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LIBRARY 



DIVINITY SCHOOL 






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1 



IN MEMORIAM. 



OSCAR LOVELL SHAFTEB, L.L.D. 



Born in Athans, Vermont, Octobei ig, 1812. 
Died in Florence, Italy, January 33, 1873. 




<s? 



MEMOEIAL 



OF 



OSCAR LOVELL SHAFTER, 



Being Words Spoken at his Burial by Rev. Dr. Stebbins, 

i* a Sermon Preached on the following Sunday by Rev. 

L. Hamilton, a Sketch of his Life and Character, 

given before the Supreme Court of California, 

by Hon. John W. Dwinelle, 

And lines to his memory from the New York Evening Post. 



SAN FRANCISCO: 
1874. 



18 Oct., 1893. 






Bov. Jobn D. Weils (*7j 



OSCAR LOVELL SHATTER, 

Late Associate Justice of the Supreme Court of the State of California, 
died in Florence, Italy, January 23d, 1873. The funeral took place 
at the First Congregational Church, Oakland, Cal., Sunday afternoon, 
March 24th, 1873.. The rear dais and the organ loft were beautifully 
decked with wreaths and festoons of green leaves, immortelles, 
camelias and white roses. Wreaths were laid on the cover of the 
casket, and at the head was a large cross, composed of camelias 
and evergreens. The pall-bearers were S. W. Sanderson, John Cur- 
rey, A. L Rhodes, Samuel Merritt, John W. Dwindle, William T. 
Wallace, Joseph P. Hoge, J. D. Thornton, Edmond L. Goold, 
J. B. Crockett and Henry Durant. The services were conducted by 
Rev. L. Hamilton, of the Independent Presbyterian Church; Rev. H. 
J. McLean, of the First Congregational, assisting. 

The following remarks were made by the Rev. Dr. Siebbins: 

Events in the life of the individual man tend to conclusion while 
society moves on in perpetual process or endless chain. This 
journey over sea and land, taken up in fear and hope, attended by 
hovering anxieties of home and filial love, pursued and borne with 
womanly devotion wherever the Divine signals — in cloud by day and 
fire by night — directed the faithful footsteps, is ended. So the mari- 
ner, storm-tossed and weary, engulfed in many perils in many seas, 
emerges at length into calm and gentle days, happy winds woo his 
sails, he spies the eternal headlands that have quieted so many 
eyes, the good ship rides into port, "he casts the patient anchor, and 
furls the straightened sail in the haven of his heart/' 

Whether we consider life as a journey upon the land, with many 
devious delayings and disappointing passages, or as a stormy voyage 
upon the sea, there be many that are glad when they anive at home. 
Religion surely makes no error when she adopts our deepest human 
satisfactions, carrying them forward to the future, making that a home. 
It was no error, but a firm insight and delicate imagination, that said, 
" I am a stranger on the earth." It is a truly human experience. To 



4 SttAFTEK MEMORIAL. 

the man worn by toil, burdened with grief, chastened by disappoint- 
ment, to the man who has lived through this world, gained its mean- 
ing, got its leading idea and suggestion, this is not his abiding place. 
As early ideas of childhood no longer satisfy his mature intelligence, 
so a world whose import and significance he has caught and appro- 
priated to, the uses of moral being, must give way to the nobler ideas 
of an ever advancing experience. Whether, then, by the weariness of 
the body, its melted energies, like the rod that is melted by electric 
fire, or by the aspiring mind and soul, we do outgrow the world and 
have done with it. We are weary, and long for rest; we are travellers 
and wish for home. Death is blessing,, peace, hope, life. 

This was the experience of our friend and fellow-citizen, Judge 
Shafter. His physical frame had received an irreparable hurt and 
he could no longer grasp the isolated fact, and bind it in eternal fealty 
to its principle. The world was no longer useful. Affection might 
watch with tender fidelity, filial love and gratitude might still find com- 
fort in the happy labors of self-forgetfulness, but life was done, the 
world was done, and death was the faithful friend to rescue him from 
the thrall of dissolved powers. 

A grateful and appreciative estimate of him as a man, is not com- 
mensurate with his external history. An account of any man's circum- 
stances would not be an account of him; for circumstances, powerful 
as they are, are not the chief element in his being. We cannot divest 
ourselves of the feeling that the real quality of a man is will, idea, 
thought, conviction. A man's life and character are in his mind. 
And the nobler a man is, the less consequence it is where he lived or 
where died. A universality above all local origin or event pertains 
to the essential quality of human nature. 

God endowed Judge Shafter with a physical and intellectual con- 
stitution well fitted to strive with the powers of this world. Energy, 
endurance of labor, and a kind of mountainous good sense that sees 
men and things as they are and goes free of all affectation and cant, 
are the sure and trusty qualities of practical excellence and were emi- 
nent in him. He had a kind of human sagacity by which he knew 
man from any other animal. His judgment moved with ease and 
self-reliance amid a great variety of circumstances, from the measure 
of a tree in the forest, to the action of the hour in politics, or the prov- 
idence of God in human life. He was long-headed. He did not affect 



REMARKS BY REV. DR. STEBB1NS. 5 

wisdom by much owlish silence, neither did he run to folly through 
talking over-much. He expressed his opinion with that easy firmness, 
without show of independence peculiar to feebler natures, but as one 
to the manor born and at home in the truth. 

