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BIOGRAPHICAL NOTICE 
 
 OF 
 
 STEPHEN J. FIELD 
 
 TAKEN PARTLY FROM THE RECORD OF THE FAMILY OF THE 
 LATE REV. DAVID D. FIELD, OF STOCKBRIDGE, MASS., 
 COMPILED BY HIS YOUNGEST SON, HENRY M. FIELD, 
 AND PARTLY FROM DOCUMENTS IN THE POS- 
 SESSION OF DIFFERENT MEMBERS 
 OF THE FAMILY. 
 
 NOT PUBLISHED, BUT PRINTED ONLY FOR THE 
 USE OF THE FAMILY. 
 
- If <* f 
 
Bancroft Library 
 
 STEPHEN J. FIELD. 
 
 Now, for the first time in the history of our family, 
 death came into the household. In the midsummer of 
 1815 (July 11) was born a fifth son, to whom, in honor 
 of a venerable minister of Connecticut, was given the 
 name of STEPHEN JOHNSON. He lived but a little over 
 five months, dying on Christmas day of the same year. 
 It was a bitter sorrow to the bereaved parents, and so 
 deeply did they feel it that, when they removed to Stock- 
 bridge, the sharpest pang was the thought that they 
 should leave that babe behind. More than thirty years 
 afterward my father made a journey to Connecticut, to 
 take up that little form, and bear it tenderly over the 
 mountains, and lay it down again beside its kindred dust. 
 This early grief consecrated the memory of that child, so 
 that when a sixth son was born, November 4, 1816, his 
 parents gave him the same name. He, too, was of a mould 
 so delicate and fragile as gave little promise that he could 
 ever reach manhood. For a time it seemed doubtful if 
 he could live. The old dames who came around his 
 cradle shook their heads, and told his mother that " she 
 could never raise that child ! " But her love watched 
 him night and day no hired attendant ever took her 
 place and carried him through the perils of infancy. 
 Nothing but that incessant care saved him; so that he 
 has always had reason to feel that, in a double sense, he 
 owed his life to his mother. 
 
 He was not three years old when the family removed 
 to Stockbridge, in August, 1819, and here he spent the 
 
ten years following the period of boyhood. In 1829 
 (December 2) his sister Emilia was married to Rev. Josiah 
 Brewer, who was immediately to embark for the East, as 
 a missionary, to promote female education among the 
 Greeks. Her brother Dudley (who, as the eldest of the 
 family, was always looking out for the education and 
 advancement of his brothers) thought it would be a good 
 opportunity for Stephen, now a boy of thirteen, to accom- 
 pany his sister, to study the Oriental languages, and thus 
 qualify himself to be a professor of Oriental literature in 
 some college on his return. His sister was delighted at 
 the suggestion, and as our parents gave their consent, it 
 was decided upon. The family party sailed from New 
 York on the 10th of December, bound for Smyrna. It 
 had been Mr. Brewer's intention to go from there to Greece, 
 but when he reached Smyrna he was persuaded to remain 
 in that city as a place where he could labor for Greek 
 education quite as effectively as in Greece itself. There 
 were in Asia Minor at that time more Greeks than of any 
 other nation. Accordingly he settled in Smyrna, where 
 he remained nine years. For two and a half Stephen 
 was in his family. During that time he visted Ephesus, 
 Scio, Patmos, Tenos, and JEgina. He accompanied Mrs. 
 Hill (the wife of Rev. John Hill, D. D., the well-known 
 Episcopal missionary in Greece) from Smyrna to Athens, 
 and there spent the winter of 1831-'32. The place was 
 then in ruins, and, unable to find a convenient house, they 
 lived in an old Venetian tower. So Dr. Hill himself in- 
 formed me on a visit to Athens in November, 1875, when 
 the place once destroyed had arisen from its ashes, and 
 grown to be a large and beautiful city. While in the 
 East young Field learned modern Greek so that he 
 could speak it fluently, and for a time kept his journal 
 in it. He also acquired some knowledge of Italian, 
 French, and Turkish. 
 
 Of these years spent in the East he has always re- 
 tained very vivid impressions. Living in a foreign 
 
country, and mingling with people of another race, lan- 
 guage, and religion, enlarged his ideas. He formed a 
 better opinion of the Turks. In travelling with them he 
 found that they were very attentive to th'eir devotions, 
 saying their prayers at sunrise, at noon, and at sun- 
 set. Often he was awakened at night by their rising to 
 say their prayers. He had been educated in the strictest 
 school of the Puritans, who, with all their good qualities, 
 were not the most tolerant of religious opinions which 
 differed from their own. Of course this child of a strict 
 New England pastor was taught to look with horror upon 
 the followers of the False Prophet; but for all that, he 
 was profoundly impressed with what he saw, and could 
 not but conclude that there must be something good in a 
 religion which inspired such devotion. 
 
 He found that the Turks were proverbially honest in 
 their dealings. If he went into a bazaar to inquire if a 
 piece of coin was good, he would be asked, "Did you get 
 it from a Turk?" If he said " Yes," that settled the point 
 that it was good ; if he said "No," they would ring it to 
 test its genuineness. One day some gentlemen of his 
 acquaintance were looking for a place in the country for 
 the summer, and one was recommended to them as a 
 quiet, orderly place, where the people were very moral 
 "for there was not a Christian within ten miles!" This 
 was his first lesson in religious tolerance. 
 
 Another lesson of the same kind he learned in regard 
 to the members of the Greek Church, with whom he 
 often came in contact, and found that they were most ex- 
 emplary in their religious duties. So with the Roman 
 Catholics, of whom there were many in Smyrna; he saw 
 in them a degree of devotion which was an example to 
 Protestants. These things gradually opened his young 
 eyes, and satisfied him that not all the religion in the 
 world is to be found in Protestant Christendom. 
 
 An experience of a very different kind was the visita- 
 tions of the plague and the cholera, by which Smyrna, 
 
like so many other cities of the East, was often scourged. 
 In the terrible plague of 1831 every one avoided his 
 neighbor, as if the slightest touch carried contagion. If 
 two men met in the street, each drew away from the other, 
 as if contact were death. Sometimes they hugged the 
 walls of the houses, with canes in their hands, ready to 
 strike down any one who should approach. All papers 
 and letters coming through the mails were smoked and 
 dipped in vinegar before they were delivered, lest they 
 might communicate infection. Even vegetables were 
 passed through water before they were taken from the 
 hands of the seller. Terrible tales were told of scenes 
 where guests were carried away dead from the table, and 
 servants dropped down while waiting upon it. On every 
 countenance was depicted an expression of terror. When 
 the plague appeared in a house, it was instantly deserted, 
 the occupants running from it without stopping to look 
 aUanything, or to take anything with them, as if pursued 
 by an avenging angel. Of those who were attacked nearly 
 one-half were swept away. Few, except those who had 
 recovered from the plague, ventured to go about the city. 
 And it was not till the pestilence had spent its force, and 
 their houses had been thoroughly cleansed and purified, 
 that the affrighted inhabitants returned to their homes. 
 
 Such was the memorable plague of 1831, of which this 
 missionary family were witnesses. Mr. Brewer remained 
 in the city for two or three weeks after it broke out, when, 
 for the safety of his family, he took them on board a vessel 
 and sailed for Malta. But no sooner had they arrived 
 than they were ordered into quarantine. So, without 
 remaining more than two or three days, not being permitted 
 to land, they returned to Smyrna, after an absence of a 
 little over six weeks, when the plague had passed. On 
 the return voyage they visited Patmos, Scio, and other 
 islands of the Grecian Archipelago. 
 
 In the autumn of the same year Smyrna was visited 
 with the Asiatic cholera, when there were three hundred 
 
deaths a day. Thirty thousand people left the city and 
 camped in the fields. During that period Mr. Brewer 
 filled his pockets with medicines and went around in the 
 lanes and alleys, and ministered to the sick and dying. 
 His young brother-in-law, with his pockets filled in the 
 same way, accompanied him in all his rounds. An ex- 
 tract which we have copied in our sketch of sister Emilia 
 speaks of Mr. Brewer's intrepid devotion amid these 
 terrible scenes. 
 
 Young Field remained in the East two years and a 
 half, when Mr. Brewer thought it was time for him to 
 return to America to enter college. Accordingly he sailed 
 for home in the latter part of 1832, and entered Williams 
 College in the fall of 1833. He graduated in 1837, with 
 the valedictory oration the highest honor of his class. 
 The next spring he went to New York, and began the 
 study of law in his brother Dudley's office. His studies 
 were interrupted by a long illness. When he was suffi- 
 ciently recovered he removed to Albany for change of 
 scene and occupation, and for some months heard recita- 
 tions of classes in the Female Academy, spending his 
 leisure time in the office of John Van Buren, the Attorney- 
 General of the State. After a year and a half he returned 
 to New York city, and re-entered his brother's office, and 
 in 1841 was admitted to the bar, and became his partner, 
 and so remained for seven years. 
 
 The long illness thus spoken of resulted from an injury 
 to his right knee-joint, which occurred in the city of New 
 York in the summer of 1838. He was walking, one 
 morning in August, down Nassau street, when he came 
 in collision with the hub of the wheel of a small coal- 
 cart drawn up on the sidewalk, which he had not noticed, 
 his attention at the time being drawn to something else. 
 The injury was thought to be slight, and, though painful, 
 did not delay him in proceeding to his office. On the 
 evening of that day there was some inflammation in 
 the joint, and the pain had increased. On the follow- 
 
8 
 
 ing morning he was advised to send for a physician, and 
 did so. He did not, at the time, think that the injury 
 would interrupt his ordinary occupations more than one 
 day. His physician, however, gave him a large quantity 
 of calomel, which greatly prostrated him and, instead of 
 diminishing, increased the inflammation in his knee-joint. 
 The result was that he was confined to his room in New 
 York for several weeks, and was then carried on his bed 
 to Haddam, Connecticut, where his parents resided. 
 After some months' confinement he was able to get up, 
 but so serious had been the injury to his knee-joint, prin- 
 cipally, he has always thought, from the medicine taken, 
 that he was unable to bring his right foot to the ground, 
 and for some months he went on crutches. In the fall of 
 the following year he was able to throw one of the crutches 
 aside and to walk with the aid of the other. The lame- 
 ness which resulted from this injury has never entirely 
 left him. For several years it was slight, but, unfortu- 
 nately, in the summer of 1882, when in California, he 
 received an additional injury to it. He was invited by 
 friends of Senator Casserly to act as a pall-bearer at his 
 funeral, and he did so. The services were at the church 
 at the corner of Dupont and California streets. After 
 they were concluded, instead of the pall-bearers being 
 furnished with carriages to take them to the cemetery, 
 they were requested to walk after the hearse down Cali- 
 fornia street, up Montgomery street to Market street, and 
 along Market street for several blocks. At that time the 
 streets of San Francisco were wretchedly paved with cob- 
 ble-stones of various sizes and placed in irregular order. 
 Whilst walking up Market street Mr. Field stepped on 
 one of these cobble-stones, about three inches higher than 
 its neighbors, which so wrenched his knee that he was 
 obliged to leave the procession. For many years after- 
 wards he was not free from pain except when asleep or 
 occupied in some serious matter engaging his close atten- 
 tion. He was a great sufferer from this cause, and though 
 
he consulted eminent surgeons, both in this country and 
 in Europe, he obtained very little relief from their treat- 
 ment or from the treatment which he has taken at differ- 
 ent watering-places whose waters were supposed to possess 
 healing virtues. His lameness has not, however, pre- 
 vented him, at any time, from the performance of his 
 regular judicial duties. 
 
 In the spring of .1848 he was seized with a desire to 
 visit Europe, and, terminating his partnership with his 
 brother, that he might be free, he went abroad, and spent 
 the following winter in Paris. That was the year of the 
 Revolution, when Louis Philippe was overthrown, and 
 the government of France was passing through the stage 
 of a Republic back to the Second Empire. While he was 
 in the city it was visited with the cholera, whose terrible 
 ravages recalled the cholera of Smyrna. His sister Mary 
 joined him in Paris, and in the following spring his 
 brother Cyrus and his wife went to Europe, and they 
 all met in Brussels, 'and together travelled during the 
 summer. The continent was still in great agitation. They 
 were in Rome soon after the French troops had taken 
 possession ; and were in Vienna while the war was raging 
 in Hungary, and its forces were approaching that city- 
 They returned home in the autumn of that year. 
 
 The fall of 1849 was a stirring moment in the history 
 of the country. The Mexican war had been brought to 
 a close the previous year by a treaty in which California 
 was ceded to the United States, and soon afterwards this 
 new acquisition was discovered to be a land in the bed 
 of whose streams and in whose hills and mountains gold 
 was found. Nothing could be conceived more fitted to 
 excite the imagination of young America. The picture 
 of an empire on the Pacific, rising as it were out of the 
 sea, presented itself as a boundless field for enterprise 
 and ambition. No one was more prepared to catch the 
 excitement than the young lawyer just returned from 
 Europe. Years before his attention had been drawn to 
 
 2 
 
10 
 
 the country bordering on the Pacific, and particularly to 
 the bay of San Francisco. In 1845, the year before the 
 Mexican war, his brother Dudley had written two articles 
 for the Democratic Review a political magazine of the 
 day upon the Oregon question, which was that of the 
 northwestern boundary between the British possessions 
 and the territory of the United States. In preparing 
 them, he had examined several works on Oregon and 
 California, and among others that of'Greenhow, then 
 recently published, and thus became familiar with the 
 geography of the Pacific Coast. Afterwards, when the 
 war broke out, in speaking of its probable issue, he re- 
 marked that "if he were a young man he would go to 
 San Francisco," for he was satisfied that peace would never 
 be concluded without our acquiring its harbor (as there 
 was no other equally good harbor on the coast), and that, 
 in his opinion, at no distant day a great city would rise 
 on its borders. He offered to furnish his younger brother 
 the means to go, and also for investment in land lying on 
 the harbor. Some months afterwards, while Col. Steven- 
 son's regiment was preparing to start from New York for 
 California, his brother again referred to the subject, and 
 .suggested the idea of his going out with the regiment. 
 But he wished to go to Europe, and so the project was 
 deferred. But the idea thus suggested had taken posses- 
 sion of his mind. He was attracted by the prospect of 
 adventure in a new country, besides the ambition of being 
 one of the founders of a new commonwealth which it 
 was evident would, at no distant day, rise on the Pacific 
 Coast. 
 
 In December, 1848, while in Paris, he read in the Xew 
 York Herald the message of President Polk confirming 
 the reports of the discovery of gold in California. This 
 recalled the suggestion of his brother, and made him 
 almost regret that he had not acted upon it. But as he 
 was now in Europe, he concluded to carry out his original 
 plan of completing his tour before returning to America. 
 
11 
 
 But the fire was only smothered, not extinguished, and it 
 burst out anew when he found himself once more in his 
 own country, being kindled afresh by the general excite- 
 ment. Crowds were leaving by every steamer for the 
 Isthmus and by every ship around Cape Horn. Thous- 
 ands had crossed the plains the previous summer, or 
 were on their way. He was not long in making up his 
 mind. He landed in New York on the 1st of October, 
 and on the 13th of November he left on the steamer 
 Crescent City for Chagres, an old Spanish-American 
 town on a river of that name, on the Isthmus of Panama, 
 where he arrived in about a week. In company with 
 others he took a boat and was pushed up the river by 
 Indians to 'Graces, where they engaged mules and rode 
 over the mountain to the city of Panama. Here they 
 found a crowd of emigrants and adventurers bound for 
 the land of gold. They took passage for San Francisco 
 on an old steamer named the California, which was 
 crowded to the utmost, passengers being stowed in every 
 nook and corner, and some without even a berth, lying on 
 the deck. It was said there were over twelve hundred 
 persons on board. Many carried with them the seeds of 
 disease, contracted under a tropical sun, which, being 
 aggravated by hardships, insufficient food, and the 
 crowded condition of the steamer, developed as the voy- 
 age proceeded. Panama fever in its worst form broke 
 out, and soon the main deck was covered with the sick. 
 There was a physician attached to the ship, but he, too, 
 was prostrated. In this extremity the young lawyer, just 
 from New York and from Paris, turned himself into a 
 nurse, and went from one sufferer to another, bending 
 over the sick, and watching them as carefully as if he 
 had been trained in a hospital. One gentleman, after- 
 wards a lawyer of high standing in California, Mr. Greg- 
 ory Yale, thought that he owed his life to this attention 
 of his fellow -passenger, and ever after felt towards him 
 as a brother. At last, after twenty -two days, this voyage 
 
12 
 
 of misery ended ; he reached San Francisco on almost the 
 last day of the year, December 28, 1849, and went on 
 shore between eight and nine o'clock at night. 
 
 Mr. Field landed in California with ten dollars in his 
 pocket. He had two trunks. These were of too great 
 weight for him to carry ; so he was compelled to pay seven 
 out of his ten dollars to have them taken to an old adobe 
 building, where a room was secured, about ten feet long 
 by eight wide, for thirty-five dollars a week. Two of his 
 fellow-passengers shared it with him. They took the bed, 
 and he took the floor. The next morning he started out 
 early with three dollars in his pocket, and hunted up a 
 restaurant, and ordered the cheapest breakfast to be had; 
 it cost two dollars; so that when he began his career in 
 California he had, as a capital to start on, exactly one 
 dollar! But he did not abate a jot of heart or hope. In 
 after years, when he could smile at his early fortunes, he 
 loved to recount these first experiences.* He said: 
 
 "I was in no respect despondent over my financial condition. 
 It was a beautiful day, much like an Indian-summer day in the 
 East, but finer. There was something exhilarating and exciting 
 in the atmosphere which made everybody cheerful and buoyant. 
 As I walked along the streets, I met a great many persons I had 
 known in New York, and they all seemed to be in the highest 
 
 *His friends in California, many of whom had been, like himself, 
 among the pioneers of '49, were as fond of hearing as he could be of re- 
 lating his adventures, and often urged him to put them on record before 
 he and they should pass away. This he long refused. But once, when 
 in San Francisco, lie was persuaded to dictate some of them to a reporter, 
 who took them down in shorthand, and afterwards wrote them out. In 
 the course of successive conversations they grew into a volume, which 
 was printed privately for his friends under the title "Personal Reminis- 
 cences of Early Days in California." It reads more like a tale of fiction 
 than of sober reality. Though related in familiar style, as one tells a 
 story to a group of friends, it is a thrilling narrative, full of excitement 
 and adventure, and full also of dangers, from coming in conflict with 
 desperate men, that could only be met with the greatest personal courage. 
 To some of these incidents we may refer hereafter, though it can only be 
 a passing allusion, as we must reserve what space we have to speak of 
 his work as a legislator and a judge. 
 
13 
 
 spirits. Every one in greeting me said, ' It is a glorious country/ 
 or * Isn't it a glorious country?' or 'Did you ever see a more 
 glorious country?' or something to that effect. In every case the 
 word 'glorious' was sure to come out. There was something in- 
 fectious in the use of the word, or rather in the feeling which 
 made its use natural. I had not been out many hours that morn- 
 ing before I caught the infection ; and though I had but a single 
 dollar in my pocket and no business whatever, and did not know 
 where I was to get the next meal, I found myself saying to every- 
 body I met, ' It is a glorious country.' 
 
 " The city presented an appearance which, to me, who had 
 witnessed some .curious scenes in the course of my travels, was 
 singularly strange and wild. The bay then washed a portion 
 of the east side of what is now Montgomery street, one of the 
 principal streets of the city ; and the sides of the hills sloping 
 back from the water were covered with buildings of various kinds, 
 some just begun, a few completed all, however, of the rudest 
 sort, the greater number being merely canvas sheds. The streets 
 were filled with people, it seemed to me, from every nation under 
 heaven, all wearing their peculiar costumes. The majority of 
 them were from the States ; and each State had furnished speci- 
 mens of every type within its borders. Every country of Europe 
 had its representatives; and wanderers without a country were 
 there in great numbers. There were also Chileans, Sonorians, 
 Kanakas from the Sandwich Islands and Chinese from Canton 
 and Hong Kong. All seemed, in hurrying to and fro, to be busily 
 occupied and in a state of pleasurable excitement. Everything 
 needed for their wants, food, clothing, and lodging-quarters, and 
 everything required for transportation and mining, were in urgent 
 demand and obtained extravagant prices. Yet no one seemed to 
 complain of the charges made. There was an apparent disdain 
 of all attempts to cheapen articles and reduce prices. News from 
 the East was eagerly sought from all new-comers. Newspapers 
 from New York were sold at a dollar apiece. I had a bundle of 
 them, and seeing the price paid for such papers, I gave them to a 
 fellow-passenger, telling him he might have half he could get for 
 them. There were sixty-four numbers, if I recollect right, and 
 the third day after our arrival, to my astonishment, he handed 
 me thirty-two dollars, stating that he had sold them all at a dollar 
 apiece. Nearly everything else brought a similarly extravagant 
 price." 
 
14 
 
 His fortunes were further recruited by the proceeds of 
 a note of over $400, which his brother Dudley had given 
 him against a man who, having prospered in his new. 
 home, paid it promptly. As the new-comer handled the 
 money in Spanish doubloons, he felt rich. With this 
 start he opened an office in San Francisco, but had only 
 received his first fee when the excitement about gold in 
 the interior led him to abandon the city and take a 
 steamer up the Sacramento River, then in its annual flood, 
 to a point which, being at the junction of two rivers, the 
 Feather and the Yuba, seemed a natural site for a town, 
 and where already some hundreds of people had pitched 
 their tents upon the bank. Two of the proprietors were 
 French gentlemen, who were delighted when they found 
 he could speak French, and insisted on showing him the 
 town site. It was a beautiful spot, covered with live-oak 
 trees that reminded him of the oak parks of England. 
 He saw at once that the place, from its position at the 
 head of river navigation, was destined to become an im- 
 portant depot for the neighboring mines, and that its 
 beauty and healthfulness would render it a pleasant place 
 for residence. Here accordingly he pitched his tent, and 
 was to spend the next seven years. 
 
 As may well be supposed, life in this new settlement 
 was very primitive. Besides the old adobe of the original 
 settler, there was only one house. The new-comers slept 
 in tents or under the open sky. But this was the least of 
 their anxieties. The constitution of the State, adopted 
 the previous year, was not framed by a convention con- 
 vened by the authority of Congress, and, for that reason, 
 great doubt of its validity and of legislation under its 
 provisions was entertained by many of the immigrants. 
 Among those who were then at the new settlement, there 
 was no recognized official authority; indeed, there were 
 no officers of the government created under that constitu- 
 tion, and there was no protection for life or property ex- 
 cept the instinct of self-preservation which leads men to 
 
15 
 
 .combine to protect one another. To create something like 
 civil order in this settlement, the first thing was to or- 
 ganize a temporary local government. So some of the 
 leading settlers assembled on the evening of the 17th of 
 January (1850), and christening the place with a name 
 that of Marysville, in honor of the only woman in the 
 place, the wife of one of the proprietors of the town 
 they agreed to call a public meeting of citizens of the 
 settlement the next day to consider the question of 
 establishing a town government. Accordingly, on the 
 following morning, the 18th of January, such public 
 meeting was held in front of the Adobe House, the only 
 substantial building of the place, except the one hastily 
 thrown up the day before, and it was there resolved 
 that a town government should be established, and for 
 that purpose that there should be elected a town council 
 an ayuntamiento in Spanish phrase and a first and 
 second alcalde (the latter to act in the absence or sick- 
 ness of the former), and a marshal; and they proceeded 
 at once to carry the resolution into effect. In the after- 
 noon of the same day the election took place. To the 
 position of first alcalde Mr. Field was chosen. Under 
 the Mexican law an alcalde was an officer of very limited 
 jurisdiction; but in the anomalous condition of affairs in 
 California at this time, he was called upon to exercise, 
 and did exercise, very great powers. Mr. Field, therefore, 
 became at once the centre of authority, around whom the 
 elements of society could crystallize. He was the chief 
 magistrate in the newly-formed community, and had use 
 for all his powers, since along with the respectable, the 
 orderly, and the law-abiding class of people there was a 
 great number of disreputable characters gamblers and 
 desperadoes, the refuse of older communities who had 
 to be held in check with a firm hand. They soon found 
 that there was an authority with which they could not 
 trifle. Thus, a man was accused of having committed a 
 robbery of having stolen gold dust out of the tent of a 
 
16 
 
 miner. He was arrested and carried before the alcalde. 
 After hearing a statement of the alleged facts, the alcalde 
 directed that a grand jury should be immediately sum- 
 moned to consider the case, and in a very short time its 
 members assembled, and, after hearing the evidence, re- 
 ported that a burglary had been committed, and formally 
 accused the prisoner. A petty jury was 'thereupon at 
 once called, and the prisoner put upon his trial, an attor- 
 ney having been first appointed by the alcalde to defend 
 him. The trial did not last long, and the prisoner was 
 convicted, the evidence being clear and conclusive. A 
 portion of the gold dust stolen was found upon him. 
 The whole preceding, from the arrest of the prisoner to 
 his conviction, occupied only a part of a day. What 
 should be done with the convict then became a serious 
 subject of consideration. There was no jail to hold pris- 
 oners, and the sheriff could not be kept standing guard 
 over him. Nor could he be sent to San Francisco but at 
 great expense. If he had been turned over to the crowd, 
 they would have hung him without hesitation to the 
 nearest tree. The judgment of the alcalde was more 
 merciful, though not less swift and effective. It was as 
 all punishment of crime ought to be, sharp and stinging. 
 The thief was sentenced to be publicly whipped with fifty 
 lashes on his bare back, with a clause added that if he 
 were found within the next two years in the vicinity of 
 Marysville he should be again whipped. The marshal 
 of the court immediately marched him to a tree in the 
 public plaza and inflicted the sentence, the alcalde pri- 
 vately ordering a physician to be present so as to see that 
 no unnecessary severity was practiced. That was the last 
 seen of the fellow in that region. The Judge, in his 
 "Reminiscences," remarks that the latter part of the sen- 
 tence was unnecessary, for there was something so de- 
 grading in a public whipping that he had never known 
 a man thus whipped who would stay at the place longer 
 than he could help, or ever desired to return. By the 
 
17 
 
 sentence inflicted the sense of justice of the community 
 was satisfied and while no blood was shed, or hanging 
 done, a severe public example was given. 
 
 Thus the alcalde did not bear rule in vain. A few in- 
 stances of such wholesome severity quelled the spirit of 
 lawlessness, and established order in the community. A 
 good many bad characters hung about the place, and 
 gambling shops were open; but deeds of violence were 
 effectually repressed, and during the whole time that he 
 bore rule this settlement was as peaceful as a New Eng- 
 land village. Sometimes he had more pleasing duties 
 than that of trying criminals and inflicting punishment. 
 In one case a husband and wife came to him bitterly com- 
 plaining of each other, and demanding an immediate 
 divorce. Then the good alcalde forgot his office as a 
 magistrate, and tried to interpose as a pacificator and 
 friend, which he did with such good effect that they prom- 
 ised .to kiss and forgive each other, and departed arm in 
 arm, to live in peace and love forever after, amid the cheers 
 of the large audience that had gathered by the novel pro- 
 ceeding at the alcalde's office. 
 
 As chief magistrate he had the general superintendence 
 over matters affecting the public interests of the town. 
 He had the banks of the Yuba River graded so as to facili- 
 tate the landing from steamers and other vessels. He 
 established a night police, and kept the record of deeds of 
 real property. 
 
