called Big Springs.
in the White Mountains?

A. — No. Sir; there was no such place named, to my knowledge, when
I was there.

C^. — What have you been engaged in since a'Ou left Aurora?

A. — Tentling bar. in Marysville, corner of Maiden Lane and Third
street, for myself and a man named McCarthy. The saloon has no
nanu*. A Mr. Keller kept there previous to us. We rented it on Janu-
ary til's t.

Q. — How long bftvo you been in this town ?

A. — ("amc here last evening.

(^. — When were you first communicated with, about being a witness in
this case, and by whoni ?

A. — On Wednesday evening, after nine o'clock; I had retired to my
room. Hy Captain .lohnson.

(^. — When did you first hear of this contest ?

A. — Some time after the election at Aurora. Think it was in October,
but am not sure.

(^. — When, and to whom, did you first communicate what you kno\v
in regard to it ?

A.— To no one; I only said that I was out in the White Mountains.

(^. — To whom was that communicated, aiul Avhen ?

A.— To Mr. Charles French. J. W. Johnson, C. J. Brown, and some
others. It was in Aurora. They are the only ones that I recollect
now, excejit those who knew I was out there.

g. — Have vou not talked with parties in this town, in regard to this
case, and the' facts you have testified to? And if so, to whom ?

A.— To Captain Johnson, and C. J. Brown, and Mr. Cavis. No
others.

(^.— Who is C. J. Brown ?

A. — He is a stone mason. lie is in town now.

(^. — Who is Cai)tain Johnson ?

A. He is from Aurora, and is now here. Don't know his business.

Don't know what their business is here.

Mr. rVn-w.— Have you ever had any conversation with me, about any-
thing whatever, until since twelve o'clock this day ?

A.— No, Sir. I have seen you at Aurora, but never spoke to yoa until
this afternoon.

Mr. Qln^,lf.—^Yhcn was it you saw Mr. Cavis in Aurora ?

A. — A few days previous to the election.

Q. — Did 3-011 ever see me in Aurora ? If so, wlien ?

A. — Have seen 3'ou in Aurora, in a lawsuit eoncorning the .VAna
ground.

Q. — TIow long was that, after election ?

A. — Don't know. The Court was then sitting.

Mr. Can's. — Why do you tix the time as a few days before election, that
you saw me in Auroral

A. — I saw you at the time you made the speei-h there.

Q. — What distance up and down the mountains did you travel ?

A. — About twenty-live miles.

JOHN ROSS.

Subscribed and sworn to, February first, eighteen hundred and sixty-
two.

TESTIMONY OF W. K. JOHNSON.

(}. — Whei-e do you reside ?

.V. — At Aurora, in Mono County.

(^. — JIow long have you resided there ?

A. — I went there in February, eighteen hundred and sixty-one, and
left on the seventeenth of December, eighteen hundred and sixty-one.

Q. — In what business were you engageil. dui-ing your resilience there ?

A. — In milling.

i^. — Weiv you ever in Moiiovilley

A.— Yes. Sir.

Q. — State when.

A. — In April. I resided there from the third of April until the first
of June.

Q. — What was your ac(]uaintance with the inhabitants of Aui-ora ?

A. — I was very well ac<iuainted with the greater portion of them.

Q. — Have vou ever been to the White Mountains !'

A.— No. SiV.

Q. — Have you examined the poll list of an election, the one now be-
fore the Committee i*

A.— Yes, Sir.

H — Have you known any persons, residents of Mono County, by the
same names as those which apjiear on the j)oll list?

A. — There are two — James Br(jwn and John Koss. Those are all, to
the best of my knowledge.

Q. — Examine the names of the officers, signed to the election returns
attached to the poll list, and state whether you have ever known any
persons by those names, or either of them ?

A. — I cannot say that I have, except John San<ls. I have heard of him,
but never knew him. I thiidc there was such a man over there.

Q- — Do 3'ou know of any excitement in Aurora, during the last sum-
mer, consequent upon gold discoveries having been made in that section ?
If so, state wiien. and where.

A. — There was an excitement in Juh' and August last, in consequence
of mines having been discovered in the vicinit}' of Walker's Eiver, be-
tween AValker's Kiver and the White Mountains. Some said it was White
Mountains, and others said it was Walker's Eiver.

Q. — Did you go ?

A. — I did not.

Q.— Do 3'ou know of an}- persons, or parties, leaving Aurora, at the
tune (A that excitement, for the purpose of prospectino- ?

A.— Yes. Sir. ^ ^ . » •

Q. — State how many, as near as 30U can.

A.— It was estimated at from two to three luindred persons. I cannot
state how many. They were going and coming all the time.

(^.— Were you at Aurora, at the September election?

A. — I was.

Q.— Witli reference to the time of ek-ction, when did the parties, who
had gone prospecting, return?

A.— I left for Virginia during the time. Dr. Mason, Mayhew. and
others, had k'tt during the excitement. It was some time in the latter
part of July. They were gone over a montli, as near as I can recollect.

<^— ^^'•>^*>**> were you living, from election time until the seventeenth
of DecemhiM"?

A. — At Aurora.

Q.— State whether, during that time, any of the parties, who left
Aurora at tlie time of the gold excitement, returned to Aurora again.

A.— Yes. Sir.

(^. — Whifdi ones ?

A. — Dr. Mason, and numerous others that I was Avell acquainted with.
Dr. Mason came in previous to the election; also Mayhew. I know of
many others who returned previous to the election, but I cannot call
tliem bv name.

(^ — flow many persons do you think came into Aurora after election
time ?

A. — I cann^>t state. '

(^. — Do you know of any persons coming to Aurora, from the White
Mountain District, after election ?

A.— Yes, Sir.

CROSS EXAMINATION.

Mr. (^iiiut. — Was not the excitement you have spoken of wide spread,
and did it not attract many peoi)le from all parts of the county, and out-
side of the county ?

A. — I don't know exactly how man}- from outside; |put there was a
general excitement.

Q. — The nnmlier of persons you have named as going otf during the
excitement, were those who left Aurora, were they?

A. — Yes. Sir; Aurora and vicinity.

(^. — Wi-re vou at Aurora when the excitement broke out ?

A. — I was. Sir.

Q. — Do you know where those two men you have named, Avere, on
election dav ?

A. — Mr. "Brown was in Aurora on election day; that is, a man by the
same name. I remember seeing John Koss there.

(^. — Have you ever met more than one James Brown ?

A. — Canno't sa}'. It is J. Brown on the poll list.

Q. — Have you ever met more than one John Eoss ?

A.— 1 havJ.

(^. — How many ?

A.— I have met two in this country.

Q. — You cannot state who, or how many, you saw return from the
White Mountain District, after the election ?

A. — I cannot.
4

Q. — Do you know what extent of countiy the "White Mountains em-
brace ?

A. — I do not.

Q. — How lonn; have 3'ou hcen a miner, and resident of California?

A. — Twelve years, the first of next June.

Q. — What part of the State have you resided in ?

A. — Have been in most all pai-ts of the niiMin<>; ]iortion of the State.

Q. — Have you not known, dui-in^ j'our residence in Califoi-nia. of a
large population springing up in some localit}', from an excitement like
the one you have mentioned ?

A. — I have, Sir.

Q. — Have you not known them to be as suddenly depopulated, or
nearly so ?

A. — I have known of several such occurrences, in the gold mines ;
have been a victim myself

Q. — What nuniber of people have you ever known to liave been
attracted Ijy such an excitement 'i

A. — To the best of my knowledge, about one hundred. Was one of
the party mj'self.

Mr. Cat-is. — What are the camps in Mono County, where miners' sup-
plies can be obtained ?

A. — I presume Monoville and Aurora are the main depots. Know of
no others in Mono County.

3f>'. Qm'ut. — Have you not l»een engaged in looking up and procuring
the atteiulanco of witnesses for Mr. Cavis, in this contest 'f

A. — I have, Sir. I went to ^lai'vsville for one.

Mr. Cavt.'<. — Have you done anything else, besides going fo Marysville.
after a witness ?

A. — I have not.

Q. — Who was the witness ?

A. — John Ross.

W.M. E. JOHNSON.

Subscribed and sworn to, February third, eighteen hundred and sixty-
two.

TESTIMONY OF T. N. MACHIN.

Q. — Where do 3'ou reside ?

A. — My last place of residence was Aurora, in Mono County.

Q. — What is your present occupation ?

A. — Assemblyman. ,

Q. — When did you go to Mono County ?

A. — I first went to Monoville last spring; in May.

Q. — How long did you remain there ?

A. — I don't recollect. I went from there to Aurora, and back again
to Monoville.

Q- — How long a time, in the whole, did you reside in Mono ?

A. — I was there, or in that vicinity of country, all the time, except in
coming over to Tuolumne, about election time.

Q- — How long were you absent at that time ?

A.— I don't recollect, exactly. I think, about two weeks, or a little
more.

Q. — Did you ever visit the White Mountains ?

A.— 1 have.

(j. — Stiito wlu'ii.

A— T lol't Moiiovillo. for tlie White Mountains, between the tenth and
twentieth of June, and went directly down there.

Q. — AVho went with you y

A.— W. S. Ilively. and David Kodifer.

(^— State (heeourse you pursued, the phxees you visited, and whom
you saw. liurini^ youi* Jcjurney '<

A.— We H. I lowed the Visalia road, pretty much, from Monoville. We
went down to the " Meadows," a spring near Mono Lake, and camped
there the, first (hiy. Next day, we went to Adobe Meadows, and from
there on to a iilace called Black Lake. Next day, Ave passed over a
granite ledge to Hot Sjirings. and down through Grass Canon into a
valley leading int<» Owens' Valley ; went down that valley to a spring,
called by .'tome •' Whiskey Flat." and some. '■ Poker Flat,"" and camjied!
Next day, we wejit on to the Lone Pine Tree, where a stream of Avater

-ines out from White Mountains. There we met a party of men, some

\ or seven in all ; knew one, J. I). Taber. formerly of Tuolumne, now
of Mi>nt(rey. He introduced me to Frank Marshall, Gwin, and a man
nameil Smith. They said they had been prospecting. Their appearance
indicated the}- were i)rospecters and explorers. We pa.ssed on, and
went, I think, some eight or ten miles below the Lone Pine, to the east
"f it, or southeast. We then turned, and struck into the White Moun-
tains, in a ravine coming out from the White Mountains. We camped
that night ut the mouth of the I'avine, up in the mountains. The next
day, we passed on up the cafion, and over the summit of the White
Mountains. We ex|tlored several ravines, making out into the ])lains on
the east sidt- of the White Mountains. We camped that night about
eight or ten miles from where we ci'ossed the summit of the mountains;
don't know the name of the j)lace ; found water and grass j it was on
the eastern slope. Next morning, Ave started on in a southeasterly
direction down tlie mountain, following* the range along ; crossed three
or four granite ridges, or divides. We tinally struck into a deep canon,
or gorge, followed it for several miles Avithout Avater in it, and tinally
came to some springs. From those, we found a stream of Avater coming
out and goinirdown the same ravine. We followed on until about tAA^eh^e
or one o'clock that ilay. and came to a place Avhere some one had
camped. The tire was still burning. We foujid white men's, Indians',
and horses' tracks, as though some one had just left, and gone off east.
We found, also, at the vicinhy of that camp, a large quartz vein, crossing
nearly at right angles. There had been a blast recently put in the vein ;
no particular work done on it. That is all the appearance of work done
there. Passed on beloAV this camp, following the trail this party ap-
peared to have gone out, doAvn the ravine ; found a notice stuck up,
claiming two tlwuisand or three thousand feet for milling and mining
puri)oses; the notice Avas dated White Mountain District ; the names Avere
strangers to me ; don't remember the names j think I took them doAvn;
have them not with me ; am not certain that I took them down. We ram-
bled about there^till night, and camped near this mill privilege. This is
nearly at the east base of the mountain, so that 3'ou can see out ; did
not go down to the base. S])cnt tAvo days at the camp and vicinity; do
not knoAv the name, only what I have heard; there was no one there to
give it a name. We rambled about there for two days. From there we
came back toAvards Monoville again; explored several pas.ses m the
mountains, endeavoring to find the way through to Owens Kiver.

After spending three or four days, we gave it up, and came out on the
old trail, below the Lone Pine Tree. Then we went back to the Hot
Springs. We found three Mexicans camped at the head of Grassy
Caiion, throe quarters of a mile below Hot Springs. We all came back
together, the Mexicans and ourselves, examining the country, and got
to the Adobe Meadows on the niglit of the fourth of July.

Q. — Who did you find at Adobe Meadows '^

A. — We found scvei-al parties tiiere. !Mot an old parly there. Tahcr &
Co., Mr. Frank Sliaw, and two men with him of his coini)any, and another
party of two or three, who were going down to hunt a pUice on Owens'
Biver to herd stock. They had no stock with them but their riding ani-
mals. Saw no others, except Indians. The next day we wont from
there back to the neighborhood of Black liake. (my party and the Mexi-
cans;) Avore there several days; then loft in company with llodifer, and
came to ^lonoville.

Q. — Did 3'ou go to the White Mountains at any other time ?

A. — Yes, Sir. Myself and J. B. Foh-h wont back to our old camp,
near Bh\ck Lake. Afterward, two mon. named Frank Marshall and
Hugh Flood, came into oui* cam]), one night, and stayed until morning.
I then went with them to tho White Mountains. Our route was througn
Grassy Caiion, then turned to the left and struck into tho AV^hite Moun-
tains to tho north of the White Peak. AVo got near the summit of the
mountains and travelled to the north. Came to a i)lace called Flood's
Camp. This was near the north end of tho AVhito Mountains. From the
point where we wore wo could soo the valleys on both sides of us. Wo
left Flood's Camp and wont in a northwesterly direction until we
reached the valley which I have mentioned — the valley which Grassy
Caiion omjitios into. Don't know the distance. l»ut think it is thirty-five
to forty miles from Flood's Camp to our camp at IMack Lake.

Q. — How far is Black Lake from Hot Springs, in Grassy Caiion ?

A. — Our camp was probably a mile or a mile and a half from Hot
Springs, in a direct line ; by tlio road which j'ou can travel with an
animal, six or eight miles.

Q- — How far is Black Lake from the point in tho valley you struck
after leaving Flood's Camp?

A. — About twontj'-fivo or thirty miles.

Q. — How far from the summit oi' the mountain, at tlie place where you
crossod it. bolow tho Lone Pino, is it to its west base'/

A. — I thiidv it is some eight or ten miles from the base to the summit.

Q. — How far is it to the east base ? ,

A. — I think, about the same distance; did not go down, but could see.

Q- — What is the appearance of the country in the White Mountains?

A. — It is a very sterile, barren country, on that side of the mountains;
apd that is the character of the whole countrv, with some slii^ht excep-
tions.

Q- — What are the facilities for camping places?

A. — A careful man could find a camping place every day. We trav-
elled one or two davs without finding water.

Q- — During either of your two trips in the White ^Nfcuntains did vou
find any indications of parties having been there before you, besides
what you have stated above ? If so, state what they were.

A. — In crossing the mountains the first time, we followed the track of
some five or six animals that had gone through before us.

Q. — Did you see any other parties than those you have mentioned ?

A- — Don't recollect of anv white men.

_ Q.— What canii>s arc nearest to the White Mountains, where provi-
sions can lie olitained '!

A.— .M(.ii()ville and Aurora are the nearest camps I know of.

(^— What is the next nearest camp to the White Mountains?

A.— Tlie next one I know of is Genoa; don't know but Big Oak Flat
in Tuohinine County, is nearer; not much ditterence. '

(J.— What time after election did you go to Aurora ?

A.— lUtwcen the middle and last of September; am unable to fix the
date.

(^._I)in-in<r the time you was there, did you know of any parties com-
ing into Aurora, from the White Mountain" District ?

A. — Don't recollect seeing any one come in.

(^.— Did you receive any papers from Doctor Mason, relating to the
contest of tin* seat of Leander (^uint, a Senator ? If so, what were they ?

A. — Doctor Mason handed me a notice of contest, a notice from the
Clerk, appointing a Conimission to take testimony, and the time for
taking it. They were for service on Judge (Juint.

(^. — What did you do with them?

A. — I ]>ut them in an enveloj), and gave them to Captain Peck, to
carry over the mountains to Sonora.

(^. — Do you know what became of them, afterwards?

A. — I <lo nf)t. Never saw tliem afterwards.

(^. — Have you examini'd the clecti(jn returns of Big Springs Precinct,
on file in the County ClerU's otlice, of Mono County?

A.— I have.

(^. — Have you examined the poll book, on file with the returns?

A. — 1 iiavo.

(I. — Do yon know any persons in Mono County by the same name as
any of those contained in the poll book ? If so, state who they are.

A. — I know of two or three ; William Wilson, and AVilliam Davis.
Don't recollect of any others. Have not examined the list since 1 was
in Mono. Have looked it over, two or three times, carefully, but don't
rcciillect o[' any others.

(^. — Do you know of any persons by tiie same name as those which
apj)ear signed to the election ri'tmns. as otHcers of election?

A. — ^io, Sir J I do not.

CROSS EXAMINATION.

Mr. Quint. — What is tlic extent of the White Mountains ?

A. — They are from one hundred to one hundred and twenty-five miles
in length. 'and from fifteen to twenty in breadth. They var}^— some
points Itcing wider.

(^.— How far is it from Aurora to where you first strike them, at the
nearest point ?

A. — Some thirty or fortv miles ; there is a di.spute about the distance.

Q. — How far is it from "Monoville to the nearest point in the White
Mountains ?

A. — It must be fiftv miles.

Q._H,,\v far down these mountains did you go, before you struck
them ?

A.— About twenty-five or thirty miles, before we turned mto the
mountains. We went down from the mouth of Grassy Caiion. If we
had gone direct, it would have been some five or six miles, across the
valle}^ to the mountains. •

Q. From the point where you struck into the mountains, how far

down them did 3'ou travel ?

A. — Thirty-tive miles ; perhaps, forty. Cannot say.

Q. — How far. in a direct line ?

A. — We travelled in a zigzag course. It is not more than twenty-five
or thirty miles, in a direct line.

Q. — I'low far up the mountains did you go, from where you struck
into them ?

A. — We did not go up the mountains at all, but went down, after wc
got on the summit, towards the south.

Q. — How far were 3'ou, when you an-ived on the summit, from the
upper end of the mountains '.

A. — I should judge, from fifty to sixty miles, from where we struck
the range. Think I Avas near the middle of the range. Ditl not go
down on the other side ; not clear to the valley.

Q. — Did you, on either of your trips, visit wliat is called the Big
Springs ?

A. — I had never heard any place called by that name, at that time. I
visited what I have since heard called Big 8])rings.

Q. — Do you know the locality of these spi-ings"/*

A. — If it is the spring that I have descrilied, it is in a ravine, where I
saw the notice; only know it from hearsay.

Q. — Did you visit any other place called Big Springs at the time you
were through the mountains"'

A. — Xo, Sir ; 1 visited several large springs, but heard none other
called so.

Q. — Was there not a large extent of this White Mountain country
that you did not pass through, or over, or even see ?

A. — There was a good deal of it I did not pass over.

Q. — When did you come l»ack the last time '{

A. — Some time in the middle of .luly ; think the fifteenth or twentieth.
The most of my travelling, in going down, was on the Visalia road.

Q. — What induced you to go down to that section ? ,

A. — To see the country, and prospect.

Q. — Was there not considerable excitement, in July and August, or
about that time, relative to gold and silver discoveries .said to have
been made at the White Mountains, or in that vicinity?

A. — I never heard of any.

Q. — Did you hear of any excitement relative to gold and silver dis-
coveries in that country, about that time ?

A. — There was an intense excitement, about the latter part of July,
the time I returned from the White Mountains, in conse(|uence of re-
ported discoveries at Walkers Lake. I met parties going out there.

Q- — AVhat number do you know to have left Monoville at that time,
and during this excitement ?

A. — Two or three hundred people, I suppose, from Monoville and
vicinity.

Q- — What was the distance from Monoville to the mines supposed
to have been discovered ?

A. — Don't know, except from hearsay.

Q. — Do you know Col. Crawky ?

A. — I do not.

Q. — Do 3-0U not know that he is located in the White Mountain Di.s-
trict ?

A. — He is reported to be.

31
Q.—Did you see him, or either of his party, on your trip to the White

A. — I (li«l not.

Q. — IH<I you locate chiims in that district?

A. — No. Sir.

Q.— Do y<.u know of parties, other than those you have mentioned
locatini^ clainis tliere '( '

A. — I do not ; only by hearsay.
[OhjectcMl to.]

(^— How h)njr before the election was it that you came to Sonora in
Tuolumne County y '

A. — I think I arrived in Sonora just a week before the election.

Q. — For what purpose did you visit Sonora?

A.— Partly on political and' partly on private business.

(^ — What was the jmlitical part ?'

A. — I was sent there as one of the Committee from a County Con-
vention.

(^. — For what pur|)ose?

A. — To carry over some resolutions of that Convention to the Union
r)''mocratic Coinmitteo of Tuolumne County; also to the Eepublican

•mmitteoof that county, and to attend to printing the tickets for Mono
« ainty.

<^— For what other purpose, if any, than presenting the resolutions to
I lie Union Democratic Committee of that county?

[Objected to by Mr. ('avis, on the ground that it is irrelevant and not

iiding to establish or controvert any point at issue.]

[( )bjection witlnlrawn.]

A. — F<»r the jtiirpose of procuring tickets to be sent over to Mono
' ' unity, for the Cnion party.

<i. — Had you any other business in view?

A. — No other. The fact of my being placed on one or the other of
the tickets, was involved in the resolutions which I took with me.

Q. — Di<l you |»resent those resolutions to the Union Democratic Com-
mittee of Tuolumne County, and ask to have your name placed upon the
ticket ?

A. — I ])resented the resolutions, and asked to have my name placed
upon the ticket.

Q. — I)i<l you endeavor to procure that result?

A. — Not (ling further than by presenting those resolutions.

Q. — Did you not urge ^our claims, and the importance of having your
name upon'the ticket, as' a nominee of the Union Democratic party, be-
fore the Cominittee, or some members of said Committee?

A. — I think not. Sir.

Q. — Were the demands or claims, asked for in the resolutions, rela-
tive to having vour name substituted in the place of one of the nominees
of the Union"^ Democratic party, rejected by said Committee ?

A. — Thev were.

(^.^Was I [(^uint] a nominee of that party for the Senate — to the seat
winch I now hold ?

A. — I believe you were. Sir. You were a candidate on that ticket.

g. — Did you,' afterwards, go before the Eepublican Committee of
Tuolumne County, with the resolutions, and ask that your name should
be placed upon their ticket, ia place of one of their nominees ?

A. — I presented the resolutions first to the Union Democratic Com-
mittee.

Q._To which Committee did you first present your claims ?

A. To tlie Union Democratic Committee.

Q'_Did the Republican Committee phice your name upon their ticket,
as one of its nominees ?

A.— They did.

Q._In whose pLace did they substitute your name ?

A. — Mr. Gouhl's.

Q._Was Mr. Cavis. at the time, a nominee of the Republican party of
Tuolumne and Mono Counties, for the Senate ?

A. — He was.

Q. Did you remain in Tuolumne County, from the time you came

over, until after the election ?

A.— I did.

Q. — How loni; after ?

A. I was there until about the tenth of September, and in Stanislaus

and Calaveras.

Q. — Did yon advise or counsel, in rc^i:;ard to the procccdini^s in this
contest, with any party or parties, after reaching Mono County y If so,
with wiiom y

A. — I luive been spoken to b}- a ijreat many parties. I don't know
that I have advised with any parties particularly.

Q. — Did you draw, or assist in drawing, a notice of contest in this or
the other case dependini^ upon the same vote ?

A. — ;! drew them both.

Q. — When did you draw them ?

A. — I don't recollect. It was immediately on the issuance of the cer-
tificates of election.

Q. — Did 3'ou not advise their institution 'f

A. — I don't thiidc I did. I do not think that I advised it particularly.

Q. — Did not Dr. Mason, at your instance and sugj^estion, and upon
your advice, tile, or cause to be tiled, the notice of contest ?

A. — I think that Dr. Mason spoke to me in regard to it — ab(Hit the
steps necessar}' to be taken in it. I drew it up, (the notice,} and he
coj)ied it.

(.}. — Do you know Dr. Mason well ?

A. — T have known him but a short time.

Q. — IIo\v long have you known him ";'

A. — I was tirst introduced to him at a Convention in Mono County,
when he became a candidate for County Judge.

Q. — Then it was not at your instance that the notice of contest was
filed, in this or the other case ?

A. — I cannot sa}' whether it was at my instance, or not.

Q. — When was it that you handed a copy of the paj^ers in the case, to
Captain Peck, to be forwarded to Tuolumne County, for service ?

A. — I think it was the day on which they were issued, or the day
after.

Q. — TTow long were you in coming from Mono County to Sonora?

A. — I think I was some two and a half or three days on the road.

Q. — How long would it take, by Express, to go from Aurora to
Sonora ?

A. — About four days. I think that I have obtained letters in that
time.

Q. — Do you know where William Wilson and William Davis were on
election day ?

A. — I do not ; but I saw Davis in Tuolumne County, either a day or
two before, or after, election day.

^ Afr. Cavis.—llad you received any answer from the Union Democratic
County Committee of Tuolumne County, relative to the resolutions you
have spoken of. before you furnished similar resolutions to the Eepub-
lican County Committee ?

A.— No. Sir.

*^ — Have yuu those resolutions now ?

A —I have not.

(^.— Have you ever known any persons in Mono County, or elsewhere,
by name similar to those on the petition filed in the Clerk's office in
Mono County, asking lor a votin<r precinct at Big Springs, White Moun-
tain District ^

A. — I know a man by the name of Graves ; called Bill Graves. Know
' t no others.

'i- — How many days did the Express occupy in going from Aurora to

ison City, at the time you spoke of?

A. — Don't know ; it was verj- irregular at that time. In the summer

I son the stage ran to Carson in a day.

<>. — Do you know how long it took the stage to run from Carson to
.^acramento, at tiiat time'/

A. — I ilo not.

Q. — How many days did it take the stage to run from Sacramento to
Sonora '(

A — About two days.

(^. — H<»w 7nany trips did the stage running from Aurora to Carson
City, make, a week, the last of Septemlter y

A. — It was running very irregularly at that time. Don't think that it
made any regular trips.

Mr. Quint. — Do you know whether the stage, leaving Aurora in Sep-
tember, nuidc the same time as formerly to Carson City ?

A. — I think it did not.

(^. — What was the ditference in time?

A. — 1 do not know.

(^. — Did you ever go through, on the stage?

A. — I never did.

(I. — Then how do you know there was any difference in the time ?

A. — By there being irregularity in the mails and Express, and people
talking about it, and general rumor.

(^.— Did you not know, before you left Aurora, that it Avas my [Quint's]
intention to visit Mono County in October?

A.— You told me that you [Quint] would be over at the October term
of the District Court of Mono County.

g._You were informed of that before you went over, were you not?

A.— Yes. Sir.

(I. — What time did the Court sit; do you recollect ?

A. — I think it was the second Monday in October.

(^.—Wlieii did you leave Mono ; about what day of the month ?

A.— I left the morning of the convening of the District Court. Think
the Court was a day or two behind the time.

(^— Had you more than one set of resolutions that you brought over

with vou ? 1 T 1 ^

A.— Not to present to the Committee, Sir. It was the same, i haci a

duplicate copy ; one for each Committee. .

(^— Had you received the nomination of the Union Democratic Com-
5

mittee, was it also your intention to have gone before the Republican
Committee for their nomination ?
A. — The resolutions instructed me to go before both Committees.

T. N. MACHIN.

Subscribed and sworn to, February fourth, eighteen hundred and
sixty-two.

TESTIMONY OF B. F. McCORMACK.

Q. — "Where do you reside ?

A. — In Placerville.

Q. — Have 3'ou ever resided in Mono County ?

A. — I have.

Q._Where ?

A. — At Aurora. I went there in Ajiril hist, and left in October — on
the eighth, or about that time.

Q.—l During the time you resided in Aurora, did you visit the White
Mountains ?

A.— I did.

Q._Wi,en ?

A. — The latter part of July and fii-st i)art of August.

Q. — Al)init what time was it that you left Aurora?

A. — About the twent3-second of July.

Q. — How long were you gone on the trip ?

A. — AV)Out fifteen or sixteen days, I should judge.

Q. — AVho went with j-ou ?

A. — Doctor Mason, a brother of mine, Foster, (I think it is Edwin, but
am not certain.) May hew, Davis, (don't know their given names,) and
William Skern.

Q. — For what purpose did you visit the White Mountains '(

A. — For jn-ospecting.

Q. — State the route you took, in your travels, when you left Aurora ?

A. — I went to the Adobe Meadows, and from there struck over a little
north, to the White Mountains. AVe prospected a little, then went
down across the mountains. We crossed the valley, on the eastern side
of the mountains.

Q. — What kind of a valley is that ?

A. — It is a large valley. It is very dry, excepting one part of it,
which is well covered with grass.

Q- — Which way does that valley run, with reference to. the mountain '!

A. — I think it runs parallel, up and down the mountain.

Q. — What did you tind. if anything?

A. — We came to another range ; went up, and attempted to go
through, but could not.

Q. — Did you tind any water after you left the White Mountains?

A. — Yes ; we found some water.

Q. — Where was it ?

A. — We found some running water, and some lakes. We found a
spring in this valley, and we found water in those hills.

Q— How long did you stay out there, from the White Mountains?

A- — We were across that valley some four or five days; probably

<^— Wlien you loft the east side of the vaWcj, where did j^ou go?

A. — After we left the east side of the valley, we struck across to
the White Mountains. We struck down the valley, and then across.

Q._What did you do there ?

A.— I hunted some ; that is all I did. I believe the party prospected.

Q— As you crossed the valley, to the White Mountains, and reached
them, how far down the mountains did you go ?

A. — Atter we struck the mountains, after crossing the valley, we did
not go down them at all.

(I. — Do you know how far down any of your party went ?

A. — I do not.

(l. — How long di<l you stop <lown thei*e ?

A. — Some two or three days, I believe.

(^. — When you left there, where did you go?

A. — W'- returned to Aurora.
■ Q.— Which way?

A. — We went uj), at the foot of the mountains, some thirty miles,
an<l then struck across in the same place we went over.

(^. — Did you see any springs, or water, of any kind, on the west side
of the White Mountains?

»A.— Yes. Sir.
Q. — What was it, and where ?
A. — There was water in the first cafion from the pass, on the west
>»ido. I mean, some ten or twelve miles on the west side.

(^. — What is that, there?

A. — It is running water, on a large flat; it is rather warm. There are
springs there also.

(^. — Where did you go. from there ?

A. — We returned to the Adobe Meadows, and from there returned to
Aurora.

Q. — Did you find any parties at the Adobe Meadows, when you went
down ?

A. — We met three persons there.

(^. — What were they doing ?

A. — They were going to the White Mountains.

(^. — Do you know their names?

A. — I knew one — Mr. Jerry Pond. Did not know either of the others.
Don't know where I'ond belonged. He had been to Mono for provi-
sions.

(^. — Did you see anybody at the White Mountains, on the west side,
where you prospected ?

A.— Yes, Sir.

(^._\Vho were they?

A.— Wilson and Companv— don't know Wilson's given name. There
were Wilson, Dick Lawrence, Wash. Evans, John Cameron, and Dr. Gil-
bert ; that is all that I know the names of There were some eight or ten
others. This company were from Aurora.

{}. — What were thev doing?

A.— Thev were out" for the purpose of prospecting. They had some
mules, horses, and jacks, which they used for pack animals.

(^._Do you know where they went, from there ? ,.,,,.

\ j,jo Sir. Some of them crossed the mountains, a little ahead ot

us.

(2-— Who ?

A. — Mr. Lawrence. Evans, and Cameron ; the others I don't recollect.
There were five, I believe.

Q. — Did they travel in j'oiir compan}', on the east side of the moun-
tains ?

A. — They did not; we passed them.

Q. — Did you see any parties, when you were prospectinir on the east
side of the Desert or Valley, to the cast of the While Mountains ?

A. — I did not. Mr. Hiram Lusk had joined our party at the summit
of the White Mountains.

Q. — Did you see any persons, during the time j'ou were prospecting on
the east side of the White Mountains, after you crossed the Desert, re-
turning west ?

A. — 1 did not.

Q. — Did you see any persons, after you left the east side of the White
Mountains to return lionic. before you reached Auroi'a 'f

A. — Yes, Sir.

Q. — Where were they ?

A. — I saw those men (Pond and Comjjan}-) at the Meadows. Saw a
number of men at the Halfway House, between Mono and Aurora. J
saw several teamsters on the road, flight have seen others travelling
on the road, but don't remember.

Q. — What indications did you see, if any. in the White Mountains, of
persons liaving been there before you ?

A. — AVe saw the tracks of animals, and some footprints. Don't re-
member of any •' whiskc}- bottles." Saw one ])lacc where there were
pick marks. 1 believe, no othei-s.

Q. — Did you tind any cabins, or anything of tiiat kind?

A. — I did not, except at the Adobe Meadows. There were two there,
which I saw.

Q. — Have you examined the Big Springs Precinct election returns,
and the poll book attached to them, now on file with this Committee ?

A. — I have. Sir.

Q. — Have you ever known any i>ersons, by the same names as those
which appear signed to the election returns as officers of election ?

A. — I have not. Sir.

Q. — Have you ever known any persons in Mono County, by the same
names as any of those which appear upon the poll book '( If so, state
who ?

A. — J. Brown, A. Gamble, John Ross, Sam. Smith, William Phillips.
P. Valentine; that is all.

Q. — AVhere did you know J. Brown ?

A. — Knew him at Aurora; he kept a saloon there.

Q. — AVhere did you know A. Gamble?

A. — At Aurora ; he was the President of the Del Monte Consolidation
Company.

Q. — Where did you know John Eoss ?

A. — At Aurora ; he was Assessor.

Q- — Where did you know Sam. Smith ?

4- — At Aurora; he was mining and prospecting. Knew William
Phillips at Aurora; don't know what he did. Knew P.Valentine at
Aurora ; he mined and prospected.

Q. — Examine the names signed to the petition for a precinct at Big
Springs Camp, and state whether you ever knew any persons by any of
those names.

A. — No, Sir; not by their full names.

Q.— Do you know of any excitement during last summer, about gold or
Hilver discoveries having been made in ilono County or its vicinity '^ If
so, state at what time.

A.— Yes, Sir; I do. The excitement was some time about the middle
of July. I think.

Q. — VVliat i)iace was mentioned in connection with the excitement?

A. — Walker's J.ake, jirincipally, and the White Mountains.

Q. — Do you know of parties leaving Aurora during that excitement?

A. — Yes, Sir.

Q. — When did they return, if at all?

A. — Tiiey returned in about ten or twelve days after the excitement
broke out.

(•l — Do you know any persons or parties that left Aurora during that
excitement, who had not returned before the September election ?

A. — I do not. Sir; knew of no one that had not returned. Knew nleii
that left for California during the excitement, who had retui-ned.

TROSS KX.VMI. NATION.

^fr. Quint. — Who were they that came over to California, and did
not return ?

A. — Mr. Sam. Smith ; lie letl about the time of the excitement. Mr.
-Masters started, but did not come over; he stopped on Walker's Eiver;
came over with me. when I came over. Knew of no one else there.
Have not seen Sam. Smith since he left there.

(^. — Is he (Smith) the man that you referred to on j'our examination
in chief, whose name ajtpears on the poll list ?

A. — He is the man I referred to.

Q. — Do you know where he was on election day?

A. — Do not, of my own knowledge.

Q. — Have you ever known more than one J. Brown in California or
elsewhere ?

A.— I have.

(^. — How many ?

A. — I remember of three now.

Q. — Do you know where he was on election day?

A. — Yes, Sir; knew where J. Brown, of Aurora, was.

(}. — IIow many have you ever known by the name of A. Gamble ?

A. — Never knew but one.

Q. — l^o you know where ho was on election day?

A. — I do not, iSir.

(^. — How many have you known by the name of John Ross?

A.— One.

Q. — Do you know where he was on election day?

A. — I did not see him on election day.

(^. — How many men have you known by the name of Sam. Smith?

A. — One only.

Q. — Have you ever known more than one man by the name of Wil-
liam Phillips ?

A. — I have not.

Q. — Do you know where he was on election day ?

A. — I do not.

Q. — ^Vhcre were you on election day?

A. — T was in Aurora— on the edge of Aurora— all day.

Q._\Vhat is the extent of the White Mountains?

j^^ — X don't know.

Q. — At Avhat point did you strike them ?

A. — At the north end.

Q. — How far south did you travel on them ?

A. — Some thirty miles, I should suppo.se.

Q. — DiJ you travel on the mountain.^, or along the valley, this thirty
miles you speak of?

A. — We travelled in the valley.

Q. — How far from the mountains?

A. — Probably from three to titteen miles.

Q. — pid you* cross over to the west side of the mountains?

A. — Yes. Sir; in coming back we did. at tlie same place we went over.
This was at the north end.

Q. — Were you and your part}' together all the time you were gone?

A. — We were together every night.

Q. — How far did you ever separate <luring the day ?

A. — I cannot tell.

Q. — AVere 30U all engaged in the same pursuit ?

A. — At times I was hunting, and (tthers ])rospecting.

Q. — Was there any considerable portion of the White Mountains that
you did not pass over, or even see ?

A. — Yes, Sir ; there was.

Q. — Could not there have been u large settlement about some portion
of the mountains, that you might not have seen on your trip ?

A. — There might or could have been. If there had been any indica-
tions in the vicinit}' of where we were, we would have seen them.

Q. — Did you know of any place at that time culled the Big S]>ring8?

A. — I did not.

Q. — Did you or your jmrty pass through or by any place culled the
Big Springs ?

A. — I did not. We ])assed a number of big springs, but I did not
know the name of any of them at the time.

Q. — At the time of the excitement you have spoken of, what number
of people left Aurora, to the best of your knowledge ?

A. — I should sujtpose from two hundred to three hundred.

Q. — Was this excitement about the AVhite Mountains as well as
Walker's River?

A. — There was a very small portion of it about the White Mountains.

i}. — What distance did you go from Aurora?

A. — 1 cannot tell. Should judge, a hundred miles or more.

Q. — How far is it from Aurora to where you struck the White Moun-
tains ?

A. — I should judge it was about seventy miles.

Q. — Did you start during the excitement ?

A. — Yes. Sir.

Q. — Was it the excitement that attracted j'ou to tlie locality you
visited ?

A. — It was.

Q- — Did not other parties from Aurora and vicinity go in another
direction than that taken by you down the mountains ?

A. — I believe so.

Q- — How many took the same course you took ?

^- — I could not tell, not knowing any except our own company.

Q- — You met several prospecting parties on your trip, did you not ?

A. — Wc met one partj as we were eominir back. There were three iu
the party.

(^.— Did you not meet a party or parties of prospectors, other than
those tliree ?

A. — Don't remember of meeting any others. Mr. Wilson. Mr. Liisk.
and another gentleman, fell in with us lit the summit of the White Moun-
tains. We passed Wilson's party ; Lusk travelled with us.

(^. — Do you know what route that party took, in o-oina; down ?
. — iSo. hir.

(^. — Where were they from?

A. — Aurora.

Q. — What is your occupation?

A. — Mining.

Q. — How long have you resided in this State ?

A. — Since eighteen hundred and fifty-three.

(^. — What is your present occupation ?

A. — I an\ engaged in mining, at Placerville.

(^. — At what point ?

A.— At White Rock Canon, North Star Tunnel.

(^. — How long liave you been in this town?

A. — I came here Monday evening.

Q. — At whose instance?

A. — Tliat of Mr. C'avis, I lielieve.

(^. — When were you tirst spoken to about being a witness in this case ?

A. — Was first spoken to at Aurora, by Dr. Mason.

(^. — ]\y whom since ?

A. — liv Mr. ('avis.

(^— When ?

A. — I received a letter from him on Thursday last, I believe.

(^. — I.s Dr. Mason a ])art!U'r of yours?

A. — No, Sir. We have claims together, in Aurora.

^fr. C'avis. — llave you ever spoken to me before 3'our arrival in this
city?

A. — Yes. Sir; I have.

Q.— Where?

A. — At Aurora.

Q_ — I)i,l you ever have any conversation with me, at Aurora, about the

White Mountains election?
A. — Not that I remember.

B. F. McCOEMACK.

Subscribed and sworn to, February fifth, eighteen hundred and sixty-
two.

TESTIMONY OF J. A. BOSTWICK.

^fr. rVrA-.— Where are you living at the present time ?

A. — In this city.

Q.— Have j-ou ever resided in Mono County ?

A. — I have.

Q. — At what place ?

A. — Monoville.

Q.— When did you reside there?

A. — Last summer.

Q._In wliat business were you engaged, while residing in Monoville ?

A.— Was working for Messrs. Mitchell and Poor.

Q. — "What was Miteholl's given name '!

A.— A. II. Mitchell.

Q._Where were you on election day, September fourth, eighteen hun-
dred and sixtj'-one '(

A. — In Mono; Monoville, I mean.

Q. — Have you ever seen any election returns, ]>urporting to be the
election returns of Big Springs Precinct, White Mountain District, of
September foui'th, eigliteen hundred and sixty-one i'

A. — I have seen election returns.

Q. — Of what precinct ?

A. — Purporting to be of the White Mountains.

Q. — Where did you see them ?

A. — I saw them at Mono Lake.

Q.— When ?

A. — Four or five days after the election.

Q. — Whereabouts at Mono Lake, did you see them ?

A. — About one half or three quarters of a mile from the lake.

Q. — Out of doors, or in a building ''

A. — In a Ituiltling.

Q. — AVas there anv jicrson living in the building?

A.— No. Sir.

Q. — AVhen you saw the returns at that place, how many persons were
there jn-esent ?

A. — Two persons.

Q. — Did vou see those returns made out ?

A.— J did.

Q. — Did you see any list of voters at the time that you saw the elec-
tion returns ?

A.— I did.

Q. — Did vou see that list nu\<le out ?

A.— I did.

Q. — What kind of paper were the election returns made out upon ?

A. — On blue foolscaj) j»aper ; the sheet laid open.

Q. — On what kind of pajicr was the list of voter-; made out ?

A. — On the same kind.

Q. — Describe the paper.

A. — The paper was folded up, and cut along the sides, and j)inned at
the top.

Q. — How many pieces did each sheet make, after it was cut as you
described, and how was it cut?

A. — It made four pieces, and was cut lengthwise.

Q. — Do you remember how man}^ names were written upon those
pieces of paper ?

A. — Some five hundred.

Q. — Do you remember the exact number?

A. — I think I do. It was five hundred and twenty-one.

Q. — Do you remember any of the names of the persons, upon the elec-
tion returns, who received votes ?

A. — No ; I don't remember.

Q- — Do you remember any of the candidates for oflSce, whose names
were upon that paper ?

A.— I do.

Q. — Name them.

A. — ^IcConnell. ,

Q.— Wliat for?

A. — For Crovernor.

Q.— Who else ?

A. — (leor^e Evans.

Q.— Wl.at for ?

A. — For Clerk of the Supreme Court, I think.

Q.— Who else ?

A.— Mr. (^iiint.

Q. — What (lid he receive votes for ? *

A. — For the Senate.

g.— Who else? /

A. — I>avls.

Q.— What for ?

A. — Asseinhlyinan.

Q. — Anv others 'f

A.— A. "11. Mitchell.

Q.— What for/

A — Assemhlynian.

Q. — Anybody else 'i

A. — Others; I don't reeolloct the names of all of them, positively.

Q. — Were these election returns signed by any persons as the officers
of election ?

A.— Yes.

Q. — Did you see those names signed to the election returns at the same
time that vou saw the returns, near Mono Lake?

A.— I di'd.

(^. — Did you ever see those election returns, and the list of voters, after
you saw them in the building you speak of, near Mono Lake ?

A.— I did.

Q._WI,ore ?

A. — In Monoville.

Q. — Where did you see them there?

A. — I .saw them in the village, or town.

Q. — At what place?

A. — At Mitchell k Poor's store.

Q. — In whose po.s.session did you see them there?

A. — I refuse to answer that.

Q. — Do you know of any person who had those election returns, and
the list of voters, in their possession, after you saw them at Mitchell &
Poor's store ?

A.— Yes.

Q.—IIow came that person to have those papers in his possession?

A. — They were given to him to take over to Aurora.

Q. — To what place at Aurora?

A. — To the County Clerk's, I expect.

Q. — Have you ever seen those election returns, or the list of voters,
since the time you saw them in tlie possession of the man who you say
was to take them to Aurora ?

A. — No ; never saw them afterwards.

Q._Would you be able to tell those election returns, if you were to
-^ee them again ?

A. — Yes. Sir.

CROSS EXAMINATION.

Mr. Quint. — When did you go to Moiioville '!

A. — In May.

Q. — When did you leave there ?

A. — I left in August.

Q. — Where did you go?

A. — To Visalia.

Q. — What time in August ?

A. — I think about tlie sixth ; don't recollect.

Q. — AVho went with you ?

A. — Mr. Poor, Mr. Worthington. another man, and Dr. Eoberts.

Q. — How long were you on the road ?

A. — Five or six days.

Q. — How long did 3-0U remain in Visalia?

A. — Was there eight or ten days.

Q. — Where did you then go ?

A. — Back to Mono.

Q. — When did you arrive there ?

A. — On oloetion day.

Q. — What time in the day?

A. — About noon.

Q. — Who was with you ?

A. — A man named Tenyke.

Q. — Whore is he ?

A. — At Carson City, the last I heard of him.

Q. — When did you last see him ?

A. — In September.

Q. — About what time ?

A. — He left Mt)no some time in September.

Q.— Where did he start for?

A. — He started for Carson City.

Q. — When did you leave Mono?

A. — In October.

Q.— What time in October ?

A. — Don't recollect the date, exactly.

Q. — As near as you can recollect ?

A. — Somewliere about the middle, I think.

Q. — Who went with you ?

A. — Mr. Poor. Dr. Roberts, and Worthington.

Q. — AVhere did you go to ?

A.— To Visalia.

Q. — How long did you remain at Visalia ?

A. — I remained there till about Christmas time.

Q. — Do you recollect the date ?

A. — No, Sir ; don't recollect.

Q. — Where did you go, from there ?

A. — To San Francisco.

Q. — What time did you arrive here?

A. — About Christmas, or a little before Christmas.

Q- — How many da3-s were you on the road ?

A. — About a week"

Q. — Who was with you ?

A. — Xo person. I was in company with persons on the stage.

Q- — Were any of your acquaintances with you ?

A.— Tliere was a gentleman I was acquainted with— Dr. George.
il- — Do 3'()u know where ho is?
A. — Saw him a couple of days ago.
Q. — Wiiere does he live?
A. — In San Francisco, I believe.
Q. — What is he doing ?

A. — I don't know ; is engaged in a silver mine, I believe, somewhere.
Q. — Do 3-0U know at what place in the city he resides?
A.— No, Sir.

Q. — How often have you met him?
A. — A groat many times. A hundred times, probably.
Q. — How long have you known him?
A. — Since eigliti'cn hundred and tifty-six.
(^. — Was he ever in Mono?
A. — Not that I know of.

Q. — Where have you been residing, while in the city ?
A. — On First street.
Q. — At what house?
A. — At the Jsthmus House.
Q. — Wiiat have you Ijeen engaged in ?
A. — Have not been doing anything.
(^. — How much money had you when you left Visalia ?
A. — A very small amount; twenty dollars, I guess.
(^. — When was that exhausted ?
A. — When I got to Stockton.

Q. — To wliom did you first communicate the facts to which you have
testified ?

A. — To Mr. Hamiltr»n ; his given name is James.

Q. — At what j)lace?

A. — Stockton.

(j.—Wlu-n ?

A. — The dav I arrived there.

(^— What (iate?

A. — I don't recollect ; it was three days after I left Yisalia.

(^. — Wiiere does Mr. Hamilton live?

A. — In this city, now.

Q. — At what place ?

A. — At the Isthmus House.

Q. — Did he come tlown with you
A.— X«>, Sir.

(^. — When did he arrive ?

A. — Aliout New Year.

(^. — I),, you know for what purpose he came down ?

A. — He came down to get employment.

Q. — In what has he been engaged since he came to the city?

A. — Plastering. Has not been at work all the time.

Q. — II„\v often have you seen him since he came to the city ?

A. — I don't know.

(^. — Have you seen him a dozen times ?

A.— Yes.

Q._lIow many more than a dozen times have you seen him, as near

as you can recollect ?

A.— Have seen him nearly every day. i xi, ^ +•

(^— Have you and ho often conversed about this case, and the testi-
mony whichyou were to give in it?

A. I liavc conversed with him about it.

Q. — How often ?

A. — Several times.

Q. — How many ?

A. — Don't recollect; perhaps six times.

Q. — How long have 3'ou known him ?

A. — A couple of years.

Q. — At what place ?

A. — At Visalia.

Q. — When did he leave Visalia ?

A. — About three months ago, I guess.

Q. — Were you there when he left /

A.— Yes.

Q. — How long was it after your return to Visalia, tluit he left?

A. — Don't know.

Q. — State about how long it was.

A. — I could not say ; don't remember.

Q. — Was it a month ?

A. — Don't know whether it was more, or whether it was less.

Q. — What is your impression as to the time ; \v:is it U-ss. or inorc ihuii
one month ?

A. — Don't know.

Q. — Have you no impression njxm the subject?

A. — No, Sir.

Q. — Do you recollect the circumstance of the starting ?

A.— No.

Q. — How did he leave ?

A. — By stage, [ believe. I understood ho went by stage.

Q. — AVhere did you meet him in Stockton ?

A. — In the stage office.

Q. — How long liad he been there ?

A. — I don't know.

Q. — What was he engaged in there ?

A. — He was not doing anvthing when I arrived there.

Q. — How long did you remain in Stockton ?

A. — Two days.

Q. — Previous to leaving A'isalia. had you corresjionded or conversed
with an}' person or persons upon the subject about which you have tes-
tified ?

A.— I had.

Q._With whom ?

A.— A. H. Mitchell.

Q. — Did 3'ou state to him the circumstances ?

A. — Yes. I talked to Mr. Mitchell about the circumstances at the
White Mountains.

Q. — That was the substance of what you have testified to, was it ?

A. — Yes.

Q. — Did you. previous to leaving Visalia. corresjiond or converse witli
any other person or persons, except A. H. Mitchell, about this matter,
and the subject of your testimony ?

A.— I did".

Q._To whom ?

A. — A man by the name of William Graves.

Q. — At what time ?

A. — About two weeks before I left Visalia.

t^. — Any other parties ?

A. — None tluit 1 rccMjUect of.

Q. — Did you and he talk tiie matter over, and did you state the sub-
stance of what you knew about it ?

A. — I told him what I knew about the aftair over there.

(^. — How often did you talk about it ?

A. — But once, to him.

Q. — How h)n^ have you known him ?

A. — About tliree years.

Q. — ]Iow di<l you come to tell Hamilton about it?

A. — In the tirst place, I asked Hamilton if he had seen Judge Quint
pass thr«m«;h Stockton. Ho said he had not.

Q._\Vas that all?

A.— No.

Q.— What else?

A. — 1 told him I was broke, and could probably get some money of
you, [(^uint,] if 1 could see you. And I told him then what I knew
about the ^^ hilo ^lountain election.

Q. — What was j'our object in telling him ?

A. — I had no ol»ject in telling him.

Q. — How long were you conversing about the subject?

A. — A few minutes.

Q. — Where was it that you had the conversation?

A. — I don't recollect where 1 was standing; it was in Stockton.

Q. — Were you with him during the two days you were in Stockton ?

A. — Most of the time I was.

Q. — Did you sleep in the same house ?

A.— Ye.s.

Q. — In the same room?

A.— Yes.

Q. — When was it that you had this conversation in Stockton?

A. — I don't recollect whether it was on the first or the last day that
I was there.

(^. — Did Hamilton know me, [Quint.] or does he now know me ?

A. — He told me he had seen Mr. Quint, I think.

Q. — When did he tell you that he had seen me ? [(^uint.]

A. — While I was in Stockton.

(^.^What time was it, with respect to your arrival there ?

A.— I don't remember whether it was the first or the last day that 1

was there. , , . , , , ^tt, ..

(^._Was it before or after you told him about the election at the White

Mountains ?

A.— I think it was before. . .-n a

Q._l)ia y„u intend to disclose the facts, to which you have testitied,

to me? [t^uint.]

A. — I did. if you had spoken to me about it.

Q. — For what purpose ?

A.— To put you [Quint] on your guard.

Q._l>id you ever, at any time, tell me [Quint] the circumstances, as

testified by you? .

A. — No, I never did. o rr\ • -t-i

Q._When did you first become acquainted with me ( [Qumt.J

A. — A couple of weeks ago.

Q.— At what place ? i . •-

A.— Near the American Exchange, in this city.

Q. By ^vhom were you made acquainted with me ? [Quint.]

A. — By Mr. Franklin, I believe.

Q. — ^Do you recollect where you w^ere standing, and where I came
from, or where I was going to, at the time ?

A. — When I first saw you, I think you were standing still; I am not
positive. I didn't know it was j^ou.

Q. — AYho was with me? [Quint.]

A. — Mr. Franklin.

Q. — Who was with you ?

A. — I don't know who.

Q. — Was there anybody ?

A. — I believe there was.

Q. — Did I, [(^uint,] on that occasion, ask j-ou when and how long you
had resided in Mono County ?

A. — I don't recollect whether you asked the question or not.

Q. — Do you recollect that I [Quint] asked you whether you had over
been to the AVhite Mountains, or not ?

A. — You might have asked mo the question ; I don't recollect.

Q. — Did I [(^uint] not ask you what you knew about the number of
people in that ])recinct ?

A. — I think you did ; I am not certaiji.

Q. — Did I [Quint] ask yon any farther, or other questions, about the
election held there 'f

A. — I think you asked me what I knew al»out it.

Q. — Who was present ?

A. — There was no person present. I don't recollect of your asking
me when I fii'st saw you.

Q. — Did 3'ou tell me what you actually knew ?

A. — I did not tell you an^-tliing at all, hardly. You asked me what
I was doing over there. I said I was at work for Mitchell k Poor. You
further asked me if I had over sold goods to go to the White Moun-
tains. I said that I had.

Q. — State the conversation.

A. — You asked me how much I had sold. I said six or eight hundred
dollars' worth, or something near that. I told you the}' had been get-
ting stuff to build a quartz mill — 1 mean Crawley & (rraves. I spoke
something to you about McGeary, who pretended to know something
about this case, but I don't recollect what. I thought, by the way you
talked, you were going to have me sub])a'naed. 1 told you that I had
better have a talk Avitli you before you had me subpaMiaed. You said
you would. I don't recollect anything inore.

Q. — r)id I not ask you how long you were going to remain in town ?

A. — I don't recollect of j'our asking me.

Q. — Did I [Quint] not tell you, that when the examination of my wit-
nesses came u]), I would have you subjjaMiaed ?

A. — No. There was something said about my being subpoenaed. I
told you that you had better not have me subpoenaed.

Q- — How long since this conversation occurred ?

A. — I think it occurred the next day. You made an appointment to
meet me, at nine o'clock, at the American Exchange.

Q- — AVhere did this conversation occur ?

A. — A little on the other side of the American Exchange — further up
Sansome street ; at the clothing store, in the American Exchange.

Q- — Are you sui'o that I made an appointment, or agreed to meet you.

at tlie American Exchange, at nine o'clock the next morning., or at any
other tune i '^' •>

A. — Yuu did.

Q- — Tluit was the hour, was it ?

A. — Yes, .Sir.

Q.— Were you there, at the time specified ?

A. — Yes, Sir.

Q. — Did you find me there?

A.— No ; at least I did not see you when I first went there.

(^— Have l[Qu,nt] seen you, or spoken with you, upon the subject,
since the talk m front of the American Exchange ?

A.— No. Sir. ^

Mr. Crane. — Is that all your answer?

A. — I said he had not.

Mr. Qnint.—\\\vAi time in the day was it when we had the conversa-
tion in front of the American Exchange?

A. — Somewhere about ten o'clock, I think.

(l- — Moi-niiig or evening?

A. — In the morning.

Q.— What time was it that you Avent over to Mono Lake, from Mono-
villo ?

A. — Four or five days after the election.

Q. — Have you ever been tlu-re more than once ?

A. — I have been to the Lake more than once.

(^. — How many times have you been at the house you speak of?

A. — I iK'Ver was there but once.

^h — What time did you arrive there?

A. — Ali(>ut nine or ten o'clock in the morning.

Q. — How long were 3'ou there?

A. — I was there till night.

Q. — How many persons were with you ?

A.— One.

^l- — What time did you leave Monoville for this place on the Lake?

A. — Ai»out nine or ten o'clock.

t^. — What did you have with you ?

A. — I took some ]n-ovisions down there.

Q. — Anvthing else?

A.— Yes.

Q.— What else?

A. — I decline answering that.

Q. — For what reason do you decline answering the question ?

A. — Well, 1 don't see fit to answer it.

Q. — Who went with you?

A. — 1 went alone.

Q. — How did you go. and how long were you in going ?

A. — I went there on horseback. Was three quarters of an hour to an
hour in going.

Q. — l)o you recollect the day of the month?

A.— No.'

Q. — Do you recollect the day of the week ?

A. — I do not.

Q. — Do 3-ou remember whether it was before or after the Sunday fol-
lowing election day ?

A.— I .say it was' four or five days after election. Don't know whether
it was before Sunday, or after Sunday.

Q. pid any one accompany you on the way, or any portion of the

way, going to the Lake ?

q' How did you come to go to this particular place or locality ?

A. — I was directed to go there.

Q. — By whom ?

A. — By a man by the name of Hamilton.

Q._Whcn and where did he direct you to go there ?

A. — He directed me in Visalia— not Visalia, but in Mono.

Q._When ?

A. — Four or five days after tlie election.

Q. — Was any one else present at the time 3'ou were directed to go ?

A. — Not that I recollect.

Q. — From what stable did you start ?

A. — Think I got a horse at Brunsou & Co.'s.

Q. — Did you start from the stable ?

A. — Yes, Sir.

Q. — Who was present at the time you started ?

A. — Don't recollect. There were several persons about the stable.

Q. — Of whom did j-ou hire the horse?

A. — Don't recollect which one of the firm it was.

Q. — Who constituted the firm '!

A. — Graves. Jones. Bnmson, and AViiifit-id. to the best of my knowl-
edge; don't know whether they were all interested, or not.

Q. — Any others ?

A. — Not that I know of

Q. — Were either of these parties present, and did either of them let
you have the horse. If so, which one?

A. — I don't recollect.

Q. — What time was it when you reached Monoville. on your return ?

A. — It Avas after dark; don't recollect what time it was.

Q. — AVho was at the stable on your return ?

A. — I don't know.

C^. — hid vou see anybody ?

A.— 1 did.

Q. — Was there more than one man at the stable, on your return ?

A. — I think there was.

Q. — Arc you well acquainted with the owners and proprietors of the
stable, and were you at that time ?

A. — Am acquainted with Jones, Graves, Branson, and this other man,
"Winfield, that I speak of

Q. — Well acquainted ?

A. — Not particularly well ; have known them,

Q. — How long?

A. — About a year.

Q. — You cannot name a single person who was present at the time
you obtained the horse, or returned with hira — can you?

A.— No.

Q. — Who did you find at the house at Mono Lake ?

A. — A man by the name of Worthington.

Q. — Do 5^ou know where he is ?

A. — No, Sir; I do not.

Q- — Hid you sec any one else there, during your stay ? If so, who ?

A. — Two men passed there. Don't know their names, nor whether I
ever saw them before.

Q — Which way were they i^oino-?

A.— A])|)Oiuv(l us if they wore fomincr from town, (Mono.) Did not
Bcc thi 111 until they were within a few steps of the door.

il- — Wlierc (lid tliey go?

A. — I don't know.

Q. — In what direction ditl they <ro ?

A. — Tlic}- went down towards the Lake.

(1- — Ilarl you ever seen those persons before, or have you seen them
gince f

A. — Not that I know of

(^. — How h)ni^ dill tiiey stop?

A. — .\hout a ininnte.

(^. — I)id they <fo into the house? «

A.— No. Sir.

Q.— What time in the day was it that they called ?

A. — Ahout one o'clock, 1 «;iiess.

Q. — Who went with you to town ?

A. — Mr. \Vorthin«rton.

Q. — Did Woi'thini^ton write tlie returns ?

A.— lie did.

Q. — He did the writin.i;. did he?

A. — lie did a portion of the writing.

(^>. — What portion ?

[Oltjected to l»y Mr. Cavis. Ohjection overruled.]

A. — I refu'^e to answei* the question.

(^. — I'\»r what reason tlo you refuse to answer?

A. — On the ground that 1 shall criminate myself.

Q. — Do 3-ou Icnow who brought those returns you speak of, to Mono-
ville?

A.— I do.

(^— Who was it ?

A. — 1 refuse to answer.

(^. — Do y(»u know whether those returns you speak of were ever car-
ried to Aurora, or filed with the County Clerk of that county?

A. — No. Sii". I never saw them there.

(^ — Have vou been at Aurora since those returns were made out?

A.— I havJ.

(^. — How many times?

A.— Once.

(^— When?

A. — Some time in September?

(^. — What ]iart of the month ?

A. — About the titteenth or twentieth.

Q. — For what purjiose did you visit there ?

A. — I had no particular reason for going over.

(^. — Who went with you ?

A. — I went over alone.

Q. — How long did you stay there ?

A. — Over one day.

Q.— Had this visit anything to do with the election or election re-
turns ?

A.— No.

Q. — Who were those returns delivered to?

A.— ir you will tell me at what place you mean, I will answer you.

Q. — Where did you sec them last ?
7

A. — In Mono.

Q. — To whom were they delivered?

A.— To Abel.

Q._What Abel ?

A.— Pete Abel.

Q. — By whom ?

A. — I refuse to answer that.

Q._Where is Pete Abel ?

A. — I don't know.

Q. — When did you see him last ?

A. — 1 saw him last in September or October.

Q. — At what place ?

A. — In Mono.

Q. — Was he there when j'ou left?

A. — Am not certain whether he was or not.

Q. — How long before you letl was it that you saw liim?

A. — Don't know ; thinic 1 saw him the day I left; am not positive
about that.

Q. — Have you seen or heard of him since '(

A. — No, Sir.

Q. — Are any of the parties who went with you from Monovillc to Vi-
ealia, in this city ?

A. — I think not.

Q. — IIow many were there of your party that went to Visalia in
August ?

A. — Only one. That was where I made the mistake.

Q._Who was he?

A. — I don't know his name.

Q. — Does he live in the cit}'?

A. — No ; the man he worked f(^r over there is here. There are other
parties who know him.

Q. — Wliere is he now living?

A. — In Tulare County.

Mr. Cavis. — When Judge Quint asked you who w^ent with you to Visa-
lia the second time, and you said you had made a mistake about the first
time, what did you mean ?

A. — I meant that it was Mr. Worthington, Poor, and Dr. Roberts, who
went over with me the second time.

Q. — What with reference to tlie tirst time?

A. — Nothing at all ; only that there was only one man who went over
with me the tirst time.

Q. — AVas it not before you went to Sacramento that you were intro-
duced to Judge Quint?

A.— No, Sir.

Q. — Did not B. K. Davis get you to go to Sacramento with him to see
Mr. CotYroth, and have a talk with him about the White Mountain elec-
tion ?

[Objected to b}' Mr. Quint, on the ground that it is entirely irrelevant
to the issue in the case.]

Q. — Have you not been offered a ticket to go to Oregon, if you would
leave California ?

[Objected to, on the ground of irrelevancy, and as having no tendency
to prove any issue in this case, unless it is asserted or expected to connect
me (Quint) with it; if so, I have no objection to the answer.

Cavis, Contestant, states that he asked the question because ho has

reasons to believe that different persons in this city have been anxious
to have this witness leave the city, so that his testimony could not be
obtained in this case.

Upon that explanation, Quint still objects to the witness answering
the question.

Objection overruled.]
A. — No, Sir.

Mr. Quint. — What is this Worthington's given name?

A. — J. Worthiiii^ton, I think.

Q. — How lon^ have you known him?

A. — Two or tliroe years.

— What was he d()in<; in Monoville ?

— Miiiiii;^, I believe.

— Was there more than one Worthington there ?

— I only knew one.

— Who were his partners?

— I don't know.

— Do j-ou know when he went over there?
— He startoil. I think, about the first of April.
— Do 30U know when he went over to Mono Lake?
— No; I don't know when he went there.
— How loiii^ before that was it that you saw him ?
— It was nearly a month bef<;re this day that I saw him.

— Do you know where he had been?

— Ho had boon to the White Mountains.

JOHN A. BOSTWICK.

Subscribed and sworn to, February sixth, eighteen hundred and sixty-
two.

TESTIMONY OF C. J. BEOWN.

Q. — Where do you reside ?

A. — I have been, for the last month, or a little over, residing in this
place. When I am at home, I reside at Aurora, Mono County.

Q. — When did you first go to Aurora, Mono County ?

A. — I went in eighteen hundred and sixty; some time in December.

Q. — When did you leave there?

A. — In eighteen hundred and sixty-one; the sixth day of December,
if I am not mistaken.

Q.— Where were you residing, in the spring of the year eighteen hun-
dred and sixtv-one ?

A. I was residing in Esmeralda — some call it Aurora; in the town.

Q. — Who were your partners?

A. A young man by the name of John Eoss, and another man named

H. B. Wagner° , ^^, . ,^

Q._Do you know anything about John Eoss going to the White Moun-
tains ?

A.— Yes, Sir. I know of his going out on a prospecting tour.

Q. — When was it ? /. . , 1 j j

A.— The first time he went out was in the spring of eighteen hundred

and sixty-one I, at the time, had business at Virginia City ; the second

day of March my' business called me. I started back from Virginia City

on the third day of March. I was four days getting through to Esme-
ralda.

Q. State what occurred when you returned home .''

A.— If I mistake not, John Ross, on the sixth or seventh, left our cabin
on a prospecting tour. Charley Shultz, and a man named Jim Condon,
were with him.

Q. — l3o you remember any others, who went with him ?

A. — No, Sir; I do not.

Q. — IIow long were they gone ?

A. They came back some time in April ; it might have been the

middle, or near the first.

Q. — lIow long did he remain at home ?

A. — .\bout a week.

Q. — Where did he go then ?

A. — He started back.

Q._ Where for y

A. — They had started back to a place where they had been prospect-
ing, to give it a better test.

Q. — i)o you remember who went with him, the second time ?

A. — A man by the name of Daniel Wyman, Charley Shultz, and Jamoa
Condon.

Q. — Any others ?

A. — Not that I was acquainted with, or knew of.

Q. — Do you know whether other parties went with him ?

A. — That is all that I know of, to my own knowledge.

Q. — lIow long were they gone, at that time '(

A. — Some time in the latter part of June they came back.

Q. — With the exception of the time you speak of as being absent from
Aurora, were you residing there during the year eighteen hundred and
sixty -one, until you left in December last 'i

A. — Yes, Sir; except when 1 had business in Virginia. Once after-
wards, I went over there. I made three trips ; I went twice besides the
time I speak of

Q. — Examine the names signed to the election returns of Big Springs
Precinct, on file with this Committee, and state whether you have ever
known any persons bearing those names ?

A. — Not through my personal acquaintance.

Q. — Have you ever seen a list of voters from that precinct?

A.— No, Sir.

Q. — Examine the petition, on file with the Committee, asking that a
precinct be established at Big Springs Camp, White Mountain District,
and state whether a'ou have ever known any persons of the same names
fts those which appear signed to that petition.
A. — Not through my personal acquaintance.

CROSS EXAMINATION.

Mr. Quint. — Do you know, or have you heard of, men bearing those
names, or any of them, living in the White Mountain District ?

[Objected to by Mr. Cavis, on the ground that tlie question asks for
hearsay evidence. Objection sustained.]

Q. — Did you ever know a man named William Graves ?

A. — I was not personally acquainted with him.

Q. — Did you ever sec him ?

A.— T oarmot say wlicthcr I have, or not. He raiirht have been in
town, and 1 not have known it.

Q. — Did 3-011 ever know Jolin Campion ?

A. — I never knew John Campion.

Q. — Did you ever know James Kittrell ?

A.— No, Sir.

Q. — Did you ever know L. Thompson ?

A. — No, Sir.

Q. — Did voii ever know B. K. Murray ?

A.— No, Sir.

Q.— Mi<,'ht they not have been residents of the White Mountains, and
you not have known it 'i

A. — That mi<rht be. Sir.

Q.— Have you ever known William Crawford, T. Bowman, John Sands,
L. A. Murray. Alfred Odell. or William Selhy?

A. — No, Sir ; not to be aequainted with them, tha.t I know of

Q. — Mi<rht they not have resided at the Big Springs, and you not have
known it :

A. — Yes, Sir,

Q. — Do you know f)f any considerable excitement, about gold and
silver mines in Mono County, during the summer of eighteen hundred
and sixty-one ? \i' so, state when and where the excitement was.

A. — The excitement was first in P]smeralda; that was what took me
over there. liast winter there was an excitement in reference to the
East Walker River, near the Elbow Itanch. My partner (Ross) went
down with me, at the same time; lie returned, and reported unfavorable
to the place.

Q. — At what time was that?

A. — Some time in the latter part of February ; I am not certain.

(J. — Do you know of any other or farther excitement, about gold and
silver, in tliat county, in the summer of eighteen hundred and sixty-one?
If so, state when.

A. — Yes, Sir. J)uring the time I was at Virginia City, and about the
time that I returned.

Q. — At what ])lace?

A. — North of Esmeralda, as near as I can tell. In a range of moun-
tains leading from Esmeralda, down towards the East Walker.

(^. — Do you know the name of those mountains?

A. — Have never heard of any.

{.I. — Was there any other excitement, after the first of March, that
you had heard spoken of?

A. — There had been more or less excitement on what is called East •
Walker River, or vicinity.

Q. — W^on was this ?

A.— During the summer, and up to the time I left. There were some
mines s))oken of, very favorably.

Q._I)o you not know, that in the months of July and August,
eighteen hundred and sixty-one, there was an intense excitement in
Mono County and vicinity, relative to gold and silver discoveries, said
to have been made at the Sink of Walker's River, and at the White

Mountaiiis?

A. There was a great stampede from Aurora, in consequence of some

reports which had "been brought, relative to the diggings. They were
reported to be at the Sink of Walker's River, or in that neighborhood.

That was the time of the great rush ; the largest excitement I ever
Baw.

Q. — About what time was that ?

A. — I can't specify the time. Think it was the latter part of June, or
first of July.

Q. — How many left Aurora, during that excitement ?

A. — That I can't say.

Q. — To the best of your opinion, state how many left.

A. — There might have been two hundred or three hundred, more or
less.

Q. — Do you know of any other excitement than you have men-
tioned ?

A. — There was what was called the Body District, that had been
worked all summer, and which had been considerably talked of

Q. — Any other excitement ?

A. — Yes, Sir ; my partner and the boys had been out to the "White
Mountains, located there, and called it the White Mountain District.

Q. — Did not your partner go out there in consequence of that oxcito-
ment ?

A. — No, Sir. He went out prospecting.

Q. — Have you ever been near to the AVhite Mountains?

A. — Not nearer than the vicinity of Esmeralda.

Q. — Might there not have been a large jjopulation in that vicinity, and
you not have known it ?

A. — Yes, Sir ; there could have been.

C. J. BROWN.

Subscribed and sworn to, February eighth, eighteen hundred and
sixty-two.

TESTIMONY OF N. M. ORR.

Q. — Where do you reside ?

A. — At Cohunl)ia. in Tuolumne County.

Q. — How long have you been acquainted with Judge Quint?

A. — I was first introduced to him in February or March, eighteen hun-
dred and fifty-six; have seen him frequently since that time.

Q. — Were you a candidate, at the last September election, for any
office ? If so, state for what. •

A. — I was a candidate for the office of Assemblyman from the Counties
of Tuolumne and Mono.

Q.— On what ticket?

A. — On the Republican ticket.

Q. — Have you ever been in Mono County?

A.— I have. Sir.

Q. — State when you went there.

A. — It was the second or third of October, eighteen hundred and
sixty-one; can't tell exactly the date that I arrived in Mono County.

Q- — For what purpose did you visit Mono County ?

A. — I visited it for the purpose of ascertaining whether or not there
had been an election held at the Big Springs Precinct, in the White
Mountain District.

Q- — To what camp in Mono County did you first go?

A. — To Aurora.

Q. — After yonr arrival in Aurora. Avliat did you do?

A.— I stopjK'd at Aurora from Thursday ni.<rht until a week from the
next Saturday morimiir, and tried, in the meantime, to ascertain all I
couM al.out the purported election, said to have been held at the Bier
Sprin<;s Precinct. "^

Q- — ^yhat did you do in trying to ascertain that?

A.— First went to the County Clerk's office, and examined the alleged
returns, on file there, of the Big Springs Precinct. T also made all the
inquiries I could in regard to the country down at the White Mountains,
of parties who hail l»ecn there. That was about the amount of my
labors there, that week.

il — Did you afterwards visit the White Mountains?

A.— T did.

Q.— With whom?

A.— H S. Mason and C. W\ Shultz.

Q. — How came they to go with you ?

A. — Dr. >rason went of his own free will, as company; Shultz I em-
ployed in the cajiacity of a guide.

Q- — Who paid the expenses of that trip, for animals and provisions ?

A. — I pai'i ])art of them; Mr. Cavis the other part, I suppose. Mr.
Cavis went to .Mono County in company with me.

(^ — For what purpose did you visit the White Mountains?

A. — 1 went to see if I could find any inliabitants there, and also to
see one William (iraves. who. I heard, was living there. That was my
principal business; and also to ascertain if an election was held there.

(^. — Slate the route you followed in going to the White Mountains.

A. — 1 took a trail about a mile from Aurora and went across a sage-
brush country, to the east of Mono Lake. The trail leads to the Adobe
Meadows, about thirty miles from Aurora. I camped there the first
night. From there I travelled in an easterly direction, across a sage-
brush plain, over low sagebrush hills, into the valley that bounds the
White Mountain range on the west. From about the middle of this
valley — which is there |)robably ten miles wide, and from a point where
there is a spi-ing — my course was more to the north. After a half day's
travel, (he latter part of which had been along the base of the White
Mountain range, the second night from Aurora, I camped, about a mile
from the base of the mountains, up in a ravine leading to the summit of
the mountains. From there I travelled further up the ravine, I should
think nearly in an easterly direction, to the summit of the mountain
range, thence struek into another ravine, on the eastern side, Avhieh
T followed down to the eastern base of the mountain to a desert plain,
very similar in appearance to the one which I had left, at the western
base of the mountain. At the mouth of this ravine my course was in a
Boutheriv direction for ])erhaps fifteen or twenty miles, Avhen I camped,
the third night from Aurora, by the side of a small creek that makes
its way down from the mountain, and runs a short distance from its base,
into a grassy meadow of considerable extent. From there I again trav-
elled south, and after leaving this meadow, passed through a desert
country, with alkali plains, for probably fifteen or twenty miles, until I
arrived at the mouth of a creek, called Cottonwood Creek. Thence 1
travelled westerly, up this creek for seven or eight miles, and again
camped, on the bank of the creek, in a caiion Avhich prevented our fol-
lowing the creek up any farther. From there we left the creek and trav-
elled up the side of the mountain till we struck an Indian trail, ^^'^jch
led along the side of the mountain, past this rough canon. We travelled

up the creek, after the trail struck tlie creek above the canon, for two (
three miles, then again left the creek, and took a trail which led over

or
a

mountain, (a point^of the White Mountains,) down to Crawley's Camp,
on Cottonwood Creek. I .stopped there the fourth night from Aurora.
From there I went over a low ridge of the mountains, from Cottonwood
Creek, into a vallc}', called Koot's' Valley, about four or five miles from
Crawley's Camp. We travelled up this valley to the summit of the
mountains, still going in a westei'ly direction, thence down the side of
the mountain to the head of a ravine, which I followed down to tho
Desert at the western base of the mountain. From there I went down
the mountain, in a southerly direction, to a spring that lies hut a short
distance from the ba.se of the mountain, on the Desert, and there camped
the fifth night from Aurora. From that spring I travelled across tho
Desert, diagonally, till I struck the emigrant road leading from Mono to
Visalia, which I followed past the Hanchcria Sj)rings to the mouth of
the Hot Spring Valley, on the wesloni sitle of this Desert, and there
again cam])ed. Krom there I followeil uj> the Hot Spring Valley, still
following the emigrant ]-oad, over the range of hills and low mountains,
passed tlie Black LaUe, ncai* which point I left the enugrant road to
travel straight across the counti-y. which was a sandy, sagc-hrush ])lain,
until I came to the Adohe Meadows, where I again cain|)ed. From there
I travelled back to Aurora by the same route that I first went.

Q. — Did you see any persons as you journeyed from Aui'ora to tho
Adobe Meadows, or at the Adobe Meailowsy If so, state.

A. — Did not see any person as I was going, or at the Adobe Meadows.

Q. — As you joui'neved from the Adobe Meadows to the western base
of the White Mountains, or at the western base, diil you see any per-
sons ?

A. — I saw no white persons on that route; saw a lew Indians.

Q. — Dui'ing that ilay's journey, what indications, if any, did you see of
parties having travelled or )»rospected ?

A. — I travelled a blind trail, in which a few tracks of a shod liorse
could be seen, whicli were all the indications of civilization that I saw
after leaving the Meadows.

Q. — Did 3'ou see an}- places where any mining or prospecting work had
been done, during that day's travel ;'

A. — I did not.

Q. — From the western base of the mountains, where you crossed, to
where you camjied the third night, did you see any persons 'i' H' so,
state.

A. — I saw none, with the exception of Indians.

Q. — Did you see an}- places where any mining or prospecting had been
done ?

A. — I did not.

Q- — From where you camped the third night, as you journeyed down
the east side of the mountains, did you see any persons?

A. — Xone but Indians.

Q- — Did you see where any mining or prospecting had been done?

A. — Saw signs of prosj)ecting in quartz, after 1 sUirted up the moun-
tains. None till I got to Cottonwood Creek.

Q- — Did you find signs of mining and prospecting on that creek?

A. — Think there was one or two holes, as 1 went up the creek.

Q- — Who did you find at Crawley's Camp?

A. — William Graves, Daniel Wyman, and a man, I think, named Mun-
8on, but am not sure; also, another man, whose name I don't remember.

Q — }yiiivt was Crawley's company doing there?