But these practical abilities — energy, good sense, round -aboutness, 
and integrity of nature — were by no means the measure of his 
endowments. His intellectual perceptions were clear, and in his 
statement of principles he could have have had few superiors. He 
had that appreciation of the law of laws, the unity and generalization 
of truth, that gives moral dignity to the intellect and the perspective 
of moral grandeur to all principles, without which the mind itself 
becomes frivolous, a mere popinjay clatter of things unreal. When 
theories of deep human interest were touched, his mind kindled 
along its summits with fine enthusiasm of poetic feeling and insight. 
He did not belong to that class of minds always emphatic never 
forcible, neither to that other class, " small pot soon hot," whose 
enthusiasm is in the blood and not in the idea. His mind some- 
times lay calm, silent, sullen as the summer sea, and rolled with 
sleepy strength, and in all the manifestations of his intellectual 
activity, there was something of that repose which is the measure of 
reserved power and the background of all greatness. He was a pleas- 
ant companion and a good talker. I have seen him very happy in 
the society of children, and touched with true feeling at little ex- 
pressions of loveliness in the young. 

I had the pleasure a few years ago to spend a day with him on the 
Point Reyes Rancho. I arrived on the ground in the morning, and 
found him sleeping beneath a little bower that he had made to protect 
him from the glare of day or the chill of night. I thought of Jonah 
who built a bower a little way out of the city of Nineveh, and lay there 
impatiently to see what would come to pass. But a better than Jonah 
was here. He awoke, gave me cordial greeting, generous as the 
morning. We shortly took to the saddles and spent the day in riding 
over the domain, wherever interest, curiosity or excitement led. He 
was full of vivacity, observation, reflection, feeling. The hills, the 
valleys, the running water, the shady glen, the wood-bird's note, all 
attracted his attention, awoke his sensibility. The men- all liked him, 
from the Spanish vaquero, that lingering remnant of a former civiliza- 
tion, to the American boy, taking his first lessons in throwing the 
stealthy riata. All liked him, yet none were familiar or frivolous 



6 SHAFTER MEMORIAL. 

toward him. I got on that day the flavor of his mind and character. 
A man of great good sense, practical, yet with wide discourse of intel- 
ligence and reason; calm, unimpassioned, yet of fine sensibility and 
true poetic feeling, and his whole nature, by the eternal weight of 
moral gravity, swinging toward the truth. Thus I understood him. 

His religious faith was simple and human. He arrived at his 
conviction of the character of God from the nature of man, and 
the experience of human life. He inferred that justice is God's 
justice, that mercy is God's mercy, that love is God's love; and that the 
expression of these in humanity is the expression of the divine. I 
think, in commending himself to the Almighty maker of men, he 
would, in the devout simplicity of his heart, have forgotten all the hon- 
ors and respect he enjoyed from his fellow men, and thought only that 
he was a man. He would have said, with Martin Elginbrodde: 

" Here lie I, Martin Elginbrodde; 
Hae mercy o' my soul, Lord God 
As I wad do, were I Lord God, 
And ye were Martin Elginbrodde." 

The body was taken to the Oakland cemetery and deposited in the 
family vault. Among those present, besides the relatives of the de- 
ceased, were a very large number of the San Francisco and Sacra- 
mento Bar. 



MEMORIAL DISCOURSE 

Delivered March 31, 1873, in the Independent Presbyterian Church, Oakland, by Rev. l^QjULfLQ/yyjfc 

Ha milton. 

Micah VI, 8. He hath showed thee, O man, what is good; and what doth 
the Lord require of thee, but to do justly, and to love mercy, and to walk hum- 
bly with thy God. 

Once in a decade or two of years, we see a life come to a close 
which has concentrated in itself the progressive thought and expe- 
rience of the time. The great world-history going on without has 
its parallel in that which goes on in a single breast. The man meas- 
ures the time. The features of its progress daguerreotpye themselves 
essentially in his mind and heart. Beginning by force of circumstan- 
ces in something that is crudest, he ends by force of inherent truthful- 
ness and grasp of thought in that which is ripest. The brilliant but 
ephemeral blossoms of spring are soon cast; the more sober but more 
lasting beauty of summer follows; this changes again into the rich ripe • 
ness of autumn — then winter garners the whole growth of the seasons. 

Such a life is a beacon of progress to common minds. If one falls 
under our observation, we slight God's good providence if we neglect 
to study it. We can see in it if we will, not only where we are, but 
where we shall be. It is a prophecy of what is coming. In it we 
see ruling tendencies reach their accomplishment. The forces that are 
moving in the great complex man we call society, run their course 
and come to their last result in this individual man. The aver- 
age man of the future, when humanity has grown tall enough to see 
as broadly as he sees, will stand where he stood when we last be- 
held him. He throws light on the questions we debate most in our 
parlors and shops and lyceums. We see the decision of many of them 
reached in him, or at least the discussion carried so far as to point the 
way to their decision. We need not repeat the experiment he has 
made. We can foresee in him how it will result. The thought of men 
can step forward to an advanced position over the ground which he 
has conquered. 

We should not be overhasty, indeed, in falling into the lead of great 



8 SHAFTER MEMORIAL. 

minds, however great they may be. We should be mindful of the fact 
that the greatest thinkers in the whole history of thought have been 
the greatest errorists. So they were honest in purpose we need not re- 
proach their errors. To think in advance of other minds, is to help 
forward human progress, even if the thinking be mingled with error. 
To state a great error with power on an unexplored field of thought 
often leads to the great undiscovered truth that lies directly over against 
that error. It is only a little more roundabout way to the good thing 
that humanity needs. So we welcome great honest thinkers, what- 
ever the track their minds take. We need not therefore welcome their 
mistakes. Their mighty conceptions may be but centaurs and hippo- 
griffs: there may be nothing real in nature answering to them. They 
may be the exceptional outgrowths from the idiosyncrasies of the 
thinker. They may be the abnormal vagaries of a wrenched and dis- 
jointed intellect. They may be the voice of God. We should wait for 
the verification of the true test — the common consent of minds great 
enough to grasp the subject. Watch the judicial mind as it comes in 
contact with the question at issue, the temper calm, the method wise, 
the process slow and careful, the conclusion deferred until all the evi- 
dence is in. When you see this higher order of thinkers, under di- 
verse circumstances and influences, strike off from the old beaten path 
at different points of departure, and with singular unanimity take some 
new road that leads to a common conclusion, it is safe for you to pre- 
dict that the many will soon turn into their course of direction. It may 
not lie exactly along the line of absolute truth, but it is more nearly 
parallel to that line than the old track. Humanity never again takes 
its onward march along the old road. A few stragglers may stumble 
on in that way for a time, but their thinning number soon find the 
loneliness intolerable. 