 This efficient rule of the alcalde was of course but tem- 
 porary. It ceased as the new State government went into 
 operation, and its officers appeared and took the place of 
 officials with Spanish titles and unlimited powers. The 
 change was no doubt, on the whole, a benefit, although 
 in some cases it was quite the contrary, as in the haste of 
 organization some very unfit men were appointed to posi- 
 tions in which their power for mischief was great. Thus 
 of the District Court, whose territorial jurisdiction em- 
 braced Yuba County, a lawyer from Texas, who was a 
 
 3 
 
18 
 
 bully of the lowest type, was appointed judge. A drunk- 
 ard, he often appeared in court in a state of intoxication, 
 and by his vulgar and brutal manners created very general 
 disgust. He took a hatred to Mr. Field, and even threat- 
 ened personal violence, so that the latter always went 
 armed, and the former, in consequence, confined himself 
 to swaggering and bluster. But the annoyance did not 
 continue long. In the fall of that year Mr. Field was 
 elected a member of the Legislature, and secured a reor- 
 ganization of the judicial district, by which this model 
 judge was sent off to the extreme northern part of the 
 State, where at the time there were few inhabitants and 
 little litigation. For some years he continued on the bench , 
 but his ungovernable passions and habits of intoxication 
 finally led to a movement for his impeachment, when he 
 resigned, and soon afterwards died. 
 
 The nomination to the Legislature introduced Mr. Field 
 to a new experience. Every candidate had to make the 
 canvass for himself; it did not do to stand upon his 
 dignity. The people did not know him, and an Eastern 
 reputation counted for little in the mining gulches of 
 California. He had to mount his horse, like a Methodist 
 circuit-rider, and ride from camp to camp, speaking to 
 the people wherever he could find them in the oak 
 grove, under the shade of trees, or by the river-side, where 
 they washed for gold. In this way he saw a great deal 
 of the rough life of the border, and had many a novel, 
 and sometimes a touching, experience. A single incident, 
 which is related in the " Personal Reminiscences," is given 
 in the note below.* 
 
 *I witnessed some strange scenes during the campaign, which well 
 illustrated the anomalous condition of society in the country. I will 
 mention one of them. As I approached Grass Valley, then a beautiful 
 spot among the hills, occupied principally by Mr. Walsh, a name since 
 become familiar to Califoruians, I came to a building by the wayside, a 
 small lodging house and drinking saloon, opposite to which a lynch jury 
 were sitting, trying a man upon a charge of stealing gold dust. I stopped 
 and watched for awhile the progress of the trial. On an occasion of 
 
19 
 
 The experience of this campaign was useful in other 
 ways. In the mining camps he learned the rules by which 
 the miners regulated their claims, and their relations with 
 each other rules which he was soon to lift into dignity 
 by giving them the force of positive law. 
 
 The Legislature met in San Jose, then the capital of the 
 State, on the first Monday of January, 1851. The Legis- 
 lature of the previous year had done much, but it left 
 much more to be done by its successor. There was an 
 immense work on its hands in framing laws required by 
 the conditions of the State, which had recently come into 
 existence, but destined to a magnificent future. Here Mr. 
 
 some little delay iu the proceedings I mentioned to those present, the 
 jury included, that I was a candidate for the Legislature, and that I 
 would be glad if they would join me in a glass in the saloon, an invita- 
 tion which was seldom declined iu those days. It was at once accepted, 
 and, leaving the accused iu the hands of an improvised constable, the 
 jury entered the house and partook of the drinks which its bar afforded. 
 I had discovered, or imagined from the appearance of the prisoner, that 
 he had been familiar in other days with a very different life from that 
 of California, and my sympathies were moved towards him. So, after 
 the jurors had taken their drinks and were talking pleasantly together, 
 I slipped out of the building, and, approaching the man, said to him: 
 "What is the case against you? Can I help you?" The poor fellow 
 looked up to me and his eyes filled with great globules of tears as he 
 replied, "I am innocent of all I am charged with. I have never stolen 
 anything nor cheated any one; but I have no one here to befriend me." 
 That was enough for me. Those eyes, filled as they were, touched my 
 heart. I hurried back to the saloon, and, as the jurors were standing 
 about chatting with each other, I exclaimed: "How is this? You have 
 not had your cigars? Mr. Barkeeper, please give the gentlemen the best 
 you have ; and, besides," I added, " let us have another ' smjle' it is not 
 often you have a candidate for the Legislature among you." A laugh 
 followed, and a ready acceptance was given to the invitation. In the 
 meantime my eyes rested upon a benevolent-looking man among the 
 jury, and I singled him out for conversation. I managed to draw him 
 aside, and inquired what State he came from. He replied, from Connec- 
 ticut. I then asked if his parents lived there. He answered, with a 
 faltering voice, "My father is dead; my mother and sister are there." 
 I then said, " Your thoughts, I dare say, go out constantly to them, and 
 you ofteu write to them, of course." His eyes glistened, and I saw pearl- 
 like dewdrops gathering in them his thoughts were carried over the 
 
20 
 
 Field found himself at home. As a diligent student of 
 law for many years, he had become familiar with the Civil 
 and Criminal Codes and the Codes of Procedure at the 
 East, and now had opportunity to turn to account the 
 results of long study, aided by experience and observa- 
 tion. He at once took a leading position in the Legisla- 
 ture, and, it is said by those familiar with the history of 
 that body, did more towards framing the laws of California 
 than any other individual. 
 
 He at once directed special attention to legislation for 
 the protection of miners. California was a mining State. 
 The vast immigration from the East had come in search 
 
 mountains to his old home. " Ah, my good friend," I added, " how their 
 hearts must rejoice to hear from you!" Then, after a short pause,! 
 remarked, "What is the case against your prisoner? He, too, perhaps* 
 may have a mother and sister in the East, thinking of him as your 
 mother and sister do of you, and wondering when he will come back. 
 For God's sake remember this!" The heart of the good man responded 
 in a voice which, even to this day now nearly thirty years past sounds 
 like a delicious melody in my ears: "I will do so! " Passing from him 
 I went to the other jurors, and, finding they were about to go back to 
 the trial, I exclaimed, "Don't be in a hurry, gentlemen; let us take 
 another glass." They again acceded to my request, and, seeing that they 
 were a little mellowed by their indulgence, I ventured to speak about 
 the trial. I told them that the courts of the State were organized, and 
 there was no necessity or justification now for lynch juries; that the 
 prisoner appeared to be without friends, and I appealed to them, as men 
 of large hearts, to think how they would feel if they were accused of 
 crime where they had no counsel and no friends. " Better send him, 
 gentlemen, to Marysville for trial, and keep your own hands free from 
 stain." A pause ensued ; their hearts were softened; and, fortunately, 
 a man going to Marysville with a wagon, coming up at this moment, I 
 prevailed upon them to put the prisoner in his charge to be taken there. 
 The owner of the wagon consenting, they swore him to take the prisoner 
 to that place and deliver him over to the sheriff, and to make sure that 
 he would keep the oath, I handed him a " slug," a local coin of octagonal 
 form, of the value of fifty dollars, issued at that time by assayers in San 
 Francisco. We soon afterwards separated. As I moved away on my 
 horse my head swam a little, but my heart was joyous. Of all things 
 which I can recall of the past, this is one of the most pleasant. I believe 
 I saved the prisoner's life, for in those days there was seldom any escape 
 for a person tried by a lynch jury. 
 
21 
 
 of gold. This was for the moment the great interest of 
 the State, and the miners the most important class of the 
 population. Here Mr. Field turned to account his recent 
 experience. He had been among the miners. He had 
 slept in their tents and their cabins, and sat by their camp- 
 fires, listening to the tales of their adventures. He had 
 learned something of the rules by which they were gov- 
 erned rules by which he perceived that justice was prac- 
 tically administered. He saw that it would never do to 
 undertake to override these regulations by a set of arbi- 
 trary laws, framed at a distance, by men ignorant of their 
 peculiar conditions. The attempt to impose such an 
 authority would be extremely impolitic; it would pro- 
 voke resistance; a conflict would be inevitable; and what 
 was far more important in his view, it would be cruelly 
 unjust. The miners, who at great hardship and peril had 
 sought out the places where gold was hidden in the beds 
 of rivers and in the rocks of the mountains, had rights 
 which could not be ignored. The wise course was to give 
 the sanction of law to the rules which they had made for 
 themselves. Then they could not complain of injustice 
 when bound by the laws which they had framed for their 
 own protection. Accordingly at an early stage of the ses- 
 sion he introduced the following provision, which through 
 his advocacy was adopted and incorporated into a general 
 statute regulating proceedings in civil cases in the courts 
 of the State: 
 
 " In actions respecting ' Mining Claims ' proof shall be admitted 
 of the customs, usages, or regulations established and in force at 
 the bar, or diggings embracing such claims; and such customs, 
 usages, or regulations, when not in conflict wjth the Constitution 
 and laws of this State, shall govern the decision of the action." 
 
 These five lines contain, as the acorn contains the oak, 
 the germinal principle of a whole code of wise and benefi- 
 cent legislation. The great principles of law, being 
 founded in natural justice, are always simple, and yet 
 simple as this was, no one had had the sagacity to per- 
 
22 
 
 ceive or the courage to propose it; but once proposed and 
 adopted, it solved all difficulties, and smoothed the way 
 to peace in all the borders of the Golden State. Its prin- 
 ciple was afterwards adopted by other mining regions, 
 and finally by the Congress of the United States. Its 
 wisdom has been proved by thirty years of experience. 
 For this single act, says a California writer, "the people 
 of this State and of Nevada should ever hold the author 
 in grateful remembrance. When they think of him only 
 as a judge deciding upon the administration of laws 
 framed by others, let them be reminded that in a single 
 sentence he laid the foundation of our mining system so 
 firmly that it has not been, and cannot be, disturbed." 
 Years after, when Mr. Field became a Justice of the Su- 
 preme Court of the United States, he commented, in an 
 opinion in an important case, upon the usages and regu- 
 lations of miners, to which this legislation gave the force 
 of law, and upon the vast benefits of that legislation. 
 An extract from that opinion is given in a note below.* 
 
 * "The discovery of gold in California was followed, as is well known, 
 by an immense immigration into the State, which increased its popula- 
 tion within three or four years from a few thousand to several hundred 
 thousand. The lands in which the precious metals were found belonged 
 to the United States, and were unsurveyed, and not open, by law, to 
 occupation and settlement. Little was known of them further than that 
 they were situated in the Sierra Nevada Mountains. Into these moun- 
 tains the immigrants in vast numbers penetrated, occupying the ravines, 
 gulches, and canons, and probing the earth in all directions for the 
 precious metals. Wherever they went they carried with them that love 
 of order and system and of fair dealing which are the prominent charac- 
 teristics of our people. In every district which they occupied they 
 framed certain rules for their government, by which the extent of ground 
 they could severally hold for mining was designated, their possessory 
 right to such ground secured and enforced, and contests between them 
 either avoided or determined. These rules bore a marked similarity, 
 varying in the several districts only according to the extent and char- 
 acter of the mines, distinct provisions being made for different kinds of 
 mining, such as placer mining, quartz mining, and mining in drifts or 
 tunnels. They all recognized discovery followed by appropriation as the 
 foundation of the possessor's title, and development by working as the 
 
23 
 
 Of the provision of law cited, Professor Pomeroy, in 
 his sketch of the work of Judge Field, after speaking of 
 its far-sighted sagacity, expediency, and wisdom, as estab- 
 lished by the experience of thirty years throughout all the 
 Pacific mining States and Territories, says: "I therefore 
 venture the opinion, and think that its correctness can- 
 not be questioned, that no single act of creative legisla- 
 tion, dealing with property rights and private interests, 
 has exceeded this one in importance and in its effects in 
 developing the industrial resources of the country. The 
 
 condition of its retention. And they were so framed as to secure to all 
 comers, within practicable limits, absolute equality of right and privi- 
 lege in working the mines. Nothing but such equality would have been 
 tolerated by the miners, who were emphatically the law-makers, as re- 
 spects mining, upon the public lands in the State. The first appropriator 
 was everywhere held to have, within certain well-defined limits, a better 
 right than others to the claims taken up ; and in all controversies, except 
 as against the government, he was regarded as the original owner, from 
 whom title was to be traced. But the mines could not be worked with- 
 out water. Without water the gold would remain forever buried in the 
 earth or rock. To carry water to mining localities, when they were not 
 on the banks of a stream or lake, became, therefore, an important and 
 necessary business in carrying on mining. Here, also, the first appro- 
 priator of water to be conveyed to such localities, for mining or other 
 beneficial purposes, was recognized as having, to the extent of actual 
 use, the better right. The doctrines of the common law respecting the 
 rights of riparian owners were not considered as applicable, or only in a 
 very limited degree, to the condition of miners in the mountains. The 
 waters of rivers and lakes were consequently carried great distances in 
 ditches and flumes, constructed with vast labor and enormous expendi- 
 tures of money, along the sides of mountains and through canons and 
 ravines, to supply communities engaged in mining, as well as for agricul- 
 turists and ordinary consumption. Numerous regulations were adopted, 
 or assumed to exist from their obvious justness, for the security of these 
 ditches and flumes, and the protection of rights to water, not only be- 
 tween different appropriators, but between them and the holders of 
 mining claims. These regulations and customs were appealed to in con- 
 troversies in the State courts, and received their sanction ; and properties 
 to the value of many millions rested upon them. For eighteen years, 
 from 1848 to 1866, the regulations and customs of miners, as enforced 
 and moulded by the courts, and sanctioned by the legislation of the 
 State, constituted the law governing property in mines and in water on 
 the public mineral lands." ( Jennison v. Kirk, 98 U. S. 457.) 
 
24 
 
 causes which led to its enactment, its simple but efficient 
 nature, and its beneficial consequences, cannot be better 
 described than in the language of Judge Field himself, 
 in an opinion," from which we have given an extract in a 
 note. And he adds: "This enactment gave the force of 
 law to an equitable system of mining and water regula- 
 tions, and has been the direct means of promoting and 
 protecting an industry which has secured and added an 
 untold amount to the total wealth and resources of the 
 country. I cannot leave this subject without a brief 
 comment upon the social events themselves which I have 
 T^een describing events unexampled, I think, in the his- 
 tory of any other people. The whole conduct of the 
 miners, their voluntary adoption, in the absence of all 
 municipal law, of regulations so just, wise, and equitable 
 that neither the State nor the national government has 
 attempted to improve them, exhibits in the most striking 
 manner those qualities which lie at the basis of the Amer- 
 ican character. So long as these qualities last, so long as 
 American citizens, individually or collected into commu- 
 nities, possess and act upon these conservative tendencies, 
 the liberties, safety, and perpetuity of the nation rest upon 
 a certain and immovable foundation." 
 
 Next to the miners, and forming a large part of them, 
 was another class requiring protection that of poor 
 debtors. Of the thousands who rushed to California in 
 the early days, a large proportion were men who had met 
 with reverses of fortune in the older States. Many were 
 utterly broken down; and, sick at heart, and often sick in 
 body, they had sought a new field in hope to begin life 
 anew. It was all-important that they should not have 
 their hands tied at the very beginning; that they should 
 not find, on landing in their new home, that they were 
 pursued by prosecutions, and their little means taken 
 from them. In the older States there were laws exempt- 
 ing certain effects of a debtor. But these exemptions 
 were very small. The workers who had come to build 
 
25 
 
 up an empire on the Pacific Coast needed something 
 more. Strong-limbed mechanics might as well be bound 
 in hands and feet as deprived of tools to work with. 
 The farmer needed his plow and his oxen, the surgeon 
 his instruments, and the lawyer his library. To meet all 
 these cases, Mr. Field drew a provision more comprehen- 
 sive than had ever been framed before, exempting from 
 forced sale under execution the following property of 
 judgment debtors, except where the judgment was recov- 
 ered for the purchase-money of the articles, viz: 
 
 " 1. Chairs, tables, desks, aud books, to the value of one hun- 
 dred dollars. 
 
 " 2. Necessary household, table, and kitchen furniture, includ- 
 ing stove, stove-pipe, and stove furniture, wearing apparel, beds, 
 bedding, and bedsteads, and provisions actually provided for in- 
 dividuals or family use sufficient for one month. 
 
 "3. Farming utensils, or implements of husbandry; also two 
 oxen, or two horses, or two mules, and their harness, and one cart 
 or wagon, and food for such oxen, horses, or mules for one month. 
 
 " 4. The tools and implements of a mechanic necessary to carry 
 on his trade, the instruments and chests of a surgeon, physician, 
 surveyor, and dentist, necessary to the exercise of their professions, 
 with their professional library, and the law libraries of an attor- 
 ney or counsellor. 
 
 " 5. The tent and furniture, including a table, camp-stools, bed 
 and bedding, of a miner; also his rocker, shovels, wheelbarrow, 
 spade, pumps, and other instruments used in mining, with provis- 
 ions necessary for his support for one month. 
 
 " 6. Two oxen, or two horses, or two mules, and their harness, 
 furniture, and one cart or wagon, by the use of which a cart man, 
 teamster, or other laborer habitually earns his living; and food 
 for such oxen, horses, or mules for one month ; and a horse, harness, 
 and vehicle used by a physician or surgeon in making his profes- 
 sional visits. 
 
 " 7. All arms and accoutrements required by law to be kept by 
 any person." 
 
 This comprehensive provision spread a broad shield of 
 protection over every honest man who was willing to 
 work. 
 
 4 
 
26 
 
 "The fundamental principle of the protection proposed 
 by Mr. Field," says Professor Pomeroy, " was, that every 
 person, in addition to those articles necessary for individ- 
 ual preservation, such as clothing, reasonable household 
 furniture and effects, and the like, should be secured in 
 the possession and use of those things by which, as neces- 
 sary means and instruments, he pursues his profession, 
 trade, business, or calling, whatever it may be, and 
 acquires the ability of paying the demands of his cred- 
 itors. This law, therefore, exempts, not only household 
 furniture and the like, but the implements, wagons, and 
 teams of a farmer, the tools of ,a mechanic, the instru- 
 ments of a surveyor, surgeon, and dentist, the professional 
 library of a lawyer and a physician, the articles used by 
 the miner, the laborer, &c. In this connection it should 
 also be stated that, tnough not its author, Mr. Field was 
 a most strenuous supporter of the Homestead Bill, and 
 was mainly instrumental in extending the exemptions 
 originally proposed from three thousand to five thousand 
 dollars. At that time there was no exemption whatever 
 of personal property in California, and none equally ex- 
 tensive to be found in the previous legislation of any State 
 of the Union. It is understood by those who are familiar 
 with Judge Field that he looks back with greater satisfac- 
 tion upon the exemption system which he thus created 
 than upon any other of his legislative work." 
 
 Mr. Field was a member of the Judiciary Committee, and 
 his work naturally related mainly to the administration 
 of justice. "Among the most important of the measures 
 drawn up by him," says Prof. Pomeroy,* "was a bill 
 concerning the judiciary of the State. The act was 
 general, dealing with the 'whole judicial system, and re- 
 quiring great labor in its preparation. It completely 
 
 * John Norton Pomeroy, LL.D., Professor of Law in the University of 
 California, wrote a somewhat elaborate review of the career of Judgo 
 Field, as a Legislator, State Judge, and Justice of the Supreme Court 
 of the United States, from which the above is taken. 
 
27 
 
 i 
 reorganized the judiciary, and defined and allotted the 
 
 jurisdiction, powers, and duties of all the grades of courts 
 and judicial officers. An act passed in the subsequent 
 session of 1853, revising and amending in its details the 
 original statute of 1851, was also drawn up by him, 
 although he was not then a member of the Legislature. 
 The system then planned and established in 1851, and 
 improved in 1853, and again in 1862, to conform to the 
 constitutional amendments of the previous year, was 
 substantially adopted in the codes of 1872, and continued 
 in operation until it was displaced by the revolutionary 
 changes made in the new constitution of 1879-'80. In 
 connection with this legislation affecting the judiciary, he 
 also drafted and procured the passage of an act concern- 
 ing county sheriffs, defining all their official functions 
 and duties; an act concerning county recorders, creating 
 the entire system of registry which has since remained 
 substantially unaltered ; and an act concerning attorneys 
 and counsellors at law, by which their duties were de- 
 clared and their rights were protected against arbitrary 
 proceedings by hostile judges. He also prepared and 
 introduced two separate bills to regulate the civil and 
 criminal practice. These acts were based upon the Code 
 of Civil Procedure and the Code of Criminal Procedure 
 proposed by the New York commissioners, but they con- 
 tained a great number of changes and additions made 
 necessary by the provisions of the California Constitution, 
 and by the peculiar social condition and habits of the 
 people. They were by no means bare copies taken from 
 the New York codes, since Mr. Field altered and recon- 
 structed more than three hundred sections, and added 
 over one hundred new sections. The two measures were 
 generally designated as the Civil and the Criminal Prac- 
 tice Acts. They were subsequently adopted by the other 
 States and Territories west of the Rocky Mountains. 
 They continued, with occasional amendments, in force in 
 California until the present system of more elaborate 
 
28 
 
 codes was substituted for them in 1872; and even this 
 change was more in name than in substance, since all 
 their provisions substantially reappear in some -one of 
 these codes." 
 
 In the Civil Practice Act he incorporated the provisions 
 above mentioned respecting mining claims, and exempt- 
 ing certain articles of property of judgment debtors from 
 forced sale under execution, both of which have become 
 permanent features of the legislative policy of California. 
 
 But to enumerate all the acts framed by this indefati- 
 gable legislator would require us to write the history of 
 the Legislature itself during that memorable session. 
 Says one who was familiar with all the steps taken in 
 that founding of a Commonwealth: 
 
 "The session of 1851 was the most important in the history of 
 the State. It was the first one held after the admission of Cali- 
 fornia into the Union, and some of the best timbers of the new 
 governmental structure are the handiwork of Mr. Field. His 
 labors exhibited great devotion to the public service, untiring 
 industry, and a high sense of the responsibility of a public officer. 
 Many bad bills were defeated through his influence and many 
 defective ones amended by his suggestions. He was seldom 
 absent from his seat; he carefully watched all measures; and 
 there were few debates in which he did not participate. Such is 
 the universal testimony of all the survivors of the legislative body 
 of 1851, and its truth is established by the journal of the assem- 
 bly and the papers of the time." 
 
 At the close of the Legislature, Mr. Field returned to 
 Marysville. He had added to his reputation, but in other 
 respects his fortunes were at a low ebb. His legal prac- 
 tice had been broken up by a ruffian on the bench, and 
 he was as poor as when he landed in San Francico with 
 but ten dollars in his pocket, and he had to ask credit 
 for a week's board. But this judicial ruffian was now 
 gone, and he had at last a clear field before him, and 
 soon the same ability which he had shown in the Legis- 
 lative Assembly gave him a conspicuous place at the bar. 
 The next six years, which were devoted to his profession 
 
29 
 
 were years of success in every respect. His practice be- 
 came very large. Indeed, one who watched his progress 
 during those years said: "His practice was as extensive, 
 and probably as remunerative, as that of any lawyer in 
 the State." The same careful observer thus analyzed the 
 secret of his success : 
 
 " He was distinguished at the bar for his fidelity to his clients, 
 for untiring industry, great care, and accuracy in the preparation 
 of his cases, uncommon legal acumen, and extraordinary solidity 
 of judgment. As an adviser, no man had more the confidence of 
 his clients; for he trusted nothing to chance or accident when 
 certainty could be attained, and felt his way cautiously to his 
 conclusions, which, once reached, rested upon sure foundations, 
 and to which he clung with remarkable pertinacity. Judges 
 soon learned to repose confidence in his opinions, and he always 
 gave them the strongest proofs of the weight justly due to his 
 conclusions." 
 
 Thus established in the high esteem of the profession 
 and the public, he had an assured future before him. 
 He was universally recognized as among the leaders of 
 the bar. Had he chosen thus to continue at the bar, 
 there seemed to be nothing of success or of fortune which 
 was not within his reach. It was at this moment, when 
 his prospects were at the brightest, that his professional 
 career was interrupted by his elevation to the bench. 
 
 In 1857 he was elected Judge of the Supreme Court of 
 the State for the term of six years, commencing January 
 1, 1858. There were two candidates besides himself be- 
 fore the people, and 93,000 votes were polled. He re- 
 ceived a majority of 36,000 over each of his opponents, 
 and 17,000 over them both together. His duties began 
 even before his regular term of office. In September of 
 that year the Chief Justice of the court, Hugh L. Murray, 
 died, and one of the Associate Judges was appointed to 
 fill the vacancy created in the court, though Mr. Terry, 
 being the senior associate, succeeded to the Chief Justice- 
 ship. This appointment left the remainder of the Asso- 
 
30 
 
 ciate Judge's term of service, which extended to the 
 following January, unoccupied, and Mr. Field was ap- 
 pointed by the Governor of the State a political oppo- 
 nent to fill it. He accepted the appointment, and took 
 his seat on the bench October 13, 1857. He held the 
 office of Associate Judge until the resignation of Chief 
 Justice Terry in September, 1859, when he became Chief 
 Justice, and so continued as long as he remained on the 
 bench of California. 
 
 The appointment of Judge Field to the bench neces- 
 sitated his change of residence from Marysville to Sacra- 
 mento. The latter city was the capital of the State. The 
 sessions of the Supreme Court were held there, and there 
 chambers for the judges were provided. As soon, there- 
 fore, as he could arrange his private business at Marys- 
 ville he removed to Sacramento,' but he left Marysville 
 with much regret.* He had passed many years there 
 happily and had made many warm friends, for whom he 
 always retained pleasant recollections and great regard. 
 While the people there were, as a general rule, peaceful in 
 their conduct and constituted a prosperous and moral com- 
 munity, there were some of a different temperament and 
 disposition. Difficulties not uncommon in new settle- 
 ments sometimes arose, leading to unpleasant and danger- 
 
 * The Judge in his "Reminiscences" thus speaks of Marysville: "I 
 had seen it [Marysville] grow from a collection of tents with a few hun- 
 dred occupants to a town of substantial buildings, with a population 
 of from eight to ten thousand inhabitants. From a mere landing for 
 steamers it had become one of the most important places for business in 
 the interior of the State. When I left it was the depot of merchandise 
 for the country lying north and east of it; and its streets presented a 
 scene of bustle and activity. Trains of wagons and animals were con- 
 stantly leaving it with goods for the mines. Its merchants were gen- 
 erally prosperous; some of them were wealthy. Its bankers were men 
 of credit throughout the State. Steamers plied daily between it and 
 Sacramento, and stages ran to all parts of the country, and arrived every 
 hour. Two daily newspapers were published in it. Schools were opened 
 and fully attended. Churches of different denominations were erected 
 and filled with worshippers. Institutions of benevolence were founded 
 
31 
 
 ous collisions. The Judge avoided all such collisions as 
 much as possible, consistently with proper respect for him- 
 self. In his contest with the ruffian judge, Turner, referred 
 to above, he had laid down a line of conduct to pursue to- 
 wards all persons with whom he should come in contact, 
 that is, to treat them courteously, so far as such treatment 
 was possible with the maintainance of his own just rights 
 and a proper self-respect; but not to cross the streets or 
 turn a corner to get out of the way of any one because 
 of his threats of violence or disposition to quarrel to ex- 
 cuse always an unintentional injury, but not to permit 
 one to step on his toes by accident more than twice in 
 immediate succession. Seeking to avoid, but never 
 shrinking from a collision when forced on him, he 
 passed the seven years of his life in Marysville with but 
 few personal difficulties, and they ended in such a way 
 that their renewal was not earnestly sought by the as- 
 sailants. 
 