A.— Tliey were puttinir up au anistra, for tlie purpose of prospectinir
quartz leads. , ^

Q.— Did you l.ave any tali-c with Graves, Wynian, or either of the other
men you lound at that camp, ahout tlie September election ?

[Ohjectod to. on the ground that it is irrelevant. Objection overruled.!

A. — I did, with all the parties.

Q.— Did you have with you. at that time, a copy of the poll book of
the Big Springs Precinct on tile in the County Clerk's office, of Mono
County, atiil did you show it to these parties;'

[Objected to by Mr. (^uint, on the ground of irrelevancy, and as not
tending to controvert or establish any issue in this case. Objection over-
ruled, anil excepted to.]

A. —I did not have any copy with me.

Q.— Did you have a copy of the petition asking for a precinct to be
08tai)lislied at Big Springs Camp, White Mountain District, of which the
one on lile with the Committee is a true co|)y i'

A. — I don't recollect whether I had a full copy of the petition, or not.
I know I had the names of tlie petitioners, as signed to the petition.

t^- — Alter y(ni left Crawley's Cam}) to go to the west side of the
mountains, did you meet any paities'/

A. — I met no parties on the route. At the Springs, where I camped
the night aftei- I left Crawley's Camp, wo found Col. Crawley and one of
his ])artiiers, who left his camp in the mountains that morning before we
Icit.

Q. — Any other parties?

A. — No others.

(^. — What appearance, during that day's travel, if any, did you see, of
parlies having been over that route before 3'ou ?

A. — A trail, which bore indications of having been travelled a little.

Q. — Do you know whether that was the regular trail from Crawley's
Camp to the west side of the mountains, towards Mono?

A. — It was the only trail that could be seen leading out from there,
that I saw.

Q. — Did you sec any indications of parties having prospected along
that route? It' so, where ?

A. — I saw no indications of prospecting after I left the vicinity of their
cam|).

(^. — On your journey from the spring you speak of, near the foot of
the mountains, did ^•ou meet aii}' parties? If so, where?

A.— The day we feft that spring, I think we met two parties; one, of
two men. the other, three.

Q. — Where were the party of two men?

A.— They were on the emigrant road, in the Desert, about twelve miles
from the spring.

Q — On foot, or on animals ?

A. — They had two or three animals; don't recollect.

Q. — Where was the i)artv of three persons?

A.— We met them directly after we met the party of two, on the emi-
grant I'oad.

Q. — How were they travelling?

A. — They were on horseback.

Q._l)iirii)<<your trip, did you see any other persons than those you
have already'mentioned ? If so, state where you saw them.

A. — 1 saw no other white persons.
8

Q. Have you seen the election returns of Big Springs Precinct, White

Mountain District, on file in the County Clerk's otlicc, of Mono County ?

A. — I have.

Q.— What kind of paper are they written upon ?

A. — Written upon blue-tinted paper.

Q. — What is the shape, or size of the paper ?

A. — Foolscap sheets.

Q. — Have you seen the poll book, on file with those returns?

A. — I have.

Q. — What kind of paper was that written upon ?

A. — The same kind of paper as the tally list.

Q. — What was the size of the paper ?

A. — Sheets of foolscap, cut lengthwise, into four pieces.

Q. — At the time you were in Aurora, do you know whether the stage,
running between Aurora and Carson City, made regular trips, or not?

A. — 1 think it did not.

Q. — Do you remember on what days of the week it left Aurora ?

A. — I do not.

Q. — Do you know how many trips a week it made, during any portion
of the time you were there ?

A. — I don't know; know it was irregular. One week it did not come
in but once.

Q. — Do you know how long it took a letter, at that time, to go by
Wells, Fargo & Co.'s Express, between Aui-ora and Columbia, Tuolumne
County ?

A. — It would go in eight days, if it went direct.

CROSS EXAMINATION.

Mr. Quint. — Was this the first and only visit you ever made to Mono
County?

A. — It was.

Q. — How long were you in the county ?

A. — I was gone from Columiiia twenty-eight or twent^'-nino days. It
probably took two days to reach the boundary of the county, from Colum-
bia, and the same coming Inick.

Q. — How long were you in Aurora?

A. — Was tliere first, from Thursfhiy niglit until one week from the fol-
lowing Saturday morning. After coming back from the White Moun-
tains, I was there from Sunday until a week from the next Thursday.

Q. — How many days were you in and about the White Mountains?

A. — Six days.

Q. — Do you know the extent of those mountains ?

A. — Not from my own personal knowledge.

Q. — What part or point of the White Mountains did you strike first?

A. — I don't know the name; it was near a spring, on the plain, west
Bide of the mountains.

Q. — How far was this point from the upper end of the mountains?

A. — I don't know.

Q- — Do you know how far, either way from that point, those moun-
tains extend ?

A. — I did not travel over them, and therefore do not know, of my own
personal knowledge.

Q- — How far down the mountains did you travel, in all, from the point
where you first struck them ?

A. — I first travelled about fifteen miles north, from where I first struck
them.

Q. — What direction did j-ou then take?

A. — An easterly direction.

Q. — Willi respect to the mountains, up or down ?

A. — nircctly across the mountains.

Q. — How far across the mountains did you travel ?

A. — To the other side.

Q. — How far was it across?

A. — l*rol)ai)ly. the way wo went, fifteen miles.

Q. — Did you then go farther up or down the mountains?

A.— I did.

Q._ir,)w far?

A. — Thirty miles, I should judge.

Q. — Up. or down ?

A. — Down.

Q. — On which side of the mountains were you when you went down?

A.— The east side.

(^. — Were you on the mountains while travelling, or were you on the
plain lielow ?

A. — On the ])lain below.

Q. — How far from the mountains?

A. — Generally within a mile of the base; with the exception, that
part of tlie time we struck a camjiing place.

t^. — Did you go as far as Walker's liiver, or Owens' Tiiver ?

A. — I did not.

il. — After you had travelled down the mountains, what direction did
you then take ?

A. — Towards the west.

Q. — Was that across the mountains?

A. — It was.

Q. — Do you know how far you were from the foot of the mountains,
at the lower end ?

A.— No, Sir.

Q. — What is about the width of these mountains?

A. — Ten or filleon miles. I slnnild suppose, from base to base.

Q. — What is the character of the country around them?

A. — (lenerallv barren plains.

Q._I)o you know, or did you know, where the Big Springs, mentioned
in the returns, are situated ?

A. — I do not know, and never did know.

Q. — Who was your guide on that trip ?

A.—Charles W. Shultz guided us to Cottonwood Creek; Dr. Mason
knew the rest of the route.

(^._W:is Shultz with you during all the time ?

A. — He was.

Q._II,, XV far did you travel from Aurora? , , . ^

A.— According to the route we went, I think, one hundred and thirty

miles. , _ , • . p J.U

Q._T)o you know how far it is from Aurora to the first pomt ot the

White ^[ountains ?

A. — I don't know. ^ , i xi. •>

Q._irow far is it from Aurora to where you first struck them ?
A.— In the neighborhood of seventy-five miles.
Q._What portion of your trip did you make upon the road .''

A. I travelled four or five miles b}-- the Adobe Meadows, on tbe

road, and a greater part of two days, coming from the mountains, in a
plain on the^'west side of the mountains, and up through Hot Spring
Valley.

Q— Did 5'ou go down, through Hot Spring Valley ?

A.— Xo, Sir.

Q. — Your trip was made more than a month after the election, was it
not ?

A. — It Avas.

Mr. C'niia. — IIow fixr from the springs you speak of, at the west base
of the mountains, near the trail you came out from Crawley's Camp, is
it to the Hot Spring VaUey ?

A. — 1 should judije it to be about thirty miles.

•^ "^ N. M. ORR.

Subscribed and sworn to, February fourteenth, eighteen hundred and
sixtv-two.

TESTIMONY OF THOMAS H. LOEIIR.

Q. — Are you the person sent to Mono County to subpoena R. M. Wil-
son and others, as witnesses in the contested case in the Senate?

A. — I am ; I went for that purpose.

Q. — While you were returning from Mono Count}', did R. M. Wilson
give into your possession any package y If so, state when, and what it
was he gave you ?

A — On the steamer Antelf)pe, about four o'clock on Monday after-
noon, while sitting in the cabin. Mv. Wilson came to me, handed me his
coat, and said : "Tom, will you take care of this, while I go below i"' I
answered: "All right." I saw him go down the steps a short time after-
ward. He returned, said he had been below to get something to eat, but
could get nothing : he then took his coat. I never moved from tlie spot,
during the whole time. I had a ])air of heavy blankets on my lap.
When he came back, he had a little bundle in bis hand, done up in a hand-
kerchief, and remarked: " Tom. let me stick this in j'our blankets; I
might lose it out of my ])ocket." I sat there nearly the whole of the
passage. When I left my seat, at any time, I would carry the blankets
under my arm. A few minutes before the boat arrived. Wilson ])as8ed
me, (I still sitting in the same place.) and said : " Tom. will you sit there
a little while longer?" I answered: ''Yes; I'll sit here till the boat
arrives." ^fr. Carter was near me at the time. We waited till nearly
everybod}- had letl the cabin, but Wilson did not return. Cai-tcr and I
then started out. When we came near the dooi", in front of the ticket
oflSce, I saw Wilson close b}-, and said: "Here, Dick, is your bundle;"
pulling it out of my blankets. He said : " You had better keep it until
morning." The reply I made was, as near as 1 recollect, that I would
take care of it. I immediately came to the Committee room here, found
Judge Crane in the Sergeant-at-Arms' room, and told him that I had four
witnesses with me. Then I went to the Railroad House, met Judge Cavis
in the office, and spoke with him a minute or two ; he then asked me to
go out and take supper with him. We took supper at the Empire Res-
taraunt. then started back for the Railroad House. On the corner of
Battery and Commercial streets we met Wilson and Henry Bequette.
Wilson shook hands with Judge Cavis, and, before leaving us, remarked :

"Tom, you keep those papers till morning." I answered : "All rio-ht,"
or words to that ertoet. We went buck to the Eailroad House ; the Clerk
said tliat two men were h)oking for me. I replied that I saw them
in the street. I hooked my name. The Clerk wanted to take the bun-
dle. I said : '' No ; I'll take eare of that." Judge Cavis asked me to let
him take the papers to his room, and see what they were. I told him
to take eare of them. In a few minutes he returned, and asked me if I
knew what papers were in the bundle.

[Quint ohjcets to the dcelarations and conversations between this wit-
ness and Judge Cavis and other parties, on the ground that it is hearsay,
and improper testimony. Objection overruled.]

I answered that I knew nothing about it. lie then requestad me to
go to his room witii him.

Q. — What was done when you arrived in the room ?

A. — We opened the package, laid the papers apart as they were folded,
and, without opening them further than looking in their ends, came to
the conclusion that the returns from Big Springs were not amongst
them. I then tied them up, took them to my room, and next morning
handeil them U) Mr. Wilson.

Q.— Where r

A. — In the hall of this house.

Q. — Was that bundle out of your possession, from the time you re-
ceived it from Wilson until you gave it to me? [Cavis.]

A. — It was not, from the time he stuck it in my blankets.

Q. — Was it o|)ened by you, or by any one else, to your knowledge, until
you saw it ojiened in my room '!

A. — It was not. during the time it was in my possession.

Q. — Were all the jjajx-rs which were in the bundle when we ojiened it
put into the bundle again when we tied it up ?

A. — They were.

Q. — Was that bundle out of your possession, after you took it from
my room, until you gave it to Wilson ?

A. — It was not.

(^. — Was it opened again, after you left my room, before you gave it
to Wilson ?

A. — It was not.

CROSS EXAMINATION.

Mr. Quint. — Where are you residing ?

A. — I call Monoville my home, during the summer.

Q. — Where do you now reside ?

A. — I am stopping temporarily in San Francisco.

Q. How long have you been residing here, and what has been your

occupation since you resided here?'

A.— Have resided in San Francisco since the beginning of December.
Have been occupied in editing the |' Mining and Scientific Press," a
weekly newspaper, published in this city.

Q.-lWere you so occupied at the time you were engaged to go over to

Aurora y

A. — I was. o ci J. ^ 4.I.-

q.—\\Uixi did you have with you, on the boat from Sacramento to this

city, as baggage '( ,, ^, ^ ,,

A.— I haTa pair of blankets; that was all. Those I generally wore

over me. but, as it was warm in the room, I had them off.
Q.— Did you have a stateroom on board the boat ?

A. — I did not.

Q. — In what place were you sitting, when Wilson carac along and
handed you liis coat ?

A. — On one of the cushioned seats iu the after part of the cahin of
the Antelope.

Q. — How long had you heen sitting there ?

A. — Soon after the boat left Sacramento I took that seat.

Q. — About how long had you been sitting there ?

A. — I am unable to state how long, having been below once or twice
before that time.

Q. — Had 3-0U occupied that seat for one hour ? t.

A. — I think not.

Q. — What is your impression as to the time you occupied that seat?

A. — It might have been five minutes, or filly.

Q. — Was it about dinner time when Wilson came along and gave you
his coat y

A. — I think it was nearly one hour Ijcfore.

Q. — Who was present when he gave it to you ?

A. — To my recollection, no person, that I knew.

Q. — Was there any one that you did not know i*

A. — Tlie cabin was full of ))eople, strangers.

Q. — Was there any one sitting with you, or by 3-ou, at the time ?

A. — There were persons sitting within one or two seats of me, on
either side.

Q. — Had Wilson tne coat on at the time ho came and gave it to you ?

A. — Ts'o. I saw him have it on a few moments before.

Q. — Where was he standing when you saw him have it on?

A. — I saw him in ditl'erent parts of the boat with his coat on.

Q. — How long was it before he gave the coat to you, that you saw him
have it on, and where was it ?

A. — It was but a few minutes before ; probably ten feet from where I
was sitting.

Q. — Who was with him?

A. — Do not remember any one when I last noticed him have it on.

Q. — Did he tell you, when he handed the coat to you, that he was go-
ing to get dinner, or something to eat?

A. — Not to my recollection ; he might have told me so.

Q. — Where did you lay the coat?

A. — Immediately at my side, partly over my knee and tho seat.

Q. — Where were your blankets at the time?

A. — On my knees.

Q. — Did he then go below?

A. — He did ; I saw him go down the stairs.

Q. — How long was he gone ?

A. — I think, ten or fifteen minutes.

Q. — Did he go by himself or was any one with him?

A. — I noticed no one but himself

Q. — Did you remain where you were sitting, at the time he left, until
his return ?

A. — My recollection is. that I sat there during the whole timo.

Q- — When he returned, was any one with him ?

A. — I noticed no one but himself

Q. — Did he, on his return, 'take the coat from you ?

A.— He did.

Q. — Where did he go ?

A. — I did not notice where he went.
Q. — Did any one ij;o with liiin?
A. — Not to my recollection.
*-l- — How lon^ was it before he returned?
A. — A short lime ; perhaps ten or fifteen minutes.
Q. — Wa.s any one with him on his return ?
A. — There mi<,'ht have been, but I did not notice.
Q- — l>id he havu his coat on when he retuFned?
A.— He did.

Q. — I>id he put it on when he left ?
.. — I did not see him put it on.
Q.— When and where was it that you first saw the package of papers
spoken of f

A. — Altout an hour after we left Sacramento, I saw him standing in
the cabin near where I sat, with a large number of papers sticking out
of his pocket. The ])ackage or bundle spoken of, I first saw when he
came an<l put them in my blankets.

Q. — Previous to that, had you ever seen any of the election returns of
Mono County 'f

A. — On the eighth day of February. I saw the Big Springs returns in
the office at Aurora.

il- — Did you see any other of the returns of Mono County?
A. — 1 saw jnipors sticking out of his pocket, about an hour after we left
Sacramento, whieh I sup[)osed were the returns.

Q. — Was that the first you saw of any of the returns, except those
from the Big Springs ?

A. — If those sticking out of his pocket were the returns, it was.
Q. — Were those papers in his coat pocket when he handed the coat to
you ?

A. — Not to my knowletlge.

Q. — Were they rolled up in a bundle, or were the papers loose in his
pocket ?

A. — Those papers that I mentioned as sticking out of his pocket, were
loose.

Q. — Who was with him at the time you say you saw those papers
sticking out of his pocket ?

A. — There were people on every side of him ; strangers to me.
Q. — Where did he take the bundle of papers from, when he handed
them to vou ?

A. — He had the bundle in his hand when he came and put them in my
blankets. I did not see where he got them from.
Q. — Did he have his coat on at the time ?
A.— He did.

Q. — Was any one with him?
A. — Not to my recollection.

Q — Are you as certain of this as of anything else you have stated ?
A. — Just as certain.

Q._\Vi,;U ,lia he say when he handed the papers to you?
A.— He said, •' Tom, let me stick these papers in your blankets," or,
"tnis bundle"— I am not certain which— •' I may lose them out of my
pocket ;" or something to that effect.
Q._I)ia he tell you what they were?

A. — He did not. , . , , -. • j. /.

Q i[.ni you been sitting there, from the time ho took his coat trom

you until his return, in the same place?

A. — I think I had been.

Q._Where(lid he state he was going, Avlien he handed you the papers?

A. He did not hand them to me; he stuck them in my bhvnkets.

Q. — Where did lie state he was going at tlie time ?

A. — To my recollection, he did not state.

Q. — Did he not state that he was going to dinner, or for something to

eat ?

A. He might have so stated, but I did not recollect of any such

remark at that time.

Q. — Was it not about tbe dinner hour?

A. — 1 think it was a short time before.

Q_ — Did you hear the dinner boll ring ? If so, was it before or after he
put the bundle into your blankets ?

A. — The dinner bell rang about one hour afterwards.

Q. — Did you and he have any talk, or conversation, at the time ? If so,
what was said ?

A. — He said, "Tom, let me stick these papers," or this bundle, " into
3'our blankets; I may lose them out of my pockets;" or words to that
effect.

Q. — What, if any, conversation occurred between you and Wilson, at
either of the other meetings you have spoken of; that is. at the time ho
gave you his coat, and returned for it again ?

A. — He handed me his coat, which he liad in his hand, and said. "Tom,
take care of this till 1 return," or sometliing to that effect. When ho
came after the coat, ho remarked that ho had boon below to get some-
thing to eat, but could not get anything.

(^. — Was that all that occurred between you ?

A. — I tliink it was.

(^. — When and where did you next see Wilson, after he handed the
papers to you ?

A. — After he stuck the bundle in my blankets, I saw him frequently;
pcrliaj^s every ten minutes, during most of the journey.

(^. — Di(.l you remain where you wore when he handed the bundle to
you 't

A. — I remained for a short time; occasionally I went down to the bar;
whenever I came back to the cabin, I went back to tbo same ])lace.

Q. — How often did you go down to the bar during your trip ?

A. — 1 think, about three times.

Q. — Was it three times after he handed the papers to you ?

A. — Two or three times.

Q. — Who went with you?

A. — I think, all the witnesses; I recollect Judge Stearns and Wilson
going with me once or twice ; perhaps every time.

(i.— Who else ?

A. — No one. that I recollect.

Q. — Did 30U take your blankets and the bundle with you ?

A. — I took the bundle every time; I may not have taken the blankets
every time.

Q. — When and where was it that Wilson next spoke to you about the
bundle ?

A. — Just before leaving the boat I handed him the bundle. He said,
"Perhaps you had better keep it till morning."

Q. — What was your reply ?

A.— I tbink that I replied, "All right."

Q. — Who was present at the time ?

A. — Mr. Carter was in close proximity.

Q. — Bid he hour what was said ?

A. — He might liave heard it, if he had listened.

Q- — NVere the papers, or bundle, when handed to you, in the same con-
dition as when you saw tljcm, or the bundle, in Wilson's pocket ?

A. — Tiiey were not in liis ])oeket ; they were loose. The bundle was
closely tied uj) in a handkerehiet'.

(^. — Did he hand the bundle, handkerchief and all, to you?

A. — Yes. iSir.

(l- — What time was it when you reached the Eailroad House ?

A. — A short time before nine o'clock.

Q. — Who did you first meet there?

A. — Judt^e ('avis.

Q. — Did you go there for the purpose of seeing Judge Cavis ?

A. — No, Sir. I had been in the habit of sleeping there before I went
away.

(^. — For how long a time?

A. — I tliiiik, for two or three weeks before I went away.

il- — Judge ('avis was sto])ping at that house, was he not?

A. — I had frequently seen him there.

Q. — For how long a time?

A. — Since he came from Sacramento.

(^. — About how h^ng was tiiat ?

A. — A week or ten days j»rior. according to my recollection.

(^. — Havi" not you and Judge Cavis conversed about this election case
prior to your going over the mountains ?

A. — Frequently.

Q. — Who first spoke to you about going over?

A.— H. K. Davis.

Q. — When did he speak to you about it ?

A. — He spoke to me in Sacramento, at the beginning of the session,
about the matter.

Q._\VJK'ii, if at any other time, did he speak to you about going over
the mountains ?

A.— He spoke to me at the American Exchange, during the adjourn-
ment of the Assembly, between the fourteenth and twenty-first of Jan-
uary.

Q. — More than once?

A. — Probably not.

(^.— Who ne.xt spoke to you about going over ?

A.— I asked Judge Cavis, a week prior to my going, to get me the
berth, if he could.

Q.^Kor what purpose did you desire the berth?

A. — To make a living.

Q._Were you not making a living at your occupation ?

A. — Barelv a living.

Q._To whom did you first deliver the bundle you have spoken ot (

A. — I ottered it to Wilson, on the boat.

Q._To whom did you first deliver the bundle ?

A.— Judge Cavis first got the bundle from my possession.

Q. — When and where? . ^ xu -d -i a

A.— About half past nine o'clock on Monday evening, at the Kailroad

Q'!!.Who was present, and at what place in the house did you deliver
it to him ?

A. Eio-ht in front of the desk. The Clerk was standing behind the

counter.
Q. — Did he go to his room with the papers, or bundle ?
A. — He said he was going to his room.
Q. — Where were you, while he was gone ?
A. — I think I stood by the desk during the whole time.
Q. — How long was he gone ?
A. — But a few minutes.

Q. — Was this before, or after you met AVilson and Bcquette ?
A. — It was after.
Q. — How long after ?
A. — A few minutes.

Q. — AVhere were the papers when you met these men?
A. — Sticking inside of my waistcoat.
Q. — Did you have them there when you loft the hotel?
A. — I did. I put tluMu there when ] letl the boat.
Q. — When did you first take them out ?
A. — When I came back to the hotel.
Q. — Was that the first time ?
A. — Yes, Sir.

THOMAS H. LOEHR.

Subscribed and sworn to, February nineteenth, eighteen hundred and
sixty-two.

TESTIMONY Oi- J. M. CAVIS.

[The testimony of this witness is objected to by Mr. (Juint, on the
ground that he is a party interested. Mr. Cavis otters himself as a wit-
ness, for the sole purpose of stating what he knows about the jnickago
which the witness Lochr stated was delivered to him (Cavis) at the
Railroad House, in this city, on last Monday evening.]

About nine o'clock last Monday evening, I was in the bar room of
the Railroad Hou.se, and whilst there, Mr. Loehr came in, and step-
ped up to the counter — the Clerk's desk. I came from the back part
of the room and spoke to him. We talked a few minutes, and went
together to the Empire Restaurant, on Sansome street, and Loehr ate
his supper. From there we returned to the Railroad House. On our
way, at the corner of Battery street, we met Mr. Wilson and Mr. Be-
quette. I shook hands with Wilson, and had a few minutes conversa-
tion with him. He remarked to Loehr: ''Tom, I'll take those papers
in the morning." Loehr answered : 'All right." On going into the
Railroad House, we 8to])ped at the counter, where the Clerk's desk
is, a few minutes. AVhile standing there, he had a little bundle in
his hand, tied up in a common handkerchief He said it was a bundle
which Wilson had given him. I asked him to let me take it and see
what papers there were in it. I took the bundle from him, stepped to
the other end of the counter, took a little lamp and the key to my room,
and as I passed, told him that I was going to my room. He told me to
take care of those papers till morning. After reaching my room I laid
the bundle on my table and untied the handkerchief As I untied it.
I saw a bundle of papers sticking out of a newspaper in which they
were done up. I took hold of the newspaper, and as I did so, the papers

bu.Kl e ,n n, and went immediately down stairs. I found Loehr stand
n pi the counter, where he stoo<l when I started to go up stair^ f
asked h>m ,f he knew what papers were in that bundle.^ H? answered
that he did not. I asked him to go up stairs answeiea,

[Mr. (^nint objects to all this conversation ]

W r went up stairs together. I took the bundle out of my valise laid
It on the table, and untied the handkerchief; examined l?e p^i^^rsbv
looking at the.r ends, but did not open them. Did not ee<Zmpe^
resen^b ,ng the WInte Mountain returl.s, which I had seen n theVle !k'8
ottice at Aurora. We then folded up the papers in the newspaper lied
he handkerch.ef and Loehr took it 'and lelt !he room, and il!^^e never
seen that package since, hvery paper that was in that bundle when I
rc-ceived >t from Loehr, was ,n it when he took it from my room after
wo had examined it. "^

JOSEPH M. CAVIS.

Subscribe.l and sworn to, February nineteenth, eighteen hundred and
sixty-two. ^

TESTLMOXY OF R. M. WILSON.

Q — Where do you reside ?

A. — In Mono County.

(■I — At what place in Mono County?

A. — Li the town of Aurora.

Q- — In what business are you engaged there ?

A. — I hold the office of County Clerk.

Q. — Did you hold that office during the months of August and Septem-
ber last ?

A. — I did. I have held it since about the middle of June, eighteen
liundred and sixty-one.

(^. — Have 3-ou in your po.ssession the original election returns filed in
your office, of an election held at Big Springs Precinct, White Mountain
District, on September fourth, eighteen hundred and sixty-one?

A. — I have «Mily a portion of them.

Q — What portion r

A. — The portion I have is the original envelop. That is all.

Q- — Have you no other papers filed in your office pertaining to the
election at Big Springs Precinct ?

A. — I have not.

Q- — What papers have ever been filed in your office pertaining to an
election at Big Springs Precinct ?

A. — There was a petition, purporting to be from the citizens of that
district, to establish an election precinct. There were some five or six
names signed to it. but don't remember exactly. There were also the
election returns of that precinct. The petition was filed on the twenty-
sixth of August, I think, and the returns on the tenth of Sejjtember.

Q. — Were there any other papers filed at the same time with the re-
turns ?

A. — 'None but what constituted the returns— the poll book and tally

list.

Q. — Have 3'ou in your possession, or under your control, any of those
papers, except the envelop you have mentioned ?

A. — I have not.

Q. — When did 30U last see the petition to establish a precinct at Big
Springs ?

A.— Some time in the month of September, I think j about the latter
part.

Q. — Where did 3'ou see it ?

A. — In my office.

Q. — Where is it now ?

A. — I don't know.

Q. — When did you last see the poll book you have spoken of?

A. — On last Monday.

Q. — When did you last see the election returns you speak of?

A. — On last Monday.

Q. — AVliere was it that you last saw the poll book?

A. — In Sacramento.

Q. — At what place ?

A. — In Mr. Cottroth's office.

Q. — At what place did you last see the election returns ?

A. — At the same place.

Q. — Do you know where either the election returns or the poll book
are now ?

A. — I do not.

Mr. Crane.. — State on what kind of paper the returns were made out.

A. — The poll book was made on blue ])aj)er, something similar to this
envelop; I think, about the width of iialf a sheet. Tiio tally list was
made on the same kind of j)aj)er. I think the sheet Mas letter paper; it
was the same color — blue.

Q. — Did you have these returns at the office of Mr. CoftVoth, on Mon-
day last? And if so, state whether he (CoftVoth) was present, and for
what purpose the returns were there.

A. — I had them with me when I went into his office. lie was present.
I had them with me for no particular purpose. I went to see him on
business.

Q. — State whether there was any conversation between yon and Cof-
froth, on that occasion, in relation to this contest, or in relation to those
returns ?

A. — We had some conversation in regard to the contest. He asked
me if I had the returns. I told him I had.

Q. — How long were you present, in his office ?

A. — Probably ten or fifteen minutes. I was in his. office two or three
times while I was in town ; only once when he was there.

Q. — Had you any business, personally, with Mr. Cotfroth ?

A. — I had with the firm.

Q- — State whether or not, these election returns were examined by
CofFroth, in his office, in your presence ?

A. — They were.

Q- — Who else, if any one, was present ?

A. — No one but he and I.

Q- — How long did you remain there together?

A. — A few minutes. Not over five minutes.

Q.— How came you to go to Mr. Cotfroth's office, and submit those re-
turns to his inspection ?

A.— I called on Mr. Coffroth on a matter of business, partially, and he
asked to see the returns, and I showed them to him.

Q.— After the returns had been so examined, whKt did you then do
with them, and where did you go?

A.— I rolled them up carefully, and put them in my pocket, walked
around until the boat was about starting, and then went aboard.

Q-— ^^'*^<^n yo" ^«y that you rolled tliem up, carefully, and put them in
your pocket, state whether they were put in the same bundle with other
papers, and if so, how many ?

A. — They were i)ut in the same bundle with other papers that I took
along.

Q. — State what they were ?

A. — The election returns of Mono Precinct: composed of the poll book
and tally list, tabular statement of the vote on June first, eighteen hun-
dred and sixty-one, of the county election returns, and statement of the
vote ; being tive bundles in all, which I have here with me now. I had
another })aper with them. It was a deed, in a large envelop, directed
to George Hvans. I have that now.

(^ — State till' way you wra]i])e(l up these papers.

A. — I rolle<l them up in a bundle, one on top of the other, and put
them in a newspaper. Kolled a newspaper around them. Don't think I
tied the bundle.

(^. — In what ])0(ket did you put them ?

A. — I put them in my overcoat pocket. I think, in my right hand
pocket, in the skirt — the outside pocket.

Q. — State whether that is the same pocket in which you had brought
them so fur on your journey':'

A. — I brought them, in connection with some other papers, in a bag or
flour sack, tied to my .saddle, to Placerville, from home. I then came in
the stage to Folsom. and in the cars to Sacramento. Brought them in
the same bag to Sacramento.

Q. — State wlu'ther Mr. Coffroth had these election returns in his hands,
on that occasion '!

A.— He did.

Q. — Did he handle any other papers that you bad brought to him on
that occasion ?

A. — Not that I recollect.

(^. — Did he converse with 3-ou on that occasion, on any other subject?

A.— He did.

Q. — At what time in the day, on Monday, did you leave Coffroth's
office ?

A. — I think about one o'clock, or a little after.

Q. — Where did you go next ?

A.— I don't remember. I walked around the city. The Bank Ex-
change was the first place I went to. From there I went down, grad-
ually, towards the boat — the Antelope — went on board, and left Sac-
raniento about two o'clock, and proceeded to San Francisco, arriving
about nine o'clock in the evening.

Q._State whether, on your way down, that package of papers still
remained in voiir pocket ? _ t v.- i •

A. Xot tlie whole way. Some distance down the river — I think at

was just previous to going to supper— I gave the bundle of papers to
Mr. Loehr. At the same time, I think, I left my overcoat with him

while I went to supper, lie or I put them on the inside of his blankets,
which he had with him. AVhen 1 came out from supper I took my over-
coat, leaving the package with him. I did not get them from him until
the next morning (Tuesday) after my arrival here.

Q. — When 3'ou next saw that bundle, when and where was it?

A. — He handed it to me in the hall of this house.

Q. — What time was it ?

A. — About ten or eleven o'clock on Tuesday last. I put the bundle in
my pocket, and went up to Judge Quint's room, and opened it. I
found all the papers except the Big Springs returns; those I did not
find.

Q. — Is this paper, now shown you, the envelop in which the election
returns from Big Springs Precinct, White Mountain District, came to
your office ?

A.— It is.

Q. — State whether the affidavit, thereon indorsed, was subscribed and
sworn to before you, as Clerk of Mono County.

A. — It was.

Q. — State whether you knew or now know the person, B. C. Boling,
who subscribed and swore to that affidavit.

A. — I do not. Sir. I don't recollect of ever seeing him before, or
since. It was in the evening, or after dark, when the returns were
handed to me. I did not notice particuhwly what sort of person ho was,
except that ho was a large man. I tliink. taller than myself. I think ho
met mo on the street. I don't recollect the ciix-umstances. I took him
into the office. Ho told me he had some election returns from Bi
Springs. I don't remember what passed, except writing the affidavit
wrote it.

Q. — Did he sign it in vour presence?

A.— He did.

Q- — On the day it bears date?

A. — Yes, Sir.

Q. — How long did he remain ?

A. — No longer than to subscribe to the affidavit.

Q. — State whether he was an old, or a young man.

A. — My impression is, ho was a young man.

Q. — Were the election returns from the Big Springs Precinct, com-
prising the tally list and poll book, in the same form as this paper, now
shown you ?

A. — They were.

Q. — State whether any of the other returns from 3"0ur county were
put up in that form.

A. — I don't think they were.

Mr. Can's. — How were the pieces of paper, on which were written the
names of the voters, fastened together ?

A. — I think thev were pinned at the top.

Q- — Were the election returns, containing the names of the candidates
voted for. and the tallies of votes which each received, Avritten on one
side of the sheet, the same as upon the paper just shown you ?

A. — They were.

Q- — ^Yas that sheet of paper of letter-])aper size, or of foolscap size,
like the paper now shown you. [A paper containing a list of persons
voting at an election held at Mono, September fourth, eighteen hundred
and sixty-one ?]

A. — I don't recollect; the paper resembles this in color; my im-

nression is, that it was a sheet of letter paper, but am not positive,
however ; could not say.

Q.— -Miirht it not have been a sheet of paper like that you are now
exaniiniii<j^ ?

A. — It mif^ht, possibly.

Q.— Did you make search, before you left your office at Aurora for all
the papers pertaininir to the election at Big Springs Precinct, and the
establishing of said precinct?

A.— I did.

Q- — Were the papers you have mentioned, all the papers that were in
your office ]H'rtaiiiiiig to said election, or the establishing of a voting
precinct at Hig Springs Camp, ^yhite Mountain District?

A. — They were.

Q. — Are the papers now shown you. purporting to be a list of persons
voting at an election held at Mono, September fourth, eighteen hundred
and sixty-one, a portion of the original papers filed in your office, as
County Clerk, with the election returns of Mono Precinct, in Mono
County?

A. — They are.

CROSS EXAMINATION.

Mr. Quint. — TIow long have you known Mr. Coffroth?

A. — Since eighteen hundred and fifty-four, or eighteen hundred and
fifty-five, I think.

Q. — Ilavo you and he been intimate acquaintances since you knew
him ?

A. — Wc have.

Q. — What time did you arrive in Sacramento?

A. — I think it was about ten or eleven o'clock on Monday morning.

Q. — When you got to Sacramento, what did you do with the papers
you had in the Itag. and what was the reason for your taking them out?

A. — My reason for taking them out was, that it would be more conve-
nient to carry them in a smaller )iackage, and one of the papers I had to
leave in Sacrametito ; one that I brought from home.

Q. — Was the bag, or flour sack, one that you took with you to carry
provisions, etc.. for the trip ?

A. — I only used it for the purpose of carrying the papers and a shirt.

C^. — When Coffroth had examined the paper, did he hand it back to
you ?

A.— Tie did.

Q. — \)u\ you. then and there, put it into the envelop, which has been
shown you' and put the envelop, with the paper or returns, into the
same bundle with the other pa])ers ?

A. — 1 think the other papers were rolled up in a separate bundle. I
jnit them all in the same bundle together, and rolled a newspaper around
them.

Q._Were they all in the same bundle, and in your pocket, when you
left .Mr. Cotfrotli's office ?

A. — Thev were.

Q._Did"they remain there until you delivered them to Mr. Loehr f

A.— Thev did. ^ , • •

(^. When, and on what occasion, was it that you last saw the petition

for an election precinct at Big Springs? , ^o

A.— It was in ray office, some time, I think, in the month of Septem-
ber.

Q, — Who was present ?

A.— I think the last time I saw it, Judge Machin and my Deputy were
present. Don't recollect who else.

Q. — Have you since made search for that paper ? If so, when ?

A. — I think it was some time in Octohcr. Mr. Cavis requested me to
show him the paper. I made search at that time, and could not find it.

Q. — Was that before the sitting of the District Court in your county ?

A. — I think it was.

Q. — Did you exhibit and show that paper to Mr. Machin, at the time
you speak of?

A. — I did. Think he made a copy of it.

Q. — Do you know, or did j'ou know, a man named Abels, in your
county ?

A. — I think I do. There were two men who lived in Mono, named
Abels and Myers. Knew them both, but don't know which was which.

Q. — Was it cither of these men who brought these returns to you?

A. — I think not ; don't recollect the appearance of the man who
brought the returns.

Q. — Kxamino the affidavit inarked A, connected with the Commis-
sioner's return, and state whether that was sworn to before you, and on
the date specified therein.

A. — It was.

Q. — Had I [Quint] ever seen or examined any of tiie papers connected
with the Big Springs election, or the notice of contest then filed ?

A. — Not to my knowledge.

Q. — Did you, after that, show me any papers connected with this
contest? If 80. what, when, and where?

A. — I showed to Mr. (Juint, in my office, all the papers that were filed
there in the case. I think it was the day he Ictt Aurora.

Q. — Were an}- papers shown to me, [Quint] or examined by mo, to
your recollection, except the notice of contest?

A. — I think tliat was the only i»a])or in the office, relating to the case.

Q. — Do you know of any considerable excitement in Mono County,
relative to gold and silver discoveries made there, in July and August of
eighteen hundred and sixty-one ?

[Objected to by Mr. Cavis, on the ground that it is not a cross exami-
nation.

Objection sustained.

The Committee determine that Mr. Quint may proceed with the ques-
tion as u]>on a direct examination.

Mr. (^uint waives the question for the time being.]

Q. — Wore all these papers, together with the one you have spoken of,
in the same bundle when you arrived in Sacramento ?

A. — They were.

Q. — Were they in the same bundle when you went to Mr. Coffroth's
office ?

A. — Thev were.

E. M. WILSON.

Subscribed and sworn to, February nineteenth, eighteen hundred and
sixty-two.

TESTIMONY OF E. GEEEN.

Q. — Where do j-ou reside ?

A. — Auroni, Mono County.

Q- — I>o you liold any county office there?

A.— I do, Sir.

Q.— Did you, durin,:,^ the months of August and September last?

A. — Yes, Sir.

Q.— What was that office ?

A. — Supervisor.
^ (^— I>o yu know anything about tlic establishing, by the Board of
SujK'rvisors of Mono County, of a voting precinct at Big Springs Camp,
White Mountains, for the September election of eighteen hundred and
sixly-one ?

A.— I do.

Q. — When was tiiat establi.shed ?

A. — The order was made by the Board on the twenty-sixth of August.
I think it was on Monday.

(^. — How came you to establish a jtreciuct there?

A. — liy a petition to the Board.

Q. — Do you know anytiiing aiioiit any returns being received by the
('ounty (Merk of that county. ]>ui'poi-ting to be returns from the precinct
vuu iiad established at the White Mountains?

A.— I do.

Q. — Were these returns ever produced before the Board of Super-
visors ?

A. — They were.

Q. — How many of the Supervisors were present?

A.— Two.

Q. — Who were they ?

A. — ^^r. Worland and myself.

Q. — State what occurred in the Board when these returns were pro-
duced bffoi-e them.

[To this question Mr. (^uint objects, on the ground that the record
itself shf»uld be produced, it being the best evidence, and the only evi-
dence competent to show what was the action of the Board.

Mr. Cavis states that he asks this question for this purpose, and oifers
to prove, by this witness, that on the production of those returns before
the Board of Supervisors, a discussion arose between the two members
of the Board thc-n ])resent, as to allowing the returns, and that this wit-
ness, as one of the Board, wholly refused to allow^ the said returns of
the electioji, purjiorting to be those of an election held at Big Springs
Precinet, White Mountain District, to be counted in as genuine returns
of a!»v election whatsoever.

Mr.' Quint now moves that the Avhole offer of this proof be stricken
from the record, on the ground that it is improper testimony in the case;
that the record of the proceedings of said Board, required to be kept
by the Clerk, is the only proper evidence, unless the loss or destruction
of said record is first shown. i t •

On the question on striking from the record, Messrs.^ Irwiu and Lewis
voted "No;" Messrs. Kimball and Crane voted "Aye."

The Committee are of the opinion that the testimony offered is not
receivable.

Upon which, Mr. Quint, as the matter appears upon record since, con-
sents that the witness may answer the question.

Whereupon Mr. Cavis refused to ask the question, for the reason that
Judge Quint should not dictate the manner of examining the witness.

After that, the Cojnmittee ruled against him, (Cavis.) upon the ques-
tion as it was originally asked.]

Q. — What kind of paper were those election returns, produced before
you, written upon ?

A. — On blue paper.

Q. — Of what size was the paper ?

A. — I could not saj' positively whether it was letter or foolscap.

Q. — How were they written upon the sheet ?

A. — A whole sheet of paper, with the names written, and then carried
out across the sheet.

Q. — IIow was the sheet of paper itself, that they were written upon ?

A. — The names were written on this side of the paper, and the tigures
carried out; connected with that were slips of paper, with names written
upon them, the same names as the tall}' list.

Q. — Do you remember how many jiames there were wi-itten ujjon those
slips of paper ?

A. — Something over five hundi-ed. I think now, five hundred and
twenty, or live hundred and twenty-one.

Q. — Do 3'ou remember how many slips of paper there were, that these
names were written upon ?

A. — I do not.

Q. — What kind of paper was it that these names were written upon ?

A. — Blue ruled ]>a}>er.

Q. — Do you reniember whether there were any vacant lines ujion the
tally list, between the names of the candidates written upon the list?

A. — I do not.

Q. — IIow were the papers, upon which the names were written, fast-
ened together?

A. — They were fastened together with a i)in, at the top.

Q. — At the time you established the voting precinct at the White
Mountains, did you appoint anv j)ersons as the officers of election to be
held there ?

A.— We did.

Q. — Do 3'ou know any person by the same name as either of those
which appear signed to those returns as officers of election ?

[Witness examines the election returns on file with the Committee, and
says, " I don't think I do."]

Q. — Did you know either of the persons whose names appear signed
to the petition asking for a voting precinct ?

A. — I did not.

Q. — Did you examine the list of voters ?

A. — At the time the returns were made I examined them, but not very
particularly.

Q. — Examine the list of voters, and state whether you know any per-
sons in Mono Count}' by the same names as any of those which appear
upon the list ? If so, which ones ?

A. — I see but one full name; that is L. Burnet. There are others, but
I don't know their given names. Perhaps half a dozen in our county.

CROSS EXAMINATION.

Mr. Quint.— Do 3'ou know where those men were, on last election day?

A. — No, Sir ; I do not.

Q- — Where were you, on election day?

A. — At Aurora.

Q. — Hud those men formerly lived at Aurora, and vicinity?

A. — Yes, Sir.

Q- — What became of the other member of your Board of Supervisors,
and why did he not act with you?

A. — lie had removed from the county.

Q- — What day of the month was it that these returns were can-
vassed ?

A. — The twelfth of September.

Q- — Wi're all the returns from the different precincts in, at that date?

A. — I think they were.

Q- — Did you canvass and count all the votes from the different pre-
cincts on that day ?

A. — I am nut positive whether we i!;ot through on that day, or not.

Q. — Did you participate and act with Mr. Worland, the other member
of the Board, in canvassint; and counting the votes?

A. — I assisted him jiart of the time.

Q. — What i»art of the time did you not assist?

A. — Along towards the last end of the count.

Q. — Did you canvass and count the vote of the Big Springs Pre-
cinct ?

A. — I did not. Sir.

Q. — Did you assist, or were you present, when they were opened, can-
vassed, and counted ?

A. — I was.

Q. — When were they counted ?

A. — They were opened the first day the Board met; on the twelfth,

Q. — When counted ?

A. — I don't know if they were counted at the time they were opened.

Q. — Were you and Worland sitting as a Board, when they were can-
vassed and counted ?

A. — We were sitting as a Board of Canvassers at the time.

Q. — Were they canvassed by that Board ?

A. — Not to my knowledge.

Q.— Were not the votes counted, and the result declared and made
matter of record ?

A. — They were, by the Clerk.

Q._^Vho was present, and what time in the day was it, when they
were canvassed and counted by the Board ?

A— I think it was in the afternoon when they were opened. Mr.
Wilson. County Clerk. Mr. Worland, and myself, were present.

Q._What ti'mc in the day were they counted?

A.— Some time in the afternoon. The votes of the White Mountain
District were never counted, to my knowledge. I objected to their being

counted.

Q. Who was in attendance upon the Board, at that session r

A.— Mr. Wilson, the County Clerk,

Q. — AnyV)ody else ?

A.— Mr. Worland and myself

Q._Who attended as Sheriff, at that meeting of the Board ?

A.— I could not say whether we had any one attending that day or not.

Q._Who was the Sheriff, and his Deputies ?

A.— Mr. Scott was acting as Sheriff. Mr. Bequette, I think, was the
Deputy.

Q. — Are you in the habit, in your county, of signing the record of the
proceedings of the Board ?

A. — The Chairman does it.

Q. — Who was the Chairman of your Board ?

A.— Mr. Worhand.

Q. — Were you present when these votes were counted ?

A. — I was present when part of them were counted. I took excep-
tions to these papers, and left tlie Board. After that they were counted
by the Clerk.

Q. — Was the Board in session at the time they were counted ?

A. — It was in session when part of them were counted.

Q. — Do you know when the Board was opened, and when it adjourned,
on that day ?

A. — It did not adjourn on that day. It held over.

Q. — When did it open, and when tinally adjourn ?

A. — It opened on the twelfth. I could not say, positively, whether it
adjourned on the next day, or the day after.

Q. — What da}' was it that these votes from Big Springs Precinct were
counted ? Was it Monda}- or Tuesday ?

A. — I could not sa}'.

Q. — Were you ever at the Big Si)rings, in the White ^Mountains?

A. — Not to my knowledge.

Mr. Can's. — Are you sure that the twelfth of September, the day you
met, was on Monday ?

A. — No ; Me met on the twelfth of September. I could not saj' it was
Monday. It was Monday, the twenty-sixth of August, that the order
was made.

Q. — Were there any parties in the room when 30U were canvassing
the votes, besides those you have mentioned as ofHcers ?

A. — Yes; there was quite a number of j)euple going in and out all the
time.

Mr. Inrin. — Were the returns opened on the first day of your meeting?

A.— Yes, Sir.

Q. — Is it the custom of the Board of Supervisors of your county, to
read the proceedings over every evening, or every morning ?

A. — Every morning.

Q. — Did 30U meet with the Board the second morning ?

A. — I am not positive, but think I did.

Q. — Were yon there when the Board met in the morning?

A. — I don't think the Board organized in the morning. I think I was
there when they organized.

Q. — Were the proceedings read over that morning?

A. — I think they were not. I think the Clerk had not got through his
entries.

Mr. Quint. — When were the proceedings read, and signed by the Presi-
dent ?

A. — I cannot say.

£. GREEN.

Subscribed and sworn to, February twentieth, eighteen hundred and

sixty-two.

FURTHER TESTIMONY OF J. A. BOSTWICK.

Q.— Examine the paper now given you, directed '• R. M. Wilson, County
Clerk, Aurora, California," with -Election Returns" written upon it,
and state if you ever saw that paper before ?

A. — The pai)er has had some writing upon it since I saw it.

Q. — Wliat writing do you mean ?

A. — That on the hack part.

Q. — Did you ever see the paper with the direction upon it, before ?

A. — I tliink I have.

Q. — Where did you see it ?

A. — At Mono Lake.

(^. — Was it at tlie same place where you saw election returns made
out, which you spoke of on a former examination ?

A.— It wiis.

Q. — Were tiie election returns you saw made out put into this paper,
and then that direction written upon the paper?

A. — Yes; to the best of my knowledge.

Q. — Have you ever seen the paper those election returns were placed
in, since you saw it in Mono, before you saw this paper here to-day ?

A. — No, Sir.

Q. — How was the paper fastened up, that contained the election returns
you saw made out near Mono Lake?

A. — They were seah'd up with a paste, made out of flour and water.

Mr. Cranr. — When and where was that sealing up done, and where was
the paste made ?

A. — It was sealed up at the house, near Mono Lake. The paste was
made at the same place.

Q. — At what time was it made?

A. — The same time the papers were made out, towards evening.

Mr. Irwin. — Were these returns inclosed in the same paper on the day
of election ?

A.— No.

Q. — When were they inclosed?

A. — Three or four dliys after the general election.

CROSS EXAMINATION.

Mr. Quint. To whom did you first communicate the facts to which

3'ou have testified, in this city?
A. — To James Hamilton.
Q. — How long after your arrival here?
A. — Two or three weeks. i • 9

Q. Where were you when you communicated the same to him .''

A —Somewhere in this city ; don't recollect the place.

Q._\Vas it before or after the meeting of the Legislature ?

A.— I think it was after; am not certain. ^ , • •

Q.— How long after you first communicated this intelligence to him in

this city, was it before you next spoke to him about it?

Q.— Wh^eVdid you last speak to him relative to the facts to which you

have testified ? . , . , -^ • t \.^^r. K^nr,

A.— Don't recollect, exactly, the time ; think it was since I have been

subpoenaed here as a witness.

Q. When were you subpoenaed as a Avitness?

A. — I don't recollect the date.

Q. — Was it on the day you first testified ?

A. — I dou't recollect.

Q._How long before you testified was it that you were subpoenaed ?

A. — I was subpoenaed the same day that I testified.

Q. — By whom ?

A.— By Clayton. Scrgeant-at-Arms of the Assembly.

Q. — It was since then that yo'u talked with Hamilton about this mat-
ter, was it ?

A. — I think it was.

Q. — At what place, and who was present ?

A. — Don't know what place it was, nor who was present.

Q. — Was any one present 'f

A. — None that I was acquainted with, that I can recollect.

Q. — Who was the next person that you communicated these facts to ?

A. — To 8. Jones.

Q. — When, and where?

A. — Some time about Christmas.

Q.— Where?

A. — I believe it was on Market street.

Q. — IIow long after your arrival in this city?

A. — About a week.

Q. — How man}' times did you tell him about it ?

A. — Don't know; several tinges.

Q. — Did you tell him about it a half dozen times?

A. — I talked about it a half dozen times.

Q. — When did you last talk with him about it?

A. — Since I was subpa'naed here.

Q. — Where does he live?

A. — In this citj-.

Q. — At what place, and how long has he been living here ?

A. — Living on Market street, the last I knew anything about him.

Q. — What is his business ?

A. — A bricklayer.

Q. — How long is it since you have seen him ?

A. — I saw him yesterday.

Q. — How long is it since you have seen Harailton ?

A. — A couple of weeks. I tliink.

Q. — Do you know where he is now?

A.— Xo.

Q. — To whom did you next communicate what jou have testified to ?

A. — To the Committee of the Assembly.

Q. — To whom next, outside of the Committee ?

A. — 1 have talked to twenty ditferent persons since then.

Q. — Are those all the persons with whom 3-ou have talked, and to
whom you communicated what you have testified to, up to the time you
testified before the Committee ?

A. — Yes.

Q- — Did you meet either Mr. Cavis or Mr. Orr, prior to testifying be-
fore the Committee?
A. — I met Mr. Orr.
Q. — How long before ?

A. — A day or two before I was examined in the Assembly j don't re-
collect.

Q.— How loiiij have you known Mr. Cavis and Mr Orr?
A.— (^yyt toll the date exactly; when the Legislature adjourned, I
saw Mv. Orr at that time in San Francisco. jv^uiueu, x

^^•"V'^^y" '''^^ "^"^ '^'"'''' ^^''- ^'^^'i« a^^out that time, also ?
A. — 1 did not.

Q. — IIow long after?

A.— Never knew Mr. Cavis until the day I came before this Commit-
tee.

Q- — ^Vlio introduced \-ou to ^Lr. Orr ^

A.— B. K. Davis.

Q. — When and where'/'

A. — When Mr. Davis came down from Sacramento

Q.— At what place?

A. — At the American E.xchange.

Q.— J)id you and Mr. Orr have any conversation about this matter ?

A. — No.

Q.— Have you and Mr. Orr never talked or conversed about it ?

A.— A day or two before I was subpa^naed, he asked me what I knew
about it.

y.— Did you toll him?

A. — I did nof.

Q. — What did you tell him about it?

A. — I told him that I knew something about it.

Q.— Was that all?

A. — He wanted to know what I knew about it.

Q.— Was that all you told him ?

A. — That was all.

Q- — Was that all tlie conversation that occurred between you and
him ?

A. — He said he might want me for a witness.

<^— Was that all tliat was said ?

A. — I told him. •• All right."

Q.— Was that all ?

A. — That was all I bad to say.

Q. — When and where was it that this conversation occurred ?

A. — On First street, at the Isthmus House.

Q. — How long before you testitied in the case?

A. — One or two days.

Q. — Do you know how he came to call upon you?

A. — I expect some ])erson sent him to me.

Q. — l)o y(»u know who it was ?

A. — A half dozen persons might have sent him, for all I know.

Q. — Do you know the name of any person that sent or caused Mr.
Orr to call upon 3'ou ?

A. — Keithly, I believe.

Q. — Ilave 3-ou not seen the envelop which has been shown you, before
3'ou came into the Committee room, in this city?

A.— No.

Q. — Who first showed you the envelop ?

A. — I saw it here first.

Q. — How long since anj^ one had been residing in the house where
you say you saw the returns made out ?

A.— I never saw any person residing there.

Q. — What did you find in the house, when you went there ?

A. — I found a man there.

Q. — Anything else ?

A.— A table.

Q.— That all ?

A. — A bunk.

Q.— That all ?

A. — A saddle.

Q. — Anything else ?

A. — Some few provisions.

Q. — What provisions ?

A. — About a pound of flour, I think.

Q. — An}' other provisions?

A. — I think that was all.

Q. — Did you see Mr. Coffroth when j'ou were in Sacramento ?

A. — Not that I know of.

Q. — Did you intend to make use of the information you possessed in
regard to this election, for the purpose of obtaining money ?

A. — No ; I did not.

Q. — Have you done so ?

A.— No.

Q. — Did you not intend, or expect, to borrow or obtairj money of me ?
[Quint.]

A. — I did when I was in Stockton, if I saw you. [Quint.]

Q. — Did 30U ever obtain any of me? [(^uint.]

A.— No.

Mr. Incin. — What is there about this envelop by which you can iden-
tify it y

A. — I think I know the handwriting, to the best of my knowledge.

Q. — To wiiiih handwriting do you refer?

A.— To -11. M. Wilson, County Clerk." and "Election Returns."

Mr. Lewis. — Do you know the iiandwriting to be that of any one par-
ticular man ?

A. — I think 1 do ; cannot bo certain.

Q. — Whose writing do you think it is?

A. — I think it is Worthiugton's writing,

Mr. Quint. — What was Wortliington's occupation ?

A. — Mining for a part of the time.

Q. — What did you make the paste in ?

A. — In a quart cup.

JOHN A. BOSTWICK.

Subscribed and sworn to, February twenty-fourth, eighteen hundred
and sixty-two.

[Mr. Cavis introduced in evidence the certified copy of the election
returns ;

Also, a copy of the Silver Age, published at Carson City, Nevada Ter-
ritory, June fifteenth, eighteen hundred and sixty-one, in which is pub-
lished the mining laws of White Mountain District, and the extent of
the District.

To the introduction of the newspaper, if introduced for the purpose
of showing the extent of the White Mountain District, Mr. Quint objects,
on the ground that it is secondary evidence.]

FURTHER TESTDIOXY OF T. X. MACHIX.

(^— Did you ever make a copy of any petition in the County Clerk's
office, of Mono, askin.; for a votiui; precinct to be established at the Big
Sprin«^s ("amp. White Mountain District r*

A.— I made a copy of a letter, purportinj^ to be a petition, on file
there.

<^. — IIow many names were signed to it ?

A. — Five.

<^ — Wliat was done with that paper after you took a copj* of it ?

A.— I handed it hack to R. :M. Wilson, County Clerk of Mono; he took
it and nut it back in a bundle of papers, from where he took it.

(^. — Is the pai)er marked "Exhibit A," now shown 3'ou, a copy of the
])aper which you copied 't

A.— I believe it is.

<^. — Have you ever seen the original paper, which you copied, since
Wilson put it Itack in the bundle of papers?

A. — I never have.

Q. — On what kind of paper were the election returns of Big Springs
Precinct, Wbite»Mountain District, which you saw on file in the County
Clerk's office, of Mono County, written 'i

A. — On a slu'ct of foolscap paper, of a bluish tinge, about the same
color as this marked [ D.]

(^. — On what kind of paper was the poll book?

A. — I think it was on the same kind of paper, in strips, aud pinned
together at the top, with a jiin.

(^. — IIow many strips of paper, of the size of those on which the
names of voter.s were written, could be made of one whole sheet of
paper ?

A. — EacHi half sheet was divided into two. making four.

CROSS EXAMINATION.

M,'. Qni'nt. — Did you ever testify that the returns appeared to be made
out in one handwriting?

A. — I think I have so testified.

Q. — Are vou still of that opinion?

A. — I see nothing to induce me to change it. I formed the opinion
when I saw the jiapers.

{"^._l)i,l you testify that the signatures of the officers of said election
appeared to l>e in one handwriting?

A.— Don't know whether I have ever been interrogated particularly

in regaril to that fact. . , j?

(^_I)i,l you not test ifv before the House Committee, m the case ot
Orr vs. Davis ? And do vou not recollect that that question was pro-
pounded to you, or one similar to that, and requiring a similar answer .

A.— I did testify before the House Committee, and on retieetion i
think there was a question similar to that asked me.

Q.— What was your answer to that question ? , 1 , p

A —Can't state exactly my language, but can state the substance of
it The si.rnatures ai)peaVed to me to be all in one handwriting, ihere
were two ""styles of writing; one was heavy, and the other open and
light.

Q -STas that roar testimony upon tbai point, as near as you can now

recollect ?

A. — Not all of it. I think.

Q. — Will vou state what it wa:?. upon that point ?

A. I think that I remarked that there was an evident design to

disffuise the signatures, and a similarity Intwoou the capitals and those
in the bo^iv of the iusirument.

Q._Was that all ?

A. — I believe that was all the substance of my testimony.

Q — When was it that you took a copy of the paper you have spoken

of?
A. — It was in September, immediately after my return from Tuolumne ;

soon after election.

T. N. MACHIN.

Subscribed and sworn to. February twenty-fourth, eighteen hrfndred
and sixtv-two.

Upon the conclusion of the testimony of Mr. Maehin. Mr. Cavis rests,
except as to rebuttal testimony.

TESTIMONY OF WITNESSES CALLED BY RESPONDENT.

TKSTIMONY UF WILLARD WHIPPLE.

J/r. (^uint. — Did you ever ro>idc in Mono County ? If so. when, and
lur wliat lenj^th of lime ?

A. — Yes, Sir- I went there in September, eighteen hundred and fifty-
nine. I lived there ever cinc-e. except during the winter*, when I came
lo San Francisc(>. I left there. I believe, the twenty-fourth of last No-
vember.

Q. — What has been your oeoupation. while residing in Mono County?

A. — I have been lumbering and mining.

Q. — In what part of Mono County have you been residing?

A. — I have lived most of the time about five miles from Mono, at a
saw mill.

(^. — Do you know of any considerable excitement during the last
season, relative to gold and silver discoveries said to have been made at
or near Walkers River and the White Mountains? If so, state when.

[Objected to. in that form, by Mr. Cavis.]

A. — In Julv there was quite 'an excitement about Walker's River. I
went out in Julv, eighteen hundred and sixty-one. but did not make any
discoveries. I went as far as the head of W'alker's Lake. I found quite
a number of men on Walkers Lake. Xone of them had made any dis-
c»)veries. From there. I went over to Carson Lake, and then came back
to Walker's River, and to Mono.

q. — What time in July was this excitement ?

A.— I got back. I think, on the last day of July.

Q. — What time did you start ?

A. — I was out between two and three weeks.

Q.— What number of men were assembled at this locality during that
excitement, and while vou wei-e there? • .x u j ^

A.— I should think there were some seven hundred or eight hundred
men, at one time, at the head of Walkers Lake. , i r* 9

Q.— Where did those men or persons go. on leaving that locality .

A.— I could not tell where they went. I left them there, the most of

them. . J /. M 4. 0

Q _Do you know whether those diggings proved a tailnre, or not .
A.— I do not think there were any diggings in that vicinity. I thmk

it was a • steamboat excitement."

Q. Do you know whether there were any habitations or permanent

improvenients made at that h)cality, during that excitement?^

A. — I don't think there were. There were none when I left.

Q. — What do you mean by " steamboat excitement ?"

A. — An expression that miners have, wliich means a humbug, or that
when the}^ go out they don't find anything.

Q. — AVhat number of votes could have been polled at that locality,
when you were there ?

[Cavis objected, an the ground of irrelevancy. Overruled.]

A. — I don't know. I eouhl not say how many legal votes.

Q. — How many men were tiiere, when you were there?

A. — Some seven hun<lred. or eight hundred.

Q. — What was the age or ages of those men there assembled?

A. — Middle-aged men ; from twenty-tive to fifty years of age.

Q. — AVore there any permanent locations or improvements at that
locality, at the time you were there ?

A. — Xo, Sir. There was an Indian rancheria. That was all.

Q. — Do you know whether, shortly after this time, there was an ex-
citement at or near the White .Mountains, similar to the one you have
mentioned ?

A. — There was an excitement aliout the White Arountains.

Q. — What nund)cr of people do you know of iitiviiig Iclt Aurora and
vicinity during the White Mountain excitement? What number should
you say left Aurora and vicinity?

A. — Don't know, myself, of many going there. Know of two men who
said they were going there.

Q. — Did you see any number of men. with whom you wei"e not ac-
quainted ])ersonally, leave there dui-ing those two excitements?

A. — I did not see many leave Mono dui'ing either of the excitements.

Q. — Did you see any on the road ?

A. — Yes ; I saw people from the time I was out till 1 left the crowd,
to go over to Carson Lake.

Q. — What number ?

A. — There was a prett}' large number of men on the road.

Q. — Do you know where those seven or eight hundred men, which you
saw at Walker's River, came from?

A. — There were some of them that I was acquainted with about Mono.
I don't know where the others came from.

Q. — Were 3-0U at Aurora during the last general election ?

A. — No, Sir ; I was at Mono.

Q. — Did you see any of those men at Mono ?

A. — Don't recollect of seeing any. Don't know as I can place them.

Q. — Can you fix aV)out the time that 3'ou left Monovillo to go out ?

A. — About the middle of the month of Jul}^, I think.

Q. — Did you leave during the excitement ?

A. — Yes. Sir; I left about the commencement of it, I believe.

Q. — Was the White Mountain excitement after 3'our return ?

A.— Yes. Sir.

Q. — What was the population of Mono County in June, as compared
with that in September?

A. — From a superficial view of the subject, I can't say there was
much difference.

Q- — What Avas the population of Monoville in June, as compared with
that in September ?

A. — I should judge it was much larger in June.

Q. — About what was the difference ?

A.— I don't know- how nnieh ditt'erence. There appeared to be more
peopk- in the first part of the season than there was in the last.

(^— What was tlie character of the country at and around where the
people had assenibled, at Walker's Rivera

A. — It was a river bottom, with good grass for animals.

(^. — Around that, what was it?

A. — A tlesert.

(^. — Did you see any prospecting done there ? If so, to what extent ?

A. — I <lid not see any. Sir.

<^ — What direction did you take in going to this locality, and who
wi-nt with you ?

A. — About northeast, I should think, from Mono.

(^. — How far is it from .Mono?

A. — A good day's ride from Aurora. Aurora is twenty-five miles from
Mono.

(^. — What were tiie people you saw there })reparing to do?

A. — laying by there, resting.

(^. — Where have 3'ou resided previous to your residing in Mono
County, and what lias l>een your occupation ?

A. — l*iwious to going to Mono I was in Tuolumne; was mining in
Tuolumne. Previous to that I was in San Bernardino.

(I. — WhtMi dill you come to this country?

A. — In eighteen hundred ami forty-nine.

Mr. Leirix. — Dill you not know a great many persons in Tuolumne and
( "alaveras, before you went over to Mono ?

A. — 1 knew very lew, Sir.

CROSS EXAMINATION.

Mr. C(ir!s. — What were the names of the two persons whom you sa}^ left
Monoville to go to the White .Mountains?

A. — I cannot recollect their names. They were at work on a claim
for me. I was not then working on the claim.

Q. — Do you know the names of any persons whom you saw at Walker's
Lake ?

A. — Yes; I know the names of some few. One man by the name of
Dowd, do not know liow the name was spelled; a man by the name of
Leonard. doi»'t know his given name; a man by the name of Iloag,
Thomas, I thiidc; and Captain Wheelock ; I cannot think of any others.
There were several that I was acquainted with, but I don't recollect their
names. There was a man by the name of James Eyan. I won't be sure
whether Mr. Iloag was there or not; I am not positive. I cannot bring
any other names to my mind.

Q. — How long did you remain at Walker's Lake ?

A.— One night, and until about ten o'clock the next day.

Q._Were all those men you speak of as being at A\^alker's Lake,
gathered at one place ?

A.— Pretty much in one place; within a mde.

Q.— In going to Walker's Lake from Mono, do you not pass through
Aurora ?

A.— I did not, when I went out.

Q.— In what direction is Walker's Lake from Aurora ?

A. — About northeast.

Q. — How far is it from Aurora ?

A. — I should think it Avas forty or fifty miles.

Q. — How far is Walker's Lake from Carson Lake ?

A. — I think about forty miles, the way I went. I don't know but
there may be some nearer way.

Q. — How far is Walker's Lake from Carson City ?

A. — I don't know the distance.

Q. — Can you name any of the persons who left Mono at the time of
the Walker's liiver excitement?

A. — I don't recollect of any more than I have already told you of

Q. — Do you know where James Ivyan was, at the September election?

A. — I do not.

Q. — Do you know where Thomas iloa*; was. at the September election ?

A. — I do not.

Q. — Do you know where Captain Wheelock was ?

A.— No, Sir.

Q. — Do you know where Mr. Ijeonard was ?

A. — He was at Mono.

Q. — What time was the excitement you speak of at the White Moun-
tains ?

A. — It had been rather a striiii^ of excitements then. 1 think it was
some time in August.

Mr. Jjiirta. — How long did that excitement last?

A. — Well. 1 don't know; yet. it was "boilin*^" a little when I left.
The White Mountains were talked of a good deal.

Mr. Quint. — Mr. Whi])ple, take that list, and look over the list returned
from the Big Springs Precinct, now on tile with the Committee, and
state if any of the names you see n\Hm said list were men whom you
saw at Walkei-'s Kiver ? If ho. whom ?

A. — I know a man named Walters; did not see him at the Lake.
There is no name there that I know.

Q. — Do you recollect any names, upon that list of persons whom you
knew in Mono County ?

A. — There was one name, John Larkin.

Q. — Are there any others, of whom you do not know, or did not know
their given names ?

A. — Yes, there arc several names there, of whom I don't know the
given names.

Mr. Cuvi)t. — Of men whom you have known in ^lono County?

A. — Yes, Sir.

Q. — How many ?

A. — There is one there whose name is R. Isaacs; his name is Robert
Isaacs.

Q. — Any others ?

A. — There is a man by the name of Walters.

Q. — Any others ?

A. — William Davis ; three or four others ; they slip my mind now.

Q. — Where did you know him ?

A. — I saw him at Mono.

WILLARD WHIPPLE.

Subscribed and sworn to, February fourteenth, eighteen hundred and
sixty-two.

TESTIMONY OF BYRON E. COX.

Afr. Quint. — Where do you reside ?
A. — At Aurora, in ^fono Count}'.

Q- — Wla'n did you i<;o to Aurora, and when did you leave there ?
A.— I went to Aurora a year ago last September, and left there on the
eixtccntii of last November.

(^ — Wiiat is your occupation or business?

A. — I am a miner. Sir.

(i—^\'r\ii you at Aurora during the months of July and August last ?

A. — I was.

<^ — "VVas there any excitement in that county during those two
months, relative to gohl and silver discoveries said to have been made
in the White Mountains and Walker's liiver ?

A. — There was the greatest excitement I ever saw; some went to
Walker's |{ivcr, and some wen^ to the White Mountains ; some did not
know where they were going.

A. — What number of men left Aurora and vicinity during that excite-
ment ''.

A. — 1 <lon't know that I am able to sa}'. A great many left, and for a
while the place looked as though it was nearly depopulated.

(^. — What was the comparative population of Aurora just before that
excitement, ami at. or about the time, of the general election?

A. — At the time of the county election they polled some seven or
eight hundred votes, if I recollect right. At the time of the general
election they jiolled some two hundred votes less. What became of
them, I couhi not say.

(^. — About what number of men do you know to have left Aurora and
vicinity during those excitements, as near as you can state ?

A. — One half of the population went out during those excitements.

(^. — Did you know any of those who went out during those excite-
ments?

A.— Yes. Sir.

(^. — When was the White Mountains excitement, with respect to the
Walker's River excitement?

A. — It was about the same time; some hud it that the rich diggings
were in the sink of Walker's River, and some in the White Mountains;
they did not seem to know where they were going to, or where the rich
diggings were.

(^.—IIiivo you examined the paper, here shown you, being the returns
from Hig Springs Precinct, or a copy thereof?

A. — I liave examined this.

Q. — When, and at whose instance?

A.— 1 examined it here, some two or three weeks since, in this room.
1 don't remember the date.

Q. — At whose instance?

A.— That of Mr. C'avis. .

Q.— Are there any names upon that list, of persons you knew m Mono

Countv ? , 1 ^ -T v i 4^1-

A.— iThere is a great number of names here that are tamiliar, but they

are not given in full.

Q.—liow many by the same names ?

A. I should judge there were a dozen names that I am tamiliar with,

but they have not the initials.

Q. — Is there any whose initials joii know ?

A._I could not tell, until I examined it again. There are a good many
names with ouly the initials given ; 1 could not say who. There is one
Niles; I knew a man named William Niles ; it is put down here AV. Niles ;
1 don't know whether it is the same man or not. There is another man,
by the name of Hunter; 1 knew a man hy that name, hut don't know his
given name. There is the name of liughos; 1 knew several by that
name in Mono County; I don't know whether it is the same or not.
There is the name of Iligley ; I knew one Charles Iligley; it is
marked C. Higley ; I don't know whether it is the same man or not.
There is the name of Walter ; 1 knew a man in Mono County by that
name, but don't know what his initials are. There is a name of Green
here • I knew a man by that name, in Mono County ; he was there in
June- 1 tliiidv his name was William; I could not say where he was on
election day. There is a man by the name of Alexander ; 1 knew a
man in Mono, of that name, hut don't remember what Ids given name is.
Here is a man by the name of Bowman ; 1 knew two men hy that
name, but don't know the given names of either of them. There is a
man hy the name of lilackhurn ; 1 knew a man hy that name, but did
not know his initials. There is the name of Morrison ; 1 knew two men
b}' that name; one was John Morrison; I don't know the name of the
other; the initial here is C. Morrison. There is N. Burnett; 1 knew
two men named Burnett; it is L. Burnett hero; the given name of
the one I knew is Jiichard. Here is the name of Whitney ; I knew
three or four of that name, by sight ; I could not say wlu'ther it is any of
them, or not. There is a man by the name of Beck; there ai-e two Becks
here ; I knew a man of thnt name, by sight. Here is a man by the name
of John Smith, whom I used to know ; he was at Aurora a year ago this
winter; where he was last summer, 1 am unable to sa}'.

Q. — Do you know whether any of those men you have named, went
off during the excitement you have mentioned if If so, in what direc-
tion, and where were they on election day ?

A. — There was Niles, and several others of them away; where they
were, I am unable to .say; they were out at Walker's Iliver in July. I
don't ren\ember of seeing any of them in Aurora on election day.

Q. — Look at the names signed to the returns, and state whether you
knew any of them '!

A. — Don't see but one name here, and that is Bowman; whether it is
the one 1 knew or not, I am uiuible to say.

Q. — Where did you know him '!

A. — At Aurora. There is where I met him. in the spring ; where be
was in the summer, 1 am unable to say ; could not say whether this is
the same one, or not.

Q. — Were you acquainted in Monoville '^

A. — I was, Sir.

Q. — Did you ever kn(jw a man there by the name of B. C. Boling?

A. — I knew a man there by the name of B<jling; did not know his
given name. Knew him by sight, but was not much acquainted with him.

Q. — Do you know where he was on election day, or about that time ?

A. — I do not.

CROSS EXAMINATION.

Mr. Cavis. — Where did you know Boling. whom you speak of?
A. — I knew him at Mono. Have seen him at Mono and Aurora. Am
not personally acquainted with him ; knew him by sight.

Q. — When was the hist time you saw him ?

A.— I tliiiik, :it the time of tlie White Mountuins and Walker's Eiver
excitement, is the hist time I remember seeing him.

Q. — What time was that?

A.— Somewhere about the twentieth or twenty-fifth of Julv ; he was
on liis way to the Sink of the Walker. Their party had the" idea that
tiiere were rich diggings there, lie was going through Aurora at the
lime.

(^ — Where did he start from?

A. — I bolieve he started from Mono.

l^. — What kind of lo«d\ing man was he?

A. — He was a tall, slim man.

i^. — How nuuh do you think he weighed?

A. — From one hundred and tifty to one hundred and seventy-tive
jfoumls. 1 should think ; am not much of a judge.

Q. — How ohl was he ?

A. — I should judge, about thirty years of age.

t^. — I>o you know any persons who left Aurora, of those you have
named, who wi-nt t«» th»' White Mountains?

A. — 1 Ihiidv that a man nametl Xiles went to the Wliite Mountains.
Whether it is the same one that is on the ])oll list, I cannot say. Whether
any of the men that I have mentioned went to the White Mountains, I
can't say, never having been there myself

(^. — Where did you tirst meet me? [Cavis.]

A. — Just before tlie election. I saw you in Aurora.

Q. — When di«l you first have a talk with me? [Cavis.]

A. — I think it was the night you spoke in Aurora.

(.). — When was the first time you ever talked with me about the AVhite
Mountain election ?

A. — hon't exactly remember.

l^. — Did you not introiluce yourself to me jn the hall of this House?

A. — 1 fitrget whether 1 introduced myself or not. Whether I intro-
duceil myself, or whether some one else introduced me, I forget.

(^. — Do you n(jt remember coming to me in the hall of this House, and
saying that you wanted to have a talk with me ?

A. — I don t remember.

Q. — How came you ever to speak to me in this House?

A. — I could not say whether I was formally introduced to you, or
whether I recognized and spoke to vou myself, or not ; I don't remem-
ber.

(^. — Do you remembt-r asking me to let you see a list of the voters re-
turned from the White Mountain District?

A.— 1 don't rememi>er whether I asked you, or whether you asked me
to look at it, and see if there was any name there that I knew.

Q._l)itl you not, the next day after you spoke to me in the hall of this
House, come to me to borrow money ?

A.— I believe I borrowed three dollars and a quarter from you, as a per-
gonal debt. „

(^._l)ia you not. about the same time, introduce yourself to Mr. Orr .

A.— I did not introduce myself; I was introduced to Mr. Orr.

Q.— Did you not also apply to him for money?

A.— 1 befieve I borrowed a dollar from him.

(^.— Have I luul any conversation with you about this contest, or
White Mountain election, since you applied to me for money.''

A. — I don't remend)er whether you have, or not.
12

the

Q. AYhat time did the Walker's River excitement commence?

j^ Am not exactly positive ; think it was Ironi the tiftecnth to the

twentieth of July; never thought of it from that day to this.

Q. How long after the excitement broke out was it before parties be-
gan to return ?

A. I should Judge, five or ten days, some of them; could not tell, ex-

actl}'. Some did not, go so far as others.

Q. — Were not parties returning all the time, after they began to come
back y

A. — I could not say.

Q. — AVcre not parties returning to Aurora, from day to day, after the
first parties returned to Aurora 'f

A. — There were some parties that returned, and some that did not.
For about a week, there were considerable many.

Q. — What time did the White Mountain excitement commence?

A. — About the same time as the other.

Q. — Wliich commenced first ?

A. — I am unable to say. I think they commenced about the same
time. Parties could not tell where they were going.

Q. — Do vou know of any person, or persons, who left Aurora during
that excitement, for the White Mi)untains?

A. — I remember one party who went there. There was one party that
I know Avent to the White Mountains. I camped with them. Some
went one way, some another. The party that went to the White Moun-
tains, consisted of three men.

Q. — What were their names ?

A. — Burt. Allen, and Tucker.

Q. — When did they return ?

A. — They were. pr<jbably. gone eight or ten days.

Q. — When did they leave Aurora to go out there ?

A. — Between tiie twentieth and twenty-fifth of July ; can't recollect
the time. It was during tiie excitement.

Q. — Had they returned before tlie September election?

A.— They had.

Q. — Did you know all these men whom you have mentioned, while ex-
amining the poll list, to have lived in Aurora during the summer of
eighteen hundred and sixty-one ?

A. — I have seen them, along from March, during the summer. Could
not say, exactly, the times I have seen them there.

Mr. Quint. — Why do you state, so positively, as to these three men you
speak of having been at the White Alountains?

A. — From meeting them every day. boarding at the same house, and
sleeping with one of them.

Q. — Was there any other party, or parties, to your knowledge, who
returned from that locality after the excitement?

A. — There were men coming in all the time. Where they were com-
ing from, I am unable to say.

BYRON E. COX.

Subscribed and sworn to, February twenty-fifth, eighteen hundred and
sixty-two.

TESTIMONY OF SOLOMON CARTER.

Mr. Quint. — IIuw long have you resided in California, and where ?

A.— I got into California in August, eighteen hundred and forty-nine,
as near as I recollect. Have resided the greater part of the time in Cali-
fornia, except about eighteen months, or near that time.

Q. — Did you ever reside in Tuolumne County? If so, when and
where ?

A. — I have lived in Mormon Gulch, in the first place, and lived in
Sonora, and a greater ])art of the time in Columbia.

(^. — Have you ever resided in Mono County '{ If so, when did you go
theri', and where did you reside, and in what business have 3^ou been
engaged 'f

A. — I first went to Mono ; I think in October last Avas two years. I
returned two years ago, some time in April, 1 think ; went there again
two yt'ars ago, last April.

Q. — Was it the next April, following October, that you returned to
.Mono 'f

A. — I think it was in either April or May, that I got there ; think it
was in Ajtril. but I am not sure.

Q. — At what place did you reside?

A.— At .Mono.