Eminent among this higher order of minds stood the late Judge 
Shafter. He was a type of the time. He ran through the progress of 
the age in his own experience. He began in the crudest thought; 
that he ended in the most advanced I am not competent to say, but 
that he had reached a point far in advance of the multitude, there is 
abundant testimony more conclusive than mine. Hence the special 
public value of his life. Few examples will better repay our study. I 
should not be excused if I failed to use the occasion to gather up some 
of its rich suggestions. 

My object is not panegyric. The Bench, the Bar and the Pulpit 



DISCOURSE BY REV. L. HAMILTON. 9 

have united in his eulogy. I fear I should weaken what has been 
said with power by any additions I might attempt to make. Nor will 
I attempt an exhaustive analysis of his character. It would be too pre- 
suming in me. I leave that to more familiar and more skillful hands. 
My object is rather to turn your attention toward those phases of his 
many-sided thought and experience which look towards our work as a 
christian congregation and our want as christian men and women seek- 
ing after the truth of God. 

He was born at Athens, Vermont, October 19, 181 2. His father 
was a man of much force of character and large influence with his 
neighbors, — "successively farmer, merchant, county judge for several 
years, Liberty party candidate for Governor, more than quadrupling 
the vote of his party, then member of the Constitutional Convention of 
1836 and member of the State Legislature." In religious faith and con- 
nection he was a Methodist. His mother was a woman of rare intelli- 
gence and force of character. At an early age death deprived him of her 
counsels, but he cherished her memory with a deep and tender reverence. 
At about fourteen he was placed at a Methodist academy in Wilbra- 
ham, Mass. It was during his several years of study at this institution 
that he was caught in a whirlwind of religious excitement — as he 
would describe it afterwards, — " was struck with conviction," " went 
forward to the anxious seat/' " had great wrestlings with the spirit," 
and " got converted." For six months his zeal knew no abatement. 
He was " instant in prayer and exhortation, in season and out of sea- 
son," prompt at the class-meeting, and was pointed out as a model. 
But his inner life did not run smoothly. He suffered torturing doubts. 
He felt that his religion was artificial — a striving after moods, feelings, 
fervors, raptures. Somewhat abruptly he came to the conclusion that 
this was not being honest with himself or with others. He went 
straight to the Church and told them so, and that he could go no 
further with them. Henceforth he will be true to himself if his soul 
is lost for it. If any religion wants him to be less than that, so much 
the worse for the religion. He completed the prescribed course 
in his school, took a tramp into New York State, where, I 
believe, he had a little practice in school teaching, then returned 
and entered the Methodist University at Middletown, Connecticut. 
From this he graduated in due time, studied law at Cambridge, then 
went back to Vermont to commence its practice. His powers soon 



IO SHAFTER MEMORIAL. 

placed him in the foremost rank of his profession in his native State.* 
His coming to this State in the Fall of 1854, the immediate recogni- 
tion of his abilities, his law partnerships with the first legal talent of the 
State, his firm stand as an anti-slavery man when the name of " Black 
Republican*' was a reproach, his self-consistent adherence to this stand 

* The following, evidently written calamo currente, is taken from his diary of 
Jan. 26, 1855, and shows that wonderful fertility of mind to which the commonest 
object will suggest a rich train of reflections: 

" There is a thing put into my hand by my friend — it is a book. I have never 
read it, nor have I ever seen it before. It at first engages my attention as a mate- 
rial thing merely. In that regard I examine its exterior — its binding and letter- 
ing and gilding. I open it and the paper and the typography become subjects of 
inquiry and thought. So far, even what a vast range of knowledge is needful in 
order that I may understand, appreciate and relish the naked facts that I have 
learned. The art of book-binding since books were first known; the progress of 
that art through a long succession of ages terminating in the present. Printing in 
its first discovery or invention; printing in all the modes and styles that have since 
obtained; the names of the printers by whom they have been originated or prac- 
ticed; printing as connected with the presses with which it has been carried on in 
different nations and in the different times, and all the wonderful improvements 
that have been made in the press considered as a means — these and a thousand 
other matters are needful for me to know in order that I may comprehend what I 
have already observed, in their great import. Thought as it first arose in the 
mind of the inventor, its slow and labored development in his toiling brain, until 
the ideal that he was struggling for stood revealed in matured conception — and 
then the protracted and wearisome endeavor to realize that thought under mate- 
rial forms; the conflict with obstacles never ended, or if ended, still ever to be re- 
newed; the fierce, exhausting strife with human ignorance and human passions; 
the discouragements of penury, the alternations of hope and despair, and the often 
encounters of each with the other — the whole biography of the wonderful men who 
in spite of such odds at last achieved for the ages in which they lived the great 
triumph of modern civilization; how their achievements acted upon other minds 
to stimulate them to like endeavor; the effects produced by their inventions or 
discoveries upon the times in which they lived, and the mightier consequences 
that were developed in ages following. These, yes, all this great context if 
known to me, will invest with marvellous interest, I ween, the book considered 
simply as a material thing. To fully compass it in that regard, of how very lit- 
tle of general history can I afford to be ignorant ! 

"But to understand, appreciate and relish the contents of the book, as I peruse 
them, the whole range of history, biography, science, art and general literature, 
should be as familiar to me as early lessons. The new production of human 
thought stands related to all that thought has originated or combined before; and 
the threads that the author has spun, he has woven in a thousand nameless and 
marvellous methods, into the mighty woof of previously associated ideas." 