 He was received in Sacramento by its citizens with 
 consideration and courtesy, and resided there during the 
 whole period he held his position on the State bench, 
 which was over five years and a half, and during that 
 period received the same consideration and courtesy. 
 Whilst residing there he became acquainted with Miss 
 
 and supported. A provident city government and a vigorous police pre- 
 served order and peace. Gambling was surpressed, or carried on only in 
 secret. A theatre was built and sustained. A lecture-room was opened 
 and was always crowded when the topics presented were of public inter- 
 est. Substantial stores of brick were put up in the business part of the 
 city, and convenient frame dwellings were constructed for residences in 
 the outskirts, surrounded with plats filled with trees and flowers. On 
 all sides were seen evidences of an industrious, prosperous, moral, and 
 happy people, possessing and enjoying the comforts, pleasures, and lux- 
 uries of life. And they were as generous as they were prosperous. Their 
 hearts and their purses were open to all calls of charity. No one suffer- 
 ing appealed to them in vain. No one in need was turned away from 
 their doors without having his necessities relieved. It is many years 
 since I was there, but I have never forgotten, and I shall never forget, 
 the noble and generous people that I found there in all the walks of life." 
 
32 
 
 Sue Virginia Swearingen, a resident of San Francisco, and 
 they were married on the 2d of June, 1859, an union 
 which has been to him a constant source of happiness. 
 
 In the exchange of positions from the bar to the bench 
 Mr. Field left the sphere in which he was at home, and 
 which might have seemed most attractive to his ambition. 
 To an aspiring lawyer there is no fame so dear as that of 
 a great advocate. One who has always gained success in 
 this arena, who has proved his power over courts and 
 juries, is very reluctant to turn aside from this brilliant 
 career. He felt a natural regret that he could no more 
 take part in these exciting contests, even though it were 
 to exchange his place for the more calm and dignified 
 position of a judge. But in the condition of California 
 at that time there was perhaps no officer of the State so 
 much needed to strengthen law and order the founda- 
 tions of the Commonwealth as an upright, able, and cour- 
 ageous judge. The bar of California contained a number 
 of men of eloquence and ability, fluent speakers and de- 
 baters, ready in wit as in argument, who would run over 
 a weak judge or a timid one. They now found in the 
 seat of authority one whose clearness of mind and under- 
 standing of the great principles of law could not be con- 
 fused or deceived, and who, with the utmost courtesy of 
 manner, united a firmness and courage nowhere more 
 needed than on the bench. This combination of quali- 
 ties inspired respect for the judicial office and for the law 
 which it represented. Besides this, in California the laws 
 themselves were unsettled. Successive Legislatures had, 
 indeed, passed volumes of enactments, but the force of 
 these could only be determined by actual decisions in the 
 courts. It is well understood in law that the work of the 
 legislator is incomplete until the judge comes to apply 
 the acts which have been passed, and, in Scripture phrase, 
 "to 'give the meaning and the interpretation thereof." 
 The novelty of some of the cases presented for decision, 
 and their extreme difficulty, are such as only a lawyer can 
 
33, 
 
 understand. I do not feel competent to give an opinion 
 on the numerous complexities which he was to disen- 
 tangle, but will quote what was written of him afterwards, 
 when he was about to retire from that court, by one who 
 was for three years his associate in this work Judge 
 Joseph G. Baldwin : 
 
 "When he came to the bench the calendar was crowded with 
 cases involving immense interests, the most important questions, 
 and various and peculiar litigation. California was then, as now, 
 in the development of her multiform material resources. The 
 judges were as much pioneers of law as the people of set lement. 
 To be sure, something had been done, but m ich had yet to be 
 accomplished ; and something, too, had to be undone of that which 
 had been done in the feverish and anomalous period that had 
 preceded. It is safe to say that, even in the experience of new 
 countries, hastily settled by heterogeneous crowds of strangers 
 from all countries, no such example of legal or judicial difficul- 
 ties was ever before presented as has been illustrated in the his- 
 tory of California. There was no general or common source of 
 jurisprudence. Law was to be administered almost without a 
 standard. There was the civil law, as adulterated or modified by 
 Mexican provincialisms, usages, and habitudes, for a great part 
 of the litigation ; and there was the common law for another part, 
 but what that was was to be decided from the conflicting decisions 
 of any number of courts in America and England, and the va- 
 rious and diverse considerations of policy arising from local and 
 other facts. And then, contracts made elsewhere, and some of 
 them in semi-civilized countries, had to be interpreted here. Be- 
 sides all of which may be added that large and important inter- 
 ests peculiar to this State existed mines, ditches, &c. tor which 
 the courts were compelled to frame the law, and make a system 
 out of what was little better than chaos. 
 
 " When, in addition, it is considered that an unprecedented 
 number of contracts, and an amount of business without parallel, 
 had been made and done in hot haste, with the utmost careless- 
 ness; that legislation was accomplished in the same way, and pre- 
 sented the crudest and most incongruous materials for construc- 
 tion ; that the whole scheme and organi/ation of the government, 
 and the relation of the departments to each other, had to be ad- 
 5 
 
34 
 
 justed by judicial construction it may well be conceived what 
 task even the ablest jurist would take upon himself when he 
 assumed this office. It is no small compliment to say that Judge 
 Field entered upon the duties of this great trust with his usual 
 zeal and energy, and that he leaves the office not only with greatly 
 increased reputation, but that he has raised the character of the 
 jurisprudence of the State. He has, more than any other man, 
 given tone, consistency, and system to our judicature, and laid 
 broad and deep the foundation of our civil and criminal law. 
 The land titles of the State the most important and permanent 
 of the interests of a great Commonwealth have received from 
 his hand their permanent protection, and this alone should entitle 
 him to the lasting gratitude of the bar and the people." 
 
 The most important land cases in which he delivered 
 the opinion of the court while on the State bench are 
 mentioned in a note below.* A more particular notice 
 may be taken of one or two of them from the peculiarity 
 of the questions presented, such as the alleged ownership 
 b} T the State of the gold and silver in the lands of private 
 individuals, and the right of maintaining a possessory 
 action for lands, the ownership of which was in the 
 United States or in the State. 
 
 In 1853, in Hicks v. Bell (3 Cal. 220), the Supreme 
 Court had decided that the State, by virtue of her sover- 
 eignty, owned the mines of gold and silver within her 
 limits, wherever found, even in the lands of private indi- 
 viduals. This decision was founded upon the case of the 
 Queen v. Earl of Northumberland, reported in Plowderi, 
 where it was held that the King owned the mines and 
 ores of gold and silver found within the realm, in what- 
 soever land they existed. The Supreme Court of Cali- 
 fornia, without considering the reasons assigned in the 
 
 * Ferris v. Coover, (10 Cal. 589; ) Waterman v. Smith, (13 Cal. 373;) 
 Moore v. Wilkinson, (13 Id. 478;) Biddle-Boggs v. Merced Mining Co., 
 (14 Cal. 361-366;) Stark v. Barrett, (15 Cal. 362;) Mott v. Smith, (16 
 Cal. 534 ; ) Coryell v. Cain, (16 Id. 567; ) Teschemacher v. Thompson, (18 
 Cal. 20;) Leese v. Clark, (18 Cal. 565; 20 Cal. 411 ; ) Estrada v. Murphy, 
 (18 Cal. 268; ) Moore v. Smaw, and Fremont v. Fowler, (17 Cal. 200.) 
 
35 
 
 case in Plowden, adopted its conclusion, and, as the gold 
 and silver in the British realm were held to belong to 
 the Crown, it was concluded that such metals within the 
 limits of a State must belong, in this country, to the 
 State. " The State, therefore," said the court, " has solely 
 the right to authorize them the mines of gold and 
 silver to be worked, to pass laws for their regulation, to 
 license miners, and to fix such terms [and conditions as 
 she may deem proper, to the freedom of their use. In 
 the legislation upon this subject she has established the 
 policy of permitting all who desire it to work the mines 
 of gold and silver, with or without conditions, and she 
 has wisely provided that their conflicting claims shall be 
 adjudicated by the rules and customs which may be es- 
 tablished by bodies of them working in the same vicinity." 
 The miners, under this decision, assumed in many in- 
 stances the right to invade the lands of private proprie- 
 tors for the purpose of mining, as freely as they entered 
 upon the public lands. It was a part of the policy of 
 the State to encourage a development of the mines, and 
 they claimed the right to assist in that way in such de- 
 velopment under the sanction of that decision. The 
 trouble and vexation and spoliation arising from such 
 invasion led the court, in the subsequent case of Stoakes v. 
 Barrett (5 Cal. 37), to modify this ruling, and to hold 
 that, though the State was the" owner of the gold and 
 silver found in the land of private individuals as well 
 as in public lands, yet to authorize an invasion of pri- 
 vate property in order to enjoy a public franchise would 
 require more specific legislation than any resorted to. In 
 the case of Biddle-Boggs v. Merced Mining Company 
 (14 Cal. 279, 379), which came before the court in 1859, 
 the plaintiff brought an action for the recovery of land 
 covered by a patent of the United States, issued upon 
 the confirmation of a Mexican grant. The defendant 
 claimed the existence of a license to extract the gold and 
 silver found in the land notwithstanding the patent, 
 
36 
 
 under the decision of the State. The existence of this 
 license was repudiated by the court, and, in speaking of 
 it, Judge Field said: "There is gold in limited quantities 
 scattered through large and valuable districts, where the 
 land is held in private proprietorship, and, under this 
 pretended license, the whole might be invaded, and for 
 all useful purposes destroyed, no matter how little re- 
 munerative the product of the mining. The entry might 
 be made at all seasons, whether the land was under cul- 
 tivation or not, and without reference to its condition, 
 whether covered with orchards, vineyards, gardens, or 
 otherwise. Under such a state of things the proprietor 
 would never be secure in his possession, and without 
 security there would be little development, for the incen- 
 tive to improvement would be wanting. What value 
 would there be to a title in one man with the right of 
 invasion in the whole world? And what property would 
 an owner possess in mineral land, the same being in effect 
 to him poor and valueless Justin proportion to the actual 
 richness and abundance of its products? There is some- 
 thing shocking to all our ideas of the right of property 
 in the proposition that one man may invade the posses- 
 sions of another and dig up his fields and gardens, cut 
 down his timber, and occupy his land under the pre- 
 tense that he has reason to believe there is gold under 
 the surface, or, if existing, that he wishes to extract and 
 remove it." 
 
 In Moore v. Sin aw and Fremont v. Fowler (17 Cal. 
 199) the doctrine that the precious metals belonged to 
 the State by virtue of her sovereignty was fully ex- 
 ploded. In that case Judge Field thus defined what 
 was meant by the sovereignty of a State : " Sovereignty," 
 he said, " is a term used to express the supreme political 
 authority of an independent State or nation. Whatever 
 rights are essential to the existence of this authority are 
 rights of sovereignty. Thus the right to declare war, to 
 make treaties of peace, to levy taxes, to take private prop- 
 
37 
 
 erty for public uses termed the right of eminent do- 
 main are all rights of sovereignty, for they are rights 
 essential to the existence of supreme political authority. 
 In this country, this authority is vested in the people, and is 
 exercised through the joint action of their Federal and 
 State governments. To the Federal government is dele- 
 gated the exercise of certain rights and powers of sover- 
 eignty, and, with respect to sovereignty, rights and powers 
 are synonymous terms ; and the exercise of all other 
 rights of sovereignty, except as expressly prohibited, is 
 reserved to the people of the respective States, or v.ested 
 by them in their local governments. When we say, 
 therefore, that a State of the Union is sovereign, we only 
 mean that she possesses supreme political authority, ex- 
 cept as to those matters over which such authority is 
 delegated to the Federal government or prohibited to the 
 States ; in other words, that she possesses all the rights 
 and powers essential to the existence of an independent 
 political organization, except as they are withdrawn by 
 the provisions of the Constitution of the United States. 
 To the existence of this political authority of the State 
 this qualified sovereignty or any part of it the ownership 
 of the minerals of gold and silver found within her limits 
 is no way essential." 
 
 In Cory ell v. Cain (16 Cal. 572). the principle that had 
 been adopted in suits for mining claims, ascribing to the 
 first appropriator of mines, who followed up his discovery 
 by actual development of the mine, the better right to 
 the same., was held to apply to actions for the possession 
 of lands, the title of which was in the United States 
 or in the State, in advance of any legislation for its 
 use or sale. Thus, in this case, which was for the posses- 
 sion of land the title of which was assumed to be in this 
 condition, Judge Field said: "It is undoubtedly true, 
 as a general rule, that the claimant in ejectment must 
 recover upon the strength of his own title, and not upon 
 the weakness of his adversarv's, and that it is a sufficient 
 
answer to his action to show title out of him and in a 
 third party. But this general rule has, in this State, from 
 the anomalous condition of things arising from the pecu- 
 liar character of the mining and landed interests of the 
 country, been to a certain extent qualified and limited. 
 The larger portion of the mining lands within the State 
 belong to the United States, and yet that fact has never 
 been considered as a sufficient answer to the prosecution 
 of actions for the recovery of portions of such lands. 
 Actions for the possession of mining claims, water privi- 
 leges, and the like, situated upon the public lands, are 
 matters of daily occurrence, and if the proof of the para- 
 mount title of the government would operate to defeat 
 them, confusion and ruin would be the result. In de- 
 termining controversies between parties thus situated, 
 this court proceeds upon the presumption of a grant from 
 the government to the first appropriator of mines, water 
 privileges, and the like. This presumption, which would 
 have no place for consideration as against the assertion 
 of the rights of the superior proprietor, is held absolute 
 in all those controversies. And with the public lands 
 which are not mineral lands, the title as between citizens 
 of the' State, where neither connects himself with the 
 government, is considered as vested in the first possessor, 
 and to proceed from him." 
 
 The doctrine of this decision was of great benefit to the 
 occupants of the public lands in advance of measures by 
 the government for their sale. It preserved peace among 
 them and gave them protection until the government 
 should come forward and assert its superior title. 
 
 Numerous cases, besides those to which reference is had, 
 might be cited, not only concerning lands, but mortgages, 
 the powers and liabilities of municipal corporations, and 
 many other subjects.* As stated in the work to which 
 
 * Butte Canal and Ditch Co. v. Vaughan, (11 Cal. 153; ) Baker v. Baker, 
 (13 Id. 87;) Pierce v. Robinson, (13 Id. 116; ) Blanding t?. Burr, (13 Id. 
 343;) Koch v. Briggs, (14 Id. 256;) Noe v. Card, (14 Id. 577;) Norris v. 
 
39 
 
 Professor Pomeroy's sketch is prefixed, they related to 
 the claim of the State to five hundred thousand acres of 
 land donated by the act of Congress of September 4, 1841, 
 for purposes of internal improvement, and to its right to 
 dispose of the lands in advance of the public surveys; 
 to contracts of the State for the support and labor of its 
 convicts; to the power of the courts to compel by man- 
 damus officers of the State to do their duty ; to the con- 
 flicting rights of miners to the use of the water of streams 
 in the mountains for the purpose of mining ; to the right 
 of the wife to a share of the community property under the 
 law of Mexico and the law of California; to the title of 
 the city of San Francisco to lands within her limits as suc- 
 cessor of a former Mexican pueblo and under the grant 
 of beach and water lots by the State in 1851 ; to the 
 construction of wills; to the distinction between mort- 
 gages and deeds of trust ; and to a great number of other 
 subjects. A citation is given in the note of several of 
 these cases. 
 
 As might be supposed, the fame of such judicial decis- 
 ions could not be hid in a corner. They attracted marked 
 attention in the Pacific States, where many similar cases 
 were likely to arise for decision, and he was soon recognized 
 as the first judicial authority on that coast. So universally 
 was this conceded that when, in 1863, the increasing 
 importance of those States led Congress to pass a law 
 creating a new circuit on that coast, and a tenth Justice 
 on the Supreme Bench of the United States, the whole 
 
 Harris, (15 Id. 226; ) State of California v. McCauley, (15 Id. 429 ; ) Hol- 
 liday v. Frisbie, (15 Id. 630;) McCauley v. Brooks, (16 Id. 12; ) Koppi- 
 kus v. State Capital Commissioners, (16 Id. 249;) Brumagim v. Tilling- 
 hast, (18 Id. 266;) Doll v. Meador, (16 Id. 295 ;) Halleck v. Mixer, (16 
 Id. 575.) McCraken v. San Francisco, (16 Cal. 591 ; ) Grogan v. The Same, 
 (18 Cal. 608 ; ) Pimental v. The Same, (21 Cal. 359 ; ) Argenti v. The Same, 
 (16 Cal. 282 ; ) Zottman v. The Same, (20 Cal. 96; ) McMillan v. Richards, 
 (9 Cal. 365 ; ) Nagle v. Macy, (9 Cal. 426 ; ) Johnson v. Sherman, (15 Cal. 
 287;) Goodenow-y. Ewer, (16 Cal. 461;) Perry v. Wash burn, (20 Cal. 
 318.) 
 
40 
 
 delegation from the Pacific Senators and Representa- 
 tives, Democrats and Republicans went in a body to 
 President Lincoln and urged the appointment of Judge 
 Field. Others were mentioned, but no other name was 
 pressed by the bar of California for the position, for no 
 other man was thought so eminently fitted for it. He was 
 acordingly nominated by the President, and confirmed 
 unanimously by the Senate. His removal was a great 
 loss to the bench of California. "By this eve at," said Judge 
 Baldwin, "the State has been deprived of the ablest jurist 
 who ever presided over her courts." 
 
 At the time of his nomination for a Justice of the Su- 
 preme Court of the United States his name was pending 
 before the Senate upon a nomination for Circuit Judge of 
 the local circuit, on the coast, consisting only of the State 
 of California, and of which Hall McAllister had been the 
 judge, he having resigned. The creation of the new cir- 
 cuit on the coast did away with the existence of the local 
 circuit. 
 
 Judge Field's commission as a Justice of the Supreme 
 Court was dated on the 10th of March, 1863, but he did 
 not take the oath of office till the 20th of May. For this 
 there was a reason of convenience and a reason of senti- 
 ment. A great number of cases were pending in the 
 Supreme Court of California, in which he had heard the 
 arguments, and he desired to have them decided before 
 he left the bench. But there was also another reason. 
 The 20th of May was his father's birthday, and he thought 
 that the dear old patriarch, then living in New England, 
 who on that day would complete his eight-second year, 
 would be gratified to learn that on the same day his son 
 had become a Justice of the Supreme Court of the United 
 States. 
 
 As the court was not in session at the time he took the 
 oath of office, he was assigned to the Tenth Circuit by a 
 special designation of the President, made on the 22d of 
 June, 1863. A copy of that order is found in the 2d of 
 
41 
 
 Black's Reports at page 7. The circuit at that time con- 
 sisted of the States of California and Oregon. When 
 Nevada become a State it was added to the circuit. 
 When the act creating independent Circuit Judges was 
 passed, in 1869, each of the Justices was required to attend 
 a term in each district of his circuit once in every two 
 years. Up to the time of the creation of the Circuit 
 Court of Appeals, in 1891, Mr. Field attended, each year, 
 a term of every District Court in his circuit, when there 
 was any business requiring his consideration, after his ap- 
 pointment, with the exception of three summers, during 
 two of which he was absent in Europe, and during one 
 he was not in good health. Since the creation of the 
 Circuit Court of Appeals he has not been required, as he 
 construes the law, to attend at a Circuit Court in each 
 district. 
 
 Immediately after receiving his assignment he entered 
 upon the discharge of his duties, and, in October follow- 
 ing, he presided at a term of the Circuit Court of the 
 United States held at San Francisco, at which certain 
 parties Greathouse, Harpending, Rubery, and others 
 were brought to trial for treason against the United 
 States. It appeared that Harpending, a native of Ken- 
 tucky, and Rubery, a native of England, had contem- 
 plated fitting out a privateer, at the city of San Fran- 
 cisco, for the purpose of taking several of the mail 
 steamships plying between that port and Panama, and 
 other vessels. With this object ih view, Harpending had 
 gone across the country to Richmond, Virginia, and pro- 
 cured from Jefferson Davis, the President of the Con- 
 federate States, a letter of marque, authorizing him to 
 prey upon the commerce of the United States, and to 
 burn, bond, or take any vessel of their citizens. He also 
 received a letter of instructions directing him how to act, 
 and containing a form of bond in case any prizes taken 
 should be bonded. Upon his return to San Francisco he 
 and Rubery made arrangements for the purchase of such 
 6 
 
42 
 
 a vessel as would suit their purpose, but these arrange- 
 ments failed on account of the dishonor of the drafts 
 drawn for the purchase money by Rubery, and the con- 
 sequent want of funds. They also made a voyage to 
 Cerros Island for the purpose of examining into its fitness 
 as a depot and the rendezvous whereto take the Panama 
 steamers. In January or February of 1863, they made 
 the acquaintance of parties in San Francisco who fur- 
 nished the money and fitted out a vessel by the name 
 of J. M. Chapman, to cruise against the vessels and 
 commerce of the United States, and carry out their scheme 
 of privateering, and furnished it with arms and ammu- 
 nition for that purpose and obtained a suitable number 
 of men for a crew, the arms and ammunition being 
 packed in cases marked " oil mills and machinery," 
 Greathouse, one of the conspirators, giving out that 
 he was acting in the interest of the Liberal party of 
 Mexico. The plan of the cruise was to sail from San 
 Francisco on Sunday, March 15, 1863, to the Island of 
 Guadalupe, which lies some three hundred miles off the 
 coast of California, there land Harpendingand the fight- 
 ing men, who were to be shipped on the night of Satur- 
 day, March 14, thence to proceed to Manzanillo, there 
 to discharge such freight as might be taken, then re- 
 turn to Guadalupe and fit the schooner for privateering 
 purposes; then to proceed again to Manzanillo, where 
 the men were to be enrolled and their names inserted 
 in the letter of marque, a copy of which was then 
 to be forwarded to the government of the Confederate 
 States. Their plan was first to capture a steamer, bound 
 from San Francisco to Panama, on its arrival at Manza- 
 nillo; land its passengers on the coast of Mexico, and 
 with the steamer thus taken capture a second steamer. 
 Next, to seize a vessel from San Francisco, then engaged 
 in recovering treasure from the wreck of the steamer 
 Golden Gate; then to go to the Chincha Islands and 
 burn United States vessels there, and thence to the 
 
43 
 
 China Sea, and finally to the Indian Ocean and join Ad- 
 miral Semmes of the Confederate Navy. In pursuance 
 of this plan, and to prevent suspicion, the schooner was 
 put up for Manzanillo. A partial cargo was shipped on 
 board, and Law, one of the conspirators, cleared the vessel 
 at the custom-house for that port, signing and swearing 
 to a false manifest. On the night of March 14, in ac- 
 cordance with the plan arranged, all but one of the parties 
 went on board; fifteen persons, who had been employed 
 by Harpending as privateersrnen, were placed in the 
 hold in an open space left for them in stowing the cargo, 
 directly under the main hatch. The only person absent 
 was Law, who remained on shore, with the understand- 
 ing that he should be on hand before morning. It after- 
 ward appeared that he had become intoxicated and did 
 not get down to keep his engagement until after the 
 schooner had been seized. During the evening Rubery 
 had heard rumors that the vessel was to be overhauled, 
 and as the morning approached and Law did not appear, 
 he proposed sailing without him. At daylight, Law 
 being still absent, Libby, another of the conspirators 
 and acting captain, cast off the lines and began working 
 the schooner out from the wharf into the stream. After 
 the vessel had thus started she was seized by an officer 
 of the United States, and the parties were taken to Alca- 
 traz and confined. They were indicted by the grand 
 jury of the United States Circuit Court for treason, under 
 the act of Congress of July 17, 1862, for engaging in and 
 giving aid and comfort to the then existing rebellion 
 against the government of the United States. The trial 
 lasted several days and excited a great deal of interest, 
 being the first practical attempt to give assistance to the 
 rebellion by an armed expedition fitted out in one of the 
 ports of the United States. It gave the court an oppor- 
 tunity of defining what constituted treason and giving 
 aid and comfort to the enemy, and in what respect parties 
 leagued in with the Confederates brought themselves 
 
44 
 
 within the law. The parties claimed protection under 
 the letter of marque which they had obtained, but the 
 court instructed the jury that, if the parties indicted had 
 obtained a letter of marque from the President of the so- 
 called Confederate States, that fact did not exempt them 
 from prosecution in the tribunals of the country for the 
 acts charged in the indictment; that, if belligerent rights 
 had been conceded to the Confederate States and to their 
 citizens in arms as was claimed, such rights could not 
 be invoked by persons entering into States which had never 
 seceded, and secretly getting up hostile expeditions against 
 our government and its authority and laws ; that the local 
 and temporary allegiance which every one, citizen or alien, 
 owes to the government under which he, at the time, lives 
 is sufficient in such case to subject him to the penalties 
 of treason. The jury found the defendants guilty, and 
 they were sentenced to both fine and imprisonment. 
 One of the defendants Rubery was subsequently par- 
 doned by President Lincoln at the request of " John 
 Bright of England." The circumstances of the pardon 
 were peculiar. The conspiracy to seize the steamers 
 that plied between San Francisco and Panama, and 
 land the passengers on the coast of Mexico, greatly 
 incensed the people of San Francisco, for, in addition to 
 the loss of the large amount of treasure which each 
 steamer carried, the landing of passengers in that region 
 would have been the cause of the death of many of them. 
 The usual number of passengers in a steamer between 
 San Francisco and Panama, at that time, exceeded 
 a thousand. Some months after the conviction of. the 
 prisoners, Mr. Sumner, Senator from Massachusetts, re- 
 ceived a letter from Mr. Bright, asking for the pardon 
 of Rubery, whose family relatives resided in Birming- 
 ham, which he represented in Parliament; and the 
 Senator called upon Judge Field, who had then re- 
 moved to Washington and taken his seat on the bench 
 of the Supreme Court, to learn how such a pardon 
 
45 
 
 would be received in San Francisco. The Judge replied 
 that he thought it would produce much irritation and 
 angry feeling. Mr. Sumner then stated that, as it was 
 the request of Mr. Bright, who had always been the firm 
 friend of America in the war then existing, and given 
 his great influence to the support of our government, he 
 would be glad to secure the pardon desired. The Judge 
 then stated to Mr. Sumner that, if President Lincoln 
 would put in his pardon that it was granted at the re- 
 quest of "our good friend, John Bright, of England," 
 there would be little complaint made in San Francisco at 
 the act of clemency. Mr. Sumner so reported to Mr. Lin- 
 coln, and the pardon was granted, with that language 
 inserted. 
 
 The new appointment obliged the removal of Judge 
 Field from San Francisco to Washington, which now be- 
 . came his residence for the greater part of the year; but 
 as he was assigned to the new circuit, consisting of the 
 Pacific States, it was a part of his duty to return each 
 summer to hold a term of the Circuit Court in California, 
 Nevada, or Oregon, and sometimes in all of them. 
 
 When he ascended the bench of the Supreme Court of 
 the United States he took his seat in a company of illus- 
 trious men. Taney was then Chief Justice, and though 
 he had long passed his fourscore years, his mind did not 
 fail with age, and he still continued to preside with the 
 serenity of wisdom. He died the following year, and 
 was succeeded by Chief Justice Chase. There sat, as 
 Associate Justices, Wayne, Catron, Nelson, Grier, Clifford, 
 Swayne, Miller, and Davis. The questions which came 
 before this court were worthy of the dignity of such a 
 tribunal. As observed by a legal writer: 
 
 " Legal questions of a countless number and variety, affecting 
 private rights, and involving every department of jurisprudence 
 common law and equity, admiralty, maritime and prize law, patent 
 law and copyright, the civil law as embodied in Louisiana and 
 Mexican codes, statutes of Congress and of State Legislatures, 
 
46 
 
 everything except pure matters of probate may come before 
 that court for adjudication. Probably no other single tribunal 
 in the world is called upon to exercise a jurisdiction extending 
 over so many different subjects, and demanding from its judges 
 such a variety of legal knowledge. But the highest power of the 
 court, that incident of transcendent importance which elevates it 
 far above any other judicial tribunal, is its authority as a final 
 arbiter in all controversies depending upon a construction of the 
 United States Constitution, in the exercise of which exalted func- 
 tions, as the final interpreter of the organic law, it determines the 
 bounds beyond which neither the national nor the State govern- 
 ments may rightfully pass. It is the unique feature of our civil 
 polity, the element which distinguishes our political institutions 
 from all others, the crowning conception of our system, the very 
 keystone of the vast arch, upon which depend the safety and per- 
 manence of the whole fabric, that the extent and limits of the leg- 
 islative and executive powers, under the Constitution, both of the 
 nation and of the individual States, are judicially determined by 
 a body completely independent of all other departments, conser- 
 vative in its essential nature and tendencies, and inferior to no 
 authority except the deliberate organic will of the people expressed 
 through the elective franchise." 
 