Q. — In what businesw were you engaged ?

A. — I was jiacUing and trading.

Q. — Who was engaged with you in business, if anybody ?

A. — Mr. Crocker and Mr. Edgerly. Mr. Edgerly was engaged the first
part of the time.

Q. — When did Mr. Crocker become your partner?

A. — Somewhere about the ninth or tenth of July, a year ago.

Q. — Do you know a man l>y the name of Charles E. Preble ?

A. — I knew a man there named Ed. Preble; he was always called
that.

(^.— Was he ever employed as clerk, or otherwise, by you, in your

store ?

A. — Never to my knowledge.

Q._l)i(l you know any other man by that name in Mono ?

A. — No { I don't think I knew anybody by that name there.

(j._Was there any considerable excitement in Mono, about gold and
silver discoveries made at Walker's River and the White Mountains, in
July and August of last summer? ^

A.— There was an excitement down there, but the exact month 1 don t
recollect ; I never taxed my memory. „ , . ,

Q.—lIow many people went off from Monoville during those excite-
ments ? T 1 -. 1-

A.— That is something which I could not answer; I don t how many
went.

Q.— State, as near as you can, how many went. , , ,

A— \t the time of the excitement there were about seven hundred
people 'there, and it looked to me that about half of them were gone at
the time I arrived there. ^ z; ^ v i ^,,4-9

0 —Were you absent from home when the excitement first broke out?

a'.— Yes, Sir. I was over in Columbia, or on the road, at the time it
broke out.' A few left after I got there.

Q._What was the population when you left ?

A. I suppose there were about seven hundred persons in Mono.

Dogtown.and Virginia Creek, and in that neighborhood.

Q._About what number did 3-ou find, on your return ?

A. Wlien I returned, the most of those who did not have water had

left. I suppose about half of them had left in that excitement.

Q. Do you know of claims being located at the AVhite Mountains, and

parties residing there ?

A.— 1 know of none myself, except by hear8a3^

Q. — Did you sell any'^party or pai'ties, goods, for the White Moun-
tains ?

A. — I sold goods there which men told mo were going to the "White
Mountains. Don't know, myself, that they ever went there.

Q. Did you see any party or parties who returned from the AVhite

Mountains soon after the last election '{

A. — I could not tell whether they returned from there or not. Never
have lived there myself 1 saw some men who said they had returned
from there.

(I. — What did they rejiresent was the voting population of the White
Mountains, on election day '(

[Mr. Cavis objects to this question, on the ground that it is hearsay
testimony — giving the statements of a third party in evidence. Mr.
Quint proposes to prove, by this witness, that various parties came into
Monoville some days after the election, and upon inquiring as to the vote
of that precinct, it was stated b}- them that some five or six hundred
votes had been polled. Objection sustained.]

CROSS EXAMINATION.

Mr. Cnvis — Was William (Jraves (called "Bill (iraves") one of the
parties who came into Mono some days after the election, and with whom
you conversed ?

A. — Don't know that I know Graves at all. 3Iay possibly know him,
but don't recollect his name, if I do.

Q. — Was the man known by the name of Col. Crawley, one of the
parties with whom you conversed a few days after the election '{

A. — I don't think I know him.

Q. — Do you know the names of those persons whom you saw a few
days after election '

A. — I don't know any one of their luvmes. They paid me for all they
got. I understood it was Col. Crawley's party, but don't know whether
it was or not.

Q._Was it that party ?

A. — It Avas a party that came in with Crawley's party. Don't know
whether it was that ]»arty or not.

Q. — Was it the i)arty you sold goods to ?

A. — It was.

Q. — Did you sell them any chemicals for use in an arastra ?

A. — I sold them some acid.

Q. — Was not the person whom you call Ed. Preble, assisting Crocker
about the store, last summer and fall ?

A. — lie stayed around there, but he never had been under wages in
the store, that I know of.

Q. — Did he not sleep at the store, with Crocker ?

A. -He used to have a bed there. He u.ed to sleep in our kitchen,
and afterward in the store, whde he was on the night wlitch for the ditch

A "V''* '-'^ ""^ ^^^^"^^ Crocker in selling goods in the store ^
A.— At tunes, when he was standing around, he would wait on cus-
oiners. Sotnetnnes he charged it— more times than he got the money
tor It. ° "^

.1 ^T'^}^^^- *?'' ""J "* *'''' ^^""''^ "'''^^ ""^ the time during the summer, after
the hrst oi June f

A.— I think not ; he was tliere a good <leal of the time, but after June
lie went to live riown at the mouth of the gulch.

Q.— After he went down tliere, was he n'ot at your store nearly every

day .-* ^ J J

A.— I did not miss him from there many days. Wlule I was there, he
woidd come and stay sometimes till after dark, and then go down home.

(V-— \V ere you not engaged the most of the time, during last season,
in packing, which required your absence from Mono?

-'^ — After the first of Juno, I was about half my time at Mono.

Q. — Tj) to what time?

A. — ( 'an't tell, exactly, what time I did leave there. After the twenty-
.•ighth of July 1 was about half of my time in Mono.

<^ — When did you next go out to Tuolumne County, after the twenty-
eighth of .hdy ?

A. — I think I sta3'cd there three weeks after I got in.

Q- — When was this excitement at Walker's Lake?

A. — I don't know what month it was in.

Q- — Had the excitement broken out during yom* absence from Mono?

A. — Yes. Sir; the first I heard of it was when I got back.

Q- — Were any parties returning from Walker's Lake, by the time you
returned to ^lono ?

A. — About the time I got in there, most of the persons whom I knew
bad left, with the exce])tion of two or three, Avho worked for me, and
owned an inifi-est in a claim that I had. One of the parties that went
out. ritiirned about four days after I got back.

(^. — Were not ditferent parties returning daily from that excitement ?

A. — I knew of only Mr. Chase and Mr. Downing returning.

Q. — Do you mean' to sa}' that all that portion of the population of
Mono, which left at the time of that excitement, remained away, and did
not return ?

A. — Tlu-y may have returned, but I oidy knew of two men who left
that did return.

Q. — Von say that parties were waiting for the water to come in, at the
time of the excitement — what month was that in ?

A.— That was about the time I first went there. That was the time
of the excitement.

Q. — What time in the summer did the ditch company bring the water
in?

A.— I think in the new ditch they had some w^ater in July, but the
ditch was not completed to its head when they took the water out; at
least, they represented to me that it was not completed. I never was
on it. They expected more water late in the Fall. Men went up to see,
and were satisfied they could get no more water.

Q._At the time you speak of, was not Walker's Lake, or the Sink of
Walker's River, the place you heard spoken of where gold had been dis-
covered ?

A. The Sink of Walker's Eiver, or Walker's Basin, was, as I under-
stood, the place they were all aiming for. The diggings were supposed
to be in that neighborhood.

Q. — Have you ever been to the Sink of Walker's Eiver?

A. — I never was there.

Mr. Quint. — i)id not the White Mountains create considerable excite-
ment, about that time ?

A. — About a week after Mr. Chase came back, there was an excite-
ment about the AV'hite Mountains.

Q. — What time do you think this excitement about the White Moun-
tains occurred ?

A. — I think it was after the tenth of August, but am not positive.

Q. — AVas it before the election ? '

A. — It was before the general election.

Q. — Did you come in company with Wilson, Loehr, and Stearns, from
Aurora to this city?

A. — I came Avith Wilson and Stearns to Lake Valley ; there 1 overtook
Loehr, and came with them to San Francisco.

Q. — How far is Lake Valley this side of Aun^ra ?

A. — I call it ninety miles, or near that.

Q. — Did you see Mr. Wilson hand Mr. Loehr a bundle, on the steamer
from Sacramento to this city ?

A.— 1 did.

Q. — When was it ?

A. — After we got on the steamer. I don't know at what place on the
river, but it was about half an hour or an hour after we started.

Q. — Where was he sitting, at the time?

A. — He was sitting on one of the settees in the cabin of the steamer.

Q. — What did Loehr do with the bundle?

A. — He stuck it under his bhmkets.

Q. — Did Wilson leave anything else with him at the time?

A. — He left his overcoat with him; he put it on iiis lap.

Q. — AVhat was said between them, at that time?

A. — 1 did not hear what i)assed between them at the time. We were
starting down to sui)per, at that time. He gave him the bundle, and
threw his coat on him, and told him to take care of them till he got
througli supper. We went down into the cabin, and they told us the
table Avas full. We came up stairs, and Wilson went and took his coat
again. Whether he took the bundle back, or not, I don't know, as I did
not pay mucii attention.

Q. — Did you see a bundle of ])apcrs in Wilson's pocket, on the steamer,
before he handed the bundle to Loehr?

A. — I saw a bundle in his ])ocket. rolled up in a newspaper. He told
me they were the returns of Mono County, and he said he was going to
give them to Tom Loehr, for fear of losing them.

Q. — When was that ?

A. — That was a few minutes after we got on the steamer. Wilson
and myself, and I think Mr. Green, went to the bar and took a drink.
As we were going up the steps, Wilson found a handkerchief, and rolled
the bundle up in it. and as it was then about supper time, gave it to
Loehr until he got some supper.

Q. — Were you with Wilson most or all the time till he gave Loehr
the pa])ers ?

A. — Very nearly all the time, I think. We went down and took several
drinks ; Loehr and several others were along.

Q.— Did you, at any time, on board the steamer, see any bundle of loose
papers in Wilson's coat pocket?

A. — No ; I saw a Inindle of papers rolled up in a newspaper. That
was about the last time we went down there. When he found the hand-
ki'rchii'f he took them out and rolled them up in it.

Q. — Did you. Wilson. Loehr. and others. _^;o down to the bar, after be
(Wilson) had <riven the jjapers or bundle to him?

A. — I think not. Am not positive about it, thouo-h.

Q — 1>^» y<>" know whether Loehr went down with other parties?

A. — When I came up from supper. Loehr was sitting; on the sofa, ap-
parently asleep, with a pair of blankets thrown around him. I supposed
he was asleep. I had no more conversation with him till about the time
the steamboat landed here. After we had <;ot ashore, he and 1 started
oflf by ourselves, as we could not see any of the rest of the part}-, there
was such a rush in i;ettin<r oft" the boat. By this means we got separated
from the rest of them. We came on and overtook them on the corner
of some street, the name of which I have forgotten. We were hurrying
on. to catch up with our |)arty.

(^. — Did Loehr take his blankets with him, Avhen he went to the bar?

A. — I don't recollect whether he did or not.

Q. — Did you find the table full when you went down the first time ?

A. — About the time we started down, we met a waiter at the head of
the stairs, and he told us it was full.

(^. — Was there a rush of persons before you?

A. — We did not go down when the bell rung. There was no rush of
persons on the sti'ps at the time we went down.

(^. — How long did you wait after that, before you got supper?

A. — Fifteen or twenty minutes; nearly half an hour. I did not notice
the time.

i^. — Did you then go and get supper?

A. — Afterwards we went and got supper, when the next bell rung.

Q. — Were you with Wilson the most of the time after supper on the
steamer?

A. — After we came up from supper, I went and stayed outside, and
Wil.son went in. I went in. and walked through, and saw him sitting
on a sofa, apparently asleep, and Tom Loehr was sitting on the other
end.

(^. — Which was it who told you he was asleep ?

A.— Tom said he felt drow.sy ; that he had been sleeping. That was
after we landed here, just as we were coming ashore.

^fr. Car, s.—llow long was it after you left Sacramento, before Wilson
found the handkerchief you speak of?

A.— Well, I could not' tell the exact time. From the distance we were
down, it might have been half an hour, or an hour. I paid no attention
to the time.

Q.— Did he immediately go and dry the handkerchief?

A.— When we were going up— Loehr. Wilson, myself and probably
Mr. (Jreen, there were several of us— he took the handkerchief and stood
there and held it up in the wind, and we went into the cabin, i came
out on deck afterwards, and Wilson was holding the handkerchief up,
drying it. Ke took the bundle out of his pocket, and tied it up m the

handkerchief , , n . t i 9

Q —How long after that was it before he gave the bundle to Loehi .''
A.— I don't recollect the time. It was just as Ave were starting to

supper the first time.

Q. — r)id 3'ou see Wilson on board the boat just before you eanie off
from it 't

A. — When we were 8tartin<^ off the boat I saw hiiu ; when we were
standing on the gangwa}', or just starting down it.

Q. — Bid you see bim in the inside of the boat, before you came out on
deck ?

A. — I had not seen hiin foi- half an hour, or pi-ohahly an houi-; it was
some time.

Q. — Do you know of Loehr's sjieaking to Wilson, just befoi'o leaving
the boat ?

A. — Did not hear him say anything. He spoke to me, and said,
'• There is Wilson."

Q._Was that all he said ?

A. — I then told him that I supposed tlic balance of them had gone and
left us. When we got to the end of the gangway, he said, "There is
Dick." I got sepai'ated from them just then, and did not overtake them
until they had got some distance up from the l>oat.

Q. — Where did j'ou go to from the boat?

A. — We went to the Hank Exchange, tlie first ]>lace we sto])ped at.
Loehr turned off directly after I overtook them, anil the balance of us
went there.

Q. — Did you find .hidge (^nint there?

A. — Yes; saw him tlu'iv when we went in.

Q. — Did you go to Mr. CoffrotlTs ortii'c (jminu' tin- linic yctu wei-e in
Sacramento?

A. — Yes, Sir.

Q. — Who went there with yon ?

A. — AVent there with My. Stearns. Wilson, and Mi-. Coffroth.

(^. — How long were you there ?

A. — I suppose, fifteen or twenty minutes ; d(»n't know, exactly ; did
not stop there a great while.

Q. — How long after vou were at CortVoth's office, before the steamer
started ?

A. — About an hour and a half I think. Don't know the exact time;
it might have been two hours.

Q. — Were you with Wilson during that time?

A. — I think I was with him the most of the time that he and Coffroth
and Stearns were together.

Q- — Did you see the bundle of papers in his pocket during any portion
of that time?

A. — T saw him have a bundle, rolled up in a newspaper.

(,>.— Where was it ?

A. — Sticking in his coat pocket.

Q. — Which side, right or letl ?

A. — Don't recollect which side. It stuck out about one third. I no-
ticed it very plainly. I had seen him take the bundle out of a sack,
before that, and roll it up.

Q- — Could j-ou see any of the papers that were in the bundle, or did
the newspaper cover the ends of them all uj)?

A. — I saw nothing but the newsj)aper that was around it.

Mr. Len-is. — How long have you known Mr. Coffroth ?

A. — I think, since eighteen hundred and fifty-one.

Q- — Were you friendly, or mere acquaintances?

-^- — I lii^ve been friendly; only sometimes opposed him, politically.

Q.— Did you go to his office in Sacramento on a friendh- visit or did
you jL^o tf) talk about this case?

A.— I went there to see him for old acquaintance' sake. I had no other
object in llie wc^-Kl.

SOLOMON CAETER.

Subscribed and sworn to, February twenty-sixth, eighteen hundred
and sixty-two.

TESTIMONY OF R. M. WILSON.

Q.— II<»wand in Avhat manner were the votes of Mono County can-
vassed and counted, at the hist September election ?

A. — The returns were opened and examined bjMhe Board of Super-
visors. Mr. (ireen and Mr. Worland were the only members present,
and they dircetcMl me to make out a tabular statement ; they then ad-
journed. I think, until the ne.\t day. In the meantime, I made out the
statement, and presented it to the Hoai'd the next da}', at their meeting.
They dej-lared the otKci-rs elected, and directed me to issue certificates.

Q. — Were these proceedings of the Board entered upon the records of
your count}', and afterwards apjjroved by them?

A. — They were.

(^. — Have vou the tabular statement with you. made out at that time?

A— I havJ.

(^. — Dill that statement form a part of the records of your county?

A. — It did, and dois.

(^. — Have y<»u examined the list of voters at Monoville, filed in your
office, of the September election of eighteen hundred and sixty-one?

A— I have.

(^. — Is there an}' person named Richardson upon that list?

A. — I could not find any such name.

(^. — Is there any man by the name of David Johnson returned upon
Baitl list ?

A. — I ilid not find any.

(^. — Is there any one named Thomas Kennedy on said list?

A. — There was a Kennedy; could not tell whether it was Thomas
Kennedy, or not.

Q. — When wei-e the minutes or proceedings of the Board of Super-
visors written out and apjH'oved by them?

A. — (ii'iierally in the morning of the day following.

(^. — When were they in this instance, to the best of your recollection ?

A. — I think the minutes were all written up that day, and approved
the dav they adjourned.

(^.— Was that the first or second day of meeting for the purpose of
canvasf-ing and counting the votes of that county?

A. — It was the second.

Q_Were the votes returned from Big Springs Precinct canvassed and
counted in the same manner as the other votes from tht different pre-
cihcts of said county?

A. — Yes, Sir; in the same manner.

Q._Were they made a matter of record in the same manner and
mode ?

A. — They were.
13

CROSS EXAMINATION.

3Ir. Can's. — Mr. Wilson, have you those papers here?

A.— Yes. Sir.

Q. — How long have you been acquainted with Judge Quint ?

A. — Since eighteen hundred and fifty-four or eighteen hundred and
fifty-five.

Q. — AVhcrc did you become acquainted with him?

A. — I think thefirst time 1 met him I was introduced to him by Dr.
Bluner, in Sonora.

Q. — Have you been intimately acquainted with him since that time ?

A. — I don't know that I have, intimately ; I have been very well ac-
quainted with him aiucc.

Q. — How many times did you visit Sonura during the year eighteen
hundred and sixty-one ?

A. — Twice, I believe.

Q. — When was the first time?

A. — The first time was in July.

Q. — Who was with you at that time?

A. — A man named Stewart was travelling with me.

Q. — Was A. H. Mitchell with you during that visit to Sonora, at any
time ?

A. — He came to Sonora while I was there.

Q. — Was Mr. Mitchell acquainted with Jinlgc <^>uiul ?

A. — I think he was.

Q. — During your visit to Sonora was Judge L. O. Stearns there at any
time ?

A. — Not that I reeollocl.

Q. — Who accompanied you on ^our return to Aui-ora?

A. — Mr. StewaVt, George Evans, and Mr. Mitchell. 1 think there was
some one else, but don't recollect who.

Q. — What time was it when you returned to Aurora ?

A. — It was on or about the first of August ; somewhere near that
time.

Q. — After your return to Aurora, ilid you hold a correspondence, or
write any letters to Judge Quint, before the September election?

A.— 1 think I did.

Q. — How many ?

A. — I don't remember whether I wrote more than once, or not.

Q. — About what time was that letter written ?

A. — The one I remember was just after Mr. Machin was nominated
for the Assembly, in Aurora, and before the Convention was held in
Tuolumne County.

Q. — What Convention do you refer to. in Tuolumne County ?

A. — What was called the Union Democi'utic Convention.

Q. — Did you write a letter before the Convention was held which
nominated Mr. Machin ?

A. — I don't remember ; I ma}' have, or may not.

Q- — Had 3'oi^ heard of the nomination of A. H. Mitchell, for the As-
sembl}', before you wrote the letter you speak of, to Judge Quint ?

A. — I had not.

Q. — Did 3'ou write him any other letter than the one you have men-
tioned, after the nomination of Mr. Machin, and before the September
election ?

A. — I don't recollect whether I did, or not.

.— fs the paper now submitted to you, a correct transcript or state-
it ot the vote supposed to have been polled in Mono County at the
September election /

Q.— Have you ever seen that letter since ?
A. — I liave not.

mentof i...^- >,,i,- ^..,.l,u^seu lo nave Deen polled in Mono County at the
last r>ept('rnber election/

A. — It^ is the orii^inal statement.

<2- — When was it made out by you?

„^-T^\^^y "^''^'^^' °"^ ^^ *^^ night of the day of the meetinir of the
ijoard winch canvassed the election returns.

Q-— Who opened the packages containing the election returns from
tho several precincts of Mono County, for the September election ? You
or one of the Supervisors ?

A. — I don't remember which, now.

(^— Who opened the election returns purporting to be from the Bio-
Springs Precinct. White Mountain District ? '^

A. — I could not say. The election returns were all put on the table,
and f think that the members of the Board, with myself, opened the
returns.^ I do not recollect who opened the different parcels.

Q- — Was that upon the tirst day the Board met?

A. — It^ was. for the ]>urpose of canvassing the returns.

Q- — W"'* it not the Hrst day they were in session, after the Seijtember
election ?

A.— I think it was. Tho Board held a special meeting at the same
time, if I remember right, for the purpose of transacting other business,
and I think this was done on the first dav of their meeting.

Q. — At what time in tho day <lid the Board adjourn ?

A. — I think it was some time in the atternoon, towards evening.

(^. — hid you write up a statement of the votes cast at the several pre-
cincts in Mono County, before the Board adjourned, upon the day that
the election returns were opened ?

A. — Myself and Deputy made out the statement during the evening
and night, and jirohaMy the next morning we finished the statement of
the tirst day's session.

Q. — When the returns from the Big Springs Precinct were opened,
was there an}' objection made to their being counted with the returns
from the other ])recincts of the county, by Mr. Green, one of the mem-
bers of the lioard. then present?

A. — Mr. CJreen made some remarks at the time, about the number of
votes that were polled at that precinct. I don't recollect what his words
were.

Q. — Did he object to their being counted in ?

A. — I think he did at first, but afterwards agreed to it.

(}. — When did he agree to it ?

A. — I think it was at the same meeting.

Q. — How did he agree to it ?

A. — By permitting them to be counted as a portion of the returns. I
don't recollect what he .said on the subject now.

(^. — Did he not refuse to give his consent to their being counted in,
and did he not so state at the time ?

A. — He raised some objection, at first, and afterwards, as I understood
it, he agreed to counting the returns with the others.

Q. — After he raised some objection to their being counted, did he, at
any time, sav that he gave his consent ?

A.— I don't know that he did ; the reason why I said that be agreed

100

to it, was. that by their order I made out the statement which was pre-
sented to them and approved.

Q. Did either one of the Supervisors present at that meeting, direct

you to inchide, in that statement, the Big Springs Precinct vote ?

A. I understood it so, or I should not have made out the statement in

that manner.

Q. — Wliicli member of the Board gave you tlie direction ?

A. — I could not say which one. In order to explain, I will say, that in
our Board of Supervisors there is not much formality.

Q. — Did either one of them direct you to include that vote with the
balance of the county vote ?

A. — I understood it to be ordered so.

Q. — When did they meet a second time ?

A. — The following day, 1 believe.

Q. — Were your minutes, or was your statement of the vote, made out
prior to their meeting the second day, and is this pai)er, marked [S,] the
original statement that you made out 't

A. — I think the statement was made out prior to their meeting the
second day, and that is the original statement.

Q. — Are you sure it was made out prior to their meeting the second
day?

A. — I could not say positively, but think it was.

Q. — Examine the list of voters returned to your office, as County
Clerk of Mono County, for the election of Septemher, eighteen hundred
and sixty-(»ne, from Mono Precinct, and state what name is placed oppo-
site to >i umber One Hundred and Eleven '(

A. — C. U. Kichards.

Q. — What name is placed opposite to Number One Hundred and
Twelve ?

A.— T. V. Johnson.

Q. — What name is placed opposite to Number One Hundred and
Thirteen ?

A.— J. M. Stith.

Q. — State what name is opposite to Number Two Hundred and Fifty '{

A. — J. Bostwick.

Q. — In whose handwriting is the certified copy, marked [E,] of the
election returns of Big Springs Precinct?

A. — That of Mr. Cavis, 1 think.

Q. — Before certiiying to that, as being a correct copy of the original,
on file in your office, did you not comjiare it, with me, with the original ?

A.— I did.

Q. — At the time we compared it, did we not count the number ot
tallies, of five each, upon each line, set opposite to each name ?

A. — We did.

Q. — Did we not so compare all the lines of tally marks upon the
paper ?

A. — I believe we did.

Q. — When you were at Sacramento, on your journey here as a wit-
ness, were you directed or requested to go to any particular place, on
your arrival in this city ?

A. — Can't say that I was. I was told that I would probably see Judge
Quint at the Bank Exchange.
Q.— Who told you ?
A. — I think it was Mr. Coflfroth.

101

yo^Ti^J're'?'"' ""' "" ^'"^ "■"' ""= ^•»'''' '^''=8'-?'' '« J-dge Quint to meet
A.— I think he <li.|.

'iZT;;.:^' wa '[ho 1'? H^'' ''Y^ ^'^ >^^" g^ immediately there ?
A. » '''it \\ as the hrst house I went into.
(^.—1)1(1 you rtnd Judge Quint there ?
A. — I did.

the^SWte ^'"" ''""■ '"'^' '""' "■'"' >■"" *•"" "■gl't. «•>»»' this contest in

A.— I iii.i.

A.— I ,li.l. in company with Ilcry Bcquette.

A.— I met you in company with Mr. Loehr.

Q. — >N here ?

A.— On the street, just above the Railroad House

(^-At the time of that meetin- did you say anything to Loehr about
memo'? ^'"' ' ^''"' '"'" "" ^'^'^^ steamer, coniing d^wn from Sacra

A —I think I t..|.l hi,n to keep the bundle until morninff.

^1.— hor what purpose did you visit the Railroad House ?

A' wl'' 1 '""'I*'^^'' ^^" ^^^''"A' liim and getting the bundle.

(^^^— >V by, then, on meeting him, did you tell him to keep it until morn-
mg .

A.^Reoanse I concluded not to go to the hotel at that time.

• * '7^ . .*' ^;*"'*"' '''*''' *^"y^'''"^' t« Jf'u about the bundle after it passed
»nto his hbiuktts on board the steamer, and before you spoke to him after
visiting the Railroad House?

A.— He said something to me just as we were leaving the steamer. I
don t remember w hat it was.

Q.— 1)«» you not remember that it was some remark about the bundle
you gave him 'f

A. — I think it wan.

Q— Did ho not say to you : " Here is your bundle, Dick," or words to
that effect?

A. — I don't recollect what his words to me were. I think I told him
to keep it for a while.

Q- — As he spoke to you at that time, did he not have the bundle in his
hand ?

A. — I don't recollect seeing it.

Q- — Before leaving Aurora, to come over here as a witness, did you
receive any letter from Judge Quint, carried to Aurora by Mr. Loehr?

A. — I did not.

Q- — Did you receive any message, or directions, from Judge Quint,
through Mr. Stearns, or any other person then in Aurora ?

A. — I received some words through Mr. Stearns.

Q. — Did \'0u see the letter which Mr. Stearns received from Judge
Quint?

A. — I saw it, but did not read it. Stearns said he received a letter
from Juflge Quint.

Q. — By whose directions did you bring with you the papers which you
brought, other than those mentioned in the subjDcena which you re-
ceived ?

A. — At the request of Judge Quint.

102

Q. — Are you acquainted with a Mr. Boling, residing in Monoville ?

A. — He resided formerly in Monoville.

Q. — When did you know him as residing there ?

A. — During the last summer.

Q. — Describe hira, as to height, age, and general appearance ?

A. — I should think he was about live feet and eight or nine inches in
height, rather dark complexion, light beard, (not in color, but thin,) and
will weigh from one hundred and furty to one hundred and tifty pounds.

Q. — Did you ever know any other man by the name of Boling ?

A.— Not that I recollect.

Q.— -Do you remember what his given name was 'i

A. — I do. It was Marion.

Q. — How long have you known A. 11. Mitchell ?

A. — Since the summer of eighteen hundred an<l sixty.

Q. — Have you been connected with him in business at any time, in
Mono County ?

A. — I have, as partner in mining claims.

Q. — Were you not also interested in constructing a water ditch, near
Monoville, in which he was a large owner"'

A. — I was.

Q. — For how long a time were you interested with him in mining, and
in the consti-uction of the ditch ?

A. — Mitchell became interested, or l)Ought stock, in the ditch some
time in the summer of eighteen hundred and sixty, and I ])resume he
owns stock in the ditch yd. I do not know whether he now owns in
any mining claims that I do, or not. 1 think he sold out.

Q. — Have you not been intimately acquainted with hini since you first
made his acquaintance ?

A. — Don't know that I was, at first ; became very well acquainted with
him since.

Mr. Quint. — How long have you known Mr. Cavis?

A. — Since, I think, eighteen hundred and fifty-five or eighteen hun-
dred and fift^'-six; when we first became ac(puiinted ; it may have been
as late as eighteen hun(h\'d and fifty-seven.

Q. — Have you and he been well acquainted, and on good and friendly
terms, since you knew him /

A. — I believe that wo have.

Q. — Did you and he reside in the same town ?

A. — "We did, in Columbia.

Q. — For how longi*

A. — Since I knew him he has resided in Columbia. I resided there in
eighteen hundred and fifty-nine, and knew him all tlie time.

Q. — What, if any, office or offices have you held in Tuolumne County r*

A. — I held the office of County Surveyor for four 3'ears in that county,
and Eoad Commissioner.

Q. — "Were 3'ou such officer up to about the time you left the county ?

A. — I held that office from October, eighteen hundred and fifty-five,
to October, eighteen hundred and fifty-nine. I think I left that county,
for Mono, in May, eighteen hundred and sixty.

Q- — Where had you and Mr. Mitchell been, previous to being in So-
nora, in July last ?

A. — I had been to Sacramento, to the State Convention ; Mr. Mitchell,
also. He went to Yisalia ; I went to Sonora.

Q- — Were you on your wa\' home, when you were in Sonora ?

A. — We were. We agreed to meet at Sonora, to start across.

103

Q- — Wlien was the last time you were in Sonora ?
A. — In Xovoniber lust.

^„ <^— ^Vas .Sonora the nearest or best route to return to Aurora from
1 uolunine 'f

A.— It was, from that portion. We went to Big Oak Flat, our horses
being there.

Q. — Did yon come that way?

A. — We eanie by Big Oak Flat.

Q. — Did you take the stage there ?

A.— In coming over, we took the stage there for Stockton and Sacra-
mento. When we sej)arated here, wo agreed to meet in Sonora, as I had
some business there to attend to. From there we went by stage to Big
Oak I-'lat. and took our horses.

<^ — Vou say you had some conversation with me, [Quint,] on your
arrival here, about this contest. Please state what was said.

A. — Judge (^uint asked me if I had the papers, and I told him where
the}- were. lie re<iuested me to get the papers. Don't remember what
else passed.

Q. — Did I [Qiiint] not tell you that I wished you would get them, and
keep tliem until they should be produced before the Committee?

A. — Yon «lid.

(^. — Dili w«' Imve any conversation about the facts or circumstances of
this contest, on that evening ?

A. — I don't think we did ; you mei'ely requested me to got the papers,
and kcejt tln-m until they were brought before the Committee.

(^. — Did .Mr. liOelir see and examine the returns from the Big vSprings
Precinct, before starting for this place ?

A. — lie did ; at nn' ottice in Aurora.

Q. — Yoii say that Cotfroth told you that you would be likely to meet
me [(^iiint] at the Hank Exchange; to whom did he addi-ess himself,
and who was ])resent ^

A. — There were Stearns. Carter, and myself, present. I don't recol-
lect to which one he addressed himself

(^. — Who was present when he said he would telegraph to me?
[(^lint.]

A. — The same persons.

(^. — Was it at the same time?

A. — Am not certain whether he said he would telegraph. I think he
said he wouM telegraph, and went into the office; after he came out, he
said I would tind you at the Bank Exchange.

R. M. WILSON.

Subscribed and sworn to, February twentj'-sixth, eighteen hundred
and sixty-two.

TESTIMONY OF S. C. FEANKLIN.

Mr. Qui'nf.—UiiYG you ever resided in Mono County ? If so, when and

where ?
A.— I have resided in Mono County. In Aurora and Mono.

Q.— When <lid vou reside there?

A.— Since Mono has been a county ; until I came to ban J^rancisco.

(^._When did you come to San Francisco?

A.— About the 'twentieth of November, I think.

104

Q Do you know of any consideruMe 'excitement, in Mono County,

daring the'months of July tuui Aui^tist. lust?

A.— About the last of July and the first of Auijjust there was consid-
erable excitement, which caused many of the citizens to leave.

Q. — About how many left duriiii^ that excitement ?

A. — To the best of my judgment, the number who left the camp that I
was living in (Mono) at the time, and Aurora, must have been from five
hundred to seven hundred men.

Q. — Where was the locality or localities to which they were attracted?

A. — White Mountains, and the Sink of Walker's lliver, and Walker's
Lake.

(^. — Did you fit out any party or parties to prospect in the White
Mountains, or that locality?

A. — 1 was one of three who fitted out nine.

Q.— Did they go ?

A.— Yes.

Q. — Have you any claims now located, in the White Mountains ? If so,
how many, and when were they located?

A. — I have two claims in the White Mountain District. A claim for a
silver lead, which has been located over a year, and a placer claim, which
was located some time noar the fifteenth of August.

Q. — Do you know how many claims have been located in the White
Mountains 'i

A. — 1 have ])apers for two. Have heard that some twelve hundred
have been located.

[To all that part of the answer relative to the information obtained
from the parties that were sent out by tiiis witness, Mr. Cavis objects,
on the ground that it is hearsay evidence. Objection sustained.]

(^. — llave you ever ])aid assessments I'or working claims in the W^hite
Mountains? If so, when?

A. — I have. It was some time in eighteen hundred and sixty; about
December.

Q. — When did you say your first claim was located?

A. — Some time in eighteen hundred and sixty ; about September, I
think.

Q. — How long is it since you have paid assessments?

A. — The same year; about two m(Miths after the location.

Q. — What was the comj)arative ])oj)ulation of Monoville and that vi-
cinity in July, and up to the time the excitement broke out, with what
it was about the first of Se])tember?

A. — It was much greater.

Q. — Aliout what was the difference?

A. — Having been engaged in a liver}- stable, and from the horses which
were taken. I should judge some three hundred persons had left that
portion of the county.

Q. — Was that during the excitement?

A. — It was ; they all left at the same time.

Q. — Have you examined the list of names here shown j'ou ? If so, are
there any names you know as residents of Mono County at the time this
excitement broke out?

A. — I examined a portion of it.

Q- — What number of names have you examined ?

A. — I don't know. I have examined a portion of it.

Q- — Are there an}- names upon that list of men whom you know to
have been residents of Mono County ?

105

A.— There are many names that I know to be residents of Mono
County.^ Ihe hrst names of many I do not know.

Q.— What number of names do you recognize, and who are they ?

A.— 1 have twenty names that are checlced off, of whom I know their
surnames.

t^— ^Vhat names have you checked off?

A.— Brown, Keed, Anderson, Wills, Walton, Walker, Cumminffs,
Myers, btewart, \ auirhan, Hammond, Edwards, Stewart, (two Stewarts,
they were brothers,) Samp.son, Hoot, Johnson, Hamilton, Jones, another
Jolinson. and Woods.

t^— Wliat ones do you know by tlieir Christian names ?

A. — Woods, Reed, and Johnson.

(^— Did any or all of these men go off during the exoitomont ?

A.— Mr. Woods. Mr. Jieod, and Mr. Vaughan, went. I can't say
whether they all went, or not.

Q. — Do you know where any of them were on election day ?

A. — I do not. I was at Aurora, and they belonged to Mono.

<^ — What portion of the list have you not examined ?

A. — I have examined up to Number Two Hundred and Twelve.

Q. — Have you had time, since that has been handed to you, to examine
the l)alanco ?

A. — 1 have not. 1 was engaged in some business of my own.

i^. — How long since it was handed to you ?

A. — It was handed to me about three o'clock, to-day ; half an hour
or an hour after the adjournment.

(■i — Do you know wlu'tlu-r those men, who went off in that excite-
jnent, returnr<| lu-fore election, or any portion of them? If so, about
what portion, to the best of your knowledge ?

A. — A portion of them did return.

Q. — What ])ortion ?

A. — Up to the time I left for Mariposa, about one fourth of them had
returnc'(l.

(^. — What time <lid you return from Mariposa?

A. — .Mtout six ov eight days before election.

(^. — What pi-o|)ortion of those who had left, had then returned?

A. — The ])arties I sent out had all returned but two; and others, of
whom I did not know the names, with what strangers came in, I should
think, comprised about one third of all that went out.

Q. — Do you know J. A. Bostwick ? If so, how long have you known
him ?

A.-T-I know John Bostwick, or Jack Bostwick ; didn't know there was
any A to his name. I have known him from about the first of May up
to the time we left for Visalia; some six or nine months.

Q. — Did you ever introduce him to me ? [Quint.]

A. — No, Sir ; I never did.

Q._About how much less was the population of Monoville in Septem-
ber than it was the first of July of last summer?

A.— I am not able to say ; but the poll books show that it is a falling
off of some considerable. You have that evidence before you.

Q.—Were people coming into the County of Mono, from other counties,
up to about September ?

A. — They were.

106

CROSS EXAMINATION.

Mr. Cavis. — Who do you know of as coming in from other counties ?

A. — A good man}', with pack trains.

Q. — Who were they ?

A. — The names of some of them I do not know.

Q. — "Who do you know the names of?

A. — Anderson, Ileffner, and Labrador. There were others — some Mex-
icans and white men, packing — came in ; don't know the names of thera.

Q. — ^Yere not all these persons engaged in packing with pack trains
across the Sierra Nevada Mountains, i'roxw this side?

A. — Some worked their passage across, and stopped, as assistants.

Q. — Which ones worked their passage across?

A. — Don't know; they came under the protection of the pack trains;
they were strangers to me.

Q. — How do you know they did ?

A. — From their statements.

Q. — Do you know where the parties wont, at the time of the excitement
you have spoken of?

A. — The party I fitted out went to the White Mountain District and
Walker's River.

Q. — When did the excitement break out ?

A. — Some time in the last of Jul}-, or about the tirst of August.

Q. — AViien was the first excitement ?

A. — There have been two excitements relative to the White Mountains.
The first was at the White ^lountains.

Q. — AVlien was ti»e first excitement about the White Mountains?

A. — It was the year before; a silver excitement ; in eighteen hundred
and sixty.

Q. — When Avas the second excitement?

A. — In connection with the excitement about Walker's Eiver; some-
where about the last of July, or the first of August.

Q. — Did the second excitement about the White Mountains commence
at the same time that the excitement commenced about AValker's Eiver?

A. — Parties had been talking of going to the Wiiite M(Kintains. It
was about the same time.

Q. — Do you know wliat parties went from Monoville or vicinity to
Walker's IJivor. or Walker's Lake, at the time of the excitement ?

A. — I don't know any one, of my own knowledge. I know several
parties that started for there.

Q. — How do 3'ou know they started for there ?

A. — On their own information ; they said they did.

Q. — AVho were they ?

A. — Whipple, Felch, Rodifer, Henscr, and McCarty,

Q. — Do you not know that they returned to Monoville before the Sep-
tember election ?

A. — It was the party I sent, and they all did not.

Q. — What was Whijij^le's name ?

A. — He signs it W. Whipple.

Q. — Was it the Whipple engaged in a saw mill ?

A. — The same.

Q. — AVhat was Eodifer's name ?

A. — David.

Q. — Was he not in Monoville on election day?

A. — I was not in Monoville on election day.

107

Q.— Did you know more than one Rodifer in Monoville ?

A. — I did not.

Q. — What was Ftdcli's cjiven name?

A.— J. B.

Q. — Did lie not return before election time ?

A.— He did.

Q. — Did ]\rcCart3- return before election time ?

A. — I thiidv he did not ; I didn't see liim.

Q. — Have you seen him, since he left at that time ?

A. — I have. Sir.

Q._ Where?

A.— At Plaeerville.

Q. — Do you know where he was, on election day ?

A. — I do not.

Q. — Do you know where Ilenser was, on election day ?

A. — I do not.

Q. — What was his given name?

A.— Michael!

Q. — Have you ever been to AValker's River, or Walker's Lake ?

A. — 1 havi' been on Walker's River.

Q. — Near Walker's Lake, or the Sink of Walker, as it is called?

A. — Not nearer than sixty or seventy-five miles.

(^. — Were you ut thr Wliiti; Mountains, at an}- time during last sum-
mer ?

A.— No, Sir.

Q. — Do you know any other person of the same nfime as yourself, who
resided in Monoville, or its vicinity, during last summer?

A. — I do not.

Q. — Did you know an}- other jjcrson there by the name of Franklin ?

A. — I am not actiuainted with any.

(^ — Have you ever known the person you call Jack Bostwick to speak
to Judge (^uint ?

A. — 1 thiidv I have seen him speak to him on the street.

Q. — How many times?

A. — Once or twice.

Q. — Have you ever seen him in any room in any building in this city,
when Judge t^uint was present?

A. — Ves; in the bar room of the Bank Exchange.

Q. — Have you ever seen him at any other place, or in any other build-
iiig. wlien Judge (^uint was present?

A. — I don't recollect.

Q._\Vhen was it that you saw him at the Bank Exchange?

A. — h must be three weeks ago.

Q._\Vas it before or after you saw him at the Bank Exchange, that
you saw him conversing with Judge Quint ?

A.— I can't say whether it was before or after. It was about the
same time, on the walk in front of the Bank Exchange, in front of the

cigar stand. ^ ^^ . xi

Q._I)ia you ever see him in company with Mr. Qumt at or near the

American Exchange ? , , r. ^n a

A.— I have seen' him standing in the hall, near the door of the Amer-

can Exchange. , -r. i t-. i 9

Q._AV:vs that before or after you saw him at the Bank Exchange f

A. — I could not say.

108

Q. — Ilave you ever asked Mr. Bostwick to go with you to any place
in this city, to meet Judge Quint ?

A. — To tlie best of my recollection. I never have.

Q. — Have you ever seen liim in company with Judge Quint, in any
other place than you have mentioned ?

A. — I never have, to my recollection.

Q. — Have you ever paid any asses.sments on any mining claims in
which you are interested, supposed to be in the White Mountains, since
about December, eighteen hundred and sixty ?

A. — It was about" that time, and before, that I paid assessments. I
have paid none since.

Q. — Were you at Aurora in July last, after your return to Monoville
from Mariposa ?

A. — No, Sir.

Q. — When did j'ou first go to Aurora, after your return to Monoville
from Marij)osa ?

A. — Some time in August.

Q. — What time in August did you first go there, as near as you can
recollect ?

A. — Some time in the latter part of August. Can't tell, exactly.

Q. — H<nv, then, can you tell how many parties left Aurora, during the
excitement in .Inly, lor Walker's IJiver?

A. — By the rej)ort of citizens who live there.

Q. — Have you any knowledge of your own about it?

A. — I know men who have been there and returned.

Q. — Have you any knowledge of your own about it, except what has
been told you ?

A.— No.

Q. — How long were you absent from Monoville, about the time of the
September election ?

A. — Two or three days at a time, going and coming.

Q. — Did 30U see Jack Bostwick at Monoville. the week of the Septem-
ber election ?

A. — I cannot recollect.

Q. — Did you see him there the week after the September election?

A. — I think I did. Am not certain.

Q. — When did Whipple and his com]>any go to the White Mountains?

A. — They started at the first of the excitement, about the last of July
or first of August.

Q. — How long were they gone ?

A. — I cannot say.

Q- — Did not parties commence returning to Monoville within a few
days after that excitement broke out?

A. — Not n]^ to the time I left.

Q. — For what place did you leave?

A. — For Mariposa.

Q. — How long were you gone ?

A. — Some two weeks, more or less.

Q- — What time did you return from Alariposa ?

A. — Some time in August.

Mr. Quint. — What was 3'ou engaged in while in Mono County ?

A — In mining, and tending to the livery business, as an assignee.

109

RE-DIRECT EXAMINATION.

Mr. Quint.— Xi the time 3-011 say you saw Bostwiek at the Bank Ex-
chaii<,'e, when I [(^uitit] was there, did he come in, or how did we chance
to meet '{

A.— 1 came in. and saw Mr. Bostwiek. I also saw Mr. Quint ; did not
hear him speak.

<l—^^'^'Y^ thi're any other parties present with whom I [Quint] was
conversiiiiT at the time ?

A. — We were drinkin^r at the bar.

Q. — Was Mr. Bostwiek doin^ the same?

A. — No; there were several |)ersons standing there.

Q. — Did Mr. Bostwiek and myself liold any conversation at the time
you say wo met outside?

A. — I heai-d no conversation, l>ut barely spoke with him.

Q. — Was (hat before or after Bostwiek had testified?

A. — I tliiiik it was before.

Q. — Y(»ii made some explanation, or wished to, about Whipple, upon
cross o.xaminalion ; please state wliat it was.

A. — Only this ; that Mr. Whipple did not leave with the party that I
was connectcii with.

(1- — Have yo«i, since the adjournment of the Committee, examined the
balance of the ]>oll list of the Bii^ Sprin«i;s Precinct? If so, state how
many namt's. in all, you found upon it of persons whom you knew in
Mono County t

A. — I examiiuMl the list which I supposed to be the list of the White
Motintain Precinct.

<l. — How many names on that list did you know?

A. — Somethinj^ over forty.

Q. — I)o you know where those men were on election day?

A. — These gentlemen I have named, I do not know. I did not see
them.

(^. — What are their names?

A.— Brown. .John Keed, Baker, Anderson, Tucker, (his residence,
when at honu-. is at Coulterville ; had been packing for two years, back-
ward and forward, to Mono, and mining there ;) Wilds, (a ranchman,)
Watson. Robinson, Walker, Stewart, Vaughan, Edwards, Thompson, A.
Root, Hamilton. Johnson, Jones. Dutch Johnson, (so called, as there were
two of that name there,) James Wood. L. O'Neil, L. Benson. W. Davis,
Crowell, (Jeorge (iilbert, Wilson, Sands, Land, Foster, E. Mullen, Abel,
Boling, McKatlerty, Rose, Vining. Turner, (three men of that name, the
initials I don't know,) Hopkins, Welch, Manning, and Freeman

Q.— Have you given the Christian names or initials oftho.se whom you
know ?

A. — All that 1 positively know.

RE-CROSS EXAMINATION.

Mr Cavis — Po you know where any of the parties you have named,
whose surnames you say appear upon the list you have examined, were,
at election time ?

A.— I do not know more than one or two.

Q. — Who were they?

A -M r Turner is one. He was, I think, at Mono ; am not very sure.

Q.— Might not many others of those whose names you have mentioned,

110

have been at Monoville, or the camps in its vicinity, at election time,
and you not have known it ?

A. They might have been there, or at Virginia City; I tiun't know,

Sir. , . . ,

Q. — Might not some of them have been at Aurora at election time r

A. — I cannot say, Sir.

Q. — Would you have known it, if they had been there?

A. — Not unless I had seen them.

Q. — iiow came you, in your examination, this afternoon, to state that
Whipple was one of the party that you helped to fit out?

A. — Having travelled witli Mr. Whipple hero, and concerning m}'-
self. I made the remark which I asked to explain, and amended at the
time.

Q. — Wlu-n did the party, which you assisted in fitting out, leave Mono-
ville? Was it before or after Whipple left?

A. — I cannot saj'. I think it was about the same time.

S. C. FIIANKLIN.

Subscribed and s\v(»i'n to. Febriiar\ i\\ em \ -eighth, eighteen hundred
and sixty-two.

TESTIMONY OF L. O. STEARNS.

Q. — IIow long have you resided in California ?

A. — Since the first of October, eighteen hundred and fifty-four — when
1 arrived in San Francisco.

Q. — Did you ever reside in Columbia. Tuolumne County? If so, when,
and how long ?

A. — I have resided in Columbia. I think I went there in February,
eighteen hundred and fifty-seven, and resided there some five or six
months. I thiidv I went to Sonora some five or six months afterward. I
was in Judge Barlier's office.

Q. — Did you ever reside in Visalia? If so. how long?

A. — I started for Visalia in August or September, eighteen hundred
and fifty-eight. I arrived at Visalia about the seventh or eighth of Octo-
ber.

Q. — Have you ever resided in Mono County? If so, when, where, and
how long ?

A. — I have resided in Mono County since somewhere near the six-
teenth of Ajn-il. eigliteen hundred and sixty-one; at Aurora, the county
seat; Esmeralda mining ilistrict.

Q. — Did you reside at Visalia from the time you went there until
you went to Aurora ?

A. — I did. Sir ; from the time I left Tuolumne County.

Q. — What is your profession or occupation ?

A. — I am a lawyer by profession.

Q. — Have you been engaged in the practice of law ? If so, how long ?

A. — I have been engaged in the practice of law since I went to Columbia.
I am mistaken about the time I went to Columbia. I went there in the
spring of eighteen hundred and fifty-seven. I think in February, and re-
sided there until the spring of eighteen hundred and fifty-eight.

Q- — Do jou know of any considerable excitement in Mono County, in

Ill

the months of July and August of eighteen hundred and sixty-one, rela-
tive to gold and silver discoveries in that county ? j , i«id

A. — Yes, Sir ; I do. -^ '

Q. — Where were they?

■ ^'^Tu'^/r^ eonsi<lerahle excitement in that county was towards what
IS caUe.l N alkc-r s I ake, 1 hel.eve. The first that I heard of it was on
my way troni \ isalia to Aurora, somewhere about the sixteenth or
seventeenth ot July, i-ighteen hundred and sixty-one.

Q— ^^''''t time did you arrive in Aurora, on your return''

A.-I think it was on the ei.ghteentli day of July; I am not positive.

v.— Uhat number ot people went o it' from Aurora, and vicinity in
that excitement ? j >

A.— From the best information I could obtain, about four hundred.

Q.— Was there, soon afte-r this excitement, another, about gold and sil-
ver discoveries in tl»e White Mountains ?

A.— There was. Sir. That excitement was a kind of continuous ex-
eilenu'iit. and ha<l bcon e.xisting lor a long time.

Q- — When did it commence, and how long did it continue?

A.— I cannot tell, exactly. It commenced before the first day of June.
1 had an application from a Frenchman for means to go to the White
Mountains.

Q. — How long did it continue ?

A. — As fur as I know, it is in existence now. A few days before I left
-Vurora. parties were going down there.

(^. — l>i<l you see specimens of gold and silver from the White Moun-
tains? If so, when, and where?

A. — Of my own knowle<lge, I don't know. I have seen specimens from
•Mr. (Ji-aves, who infoi-ined nie that they were from down there. It was
subseipient to my return tVoni Visalia, some two or three weeks; I don't
recollect exactly how long.

t^. — What was the character of those .specimens? *

A. — Contrasting them with Esmeralda and other mines, I should say
they were good.

Q. — What were they, gold or silver?

A.— B..th.

l^. — Wiiat wa>< the comparative population of Aurora and that vicinitj'
in the month-of .luiu-. and u]» to the time this excitement broke out,
with what it was in September?

A. — The June election I recollect very well; -was a candidate myself
at that election. There were some seven hundred and sixty or seven
hundred and seventy votes ; think it was seven hundred and sixty-eight,
am not sure. In September, I think it was less than six hundred.

Q. — When in Visalia. the last time, M-ere j^arties leaving that vicinity
f<jr Mono County ?

A. — A great many parties were talking to me about it. It was the
general impression \hat they were going there ; that Aurora was in-
juring that county ; they were leaving with teams loaded with flour and
provisions; I knew of several parties leaving.

Q._In ^vhat direction did the emigration from that county appear to
be going ?

A. It appeared to be going toward Aurora. It went in the direction

of Keysville. Coso Mining District, Euss, AYhite Mountains, and Aurora.

Q.^Are the White Mountains, the Kuss District, and the Coso, all
contigucnis to each other?

A.— They are within sixty-five or seventy miles of each other, to the

112

best of my recollection. In explanation of my last answer I would
state, that when I passed through from Visalia to Aurora, the Coso Dis-
trict was the only one in existence, that I knew of It was in March
that I passed through.

Q. — What was tiie comparative population of Monoville Just previous
to the excitement in July, with its ]>(>i)uhiti()n in September?

A. — It must have been two or three luindred, perhaps more.

Q. — What do you mean by two or three hundred '( Was it more, or
less?

A. — I mean, that in June or the last of July, the population must have
been two or three hundred more than in Septemher ; in Monoville it
must have been one hundred and fifty less, as far as ni}' judgment goes.

Q. — What l)ecame of that population which had left Monoville and
Aurora between July and September?

A. — My opinion is that it went to what is called the Cornell Mining
District, and tiie White Mountain District ; that is, after it lett Walker's
Lake; it did not stay there but a few days.

Q. — Do you not know of jiarties coming into the county from Tuol-
umne, and other jtlaccs, during all last summer, and up to about Sep-
tember ?

A.— I do.

Q. — When did they commence leaving the County of Mono for the
winter ?

A. — They commenced leaving ^lono County for the winter the latter
part of October; from that to December.

(^. — Did I ever employ you to api)ear as Counsel or Attorney for me in
this contested case, at Aurora, or at any other place ?

A. — No, Sir; you never did.

Q. — Did you have any conversation with Mr. Cavis about appearing
for me ? If so, when and where was it?

A. — I did, at Aurora.

Q. — When was it?

A. — .\fter the October term of our District Court. I don't recollect
exactly how long.

Q. — What was said about it ?

A. — 1 asked him, in a social way. how he was getting along with the
contested election. Something was said about you [(^tiint} ai)pearing at
the time a])pointed before the Commissioners. 1 thiid< Mr. (.'avis asked
me if you had an Attorney, or something equivalent. I told U'wn that I
intended to appear, as an elector, against the taking of testimony.

Q.— Was that all ?

A. — All that I think of, excepting what has transpired subsequently.

Q. — Had you any authority, or did I ever ask or authorize you to ap-
pear in the case ?

A. — I never had auy authority from you. You never asked, and I
never a]tpeared in the case for you as an Attorney.

Q. — When and from whom did you obtain an affidavit which was in-
troduced before the Commissioners?

A. — I obtained it from II. E. Phelps.

Q. — Did jou come from Aurora, as a witness in this case, in company
"with Green and others ?

A.— I did, Sir.

Q- — Have you ever seen the returns from Big Springs, Mono County ?
If so, when and where did you first see them ?

A. — I saw them in the Clerk's office; 1 can't tell you when. It was

113

one, two, three, or four days after Judge Mason filed the notice of con-
tost l.etween Cavis and (^lint. It was the first and only time I ever saw
thorn. ''

(^._I)ia you ohser^-e what kind of paper they were written upon ?

A.— My attention was not drawn particularly to that point, but I
thought It wa.s the commonest kind of blue letter paper.

Q.— Did you see Mr. Wilson have a bundle of papers, which he was
bringing with him from Aurora?

A.— He had a bundlo all the way with him from Aurora to Sacra-
mento ; what was in it, 1 don't know.

(^— Did you soe him have that bundle with him on board the boat
coming from Sacramento to this place ?

A. — A jiortion of the time. I did.

il — What portion?

A. — When 1 first got on board ; half an hour, or an hour, or more, I
suppose.

^l- — Where did he carry the bundle ?

A. — In his blue overcoat pocket, (a soldier's coat,) the first time I saw
liim.

<^ — Were the papers rolled up in anything ? If so, what ?

A. — IIo had somothing rolloil up in a newspaper.

(^. — J)id you soo any jtapors. that were loose, protruding fi-om his
pocket ?

A. — I did not.

(^ — If he had had a bun<lle of papers in his coat pocket, loose and
jd-otruding, would you have .seen them ?

A. — Yes, in the overcoat pocket, if it was as shallow as the one in
which he had this bundle. I should have seen it.

(^ — Do you know what he did with that bundle?

A. — I can't swoar ])ositivoly to that. I saw a bundle similar to that in
the possession of Mr. Loohr. ^Ir. Loehr had it in his vest.

(^. — Whon was it that you saw the bundle in Mr. Loehr's possession?

A. — It was just before or after we went to supper. My impression is,
that it was before.

(2- — What were vou doing when you saw it ?

A. — The first time I saw it, I asked Loohr to go down and take a
"temperance drink."

Q. — Was it when you were on your way down, or was it at the bar,
that you saw it ?

A.— I saw him with a package, once with a piece of newspaper around
it, an<l once with a cloth around it. I saw it several times, protruding
from his vest. The first time I saw it. I asked him to go down and take
a drink of lager ; the bundle was in his vest.

Q.—IIow many times did you go to the bar, during that afternoon and
evening, with Loehr?

A.— We went an indefinite number of times j Mr. Wilson. Green.
Loehr. and myself I should say, four, or five, or six, times.

(^._1)k1 you see more than one bundle with Mr. Loehr at the same
time ?

A. — I did not. „

Q.— Di.l Loehr take his blankets with him when he went to the bar .''

A. — I think not.

114

CROSS EXAMINATION.

Mr. Cavis. — When you went down to the bar to drink, (you, Wilson,
Green, and Loehr,) did not Sol. Carter go along with you ?

A.— Wilson, Green, Loehr, and myself went, indiscriminately; some-
times two of us. sometimes three went down. One time I asked Loehr
alone, and found Green and Wilson there ; another time went with
Dick, alone. Think I took a drink with each one separately.

Q.— How man}' times did Loehr go down to the bar with you ?

A. — Four or five times ; perhaps more, or less.

Q. — Did he go in your company, four or live times, to the bar ?

A. — I think I drank with him four or five times. Have no recollec-
tion of his going with me more times than I speak of.

Q. — Whereabouts, on his person, did he have the package with the
newspaper wrai)ped around it ?

A. — My impression is that he had it inside his vest.

Q. — Where, on his person, did he have the package with the handker-
chief around it ?

A. — Never saw him with a handkerchief I saw him with a jtackage,
with something around it ; it might have been a handkei-chief, or a linen
shirt, oi' something else.

Q. — When was it that you saw him with the package with the news-
paper wrapped around it ?

A. — Not long after we left Sacramento. An hour or an hour and a
half

Q. — How long before you went to supper ?

A. — Don't know whether it was before or after I went to supper.

Q. — To the best of your recollection, was it before or after you went
to supper ?

A. — 1 can't tell you. It was sliortly before or shortly after supper;
can't tell which.

Q. — How many times did you notice tliis bundle with the newspaper
around it ?

A. — I noticed it once, particularly ; I cannot tell you how many more
times.

Q. — How many times do you think you saw it ?

A. — Once or twice ; perhaps a dozen times. I can't tell.

Q. — What time in July did you leave A'isalia to go to Aurora ?

A. — I think it was the fifth; am not certain.

Q. — By what route did you travel ?

A. — I went to Ilornitas by stage, from Visalia.

Q. — How from Ilornitas ?

A. — On horseback to Sonora, and from thence to Aurora ?

Q. — Which trail did you go over ?

A. — The trail that leads direct to Walker's Meadows. Heard it called
the Sonora trail.

Q. — How many different parties did you know of leaving Visalia, for
Mono County, during the time you were in Visalia ?

A. — I have never .stated that I knew of anybody leaving Visalia, for
Mono County, direct. One George Dean, a man who herds cattle, and
I think Thomas Boyce, left at the same time.

Q. — Any others ?

A. — Yes, Sir; a man whom I knew very well, but I can't think of his
name, nov^-. I also saw three men from San Jos^. On or about that
time, a man by the name of Niles, (he is now in Aurora,) left, with his

115

family. I think ho left after a great many had gone. I was there onlv
nineteen or twenty days-from the fifteenth day'of June tTthe fifth day
of July, m my impression now. -^

Vi^iiiil^^ ^'''" '''''''' '''*""" ^'"^ parties you have mentioned went to, from

A.— I have seen a portion of them in Aurora, Esmeralda District I
only know from In-arsa^-. Some went to the Russ District, some to Coso
and some to tlu- ^\ hite Mountains. '

Q.— What is the distance from Yisalia to the Coso mines ^

A.— It never was measured, to my knowledge.

Q.— To the hest of your judgment, what is the distance ?

A.— One hundred and fifty or one hundred and sixty miles: I mean
by tlie ti-aveiU'(l i-oute.

Q.— What is the distance from the Coso mines to the Russ District?

A. — I cannot tell you, Sir.

Q.— To till- iM'st of your judgment, what is the distance?

A.— lo tnivfl from Coso, I should judge it Avas twenty-five or thirty-
tive miles; that is, when I was there. They may have a shorter route
now. '

Q.— What is the distance from the Russ District to the White Moun-
tains?

A.— From the extreme edges of the two districts, I should judge it to
l»o from ten to twenty miles.

Q. — Do you mean tho nearest edges of the two districts ?

A. — As represented to me by parties who have been there.

Q.— How far is it from the White Mountain District to Aurora?

A. — Some say forty miles, and some say eighty miles.

(■I. — Do you know anything near the distance, of your own knowl-
edge ?

A. — From the place represented to me as the White Mountain Dis-
trict, I should judge it to be seventy-five or eighty-five miles ; it may be
one hundred miles. It is only a supposition of mine.

Q. — How far is Visalia from Aurora, by the travelled road running in
the vicinit}' of Owens' River?

A. — Fr(»m Vi>alia. the way we travelled last sjiring, I should judge it
to be three hinitlreil and seventy-five miles.

Q. — I)id you travel by the road ?

A. — Hy one road.

Q. — liy the road most frequently travelled?

A. — At that time of the year it was.

Q. — Do you know any shorter road, between Yisalia and Aurora, which
can be travelled by teams ?

A. — I do not know of any shorter road which can be travelled by
loaded teams.

Q. — Do you know of any nearer road between those places that can
be travelled by i)ersons travelling as those who, you say, left Visalia
with teams loaded with flour and provisions, at the time you were there
in June ?

A. — In June f did not know of any, and now I only know it from
hearsay.

Q. — ilow many parties with loaded teams did you see leave Visalia,
in the month of June, and up to the fifth of July?

A. — I cannot tell. I don't think I saw any at that time.

Q. — What parties do you know of coming into Mono County, from

116

Tuolumne County, during the time of the excitement ■s\hieh you have
spoken of?

A. — I cannot now name any of them. I have seen persons who repre-
sented themselves as from Tuohimne County, who, I think, I had seen
there four or five yeai*s before.

Q. — Do you know of any of the persons, who came from Tuolumne
County, going at any time to the AVhitc Mountains '{

A. — I can't swear positively that anybody went to the White Moun-
tains. They told me thej' were going there. A man named John Rich-
ards, from Tuolumne, told me he was going over there, with five or six
men. I(lon't recollect how many.

Q. — AVhat time was it that liichards told you ho was going to the
White Mountains ?

A. — Some time in July ; not far from the middle.

Q, — Were you ever at Walker's Lake, or at the Sink of Walker ?

A. — No, Sir ; I never was.

Q. — Did you ap]>ear before the Commissioii(.'i-s appointed to take testi-
mony in the contested case against Judge Quint, at the time they were
appointed to take testimony ?

A. — Yes, Sir; I a])peared.

Q. — Did you. at tliat time, file the affidavit prepared by Judge Quint?

A. — I filed an affidavit which was handed to nxa by K. E. Phelps. I
don't know who it was prepared by. I could not even swear to the
handwriting now.

Q. — l>o you know in whose haud^v^iting it was?

A. — I do not, now. Sir.

Q. — Did y<.»u know at that time ?

A. — My impression was, at the time, that it was in Judge Quint's; yet
I would not swear ])ositively that such was the case.

Q. — When did you first know of the existence of that affidavit ?

A. — The day that it was presented to me by Mr. Plielps.

Q. — Did you not. in a conversation we had, of whicli you have spoken,
state to mc that Judge Quint had spoken to you to attend at the taking
of testimony ?

A. — I did not; to the best of my rec-ollection.

Q. — Did you not use words to that ett'ect?

A. — In the conversation of which I have testified, I did not.

Q. — I>id you, at any time during my visit at Aurora, last October, tell
me that Judge Quint had spoken to you about attending to the matter,
when testimony was taken in the case 'i

A. — I never told you that Judge Quint had ever spoken to me relative
to the taking of testimony ; that is, to act as his Attorney.

Q. — What did you tell me about it ?

A. — I told you that I intended to appear, as an elector, to resist the
taking of that testimony-.

Q. — Why did you so appear ?

A. — Because the record did not show that a proper notice had been
served on Judge Quint.

Q- — How many daj's before the meeting of the Commissioners was it
that you had the conversation with me ?

A. — ^It might have been five, or it might have been fifteen ; I cannot
tell.

Q- — Had Judge Quint informed you of anything relative to that con-
test, before we had this conversation ?
A. — ^No, Sir; he had not.

117
Q.— What conversation did you have about the matter?
seat'" " '^'''^'"' ^'^ "''' ^''""^ ^"^ ^""^ ^''''''^ ^^""'^ '"'^''^ Soing to contest his

Q-— r>'<l l>e have any other conversation Mith you after that, before he
lett Aurora, about my contesting his seat ?
A. — lie did.

Q.— Did you appear before the Commissioners ?
A. — I aj)peared before them as an elector.
Q. — Did you tilo the attidavit mentioned?

^■~] .^'^'.'f "" affidavit, with Judge Quint's name attached to it. I
ordered it hied.

Q-— Wiat is tiie profession of R. E. Phelps?

A.— His ostensible profession is law. He is District Attorney of our
county. ''

Q. — Did lie not, also. a])pear before the Commissioners?

A-— Yes, he did; and twenty-tive or thirty others, I should judge.

Q._r)i,l not you and .Mr. Phelps make remarks to the Commissioners,
and, referring to tlie statutes on the subject, urge objections to their
taking testimony in the case?

A. — We <lid ; JMielps for one party, and I for another.

Q- — I^i*^' you not both urge objections, and address the Commissioners
in the case. against-.Iudge (^uint?

A. — -My recolk-etion is, that we did not; I am not sure about it. I
know iliat I appeared alone for Judge Quint; subsequently, after argu-
ment by myself and Mr. Cavis, Phelps came in and interposed an objec-
tion against their taking testimon}^ for B. K. Davis — the Davis and Orr
case — and, in the course of his remarks, I think he stated that his argu-
ment was equally potent in the one case as in the other.

Q. — How many times were you in Monoville during the month of July
last?

A. — I think, only once ; am not sure whether it was the latter part of
July or the lirst of August. It was shortly after I came over the moun-
tains.

Q. — Of your own knowledge, what persons left Monoville to go to the
White Mountains?

A. — None, only by hearsay, that I can think of now.

Q. — Of your own knowledge, what persons left Aurora to go to the
White .Mountains ?

A. — liill Crraves, and his party, and four or five M'hose names I don't
know. He macle several trips there.

Q. — When did yon first learn of the loss of the election returns of the
Big Springs Precinct, White Mountain District?

A. — If the Coinmittoe will tell me the first day that Dick Wilson tes-
tified here, I can tell. It was the same day, in the evening, about nine
o'clock.

Q.— Who told you of it ?

A. — I dori't know. Somebody said to me that the returns from the
White Mountain Precinct were lost. It was not Dick. I have no idea
who it was. It was in the evening, about eight or nine o'clock.

Q. Dkl you, before Wilson was sworn and testified in this case,

have any conversation with any person or persons, at any place in this
buildinir, relative to those election returns?

A.— i think I did.

Q.— With whom?

A. — I don't know. Have no idea now.

118

Q. — Did you converse with more than one person on the subject ?

A. — Don't recollect. My impression is that I did not.

Q. — Who was the person you think of?

A. — Can't tell you. Have no idea.

Q. — Did you, before "Wilson M'as swoi-n in the case, state, in the pres-
ence of, or to any person or per.sons, that 3'ou would not be afraid to bet
one thousand dollars, or a large sum of money, that those election re-
turns were lost, or that Wilson had not got them ?

A. — I did. I think it was l)efore Wilson was sworn, and not since. I
stated to parties that I thought you had the returns.

Q. — AVhat made you think so ?

A. — From facts that 1 had lieard from parties who pretended to be
your friends, and some who did not.

Q. — AVhat parties do you refer to ?

A. — I refer to Mr. Loehr, for one.

Q._Who else ?

A. — I heard it from parties on the street. I would not undertake to
name them. Don't recollect who. I think Mr. Loehr told me about it.

Q. — Dp j'ou remember the name of any otht'r jjcrson who spoke to
you about it, besides ^Ir. Ijoehr y

A. — I think there may have been forty persons who spoke to me
about it. Don't think of any more now. Ileai'd it talked about by
everybody.

Q. — Did you hear the loss of the papers talked about, by any person,
before Wilson came into the Committee room to be examined as a wit-
ness in the case ?

A. — I am not sure about it. Can't tell. It was about the time some
person talked to me about it. I can't tell who it was. I think I talked
about it, before that, myself

Q. — Have you ever stated to any person, that to the best of 3'our
recollection the Big Sju-iugs election returns were written on white
paper ?

A. — I have no recollection. If I did, it was done to deceive some per-
son. I have been besieged here in town on all sides by your friends and
enemies. I may have said so.

Q. — What circumstance or circumstances led you to believe, at the
time you had the conversation about betting, that the papers would not
be produced ?

A. — The morning after we arrived in this city. I was up in Mr. Quint's
room. After I had been there some time, R. M. Wilson came in. Judge
Quint asked him to look at those returns. The papers were laid down
on the settee in front of me, and Judge (^uint opened them while I was
sitting there, as a guest ; commenced looking over the several papers ;
think I picked up one myself While I was looking at the paper. Judge
Quint asked me if the paper I had in ni}- hand was a copy of the returns.
I told him it was not. He then commenced looking over the papers for
the returns, seeming to me to be very much excited at the- time. Wil-
son, I think, was in the back room, putting on a clean shirt. Quint
asked him where the retui'ns were ? AVilson came and looked for them.
At that instant my suspicions were not aroused, but in a few minutes,
after reflection, I came to the conclusion that the papers had been ab-
stracted, either by Loehr, Dick Wilson, Cavis, or Jim Coffroth. That
was the first suspicion I had of them being gone. All the conversation
relative to this thousand dollar bet was predicated on that. I had heard
that Loehr, Cavis, and Mr. Coifroth, had had the papers.

119

Q— "^^ho <^ifl yon hoar say that I had had the papers ?

A.— I don't recollect now. At the time, however, somebod}^ told me
that you had had the pa])er8.

(^.— Had you at that time heard any person say that I had ever had
the papers since they left Aurora ?

A.— I think I did ; somebody hero in town. There was 'some talk, by
some one, that you and Loehr had had the papei-s.

L. O. STEAENS.

Subscribed and sworn to, February twenty-eighth, eighteen hundred
and tiftv-six.

TESTIMONY OF H. D. BEQUETTE.

<i. — Have 3'ou over resided in Mono County? If so, where, when,
and how long ?

A. — Have resided in Mono since the first organization of the county,
or since last Ma}' ; also, the year before last, before the organization of
the county.

(^. — At what places did you reside ?

A. — First at .Munoville, and since the first of last June, at Aurora

Q. — What time did you leave Aurora?

A. — About the tenth of December.

Q. — What has been your occupation since the organization of that
county ?

A. — I have been Under Sheriff of that county.

Q. — Wore you present at the time the Board of Supervisors met, in
Septeinbi-r last, for the purpose of canvassing and counting the returns
of that county ?

A. — I was.

(^. — In what capacity were you then acting ?

A. — I was attending on the session of the Board, in my official
capacity.

(^. — Were you present at the time the returns from the various pre-
cincts were opened ?

A. — I was.

(^. — ]W whom, and at whose instance, or under whose directions, were
they o])ened ?

A. — Hv Supervisors Worland and Green.

Q._j)"i,l you see the Big Springs returns opened and counted ?

A. — Yes, Sir, I did.

(^.—Wcre they opened and counted in the same manner, and recorded.
as the balance of the returns of that county ?

A. — They were, Sir.

Q._j)i(l you observe the returns from that precmct ? it so, upon
what kind of paper were they written ? t v,- i

A.— They were made out upon blue letter paper, I think.

Q._l)ia"you observe them particularly ?

A.— Yes Sir ; I examined them particularly.

Q._Was there anything about the returns to excite a suspicion that
they were not bona fide returns ? ,., ., i , x.

A — Xothin-r that I could see. They were made out like the balance ot
the returns; So diiference in the manner in which they were made out.

120

Q. Do you know Mr. BostAvick ? If so, how long have you known

him ?

A. — Have known Bostwick since the hist of eighteen hundred and
fifty-seven, or eighteen hundred and fifty-eight. Saw him first in the
fall of eighteen hundred and fifty-seven.

Q. — iiiis he been residing in this city '( If so. how long ?

A. — 1 arrived here on the twenty-fiVih December, and on the twenty-
sixth December I met Mr. Bostwick. He told me that he had just
arrived from Tulare County.

Q. — Did you have any conversation with him, about the time the
Lcislature adjourned froni Sacramento to this ])lace, relative to what he
knew of the Big Springs vote ? If so, what did he tell 3'ou at that
time ?

A. — After the adjournment of the Legislature to this place, I had a
conversation with him about it. He told me he knew nothing at all
about it.

Q. — State what he said, as near as you can.

A. — I s])uke to him about tlie probability of his being summoned in
this case, and he told me that his evidence would not amount to any-
thing, eitiier one way or the other; either l»enefit oi- injure either party ;
either you. [(^uiiit.] or Mr. C'avis.

Q. — Where was it that you had this conversation ?

A. — 1 think it was at the American Exchange, or vicinity.

Q. — How long after the Legislature had adjourned to this place?

A. — Within a day or two ; don't recollect, exactly.

Q, — Was this before he testified in either case?

A. — Yes, Sir; I think it was.

Q. — Have you had any convci-sation with him since ho testified, rela-
tive to that testimony, and the reason why he gave it ?

A. — I had a conversation with him the day after he gave his testi-
mony before the Assembly Committee.

Q. — What did he say was the reason of his giving that testimony?

A. — He said that he had applied to Mr. Davis for money, and he would
not give him any, or could lujt get any ; that he had asked you both
for money enough to go out of town with, and you both had refused;
that he was tired of going around town without money; that he had not
a dollar to buy a meal with; that he would knock Davis's arrangements
in the head ; and that he was going before the Committee again the next
day. The first words he said were, that he wanted to find you or Davis ; he
wanted to whiji you both. He seemed to be in a pretty bad humor.

Q. — Did he state any amount that he required of Quint and Davis, or
either of them, to leave town ?

A. — He told me he had ottered to leave if he had twenty dollars.

Q. — Do 50U know of any considerable excitement in Mono County in
the months of August and July last, relative to gold and silver discov-
eries ?

A. — There were several excitements there during those months.

Q. — What locality were the people attracted to, during those excite-
ments ?

A. — The principal excitements were said to be the east of Aurora,
which took ofi" a large portion of the population of Mono and Aurora. The
exact localit}' was not known. A portion of this prospecting crowd went
to the vicinity of Walker's Lake, and a portion of them to the country
lying east of Mono Lake, on the range of mountains running up Owens'
River, and known as the White Mountains.

121

Q. — About what number went off during that excitement?
A. — It is impossible to tell ; no means of ascertaining; there were sev
eral hundreds.

(^.— -Do you know of excitements springing up suddenly in mining
localities, which occasionally bring together a large population, tempo-
rarily 'i

A. — Yes, iSir ; I do ; have known of several.

Q. — Is it a very unusual thing, in a country like Mono, for several hun-
dred people to be attracted to one locality only for a day or two ?

A. — It has not been an unusual thing there. It has happened on sev-
eral occasions, to my knowledge.

Mr. Cm IK. — Where was your conversation held with Bostwick, that you
liave relattMl, in which he spoke about not being able to get money from
Quint or Davis ^

A. — On the corner of Washington and Montgomery streets.
Q. — When was it ?

A. — It was tiie day after he had given his evidence in the Davis case.
lie told mo he liad given it the day before.

Q. — What was the language he used at the time ?

A. — In the tirst j)lace. he wanted to know where either Quint or Davis
was. lie said he wanted to see them. lie said he heard that they
had tlireatened to send him to the Penitentiary, and that he wanted to
see them, lie said : •• Damn their mercenary souls, they would not give
a man a dollar if he was starving to death." Those are his exact words.
lie also said that he would not have given any testimony, if they had
given him money to go away with.

Q. — Did he say who he had talked with, that would not give him
money to go away with ?

A.— He told me he had spoken to Mr. Davis.
Q. — When did he say he had spoken to Davis?
A. — He did not say. Sir.

(^. — Do you not know that Mr. Bostwick Avent to Sacramento in com-
jiany with Mr. Davis?

j\\ — I (l,jii't know ; I heard that he did.

(^. — Have you ha<l any conversation with Bostwick, about his testify-
ing before the Committees, since the conversation which you say occur-
red on Montgomery street?

A.— No, sir; I have not spoken to him on the subject.
Q._irave you heard any statement made by him to any other person,
in your presence ?

A. — No, Sfr; don't think I have ; don't recollect any.
Q.—lIave you not, on several occasions, both before and since he testi-
tied. endeavored to engage him in conversation about the matter?
A. — No, Sir; I have not.

(^— Have you not been with him at Mr. Davis's room, either beloreor
since he irave his testimonv in the case ? . , ^.r.

A —I have not been with him to Mr. Davis's room since he gave the
testimony. I was there with him once before. Don't think I was there
but once.

Q.— Who was present then ? ^r -r, ^ ■ ^ a c^^P

A —Don't know of anybody but ourselves— Mr. Bostwick and myseli.
Don't know whether Mr. Davis was in his room or.not.

Q.— Have you ever been there with Bostwick when Davis was pre-

A^ —I don't recollect, Sir. I know that Bostwick and myself went up
16

sent

122

one night, to the room, to find Davis, and ray impression is that we did
not find him in.

Q. — Were you at the White Mountains at any time during last sea-
son ?

A. — No, Sir ; I have never been there.

Q. — AVere you at Walker's Lake, or the Sink of Walker's River ?

A. — I was not.

Q. — How, then, do 3'ou know that a large number of persons were as-
sembled at either of those places ? AVas it of your own knowledge, or
simply from hearsay ?

A. — It was from seeing persons start, and from sending men out my-
self, and buying provisions for them.

Q. — Who did you send out?

A. — I helped to send out a couple of men. One was named Jas. Mur-
I'ay, an Irisliman. who worked for Mr. ^fitchcll, at Mono. I don't know
what his companion's name was.

Q. — Did you help to send out any others ?

A. — No, Sir; let me think. Those were the oidy men to whom I fur-
nished any moans. There was another ]iarty that promised to take up
some claims for me. It was a large party.

Q. — What party was that ?

A. — I don't know the names of the party. There was one man in it,
by the name of Bill Day, who had come with me to Mono the year be-
fore.

Q. — Did the party leave Aurora ? '

A. — Yes, Sir.

Q. — What time did thej' leave ?

A. — During the celebrated excitement; some time in the months of
July and August.

Q. — Was it in July or August ?

A. — I can't swear to the exact date.

Q. — State the month.

A. — It was cither the latter part of July, or the first part of August ;
about that time.

Q. — How long was it after the excitement first broke out ?

A. — Within two or three days.

Q. — When did the party leave, which vou helped to fit out ?

A. — They left at the time of the Walker River excitement. I told you
that I could not recollect the dates.

Q. — Before or after the large i>arty left ?

A. — The whole thing happened about the same time ; it took place
during two or three days.

Q- — Do you know the names of any parties who left, at the time of
that excitement, for the White Mountains ?