DISCOURSE BY REV. L. HAMILTON. II 

through all the exciting scenes that followed, his gradual rise into the 
notice and confidence of the people, his election to the Supreme Bench 
of the State in 1863, his unimpeachable and even unsuspected integrity 
as well as ability in that position for four years, then the sudden fail- 
ure of his health compelling his resignation, his efforts for recovery, 
the long wavering of his friends between hope and fear — the hope 
growing fainter, the fear verging towards sad certainty — till the final 
word flashed under the sea from a foreign city telling us that the end 
had come and the great soul had taken his place among the Immor- 
tals — all this has been made as household matters to you by the pub- 
lic press. 

It falls not in with my purpose to dwell longer in detail upon the 
events of his life. I have now to speak of Judge Shafter's religion. 

Like the Prophet, he had sought to " know the righteousness of the 
Lord" — had asked, " Wherewith shall I came before the Lord and 
bow myself before the high God ?" The spirit of " technical" relig- 
ion, busy in our day as in the day of the Prophet, with its arbitrary 
rules and tests and exactions, had told him that it must be with some 
special sacrifice, some self-mortification of the reason, some unques- 
tioning beliefs that commended not themselves to his judgment, some 
special experience, coming in mystery and fed by a faith that he dare 
not criticise. He had thought long and earnestly, with the simple de- 
sire to know the truth. He had come to the same conclusion with 
the Prophet, " He hath showed thee, O man, what is good; and what 
doth the Lord require of thee but to do justly, and to love mercy, and 
to walk humbly with thy God." Here is the universal religion, good 
for all ages, for all races and ranks of men. We may assure our- 
selves that it will stand good while the world stands. To walk in 
justice, mercy and humility before God, saves the soul. It makes 
the Christian. Judge Shafter believed this. To say that some 
special belief or mystical experience must be added, he held as 
the cant of a technical faith. Justice, Mercy and Humility are 
the rock. The conceits of formalists and pietists are the ever changing 
mists that hang over it, sometimes, as seen from the dim distance, 
mimicking the rock in form and appearance, but never attaining its 
stability — ever disappointing as you approach and attempt to find firm 
foothold thereon. He never returned to the bosom of the Methodist 
Church. And why ? Was it because of prejudices ? These were 



12 SHAFTER MEMORIAL. 

rather in favor of that Church. The memory of his revered mother, 
his dearest educational associations, some of his most intimate friends, 
drew him towards her communion. Was it from personal hos- 
tility to religion ? He was a devout worshipper of God. As 
his writings abundantly showed, he was what the Church would 
call a " man of prayer. " At every piece of good news or in- 
stance of unusual prosperity there is a heartfelt expression of thankful- 
ness to the Divine source of blessing. When sad tidings came or 
calamity befel, he turned to his closet, his Bible and his God for 
strength and comfort. And no puritan with his catechism was more 
diligent in the family than he in inculcating the great truths of religion, 
reverence towards God and love to man. This never ceased till dis- 
ease broke his strength. The world may have given him little credit 
for his religion. He did not wear it on the outside for show. It 
was in the heart, in the honest doing of the work given him to do, 
and in quiet deeds of goodness to men. The Church sometimes 
called him an infidel. His piety did not run in the channel of her 
ceremonies or bear the stamp of her dogmas. Will God reject pure 
love for that reason ? 

It was for none of the causes suggested that he declined returning to 
the bosom of his mother's Church. It was because, as an honest man 
he could not. He loved the truth; he was seeking the truth; he was 
ready to receive it wherever he could find it; he was ready to do what- 
ever it exacted of him; but he could not find the truth in its highest 
and purest form in that Church. Ihe love of truth kept him out of the 
Church. She exacts much, as he believed, that God does not exact. 
She teaches along with much that is good, some things that are an 
offence to reason and a dishonor to God. His great mind could stop 
short of no other conclusion. And the Methodist Church is not to be 
singled out as peculiar in this. The other sects prominent among us 
occupy common ground with her so far as his objections went. None 
of them could make room for him. 

This is to me the most impressive suggestion of his greatness and 
goodness. The Churches must make room for such a man, or that 
grand day of broader light that hastens on will have no room 
for them. * Educate a people till they love the truth as well, and can 

* "When creeds are employed so that men of blameless lives, of holy and pure 



DISCOURSE BY REV. L. HAMILTON. 1 3 

see as broadly as Judge Shatter did, and they will not go into our 
churches as they are. These churches might easily make room for such. 
They must revise their standards, and purge them of those absurdities, 
which the broadly educated mind can never look upon as other than 
absurdities. Germany is saying this to us to-day; Oxford is saying it; 
Cambridge is saying it; Yale is saying it. Every center of learning and 
superior intelligence in Christendom is saying it. The guild of scien- 
tific men all over the world, with an approach to unanimity that ought 
to be alarming to one who really loves the Church and sees its im- 
portance, are saying it. It is a question of life and death with the 
Church. Her teachers may shut themselves up in their little circle of 
thoughts and deny that there is any broader flow from the Fountain 
of Eternal Truth, but the mightier minds of the world, that, like Judge 
Shafter, have swept through their lines, and out into the ocean that 
rolls all around them, will see their mistake, and will never, never 
strike back towards the centre of darkness and ignorance for the sake 
of sailing in their company. 

Scan the life of this man, put his character under -the test of the 
closest scrutiny, make the most of his imperfections common to our 
nature or peculiar to him, and then say in view of the pure and ex- 
alted character you are compelled to confess he bore, whether he is to 
be placed outside the pale of Christianity; or if he is, whether any 
thing ought to be left inside that the world has much reason to value. 
The text seems to me to epitomize his virtues — " do justly, love mercy, 
and walk humbly with thy God." His life filled out this "Table of 
Contents." 