 The vast conservative power of this department of our 
 Government, as well as the magnitude of the questions 
 submitted to its decision, was nevermore fully illustrated 
 than in the cases which grew out of the Civil War and the 
 legislation to which it gave rise. One or two examples 
 will illustrate the nature of these cases and of the ques- 
 tions involved. One of the first of these was the famous 
 Milligan Case. In October, 1864 six months before the 
 close of the war a man by the name of Milligan, a resi- 
 dent of Indiana, was arrested by order of the military 
 commander of the district and thrown into prison. In 
 the excitement of war the authorities were disposed to 
 make quick work of treason, proved or suspected. He 
 was almost immediately brought before a military com- 
 mission charged with conspiracy against the Government, 
 affording aid and comfort to rebels, inciting to insurrec- 
 
47 
 
 tion, disloyal practices, and violation of the laws of war, 
 and was found guilty and sentenced to death by hanging. 
 The proof may have been ample. No doubt he was a 
 " rebel sympathizer," and may have been very open and 
 bold in expressing his sympathy. But he was not a resi- 
 dent of a State in rebellion, nor was he in the military 
 or naval service or under military authority. There was 
 no rebellion in Indiana, or state of siege, and there was 
 no excuse for martial law. The courts were open, and of 
 whatever offence he had been guilty he could be tried 
 and punished according to law. But this did not satisfy 
 the eager spirit of many loyal men who would trample 
 down all opposition to the government of the Union as 
 they would trample down an army in the field. Even 
 the good President Lincoln was so far governed by these 
 considerations, that he approved the sentence and ordered 
 it to be carried into execution, and the man would have 
 been hung had not the Supreme Court stretched forth its 
 powerful hand to save him from the scaffold. When the 
 question was brought before that tribunal, the Justices 
 were unanimous in decreeing that the man who had been 
 so accused and condemned should be set at liberty. But 
 five of the nine Justices (of whom Judge Field was one) 
 went still farther, and in rendering their decision entered 
 a solemn declaration in support of civil authority as 
 against military tribunals, which is one of the most 
 memorable decisions in the annals of the country. Re- 
 ferring to this decision, in which he took part, Judge 
 Field pays a high tribute to one of his associates : 
 
 " The opinion was written by Mr. Justice Davis, and it will be 
 a perpetual monument to his honor. It laid down in clear and 
 unmistakable terms the doctrine that military commissions organ- 
 ized during the war, in a State not invaded nor engaged in rebel- 
 lion, in which the Federal courts were open and in the undisturbed 
 exercise of their judicial functions, had no jurisdiction to try a 
 citizen who was not a resident of a State in rebellion, nor a 
 prisoner of war, nor a person in the military or naval service; 
 
48 
 
 and that Congress could not invest them with any such power; 
 and that, in States where the courts were thus open and undis- 
 turbed, the guaranty of trial by jury contained in the Constitution 
 was intended for a state of war as well as a state of peace, and is 
 equally binding upon rulers and people at all times and under all 
 circumstances." 
 
 Hardly had the excitement of this case subsided when 
 the court was called upon to consider the famous Test 
 Oath Case. In the Constitution of Missouri just adopted 
 had been inserted a provision requiring, as a condition of 
 holding any office of honor, trust, or profit under the 
 State, or of filling any one of numerous positions pre- 
 viously open to all, that the party should take what was 
 called the Ironclad Oath that is, swear that he had never 
 had any thing to do with the rebellion, and had never 
 favored it openly or secretly. Not only did the oath ex- 
 tend to his acts, but to his secret motives and feelings. 
 It contained more than thirty distinct affirmations, and 
 seemed like a series of tests framed by the Inquisition to 
 search out a man's very soul, and to convict him in spite 
 of himself. If a man could not swear to each of these, 
 the constitution did not permit him to hold any of the 
 offices, trusts, or positions mentioned. He could not teach 
 school; he could riot practice law; he could not be a trus- 
 tee of a church or an officer of a corporation ; he could 
 not preach the Gospel; he could not administer the sacra- 
 ments. It is hard to believe, in this time of the world, 
 that such provisions could be found in the Constitution 
 or laws of any civilized country. They belong to the 
 Dark Ages rather than to the nineteenth century to 
 Spain and Russia rather than to free America. Yet 
 there they were, in the Constitution of Missouri. The 
 only apology for such provisions is that the Constitution 
 was framed under the angry excitement caused by the 
 Civil War. Their rigid enforcement was nevertheless at- 
 tempted. 
 
 A priest of the Roman Catholic church in that State, 
 Father Cummings, was indicted for the crime of teaching 
 
49 
 
 and preaching, as a priest and minister of that religious 
 denomination, without taking this oath, and convicted, 
 and sentenced to pay a fine of five hundred dollars, and 
 to be committed to jail until it was paid. The case was 
 appealed to the Supreme Court of Missouri, which affirmed 
 the judgment, and then, as the last resort, it was carried 
 to the Supreme Court of the United States. Of the nine 
 judges sitting on that tribunal, in that sanctuary of justice, 
 four voted to sustain that legislation. Judge Field gave 
 the casting vote against it, and wrote the opinion in burn- 
 ing words, by which those prescriptive provisions were 
 annulled, and declared to be beyond the power of a State 
 of the American Union to enact.* 
 
 *In his opinion the Judge said: "The oath thus required is. lor its 
 severity, without any precedent that we can discover. In the first place, 
 it is retrospective; it emhruces all the past from this day ; and, if taken 
 years hence, it will also cover all the intervening period. In its retro- 
 spective feature we believe it is peculiar to this country. In England 
 and France there have been test oaths, but they were always limited to 
 an affirmation of present belief, or present disposition towards the gov- 
 ernment, and were never exacted with reference to particular instances 
 of past misconduct. In the second place, the oath is directed not merely 
 against overt and visible acts of hostility to the government, but is in- 
 tended to reach words, desires, and sympathies, also. And, in the third 
 place, it allows no distinction between acts springing from malignant 
 enmity and acts which may have been prompted by charity or affection 
 or relationship. If one has ever expressed sympathy with any who were 
 drawn into the rebellion, even if the recipients of that sympathy were 
 connected by the closest ties of blood, he is as unable to subscribe to the 
 oath as the most active and the most cruel of the rebels, and is equally 
 debarred from the offices of honor or trust, and the positions and employ- 
 ments specified." 
 
 And again : " The provision of the Federal Constitution [against the 
 passage of an ex post facto law] intended to secure the liberty of -the 
 citizen, cannot be evaded by the form in which the power of the State is 
 exerted. If this were not so, if that which cannot be accomplished by 
 means looking directly to the end, can be accomplished by indirect 
 means, the inhibition may be evaded at pleasure. No kind of oppression 
 can be named, against which the framers of the Constitution intended to 
 guard, which may not be effected. Take the case supposed by counsel, 
 that of a man tried for treason and acquitted, or if convicted, pardoned; 
 the legislature may nevertheless enact that, if the person thus acquitted 
 
50 
 
 But we have no space to follow the cases growing out of 
 the war which sprung up in great number and variety : 
 such as cases of pardon and amnesty ; cases of confiscation 
 of property; cases involving the question of the legisla- 
 tive power of the insurgent States during the war, and 
 the extent to which the Confederate. government should 
 be regarded as a de facto government. The policy of the 
 Reconstruction Acts of Congress, by which the South was 
 divided into military districts, and placed under the 
 government of military officers, was odious in the extreme 
 to the Judge. He thought it served only to prolong the 
 irritations of the war, and to give up a whole section of the 
 country, which had already been swept with destruction, 
 to the anarchy of misrule. His controlling desire was 
 to have the government brought back to the rules and 
 methods of peace. In his view it was time that the reign 
 of arms should cease, and the reign of law and order 
 begin. 
 
 But the Reconstruction Acts were never brought to 
 the test of judicial decision, and from their nature could 
 not be. An attempt was made to obtain a decision 
 
 or pardoned does not take an oath that he never has committed the acts 
 charged against him, he shall not be permitted to hold any office of honor 
 or trust or profit, or pursue any avocation in the State. Take the case 
 before us ; the Constitution of Missouri, as we have seen, excludes, on 
 failure to take the oath prescribed by it, a large class of persons within 
 her borders from numerous positions and pursuits; it would have been 
 equally within the power of the State to have extended the exclusion so 
 as to deprive the parties who are unable to take the oath, from any 
 avocation whatever in the State. Take still another case: suppose that, 
 in the progress of events, persons now in the minority in the State should 
 obtain the ascendency, and secure the control of the government, nothing 
 could prevent, if the constitutional prohibition could be evaded, the 
 enactment of a provision requiring every person, as a condition of holding 
 any position of honor or trust, or of pursuing any avocation in the State, 
 to take an oath that he had never advocated or advised or supported the 
 imposition of the present expurgatory oath. Under this form of legis- 
 lation the most flagrant invasion of private rights, in periods of excite- 
 ment, may be enacted, and individuals, and even whole classes, may be 
 deprived of political and civil rights." 
 
51 
 
 of the court on them in the case of the State of Mississippi 
 v. President Johnson (4 Wall. 475). A motion was 
 made on behalf of the State of Mississippi for leave to 
 file a bill in its name praying the court perpetually to 
 enjoin and restrain Andrew Johnson, President of the 
 United States, and E. 0. C. Ord, general commanding in 
 the district of Mississippi and Arkansas, from executing 
 or in any manner carrying out the Reconstruction Acts. 
 
 The Attorney-General objected to the leave asked for 
 upon the ground that no bill which makes the President 
 a defendant and seeks an injunction against him to re- 
 strain the performance of his duties should be allowed 
 to be filed in the court, and this point was fully 
 argued. It was assumed by the counsel for the State 
 that the President in the execution of the Reconstruc- 
 tion Acts was required to perform a mere ministerial 
 duty, but the court said that in this assumption there 
 was a confounding of the terms ministerial and executive; 
 that the duty imposed on the President was in no just 
 sense ministerial, but was purely executive and political. 
 "An attempt," said the court, "on the part of the judical 
 department of the government to enforce the performance 
 of such duties by the President might be justly charac- 
 terized in the language of Chief Justice Marshall as ' an 
 absurd and excessive extravagance.' " It was true that 
 in the case before the court its interposition was not sought 
 to enforce action by the executive under constitutional 
 legislation, but to restrain such action under legislation 
 alleged to be unconstitutional. But the court said it was 
 unable to perceive that this circumstance took the case 
 out of the general principles which forbid judicial inter- 
 ference with the exercise of executive discretion. The 
 motion for leave to file a bill was, therefore, denied. 
 
 In the subsequent case of The State of Georgia v. Stanton 
 (6 Wall. 50), a bill in equity filed by the State to enjoin 
 the Secretary of War and other officers, who represented 
 the executive authority of the United States, from carry- 
 
52 
 
 ing into execution the Reconstruction Acts of Congress, 
 on the ground that such an execution would annul and 
 totally abolish the existing State government of the State, 
 and establish another and different one in its place in 
 other words, would overthrow and destroy the corporate 
 existence of the State, by depriving it of all the means 
 and instrumentalities whereby its existence might and 
 otherwise would be maintained was held to call for a 
 judgment upon a political question, and would not, there- 
 fore, be entertained by the court. 
 
 But though the Reconstruction Acts could not be 
 brought before the court for judicial decision, the Judge, 
 in company with the great majority of the legal profes- 
 sion of the country, viewed the acts as unconstitutional 
 and as retarding instead of advancing the peace of the 
 country. 
 
 In the famous Legal-tender Cases he stood with Chief 
 Justice Chase against the constitutional^ of the act of 
 Congress making the promises of the government a legal 
 tender for the payment of debts. He could not agree 
 with some of his associates that Congress possessed the 
 power to make the promise of a dollar the equivalent of 
 a dollar itself. Had that decision, which prevailed in the 
 court by a majority of one, been sustained, it was his 
 opinion that the people would have been spared the 
 financial uncertainty which followed the war, and for 
 a long period depressed the industries of the country. 
 Shortly after the decision, upon the addition of two new 
 Justices to the bench, the question was reopened, and the 
 former decision reversed by a majority of one. This he 
 thought a step backward, and a departure from the sound 
 S} 7 stem established by the Constitution. 
 
 In the Slaughter-house Cases of New Orleans he went 
 beyond the majority of the court, and gave a wider appli- 
 cation to the Fourteenth Amendment of the Constitution, 
 arguing that it was designed to prevent hostile and dis- 
 criminating legislation against any class of citizens 
 whites as well as blacks. 
 
53 
 
 The first section of the Fourteenth Amendment is as 
 follows: "All persons born or naturalized in the United 
 States, and subject to the jurisdiction thereof, are citizens 
 of the United States and of the State wherein they reside. 
 No State shall make or enforce any law which shall 
 abridge the privileges or immunities of citizens of the 
 United States; nor shall any State deprive any person of 
 life, liberty, or property without due process of law, nor 
 deny to any person within its jurisdiction the equal pro- 
 tection of the laws." The court held, in the case men- 
 tioned, that the 'clause, that "no State shall make or 
 enforce any law which shall abridge the privileges or 
 immunities of citizens of the United States," had refer- 
 ence to those privileges and immunities which belong to 
 persons as citizens of the United States as distinguished 
 from citizens of the State, and was of opinion that any 
 other construction would deprive the States of the means 
 of adopting measures which fell strictly within their 
 police powers. The minority of the court, on the con- 
 trary, held that the words "privileges and immunities" 
 meant those fundamental rights and privileges which 
 belong to the citizens of all free governments, and that 
 the constitutional amendment prevented their abridg- 
 ment by the States. The dissenting Justices found fault 
 with the law of Louisiana, under consideration in that 
 case, in that, in a district embracing eleven hundred and 
 fifty-four square miles, and a population of over two 
 hundred thousand inhabitants, it gave to a single corpo- 
 ration, an exclusive right, for twenty-five years, to carry 
 on one of the ordinary occupations of life, that of pre- 
 paring animal food for market. The minority objected 
 to the act in that it transcended the limits of the police 
 power of the State and asserted a right to farm out the 
 ordinary vocations of life. In its dissenting opinion, the 
 minority, speaking by Justice Field, said: "The State 
 may prescribe such regulations for every pursuit and 
 calling of life as will promote the public health, secure 
 
54 
 
 the good order, and advance the general prosperity of 
 society, but when once prescribed, the pursuit or calling 
 must be free to be followed by every citizen who is within 
 the conditions designated, and will conform to the regu- 
 lations. This is the fundamental idea upon which our 
 institutions rest, and unless adhered to in the legislation 
 of the country our government will be a republic only in 
 name. The Fourteenth Amendment, in my judgment, 
 makes it essential to the validity of the legislation of 
 every State that this equality of right should be re- 
 spected." * 
 
 *In a subsequent case, Mr. Justice Field, speaking of this case, said : 
 "The oppressive nature of the principle upon which the monopoly here 
 was granted will more clearly appear if it be applied to other vocations 
 than that of keeping cattle and of preparing animal food for market to 
 the ordinary trades and callings of life to the making of bread, the 
 raising of vegetables, the manufacture of shoes and hats and other arti- 
 cles of daily use. The granting of an exclusive right to engage in such 
 vocations would be repudiated in all communities as an invasion of com- 
 mon right. The State undoubtedly may require many kinds of busi- 
 ness to be carried on beyond the thickly-settled portions of a city, or 
 even entirely without its limits, especially when attendant odors or 
 noises affect the health or disturb the peace of the neighborhood; but 
 the exercise of this necessary power does not warrant granting to a par- 
 ticular class or to a corporation a monopoly of the business thus removed. 
 It may be that, for the health or safety of a city, the manufacture of 
 beer or soap, or the smelting of ores, or the casting of machinery should 
 be carried on without its limits, yet it would hardly be contended that 
 the power thus to remove the business beyond certain limits would au- 
 thorize the granting of a monopoly of it to any one or more persons. 
 And if not a monopoly in business of this character, how can a monopoly 
 for like reasons be granted in the business of preparing animal food for 
 market, or of yarding and sheltering cattle intended for slaughter ?" And 
 again: "The common business and callings of life, the ordinary trades 
 and pursuits, which are innocuous in themselves, and have been fol- 
 lowed in all communities from time immemorial, must therefore be free 
 in this country to all alike upon the same conditions. The right to pur- 
 sue them, without let or hindrance, except that which is applied to all 
 persons of the same age. sex, and condition, is a distinguishing privilege 
 of citizens of the United States, and an essential element of that free- 
 dom which they claim as their birthright." Butchers' Union Co. v. Cres- 
 cent City Co., Ill U. S. 756, 757. 
 
55 
 
 In the case of protection of sealed matter in the mails, 
 he held that letters and sealed packages subject to letter 
 postage in the mail can be opened and examined only 
 under warrant, issued upon oath or affirmation, particu- 
 larly describing the thing to be seized, the same as is 
 required when papers are subjected to search in one's own 
 household ; that the constitutional guaranty of the right 
 of the people to be secure in their papers against unrea- 
 sonable searches and seizures extends to their papers 
 thus closed against inspection wherever they may be. 
 But the law which thus sacredty guards private corre- 
 spondence is abused and perverted when made a shelter 
 and screen for vice and crime; and he points out in what 
 way, consistently with the constitutional guaranty, the 
 senders through the mails of obscene books and prints 
 may be reached and punished. 
 
 Upon the question of the validity of the Thurman Act, 
 relating to the Pacific railroads, he contended for the 
 inviolability of contracts; that an engagement once made 
 by a State or by an individual is sacred, even though it 
 be difficult of fulfilment; that it is the mark of a just 
 government, as of a just man, that it "sweareth to its 
 own hurt and changeth not." * 
 
 *In his dissenting opinion the Judge said: "Where contracts are 
 impaired, or, when operating against the Government, are sought to be 
 evaded and avoided by legislation, a blow is given to the security of all 
 property. If the Government will not keep its faith, little better can 
 be expected from the citizen. If contracts are not observed, no property 
 will, in the end, be respected ; and all history shows that rights of per- 
 son are unsafe where property is insecure. Protection to one goes with 
 protection to the other; and there can be neither prosperity nor progress 
 where this foundation of all just government is unsettled. 'The mo- 
 ment,' said the elder Adams, * the idea is admitted into society that 
 property is not as sacred as the laws of God, and that there is not a force 
 of law and public justice to protect it, anarchy and tyranny commence.' 
 I am aware of the opinion which prevails generally that the Pacific 
 Railroad corporations have, by their accumulation of wealth and the 
 numbers in their employ, become so powerful as to be disturbing and 
 dangerous influences in the legislation of the country ; and that they 
 should, therefore, be brought by stringent measures into subjection to 
 
56 
 
 As stated by the legal writer from whom we have al- 
 ready quoted: The principles which underlie all Judge 
 Field's work in interpreting the Constitution, and to which 
 he has constantly adhered, whether acting with the court 
 or dissenting from it, "are summed up in two ideas: 
 First, the preservation from every interference or invasion 
 by each other of all the powers and functions allotted to 
 the National Government and the State governments; 
 and, second, the perfect security and protection of private 
 rights from all encroachments, either by the United States 
 or by the individual States. These two ideas he has 
 steadily kept in view, and has made the basis of his de- 
 cisions. He has demonstrated that a constant and firm 
 maintenance of the powers justly belonging to the Federal 
 government is not incompatible with an equally firm 
 upholding of the powers entrusted to the States, with an 
 undeviating adherence to the sacred doctrine of local self- 
 government, and with zealous protection of private rights, 
 because all, in fact, rest upon the same foundation." 
 
 Judge Field has now [1892] been nearly thirty years 
 on the bench of the Supreme Court of the United States, 
 and in length of service is the senior Judge. In the de- 
 cision of the multitude of cases which have come up from 
 year to year, he has taken his full share of labor and re- 
 sponsibility, sometimes writing the opinion of the court, 
 and sometimes dissenting from its views. These opinions, 
 among other things, as already stated, relate to test oaths, 
 military commissions, confiscations, pardons and amnesty, 
 legal- tender notes, legislative power of the insurgent 
 States during the civil war, protection of sealed matters 
 in the mails from inspection by officials, and, it may be 
 added, also, to the power of the State to control compen- 
 
 the State. This may be true; I do not say that it is not; but, if it is, it 
 furnishes no justification for the repudiation or evasion of the contracts 
 made with them by the Government. The law that protects the wealth 
 of the most powerful protects also the earnings of the most humble ; and 
 the law which would confiscate the property of the one would in the 
 end take the earnings of the other." 
 
57 
 
 sation for the use of private property, the relation between 
 the General and State governments, the powers and liabil- 
 ities of corporations, interstate commerce, restraints upon 
 taxation, trust character of directors of corporations, and 
 the use of running waters on public lands, and to a great 
 variety of other subjects. It would require a volume to 
 give even a condensed history of these cases. The most 
 important of them in which opinions were delivered by 
 him for the court, as well as those in which he dissented 
 from its views, are mentioned in a note below.* 
 
 * Those in which he delivered the opinion of the court: Cases on the 
 invalidity of test-oaths for past conduct, Cummings v. Missouri, 4 Wall. 
 277, and Ex parte Garland, 4 Wall. 333; cases relating to interstate com- 
 merce, and the power of the State concerning it, Wei ton v. Missouri, 91 
 U. S. 275; County of Mobile v. Kimball, 102 U.S. 691 ; Sherlock v. Ailing, 
 93 U. S. 99; Escanaha v. Chicago, 107 U. S. 678; Miller v. Mayor of New 
 York, 109 U.S. 385; Cardwell v. American Bridge Co., 113 U. S. 205 ; 
 Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; and Htise v. Glover, 
 
 119 U. S. 543; cases on questions growing out of the civil war, such as 
 the protection of officers and men of the United States Army in the 
 enemy's country against civil proceedings for damages, the attempt of 
 the Confederate States to confiscate debts due the citizens of loyal States, 
 and the extent of liability of the United States for property taken or 
 destroyed, Williams v. Brufify, 96 U. S. 176; Coleman v. Tennessee, 97 
 U.S. 509; Dow v. Johnson, 100 U.S. 158; Pacific Kailroads v. United 
 States, 120 U. S. 227; and the Tarble Case, 13 Wall. 397; cases on con- 
 stitutional questions particularly affected by the Fourteenth Amendment, 
 Barbier v. Connolly, 113 U. S. 27; Soon Hiug v. Crowley, 113 U. S. 703; 
 Missouri Pacific Kailway Co. v. Humes, 115 U. S. 512; Hayes v. Missouri, 
 
 120 U. S. 68; cases on State, city, and county bonded indebtedness. 
 United States v. New Orleans, 98 U. S. 381 ; Hartman v. Greenhow, 102 
 U. S. 672; Pilsbury v. Louisiana, 105 U. S. 278; Broughton v. Pensacola, 
 93 U. S. 266; cases on patents of the United States upon conh'rmed Mex- 
 ican grants and for public lauds and mining claims, Beard v. Federy, 3 
 Wall. 478 ; Smelting Co. v. Kemp, 104 U. S. 636 ; Steel v. Smelting Co., 106 
 U. S. 447; cases on mining claims and water rights, Jeuuison v. Kirk, 98 
 U.S. 453; Atchisou v. Peterson, 20 Wall. 507; Basey v. Gallagher, 20 
 Wall. 670; cases on the power of a State to prescribe the conditions on 
 which foreign corporations may do business within its limits, Paul v. 
 Virginia, 8 Wall. 168, and Pembiua Consolidated Silver Mining Co. v. Penn- 
 sylvania, 125 U.S. 181 ; on proceedings in State courts against non-resident 
 debtors, Peunoyer v. Neff, 95 U.S. 714; on the invalidity of contracts 
 for the use of influence with public officials, Oscauyau v. Arms Co., 103 
 
 8 
 
58 
 
 From the time Judge Field went on the Federal bench 
 up to the creation of Circuit Courts of Appeals, he held 
 court in his circuit, consisting of California, Oregon, and 
 Nevada, every year except three, two of which he was 
 absent from the country, and during one of which he 
 was not in good health, although since 1869 he was only 
 required by law to sit in each district of the circuit once 
 
 U. S. 261 ; on Federal jurisdiction over lands used for public purposes of the 
 United States government within the States, Fort Leavenworth R. R. Co. t. 
 Lowe, 114 U.S. 525, and Leavenworth and Chicago and Rock Island R. R. 
 Co. v. McGlinn, Ibid. 543 ; on the removal of a cloud upon title by a suit 
 in equity of a party in possession, Holland v. Challen, 110 U. S. 15; on 
 the responsibility of railroad corporations to their employe's for injuries 
 inflicted in consequence of negligence of train conductors, Chicago and 
 Milwaukee Railroad Co. v. Ross, 112 U. S. 377; on protection of sealed mat- 
 ter in the mails, Ex parte Jackson, 96 U. S. 727; on the exemption of a pas- 
 senger in a public conveyance from liability for the negligence of the 
 driver, Little v. Hackett, 116 U. S. 366; on the power to take private 
 property for public use in the exercise of the right of eminent domain as 
 an incident of sovereignty belonging to every independent government 
 and existing in the Government of the United States, United States 
 v.Jones, 109 U. S. 513; on construction of certain treaties, Whitney v. 
 Morrow, 112 U. S. 693; Whitney v. Robertson, 124 U. S. 191; on the 
 Hotimas Spanish grant and construction of certain statutes, Slidell v. 
 Grandjean,lll U. S. 412; on the ownership by the State, on her admission 
 to the Union, of the lands under tide-waters within her limits not pre- 
 viously granted, Weber v. Harbor Commissioners, 18 Wall. 57; on the 
 right of the States to swamp and overflowed lands within their limits, 
 Wright v. Roseberry, 121 U. S. 488; on the power of Congress to cancel 
 a treaty, and the circumstances which may justify such action, The 
 Chinese Exclusion Case, 130 U. S. 581 ; on the power of Congress to invest 
 consular tribunals, in other than Christian countries, with the power to 
 try and punish criminal offences there committed by citizens of the United 
 States, In re Ross, 140 U.S. 453; in San Francisco v. Le Roy, 138 U. S. 
 656, as to the right of the city, as the successor of the pueblo, to tide- 
 lands within its confirmed boundaries, (see also concurring opinion in 
 Knight v. U. S. Land Association, 142 U. S. 189;) and in Bardon v. 
 Northern Pacific Railroad Co., 145 U. S. 535, on the segregation from 
 the public of lands within the limits of a grant, by reason of a prior 
 pre-emption claim, and the effect of the cancellation of the pre-emption 
 right before location of the grant; on contracts between two citizens 
 of the United States, residing in loyal States, respecting cotton owned 
 by one of them in the insurgent States, Briggs v. United States, 143 
 U. S. 346 ; on the power of a State to exact from parties, before they 
 
59 
 
 every two years. His circuit, as now constituted, embraces 
 six States. Besides California, Oregon, and Nevada, the 
 States of Washington, Idaho, and Montana have been 
 added to it. In going and coming, and in his circuit, he 
 has always travelled nine thousand miles a year, and 
 sometimes a much greater distance, the expense of which, 
 since 1871, he has been obliged to bear himself. When 
 
 can practice medicine, a degree of skill and learning in that profession, 
 upon which the community employing their services may confidently 
 rely, and to require them to obtain a certificate or license from a board 
 or other authority competent to judge in that respect, Dent v. West Vir- 
 ginia, 129 U. S. 114; on the liability for damages accruing by allowing 
 cattle to run at large and spread disease, Kimmish v. Ball, 129 U. S. 217; 
 on the validity of legislation imposing damages double the value of the 
 stock killed by a railroad company on a road where the corporation had 
 a right to erect a fence and failed to do so, Minneapolis & St. Louis Kail- 
 way Co. v. Beck with, 129 U. S. 26; on the liability of a party indicted 
 in one State escaping or carried to another State to be indicted and tried 
 in the latter State for an offence there committed without being sur- 
 rendered to the former State, Mahon v. Justice, 127 U. S. 700; involving 
 a question of boundary between two States, Indiana v. Kentucky, 136 
 U. S. 479; upon the title of owners of land bordering on navigable 
 rivers, above the ebb and flow of the tide, to the middle of the stream, 
 Packer v. Bird, 137 U. S. 661 ; upon the taxation by a State of the 
 franchise or business of a corporation incorporated under the law of 
 the State or of another State and doing business within it, Home In- 
 surance Company v. New York, 134 U.S. 594, and Maine v. Grand Trunk 
 R. R. Co., 142 U. S. 217, and Horn Silver Mining Company v. New York 
 State,'143 U. S. 305 ; on the effect of a conveyance of property confiscated 
 under the law of the United States, accompanied with a deed of warranty 
 from the offending party after his release by pardon of the offences for 
 which the confiscation was had, Jenkins v. Collard, 145 U. S. 547, on 
 the validity of imposing a burden of a public service upon a corporation 
 in consequence of its creation and of the exercise of privileges obtained 
 at its request, Charlotte, Columbia and Augusta R. R. Co. v. Gibbes, 142 
 U. S. 386; on the distinguishing feature of a suit in admiralty, in that 
 the vessel or thing proceeded against is itself seized or impleaded as a 
 defendant, whereas, by the common law process, property is reached only 
 through a personal defendant, and then only to the extent of his title, 
 in the Moses Taylor, 4 Wall. 411; and on the inapplicability of the doc- 
 trine of the common law as a test of the legal navigability of waters in 
 this country; here the ebb and flow of the tide not constituting, as in 
 England, such test, in the Daniel Ball, 10 Wall. 557. 
 