A. — I don't know where the parties went, at that time. Don't know
of any party that went to the White Mountains during that excite-
ment.

Q- — Who was present at the time the Big Springs election returns
were opened ?

A. — Mr. Green and Mr. Worland, who composed the Board of Super-
visors, and myself, were present.

Q.— Who else ?

A. — I think that Mr. Wilson was present.

Q- — Are you sure that Wilson was present ?

A. — I am not sure about it ; my impression is that he was present.
The returns were opened in our office.

123

Q. — Wlio opened the returns?

A.— I .lon't recollect. Sir. It was either the President of the Board of
bupervisors, or the Clerk who was tending on them

Q.— Who was their Clerk ?

A.— I think it was either Mr. Wilson or Mr. DeKay.

Q.— Was there a man there, by the name of Smith, at the time the re-
turns were opened ?

A.— I do not know, Sir, that there was any such person there.

Q— ^^''i"* t'»«-'>*^' a»y ol.jeetion made by either of the Supervisors to the
countini; of the IJiif Springs vote ■/

A.— Mr. Green made some slight objection; about the propriety of
counting them, or something to that effect.

(^— What did he say ?

A. — I heard the gentleman make some objection at first, but he after-
wards gavi' way. 1 don't recollect his language.

CROSS EXAMIN-VTION.

Mr. Cdiis. — What did he say at first ?

A. — I recollect hearing him make some objection to it. I don't recol-
lect exactly the language he used in connection -with the matter.

Q. — How long were the Board in session that day?

A. — I iH-ally don't recollect. Sir. The Board of Supervisors, at that
time. I think were in session as a Board, and for the purpose of canvass-
ing the votes.

Q. — When they adjourned, to what time did they adjourn?

A. — I don't recollect that.

Q. — Were they in session more than one day ?

A. — I am not certain. My impression is they were. They were not
in session more than one day in counting these votes.

Q. — Were the votes all canvassed and counted before they adjourned
the first day ?

A. — I don't recollect. My impression is, they were, however.

Q. — Were you there the second da}' of their meeting?

A. — I don't recollect whether I was or was not. I was busy, attend-
ing to some business of my own, about that time.

Q. — IIow long were you present with the Board during the first day ?

A. — I was there princii)ally during the session. The session was held
in our office, the County Clerk's and Sherift"s offices being in the same
room.

Q. — What time in the day did the Board meet ?

A.— On that day. I <lon't recollect exactly. My impression is that
these votes were counted in the afternoon.

Q. — IIow long was the Board in session?

A. — That. Sir, I don't know; don't recollect.

Q. — Were Green and Worlaud both present from the time the Board
met until it adjourned ?

A— They were there all the time I was. Mr. Shultz, the other Super-
visor, was absent.

Q._Was you there when the Board adjourned ?

A. I think I was ; am not positive about it, however.

Q._Do you not remember that Mr. Green refused to give his consent
to have the White Mountains vote counted in ?

A.— No, Sir. I don't remember that he refused to give his consent.

124

Q. — Did you hear him consent to have them counted in?

A. — He made some objections, as I said before, and Mr. "Worhind told
him that they (the Board) had no alternative, under the circumstances,
but to count the vote ; that they were obliged to do so. I heard Mr.
Worland tell him that the votes were brought in in due ibrm. I heard
Mr. Grreen make no objection after that, and they proceeded to the count.

Q. — Were the}- then counted up, immediately?

A. — Yes, Sir; I think they were.

Q._Who by ?

A. — By Messrs. Green and Worland.

Q. — Did they make out a list of them, on a paper ?

A.— I think'the Clerk did.

Q. — Did either one of the Supervisors sign that paper?

A. — I don't recollect. Sir; did not see them sign it.

Q. — If either one of them had signed it, would you not have seen
him?

A. — No, I don't think I would. I don't recollect of anything of the
kind being done. I did not notice.

Q. — Did you see the Clerk make out the paper, and ]iut down the votes
from the ditferent precincts, in presence of the Supervisors?

A. — I do not recollect. Sir.

Q. — Have you not just stated that the Clerk di<l make out a list of
them, on pai)er ?

Q. — I don't think that 1 ilitl. There was a list kept by some of them,
as the votes were called ott". I think the Clerk kept it. The votes were
called off by the Supervisors ?

Q. — Did you hear the Supervisors call off all the votes, from all the
precincts in ^[ono County ?

A. — No, Sir. 1 did not pay attention to all of them.

Q. — Did you hear them call otf the votes from the Big Springs Pre-
cinct ?

A. — My recollection is that I did. I don't recollect distinctly that I
did.

Q. — Do you remember which one of the Supervisors called off the
votes ?

A. — I think Mr. Worland did. I don't know though, which one ; my
impression is, Mr. AVorland did.

Q. — Did Mr. Green object, at the time they were called off, to their
being counted ?

A. — I heard no other objection than that I have before spoken of.

Q. — Were you present with the Board during all the time they were
engaged in canvassing the votes?

A. — 1 was in the room ; don't recollect whether I remained there dur-
ing the whole time or not. I had other business to attend to.

Q. — Where does Mr. Green live ?

A. — He lives in Aurora.

Q. — Where did Mr. Worland live last summer?

A. — At Monoville.

Q. — Where did Judge J. A. Moultrie, now County Judge of Mono
County, reside, prior to the September election ?

A. — In Aurora.

Q.— Where did B. S. Mason live ?

A. — At Aurora, I think.

Q- — How many conversations, in all, have you ever had with J A.
Bostwick, in this city, about the White Mountain election ?

125

A. — We have spoken about it several times ; I don't exactly know the
number.

Q. — IIow many conversations have you had Avith him since he gave
evidence before the Committee ?
A. — I have had but one.

Q. — Wliere did that conversation take place ?

A. — That was the conversation I have spoken of before, on Mont-
gomery street, and that was not about the White Mountain election, but
in rej^ard to the others. That was the conversation tliat I spoke of this
mornin*;, at tlie time lie met me, in regard to Davis and Judge Quint.

(^. — llow luaiiy places or camps were there in Mono Count}^ where
provisions and miners' supplies could be obtained during last July,
August, and Soi)tember?

A. — I know of but two places; Aurora and Monoville.
Q. — Do you know wheii the Union Convention was held at Aurora, at
which Judge Maehiu was nominated?

A. — I don't recollect the exact date. I recollect the day.
Q. — J low long was it before the September election, as near as you
can state 'f

A. — I don't know, Sir.

Mr. (^nint. — JIavo vou examined the list of names of voters at the Big
Springs Trc'cinct ? If so, are there any names upon that list that you
formerly know 'f

A. — 1 have examined the list, and I find names upon it that I knew.
Q. — About how many y

A. — Several. I see the name of C. Biggs. Also, A. B. Root; I knew
a*person named Root ; don't know whether those are his initials or not;
he is one of the men who went out with James Murray, the person I
purchased provisions for during the Walker's River excitement. I see
the name of A. McFarland; knew an Andrew McFarland, who was down
in that countrv. somewhere; I don't know exactly the place. See two
names of Ik-ek; W. Beck, and Ben. Beck; knew one man by that name
in Mono but don't know his initials; one was a Tulare man. Here is
another Root ; Fred. Root ; there was a man by that name who went
down there; 1 don't know what his initials were. Think I saw the
name of Gilbert on this, when I was looking at it before ; George Gil-
bert ; I see it now ; there is a man by that name over there.

q.—Do you know where I first put up when I came from Sacramento,
on the adjournmont of the Legislature?
A.— At the American Exchange.
^fr. Cans.—WUcvc did you know these men whose names you have

just mentioned ? _ ^„, . t)- ., t i.r.^-n,r

A —I have known them in Mono County. This man, Biggs, I knew

in Tulare County, if he is the same man. This is C. Biggs ; his name is

Clinton Biggs. „ , , , . ,^_ o

Q._I)o you know where any of them were, on election day .''

o'Znow^oncr were Root and Mun-ay gone, on that prospecting trip?
A -I don't know the time, exactly; they were not gone very long.

^Z^ tl "?^ev ":;:.i^S[^tr ^er River trip a long time

'1r Q::it^^oy not go off again, after their first retuni ?
A.— i think they did. I don't know what became of Root. Murray

126

was at Aurora on election day ; I saw him there. I don't know where

Root was.

n. D. BEQUETTE.

Subscribed and sworn to, Marcli first, eighteen hundred and sixty-
two.

TESTIMONY OF ALBERT MAGARY.

Q. — Have you over resided in Mono County ? If so, when and
where ?

A. — I have resided in Monoville. I went there last April, I think.

Q. — When did you leave ?

A. — The ninth of August, I think.

Q. — Do you know of an}' great excitement in Mono County, created
just previous to your leaving, relative to gold and silver discoveries ?

A. — Yes. Before I left, there was an excitement about the Walker
mines.

Q. — Was there an excitement altout the White Mountains?

A. — There was a good deal of talk about the White Mountain mines.

Q. — What number of people went otf from Monoville, during that ex-
citement ?

A. — The way I sum it up. four hundred or five hundred people left
Mono County during that excitement,

Q. — What localities in the county have you reference to, from whicji
those people went ?

A. — I have reference to Monoville. Aurora, and the Meadows. •

Q._AVhat Meadows ?

A. — Called the Big Meadows. They are about fifteen miles from
Aurora.

Q. — To your knowledge, had any of those men who went off during
this excitement, returned, when you left the county?

A. — None, that I ever beard of

Q. — Examine the jioll list, or list of names, from the Big Sj)rings Pre-
cinct, and state whether there are any names that you recognize. If so,
how many, and who are they ?

A. — The names that I know, positively, are Murray, Root, Beck, and
Myers.

Q. — AYhen and where were they, when you last saw them ?

A. — Murray and Root had their provisions on a jack, going down the
hill from Mono.

Q. — Eor what locality ?

A. — They were going to the White Mountains.

Q. — How long was this prior to your leaving Monoville?

A. — About a week.

Q. — Did not a large portion of the others, who left, leave for the
White Mountains, also ?

A. — Well, I would say Yes.

Q. — How long have you been in this city ?

A. — I came here about the middle of October, I think.

Q. — How long have you known Bostwick ?

A. — I believe it is three years last June.

Q- — About what time did he come to this city ?

A. — About Christmas. I think I saw him first, the day before Christ-
mas.

127

Q- — Has he been here since that time ?

A. — He has been twice away, out of town, since

Q.— When was that?

A —lie went up to Sacramento, about the time of the adjournment of
the Le,i;ishiture ; the second time, about a Aveek ago.

Q.— Did you have any conversation with him about the White Moun-
tain ek'Ction. and his knowledge of the affair?

A.— Yes. Tiiere were three of us together, him and Mr. Davis.

Q. — Wlien and where was it ?

A. — I went and saw Davis, and made an appointment to meet him at
the hotel. 1 went up to Davis's room. Mr. Davis asked me first what
I knew about the White Mountains; spoke about the contested election.
I told him that 1 did not think I knew anything about it. He then
turned to Bostwick, and asked Bostwick what he knew about it; and
Bostwick said he didn't know anything.

Q. — Give me the conversation, as near as you can, which took place
between Davis and Bostwick.

_ A. — He asked Bostwick what he knew of the White Mountain elec-
tion ; said Mr. Orr was contesting his seat. Bostwick said he didn't
know anything about it.

(^. — Did you afterwards have any conversation with Mr. Bostwick,
relative to this contested election? If so, what?

A. — Bostwick went up with Davis to Sacramento, that night or that
day, and returned, 1 think, Tuesday. I asked him if he was going to
be a witness up there for Davis. He said, No; he didn't know any-
thing, and wasn't going up ; he was going otf to Nevada.

(^. — How did you come to go to Davis ?

A. — Keithly told us Davis wanted to see us in regard to the contested
election.

(^. — Did Bostwick. at any time, tell you that he was to receive money
in consideration for the testimony that he has given? If so, how
murh ■'

A. — I If told me that ho was to receive two hundred and fifty dollars.

Q. — When and where did he tell you so ?

A. — A week ago, last Sunday, in the back room of the Arbor Saloon,
on Montgomery, above California street.

CROSS EXAMINATION.

Mr. Ciivis. — When did you have your last conversation with Bostwick,
which you speak of?

A. — A week ago last Sunday, I said.

Q. — Have you not, since that time, called upon me, at the Eailroad
Exchange, in this city, to see me about the election returns which were
said to liave been lost ?

A. Myself and Mr. Bostwick had an appointment at the Eailroad

House on last Monday morning, a week ago. I met Mr. Cavis there ;
did not go to see him.

Q.— Did you have any talk with me [Cavis] at that tmie ?

A.— Yes.

Q. — What was said ? • i i j

[Mr. (^lint objects, on the ground that it is giving in evidence the de-
clarations of a partv interested, and that it is hearsay.]

Q —Did vou not,"'at that time, ask me what effect it would have in the
case if I [Cavis] could prove, before the Committee, that parties had

128

been offered money if they would get possession of the election returns
before they reached this city ?

[Mr. Quint objects to any conversation or conversations that maj^have
taken place between this witness and Mr. Cavis. Objection overruled.]

A. — I did not, in those words.

Q. — When did you first meet me, or Mr. Orr ?

A. — It Avas on Sunday. I cannot give the date. It was at the time
the Legislature had adjourned for ten days.

Q. — VVas it not after Mr. Bostwick hatl been to Sacramento with Mr.
Davis ?

A. — It was the da}' they went up. Mr. Davis introduced me to Mr.
Orr and Mr. Bostwick. at the same time. It was about nine o'clock, and
they left about eleven o'clock, on the Nevada, which took up provisions
for the sufferers.

Q. — After their return from Sacramento, ilid you have any talk with
me [Cavis] as to what Bostwick knew about the election at the White
Mountains 5*

A. — We talked of that a dozen times, I think. Whether it was before
or after, I don't know ; expect it was both.

Q. — Did you not lell me that Bostwick knew all al»out that election,
and the only way that I could get him was to have an officer go and get
him and take him directly before the Committee, and that he certainly
would tell the truth about it.

[Mr. Quint objects, on the ground that it is irrelevant, and giving in
evidence the declarations and conversations between the witness and the
part}" interested, and not being a cross examination of the witness
Objection overruleil.]

A. — No; he told me to talk with Bostwick on the subject, and with
regartl to his being a witness on tbeii* side. I said he knew all about it,
or he know nrUhing. He asked me if Bostwick would tell the truth. I
told him that I had known Bostwick for three years, and knew no-
thing against him. lie had been canying on business in Tulare.

Q. — Did I, at that time, or at any other time, ever ask you to talk
with Bostwick about the White Mountain election?

[To this the same objection is interposed as to the former question.
Overruled.]

A. — Yes ; you have told me to speak to the bo^'S from there. You told
me to feel of Bostwick. You have spoken to me several times on the
subject.

Q. — Did I [Cavis] at that time, or at any other time, ever ask you to
talk with Bostwick about the White Mountain election?

A. — Yes ; 1 have answered that once before. You told me to see
others a half dozen different times.

Q. — When did the excitement about the diggings at Walker's Lake
commence ?

A. — Some time in July, I think.

Q. — At what time, as near as you can state ?

A. — About the middle of the month ; could not exactly say that it was
in July.

Q- — Had any of the persons, who left at the time of that excitement,
returned to Monovillc before you left that place for Visalia ?

A. — Not that I know of

Q- — How many persons or parties do you know of as having left Mo-
noville, before j'ou left for Visalia ?

A. — Could not state the positive number. They were leaving every
day, more or less.

129

Q._Were you at Aurora, in the month of August, before you left ?
A— No. J was there along in the latter part of July: a coupl
eeks l)et()re. "^ ' J^

Q.— Have you been in Mono County since you left at that time ?
A. — JNo.

Q.— How many persons had left Aurora and vicinity, during that ex-
citement, before you left for Yisalia?

A.— I thought at the time that there were some five hundred or six
huMdn-d J wrote home to the effect that there was that number. Could
only tell Irom what peojile said.

^l — What was .Murray's given name?

A.— I don't know, lie was called there The Shoemaker.

V- — ^^ ''!it was'Koot's given name?

A. — That 1 don't know. Never heard it in my life.

Q. — What was Heck's given name?

A.— There were two Becks, brothers. One was named John ; the other
I don't know.

(i- — Wiiat was .Myers' given name?

A. — That I don't know.

^i- — Wlicre did you know those persons?

A.— I knew .Myrrs there; he bad something to do with horses about
the stable in Monoville. Beck 1 got acquainted with in crossing to Mono
Lake; he was mining all summer on Owens' Eiver. He left about a
week before 1 did.

<^ — Who was present at the time yon and Bostwick had this conver-
sation, that ytm have spoken of, one week ago last Sunday ?

A. — No one. We were in the back room alone. The barkeeper came
in once in a while, when we would call him.

(^. — Were you and he drinking a good deal that day?

A. — Wo drank five or six glasses of lager. We drank four times
there, and twice in-fore we went there. That is about all, 1 believe.

Q. — Was Bostwi<-k alfected any with liquor, at tliat time?

A. — No. One glass will afiect a man. He was not drunk.

Q. — Was lie not partially intoxicated at that time?

A. — He drank four or five glasses of lager beer from eleven o'clock
till about five — if you call that drunk.

Q. — How long were you and he in that saloon ?

A. — The greater part of the afternoon. Three hours, probably. It
was raining at the time, and we did not go out.

C^. — Did he tell you anything more than that he was to have two hun-
dred and fifty dollars for testifying in the case?

A.— Yes.

Q. — Did he say who was to pay it to him?

A. — It was to come from Mr. Cavis, through Keithly. Keithly had
made the arrangement.

Q. — Did he sa}' that Orr or Cavis had ever agreed to pay him any sum
of money, whatever ?

A. — We were talking about Oregon, and he said he had no money. I
said to him, •' You Avill get two hundred and fifty dollars from Cavis."
He then commenced laughing. 1 then made the remark, " You might
as well tell me about it. Keithly told me about the Avhole transaction.
That you was to get two hundred and fifty dollars from Cavis." Bost-
wick s'aid that if they did not pay him on Monday morning he would
raise hell with them. He said he would go down to the Kailroad House
that night, and see Cavis about the arrangement, for fear he might be
17

130

throwing him off. That if they did not give him the money he would
go up to our lawj-er. (he had reference to a lawyer his brother used to
employ — Pape,) and have him make out a libel — if 3'ou know what that
is. I don't — and that he would sign it, and give it to Judge Quint, and
then he would go to Oregon. I asked him to tell me what he did actu-
ally know about the election, and he said that after this was all settled
he would tell me.

Q. — Have you had any talk with him about this election case since
that time ?

A. — Yes. Talked with him frequently. No lengthy conversation,
that would amount to anything. A remark made once in a while.

Q. — Has he said anything about money matters, connected with this
case, since 5'ou had tiie conversation with him at the sitloon ?

A. — On Tuesday, I said to him, "Jack, how did you make out with
Cavis ?" He said, ' It's all gone to hell;" or something to that effect,
and turned on his heel.

Q. — Did you know S. C. Franklin, who resided in Monoville last sum-
mer ?

A. — I know a Franklin who resided there last summer; he is here, in
town. I don't know whether his name is S. C, or not. I heard that he
had testified here.

Q. — Did you know any other Franklin in ^[onoville?

A. — Not that I can recollect.

Mr. Quint. — You have been asked whether you did not ask Mr. Cavis
what effect it would have if he could prove before the Committee that
parties had been offered money if they would get ])Ossession of the elec-
tion returns before they reached this city. State whether you know of
any such offer, or have reason to believe that any such offer was ever
made by me, [Quint,] or any friend of mine.

A. — No ; I told Mr. Cavis at the time. Mr. Cavis asked me whether
it could be connected with (^uint. I told him that a man had spoken to
me about it ; that about the time the Sergeant-at-Arnis left here for Mono,
he (this man) spoke in this wa}' : " ^lac, what effect would this have on
the election?" I said I didn't know which pai-t}' had sent for the
papers ; didn't know anything about them.

Q. — What conversation occurred between you and Mr. Cavis at this
time?

A. — I told him what this man told me; don't recollect of anything
more.

Q. — How often have you consulted or conversed with Mr. Cavis about
this election ?

A. — Twenty times, probably; a good many times; could not state the
number.

Q. — When and where did you have the first conversation?

A. — The first was near the American Exchange; we then went down
to the Empire Restaurant and took dinner.

Q. — Have you frequently known a large population to be attracted to
one locality through an excitement of gold and silver discoveries? If
so, at what time, and to what extent ?

A. — I saw a great excitement in the mines, once on Michigan Bar, and
once in El Dorado. One Sunday morning, at 3Iichigan Bar. or above
there, there came from six hundred to one thousand men. The first news
we got was on Saturday night. I got there on Sunday morning, and
found a great many people ; some six: hundred.

131

Q.— How Axr (lid you live from the place ?

A. — About luur or tive miles.

Mr. Cavis.-ln the conversation you speak of as taking place last Mon-
da>' morn.ng, did you not tell me that you knew a man who had been
offeied money li ho would get possession of these election returns?

A. — -No.

ca.se"^^'''"'' "^ *"^ ^^^^''" ^*^ '"'' ^'"^*^ ^^^^ morning, about this election

A.— 1 said; before, that I did not recollect of saying anythiu<r to vou
about tlio ease since that .Monday morning. ^ J

(^.— JIuvo we ever spoken together a hSlf dozen different times, about
tins election case :

A.— Yes. I can tell you the places where we have met that often, at
least. '

Q. — H-xjilain the conversation.

A.— I spolvL- to Mr. Orr. He spoke to me first. He told me that the
papi'rs were gone. I told him that a man spoke to me about those
piijii-rs two wofks before, and that I tliought it strange they should dis-
a|)|K'ar, but that it did not much surprise me. I then asked Mr. Orr
what etlVft it would have on this election case. He had a conversation
with Mr. ('avis in regard to it, when Mr. Cavis remarked that it would
do no good uidysH we could connect Mr. Quint with it. Mr. Cavis and Mr.
< )rr, both, 1 think, told me to obtain all the information I could in respect
to the mi.ssing papers. We then parted. I then asked Bostwick whether
(rU8. Ih-onson had been out of town or not. He told me No. I then
made inquiries of others whether he had been out of town or not, (Bron-
-on was tlu' man wiio spoke to me about the papers,) and they said No.
I went and saw Brons(^n.and spoke to him about the papers. I met him
at the corner of the Bank Exchange. He said that he knew nothing
al>out tlie papers, but that he thought Jim. Coffroth had them. He said
that (^uinl was too damned afraid of his money to do anything about the
atlair. That is about all of the conversation.

Mr. llarriman. — Y'ou say that you had a conversation with Bronson
some two weeks before these papers returned from Mono, which caused
you not to be surjiriscd when 3-ou heard the papers were lost. What was
that conversation '^.

A. — l[e met me on Montgomery street one Monday morning, and asked
ine to take a walk Jij) on Telcgrai)h Hill. While walking along he told
me about this man Loehr being sent to Mono for the papers. He asked
me what advantage it would be to have those papers put out of
the way. I told him that I could not tell; that I did not know who
had seiit for the papers, and that I did not think it would amount to
much, as Dick Wilson would come over with them. He told me that
he was pretty hard up, and said that he would like to make a raise, to go
away with. He asked me how the papers could be got. I told him
that there were various ways to get them, if a man would take desperate
chances. I told him that if a man was caught at it, it would bo very
apt to send him over on the island. He remarked that he did not think
they would pay enough on either side, for a man to take those chances.
1 told him No ; that the papers were of no account to anybody, and that
the County Clerk had them with him, and knew their contents.

Q. — Where does Mr. Bronson reside?

A. — I don't know. I saw him here, a week ago.

Mr. Quint.— U.ix\e you not seen Messrs. Bronson, Keithly, and Bost-
wick, together ?

A.— Yes.

132

Q. — How often ?

A. — Quite frequentlj'. They don't travel around together. I saw them
standing on the street.

Q. — Are they not intimately acquainted ?

A. — Yes. They all lived in Mono. Keithly and Bronson lived there
the previous summer.

Mr. Cavis. — Are not Bronson and Davis acquainted ?

A. — I suppose they are.

A. MAGARY.

Subscribed and sworn to, March third, eighteen hundred and sixty-
two.

TESTIMONY OF L. A. BKOWN.

Mr. Quint. — Have you ever resided in Mono County? If so, where,
when, and how long 't

A. — I have resided at Aurora, Mono County, since September, eighteen
hundred and sixty.

Q. — What have you been engaged in ?

A. — Mining and engineering.

Q. — l)o you know of any considerable excitement in the County of
Mono, during the months of July and August, of last summer, relative
to gold and silver discoveries at Walker's liiver and the White Moun-
tains ?

A.— I do.

Q. — What number of jieoplo wont off. during that excitement ?

A. — I can't tell the numl»er. There were a good many. Some sixty
or seventy went in the party I was in.

Q. — To the best of your knowledge, what immber of people left
Aurora and vicinit}' about that time ?

A. — At the time of the excitemement we cam])ed at Walker's Lake,
and during the time we were there, there were from three hundred to
five hundred persons passed in and out. There was no definite point.
Some saiil it was at Walker's liiver, some at the AV' hite Mountains, and
some at Reese Kiver. Parties went to all these places. I was never
able to find it.

Q. — What do you mean when j'ou say you were never able to find it ?

A. — I mean that the alleged discoveries, which caused the excitement,
and which took ofi' such a number of persons from the county, were by
many thought to be at the White Mountains, and a great many went
there ; others went to the eastward of the White Mountains, and east of
Walker's Lake, where Walker's River enters it. This range of moun-
tains embraces the place where people get their salt. Many persons
thought the discoveries had been made on Reese River.

Q. — What number of votes do you think could have been polled at
any one place, during that excitement, and at the locality where the
people were attracted ?

[Objected to by Mr. Cavis.]

A. — I can't state how many votes could have been polled in any one
particular place. Men were all around in the mountains, and camped in
every gulch.

Q- — To the best of your judgment, how many votes could have been
polled ?

133

A —I think, at the time, on one clay during that excitement, and at
one locality durinir the time whilst I was out, from two hundred and fifty
to three hundred votes could have been polled.

^■—y^^'^''^ ^'^^^'c men scattered in and about the locality of which vou
speak ? J J

A— During the time I was there, parties were going and coming in
all directions. On one i)lain, about twenty miles south of Walker's Lake,
1 saw no less than twelve companies, with from five to twenty-five men.
They were going in all possible directions.

(^— Did you mean, in a former answer, that you could not find the
jnines which produced the excitement ?

A.— I could not. myself We never found the mines, except the White
Mountain mines, which were said to be discovered about that time.
The people were going in all possible directions, like a flock of geese.
, Q- — Did they, on breaking up a camp, leave any evidence of habita-
tion or residence, at ])laces where they had camped ?

A. — Nothing further than was left by camp fires, and sticks stuck in
the ground, with willows around.

Q- — IFow long did you ever camp in one locality, at a time?

A. — Either thrrc or four days; am not positive.

Q- — How long would it take to obliterate nearly all traces of any ex-
tensive camp having been made at the place Mhere you stopped ?

A. — It would take the rains and snows of the winter to obliterate
where wo stopped. We followed old Indian trails, and they were well
beaten.

(^. — Is it an unusual occurrence, in a new mining country, for a large
number of peonle to be attracted to any one locality, for a short time,
by re}>ortod gold discoveries?

A. — That is usuallv the case over there. What they call a " steam-
boat " carries away all the available force from the county.

Q. — Do they not. sometimes, as suddenly disperse, and break up?

A. — Yes, if they don't find the object for which they go.

Q. — How long were you off on this excitement?

A. — I forget the exact time; from eight to fifteen days.

Q. — Did you observe the returns in the County Clerk's office, from Big
Springs Precinct? If so, on what kind of paper were they written ?

A.— I had occasion to look over the returns represented to be the elec-
tion returns of Big Springs; can't be positive as to the kind of paper
the}- were written on ; but to the best of my knowledge it was short
letter paper.

Q. — When did vou examine them?

A. — Between t1ie first and twentieth of October; don't recollect. I
loft there on the nineteenth of October; it was some time between the
first and nineteenth.

Q._What was the comparative population of Aurora just previous to
these excitements, with what it was shortly afterwards ?

A.— Tiie population of Aurora, in July and August, was from seven
hundred to one thousand persons. A great many estimated it as high
as sixteen hun<lred. From and after these excitements our vote came
down from what it was; suppose it fell off from two hundred to three
hundred.

Q. — You speak of the town of Aurora, alone ?

A. — 1 mean Aurora — the Esmeralda District.

Q._Does the Esmeralda District embrace Monoville, or any other
voting precinct, except Aurora?

A. — it does not.

134

CROSS EXAMINATION.

Mr. Cavis. — Did you leave Aurora at the time of the breaking out of
the excitement?

A. — I loft Aurora somewhere from six to ten days after the first break-
ing out of the excitement.

Q. — AVheu did you leave Aurora ?

A. — I can't name the day of the month. It was the latter part of
July when I left, and I returned about the first of August.

Q. — How many days were you gone ?

A. — From eight to fifteen days.

Q. — At what ])lacc were you when this vote could have been polled,
which you 8])eak of?

A. — It is called the Big Bend of the Walker, Frazier's Slough, Steam-
boat City, five miles above the Lake.

Q. — AVas that about the time you first arrived at that place?

A. — It was the second or third day after.

Q. — Were not other parties returning to Aurora and vicinity at the
time you returned there ?

A. — They were.

Q. — Did 30U ever go to the White Mountains ?

A. — I have never been on what is called White ^fountain proper.
White Mountain marks the range. Have never been on the peaks.
Was in the range isome five or six 3'ears ago.

Q. — Did not jiarties leave on the White Mountain excitement and the
Walker Kiver excitement at the same time ?

A. — They left at the same time. These mines were reported to be in
the White Mountains, and they did not know where they were going.
Some went up to Mono Lake and then down to the White Mountains.

Q. — As parties were returning to Aurora, were they not coming in
as well from the direction of the White Mountains as from Walker's
Lake ?

A. — I am not acquainted with an}' parties that came in from Walker's
Lake. Still, there might have been some.

Q. — Who do you know was prospecting in the AVhito Mountains during
that excitement ?

A. — I know a man by the name of W. L. Moore; a man named Lyford.
During the time I was out, Mr. Heath was there. Don't know any
others, particularly.

Q. — Did you see them after they left Aurora, or was it about the time
they were starting out ?

A. — I saw them after they started out. and after their return.

Q. — AVas it befitre or after the September election that they returned ?

A. — I cannot tell. My impression is it was befoi'c.

Q. — At the time you saw the election returns from liig Springs Pre-
cinct, was your attention called particularly to the kind of paper they
were written upon ?

A. — It was not.

Q. — Did you ever see them at any other time than the one you have
mentioned ?

A.— No. Sir.

Q. — AVhat camps in Mono County are there at which provisions and
miners' supplies could be obtained at that time?

A. — Monoville and Aui-ora are the jmucipal points.

Q. — Were there any other places ?

A. — No others, that I know.

135

Q— How far was Walker's Lake from Aurora ?

A.-Ahout hfty miles. I,y the trail we travelled. We were oblio-ed to
go around a point of mountains « v\eie ODiiged to

a'' rJ'wT""''' ^'"' r ir' ^^^t^*" Mountains from Aurora?
A.-It yn go aemss by Mono Lake, it is fifty miles, so called
Q.— How far do they extend ? J , ^ ^cuica.

A.-The White Mountains run all the way down east of Owens' Eiver

miles" "' "" "'" ^''''''^'"-^ ''''^ ''^'^''y '^ '^' hundred and fifty

fh?;7;.^Tr'' *''^7/>7.^,«t many of those persons, who went off during
that excitement that did not return till after the September election ?^

A. — 1 am unal)le to answer that.

Q. — Were there any '{

tintoT/ T ;•""''"'' ^"^ \^^J ''''"'* ^"^^ ^^^^^^^ ^^J^ ^ere away at the
time of cloction. or not. They were going and coming all the time.

q—W hat was the diffc^rence in the population of Aurora in Septem-
ber, Irom what it was in June and July?

I ^;~'^,''^^^'''^ criterion we have was'in June. Our vote was seven hun-
dred and fifty or seven hundred and sixty; in September, it was some
two hundred and fifty less. I know it was a great falling off.

L. A. BEOWN.

Subscribed and sworn to, March third, eighteen hundred and sixty-
two. "^

TKSTI'MONY OF B. K. DAVIS.

(^. — l)i(l you ever reside in Mono County ? If so, Avhen and where?
_ A. — I resided in Monoville. Mono County, in eighteen hundred and
sixty and eighteen hundred and sixty-one.

Q- — In what luisiness were you engaged?

A. — Packing ami merchandising.

Q- — i)o you know of any considerable excitement which broke out in
Mono Count}', during the months of Jul}- and August, eighteen hundred
and sixty-one. relative to gold and silver discoveries said to have been
made at the White Mountains, and Walker's Eiver, or Walker's Lake ?

A. — I do, Sir.

Q- — What number of people left Monoville and vicinity, during that
excitement ?

A. — I should suppose from two hundred to three hundred.

Q. — Was the population of Monoville less, at the last September elec-
tion, than it was just previous to the excitement?

A. — Yes. Sir.

Q. — How much less?

A. — Two hundred less.

Q. — Did the excitement affect the population of Aurora and vicinity
in the same ratio ?

A.— It did.

Q. — Did you supply any part}^ or parties who were mining or pros-
pecting at the White Mountains, with goods?

A. — I could not say ; I was never there.

Q. — Did you supply men who went in that direction, with goods ?

A.— I did.

136

Q. — How many ?

A. — Thirty or forty persons.

Q. — Examine tlie poll list of Bii? Springs, and say whether there are
any names upon it of men whom you formerly knew in Monoville 'i

A. — There are three whom I know.

Q. — Do you know where they were on last election daj^ ?

A. — I do not.

Q. — How long was it before that, that you last saw them ?

A. — Ten or fifteen days.

Q. — What are their names ?

A. — One of them is named F. Bradley, another is named Hubbard,
and another, Collins.

Q. — Have you known of an excitement relative to gold and silver dis-
coveries, by which a large population was attracted, temporarily, to some
particular locality ?

A. — I have.

Q.— To what extent ?

A. — I can only form an idea from the number that left. 1 suppose
from six hundred to eight hundred j)ersons left that county.

Q. — Do you know Jack Bostwick ?

A. — 1 have known him since the first of last May.

Q. — Do you know S. C. Franklin i

A. — Yes, Sir.

Q. — Do 3'ou know of any other Fi-anklin in this town, with whom
Bostwick is acquainted, or with whom he has associated ?

A. — I do not.

Q. — Did he, during last summer, reside at Monoville ?

A.— He did.

Q. — Did you have any conversation with Bostwick, previous to his
testifying liofore the Assembly Committee, about what ho knew of the
White ^lountain election ?

A.— I did. Sir.

Q. — AVhere did you have the conversation ?

A. — First, in the American Exchange.

Q. — At what time ?

A, — I don't remember, exactly. It was the time the Legislature ad-
journed over from Sacramento for a week ; I don't remember the date.

Q. — What did he tell you he knew about it at that time 't

A. — Ho told me ho know nothing about the case.

Q. — What conversation oecurrod between you and Bostwick, at that
time?

A. — I asked him what he knew about the case. He said that he didn't
know anything.

Q- — What case did j'ou speak to him about ?

A. — I spoke to him about our contested election cases of the White
Mountain election.

CROSS EXAMINATION.

Mr. Can's. — What time was it last summer that this excitement, you
speak of in Mono County, commenced ?

A. — I think it was about the twentieth of July.

Q. — Did the parties who left, at the time of that excitement, leave
suddenly ?

A. — Some did, and some did not.

137

Q.— Did not the gi-eater part of those who left, leave on the breaking
out ot the oxcitoment ? °

A.— They did.
Q.— Was it at that time that you sold the goods you have spoken of?

n Ari''"'''' '^^ f, t""^' ^^'^^ ^ '^*^^^ ^^ *^'^ ^^^^y 1 ^^^^e spoken of

(i.— What was Hubbard's given name, whom 3-ou knew in Mono
County :

A. — (ieorge.

Q.— What was Bradley's?
^ A.— F. Bi-adley. He packed for me. They called him " Jack," but he
signs It F. Bradley.

Q.— Whore did you see him last, before election?

A. — In Mono.

Q. — How h)ng before ?

A. — I l)elieve it was about ten days.

Q- — What was Colhns' given name?

A.— I don't know. They called him '> Ben ;" I don't know whether it
was a nickname, or not.

Q-— What place was most spoken of at the time of that excitement?

A. — Walker's River at first, and then the White Mountains.

Q. — How long after the excitement commenced, before parties began
to return to Monoville ?

A. — I should think, from two to three weeks.

Q. — Did you know any other Franklin, who lived in Monoville last
summer ?

A. — I did not.

Q. — Where was he on election day?

A. — He was in Monoville.

Q. — Did you see him about the polls that day?

A. — 1 don't know whether I saw him about the polls that day. I saw
him in town.

Q.— What time in the day?

A. — I don't remember.

(^. — As near as you can tell ?

A. — I think, along in the early part of the day, in the morning.

Q. — Did you know the parties engaged in Crocker's store, selling
goods, iluring last summer?

A. — I knew Crocker, himself j he was there all the time.

Q. — Were you acipiaiiited with either of the parties who assisted him
in the Btore, during the summer?

A. — I know them by sight, but am not personally acquainted.

Q. — Were you at Aurora during the month of August last ?

A. — Yes, Sir.

Q. — At what time in the month ?

A. — I was there several times during the month.

Q._l)o you know where those parties went, who left during that
excitement, except from hearsay ?

A. — Xo ; I do not, positively.

Q._I)„ you know that parties were leaving for different places during
the summer time, without regard to that excitement ?

A. — Yes ; I do.

Q._Were not the people continually changing about, from place to

place, going and coming?
A. — They were.
18

138

Mr. Quint.— Do you know of any party or parties, who left the county
for good, during the summer, and*^ before the September election ?

A*?— I knew of a party who left Monoville, but whether they left the
county or not, I don't know.

Q. — Were not people coming to the county, from this side of the
Mountains and Visalia, during the summer?

A.— Yes.

jMr. Cavis. — What time in the summer was it that you knew of parties
coming there from Yisalia ?

A. — Some came on tlie day of election, from Yisalia. I only know
from hearsay.

Q. — Who came on the day of election ?

A. — Bostwick was one.

Q._Who else ?

A. — Marsh, and several others I know only by sight.

Q. — Do yon know what route they came ?

A. — I did not ask them.

Q. — Did Bostwick vote in Monovillo on election day?

A. — I do not know.

B. K. DAYIS.

Subscriliod and sworn to, March fourth, eighteen hundred and sixty-
two.

TP:STIM0NY of J. W. COFFROTII:

Q. — How long have 30U resided in Sacramento City ?

A. — Since eighteen hundred and fifty-eight I have been a resident
there.

Q. — What is j'our business or profession ?

A. — Attornc}- and Counsellor at Law.

Q. — Who is 3'our partner ?

A. — George W. Spalding; the firm is Coffroth & Spalding.

Q. — Doj'ou know K. M. Wilson, County Clerk of Mono County ? If so.
how long have you known him ?

A. — I have known liim since eighteen hundred and fift3'-five.

Q. — Are yon intimately acquainted with him. and did you know his
family in the Atlantic States?

A. — I am intimately acquainted with him. and knew his family well,
by reputation, in I.,ancaster County. Pennsylvania.

Q. — Are you acquainted with Sol. Carter and L. O. Stearns? If so,
how long have you known them ?

A. — I have known Carter between ten and twelve j^ears. I have
known Stearns since eighteen hundred and fifty-four. I might be in
error about the year, but believe it was in eighteen hundred and fifty-
four.

Q. — Where did you know them, and were you intimately acquainted
with them ?

A. — I knew them in Tuolumne County, and was intimately acquainted
with them both.

Q — Did Mr. Wilson have any professional business Avith you or 3'our
firm ? If so, did he call at 3'our office in Sacramento, on his way to this
city, relative to such business ?

A. — He had professional business with our firm, and we with him, as

139

County Clerk of Mono. He called at our office once, to my knowledge
and twice besides, by information.

Q.— While there, did you have any conversation with him relative to
this contested election ? If so, in what manner did it arise, and what was
said, as near as you can remember?

A.— I was in Court in the morning, at ten o'clock ; tried a case of about
an hour's duration. I went to the office, and was told that Wilson, Stearns,
and Carter, had been in; Wilson desired to see me. I went out, came
back, and found Stearns in the office. He told me where Wilson was. I
went there, and found him on Fourth street, about three doors from my
office. I told Wilson I was anxious to see him; that I had a judgment
and an execution against a person in Mono County, for about thirteen
thousand dollars ; that I was offered five thousand dollars, or one half, to
collect it. I wanted to know (I understood he was Recorder there,)
whether the man had any property. He said he had. Upon inquiring
for a lawyer up there, to attend to it. he recommended me to S. H. Chase.
I sent it up, for him to attend to. I also had another case. Upon inquir-
ing about this first man's property, Wilson said he had some business
with me. I asked him what it was. He said a man named Culver owed
him some costs in a case of Wadsworth vs. somebody, in Mono County.
He wante<l me to collect them. I told him to come up to the office, and
see about it ; I might go down to-day, and that we would leave it with
.^^I•. Spalding. We went up into the office, and Spalding, Carter,
Stearns. Wilson, and myself were present. After a conversation between
Wilson, Spalding, and myself, about the judgment I first mentioned,
the conversation turned upon the contested election case in the House —
Orr vs. Davis. I sai<l that I had endeavored to get the Assembly to post-
])one action till I got the returns by Mr. Wilson; but I failed. Wilson
replied, •• I have the returns with me now." " Where are they?" said I.
lie remarked, "In my pocket, I think." I asked him to let me see
them, and he said he would. My office consisted of two rooms, and we
walked into the baek, or ]n-ivate office. I sat down upon the bed, and Mr.
Wilson on a chair alongside, and pulled out his returns, and spread them
out upon the bed. I examined the returns from Big Springs Precinct,
the poll and tallv lists, and the papers pertaining thereto, for about five
minutes, I believe. Mr. Wilson asked me what I thought of them. I
replied in words something like these: "lam sorry you did not have
them in time for Mr. Davis's case." He put the poll and tally lists, I
think, back into an envelop in which they were, then made a bundle of
all the papers, rolled them up in a newspaper, put them into his pocket,
and we then walked out into the front office. When we got into the
front office, there was a conversation upon the merits and demerits of
the contest in the House; after which, we all went down stairs and took
a drink. All of us then walked down the street. I had a letter,
on business, to put in the Express office. I went there and to the tele-
o-raph office Mr. Wilson left us there, and remarked that he would see
\i' he couldn't get that money from Culver, and would go up to the office
and see if Siiahliu'r could not find him. He went back, and met us at
the Bank Exchan-'^e about one or half past one o'clock, when we walked
towards the stean'iboat landing. AYe stopped there, conversing, about five
minutes, when I bid them good bye, and left them. That is a brief his-
tory of his visit to me. and a purport of the conversation we had.

Q— Di.l you hand the returns back to Mr. Wilson, and did you see
him fold them up in the same bundle with the other papers which he had
with him ?

140

A. I handed him the returns, and he folded them up with the other

papers, and put them in his pocket. lie took away with him every pa-
per that he brought to my office ; that is, so far as my knowledge ex-
tends.

Q. — Have you seen or known anything of those returns since you
handed them back to Mr. Wilson, in your office ?

A. — I liiive not seen them, don't know where they are, and don't know
what was done Avith them.

Q. — What kind of ])a|)er were those returns written upon ?

A. — I did not closely inspect it. They were written on blue paper,
I believe letter sheets — the inside of a letter sheet.

Q. — Why are you of the opinion that they were made out on letter

paper

A. — Because raj^ attention was called to the returns by the testimony
of some man before the Assembly Committee, when I was acting as
Counsel for Mr. Davis. I looked at the paper, and fo\ind that it evidently
had been opened out; the crease was inside, and there was a close mar-
gin on the top of the ]>age.

Q. — Was the paper lt»ng, or short ?

A. — The ])ai)er was short — shorter than foolscap.

CROSS EXAMINATION.

Mr. Cavis. — Are you positive that the election returns you saw with
Mr. Wilson were written upon a sheet of blue letter pa])er'r'

A. — I am not positive it was blue letter ])aper. but I am positive it was
pajier shoi-tor than foolscap. Y(»u mean the tally ]>a|)er, of course.

Q. — Did you examine the poll book, containing the names of the vo-
ters ?

A. — Very slightly — in fact, hardly at all. I found it was a counter-
part of one I had seen in the Davis case, in the Assembly.

Q. — What kind of jiaper was that?

A. — I did not jtarticularly notice that, my attention being called to
the tally list more jiarticularl}', by the testimony of a man named Bost-
wick. They were strips of paper.

Q. — How wide weiv the strips '/

A. — Half sheets, split lengthwise.

Q. — Could you tell how many pieces there were ?

A. — 1 cannot. Five or six ; may have been more, or less. I don't
know.

Q. — Do 3'ou remember how many names were wriUeu upon the first
page, as appeared by the numbers ?

A. — I do not. My attention was directed entirely to the tally, and to
no other papers.

Q. — Were there any vacant lines upon the tally list ?

A. — Xot that I recollect, except the blank space where the names had
been written.

Q. — Did you notice any spaces upon that paper, between the tally
marks, as they were carried across the sheet ?

A. — I think the name of the office was written on one line, and the
name of the candidate on the line below. I think the name was Evans.

Q. — How was it with the candidates for Governor ?

A. — I don't know. Sir.

Q. — How was it with Davis ?

A. — I think Davis's name came on the tally list before the name of
Mitchell. Mitchell was about the last.

141

Q._Was his namcvrittcn upon the same line as the words which
designated tlio othee for which he received votes ?

A.— 1 think not. I think the word "Assembly" was above Davis's
name ; on the hne above.

Q- — ^^'a« that the same way in the case of Mitchell?

A. — I don't know.

Q. — llow was it in the ease of Judge Quint?

A.— 1 think the word "Senator" was just opposite to Quint's name
on the same hue with his name. '

(^— Did Wilson take the papers, you examined, out of an envelop in
your prcsc'iico ? ^

A.— lie took the tally paper out; whether he took the poll book out
I can't say. I know ho took the tally paper out. '

Q.— Did he put tiie tally list back again, in your presence, into the
same enveloi) ?

A. — Yes, Sir.

Q. — What were the other papers rolled up in ?

A. — They were rolled up in a newspaper, I believe.

Q. — Did he open that newsj)aper and put the envelop into that pack-
ago, or did he roll a newspaper around that package and the envelop ?

A. — All the pai)ers he had were lying open, on a newspaper, spread
out on the bed. lie gathered up the pa])ers, together Avitli the envelop
containing the tally paper, rolled them up together, then took the news-
paper and wrapped it around tliem.

Q. — Dili you notice whether the newspaper was torn any at the end of
the bun<lle, as it was wrapped around the ]iapers?

A. — I did not. lie had not tinished bundling it up as I started. He
finished lnindliiiir it up, and followed me into the front office.

Q. — Where did he ]iut the bundle?

A. — He put it in his overcoat pocket; in his side pocket.

(^. — Have you not had counsel with Judge Quint relative to his con-
tested seat in the Senate?

A. — Yes, Sir; I might answer that I am emjiloyed as adviser and
Counsel in the case.

JAMES W. COFFEOTH.

Subscribed and sworn to, March fourth, eighteen hundred and sixty-
two.

^FFID^VITS,

TAKEN TO BE USED IN THE CONTESTED ELECTION CASE, WHEREIN J. M.
CAVIS IS CONTESTANT, AND LEANDER QUINT RESPONDENT.

DEPOSITION OF GEOEGE McQUADE.

State of California, |

Couiity of Tuolumne. |
George MeC^uade, being duly sworn, deposes and says: That he has
been a resident of the State of California hince eighteen hundred and
forty-nine. That he became a resident of .Mono County in June, eight-
een hundred and sixty, and resided there from that jjc-riod up to Octo-
ber, eighteen liundred\iind sixty-one. That he was engaged wiiile there
in merchandising. Tiiat he was. and is, well acquainted with the differ-
ent localities and jirecincts in said county, having his ]>rincipal place of
business at Monoville, in said county. That he traded and sold goods to
persons in ditterent and various localities throughout the county, and
among them the Big Springs or White Mountain Precinct, in said county.
That he sold to and suj)plied some twenty or thirty companies of men,
who were mining in that locality and precinct, said companies averag-
ing from tive to thirty men each. That he was supplying said companies
during the summer of eighteen hundred and sixty-one. That said sup-
plies were furnished, as aforesaid, until after the general election in Sep-
tember last, and until a short time previous to leaving said county for
the winter. That he knows of other companies of miners in that loca
ity, who were supplied with provisions by other merchants, from Mon<
ville and other places. That from his knowledge of the inhabitants oi
the precinct, he should say there were over five hundred legal voters in
said precinct, and that the return.s, as canvassed and declared by the
Board of Supervisors of said county, he believes to be honest and bona
fide.

GEORGE McQUADE.

Sworn and subscribed to before me this twenty-ninth day of Novem-
ber, eighteen hundred and sixty-one.

C. E. H. WHEATOX,

Justice of the Peace.

143

State of California, |

County of Tuolumne. J

I hereby certify, that C. E. H. ^Yheaton, before whom the within in-
strument was made and executed, and who has thereunto subscribed his
name, was, at the time of so doing, a Justice of the Peace, in and for the"
county aforesaid, duly sworn and commissioned, and that his sicruature
thereto is genuine. I further certify, that the said affidavit is made and
executed in accordance with the laAvs of the State of California.

In witness whereof I have hereunto signed my name and affixed the
seal of the County Court of the county aforesaid, at Souora. this twenty-
fourth day of December, eighteen hundred and sixty-one.

E. E. GAEDINER, Clerk.
By 1. J. PuTTKR, Deputy Clerk.

DEPOSITION OF THOMAS LEONAED.

State ok California, |

(Juunty of Tuolumne, j
Tliomas Leonard, being duly sworn, deposes and says: That he has
been a resident of the State of California some ten years, and a resident
of Mono County during all of the year, up to the first of November,
eighteen hundred and sixty-one. Was engaged as a Clerk in the employ
of George Mc(^uade, who was engaged in the mercantile business in said
county. That while ho engaged he visited the different precincts and
localities in said county, and ]>articularly the Big Springs Precinct, in
said county. That during the summer of the year eighteen hundred
and sixty-one there was considerable excitement at that precinct and
locality, in eonseiiuence of new mineral discoveries, and there was a large
population located and gathered in and about that precinct and vicinity.
And that he knows, of his own knowledge, that there was a large popula-
tion at that precinct on or about the first of September, eighteen hun-
dred and sixty-one; at least from five to seven hundred; who were citi-
zens of said county and legal voters of said precinct. That he delivered
goods to ditlerent companies who were at work at said precinct, num-
bering from five to twenty men in each company, and some ten or fif-
teen companies, to which he delivered goods. That said precinct em-
braces a large extent of territory, the nearest voting precinct being some
*>ighty miles distant. That if all the legal voters had voted at .said pre-
^*inct at the last general election, they would have exceeded the number
Veturned and canvassed by the Board of Supervisors of said county.

THOMAS LEONAED.

Sworn to and subscribed before me this thirteenth day of December,

eighteen hundred and sixty-one. ^^^^

^ C. E. H. WHEATON,

Justice of the Peace.

State of California, |

County of Tuolumne, j
I hereby certify, that C. E. H. Wheaton, before whom the within in-
strument was made and executed, and who has thereunto subscribed his

144

name, was, at the time of so doing, a Justice of the Peace, in and for the
county aforesaid, duly commissioned and sworn, and that his signature
thereto is genuine. I further certify, that the said affidavit is made and
executed in accordance with the laws of the State of California.

In witness whereof, I have hereunto signed my name and affixed the
seal of the County Court of the county aforesaid, at Sonoru, this twenty-
fourth day of December, eighteen hundred and sixty-one.

11. E. GAEDINER, Clerk.
By I. J. Potter, Deputy Clerk.

DEPOSITION OF C. E. II. WIIEATON.

State of California, \

County of Tuolumne, j
Charles E. II. Wheaton, being duly sworn, deposes and says : That ho
is now, and has been, since the year eighteen hundred and forty-nine, a
resident of Tuolumne County. That he has acted in an official capacity
during the most of that time, is now a Justice of the Peace in and for
said county, and is well acquainted, from personal observation, with the
different voting precincts and localities of said county. That he has an
extensive circle of acquaintances, and jwssesses all the means and facili-
ties for acquiring correct information as to matters taking j)lace in said
county, or interesting the inhabitants thereof That he is ])ersonally ac-
quainted with the County of 3Iono, and with a great number of the in-
habitants thereof, having resided in said county from about the fifteenth
of July, eighteen hundred and sixty-one, till immediately previous to the
general election in September last. That he returned to Mono County
immediately after said election, and acted as agent for parties in San
Francisco, Tuolumne, and other counties. Monoville is the next voting
precinct adjoining that of Big Springs or White Mountain. Is well ac-
quainted, through ])ersons of uiupiestionable reliability, with the voting
precinct known as the Big Springs or White Mountain Precinct. Is per-
sonally acquainted with several persons of strict integrit}' residing and
owning mining claims in said precinct. While at Monoville, sold goods
to a large amount for said precinct. Is himself interested in mining
claims in said precinct. Has had conversations before and after the last
general election, with reliable parties, who had been residents of said
precinct at the time of the election aforesaid, and has no hesitation in
saj'ing that there were, for some time previous and subsequent to the last
general election, not less than from six hundred to one thousand legal
voters residing and voting in the Big Springs or White Mountain Precinct,
in said Mono County.

C. E. H. WHEATON.

Subscribed and sworn to before me this second day of January, eight-
een hundred and sixty-two.

E. E. GARDINEE, Clerk.

145

DEPOSITIOX OF D. T. DONNELLA.

State of California, ")

Count}- of Tuolumne, j
I). T. Donnella, beinir dul}- sworn, deposes and says : That he has resided
in the State of California since the spriug of the year eighteen hundred
and tifty, and in the County of Mono two summers, of the years eighteen
hundred and sixty and eighteen hundred and sixty-one. That he has
been mining in Monoville, and is acquainted with the various and differ-
ent localities and precincts in said county. That he is acquainted with
the locality of the Big Springs Precinct, "and knows that there was great
excitement at that phice. about the time of the election in September,
eighteen hundred antl sixty-one, in consequence of new mineral discov-
eries in that locality. That a great many left Monoville for that place,
and that from the great immigration to that precinct, he believes, from
information received and generally entertained in Monoville, that there
must have been some seven or eight hundred inhabitants in that vicinity,
and i-esideuts of said county, and legal voters of said precinct.

D. T. DONNELLA.

Sworn and subscribed to before me this twentieth day of December,
eighteen hundred and sixty-one.

C. E. H. WHEATON,

Justice of the Peace.

Statk of California, ")

County of Tuolumne. )

I hereby certify, that C. E. II. Wheaton, before whom the within in-
strument was made and executed, and who has thereunto subscribed his
name, was. at the time of so doing, a Justice of the Peace, in and for the
county aforesaid, duly commissioned and sworn, and that his signature
thereto is genuine. I further certify, that the said affidavit is made and
executed in accordance with the laws of the State of California.

In witness wlu-reof I have hereunto signed my name and affixed the
seal of tlie County Court of the county aforesaid, at Sonora, this twenty-
fourth day of December, eighteen hundred and sixty-one.

E. E. GAKDINEE, Clerk.

By I. J. Potter, Deputy Clerk.

DEPOSITION OF JOHN McGENTY.

State of California, "I

County of Tuolumne. ^

John McGenty, being duly sworn, deposes and says: That he became

a resident of Mono County, in the State of California, in May, eighteen

hundred and sixty, and has been a resident of said county ever smce^

That he is now, temporarily, residing in the City of Sonora. That he

146

resided at Moiioville, in ilono County, and that Le is well acquainted
with a large portion of said Mono County, and the inhabitants thereof,
and particularly the Big Springs Precinct and locality. That it is a
quartz and placer mining locality, and that during last summer, and up
to the time of holding the general election of eighteen hundred and
sixtj^-one. there was considerable excitement in that vicinity, about the
mines, and tliat there was a large number of men went from the vicinity
where atfiant resided, to that locality ; and affiant says, of his own knowl-
edge, that about the time of said general election, there was a large num-
ber of people in that precinct, not less, as affiant believes, than five hun-
dred, who were citizens of the county, and legal voters at said precinct.

JOHN" McGENTY.

Sworn and subscribed to before me this twenty-ninth day of !Xovem-
ber, eighteen hundred and sixty-one.

C. E. U. WIIEATON,

Justice of the Peace.

State of California, |

County of Tuolumne, j

I hereby certify, that C. E. II. Wheaton, before whom tiie within in
strument was made and executed, and wlio has thereunto subscribed his
name, was, at the time of so doing, a Justice of the Peace, in and for the
county aforesaid, duly commissioned and sworn, and that his signature
thereto is genuine. I further certify, that the said affidavit is made and
executed in accordance with the laws of the State of Calitornia.

In witness whei-eof, I have hereunto signed my name and affixed the
seal of the County Court of the county aforesaid, at Sonora, this twenty-
fourth day of December, eighteen hundred and sixty-one.

K. E. GARDINER, Clerk.
By I. J. Potter, Deputy Clerk.

DEPOSITION OF ROBERT FRENCH.

State of California, ")

County of Tuolumne, j
Robert French, being duly sworn, deposes and says : Tliat he has re-
sided at Monoville, in Mono County, from about the first of April, eight-
een hundred and sixty-one, until the fall of the same year. That he is
now stopping, temporaril}-, at the City of Sonora. That in the spring,
or fore part of summer, he passed through what is known as the Big
Springs Precinct, in Mono County. That at that time there was quite
an excitement relative to new discoveries of gold and silver, which had,
about that time, been made in that locality. That there was a large
number of people there, from four to five hundred, and knows that the
population continued to increase up to the time of the election. That
he knows of parties who went there before the election, from Monoville,
and were there on election day, and bona fide residents of said Mono
County; and. from what he knows of the precinct, and the people of
that vicinity, he has no doubt that the votes returned as cast at the gen

147

enil election, are correct. The precinct is lar^e, and not within eighty
or one hundrccl miles of any other precinct in the county.

EGBERT FEENCH.

Sworn and subscribed to before me this twenty-first day of November
eighteen hundred and sixty-one. '

C. E. H. WHEATON,

Justice of the Peace.

St.\tk of Camform.^, I

County of Tuolumne, j

I hereby certify, that ('. E. 11. Wheaton, before whom the within in-
strument was made and executed, and who has thereunto subscribed his
name, was, at the time of so doing, a Justice of the Peace, in and for the
county aforesaid, duly s'worn and commissioned, and that his signature
thereto is genuine. 1 further certify, that the said affidavit is made and
executed in accordance with the laws of the State of California.

In witnoss whcri'of. I have hereunto signed my name and affixed the
sral (d'the County ( 'uurt of the county aforesaid, at Sonora, this twenty-
fourth day of December, eighteen hundred and sixty-one.

E. E. GAEDINEE, Clerk.
By I. J. PoTTKR. Deputy Clerk.

DEPOSITION OF JOHN A. FEY.

State of Cali forma, )

County of Tuolumne, j
John A. Fry. being duly sworn, deposes and saj'S : That he resided in
Mono County. State of California, from the first of May until about the
tenth of Novemlier. eighteen hundred and sixty-one. That he was occu-
])ied in mining, in Mttnoville, in said county, and is acquainted with the
different precincts in that county. Knows of the Big Springs or White
^lountain Precinct. That there was considerable excitement at that
place, about the time of the general election in September, eighteen
hundred an<i sixty-one. That he knew of many who left Monoville for
that vicinity, and from the general opinion, as expressed by those
returned from that precinct, in Monoville, there were some four or five
hundred legal voters, and all had not the opportunity of voting, which
would have increased the vote, as canvassed by the Board of Super-
visors. And it was generally believed that the vote, as returned to the
said Hoard of Supervisors, was correct and bona fide.

JOHN A. FEY.

Sworn and subscribed to before me this twenty-ninth day of Decem-
ber, eighteen hundred and sixty-one.

^ C. E. H. WHEATON,

Justice of the Peace.

State op California, )

County of Tuolumne, j
I, E. E. Gardiner, County Clerk, in and for Tuolumne County, do

148

hereb}^ certify, that C. E. H. Wheaton, whose genuine signature is affixed
to the foregoing instrument, is a Justice of the Peace, in and for
Tuohiinne County, duly elected and qualified, and authorized by law to
take such affidavit, and that full faith and credit are due all his official
acts, as such Justice of the Peace.

Witness my hand, and the seal of the County Court, affixed at Sonora,
this second day of January, eighteen hundred and sixty-two.

R. E. GARDINEE, Clerk.
By I. J. Potter, Deputy Clerk.

DEPOSITION OF A. M. A. liROWN.

State of California. \

County of Mono, j

A. M. A. lirown, being duly sworn, dejjoses and says: That he is a
resident of said county, and was, at the time of the general election of
eigh.teen hundred and sixty-one, a resident of the White Mountain Dis-
trict, and was present at the said election in said district. And that,
from the best information, knowledge, and belief, of this deponent, there
were over seven hundred jjcrsons ]tresent, who ])ai'ticipated in the said
election at what is known as the Big Springs HIcction Precinct, in said
district. That this affiant is, and was at said election, a John R. McCon-
nell adherent, an<l that he did not vote for the contestants for Senatorial
honors, (either L. (^uint or J. M. Cavis, or any other person,) for the
reason that he knew no one of the candidates, and nothing of their
capabilities to tlischarge the duties of said office. Deponent saith that
he verily believes, from his knowledge of men, their associations, habits,
and collection, there must have been the number of men assembled
aforesaid, and that at least five hundred men ardently jjarticipated in
said election. And further deponent saith not.

A. M. A. BROWN.

Subscribed and sworn to before me this second day of January, eight-
een hundred and sixty-two. Witness my hand and official seal.

L. O. STERNS,

Notary Public.

DEPOSITION OF LARKIN ROBINSON.

State of California, ]

County of Tuolumne, j
Larkin Robinson, being dulj^ sworn, deposes and nays: That he has
been a resident of the State of California since about the year eighteen
hundred and fifty, and a resident of Mono County, in this State, for some
two years, and is now temporaril}- residing in Tuolumne County. That
during his residence in Mono County he was frequently at what is
known and called the Big Springs Precinct, or White Mountain Precinct,

Ireo lu-t' "Th-vTr; -T^T'^ f/''^ ^^"'^^^' '^^ '^^^' voters at Xt
piecintt lluvt he is interested in mining claims there, and was fre-
quentlv there during the summer of eighteen hundred and six'y-one
^f I nn 1 A'l T -^ ^'V7'' 1^"^"^^^-^^' '^■^'' tliere were from hVe to
^^ Th-ntr^-'''''^ '^T' that voting precinct, and who are legal
voters. Hut there is no other voting precinct within from eighty to
one hundred nu es. That, had all who were entitled to vote at that
precmct voted at the last general election, there would have been from
six hundred to one thousand votes polled. That there were no printed
!nn fl 1 ^'^/"^^' at said precinct; that they were written upoA paper
mostly taken from blank books. ill

LAEKIN EOBINSON.

Sworn and subscribed to before me this thirty-first day of December,
eighteen hundred and sixty-one.

C. E. n. WHEATON,

J ustice of the Peace.

State of California,

Count}- of Tuolumne. J

I, li. K. (tardiner,

^''*, County Clerk, in and for Tuolumne County, do
hereby certify, tiiat C. E. II. Wheaton, whose genuine signature is affixed
to the foregoing instrument, is a Justice of the Peace, in and for Tuol-
umne County, duly ek-cted and qualified, and authorized by law to take
such affidavit. an<l that full faith and credit are due all his official acts as
such .hi>(ice of the Peace.

Witness my hand and the seal of the County Court, affixed at Sonora,
this second day of January, eighteen hundred and sixty-two.

E. E. GAEDINEE, Clerk.
By I. J. Potter, Deputy Clerk.

DEPOSITION OF N. B. BIGGS.

State of California, \

County of Tuolumne, j
N. B. Biggs, being dul}' sworn, dejiosesand says: That he has resided
in the State of California since the year eighteen hundred and fifty-one.
That he ix-sided in Mono County from the first of May to the second of
October, eighteen hundred and sixty-one. That he is well acquainted in
Mono County, and knows the different precincts, and the inhabitants
thereof That he is acquainted with the precinct known as Big Springs
Precinct. That he was in Monoville at the last election, in September,
eighteen hundred and sixty-one. That he knows there w^as great ex-
citement in said Big Springs Precinct, in consequence of new mineral
discoveries there, and thinks there were, in that vicinity, four hundred
or five hundred inhabitants, at the time of said election. That he con-
siders the votes, as canvassed by the Board of Supervisors of said

150

county, legal and correct. That he was a bona fide resident of said
coiinty'at fhe time of said election, and believes the returns of said pre-
cinct to be just and correct.

•^ N. B. BIGGS.

Sworn and subscribed to before me this ninth day of December,
eiirhteen hundred and sixty-one.
" C. E. H. WHEATON,

Justice of the Peace.

State of California, )

County of Tuolumne. |

I hereby certify, that C. E. II. AVheaton, before whom the within in-
strument was made and executed, and who has thereunto subscribed
his name, was. at the time of so doing, a Justice of the Peace, in and
for the county aforesaid, duly commisssioned and sworn, and tiiat his
signature thereto is genuine. I further certify, that the said attidavit is
made and executed in accordance with the laws of the State of Califor-
nia.

In witness wliereof I have hereunto signed my name and alHxed the
seal of the Count}- Court of the county aloresaid. at Sonora, this twenty-
fourth da}' of December, eighteen hundred and sixty-one.

R. E. GAllDINEIi, Clerk.
By I. J. Potter, Deputy Clerk.

DEPOSITION OF J. T. CAMPBKLL.

State of CALiFctRxiA, ]

County of Mono. |
Personally appeared before me, L. O. Sterns, Notary Public in and
for said County of Mono, State of California, on the second day of Jan-
uary, eighteen iuindrcd and sixty-two, J. T. Camj)bell, who, V>eing first
duly sworn, saith on oath : That for the past two seasons he has been a
resident merchant of the Town of Monoville, in said county and State.
Thut during the summer and fall of eighteen hundred and sixty-one, he
furnished a large amount of provisions and supplies for the region of
country in said county known as the White Mountain District, and dur-
ing tliat period, and for a long time previous, had intercourse and com-
munication with the inhabitants of that portion of said county. That
to the best of affiant's knowledge and belief, there must have been over
one hundred electors in said White Mountain District ; and within one
hundred miles of said district, over eight hundred voters. That during
that period of time this affiant was a merchant aforesaid. He was
only one out of nine or ten merchants, residents of said Town of Mono-
ville, as aforesaid. Further deponent saith not.

J. T. CAMPBELL.

Subscribed and sworn to before me this second day of January, eight-
een hundred and sixty-two. Witness my band and official seal, at the
Town of Aurora, county and State aforesaid.

L. O. STERNS,

Notary Public.

151

DEPOSITION OF J. D. PATTEESON.

State of California, ]

City iiiul County of San Francisco, j
J. I). Puttorson, bciiit,^ duly sworn, deposes and says : That he is the
Sheritr of Tuolumne County, and lias been such Sheritf for over two
years last i)ust. That some'time in October last, from the eighth to the
tenth, there were some papers left at his office, by some person — he
tiiiiiks, S. Jones — to bo served upon L. Quint. That said papers were
the notice of contest, etc., in the case of Cavis vs. Quint. That at the
time said pa|)ers were so left, the said Quint had been absent several
da^-s from the county. That he had started for Mono County, and had
])robably ivachoil said ^lono Count}' before the papers were delivered to
attiaiit. That he told the party who left or delivered said papers, that if
he would pay the fees for serving them, he would either go over or send
over and have them served. That he declined so to do, and the papers
were never served. That the said (^uint returned from Mono County to
Tuolumne County about the twenty-third of October.

J. D. PATTEESOK

Sworn and subscribed to before me this twenty-second day of Febru-
ary, eighteen hundred and sixty-two.

F. J. THIBAULT,

Notary Public.

REPORT OF COMMITTEE ON ELECTIONS,

OF THE ASSEMBLY,

IN TUE

MARIN CONTESTED ELECTION.

ALEXANDER GORDON, Contestant,

AGAINST

ARCHIBALD C. McALLISTER, Respondent. .

REPORT.

Mr. Speaker: — Tho Committee on Elections, to whom was referred
iho case of Alexander Gordon, contesting the election of Archibald C.
McAllister as Member of the Assembly from Marin County, beg leave to
report :

That they have carefully examined a large mass of documentary evi-
dence. Hul)mittod by the contesting parties, for the purpose of proving
that ilk'gal votes were cast for Member of Assembly in Marin County,
at the last general election.

It is alleged by tho Contestant, that a number of illegal votes were
cast, chiefly at the Gallinas Precinct, in consequence of which, Mr. Archi-
bald C. MVAllister was declared, by the proper authority, to be duly
elected 3fember of Assembly from Marin County.

It apjH'ars I)}- the poll list, and is also proved by depositions submitted
in evidence, that only seventy-two persons in all voted at the Gallinas
Precinct at the last general election.

Tho testimony also shows, conclusively, that only seventy-two persons
voted at the said ])recinct for Member of Assembly; that of these, sixty-
nine voted for McAllister, and three voted for Gordon ; and that no votes
were cast for any other person for Member of Assembly.

Tho evidence shows who the three persons were who voted for Mr.
Gordon. Hence it follows, that as only seventy-two persons voted at
the Gallinas Precinct, and as seventy-two votes were cast for Member of
Assembly, that all illegal votes cast for Member of Assembly at said pre-
cinct, other than the" three votes cast there for Mr. Gordon, must of
course have been cast for Mr. McAllister.

It ai>pears from tho evidence, that one of the three votes cast at said
precinct for Mr. Gordon was illegal; and that besides these, there were
fourteen illegal votes cast for Member of Assembly, which, as before
shown, mustliave been cast for Mr. McAllister. .„ , ^ ^^ a ^

Besides these, it is shown that there were seven illegal votes polled at
other precincts : of which, three were cast for Mr. McAllister, and four

for Mr. Gordon. , , ^ j.x. • „+„

Other illecral votes were proved to have been cast at other precincts,
but as the Committee were not able, from the evidence, to determine for
whom they were cast, they were set down as doubtful. After deducting

the number of illegal votes set down as doubtful, from the number of il-
legal votes clearly proved to have been cast for Mr. McAllister, thereby-
giving to him the benefit of all the illegal votes set down as doubtful,
the result shows that Mr. McAllister received twelve illegal votes, and
that Mr. Gordon received five illegal votes.

By rejecting all the illegal votes, proved to have been cast for each of
the contesting parties, from the whole number of votes cast for them, as
shown b}' the official returns, the Committee find that the number of le-
gal votes cast for each of the parties is as follows :

For Archibald McAllister 507 votes.

For Alexander Gordon 513 votes.

Giving Mr. Gordon a majority of six legal votes over Mr. McAllister.

A question appears by the evidence to have been raised in reference
to one vote, ottered at the Novata Precinct after the polls were closed —
it being contended that the sun had not set, as the light was yet shining
on a high hill, some two miles distant. The officers of election decided
that it was ah-eady sundown, and refused to receive the vote, which
it is shown would have been cast for Mr. McAllister.

Should it be deemed proper to count this vote for him, Mr. Gordon
would still have a majority of five legal votes over Mr. McAllister.

All of which is respectfully submitted.

TITiTON of San Francisco,
JOHN YULE,
C. MACLAY,
C. B. POUTER,
EDWARD EVEY.

I concur in the foregoing report, so far as it goes, but think it should
be stated that both parties were prevented from taking further testi-
mony, because of the expiration of the commission.

G. W. SEATON.

TESTIMONY TAKEN BY COMMISSION

IN THE

MARIN CONTESTED ELECTION.

ALEXANDER GORDON, Contestant,

AGAINST

ARCHIBALD C. McALLISTER, Respondent.

SUBMITTED WITH THE REPORT OF THE COMMITTEE ON ELECTIONS,

OF THE ASSEMBLY.

APPOINTMENT OF COMMISSIONERS.

State op California, )

Couuty of Marin. )
To James T. Stocker and William S. Hughes:

Whereas. Alexander (Jordon, of said county, is about contesting the
election of Archibald C. McAllister, to tlie office of Member of Assembly
from said county, and has duly tiled liis statement in the Clerk's offico
of the District Court. Seventh Judicial District, for said county, setting
forth the grounds upon which he intends to rely.

Now, therefore, in conlidence of your ]irudenco and fidelity, I have
appointed you, and by these presents do appoint you, Commissioners, to
meet at the Court House in San liafael, on Friday, the first day of No-
vember, A. D. eighteen hundred and sixty-one, at ten o'clock, a. m., of
said day. and then and there, from day to day, if necessary, wc authorize
and empower j-ou to take the depositions of such witnesses as the parties
to the contest may wish to examine.

Witness my hand and seal of said District Court, this seventh day of
October, A. D. eighteen hundred and sixty-one.

DANIEL T. TAYLOE, Clerk.

[Seal of Seventh Judicial District Court.]

COMMISSIONEES' EETUEN.

The execution of the foregoing commission will appear from the
schedules, depositions, and papers hereto annexed; and we certify that
said examination was adjourned from day to day, by consent, as is re-
quired by statute.

JAMES T. STOCKEE,
WILLIAM S. HUGHES,

Commissioners.

KOTICE OF CONTESTATION.

To Daniel T. Taylor, County Clerk of the County of Marin; to Archibald C.
McAllister, and all other Citizens and Electors of said County.

I, Alexander Gordon, a citizen and elector of said County of Marin,
hereby i^ive notice that I intend to and do hereby contest the election of
the said Archibald McAllister, to the office of Member of Assembly of
the .State of California, for and from the said county. The ground on
which said contest is made is, that the said Archibald McAllister did not
receive a majority of the legal votes cast in said county for said office.
That I, Alexander Gordon, received for said office a larger number of
legal votes than the said McAllister. And I state and specify that many
of the votes cast and counted for the said McAllister for said office, in
said county, and without which he w^ould not have received a certificate
of election, were cast by persons not legally entitled to vote for said
office, in said county.

ALEXAI^DEE GOEDON.

Dated October 4, 1861.

State of California, )

County of Marin, j

Alexander Gordon bein^ duly sworn, deposes that he has read the
foregoing papers, signed by this Deponent, and knows the contents
thereof, and that the same is true in substance and matter of fact.

ALEXANDEE GOEDON.

Subscribed and sworn to before me this fourth day of October, eight-
een hundred and sixty-one.

DANIEL T. TAYLOE, Clerk.

rindorsed— Filed October fourth, eighteen hundred and sixty-one.
•■ Daniel T. Taylor, Clerk.]

Filed November first, eighteen hundred and sixty-one.

W. S. HUGHES,

J. T. stockee,

Commissioners.

Clerk's Office, Pistrict Court, "j

Marin County, October 7th, 1861. j
Archibald C. McAllister, Esq. :

Sir : — You are hereby notified that your election, on the fourth day of
September, A. D. eighteen hundred and sixty-one, to the office of Mem-
ber of the Assembly, has been contested, and I herein transmit to you a
copy of the statement of the party contesting. A commission to James
T. Stocker and "William S. Hughes, Esqs., Justices of the Peace in and for
Marin County, has been issued, to take depositions in said case, on Fri-
day, the first day of November, eighteen hundred and sixty-one, at ten
o'clock, A. M., at the Court Ilouse in San liufael.

DANIEL T. TAYLOR,
Clerk of the District Court of Marin County,

Sheriff's Office, \

Marin County, )
I hereby certify that I did ser\'e the original notice, signed by D. T.
Taylor, County Clerk of Marin County, and the within being a true copy
of the same, on the within mentioned A. C. McAllister, together with a
certified copy of the statement of Alexander Gordon, on the eighth day
of October, A. D. eighteen hundred and sixty-one, in the County of
Marin.

S. D. DOUB,
Sheriff of Marin County.
San Rafael, Marin County, October 8, 18G1.

[Indorsed — Copy of Notice. Filed October ninth, eighteen hundred
and sixty-one.

D. T. Taylor, Clerk.]

Filed November first, A. D. eighteen hundred and sixty-one.

W. S. HUGHES,
J. T. STOCKER,

Commissioners.

TESTIMONY

IN THE MATTER OF THE CONTESTED ELECTION BETWEEN ALEXANDER
GORDON AND ARCHIBALD C. McALLISTER.

Alexander floRDo.v, Contesting,")

and V

A. C. McAllistkk, Defending. )

H. S. Lovo appearing for Alexander Gordon ; and
Thomas II. Hanson for A. C. McAllister.

It is acceded by the contesting party that Alexander Gordon is, and
was at the time of the election, a qualified elector and citizen.

A. C. McAllister admits that the statement on file was filed within the
time declared by statute.

Eespondent, A. C. McAllister, objects to any further proceedings in
this matter, upon the ground that the statement is insufiicient, and that
he has not specified with sutficient clearness the grounds upon which he
relies.

State of California, )

Marin County. )
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, against Archibald C. McAllister, Kespondent.

DEPOSITION OF WILLIAM V. EVANS,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a comniission
issued out of the Clerk's office of Marin County, by the Clerk thereof,
and by said Clerk directed to the aforesaid Justices; which said com-
mission is attached to the depositions taken in this matter.
2

WILLIAM V. EVANS, SWORN.

Q. — Where do you reside ?

A. — At Point San Pedro, this county.

Q. — Where did you reside before the last general election ?"

A. — In Fairfax Gulch.

Q. — Did you attend election that day ?

A. — Yes, Sir.

Q. — In bow many precincts ?

A. — I attended and voted at Corte Madera, beinfj in the Mission, and
took a drink or two. They told mo I was there. No doubt I was there.

Q. — Do you know Stephen Peter ?

A. — I know a good many. Have known Stephen Peter — worked for
me.

Q. — Did Stephen Peter vote at the hvst gcnei-al election ?

A. — I think he voted, but I am not certain.

Q. — AVhat made you think Stephen Peter voted?

A. — I think he was challenged ; am not positive.

Q. — Who gave Stoj)lien Peter the ballot which ho took to the poll?

[Objected to — implies the fact not proved.]