He was a just man. Take this passage from his own writings as 
illustrating the sentiment on which this virtue is based. I shall be ex- 
cused for quoting it although it was intended only for the eye of his 
own family. He is writing for the benefit of his own little boy — alas! 
soon after called to another world, blasting the hope and almost 

dispositions, cannot abide in the church, unless they assent to them against their 
convictions, then they are anti-Christian, despotic, and most mischievous. For 
no creed can be rightly held which condemns a man whom God loves, whose life 
is redolent of Divine grace, and whose good will and rectitude are open before 
God and man. If any creed is not large enough to take in such a man, it is the 
worse for the creed, and not for the man." — [Extract from a sermon by Henry 
Ward Beecher, preached in Plymouth Church, December n, 1859.] 



14 SHAFTER MEMORIAL. 

breaking the heart of the fond father. He says: "I trust, also, that 
my boy will be a good lawyer, which is the same thing as saying, 'I 
trust he will be a good man' — free from all chicanery, honest in his 
dealings with court and jury, and perfectly truthful in all his relations 
to his clients. There is no calling in which a strict obedience to the 
maxim that 'honesty is the best policy/ is more available. A rogue of 
an attorney is sure to reveal himself in his true character, and then 
there comes at once from all honest men a retribution of distrust, aver- 
sion and contempt; and no matter what may be his learning or his 
talents, a withdrawal of business inevitably follows the withdrawal of 
confidence." This was the sentiment upon which he based his prac- 
tice as a lawyer not only, but as a man. If he was rigid in exacting 
what was due him from others (as all successful business men must be 
as a rule) he was equally rigid in giving their dues to others. As a 
Judge his impartiality commanded a confidence that was well nigh 
perfect. The suspicion of a bribe never rested on him. There was 
something in the man that corruption dared not approach. It would 

have instinctively forecast its own discomfiture and stern rebuke. 

• 

He was also merciful. I have no motive for saying that he did not 
love money; by admitting that fact I only strengthen the proof of the 
intensity with which he "loved mercy/' He gave without ostentation, 
but liberally and continuously. Worthy want never turned away from 
him empty. Struggling merit had numerous occasions to bless his 
bounty. Sometimes his friends thought he was lavish in gifts where 
the worthiness of the object was questionable. His reply was that he 
feared mistake and would rather give to the unworthy than to let real 
want go unrelieved. It was a maxim with him that, " If you would 
keep the sympathies fresh and the heart green, you must keep giving; 
if you stop you shut up and rust, like an old jack-knife which no one 
can get open." Quaintly put, but a mighty truth. He blessed himself in 
its practice. His generosity did not stop with tens of dollars, nor with 
hundreds, nor with thousands, nor with tens of thousands — although 
he took no pains that the public at large should hear of its extent. One 
who had the best opportunity to know writes of him, " I know person- 
ally of tens of thousands of dollars disbursed by him without any hope 
of return." 

I think we may truthfully add, also, that he crowned his other vir- 
tues by walking humbly with his God. We have already said that his 



DISCOURSE OF REV. L. HAMILTON. 1 5 

religion did not run in the channels of the Church. It did not stop 
with duties to man nevertheless; it took direct hold on the Divine Love 
in reverent trust and worship. He has left on record the expression of 
his sense of dependence on God as he entered upon the duties of that 
high position to which the people had called him, and his solemn res- 
olution in their discharge to trust in God and commit the vindication 
of his judgments that might displease, to the Infinite Judge and the 
coming time. That resolution was severely tried when he felt bound 
to decide an exciting question against the interests of his own party and 
against his own personal feelings. But appeal to a higher Tribunal gave 
him an early vindication. At the noon of his powers and after he had 
come to this State, I hear him accusing himself of having too much 
neglected the reading of his bible, and expressing his wonder at the 
power with which its utterances came home to his heart in his peculiar 
circumstances here. He tells us also of a new light of immortality 
breaking in upon his mind on one occasion while he knelt in prayer. 
Here is proof also of the keen appreciation with which he read the Di- 
vine Word, in a comment on that verse of a Psalm which reads, "Stand 
in awe and sin not; commune with thy own heart upon thy bed and be 
still." " Crawl not like a worm — stagger not like one in delirium— fly 
not like a coward — but stand — erect and firm. But stand in awe. 
How much is there to awe the heart of man in the visible creation — 
in the earth and in the heavens ! But in the contemplation of himself 
there may be revealed to him deeper mysteries and a yet greater glory, 
visiting him with an awe yet more profound. But more than for all 
these he should 'stand in awe' for he standeth ever in the presence of 
God." 

Here are words of solemn grandeur, bursting spontaneously from a 
soul that felt all they speak. Was this man an infidel ? 

Judge Shafter was thought by some to be a man of hard, cold logic, 
as the chief characteristic of his mental constitution. Nothing could 
be a greater mistake.* He was severely logical in his mental processes; 

* The following is a r portion of a letter written to Mrs. Shafter a few weeks after 
receiving the intelligence of the death of his two children. It is given as showing 
the heart of the man and his religious faith. 