 Cases in which Judge Field has dissented from the views of the court: 
 
60 
 
 the circuit was originally created an allowance was made 
 by law of one thousand dollars a year for his travelling 
 expenses, but in 1871 this allowance was cut off. 
 
 In his circuit he has been called upon to pass upon 
 numerous questions of great moment. His most import- 
 ant opinions there decided are in the cases stated in a note 
 below.* 
 
 The Slaughter-house cases, 16 Wall. 83; (see also his concurring opinion 
 in Butchers' Union Co. v. Crescent City Co., Ill U.S. 754;) the Legal- 
 Tende cases, 12 Wall. 634, and 110 U. S. 451; the Confiscation cases, 11 
 Wall. 314 and 349; the Sinking Fund cases, involving the validity of the 
 Thnrman Act, 99 U. S. 750; the Elevator case, Munn v. Illinois, 94 U. S. 
 136, involving the validity of legislation fixing prices for the use of private 
 property; the Virginia Judge case, Ex parte Virginia, 100 U.S. 340; the 
 Provost Marshal case, Beckwith v. Bean, 98 U.S. 285; the Louisiana 
 Debt cases, Louisiana v. Juiiiel, 107 U. S. 728; the Virginia Debt case, 
 Antoni v. Greenhow, 107 U.S. 784; and in the Attorney's case, Ex parte 
 Wall, 107 U. S. 290; the telegraph case, Pensacola Telegraph Co. v. West- 
 ern Union Telegraph Co., 96 U.S. 14; the Spring Valley water case, 
 Spring Valley Water Works v. Schottler, 110 U. S. 356; in the Chinese 
 Restriction case, Chew Heong v. United States, 112 U. S. 536; in the case 
 of the Bridge Co. v. United States, 105 U. S. 470, against the absolute 
 control by the United States of bridges constructed by autbority of a 
 State on navigable waters within its limits; their control, as contended, 
 limited to the protection and improvement of the free navigation of those 
 waters; in Powell v. Pennsylvania, 127 U. S. 678, against the asserted 
 power of the State to prohibit the right of the individual to manufacture 
 a healthful article of food; in McAllister v. United States, denying the 
 p >wer of the President to remove from office a judge of a territory during 
 his term prescribed by Congress, (141 U.S. 174;) in Boyd v. The State 
 of Nebraska and Thayer, against the jurisdiction of the Supreme Court 
 to determine a disputed question as to the right to the governorship of a 
 State, (143 U. S. 182;) in O'Neil V.Vermont, against the Supreme Court, 
 denying its jurisdiction in a case involving a question of interstate com- 
 merce, and where the punishment imposed was cruel and unusual, (144 
 U.S. 337;) and in Iron Silver Mining Co. v. Mike and Starr Gold and 
 Silver Mining Co., (143 U. S. 394,) against the definitions made of " known 
 lodes or veins "of gold and silver. 
 
 * In the Pueblo case of the City of San Francisco v. United States, (4 
 Sawyer, 553,) involving its claim to four square leagues of land, under 
 the laws of Mexico, on the peninsula on which the city is situated ; in 
 Montgomery v. Bevans, (1 Id. 653,) upon the power of alcaldes of San 
 Francisco to make grants of land within the city limits, and upon the 
 presumption of life during the abseuce of a party unheard from for seven 
 
61 
 
 Of the estimate which should be placed upon the judi- 
 cial character and labors of Judge Field, we have the 
 opinion of Professor Pomeroy, contained in an intro- 
 ductory sketch to an account of his legislative and judi- 
 cial work, published in 1881. No one was more compe- 
 tent, both from his professional standing, eminent abili- 
 ties, and thorough knowledge of the opinions and labors 
 of Judge Field, to pass judgment upon his judicial 
 character. After the Judge had been eighteen years 
 on the bench of the Supreme Court of the United States, 
 Professor Pomeroy wrote an extended review of his 
 opinions and judicial character, from which the following 
 is taken : 
 
 "It would be a comparatively easy task for one who was per- 
 sonally a stranger to Judge Field, and was only acquainted with 
 him through his reported decisions, to form a correct estimate of 
 
 years ; In re Ah Fong, (3 Id. 144,) upon the exclusion of foreign emigrants 
 by commissioners for previous had moral character or for inability to sup- 
 port themselves under a law of California; in Patterson v. Tatum, (3 Id. 
 164,) on the grant by Congress to the State of 500,000 acres and the effect of 
 selections from the land under the legislation of the State ; in the Eureka 
 Mining case, (4 Id. 302,) relating to mining veins and lodes of gold and 
 silver; in United States v. Flint and v. Throckmorton, (4 Id. 42,) involving 
 a consideration of the validity of decrees of the special tribunals in Mexi- 
 can land cases, and the grounds upon which such decrees can be im- 
 peached ; in Hardy v. Harbin, (4 Id. 536,) showing that the holder of the 
 legal title to land acquired by fraud may be converted into a trustee of 
 the true owner and compelled to convey the title to him ; in the Tax 
 Cases of the County of San Mateo v. Southern Pacific Railway Company, 
 (8 Id. 238,) and the Santa Clara Railroad Tax Case, (9 Id. 165,) involv- 
 ing a consideration of the effect of the Fourteenth Amendment in 
 requiring equality and uniformity in the assessment of property of rail- 
 roads as well as of individuals; in the case of the Pacific Railway 
 Commission, (12 Id. 559,) involving the question of the right of Con- 
 gress to inquire into the private affairs of the Pacific Railway Com- 
 panies in matters not connected with railways; in the case of Denny v. 
 Dodson, involving the construction of the Northern Pacific Railway Acts, 
 (13 Id. 68 ;) in the case of Sharon's Executors v. David S. Terry and 
 Sarah Althea Terry, his wife, reviving a suit in equity, abated by the 
 death of the complainant, for the purpose of executing a final decree 
 which had been rendered in such suit, (13 Id. 387;) and in the Terry 
 Contempt Case, (Id. 440.) 
 
62 
 
 his judicial character. Its important elements, those which dis- 
 tinguish him from the other judges, and which constitute the 
 special grounds of his success and of his power, stand out in clear- 
 cut lines upon all the creations of his official labors. He has 
 stamped himself his intellectual and moral features deeply into 
 all the work which he has done. From my own personal ac- 
 quaintance with him, but chiefly from a careful study of all his 
 important judgments rendered both while a member of the State 
 Court, and after his transfer to the National Judiciary, I have 
 arrived at the following conclusions, which I unhesitatingly sub- 
 mit as the most striking and distinctive elements of his judicial 
 character and work. They are undoubtedly the very qualities 
 which, in our system of jurisprudence, steadily developing through 
 the creative functions of the courts, mark the ideal judge the 
 qualities which have been held by, and which admit him to be 
 ranked with, the very foremost class of jurists who have set upon 
 
 the English and American bench 
 
 " In the first and lowest place, he possesses an ample legal 
 learning. It cannot be pretended that he has that exact knowl- 
 edge of technical common-law dogmas which distinguished such 
 a judge as Lord Kenyon or Baron Parke, or of the intricate 
 minutiae of real estate and conveyancing law which alone gave 
 Lord Eldon his pre-eminence among English chancellors a sort 
 of knowledge which with a certain pedantic school has passed 
 for the highest legal learning, but which is worse than useless 
 rubbish for the American judge of to-day. Judge Field's learn- 
 ing, as a distinctive feature of his intellect, is rather the capacity 
 in an extraordinary degree to acquire the new knowledge made 
 necessary by the demands of his position the capacity to investi- 
 gate sources and systems of jurisprudence hitherto unknown, to 
 sift truth from error, to extract whatever there is of living prin- 
 ciple, and to appropriate and to assimilate the materials thus ob- 
 tained with the State or National law which he is administering. 
 He brought to the bench a mind stored with the doctrines of the 
 common law and of equity, great intellectual vigor, and a most 
 remarkable capacity for rapid and sustained mental labor. The 
 exigencies of his position required him to investigate the Spanish- 
 Mexican Codes, which furnished the authoritative rules concern- 
 ing 'pueblos,' with all the municipal and proprietary rights 
 flowing therefrom and concerning the Mexican governmental 
 
63 
 
 grants to private owners, and also to create general principles 
 and doctrines for which the common law and equity of England 
 and the United States afforded very few if any analogies. It is 
 enough to say that his learning, his intellectual power, and his 
 thorough and accurate study of foreign systems were always ade- 
 quate to meet the requirements of the occasion 
 
 " The second and much more important element which I shall 
 notice, is his devotion to principle that quality of intellect which 
 leads him, on all judicial occasions, to seek for, apprehend, and 
 appreciate principles, rather than to rest satisfied with mere rules, 
 although sustained by precedent, and to apply firmly these prin- 
 ciples where found in all their relations and consequences to 
 place his decisions upon the solid basis of fundamental and uni- 
 versal principles, rather than upon arbitrary dogmas. This quality 
 gives a most marked unity, consistency, and universality to his 
 decisions, not only to those connected with some single branch of 
 the law, but to those belonging to any and all departments. His 
 adjudications generally will thus be found related to each other, 
 harmonious, corresponding parts of one completed system. This 
 method of adhering to principle as the sure and constant guide 
 in ascertaining, interpreting, and applying the law is the im- 
 mediate and efficient cause of that most remarkable consistency 
 which runs through all his judicial utterances. I shall have 
 occasion to speak more in detail of this special feature of con- 
 sistency, when describing his judgments upon questions of consti- 
 tutional law ; and*although it appears, perhaps in the most striking 
 manner, in that class of cases, it is still a distinguishing mark of 
 all his work. The power of discovering, apprehending, and ap- 
 plying principles is the highest intellectual faculty of the ideal 
 judge; it takes the place of, and is universally superior to, any 
 amount of mere learning; it is the very essence of the best learn- 
 ing which can be employed in the judicial station. ... As 
 has already been said, many of his judgments, pronounced while 
 in the State court, relate to matters of purely local interest, such 
 as the peculiar land titles of California, the Mexican pueblos, the 
 ownership of gold and silver in situ, mining and water rights, etc.; 
 and this class of cases undoubtedly required for their decision the 
 greatest amount of original investigation, tracing of obscure 
 analogies, and creative power, and expenditure of intellectual 
 force which can hardly be appreciated by the profession in other 
 
64 
 
 parts of the country who are unfamiliar with the intricate ques- 
 tions involved. On the other hand, many of his opinions deal 
 with subjects of universal interest, as, for example, the powers and 
 liabilities of municipal and of private corporations, the nature of 
 mortgages, the validity of Sunday laws, etc. These judgments have 
 uniformly been regarded by the profession and courts of other States, 
 and by text-writers, as having the highest authority. . . . 
 
 "The third distinctive element requiring special notice is what 
 may appropriately be called his creative power. By this designa- 
 tion I mean his ability in developing, enlarging, and improving 
 the law, by additions of new material, whether this material be 
 borrowed from foreign sources or created by means of the legisla- 
 tive function belonging to all superior courts. The intellectual 
 attributes referred to in this and in the preceding head are en- 
 tirely distinct; they may co-exist in the same individual, or the 
 first may be possessed in a high degree without the other. The 
 first deals with the jurisprudence as it has already been estab- 
 lished, investigating, examining, and expounding or applying its 
 settled principles and doctrines; the other is creative and legisla- 
 tive, employed in constructing new law, or reforming and expand- 
 ing that which already exists Judge Field's peculiar 
 
 talent as a legal reformer was shown in his purely legislative work 
 done while a member of the State Assembly, and described in a 
 previous division of this essay. He exhibited the same power 
 and tendency upon the bench. They were shown in his constant 
 rejection of ancient common-law dogmas, no matter how firmly 
 settled upon authority, which had become outgrown, obsolete, and 
 unfitted for the present condition of society, and in the substitu- 
 tion of more just, consistent, and practical doctrines adapted to 
 the needs of our own country and people. I merely mention, as 
 sufficient examples of this class, his decisions upon the nature and 
 effect of mortgages, and those concerning the ownership of gold 
 and silver while in the soil, by which he boldly swept away the 
 common-law rules on the subject, with all the absurd reasoning 
 upon which they had been founded 
 
 "The fourth element of his judicial character is his fearlessness. 
 As the power to apprehend and apply principles is the highest 
 intellectual quality, so is a true fearlessness the highest moral at- 
 tribute of the ideal judge. No other American judge has so often 
 been called upon to face popular opposition in the decision of 
 
65 
 
 controversies involving important legal questions, in which large 
 masses of the population were interested, and on one side of which 
 all their passions, prejudices, and selfish motives were fully 
 aroused, and often were raging in the fiercest manner; and no 
 other judge has more frequently and faithfully discharged his 
 sacred duty of deciding according to his own enlightened convic- 
 tions of law and justice, in complete oblivion of all external forces, 
 and iu absolute fearlessness of the consequences. He has neither 
 courted personal popularity nor shrunk from unpopularity by 
 means of his decisions. He could well apply to himself the mem- 
 orable and noble language which Lord Mansfield used from the 
 bench when made the object of a violent clamor on account of 
 his decisions: 'I will do my duty uuawed. What am I to fear? 
 The lies of calumny carry no terror to me. I trust that my 
 temper of mind, and the color and conduct of my life, have given 
 me a suit of armor against these arrows. ... I wish popu- 
 larity, but it is that popularity which follows, not that which is 
 run after; it is that popularity which, sooner or later, never fails 
 to do justice to the pursuit of noble ends by noble means.' 
 
 " No friend of Judge Field can estimate his intellectual and 
 moral fearlessness too highly ; no enemy can deny, or ever has 
 denied, that he possessed it. He has repeatedly encountered, and 
 been compelled to endure, the bitter hostility of extreme partisans 
 belonging to the most opposite schools of opinion; of extreme 
 Republicans and extreme Democrats; of those who maintain the 
 dogma of State sovereignty, and of those who assert the absolute 
 legislative power of the national government ; of ignorant and 
 prejudiced masses, and of scheming speculators who would disre- 
 gard all law and right in order to accomplish their purposes. All 
 these outbursts of opposition have, however, died away ; the justice 
 and wisdom, as well as the law, of his decisions are vindicated. 
 That true popularity has succeeded, among all intelligent persons, 
 which in the words of Lord Mansfield, 'never fails to do justice 
 to the pursuit of noble ends by noble means.' .... Any 
 correct account of the decisions made in the State Supreme Court 
 concerning the pueblo of San Francisco and the titles derived 
 from the municipality ; concerning the occupation of public lands ; 
 concerning the State ownership of gold and silver, and the claims 
 of miners to enter upon all lands, private as well as public, in 
 search for the precious metals ; concerning the rights of Mexican 
 
66 
 
 grantees and the intruders upon their lands, and concerning the 
 validity of certain acts done by the municipal government of San 
 Francisco, will exhibit in the clearest manner the quality of rec- 
 titude and fearlessness which is such a distinctive element of his 
 character. In many of the decisions rendered in the United 
 States Supreme Court, indirectly growing out of the Civil War, 
 and directly out of Congressional legislation enacted in consequence 
 of the war, including those dealing with the validity of test-oaths, 
 the extent and limitations of martial law, the trials of civilians 
 by military tribunals, the suspension of the writ of habeas corpus, 
 and similar questions affecting the very foundations of our political 
 institutions and of our civil liberties the same quality was ex- 
 hibited from a higher station and in the presence of the whole 
 nation." 
 
 In the summer of 1873 Judge Field was appointed by 
 the Governor of California, in connection with two other 
 persons, to examine the Codes of the State, and prepare 
 such amendments as seemed necessary for the considera- 
 tion of the Legislature. The Codes had been reported by 
 a commission in the previous year, which had adopted 
 them principally from the reports of the New York com- 
 mission. There was some conflict in the provisions of 
 the different Codes which prevented their harmonious 
 working. It was thought by the bar and profession in 
 the State that if Judge Field would undertake it, the con- 
 flicting provisions could be, by proper amendment, re- 
 moved. At their suggestion, the Governor appointed him 
 and Mr. John W. Dwinelle and Mr. Jackson Temple com- 
 missioners. They entered upon the labor with great 
 cheerfulness, and prosecuted it during the summer of 
 1873, and made a report to the Legislature, with the drafts 
 of several bills. Nearly all the amendments proposed 
 were adopted by the Legislature, and since then the Codes 
 have worked well in the State. 
 
 In the beginning of the year 1877 the Supreme Court 
 of the United States, then sitting in Washington, arrested 
 its session for a case which had no precedent in the his- 
 tory of the Government. There was a disputed Presi- 
 
67 
 
 dential election. The country was greatly excited, Con- 
 gress was divided, the Senate being Republican and the 
 House Democratic. To meet a crisis for which the Con- 
 stitution made no provision, a law was passed creating 
 an Electoral Commission, composed of five Justices of the 
 Supreme Court, five Senators, and five Representatives. 
 In the act of Congress Judge Field was designated one of 
 the Commissioners, and sat in the deliberations upon the 
 question whether Mr. Tilden or Mr. Hayes was entitled 
 to the electoral votes of certain States. On their decision 
 it was to depend .who was to be President for the next four 
 years. The history of that Commission is well known. 
 The Commissioners refused to go behind the certificates 
 forwarded from the different States, which declared certain 
 persons to have been appointed electors, and considered 
 that their duty was simply to announce the result of those 
 certificates; when, by the very terms of the act creating 
 the Commission, they were required to determine not 
 merely who had certificates of election but who had 
 been duly chosen. The position taken by some of the 
 Commissioners appeared to him to be monstrous, and he 
 expressed his opinion without qualification.* 
 
 * To the alleged conclusiveness of the certificate the Judge replied : 
 "A certificate is only prima facie evidence of the fact certified. Indeed, 
 I venture to assert, without fear of successful contradiction, that, in the 
 absence of positive law declaring its effect to he otherwise, a certifi- 
 cate of any officer to a fact is never held conclusive on any question be- 
 tween third parties; it is always open to rebuttal. There are, indeed, 
 cases where a party who has been induced to act upon the certificate of 
 a fact may insist that the truth of the certificate shall not be denied to 
 his injury, but those cases proceed upon the doctrine of estoppel, which 
 has no application here. The fact here lo be ascertained is, who have 
 been duly appointed electors of the State of Florida, not who have the 
 certificates of appointment. It is the election, and not the certificate, 
 which gives the right to the office. The certificate, being only evidence, 
 can be overcome by any evidence which is in its nature superior. And 
 this is equally true of the certificate issued under the law of the State 
 as of the certificate issued under the act of Congress. And it is equally 
 true of the certificate of the Board of Canvassers. Those officers exer- 
 cised mere ministerial functions; they possessed no judicial power; their 
 
In the year 1880 the name of Judge Field was promi- 
 nently before the country as a candidate for the Presi- 
 dency. He had always been a Democrat, and, except 
 during the Civil War, uniformly acted with the Demo- 
 cratic party. When the war broke out, he ranged him- 
 self on the side of the Government, and gave earn'est sup- 
 port to the administration of Mr. Lincoln. Some of his 
 friends think he contributed as much as any one to keep 
 California in the Union ; certainly he was one of a few 
 
 determination had none of the characteristics or conclusiveness of a 
 judicial proceeding; it had been so decided by the Supreme Court of the 
 State. And yet, in the opinion of the distinguished Commissioner from 
 Indiana, [Senator Morton,] and some other Commissioners from the 
 Senate and House appear to concur with him, the determination of those 
 canvassers, as expressed by their certificate, is more sacred and binding 
 than the judgment of the highest court of the land, incapable of success- 
 ful attack on any ground whatever. 
 
 " I put, yesterday, to these gentlemen this question : Supposing the can- 
 vassers had made a mistake in addition in footing up the returns, a mis- 
 take that changed the result of the election, and acting upon the supposed 
 correctness of the addition they had issued a certificate to persons as 
 electors who were not in fact chosen, and such persons had met and voted 
 for President and Vice-President, and transmitted the certificate of their 
 votes to Washington, and afterwards, before the vote was counted by" 
 the two Houses of Congress, the mistake was discovered was there no 
 remedy ? The gentlemen answered that there was none ; that whatever 
 mistakes of the kind may have been committed must be corrected be- 
 fore the vote was cast by the electors, or they could not be corrected at 
 all. If this be sound doctrine, then it follows that by a clerical mistake 
 in arithmetical computation a person may be placed in the Chief Magi- 
 stracy of the nation against the will of the people, and the two Houses 
 of Congress are powerless to prevent the wrong. 
 
 " But the gentlemen do not stop here. I put the further question to 
 them: Supposing the canvassers were bribed to alter the returns, and 
 thus change the result, or they had entered into a conspiracy to commit 
 a fraud of this kind, and in pursuance of the bribery or conspiracy they 
 did in fact tamper with and alter the returns, and declare as elected 
 persons not chosen by the voters, and such persons had voted and trans- 
 mitted their vote to the President of the Senate, but before the vote 
 was counted the fraud was detected and exposed was there no remedy? 
 The gentlemen answered, as before, that there was none; that whatever 
 fraud may have existed must be proceeded against, and its success de- 
 feated before the electors voted ; that whatever related to their action 
 
69 
 
 persons who accomplished this. But when the war was 
 ended, he was for peace actual peace not one in name 
 only. All the oppressive measures taken by the Repub- 
 lican party towards the South, known as Reconstruction 
 Acts, under which carpet-bag rule was inaugurated and 
 sustained, with all its attendant and subsequent corrup- 
 tion and plunder, were to him the object of detestation. 
 He expressed opposition to these measures, and his course 
 on the bench against test oaths, confiscation acts, and 
 the like harsh proceedings attracted the attention of the 
 country, and before the meeting of the convention at Cin- 
 cinnati to nominate a candidate for Presidency no name 
 
 was then a closed book. If this be sound doctrine, it is the only in- 
 stance in the world where fraud becomes enshrined and sanctified behind 
 a certificate of its authors. It is elementary knowledge that fraud viti- 
 ates all proceedings, even the most solemn ; that no form of words, no 
 amount of ceremony, and no solemnity of procedure can shield it from 
 exposure and protect its structure from assault and destruction. The 
 doctrine asserted here would not be applied to uphold the pettiest busi- 
 ness transaction, and I can never believe that the Commission will give 
 to it any greater weight in a transaction affecting the Chief Magistracy 
 of the nation. 
 
 " But the gentlemen do not stop here. I put the further question to 
 them : Supposing the canvassers were coerced by physical force, by pistols 
 presented to their heads, to certify to the election of persons not chosen 
 by the people, and the persons thus declared elected cast the vote of the 
 State was there no remedy? and the answer was the same as that given 
 before. For any wrong, mistake, fraud, or coercion in the action of the 
 canvassers, say these gentlemen, the remedy must be applied before the 
 electors have voted ; the work of the electors is done when they have 
 acted, and there is no power under existing law by which the wrong can 
 be subsequently righted. 
 
 " The canvass of the votes in Florida was not completed until the morn- 
 ing of the day of the meeting of the electoral college, and within a few 
 hours afterwards its vote was cast. To have corrected any mistake or 
 fraud during these hours, by any proceeding known to the law, would 
 have been impossible. The position of these gentlemen is, therefore, 
 that there is no remedy, however great the mistake or crime committed. 
 If this be sound doctrine, if the representatives in Congress of forty-two 
 millions of people possess no power to protect the country from the in- 
 stallation of a Chief Magistrate through mistake, fraud, or force, we are 
 the only self-governing people of the world held in hopeless bondage at 
 the mercy of political jugglers and tricksters." 
 
70 
 
 was more conspicuous than his. On the first ballot he re- 
 ceived sixty-five votes. He had assurances from various 
 portions of the country, and from men who were mem- 
 bers of the convention, that he would receive, at a very 
 early stage of the proceedings, over two hundred and fifty 
 votes. It is quite probable that such would have been the 
 case, had he been earnestly supported by his own State. 
 This might have been expected by one who had received 
 such proofs of his popularity, not only in the State, as 
 were given in his immense majority of the popular vote 
 when a candidate for the Supreme bench in California, 
 but generally on the Pacific Coast, as was shown in 
 the unanimous recommendation of the Pacific delegation 
 for his appointment to the bench of the Supreme Court 
 of the United States. But when the convention in Cali- 
 fornia assembled to choose delegates to the National Con- 
 vention it was found that a very strong element of oppo- 
 sition had arisen to the candidacy of Judge Field, from 
 his supposed opinion in favor of Chinese immigration, a 
 feeling which had been, to a very great extent, created by 
 his decision in the famous "Queue case," which arose in 
 thiswise: The Legislature of the State had passed, in 
 April, 1876, an act concerning lodging houses and sleep- 
 ing apartments within the limits of incorporated cities, 
 declaring, among other things, that any person found 
 sleeping or lodging in a room or an apartment containing 
 less than five hundred cubic feet of space in the clear, for 
 each person occupying it, should be deemed guilty of a 
 misdemeanor, and, upon conviction thereof, should be 
 punished by a fine of not less than ten nor more than 
 fifty dollars, or imprisonment in the county jail, or by 
 both such fine and imprisonment. 
 