Q. — Who gave him the ballot ?

A. — I suppose I gave him one ballot. Whether he voted that or not, I
cannot say.

Q. — Did the ballot you gave Peter have a name of a Member of Assem-
bly on it for Marin County ?

A. — The one I gave him was a full ticket.

Q. — Whose name was on the balhjt you gave him ?

A. — A. C. McAllister's, for Member of Assembly.

Q. — Did you see Stephen Peter at any other poll that day ?

A. — Not to my recollection.

Q. — Do 3-ou know a man by name Antonio Ablia?

A. — I know a boy, Antonio McGee Ablia, in San Luis Obispo.

Q. — Did 3'ou see Antonio McGce Ablia the last election day which was
held the last time ?

A. — Can't say whether I saw him or not.

Q. — Did 3'ou take him to the polls at Corte Madera that morning?

A. — I did not take any one to Corte Madera.

Q. — Did he go with you in the same wagon 'i

A. — Can't say whether he was along or not.

Q. — Did you see him at the polls that day, or not ?

A. — I am not positive.

Q. — Did you try to get him to vote on the fourth September last, at
Corte Madera ?

A. — I am certain not. Not the jnan I am speaking about. I did not
try to get any one to vote with that name.

Q. — Did you see any one at Gallinas. of that name ?

A. — I don't recollect anything; I was too drunk.

Q. — How old is this man, Ablia?

A. — He was in " fortj'-nine" a good chunk of a boy.

Q- — Do you know how old he was last September ?

A. — My judgment is that he was twenty-two or twenty-three years
old.

CROSS EXAMINATION.

Q — You said you was pretty drunk that day ?

A.— I was pretty drunk that day, and day before. I don't remember
exactly what transpired tliat day.

RE-DIRECT EXAMINATION.

(^— Did you get so drunk 3^ou did not recollect anything ?

A.— I did get pretty drunk. Don't remember anything!

^^ — Wiiat Ablia is that you have been speaking about?

A.— The one I am speaking about is Antonio McGee Ablia, born and
brought ii|) in 8an Luis Obispo.

Q.— Did you see, at the general election held on the fourth of Septem-
ber last, at the polls, any other person by the name of Ablia except An-
tonio McGee Ablia? ^

A.— Yes. I did.

(^ — What was that Ablia's first name?

A. — I think it was Antonio, but I am not sure. I saw a boy at Corte
Madera the last general election day, that calls himself Ablia. Don't
think Ablia went in company with me to Corte Madera; I don't know.
Did not take him to the polls. I took two men to the polls, but I did
not 800 them vote. One of their names was Williams, and the other
.Stephen Peter. I don't recollect a thing that occurred at the polls of
(lullinas.

CROSS EXAMINATION.

My opinion is that three or four of the votes I took there, Mr. A. Gor-
don got.

[The Counsel of Gordon objects to the above, as being the opinion of
the witness, and moves to strike it out.]

Q. — You stated, in your opinion Gordon got three or four of the votes
that you took to the ])olls. Do you know who got them ?

A. — I am not positive.

Q. — Who got reter's vote — Gordon, or McAllister?

A. — Can't say.

WILLIAM V. EVANS.

State of California, \

Marin County. J"
We, the undersigned, Justices of the Peace of Marin County, and Com-
missioners duly appointed, in the matter of the contested election be-
tween Alexander Gordon, Contestant, vs. Archibald McAllister, Eespond-
cnt. do hereby certify that the above is a true and correct statement of
the'testimony given by William V. Evans, on the first day of November,
A. D. eighteen hundred and sixty-one, in the Marin County Court House,
who, ailer having the same read to him, and made all corrections re-
quired, signed th^ same in our presence. ^ ^ HUGHES

J. T. STOCKEE,

Commissioners.

State of California, |

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Eespondent.

DEPOSITION OF BENTON J. SHIPPING,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
issued by the Clerk of said county, and directed to the aforesaid Justices;
which said commission is attached to the depositions taken in this
matter.

BENTON J. SIIIPPINO, SWORN.

I reside at Point San Pedro, in Marin County. I attended the elec-
tion at (Jallinas Precinct. I was there as Challenger. Know Stephen
Peter, by sight. Ho was at the polls at Gallinas the last fourth of
September. Ho voted there, and 1 challenged him, and ho swore in his
vote.

Q. — Do you know what ticket he voted ? Do you know who he voted
for as Member from Mai-in County ;*

[Objected to, as irrelevant and immaterial.]

A. — I did not see his ticket, but 1 saw it was given to him.

Q. — Do you mean by that, the ticket you saw given him was the ticket
he voted 'i

[Objected to, as leading.]

A.— Yes. Ho voted the ticket that I saw was given to him. William
V. Evans gave him llic ticket.

Q. — Could you tell, by appearance, whether it was a Republican or
Democratic ticket ?

A. — 1 could not tell, but I judged it to be a Democratic ticket, from
the person who gave it to him, from the outside. Evans brought him
there about two or three o'clock in the afternoon. Evans was election-
eering for the Democratic ticket. I saw a boy, by name Antonio Ablia,
there. Antonio Ablia voted there that day. He came there in company
with William V. Evans. When he voted, he came in company with
Evans, and I challenged his vote. He went away, and came back and
swore his vote in. lie came with Evans and Peter. 1 judge him to be
tifteeu or sixteen years old. I saw William V. Evans give him the ticket
that he voted. I did not see the inside of the ticket ; saw the outside
of it. It was rolled up. All the tickets looked alike, and 1 only judged
by the outside that it was a Democratic ticket. Evans was tliere, elec-
tioneering oil the Democratic side. 1 did not stay long there, only about
half an hour after Evans came there. Evans usually goes by the name
of " Texas Jack." I voted there that day myself

Q. — Did you vote, on the fourth of September last, at the general
election, at the precinct held at Gallinas, for Member of Assembly to rep-
resent the County of Marin ; and, if so, who did you vote for?

[Objected to. The Respondent's Counsel objects to so much of the
above question as is in the words following: '"and, if so, who did you
vote for?" upon the ground that the question is a secret.]
A. — I did not vote for Alexander Gordon.

CROSS EXAMINATION BY RESPONDENT'S COUNSEL.

I was olcctioneerinnr for the Republican side

to L^y^Mr K^'st '''^ "''^' '''''' '''''' '''^'' ^^- the one given

A. — I do not know.

Q— Could he not have changed the ticket given to him by Evans for
some o her ticket which he voted, without your noticing it /

-Jn.r'H ?T t"^ """^ '■^'''''1^-° '^- ^^^'^•' ^^^' A'^tonio Ablia before or
since that day. ^ever saw Stephen Peter before or since that day.
Saw nobody el.so offer him a ticket, except Evans. I offered some tickets
that dav. Two ot my tickets were received. I threw them round
there. I recollect Ablia distinctly, because I challenged him. I don't
know how ho voted. I took Ablia's and Stephen Peter's names down
on the fourth of September. I don't know where Stephen Peter or An-
tc^HO Ahha rosidrd. I took their names down when they put in their
votes. Abha might have changed his ticket after he went away, but
rotor did not change his.

RECALLED BY RESPONDENT'S COUNSEL.

Q.— Were you subpaMiaed to attend this examination, or did you
voluntarily appear?

A. — I caniu hero on business.

CROSS EXAMINATION.

C^ — Did Mr. Gordon request you to appear and be a witness ?
A. — Yes.

B. J. SHIPPING.

State of California, ]

Marin County. )
We, the undersigned. Justices of the Peace of Marin County, duly
appointed Commissioners in the matter of the contested election,
wherein Alexander Gordon is Contestant, and Archibald C. McAllister
liespondent, do hereby certify that the above is a true and correct state-
ment of the testimony as given by Burton J. Shipping, on the first day
of November, eighteen hundred and sixty-one, at the Court House at
San Rafael, county aforesaid, who, after hearing the same read to him,
and made all corrections required, signed the above in our presence.

WM. S. HUGHES,

Commissioners.

State of California, )

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, against Archibald C. McAllister, Respondent.

DEPOSITION OF PETER K. AUSTIN,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices of

the Peace of Marin County, aforesaid, in pursuance of a commission is-
sued out of the Clerk's office of Marin County, by tlac Clerk thereof, and
by the said Clerk directed to the aforesaid Justices; which said commis-
sion is attached to the depositions taken in this matter.

PETER K. AUSTIN, SWORN.

I reside in San Eafael, Marin County. I attended the poll at the gen-
eral election on the fourth of September last.

Q. — At which precinct ?

A. — At Callinas part of the day. and part of the day at San Eafael.

Q. — Did 3'ou vote?

A. — Yes; at Gallinas Precinct.

Q. — Did you vote for a Member of Assembly, to represent Marin
County this year ?

A.— Yes, 1 did.

Q. — Who did you vote for at that place ?

A. — For A. (fordon.

Q. — Do you know of an}- other person who voted for Alexander Gor-
don for Member of Assemlily. at that election, at Gallinas Precinct, and
if so, whom ?

A. — I do. It was Alexander Vandernooth.

Q. — Do you know the witness, Charles E. Ijind ?

A. — I do. lie was at the Gallinas Precinct on that day.

Q. — Did you or not, on that occasion, give him a ballot, or did you or not
take a ballot which he lield in his hand ; and if so, state fully everything
in reference to the ballot, and what was done, if anj-thing?

[Respondent's Counsel objects, being a leading ([uestion.]

A. — 1 did not give him the ballot; 1 took it from him and gave it back
to him ; I mean I did not give it to him in the tirst instance. I scratched
out one name; am not sure if it was Conness or McConnell, and wrote
Stanford's name with a lead pencil on the ballot, and then gave it back
to Lind. He started to put it in the ballot box, and went round the
house in the direction of the poll, but I did not go after him to see
whether he put it in or not.

Q. — Was there, or was there not, on that ticket on which you wrote
the name of Stanford, and then gave to liind, the name of any person
who was running for the office of Member of Assembly, to represent the
County of Marin in the Legislature ?

[Respondent's Counsel objects, upon the ground that it is immaterial
and irrelevant, until it is first shown that that ballot was voted by Lind.]

A. — There was.

Q. — Whose name was it?

[Same objection as to the previous question.]

A. — Archibald C. McAllister Avas the way, I think, it was printed.

CROSS EXAMINATION.

Q. — Were you electioneering for Mr. Gordon ?

A. — Yes. I electioneered for Mr. Gordon and for the whole ticket.

Q. — Are the relations between you and Mr. McAllister of a friendly
character, or otherwise?

A. — Otherwise. They are unfriendly.

Q- — Upon the night of the third of September, was there not a per-
sonal collision between you and McAllister, in which heavy blows were
struck on both sides, with fists and sticks ?

T •'^^"'^I^'T '7"'- I.^^"°pt stute, or pretend to state, what ballot Mr.
L.nd voted. I particularly noticed the names of the county officers on
that ticket. I also noticed particularly the name of the candidate for
Member of Assembly^ I noticed it particularly, and think it was Archi-
bald t . McAllister. It may have been A. C. McAllister. I can state
upon oatU po.sitively, that no other name was pasted over McAllister's'
(^— Ilow do you know that Mr. Vandernooth voted for Alexander
Gordon :

A.— I placed the vote in his hand, and saw him put it in the ballot
box. 1 am as certain of this as of any fact that I have testified to. I
am certain that Mr. Alexander Vandernooth voted for Mr. Alexander
Gordon at the last ^^eneral election, at Gallinas Precinct, because he

called my attention to the fact that he did not want to vote for Mr. ,

but Hcratched his name off, and I saw him vote the ticket with Alexan-
der (ionhdi's name on it.

(l- — Was his vote challenged ?

A. — Yes, it was; and he swore his vote in.

p. K. AUSTIN, RECALLED.

Q- — You Stated, in substance, in your previous examination, that you
voted for Mr. Gordon, and electioneered the whole ticket. Why Avas it
that you did not fjet Charles E. Lind to vote the whole Kepublican tick-
et, instead of votini^ only for Stanford ?

[IJespondcnt's Counsel objects, for the reason that it is no proof what
ballot was voted by Mr. Lind, and the question assumes the fact proved.]

A. — I did try to ^et him to vote the whole of the Eepublican ticket,
but he would not; and I asked him, as a friend to me, to vote for Stanford
and Ciordon, but he would not. He said he would vote for Stanford, and
that he would vote the balance of the Democratic ticket.

CROSS EXAMINATION.

(^. — You say Lind said he would vote for Stanford, and the balance of
the ticket he would vote for the Democrats. Do you pretend to say that
you know what ticket he (Lind) actually did vote?

A. — I do not, of my own knowledge.

RE-DIRECT EXAMINATION,

Q. — Oid Lind ever tell you what ticket he voted, or who he voted for,
at the last general election ; and if so, state what he did say on that sub-
ject ?

[Respondent's Counsel objects, because it is immaterial and irrelevant.]
A.— lie told me that he voted the ticket that I put Stanford's name on.
He told me that, various times since the election.

CROSS EXAMINATION.

Q.— Did not Mr. Lind, at the same time, tell you that he had scratched
some of the names on that ticket ?

A. — No, Sir. At no time. . r- .ti. ?

Q._Were you subpcenaed to attend as witness in this matter (
A.— No. I came here at the request of Mr. Gordon.

RE-DIRECT EXAMINATION.

Q. — At the time Lind told you he voted the ticket on which you wrote
the name of Mr. Stanford, what else did he nay on that suhjoct, if any
thing, and when and where did you hold the conversation with him?
State particularly. •

A. — Since he was subpoenaed to attend this examination, one day we
were walking down from our dinner, and wanted to know if I gave his
name to Gordon ; he said it must have been some Ilepublican ; he could
not see what they wanted to hurt him for; that he was as much Ilepub-
lican as Democrat. He said. " You know I voted for Stanford." I said
I did, if he voted the ticket I gave him. He said he did. That is the
substance of what ho said on that subject at that time. I could not state,
exactly, any other time and place, but we were together considerable
many times, and had various conversations on that subject. The last
conversation we had is fresh in my mind — was only about four or five
days ago.

Q. — State whether or not you arc positive as to the conversation be-
tween Lind and yourself, which occurred about four or five days ago?

A. — I am positive.

CROSS EXAMINATION.

Q. — Who else was present at that conversation, which occurred four
or five days ago ?

A. — No one. Wo were walking down from dinner together.

Q. — Was any one else ]>resont besides yourself and Lind at any of the
various conversations, as you before stated ?

A. — I think not. lie seemed to be delicate about speaking about it
before anybody else. He did not seem to show any delicacy when
speaking with mo alone, as I was his friend.

P. K. AUSTIN.

State of California,

Marin County.

We, the undei-signed, Justices of the Peace of Marin County, duly
appointed Commissioners in the matter of the contested election, wherein
Alexander Gordon is Contestant, and A. C. McAllister Respondent, do
hereby certify that the above is a true and correct statement of the tes-
timon}'. as given by P. K. Austin, on the first day of November, A. D.
eighteen hundred and sixty-one, at the Court House in San Rafael, Marin
Count}', who. after hearing the same read to him, and made all the cor-
rections required, signed the above in our presence.

WM. S. HUGHES,
J. T. STOCKER,
Commissioners.

State of California, )

Marin County. |
Before James T. Stocker and William S. Hughes, Esquires, Justices of

the Peace of said count}-, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, against Archibald C. McAllister, Respondent.

DEPOSITION OF CHARLES E. LIND,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices

of the Peace of Marin County, aforesaid, in pursuance of a commission
issued by the C leric of said county, and directed to the aforesaid Jus-
> tices; which said commission is attached to the depositions taken in this
matter.

^ CIIAELES E. LIND, SWORN.

(^ — Where do you reside ?

A. — In San Rafael, in Marin County.

(i>.— Did yon vote at the last i;eneral election?

A.— Yes.

C^.— At what ])recinct ?

A. — At (lallinas.

(^— I)i<l y(m vote the full ticket?

[Jtesnondent's Counsel objects.]

A.— b<jn't know the meanini; of a full ticket. The only name I no-
ticed on the ticket was Stanford's. Mr. Stanford's name was put on the
ticket. I think it was the ticket Mr. Austin gave me, on which ticket
fome name was scratched out, and Stanford's name put on.

(^. — How long have y«>u been in the United States?

A. — .Miout fourteen or tifteen years.

Q. — How old were you wiien you came ?

A. — Aliout eighteen or nineteen years.

Q. — Have you ever been naturalized ?

A.— Yes.

i^. — Where were you naturalized?

A. — In Sonora.

C^. — How many papers have vou got?

A.— One.

(^. — How many times have you been before the Court to get your
j>:ipers ?

.\. — Twice. I got my last papers in San Francisco, and they kept the
lirst.

[A certificate of naturalization, issued out of the District Court of the
United States, under the seal thereof, dated seventeenth September,
eighteen hundred and si.\ty-one, and this is the certificate referred to.]

CROSS EXAMINATION.

The ballot which I received I cannot say whether I voted or not.

DIRECT EXAMINATION.

Mr. P. Austin was not the man that scratched out a name and put
Stanford's name on the ticket I voted.

il — Was there more than one vote in your possession on that day with
another name scratched out and Stanford's written on?

A. — There was only one vote in my possession that day with Stanford's
name on, and in place of some one's scratched out.

CROSS EXAMINATION.

Q._State if three or four persons did not, upon that day, approach
you with various ballots, and desire you to vote ?
A.— Yes.

Q. — Can you now, at this moment, recollect which one of these ballots
you did vote ?

A. — I cannot tell exactly which one it was. I only know that Stan-
ford's name was on it.

Q. — Can you state whether or not Stanford's name was -vyritten on
more than one of the printed tickets that you received on that day?

A. — It was only one that was written.

Q. — Did 3'ou put in the written or printed one '!

A. — Tlie written one.

Q. — Was your vote challenged '{

A.— No.

Q. — Can you state with certainty who gave you the ticket you voted?

A. — Mr. J. Dixon. I think, and not Mr. Austin, as I stated above. I
think I um cei-tain it was nut Mr. Austin.

Mil. Ll.M) HEC.M.LKl) HY UKSPONDENT'S COUNSEL.

Q. — Did you, at an}- time, state to Mr. P. K. Austin, what ballot you
voted at the last general election ?

A. — 1 did not. 1 am quite positive of that.

CHARLES E. LIND.

State of C.vi.iK(tH.M.\, )

Mai-in County. )
"We, the undersigned, Justices of the Peace of Marin County, duly ap-
pointed Commissioners in the matter of the contested election, wherein
Alexander Gordon is Contestant, and Archibald C. McAllister llesj)ond-
ent, do hereby certify that the above is a true and correct statement of
the testimony as given by Cbarles H. Lind, on the second din' of Novem-
ber, A. D. eighteen hundred and sixty-one. at the Court House in San
Rafael, Marin County, who, alter hearing the same read to him, and
made all corrections required, signed the same in our presence.

WILLIAM S. HUGHES,
J. T. STOCK ER, i

Commissioners.

State of California, )

Marin County, f
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF J. L. VAN REYNEGAN,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in ])ursuance of a commission
issued b}' the Clerk of said county, and directed to the aforesaid Justices;
which said commission is attached to the depositions taken in this
matter.

J. L. van REYNEGAN, SWORN.

I know the last witness on the stand. I was Inspector of Election at
Corte Madera. I did see William V. Evans there. I recollect Stephen

Peter's name, and I know him by sight. The boy I mean voted there
and swore his vote in. I can't tell what time he voted, but I believe he
voted about eleven o'clock. He came with Mr. Evans and another man.
lie had one ballot, so near as I could see, and one only; and that one he
])ut in the ballot box. I could not tell from the appearance of the ballot
which jKirty he voted for. 1 am not acquainted with the boy Ablia, and
only recollect him by sight. The boy Ablia was brought up to vote, but
did not vote ; was challenged. He did not give his age. When the boy
was brought up, I asked him in Spanish, so well as I could, if he was
twenty-one years old. He said not. I should take him to be sixteen
years old. He did understand what I said to him. He answered me
- No."

CROSS EXAMINATION.

The first day I saw Stephen Peter was on the fourth day of September,
eighteen hun<lred and sixty-one. I saw Ablia for the first time the same
day. Have soen Stephen Peter twice since. Have never seen Ablia
since. Stejilu'n Pett'r said he was twenty-one years old, and swore to it.
The boy Al)lia ilid not vote.

J. L. VAX REYNEGAN.

State of California, )

Marin County. )
We, the undersigned, Justices of the Peace of Marin County, duly
apjjointed ('orninissioners in the matter of the contested election, wherein
Alexander (iordon is Contestant, and A. C. McAllister Respondent, do
hereby certify that the above is a true and correct statement of the tes-
timony as given by J. L. Van Re3'negan, on the second day of Novem-
ber, A. I), eighteen hundred and sixty-one, at the Court House at San
Jiafael County, aforesaid, who. having the same read to him, made all
corrections required, and signed the above in our presence.

WM. S. HUGHES,
J. T. STOCKEK,

Commissioners.

State of California, ]

Marin County. |
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAUister, Respondent.

DEPOSITION OF TERESA ESPINOSA,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices of
the Peace of -Marin County, aforesaid, in pursuance of a commission is-
sued out of the Clerk's office of Marin County, by the Clerk thereof, and
by said Clerk directed to the aforesaid Justices; which commission is at-
tached to the depositions taken in this matter.

TERESA ESPINOSA, SWORN.

Q —Where did you live on the fourth of September last ?
A.— I lived on Ross" Ranch, in San Rafael Township.

Q. — State whether or not you attended the general election held on the
fourth of September last ?

A. — Yes, I was tliere. I was at Gallinas Precinct.

Q. — Did 3'ou vote at that precinct ?

A. — Yes, I did.

Q. — Whore was you born ?

A. — I was born in Mexico, in the State of Sonora.

Q. — When did you come to California?

A. — I came to California in eighteen hundred and fifty-three.

Q. — Is this the first time ?

A. — Yes, the first time.

Q. — Did you ever become an American, or naturalized citizen ? ■

[Objected to by Kcspondent. (Question waived.]

Q, — State whether or not you have ever lieeii naturalized as a citizen
of the United States '(

[Ul)jected to by the Respondent's Counsel, because the party has testi-
fied that he has voted, and he is not bound to answer any question, the
answer to wliich may criminate him.]

A. — I have not.

Q. — IIow old are you ?

A. — Twenty-five years old.

Q. — Is your father living ?

A. — He is not.

Q. — Did your father ever live in California ?

A.— No.

CROSS KXAMINATION.

I arrived here in eighteen hundred and fifty-three. I am twenty-five
years of age. His

TERESA i^i ESPINOSA.
mark.

State of California,

Marin County.

We. the undersigned. Justices of the Peace of Marin County, duly
appointed Commissioners in the matter of the contested election, wherein
Alexander Gordon is Contestant, and A. C. McAllister is Respondent, do
hereby certify that the ab(n-e is a true and correct statement of the testi-
mony as given by Tcivsa Kspinusa, on the second day of November,
A. D. eighteen hundred and sixty-one, at the Court House at San Rafael,
count}- aforesaid, who, having the same read to him, made all corrections
required, and signed the same in our presence.

W. S. HUGHES,
J. T. STOCKER,
Commissioners.

State of California, |

Marin County. J
Before J. T. Stooker and William S. Hughes, Justices of the Peace of

said county, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Respondent.

DEPOSITION OF SACRAMENTO GALA VESA,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices

of the Peace of Marin County, aforesaid, in pursuance of a commission
issued by the Clerk of said county, and directed to the aforesaid Jus-
tices ; which commission is attached to the depositions taken in this
matter.

SACRAMENTO GALAVESA, SWORN.

I am tliirty-nine years of age, or thereabouts. I was born in the State
of Sonora. in the Republic of'Mexico. I came to the United States in
the year ei<,'hteen hundred and forty-nine. I am net sure of the day,
butltliink I came in the latter part of May. Since I came, I have
lived in three or four ditferent places, but all the time in this State ever
since I came hero. I lived, on the fourth day of September last, on Mr.
Koss' ranch, in San Rafael Precinct, County of Marin. «.

Q. — Did you vote at the last general election, held on the fourth of
Septeml»i-r ?

A. — Yes ; I voted.

Q._At what plaee?

A. — At (iailinas Precinct.

Q. — Have you, or not, ever been naturalized as a citizen of the United
States ?

[Respondent's Counsel objects; that the party may criminate himself
The Court instructed the witness he need not answer the question un-
less ho chose. The witness declined answering the question. The
Counsel for Gordon offered to prove by the witness that he was not
naturalizeil, and requested their Honors, the Justices, to compel the
witness to answer, which they declined to do.]

Q. — Why do you retuse to answer the last question?

A. — I cannot answer that question.

Q. — Why do you decline to answer that question ?

A. — I decline to answer that question.

[The Court sustained the witness, upon the ground, that in answering
be might criminate himself]

CROSS EXAMINATION.

Q. — Was it not in the year eighteen hundred and forty-eight that you
came to California?
A.— No.

Q._Miirht it not have been in the year eighteen hundred and forty-
eight, instead of eighteen hundred and forty-nine ?

A.— No.

His

SACRAMENTO ><! GALAYESA.
mark.

State of California, )

Marin County. )
We the undersigned. Justices of the Peace of Marin Countv, duly
appointed Commissioners in the matter of the contested election,
wherein Alexander Gordon is Contestant, and Archibald C. McAllister
Respondent, do hereby certify that the above is a true and correct state-
ment of the testimonv as given by Sacramento Galavesa, on the second
dayof November, A.' D. eighteen hundred and sixty-one, at the Court
House at San Rafael, county aforesaid, who, after hearing the same read

to him, made all corrections required, and signed the same in our

presence.

W. S. HUGHES,
J. T. STOCKER,

Commissioners.

State of California, i

Marin County, j
Before James T. Stoclcer and Wni. S. Hui^hes, Justices of the Peace of

said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Kespondent.

DEPOSITION OF AMBROSIO CABRERAS,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Goi-don, Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
issued by the Clerk *of said count}-, and directed to the aforesaid Jus-
tices; which said commission is attached to the depositions taken in this
matter.

AMBROSIO CARRERAS, SWORN.

Q. — What is }-our age ?

A. — I am thirty-eight years old.

Q. — Where were you born 'f

A. — In Mexico, in the State of Sonora.

Q. — When did j'ou come to California?

A. — I arrived here in the last part of eighteen hundred and forty-eight
or tlu' beginning of eighteen hundred and forty-nine. I came direct
from Mexico here.

Q. — Have you ever been naturalized as a citizen of the United States?

[Objected to by Respondent's Counsel, on the same grounds, and the
same ruling was made as in the same question to the previous witness;
and the same offers made b}' the Counsel for Gordon.]

Q. — Where did you reside on the fourth of Si'])tembt'r last ?

A. — I lived at that time in my house, in San Rafael Township.

Q. — Did you vote at the last general election, held on the fourth of
September last ?

A. — Yes, I did ; at Gallinas Precinct. I am a citizen of the United
States, and I got my papers since eighteen hundred and fifty-two. I
don't know what county.

9. — How many times did you go before the Court to get your natural-
ization papers ?

A. — I never went before any Court to get any papers.

Q. — Have you got any naturalization papers?

A. — I have not got any now.

Q. — Did vou ever have any naturalization papers ?

A.— I had.

Q. — Where did you get them, and who gave them to you ?

A. — When I was living in Amador, in eighteen hundred and fifty-two,
I went for my papers to a Justice of the Peace, and he gave me my
papers.

Q. — Are those the naturalization papers to which you refer ?

A. — Yes, they are the papers.

Q.— What has become of the papers that the Justice of the Peace gave
you ? °

A. — T have lost them ; they were robbed from me.

(i.— Have you been naturalized in any other way than by a Justice of
the Peace, as before stated y

A.— I never was. and I was told that it was sufficient.

(^.— Dill your father ever live in the United States?

A.— No.

CROSS EXAMINATION.

I lived in the State of Sonora, in Mexico — in the southern portion of
Sonora.

(^. — Mi.ixht you not be mistaken in regard to the time you came here ?
Might it not be in eighteen hundred and forty-seven?

[Objected to, as incompetent and inadmissible.]

A. — No; I am not mistaken.

(^. — Did you ever, since your arrival here, declare your intention to
retain voiir character of a Mexican citizen ?

A. — I did not intend to remain a Mexican citizen.

RE-DIRECT EXAMINATION.

I lived in Guaymaa, in Sonora, while I lived in Mexico.

CROSS EXAMINATION,

(^. — Do you know the difference between a Justice of the Peace and
a District Judge ?

A. — Yes ; I know the difference.

(2- — What is the difference?

A. — I think the Justice of the Peace has not the same power as the
District Judge.

AMBROSIO CAEEERAS.

State of California, ]

Marin County. J
We. the undersigned, Justices of the Peace of Marin County, duly ap-
pointed Commissiuners in the matter of the contested election, wherein
Alexander (Jordon is Contestant, and Archibald C. McAllister Eespond-.
ent, do hereby certify that tiie above is a true and correct statement of
the testimony given by AmbrosioCarreras, on the second day of Novem-
ber, A. D. eighteen hundred and sixty-one, at the Court House at San
Eafael. counU- aforesaid, who, having the same read to him, made all
corrections required, and signed the same in our presence.

^ W. S. HUGHES,

J. T. STOCKEE,

Commissioners.

State of California,

Marin County.
Before J. T. Stocker and William S. Hughes, Justices of the Peace of

said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Eespondent.

DEPOSITION OF MANUEL GONZALEZ,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon. Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
issued out of the Clerk's office of Marin County, by the Clerk thereof,
and by him directed to the aforesaid Justices; which said commission is
attached to the depositions taken in this matter.

•MANUEL tJONZALEZ, SWORN.

I am thirty-eight years old. I was born in New Granada. I came
to Califoiiiia in tlie year eighteen hundred and forty-three — I mean eight-
een hundred and tifty-lhree. I live at jtresent on the lioss Ranch, in San
Rafael Township. I did vote at the general election, on the fourth of
September last. I votrd at the (Jallinas Prcciiict. T am not an Ameri-
can citizen. I am a citizen of New Granada, where I was born.

His
MANUEL X GONZALES.
niai-k.

State of California. ]

Marin County. |
We, the undersigned. Justices of the Peace, duly appointed Commis-
sioners in the matter of the contested election, wherein Alexander Gor-
don is Contestant, and Ar('hil)ald C. McAllister Respondent, do hereby
certify that the above is a true and correct statement of the testimony
given by Manual (ionzales. on the second day of November. A. I), eight-
een hundred and sixty-one, at the Court House at San Rafael, county
aforesaid, who. having the same read to him, made all corrections re-
quired, and signed the same in our presence.

WM. S. HUGHES,
J. T. STOCKER,

Commissioners.

State of California. )

Marin County. )
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF PATRICK HOLLAND,

said Clerk directed to the aforesaid Justices; which said commission is
attached to the depositions taken in this matter.

PATRICK UOLLAXD, SWORN.

I reside in Bolinas, in this county. I voted last September, at the
general election, in Bolinas Precinct.

Q. — Did you vote for a Member of Assembly?

A. — I do not know. Could not say whether any name was scratched
off my ticket. Did not examine it.

Q— Did you see Mr. McAllister's name on the ticket ?

[Objected to by the Respondent's Counsel, upon the ground that it is
not right to ask the witness to state how he voted.]

^l — Was Mr. McAllister's name on the ticket that you voted ?

A. — I decline to answer that question.

[The Court decide that they have no power to compel him to an-
swer]

Q. — Where were you born ?

A. — III Ireland. Was twenty-three years old when I came to the
United States. Will be five years in the United States next March.

Q. — Which ticket did you vote — the Republican or Democratic ?

A. — I could not swear to it.

Q. — Who gave you the ticket ?

A. — C(»uld not say who gave me the ticket I voted.

(^. — Did you come directly from Ireland to the United States?

A.— Yes.

Q. — Have you remained here ever since your arrival ?

A.— Yes.

PATRICK HOLLAND.

State of California, \

Marin County, j
We, the undersiirned. Justices of the Peace of Marin County, duly ap-
pointed Commissioners in the matter of the contested election, wherein
Alexander Gordon is Contestant, and Archibald C. McAllister Respond-
ent, do hereby certify that the above is a true and correct statement of
the testimonv given bv Patrick Holland, on the second day of Novem-
ber, A. D. eighteen hundred and sixty-one, at the Court House at San
Rafael, county aforesaid, who, after hearing the same read to him, made
all corrections required, and signed the same in our presence.

^ ^ W. S. HUGHES,

J. T. STOCKER,

Commissioners.

State of California, )

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said countv, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Respondent.

DEPOSITION OF JOSE SILYA,

A witness produced, sworn, and examined, in this matter, Oji f^e p^^^
of Alexander Gordon, Contestant, before the aforenamed Justices of the
4

Peace of Marin County, aforesaid, in pursuance of a commission issued
out of the Clerk's office of Marin County, by the Clerk thereof, and by
said Clerk directed to the aforesaid Justices ; which said commission is
attached to the depositions taken in this matter,

JOSE SILVA, SWORN.

I am thirty-three years old. I was born in Chile, in South America.
I came to California in eighteen hundred and fifty-three. I came to Cali-
fornia by way of the Sandwich Islands. I lived, on the last fourth of
September, at Eo.ss' Ranch, in San Kafael Township. I voted at Galli-
nas Precinct, on the last fourth of September, at the general election.

Q. — Are you, or are you not, an American citizen ?

A. — I don't know whether they allow mo to be a citizen or not.

Q. — You have stated, in your last answer, you don't know whether
they Avill let you be a citizen or not. Have you ever tried to become a
citizen of the United States, by going before a Court and swearing that
you would sn]>port the Constitution of the United States ?

A. — I decline answering that question.

[The Court decides that the witness is not compelled to answer that
question.]

His
JOSE X SILVA.
murk.

State of California, |

Marin County. )
We, the undersigned. Justices of the Peace of Marin County, duly ap-
pointed Commissioners in the matter of the contested election, wherein
Alexander (Jordon is Contestant, and Archibald C. McAllister Respond-
ent, do hereby eertify that the above is a true and correct statement of
the testimony as given by Jos*^- Siiva. on the second day of November,
A. D. eighteen hinulred and sixty-one. at the Court House, at San Pafael
County, aforesaid, who. after hearing the same read to him, made all cor-
rections requiied, and signed the same in our presence.

WM. S. HUCHES,
J. T. STOCKER,
Commissioners.

State of California, )

Marin County, j
Before James T. Stocker and "William S. Hughes, Justices of the Peace

of said county.

In the matter of the Conte.sted Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF LOUIS ESMERY,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
issued out of the Clerk's office of Marin County, by the Clerk thereof,
and by said Clerk directed to the aforesaid Justices ; which said commis-
sion is attached to the depositions taken in this matter.

LOUIS ESMERY, SWORN.

I resided in San Rafael on the fourth of September last. I was born
in France. Came to the United States in eighteen hundred and fifty-six.
Am twenty-fiix years old. Arrived direct from France to California the
nineteenth September, eighteen hundred and fifty-six. I voted at the
last general election, on the fourth of September. Voted the full ticket.

(^. — Which ticket did y<m vote?

A. — I decline answering. I voted for a Member of Assembly.

(^. — Which one did you vote for?

A. — I decline answering that question.

Q. — Have you ever been naturalized?

A. — I decline answering that question. 1 voted at the San Eafael
Precinct.

[And the Court says he cannot be compelled to answer that question.]

L. ESMERY.

State of California, )

Marin County, j
We, the undersigned, Justices of the Peace of Marin County, duly ap-
))ointed in the matter of the contested election, wherein Alexander Gor-
don is Contestant, and Archibald C. McAllister Respondent, do hereby
certify tiiat the above is a true and correct statement of the testimony
as given by Louis Ksmery, on the second day of November, eighteen
huiKlred and sixty-one, at the Court House at San Rafael, county afore-
said, who, after hearing tlie same read, made ail corrections required, and
signed the same in our presence.
^ WILLIAM S. HUGHES,

J. T. STOCKER,

Commissioners.

State of California, |

Marin Coimty. j
Before James T. Stocker and William S. Hughes. Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF GEORGE H. SOUTHWELL,

A witness produced, sworn, and examined, in this matter, on the part
of Alexan.ler (Jonlon, Contestant, before the aforesaid named Justices of
the Peace of Marin County, aforesaid, in pursuance of a commission
issued out of the Clerk's office of Marin County, by the Clerk Uiereof,
and by said Clerk directed to the aforesaid Justices; which said commis-
sion is attached to the depositions taken in this matter.

GEORGE II. SOUTHWELL, SWORN.

T -1 * ,-,„+ i-Ti cjnn Rafael I know the last named witness
swo™"" "o,"' K«- - I can-fst^ar positively wbat ticket he voted.
HTsUo'wed me Uvo tickets; one he vote'd, and the other he was working

[Objected to by Keepondent's Counsel.]

He said he voted the MeConncll ticket, and was working for Conness,
and had McAllister's name as a candidate for Assembly to represent the
County of Marin. The ticket he said he voted had McAllister's name
on it. I know he is not a citizen of the United States.

[Objected to by Respondent's Counsel.]

Q.— How do you know he is not a citizen?

A. — He had only one paper, and that was declaring his intention to
become a citizen. " Don't know the date of the pa])er I am speaking
about. I know it is not much over two years ago since he declared his
intention to become a citizen. Was not i)resent at the time he declared
his intention ; heard it from those who were present.

[The declaration of intention of becoming a citizen of the United
States, of Louis Esmery. made before D. T. Taylor, Clerk, by his Deputy,
S. B. Harris, made on the third day of September, eighteen hundred and
fifty-nine, ami filed on the same day with the County Clerk of the
County of Marin, is here produced, and a true copy thereof is hereto
annexed, marked [A.]

It is admitted by the Counsel for the Respondent that the declaration
of intention, of wiiieh A is a copy, was made by the said Ksinery on the
third day of September, eighteen hundred and fifty-nine, and on that
day filed with the Clerk of Marin Count\'.]

GEORGE n. SOUTHWELL.

nnty. f
mty, dul

State of California,

Marin Com
We, the undersigned, Justices of the Peace of Marin County, duly
appointed Commissioners in the matter of the contested election, wherein
Alexander Gordon is Contestant, and A. C. McAllister Respondent, do
hereby certify that the above is a true and correct statement of the testi-
mony as given by George H. Southwell, on the second day of November,
A. D. eighteen hundred and si.xty-one. at the Court Hou.se at San Rafael,
county aforesaid, who, alter hearing the same read, made all corrections
required, and signed the same in our presence.

W. S. HUGHES,
J. T. STOCKER,

Commissioners.

State of California, )

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Respondent.

DEPOSITION OF R. C. CLARK,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
issued out of the Clerk's office of Marin County, by the Clerk thereof,
and b}- said Clei*k directed to the aforesaid Justices; which said commis-
sioa is attached to the depositions taken in this matter.

ROBERT C. CLARK. SWORN.

Q.— Were you or were you not one of the Poll Clerks at the polls held
on the lourth day of September, at the last general election, at the Pre-
cinct of (rallinas y

A. — Yes, I was.

Q. — ])«) you know Decker George, Mr. Collier, and Edwin Nichols?

A. — Yes, I know them.

[A pa|)er is here shown the witness.]

t^. — State what paper this is ?

A. — The paper atlaciied to the tally list is the poll list; and the large
pai»er is the tally list, and contains the tally of the votes polled at that
])ri'(inct on the hist general election day, together with the certificates of
Inspector. Judges, and Clerks.

C^. — State what was tjone with this paper after it was done up ?

A. — 'I'lie whole of the papers were done up and sealed by the Inspec-
tor, and delivered by me to the Deputy Clerk of Xarin County, inclosed
in an envelop.

Q. — In \vho»e handwriting is that poll list?

A. — It is in mine. The affidavit indorsed on the envelop was sworn
to by me before the Deputy County Clerk.

(I. — Look at the tally list and state how many votes Archibald C. Mc-
Allister, for Member of Assembly, received at the Galliuas Precinct, at
that election ?

A. — Si.\ty-nine.

Q. — I'U-ase look at that tally list and state how many votes Alexander
Gordon received at the Galliims Precinct, at the last general election, for
Member of Assemldy for Marin County ?

A. — Three.

Q.— Plea.se look at that poll list and see if the names of Edwin Nichols,

Decker Georjxe, Matthew Collins, James Smith, and Francis , are

there ?

A. — Yes. thev are all on the poll list.

Q. — State wliether or not all the persons whose names are on the poll
list voted at (iallinas Precinct, at the last general election ?

A. — Yes, they did.

Q._\ViH're does this Edwin Nichols reside ? .

A.— lie has lived at diHerent parts of this county, and on Russian

Q*^— From the appearance of Edwin Nichols, what country should you
judge he is a native of?

A.— Scotland, I should think. n t . -a^a

Q.— Where has James Smith, whose name is on the poll list, resided

since you have known him ? , o r) r i

A.— I never knew him at any other place than San Katael.

CROSS EXAMINATION.

Alexander Vandernooth, whose name is on the poll list above alluded
to, voted at that election, at the Precinct of Gallmas^

b — C-m vou "^tate whether he is a citizen, or not, of the Unitecl btates
^ ^Objecteito by Counsel, as not being the proper mode of proving

'*'a.-I don't know; but I don't believe he is, from what he said that
day—on the day of election.

[The Counsel for Gordon moves to strike out so much of the testimony \
as relates to the declanitions of Viuulornooth, being nothing but hear- j
say and the opinion of the witness.] ^ j

Q. — State what Yandcrnooth said to make you believe he is not a citi-

zen. I

A. — When the polls were first opened, he was the first man who went
there to vote. His vote was about to be challenged. He then said he
would not vote, and went away. He came back again, and attempted to j
vote. There were four or five men there wiien lie returned. Mr. Stew- i
art told him ho could not vote, unless he swore his vote in. He tlien said
that he would not vote, and would not swear his vote in. He came back
the third time, and finally swore his vote in. 1 heard P. K. Austin's tes-
timony, and the Yandcrnooth he refers to is the same man 1 mean.

IIE-EXAMINATION.

Q. — Is the name of Stephen Peter on the poll list ?
A.— Yes.

Q. — Is the name of Antonio Ablia on that poll list ?
A. — Yes.

ItOBEirr C. CLARK.

State of Califounia, |

Marin County, j
"We, the undersigned, Justices of the Peace of Marin County, duly ap-
pointed Commissioners in the matter of the contested election, wherein
Alexander (lordon is Contestant, and Archibald (.'. McAllister lle.spond-
ent, do hereby certify that the above is a true and correct statement of
the testimony, as given by Robert C. Clark, on the second day of Novem-
ber, A. ]). eighteen hundred and sixty-one, at the Court House at San
Eafael, county aforesaid, who. alter hearing the same read, made all cor-
rections required, and signed the same in our presence.

W. S. HLKiHES,
J. T. STOCKEU,

Commissioners.

State of California, )

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAlli,ster, Respondent.

DEPOSITION OF JAMES AGNEW,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon. Contestant, before the foregoing named Justices of
the Peace of Marin County, aforesaid, in pursuance of a commi.ssion is-
sued out of the Clerk's oftice of Marin County, by the Clerk thereof, and
by the said Clerk directed to the aforesaid Justices; which said commis-
sion is attached to the depositions taken in this matter.

JAMES AGNEW, SWORN.

I was one of the Jud-cs at tlie general election, held at Galliuas Pre-
cinct on the tourth of September last. I know Edwin Nichols. He voted
at tiuit precinct on the fourth of September last, at the general election
I only know one man of that name. He lived, at that time, at Nicassio's.
He had been living there about four weeks. Before that time, he lived
at ^ ovata. Have known him about eight years. Been in this country
all thi.s time. He says he is an Englishman. I think he has got an Eng-
lish accent. I mean he belongs to the Kingdom of Great Britain.

CROSS EXA.MINATION.

^ 1 don't know anything about whether he is a citizen of the United
States or not.

JAMES AGNEW.

State of California, ")

Marin County. J
We, the un<lersigned, .Tustices of the Peace of Marin County, duly ap-
pointed Commissioners in the matter of the contested election, wherein
Alexander (Jordon is Contestant, and Archibald C. McAllister, Eespond-
ent, do hereby certify that the above is a true statement of the testimony
as given by James Agnew, on the second day of November, A. D. eight-
een hundred and si.\ty-one, at the Court House at San Rafael, county
aforesaitl, who. after hearing the same read, made all corrections required,
and signed the same in our presence.

WILLIAM S. HUGHES,
J. T. STOCKEE,

Commissioners.

The Counsel for the Contestant, Gordon, here read, in evidence, a cer-
tified copy of a Declaration of Intention, made by Edwin Nichols, before
the County Clerk of Marin County, dated March seventh, eighteen hun-
dred and sixtv, and the same is hereto annexed.

When tiu' following i)aper was offered as evidence, it was objected to
bv Hesj)ondent's Counsel,
'objected to as not being the best evidence, and inadmissible.

DECLARATION OF INTENTION.

State of California, )

County of Marin, j
I, Hdwin Nichols, do declare, on oath, that it is bona fide my intention
to become a citizen of the United States of America, and to renounce,
forever, all alleijiance and fidelity to ail and any foreign prince, potentate
State, and sovereignty whatever, and particularly to Victoria, Queen ot
the United Kingdom of Great Britain and Ireland^^^^^^ NICHOLS.

Sworn to before me, this seventh day of March, eighteen hundred and
^^^^^'- Daniel T. Taylor, Clerk.

I Daniel T Tavlor Clerk of the District Court, in and for the County
of Marin, the' same being a Court of Record, having common law juris-

State of California, )

Marin Count3^ |
Before James T. Stocker and William S. IIui,fh«.'H. Justices of the Peaco

of said County, and CommissioniTs tluly appointed.

In the matter of the (^ontested Klcclion between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF PKDKO OLIVARES,

A witness produc-eil. sworn, and examined in this matter, on the part
of Alexander (lordon, Contestant, before the aforesaid Justices of the
Peace of Mai-in Count}', aforesaid, in ])ursuance of a commission issued
out of the Clerk's otiicc of Marin Count}-, b}- the Clerk thereof, and by
said Clerk directed to the aforesaid Justices; which commission is
attached to the depositions taken in this matter.

PEDKO OLIVARES, SWORN.

I am thirty-i.'i<:;iit years old. I was born in Chile, in South America.

I came to California in eiji^hteen hundred and tift3'-two. I residctl, on the

fourth day of last Si.'pteml)er, on Ross' Ranch, in San Rafael Township.

Q. — Did you or did you not vote on the last fourth day of September,

at the general election ?

[Objected to by Respondent's Counsel.]

A. — Yes ; I did vote.

Q. — Are you a naturalized citizen of the United States ?

A. — I am not.

His
PEDRO X OLIVARES.
mark.

State of California, ")

Marin County, j
"We, the undersigned, Justices of the Peace of Marin County, duly
appointed CommissicJnersin the matter of the contested election, wherein
Alexander Cordon is Contestant, and Archibald C. McAllister Respond-
ent, do hereby certiiy that the above is a true and correct statement of
the testimony as given by Pedro Olivarcs, on the second day of Novem-
ber, A. D. eighteen hundred and sixty-one, at the Court House at San

32 j

diction, a clerk, and seal, do hereby certify that the foregoing is a true ]
copy of the original declaration of intention of Edwin Nichols, to bo- ;
come a citizen of the United States of America, now on file in my office.

To attest and certify which, I have hereunto set my hand and affixed
the seal of said Court, this second day of November, A. D, eighteen i
hundred and sixty-one.

[Seal of District Court.]

DANIEL T. TAYLOR, Clerk.

[Indor.sed — Schedule R. Filed this second day of November, A. D.
eighteen hundred and sixty-one.

J. T. STOCKER,
W. S. HUGHES,

Justices of the Peace.]

Eafael County, aforesaid who after hearing the same read, and made
all corrections required, signed the same in our presence

presence.
W. S. HUGHES,
J. T. STOCKER,

Commissioners.

State of California,
I, r 1 m f. , Marin County. ,

Jk-fore James T. Stocker and AVilliam S. Hughes, Justices of the 'Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election hetween Alexander Gordon,

Contestant, and Archibald C. McAllister, Kespondent.

DEPOSITION OF JOHN T)e FRIES,

A witness produced, sworn, and examined, in this matter, on the part
of Ah'xander tiordon, Contestant, before the foregoing named Justices
of the Peace ol" Marin County, aforesaid, in pursuance of a commission
issued by the Clerk of said County, and directed to the aforesaid Jus-
tices; which said conunission is attached to the depositions taken in this
matter.

JOHN I»F, FRIES, SWORN.

I reside in San Rafael Township. I know a man by the name of Col-
lier; he lives in Miller's Valley. I think I saw this man at the last
county election for Supervisor. I heard him say that he was a voter,
and a citizen of the United States.

JOHN De FRIES.

State of California, \

Marin County. |
"We, the undersigned, Justices of the Peace of Mai-in County, duly
appointed Commissioners in the matter of the contested election, where-
in Alexander (iordon is Contestant, and Archibald C. McAllister Re-
spondent, do hereby certify that the above is a true and correct state-
ment of the testinionj-, as given by John De Fries, on the second day of
Novemlter, A. D. eighteen hundred and sixty-one, at the Court House at
San Rafael, county aforesaid, who, after hearing the same read, and
nia<le all corrections required, signed the same in our presence.

W. S. HUGHES,
J. T. STOCKER,

Commissioners.

Nov. 2, ISGl. At nine o'clock, a. m.. Commissioners met to take tes-
timony in the above entitled cause, and adjourned to meet on the fourth
day of November, A. D. eighteen hundred and sixty-one, at the Court
House of Marin County.

Nov 4 18G1.— At nine o'clock, a. m.. Commissioners met pursuant to
order of 'adjournment, to take testimony in the case of contested elec-
tion, entitled Gordon vs. McAllister, and adjourned to meet on the fifth
day of November, A. D., eighteen hundred and sixty-one, at seven
o'clock, A. M., at the Court House of Marin County.
5

Nov. 5. 1861. — At seven o'clock, a. m., Commissioners met pursuant
to order of adjournment, to take testimony in the cause entitled Gordon
vs. McAllister," and adjourned to meet at the Court House of Marin
County, on the seventh day of November, eighteen hundred and sixty-
one, at nine o'clock, a. m.

Nov. 7, 18G1. — At nine o'clock, a. m., Commissioners met pursuant to
adjournment, to take testimony in the case of contested election, enti-
tled Gordon vx. McAllister, and adjoiu'ned to meet on the ninth day of
November, A. D. eighteen hundred and sixty-one, at nine o'clock, a. m.,
at the Court House in Marin County.

Nov. 9, ISfil. — At nine o'clock, a. m.. Commissioners met pursuant to
order of adjournment, to take testimony in the case of contested elec-
tion, entitled (iortlon rs. McAllister, and adj<»ui-ned to meet at the Court
House in Marin County, on the eleventh day of November, eighteen
hundred and sixty-one, at seven o'clock, a. m.

Nov. 11, 1S()1. — At seven o'clock a. m.. Commissioners mot pursuant
to order of adjournment, to take testimony in the case of contested
election, entitled CJordon vs. McAllister, and adjourned to meet at the
Court House in Marin County, at seven o'clock .v. m., on the thirteenth
day of November, A. D. eighteen hundred and sixty-one.

Nov. lo, 1S()1. — At seven o'clock a. m.. Commissioners met ])ur8uant
to order of adjournment, to take testimony in the case of Gordon vs.
McAllister, and adjourned to meet in tiie Coiirt House of the C'ounty of
Marin, at seven o'clock a. m., ou the 14th day of November, A. D. eight-
een hundred and sixty-one.

Nov. 14, l!^()l. — At seven o'clock .\. m., Coinnii>sioners met to take
testimony in the case of contested election, entitled (Jordon vs. McAllis-
ter, anil adjourned to meet in the Court House of Marin County, on tiio
fifteentii day of November, A. D. eighteen hundred and sixty-one, at
nine o'clock a. .m.

Nov. 15. 18G1. — At nine o'clock a. m., Commissioners met pursuant to
order of adjournment, to take testimony in the case entitled Gordon vs.
McAllister, and adjourned to meet at seven o'clock a. m., ou the sixteenth
day of November, A. I), eighteen hundred and sixty-one.

Nov. 10, 1861. — Commissioners met jmrsuant to order of adjournment,
to take testimony in the case of contested election, entitled (Jordon is.
McAllister, and adjourned to meet at Court House in Marin County, at
seven o'clock a. m., on the eighteenth day of November, A. D. eighteen
hundred and sixty-one.

Nov. 18, 1861. — Commissioners met pursuant to order of adjournment,
to take testimony in the case of contested election, entitled (Jordon vs.
McAllister, and adjourned to meet on the nineteenth day of November,
A. 1). eighteen hundred and sixty-one, at seven o'clock, and in the usual
place.

Nov. 19, 1861. — Commissioners met pursuant to order of adjournment,
at the Court House, to take testimony in the case entitled Gordon vs.

McAllister, and adjourned to meet on the twentieth day of November,
A. D. eighteen hundred and sixty-one, at nine o'clock, a. m.

Nov. 20, 1801.— Commissioners met pursuant to order of adjournment,
10 take testimony in the ease of contested election entitled Gordon vs.
.NIcAllister, and adjourned) to meet on the twentieth day of November,
eiglitoen hundred and sixty-one, at four o'clock, p. m.

Nov. 20. 1 HOI.— Commissioners met at the Court House, to take testi-
mony in the above case, and adjourned to meet again November twenty-
first, eighteen hundred and sixty-one, at four o'clock, r. m.

Nov. 21, 1)^01. — Commissioners met at the Court House, pursuant to
order of adjournment, to take testimony in the above case, when, upon
attidavit of the Contestant, Alexander Cordon, the case was continued
until the twenty-second day of November, A. D. eighteen hundred and
sixty-one, at four o'clock, p. m.

In tlie matter of the Contested Election of A. C. McAllister.
Alexainler (lordon. tlie Contestant in the above entitled cause, being
<luly sworn, (h'poses and says:

That he has used due diligence to })rocure Counsel to proceed with
the case at issue, at San Rafael, on this twenty-first of November, eight-
eon hundred and sixty-one, and that for some unaccountable cause he is
not present, and he asks the honorable Commission to adjourn the case
until tbe twenty-second instant, at four o'clock, p. m.

ALEXANDEE GORDON.
Sworn and subscribed to before us, this twenty-first day of November,
A. D. eighteen bunilred and sixt\'-ouo.

W. S. HUGHES,
J. T. STOCKER,

Coiuniissioners.
[Indorsed— Affidavit of Alexander Gordon. Filed November twenty-
fiixt. A. D. eighteen hundred and sixty-one.]

State of California, ]

Marin County. J
Before James T. Stocker and William S. Hughes, Justices of the Peace

of Marin County, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Respondent.

DEPOSITION OF ELISHA DUBOIS,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregomg named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
is«ue.l bv the Clerk of said county, and directed to the aforesaid Justices ;
which said commission is attached to the depositions taken m this mat-
ter.

ELISHA DUBOIS, SWORN.

I reside in San Rafael, Marin County. I attended the general election
on the fourth of September, eighteen hundred and sixty-one, in San Ka-

fael Precinct. I was Clerk of the election. I know James Smith, at
that time a resident of this town ; he voted at the poll in this place at
that election. He (Smith) voted at about ten o'clock, a. m. I do not
know any other James Smith in the town.

Q. — l)i(j you ever hear James Smitli. above mentioned, say anything
on the subject of his having been confined as a State prisoner of this
State, and if so, when was it, and wiuit did he say '{

[Objected to by Counsel for McAllister, upon tlie ground that it is not
the proper mode of proving the fact that the said Sniitii was a convict;
that it is not the best evidence.]

A. — I have heard him speak at different times of having been a con-
vict, but do not distinctly i-ecoHoct what he said. 1 have heard him
speak of his troubles, and that ho spent all he luul at the time he was
sent to the State Prison.

CROSS EXAMINATION.

Q. — Did you ever hear the said James Smith say that he had been
pardoned ?

[Objected to by Contestant's Counsel, unless he refers to the same con-
versation called out on direct examination.]

A. — 1 never heard him say that he had been pardoned.

ELISHA DUBOIS.

State of California, )

Marin County, j
We, the undersigned. Justices of the Peace of Marin County, and
Commissioners duly ai»pointed in the matter of the contested election
between Alexander (lordon. Contestant, and Archibald McAllister, iie-
spondent, do hereby certify that the above is a true and correct state-
ment of the testimony given by Klisha Dubois, on the twenty-third day
of N()veml)er, A. D. eighteen hundred and sixty-one, at the Court House
in San Hafael, Marin Count}', and State aforesaid, who, alter having the
same read to him, and made all corrections required, signed the same in
our presence.

W. S. HUGHES,
J. T. STOCKEK,

Commissioners.

State of California, )

Marin County. )
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said County, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Eespondent.

DEPOSITION OF FRANCIS WILLIAMS,

A witness ])roduced, sworn, and examined, in this matter, on the part
of Alexander Gordon, Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
issued by the Clerk of said Count}', and delivered to the aforesaid Jus-
tices; which said commission is attached to the depositions taken in this
matter.

FRANCIS WILLIAMS, SWORN.

I reside in San Eafael, Marin County.

Q.— Did you, or did you not, vote at the last general election, held on
the fuurtii day of Si-ptember, eighteen hundred and sixty-one ?

A. — I decline to answer.

[The Cointnissioners decide that they have no power to compel the
witness to answer.]

Q. — In what country were you born ?

A. — I was born in England. I am nearly twenty-five years old ; have
been in the United States about thirteen years. During most of that
time I have been a sailor, and sailed out of the United States of America.

Q. — llavo you. or have you not, ever become a naturalized citizen of
the United States?

A.— No. Sir.

Q. — Were you. or were you not. at the poll held at Gallinas Precinct
ou the fourth of September, eighteen hundred and sixty-one?

A. — I was.

Q. — Why do you decline to answer the question as to whether you
voted, or not, at the last general election ?

[Objected to by Counsel for the Respondent, upon the ground that,
substantially, he han already declined to answer.]

I don't see Ht to tell whether I did or not.

FRANCIS WILLIAMS.

State of California, )

Marin County, j
We, the undersigned, Justices of the Peace, and Commissioners duly
appointed in the matter of the contested election between Alexander
(Gordon, Contestant, and Archibald C. McAllister, Respondent, do hereby
certify that the aJtove is a true and correct statement of the testimony
given l>y Fran.-iPwilliams, on the twenty-third day of November, A. D.
eighteen hun<lred and sixty-one, at the Court House of the County of
Marin, who. after hearing the same read, and correcting the above, signed

the same in our presence.

^ WILLIAM S. HUGHES,

J. T. STOCKER,

Commissioners.

State of California, )

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF R. C. CLARK,

A witness produced, sworn, and examined, in this matter, o?^ t^e part
of Vlexander Gordon, Contestant, before the foregoing Justices of the
Pe^ce of M'u-in County, aforesaid, in pursuance of a commission issued
byUie Clerl ot said couAty, and directed to the aforesaid Justices ; which
said comn is'on is attached to the depositions taken m this matter.

R, C. CLARK, RECALLED.

I know Francis Williams, last sworn.

Q. — Look at the paper now shown you. and state whether or not that
is the poll list kept at Gallinas Precinct at the last general election?

A. — It is. I see the name of Francis Williams on the list.

Q. — Did, or did not, Francis Williams, the last witness sworn, vote at
Gallinas Precinct at the last general election, held on the fourth daj' of
September last ?

A. — I think he did. I saw him uj) thoro. and his name is on the poll
list. I know of no other Francis \\ illiams that voted on that day. 1 do
not doubt that he voted at that poll on that day.

Q. — Do you know James Smitli, that formerly resided in this town?

A. — I have known of but one here of that name.

Q. — Look upon the poll list of (Jallinas Precinct, now in your hand.
and state whether, or not, the name of James Smith is on that poll list?

A. — It is. He voted at (Jallinas Precinct at the last general election,
on the fourth day of Sc])tcmb('r last. It was the same James Smith I
before stated as having known in San TJal'ael. He voted at about one
o'clock. i». M. There were eleven persons voted after him at that ])ro-
cinct.

Q. — How long have you known James Smith, above refeircd to?

A. — Some month or more before the election. I kni'w him l)y sight.

Q. — Was there any James Smith, or not, other than the one you have
referred to, who voted at Gallinas at the last general election?

A. — There was not.

CROSS EXAMINATION.

Q. — fan you state, positively, that the Francis Williams whoso name
appears upon that poll list, is the same person who last testifieil in this
matter? ^

A. — Ves. Sir, I can ; and ho voted. '

ROBERT C. CLARK.

State of California, ")

Marin County. J
We, the undersigned, Justices of the Peace of Marin Countv.und auly
appoint»'d Commissioners in the matter of the contested electi(jn. wherein
Alexander (iordon is Contestant, and Archiliald C. ^IcAUistcr Respond-
ent, do hereby certify that the above is a true and correct statement of
the testimony given by R. C. Clark, on the twenty-third day of Novem-
I>er, A. D. eighteen hundred and sixty-one, at the Court House in San
Rafael, county aforesaid, who, after hearing the same read, and making
:ill corrections required, signed the same in our presence.

W. S. IIUtillKS,

J. T. STOCK i:r,

Commissioners.

State of California,

Muriii County. ,
Before James T. Stocker and Williuin 8. Hughes, Justices of the "Peace

<»f said county, and Commissioners duly appointed.

In thr matter of the Contested Election between Alexander Gordon.

Contestant, and Archibald C. McAllister, Ilespoudent.

DEPOSITION OF DANIEL T. TAYLOK,

which said Commission is attached to the depositions taken in this mat-
ter.

I'.V.MKL T. TAYLOR. SWORN.

I am ('Icrk of the County of Marin. I have been Clerk of this county
since the fourth of Maw oii^htei-n hundred and tilty-tive.

(^. — Look at the pa])i'r now before you, ami state what that pai)er is?

A. — This is a certified statement of votes polled at a general election
held in Marin County on the fourth day of September, A. D. eighteen
hundred and sixty-one, for Member of Assembly for Marin County, and
executed by me as (!ounty Clerk of Marin County.

(^. — How many votes did Archibald C. McAllister receive at the last
general election, for Meniber of Assembly, to represent Marin County,
:i- appears by that statement ?

A. — Five hniulri'd and nineteen.

C^. — How many vott's ilid Alexander CJordon receive at the last gen-
eral election, for .NLMuber of Assembly, to represent Marin County, as
appears by that statement ''.

A. — Five hundrt'd and eighteen.

(^. — From what did you nuike up the statement now referred to ?

A. — From the returns of the several precincts in the county, made by
the Inspectors. Judges, and Clerks of the said precincts, and returned to
me by them, as Clerk of sai<l county.

Q. — State whether or not that certificate on file, and l)y you now pro-
duced, contains a correct list of the number of votes cast at the last gen-
eral election, for Member of Assembly, to represent the County of Marin,
as returned to the Clerk of said co'unty by the officers of the general
election 't

A.— It does. G. A. F. Clayton received, at the last general election,
two votes, and. exce])t as above stated, they are the only votes returned
to nie as given for Mendters of Assembly, to represent said County of
Marin, at said neiieral election.

(^. Look at the papers now shown you, and state what they are?

A.— Tlu-y are the poll and tally lists, and the certificate of the In-
spector, .ludges, and Clerks, of the general election held at Gallinas Pre-
cinct on thcTourth day of September. A. D. eighteen hundred and sixty-
one, and now on file in the office of the Clerk of Marin County.

Q.— How many votes did Archibald C. McAllister receive at that elec-
tion, at the Gallinas Precinct, to represent the County of Marin in the
Assembly, as appears by the papers and returns on file and above men-
tioned ? and how many votes did Alexander Gordon receive at the same

election, and for the same oflSce, as also appears by the same papers and
returns above mentioned ?

Alexander Gordon received three votes, and Archibald C. McAllister
received ^ixtynine, and no other person received any votes for Member
of Assembly to represent Marin, at that precinct at tiiat _i;eneral election.
The votes received by (r. A. F. Clayton were cast, one at Xovata Precinct
and one at California City Precinct, in said Marin County.

Q. — How many votes in all were cast at the last general election at
Gallinas Precinct ?

A. — Seventy-two, as appears by the ]>apers returned to Clerk's office
and above mentioned.

D. T. TAYLOR.

State of Californi.\, ")

Marin County. )
We, the undersigned. Justices of the Peace of Marin Coui\ty, and
Commissioners duly a]>pointed. in the matter of contested election be-
tween Alexander (iordon. Contestant, and Archibald C. McAllister. Re-
spondent, do hereby certify that the above statement is correct, as given
by him, and that it was signed by him. after having been read in his
presence, on the twenty-thini day of November. A. D. eighteen hundred
and sixty-one. in the Court House of the County of Marin, who, after
hearing the same read, made all corrections required, and signed the
same in our presouce.

W. S. II r< HIES,
J. T. STOCKKR,

Commissioners.

POLL LLST

0/ a General Election held at Galliiins I*rerinct, Mnn'ii Cnuntij, California,

Septemhrr Ath. ISfll.

No.

Names of Voters.

No.

Names of Voters.

1
2

B. J. Shipping.
John Lucas.
John O. Bryan.
Louis August.
Thomas Covey.
W. Murj^hy.
P. K. Austin.
Francis Onevus.
James Dixon.
Louis Smith.
William Spaniel.
August Gresoney.
Theodore Canoe.
J. B. Stafford.
Elisha X. Blowers.
Michael Flinn.
Decker George.

19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
134

Francis Noie.
Anton Toysan t.
Encarnacion Pacheco.
Bernardo Jar.
John M. Deboiik.
Daniel Heacock.
Frank J)uj)ont.
Pierre Mazou.
Pierre Degier.
Alexander Sear.
Juan Lapass.
Gabriel Flourtan.
Max Dannc.
A. Vandernooth.
Felix Lusenot.
Jack Williams.
Juan Peralta.

No.

Namea of Voters,

No.

Names of Voters.

John Sevulla.

Richard Doudell.

3*)

J. B. Salt.-

Francis "Williams.

Matthew Collin.

5fi

Ambrosio Carreras.

Frank Miranda.

Jesus Beralta.

Charles Linn.

Georfije AV. Lutzhisener.

hennis Hiukley.

Pedro Lopez.

Saeranu-nto (Jatovcso.

Henry Fai^an.

Hafatl I>e\vartz.

James Smith.

4;i

Juliano Lirara.

Stephen Peter.

Teresji Kspinosa.

John J)i.\on.

Mannel (ion/ales.

Antonio Ablia.

4<)

Ant«tna A hale.

Andrew Knisla.

Bernurd .Moiioko.

James Reynolds.

JeHUH C'untuares.

Edwin Nichols.

Je.siis Vahlez.

James Miller.

Victoria Lot.

James Ai;new.

Josea Vanlevia.

J. C. Robinson.

Pedro Olivare-s.

K. C. Clark.

Josea 8ilva.

Charles Steward.

We. the tindprsJiifncd, Inspector. Judcjos. and Clerks, of a general elec-
tion, held at (Jallinas Precinct, in the County of Marin, on the fourth
day ot" September. A. I), eii^hteen hundred and sixty-one, hereby certify
that the Ibregoing is u true and correct copy of the poll list of* the said
election.

JOHN C. ROBINSON,

Inspector.
JAMES MILLER,
JAMES AGNEW,

Judges.
ROBERT C. CLARK,
CHARLES STEWARD,
Clerks.
St.\te of C.vlifornia,

Marin County.
I. Daniel T. Taylor. County Clerk in and for said county, hereby cer-
tify that the f(tre-j;(.ing is a true, full, and correct copy of the original
poll list now on tile iii my office, of a general election held in said county,
on the fourth day of September, eighteen hundred and sixty-one, at Gal-
linas Precinct.

P . . , Attest my hand and official seal, this fourth day of October,
L*''^'^''-' ci«'hteen hundred and sixt3--one.

DANIEL T. TAYLOR,

Clerk.
[Indorsed— In the matter of Contested Election, Gordon vs. McAllister,
Exhibit C]

}

EILL OF COSTS IN COMMISSIONERS' COURT,

In the matter of the Conffsfrd Election hrttceen Alexander Gordon^ Contestant,
against Archibald C. McAllister, Respondent.

For summons, attaebments, subpoenas, and administeriniij oaths.

For 23 Certificates ^

Writing 183 folios

18 adjourn men 1 8

Paid Inter})rcter

Paid Clerk

857

46 00

79 80

Total 18294 80

We do hereby certify the above bill of costs to be correct.

WILLIAM S. IIUCnKS,
J. T. STOCK h:R.

Commissioners.

Nov. 22, 1801. — Commissioners met at the Court House, pursuant to
an order of adjournment, to take testimony in the al»ove case, and ad-
journed to meet November twenty-third, rigbtt-en bundreil and sixty-
one, at seven o'clock, a. m.

Nov. 23. 1801. — Commissioners met at the Court J louse, to take testi-
mony in the al»ove case, and adjourned to meet on tlie Iwenty-tiftb day
of November, A. D. eighteen hundred and sixty-one, at seven o'clock,

A. M.

Nov. 2f), 18fil. — Commissioners met at the Court House, to take testi-
mony in the al»ove case, and adj(»urned to meet on the twenty-sixth day
of November. A. D. eighteen hundred and sixty-one. at seven o'clock.

A. M.

Nov. 2(», IsOl. — Commissioners met at the Court House, to take testi-
mony in the above case, and adjourned to meet on the twenty-seventh
day of November, A. D. eighteen hundred and sixty-one, at seven o'clock.

A. M.

Nov. 27, 1801. — Commissioners met at the Court House, to take testi-
mony in the above case, and adjourned to meet on the twenty-eighth
day of November, A. D. eighteen hundred and sixty-one. at seven o'clock.

A. M.

Nov. 28. 18G1. — Commissioners met at the Court House, to take testi-
mony in the above case, and adjourned to meet on the twenty-ninth day
of November, A. D. eighteen hundred and sixty-one, at seven o'clock,

A. M.

Nov. 29, 1861. — Commissioners met at the Court House, to take testi-
mony in the above case, and adjourned to meet on the thirtieth day of
November, A. D. eighteen hundred and sixty-one, at seven o'clock, a. m.

Nov. 30, ISGL— Commissioners met at the Court House, to take tes-
timony in tie above ease, and adjourned to meet on the second day of
December, A. 1). eighteen hundred and sixty-one, at four o'clock, p. m.

Dec. 2, ISGI.— The Commissioners met at the Court House, to take
testimony in the above case, when the Respondent's Counsel informed
the C«jmmissioners that the testimony was closed, whereupon the com-
mission closed. December second, eighteen hundred and sixty-one, at
hall past lour o clock, p. m.

AV. S. nUGTTES,
J. T. STOCKEIi,

Commissioners.

State of California, »

Marin County. J
\\ e, the undersigni'd, .lustici-s of the Peace of Marin County, duly ap-
pointed Commissioners in the matter of the contested election, wherein
AK'.xander (iordon is Contestant, and Arcliil»ald C. McAllister Picspoiul-
cnt, do certify that we did meet at the i)lace specified in the commission,
and that we did nu-i't and adjourn at the appointed place from day to
day, as shownVilhin, until llu- testimony was closed.

W. 8 IIITGITES,
J. T. STOCKEIi,

Commissioners.

Hill of cosis in I ommissioners' Court, in the matter of the contested
election between Alexander (iordon, Contestant, and Archibald C. McAl-
lister. Respondi'iit :

On the part «»f the Respondent, to nine adjournments, thirty-six dol-
hirs.

Wo hcr«>bv cirtifv that the above is correct.

W. S. HUGHES,
J. T. STOCKER,

Commissioners.

TESTIMOiNY FOR RESPONDENT.

}

State of California,

Marin County.

By virtue of a commission issued by tiie Assembly, on the fourteenth
day of .lanujirv. eighteen hundred and sixty-two. direi'tin<i; James T.
Stoeker and William S. llui^lies. Justices of the Peace of tlie aforesaid
county, to take testimony in the matter of the contested election,
wherein Alexander Gordon is Contestant, and A. C. McAllister l{es])ond-
ent. the lollowin<^ testimony was elicited from the wihusses. by their
rcs])ective C'ounsel. to wit :

T. II. Hanson. Counsel for llespondent.

Alexander Gordon, Contestant, for self.

DEPOSITION OF A. D. EASKOOT,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister. Jies])ondont, before the forci^oing named Justices of
the Peace of Marin County, aforesaid, in pursuance of a commission
issued by the Assembly, on the fourteenth day of January, A. D. eighteen
hundred and sixty-two, and directed to the aforesaid Justices; which
commission is attached to the dejiositions taken in this matter.

A. D. EASKOOT, SWORN.

I reside in Bolinas, in JMarin County. I am the County Surveyor of
Marin County, and have been since eighteen hundred and iifty-two.

Q. — Were you here in Marin County at the last general election, on
the fourth day of September, eighteen hundred and sixty-one?

A. — I was.

Q. — Bo vou know one William Parrott ?

A.— I do.

Q. — Do you know whether the same William Parrott voted at the last
general election, on the fourth day of September, eighteen hundred and
8ixt3'-one. i'ov Member of Assembly ?

A. — Oidy from hearsay. What he himself told me.

[Objection taken by Contestant, Alexander Gordon, upon the ground
of hearsay.]

He told me he voted before he was twenty-one years old. lie said he
was near twenty-one years ; so he thought it would make no differ-
ence, as he was near twenty-one. and that nobody objected to his vote.
I asked him who he voted for, and he said, for Mr. Gordon, if I under-
stood him accurately.

Q- — Have you any doubt that you did understand him accurately ?

A. — It Avas in a passing conversation, and I could not be positive ; but,

to the best of my knowledcje and belief, I did understand him accurately.
He liveH. I presume, in Bolinus Township, but I do not know for certain.

Q- — When and wiu-re did this conversation occur?

A. — About the middle of last December, eii,diteen hundred and sixty-
one. At the house of Benjamin Miller, in Bolinas Township, Marin
County ; and there he told me, that at the time he voted he was not
quite twenty-one years old. He did not say at what precinct he voted.
1 cannot say at what precinct he voted. 1 presume he voted in this
<-ounty. but don't l<n(jw.

CROSS EXA.MINATION.

Q. — Whure does this Mr. Tarrott live ?

A. — He dill live, at that time, at what is known and called Wild Cat
Ranch, in Bolinas Township, Marin County.
Q. — Do you know if he is gone away 'i
A. — I do not.

A. D. EASKOOT.

State of California, ")

Marin County. )
We, the undersigned. Commissioners, do hereby certify that the above
testimony, taken in the nnitter of the contested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister Ilespondent, is correct,
as given by A. I). Haskoot. who, after hearing the same read to him,
and he making all the nccessaiy corrections, signed the same, in our
j)resence, at the ('(»urt Hou.se, at San IJafael, in said county, this twenty-
tirst dav of January, A. D. eighteen hundred and sixty-two.

WM. S. HUGHES,
J. T. STOCKED,

Commissioners.

Statk of California, )

• Marin County, j

Before James T. Stockcr, and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.
In the matter of the Contested Eleetioft^etweon Alexander Gordon, Con-
testant, and Archibald C. 3lcAllister, liespondent.

DEPOSITION OF JOHN De FRIES,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister, Respondent, before the foregoing named Justices of
the Peace, of Marin County, aforesaid, in pursuance of a commission
issued by the Assembly, on the fourteenth day of January. A. D. eighteen
hundred* and sixty-two, and directed to the aforesaid Justices; which
commission is attached to the depositions taken in this matter.

JOHN DE fries, SWORN.

I reside in Marin County. I was in Marin County on the fourth of
September last, the day of the general election. I was at the polls of
the Gallinas Precinct, on that day, nearly all day. I know Alexander
Vandernooth.

Q._Did lie vote at the Gallinas Precinct on that i\ay ?

A. — I did not see him vote, but he told me that lie did vote there. I
asked him how he could vote, not bein^ a citizen, lie told me that hf
swore his vote in, as a great many others did.

[Here, Mr. A. Gordon himself objects to Avitness' answer, upon ground
of hearsay evidence.]

Q. — State Avhether or not the said A. Yandernooth was, on the fourth
of September last, a citizen of the United States 'f

A. — He was not.

Q. — State if A. Vandernooth. of whom you have been speaking, is the
same person alluded to. of that name, in the testimony of P. K. Austin,
who heretolore testified in this case.

A. — It is the same.

Q. — Do you know for Avhom the said Vandernooth voted, for Assem-
blyman, at the last general election ?

A. — He told me that he voted for Mr. Gordon.

[Mr. Gordon, in person, objected to his answer.]

CROSS EXAMINATION.

Mr. Gordon, in person, cross examined the witness, as follows:

Q. — How <lo you know that ho was not a citizen on that day?

A. — He. \'andernooth. told me so before election, and afterwards.

(J. — How do you know it is the same Vandernooth that Mr. Austin
meant in his testimony /

A. — There was but one Vandernooth there on that day, and no other
man with that name.

Q. — How do you know it was no other man with that name voted on
that day 'f

A. — 1 know that from the poll list, at the closing of the polls.

Q. — What lime did you go there on that day '(

A. — 1 went there about nine o'clock; and returned to San llafael, and
then went back there again.

Q. — How long did you remain in San Pafael ?

A. — I remained in San liafael about two or three hours.

Q. — Were the polls open when you arrived at Gallinas in the morn-
ing? ^

A. — The}' were.

JOHN De fries.

[Certificate omitted in original.]

State of California, [

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Pe.spondent.

DEPOSITION OF J. O. B. SHORT,

A Avitness produced, sworn, and examined, in tliis matter, on the part
of A. C. McAllister, Respondent, before the foregoing named Justices of

the Peace of Marin County, in pursuance of a commission issued b^- the
Assembly on the fourteenth day of January. A. D. eighteen hundred and
sixty-two. and directed to the aforesaid Justices; which said commission
is attached t«J the depositions taken in this matter.

J. O. H. SUORT, SWORN.

I have l)een a resident of Marin County for the hast sixteen years, and
was in .Marin County on the last fourth day of September, at the general
election. 1 was at the polls held at Squatterville, in Marin County, on
tliat day.

(^. — Do vou know Hiram Corey?

A.— 1 do.

t^. — Did ho vote on tiiat day i

A. — He did. He voted at the Squatterville Precinct, 3Iarin County.

Q. — Was lie a citizen of the United States on the fourth day of Sep-
tember last ?

A. — He oidy had his first i)a])ers then.

Q. — Was he required to produce his citizen papers there ?

A. — No. I challenged his vote, and then he showed his first papers;
and he said he got his ])apers, and had them read by the Judges. He
only produced his first papers, which were necessar}- for citizenship.

(^ — For whom did he vote, for Assemblyman, at the last general elcc-
ti(jn, on the fourth day of September, A. I), eighteen hundred and sixty-
one ?