San Francisco, July 28th, 1855. 
Your's and E.'s of the 24th of June is received this day, and 
brings me good news, for it assures me that you are all alive and well. I 



l6 SHAFTER MEMORIAL. 

but along with this went an endowment of the keenest sensibility. At 
the reading of a noble sentiment or a touching incident, this would 
often show itself — trembling over into tears. The voice would fail and 
expression rise to the power of a speechless silence from the quivering 
intensity of feeling. When thoroughly roused in his own utterances 
his imagination would glow with true poetic fire. The golden ingots 
of his logic would melt and flow in streams of burning emotion. There 
was a large measure of that "sort of religious sensibility" which is said 
to have marked the greatest speeches of Webster's prime. But it was 
in his own family that these tenderer qualities showed themselves in 
their fullest power. It was there that his exhaustless stores of thought 



have received since I have been here so much of bad tidings from home, that I 
open every letter with fear — but I trust that the full measure of chastisement is 
filled and that the residue of wrath will be mercifully restrained, until at least our 
bleeding wounds shall have time to heal, and the failing heart to recover its con- 
stancy, firmness and repose. The bitter agony, the deep, uncontrolled and un- 
controllable wailing, the ceaseless repinings, are over with me — but still I remem- 
ber what I never can and never desire to forget. In the hurry of business, in the 
excitements and exhaustion of daily labor, my thoughts are with the dead; and at 
night in the silence of my bed chamber they fly away like the dove from the ark 
of Noah, and seek the babes and strive for communion with them, in the habita- 
tions where they all dwell together. Their deaths, particularly the death of our 
son, have taught me lessons and have suggested and forced upon my attention 
views of life and death, of the present world and of that which is to come, to 
which I have long been measurably inattentive. With my general theological 
opinions you are acquainted — they have undergone no essential modification or 
change. They are the opinions which the lamented Doctor Channinghas so fully- 
illustrated in his sermons, and of the profitableness of which his whole life was a 
beautiful and all but faultless exhibition. Those doctrines reveal God to us as 
our Father — our Father in the highest and profoundest import. They further in- 
culcate that he has a will concerning us — they give to that will the authority of 
law — they recognize human obedience as a duty, and make certain fixed conse- 
quences result from obedience, and another set of consequences the unchangeable 
and inevitable fruit of transgression. They teach us that the conditions of happi- 
ness in the future life are the same as those of the present — that death is a natural 
change only, and that the soul enters upon the future life with the same charac- 
ter it bore when it left this; and that in the world to come it will ad- 
vance if it advance at all, by the same means that it works out its own character 
and tone in the world that now is. But these doctrines further reveal to us that 
in the progression of the eternities of God, the soul will of its own intelligent 
election cease from its warfare against its own highest good, and ceasing to do 
evil will learn to do well — at last. In these views there are presented most pow- 
erful motives to present obedience; whatever purification from sin and its contain- 



DISCGURSE BY REV. L. HAMILTON. 1 7 

and knowledge poured themselves forth untiringly in streams of wise 
and affectionate suggestion. His children tell me that they came to 
live on his words and to regard their author with an almost idolatrous 
reverence. If the Church was not visited on the Sabbath, as often 
during their early residence in Oakland it was not, they found a richer 
treat at home. The day was made sacred to them by words that kin- 
dled their higher purposes and lifted their souls to God. 

But I must pause. The hour is gone, while the subject is still fresh. 
Poor tribute this that I bring to such worth, but it is an offering that 
the heart cannot refrain from making. We shall think to-day as a re- 
ligious society of our great loss. The memory will run back four years 



inations is accomplished here, but hastens the hour of completed regeneration 
hereafter — while every evil act performed here, every evil thought indulged here 
but delays and postpones the period of redemption. This theory of rewards and 
punishments recognizes the great primary truths of human accountability — pre- 
sents adequate encouragements to virtue aud discouragements to vice — invests the 
soul with all needful powers for the achievement of its own highest good — and by 
making the ultimate attainment of that good an universal truth, vindicates at 
once the goodness and the wisdom of God in man's creation. E. asks, "Why 
are the young and beautiful snatched away and the aged permitted to remain ?" 
It is a question that has often, very often, been asked before, and the most satis- 
factory answer that I have ever heard is, that it is the will of God. We are born 
to die, and to die is but to live again. We live here then simply that we may 
live hereafter — and that final, that higher, better and truer life is sure to follow 
life here, irrespective of its duration — the little child whose space is told by 
months alone, is as sure of its immortality as the grown man who dies weary and 
worn with the weight of years. The latter dies amid the shadows of evening fol- 
lowing the endeavor and the exhaustion of a lengthened day; the former in the 
dewy freshness and soft effulgence of the early morning — this is the only differ- 
ence. God wills it, and my daughter must reflect that He doeth all things well. 
I am more than gratified that you have learned what it is the end of all time to 
teach, the futility of earthly hopes, and that all substance, all reality, are beyond 
the bourne to which we hasten. Yet life here should not be set down as unim- 
portant and valueless, for it is one of the appointments of God, which he has 
brightened with prospects and ennobled with duties, and they should be cheer- 
fully and faithfully performed. They press upon us from day to day; we wake to 
them every morning; they challenge our attention and our efforts every moment, 
and wait patiently upon our slumbers during the silence and darkness of night; 
they should be performed cheerfully, courageously and in the patience of hope. 
There is impiety in saying, "I am weary of life." While it is continued, it 
should be cherished and improved. Viewed in its just relations to that which is 
to come, its importance is magnified and its deeper import fully revealed. 



l8 SHAFTER MEMORIAL. 

to the time when this man stood with us in our new enterprise, and 
opened his hand liberally to its wants. We shall connect the thought 
of him with that other great loss* which we so lately had occasion to 
deplore. We shall think of these two friends, who as they opened the 
doors of their homes each morning looked into each others faces, as 
communing again face to face in a higher home. And if it be true 
that the great and good look back from " The Better Land" upon the 
best interests of earth which they have joined in promoting, with a keen 
sympathy still, we must feel under the watch of such eyes that it will 
not do for us to be laggards in that good work to which they gave hand 
and voice, and then left for us to carry forward, as they went up to 
their reward. 

* Hon. Edward Tompkins. 



ACTION OF SUPREME COURT. 