 The plaintiff in the " Queue case " was convicted and 
 .sentenced under this act to pay a fine of ten dollars, or in 
 default of such payment to be imprisoned five days in the 
 county jail. Failing to pay the fine, he was imprisoned. 
 The defendant, as sheriff of the city and county of San 
 
71 
 
 Francisco, had charge of the jail, and during the im- 
 prisonment of the plaintiff cut off his queue. This he 
 did under the assumed authority of an ordinance passed 
 by the city of San Francisco declaring that every male 
 person imprisoned in the county jail, under the judg- 
 ment of any court having jurisdiction in criminal 
 cases in the city and county, should, immediately upon 
 his arrival at the jail, have the hair of his head " cut or 
 clipped to an uniform length of one inch from the scalp 
 thereof," and made it the duty of the sheriff to have this 
 provision enforced. The plaintiff thereupon sued the 
 sheriff. In his complaint he alleged that it was the cus- 
 tom of Chinamen to shave the hair from the front of the 
 head and to wear the remainder of it braided into a queue ; 
 that the deprivation of the queue was regarded by them 
 as a mark of disgrace, and was attended, according to 
 their religious faith, with misfortune and suffering after 
 death ; that the defendant knew of this custom and re- 
 ligious faith of the Chinese, and he knew that the plain- 
 tiff venerated the custom and held the faith ; yet, in dis- 
 regard of his rights, inflicted the injury complained of, 
 and that the plaintiff in consequence thereof suffered 
 great mental anguish, had been disgraced in the eyes of 
 his friends and relatives, ostracized from association with 
 his friends and countrymen, and had been damaged to 
 the amount of ten thousand dollars, and he brought suit 
 for the same. The defendant set up as a justification of 
 his action the ordinance of the city and county of San 
 Francisco, and the plaintiff demurred. The ordinance 
 was presented to the court in two aspects: First, as a 
 punishment, and, second, as a sanitary measure. As a 
 punishment, Judge Field held that the supervisors could 
 not add to that which the State had prescribed for viola- 
 tion of the " cubic air law," which was fine or imprison- 
 ment. The supervisors thought that if they could add 
 to it, the cutting off of the queue, they would inspire the 
 Chinese with such terror that it would induce them to 
 
72 
 
 pay the fines imposed rather than to suffer imprisonment, 
 which would discharge the fine at the rate of two dollars 
 per day. Probably, as said by the judge in his opinion, 
 "the bastinado,or the knout, or the thumbscrew, or the 
 rack would accomplish the same end; and no doubt the 
 Chinaman would prefer either of these means of torture 
 to that which entails upon him disgrace among his country- 
 men, and carries with it constant dread of misfortune and 
 suffering after death." 
 
 Judge Field held that the supervisors were not invested 
 by the Legislature with any such power. As a sanitary 
 measure, the Judge held that under the law then existing 
 it was not for the board of supervisors to prescribe what 
 regulations should be adopted for the health of prisoners 
 sent to jail, but for the Board of health, which alone pos- 
 sessed authority to prescribe the necessary sanitary meas- 
 ures. 
 
 The Judge went further, and considered the measure as 
 one directed especially against the Chinese. The records 
 of the supervisors, the communications of the mayor, 
 and the debates of the members showed that the measure 
 was intended solely for the Chinese, and not for all per- 
 sons. The ordinance directing it was called the Queue 
 Ordinance. It was not enforced against others. It was 
 directed and enforced solely against the Chinese. It was 
 held that contemporary history was admissible to show 
 the object of legislation; that only in that way were gen- 
 eral terms, used in the legislation of the South when 
 slavery existed, limited. With statutes declaring the 
 equality of all men, slavery could not otherwise have. ex- 
 isted. 
 
 The Queue ordinance, considered in the light of the 
 history attending its passage, was treated as special legis- 
 lation on the part of the supervisors directed against a 
 class, and as imposing upon the Chinese a degrading and 
 cruel punishment, and as such Judge Field held that it 
 was forbidden by that clause of the Fourteenth Amend- 
 
73 
 
 ment to the Constitution which declares that no State 
 "shall deny to any person within its jurisdiction the 
 equal protection of the laws." He was of opinion that 
 this inhibition upon the State applies to all the instru- 
 mentalities and agencies employed in the administration 
 of its government; to its executive, legislative, and judi- 
 cial departments; and to the subordinate legislative 
 bodies of its counties and cities. All this seems plainly 
 and obviously just; and yet such was the feeling against 
 the Chinese, that the decision created great bitterness 
 towards the Judge, and lost him half the vote of Cali- 
 fornia in the National Convention. It prevented an 
 united presentation of his name before the convention. 
 But little did that disturb him. He followed his own 
 sense of right, and left consequences to take care of them- 
 selves. Could he have foreseen the result of his decision 
 in its effect upon his political fortunes, he would not 
 have decided otherwise, nor delayed the decision a single 
 hour. 
 
 Judge Field had never favored the indiscriminate im- 
 migration of Chinese. He had seen the difficulties of 
 races so different from each other as the Caucasian and 
 the Mongolian living in peace and working in harmony, 
 side by side, but he knew that the treaty between the 
 United States and Chinese governments pledged the honor 
 of our country that the subjects of that empire should 
 have all the privileges and immunities of subjects of the 
 most favored nation, and he opposed all legislation of 
 the State which sought to deprive the Chinese laborers of 
 the protection which the treaty afforded. He said that 
 the power to determine what foreigners should be permit- 
 ted to come into the country, and to remain here, was not 
 in the State but in the General Government, and that the 
 State coiflld not interfere with the General Government's 
 control in the matter. That if Kentucky, for example, 
 wished to have Chinese come into it, the State of Cali- 
 fornia could not forbid it; that the only power which 
 10 
 
74 
 
 could assent or dissent from that measure was the General 
 Government. He therefore set aside, or prohibited, the 
 enforcement of such State laws or city ordinances as 
 interfered with the full enjoyment of the privileges and 
 immunities which the treaty with China stipulated. The 
 fact that he thus decided created the impression that he 
 himself was in favor of the immigration of Chinese 
 laborers; at any rate, politicians thus charged him, and 
 succeeded in creating such a general impression. But, on 
 the contrary, he was not in favor of indiscriminate immi- 
 gration of Chinese. He thought that Chinese laborers 
 should be excluded, and the admission of others restricted 
 in many particulars. In fact, his sentiments on that 
 subject were in accordance with the general opinion 
 which now prevails. 
 
 This political campaign was a novel experience. His 
 candidacy was not a matter of his own seeking; it was 
 urged upon him by friends who thought that if elected 
 he might do something to bring the two sections of the 
 country into more amicable relations than had for a long 
 time existed. 
 
 As the year 1884 approached, the name of Judge Field 
 was again frequently mentioned as a candidate for the 
 Presidency. But many causes contributed to render such 
 a candidacy unadvisable, and no one perceived this clearer 
 than himself. Popular opinion is very apt to attribute 
 to a judicial officer the approval of measures which he 
 only decides to be constitutional, that is, within the legis- 
 lative power under the Constitution. He is therefore 
 often condemned by persons from a mere consideration of 
 the wisdom and policy, or want of wisdom and the im- 
 policy of such measure's. The Judge's course in main- 
 taining the rights and privileges of the Chinese in the 
 country, under the treaty with the Chinese empire, was 
 almost universally attributed to his favoring the immi- 
 gration into the country of Chinese laborers, and yet 
 nothing could be farther from the truth. 
 
75 
 
 So, also, a disposition to favor the great landholders, 
 under Mexican grants, against settlers was ascribed to 
 him because he regarded the stipulations of the treaty 
 with Mexico for the protection of the property of such 
 holders as obligatory upon the court. He, of course, could 
 not consider the policy or wisdom of making such large 
 grants by the Mexican government. The only question 
 with him was as to their validity and extent. These 
 matters being ascertained, his legal duty was plain, though 
 great hardships sometimes followed, and necessarily, from 
 his decisions. Of the immigrants who came to California 
 upon the discovery of gold, a large number sought farm- 
 ing lands upon which to settle, and they looked upon the 
 large grants of the Mexican government many of them 
 embracing several square leagues of land as a wrong, 
 which they could not appreciate and to which they could 
 not be reconciled. In many cases they denounced the 
 validity of the grants, and, when in any case they ad- 
 mitted one to be valid, if its boundaries embraced a 
 greater quantity than that specially granted, they would 
 often undertake to locate the surplus and then to appro- 
 priate it, not seeing that if one immigrant could de- 
 termine that what he took was a portion of such surplus, 
 another immigrant might, with equal right, determine 
 that another portion was a part of such surplus and take 
 possession of it, and that thus by several settlers, each 
 selecting what he deemed to be the surplus, the grantee 
 might be deprived of his entire property.* It was the duty 
 of the officers of the Mexican government to survey and 
 measure off the actual quantity granted and deliver it to 
 the grantee, leaving the surplus open to the public, and 
 that duty, when not exercised by the former government, 
 
 *"And thus," as said by the Supreme Court, " the confirmees would 
 soon he stripped of the land which was intended by the government as 
 a donation to its grantees, whose interests they have acquired, for the 
 benefit of parties who were never in its contemplation." (Van Reynegan 
 v. Bolbia, 95 U. S. 36.) 
 
76 
 
 devolved upon the new government, yet it was neglected 
 in many cases for years, leaving the title unsettled and 
 leading to harassing litigation. The Judge, in protect- 
 ing the rights of grantees, naturally drew upon him the 
 hostility of all who sought to settle upon the lands of 
 others, and was often denounced in unmeasured 'terms as 
 controlled by monopolists and land grabbers. 
 
 There was also another great cause of discontent with 
 him at this time, and that was his application of the 
 Fourteenth Amendment, declaring that "no State shall 
 deny to any person the equal protection of the laws," to 
 the taxation of railway property. The constitution of 
 California required the deduction of mortgages in the 
 assessment of property of individuals for taxation, the 
 mortgages to be assessed and taxed against the mortgagees, 
 and the value of the property after such deduction to be 
 assessed and taxed against the owner of the fee. But this 
 mode of assessment and valuation of property was not 
 made applicable to property of railroads and public cor- 
 porations. Judge Field disregarded this distinction, and 
 applied the rule of uniformity to the property of railroad 
 corporations as well as that of individuals.* This drew 
 
 *In illustration of the inequality produced, the court, by Judge Field, 
 said : " Whenever an individual holds property encumbered with a mort- 
 gage lie is assessed at its value, after deducting from it the amount of the 
 mortgage. If a railroad company holds property subject to a mortgage, 
 it is assessed at its full value, without any deduction for the mortgage; 
 that is, as though the property were unencumbered. The inequality 
 and discriminating character of the procedure will be apparent by an 
 illustration given by counsel. Suppose a private person owns a farm 
 which is valued at $100,000, and is encumbered with a mortgage amount- 
 ing to $80,000 ; he is, in that case, assessed at $20,000 ; if the rate of taxa- 
 tion be two per cent, he would pay $400 taxes. If a railroad corpora- 
 tion owns an adjoining tract worth $100,000, which is also encumbered 
 by a mortgage for $80,000, it would be assessed for $100,000, and be re- 
 quired to pay $2,000 taxes, or five times as much as the private person. 
 There is here a discrimination too palpable and gross to be questioned, 
 and such is the nature of the discrimination made against the Southern 
 Pacific Railroad Company in the taxation of its property. Nothing can 
 be clearer than that the rule of equality and uniformity is thus entirely 
 disregarded. 
 
upon him a great deal of abuse, particularly from the 
 Democratic party. Their papers were filled with denun- 
 ciations of him, which were especially fierce and gross 
 
 "The Fourteenth Amendment of the Constitution, in declaring that 
 no State shall deny to any person within its jurisdiction the equal pro- 
 tection of the laws, imposes a limitation upon the exercise of all the 
 powers of the State, which can touch the individual or his property, in- 
 cluding among them that of taxation. Whatever the State may do, it 
 cannot deprive any one within its jurisdiction of the equal protection of 
 the laws, and by equal protection of the laws is meant equal security 
 under them to every one on similar terms, in his life, his liberty, his 
 property, and in the pursuit of happiness. It not only implies the right 
 of each to resort, on the same terms with others, to the courts of the 
 country for the security of his person and property, the prevention and 
 redress of wrongs and the enforcement of contracts, but also his exemp- 
 tion from any greater burdens or charges than such as are equally im- 
 posed upon all others under like circumstances. 
 
 " Unequal exactions in every form, or under any pretense, are abso- 
 lutely forbidden; and, of course, unequal taxation, for it is in that form 
 that oppressive burdens are usually laid. It is not possible to conceive 
 of equal protection under any system of laws, where arbitrary and un- 
 equal taxation is permissible; where different persons may be taxed on 
 their property of the same kind, similarly situated, at different rates; 
 where, for instance, one may be taxed at one per cent, on the value of 
 his property, another at two or five per cent., or where one may be thus 
 taxed according to his color, because he is white, or black, or brown, or 
 yellow, or according to any other rule than that of a fixed rate propor- 
 tionate to the value of his property. 
 
 " Though the occasion of the amendment was the supposed denial of 
 rights in some States to newly-made citizens of the African race, and the 
 supposed hostility to Union men, the generality of the language used 
 extends the protection of its provisions to persons of every race and con- 
 dition against discriminating and hostile State action of any kind. Its 
 effect, in preserving free institutions and preventing harsh and oppresive 
 State legislation, can hardly be overstated. When burdens are placed upon 
 particular classes or individuals, whilst the majority of the people are 
 exempted, little heed may be paid to the complaints of those affected. 
 Oppression thus becomes possible and lasting. But a burdensome law, 
 operating equally upon all, will soon create a movement for its repeal. 
 With the amendment enforced, a bad or an oppressive State law will not 
 long be left on any statute book." 
 
 As to private corporations being included under the designation of 
 persons in the Fourteenth Amendment, the court, by Judge Field, said: 
 
 " Private corporations, and under this head, with the exception of sole 
 corporations, with which we are not now dealing, all corporations other 
 
78 
 
 when they came, as many did, from leaders of the assault, 
 some of whom had lost, by decisions rendered, large contin- 
 gent fees. The Judge pursued the even tenor of his 
 
 than those which are public are included private corporations consist of 
 an association of individuals united for some lawful purpose, and per- 
 mitted to use a common name in their business, and have succession of 
 membership without dissolution. As said by Chief Justice Marshall : 
 'The great object of an incorporation is to bestow the character and 
 properties of individuality on a collective and changing body of men.' 
 (Providence Bank v. Billings, 4 Pet. 514, 562.) In this State they are 
 formed under general laws. By complying with certain prescribed forms 
 any five persons may thus associate themselves. In that sense corpora- 
 tions are creatures of the State; they could not exist independently of 
 the law, and the law may, of course, prescribe any conditions not pro- 
 hibited by the Constitution of the United States, upon which they may 
 be formed and continued. But the members do not, because of such 
 association, lose their rights to protection, and equality of protection. 
 They continue, notwithstanding, to possess the same right to life and 
 liberty as before, and also to their property, except as they may have 
 stipulated otherwise 
 
 " Whatever affects the property of the corporation, that is, of all the 
 members united by the common name, necessarily affects their interests. 
 If all the members of the corporation die or withdraw from the associa- 
 tion, the corporation is dead; it lives, and can live only, through its 
 members. When they disappear the corporation disappears. Whatever 
 confiscates or imposes burdens on its property, confiscates or imposes 
 burdens on their property; otherwise nobody would be injured by the 
 proceeding. Whatever advances the prosperity or wealth of the corpo- 
 ration, advances proportionately the prosperity and business of the cor- 
 porators; otherwise no one would be benefited. It is impossible to con- 
 ceive of a corporation suffering an injury or reaping a benefit except 
 through its members. The legal entity, the metaphysical being that is 
 called a corporation, cannot feel either. So, therefore, whenever a pro- 
 vision of the Constitution or of a law guarantees to persons protection 
 in their property or affords to them the means for its protection, or pro- 
 hibits injurious legislation affecting it, the benefits of the provision or 
 law are extended to corporations, not to the name under which differ- 
 ent persons are united, but to the individuals composing the union. The 
 courts will always look through the name to see and protect those whom 
 the name represents." 
 
 Since the above decision the Supreme Court has expressly held that a 
 private corporation is included under the designation of person in the 
 Fourteenth Amendment. (Santa Clara County v. Southern Pacific Rail- 
 road Company, 118 U. S. 396; Pembina Mining Co. v. Pennsylvania, 125 
 U. S. 181, 189.) 
 
79 
 
 way, amidst the torrent of- abuse, but he recognized that 
 it was not the time for him to look for political sup- 
 port. He therefore positively declined to be a candidate 
 for the Presidency. He wrote a letter to Mr. Johnson, at 
 the time editor of the Alta- California, to that effect, which 
 was published in that paper. It is given in a note be- 
 low.* 
 
 He supposed, with its publication, his name would be 
 left out of consideration, but it was not so destined. Some 
 weeks after that letter was published a delegation of citi- 
 zens from Missouri, headed by Mr. Mum ford, the editor 
 and proprietor of the Kansas City Times, called upon him 
 at his residence in Washington, and stated that they 
 wished to use his name as a candidate before the National 
 Convention. The following is the account given by Mr. 
 Mumford of the interview: 
 
 " I came to Washington, and, accompanied by other gentle- 
 men, called on Judge Field to make known the object of our mis- 
 sion. In reply to the express wish to use his name as a candidate 
 
 * WASHINGTON, D. C., March 20, 1884. 
 MY DEAR MR. JOHNSON : 
 
 Your letter of the 2d instant was received a few days since. For the 
 kind words it contained, and the interest it manifested to advance my 
 supposed political aspirations, I give you many thanks. But in truth I 
 have not the aspirations you attribute to me. It is only out of deference 
 to the wishes of friends that I have not long since put in print a decla- 
 ration that my name cannot be used with my consent in any political 
 contest. I have looked over the whole matter, and months ago, as I told 
 you last summer, I came to the conclusion that it will serve no useful 
 purpose to bring me out as a candidate for the Presidential nomination. 
 I am not insensible to the honor of having a favorable delegation from 
 California. I should feel proud of the support of the State, but there is 
 no use in disguising the fact that owing to prejudices in certain quarters 
 it will be difficult to obtain it. I shall certainly not deny my record to 
 secure any one's support. 
 
 My judicial opinions on subjects of interest in California the position 
 of the Chinese in the State, the taxation of property of railways, and 
 the Mexican land grants have, lam aware, given offense to a large num- 
 ber of the people who would have had me disregard the law, the treaties 
 with China and Mexico, and the Constitution, to carry out their views 
 and schemes. I could not thus do violence to my convictions of duty 
 
for the Presidential nomination, Judge Field said : ' While I am 
 not insensible to the high compliment paid to me by this expres- 
 sion of your preference and confidence, I must frankly say that I 
 have long since ceased to entertain political aspirations, and have 
 frequently so advised my nearest friends. Moreover, I do not consider 
 myself an available candidate, in any sense, for the very substantial 
 reason that the candidate for the Presidential nomination should 
 be one who would receive the united support in the convention 
 of the delegation from his own State, and this I could not reason- 
 ably expect to command. I confess it would be a source of grati- 
 fication to me to be supported by the State of California, but it is 
 a patent fact, which it would be useless to deny, that prejudices 
 exist in certain quarters which I cannot hope to overcome with- 
 out stultification of my official record.' When being asked to 
 explain what particular official record he referred to, he stated the 
 substance of what is contained in his Better to Mr. Johnson, given 
 in the above note. 
 
 the thing was impossible. Indeed, I would not have changed a line of 
 what I wrote, had I known beforehand that for it I should lose the sup- 
 port of California, nor would I now change a line to secure the vote of 
 every man in the State. 
 
 One of these days our good people will see their error, and then they 
 will do me full justice. I am content to wait for their ultimate judg- 
 ment of approval, which, sooner or later, will certainly come. They will 
 then admit that a just judge could not ignore the law or treaties, or the 
 Constitution, however offensive and detested the persons protected by 
 them may have been. And as to railway taxation, all will then acknowl- 
 edge that, under any just administration of government, associated capi- 
 tal cannot be assessed on different principles and taxed at different rates 
 from individual capital. And as to the Mexican grants, it will not then 
 be questioned that the grantees had a right to stand upon the plighted 
 faith of the Government, under the treaty which gave us the magnificent 
 domain of California, that they should be protected in all their rights of 
 property. But enough of this. Sufficient it is to say that my strong in- 
 clination has long been, and still is, against being in the political contest 
 of this year. I am content to remain where I am. There I may do some 
 good, and, after all, position is only desirable as a means of doing good. 
 
 Please, therefore, at once say in the AUa- California, in some appropriate 
 form, that I am not a candidate for any political position, and do not wish 
 to be so considered by any one. 
 
 I am, very truly yours, 
 
 (Signed) STEPHEN J. FIELD. 
 
 Hon. JAMES A. JOHNSON. 
 
81 
 
 "The delegation united in expressing to him the conviction 
 that the support of California in the convention was immaterial, 
 in -view of the fact that his candidacy would be advanced from 
 national, rather than from local, standpoints, and for the best in- 
 terests of Democratic success. They thereupon pressed him to 
 know whether, in the event of his nomination, he would accept 
 the same. Judge Field reflected for a moment, and replied: 
 'Such a contingency is scarcely possible. I have made no effort 
 to secure the nomination, and have discouraged all efforts on the 
 part of my friends to that end. But there is no instance in the 
 history of the country where the nomination of a National Con- 
 vention actually tendered has been refused, and I have no idea 
 that I should prove an exception.'" 
 
 Notwithstanding this interview, the gentlemen from 
 Missouri k and other friends of the Judge in California 
 continued to make reference to him as a possible candi- 
 date, and to advocate his nomination. 
 
 That course only increased the bitterness of hostile 
 partisans in California, and led to his denunciation in the 
 State convention called to appoint delegates to the Na- 
 tional Convention, a denunciation which did not disturb 
 him in the least. In referring to it he simply remarked 
 that far better and wiser men than himself had been 
 reviled, persecuted, and driven from their country for 
 causes which were afterwards repeated to their honor, and 
 for which monuments were erected to their memory; and 
 he was content to abide his time. But not so others. The 
 most respectable persons of the community were indig- 
 nant at the conduct of the convention.* 
 
 *The AHa-California, in its issue of June 15, 1884, said: 
 " The Democratic convention did some extraordinary things, but the 
 most extraordinary of all was the passage of the resolution opposing the 
 candidacy of Mr. Justice Field for the Presidency. Under any circum- 
 stances a resolution by a State convention, opposing the candidacy of a 
 distinguished member of the party, would be out of place, and the first 
 recorded case of the kind occurred at Stockton. But when we consider 
 that the denunciation was directed against a citizen of our own State, a 
 citizen who has done more for the State than any other, a citizen whose 
 person and character are always mentioned with genuine affection by the 
 best elements of California society, then it becomes a matter of profound- 
 11 
 
82 
 
 In the summer of 1881, Judge Field went to Europe, 
 and remained abroad several months, extending his 
 journey to the East, and revisiting Athens and Smyrna, 
 
 est astonishment that any body of men, with the slightest claims to 
 decency, could have stumbled so far from the path of honorable political 
 warfare. What were the causes that led up to the passage of this reso- 
 lution will naturally be asked. It must be remembered that Demo- 
 cratic local politics are in confusion in this State, and that such has been 
 the case since the great upheaval of the sand-lot. In the midst of that, 
 uprising against property and all the decencies of society, and just as 
 that element had overthrown all political parties and shattered the De- 
 mocracy to fragments, and whilst the slogan of the sand-lot, ' the Chinese 
 must go,' was still ringing in the ears of the terrified people, it became 
 the duty of Mr. Justice Field to sit in judgment upon the famous queue 
 ordinance. He decided the ordinance to be unconstitutional, and also 
 decided in another suit against Chinese lauudrymen, brought for vexa- 
 tion and blackmail, that Chinamen must be governed by the general laws 
 of the land, and that the business conducted by them must be governed 
 by general laws, applicable to the class of busines's, and not by laws 
 directed solely against them as a class. The decisions of Mr. Justice 
 Field, striking down the wretched, abortive, and unconstitutional legis- 
 lation of this State with reference to the Chinese, were received with 
 openly expressed hostility and denunciation by the sand-lotters. 
 
 " Then came the New Constitution craze, during which all the dissatis- 
 fied elements of society united with the sand-lot in the construction and 
 adoption of a constitution which violated every principle of political 
 economy and acknowledged axiom of the science of government. Mr. 
 Justice Field was compelled in the discharge of his duty to strike null 
 certain provisions of this constitution which discriminated in the matter 
 of taxation against railroad and other quasi-public corporations and sub- 
 jected them to a mode and measure of assessment not applied to natural 
 persons. Mr. Justice Field held that corporations were mere aggrega- 
 tions of natural persons and were as much entitled to the equal protec- 
 tion of the law as natural persons, and also held that the provisions in 
 question violated the Fourteenth Amendment, in that they denied to 
 corporations the equal protection of the laws. This decision aroused 
 the hostility of the sand-lot and the supporters of the New Constitution. 
 Finally the Workingmen's party and the New Constitution party became 
 disintegrated and the members went back to their old affiliations, the 
 majority drifting back to the Democratic party. . . . And so the late 
 convention was organized, its members noisy, tumultuous, violent and dema- 
 gogical, and its action the exact reproduction of the scenes which used to occur 
 in the old sand-lot and New Constitution parties." 
 
 The Argonaut in its issue of June 28, 1884, said : 
 
 " Nothing has occurred in the history of California which has caused 
 
83 
 
 where he had spent several happy years of his boyhood 
 half a century before. 
 
 When he was at Smyrna, in company with the consul, 
 he called upon the Pasha. Fifty years before he had 
 called upon the then Pasha in company with Commodore 
 Porter. That officer had been appointed by President 
 Jackson, in 1831, charge d'affairs to the Sublime Porte. 
 On his way to Constantinople he stopped at Smyrna, or sub- 
 greater mortification and regret to its intelligent citizens than the conduct 
 of the Democratic party, as indicated by its proceedings in the State con v en - 
 tion toward Mr. Justice Stephen J. Field. This gentlemen's high standing 
 is acknowledged in other lands and other States. His pre-eminent ability 
 is recognized. He is justly eminent for his splendid talents. . . . 
 He has filled with honor the highest judicial- position in our State. 
 He fills with honor his present position upon the Supreme Bench of 
 the United States. He has impressed himself upon every page of our 
 history. His work is seen in our legislative and judicial systems as a 
 creation. He molded our land laws; he established our water code; he 
 formulated our municipal governments; he is written all over that chap- 
 ter in the history of California which enabled an American community 
 to enter a conquered territory, to come into a land of strange language 
 and civil law, to successfully establish an American State, and to suc- 
 cessfully maintain itself in the presence of invading barbarism. Judge 
 Field has displayed the fearlessness of his judicial courage in breasting 
 the waves of popular violence, and in daring to hold in contempt the 
 worthlessness of public clamor. In the test-oath cases he displayed an 
 adherence to principles which reached the sublimity of judicial firmness 
 and independence decisions which, in theheated passions of the moment, 
 turned upon him a torrent of unreserved abuse. This he has outlived 
 and survived, receiving the grateful recognition of intelligent men North 
 and South, and intelligent lawyers everywhere. In rebuking the absurd 
 attempts of California demagogues to violate every rule of law and 
 humanity in reference to the Chinese, he again demonstrated that in his 
 loyalty to principle he was not to be turned aside. In the railroad cases, 
 and all other cases which he has been called upon to determine, he has 
 
 illustrated his fidelity to the laws His respect for the law 
 
 is so profound and his knowledge of it so intimate, that he could not 
 violate its fundamental principles to subserve his personal advancement, 
 if he would. These judicial decisions have brought upon him all the vile 
 hatred of the meaner and more ignorant of that class of Democratic, 
 Sand-lot, and New Constitution Democrats who have crawled to the sur- 
 face of the Democratic party in this State. Democratic ignorance and 
 malignity culminated at Stockton. The Democratic convention was the 
 apothesis of everything which was base, and cowardly, and contemptible." 
 