A. — For Mr. (Jurdon. from what Coi'ey told me.

Q. — I)o you know <jne William Frazer ?

A. — I tlo know him.

Q. — Did he vote at I hi' I'reeinct of Squatterville, Marin County, on
that day, on the fourth day of September, eighteen hundred and sixty-
one ?

A. — Yo8.

Q. — For whom did he vote, for Assemblyman, on that day ?

A. — For Mr. (roi-dun. Jle (Frazer) told me so.

[Here Mr. (iordon in person objected, upon the same ground as be-
fore.]

C^. — State whether or not the said Frazer was a citizen of the United
States on the fourth day of Sc'j)temlier, eighteen hundred and sixty-one.

A. — He has got out his |)a])frs since the fourth of September, eighteen
hundred and sixty-one. He ( Frazer himself) told me so.

[To whicli Mr. Crordon objects, for the same reason as above.]

[It is here admitted by Mr. Gordon, in person, that the said Frazer
and Corey did vote at the Squatterville Precinct on the fourth day of
September, eighteen hundred an<l sixt}-one.]

CROSS KXA.AIINATION.

Q. — What dill the Judges decide in reference to the right of Corey to
vote ?

[Here, objection was taken by McAllister's Counsel, upon the ground
that it is irrelevant and immaterial, and inadmissible.]

A. — The vote was sworn in.

Q. — What did Corey say in reference to his coming here under- age ?

A. — He .said he came here under age, and his first papers were all that
were required.

Q. — How do you know bow Corey voted ?

A. — In the nioi-niiiii;, when lie came. I handed liim one of the tickets
with a Kopuhliean heading, but with McAllister's name for Assembly on
it, and he looked the ticket over until he came to MeAllist(?i-'8 name, and
he then said, " There's a man's name that 1 will not sujtport." He said
he could not support A. McAllister for Assembly. He gave me the ticket
back. I know also that he worked for the liepublican ticket on that day.
I did not see the ticket he put in, and I do not know Ihjw he voted, ex-
cept from what he told me before he voted.

Q. — Did you see William Frazer vote '{

A. — 1 did not see the ticket he voted.

Q. — How do you know he'(William Frazer) was not a citizen at that
time?

A. — Because he got his papers out since that time.

Q. — Did you see him get his jiapers out ?

A. — No. 1 don't know anything more than what Frazer told me him-
self. Frazer told me, after he voted, that he voted for Mr GordoQ.

Q. — Did you see him vote ?

A.— Yes.

DIRECT EXAMINATION RESU.MED.

Q. — Of what country is Hiram Corey a native ?
A. — Canada, 1 think.

Q. — Of what country is William Frazer a native ?

A. — 1 ilon't know what country, but 1 don't think he is a native of the
"United States of America.

CROSS EXAMINATION RESUMED.

Q. — Do you know of what country he is a native ?
A. — I think he is from Canada ; but am not quite sure.
(^. — Do you know if he lives here ?
A. — His father lives in this county.

His

J. O. B. y. SHORT.

mark.

State of California, )

Marin County. |
We, the undersigned, Commissi) mcrs, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister Jtespondcnt, is correct,
as given by J. O. B. Short, who, after hearing the same read to him, and
he making all necessary corrections, signed the same in our ])resence, at
the Court House at San Rafael, in said county, on the twenty-third day
of January. A. D. eighteen hundred and sixty-two.

W\ S. HUGHES,
J. T. STOCKER,

Commissioners.

State of California, }

Marin Count v. j
Before James T. Stoeker and William S. Hughes, Justices of the >eace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election hetween Alexander Gordon.

Contestant, and Archibald C. McAllister, Eespondent.

DEPOSITION OF JOHN De FRIES,

A witness produced, sworn, and examined, in Ihc matter of the con-
tested election on the part of A. C. McAllister, Kcs|)()n<lcnt, and before
the foregoing name! Justices of the Peace of Marin County, in pursuance
of a commission issued by the Asssembly on the fourteenlth day of Jan-
uary. A. I), eighteen hundred and sixty-two, and directed to the afore-
said Justices ; which said commission is^ittached to the depositions taken
in this matter.

JOHN UV. FItlKS, aK.CAKLKI).

(2- — State if 3'ou know of what country William Frazer, mentioned
above in the testimony of Short, is a native.

A. — Ho is a native of the Kingdom of Croat Britain.

CROSS KX AMI NED.

(l- — How do you know that he is a native of the Kingdom of Croat
Britain ?

A. — Ho, Frazer, has frcfpiently told me so.

JOHN Dh FEIES.

State of California, 1

Marin County, j
Wo, the undersigned, Commissioners, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander (iordon is Contestant, and A. C. McAllister JJespondent, is correct,
as given by .lohii He Fries, who, after hearing the same read to him, and
he making all the necessary corrections, signed the same in our presence,
at the Court House at San I'afael. in said county, this twenty-third day
of January, A. D. eighteen hundred and sixty-two.

W. S. IirCHRS,
J. T. STOCK Eli,

Commissioners.

State of California, )

Marin County. J
Before James T. Stockcr and William S. Hughes, Justices of the Peace

of said county, and Commissionei-s duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF PETER TODE,

A witness ]>roduced. sworn, and examined, in this matter, on the part
of A. C. McAllister, Respondent, and before the foregoing Justices of

the Peace of Marin County, in pursuance of a commission issued by
the Assembly on the fourteenth day of January, A. I), eighteen hundred
and sixty-two, and directed to tlie aforesaid justices; which said com-
mission is attached to the depositions taken in this matter.

PETER TODE, SWORN.

I am a resident of this county, and have been this hist two years. I
was in Marin County on the hist election, on the fourth day of Septem-
ber, eighteen hundred and sixty-two.

Q. — l)id you vote on that day ?

A.— Yes.

Q. — Where did 30H vote on that day?

A. — At the Novata Precinct.

Q. — Did you vote on that day for Member of Assembly ?

A. — Yes.

Q. — For whom did you vote, for Gordon or for McAllister?

A. — I decline to answer that question.

Q. — Why do you tlecline to answer that question ?

[Here Mr. Ciordon objects to the (juestion.]

A. — The reason I decline is, that they were b<Hh strangers to me, and
no other reason.

Q. — Have you any objection to state here, under your oath, for whom
you voted for Assemblyman on that day ?

A. — I could not swear for whom I voted.

Q. — To the best of your knowledge state for whom you voted.

A. — I think I voted for (Jordon, but I will not swear to it.

Q. — Of what country are you a native ?

A. — I am a native ot (iernuiny.

Q. — Have you become a naturalized citizen of the United States?

A. — Yes, Sir.

Q. — What age were you when you came t" i'"' I'liited States ?

A. — About twenty years of age.

Q. — Where were you naturalized ?

A. — In this place, in Marin County.

Q. — In what Court did you get your papers out?

A. — I got my i)a])ers out in this Court. I got my first papers about
seven years ago, and five years afterwards got my second papers. I am
a citizen of the United States of America.

Q. — Were you at the polls at I^ovata at the closing of them on that
day, the fourth day of September, eighteen hundred and sixty-one ?

A. — I don't know.

PlilTEll TODE.

Statk of California, )

Marin County. )
We. the undersigned, Commissioners, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister lies]>ondent, is correct,
as given by Peter Tode, who, after hearing the same read to him, and he
making all the necessary corrections, signed the same in our presence, at
the Court House at San Rafael, on the twenty-fourth day of January,
A. D. eighteen hundred and sixty-two.

W. S. HUGHES,
J. T. STOCKEJi,

Commissioners.

State of California, |

of Haul county, and Comnii.ssioncrs duly appointed.
In the matter of the Contested Election between Alexander Gordon
Co.,te«tant, and Archibald C. McAllister, licspondent. '

DEPOSITION OF R. II. IRWjj^

A u-itneas produced, sworn, and examine.l, in the matter of the con
estod e ect.on, on the part of A. C. McAllister, Responden. and before
the foreiro.n^. named Justices of the Peace of Marin County in pursu
Ianun^v\";r"'T';'" 'r""l 'T''" ^^--"'^b- on the fourteenth ^ of
iid Ju'st'iilis w'r ''" """''"'•' ""^ ^i>^ty-two,and directed to the afbre-
i.rthis mutu;. ' ^-'"'u.ss.on .s attached to the depositions taken

ROHKUT 11. lUWl.N, SWORN.

I am a resblent of Marin County. I live on Novata Point, and have
been l.vmK there this last five years. I am a citizen of the Uni ed States
I am a native ot Scotland.

(^— When and where were you naturalized?

A.— In San Francixo. lately, before the election, about the first of Au.
;,'ust. eii^htcen hundred an. I sixty -one.

(^— When did you come to the United States first?

'V~i.-* ''""^' ^" *''''''""''"'si '" ci«;htcen hundred and fifty.
^l—\\ hat i.a].crs did you get ?

A.— I declared my intentions two years before I got my papers in San
hrancisco; the first papers were filed in the Clerk's ollice in Marin

• *f ~^^'^''*^' 3;«u at the general election, on the fourth of September,
eigliteen hundred and sixty-one, in Marin County?
A. — Yes.

(^— NVhat j.recinct did you attend ?

''^- — ^'«>vata Precinct, Marin County.

<^— Did you vote on that day for Assemblyman ?

A.— I cannot say. If he was on the ticket I must have voted for him
1 voted the Republican ticket.

^^ — Were any of the names on the ticket scratched off?

A.— One or two were scratched out. One was the Sheriff, and the
other the County Clerk. The Assemblyman's name was not scratched

Q.— Were you there at the time the polls were closed on that day ?
A. — No. ''

CROSS EXA.MINATION, BY MR. GORDON.

Q— Do you know who you voted for, for Member of Assembly?
A.— I do not know. I do know that I voted the Republican ticket

•ROBERT II. IRWIN.

State of California, )

Marin County, f
He, the undersigned, Commissioners, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister ResiJondent, as given

by Robert 11. Irwin, is correct, wbo, having; tbo same read to him, and

he making all the necessary corrections, signed the same in our presence.

at the Court ITouse at San Jiafael, this twenty-fourth day of January.

A. D. eighteen hundred and sixty-two.

W. S. nUCJlIES,
J. T. STOCK KU,

Commissioners.

Statk of California, )

Marin County. J
Before James T. Stocker and "William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon.

Contestant, and Archibald C. McAllister, llespondent.

DEPOSITION OF PETER SMITH,

A witness produced, sworn, and examined, in this matter, on the pari
of A. C. ^IcAllister, Resj»ondent. and before the foregoing Justices of the
Peace of .Marin County, in ]>ursuance of a commission issued by the As-
semlily on the fijurtcenth (hiy of January, A. I), eighteen hundi-ed and
sixty-two. and directed t(» the aforesaid Justices; wliich said commission
is attached to the depositions taken in the above matter.

PETER SMITH, SWORN.

I am a nsickMit of Ma.rin County, and have boon, this last eleven years.
Was living at Xovata I'ri'cinct. Marin County, on the fourth day of Sep-
tember, eighteen bundri'd and sixty-one. arid voted thei-e on that day.
Was present at the polls all day. from the time they were opened.

Q. — Were you present when the polls u.ji' closed at Novata Precinct.
Marin County, on that day?

A. — 1 was present.

Q. — What o'clock were they closed on that day ?

A. — I lookt'cl at inv watch, but cannot exactly recollect what time it
was.

Q. — Was it befoi e or after sunset?

A. — The ]tolls w. re closed before sunset.

Q. — How long were the polls clo.sed, before sunset?

A. — As near as I can state, they Avere closed about ten minutes before
sunset.

Q. — Dill any persons, on that day, after the polls were closed, and be-
fore sunset, present themselves to vote?

A. — Yes; one.

Q. — Do you know whether or not that vote was received ?

A. — It was not received.

Q. — Do you know for whom that vote would have been cast — for As-
semblyman ?

A. — No; I do not know. The name of the person, whose vote was
not received, was Collins Laner. He did not tell me.

CROSS EXAMINATION.

Q — How long was it, before that person came to the polls, before sun-
set?

A.-Aboutfoiir TTiinntes after the polls were closed ; and I culled the
attent.or. ot the Judges to the iuct that the sun M-as then shining on the

^i- — Could you see the sun?

A.— I could not see the sun itself, but I could see it shinin- on the hill
U::;^:^Z2:Z:i'' "" shmin, one quarter of an hour after it

PETER SMITH.

State of California, ]

w^ .. I • , r, . Marin County, f

We, the unders.^rned. Commissioners, do hereby certify that the above
testimony, takc-n.n the matter of the contested election, wherein Alex-
ander Gordon IS Contestant, and Archibald C. McAllister Respondent is
correct, as iriven by IVter Smith, who, after hearinir the same read' to
him. and he nmkmi,' all the necessary corrections, siirned the same in our
presence, at the (V.urt House in San Rafael, in saidVountv, this twenty-
tourth day ot January, A. D. ei;ri,teen hundred and sixty-two.

W. S. IH'CIIKS,
J. T. STUCKER,
Commissioners.

Statk of California, )

„ ,. - „, ., . Marin County. \

Before Jamos T. Stocker and William S. Ilu^'hes. Justices of the'Peace

of Marin county, and Commissioners duly a])pointcil.

In the matter of the Contested Klection between Alexander Gordon,

Contestant. aii<l Archibald C. McAllister, Respondent.

DEPOSITION OF WILLIAM FRAZER,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. MeA Mister, Respondent, before the foregoin<^ named Justices of
the Peace of Marin County, in pursuance of a commission i.ssued by the
Assembly on the fourteenth day of January, A. I), eighteen hundred and
sixty-two, and directed to the aforesaid Justices; which said coniniission
is attached to the depositions taken in this matter.

WILLIAM FRAZKR, SWORN.

I have been living, off and on. in this county for the last five years. I
am a native of Scotland.

Q. — Have you ever become a naturalized citizen of the United States?

A. — I docline answering that question.

Q. — State why you decline to answer that question ?

A. — For reasons best known to myself.

Q. — Do you decline answering that question because the answer would
tend to criminate yourself?

A. — In my own opinion, it would not criminate myself.

Q. — Would it criminate you in the opinion of any one else?

A. — I decline to answer that question.

Q. — Did you not vote in Marin County, on the fourth of September,
eighteen hundred and sixty-one, at the general election, at Squatterville
Precinct ?

A. — I decline answering that question.

WILLIAM FRAZER.

State of California, )

Marin County, j
We, the undersigned, Commissioners, do hereby certify liiat the above
testimony, taken in the matter of the contested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister lies])ondcnl, is correct,
as given by William Frazer, who, after the same was read to him, and
he making all the necessar}- corrections, signed the same in our pres-
ence, at the Court House at San IJafaol. in said county, this twenty-
fourth day of January, A. D. eighteen hundred and sixty-two.

W. S. IlfiJHES,
J. T. STOCK KR,

Commi-ssioners.

State of California, |

Marin County. |
Before James T. Stocker and William S. Hughes. Justices of the Peace

of said County, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon.

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF DAXIEL T. TAYLOR.

A witness produced, sworn, and examined, in this matter, on the part
of A. C. .McAllister, Re^pondcTit. before the foregoing Justices of the
Peace of Marin County, in jmrsuance of a commission issued by the As-
sembly on the fourteenth day of January, A. D. eighteen hundred and
sixty-two. and directe/i to the aforesaid Justices; which said commission
is attached to the depositions taken in this matter.

DANIEL T. TAYLOR, SWORN.

I am a resident of Marin County-, and have been for the last eleven or
twelve years. I have been the County Clerk for the last six years.
I have in nn' custody all the poll lists of Marin County of the last gen-
eral election.

[Witness here produced the poll list that was taken at Squatterville
Precinct on the fourth of September, eighteen hundred and sixty-one ;
that is to say, a list of the persons who voted at Squatterville Precinct
on that day. The witness, upon inspection of the said poll list here pro-
duced, states that he finds the name of William Frazer, the witness who
testified above, registered on said poll list.]

Q. — Do you know whether or not the said Frazer was a citizen of the
United States on the fourth day of September, eighteen hundred and
sixty-one?

A. — I know he was not a citizen on that day, the fourth day of Sep-
tember, eighteen hundred and sixt3--one. because on the fifteenth da}' of
October, eighteen hundred and fifty-nine, he took out his first papers
before me. as Clerk of the Seventh District Court, of Marin County, and
on the fifth da}' of November, eighteen hundred and sixty-one, he took
out his last papers before said Court.

Q. — Look at the Squatterville poll list and state if Hiram Corey's
name is registered as a voter on that list ?

A. — After examining the poll list, I find his name there registered,
under Number Two.

00
CROSS EXAMINATION.

Q- — Were you at the polls on the fourth day of September, eighteen
hundred and sixty-one, at S([uattervillc ?

A. — I was not.

Q. — How do you know that William Frazer, whose name is on the
poll list, is the same man that testified here before "i*

A. — I do not know of my own knowledge, but I am informed it is the
Bamu man.

IIIKECT EXAMINATION RESUMED.

Q. — Look at the poll list and see if you find any other William Frazer's
name on that list '!

A. — There is only one William Frazer on that list.

(^. — Do you kn<»w of any <»ther William Frazer in the County of Marin
than the one that heretofore testified 'i

A. — No, I do not.

DANIEL T. TAYLOR.

State of C'ai.ifohnia,

»HNIA, )

Marin County. )

We, the undersigned. Commissioners, do hereby eertity that the above
testimony, taken in the matter of the contested election, wherein A.
fiordon is Contestant, and A. C. McAllister Kespondcnt, is correct, as
given by D. T. Taylor, wIkj, after hearing the same read to him, and he
making all the necessary corrections, signed the same, in our ])resence,
at the Court House, in San Uafael. in said county, this twenty-fifth day
of January. A. D. eighteen hundred and sixty-two.

WM. S. HUGHES,
J. T. STOCK Ell,

Commissioners.

State of California, "I

.Marin County. |
Before James T. Stockcr and William S. Hughes, Justices of the Peace

of said count}-, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF ANISETTE FUENTES,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister. Respondent, before the foregoing named Justices of
the Peace of Marin Countv. in pursuance of a commission issued by the
Assembly on the fourteenth day of January, A. D. eighteen hundred
and sixty-two, and directed to the aforesaid Justices ; which said com-
mission is attached to the depositions taken in this matter.

Guiscppi Angelotti, sworn as interpreter.

anisette FUENTES, SWORN.

I am a resident of Marin County. I am not a naturalized citizen, but
I am a Mexican.

Q.— Where was you born ?

A. — In El Paso del Norte, in Mexico.

Q. — Have you ever received any papers by which you were naturalized
as an American citizen?

A. — No ; I never received any papers.

Q. — Did you, on the fourth of September, eighteen hundred and sixty-
one, in Marin County, vote '(

A.— Yes.

Q, — At what precinct did you vote?

A. — At Novata Precinct.

Q. — State whether you voted the Democratic or Tlepublican ticket ?

A. — I voted the Re])uhlican ticket.

Q. — State for wlioni you voted, for Assemblyman, on that day — for
McAllister or for Gordon ?

A. — I don't know. I cannot read; but I voted the Republican ticket.

Q. — State wliether or not any names were scratched out on the ticket ?

A. — I don't know whether or not any names were scratcheil off.

Q. — Wlio gave you the ticket you voted on that day 'i

A. — 1 do not know who it was.

Q. — AViiat time wei-e the polls closed on that day ?

A. — I don't know.

Q. — Do you know the name of any perstui on the ticket that you
voted ?

A. — I do not know the nan^.e of one jierson.

CROSS EXAMINATION, BY A. <iORDON.

Q. — Are you sure this was on the fourth day of September, eighteen
hundred and sixty-one, or any other <lay ':'

A. — I don't know whetlur it was the fourth of September, or any
other day.

Q. — Was it not in October you voted there ?

A. — I cannot remember.

Q. — Was there more than one name on the ticket you voted?

A. — I tlon't know how many names were on it. There was some
scratching on it.

Q. — Were you at an election on tlie tit^eonth of October, eighteen hun-
dred and sixty-one?

A. — No. I was not.

Q. — How do you know it was a Republican ticket you voted?

A. — I was told so.

Q. — Do you know the diftorcnce between a Republican and a Demo-
cratic ticket ?

A.— No.

RE-DIRECT EXAMINATION.

Q. — Did the person who told you it was a Republican ticket, tell you
that Mr. Gordon's name was on the ticket?
A. — No, he did not.

RE-CROSS EXAMINATION.

Q. — When that ticket was given to vou, was it folded up ?

A.— Yes.

Q. — Did you open that ticket before you voted ?

A. — I voted it without opening it. His

ANISETTE X FUENTES.
mark.

State of California, )

Marin County. ^
We, the inulcrsii,'no(l. Commissioners, do hereby certity that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander (iordon is Contestant, and Archibald C. McAllister Respondent, is
correct, as ;;iven l.y Anisette Fuentes, who, after hearinir the same read
to him. and lie making all the necessary corrections, signed the same in
our presence, at the Court House at' San Rafael, in said county, this
twenty-fifth dav of January, ei<rhteen hundred and sixtv-two.

WILLIAM s: 11U(;1IES,
J. T. STOCKEK,

Commissioners.

Statk of California, )

Marin County, j
Before James T. Stocker and William S. Iluj^hea, Esquires, Justices of

the Peace of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant. an<l Archibald C. McAllister, Respondent.

DKPOSITION OF .L\MKS T. STOCKER,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister. Respondent, before the fore£join<r named Justices of
the Peace of Marin County, in pursuance of a commission issued by the
Ansembly on the fourteenth dav of January. A. D. eighteen hundred and
sixty-two, and directed to the aforesaid Justices; which said commission
is attached to the depositions taken in this matter.

JAMES T. STOCKER. SWORN.

I am a resident of Marin County, and have been for the last eleven
years. 1 was in Marin County on the tburth of September, eighteen
hujidred and sixty-one. Was present at Novata Precinct. ^Lariu County,
at the last general election, held on that day. and voted there.

t^. — Do you know Anisette Fuentes. the witness last above mentioned,
and were you present during his examination, and did you hear his testi-
mony ?

A. — I do know him, and was present, and heard all that he said.

Q. — Did you see the said Anisette Fuentes at the polls at Xovata Pre-
cinct, Marin County, on the fourth of September, eighteen hundred and
sixty-one '

A*.— I di.l.

(^. — Di<l he vote on that day?

A.— He did.

Q. — State, if you know, for whom he voted for Member of Assembly,
on that day?

A. — I know he voted for Mr. Gordon.

Q. — Were you present at the closing of the polls there on that day?

A. — 1 was.

(^. — .State what time they were closed, before or after sunset ?

A. — Before sunset they were closed.

Q. — IIow long before sunset ?
8

A. — About fifteen or twenty minutes before sunset. T cannot state
exactly. Mr. Smith came and stated that Mr. Laner was there, and
wanted to vote. The polls were closed, and he (Laner) asked the Judges
if he could not vote. The}- told him that he was too late, so he could not
vote. Mr. Smith asked the Judges to come out and see that the sun was
not down j'et. Laner did not vote.

Q. — IIow long was it after the polls were closed, and before sunset, that
Laner presented himself to vote f

A. — Mr. Laner came out and said it was a shame that he could not
have a chance to vote. It was then a few minutes after the closing, and
they had just commenced counting off the votes, and before sunset.

Q. — Do you know of any other persons who presented themselves to
vote after the closing of the polls, and before sunset, than the said
Laner ?

A. — 1 know of no other than one that ^^r. Tianer told me of

CROSS KXAMINATION.

Q. — How do you know how Anisette Fuentes voted on that day?

A. — I saw his ticket.

Q. — IIow long before he voted did you sec his ticket ^

A. — I saw his ticket before it was folded, and all the time until it was
put in the ballot box.

Q. — Did you read every name over on the ticket ?

A. — No. Did not Imve enough time.

Q. — Are you sure that (Jordon's name was on the ticket?

A. — Yes, I am sure of that.

Q. — You don't thiidc it was possilde for that man to change the ticket?

A. — Don't see 1»oav he couKi. when I was standing within tiiteen inches
of liim all the time.

Q. — Might he not have had two tickets in his hand ''

A. — I know he had no other ticket in his hand.

DIRECT EX.VM1N.\TI(»N RESU.MED.

Q. — What year did Anisette Fuentes, the witness that testified above,
first come to California ?

A. — All I know al)out that is, what he. Fuentes, swore to before the
Judges at the Xovata Precinct, on the ioui-th September, eighteen hun-
dred and .sixty-one. when his vote was challenged l)y me. lie, the wit-
ness, Fuentes, stated that he came to California first in eighteen hundred
and fifty-two. He stated that under oath.

Q. — State if you know for whom William Frazer, the witness who tes-
tified above, voted at the last general election, on the fourth day of
September, eighteen hundred and sixty-one, held in Marin County, for
Assemblyman ?

A. — Only from what he, Frazer, said. I heard him, Frazer, tell Mr.
O. Short, on the verandah of A. M. Gordon's saloon, in San Uafael, that
he, Frazer, voted for A. Gord(jn for Assemblyman, and he gave reasons
why he so voted. It was some week or two after the election.

[Here Mr. Gordon objected to the testimony, on the ground of so much
of it being hearsay.]

CROSS EXAMINATION.

Q- — Do you think that Anisette Fuentes, the witness who testified
above, understood the nature or substance of the oath that was admin-

istcrcd to him on llie tlay of election, held on last fourth September.
ci«i;hteen hundred and sixty-one i*
A. — I do not think he did.

DIRECT RESUMED.

Q- — Was the oath interpreted to him before .swcarinj;?
A. — It wa.s. The interpreter told him he would hold him harmless.

J. T. STOCK EE.

State of California, )

Marin County, j
Wo, the undersigned. Commissioners, do hereby certify that the'above
testimony, taken in the mutter of the contested election, wherein Alex-
ander (Jordon is Contestant, and A. C. McAllister Respondent, is correct,
as iriven by J. T. Stocker. who. after heariiiir the same read to him, and
he makin*; the ne(fs>ary cfjri'ections. sii^ned the same in our presence, at
the Court House in San Rafael, in said county, this twenty-tifth day of
JaiHiarv. A. I), eighteen hundred and sixty-two.

WM. s. HUGHES,

J. T. STOCKER,

Commissioners.

State of California, \ .

Marin County, j
Before James T. Stocker and William S. Hu<;hes. Justices of the Peace

of said county, and tV^mmissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Respondent.

DEPOSiTiox OF I^IRA:^r corey,

A witness ]>roduced, sworn, and examineil, in this matter, on the part
of A. C. McAllister. Respondent, before the ioregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
issued by the Assembly on the fourteenth day of January. A. D. eight-
een hundred and sixty-two. and directed to the aforesaid Justices; which
said commi.ssion is attached to the depositions taken in this matter.

HIRAM COREY, SWORN.

Q. — Where do you reside?
A. — At Squatti'rville. Marin County.

Q. — l[ow lon-x have you been a resident of Marin County?
A. — I have been a resident of Marin County since eighteen hundred
and fifty-two.

Q. — Of what country are you a native?

A. — I was born in Canada.

Q. — Dia you ever become a citizen of the United States?

A.— I thi'nk I have.

Q. — Wla-n <lid you declare your intention to become a citizen?

A. — I declared my intention in eighteen hundred and fifty-three.

Q. — When did you get your last jjapers, admitting you to citizenship?

A. — I have not got them.

Q._Di,l jrou not apply to the District Court, in November last, to get
your eitizensliip?

A.— No.

Q. — Do you mean to sav that vou never received your second papers?

A.— No.

Q. The only step 3'ou have ever taken to bcconio a citizen was the

filing of your declaration of intention to become a citizen ?

A.— Yes ; that is all.

Q. — Did you not vote at Squatterville Precinct, Marin County, on the
fourth of .September, eighteen hundred and sixty-one, at the general
election, for Assemblyman ?

A.— Yes.

Q. — For whom di<l you vote ?

A. — I decline answering that question.

Q. — Why do you decline answering that question '!

A. — Because I do not wish to. I decline stating whether 1 voted the
Republican, or Democratic ticket.

CROSS KXAMINATION.

(I. — r)id von come to this count rv under ago ?

A.— Yesj I did.

Q. — Is your father living in this country ?
^ A.— Yes.

Q. — Where was your father born ?

A. — He was born in the State of New York. I don't know exactly
where.

(}. — Does he still live in this country, and exercise the right of citi-
zenship ?

A. — Yes.

Q. — Have you ever consulted any lawyer in regard to y<jur right to
vote ?

A. — I have consulted Mr. Chandler.

Q. — What was Ins opinion about that 't

A. — lie said I was a citizen of the United States.

PIRKCT EXAMINATION RESUMED.

Q. — Don't you know that youi- father, when he came to the United
States, tiled a declaration of his intention to become a citizen of the
United States ?

A. — No ; I do not.

Q. — Did you see J. O. B. Short, tlie witness who formerly testified in
this case, at the Squatterville Precinct, Marin County, on the fourth day
of September, eighteen hundred and sixtv-one ?

A.— Yes.

Q. — Did he show you, then and there, a ticket with McAllister's name
on it for Assemblyman '.

A. — Yes ; he showed me twf^ — one with McAllister's, and one with
Gordon's name on.

Q. — Did you not then tell him — or if not then, some time during the
day — that you could not vote for McAllister for Assemblynuin, or that
you would not sup|>ort him for Assemblyman, or words to that effect ?

A. — I don't recollect ever saying any such thing to Mr. Short.

Q. — Do you recollect ever saying any words to that effect ?

A. — No ; I do not.

Q. — State, then, what you did say to him.

A. — I do not rofolloc-t sayiiii; uiiythiui^ to him.

Q.— Did the said Short ask you to vote for McAllister, on that day ?

A. — I don't recollect his asking that question.

Q._I)id the said Short, on that day, ask you to vote a ticket which
had upon it the name of McAllister, for Assomhlyman 't

A. — Yen ; he did.

Q. — What did you reply to him ?

A. — I told him I would see.

Q. — Did you tell him afterwards?

A. — No ;*I did not.

(^. — Did you at any time look over the ticket that he, Short, handed
you, and say to him. Short, that thei-e was one name upon it that you
would not sii|iport. or one man there that you would not support, or
word.s to that etlecl 'i

A. — I don't recollect of 8ayin<^ that.

<i. — Do you say positivelv. th^t you did not say that to Mr. Short?

A. — I cannot swear that 1 di<l not say it.

(l- — Do yf»u decline answering for whom you voted, for Assemblyman,
on that dav ?

A.— Yes; I do.

(^. — How l«»ns; have yon been in this count ly — ('alifornia ?

A. — Since Ki'bruary, eiijhteen hun«lred and fifty-two, and worked a
year and five months pri'cedini; that in Vermont. I an-ived the first
time, in ei^jhteen hundred and fitly, in the United States. I am thirty-
onfe yearn ohi next March.

(^. — You say you will be thirty-one years old the seventh of next
March ; do you mean to state, upon your oath, that you will not be older
than thirty-one. tni the seventh of >larch next ?

A. — Yes.

Q. — What year were you l»orn in ?

A. — I was born in the year eighteen hundred and thirty-one, or eight-
een hundred and thirty-two. I don't exactly recollect now.

(^. — What month and what year did you leave Canada?

A. — In September, eighteen hundred and tifty, I think.

Ill RAM COREY.

State of California,

Marin County.
We. the undersigned. Commissioners, do hereby certify tliat the above
testimonv. taken in the matter of the contested election, wherein Alex-
ander GoVdon is Contestant, and A. C. McAllister Respondent, is correct,
as given by Hiram Corey, who. after hearing the same read to him, and
he makini^ the necessary corrections, signed the same in our presence, at
the Court"" House at San Rafael, in said county, this twenty-fifth day of
January, A. D. eighteen hundred and sixtv-two.

" W. S. HUGHES,

J. T. STOCKER,

Commissioners.

State of California, ")

^Marin County, j
Before James T. Stockcr and William S. Hughes, Justu-es of the Peace

of said county, and Commissioners didy a])i)ointcd.

In the matter of the Contested Election between Alexander Gordon

Contestant, and Archibald C. McAllister, JicspiMident.

DEPOSITION OF S. U. WALKKIJ,

A witness ])i"oduced, sworn, and examined, in this matter, on the part
of A. C. McAllister. Kespondent. and before the foregoing named Jus-
tices of the Peace of Marin County, in pursuance of a commission issued
by the Assembly on the tburtt'cnth day of .lanuaiy, A. D. eighteen hun-
dred and sixty-two. and directed to the aforesaid .lustices; which copy
oi" said eommission is atiacheil to the depositions taken in this matter.

8. II. WALKLU, SWOUN.

lias been a resident of Marin County ever since October, eighteen
hundred and tifty-iiine.

t^. — Did you attend the ])nlls at S(piaiterville I'recinet, Marin County,
on the Iburth of September, eighteen hundred and sixty -one ?

A.— Yes.

Q. — You voted there on that occasion ?

A. — Yes. I voted for Mr. (iordon, for Assemblyman, at the S(|uatter-
ville Pi-ecinct on the last fourth of Septembn-. eighteen hundred and
sixty-one.

Q. — Where was you born ?

A. — I was born in Poland, Cumberland County, what was then tlu
State of Massachusetts, now the State of Maine.

Q. — You are, then, a citizen of the United States l*

A.— Yes.

S. II. WALKER.

State of Califounia, 1

Marin County, j
We, the undersigned, Commissioners, do herel)y certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander Gordon is Contestant, and Archibald C. McAllister Respondent, is
correct, as given by S. II. Walker, who, alter hearing the same read to
him, and he making all the necessary eorrections, signed the same in our
presence, at the Court House in San Rafael, in said county, this twenty-
fifth day of January, A. D. eighteen hundred and sixtv-two.

W. S. HUGHES,
J. T. STOCK ER,

Commissioners.

State of California, |

_, . T rw, -^ . Marin County. \

Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly ajDpointed.

In tlu" matter of the Contested Election hctween Alexander Gordon,

Contestant, and Archibald C. McAllister, Eespondent.

DEPOSITION OF PETER O'NEILL,

A witnesH pniduccd. sworn, and examined, in this matter, on the part
of A. C. McAllister, Hespondent, hofore the foro«:;oing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commission
issued hy the Asscmhly on the fourteenth day of January, A. 1). eighteen
hun<lred and sixty-two, and directed to the aforesaid Justices; which
coi)y of said commission is attached to the depositions taken in this
matter.

PKTKU O'NEILL, SWOUN.

(^. — Where do you reside ?

A. — In Holinas, Marin (.'ounty, and have been living there about a
year, or a little over.

Q. — Where was you born?

A. — I was born in Ireland.

<i>. — When did you tirst come to the United States ?

.\. — I deidine answering that question.

<i>. — Have you ever become a naturalixod citizen of the United States?

A. — I decline answering that <piestion.

t^ — I>id you vote at the last general election held on the fourth day of
September, eighteen hundred and sixty-one, in Bolinas Township, Marin
(/ounty ?

A. — I decline answering that question.

<l. — Do you decline answering the questions because the answers would
tend to criminate yourself;'

A. — No. I do not.

<^. — Why then do you decline answering?

A. — Because I don't want to answer.

(^. — Are you a naturalizeil citizen of the United States?

A. — I decline answering that question.

(^. — Why do you decline answering that question ?

A. — Because I don't want to. I cannot give any reason for not answer-
ing that question.

(}. — Are you a citizen of the United States ?

\. — I am not a full citizen of the United States.

i}. — When did you first declare your intention ?

A. — One year jigo last .lune. Jn June, eighteen hundred and sixty.

<2. — Have 3'ou got your second jiapers 3'et?

.\. — No. I have not got my second papers yet.

(^ — Did you vote at the last general election, held in Marin County,
on the fourth of September, eighteen hundred and sixty-one?

A. — I decline answering that question.

{}. — State the reason why 3'ou decline answering that question ?

A. — I decline answering that question because 1 don't know whether I
voted or not.

Q. — Were a'ou at the polls at Bolinas Precinct, Marin County, on the
fourth of September, eighteen hundred and sixty-one ?

A. — I don't know whether I was there or not.

Q — J^o you know for whom vou voted, lor Assemblyman, on that
day y

A. — No, I do not.

PETER O'NEILL.

State of California, }

Marin County, j
We, the undersigned, CommiHsionerH. do hereby certify that the abov(
testimony, taken in the matter of the contestetl ehn-tion. wherein Alex-
ander Gordon is Contestant, and A. C. McAllister lie.spondent, is correct,
as given by Peter O'Neill, who. after hearing the same read to him, and
he making all the necessary corrections, signed the same in our presence,
at the Coiiit House in San Itafacl. in said county, this twcnty-tifth day ol
January, A. D. eighteen humlred antl sixty-two.

W. S. 1IU(tIIKS,
J. T. STOCKKU,

Commissioners.

State of California, )

Marin County, j
Before James T. Stockcr and William S. Ilughcp, Justices of the Peace

of said county, and^'ommissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF I'F.'l'F.i; BROWN,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister, Respondent, before the foregoing named Justices of
the I'eace of Marin County, in pursuance of a commission issued by the
Assembly on the fourteenth day (»f January, A. 1). eighteen hundred and
sixty-two, to the aforesaid Justices; which copy of said commission is
attached to tlie depositions taken in this matter.

I'ETEE BROWN, SWORN.

I am a resident of Marin County, and have been these la.st six years.
I voted at the general election on the fourth of September, eighteen hun-
dred and sixty-one, at San Rafail. ilarin County.

Q. — For whom did ytui vote, for Member of Assembly ?

A. — I voted for A. Gordon, for Member of Assembly.

Q. — AVhere was you born ?

A. — In Denmark.

Q. — What year was 30U born in ?

A. — In the year eighteen hundred and seventeen.

Q- — Have you ever become a naturalized citizen of the United States ?

A. — Yes.

Q. — When, and where ?

A. — It was in eighteen hundred and forty-eight ; in Boston.

Q- — What did you do to become a naturalized citizen ?

A. — I was a seaman, and sailed from the United States, and got my
seaman's protection papers out, which I lost.

Q. — Did you ever get out any other paper ?

A. — No, Sir. I declared my intention here again, not quite three years
ago.

Q. — Since you declared your intention here ao:ain, not quite three
years ago. have you taken out any other paper concerning your citizen-
ship ?

A.— No.

CROSS EXAMINATION. BY A. GORDON.

Q. — What j)aper9 were the}- you took out here three years ago?
A. — Tliey were my intention papers. I came to this country when
I was twenty years of age.

His
PETETl X BEOWN.
murk.

State (»f California, ")

.Marin County. |
We, the undersigned. Commissioner.^, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander (lordon i.s Contestant, and A. C. ilc A Mister Kespondent, is correct,
as given by Peter Brown, who, after hearing the same read to him, and
he making all the necessary corrections, signed the same in our presence,
at the Court llousc in San Kafael, in said county, this twenty-fifth day
of January, A. D. eighteen hundred and sixty-two.

W. S. HUGHES,

Commissioners.

State of California, |

Marin County, j
Before James T. Stocker and Williani S. Hughes, .luslices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, an<l Archibald C. McAllister, Bespondent.

DKPOSITION OF COLLINS B. LANEE,

A witness, produced, sworn, and examined, in this matter, on the part
of A. C. McAllister, Kespondent, before the foregoing named Justices of
the Peace of Marin County, in pursuance of a commission issued by the
Assembly on the fourteenth day of January, A. D. eighteen hundred
and sixtv-two, to the aforesaid Justices; which copy of said commission
is attached to the depositions taken in this matter.

COLLINS R. LANER, SWORN.

1 am a resident and citizen of Marin County, and have been for nearly
five years. Am over twenty-one years of age ; I am forty years of age.

Q. Were you present at the polls held at Novata Precinct, Marin

County, on the fourth of September, eighteen hundred and sixty-one ?

A.-^Yes.

Q. — Did vou vote there on that day ?

A.— No. *

Q. — Did you otfcr to vote there on that day ?
9

— Yos; I did.

. — Wh}' did you not vote?
. — The ])()lls wore closed.

Q. — AVhiit time were the polls clo.sed on tliat day?

A. — Before sundown. The sun was shiniiiy; on the hill.

Q, — Did you call the attention of the Judges to the laet that the sun
had not set when you offered to vote ?

A. — Yes ; I did call their attention to the fact, but they said it was too
late, and they were countin;:; the votes before the sun was down.

Q. — Did you have your ticket in your hand when you went up thei-o
to vote ?

A. — Yes; 1 IkuI the ticket in my hand when 1 went there to vote.

Q. — Whose name was on that ticket lor Memher of Assembly?

A.— A. C. McAllister's.

Q. — How high was the sun when the Judges refused to receive your
vote ?

A. — It was about three or four minutes high.

Q. — Are you quite positive that when they refused to receive your
vote, the sun was still shining on the hills arounil and near you ?

A. — Yes ; I am.

• CROSS EXAMINATION, nv A. flOIlDON.

Q. — On what hill was it you saw the sun shining?
A. — On Negro Hill.

Q. — Could you see the sun shining on anv other hill ?
A.— No.

Q. — How high do you think that hill is above the level of the sea?
A. — I could not forn> any idea. It is a ti'emendous high hill. I could
SCO the sun shining on the side and top of that hill.

UE-I)IRKCT EXAMINATION.

Negro Hill is about two miles from the j)lace where I was at the
time.

COLLINS J{. LANER.

State of Calikouma, ")

Marin County, j
We, the undersigned, Commissioners, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister Kesp<jndent, is correct,
as given by Collins U. Laner, who, after hearing the same read to him,
and he making all the necessary corrections, signed the same in our
presence, at the Court House at San Kafael, in said county, this twenty-
fifth day of Januarv, A. D. eighteen hundred and si.\ty-two.

^y. S. HUGHES,
J. T STOCKER,

Commissioners.

State of California, }

Marin Count v. f
Before James T. Stockcr and William S. Iluorhcs, Justices of the 'Peaco

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF PABLO FIGUEEAS,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister, Kes])ondent. bef<tre the foregoing named Justices of
the Peace of Marin CDunt}-. in pursuance of a commission issued by the
Assembly on the fourteenth day of January, A. 1). ei,ij;hleen hundred
and sixty-two, to the aforesaid Justices; which copy of said commission
is attached to the depositions taken in this matter.

I'Altl.O FIGUERAS, SWORN.

I am a resident of the County of Marin.

Q. — Were you in the County of Marin on the fourth day of last Sep-
tember, ci^^liteen hundred and sixty-ouo 'f

A. — I was.

il- — Do j-ou know the witness, Peter O'Neill, the witness who hereto-
fore testified in this case';:'

A. — Yes, I do. I know him as well as anybody. lie was a wood
choj)pcr for me on that day. the fourth of September, eighteen hundred
and sixty-one.

(^. — Did you vote on that day, the fourtl) of September, eighteen hun-
'ii-ed and sixtv-one 'f

A.— Yes, I did.

Q. — At what precinct did you vote?

A. — I voted at Bolina« Precinct, Marin County.

Q. — Did you vote for Assemblvman on that occasion ?

A.— Yes,'! did.

(^. — For whom did you vote, for Assemblyman, on that day, the fourth
c»f Scj)teml)ei-, eiLrhtecn hundred arul sixty-one i*

A. — For Assemblyman (lordon.

Q. — Of what country are you a native?

A. — I am a native of Spain.

Q. — What year did you come to the United States?

A. — I first arrived in New Orleans in eighteen hundred and thirty-
four.

Q. — How loni; did you live there ?

A. — Three days, f then left the United States for Italy — returned
from Italy to IVru, in South America, in eighteen hundred and thirty-
seven. I came to California, the tirst time, in eighteen hundred and
forty-eight.

Q. — i)i,| yon ever become a naturalized citizen of the United States?

A.— Ye8,'l did.

Q. — State when and where ?

A. — I became a naturalized citizen of the United States on the nine-
teenth day of January, eighteen hundred and fifty-one, in Stockton, San
Joaquin County.

Q. — What steps did you take to become naturalized?

A.— I went before the County Clerk of San Joaquin County; there I

was sworn to defend the Constitution of the United States; I took tlio
usual oath heforo the County CMerk. The Court was in session at that
time, and tiie Clerk took me outside, on the veranda, and there took my
oath.

Q. — Did you do anything; else, or take any other steps in the matter
of procuring your naturalization ?

A. — No. I did nothing else. I took no other oath than the one 1
took before the County Clerk of San Joaquin County.

Q. — Did the Clerk give you any papers at that time?

A. — Yes. he dill. The ])aper was sealed with red wax; which, paper
was burned in the fire of -May, in eighteen hundred and fift3'-one.

(^. — Did you, iipon any occasion, previous to the nineteenth day of
January, eighteen hundred and tifty-one, do anything in the matter of
procuring your naturalization ?

A. — When I first arrived in California, the Custom House officer camo
on board, and inquired if there was anybody aboard that wanted to be-
come an American citizen. 1 said 1 did. Kxcept this, I did nothing
prior to the nineteenth day of January, eighteen hundred and fifty-ono.

(^. — Did you do anything subsequent to the nineteenth day of January,
eigliteen hundred and fifty-one, in the matter of procuring your natural-
ization pajiers 't

A. — No; I <lid nothing. I was in the State of California before its ad-
mission into tlio Union.

CROSS EXAMINATION.

Q. — What time did you arrive in California ?

A. — In eighteen hundred and forty-eight, on the twentieth of Juno.

Q. — Were you a citizen of Mexico?

A. — No, I was not.

Q. — Are you jiositive you voted for Gordon? Have you exercised the
right of citizenship for several years?

A. — Yes ; I have, so far as voting is concerned.

Q. — Have you ever held any office in this county ?

[Here .McAllister's Counsel objects, ujjon the ground of the question
being irrelevant and immaterial.]

A. — I have.

Q. — AVhat office have you held ?

[Same objection taken by McAllister's ( ounsel as the preceding one.]

A. — The office of Justice of the Peace and Associate Justice of the
Court of Sessions.

P. FIGUERAS.

State of California, )

Marin County, j
We. the undersigned, Commissioners, do hereby certily that the above
testimony, taken in the matter of the contested election, wherein A. Gor-
don is Contestant, and A. C. McAllister Respondent, is correct, as given
by P. Figueras, who, after hearing the same read to him, and he making
the necessary corrections, signed the same in our presence, at the Court
House at San Rafael, in said county, this twenty-seventh day of Janu-
ary, eighteen hundred and sixty-two.

JAMES T. STOCKER,
WILLIAM S. HUGHES,

Commissioners.

State of California, ")

Marin County. )
Before James T. Stockcr and William 8. Iluyhes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF FREDERICK CLARK,

A witness produced, sworn, and examined, on the part of A. C. McAl-
lister, Respondent, before the fore<,'oin<,' named Justices of the Peace of
Marin County, in pursuance of a commission issued by the Assembly on
the fourteenth day of January, oi^liteen hundred and sixty-two, and di-
rected to the aforesaid Justices; which copy of said commission is
attached to the depositions taken in this matter.

FREDERICK CLARK, SWORN.

Q. — Where was you born ?

A. — In FnuK'c.

^l- — WIkii flid you tirsl eonie to the United States?

A. — I came, the first time, in eii,'hteen hundred and fifty.

Q. — Are you a naturalized citizen of the United States?

A.— Yes.

Q. — How Ion:; have you been a resident of Marin County?

A. — Between lour and five years. I have been living at Novata Town-
ship, ^farin County.

t^. — Wire you at Novata Township, Marin County, at the last general
election, held on the fourth day of September, eighteen hundred and
sixty -one?

A. — I was there.

Q. — Did you vole there on that day ?

A. — Yes, I did. I voted for Member of Assembly on that day.

Q. — For whom did you vote for Assemblyman — for McAllister or Gor-
don ?

A. — I know, but I don't wish to say.

Q. — Why don't you wish to state ?

A. — That is my secret.

Q. — Did you not state to a gentleman at San Rafael that you voted for
A. Gordon for Assemblyman?

A. — Possibly I did. It was to .Mr. .lumes Dixon.

Q. — Have you ever been naturalized, and become an American citizen?

A. — Yes. I was naturalized in New Orleans in eighteen hundred and
fifty-two.

Q. — State what steps you took to become an American citizen ?

A. — I was a sailor. I sailed from New Orleans, from eighteen hundred
and fifty to the year eighteen hundred and fifty-two, in American ships.

Q. — Wliat other steps did you take ?

A. — A man in the Custom House, in New Orleans, asked mo if 1
wanted to become naturalized. I told him Yes, that 1 did. He asked
me how long I had been in the State. I told him about two years. Ho
asked me the same day twice. He told me I bad to pay five dollars to
become an American citizen. He told me to take a voyage of three or
four months, and when I should come back, by paying him five dollars,

I should receive my naturalization papers; and when I came back I paid
him five dollars, and he gave me ni}- papers.

Q. — vState if 3'ou ever took any other step ?

A. — No ; I never took any other stops, nor got any other papers.

F. CLARK.

State of California, )

Marin County, j
We, the undersigned. Commissioners, do hereby certify that the above
testimony, in the matter of the contested election, wherein Alexander
Gordon is Contestant, and A. C. McAllister Respondent, is correct, as
given b}' F. Clark, who, after hearing the same read to him, and he
making all the necessary corrections, signed the same in our presence,
at the Court lIou.se at San Rafael, in said county, this twenty-eighth
day of January, A. D. eighteen hundred and sixty-two.

W. S. lirCrllR^,
J. T. STOCKHIl,

Commissioners.

Statf. of California, )

Marin County. )
Before Jamos T. Stockor and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly ap))ointed.

In the matter of the Contested P^loction between Alexander Gordon,

Contestant, and Archibald C. ^IcAllister, Respondent.

DEPOSITION OF JAMKS DIXON,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister, Resj)ondent. before the foregoing named Justices of
the Peace of Marin Count}', in j)ursuance of a commission issued by the
Assembly on the fourteenth day of January, A. D. eighteen hundred and
sixty-two, and directed to the aforesaid Justices; which copy of said
commission is attached to the depositions taken in tliis matter.

JAMKS DIXON, SWORN.

I am a resident of i^farin County. I am Treasurer of Mai-in County,
and voted on the fourth of September, eighteen hundred and sixty-one,
at the general election.

(4. — Did you have any conversation with Frederick Clark, the witness
who testified last, touching for whom he voted at the last general elec-
tion, held on the fourtii of September, eighteen huiidred and sixty-one?

[Objection made by Mr. Gordon.]

A. — Yes ; he, Frederick Clark, came down this morning and told me
that he voted for Mr. Alexander Gordon, for Assemblyman, on the fourth
day of September, eighteen hundred and sixty-one. He said he voted
at Novata Precinct, Marin County.

JAMES DIXON.

State of California, )

Marin County, j
We, the undersigned. Commissioners, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-

ander Gordon is Contestant, and A. C. McAllister Respondent, is correct,
as <;iven by James Dixon, who, after hearinu; the same read to him, and
he maUinir all the necessary corrections, siirnod the same in our presence,
at the Court IIoiiso at San Ikafael.in said county, this twenty-eighth day
of January, A. D. eighteen hundred and sixtv-two.

W. S. lirUHES,
J. T. STOCKER,

Commissioners.

Statk of Caf.ikorvia, )

Marin County. )
Before James T. Stocker and William S. llughes. Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Klection hetwccn Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF PETER TERRET,

A witness jiroduced. sworn, and examined, in this matter, on the part
of A. C. MeAllisier, Respondent, before the foregoing named Justices of
the Peace of Marin County, in pursuance of a commission issued by the
Assembly on the f(jurteenth day of January, A. D. eighteen hundred
and sixty-two, and directed to the aforesaitl Justices; which copy of
said commission is attached to the depositions taken in this matter.

Charles LaufT was sworn as interpreter.

PETER TERRET, SWORN.

I am a resident of Marin Count}-, and have been this last ten years.

(^. — Did you vote at the last general election, held on the fourth of
September, eighteen hundred aiwl sixty-one?

A. — Yes; I voted at Xovata Precinct, Marin Count}', on the fourth of
September, eighteen hundred and sixty-one.

i.}. — Did you vote for Assemblyman, on that occasion?

A. — Yes ; I did vote for Assemblyman, on that day.

(^. — for whom did you vote for Assemblyman on that day — McAllis-
ter or (lordon ?

.V. — I decline answering that question.

(I. — State, if you know, for whom Frederick Clark, the witness who
testified above, voted, for Assemblyman, on that da}'?

[Questi(m objected to by Mr. (Gordon's Counsel, on the ground that it
does not appear, in this witness' testimony, that he knows any such man
as Clark, or that he ever voted for anybody.]

A. — I don't know him.

Q. — Have you any objection to stating what ticket you voted on that
dav — whether it was a Republican, or Democratic ticket?

A. — I do not know what ticket I voted.

Q. — Are you a naturalized citizen of the United States?

A.— I am a naturalized citizen, but I have lost my papers.

Q. — ^Vhen and where was you naturalized ?

A. I was naturalized in California, in eighteen hundred and fifty-two.

Q. What steps did you take to procure your naturalization ?

[Objected to by Mr. Gordon's Counsel, upon the ground of being irrel-
evant.}

A. — A friend of mine got my naturalization papers for mo, in San
Francisco.

Q. — AVliut was tliat friend's name ?

A. — Firnia Vassau.

(^. — Did you iro l)eforo any Court, and make any oath ? Tf so, state
what Court, and when ?

A. — No, Sir; never.

Q. — Wlio gave you the ticket which you voted on the fourth day of
Scptenil)cr. eighteen hundred and sixty-one ?

[Objected to by Mr. (Jordon's Counsel.]

A. — From Vaquero, alias George F. Woods.

CRO S S E X A M I .N A T U) N .

Q. — Do you know anything, yourself, how naturalization papers are
obtained ?

A. — No ; I do not.

(^. — Have you any recollection, at the present time, of the mode and
manner by which you obtained your natmnli/alion pai)ers?

A. — No ; I have not.

Q. — Can you read ?

A. — Yes; a little in French — none in English.

Q. — "Was (he ticket you voted, in French or Fnglish ?

A. — In English.

t^. — Do you know whether the President's name was on the ticket, or
not?

A.— No.

PETEU TEHKET.

Statk of California, )

Marin County. }

Wo, the undersigned, Commi.ssioners, do hereby certify that the above

is a true and correct statement of the tcstimon\', as given by Peter Ter-

rct, on the twenty-eighth day of January, A. I), eigliteen hundred and

sixty-two, at the Court IIou.se in San Pafael, Marin County, who, after

hearing the same read to him, and made all the corrections required,

signed the above in our presence.

WM. S. nUCIIES,
J. T. STOCK Ell,

Commissioners.

Stat?: of Califor.ma, )

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C McAllister, Ilespondeut.

DEPOSITION OF GEORGE FITZROY,

A witness produced, sworn, and examined, on the part of A. C. Mc-
Allister, Respondent, before the foregoing named Justices of the Peace
of Marin County, in pursuance of a commission issued by the Assembly
on the fourteenth day of January, A. D. eighteen hundred and sixty-

two. and directed to the aforesaid Justices; which copy of said cominis-
nion is attached to the depositions taken in this matter.

QEOROE FITZROV, SWORN.

I am a resident of Marin County, and have been for the hvst ten years.
1 was in Saucelito, Marin County, the hist fourth of September, eighteen
hundrud and sixty-one, and voted there on that day. I voted for Assem-
blyman on that (hiy.

(^ — For whom did you vote on that day, for Assemblyman ?

A. — I cannot say for whom I did vote.

Q. — Do vou mean to say that you decline answering that question ?

A.— Yes. I do.

(^. — IIow old are you?

A. — I am about twenty-seven years old.

(^. — Of what country are you a native ?

A. — I decline to answer that question.

(^. — Why do you decline to answer that question?

A. — Because it \a a secret that I have tried to keep to myself for a
long time ; no other reason.

Q. — Are you a citizen of the United States ?

A. — I have been led to think tliat I am.

(^. — Were you bftrn in the United States?

A. — I was not.

(I. — Were your father and mother born in the United States?

A. — No; my father and mother were not born in the United States,
and never lived there. I never was a citizen of Mexico.

(^. — What year did you first come to the United States?

A. — I first came to (.'alifornia in eighteen hundred and forty-eight.

(^. — IIow old were you when you arrived?

A. — Between fourteen and fifteen years old. I am now about twcnty-
Boven. I do not exactly know my age.

(^. — Did vou ever become a naturali/ed citizen of the United States?

A. — I never got out any papers. Mr. llincs led mo to believe that it
was not necessary to get any.

[Cross examination waived by Mr. Gordon's Counsel.]

His
GEOEGE ^ FITZROY.
mark.

State of California,

Marin Cou

nty. }

We, the undersigned. Commissioners, do hereby certify that tlic above
testimony, taken in the matter of the contested election, wherein Alex-
ander GoVdon is Contestant, and A. C. McAllister Respondent, is correct,
as given by George Fitzroy, who, after hearing the same read to him,
and he making all the necessary corrections, signed the same in our
presence, at the Court House at San Rafael, in said county, tiiis twenty-
ninth day of January, A. D. eighteen hundred and sixty-two.

J. t.'stockerI

Commissioners.
10

State of California, )

Marin Count}'. )
Before James T. Stocker and "William S. Iliii^'lics, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Ele^tion between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF WILLIAM II. DUCKEE,

A -witness produced, sworn, and examined, in liiis matter, on the part
of A. C. McAllister, lie-«pondeiit, before the forct;oin«^ named Justices of
the Peace of ^larin County, in jMirsuance of a commissi(jn issuedl)v the
Assembly on the fourteenth day of January, eii;hteen Innulred and sixty-
two, and directed to the aforesaid Justices; which copy of said commis-
sion is attached to the depositions taken in this matter.

WILLIAM M. nrCKKU. SWORN.

I am a resident of Marin County, and have been since eighteen hun-
dred and forty-nine. I voted at the last /reiieral election, held on the
fourth day of September, eighteen hundred and sixty-one, at Saucelito,
Marin County. 1 voted for Assemblyman.

Q. — JIave you any objection to slatin<^ lor whom yon voted for Assem-
blyman, on that day ?

A. — I have.

Q. — Have you an}' objection to statin<; which ticket you voted on that
day — the Itepublican, or the Democratic ticket/"

A. — I have one objection, and 1 decline answerinpr both of the last two
questions. I am a citizen of the United States, by birth. I was born in
the City of New York.

Q. — !)(> you Know for wliom (icori^e Fitzroy, the witness who testified
here before, voted, for Assemblyman, on the fouith day of Se]tt<'mb(^r.
eighteen himdred and sixty-one?

A. — No ; I could not say how he did vote.

Q. — Do you mean by that answer that you decline answering the
question ?

A. — No ; I do not mean to decline answering ; but I «lo not know.

Q. — Did you not give him the ticket which he voted that day ?

A. — I cannot say that I did. I gave him several tickets, and Manuel
Torres gave him tickets; and I could not say whether he voted the ticket
I gave him. or the ticket Manuel Torres gave him.

Q. — Was Manuel Torres distributing, on that day, Democratic or Re-
publican tickets ?

A. — Ho was distributing Republican State tickets, and the Democratic
county ticket.

Q. — What sort of tickets were 3'ou distributing on that day ?

A. — I decline answering that question.

CROSS EXAMINATION.

Q. — How many kinds of tickets did j'ou see distributed on that day ?

A. — There was the Republican State and Democratic, and the straight
Democratic ticket, and the McConnell ticket; that is all, I believe.

Q. — Did you see those diiferent kinds of tickets in George Fitzroy's
hand?

A.— Yes, I saw the Democratic ticket, and I saw the split ticket. I
mii^'lit have seen the straii^ht Hopul^lican ticket, and I know that I saw
a HtraiLrhl Democratic ticket, because he showed it to me.

Q.— Did you see any Republican ticket with McAllister's name upon
it? ^ ^

A. — Xo, I did not.

Q.— Is the man CJeor^^e Kitzroy, that is now present, and testified last,
previous to yourself, the Fitzroy that you saw the different tickets in the
hands of?

A.— Yes.

WILLIAM 11. DTJCKEE.

Statk of Califokma, )

^larin County, j
Wo, the undersi<rncd, Commissioners, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander (lordon is Contestant, and A. C. McAUister Respondent, is correct,
as ;;iven by William II. Ducker. who, alter hearing; the same read to
him, and ho makinij all the necessary corrections, signed the same in our
presence, at the Court House at San IJatael. in said county, this twenty-
ninth day of January, A. D. eighteen hundred and sixtv-two.

W. S. IirtillKS,
J. T. STOCK hyR,

Commi.ssioners.

Statk of Califouma. ]

• Marin County. 3

Before James T. Stocker and William S. IIui,dies, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Klection between Alexander Gordon,

Contestant, and Archibald C. McAllister, Ilespondent.

DEPOSITION OF LEONARD STORY,

A witness ])roiluced, sworn, and examined, in this matter, on the part
of A. C. McAllister, Respondent, bel'ore the fore<,njin<^ named Justices of
the Peace of Marin County, in pursuance of a commission issued by the
Assembly on the fcMirteenth day (»f January, A. D. ei<j^liteen hundred and
sixty-two, and directed to the aforesaid Justices ; which copy of said
commi.ssion is attached to tho depositions taken in this matter.

LEONARD STORY, SWORN.

1 am a resident of Marin County, and have been this last ten or twelve
years. I live at Suucelito. I was there, at Saucelito, and voted on the
last fourth of September, ein;hteen hundred and sixty-one. I know, per-
sonally, the two witnesses. Ducker and Fitzroy, who testified above; was
present durini; their examination, and heard all their testimony, as stated
above.

Q._Do you know for whom the said Ducker and the said Fitzroy
voted, for Assemblyman, on the fourth day of September, eighteen hun-
dred and sixty-one ?

A. — No. I can only answer from hearsay.

[Objected to by A. Gordon's Counsel.]

Q. — Whom did 3'ou licar say ?

A. — I hciird the said Diicker say that he himself would vote the straight
Republican ticket. I never heard Fitzroy say which ticket he voted.

Q. — Did 5*ou ever hear the said Fitzroy say that ho voted the ticket
which the said Ducker gave him ?

A.— No.

Q. — When was it that you heard Ducker say tiiat be would vote the
Republican ticket '(

A. — Previous to the election. I could not say whether it was a week,
or more.

CROSS KX.V MI NATION.

Mr. A. Gordon's Counsel cross examined the witness, as follows:

Q. — Where was Ducker when he told you that he would vote the Re-
publican ticket ?

A. — I did not say ho told me. I said I heard him say so.

Q.— To whom ?

A. — 1( was a general talk. I cuuld not say — think 1 heard him say bo
to Mr. Gordon, when he was there cK'ctioncering.

(^. — Do you know whether vou heard him say so to Mr. Gordon, or
not?

A.— No.

Q. — Do you know that you ever heard him say so to anybody ?

A. — Yes. I do know I heard him sav so to somebody.

Q._To whom ?

A. — To several people.

Q. — Slate the name of one person. *

A. — I ilon't think I can tell. I have heard it so many times, I am not
certain.

Q. — Do you know whether ho meant the straight l{i'])ul)liran ticket, or
the Republican Stale ticket with the Democratic county ticket on it?

A. — I don't know,

Q. — You say you resided in this count}' ten or twelve years ?

A. — Since Christmas, eighteen hundred and forty-nine.

Q. — IIow long had you been in this Slate previous to that time?

A. — About ten or eleven months.

Q. — From what State did you como to this State ?

A. — From Chile.

Q. — How long did you reside in Chile ?

A. — Four or live years.

Q. — Where did you come from to Chile ?

A. — I came from New Zealand.

Q. — Are you a citizen of the United States ?

A.— Yes.

Q. — Where were you born ?

A. — In England.

Q. — In what year did you come to the United States ?

A. — So near as I can remember, it was in eighteen hundred and twenty-
five, or eighteen hundred and twenty-six.

Q- — How long did you remain in the United States before leaving it?

A. — A good many years. I sailed from the United States several years.
I don't exactly remember how many years.

Q- — In what State did you take out your naturalization papers ?

A. — In this State.

Q. — Where and when ?

A.— In San Francisco, in the Superior Court; before Judge Shattuck.

<i. — Al»out when — as near as you can recollect?

A. — Six or seven years ago.

Q- — Where did you first file your declaration of intention ?

A. — In IJaltiniorc.

Q. — Did you have your certificate of intention when you got your
papers from Judge Shattuck ?

A.— Yes.

Q — "Wax that paper you presented to Judge Shattuck issued in Balti-
inoro ?

A. — Yes.

DIRECT EXAMINATION RESUMED.

Q. — Wiien you heard Win. JI. Duekcr. the witness who testified above,
Bay that he intended to vote the straight llepublican ticket, had any-
thing been said or heard of split tickets;'

A. — No; I had never heard anything.

CROSS EXAMINATION RESUMED.

Q. — Might they not have talked about it without you hearing of it?
A. — Tliey nught have talked about it. and I not heard of it.
(■l- — Did you vote on that day, the fourth of September, eighteen hun-
dred and sixtv-onc, at Saucclito, Marin County?
A.— Yes.

Q. — For whom <iid you vote ?
A. — I decline answering that question.

DIRECT EXAMINATION RESUMED.

Q. — Were 3'ou a naturalized citizen of the Ignited States on that day,
the fourth of September, eighteen hundred and sixty-one?
A. — Yoa; according to the papers I have got.

LEONAIID STORY.

St.vte of California, )

Marin County. )
We, the undersigned. Commissioners, do hereby certify that tiie above
testimony, taken in the matter of the contested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister Respondent, is correct,
as given by Leonard Story, who, after hearing the same read to him,
and he making all the necessary corrections, signed the same, in our
presence, at the Court House at San Rafael, in said county, this twenty-
ninth day of January, A. D. eighteen hundred and sixty-two.
"^ WM. S. HUGHES,

J. T. STOCKER,

Commissioners.

State of California, ")

Marin County. )
Before James T. Stockcr and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF I). T. TAYLOR,

A witness produced, sworn, and examined, on the part of A. C.
McAllister, Res])ondent, before the foregoing named Justices of the
Peace of Marin County, in pursuance of a commission issued by the
Assembly on the Iburlecnth day of Januar}-, A. D. eighteen hundred and
sixty-two, and directed to the aforesaid Justices; which copy of said
commission is attached to the depositions taken in this matter.

DANIKl, T. TAYLOR, RECALLED.

I am the County Clerk of Marin County, and, as sndi, have custody
of all the poll lists of the last general election held in Marin County, on
the fourth of September, eighteen hun«lied and sixty-one.

[The witness here produced the poll lists of tiie votes at Callinas i're-
cinct, Marin County, containing u list of the names of the persons who
voted there at the last general election, held on the fourth day of Sep-
tember, eighteen hundred and sixty-one.]

(^. — State wiicther. or not. it ajipears from the said poll list that A.
Vandernooth voted at the last general election at the Callinas Precinct,
Marin County ?

[After examining the said poll list, the witness answers that he sees
the name of A. Vandernooth, uniler number thirty-one.]

[Here the poll list that was taken at Squatter\ illu Precinct, Marin
County, at the last general election, was shown to the witness.]

Q. — State if llirain Corey voted at the Squatterville Precinct, Marin
County, on the fourth of Sejjtember, eighteen hundred and sixty-one ?

[Alter examining the i)oll list, the witness says that he sees the name
of Hiram Cortv there, under number two.]

C^. — Look at the S<iualtervillo poll list, and state if William Frazer
voted at S(iuatterville Precinct, .\hirin County, the fourth day of Septem-
ber, eighteen hundred and sixty-one?

[After examining the same, the witness replied that he tinds William
Fra/.er's name there, under number twenty-five.]

Q. — Did Peter Brown vote at Squatterville Precinct, Marin County, at
the last general election, held on the fourth day of September, eighteen
hundred and sixty-one?

A. — I do not see his name on the poll list.

[Here the jiojl list of the voters of San Ilafael Precinct, that was taken
on the fourth day of September, eighteen hundred and sixty-one, was
shown to the witness.]

Q. — State if Peter Brown voted at San Rafael Precinct, 3Iarin County,
on the fourth day of September, eighteen hundred and sixty-one ?

[The witness, after having examined the San Rafael poll list, replied —
Ilis name (Peter Brown's) appears on the poll list, under number sixty-
four.]

[Here the list of votes that was taken at Novata Precinct, Marin
County, on the fourth day of September, eighteen hundred and sixty-
one, was shown to the witness.]

.u^:"'*^^?*^ '^ ^?^'^'' '^'''^'^ '^""^^'^ "^ Novata Precinct, Marin County on
the lourth day of .September, eighteen hundred and sixty-one ?

[Atter exanunin- the poll list, the witness says— He (Peter Todo^
voted tliere, under number forty-two.] '

g.— Look at the said ].oll list", and sec whether Anisette Fuentes voted
there :

[After cxaminin.iT the jmll list, the witness says— He (Anisette Fuentes^
voted there, undor numl)t.'r forly-six.]

(^— State if Frederick t'lark voted at Novata Precinct, Marin County
on the fourth day of September, ei<rhtcen hundred and sixty-one?

[After examining the i)oll list, the witness says— The name of F. Clark
aj)j»carH on tlu* noil list, under number twenty-two.]

(^— State if Hobert II. Irwin voted at Novata Precinct, Marin County
on the fourth day of Septemi)er. eigiiteen lunulre<l and sixty-one?

[After examinini; tho poll list, the witness savs he finds Pobert H. Ir-
win's name under number twenty-five.]

(2— State if Peter Torret voted at Novata Precinct, Marin County, on
the fourth of Soptember. fightet-n hundred and sixty-one?

[Aftrr examining the poll list, the witness says he, Peter Terret, voted
there, under number twenty-three.]

Q.— Lo<.k at the Novata poll list, and state if Collins P. Laner voted
at Novata on that day ?

[After examining said poll list, the witness says the name of Collins
i{. Laner is not on the noil list.]

Q- — Look at the Bolinas poll list, and state if Pablo Figueras voted
tliere on that day, the fourth of September, eighteen hundred and sixty-
one ?

[.\fter examining the said poll list, the witness states that he, Pablo
Figueras. voted there, under number ninety-five.]

DANIEL T. TAYLOE.

Statk of California, ")

Marin County, j
We. the undersigned, Commissioners, do hereby cci-tify that the above
testimony, taken in the matter of the contested election, ^'herein Alex-
ander (lordon is Contestant, and A. C. McAllister I{es2)ondent, is correct,
as giveh by Daniel T. Taylor, who. after heai'ing the same read to him,
and he making all the necessary cori-ections, signed the same in our pre-
sence, at the Court House in San Pafael, January tliii'ticth, A. J), eight-
een hundicd ;iii(! sixty-two.

W. S. IIUUHES,
J. T. STOCKER,
Commissioners.

State of California, \

Marin County, j
Before James T. Stocker and William 8. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAlli.ster, Respondent.

DEPOSITION OF PETER K. AUSTIN,

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister, Respondent, before the foregoing named Justices of

the Peace of Marin County, aforesaid, in pursuance of a commission
issued by the Assembly on' the fourteenth day of January, A. 1). eight-
een hundred and sixty-two, and directed to the aforesaid Justices;
which said commission is attached to the depositions taken in this mat-
ter.

PETKR K. AUSTIN, RECALLED BY A. C. MCALLISTER.

Q. — You stated, on your examination l)efore, in this case, that A. Yan-
dernooth voted at (.lallinas Preeinct, Marin County, on the fourth day of
September, eighteen liundred and si.xt^'-one, for Alexander Gordon, for
Assemblyman. State how you know that he did so vote?

A. — I saw him put the vote in.

Q. — Did you see the names of the candidates on the ticket that he put
in '(

A. — Yes.

Q. — Where is the same Vandernooth now?

A. — I don't know. I could not say whether he is in this county now,
or not.

Q. — Did vou give him the ticket that he voted on that day ?

A.— Yes.*

Q. — For which party were you electioneering on that day — the Repub-
lican, or the Democratic party ?

A. — For the Republican party.

Q. — For whom did you vote, for Assemblyman, on that occasion ?

A. — For A. Gordon.

Q. — Do you know whether or not the said A. Yandcrnooth was an
American citizen, on that day ?

A. — lie told me he was.

Q. — Had you any other means of knowing wlutlu r he was an .\iiuri-
can citizen, than what he told you ?

A.— No.

Q. — Was the said A. Yandcrnooth challenged at the polls on that
day ?

A. — Yes.

Q. — Was his vote sworn in ?

A. — I think it was. I atn quite sure it was sworn in.

P. K. AUSTIN.

[Certificate omitted iti the original.]

State of California, |

Marin County. )
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.
In the matter of the Contested Flection between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Respondent,

DEPOSITION OF G. T. WOOD.

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister. Respondent, before the foregoing named Justices of
the Peace of !Marin County, in pursuance of a commission issued b}- the
Assembly on the fourteenth day of January, A. B. eighteen hundred and

sixty-two, and
commiHHion is ut

directed to the aforesaid Justices; which copy of said
ttachcd to the depositions taken in this matter.

O. T. WOOD, SWORN.

I am a resident of Marin County, and have been for the last seventeen
years; I was born in St. Johns, New Brunswick ; I was in Marin County
on the la.st ^rencral election, held on the fourth of September, eighteen
hundred and sixty-ono.

(^. — What polls were you at ?

A. — I was at Novata Precinct. Marin County.

t^. — l)id vou vote there y

A.— Yis.*

(I — Have you any objection to state who you voted for, for Assembly-
man ?

A. — I decline t<. answer that. I decline to unswrr what ticket I voted ;
either the HepuMiran or Democratic ticket.

Q. — l)o you know Anisette Kuentcs/

A. — I don't know whether it is his proper name, or not.

i^. — Did he vote at the polls at the last general election, held on the
fourth of .September, eighteen hundred and sixty-one ?

A. — I cannot state positively whether he did or not. I think he did.

(^. — Can you state, or do you know, for whom he voted lor Assem-
blyman on that day ?

A. — I <l«»n't know.

(^. — Did you give him a ticket to vote on that day?

A. — 1 believe 1 did.

[Tlu' answer was objected to by Mr. Gordon's Counsel.]

t^. — l)id you, on the fourth day of September, eighteen hundred and
Bixty-one, ask the said Anisette Fuentes to vote ibr Gordon for Assem-
blyman, or ask him to vote the Republican ticket?

A. — 1 don't know that I asked him to vote the Republican ticket, but
I do know that 1 did not ask him to vote for Gordon. I might have
asked him to vote the Iiej)ublican ticket.

(^. — Did you, on that day, the fourth of September, eighteen luindred
and sixty-one. carr}' any men to Novata Precinct for the purpose of
voting there on that day ?

A.— I did.

(^. — State the names of the men that you carried there?

A. — John Iloge was one, another by the name of Lewis, and another
by the name of Clark, and one called Picar.

t^. — Did you carry any one else ?

A. — I don't recollect of carrying any more.

t^. — Did these men that you carried there, vote on the fourth day of
September, eighteen hundred and sixty-one, at Novata Precinct, Marin
County?

[Objected to b}- A. Gordon's Counsel, for the reason that the poll list
is the best evidence.]

A. — I am not certain whether they all voted, but I think I saw two of
them vote.

Q. — State whether you are not certain that you saw two of them
vote ?

A. — I am pretty sure that I saw two of them vote.

Q. — III regard to the others, can you state whether they voted or not?

A. — 2s'o, 1 cannot.
11

Q. — State the names of the two who did vote ?

A. — One was John lloge, and the other's name was Clark. Don't
know Chirk's first name.

Q. — Why did you carry this party to Novata Precinct to vote?

A. — I cannot answer that question. I don't recollect of taking them
there for any particular reason.

Q. — Do you recollect of ever stating to any jjcrson, that you carried
them to Novata Precinct to vote, rather than to San Antonio Precinct,
hccause \o\\ helicvcd if you carried them to San Antonio Precinct they
would itc clialleiiged 'f

A. — I do not recolk'cl of ever making that ])ai'ticular remark.

Q. — It' not that particular remark, what remark do ^'ou recollect hav-
ing made on that suhject 'f

A. — I think I recollect of some one saying that we ditl not helong to
Novata Precinct. I contended that we did. There might have been some
other rt-mark made upon it, which I don't exactly recollect now.

(^. — Might you not have made the remark that you carried them to
Novata I'recinct, ratlur than to San Antonio Precinct, because they
would have been challenged at San Antonio, or some words to that
effect ?

A. — I don't think I said anything to that effect. The reason I carried
them there, they were in the habit of voting there.

Q. — State if you can swear now that you did not state to any one, that
you carried them to Novata Precinct, because they would be challenged
if you carried them to San Antonio, or words to that effect 'f

A. — I ])robably might have sai<l that they would have less difficult}' at
Novata in voting. 1 can swear that I did n<»t stale that they would bo
challenged if tliey voted at San Antonio. Hut I did state that John
lloge would probably be challenged, because he had not his eitizen's
papers with him. 1 do not recollect any remarks on any others that 1
carried there on that day.

(^. — Did you speak of any of the others without mentioning their
names ?

A. — I don't recollect of speaking of any of the others.

Q. — Were those pei-sons that you carried to Novata Precinct on that
day, the fourth September, eighteen hundre<l and sixty-one, all of them
American citizens '{

A. — 1 couhl not swear only for one.

Q. — Are you an American citizen?

A. — I am.

Q. — In what year did you come to the United States?

A. — I don't recollect.

Q. — Where did you become naturalized ?

A. — I never got any naturalization jjapers.

Q. — Did you ever take any steps t<» become naturalized ?

A. — No. I had no reason ; my parents were American citizens,

CROSS EXAMIXATIOX.

Q. — What age were you when you came to the United States ?

A. — I came to the United States before I could recollect.

(J. — How early in life do you recollect ?

A. — I recollect of residing in the United States in eighteen hundred
and thirty. I w^as then about five or six j-ears old. 1 was then residing
with my parents, in the State of New York.

Q.— Do you know, of your own knowledge, anything about the citizen-
ship of the voters you tarried to the polls at Novata Precinct, Marin
County ?

A. — 1 only know of one.

Q- — Wliat means have you of knowing anything about his citizenship?

A.— I saw his papers. I saw different \inds of votes in Anisette
Kuentes' hands.

Q.— How many kinds of votes were in circulation, at the Novata Pre-
cinct, on the fourth of September last ?

A. — I only saw two kinds.

(^— Might you n«»t have aske<l Anisette Fuentes to vote the Democratic
ticket '*

A. — I don't think I mentioned the name of any ticket to him.

GEOKGE T. AVOOD.

State op California, )

Marin County, j
"We, the undersigned. Commissioners, do hereby certify that the above
testimony, taken in the matter of the contested election, wherein Alex-
ander (Jordon is Contestant, and Archibald C. McAllister Respondent, is
correct, as given by (ieorge T. Wood, who, after hearing the same read
to him, made all corrections required, and signed the same in our pres-
ence, on the thirtieth day of June. A. J), eii/hteen hundred and sixty-
two, at the Court llouse at San Kafael. county aforesaid.