At the opening of the Supreme Court on Monday, November 23d, 
1873, Wallace, C. J., and Crockett, Rhodes, Niles and Belcher, JJ., 
being present, Ex-Chief Justice S. W. Sanderson arose and said: 

If the Court please: At the April term of this court last past, upon 
my motion, a committee, consisting of members of the bar, was ap- 
pointed to take such action as they might deem proper in respect to the 
death of the Honorable Oscar L. Shafter, late Associate Justice of this 
court, and report at the next term. The committee, as appointed, 
consisted, in addition to myself, of Ex-Chief Justices Lorenzo Sawyer 
and John Currey, Ex-Justice W. W. Cope, Attorney General John L. 
Love, and Messrs. Joseph P. Hoge, John B. Felton, John W. Dwindle, 
Samuel M. Wilson, Edmond L. Goold and Hall McAllister. The com- 
mittee, in discharge of the duty assigned them, came to the conclusion 
that the most fitting and proper notice that could be taken of the death 
of Judge Shafter would be to cause to be prepared a brief biographical 
sketch of his life and an analysis of his intellectual and moral character; 
and ask that it be spread upon the records of this court, and published 
in its reports. Pursuant to this determination, and at the request of the 
committee, the Honorable John W. Dwindle consented to prepare and 
has prepared such a sketch, which I now have the honor to submit to 
the court; and ask that it be spread upon its minutes and published in 
its reports. 

Ex- Chief Justice Sanderson then read the following 

MEMORIAL 

Oscar Lovell Shafter, late Associate Justice of this court, was born 
at Athens, Vermont, October 19th, 181 2. He came of a patriotic and 
cultivated stock. His paternal grandfather, James Shafter, fought at 
Bunker Hill, Bennington and Saratoga, and was afterwards for twenty - 
five years a member of the Vermont Legislature. His own father was 
for several years County Judge; was a member of the Constitutional 
Convention of 1836; and more than once a member of the Legislature 



20 SHAFTER MEMORIAL. 

He is described as being an able, intelligent' and upright man. His 
wife, the mother of our deceased brother, was a woman of superior 
endowments; majestic in form, with a countenance of infinite expres- 
sion, and possessing rare conversational and social qualities. She lived 
long enough to mould his character and fix his principles. 

He was prepared for college at Wilbraham Academy, Massachusetts, 
and graduated at the Wesleyan University in 1834. He immediately 
commenced the study of law in a private office in Vermont. But he 
soon became dissatisfied with his progress; probably because the study 
of law, in a practicing office, is generally of a synthetical character, 
where a student, after becoming possessed of a few propositions, which 
to him are rather facts than principles, is at once initiated into the 
routine of practice. Such a method could not suit the analytical mind 
of young Shafter, and accordingly he entered the law school of Harvard 
University, under Judge Story, where he completed his law studies, and 
commenced the practice of the law at Wilmington, Vermont, in 1836 
or 1837. 

He won his way at once to the front rank of his profession. He 
became a member of the Legislature, and was the candidate of his 
party for Representative in Congress, Governor and United States Sen- 
ator. He belonged to what was then known as the Liberty party, yet 
always* appreciated the difficulties which encumbered the subject of 
slavery, and the embarrassments which surrounded the position of the 
South. He was consistent in these views to the last; but when the war 
had terminated believed that the militant spirit should subside, and was 
full of sympathy for the distresses of the South. 

He was married to Miss Sarah Riddle in 1 840. Of the children of 
this marriage six daughters survive. Two others, a daughter, and a 
promising son of seven years ; died in their infancy. 

For reasons which will soon become apparent, we epitomize his 
subsequent history. He came to California in 1854, practiced law with 
great success until January, 1864, when he took his seat as Associate 
Justice of this court for the term of ten years, which position he held 
until December, 1867, when he resigned his place on account of ill 
, health, and afterwards went abroad, still failing in mind and body, and 
died at Florence, Italy, January 2 2d, 1873. 

Judge Shafter arrived at San Francisco on November 13th, 1854, 



ACTION OF SUPREME COURT.- 21 

without his family, and immediately entered upon the practice of his 
profession in connection with the leading firm of Halleck, Peachy, 
Billings & Park. During the next ensuing year, until the arrival of his 
family, he kept a journal, in which he entered his impressions of the 
climate and the scenery of California; his views of society and of the 
practice in the courts; many current events; some biographical sketches; 
and notices and analyses of the books which he read. But more espec- 
ially is this brief diary remarkable for its manifestations of his deep 
affection for his family and other relations; for his diffidence of his 
own ability; and for the gradual growth of a self-confidence that he 
was equal to contend with the foremost leaders of the bar. It was 
during this period that he received intelligence of the death of two 
children within the period of a month— one of them the only son that 
he ever had. He appears to have been wholly inconsolable under this 
double bereavement, and could not refer to it for several years after- 
wards without expressions of almost uncontrollable grief. 

In another place he says: "At home the familiarity that I had at- 
tained with the routine of questions ordinarily litigated, and perhaps 
the firmly-established position that I had secured among the lawyers of 
Vermont, left me, with my easy and sluggish temperament, with no in- 
centive to exertion except a simple desire for further excellence. But 
here constant and unremitted occupation furnish new inducements, 
which supersede all inclination to indolence by intense activity and the 
higher modes of moral and intellectual life." 

In commenting upon a life of Lord Mansfield which he had just 
been reading, he thus describes his own method of studying law: "I 
began with the most general principles of the science of the law, and 
from them proceeded to principles that were relatively subordinate to 
them, and so on through series after series of dependent truths until the 
final details had been examined and exhausted. In other words, I began 
with the genera, from them proceeded to an examination of the differ- 
ent species included in each genus, and from them to individual truths of 
which those species were severally constituted. It will be obvious to 
every one that the memory must be most powerfully aided by this method 
of study. The principles of law, though in one sense their name is 
legion, yet all bear relations to each other, and, taken together, form a 
system; and if once mastered in those relations, so long as one of these 
principles is retained by the mind the principle of association gives sig- 
nal aid in recalling the others. I have for the last fifteen years prose- 



2 2 SHAFTER MEMORIAL. 

cuted all my professional studies on the above plan, and although my 
memory is not remarkably tenacious, I have had no difficulty in re- 
membering, when once acquired, all the details of legal truth that can 
be brought within the scope of legal principles. When I read a new 
decision I always ask myself the question: 'Whereabouts in the system 
of the law does the result ascertained belong ?' In the twinkling of an 
eye its appropriate place is at once suggested to my thought and I put 
it in its place, and then I stop and look at it there, and I find by expe- 
rience that it is very apt to stay there without watching until 1 want it." 