84 
 
 sequently visited it, and whilst there collected all the Amer- 
 icans he could, and called with them upon the Pasha. The 
 Judge was then fourteen years of age, and he accompanied 
 the others. A dragoman went with them, and as they en- 
 tered the presence of the Pasha the dragoman kneeled and 
 kissed the hem of his garment, and took a seat at his 
 feet where he remained during the interview. The Pasha 
 was dressed in the flowing robes of the Turkish costume, 
 and wore a turban. He was seated on a divan, and as 
 the party, which consisted of about twelve persons, entered 
 the room, he beckoned them to be seated by his side. 
 Chibouks and coffee were brought. One circumstance of 
 the interview the Judge distinctly remembers in the con- 
 versation between the Pasha and the Commodore. The 
 Pasha said to him: "I see that you are Commodore; 
 where is the Admiral of your navy?" The Commodore, 
 turning around, said, "Our Admirals are in the future," 
 and pointed to Field, then, as before stated, a boy of 
 fourteen years of age. Some years afterwards, when at 
 Washington, the Judge related this story to the son of 
 the great Commodore, who was himself an Admiral, and 
 it seemed to please him very much. When the Judge 
 called in 1881, with the American consul, upon the suc- 
 cessor of this Pasha, he was asked if that was his first 
 visit. He replied, " No, I was here il y a cinquante am" 
 that is, fifty years ago. The Pasha said, " Cinque ans" that 
 is, five years ago. "No," he replied, "un demi siecle"ih f at 
 is, half a century ago. " You must, then, see," said the 
 Pasha, " a great change now." "Nowhere so much," he 
 replied, "as in this room." To quote his language: 
 " When I came here fifty years ago I saw your predecessor 
 in flowing robes, wearing a turban, sitting on a divan, 
 and we only conversed with him through a dragoman. 
 I see you in European dress, wearing a fez, and I carry on 
 conversation with you in French. I see, instead of a 
 divan, chairs and sofas; instead of the chibouk I am 
 offered a cigarette, and I look out of the window, and in- 
 
85 
 
 stead of the slow-moving camel I notice a tramway a 
 greater change I could hardly expect to see." A very 
 pleasant interview the Judge and the consul had with the 
 Pasha, and as he left, the Pasha offered him an escort if 
 he wished to visit any of the surroundings of the city, or 
 to go to Ephesus, there being, at the time, r,umors of 
 brigands in the neighborhood. 
 
 When the Judge visited Athens he found Rev. and 
 Mrs. Hill still alive, Mr. Hill being over ninety and 
 Mrs. Hill not far from eighty years of age. When a 
 boy the Judge had escorted Mrs. Hill in a Greek vessel 
 from Smyrna to Athens, leaving Smyrna about the 20th 
 of December, 1831, and arriving at Athens the first of 
 January, 1832. He passed the following winter with her 
 and attended a Greek school. Mr. and Mrs. Hill soon 
 afterwards established at Athens a school for young ladies, 
 which became a very successful and useful seminary of 
 learning. The Judge found that great respect was enter- 
 tained for them by the Greek Government and people 
 generally. The daughters of the most distinguished 
 families of Greece received their education there. Mrs. 
 Hill said to the Judge that he was the only admirer of 
 hers in her youth, who had come back to see her after the 
 lapse of half a century. He spent a few days, with great 
 pleasure there, passing a great deal of time in conversa- 
 tion with his old and dear friends. 
 
 Whilst in Athens he also visited Dr. Schliemann and 
 listened to his enthusiastic accounts of his explorations 
 of ancient Troy. He wandered among the ruins of 
 Athens, stood on Mars Hill and read the address of St. 
 Paul, and felt fully the force of his language, as when the 
 Apostle, looking on one side, saw the Acropolis and the 
 magnificent Parthenon, and the statue of Minerva, and 
 before him the temple of Theseus, said: " God that made 
 the world and all things therein, seeing that He is Lord 
 of heaven and earth, dwelleth not in temples made with 
 hands." (Acts, 17, 24.) All the recollections of his early 
 years came back with great force. 
 
86 
 
 On his return in the fall from his trip he resumed his 
 regular judicial duties with additional vigor and pleasure. 
 
 His course on the bench has been one of simple dignity. 
 No disturbances or unmanly disputes have occurred dur- 
 ing his long career. Only in two instances has he been 
 called upon, to impose any punishment for disorderly or 
 contemptuous proceedings in court. One was in the case 
 of a Frenchman by the name of Moulin, who became de- 
 nunciatory and offensive in his remarks to the judges in 
 open court; and the other was upon Judge Terry and 
 his wife, the one having personally insulted the Judge 
 with gross imputations upon him, and the other having 
 been guilty of violent proceedings in court. The circum- 
 stances of this latter case require further notice as show- 
 ing not only the contempt committed by them, but also 
 the subsequent attempted assassination of the Judge and 
 the proceedings following it. I take, from the opinion of 
 Judge Sawyer, in the case of the Petition of David Neagle, 
 a statement of the facts: 
 
 " On the 3d of September, 1888, certain cases were pending in 
 the Circuit Court of the United States for the Northern District 
 of California, between Frederick W. Sharon, as executor, vs. 
 David S. Terry and Sarah Althea Terry, his wife, and between 
 Francis G. Newlands, as trustee, and others against the same par- 
 ties, on demurrers to bills to revive and carry into execution the 
 final decree of the court in the suit of William Sharon vs. Sarah 
 Althea Hill, and were decided on that day. That suit was brought 
 to have an alleged marriage contract between the par ties adjudged 
 to be a forgery, and obtain its surrender and cancellation. The 
 decree rendered adjudged the alleged marriage contract to be a 
 forgery, and ordered it to be surrendered and canceled. The de- 
 cree was rendered after the death of William Sharon, and was 
 therefore entered as of the day when the case was submitted to 
 the court. By reason of the death of Sharon it was necessary, in 
 order to execute the decree, that the suit should be revived. Two 
 bills were filed, one by the executor of the estate of Sharon, and 
 the other a bill of revivor and supplemental by Newlands as 
 trustee for that purpose. 
 
87 
 
 " In deciding the cases, the court gave an elaborate opinion 
 upon the questions involved, and whilst it was being read certain 
 disorderly proceedings took place for which the defendants, David 
 S. Terry and his wife, were adjudged guilty of contempt and 
 ordered to be imprisoned. The following is an accurate state- 
 ment of those proceedings, slightly condensed from the opinion 
 of the court delivered on the subsequent application of David S. 
 Terry to have the order of commitment revoked. For the whole 
 proceeding, see In re Terry, 36 Fed. Rep. 419. 
 
 " Shortly before the court opened, the defendants came into the 
 court-room and took their seats within the bar at the table next 
 to the clerk's desk, and almost immediately in front of the Judges, 
 the defendant, David S. Terry, being at the time armed with a 
 bowie-knife concealed on his person, and the defendant, Sarah 
 Althea, his wife, carrying in her hand a small satchel which con- 
 tained a revolver of six chambers, five of which were loaded. 
 The court at the time was held by the Justice of the Supreme 
 Court of the United States allotted to this circuit, who was pre- 
 siding; the United States Circuit Judge of this circuit; and the 
 United States District Judge of Nevada, called to this district to 
 assist in holding the Circuit Court. Almost immediately after 
 the opening of the court, the Presiding Justice commenced read- 
 ing its opinion in the cases mentioned, but had not read more 
 than one-fourth of it when the defendant, Sarah Althea Terry, 
 arose from her seat and asked him, in an excited manner, whether 
 he was going to order her to give up the marriage contract to be 
 canceled. 
 
 " The Presiding Justice replied, ' Be seated, madam.' She 
 repeated the question, and was again told to be seated. She 
 then cried out, in a violent manner, that the Justice had been 
 bought, and wanted to know the price he held himself at ; that 
 he had got Newlands' money for his decision, and everybody 
 knew it, or words to that effect. It is impossible to give her exact 
 language. The Judges and parties present differed as to the pre- 
 cise words used, but all concurred as to their being of an exceed- 
 ingly vituperative and insulting character. 
 
 " The Presiding Justice then directed the Marshal to remove 
 her from the court-room. She immediately exclaimed that she 
 would not go from the room, and that no one could take her from 
 it, or words to that effect. The Marshal thereupon proceeded to- 
 
88 
 
 wards her to carry out the order for her removal and compel her 
 to leave, when the defendant, David S. Terry, rose from his seat, 
 evidently under great excitement, exclaiming, among other 
 things, 'No living man shall touch my wife!' or words of that 
 import, and dealt the Marshal a violent blow in his face.* He 
 then unbuttoned his coat and thrust his hand under his vest, 
 where his bowie-knife was kept, apparently for the purpose of 
 drawing it, when he was seized by persons present, his hands held 
 from drawing his weapon, and he himself forced down on his 
 back. The Marshal then removed Mrs. Terry from the court- 
 room. Soon afterward Mr. Terry was allowed to rise, and was 
 accompanied by officers to the door leading to the corridor on 
 which was the Marshal's office. As he was about leaving the 
 room, or immediately after stepping out of it, he succeeded in 
 drawing his knife, when his arms were seized by a Deputy Mar- 
 shal and others present, to prevent him from using it, and they 
 were able to take it from him only after a violent struggle. 
 
 "The petitioner Neagle wrenched the knife from his hand, 
 whilst four other persons held on to the arms and body of Terry, 
 one of whom presented a pistol to his head, threatening at the 
 same time to shoot him if he did not give up the knife. To these 
 threats Terry paid no attention, but held on to the knife, actually 
 passing it during the struggle from one hand to another. 
 
 "Mr. Cross, a prominent attorney, who on that occasion sat 
 next to Mrs. Terry, a litJe to her left and rear, testifies that just 
 before she arose to interrupt Justice Field she nervously worked 
 at the clasp of a small satchel about nine inches long, and tried 
 to open it; and not succeeding, in consequence of her excitement, 
 she hastily sprang to her feet and interrupted the Justice as here- 
 inbefore stated. Knowing that she had before drawn a pistol 
 from a similar satchel in the Master's room, he concluded at this 
 time that she was trying to get her pistol out, and he consequently 
 held himself in readiness to seize her arm as soon as it should 
 appear, and endeavor to prevent its use until he could get assist- 
 ance, his right arm being partially disabled. (See Sharon v. Hill, 
 11 Sawyer, 123.) At this time Mrs. Terry sat directly in front of 
 Justice Field and the Circuit Judge, less than four yards from 
 either. A loaded revolver was afterwards taken from tbis satchel 
 
 * One of the witnesses stated that Terry also said, " Get a written or- 
 der from the court." 
 
89 
 
 by the Marshal. For their conduct and resistance to the execu- 
 tion of the order of the Court, the defendants, Sarah Althea 
 Terry and David S. Terry, were adjudged guilty of contempt and 
 ordered to be imprisoned, the former for thirty days and the latter 
 for six months. 
 
 "In consequence of the imprisonment which followed, various 
 threats of personal violence to Justice Field and the Circuit 
 Judge were made by Terry and his wife. Those threats were that 
 they would take the lives of both Judges; those against Justice 
 Field were sometimes that they would take his life directlv, at 
 other times that they would subject him to great personal in- 
 dignities and humiliations, and if he resented it they would kill 
 him. 
 
 "These threats were not made in ambiguous terms, but openly 
 and repeatedly, not to one person, but to many persons, until they 
 became the subject of conversation throughout the State and of 
 notice in the public journals. Eeports of these threats through 
 the press and through the reports of the United States Marshal 
 and United States Attorney reached Washington, and in conse- 
 quence of them the Attorney-General thought proper to give 
 instructions to the Marshal of the United States for the Northern 
 District of California to take measures to protect the persons 
 of those judges from violence at the hands of Terry and his wife. 
 On the return of Justice Field from Washington to attend his 
 circuit in June last, [1889] the probability of an attack by Judge 
 Terry upon him was the subject of conversation throughout the 
 State, and of notices in some of the journals in the city of San 
 Francisco. It was the general expectation that if Judge Terry 
 met Justice Field violence would be attempted upon the latter. 
 
 "In consequence of this general belief and expectation, and the 
 fact that the Attorney-General of the United States had given 
 instructions to the Marshal to see that the persons of Justice Field 
 and of the Circuit Judge should be protected from violence, the 
 Marshal of the Northern District appointed the petitioner in this 
 case, David Neagle, to accompany Mr. Justice Field whilst en- 
 gaged in the performance of his duties and whilst passing from 
 one district to another within his circuit, so as to guard him against 
 the threatened attacks. He was specially commissioned as a 
 deputy by Mr. Franks, whose instructions to him were that he 
 should protect Justice Field at all hazards, and, knowing the 
 12 
 
90 
 
 violent and desperate character of Terry, that he should be active 
 and alert, and be fully prepared for any emergency, but not to be 
 rash ; and in case any violence was attempted from any one, to call 
 upon the assailant to stop, and to inform him that he was an officer 
 of the United States. 
 
 "Judge Terry was a man of great size and strength, who had 
 the reputation of being always armed with a bowie-knife, in the 
 use of which he was specially skilled, and of showing great readi- 
 ness to draw and use it upon persons towards whom he entertained 
 any enmity or had any grievance, real or fancied. 
 
 "On the 8th of August, 1889, Justice Field left San Francisco 
 for Los Angeles in order to hear a habeas corpus case which was 
 returnable before him at that city on the 10th of August, and 
 also to be present at the opening of the court on the 12th. He 
 was accompanied by Deputy Marshal Neagle, the petitioner. Jus- 
 tice Field heard the habeas corpus case on the 10th of August. 
 On the 12th of August he opened the Circuit Court, Judge Ross 
 sitting with him, and he delivered on the latter day an opinion in 
 an important land case, and also an opinion in the habeas corpus 
 case. On the following day the court heard an application for 
 an injunction in an important water case from San Diego County. 
 No other cases being ready for hearing before the Circuit Court, 
 he took the train on Tuesday, the 13th, at 1.30 o'clock in the 
 afternoon, for San Francisco, where he was expected to hear a 
 case then awaiting his arrival, being accompanied on his return 
 by Deputy Marshal Neagle. On the morning of the 14th, be- 
 tween the hours of seven and eight, the train arrived at Lathrop, 
 in San Joaquin County, which is in the Northern District of Cali- 
 fornia, a station at which the train stopped for breakfast. Justice 
 Field and the Deputy Marshal at once entered the dining-room 
 there to take their breakfast, and took their seats at the third 
 table in the middle row of tables. Justice Field seated himself at 
 the extreme end, on the side looking toward the door. The 
 Deputy Marshal took the, next seat on the left of the Justice. 
 What subsequently occurred is thus stated in the testimony of 
 Justice Field : 
 
 "A few minutes afterwards Judge Terry and his wife came in. 
 When Mrs. Terry saw me, which she did directly she got diagon- 
 ally opposite me, she wheeled around suddenly and went out in 
 great haste. I afterwards understood that she went for her satchel. 
 
91 
 
 Judge Terry walked past, opposite to me, and took his seat at the 
 second table below. The only remark I made to Mr. Neagle was, 
 'There is Judge Terry and his wife.' He remarked, 'I see him.' 
 Not another word was said. I commenced eating my breakfast. 
 I saw Judge Terry take his seat. In a moment or two afterwards 
 I looked round and saw Judge Terry rise from his seat. I sup- 
 posed at the time he was going out to meet his wife, as she had 
 not returned, so I went on with my breakfast. It seems, however, 
 that he came round back of me I did not see him and 
 struck me a violent blow in the face, followed instantaneously by 
 another blow. Coming so immediately together, the two blows 
 seemed like one assault. I heard 'Stop! stop!' cried by Neagle. 
 Of course I was for a moment dazed by the blows. I turned my 
 head round and saw that great form of Terry, with his arm 
 raised and his fists clenched to strike me. I felt that a terrific 
 blow was coming, and his arm was descending in a curved way, as 
 though to strike the side of my temple, when I heard Neagle cry 
 out, 'Stop! stop! I am an officer !' Instantly two shots followed. 
 I can only explain the second shot from the fact that he did not 
 fall instantly. I did not get up from my seat, although it is 
 proper for me to say that a friend of mine thinks that I did ; but 
 I did not. I looked around and saw Terry on the floor. I looked 
 at him and saw that peculiar movement of the eyes that indicates 
 the presence of death. Of course it was a great shock to me. It 
 is impossible for any one to see a man in the full vigor of life, with 
 all those faculties that constitute life, instantly extinguished, with- 
 being affected, and I was. I looked at him for a moment, then rose 
 from my seat, went around and looked at him again, and passed 
 on. Great excitement followed. A gentleman came to me whom 
 I did not know, but I think it was Mr. Lidgerwood, who has been 
 examined as a witness in this case, and said : ' What is this ? ' I 
 said: 'I am a Justice of the Supreme Court of the United States. 
 My name is Judge Field. Judge Terry threatened my life and 
 attacked me, and the Deputy Marshal has shot him.' The Deputy 
 Marshal was perfectly cool and collected, and stated : ' I am a 
 Deputy Marshal, and I have shot him to protect the life of Judge 
 Field.' I cannot give you the exact words, but I give them to 
 you as near as I can remember them. A few moments afterwards 
 the Deputy Marshal said to me: 'Judge, I think you had better 
 go to the car.' I said, ' Very well.' Then this gentleman, Mr. 
 
92 
 
 Lidgerwoed, said : " I think you had better.' And with the two 
 I went to the car. I asked Mr. Lidgervvood to go back and get 
 my hat and cane, which he did. The Marshal went with me, 
 remained some time, and then left his seat in the car, and, as I 
 thought, went back to the dining-room. (This is, however, I am 
 told, a mistake, and that he only went to the end of the car.) 
 He returned, and either he or some one else stated that there was 
 great excitement; that Mrs. Terry was calling for some violent 
 proceedings. I must say here that, dreadful as it is to take life, 
 it was only a question of- seconds whether my life or Judge Terry's 
 life should be taken. I am firmly convinced that had the Marshal 
 delayed two seconds both he and myself would have been the vic- 
 tims of Terry." 
 
 " In answer to a question whether he had a pistol or other 
 weapon on the occasion of the homicide, Justice Field replied : 
 * No, sir. I have never had on my person or used a weapon 
 since I went on the bench of the Supreme Court of the State, on 
 October 13, 1857, except once. That was on an occasion when I 
 crossed the Sierra Nevada Mountains in 1862. With that ex- 
 ception, I have not had on my person or used a pistol or other 
 deadly weapon.' 
 
 "Mr. Neagle in his testimony stated that before the train ar- 
 rived at Fresno, he got up and went out on the platform, leaving 
 the train, and there saw Judge Terry and his wife get on the 
 cars ; that when the train arrived at Merced he spoke to the con- 
 ductor, Woodward, and informed him that he was a Deputy 
 United States Marshal ; that Judge Field was on the train, and 
 also Judge Terry and his wife, and that he was apprehensive that 
 when the train arrived at Lathrop there would be trouble between 
 those parties, and inquired whether there was any officer at that 
 station, and. was informed in reply that there was a constable 
 there ; that he then requested the conductor to send word to the 
 officer to be at Lathrop on the arrival of the train, and that he 
 also applied to other parties to induce them to endeavor to secure 
 assistance for him at that place in case it should be needed. The 
 Deputy Marshal further stated that when the train arrived at 
 Lathrop, Justice Field went into the dining-room, he accompany- 
 ing the Justice ; that they took seats at a table ; that shortly after 
 they were seated, Judge Terry and his wife entered the dining- 
 room, his wife following him several feet in the rear; that when 
 
93 
 
 the wife reached a point nearly opposite Justice Field, she turned 
 around and went out rapidly from the room, and, as appeared 
 from what afterward followed, she went to the car to get her satchel. 
 When she returned from the car, the satchel was taken from her, 
 and it was found to contain a pistol revolver containing six 
 chambers, all of which were loaded with ball. This pistol lay on 
 the top of the other articles in the satchel. The witness further 
 stated that Judge Terry passed down opposite Justice Field, 
 to a table below where they were sitting ; that in a few 
 minutes, whilst Justice Field was eating, Judge Terry 
 rose from his seat, went around behind him the Justice 
 not seeing him at the time and struck him two blows, 
 one on the side and the other on the back of the head; 
 that the second blow followed the other immediately; that 
 one was given with the right hand and the other with the 
 left; that Judge Terry then drew back his hand, with his fist 
 clenched, apparently to give the Justice a violent blow on the side 
 of his head, when he, Neagle, sprang to his feet, calling out to 
 TeFry, 'Stop! stop! I am an officer!' that Terry bore at the time 
 on his face an expression of intense hate and passion, the most 
 malignant the witness had ever seen in his life, and that he had 
 seen a great many men in his time in such situations, and that the 
 expression meant life or death for one or the other; that as he cried 
 out those words, 'Stop ! stop! I am an officer! ' he jumped between 
 Terry and Justice Field, and at that moment Judge Terry ap- 
 peared to recognize him, and instantly, with a growl, moved his 
 right hand to his left breast, to the position where he usually 
 carried his bowie-knife; that, as his hand got there, the Deputy 
 Marshal raised his pistol and shot twice in rapid succession, killing 
 him almost instantly. He further stated that the position of Judge 
 Field was such his legs being at the time under the table, and 
 he sitting that it would have been impossible for him to have 
 done anything even if had been armed, and that Judge Terry had 
 a verv furious expression, which was characterized by the witness 
 as that of an infuriated giant. He also added that his cry to him 
 to stop was so loud that it could be heard throughout the whole 
 room, and that he believed that a delay in shooting of two seconds 
 would have been fatal both to himself and Justice Field. 
 
 "The facts thus stated in the testimony of Justice Field and 
 the petitioner were corroborated by the testimony of all the wit- 
 
94 
 
 nesses to the transaction. The petitioner soon afterwards accom- 
 panied Justice Field to the car, and whilst in the car he was 
 arrested by a constable, and at the station below Lathrop was 
 taken by that officer from the car to Stockton, the county seat of 
 San Joaquin County, where he was lodged in the county jail. 
 Mr. Justice Field was obliged to continue on to San Francisco 
 without the protection of any officer. On the evening of that day 
 Mrs. Terry, who did not see the transaction, but was at the time 
 outside of the dining-room, made an affidavit that the killing of 
 Judge Terry was murder, and charged Justice Field and Deputy 
 Marshal Neagle with the commission of the crime. Upon this 
 affidavit, a warrant was issued by a Justice of the Peace at Stock- 
 ton against Neagle and also against Justice Field. Subsequently, 
 after the arrest of Justice Field, and after his being released by 
 the United States Circuit Court on habeas corpus upon his own 
 recognizance, the proceeding against him before the Justice of the 
 Peace was dismissed, the Governor of the State having written a 
 letter to the Attorney-General of the State, declaring that the 
 proceeding, if persisted in, would be a burning disgrace to the 
 State, and the Attorney-General having advised the District 
 Attorney of San Joaquin County to dismiss it. There was no 
 other testimony whatever before the Justice of the Peace except 
 the affidavit of Sarah Althea Terry upon which the warrant was 
 issued. 
 
 "In the suit of 'William Sharon against Mrs. Terry in the Cir- 
 cuit Court of the United States, it was adjudged that the alleged 
 marriage contract between her and Sharon, produced by her, was 
 a forgery, and it was held that she had attempted to support it by 
 perjury and subornation of perjury. She had also made threats 
 during the past year, and up to the time of the shooting of Judge 
 Terry, that she would kill the Circuit Judge and Justice Field, 
 and she repeated that threat up to the time she made her affidavit 
 for the arrest of Justice Field and Neagle ; and that she had 
 made such threats was a notorious fact in Stockton and through- 
 out the State. 
 
 "A petition was accordingly presented, on behalf of Neagle, to 
 the Circuit Court of the United States for a writ of habeas corpus 
 in this case, alleging, among other things, that he was arrested 
 and confined in prison for an act done by him in the performance 
 of his duty, namely, the protection of Mr. Justice Field, and taken 
 
95 
 
 away from the further protection which he was ordered to give 
 to him. The writ was issued, and upon its return the Sheriff of 
 San Joaquin County produced a copy of the warrant issued by 
 the Justice of the Peace of that county, and of the affidavit of 
 Sarah Althea Terry upon which it was issued. A traverse to 
 that return was then filed in this case, presenting various grounds 
 why the petitioner should not be held, the most important of 
 which were, that an officer of the United States, specially charged 
 with a particular duty, that of protecting one of the Justices of 
 the Supreme Court of the United States whilst engaged in the 
 performance of his duty, could not, for an act constituting the 
 very performance of that duty, be taken from the further dis- 
 charge of his duty and imprisoned by the State authorities, and 
 that when an officer of the United States in the discharge of his 
 duties is charged with an offense consisting in the performance of 
 those duties, and is sought to be arrested, and taken from the 
 further performance of them, he can be brought before the tri- 
 bunals of the nation of which he is an officer, and the fact then 
 inquired into. The Attorney-General of the State appeared with 
 the District Attorney of San Joaquin County, and contended that 
 the offense of which the petitioner is charged could only be in- 
 quired into before the tribunals of the State. 
 
 "The question of the jurisdiction of the national tribunal to 
 interfere in the matter was elaborately argued by counsel, the 
 Attorney-General of the State and Mr. Langhorne appearing with 
 the District Attorney of San Joaquin County on behalf of the 
 State, and Mr. Carey, United States Attorney, and Messrs. Herrin, 
 Mesick, and Wilson appearing on behalf of the petitioner. The 
 latter did not pretend that any person in this State, high or low, 
 who committed a crime, might not be tried by the local authori- 
 ties if it were a crime against the State, but that when in the per- 
 formance of his duties that alleged crime consisted in an act which 
 is deemed a part of the performance of a duty devolved upon him 
 by the laws of the United States, it was within the competency of 
 the national tribunals to determine in the first instance whether 
 that act was a duty devolving upon him, and if it was a duty de- 
 volving upon him, the officer had committed no offense against 
 the State, and was entitled to be discharged." 
 
 The court held that it was within the competency of 
 the President and the heads of the executive depart- 
 
96 
 
 merits representing him to direct that proceedings be 
 taken for the protection of officers of the Government 
 whilst in the discharge of their duties; that it was espe- 
 cially appropriate that such protection should be given 
 to Justices of the Supreme Court of the United States 
 whilst engaged in their respective circuits in the perform- 
 ance of their duties and in proceeding to and from them 
 for that purpose; that the Attorney-General, representing 
 the President, was fully justified in giving orders to the 
 Marshal of the California District to appoint a deputy to 
 look especially to the protection of Justices Field and 
 Sawyer from violence threatened by Terry and his wife; 
 and that the Deputy Marshal, acting under instructions 
 for their protection, was justified in any measures that 
 were necessary for that purpose, even to taking the life of 
 the assailant. It also held that the courts of the United 
 States had jurisdiction to protect an officer of the United 
 States from arrest by State authorities for the perform- 
 ance of any act imposed upon him by the Constitution 
 and laws of the United States. It therefore discharged 
 V Neagle from arrest. 
 
 The case and all the proceedings leading to it; the at- 
 tempted assassination of Judge Field by Terry; the 
 shooting of the latter by the Deputy Marshal assigned for 
 the protection of Judge Field, excited widespread interest 
 throughout the United States, and was the subject of dis- 
 cussion in all the leading periodicals of the country. 
 With rare exceptions the conduct of the officers, of the 
 Government in giving him protection, and the action of 
 the Deputy Marshal in shooting down his assailant, were 
 fully justified. There were some, not many, who insisted, 
 in their extreme devotion to States' rights, that the States 
 were to determine whether the Deputy Marshal in pro- 
 tecting Judge Field was justified in what he did. In other 
 words/they insisted that whether an officer of the United 
 States could be protected in the discharge of his duties, 
 and the extent of that protection, were not to be deter- 
 
97 
 
 mined by the tribunals of the sovereignty under which 
 he acted, but by the tribunals and officers of another 
 sovereignty. 
 
 From the judgment discharging Neagle an appeal was 
 taken to the Supreme Court of the United States, and by 
 it that judgment was affirmed. The doctrine declared in 
 these decisions was of a most important character, for 
 weak, indeed, would be that government whose officers 
 could not be protected by its tribunals, but who would 
 have to seek that protection in another and different sov- 
 ereignty. 
 