W. S. HUGHES,
J. T. STOCK KR,

Commissioners.

State op California, |

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.
In the matter of the Contested Klection between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Eespondent.

DEPOSITION OF MALET EUSTACHE RENE.

A witness produced, sworn, and examined, in this matter, on the part
of A. C. McAllister. Respondent, before the aforenamed Justices of the
Peace of Marin County, aforesaid, in pursuance of a commission issued
by the A-M-mlily on the fourteenth day of January, eighteen hundred
and sixty-two, directed to the aforesaid Justices; which said commis-
sion is attached to the depositions taken in this matter,

MALET EUSTACHE RENE, SWORN.

I reside on Mr. Peterson's ranch, Marin County, about two miles from
San Rafael. 1 have lived in this county since the twenty-eighth day of
May last.

Q. — How long have you been in this State?

A. — I have been iu'this State since January, eighteen hundred and
fifty-three.

C^. — From what place did you come to California?

A. — From Paris.

Q. — Have you taken out your naturalization papers ?

A, — No. I am not a naturalized citizen.

Q. — Did you ever live in the United States, before you came to Cali-
fornia ?

A. — No. I am a single man. I am fiftj'-two years old.

Q. — Was you in this place — San Kat'ael — on the fourth of September,
eighteen hundred and sixty-one '(

A. — Yes.

Q. — Did you vote here ?

A. — Yes ; here at San Hafael.

Q. — Did you vote for (iordori or McAllister?

A. — I saw McAllister's name on the ticket, and I voted lor him. The
reason is, that I have seen him frequently on his ranch, and know him.

Q. — What is your business?

A. — Chopping wood on the ranch formerly belonging to Mr. Peterson.

Q. — Was the vote, referred to above, given at the last election in this
place — Siui IJafael?

A. — Yes.

MALET EUSTACHE RENE.

State of California, ")

Marin County. )
We, the undersigned. Commissioners, in the matter of the contested
election, wherein Alexander CJordon is Contestant, ami Archibald C. Mc-
Allister Kespondent, do hereby certify that the above is a true and cor-
rect statenu-nt of the testimony as given by Malet Kustache Kon^, on
the thirtieth day of January, A. D. eighteen hundred and sixty-two, at
the Court House in San Kafael, Marin County, who, after hearing the
same read to him, and matie all corrections required, signed the same in
our presence.

WILLIAM S. HUGHES,
J. T. STOCK Eli,

Commissioners.

Jan. 30, 1>(»2, 10 o'clock, a. .m. — The testimony here closetl, upon the
ground that no more witnesses were present on the part of the Kespond-
ent.

Thomas H. Hanson, Counsel for McAllister, states that there were
many otlar witnesses who have been duly subjxi'uaed on behalf of
McAllister. an«l wlut have failed to ajjpcar; and liiat many subpoenas
have been issued for witnesses on behalf of McAllister, and not served,
because of the inability of the Sheritf to find them; that said witnesses
are scattered over the Count}* of Marin, and that the roads and streams
have been in such a condition that they were impassable ; and he there-
fore states that if a longer time were granted, he would be enabled to
show most conclusively that Archibald C. McAllister was duly elected
to the Assembly of California from Marin County.

J. T. STOCKER,

JOHN REYNOLDS,

Clerk for the Commissioners.
San Rafael, Jan. 30, 1862.

W. S. HUGHES,

Commissioners.

FURTHER TESTIMONY FOR CONTESTANT.

State of California, )

Marin County, j
By virtue of a commission issued by the Assembly on the fourteenth
day of Jsmuarv. A. I), eighteen hundred and sixty-two, directin<2j J. T.
Stoeker and W. S. Hui^hos, Justices of tiie Peace of the aforesaid
c<^unty, to take testimony in the matter of the contested election,
wherein A. Gordon is Contestant, and A. C. McAllister Respondent, the
followiiij^ testimony was elicited from the witnesses by their respective
Counsel.

Thomas II. Hanson, Counsel for A. C. McAllister, objects to any
further proc»ediiii;s in this case on the part of Alex. (Jordon, Contestant,
for the reas(Mi that the evidence in behalf of McAllister has not yet
been dosed, and there is still remaining evidence to be taken in behalf
of A. C. McAllister.

The Commissioners overrule the objection, for the reason that Thomas
ir. Hanson, C<)unsi'l for Respondent, A. C. McAllister, having stated that
he can go no farther at the present time, all the witnesses having been
examined that have appeared lor A. C. McAllister.

Commenced taking testimony on the part of Alexander Gordon, Con-
testant, this thirtieth day of January, eighteen hundred and sixty-two,
at half past eleven o'clock.

State of California, \

Marin County. )
Before James T. Stoeker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF WILLIAM SPANIOL,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander (Jordon, Contestant, before the foregoing named Justices
of the Peace of Marin County, in pursuance of a commission issued by
the Assemblv on the fourteen'th day of January, A. D. eighteen hundred
and sixty-two, and directed to the aforesaid Justices; which said com-
mission is attached to the depositions taken in this matter.

WILLIAM SPANIOL, SWORN.

I reside at Gallinas, in Marin County.

Q._Did you reside there on the fourth of September, eighteen hun-
dred and sixty-one '(

A. — I was a little further up on that day, but it is ahout the same
place. I have resided in Marin County, California, about three years. I
resided, before I came to California, about ei^ht years in New Orleans.
Before that, I resided in France. 1 am thirty-nine years old. I was
born in France.

Q. — Did you ever take out your naturalization papers ?

A. — Yes. In New Orleans.

Q._When?

A. — In eighteen hundred and thirty-seven.

Q. — How long had you resided there when you obtained your papers ?

A. — About two and a half or three years.

Q. — Did you get all j'our papers at the same time ?

A.— No. '

Q. — How long after you obtained your first jtapers did you get your
others ?

A. — It might have been two or three years. I got my first papers in
eighteen hundred and thirty-seven.

Q. — How old wore you when you came to New Orleans from France ?

A. — I was a young man. about twelve or thirteen years old. when I
first commenced going to sea. I don't know exactly, beeause I don't
know how to read or write.

(^. — Have you got ^^our naturalization papers now ?

A. — I lost them on board of a ship.

Q. — Did you ever have them in this State 'f

A. — No. I lost them before I canie here.

Q. — Where did you get your papei*s i:* In what C<nirt ?

A. — I wont witli a lrion<l ; got tliom. and paid three dollars for thorn.

Q. — Was that the tirst or last paper?

A. — The tii-st paper. It was not a shipping office; l>ut 1 cannot tell
what sort of a house it was. I do not know whether it was before
Judges, or who it was.

Q. — Were your papers in ?'nglish or French?

A. — In English ; but I don't know how to read or write.

Q. — Did you vote at (Jallinas Precinct, on the fourth of September,
eighteen hundred and sixty-one ?

A.— Yes.

Q. — Did you vote for Assemblyman?

A. — I don't know who I voted for.

CROSS EXAMIXATIOX.

Q. — You stated that you were twelve j'ears old when you left France —
did you come immediately to the United States?

A. — No, not direct. I was about fifteen or sixteen years old, when I
first arrived in the United States.

Q. — Have you been residing in the United States, ever since?
A. — Yes.

His

WILLIAM X SPANIOL.

mark.

State of California, )

Marin County. J
We. the undersigned, Commissioners, in the matter of the contested
election, wherein Alexander Gordon is Contestant, and A. C. McAllister

RospoTiflcnt, do hereby certif}- that the above is a true and eorreet state-
ment of tlie testimony as ^mvoii by William Spaniol. on the thirtieth day
of .latiuary, A. D. eighteen hundred and sixty-two. at the Court House
at San Ifatiiel, eounty aforesaid, who, iiaving the same read to him, made
all eorrections required, and signed the above in our presence'

WM. S. IIUCJIIFH
J. T. STOCKEK,

Commission "^s.

State of California, |

Marin County, j
Ik'fore Jamofi T. Stoekfi- and Win. S. Hughes, Justices of the Peace of

said county, an*l Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DErOSITION OK AUGUSTE GRESSOL,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander (ioi-ilon. Contestant, before the foregoing named Justices
of the Peace of .Marin County, aforesaid, in |)ursuance of a commission
issued by the AsM'inbly, January fourteenth, eighteen hundred and
sixty-two, ami directed to the aforesaid .Justices; which said commis-
sion is attached to the depositions taken in this matter.

AUUU8TE ORESSOL, SWOH.V.

Q. — State your age and residence 'i

\. — I am forty-two years of age, and live on Mr. Lucas' ranch. I am
a married man.

(^. — llow far is that fronj where the ])olls were held?

.V. — Altout two miles. I have reside<l in this county about three years.
I tirsi canii' to California in eighteen liundre<l and fifty-six.

(^. — Where did you conn* from, to Califoi-nia?

A. — I came from New Orleans to California, and I resided there eight
^•ears.

t^. — Where did you reside, previous to your going to New Orleans ?

A. — In France. I am a native of France.

(}. — Are you a naturalized citizen of the United States?

A. — I am a naturalized citizen of the United States. I was naturalized
in New Orleans, in eighteen hundred and fift^-live.

(^. — Did you take out vour last or tirst ])apers in eighteen hundred and
fifty-Hve ?

A. — I got mv tirst jKipers in eighteen hundred and fifty-tive, and my
last pajiers in eightei-n hundred and Htty-six.

t^. — What Court did you get them from ?

A.— I don't exactly remember what Court I got them from. I paid
three dollara for them.

g._\Vhat did you do before you got your papers?

A. — I went with .some friend to get naturalized.

Q. — Were you sworn, to answer any questions?

A.— Yes.

(^. — What did you swear to?

A.— I cannot exactly remember the words. I remember 1 had to swear

to deny the Emperor of France, to become a naturalized citizen. It was
when I j^ot ni}' first ])a])er8.

Q. — l)i(J you vote at (Jallinas Precinct, on the fourth of September,
eighteen hundred and sixty-one ?

A.— Yes.

Q. — Can you read or write English ?

A.— No.

Q. — Do you know what ticket you voted on that day ?

A. — I do not know what ticket I voted.

Q. — Do you know if you voted for McAllister, or Gordon ?

A.— No.

(.1. — Who gave you the ticket you voted on tliat day?

[01)jecled to by Mr. ^Ic A Ulster's Counsel, on the ground of being in-
conij)etent. irrelevant, and inin»atei"ial.]

A. — I do not recollect.

Q. — Are you a Hej)ublican or a Democrat?

A. — I am a Democrat.

Q. — Did you vote the Democratic ticket?

A. — I decline answering that question.

CROSS KX.\MINAT10N.

Q. — Is your memory quite distinct as to the dates of getting out your
naturalization jnipers ; that is to say, as to the time you declared your
intention, and the time you got out your final j)apers?

A. — h was in eigbteen hundred and fifty-five that I first declared my
intentions, and it was in eighteen hundred and fil'ty-six that I got my
naturalization ])a]iers.

(^. — What length of time elapsed between the time you got your first
and your second j)aj)ers ?

A. — I cannot state the exact time. A. GRKSSOL.

.St.\tk of Cauform.a, I

Marin County, j
AVe. the undersigned. Justices of the Peace, duly appointed Commis-
sioners in the matter of the contested election, wherein Alexander (Gor-
don is Contestant, and Archibald C. McAllister Kespondent, do hereby
certifv that the above is a true and correct statement of the testimony
given by A. (tressol. on the thirtieth day of January, A. I), eight-
een hundred and sixty-two. at the Court House at San Rafael, county
aforesaid, who. having the same read to him. made all corrections re-
quiretl. and signed the same in our presence. ,

WM. s. iircniKS,

J. T. STOCK HH,
Commissioners.

State of California, }

Marin County, j
Before James T. Stocker and William S. Hughes. Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Respondent.

DEPOSITION OF JOHN LAPASS,

A witness produced,- sworn, and examined, in this matter, on the
part of Alexander Gordon, Contestant, before the aforesaid Justices of

the Peace of Mann County, aforesaid, in pursuance of a commission
issued by the Assembly on the fourteenth day of January, A. D. ei'^hteen
hundred and sixty-two, and directed to the aforesaid Just"ices; which said
commission is attached to the depositions taken in this matter.

JOHN LAI'ASS, SWORN.

I live in Marin County, on the ranch of Mv. Lucas. I have lived in
Marin County seven years. I have been in California seven years.

(^— Where di<l you live before you came to California ?

A.— 1 came from Philadelphia to Valparaiso, and from Valparaiso to
California. I lived one year in Valparaiso. I lived in Philadelphia four
years.

<^— Where did you reside before you came to Philadelphia?

A.— I was born at sea, and when *I arrived in Philadelphia I was three
months old.

(I — hid vou not live more than four years in Philadelphia ?

A.— No. * ^

<i. — Now old were you when you went to Valparaiso?

A. — I was twenty-one years old.

^i — Where did y«)u live between the time you was three months and
twenty-one years <dd ?

A. — Kver since 1 was nine years old. I have been travelling. I left my
jiarents when I was nine years old.

t^. — Have you ever resided in Philadelphia for three years at any time
since you left Franee ?

A. — No. I have been sailing backwards and forwards between Franco
and America, several times.

(^. — l>id vou continue to follow the sea until you came to California?

A.— 1 di.i.

t^ — What are you iloing now ? Do you make any voyages to sea?

A. — I have followed the sea since I came here, but not always.

•i>. — l)id you ever take out your sailor's papers?
\. — In this country I have not needed them.

V- — l>id you ever take out any protection ])apers ?

[Objected to by .Mc.Vllister's i'ounsel. upon the ground of being imma-
terial and irrelevant.]

A. — I have had several, off and on. and have lost them.

(}. — Did you ever take out any ])ajiers from any Court at any time ?

[Objected to by Mc.Vllister's Counsel, u[)on the ground of being irrele-
vant and immaterial.]

A. — I never had need of any papers, because I was born at sea.

(^. — Di«l you ever take out your naturalization papers?

A. — I decline answering that question.

Q. — Why do you <lecline to answer that question ?

A. — I did not get any j)aj)ers out.

Q. — Was you at (Jallinas Precinct, at the last general election, on the
fourth of September, eighteen hundred and sixty-one?

A. — Yes; I was there.

Q. — Did you vote there on that day ?

A.— Yes.

Q. — Do you know if your father and mother are now living?

A. — They died when I was nine years old.

(^. — Did they reside in France when they died?

A. — My father died in France.
12

Q. — Did your father ever live in the United States?
A. — Ye^; he lived there four years.

Q. — How long had your father V)een living in France when he died ?
A. — lie had only been living four years in the United States.

His
JOHN )< LAPASS.
mark.

State of California, )

Marin County. )
We, the undersigned, Commissioners, do hereby eertity that the above
testimony taken in the matter of the contested election, wherein
Alexander Gordon is Contestant, and Archibald C. McAllister Respond-
ent, is correct, as given by John Lapass, who, after hearing the same
read to him, and he making all the necessary corrections, signed the same
in our prest-nce. at the Court House at San Rafael, in said county, this
thirtieth day of January, eighteen hundred an<l si.xtv-two.

\VM. S.lirtiHES,
J. T. STOCKKK,

Commissioners.

Statk of Califokma, ")

Marin County, j
Before J. T. Stocker and William S. Hughes, Justices of the Peace of

said county, and Commissioners duly appointed.

In the matter of the Contested Klection between Alexander Gordon,

Contestant, and Archibald C. McAllister, licxpondent.

i:)p:position of fij.wk dupont,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander (Jordon. Contestant. Iiefore the foj"eg<»ing named . Justices of
the Peace of Marin County, in pursuaiu-e of a connuission issued by the
Assembly on the lourternth <lay of January. A. D. eighteen hundred
and sixty-two, and ilirected to the aforesaid Justices; which said com-
mission is attached to the depositions taken in this matter.

FHANK Iiri'(».\T, SWORN.

I am a resident of Marin County. Live at Gallinas. I have lived
there for four years. I came to California in eighteen hundred and forty-
nine. 1 lived in New Orleans four years bi-tore I came to Calitoi-nia. I
went in a French ship to New Orleans, from France. 1 ran away from
the ship when I was fourteen years old. I was foui'teen years old when
I arrived in New Orleans. I am now thirty-nine years r»ld.

Q. — Have you ever taken out your naturalization ]»apers ?

A. — I left my naturalization papers in the Custom House, in San
Francisco.

Q. — When did you leave them there ?

A. — In eighteen hundred and tifty-three.

Q. — Where did you get those papers ?

A. — In New Orleans.

Q. — How long had you lived in New Orleans before you got your pa-
pers ?

A. — Three years.

(^ — Have you ever luul any other naturalization papers than the one
you got in New Orleans, when you had beeu there three years ?

A.— No.

Q. — Were you at Gallinas Preeinct on the fourth- of September, eight-
een hundred and sixty-one ?

A. — Yes; I was there.

(^. — Did you vote on tlrnt day ?

A. — I voted on the <hiy of election ; I don't know exactly what day.

Q. — J)o you not know if it was last 8ei)toinber y

A. — I voted on the day of election, but can't swear to what month it
was.

Q. — Have you voted more than once in Galliuas Precinct, this last six
months ?

A. — No. I have not voted more than once this last six months.

Q. — Was there more thati one printed name on the ticket, or was it a
whole list of names f

A. — I can't say. They gave me a ticket and I voted it.

(^. — Did you see any tickets on that day with more than one name on
them ?

[Oltjeetion taken by >r(Allister*s Counsel, upon the ground of being
totally incompt'tent and irrelevant.]

A. — No. I don't know. I paid no attention to it.

Q. — Do you know if it was when the Governor was elected?

A. — No. I am not certain.

i}. — Who gave you the vote ?

[Objection by McAllister's Counsel, upon the ground of being imma-
terial.]

A. — Martin Miller.

(^. — Where is Martin Milh-r now?

A. — He is at h<)iiu\ at Gallinas.

(^. — Do you know Mr. V. K. Austin?

A. — Yes. I do.

(^. — Did you see him on the day you voted ?

A. — I am not certain. Hi"^

FRANK X DUPONT.
mark.

State of California, |

Marin County. |
We, the un<lersigned. Commissioners, do hereby certify that the above
testinjonv. taken ii7the matter of the contested election, wherein Alex-
ander G.Irdon is Contestant, and A. C. McAllister Respondent, is correct,
as given bv Frank Dupont, who, after hearing the same read to him, and
he making the necessary corrections, signed the same in our presence,
at the Court House in San Rafael, in said county, this thirtieth day of
January, A. D. eighteen hundred and sixty-two.^ HUGHES

J. t.stocker',

Commissioners.

State of California, ")

Marin County, j
Before James T. Stocker and William S. llughes. Justices ol" the Peace

of said county, and Commissioners duly api)ointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Respondent.

DEPOSITION OF PETER K. AUSTIN,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander (Jordon, Contestant, before the foreijoini; named Justices
of the Peace of Marin County, aforesaid, in pursuance i»f a commission
issued by the A.sscmbly on the fourteenth day of .lanuary, A. I), eight-
een hundred and sixty-two, and directed to the aforesaid .Justices; which
said commission is attached to the depositions taken in this matter.

PKTKR K. AUSTIN, RKCALLKD.

Q. — Were you at Callinas Precinct (»n the fourth of September, eight-
een hundred and sixty-one ?

A. — Yes. On election day.

Q. — What portion of the day was you there ?

A. — Krom eight in the morning until twelve or one o'clock the same
day.

t^. — Do you know the last witness, Frank Dup<mt ?

A. — Yes ; 1 do.

Q. — Did you see him on the last general election day at (Jallinas Pre-
cinct '(

A.— Yes.

Q. — Did you see him vote ?

A. — Yes. I did. at (iallinas Precinct.

Q. — Was it on the day on which McAllister and tJordon were voted for
for Assembly 't

A.— Yes.

Q. — State if you recollect about what time of the day he voted.

A. — I should say it was about nine o'clock.

Q. — Do you recogniy.e the last witness. Frank Dupont. whom you have
heard testify, as the same Frank Dupont that you saw vote on the fourth
of September last, at Gallinas Precinct. Marin County ?

A.— Yes.

P. K. AUSTIN.

State of California, )

Marin County. J
We, the undersigned. Commissioners, do hereby certify that the above
testimoii}-. taken in the matter of the contested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister Respondent, is correct,
as given by P. K. Austin, who. after hearing the same read to him, and
he making the necessary corrections, signed the .same in our j)resence. at
the Court House at San Rafael, in said county, this thirtieth day of Jan-
uary, A. D. eighteen hundred and sixty-two.

W. S. HUGHES,
J. T. STOCKER,

Commissioners.

State of California, \

Marin County. )
Before J. T. Stockcr aiul AVilliam S. Hughes, Justices of the Peace of

said county, and Commissioners duly appointed.
In the matter of the Contested Election between Alexander Gordon, Con-
testant, and Archibald C. McAllister, Respondent.

DKPOSITIOX OF JACK WILLIAMS,

A witness produced, sworn, and examined, in this n\atter. on the part
of Alexand«'r (Jordon. Contestant, hclore the foregoing named .Justices of
the l*ea«-o of .Marin ('<»uiity, in pursuance of a commission issued by the
Assmibly on the fourteenth day of January, A. D. eighteen hundred and
Bixty-two, and directed to the aforesaid Justices; which said commission
is attached to the depositions taken in this matter.

JACK WILLIAMS, SWORN.

I live in .Marin County, on tiie ranch formerly owned by Judge Barney.
I have lived in this county two years. 1 have lived in the State of Cali-
fornia ever since eighteen hundred and tiity-six. 1 had been living in
the Sandwich Islan<is six months before 1 came to California. I have
lived in Valparais«» about three years. Before that, I lived in France.

(^. — Were you born in France 'f

A. — Yes. I am thirty-tive years old. I have been a sailor, and am so
still, if needetl.

(^. — Did you ever take out your sailor protection papei"s ?

[Objection taken by McAllister's Counsel, on the ground of being irrele-
vant and immaterial.]

A.— Yes. Sir.

t^. — l)i<l you ever take out any naturalization papers ?

A. — I got none, and never ha<l any.

Q. — \\ as you at the Callinas Precinct at the last election, held on the
fourth of September, eighteen hundred and sixty-one ?

A. — I don t exactly recollect the month, but I was there at the elec-
tion. They came and took me by the arm, and made me go down to vote,
and I thereby lost my day's work.

C^. — Did you vote i*

A.— Yes; I did.

Q. — Were there a good many names on the ticket you did vote ?

A. — About the same as what you are writing on.

Q. — Do you recollect of there being more than one election?

A. — Y'es. There was more than one election. I did not know whether
one was for Mr. Miller, or not. I did not vote at that election.

Q. — l)i^l you vote at the first or last election ?

A. — At the first election.

Q. — llow many weeks do you think there were between the two elec-
tions ?

A. I don't know. They asked me whether I w^as an American, or

not, and I told them No.

His

JACK X WILLIAMS.

mark.

State of California, ")

Marin County, j
We, the undersigned. Commissioners, do hereby ecrtily tluvt tlie above
testimony, taken in the matter of tlio eontested election, wherein Alex-
ander Gordon is Contestant, and A. C. McAllister llespondent, is correct,
as o-iven by Jack Williams, who, at'tei- hearing the same read to him, and
he making all the necessary correetinns. signed the same in our jjresence,
at the Court House at .San l^afael, this thirtieth day of January, A. D.
eitrhteen hundred and sixty-two.

w. s. iiu(;iiES,

J. T. STOCK EU,

Commissioners.

State of California, )

Marin County. |
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly appointed.

In the matter of the Contested Election between Alexander Gordon,

ContoBtant, and Archibald C McAllistor, Kespondont.

DEPOSITION OF GEORGE DUCKER,

A witness produced, sworn, ami examined, in this matter, on the part
of Alexander (Jonlon. Contestant, before the foreg<jing namcvl Justices
of the Peace of Marin County, in pursuance of a ccjinniission issued by
the Asscinbly on the lourternth day <»f January, A. D. eightt-cn hundred
and sixty-two. and directed to the aforesaid Justices ; which said commis-
sion is attached to the depositions taken in this matter.

OEORQE DUCKER, SWORN.

I live in Marin County, on the ranch formerly owned by Judge Bar-
ney. I have been living iiere for three years. I have been in California
about three years. I came to California fn»m the State of Connecticut.
I lived there nearly six years. I came from Franee to Connecticut.

Q. — l>id you ever take out your naturalization j)apei*8 ?

A. — Yes. I got my first, but have lost them. I got my first papers in
Connecticut.

Q. — Did you ever get any other out ?

A. — No. I then came here, and never got any others.

Q. — Where was you on election day. on the fourth September last?

A. — I was at (iallinas Precinct. Marin County, the last fourth Septem-
ber, eighteen hundred and sixty-one.

Q. — hid you vote on that day ?

A. — They gave me a ticket, but I can't tell whether I voted or not. 1
can't road or write.

Q. — What did you do with the ticket?

A. — I gave it to the man that was there in the office.

Q. — Did you give your name when you gave your ticket ?

A. — I don't recollect whether I gave them my name or not.

Q. — Did you see others hand tickets to the same men, at the same
place, that vou did ?

A.— Yes,l did.

Q.— AVas .Tuck Williams there at the time you was ; the man who tes-
tified hetore you ?
A. — Yes, he was.

Q.— Did you and Jack Williams vote at the same place ?
[Ohjocted to l.y McAllister's Counsel, on account of the form of the
question, upon the ^n-ound that it assumes the fact that the witness
knows that .lack Williams did vote]

A.— I did see him there, hut I did not see him vote. There were a
good many Frenchmen there.
(^. — Were you born in France 'f
A. — I was l)orn in IlcjlUind.

His

fJEORGE y. DUCKER

mark.

State .of California, "|

Marin County, j
We. the undersigned, Commissioners in the matter of the contested
election, wherein Alexander (Jordon is Contestant, and A. C. McAllister
Kespondent, do hereby certify that the above is a true and correct state-
ment of the testimony, as i,Mven by (Jeori^re Ducker, on the thirtieth day
of January, A. D. eighteen hundred and sixt^-two. at the Court Jlouse at
San Hafael. county af<»rertaid. who. after hearing the same read, made all
corrections required, and signed the same in our presence.

W. S. IlUCiHES,
J. T. STOCKER,

Commissioners.

State of California, \

Marin County, j
Before James T. Stocker and William S. Hughes, Justices of the Peace

of said county, and Commissioners duly ai)i)ointed.

In the matter of the Contested Election between Alexander Gordon,

Contestant, and Archibald C. McAllister, Eespondent.

DEPOSITION OF EOBERT C. CLARK,

A witness produced, sworn, and examined, in this matter, on the part
of Alexander (fordon. Contestant, before the foregoing named Justices
of the Peace of Marin County, aforesaid, in pursuance of a commis-
sion issued bv the Assembly, January fourteenth, eighteen hundred and
sixty-two, directed to the aforesaid Justices; which said commission is
attached to the depositions taken in this matter.

ROBERT C. CLARK, SWORN.

I reside in Marin County. I was at Gallinas Precinct on the last
general election, held on the fourth September, eighteen hundred and
sixtv-one.

C^' — Did you see the last two witnesses. Jack Williams, and George
Ducker. who heretofore testified ?

A. — I did see the last witness, George Ducker, vote on that day, at
Gallinas Precinct, Marin County.

Q. — State whether his name was put clown George Pucker, or Dueker
George ?

A.— It was jiiit clown Dueker CJcorge. I don't recognize the 6ther
witness, Jack Williams.

Q. — In what cai>acity was you there on that day ?

A. — I was Clerk at (rallinas Precinct, on that day.

Q. — Has there heen an election at that precinct since the last fourth
Septeml)cr ?

A. — Yes. I could not say when it was. It was for Supervisor.

Q. — How man}' names wej*e there on the tickets ?

A. — One name on each ticket.

Q. — Do you recollect ])utting down the name of Dueker George, on
the fourtli day of September, eighteen hundred and sixty-one ?

A. — Yes, 1 do.

Q. — Are you positive that the man who last testified, calling himself
George Dueker, is the same man for whom you put down the name of
Dueker George, on that day, at the (Jallinas I'recinct, Marin County, on
the fourth day of Septemher, eighteen hundred and sixty-one ?

A. — Yes; this is the man.

CROSS EX.VM I NATION.

(}. — Do you recollect of putting down the name of Jack Williams, on
that day, the fourth of Septeml)er, eighteen hundred and sixty-one, at
Gttilinas Precinct, Marin County?

A. — I don't recollect exactly, now.

DIRECT KX.VMINATION RESUMED.

[The poll list of Gallinas Precinct was here handed the witness, which
ho recognizes, and says it is the poll list kept \>y him (the witness) on the
last Se|)teml)er election day, at (iallinas Precinct, Marin County; and
being asked to examine the same, says — I find the name of Dueker
George, under numl)er seventeen, in my handwriting.]

(^. — Ivxamine the poll list, and see if you can find the name of Jack
Williams y

A. — Yes; I find the name of Jack Williams, under number thirty-three,
in my handwriting.

Q. — When were the names of Dueker George and Jack Williams writ-
ten on the poll list, aforesaid, by you ?

A. — On tne fourth day of September, eighteen hundred and sixty-one.

CROSS EXAMINATION.

Q. — Do )'0u recognize Jack Williams, the witness who testified above,
to be the same person whose name you wrote on the poll list ?
A. — No ; I do not recognize him.

DIRECT EXAMINATION RESUMED.

Q. — Do you know whether Jack Williams, the man present, is the
man, or not ?

A. — I cannot say. I don't know whether he is the man, or not. I
know it was a man voted whose name was Jack Williams; but whether
it was this man, or not, I cannot say.

EOBERT C. CLARK.

State of California,

We. the undcrsigno.1. Commissioners, do horel.v cerdn'tl^Telblve
tes unony taken m ti>e nuUter of the eontested-eleetion, whei-ein Alex-
ander (,ordon ,s Contestant and A. C. McAllister Kespondent, is LtS
as ^Mven hy iJohert C Clark, who. after havinc. the lame read o Li n
and he n.ak.n^ all the neeessary eorreetions.%ii.ned the same in 0^;
presence, at the ( .,nrt House at San Pvafael, in said county, this thirtieth
day of January, A. 1). eighteen hundrc-d and sixtv-two

WILLIAM S. HUGHES,
.1. T. STOCK LI J.

CommissiuMers.

Statk of Cam form a. ]

iy f I r., . . Marin County. |

Befon- .lames I. Storker and Willia.n S. Hu-hes. .Justices of tliePeace

ot said county, and Commissioners duly appointed.
In the matter of the Contested Election hetj^veen Alexander (un-don
Contestant, and Andiihald C. MeAliister. Respondent. '

HLPOSITION OF KMILE BAET.

A witness produce.!, sworn, and examined, in this matter, ou the part
ot Alexander (M»rd«)n. Contestant, before the forei,'oing named Justices
of the Peace of Marin County, aforesaid, in ]>ursuance of a commission
issued hy the Assemldy on the fourteenth day of January. A. I). eii;ht-
een hundred nnd sixty-two. and directed to the aforesaid Justices ; Avhich
said commission is attached to the deposition taken in this matter.

KMILK BAKT, SWORN.

I reside in Marin County, about four miles from San Kafael. I have
resided two years in this count}-. 1 have been in California five and a
half years. I lived in France before I came to California. I am a na-
tive «»f France.

(^. — Did you ever live in an}' other part of the United States than
California ?

A.— No.

Q. — Hid }'ou ever ;;et your mituralization [tapers out?

A. — 1 don't know that 1 have a rii:;ht to answer that question.

Q. — Do you decline to answer that question ?

A.— Yes.

(^. — Why do you decline?'

A. — I think there is no need to answer that question.

Q. — Do you decline to answer that question upon the ground that it
will lead to criminate yourself?

A. — Yes.

Q. — Do 3-ou not know that you are not a citizen of the United States ?

[Objection taken by McAllister's Counsel, upon the ground that the
last question and answer rendered it (the question) an illegal one.]

A. — No.

Q. — Have you ever told any person, within the last six months, that
j'ou were not a citizen ?
13

[Objected to by McAllister's Counsel, upon the same ground as the
immediately preceding one.]

A.— No. '

Q. — When did you arrive in California?

A. — I arrived in California in July, eighteen hundred and fifty-six.

Q. — What ship did you come in ?

A. — In the ship Harriet, from Bordeaux.

Q. — AVhen did ^'ou sail from Bordeaux ?

A. — In J)eceml)er. eighteen hundre«l and fifty-five.

Q. — Where was you on the last election day, the fourth of September,
eighteen hundred and sixtv-one ?

A.— In San Kalael.

Q. — Did you vote on that day ?

A.— Yes.

Q. — Who gave you the vote ?

[Objected to by McAllister's Counsel, u])on the ground of being imma-
terial.]

A. — They gave mo various votes. I received votes from various ])er-
sons. •

(J. — Who gave you the vote you voted ?

[Ol'jected to by McAllister's Counsel, upon the ground of being
immaterial.]

A. — It is a secret to me, and so I will keep it.

Q. — Are you a Democrat, or Republican ?

[Objected to by McAllister's Counsel, as being immaterial.]

A. — That's mv business.

Iv BAirr.

State of California, )

3Iarin County, f
We. the undersigned. .lustices «»f the Peace of Marin County, duly ap-
pointed Commissioners in the matter of the contested election, wherein
Alexantler (tordon is Contestant, and Archibald C. McAllister. Kespond-
ent. do hereby certify that the above is a true statement of the testimony
as given by E. Baet, on the thirtieth day of January, A. D. eight-
een hundred and sixty-two, at the Court llouse at San Hafael, county
aforesaid, who. alter hearing the same read, made all corrections required,
and signed the same in our presence.

W. S. nUGHES,
J. T. STOCKKK,

Commissioners.

The testimony in this ca-se here clo.sed, upon the ground that no more
witnesses were in attendance on the part of Contestant.

Thomas H. Hanson. Ksquire, for McAllister, here stated that there were
many other Avitnesses wIk> have been duly subprenaed on behalf of Mc-
Allister, and who have tailed to appear; and that many subpoenas have
been issued for witnesses on behalf of McAllister, and not served, because
of the inabilit}- of the Sherifi" to find them ; that said witnesses are scat-
tered over the County of Marin, and that the roads and streams have
been in such condition that they were impassable ; and he therefore states
that if a longer lime were granted, he would be enabled to show, most
conchisively, that Archibald C. McAllister was duly elected to the Assem-
bly of California from Marin County.

J C. Palmer, Connsel for Alexander Gordon, Contestant, here stated
and w.shcs the san.e to be recorded, that but nine hours of the t me of
he ( omm.ss.onorH has been occupied in taking testimony for said Con-
w^r"'! ■'.?; r'"'^' V;^'. t.me no witnesses on the part of McAllister
^^^''^^'";^^"7;^'^';.^V '^-''^ the Respondent, with the Exception of nine
hours had ho ul tune of the Commissioners, uninterrupted by Con!
tostant. Also, that the reconls and papers of the commission will show
as many it not more, witnesses on the part of the Contestant, as well as
Kespondent, not present or found.

J. T. STOCKER,
WM. S. HUGHES,
JOHN RI-YNOLDS, Commissioners.

Clerk for the Commissioners.
San Rafael, Jan. Slst, 1862.

I!i;i'()I!T (»K ASSKMlll.V COMMITTEE ON ELECTIONS

RELATIVK TO

THK TUOLUMNE AND MONO

coMESTi:i) i:liotion case.

N. M. ORR. Contestant, vs B. K. DAVIS, Respondent.

HE F O II T

Mr. Si'KAKKU : — The Conimittco on Elections, to whom was referred
the netition <jf Mr. X. M. Orr. contesting the election of the Hon. B. K.
DaviH, for Moml>er of Assembly from the Counties of Mono and Tuol-
umne, he;; leave to report :

Tliat tiiey have encltavured to ^ive the matter a careful, prompt, and
thorough investigation, with the view of its being determined by the
House as speedily as possible.

They have e.\amim'<| the documents presented in evidence, and heard
the testimony of the witnesses produced by Itoth parties, and the same
has been carefully taken down in writing, signed by the witnesses, and
in herewith jiresented, accomj)anying this report.

The allegation in the petition of the Contestant, upon which he chiefly
relies, sets forth :

That a fraii'l was committed in the purported returns from the Big
Springs Precinct, in the White Mountain District, in Mono County;
wherel>y, according t<» said ])urjiorted returns, there were five hundred
and twenty-(»ne votes cast at said jnvcinct for State and county officers,
at the last* general election; of which, Mr. B. K. Davis received two
hundred and ninety-eight votes, by means of wliich lie has been declared
dul\- elected Member of the Assembly ;

That said purjiorted returns are fraudulent ; and that no such election
was held at said precinct on the fourth day of September last, nor any
votes polh'd there on that day, or on any other day;

That the votes purported to have been cast at the Big Springs Pre-
cinct should be excluded, and that the exclusion of the votes of said
precinct would entitle the Contestant to a seat in this body.

It api)ears, by the certified copies of official returns of the votes cast
at the last general election for Mend.ers of Assembly, in the Counties of
Mono and Tuolumne, that in the County of Tuolumne Mr. B. K. Davis
received, for Member of Assembly, fifteen hundred and sixty-three votes ;
and in the County of Mono, six hundred and fifty-seven votes; making
the aggregate nuniber of two thousand two hundred and twenty votes
cast for ^Ir. Davis. nm ^

From the same returns it also appears, that in the County of inolurane
Mr X M Orr received, for Member of Assembly, seventeen hundred and
twentv-ei.dit votes, and in the County of Mono, three hundred and forty-
four votes7 niaking in tlie aggregate, two thousand and seventy-two votes;
being one hundred and forty eight votes less than the number received
by Mr. Davis.

It also appears from the same returns, that at the Big Springs Precinct,
in Mono County, in respect to which a fraud is alleged to have been com-
mitted. Mr. B.'K. J)avis received two hundred and ninety-eight votes,
and that no votes were cast at said precinct for Mr. ()rr. tiie Contestant.

The case seems to depend uj)on the ju-oof of the aUegation of fraud in
the papers purporting to he the othcial returns of tlie vote cast at the
Big Springs I'recinct, in the White Mountain District, in Mono County.

if the allegation of fraud is sustained by the testimony, then the two
hundred and ninety-eight votes, which, according to said returns, purport
to have been cast for Mr. Davis, should be deducted from the aggregate
vote cast for him in the Counties of Mono and Tuolumne, which would
reduce his aggregate vote to nineteen hundred and twenty-two, being
one hundred and fifty votes less than tlie aggregate vote east lor Mr. Orr
in said eounties. and would entitle the Contestant to a seat in this body.

On the other hand, if the allegati<jns of frauil are not sustained by the
evidence, then, according to the ottieia! ri'turns. Mr. Davis, the sitting
member, is entitled to bis seat.

It is proved, by the testimony of ..Mr. T. N. Maehin. a resident of Mono
County, that he travelled verj' extensively through the White Moun-
tain District, in which the Hig Springs Precinct is sai<l to be located, on
a})rospecting tour, in .luni' last ; tliat the country is a rough, barren, desert
region, uninhabited, and nearly destitute of limber and grass, except at
Owens' Kiver. and that water is very scarce through(»ut the entire ^^ hite
Mountain country, excejtt at that place.

That the range of the White Mountains extends from neai- .\urora to
near the Sink of Owens' Hiver, a distance of from one humlred to one
hundred and twenty-tive miles, running nearly southeast and northwest,
and nearly ])arallel with the Sierra Nevada Mountains.

That portions of the range are very high, and covered with snow, and
are, on an average, from ten to twenty miles in width, bordered with
barren sandy plains, of about five miles in width, and uninhabited.

That he travelled from Monoville. a distance of about seventy-five
to one hundred luiles. to the summit of the AVhite Mountains, and cross-
ing over, went by a circuitous route, a distance of twenty-five or thirt}'
miles, to the eastern liase of said mountains.

That he visited the place su])posed to be CJraves' Camp, and since desig-
nated as Big Sju-ings, and that there were no inhabitants there at that
time. That he saw no indication of inhabitants throughout that region
of country, and no signs of mining, excejtt where a blast had been put
into a quartz vein, and a notice of a mill site having been taken u]).
which was daleil White Mountain District.

That he saw only ten or twelve persons in that country, and they be-
longed to parties who were travelling; that he heard ol no such place as
Big Springs at that time.

That he has resided in Mono County from the middle of Ma}' to Octo-
ber, eighteen hundred and sixty-one, and is well acquainted with the in-
habitants of that county.

That he has examined the purported returns from the Big Springs
Precinct, containing over five hundred names, and that he is able to find
but two names of persons that he knows to be residents of Mono Coun-
ty, and that one of these persons was in Tuolumne County at about elec-
tion time.

That he saw the purported petition to the Board of Supervisors, ask-
ing for a precinct to be established at Big Springs, stating that there
were about eighty voters there. That the petition, and the signatures

attached, boro evidence of being all in one handwriting, and done with
the same pen.

That he dova not know but one person whose name appears on the pe-
tition, and dues nttt know that the name represents that person.

That the poll list and tally pa[)er of the purported returns of the Big
Springs I'recinct^ boro evidence of being all done in one handwriting,
names and all. That there appears to be an attempt to disguise the sig-
natures. I»y writing some of them in a heavier hand ; but that the gen-
eral style of the writing, particularly in the formation of the capitals, is
the same.

That the papers ])urporting to be the returns, as aforesaid, arc neatly
made up, with scarcely a seratch or blot upon them, and do not appear
as if they had ever been used for a poll and tally list.

That lie couhl not, from these jiurported returns, b}- any combination,
make out the sum total of tive hundred and tweiit3-one votes, the num-
ber certified to as having been given at sai<l ]»recinct.

That, aceordiiig to these returns, there were no votes cast at said pre-
cinet for liieutiMiant-Ciovernor, or for Member of Congress, or for Judge
of the Supreme Court, and for several other officers who were voted for
at the last general election.

That the names of the ])ersons appointed by the Board of Supervisors
to act as officers of election, are not signed to the returns, and do not
apjiear on the poll list; and that the names of the persons who signed
the petition to the Supervisors, do not appear on the poll list.

lie further testifies, on cross examination, that the people of Mono
County are a fluctuating population, liable to be drawn, in considerable
numbers, to places where rich mines are rej)orted to exist. That during
his residence in Mono County, from May to October last, he heard of no
particular excitement about mining in the White ^loujitain JJistrict.

And further, that he believes Mr. Davis to be an honorable gentleman,
and that he never heard of any complicity, on his part, with the vote at
the Hig Springs I'recinct. and that he does not believe he knew anything
about it whatever.

The testimonv of H. S. Mason, who travelled extensively through the
White Miuintain histrid during the last summer, and who was in the
neighborhood where the Big Springs Precinct is said to be located, both
bet'ore and shortly after the election, is too voluminous to be critically
reviewed at this time; but his evidence, as well as that of C. O. Eich-
ardson and .lohn C. Ross, who also travelled through that region of
country at different times during the last summer, substantially corrob-
orates the testimony of Mr. Machin, as to the nature of the country, the
ab.sence of anv indications of a |)ermanent population, or inhabitants,
and the general character and appearance of the papers purporting to
be the returns from the Hig Springs Precinct, in Mono County.

The last witness that appeared before your Committee, on the part of
the Contestant, testified that he went from Visalia, in Tulare County, to
Mono County, in May last, and was there most of the time for five
months, or uiitil the first of October last. That he knew something of
returns' being made out. purporting to be returns from the Big Springs
Precinct in Mono County, at the last general election. That he was
present and saw those returns made out. That they were made out
about four or five days after the fourth of September last, at a vacant
house at Mono Lake, about seven miles from Monoville. That there was
no settlement at the place where the said returns were made out. That
ho (the witness) voted at Monoville at the last general election. That

the names signed to said i-eturns, as officers of election, wore fictitious.
That the names on the poll list were not taken from a Dii'ectory, but
were such as suggested themselves to the persons who made out the re-
turns.

That the tally list was made out on the inside of an open sheet of
foolscap paper, the names of candidates being written at the left hand,
and the tallies extending toward the right.

That the poll list made out at the same time was made on foolscap
paper, folded lengthwise and cut into four slips, and contained over five
hundred names.

That the original papers were similar to the copies now shown to the
witness, except that they were ])inned together at the top. and were on
blue tinted paper instead of white.

That he could identify the original pai>ers if .shown to him.

That the names on the tally list were all written by one person, and
the signatures of the persons ])urporting to bo officers of election were
written at the bottom, and by two ditforont persons.

That there were only two jiersons present when said returns were
made out.

That ho saw one Pete Abol take thosi' jiurportod returns and start with
them for the Clerk's offioo at Aurora, in Mono County.

That said purported returns were made out at the request of one of
the candidates voted for at said election, but were not made out at the
request of Mr. Davis.

The witness mentioned tlie names of several candi«lates voted for
according to said returns. an<l stated that five hundred and ten votes
were cast for A. II. Mitchell, and that said returns were made out at the
instance of said Mitchell, and chiefly for his bonefit.

The ovidence introduced on the part of the Respondent does not
materially weaken or controvert the testimony sustaining the allegations
of the Contestant.

The Committee are therefore forced to the conclusion that the pur-
ported returns from the Big Springs Precinct, in Mono County, are fraud-
ulent, and should be rejected.

It is but a matter of justice, however, to state that the testimony
wholly exonerates Mr. Davis from having any knowledge of, or com-
plicity with, the alleged fraud.

By rejecting the fraudulent returns from the Big Spiings Precinct, the
Committee find that Mr. N. M. Orr received a majority of one hundred
and fifty votes for Member of Assembly, over Mr. B. K. Davis.

They therefore recommend that Mr. N. M. Orr be declared duly
elected Member of the Assembly from the Counties of Mono and Tuol-
umne, and entitled to the seat now occupied by Mr. Davis.

All of which is respectfully submitted.

TILTON of San Francisco.
C. MA CLAY,
C. B. PORTER,
JOHN YULK,
G. W. SEATON,
E. EVEY.

I concur: reserving the right to move for further time, until Senate
Messenger returns from Mono.

T. B. SHANNON.
San Francisco, July 12th, 1862.

PR(i("i:i:i)i\(;s axd testimony

IN THE

TUOLUMNE AND MONO

(H)i\TESTi:i) KLKITION CASE.

N. M. ORR, Contestant, \- B. K. DAVIS, Respondent.

CONTESTED ELECTION CASE.

N. M. ORR, Contestant, vs. B. K. DAVIS, Respondent.

In AssoiiiMy. <»n the ninth day of .Tnnuary, oij^htocn hundred and sixty-
two, N. .M. Orr prcHcnted a petition, and numerous exhibits and affidavits,
used bcfbro a Commission ai)pointed to ascertain the facts connected
with the case above entitled, whicli were referred to the Standing Com-
mittee on Klections, of the Assembly. The following are copies thereof,
of the additional testimony adduced before that Committee, etc.

I-ITITION OF N. M. ORR.

Tn the Honorahh' the AascviUi/ of California:

Your petitioner, Nelson M. Orr. respectfully shows to your honorable
body, that he is a citizen of the United States, and of the State of Cali-
fornia, and a legally <iualiHed elector, resident in the County of Tuolumne,
State aforesaid, that at the last general election, held in this State on
the fourth (lav of September, eighteea hundred and sixty-one, he was a
candidate U>v the office of Assemblyman, in and for the Counties of
Tuolumne and Mono ; and as a candidate for said office he received, in the
County of Tuolumne, seventeen hundred and twenty-eight votes; and in
the County of Mono, three hundred and forty-four votes; making in the
aggregate, two thousand and seventy-two votes. ^ ,

That at said election. B. K. Davis, a resident of Mono County, now
holding a seat in your honorable body, was also a candidat^e for said
office of Assemblyman, in the said Counties of Tuolumne and Mono, and
as such candidate received, in the County of Tuolumne, fifteen hundred
and sixty-three votes ; and was reported to have received in the County

of Mono, six hundred and fifty-seven votes ; of which number, two hun-
dred and ninety-eight votes were returned as having been received by
the said Davis, at a voting precinct in said Mono County, designated as
Big Springs Precinct, White Mountain District.

Your petitioner further shows : That he lias reason to believe, and he
so charges the fact to he, that there was no election whatsoever held on
the fourth day of September last, at any voting j>recinct in Mono County,
known as Big Springs Precinct, White Mountain District ; and that the
returns of an election, ])urporting to have been held at said jtrecinct, on
said fourth day of September, and now on tile in the County Clerk's
office, of Mono County, are a forgery, and in all respects illegal and
fraudulent.

Your petitioner further represents, that the certificate of election
issued to the said Davis l>y the County Clerk of Mono County, and by
virtue of which he now holds a seat in your honorable body, was issued
to him u])on a canvass of the votes of said county, in which were
enumerated the two hundred and ninety-eight votes returned as having
been received by the said Davis in said Big Springs Precinct ; whereas,
by right, said votes should have been excludi'd from the enumeration of
votes received by said Davis in the Counties of Tuolumne and Mono ; in
which event, the aggregate of votes received by the said Davis would
have been ascertained to have been nineteen hundred and twenty-two —
less, by one hundred and fifty votes, than the number of votes received
by your ])etitioner, and to whom, in justice, a certificate of his election
ought to have issued.

Your ]>etitioner further shows, that in accordance with the statutes in
such cases ])rovided. he. directly after the issuing of the certificate of his
electi(»n to the said Davis, caused to be instituted proceedings to contest
the election of the said Davis, and that at great expense he collected
evidence, to be taken in due form of law, in order that the same miglit
be submitted to your honoral)le body, to establish his claim to said
oflSce.

That the papers in the case, rerpiired to be served upon the saiil Davis,
were duly delivered to the Sheriff of Mono County, for service, but that
for some reason unknown to your petitioner, the Sheriff wholly neg-
lected to serve the same, as reipiired by law.

That, upon the calling up of the case before the Commissioners ap-
pointed to take testimony, the said Davis, by his attorney, objected to
the taking of testimony, on the ground that no service of papers in the
case had been made upon him, and the Commissioners thereupon di.s-
missed the matter from all further examination.

Your petitioner thereupon caused to be taken the affidavits of a por-
tion of his witnesses, tending to show the fraud committed in connection
with the alleged election at said Big Springs Precinct, and the same are
now on tile in the office of the Secretary of State, ready to be produced
upon the examination of this case.

Wherefore, the premises considered, your petitioner now contests the
seat of B. K. Davis, and prays your honorable body that leave be granted
him, in order that he may establish the facts which would entitle him to
the same.

And, as in duty bound, your petitioner will ever praj'.

^^ELSON M. ORR.

STATEMENT OF B. 8. MASON TO THE COMMITTEE ON ELECTIONS.

Tn (he Centkmrn composiiuj th>' Committrr which may he appointed by the

As»nnl,ly, fo fxmninr into the Contested Election Case of B. K. Davis, as

Assemldyman from Mono and Tuolumne Counties :

You will ploaso iiidulgu mo in ii short statement of facts in connection
with the ah«)ve case. I am a resilient of Aurora, Mono County; am a
physician, an<i engaged in the practice of my i)rofossion at this time. I
am tlie party c«»ntesting the election of B. K. Davis. I do it for the
rcttHons set forth in my statement as specifications filed with the District
Clork of thin county, which the Clerk will doubtless forward for your
examination.

At the time (October) for the examination of witnesses before the
Commissioners. I was present, with J. M. Cavis, Attorney at Law, from
Tuolumne County, as Counsel to assist me in the examination. 1 have
heard read the affidavit of my Counsel, which I forward with this note,
and which I know, of my own knowledge, to be true, so far as it pur-
portH to state what occurred before the Commissioners. By their deci-
sion I was deprivo<l of all opp(jrtunity to show the fraud perpetrated in
the counting m of the votes returned from the other voting precincts of
this county, and the votes returned from Big Springs Precinct, White
Mountain District. Evidence to that etfect I had collected at great
trouble and exitcnse; and had I been allowed to have introduced ray
witnesses, and proceeded with the examination, could unquestionably
have shown that not oidy were there not twenty-five white persons, at
the largest count, known to be within forty miles of Jiig Springs Pre-
cinct, where the election was alleged to have been held in the White
Mountain District, upon the fourtli day of September last, but that no
election whatever was held at any place iu the White Mountain Dis-
trict upon that day, from which returns were made to the County
Clerk's otHce of this county; and that the returns of an election .said to
have been held at said Big Springs Precinct on September fourth, last,
and now on rile in our County Clerk's ofiice, are fraudulent, and are in
fact in the' hainlwriling of one and the same person, official signatures
and all. althouixh garbled — as by inspection and careful examination of
the jiaj>ers will readily appear.

Having been deprived, and as I think unjustly, of an opportunity to
l>resent this evidence under the certificate of the Commis.'^ioners, I have
caused to be taken the affidavits of a portion of my witnesses as to some
facts having a bearing upon the case, and now^ submit them for your in-
spection.

Our citizens feel that the rights and privileges of the legal voters of
this county and district have been most wantonly violated, and that
persons who, in fairness, by the legal votes cast in this county and
the County of Tuolumne, were duly elected to office, are now, with-
out right, deprived of their just privileges. In their behalf, therefore, I
would'^most respectfully ask an examination at your hands into the facts

of the case, in such manner as to you may be deemed the most expe-

Yon wiU perceive, by an inspection Of the election returns of this

countT. that, excluding the vote* returned from the B_ - Precinct.

IThite Mountain District, there were cast for Membt^^ Assembly
the following' number of votes, via :

T««H.

C. W. Kendall.
T.N. Machin..

X. M. Orr

J. T. HainesL...
John Farrell ...
A- H. Mitchell.

B. K. I>avis_».

C. M. Chapman

324
443
344
334
304
293
359
316

A. Reed- '^^

^4^ to the votes thus given in Mono County, the number given to the
san aals in Tuolumne County, and the comparative number of

vot' - several parties stand thus, via :

C. W. Kendall.-.

T-N Machin

X. M. Urr-

J. T. Haines^

John Farrell

A- H- MitchelL...

B- K. I>avis

C. M. Chapman.
A. Reed-

21 n.'

1569
1656
1472
1922
1S90
1S49

From which it appenvtkst r w ^' -^-»' T N. JU^^'- — ! X. M.
Orr. were the three partica Wv amber and to

whom certificates of election sboaid Lavc t;creD iseoed as Jiciabers elect
of the Assembly for the Counties of Mono and T«'>lf!«nne.

Yoa will, therefore, please to investi_' -rmine.

from the tact$ wbicfa may be provrrTi. v '-ntitled

to the seat now claiiaed by B. K ^ one oi tbe Assembiymen elect

from tbe Coontieft of Mono and - ^^r,.\ t. -jr r r.rn a certificate of

election as such has been issued by virtL ctums received

and now on file in the County Clerk's oiL t -i .-. - -;- ■!!:- 'K— ^■

turns of Big Springs Precinct- White Mountain .

Yours, most ryr-jrr<i: ii.y.

B. 'S. MA50>

Asrora. Mono Coanty, Oct. 25Ui, 1S61.

NOTICE OF CONTESTATION.

To li. K. Don.: Clerk's Office, Mono County.

You will pU.asc take notice that a statement was filed in my office

on the t ve..lv-lo„rtl, day of September, ei.i^hteon hnndre.l and sixty-one,

by one IJ. .S. Mas.m. .•..ntestnijr yom- election as a Member of Assembly

o repr.M.Mt tlH.(. .unties of Mono and Tuolumne in the Legislature of

be St at,- ..f ( aliloniia (a cony of wbieh accompanies this notice:) and

hat 1 Imxv appointed AMV. Luck-ett, and J. W. Tyler, Justices of the

I i-ace ot said Mo,,., ( „unty, as Commissioners, to take testimony and

nmki- the necessary inyesti^rations according to law, to meet in the Town

ot Aurora, on Tuesday. October twenty-second, eiLrhtcen hundred and

sixty-ono, at ten o'clock, a. .m.

Witness n.y hand and the seal of the District Court, tliis twenty-sixth
day of September, eighteen hundred and sixty-one.

^K. M. WILSOX, Clerk.

SliKKI FFS KKTUJLN OF SERVICE.

1 hereby certify, that I hayo seryed the within notice, by leaving a
copy thereof, attached to a certified copy of the statement of the grounds
of contest, at Wood'.s store, in Monoville. Mono County, the last place of
luisincssfd' the within named Davis; and further, that'^said Davis cannot
be found in this county.

shkkiff's feks.

Sorvice or statemrnt and notice § 3 00

>rileage, twenty-six miles 13 00

$m 00

N. F. SCOTT, Sheriff.
Aurora, October 14th. 1801. Bailey, Deputy.

[Indorseil — Xotice lo H. K. Davis of Election Contest. Filed October
fourteenth, eighteen hundred and sixty-one. 11. M. Wilson, Clerk.]

AFFIDAVIT OF B. S. MASON.

Statk of California, }

County of Mono, j

Whereas, on the fourth day of Septembor, eighteen hundred and sixty-
one, B. K. Davis was elected Menil>er of Assembly for .Mono and Tuol-
umne Counties, in said State —

Now, therefore. I, B. S. Mason, a (jualilied voter in and of the said
County of Mono, do hereby contest tlio election of said li. K. Davis as
Member of Assembly aforesaid, and specify the following as the grounds
for contesting said election :

/Y/-.S/. — For fraud an<l informality in the election retui-ns of said
County of ^loiu), whereby said W. K. Davis received a jdurality of votes
in said district.

Seionil. — That fraud was c(jmniit(cd in the election returns from liig
Springs Precinct. White Mountain District, which said returns show that
said precinct east at said election Hve hundred and twenty-one votes, for
State, district, and county, otticers ; of which votes saiil Davis received
some two hundred and titty, by means of which he has been declared, by
the proper officers, elected.

Tliln). — That the apjtlication to the lioard of Su])ervisors of said
county to establish an election precinct at said liig Springs, was infor-
mal, and signed by only tive persons jnirporting to be voters in said
district.

Fourth. — That the election returns from said precinct do not hear the
signatures of the persons appointed Judges and Inspectors of Election
by the said Board of Sujiervisors, nor do said returns show any reason
why said persons did not serve, or why others were substituted.

Fiflh. — That no such number of voters as indicated l>y said election
returns, were ever in said precinct, or district, on said election day, or
any other day.

Si.itli. — That no such election was hehl in said j)recinct on the said
fourth of September, or any other day, as represented by said election
returns.

Seventh. — That there was not. on said day of election, nor any other
day, previous or subsequent to said da}', five hundred qualified voters
within a circuit of one hundred miles of said Big Springs Precinct.

B. S. MASON.

B. S. ]^rason being duly sworn, on oath says : That the foregoing
statement is true, of his own knowledge, except as to matters on infor-
mation and belief, and those he believes to be true.

B. S. MASON.

Subscribed and sworn to before me this twenty-fourth day of Sep-
tember, eighteen hundred and sixty-one.

Y. K. BECIITEL,
Justice of the Peace, Township No. 1, Mono County.

APPOLVTMENT OF COMMISSIONERS.

Office District Clerk, |
Mono County, j

Whereas, on tlio twenty-fourth (hiy of September, eighteen hundred
and sixty-one. due notice was filed in this oftiec by one B. S. Mason, a
citizen of Kjiid Mono County, for contesting the election of Leander
Quint, returned as elected Senator, and to whom a certificate issued by
virtue of said return, and B. K. Davis, returned as elected Member
of the Asscnibly, and to whom a certificate issued by virtue of said re-
turn—

Now, therefore, I, \l. M. Wilson, Clerk of the District Court of
Mono County, do hereby apiioint A. W. Luckett, and J. W. Tyler, Justices
of the Peace in and i'nv said count}', as Commissioners, according to law,
to meet as Commissiiuicrs, at the Town of Aurora, County of Mono, on
the twenty-second day of Octobor. eighteen hundred and sixty-one. at ten
o'clock. A. M., to investigate the said matter in dispute, with full powers
to send for persons and |)apers, swear witnesses, take depositions, and do
and perform every act and thing necessarj' to be done in the premises,
according to law, and keep a true record of all proceedings, and return
the same in a sealed envelop to the office of the Clerk of the District
Court, so soon as their investigation shall be completed.

Witness my hand ami the seal of the District Court, this twenty-sixth
day of September, eighteen hundred and sixty-one.

R. M. WILSON, Clerk.

[Indorsed — Commission to take testimony, September twenty-sixth,
eighteen hundred and sixty-one. To A. W. Luckett and J. W. Tyler.]

APPOINTMENT TO FILL A VACANCY.

State of California, )

County of Mono, j
in the matter of B. S. Mason, contesting the election of B. K. Davis, a
Member of Assembly for the Counties of Mono and Tuolumne.
Whereas, on the twenty-sixth day of September, eighteen hundred
and sixty-one, a commission was issued by me, to A. W. Luckett and J.
W. Tvler, a])pointing them as Commissioners, to meet at the Town of
Aurora in the county aforesaid, on the twenty-second day of October,
eighteen hundred and sixty-one, at ten o'clock, a. m., to take testimony
with regard to the matter above stated ; , i i j

An-l whereas at this time, October twenty-second, eighteen hundred
and sixtv-one, at eleven o'clock, a. m., the said A. W. Luckett has not
appeared to act as Commissioner in said matter; and it further appear-
\ncr to me that the said A. W. Luckett cannot be in attendance to act as

1(5

guch Commissioner — I do now hereby appoint F. K. Bcchtel, a Justice of
tlie Peace in and for said County of Mono, to act as one of said Commis-
sioners, in tlie place of the said A. W. Luckett, to act in connection with
the said J. W. Tyler, with full powers to do all thinujs necessary to be
done in the premises, as fully as the}' might have been performed by the
said A. W. Luckett, were he present and acting by virtue of the said
commission to him issued.

In witness whereof, I have hereunto set my hand and affixed the seal
of the ])istrict Court, this twenty-second day of October, eighteen hun-
dred and sixty-one.

M. M. WILSON, Clerk.

[Indorsed — Commission to take testimony in the election contest of
B. K. Davis. Appointment of F. K. liechtcl in the place of A. W. Luck-
ett. Filed October twenty-second, eighteen hundred and sixty-one. F.
K. Bechtel, J. P.]

PROCEEDINGS HEFoliE THE COMMISSIONERS.

PlioTLST OF 1{. K. PHELPS.

W. E. Phelps, a qualified elector of Mono County, comes here and pro-
tests against the action of the Commission now in session, and says that
said Commission has no legal existence, not having met according to
law; and further says, that B. K. J)avis, one of th*- parties whose elec-
tion is being contested, has not been served with notice, as jirovided by
law.

n. K. PHELPS.

Aurora, October 22d. ISGL

[Indorsed — Protest of R. E. Phelj)s, in the Contested Election of B.
K. l>avis. Filed October twenty-second, eighteen hundred and sixty-
one. F. K. Bechtel, J. P. J. W. Tyler, J. P.]

REPORT OF THE COMMISSIONERS.

State of California, )

County of Mono, j
In the matter of B. S. Mason, contesting the election of B. K. Davis, as
Member of Assembly for the Counties of Mono and Tuolumne.

We. J. W. Tyler and F. K. Bechtel. Justices of the Peace, in and for
the County of Mono, aforesaid, and acting as Commissioners in the mat-
ter above mentioned, by virtue of the commissions accompanying this

certificate of our proceedings as such Commissioners, do hereby certify
as follows : ^ j j

That, by virtue of said commissions, we met as Commissioners on the
twenty-second day of October, eighteen hundred and sixty-one, at
eleven o'clock, a. .m. at the office of J. \V. Tyler, in the town of Aurora,
county aforesaid, for the purpose of taking testimony in tlic matter
above mentioned ;

That at said meeting, the Contestant, B. S. Mason, was present in per-
son, and was also represented througlj his Attorney, J. M. Cavis, and de-
clared himself ready to introduce his evidence. That E. E. Phelps, on
behalf of B. K. Davis, appeared before us and filed a protest; which
protest was receive.l by us and tiled in the case, and is hereunto attached,
l)rotesting against the action of the Commission now in session, on the
ground that said Commission has no legal existence, and that the said
Davis, whose election is being contested, has not been served Avith no-
tice, as provided by law.

Discussion was thereupon ha<l, on the part of Contestant, by B. S.
Mason in person, and by his Counsel. J. M. Cavis, and by \l. E. Phelps,
on the part of the said Ihivis, as to the propriety and right of said Com-
missioners to take evidence in the Case.

Contestant, bv his Counsel, also stated that he had his witnesses sub-
pa-naed ; that they were then present, and that he was ready to proceed
with their examination, and asked -to be allowed to introduce his evi-
dence.

At this stage of the proceedings an adjournment was taken until five
■ flock I*. M.

October 22, 5 o'clock p. m., 18G1. — Justices Tyler and Bechtel, as Com-
missioners, in se-^ion at the otfice of J. W. Tyler ; B. S. Mason, Contestant,
and J. M. ('a\ i>. a^ Coun.sel, also in attendance.

And now. alier conMiltation in the case, and no evidence being intro-
dueed t<» show that said protest was incorrect as to its statement of facts,
it is by us decide<l that we have no right to take testimony in the mat-
ter before us, and the parlies are dismissed.

In testimony whereof, we have hereunto set our hands, this twenty-
second of October, eighteen hundred and sixty-one.

F. K. BECHTEL,
J. W. TYLER,

Commissioners.

[Indorsed — In the matter of B. S. Mason, contesting the election of
B. K. Davis, as Member of the Assembly lor the Counties of Tuolumne
and Mono. The within are our proceedings in the case. F. K. Bechtel,
J. W. Tyler, Commissioners.]

EXHIBITS ON THE PART OF CONTESTANT, REFERRED TO IN

THE PETITION.

[A]

White Mointain Uistkict, )

Big Springs Camp, August 18th, 1861.)
Having learned that you were President of the IJoard of Su})erviHor8,
we eoneluded to riMpU'st you to represent to the Jioard the pro])riety of
estahlishing a preeinet at this canij). We have some eighty voters here,
with the prospeet ol" a considerable increase by the day of election. By
attending to the above request you will much oblige
Yours respectfullv.

WiLMAM CRAVES,
JOHN CAMl'IiON,
.lAMKS KINNK,
L. THOMPSON,
B. K. MIKPAY.

[Indorsed — Filed August twenty-sixth, eighteen hundred and sixty-
one. K. M. Wilson, Clerk.]

[B]
Extract from Frorrrdimjn of lioard nf S^prrvlwr*.

August liO. istil. — Board met pursuant to adjournment. Present:
President Worland and Supervisor (ireen. Absent : Supervisor Sheeley.
Petition of citizens of White Mountain District to establish an election
precinct at Big Springs Camp, White Mountains, was read, and, on mo-
tion, the ])raycr was grante»i ; and Crawley a]»pointcd Inspector,

and William Graves and James Kittrell. Judges of l''J»(tii>n.

[C]
R. M. Wilson, County Clerk, Aurora, California. Election returns.

[r>]

Statk of California, )
County of Mono. \
B. C. Boling, being duly sworn, deposes and says : That he received

the within returns from Selby, one of the Clerks of Election, and

they have not been opened or altered since he received the returns from
him, up to the present time.

B. C. BOLING.

Subscribed and sworn to before me this tenth day of September, eight-
een hundred and sixty-one.

R. M. WILSON, County Clerk.

State of California, »
County of Mono, j

I II M. Wilson, County Clerk in and for the County of Mono, afore-
said, duly c-omnuss.o.K.d and .jualified, do hereby certify that the paper
ahove wntton, nuu-kod oxh.h.t -A.' is a true and correct copy, tl the
.est of my know cd.^re and l.c icf. of a paper tiled in my office August
twentv-s.xth. c.^ditccn hundred and sixty-one, upon which, action on^he
same day was taker. I.y the Hoard of Supervisors of tlie County of Mono
,.,-;'?il".''!'''''* ^■ertily that the paper above written, and marked ex-
hibit • B, IS a true and correct copy and abstract from the records of the
Hoard of Supervisors of Mono County, showin- their action in full upon
the business brou-ht to their attention bv the pai>er marked as exhibit
"A, al»«»ve mentione*!.

I do further crrtity. that exhibit " C," above written, is a true copy
of the a«blres>^ written upon a sealed packa-e. delivered to me on the
lentil day of September. ei;rhteen hundred and sixty-one, by a person to
me unknown ; and that upon the receipt of said package, 1 cau.sed to be
taken an affidavit, written upon the package, of which exhibit " D "
above written, is a true and correct copy. '

I do further certify, that said package, when opened, by order of the
Hoard of SuperviworH of said Mono County, contained what purported
to be the returns of an election, held at Hig Springs Precinct, White
Mountain District, of which the writing hereunto attached, and inarked
exhibit " K." is a true and correct copy ; and that said package abso con-
tained eight pieces of paper, upon which are written figures and names;
one of said pieces being headed • Poll Book ;" of which the eight papers
attached together, and hereto attached, marked exhibit '^ F,'' are true
and correct copies.

In witness whereof, I have hereunto set my hand and affixed my oflScial
seal, this tenth day of October, eighteen hundred and sixt3-one.

li. M. WILSON.

[K]

At an election held at Big Springs I'recinct, White Mountain District,
-Mono Count}-, California. Sej)teniber fourth, eighteen hundred and sixty-
one, the whole number of votes polled was five hundred and twenty-one.

FOR GOVERNOR.

J. "R. McConnell had*

John Conness luul

F(»ll CLKRK OF SUPREME COURT

George S. Evans had

FOR ATTOR.N'EY-GKNERAL.

George W. Bowie had

185
196

398

165

* Between the word " had" and the figures indicating the aggregate vote of each candidate, the
■paces in the original certificate arc filled with ordinary tally marks.

Statement of Votes — Continued.

Tjfiandpr Ouiiit had

FOR SENATOR.

406

Ain\'x had...

104

C W Kendall had

FOR ASSEMBLY.

359

B. K. Davis had

298

A. H. Mitchell had

510

J A. Moultrie had..

FOR COUNTY JUDGE.

503

Wo, the undersirrned, do hereby certify that the ahovo is a true and
correct return olthe votes polled m' tli.- election above mentioned.

JOHN SANDS,
L. A. MUKRAY,

Inspectors.

ALFRED ODKLL.
WILLIAM SKLHY,

Clerks.

WILLIAM CRAWFORD,
E. BOWMAN,

Judges.

[F]
POLL BOOK.

No.

Nunos.

No.

Nuinus.

James Wood.

E. Winslow.

E. White.

William McCleary.

J. Brown.

A. Anderson.

E. Walsh.

W. Thomas.

Ed. Jones.

L. W. Storms.

Abram Wilson.

W. Niles.

John Reed.

W. Sage.

William Wilson.

John iiorke.

A. Jackson.

H. A. Montague.

E. W. White.

Eobert Kirk.

J. Robinson.

Al. Brown.

D. Wheeler.

Wm. A. Watson.

Edward Wright.

John Stoutenburg.

Eobert Cook.

Jack Feli.x:.

Alfred Jones.

D. D. Bonnel.

Wright Smith.

William Watkins.

W. A. Reid.

David IJobbins.

John Thomas.

Alex. Iluntington.

No.

4<i

Namea.

H. Clifford.
Henry (u\\q.
Hohvvt Wiilker.

J. HoSWl'll.

E. A. Clark.

D. ColliiiH.
Benjamin O'Neil.
J. Owcnu.
Holu'rt Collins.
K(i. Hill.

K. W. Strmiss.
John .Movers.
Thonui.s Avers.
B. Blunchnrtl.
A. MoMW.
Ktl. Apjili'ion.
William Sykes.

E. Con lev.
John Hhker.
II. (i. Bancroft.
Robert Porter.
James Cook.
William Fowler.
James A. Trask.
W. E. Foot.

A. Hunter.
E. C. Wood.
A. (ffaham.
P. Braneier.

A. Fort man.
E. Stout.

R. Stewart.

B. B. Vaui^han.
L. Harrison.
A. Harp.

L. Potts.
A. Bottsford.
A. Shropshire.
William Cooley.
David Bruec.
W. A. Ferj^uson.
Caleb Odel.
R. Waddell.
J. Wado.
A. W. Ellis.
John Diiblo.
W. A. Noble.
E. Werley.
George Kallenbach.
A. Stein man.
Len. Wilson.

^^- Names.

88 Benjamin Bruce.

89 Georo;e Cunningham.

90 Alf. Corbett.

91 John Clark.

92 Ed. C. Hill.

93 W. Esters.

94 G. A. Robbins.

95 C. E. Humraoud.

96 G. Gordon.

97 R. Brady.

98 E. Godfrey.

99 J. A. Levy.

100 C. Walker, Jr.

101 J. AVil.son.

102 Abraham Edwards.

103 William B. White.

104 U.O.Stewart.

105 1). Goldsmith.

106 Jerry Smith.

107 Jack Thompson.

108 A. Martin.

109 C. Warren.

110 B. Wakefield.

111 ' n. Jack.son.

112 J. Hughes.

113 B. Barnard.

114 L. Sumner.

115 C. Warner.

116 H. AVashburn.

117 A. Steers.

118 Ed. Carlton.

119 W. Cameron.

120 I W. A. Harrison.

121 I C. E. Burgess.

122 I L. L. Harding.

123 I Robert Laflin.

124 J. Lovejoy.

125 J. Herling.

126 K. Merrick.

127 C. Higley.

128 L. A. Hill.

129 G. E. McAvoy.

130 Patrick Murray.

131 William Jackson.

132 A. B. Root.

133 J. Wallace.

134 Abraham Bronson.

135 John King.

136 William Davidson.

137 L. Benson.

138 P. McCally.

Ed. Roberts.
J. J affray.
William Stebltins.
Jolin Lockwood.
W. Hazard.

D. Gray.
R. Fortune.
L. A. Sawyer.
George Savage.
AVilliam Davis.

A. F. Mayer.
W. I lack lie V.
C. McMain."
W. Dotv.

H. F. Clifford.
W. Sta]>lor<)rd.

E. A. (N.llins.

F. Jackson.
Goori^c Harrison.
L. Wallers.

C. Hamilton.
George Soper.

B. Gunn.
William (Jreen.
A. Sti-ol»ridi^e.
William Lair.
George l>caM.
William Wilkins.
Gcorijje Sampson.
Matt. :McKwon.
Alfred Odcll.
Gfcorge Hurd.
j9»Backu8.
George Peck.
Charles Stevenson.
A. Wiltshire.

W. McFeeley.
George McAram.
William Ahrams.
George Phillips.
J. Bates.
E. Rodney.
J. Sharp.
C. E. Watson.
L. A. Murray.
C. Batisov.
C. W. Orme.
AVilliam Selby.
John Britton.
J. A. Pierce.
John Sawj-er.

190

191

192

193

194

195

196

197

198

199

200

201.

202

203

204

205

206

207

208

209

210

211

212

213

214

215

216

217

218

219

220

221

222

223

224

225

226

227

228

229

230

231

232

233

234

235

236

237

238

239

240

C. Oliver.
A. Watkins.
C. K. Blodfelt.

A. B. Ferguson.

B. Cecil.

L. W. (iregory.
J. E. Crosby.
Ab. Crawford.
J. E. Jones.

C. li. Johnson.
L. Morrow.
Ale.x. McCray.
G. Pelton.

J. Alexander.
Benjamin F. Brady.
R. Allison.
B. Davison.

A. .Marsh.
William Crowell.
Benjamin King.
J. Fnlor.

B. Hradish.
J. Eaton.

William A. Barrett.
R. Choate.

C. McCall.
Alfred Heed, Jr.
L. A. (ilenn.
George (Jilhert.
A. Montg«jmery.
L. Fredand.

J. Manstield.
£. Kna])p.
George Church.
C. Marsh.
A. Daubcnspeck.
G. Doughert}'.
A. -McLaughlin.
William Fry.
Charles W. Strauss.
Ed. Strobridge.
William Crawford.
L. Manning.
George Ponsonby.
Charles Fowler.
G. Hubbard.
E. Colton.
W. E. Wood.
T. Kent.
A. Bliss.
C. Allen.

"'■1

Names.

No.

Names.

241

B. Kinson.

292 1

Robert McKay.

242

D. Curtiss.

293

Al. Paine.

24;}

C. Oldlmin.

294

A. Rotbehilds.

244

L. Dav.

295

J. Mctiattey.

245 '

K. Ihi'y.

296

E. Muliins.

24G !

Robert Kin<^s])un'.

297

A. Lewis.

247

C. SaiKlorson.

298

J. Lambert.

248

Jami's Underbill.

299

W. Parsons.

249

A. fiamblc.

300

Frederick Walker.

250

I). Wilson.

301

A. McFarland.

251

Cbarli's Colton.

302

C. Dunlap.

252

Jobn Packard.

303

George Camp.

253

E. SiMJi;\vi(k.

304

William Schwartz.

254

A. Mcklhannon

305

E. Hill.

255

C. Sbiolds.

306

Abram Hunter.

25(5

K. Bowman.

307

William Lamb.

257

V. Savior.

308

E. Hillson.

258

B. W. Svmmes.
George Taylor.

309

William Lyons.

259

310

L. Bruce.

260

Jobn Santls.

311

C. L. Cummings.

261

C. Patterson.

312

J. B. Baker.

262

B. Filbridi^e.

313

B. Murray.

263

C. Tbiunart.

314

William Johnson.

264

Wilson Wbito.

315

E. Keating.

265

Benjamin SImc-kelford.

316

J. Parker.

266

George Sbropsbire.

317

D. Mix.

267

1). Hbukburn.

318

C. Oglesby.

268

A. Backu.H.

319

D. Shoemaker.

269

C. L. Fo.K.

320

Daniel Hitchcock.

270

A. Finley.

321

E. Barstow.

271

G. Watsi.n.

322

J. Fanchor.

272

C. Pierce.

323

John Watson.

273

I. Wo(»d.

324

B. Phillips.

274

L. IJrinkerboff.

325

E. Goff.

275

C. Hall.

326

J. Gates.

276

GerH. Fall.

327

C. Burrowcs.

277

1 C. II. Foster.

328

S. Bennett.

278

1 G. Polbemus.

329

William Dean.

279

1 Alt'. Bailey.

330

George Lilly.

280

• Curtis Martin.

331

F. Roberts.

281

, William Oliver.

332

F. Stout.

282

j J. Peters.

333

0. Brannan.

283

1 B. C. Beatty.

334

D. Freeman.

284

1 Fj. Seruin.

335

C. Johnson.

285

\ G. I)(»bson.

336

George Fraley.

286

C. McLellan.

337

J. Crane.

287

W. Townsend.

338

J. C. Thomas.

288

C. Morri.son.

339

George Bray ton.