These remarks were penned in the fulness of parental affection for 
the instruction of the infant son whom he afterwards lost, in case he 
should study law. They are full of matter which may be profitably 
pondered by practitioners as well as students of the legal profession. 
But they are doubly valuable at this time, because they indicate and 
illustrate Judge Shafter's methods and characteristics as lawyer and 
judge. 

It was sometimes said of him, while at the bar, that he was slow in 
the prepaiation of his cases. This was only another mode of saying- that 
when he encountered a case which presented elements that were new 
to him, he was never satisfied that it was fully prepared for trial, until 
he had subjected those elements to an analysis and classification which 
enabled him to master their minutest details. 

So of his decisions as a Judge it was not seldom remarked that they 
savored of technical logic. But this was merely confounding logical 
analysis with the logic of the books. If his decisions have any promi- 
nent characteristic, it is that they present constantly the ruling presence 
of that faculty which combines the similar and rejects the dissimilar, 
and descends from the general to the specific. So that, in truth, his 
cases at the bar were not too laboriously prepared, nor his decisions 
from the bench too elaborately wrought. He merely applied to each 
the methods of study which are above described. Asa consequence 
he was very successful at the bar, and his decisions from the bench 
have been rarely questioned. 

While at the bar, no one was more scrupulous than he in the respect 
with which he treated the judiciary, both in bearing and in language. 
He regarded it as the palladium of our free institutions, and not to be 
desecrated by thought, word or deed. And when he came to the 
bench, he magnified his high office in the same spirit, and honored his 



ACTION OF SUPREME COURT. 23 

associates there. No one was more thoroughly imbued than he with 
that personality which made him identify with himself the highest 
function of the State, and with that impersonality which removed him 
from every influence except a desire for judicial truth. 

He was very successful in gathering' the material rewards of his pro- 
fessional labors, and by their judicious investment accumulated an op- 
ulent fortune. 

We have spoken of his strong family affections. He was also an at- 
tached friend. His was not an impulsive nature, but his feelings were 
deep and permanent. He was remarkably genial in his social rela- 
tions; he loved the society of young men, to talk with them, counsel 
them, encourage them in their plans and studies. His religious prin- 
ciples were fixed, and comprehensive enough to embrace all mankind. 
Exact in his business, he was yet bounteous and liberal in his bene- 
factions.- The large sums which he disbursed in this manner would 
never have been known, even to those who knew him best, if they had 
not been entered from mere habit in the accounts which he kept of all 
his expenditures. He could not listen unmoved to the cry of distress, 
and when it was sometimes urged that the objects of his bounty were 
probably unworthy, would reply that that responsibility was theirs and 
not his. He was an ardent student of nature, and loved to be a boy 
again amid mountains, forests, fields and waters. And on such occa- 
sions he showed an apt familiarity with the best poets of the English 
language, which caused it to be said of him that "he was a learned law- 
yer of an older school" — one whose reading was not of the law-books 
merely, but extensive, tasteful and varied. His sense of humor was 
great, and frequently illuminated his logic with a sudden flash of light. 
His language was generally elegant in its simplicity, but he did not re- 
ject the word which best expressed his meaning, no matter what its ori- 
gin; and the occasional unconscious use of quaint expressions showed 
the extent of his reading among the older writers of our tongue. 

Such is an imperfect outline of the man, the lawyer and the judge. 
It is full of example, of encouragement and of warning. Of example 
to those who are content with the rewards which belong to personal in- 
tegrity, professional fidelity and political consistency. Of encourage- 
ment to those who are willing to win success as the prize of industry 
and perseverance. Of warning that there is a price too dear to be paid 
for great professional success, high position and abundant .wealth; that 



24 SHAFTER MEMORIAL. 

mind and body when overworked often react upon themselves and upon 
each other, and present the sad spectacle of a noble column riven from 
capital to base long before it topples to its fall. 



The memorial having been read, and the Judges having signified 
their concurrence, the Chief Justice directed it to be spread upon the 
minutes of the Court, and to be published in the reports. 

A large assemblage of the bar was in attendance during the proceed- 
ings, which were conducted with all the impressiveness and solemnity 
due to the memory of the distinguished deceased. 



IN MEMORIAM. 

LINES TO THE MEMORY OF OSCAR L. SH AFTER, WHO DIED IN FLORENCE, ITALY, 

AND WAS BURIED IN OAKLAND, CALIFORNIA. 
[From the New York Evening Post.] 

" Where the west wind blows through the evergreen trees, 
And the fogs go sailing by, 
'Mid the lupine blooms and humming bees, 
'Tis there I fain would lie. 

11 These Italian skies are very fair, 
Around are mosaics and sculptures rare, 

And ruins of temples old; 
And here, where the Amo's waters flow, 
The gems of Raphael and Angelo \ 

These princely galleries hold. 

" But I'd rather sleep on the western shore, 
Where the broad Pacific wave 
In solemn music would grandly roar 
A requiem o'er my grave." 

Then bear him gently across the main, 

And away toward the setting sun, 
Though we never shall hear that voice again, 

And his earthly task is done. 

The eye is quenched that in sympathy glowed 

For the wrongs of the struggling one, 
And still the hand that so freely bestowed 

The aid he denied to none. 

But well he'll sleep on the western shore, 

Where the broad Pacific wave 
In solemn music shall grandly roar 

A requiem o'er his grave. 



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