 While the leading periodicals throughout the country 
 spoke approvingly of the action of the Government, they 
 commended in strong terms the conduct and bearing of 
 Judge Field during the trying proceedings. A citation 
 from one or two of these periodicals will be sufficient to 
 indicate the general spirit of all. 
 
 The New Orleans Times-Democrat, in one of its issues at 
 this period, used the following language: 
 
 " If Judge Field of the Supreme Court, one of the nine highest 
 judges under our republican government, in traveling recently 
 over his circuit in California, had been left at the mercy of the 
 violent man who had repeatedly threatened his life, who had 
 proved himself ready with the deadly knife or revolver, it would 
 have been a disgrace to American civilization ; it would have 
 been a stigma and stain upon American manhood ; it would have 
 shown that the spirit of American liberty, which exalts and pays 
 reverence to our judiciary, had been replaced by a public apathy 
 that marked the beginning of the decline of patriotism. Judge 
 Field recognized this when, on being advised to arm him- 
 self in case his life was endangered, he uttered the noble words : 
 ' No, sir; I do not and will not carry arms, for when it is known 
 that the judges of the courts are compelled to arm themselves 
 against assaults offered in consequence of their judicial action it 
 will be time to dissolve the courts, consider the government a 
 failure, and let society lapse into barbarism.' That ringing 
 sentence has gone to the remotest corner of the land, and every- 
 where it has gone it should fire the American heart with a proud 
 resolve to protect forever the sanctity of our judiciary." 
 13 
 
98 
 
 The New York Herald, in its issue of August 19, 1889, 
 said: 
 
 " The sensation of the past week is a lesson in republicanism 
 and aeulogium on the majesty of the law. 
 
 " It was not a personal controversy between Stephen J. Field 
 and David S. Terry. It was a conflict between law and lawless- 
 ness between a judicial officer who represented the law and a 
 man who sought to take it into his own hands. One embodied the 
 peaceful power of the nation, the will of the people ; the other 
 defied that power and appealed to the dagger 
 
 "Justice Field's whole course shows a conception of judicial 
 duty that lends grandeur to a republican judiciary. It is an 
 inspiring example to the citizens and especially to the judges of 
 the country. He was reminded of the danger of returning to 
 California while Judge Terry and his wife were at large. His 
 firm answer was that it was his duty to go and he would go. He 
 was then advised to arm himself for self-defense. His reply em- 
 bodies a nobility that should make it historic: ' When it comes 
 to such a pass in this country that judges of the courts find it 
 necessary to go armed it will be time to close the courts them- 
 selves.' 
 
 " This sentiment was not born of any insensibility to danger, 
 Justice Field fully realized the peril himself. But above all feel- 
 ing of personal concern arose a lofty sense of the duty imposed upon 
 a justice of the nation's highest court. The officer is a representa- 
 tive of the law a minister of peace. He should show by his 
 example that the law is supreme; that all must bow to its author- 
 ity; that all lawlessness must yield to it. When judges who 
 represent the law resort to violence even in self-defense, the pistol 
 instead of the court becomes the arbiter of controversies and the 
 authority of the government gives way to the power of the mob. 
 
 "Rather than set a precedent that might tend to such a result, 
 that would shake popular confidence in the judiciary, that would 
 lend any encouragement to violence, a judge, as Justice Field 
 evidently felt, may well risk his own life for the welfare of the 
 commonwealth. He did not even favor the proposition that a 
 marshal be detailed to guard him. 
 
 " The course of the venerable Justice is an example to all who 
 would have the law respected. It is also a lesson to all who 
 would take the law into their own hands. 
 
99 
 
 " Not less exemplary was his recognition of the supremacy of 
 the law when the Sheriff of San Joaquin appeared before him 
 with a warrant of arrest on the grave charge of murder. The 
 warrant was an outrage, but it was the duty of the officer to serve 
 it, even on a Justice of the United States Supreme Court. When 
 the Sheriff hesitated and began to apologize before discharging 
 his painful duty, Justice Field promptly spoke out: 'Officer, pro- 
 ceed with your duty. I am ready, and an officer should always 
 do his duty.' These are traits of judicial heroism worthy the 
 admiration of the world." 
 
 The Argonaut, a leading paper of San Francisco, not a 
 political, but a literary paper, and edited with great abil- 
 ity, in its issue of August6, 1889, used the following lan- 
 guage : 
 
 "The course of Judge Field throughout this troublesome busi- 
 ness has been in the highest degree creditable to him. He has 
 acted with dignity and courage, and his conduct has been charac- 
 terized by most excellent taste. His answer, when requested to 
 go armed against the assault of Terry, is worthy of preservation. 
 . . . . And now that his assailant has been arrested in his 
 career by death, all honest men who respect the law will breathe 
 more freely. Judge Terry had gained a most questionable repu- 
 tation, not for courage in the right direction ; not for generosity 
 which overlooked, or forgave, or forget offenses against himself 
 or his interests. He never conceded the right to any man to hold 
 an opinion in opposition to his prejudices, or cross the path of his 
 passion with impunity. He could with vulgar whisper insult the 
 judge who rendered an opinion adverse to his client, and with 
 profane language insult the attorney who had the misfortune to 
 be retained by a man whose cause he did not champion. He had 
 become a terror to society and a walking menace to the social 
 circle in which he revolved. His death was a necessity, and, 
 except here and there a friend of blunted moral instincts, there will 
 be found but few to mourn his death, or criticise the manner of 
 his taking off. To say that Marshal Neagle should have acted in 
 any other manner than he did means that he was to have left 
 Justice Field in the claws of a tiger, and at the mercy of an in- 
 furiated, angry monster, who had never shown mercy or generosity 
 to an enemy in his power 
 
100 
 
 "Judge Field has survived the unhappy conflict which carried 
 Judge Terry to his grave. He is more highly honored now than 
 when this quarrel was thrust upon him ; he has lost no friends ; he 
 has made thousands of new ones, who honor him for protecting 
 with his life the honor of the American bench, the dignity of the 
 American law, and the credit of the American name. In the 
 home where Judge Terry lived he went to the grave almost un- 
 attended by the friends of his social surroundings, no clergyman 
 consenting to read the service at his burial. The Supreme Court 
 over which he had presided as Chief Justice refused to adjourn 
 in honor of his death, the press and public opinion, for a wonder, 
 in accord over the manner of his taking off." 
 
 Indeed, the public opinion of the country, as shown by 
 the press and declarations of prominent individuals, was 
 substantially one in its approval of the action of the 
 Government, the conduct of Neagle, and the bearing of 
 Justice Field. 
 
 At the time of the conquest of California by the forces 
 of the United States, on the 7th of July, 1846, there was 
 a Mexican pueblo at the site of the present city of San 
 Francisco. The term "pueblo" means people, or popula- 
 tion, but is used very much in the sense of the English word 
 "town." It is sometimes applied to a collection of indi- 
 viduals residing in a particular place; to settlements or 
 villages as well as to a regularly organized municipality. 
 The pueblo of San Francisco was a small settlement, but 
 of sufficient importance, as early as 1835, to have an 
 ayunlamienio composed of alcaldes and other officers, 
 and had continued under their government for several 
 years. At the time of the conquest, and for some time 
 afterwards, it was under 'the government of justices of the 
 peace or alcaldes. By the general law of Mexico, which 
 was in force at that time, pueblos or towns when once 
 recognized by public authority became entitled, for their 
 benefit, and for the benefit of their inhabitants, to the use 
 of the land embracing the site of the pueblos or towns, 
 and adjoining territory, within the limits of four square 
 leagues, which were to be measured by the officer of the 
 
101 
 
 government. Under these laws the pueblo of San Fran- 
 cisco asserted a claim to four square leagues to be 
 measured off from the northern portion of the peninsula 
 upon which the present city is situated. When San 
 Francisco was occupied by our forces citizens of the United 
 States were appointed by the military and naval com- 
 manders to act as alcades in place of the Mexican officers. 
 These alcades were called upon by emigrants in great 
 numbers for building lots, and grants to them were made 
 almost as fast as requested. Many emigrants arriving 
 subsequently denied the authority of the Mexican officers 
 to make grants of lands, and claiming that the land within 
 the pueblo was public property, they settled upon it where- 
 ever they found it unoccupied. In ' April, 1850, after 
 the organization of the State government, San Francisco 
 was incorporated as a city by the Legislature. She at 
 once made claim to the lands of the pueblo as its suc- 
 cessor, and when Congress had established a Board of 
 Land Commissioners to settle private land claims, she 
 presented her claim for confirmation to the board. In 
 December, 1854, the board confirmed the claim for a 
 portion of the four square leagues. Not satisfied with 
 the limitation of her claim, the city appealed from the 
 decree of the commissioners to the District Court of the 
 United States. The Government also appealed, but sub- 
 sequently withdrew its appeal. The case remained in 
 the District Court of the United States undetermined 
 until September, 1864, a period of nearly ten years, when 
 under the authority of an act of Congress that court trans- 
 ferred the case to the Circuit Court of the United States, 
 where it was decided in the following October. The decree 
 was afterwards somewhat modified, and as finally settled 
 was entered May 18, 1865, confirming the claim of the city 
 to a tract of land embracing so much of the upper portion 
 of the peninsula upon which the city is situated above 
 the ordinary high-water mark of 1846 as would contain 
 an area of four square leagues, the tract being bounded 
 
102 
 
 on the north and east by the Bay of San Francisco, on 
 the west by the Pacific Ocean, on the south by a due east 
 and west line drawn so as to include the area designated, 
 subject to certain deductions which are unnecessary to 
 mention. This statement is taken from the decision 
 of the Supreme Court of the United States in Trenouth 
 v. San Francisco, (100 U. S. Reports, p. 251.) The land 
 when confirmed was to be held in trust for the benefit of 
 lot holders, under grants from the pueblo, town, or city, 
 or other competent authority, and as to any residue in 
 trust for the use and benefit of the inhabitants of the 
 city. In April, 1851, the old charter of the city was re- 
 pealed, and a new charter granted. The limits of the 
 new charter covered two miles square. Pending the ap- 
 peal of the pueblo claim in the District Court, the city 
 passed an ordinance known in its history as the Van Ness 
 Ordinance, the object of which was to quiet the title of 
 persons owning land in the city. It relinquished all 
 right and claim of the city to lands within the corporate 
 limits as defined by the charter of 1851, with certain ex- 
 ceptions, to parties in actual possession thereof. There 
 thus arose some conflict between parties who claimed 
 under the pueblo title and those who claimed under the 
 grant of the city by the Van Ness ordinance. 
 
 In October following, 1865, the Judge proceeded as 
 usual to Washington to attend the then approaching term 
 of the Supreme Court of the United States, and thought 
 no more of the decision in the Pueblo case until his at- 
 tention was drawn to it by a most extraordinary circum- 
 stance. Just before leaving San Francisco Mr. Rulofson, 
 a photographer of note, requested the Judge to sit for a 
 photograph, expressing a desire to add it to his gallery. 
 The Judge consented, and a photograph of a large size 
 was taken. As he was leaving the rooms of the photo- 
 grapher the latter observed that he intended to make 
 some pictures of a small size from it, and would send the 
 Judge a few copies. On the morning of the 13th of Jan- 
 
103 
 
 uary following, 1866, at Washington, Delos Lake, a lawyer 
 of distinction in California, at one time a District Judge 
 of the State and then District Attorney of the United 
 States, joined the Judge, informing him as he did so that 
 the California steamer had arrived at New York, and that 
 he hoped the Judge had received some letters for him, as 
 he had directed his letters to be forwarded to the Judge's 
 care. The Judge replied that when he left his room his 
 messenger had not brought his mail, but if Mr. Lake 
 would accompany him he would probably find it there. 
 Accordingly the two proceeded to the Judge's room, where, 
 on the center table, lay the Judge's mail, consisting of a 
 large number of letters and papers. Among them the 
 Judge noticed a small package, about an inch and a half 
 thick, three inches in breadth, and three and one-half 
 inches in length. It was addressed as follows, the words 
 being printed : 
 
 (Three postage stamps.) 
 
 HON. STEPHEN J. FIELD, 
 
 Washington, D. C. 
 
 It bore the stamp x>f the San Francisco post office upon 
 the address. The Judge's name had evidently been cut 
 from the California Reports, but the words" Washington, 
 D. C.," and "Per Steamer" had been taken from a news- 
 paper. The slips were pasted on the package. On the 
 opposite side were the words in print: 
 
 FROM 
 
 GEO. H. JOHNSON'S 
 
 PIONEER GALLERY, 
 
 645 and 649 Clay Street, 
 
 San Francisco. 
 
 As the Judge took up the package he remarked that 
 this must come from Mr. Rulofson. " No," he immedi- 
 
104 
 
 ately added ; " Rulofson has nothing to do with the Pio- 
 neer Gallery." It then occurred to him it might be a 
 present for his wife, recollecting that the mail came by the 
 steamer which sailed from San Francisco about Christmas 
 time. " It may be," he said, " a Christmas present for my 
 wife. I will open it just far enough to see, and it be in- 
 tended for her I will close it and forward it to New York," 
 where she was at the time. He accordingly tore off the 
 covering, and raised the lid just far enough to enable him 
 to look inside. He was at once struck with the black 
 appearance of the inside. " What is this, Lake?" he said, 
 addressing himself to his friend. Judge Lake looked 
 over Judge Field's shoulder into the box as he held it in 
 his hand, and at once exclaimed, " It is a torpedo ! Don't 
 open it." The Judge was startled by the suggestion, as the 
 idea of a torpedo was the last thing in the world to occur 
 to him. He immediately laid the package on the sill of 
 the window, where it was subjected to a careful inspection 
 by them both, so far as it could be with the lid only one- 
 eighth of an inch open. Soon afterward Judge Lake 
 took the package to the Capitol, which was directly oppo- 
 site the Judge's room, and to the office of the clerk of the 
 Supreme Court, and showed it to Mr. Broom, one of the 
 deputies. They dipped the package in water, and left it 
 to soak for some minutes. They then took it into the 
 carriageway leading to the Senate chamber, and, shield- 
 ing themselves behind one of the columns, threw the box 
 against the wall. The blow broke the hinge off the lid 
 and exposed the contents. A murderous contrivance it 
 was! A real infernal machine ! Twelve cartridges, such 
 as are used in a common pistol, about an inch in length, 
 lay imbedded in a paste of some kind, covered with ful- 
 minating powder, and was connected with a bunch of fric- 
 tion matches, a strip of sand-paper, and a piece of linen 
 attached to the lid, so that on opening the box the matches 
 would be ignited and the whole explode. The package was 
 sent to the War Department, and a report was returned by 
 
105 
 
 the officers who examined it, with a detailed statement of 
 the machine. Between the outside covering and the box 
 there were two or three folds of tissue paper, placed there 
 to prevent the possibility of an explosion from the stamp- 
 ing at the post office, or the striking against other pack- 
 ages during the voyage from San Francisco to New York. 
 On the inside of the lid was pasted a slip cut from a San 
 Francisco paper, dated October 31, 1864, stating that on the 
 day previous the Judge had decided the case of the city 
 against the United States, involving its claim to four- 
 square leagues of land, and giving the opening lines of 
 his opinion. The Secretary of War, Mr. Stanton, imme- 
 diately telegraphed in cipher to General Halleck, then in 
 command at San Francisco, to find out if possible the 
 person who made and sent the infernal machine. Gen- 
 eral Halleck put the detectives of his department on the 
 search. Others employed the detectives of the San Fran- 
 cisco police, but all in vain. Suspicions were excited as 
 to the complicity of different parties, but they were never 
 sustained by sufficient evidence to justify the arrest of 
 any one. The instrument, after remaining in the hands 
 of the detectives of San Francisco for nearly two years, 
 was returned to the Judge, and is now in his possession. 
 In speaking of this occurrence the Judge says it has often 
 been a matter of wonder to him how it was that some good 
 angel whispered to him not to open the box. His im- 
 petuous temperament would naturally have led him to 
 tear it open without delay. Probably such hesitation in 
 opening a package addressed to him never before oc- 
 curred, and probably never will again. " Who knows," 
 he says, " but a mother's prayer for the protection of her 
 son, breathed years before, was answered then? Who 
 can say that her spirit was not then hovering over him, 
 and whispering caution in his ears?" 
 
 This is the only case, except that of the Sharon and 
 Terry matter, spoken of in another portion of this sketch, 
 where violence was attempted against the Judge for a 
 
 14 
 
106 
 
 decision he rendered. In consequence of the sudden rise 
 of real property in California by reason of the immense 
 emigration to that State, the development of its mineral 
 wealth, and the discovery of the extraordinary fertility of 
 its soil, the litigation in a multitude of cases involved 
 great values. Parties by decisions rendered with refer- 
 ence to mines, and also with reference to land titles to 
 property upon which large and valuable buildings had 
 been erected and even cities had grown, were made rich 
 or poor in a day. Some who in the morning deemed 
 themselves rich, found when the decision in their case 
 was made, that they were stripped of nearly every- 
 thing. Others who were deemed poor in the morning 
 found themselves, by the decision, men of wealth in ' 
 the evening. Of course, a great deal of feeling was pro- 
 duced by the decisions rendered. Those who were suc- 
 cessful in their litigations found that the courts had only 
 performed their duty in the decisions they had rendered. 
 Those against whom the decisions were rendered could 
 not be satisfied without imputing to the Judges, in many 
 instances, dishonorable and dishonest motives. There- 
 fore it was that all judicial officers of California who 
 were called upon to pass upon titles to lands and to settle 
 controversies in which large amounts were involved, 
 were, in many cases, subjected to gross and unfounded 
 imputations. But the cases mentioned are the only ones 
 recalled in which violence was resorted to against the 
 Judge for any of his decisions. 
 
 The appreciation by the court for its associate, Justice 
 Field, has ever been, not only kind and courteous, but 
 marked with expressions of great consideration. When 
 the late Chief Justice Waite died, his associates recom- 
 mended Justice Field as his successor. In no instance 
 has so great a mark of consideration been extended by 
 Justices of the court to one of its own number. But the 
 President seemed to consider that a rule, which has hereto- 
 fore prevailed in the court, with but one exception, of desig- 
 
107 
 
 nating a member of the bar and not an associate of the 
 court, to be its Chief Justice, should govern him, and he 
 passed by the recommendation of the associates of Justice 
 Field. The exceptional case referred to was that of 
 Associate Justice Gushing being appointed by Washing- 
 ton as Chief Justice, but he declined to take the place on 
 account of his age and impaired health. In no other 
 instance has an Associate Justice ever been appointed. 
 
 The following letters from Justice Bradley and Justice 
 Matthews to Mr. Field, shows the sentiments of the court. 
 On the day that the nomination of Mr. Fuller as Chief 
 Justice to succeed Mr. Waite was made, Justice Bradley 
 wrote to Justice Field a letter on the nomination, giving 
 his estimate of the persons who had previously filled this 
 office, and adding: 
 
 " It is greatly to be lamented that a popular prejudice, fostered, 
 no doubt, by those who would profit by it, should exist, as it 
 seems to do, against the promotion of an Associate Justice to the 
 place of Chief Justice of the Supreme Court. The Associate 
 Justices are generally selected with as much anxiety on the part 
 of the Executive to procure fitness and ability for the place as 
 can possibly be exercised in the selection of a Chief Justice ; and if, 
 when a Chief Justice is to be appointed, they are passed by, and 
 a man is imported into the court, without the experience in gen- 
 eral and Federal jurisprudence and in the business of the court, 
 which they are presumed to possess, it can only be justified by 
 the selection of a man who can bring to the court the prestige of 
 eminence already acquired in statesmanship and knowledge of 
 public law and public affairs. Qualities of this kind are of great 
 assistance in the deliberations which the Supreme Court is often 
 called upon to give to the questions that come before it for adjudi- 
 cation. When such a selection is made, neither the public nor 
 the court has, or can have, a word of complaint to utter. It has 
 a fitness which challenges the approbation of all sensible men. 
 But when such a man is not, or cannot be found, or is not readily 
 available for Executive selection, how senseless and absurd it is 
 to decry an appointment from the bench itself, especially when, 
 by universal acknowledgment, it can furnish more than one 
 
108 
 
 member not wanting in any requisite for the distinguished place 
 to be filled, and when, as in the present case, there is entire har- 
 mony in the bench itself as to the appointment that should be 
 made. I think, my dear Judge, that I am not mistaken in say- 
 ing that every member of the court (yourself excluded) earnestly 
 desired your appointment, and most, if not all, of them distinctly 
 signified to the President their wish to this effect. He had the 
 frankness to concede the general correctness of our views, as I 
 have stated them above, looking, as they did, to the continued 
 high standing of the court in public estimation, and gave assur- 
 ance that if he did not select a member of the bench, he would 
 make such a selection as would commend itself to the court as 
 
 well as to the public 
 
 " But, my dear Judge, you cannot be deprived of the satisfac- 
 tion of knowing that if your associates could have controlled 
 the appointment, you would have been Chief Justice to-day. 
 You would have had not only the suffrages of your brethren on 
 the bench, but I have good reason to believe that your confirma- 
 tion by the Senate would have been prompt and unanimous. 
 " Yours, sincerely, 
 
 (Signed) "JOSEPH P. BBADLEY." 
 
 As the Justices of the court were about to separate, Mr. 
 Justice Matthews addressed to Justice Field the following 
 letter : 
 
 "WASHINGTON, D. C., June 19, 1888. 
 " MY DEAR JUDGE FIELD : 
 
 " We are about to part for the summer, and I may not have an 
 opportunity of saying good-bye in person before the day of your 
 departure. I take this method, therefore, of wishing yon a safe 
 journey to your circuit, a pleasant vacation, and your prompt 
 return at the appointed time with renewed health and vigor. 
 May I add the wish that you were coming back as Chief Justice? 
 I wish I could call it a hope. I certainly did cherish the desire, 
 when it became proper to consider the question of filling the 
 vacancy, that the administration would find in your promotion 
 the readiest and most satisfactory mode of promoting the public 
 interest. And such I know was the general feeling on the part 
 of your brethren on the bench, and that without disparagement 
 to others spoken of as competent to fill the great and dignified 
 
109 
 
 position of Chief Justice. It is natural, perhaps, that we should 
 think one, who had for so many years and so worthily discharged 
 the functions of an Associate Justice, by reason of that experience, 
 better fitted to preside over the court in which he had so honorably 
 served. 
 
 "With best wishes for you now and always, I am, 
 " Your friend, 
 
 (Signed) "STANLEY MATTHEWS. 
 
 "MR. JUSTICE FIELD, Washington, D. C." 
 
 At the centennial celebration of the organization of 
 the Supreme Court, which took place in New York on the 
 4th of February, 1889, there was an immense gathering 
 of great lawyers, eminent judges, and men distinguished 
 in different departments of life for honorable public 
 services, from all parts of the country. Mr. Justice Field 
 was selected by his associates to reply, on behalf of the 
 court, to the addresses which were made on that occasion. 
 It is sufficient to say that the Justices were satisfied and 
 pleased with the manner in which he discharged his duty. 
 His reply is published in the Appendix to the 134th vol- 
 ume of the United States Supreme Court Reports. 
 
 In 1865, Mr. Field received the degree of LL. D. from 
 his old alma mater, Williams College. He has been at 
 different times invited to speak at its commencements, 
 either in an address to its alumni or to its students, but 
 has declined, from the fact that the effort to remain stand- 
 ing during an address of ordinary length would be too 
 fatiguing, owing to his lameness, and not from want of 
 affection or respect to his old alma mater. 
 
 In 1869 he was appointed Professor of Law in the 
 University of California. In accepting it he doubted 
 whether he would be able, during his continuance on the 
 bench, to deliver any lectures or to hear recitations of any 
 classes, but he intended to retire from the bench, at the 
 age of seventy, and to devote the remainder of his life to 
 the duties of the professorship. Subsequent events pre- 
 vented the carrying out of this purpose. 
 
110 
 
 He is now seventy-six years of age, November 4, 1892, 
 and, from his vigorous health, has the prospect of some 
 years more on the bench. On the 13th of October, the 
 length of his service on the Supreme bench of California 
 and the bench of the Supreme Court of the United States, 
 together, amounted to thirty-five years. 
 
 The labors of Judge Field on the bench of the Supreme 
 Court of California contributed greatly, as already stated, 
 to the settlement of land titles in that State. After he 
 went on the bench of the Supreme Court of the United 
 States and removed to Washington, he took great interest 
 in the legislation of Congress which in any way tended to 
 the quiet and security of titles in that State. In two in- 
 stances his influence in that direction was marked. As 
 stated above, there was great confusion and uncertainty 
 in the titles of lands within the limits of the city of 
 San Francisco. As successor of the Mexican pueblo, it 
 claimed title to four square leagues of land upon which the 
 city was situated. Many citizens relied upon grants 
 from the alcaldes of the pueblo, and many asserted title 
 from possession merely. The United States considered all 
 the land, not granted previous to the cession of California, 
 as part of the public domain. To quiet the possession of 
 occupants, so far as the pueblo title was concerned, the 
 common council of the city of San Francisco passed the 
 ordinance known from the name of its author as the 
 " Van Ness Ordinance." It was approved by an act of 
 the legislature of the State in March, 1858. Of course, 
 if the title was in the United States this confirmatory 
 action of the legislature was inoperative. But doubt 
 as to the efficacy of the confirmation from that source 
 was removed by the act of Congress of July 1, 1864, 
 to expedite the settlement of titles to lands in the State 
 of California. (13 Stat. chap. 194.) That act was in- 
 troduced into Congress and its passage secured by Sen- 
 ator Conness, of California, who always took a deep interest 
 
Ill 
 
 in everything that tended to the advancement of the State, 
 and he thought that nothing would do more for its pros- 
 perity than giving security to titles to lands. In framing 
 the act he consulted Judge Field, and, at his suggestion, 
 inserted section five, which the Judge drafted, but without 
 the proviso, which was added at the request of the 
 Commissioner of the Land Office. By that section all the 
 right and title of the United States to the lands within the 
 corporate limits of San Francisco, as defined by its charter 
 of 1851, were, with certain exceptions, relinquished and 
 granted to the city and its successors, for the uses and pur- 
 poses specified in the " Van Ness Ordinance." The holders 
 of grants from alcaldes of the pueblo, and the occupants 
 of lands within the limits of the charter of 1851, were thus 
 quieted in their possessions. Subsequently, when, upon 
 the decision in the Circuit Court of the " Pueblo Case," its 
 claim to four square leagues of land was confirmed, appeals 
 were taken to the Supreme Court, both by the United 
 States and by the city; by the United States from 
 the whole decree, and by the city from so much of 
 it as included certain reservations in the estimate of 
 the quantity of land confirmed. Whilst the appeals were 
 pending in that court, Congress, on the 8th of March, 1866, 
 passed an act relinquishing and granting to the city, 
 all the right and title of the United States to the land 
 confirmed, subject, however, to the reservations and excep- 
 tions designated, and upon the trust that all the land, not 
 previously granted by the city, should be conveyed to 
 parties in the bona fide actual possession thereof, by them- 
 selves or tenants, on the passage of the act, in such quanti- 
 ties and upon such terms and conditions as the Legislature 
 of the State of California might prescribe, except such 
 parcels as might be reserved and set apart for public uses. 
 This act was drawn by Judge Field and introduced by Sen- 
 ator Conness, through whose exertions, and those of Senator 
 Stewart, of Nevada, it was passed unanimously by Con- 
 gress. The title of the city of San Francisco to its munic- 
 
112 
 
 ipal lands rests, therefore, upon the decree of the court as 
 ratified and confirmed by this act of Congress. 
 
 The Judge also drafted many sections of laws passed 
 by Congress having for their object the removal of unnec- 
 essary obstructions to the administration of justice. 
 

 
 ^m!i^i 
 
nil 
 
 JOHN HO WELL, I