289

D. Barber.

340

H. Apple.

290

Kobert Bean.

341

Robert Putnam.

2in

Bill Marshall.

342

C Bra w ley.

No.

Names.

No.

Names.

343

F. Rowland. |

394

Frank Sewall.

344

Caleb Brook.

395

John Hart.

345

R. Killer.

396

J. ]J(»senthal.

346

F. Seeger.

397

R. Isaacs.

347

J. MeDaniel

398

B. Waun.

348

R. Dorrity.

399

F. Brock.

349

A. Flanigan.

400

C. Satibrd.

350

J. Pixley.

401

A. Beck.

351

C. Atkinson.

402

Benjamin Beck.

352

L. Duriiing.

403

Frank Johnson.

353

H. Ac-key.

404

B. Farluw.

354

James Carroll.

405

J. Tem])le.

355

Joliii Pine.

406

F. (iarrison.

356

W. .Ma.key.

407

C. Beckhart.

357

A. N. Pate.

408

L. Fleming.

358

J. Farrell.

409

B. J.agely.

359

L. nul.I.aril.

410

W. A. Johnson.

360

John Finch.

411

C. Warren.

361

A. W. Lynch.

412

B. W. Little.

362

C. Sargent.

413

C. (JarHeld.

363

W. Patlon.

414

F. Short.

364

C. Warfidd.

415

C. Wingatc.

365

A. W. Dexter.

416

Robert Kent.

366

F. Wat kins.

417

M. Woodruff.

367

Robert ('reason.

418

L. Peabody.

368

A. MeCartVey.

419

James Curtin.

369

R. (Jurnett.

420

E. A. Crano.

370

Peter Dolan.

421

W. Thomason.

371

F. McKay. •

422

F. Wiltshire.

372

A. C. Morrison.

423

W. Sumner.

373

C. W. Wheeler.

424

B. Packard.

374

A. Whitney.

425

A. Holmes.

375

L. Bok'l)y.

426

C. Turner.

376

Charles Stearns.

427

W. Penfold.

377

Oliver Bliss.

428

J. Hadley.

378

William Patterson.

429

L. Perkins.

379

George Saylcs.

430

C. Biggs.

380

F. Bnulley.

431

John Rose.

381

Charles Stcbbins.

432

L. Kraft.

382

F. Lock wood.

433

Patrick McLane.

383

C. Starr.

434

A. Walton.

384

Fred Fairfax.

435

Calvin Day.

385

George Thompson.

436

R. Terry.

386

Frank Phillips.

437

Benjamin Wado.

387

G. Kodnev.

438

F. Buckner.

388

W. Belknap.

439

C. Perrin.

389

L. Frost.

440

L. W. Parsons.

390

John Barnes.

441

B. Dunn.

391

C. Matthews.

442

A. Wilton.

392

F. Reynolds.

.443

C. York.

393

Kent Randall.

444

C. Yining.

'JLQ

No.

Names.

No.

Names.

445

A. W. Bradley.

484

L. French.

446

J. Drai^oo.

485

R. Godfrey.
C. Butler.

447

B. Valentine.

486

448

F. Waters.

487

11. Rll.sworth.

449

B. Carter.

488

I), liannistcr.

450

F. Ilavncs.

489

F. Hodges.

451

B. Yates.

490

C. 0. Bradley.

452

B. Fillson.

491

George Frost.

453

J. Ridley.

492

11. Simmons.

454

F. Johnson Baugli.

493

John Prince.

455

C. Thomas.

494

11. West.

456

I). W. Sawyer.

495

A. W. Flint.

457

J. Bell.

496

11. Phillips.

458

J. W. (ieor^c.

497

Samuel (i. Perry.

45!)

(J. IMiill.nck.

498

G. Pierson.

4(>0

A. (loodale.

499

F. Farley.

401

F. ('. Hart.

500

George Robbins.

462

C. W. Han.ld.

501

Abe Thompson.

463

A. W. .Miller.

502

William Phillips.

4<>4

James Herry.

503

J. Redwood.

465

W. James.

504

Kobert Gaines.

4f')6

F. Perry.

505

Alt: Jtice.

467

J. McKlroy.

506

L. Welch.

468

Frank HI lis.

507

W. Franklin.

469

B. 11. Turner.

508

A. C. Wilkes.

470

Frederick Walsh.

509

G. Wheaton.

471

J. Jordon.

510

B. Kiley.

472

F. Buck.

511

F. Belcher.

473

John IJidtje.

512

J. Barton.

474

A. Douglass.

513

F. llinggold.

475

I.. Hayes.

514

G. L. Barber.

476

F. Hopkins.

515

L. Singermau.

477

Iv Heaneliamp.

516

E. Barnes.

47S

W. Fiitiiani.

517

0. C. Welch.

479

J(din Clark.

518

A. ]{. Manning.

480

Frederick Koot.

519

C. Burt.

481

E. W. Kini;.

520

C. E. Rines.

482

Samuel Smith.

521

Abram Bates.

483

J. Geary.

STATEMENT

Of the Votes polled at a General Election held in the County of Tuolumne^ State
of Califurnid. nn the fmrth day of Septemher, c!<jhtrrn hundred and sixty-
one, for Mvmbna of Assembly, of the Counties of Tuolumne and Mono.

PRECINCTS.

l...Sonora. (North)

2...Sonora. (South)

3...Hruwirs Flat

4...KiiK'ai(rs Fhit

5...('ainj>hoirs Khit

({...Williams' Jtanch

7....SunimcM-svilIe

8...Cher()kc'o

9.. .Blanket Crock

10...Soulshvville

ll...Sovora''uci>'s OKI Mill...

12...IIes.siaM'8 Store ,

13...Snj,'ar Pine Mill

14...Columhia, ^No. 1)

16. ..Columbia. (No. 2)

16.. .Yankee Hill

17...Goia Springs

18. ..Saw Mill Flat

19. ..Pine Lo:; Crossing

20.. .Shaw's Flat

21 . . .Sprini^tiehl

22...Tuttletown

23...JefFoi"S()nville

24...Douglassville

25... Jamestown

26...Povert3- Hill

27 . . . Algorine Camp

28. . .Chinese Cam])

29. . .Mon tezu ma

30... Crimea House

31. ..Peoria Bar

32... Vermont Bar

38... Pock River Ranch

34. . .Jacksonville

35. ..Stevens' Bar

161

163

160

89
87
32
11

103

62
73
12
11

121

34
51
31
38
16
13
21
17
79
117
13
27
57
2

49
25
42
14
45
97
31
22
64
42
33
41
3

34
59
32
33
16
13
19
19
76
113
13
27
57

2
44
24
42
14
37
97
31
23
64
42
33
41

34
51
31
33
16
13
21
17
76
113
13
27
57

2
43
25
42
14
44
97
31
23
62
42
33
41

37
9

37
10

36
12
11

1
30
15
43

238

232

128

108

214

225

129

111

42
23

55
56

36
10

1
26
11
3K

5
86
95
40
18
45

3
69
54
11
26

2
51
19

104

10
19
14
10
227
255
20
43
26
25
95
81
14
30
40
98
37
19
40
58
23
15
8

41
23

23
69

15
12
15
81
107
19
38
17
25
27
27
14
26
30
98
39
18
30
38
14
14
8

3
31

Statement of Votes — Continued.

PRECINCTS.

w
S

o
Si

5-1

W
5"

g
§■■

en
o
cr

»^

36.. .Deer Flat

4
51

4
7^
33
12
11

20
83
32
18
3

20
61
25
18
2

20
86

31..AV\^ (hxk Flat

38...Gurrote, (No. 1)

26 *^fi

39,..Garrotc, (No. 2)

12
10

7
10

40...Heo(rH Ranch

41...Hlvtho*HSt<.n'

42. . . Moccasi n ( ' rovk

1595

1574

15
8
4
8

1563

8
1
2

20
1728

15
11

1
2

7
1
2

20
6

14
7

20
2

7
23

43...1{*'(l .Mountain Har

44. ..Hawkins" Har

4
17

45... Indian Har

40. .I)()u Pedro'8 Bar

TotAla.

1726

1235

1841

1179

1852

Statk of Califor.nia, }

County of Tuoluinno. )
I. B. A. ManliH, County Clerk in and lor said county, State aforesaid,
do hereby certily. that the above extract contain.s a full, true, and cor-
rect statement of all the votes given in Tuolumne County for Members
of A.S8embly, a.s returned to me.

Witnefts my hand, and the seal of the County Court of
said county, atiixed at Sonora. this thirteenth day of
Sei)tember, ei^'hteen hundred and si.xty-one.
\ ' B. A. MAEDIS,

County Clerk.

J SEAL. '

State of California. )

County of Mono. )
I. R. M. Wilson. County Clerk in and for said Mono County, State
aforesaid. <lo hereby certify, that the above and foregoing is a full, true,
and correct copy of the vote of Tuolumne County, as returned and cer-
titiivl to nu'. for'Members of Assemldy.

In witness whereof I have hereunto set my hand, and
attixed my olticial seal, this twenty-first day of Octo-
SEAL. V ber. eighteen hundred and sixty-one.

County Clerk.

(

STATEMENT

Of the Votes polled at a General Election held in the County of Mono, State of
California, on tlw fourth daif of Sfptenihrr, eifjhteeti hnndrrd and sixty-one,
for Mcmbfrs of AssfmUy, of the Counties of Mono and Tuolumne.

PRECINCTS.

Aurora j 123

Kinoaid's I 10

Bodii' '

Monoville ] 91

Dogtown ' 18

Big Sprin«^s

Vinini; Crei'k 12

Big Meadow.s

182

131

I
1471 249

5' 11

155; 64

27: 3

298

327

247

196

86
3

2
15

2'
14

1C8

369

4
0

119

()

137

510

Totals 254 316, 6571 344

443, 334 683: 803

185

102
1

304

State of California, )

Count}' of Mono, j

I, \l. -M. Wilson. County Clerk in and for the County of Mono, State
aforesaid, do hereby certif}-. that the ahovc is a full, true, and correct
copy of the statement of votes now on file in my office, as cast for the
office of Representatives, or Members of Assembly, at the election above
mentioned.

,— >^^ In witness whereof. I have hereunto set my hand, and
^ ^ affixed my official seal, this twenty-first day of Octo-

[ ber, eighteen hundred and sixty-one.

3 H. 31. WILSON,

County Clerk.

SEAL.

^FFIDj^VITS,

TAKEN TO BE USED IN THE MATTER OF B. S. MASON CONTESTING THE
ELECTION OP U. K. DAVIS AS MEMBER OF TUE ASSEMBLY FOR THE
COUNTIES OF MONO AND TUOLUMNE.

DEPOSITION OF JOSEPH FELIX.

State of California,

County of Mono.

Joseph Folix, boin;; •'>»'}' sworn, on his oath deposes and says :

I have boon residing tor the most of the time, for the past two years,
in this eounty — the greater part of the time at Aurora and Mono.

In June U\M, I went from Mono down to the White Mountains, pros-
pecting. A j)art of the time I was in company witli Alroy Hoot, James
Murray, William Semans, and three other men. from Mono. In pros-
pecting, we went all about the White Mountains ; on the east and west
Hides of them. We camped at many different places. We camped at
the Lone Pine ('ajnj>. at the Big Sj>rings Camp, on Cottonwood Crock.
We also passed through the caiion. to the east side of the moun-
tains. Saw Colonel Crawley and his comjiany pros])ecting on Cotton-
wood Creek. At Big Springs Camp we did not tind any persons, nor did
wo see anything to indicate that anybody had been living there, or any-
where in the vicinity. We did not find any persons at the Lone Pine
Camp, or at any j)laee in the vicinity. I heard that there were two men
prospecting, up in the mountains, about eight miles from the Big Springs
Camp. A.s we were coming from Cottonwood Creek to another camp-
ing place, we met three men, who ai)peared to be prospecting, going
towards Cottonwood Creek. I don't know their names. I think, tak-
ing all the men I prospected with, and all the men in Colonel Crawley's
company, and the men we met as we travelled about, I did not see more
than sixteen or eighteen men during the time I was gone. I am sure we
did not see over twenty men. On our return from the mountains, we
separated. I went to Mono. I got there about the middle of July.

On the nineteenth day of August, eighteen hundred and sixty-one, I
bought a horse and a mule from John Frazier, who had been down below
the White Mountains. His animals, he said, had become tender footed,
and he had left them about twenty-tive miles below Cottonwood Creek.
On the last Monday in August I again went down to the White Moun-

tains, prospecting, and to get the animals I had bought. This time I
went to Cottonwood Creek, to Big Springs Camp, to Lone Pine Camp,
and to a valley called Eoot's Valley. Here I found Colonel Crawley's
com) any. prospecting and hunting. In company with Crawley were
William Ci raves, Daniel Wynian. and three other men, wljosc names I do
not recollect. Did not see anybody at Hig Springs Camp, or anything
to indicate that anybody had lived about there. At Lone Tine Camp,
on Wednesday, election day. William Hamilton and Samuel Turner, from
Mono, came in about ten o'clock in the morning. They said they had
left Mono on the previous Sunday. They inquired the way to Colonel
Crawley's camp, and I directed them the way there. Lone Pine Camp
is some eight or ten miles from Big Springs Camp. The day before I
was at Lone Pino Camp I had been at the Big Springs Camp.

I afterwards saw Turner and Hamilton at Col. Crawley's Camp, the
day after election. Septendjcr titlh. Wo stayed at camp on Thursday
night, and in the morning Turner and Hamilton left. 1 lett soon after,
and went down from Cottonwood Creek to get the animals I ha<l pur-
chased. 1 think 1 got back to Aurora about eight days after 1 was
at Crawley's Camp. I did not hear anything of there having been any
election held anywhere in the White Mountains during the time I was
gone. Did not hear any person, to my recollection, say anything about
election, but Hamilton.' 1 think I'asked him. when he was at J^one Pino
Camp, when election day was, uinl he said, " I believe to-day is election
day." Did not hear anything said about election, at Crawley's Camp,
by anybody.

If there had been an election held at any of the cami>s about the
White Mountains. 1 think 1 would have heard something said about it.
Besides Crawley's company, and Turner, and Hamilton, I met three
other men, who'said they were going to Oak Creek, near Owens' River.
The name of one was P. A. ('raigue ; another was Pleasants, I think;
I don't know the third man's name. I believe they live somewhero
near Aurora. Besides those. I do not remember to have seen any ])er.
sons on this trip. The first time that 1 heard of any election having
been held in the White Mountains, was on my return to Aurora.

1 have examined a copy of the returns of the election sai«l to have
been held at Big Springs Camp, in the White Mountain District. The
copy was certified to as a true copy, by R. M. Wilson, County Clerk. I
have looked over the names which are signed to it as officers of the elec-
tion. 1 never heard of any such persons before.

JOSEPH FELIX.

Subscribed and sworn to this twenty-third day of October, eighteen
hundred and .^ixtv-one.

F. K. BECHTEL, Justice of the Peace,

Township No. 1, Mono County.

DEPOSITION OF CHARLES W. SHULTS.

State of Califor.ni a, }

County of Mono, j
Charles W. Shults, being duly sworn, deposes and says :
That he is now a resident of Aurora, in the County of Mono; that he

is about twenty-two years of age. About the fourth or fifth of March

last, in company with James Condon, John Ross nnri nnn ^+k
whose name I do not ncnv reeulleet I 1 . "t \,,? ' i ^ ^*^^'" P^^^^'^'

called the White Mountains on a nmsn win t^^' ^w '?"* ^° ^^ ''^^^ i«
to what is ealh-d Owens iver he™ It ho Vr^" Ar^^ ' ^'^'^^^^t down
lowed up tlu. river .ome en miles "1^^^^^ Mountains; then fol-

first struck (Jwens' Hiver/tlaM. we^t\o u" W V ^'^•'■'^ '' T^^^^ ^^

at what is called Bi;. Spri.pA'am ^\^ !>/'''"'• '""^
known as Lone rincTa.^ ^^^^i^^'lJ :^11^t'i::t:^jT '^
we returned to Aurora. Durin,, this time we we e pro K-ctit L fi

::;;!s d!::^:;;'z ti^;r'"""- "'^ ->' --"-^^->' - ^f^^^ it ^;:>i^;fS
cj^!;:" iohnt ::'it:;ei w '^^Lr'a.^^iiur^;/" ^^^^^-^ r^^ -^-^

» \ • . "3 '"'">' ana lour other persons I ao-ain l^ft

Aurora o ^n, ty ()wens- Hiver. prospecting. We went to t'^e Across
m^' on Ow.ns K.ver. to Little l^ine C'reek. an,l to IV.^ Springs cimp It"

1 IrT" Vr?'' ''T' ^'^'""^'' ^''•"^^•'^'•^•' ^Villia.uCrave,^ Al oy Root
and l)r. \ an )yke. Alterwards, in company with the parties wc met at
hu^ Spnngs (-anu., wo crossed over to the east side of White Mounta ns
ami camped "' w ."l .s now eulh-d Hoofs Vallev; we afterwanls caS
at what weealh.. Nynum's Valley. We were pro.sp.cting lor quS
d.scove,vd so.ne odes, hxated elain.s. and organized Ihat i'^ nowlnown
as the '. \N h,u. Mountain M.n.ng District." We pa.ssed some laws for
ourgovenwrn-nt. and sehnted Colonel Crawley as Recorder of the Dis-
trict. Alter this. ( ondon. Root, and myself, remained in the mountains
some three weeks, and returned to Aurora in June. J)uring this trip we
did not meet any other i)ersons than those ahove mentioned, to mvrecol-

About the Ia«t of June, in company with Henry Fi.idk-y, Alroy Root
and Joseph Snow. I again went to the White Mountair.;, ],rospcetino-'
>>e camped at d.ltV.rent places, prospected for (,uartz. and worked son?e
upon the hd-.s I had huatr.l the jirevious trip. This time I was ffone
from Aurora until ahout the last of Julv. I returned to Aurora in com-
pany with some three others. During this trip I saw perhaps as many.
as twenty-five persons, including the members of my own company
these I saw on our trip down and back, and during our stay in the moun-
tains.

Again, on the sixth day of September last, in company with two other
persons. I went .lown to the White Mountains and Owens' River. I went
within sight <.f the Hig Springs Camp, hut did not go to it. I also passed
below Rig Springs Camp, about ten miles. It was about the twelfth or
thirteenth of September that I was near the Big Springs Camp. I did
not sec any persons at the eamp, nor any signs of any persons havino-
been living there. During this trip down, I saw onl}' six persons beside's
the members of my own com])any, and those were on Owens' River.
Three of them were ranching cattle, and the other three were going
down the river, as they stated, to cut some hay. The occasion of my
going do\yn this trip was. that two men came up from the first crossing
of Owens' IJiver to get assistance to i)rotect the whites of that place
against the Indians, a.s they were interfering with their stock. These
men ca.ne int(j Aurr>ra on election day. One of these men returned with
us when we went to Owens' River. On this trip I was absent from
Aurora some twelve or thirteen days.

On the twelfth of October, in company with B. S. Mason and N. M.
Orr, I again went to the White Mountains. We went across the moun-
tains to the east side, and passed down some fifty miles, to what is called

Cottonwood Creek ; from there we went to Colonel Crawley's Camp in
the mountains, some twenty miles from the jnouth of the creek. Here
we fouiul lour men ; two of them were William Graves and ])aniel Wy-
man, mentioned above. We talked with them about the election of Sep-
tember fourth, eighteen hundred and sixty-one. Graves and AV3man
both stated that tbey knew nothing about any election. AVvman said
that he was out liunting on eh'clion day. Mr. (^rr told (ii-aves that a
petition had been presented to the ]ioard of Supcrvisoi-s, asking to have
a voting precinct established at White Mountains, with his name upon it.
He stated that he had not signed any petition, and did not know anything
about an election having been held there. After we left Colonel Craw-
ley's Camp, wo went to Big Springs Camp, and there found Colonel
Crawley ami one of his jiartners, who were out for the j)urpose of get-
ting provisions from Mono ; they were j)artners with (J raves and Wyman.
Besides these men, we saw no ])ersons at Big Springs Camj). nor any ap-
pearances of any jiersons having lived in that section. Jiesides Colonel
Crawley's company, we met only two j)ersons on our tri]) to the White
Mountains, except some three persons, travellers towards (Jwens' Kiver,
on the Visalia road. Wo returned to Aurora October twentieth, eight-
een hundred and sixty-one.

C. W. SUULTS.

Sworn and subscribed to before me this twenty-third day of October,
eighteen hundred and sixty-one.

J<\ K. BKCHTEL, Justice of the Peace,

Township No. 1, Mono County.

DEPOSITION OF FKANK MARSHALL.

State of California, )

County of Mono, j
Frank Marshall, being duly sworn, on his oath deposes and says :
I reside in Aurora, County of Mono. My age is forty-nine. About
the first j)art of June last, in company with four men, l»y the names of
Gwinn, Smith, and George Tabor, I left Aun^ra to go to the White
Mountains, on a pros])ecting trip. During our trip, we camped at several
ditferent places in White Mountain District. We were pros])ecting for
quartz claims. I remember of camping at a jilace called the " Jjone Pine
Camp;" here we met with another prospecting party from Aurora.
There were three ]iersons. 1 believe, in the company — T. N. Machin, Wil-
liam J. llively, and a man. I think, by the name of Kodifer. We inquired
of them about the trail across the mountains. Afterwards, we went
over to the east side of White Mountains, and ])rospected about there.
We camped one night on Cottonwood (.'reek — think that is the name it
goes by ; saw no j)ersons anywhere about there, but Indians. The In-
dians told us, by signs, that there were some men at work up in the
mountains. We afterwards heard that Col. Crawley's company were up
in the mountains. The day after we left Cottonwood Creek, saw two
men, who were packing; said they were packing to Crawley's Camp;
told us about Crawley's compau}- ; don't know the names of these men;
think they were some of Crawle^^'s partners. They told us, from the
way we came, we went within about seven or eight miles of Crawley's
Camp. During our prospecting, we crossed Owens' River, and went

down to a place they called Ki^r Pi„e Grove. We saw, at this place
lour or tive „um. with some horses. They were out prospeetin. and
were re.stu.^^ w.th ihe.r hor.ses. We also went down belo^ h . h^ee I
8h<ml. say as n.any as tlurty miles; saw no other persons down thc;e

the F .'/ Pi'."'T' " r 'r '^'''"^'' '"'"" "'-'^^ «'• t^" '"i'^'^ ^li-^ta»t from

he Lone line ( am,,; d.d not see any persons anywhere about there.
In coming oward.s home, we a^iin met Machin and company in the
Adobe MeadowH. At one tune, on our trip, we were near the Visalia
and Mono road. an<l saw Col. .lacks, of M,,,,,., with some teams There
was al.s., a band of cattle with the teams. Perhaps there were six or
eiglit nuMi with the teams and cattle.

Hesides the persons 1 have mentioned, I do not remember of seeing
any other white person.s , luring our prospecting in White Mountains or
OweiiH Kiver. \N e got back to Aurora on the sixth day of July. Had
been out prospecting about a month.

I have examined a coi.v of the Big Springs Precinct election re-
turiiH. certihed by K. M. ^^ ilson. County Clerk, to be correct ; have ex-
ainineU each of the names of the persons whose names are signed as
otlicers; have never heard the names mentioned before; do no^L know
any such persons.

FK.\NIv MARSHALL.

_ Snb.scribe.l and sworn to before me this twenty-fourth day of October
eighteen hundred and si.\ty-one. " '

V. K. HKCIITKL. Justice of the Peace,

Tt>wnshij> No. 1, Mono County.

DKI'OSITION OF K. A. FOSTER.
Statk ok Calik

I ALUoU.MA, J

County of Mono, j

K. A. Foster, l>eing duly swcirn. on his oath deposes and says:
I reside in Aurora. Mono County. On the last Monday in July last,
in company with Dr. B. S. Ma.son, J. S. Mahen, and two other persons,
from Aurora, 1 went on a |,ros])ecting trip to the White Mountains.
Another jnirty, of some dozen or more persons, had started out the day
before. A short time before this, news had come to Auroi-a that rich
(piartz diggings had been struck at the east of us, some one hundred
miles distant. We did not know whci'c they were, but started out to
iirospect in the White .Mountains ; thought ])erhaps they might be there.
\\ e prospected and travelled about on both sides of the mountains ;
crossed over the mountains, through a caiion. At the foot of this
canon or gulch we met a party of men prospecting. They were from
Aurora. The same company that left before my company left. When
i got back to Aurora this compan}' had all returned from the White
Mountains. During the time we were gone we were travelling nearly
all the time, jti-ospecting occasionally. We camped at such places as
we could find water, and tQvd for our animals. In returning from White
Mountains we met. at the A<lobe Meadows, three persons going toward
the White Mountains. They told us they had been prospecting on Cot-
tonwood Creek. I think tJie name of one of them was Pond. Atone
time we saw two men travelling on the Visalia road. They had a team

with tliem, four horses and a wagon. Wo did not find any ])orson8
prospecting, otlier than those I liavo mentioned. We found, in some
jjhices, small holes sunk, as if ])ersuns had l»een prospecting, but they
looked as if made some time belbre. Besides the persons 1 have named,
we did not see a single white person, to my recollection, while we were
gone. When on the other side of the AVhito ^lountains, we went to
another range, separated from them l)y a valley some dozen miles wide.
I should say it was all of one hundred miles from Aurora to the east side
of the White Mountains, where we crossed them. Some of the time we
were one hundred and thirty or one hundred and forty miles distant
from Aurora. ^I}' com])any returned to Aurora the fourteenth day of
August. I returned with them.

Iv A. FOSTER.

Subscribed anil sworn to ln'tore me liiis iwiiity-rourih day of October,
eighteen hundred and sixtv-one.

F. K. HFCHTFL, Justice of the Peace,

Township No. 1, Mono County.

DEPOSITION OF P. A. ("lIAKil K

Statk ok Cai.ikok.nia, I

County of Mono, j

P. A. Craigue, being duly sworn, deposes and says :

About tiie tenth or eleventh of September, eigiiteen hundred and sixty-
one, in company with John Palmer, I lell Aurora to go to Owens' River
and vicinity, to look for a j)lace to take uj> as a ranch. In going down,
we camped at different jilaces in the White Mountain District. One
evening we stopjK-d at the Lone Pine Camj). l)iil not go t«) liig Springs
Cam]>. but ])assed within sight of it. J)id not see any persons at Big
Springs Camjt. noi* any aj>pcarance of any persons having lived at the
can»p, or in its vicinity. At Lone Pine Camp I did not see any jiersons.
There wei'e apjiearances at this j>lace of ])ersons having cam])ed there.
1 was at this j>luce before, about the last of .March, and there were then
some persons camped there. We campecl one night at a place about
four or five miles this side of the first crossing of Owens' River. Wo
met five or six men at this place. They were engaged in ranching cattle.
This ])laee is al»out eight miles from Big Springs Camji. We talked
with these men about the election of the fourth of Se]>tember last. I
Lad no ac<|iKiintance with these men. excej>t what I saw of them at their
camp. They all s]>oke about the election. an<[ said it was a swindle.
They said they were there, at election time, and did not know of any
election being held at any j)lace in the White ^lountains. They .sjjoke
of Colonel Crawley's company, and said they were mining or pros])ect-
ing in the mountains. The.se men had been ranching cattle there about
six weeks. 1 know when they went down there. They told us they
did not know of any otiier persons prospecting in their vicinity. At a
place on Owens' River, about twenty miles below Big Sj»rings Camp, we
saw two more men. We talked with them about the election, and they
both stated they had heard nothing of any election being held at the
White Mountains, until we told them about it. About forty miles below
the While Mountains, we met with three more men, cam])ed near the
river, at a place they called Oak Creek. They were engaged in ranch-

inir. We talked with them about the election at the White Moun-
tains, and they stated that fhey knew nothing about it. Besides these
imrtics, I saw three other persons travelliiiir on the trail. One of them
said he was prospoet.ng in the mountains.'- We talked with him about
the eleet.un ,n the \\ h.te Mountai.is. Ho said ho know notiiino- about
It. Ihe piaee whore we met this man was about tifteen miles from Bio-
Springs ( amp N\ e wore gone from Aurora, this time, tifteen days I
do not remembor of seeing any other persons than those I have men-
tK>nen.

I have examine.! the returns from the Big Springs Camp, White Moun-
tain Distnel. as eertifie<l to by K. M. Wilson, County Clerk. Have ex-
amined the names of the officers subscribed to the returns. I never
before heurd of such men.

Before we lell Aurora, a rumor was in circulation, brouo-ht over by
some person from Mono, that A. H. Mitchell had receivcnl some live
hundred votes down at the White Mountains. The report caused a good
deal of exoitement and talk ujion the street. This was before the official
returns came in from the Wiiiio Mountains. I did not believe there
were many vot-rs at tho White .Moiintains. I thought the report Avas
inteiub'd tor snort. The circulation of this report about so large a vote
ill tho White .Mountains, was what led me to inquire about the Voting at
the White M<iun»ains. from all the parties I met there. I tried to tind
tho piaee where the election was held, and. how many votes were cast.
I have stated about all that 1 learned about it.

P. A. CRAIGUB.

Subflcrihod and sworn to before me this twenty-fifth day of October,
eighteen hundrod and sixty-one.

v. K. BECHTEL, Justice of the Peace,

Township No. 1, Mono County.

DEPOSITION or W. S. IIIVELY.

StATK of CAIJKott.M.\, )

County of Mono, j
W. S. Hively, being duly sworn, on his oath deposes and says :
I reside in Aurora, Mono County. In June last 1 went down to the
White Mountains, pi-ospecting for quartz. Two other men went with
me ; T. N. Machin and a man by the name of D. Rodifer. We j)rospected
up and down l)oth sides, and crossed through the canons over the
mountains. We stojtped at several places which appeared to be camp-
ing places for prospecting parties. We camped at Lone Pine Tree Camp,
and also at a spring some eight or ten miles below the Lone Pine.
Wo saw no porsons'at this place, nor signs of any having lived about
there. At the Lone Pine Camj) wo met another party from Aurora;
there were four of them — Frank Marshall and his partners. They
asked us about the trail to cross over the mountains. On the east side
of the mountains we camped once on the creek. Wyman & Co., or
t'rawley &. Co.. were prospecting in quartz. We went to their camp, but
did not' find them at homo. Did not see any of their company. I do
not remember of seeing any other persons besides those I have named,

during the trip — I mean besides Indians. We returned to Aurora about
the teiitli of July. I cannot be certain of the exact day.

I have Hcen the copy of the election returns of \V\<^ Sprinjjs Camp,
which is fcrtiticd to be a true copy of the returns in his ofHcc. by R. M.
AVilson, County Clerk. I have never seen, or known by hcar>ay. of any
nersons, bv name, like those who sii^n the election returns as dtlicers.
^ ^ \\. S. in V ELY.

Subscribed and sworn to before nie this twenty-fourth of October,

TEL. Justice of the Peace.
Township No. 1, Mono County.

eighteen hundred and sixty-one.

F. K. BECIITEL. Justice of the Peace.

DEPOSITION OF JOSEPU M. CAVIS.

St.\tk of C.vlifok.m.\, )

County of Mono, j
Joseph M. Cavis. being duly sworn, on his oath dciioses and says :
I am a resident of Columbia, in the County of ruolumne ; came to
Aurora on the third day of ( )(tobt'r. instant. My business in this county,
in ]»art. was to assist in collecting I'vidence in the contesti-d election case
of B. K. havis above mentioned, and to aid in the examination of w^it-
nesses before the Comjnissic»ners. The next day after my arrival in the
place. I called on H. M. Wilson, County and Distriet Clerk td this eounty.
lie showed n»o the papers which were tlien tiled in the case, and in-
formed me that the Sheritr had the necessary papers required to be
served on Davis. I saw the Sheritt' afterwards, and talked with him
about the service of the Davis papers ; he said he had them, and they
had been over to Mono to serve them, but could not tind Havis. for he
had lett the State. I mentioned t(» him that the statute ]>rovided for
service by leaving the papers in such cases at the place <»f business.

On the twenty-second day of October, eighteen Imndred and sixtv-
one, on the calling up of the matter before the Commissioners, J. W.
Tyler and F. K. Bechtel, I appeared as Counsel to assist li. S. Mason, in
examination of his witnesses. The Commissioners being ready to j)ro-
eeed with the case. I stated to them that we were ready with our wit-
nesses. IJ. E. Pheliis, Attorney at Law in this place, then appeared, and
on behalf of li. K. Davis, asked leave to tile a protest in the case, against
the Commissioners pnxeeding to take testimony, on the ground that the
Commission had no legal existence, and that j>apers in the case had not
been served on Davis as retjuired by law. Leave was gianted. and the
protest tiled by the Commissioners.

I suppo.xe the protest will be found with the minutes of their pro-
ceedings, etc.

I then stated to the Commissioners what I have stated above, as to
the papers rec]uired to be served on Davis being in the Sheriff's posses-
sion in ample season for service as required l>y law. I then sent for
R. M. Wilson, District Clerk for the County, and for the jtapers filed in
his ottice in the case. I produced the Sheritf' s return of service u])0n
Davis of the requisite papers in the case. The Commissioners objected
to the return of the Sheritf. as insufficient. I then stated, that if the
Sheriff had made an insufficient return it might be corrected. I also
stated that the Contestant had his witnesses subpoenaed in this case ; that

they were there in attendance, and tliut ho was ready to proceed with
their examination, an.l asked, in his behalf, that he be allowed to intro-
duce his evi<lence before thcni.

The Commissioners took the subject into consideration, and without
farther controversy in the matter, refused to take any testimony on the
part of Contestant, and dismissed the parties.

I then asked that the Commissioners would make a full statement of
all the orterH ma<lo them on beiialf of the Contestant, when they should
make up the minutes (d" their proceedings in the case.

And further depom-nt saith not.

JOS. M. CAVIS.

iSubs<-ribed atid sworn to before me this twenty-fifth day of October,
eighteen hundreil and sixtv-one.

V. K. HKCIITKL. Justice of the Peace,

Township Xo. 1, Mono County.

DKPOSITION OF E. GKEEX,

StATK ok ( '.M.IKon.MA.

Mono. [
sworn, on his oath deposes and says :

the mem-

County of Mono, j

E. tireen. beitj^ didv sworn, on his oath deposes and says:
I reside in Aurora. Sfono County. I am at this time one of
bers of the Hoard of Supervisors of Mono County ; was such in the
months of August an<l September last. At a meeting of the Board of
Supervisorn, of date August twenty-sixth, eighteen hundred and sixty-
one, there was presented to the Board for its action, a letter, or request,
in writing, asking the Hoard to establish a precinct for voting purposes,
at Big Springs Camp. White Mountain District. The Board took action
upon it. (only two mendiers. Charles Woiland and myself being present,)
and establi-'hed the precinct, and named the officers of election. Colonel
Crawley, who formerly lived at Mono and was known to the Board, and
who wart now miidng "in White Mountain District, and as we supposed
near the place where we had established the precinct, was appointed
Inspector; William (Jraves, one of his partners, and also a former resident
of Mono, was name«l as one of the Ju<lges; and James Kittrell, Avhose
name appeared with (Jraves upon the petition for a precinct, was named
as the other.

On the eleventh day of September last, the Board of Supervisors
again met, (Mr. Worlan^d and myself of the Board only being present,)
for the purpose of canvassing the returns of the election of September
fourth, for State and county officers. A return of votes was made from
the Big Springs Precinct, White Mountain District. The parties whom
wo had name«T as officers of election did not appear as officers of election
upon the returns. I did not know any of the parties whose names ap-
peared upon the returns as officers of election; had never heard any
such i)ersons spoken of Mr. Worland also said he did not know any oi
them. I also thought, and still do, that the returns were fraudulent,
and that the officers' names, as well as the body of the returns were
all written by one person. I objected to their being counted. I believed,
and so stated, that we ha.l the right to reject them if we believed them
fictitious returns. I had good reason to believe that there J'^''^ ']f
more than twenty-five or thirty white persons, at the most, in the White

Mountain District. I did not know any of tlic persons whoso names
were returned as voters. Mr. Worland also stated that he helievcd the
returns were all fraudulent. He said ho would reject them if he could.
We discussed the matter for some time. The District Attorney, R. E.
Phelps, and the County Clerk, and some others who wore ])resent.
tliou<i;ht we could not reject them. Mr. Worlaml tinally said ho was sat-
isfioii they were all fraudulent, hut thouiijht wo must count thorn in. I
said I was satisfied they were fraudulent. I did not give my consent to
their being counted in.

Subsoribifl and sworn to before me this twenty-fifth day of October,
eighteen hundred and si.xtv-one.

F. K. BKCIITKL. Justice of the Peace,

Township No. 1, Mono County.

DEPOSITION OK IJ. .M. WH.SON.

State of Cai-ikorma, 1

County of Mono. |
P. M. Wil.'idn. Iii'ing duly sworn, on his oath deposes and says:
I am Chrk <»f the District Court in and for the County of Mono. On
the twenty-fourth day of Svptembor last, there was tiU-d in my oHico. by
B. S. Mason, a sworn statement of the causes ujjon which he should and
did oontost the election of H. K. Davis, as Member of the Assembly elect
from Tuolumne and Mono Counties.

On the twenty-sixth <lay of the same month, I issued commissions,
directed to A. W. Luckett and J. W. Tyler, two Justices of the Peace in
ami lor Mono County, appointing thorn Commissioners t<^ take testimony
in the ca.se, at the Town of Aurora. County of Mono, on the twenty-
second day of October, eighteen hundred and sixty-one, at ten o'cIock,

A. M.

Immediately after issuing the commissions above mentioned. I j)re-
parod the proper notice in the case, to be served on the sai<l B. K. Davis,
and delivered the same, with a certified copy of the sworn statenient of
the said B. S. Mason, on file in the case, attached thereto, to N. F. Scott,
Sheriff of Mono County, for service upon the said Davis.

Afterwards, on the fourteenth day of October, instant, the said Scott
filed in my offite his return of the nmnner in which ho had served the
papers, by mo delivered to him for service upon the said Davis.

On the twenty-second day of Ootober. instatit. at eleven o'clock. A. M.,
Luckett, one of the Commissioners in the case, not being in attendance,
and it appearing to me that he could not be in attendance to hoar the
testimony, I forthwith commissioned F. K. Bechtel, a Justice of the
Peace in and for Mono County, to serve in his place.

P. M. WILSON.

Subscribed and sworn to before rac this twenty-fourth day of October,
eighteen hundred and sixty-one.

A. T. SLOPE P.

Deputy County Clerk.

TESTIMONY,

TAKEN BEFORK THE ASSKMltLY TtiMMITTEK ON ELECTIONS IN THE MATTER
ur llli: ruNTKSTKD ELECTION— ORR v.-. DAVIS.

TKSTIMoNV OF T. X. MACIIIN.

I n -iilo in Aurora, Mono County. I left Sonora for Mono County, on
till- >i\th of May lust. an<l arrived at Monoville between the twentieth
and twenty-tiflli of the month. I was there hut a few (hiys and went to
Aurora; sto|.|KMl at Aurora alnuit a week and then returned to Mono-
ville. Loft Moiioville hi'tween llu- tenth and twentieth of June, and
went to the White Mountains, near the tir.st eros.sing on Owens' Kiver.

From Monoville to where wo struck the summit of the White Moun-
tains. 1 judi;e it to he from seventy-tlve to one hundred miles. Crossed
the Whiti' Mountains several miles below the Lone Pine. The country
throu^'h whieh I travtdled is very roui^h and mountainous. It is about
eight or ten miles from the base to the Kummit of the mountain. I
kuow of no other wav of crossing than the route which we took.

We found the j.hue supposed to be Craves' Camp, but no one was
there at that time. Parties api)eared to have lett that morning; the
camp fires were still burning. This was on the eastern side of the moun-
tain some twentv-rtve or thirtv miles from the summit, by the way we
went, which was' not a very direct course. We saw a few horses' tracks
on the White Mountains, but no men. .,.,,. •, r-

We i.assed on bevond the camp, but returned to within half a mile of
where the camp fire was burning. We were there two days, rambling
ab.»ut the countrv. and prospecting. Saw where a b ast had been put
into a quartz vei.*.. but saw no men and no other indication of mining
except a notice of a mill site having been taken up, which was dated
MVhite Mountain District." W^e started to return to Monoville and
explore the countrv. We explored some half dozen places o find an-
other pass, but had to give it up, and went back through the pass by
which we came. This was during the latter part of June.

I should think the course of the mountains was ««"t'iea t aiul i oi h-
west We went from thirty to fifty miles from the summit to wheio we
struck tl e can . at the-eastern base of the mountain. The mountains
heaunVar' Aurora, are quite high there, and covered with snow^
Synn parallel to the Siemis, to Owens' Eiver, and are from ten to

twenty miles in width. The plains on each side are sandy and covered
with sai^e hnish. and are. on an av<'ra<:je, from four to five miles wide,
jjeihajis nioi-e. They are entirely nninhahitcd. water is scarce, except
at Owens' River, and are "generally destitute of i^rass and veijetat ion. ex-
cept sa^e brush, and exce])t in Owens' Kiver Valley, where there is
plenty of ;^rass. We left there durini; the latter ]>art of June.

It is about fifteen miles from the White Mountains to the lilack Lake,
at the nearest point. We tollowed up the mountains. al<in<; the valley,
to (irassy Canon, near Hot Sj)rintcs. Spent several days at Black Lake.
Thei'c was no settlement there, and none at (Jrassy ('aiion. When wo
went to the White Mountains we met a i)arty of seven ])ersons. near the
Lone Pine. We saw no others on our trip out and back, except three
Mexicans.

On the ni;rht of the fourth of July, we saw a paity of ten oi" twelve
men at the Adobe Mea«lo\v8, all eamjied to«^ethcr. l^art of them were
the men before mentioned.

(Jiven and his j>arty went to Aurora on the fifth of July, and we went
to Black Lake. Marshall. Flood, and myself, went to the hi<;hest point
of the Wiiite .Mountains, to view the country. Went some thirty miles.
Saw no sii^ns of inhaidtants on the way. Crosse*! the White M«>untains
on the second trip, fifty or sixty miles above (traves* Camp. Found no
]>Iace at that time culled Bii; Springs, nor heard of any.

1 have resided in Mono Count}', otf and on. from the middle of ^hly
io October. 1 am well acquainted with the inhabitAntri of that county.
1 jiractised law in Monoville.

I have looked over the p<dl list of the Bi^ Springs Precinct, now shown
nie. J find the names of some jjersons who I have seen, the names'of
J)avis and Wilson amoni; them. I do nf»t think that Davis was in the
White M(»iintain District about election time, as I saw him about that
time in Tuohimne County. Of all the names on this list I d<» not find
any that I know to be residents oi' Mono, except Davis and Wilson, and
do not know that those are the same pei-sons that appear on the list.

I saw the petition to the Board of Supervisorn, and took a copy of it.
1 also saw the letter or petition stating the fact of there bein^ ei«;hty
voters in the Bii; Sprint^s Precinct. The letter and all the si«;natures
were in one han<lwritin:^. and done with r»ne pen. I know a man by the
name f»f Williani (Jraves. whi»se nanie apj»ears here, but do not know
any others on the list. I don't know whetlier it is the (rraves I know,
or not. The one I know wetit by the name of liill (Jraves. ami lived, as
I understood, in the White Mountain District.

I made an examination (d" the original election returns in the Clerk's
office of M<»no County*. The paper before nie. in my opinion, is a correct
copy of those returns. It is my 0]>inion that the ori<i;inaI is all written
in one handwritin;;. names and all. I think that the names are varied in
style, with the attemj>t to disi<uise the signatures. The document i>
neatly made uj). with scarcely a scratch or blot upon it. and I never sa\'v
one made u]» so neatly before. My conclusion is that it could not have
been used as a ]»oll and tally list.

Another jieeuliarity I noticed was. that I could not make any combina-
tion by which the sum total wouM amount to five hundred and twent\'-
one votes, the number which the certificate purports to have been ^iven.

Another peculiarity is that no vote is cast for Lieutenant-Governor,
Member of Compress, or Judge of the Supreme Court.

The parties designated as officers of election by the Board of Supervi-
sors, are not the officers who acted at the election.

The names of the parties who petitioned do not appear on the poll list,
nor the oftieers of election appointed l»y the Supervisors.

I also find many names near eaeh other, commeneinf? with the same
letter.

CROSS EXAMINATION.

It wa** ahout seven days from the tenth of June that I reached Graves'
Camp, in the White Mountains.

I examined the papers referred to. at the request of Mr. Orr and Mr.
('avis, for their information, and not to he a witness.

I was a candithite my.solf and did not receive any votes at that pre-
cinct. I am not Idased from the fact that I did not receive any votes
then*.

I found a threat many (juartz Icdixes. Found only two claims located,
except the water claim. The po|»ulation is a movinui; and fluctuating
one.

The vote in Mono County for Sheriff and county officers, in the fall,
was not HO lar^e as it was in June.

I was not <lown at Walker's Hiver at the time of the excitement in
July. I have heard it varituisly estimated that there were from four
hundre<l to six hundred prople there at the time. I don't think thei'C are
any peoph« then- now. All thosr that I knew who went there came right
hack. When there is an excitenuMit. most of the people of that region
are apt to i;o t<» thf place where it exi>ts.

1 never heard of any i-xciifineiit ahout the White Mountains, but heard
ahout that of Walker's liiver. I lu'anl that there were some good quartz
mines on the south side of the White Mountains. I have not been to the
White Mountains since last summer.

I (h) not believe that Mr. Davis had anything to do with the vote at
Hig SpringM. or had any com|>licity with it whatever, and think that he
was as nuudi a>t<»nished to hear of it as anybody.

From the plan' callrd (iraves' Camp, which I have since heard was
cal!. d Hii; S|»rini;s Precinct, to Owens' River. I should conjecture to
Ik- about twenty-five miles, right straight across the mountain. I saw
no minini; d<»ne there, but there are some mines, and the country is valu-
able fi.r iiiiiiiiiK- if for anything.

UK-niUKCT KXA.Ml NATION.

I b-ii MoiK. ruuniv about a week or ten days before election. During
that time, I heard of no particular excitement; heard of several parties
going down tlu*re occasionallv.

I do not think the j.opulation in Mono County was as great in the fall
as in June.

AT:.Mv u.M.t tbriv ill Juiic, niul retumcd, stopping only a short time.

RE-CROS.S EXAMINATION.

Mr. K<M,t told me that there was a White Mountain mining district
organized there last summer. If a credible person hsul reported rich
mines there. I should not be surprised if there should be four hundred
or five hun<lred people there.

I have heard that Walker's River excitement was a humbug.

The whole of the White Mountain country, between Mouoville and
Aurora, is a barren, rough, sago-brush country.
6

4-2

I have heanl lliat there were ten or fifteen persons staying at Mono-
ville this winter.

I think I heanl that Col. Crawley was ,«,^oini^ to stop at White Moun-
tain, with his ])arty of four or live ]»ersons.

I never eounted the stores at Monoville, l)Ut havr heai'd that there
were twelve or fourteen during the summer.

The vote of Monoville, at the last election, was hctween three and
four hundred. J^ast June, it was about four lunulred and ninety, J
think.

T. N. MACIIIN.

TESTIMONY OF H. S. MASON.

I am a physician and a lawyer, l»y profession. I havi> resided in Cali-
fornia over nine years; have resided principally in Siskiyou County.
Reside now at Aurora. Mono County ; have resided there from January
eighteenth, eighteen hundred and sixty-one. to Decemher fifth, eighteen
hundred and sixty-one. .My residence, immeiliately jtreceding my resi-
dence in Auntra. was in Lake X'alley. Kl J>urado County. J)uring my
residence in California I have visiteii many portions of the niining dis-
tricts.

I think I anj well accpiainted with the mining country, having followed
mining in almost every form. I have been myself a practical miner.
1 have been engaged in mining about seven years, employing hands and
working myself; part of the time iti digtjing ditches; and have built one
quartz mill. Have conducted tlu'se operations in the C«)unties of Siski-
y<»u. |)el Norte, Kl Dorado. an<l Mono. I have been in the mining dis-
tricts in many other counties, but I did not enga;;i' in mining in those
counties. I first commenced mining operations in Mono County, in
Api-il. eighteen hundred and sixty -one, at Monoville. 1 have worked in
(piartz ledges at Aurora.

1 know what is meant in tins country' and elsi'where by the woivl
" pr(»specting." I have visited many portions of Mono County by way
of i)rospecting.

I know a White Mountain District, and its surroundings, but do not
know that it is in Mono County. I «lo n(»t know of but one district of
country in California known as the White .Mountain District. It is sit-
uated on the east side of the Sierra Nevada Mountains. From the
nearest part of the White Mountains to Aurora, it is about seventy miles.
The range of the White Mountains is about eighty to one hundred miles
in length, and fifteen to thirty-five miles in width. This distiict takes
its name from a range of mountains known as the White Mountain
range. 1 have travelled over this district quite extensively, at two dif-
ferent times.

At the north end of the White Mountains there is a place denominated
Big Springs. It is in a desert, four or five niiles from the base of the
mountain, at the north end. on the west side of the jtass. I crossed over
that pass. a!id on the east side of the White Mountains I found a similar
country to that on the west side — sage brush, sandy deserts, and alkaline
jUains, and occasionally a green spot. I saw no marks of civilization,
except occasionally the track of a shod horse, and around the Big Sjirings
indications where white men ha<l been, by seeing some empty bottles.

On the east side of the W^hite Mountains is another place called the
Big Springs, with the same indications.

There are <leep ^'orges nlonfj the base of Iho mountain, which emit
small streams of water. This water sinks as soon as it strikes the
Desert.

The mountain is eitvered. more or less, with small scrubby timber.

I saw.4iear the summit of the mountains, at the head of what is called
Cntfoiiwood Creek, a cabin, inlmbited by four or tive men. Avho were
l>rosi..rtinjr.

I passed <l<»wn on the southwest part of the mountains to the Desert,
and camped at what is called Bi<; Sprini^s, beini^ the third place of that
name, six or seven miles from Owens' River. I saw the same indica-
tions as at the other places, and the same character of country, from
there to the Bii{ Springs, at the north end. tirst spoken of.

Tlie first trip there I made in July, eighteen hundred and sixty-one,
and returned in August.

The country is the most barren, desert, roeky. uninhabitable, inhos-
pitable country, that I ever saw.

From what I kn<»w of the altitude of other locations, I should judge
these mountains to be about eight thousand feet high.

1 saw, at the north end of the mountains, in July, eleven or twelve
men, besides my own party of six.

I made one trip in Detober; don't recollect the day I started. I saw
the cabin i " 'd. on the second trip. Was ten days making the last
trip, and tbivs the tirst. Hoth were in eighteen hundred and

sixty-one. Dun i i : the exact day I returned. Crawley <S: (i raves'

eal'i'n I found on iid trip, with great ditticulty. near the head of

Cottonwood Cr.ik. I bi.-» is the only cabin in tbe district that I ever
heard of. I sboiii.l judge it to lie tifty or sixty miles from the north end
of the mountains, jibout one hundred and ten miles from Aurora, and
alM>ut tb.e same distanc-e from Monoville. h is about sixty miles, in a
south, ii.terlvdinction. from the first Hig Springs 1 spoke of, about forty
miles troni the src.Mid. on the east si<le of the mountains, and, 1 should
judge, about twentv miles from the third Big Springs that I spoke of on
ihr >.. ■ *of the mountains. The second Big Springs spoken of

li,. II.. the cabin. The range of mountains runs about north

and s..ulli. 1 li»\e visited the rirst Big Springs spoken of, three or four
times. Camped at tbe second Hii; Springs two nights and a day, at one
time. Camped onee at the third Big Springs. In the July and August
trip I camped at the Hrst two springs, an.l at the third m October. Saw
no evi<lence of inhabitants on the second trij) more than the first, except
the cabin before sp<»ken of which I did not see on the first.

The eharacter r.f these different Big Springs is similar, with the excep-
tion of the Mc.nd. which forms a small lake, and is surrounded by con-
siderable -ra^s. This lake is fiftv or sixty yards long, and about thirty
or fortv yards wi.le. The irrass' extends for about a mile and a halt
northeast, an.l five or six miles s.Mithwest, varying in width from halt a
mile to a mile an.l a half. Saw a great many antelope there. Saw no
people there, with the exception of my own party ot six. Ihis spri i
u.lie to be about six miles from the base of the AN hite Mountains a
small desert intervening between it and the mountains At both ot the
other springs there are several springs coming out at ditterent places
close together, terming i^rass plats that admit .>f camping pl^ces At
the first" spring 1 shoubl think the.-e was a hundred acres contam^^^^
more or less grass. At the thinl. I should t ^nik tiiere might be fi ty or
sixty acres of-grass, more or less. The third spring is the «eares to the
base' of the mountains, the distance being from half a mile to a mile, and

surrounded l»y a barren desert, with the exception ol^ sajrc hrush. The
first sprintc I shi)idd think was about six niih^s from the base of the moun-
taii's, surrounded by a sage-brush, sandy desert, with an occasional alkali
plain. I saw two people at the third spring on the last trip, who accom-
panied u.s to the Adobe Meadows, thirty iniles from Aurora — Crawley
and his partner. At neither of these cam)>s did I sec any signs of civil-
ization, or settlement, or of occupancy. Saw no signs of tents, or tent
poles, nor anything showing that any persons had been there, except to
camp. There were no indications of settlers being al»out. and no roads
leading to or from cither of these springs. There was a trail iVom C'raw-
ie^^'s Camp tliat had been travelled somewhat, but it was so blind that
we lost it. When we were going to it fro»n Crawley's Camj), I saw sev-
eral places around on the east side of the White Mountains where there
ha<l been some <ligging and prospecting done. Saw no ])lace where more
than an hour's work had been done, except at the cabin before alluded
to. which was a ver}' rough, rude structure, of small size, composed of
logs, rocks, and dirt, and calculated to accommodate five or six men.
Tliev were erecting an arastra for the purpose of prospecting some quartz
— I mean Crawley iV C<». This cabin was called Ciawlcv's Camp, and is
the same as Crawley \' (Jraves" Camp.

I resitjed in Mono County during the last genei'al election. I took
some ])roceedings to contest the election of Mr. Davis as Member of the
Assembly, in behalf of Mr. ( )rr. At the recpiest of Judge Machin, I
filed specifications, as » qualitiod voter, in behalf of Mr. Orr, contesting
the seat of Mr. Davis, which I signed; the specifications of which are
correct and true, and are the sjime as the statement alrea<ly given in
evidence before the Committee by the Contestant, as a documt>nt signed
by the witness, and filed in the County Clerk's office of Mono County.
After I tiled these specifications. an<l for some time before. I ti'ied to
obtain evidence to ascertain whetlu-rthe election returns from the White
Mountain District, of Big Springs Precinct, were a fraud. After the elec-
tion, I went to the White Mountains on this same business, on behalf of
Mr. Orr, to see William (iraves. the name heading a petition to the
Board of Supervisors praying for an election precinct to be established
at the White Mountains — to j)rove that that ))etition was a fraud. I
saw him. and solicited him to go to Aurora, to testify before the Com-
missioners.

[It is conceded by the Counsel for the sitting meml>cr, that the ])aper
alrea<ly given in evidence liefore the Committee by the Contestant, pur-
p(»rting to be the certificate of the two Justices of the Peace, commi.s-
sioned by tljc County Clerk of Mono County to take testimony in refer-
ence to the legalit}- of a pretended election of Members of Assembl}-.
claimed to have taken place at a certain precinct, designated as the Big
Springs Precinct, in the White Mountain District, is a correct account of
the j>roceedings which took ]dace and were ha<l l>efore such Commission-
ers or Justices of the Peace, under and in ])ursuance of such commission.]

Mr. Graves did not come, and begged to be released, but promised to
come to Sacramento before the Committee of the Assembly. A man
with me. namei! (Charles Shultz. had a subprena. but it was not served
upon him, at Mr. Graves' request, as it would be a great disadvantage for
him to go over at that season of the year. There was no process served
upon him to appear before the Legislature, to my knowledge.

I am generalU* acquainted with the people of' Mono, throughout the'
county, having practised the ])rofession of medicine there during the
time of my residence, for about a year.

1 Rftw the purported returns from the Precinct of BiV Sprino-s in
Mono Com.t V. on fi|,. i„ the County Clerk's office. I have examinc^d the
poll list or» hie in the ( lerk s oifice, from that precinct.

[The ^vitnes.s was hi-re shown a certiHecl copy of the i^oll list of Biff
.Spriiii^.'^ I recinct. M(tno County.] "

I am acquainted with three persons in Aurora heariiiir the same names
as those which ] see on the ])oll li.st. Their names are, William Davis
\\ illiam l*hilli|.s. aiKJ Samuel Smith. 1 know many others who hear
the same surnames, hut not the same Christian names. I examined the
j)olllist for the purj)ose of ttseertainiiii,' how man\ ])ersons there were
on it whom I knew.

I have examined the paper pur|.ortinir to he the return of the In-
spectors, called the tally paper, marked exhibit " E," viz : the returns
of the Inspectors. .lud^'es. and Clerks, of election, purporting to be
signed by such resp.-etive otlicers. 1 have examined that jmper carefully
and critically, for the i>urpose of seeing if I could discover marks of
fraud. It was .signed by different names, and bore marks of having all
been done by one hand. One or two names were written with a heavy
hand, but bore marks of having been written by tiie same person who
wrote the other names, most of which were in a lighter hand ; especially
wore they similar in the formation of capitals. The whole paper ap-
pearccl to be written in the .same hand. The ])aper here ])resented is
very similar in the general style and arrangenjent, to the original. It
had an unwrinkled surface, as though it had never been folded up. There
were no blotM, interlineations, or erasures, on it.

CROSS KX.\MINATION.

I have never bi'cn to Big Springs before the times mentioned. I have
practised medicine in .MuiKt an<l Aurora, and <»utside of those places.

I think there CMidd not be four hundred or five hundred })eo}jle in Mono
County, and I not know it.

I was a candidate for County Judge of Mono County. I was not
elected. I never examined the full returns in relation to my own elec-
tion ; nor the returns for the candidates for .Members of Assembly. I
took more interest in the election of Members of Assembly, than in my
own. I never asked a nwin to vote for me. but have asked hundreds to
vote for Members of Assembly.

1 was not ac<|uuiiitcd with Mr. Orr, and never saw him until after the
election and I had commenced this contest. I commenced this contest
because I believed there had been a fraud practised, and I considered it
my duty as a good citizen to do so. Judge Machin and others requested
me to commence proceedings. I do not know who paid the expenses of
this contest. Have never received anything, myself I paid for filing
the pa|H'rs in the C«»unty Clerk's office.

I have not been jironnsed any fee or reward, by Mr. Orr, or any other
person.

I ha<l some conversation with Mr. Orr. in regard to expenses, and I told
him 1 should expect to be rej)ai<l what cash I actually ])aid out for his
benefit. I liave had no promise of fee or reward, from J. M. Cavis.
Have no feeling of animosity against the sitting member. Have known
him for a long time, and know him to be a gentleman.

In all mv examination in this matter, I never discovered any indica-
tion that Mr. Davis had anything to do with the fraud in this election,
and I do not think he had.

I have never been cmjiloycd as an expert in examining papers, but am
sufficiently an expert to lorni n»y own jiidijjinont.

The William Davis, wiiostr name on the ])oll list I referred to, is not
the William ('. J)avis who keeps the livery staMe in Aurora.

I am not ae([uainti'd with Ufjot. whoso name is on the poll list. I have
looked over the poll list, and there are many surnames that I am ac-
quainted with, but I only recognize three whose Christian names I
know.

Question. — Miglit there not be names upon the poll list, other than the
three mentioneil, who are residents of Mono County, and you not know
them y

[Objected to by the Counsel for the Contestant. Objection overruled
by the ( 'ommiltee.]

There mii^ht be.

I do not know at which of the three Big Springs the alleged election
was held.

In any of my travels about the mountains, I never saw any indication
of an assemblage of over twelve men, and those oidy for one night, ex-
cept at the cabin before spoken of.

Qtirstimt. — [By Counsel for Krspondent] Might there not be another
Big Springs in the White Mountain District, other than the three men-
tittm-d. where this alleged election was ludd y

[Objected to by Counsel f(»r Contestant. Objection overruled.]

Not in the direction that I travclKwl. 1 did not make the entire cir-
cumference of the White Mountain range.

A majority of the people of Mono County are migratory, like that of
other mining counties in this State.

I should think there were four hundred or five hundred j)eople in the
town of Mono, about the first of Septend)tr last. I have not been there
since July. 1 do not kn<»w how many people are there, now.

There was an election held in Mono County in May or June last.

I do not rt'collect how many votes were j)olled in Mono or Aurora, in
June or September, and do not know how many were polled at either
election. '

B. S. MASON.

TESTIMONY OF C. O. HICIIAKDSON.

I have resided in this State since eighteen hundred and forty-rune.
Have followed the st«)ck-raising business a great jiortion of the time in
Merced C<tuiity. Have been tlu-ough the mining counties C(»nsiderably,
in the southern jmrt of the State. Have been in Mono Count}' ; went
there the twenty-sixth or twenty-seventh of July, eighteen hundred and
sixty-one.

I have heard of the White Mountain District. I do not know whether
I have been in the White Mountain District, or not. as I do not know its
boundaries — but rather think I have not.

I know of a range of mountains called the "White Mountains. The
nearest point of the White Mountains to Aurora is some fifty or sixty
miles. Have been in this mountain range ; was there about the fourth
of August, eighteen hundred and sixty-one.

When 1 tirst went to the mountains to prospect, 1 went oj)posite the
mouth of the Upper Piney Creek, a short distance from Owens' Kiver.

From that point. I triivollod south, and found the valleys, desert and the
mountains oc-c'asit)nally volcanic. '

There was one settlement, called Union Camp, forty-five miles be-
low the I'pper Cros.Vm^r of Owens' Kiver. There were two persons at
Union Camp. The name of one was liadijer.

There was a camp called Hill's Old Can'ip. which was deserted.

I went ahtuit ei^ht or ten miles fartiier south, and below Union Camp
and within four or tive miles of Owens' Lake.

All of the country throuirji which I pas.sed presented a similar appear-
ance.

I saw no niore inhabitants below Union Camp, except a few Indians.

From there, we I ravelled north ai,Min, prospecting up to Union Camp
and alonir the mountains as far as the Jjone Pine.

The <liHtunee from the Lone Pine to the farthest point south to which
1 travelled, was about sixty or seventy miles.

"We prospected along the mountains and gulches through most of the
route I travelled.

We saw three men on Owens' Iviver. as we were leaving, who had a
band of cattle. We also met three other men in the same vicinity, at
about the same time. 1 do not recollect the names of any of these men
now.

I did not know of any region or place in the White Mountain country,
through which I travelled, called Big Springs.

I did not know of any election held in the White Mountain District.

I voted at Mono on last election day.

I loft the While Mountains about seven days before the last general
eleetion.

[A paper was lu-re shown the witness. ])ur])orting to be a certified
copy ot the poll list of the Precinct of Hig Springs. Mono County.]

I st'c a name here of J. liobinson. and know a person of the name of
James liobinson. but he does not live in .\fono County. I also see the
name of Pat. Murray here, and I know a nuin b}' that name who lived
in Visalia the last I heard of him. which was last summer. I do not see
the name.s of any other persons that I kn#AV upon the poll list.

CROSS KXAMI.NATION.

Am not much acquainted in Mono and Aurora. The character of the
country between Mono and Aurora is that of low mountains. The char-
acter of the country west of Mono is mountainous. 1 went from Aurora
to Mono. The road is through a barren, sage-brush countiy, principally.
There are some sj)rings about twelve miles from Mono, called the Big
Springs, between Mono and Aurora, and also some springs at the Half
Way House. I went about ten miles below Union Camp, within four or
tive' miles of Owens' Lake. I supjMJ.se Owens' Lake is about one hundred
and tifty-six miles from Monoville. The lake is the one called Owens'
Larger" Lake, or Hig Owens' Lake, and Owens' Eiver empties into it.

I do not know that the Pat. Murray whom I knew, was at Mono. He
might have been there.

1 do not know of anv such localitv as the celebrated Big Springs.

The people of Mono'Countv are mostly miners and prospectors, and
frequently camp out, or did "when 1 was there. Timber is very scarce
and almost impossible to be obtained for building houses. Ihcre inight
have been a great many people in the White Mountum District, and 1 not
have knowu'it. 1 think I arrived in Mono about the twenty-sixth or

twenty-seventh of July last. Where I travelled, there could not have
been many people, without my knowini; it.

UE- 1)1 RECT EX A .M 1 .\ ATION.

I did not know or hear of any excitement at Mono in repaid to the
Whit*' .Mountains.

C. O. JUClIAkDSON.

TK.STLMONY OF .lollN C liOSS.

I reside in Marysvillo. Have resided in tins State nearly two years.
Ilave heen in Mono County. Went to Aurora in .lanuarv. eighteen hun-
dred and sixty-one. Stopped there until I>ecend>er of the same year,
with the exception of the time I was out jirospectini;. I know of a lo-
cality in Mono County that ^oes hy the nanie (»f the White Mountain
District. It is about one hundred miles, more or less, from Aurora. 1
have been there. Was there in the nionthn of Marelj, April, May, and
June, eighteen hundred and sixty-one. I have travelled through the
district con.sidt'rahly, hut have not been art)und the boundary lines. 1
was there at the time this mining district was f(»rmed. 1 recollect some
of the parties who were there at that time. There were Col. Crawley,
William (Jraves. ]). N. \ an l>yke. James C«indon. Charles W. Shultz,
John C<M)k. Alroy Uoot. I>aniel Wyman. and there may have heen others,
but do not recollect them. There were certainly not m<»re than one or
two others.

At the time of the or<;unization of this district, wo tixed a boundary
line for it. It was bounded on the cast by the Desert which lies at the
base of the White Mountains. The southern houndary was a direct lino
from the cros.siii«r of Owens* liiver to the eastern base of the White
M<»untains. running due east. The western boundary was the Kmi^rant
Koad ct»min<; from N'isalia to Mono C<»unty. The nortlu-rn boundary
commences on the western si<S. at the Hot Sprin;;^s Valley, and runs east
to the Desert at the base of the White Mountains. I do not know tho
distance l'r(»m Hot Spring Valley to the eastern base of the mountains.
I was prospecting when 1 was in the mountains. We fouml (pmrtz ledges,
8upj)Osed to contain gold and silver, but do not know whether they are
rich, or not. There were not many men prospecting in this region when
I was there. I do not kiutwany place in this district called liig Springs.
The western side is |>rincijtally a sage-brush country. On the eastern
side there are some valleys, and small timber, and in some of the ravines,
timber of a larger growth.

Did tiot see any indications of permanent residents in that district.
Saw some prosjiecting parties there, besides those I saw at the organiza-
tion of the district, but not Exceeding thirty persons. I left there about
the latter part of June, and went to Aurora. I did not know of
any excitement in regard to the White Mountains while in Aurora. If
there had been such an excitement, which w<^uld have taken men away
while I was there, it is likely that I would have known it. While I was
there, some parties came in from the White M<;untains. and went back
again. I did not know of any other j)arties that left Aurora for the White
Mountains, except these. There were two parties, of two men each,
making four persons who lelt Aurora for the White Mountains while I
was there.

I havoHocua ccTtified copy of a poll list of an election said to have
lKM.n held in the \N lute Mountain District, in September, eighteen hun-
dred and ..xty-one. I saw the nan,e of only one persot> on the list that

ha.l known m the ^^ lute Mountains, and that was down on the poll
list as .1. J()rd.)n. Ihe name of the one I knew is John Jordon

I do not know how many persons were in the White Mountain Dis-
trict at the time of the election. I had left the White Mountain District
before the election. I left in the latter part of June, eighteen hundred
and sixty-ono.

CROSS EXAMINATION.

I am not acquainted to any extent in Mono County. It is a hilly
• ountry, with sage brush and scrubby i)ines. In this White Mountains
country there is M<.me timber, but it is iKJt well timbered. There is some
timber there for building, but not a great deal. There is plenty of rock
there. The greater portion of the people follow mining and prospect-
ing. When ihrro are reports of rich diggings, some run to them and
some don't. When miners are prospecting trom one place to another,
they do not generally build houses.

RE-niRECT EXAMINATION.

I went to Aurora for my supplies whiK- I was prospecting in the White
Mountains.

At the time I was there, there was no ])lace that I knew of where I
mid ...

Sierra

could get supplies, except at Mono and Aurora, without crossing the
rsevada.

RE-CROSS EXAMINATION.

I do not know how far it is from where I was prospecting to Visalia.
I should ju(|ge it to be three hiindreil mih-s, by the wagon road.

I do not know how far it is to Big Oak Flat Irom the White Moun-
tains— nor to Coultcrville.

J. C. BOSS.

TESTIMONY OF J. A. BOSTWICK.

I reside in San Francisco. Have resided in the State of California
since the year eightren hundred and tifty-tive. Have resided in Tulare
County m'ost of tin- time. I liave been in Mono County; was there last
summer. Went thrre on the third day of May, and was there about five
months. Went to Visalia, Tulare County, some time in August, and re-
turned to Monoville on the day of the last general election. I voted in
Monoville at that election. I remained in Monoville until some time in
October; it was either the last of September, or in October, I am not
certain which. I was never at the White Mountains.

I know something about returns being made out in Monoville, purport-
ing to be electi<»n returns from the White Mountain District, for the
last general election— eighteen hundred and sixty-one. They were not
made out in Monoville; I should have said they were made out about
seven miles from Monoville. on Mono Lake. I saw these returns made
out. The tally list was made out on an open sheet of foolscap paper,
the names of the candidates being written on the left hand side of the
-heet, and the tallies earned across towards the right. There was a poll
7

list made out at the same time. It was made on foolscap paper, folded
and cut leni^tlnvise, into four sli])s. I don't know as I could recognize a
copy of thcf^e papers, but I think I cuukl recognize the originals, if they
were shown nie.

The tsiguatures of the persons purporting to be the officers were placed
at the bottom of the papers. Some of the signatures were written in a
coarser hand than the others; I mean a heaviei- hand. The writing on
the tally list was all done by one person, except the signatures. Tho
signatures were not all nuide by one j)erson ; two ]»ei-sons wrote them
all.

1 am ac<|uaiiited with the jiersons who made uj) and signed those re-
turns. I oiiject to giving the names vi' those parties. 1 decline to give
their names.

[The Committee here instructed the witness that he need not answer
the question, if tlie answer would criminate himself]

One of the parties I have not seen for four months; the other, I could
probably find ny searching for him.

I can name some of the candidates that were purported to be voted
for in those returns: McConnell for (Jovernor, jlitehell for Assembly,
(^uint for Senat<tr. (ieorge S. Kvans was one of the candidates, I think,
for Clerk of the Supreme Court. Mr. I>avis and Mr. Kendall, I think,
for Asscmbl}'. I do not know whether a Lieutenant-Governor was
voted for or not. I think there were some votes for John Conness for
Governor. I don't recollect whether any votes were given, in those re-
turns, for Stanford for (iovcrnor. The papers ])urported that there
wore over five hundred votes cast. 1 think Mitchell had five hundred
and ten votes for Assembly.

There was no election held at Mono Lake on tho fourth of Septem-
ber last, where those returns were made out. The ])apers I sjieak of
were made out after the fourth of September last. They were made out
four or five days after the fourth of September, eighteen hundred and
sixty-one. There was no j)erson living in the house where they were made
out, and I do not know who owned the house. There was no settlement
there, but there were some settlements along the lake. I saw a ])er8on
take those j)aper8 and start to go to Aurora with them ; 1 know the per-
son's name, but I would jirefer not to give his name, if the Committee
could get along without it.

[The Committee recpiested the name to be given.]

llis name was Pete Abel. 1 decline to answer at whose request the
papers were ma<le out; I suppose they were made out to benefit all those
whose names were on it. They were not nnide out at the request of Mr.
Davis, the sitting member; they were made out at the instance of one
of the candidates, whose name is on the papers purporting to be tho re-
turns. It was done to assist A. II. Mitchell as much as any man ; Mr.
Davis had nothing to do with it.

[The papers were here shown to the witness, purporting to be copies
of the i)apers testified to.]

The jiaper of the poll list shown me is similar to that of the poll list
spoken of. excejit that the original was pinned together at the top. The
original tally list was similar to the com- shown me, except that it was
on blue-tinted paper instead of white. The names signed on the original
papers, as officers, were fictitious.

The names on the poll list were not taken from any Directory, but
were such as suggested themselves to the persons who put them down.
There were only two persons present when those papers were made out.

CROSS EXAMINATIOX.

Mr. Orr did not show me the copy of the papers referred to, before 1
came hero; I have never si-on thcin until now. I do not know that
tljose returns ever went to the Chile's office, only from what I was told.
I never saw them after they left Monoville. There might have been re-
turns sent to the Clerk's office from the White Mountains, for all that I
know.

RE-niRECT EXAMINATION.

I do not know a man by the name of B. C. Boling.

RE-CROSS EXAMINATION.

I couM not swear positively that the names signed to the copy shown
me are iho same us those tliat were on the originals.

JUIIX A. BOSTWICK.

TKSTIMONY OF WILI.AIM) WUTPPLE.

I am a lunil)erman and minor. I reside iu Mono County. Have a saw
mill about five miles fntni Monoville.

Have been a resident of California since October, eighteen huiulred
and lorty-niue. Have resided in San Mateo from eighteen hundred and
forty-nine to eighteen hundred and fifty-four; in Santa Clara, from eight-
een hundred and tifty-four to eighteen hundred and fifty-six; in San Ber-
narilino County, from eighteen luindred and fifty-six to eighteen hundred
and fiftv-eight'; then iji Tuolumne County until Se])tember, eighteen
hundre<f aiul fifty-nine, when I went to Mono, and resided through the
suminiT'* since that time.

Tin- « ountrv around Monoville and Aurora is a rough, hilly, mountain-
ous, barren, ilesi-rt ctiuntry.

I prospectea about Walker's Lake, during an excitement last July. It
is in a northeasterlv direction from Monoville.

The country about Walker's Lake is similar to that about Monoville.
At the beail of the Lake there is a fertile place.

There were reports of rieh gold diggings having been found there.
This is what was called the Walker KiVer excitement.

I think Walkers Lake is in Nevada Territory. 1 think Walker's
Lake is about fortv miles from Aurora.

At one time there were some seven hundred or eight hundred people
gathered at the liead of Walker's Lake.

I remained then' but one night, and went to the Indian rancheria, on
Walker's Hiver, and from there to Carson Lake.

There was nothing at the head of NValker's Lake denoting permanent
inhabitants, except an Indian rancheria.

I don't know how long they remained there.

Some time after ibis, while I was at Mono, there was an excitement
there in regard to the White Mountains. I don't know the time, ex-
actly. 1 did not go there. ^ , « ,r -n xn t

It was nut quite three weeks from the time I left Monovdle till I re-
turned. I left Monoville about the sixteenth of July, and returned on
the thirtv-first. , ^

The excitement about the White Mountains was a very general one.

A great many people went, or said they were going. I saw them look-
ing after pack animals.

I do not rocullect any one person in particular that went.

I am acquainted with many people by sight, whose names I do not
know.

The population generally is a floating one.

I cannot sav wlnther the excitement was before or after the election ;
cannot fix the time.

I cannot tell how many people went there.

CROSS KX.VMINATION.

Am engaged in the lumber business.

I dispose of my lumber at Mono and Aurora.

I have not kept any lumber yanis at these places, but filled orders for
them.

People seldom come to the mill for lumber, but send their orders.

1 think I have travelled ])retty extensively over the County of Mono,
especially over the parts that are settled. I have made aeipniititance
with about as many men as I have done business with, and that is about
the extent of mv aecjuaintance. 1 am not much of a hand to make ac-
quaintances. 1 know some other men, but my acquaintance is not gen-
eral.

I live at Monoville. at Aurora, and at the Half Way House ; but T live
mostly at the mill.

I eould not tell how many men went to AValker's Lake from .Monoville,
but should think there were about twenty men that 1 was a((iuainted
with whom 1 saw there.

I cannot tell how many men went to the White Mountains. 1 should
think that I saw five men jjaeking animals, who said they were go-
ing to the White Mountains, but 1 don't know as I saw any more than
that. Two men who worked for me said they were going. I did not
see thcju start. They went from the claim. I was told. They never re-
turned, to my knowledge.

Rt-DIRECT KXA.Ml NATION.

I did not see any animals packed for Walker's Lake, except the four
that went with me.

RE-CR088 EXAMINATION.

I was at Monoville on the fourth of September last; went there from
the mill on election day. and returned to the mill the same day. I left
Mono County in the last part of November, eighteen hundred and sixty-
one.

I know nothing about an election being held in the White Mountain
District, except what I have heard.

WILLARD WHIPPLE.

TESTIMONY OF S. C. FRANKLIN.

(^. — Where do you resiiie?

A. — I have residod in Mono County and in that district about two
vears, up to about two months a^o, when I came to San Francisco.

t^. — Do you know J. A. liostwit-k and Henry Keitldy i*

A. — I know a man by the name of Jack Bostwick, and one by the
name of Henry Keithly.

(^. — Have you soimi Iveithlv in this city? If so, when?

A. — I saw liim hist in tliis city yesterday, at about ten o'clock, I
think, in the forenoon.

(^. — Have you had any conversation witii Mr. Keithly or Mr. Bost-
wick, in reference to their testimony before the Assembly Committee on
Klections. as to the conteste*! election in Mono County, about the testi-
mony they were to ijive. and as to their procuring testimony?

A.— With Mr. Keithly I have had a talk.

[Counsel for Conlosraiit wishes to have the whole of the answer to
the qut'Sti<»n i»ut down as the witness gives it.

Counsel for l{esj>ondent objeets, becau.se he answered in the middle of
the question before it was fully put.

Committee decided that the whole answer must go down, for the rea-
son that the witness says that the remainder of the answer which Coun-
sel wants to have put down, was a part of his answer.]

[Same question a^ain put to witness.]

.\.— I have talked with Mr, Keithly, but not with Mr. Bostwick.

S. C. FEANKLIN.

[After the decision of the Committee, Counsel for Davis withdrew,
Ktating that he did not wish to examine the witness any further.

Counsel for Contestant also withdrew.

Mr. Davis aHke<l that certain iKij.ers received from the office of Secre-
tary of State, by the Committee, purporting to be affidavits taken in this
case be read before the Committee.

Committee decided that no ex parte evidence could be received.]

:^.)^.

■•\ f:^r

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Full text of "Appendix to the Journals of the Senate and Assembly of the ... session of the Legislature of the State of California"

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