^PERSONAL REMINISCENCES 
 
 EARLY DAYS IN CALIFORNIA, 
 
 OTHER SKETCHES. 
 
 STEPHEN J. FIELD. 
 
 TO WHICH IS ADDED THE STORY OF HIS ATTEMPTED 
 
 ASSASSINATION BY A FORMER ASSOCIATE ON 
 
 THE SUPREME BENCH OF THE STATE. 
 
 BY 
 
 HON. GEORGE C- GORHAM. 
 
 PRINTED FOR A FEW FRIENDS. 
 
 NOT PUBLISHED.
 
 Copyright, 1893, by 
 STEPHEN J. FIELD.
 
 THE following sketches were taken down by a ste- 
 nographer in the summer of 1877, at San Francisco, 
 from the narrative of Judge Field. They are printed 
 at the request of a few friends, to whom they have an 
 interest which they could not excite in others.
 
 INDEX. 
 
 PAGE. 
 
 Why and how I came to California 1 
 
 First experiences in San Francisco. Visit to Marysville, and 
 
 elected First Alcalde of that District 7 
 
 Experiences as Alcalde 27 
 
 The Turner Controversy ' 40 
 
 Running for the Legislature 57 
 
 The Turner Controversy continued 68 
 
 Life in the Legislature 75 
 
 Friendship for David C. Broderick 85 
 
 Legislation secured and beginning a new life 88 
 
 The Barbour Difficulty 105 
 
 Removal from Marysville. Life on the Supreme Bench. End 
 
 of Judge Turner 122 
 
 Career on the Supreme Bench of California, as described by 
 
 Judge Baldwin 135 
 
 THE ANNOYANCES OF MY JUDICIAL LIFE. 
 
 Rosy views of judicial life gradually vanishing. Unsettled land 
 titles of the State. Asserted ownership ty the State of 
 
 gold and silver found in the soil. Present of a Torpedo. . . 147 
 
 Hostility to the Supreme Court after the Civil War. The Sco- 
 
 field Resolution 186 
 
 The Moulin Vexation 218 
 
 The Hastings Malignity 226 
 
 APPENDIX. 
 
 PAGE. 
 
 Ex. A. Notice of departure from New York for California, No- 
 vember 13, 1849 241 
 
 Ex. B. Aid at election of Alcalde by Wm. H. Parks. A sketch 
 
 of my opponent 241 
 
 Ex. C. Oath of office as Alcalde..., , 243
 
 PAGE. 
 
 Ex. D. Order of District ^Jourt imprisoning and fining me for 
 alleged contempt of court ; also Order expelling 
 Messrs. Goodwin and Mulford and myself from the 
 Bar ; and Order imprisoning and fining Judge Haun 
 for releasing me from imprisonment upon a writ of 
 habeas corpus, and directing that the order to im- 
 prison me be enforced 244 
 
 Ex. E. Record of Proceedings in the Court of Sessions, when 
 attempt was made to arrest its presiding Judge : and 
 the testimony of the Clerk of the District Court in 
 reference to its proceedings relating to myself and 
 Judge Haun 245 
 
 Ex. F. Petition of Citizens of Marysville to the Governor to 
 
 suspend Judge Turner from office 249 
 
 Ex. G. Letters of Ira A. Eaton and A. M. Winn 252 
 
 Ex. H, No. I. Letters from Surviving Members of the Legisla- 
 ture of 1851, who voted to indefinitely postpone the 
 proceedings for the impeachment of Judge Turner... 253 
 
 Ex. H, No. II. Letter of Judge Mott on the difficulty with 
 
 Judge Barbour 258 
 
 Ex. I. Letter of L. Martin, the friend of Judge Barbour in his 
 
 street attack 261 
 
 Ex. J. Sections 4, 5, and 7 of the act of July 1, 1864, to expe- 
 dite the settlement of titles to lands in California : 
 and the act of March 8, 1866, to quiet the title to 
 certain lands in San Francisco < 262 
 
 Ex. K. Letter of Judge Lake giving an account of the Tor- 
 pedo 265 
 
 Ex. L. Extract from the Report of the Register and Receiver 
 of the Land-Office in the matter of the contests for 
 lands on the Soscol Ranch... 267 
 
 The Attempted Assassination of Mr. Justice Field 279
 
 WHY AND HOW I CAME TO CALIFORNIA. 
 
 SOME months previous to the Mexican War, my 
 brother David Dudley Field, of New York City, wrote 
 two articles for the Democratic Eeview upon the sub- 
 ject of the Northwestern Boundary between the terri- 
 tory of the United States and the British Possessions. 
 One of these appeared in the June, and the other in 
 the November number of the Review for 1845.* While 
 writing these articles he had occasion to examine sev- 
 eral works on Oregon and California, and, among 
 others, that of Greenhow, then recently published, and 
 thus became familiar with the geography and political 
 history of the Pacific Coast. The next Spring, and 
 soon after the war broke out, in the course of a con- 
 versation upon its probable results, he remarked, that 
 if he were a young man, he would go to San Francisco ; 
 that he was satisfied peace would never be concluded 
 without our acquiring the harbor upon which it was 
 situated ; that there was no other good harbor on the 
 coast, and that, in his opinion, that town would, at no 
 distant day, become a great city. He also remarked 
 
 * The first article was entitled "The Oregon Question," and the 
 second " The Edinburgh and Foreign Quarterly on the Oregon 
 Question."
 
 that if I would go he would furnish the means, not 
 only for the journey, but also for the purchase of land 
 at San Francisco and in its vicinity. This conversa- 
 tion was the first germ of my project of coming to 
 California. 
 
 Some months afterwards, and while Col. Stevenson's 
 regiment was preparing to start from New York for 
 California, my brother again referred to the same sub- 
 ject and suggested the idea of my going out with the 
 regiment. We had at that time a clerk in the office 
 by the name of Sluyter, for whom I had great regard. 
 With him I talked the matter over, it being my inten- 
 tion, if I should go at all, to induce him if possible to 
 accompany me. But he wished to get married, and I 
 wished to go to Europe. The result of our conference 
 was, that the California project was deferred, with the 
 understanding, however, that after my return from Eu- 
 rope we should give it further consideration. But the 
 idea of going to California thus suggested, made a 
 powerful impression upon my mind. It pleased me. 
 There was a smack of adventure in it. The going to 
 a country comparatively unknown and taking a part in 
 fashioning its institutions, was an attractive subject of 
 contemplation. I had always thought that the most 
 desirable fame a man could acquire was that of being 
 the founder of a State, or of exerting a powerful influ- 
 ence for good upon its destinies ; and the more I
 
 thought of the new territory about to fall into oar 
 hands beyond the Sierra Nevada, the more I was fas- 
 cinated with the idea of settling there and growing up 
 with it. 
 
 But I was anxious first to visit, or rather to revisit, 
 Europe. I was not able, however, to make the neces- 
 sary arrangements to do so until the Summer of 1848. 
 On the first of May of that year, I dissolved partner- 
 ship with my brother, and in June started for Europe. 
 In the following December, while at Galiguani's News 
 Boom in Baris, I read in the New York Herald the 
 message of Bresident Bolk, which confirmed previous 
 reports, that gold had been discovered in California, 
 then recently acquired. It is difficult to describe the 
 effect which that message produced upon my mind. I 
 read and re-read it, and the suggestion of my brother 
 to go to that country recurred to me, and I felt some 
 regret that I had not followed it. I remained in Eu- 
 rope, however, and carried out my original plan of 
 seeing its most interesting cities, and returned to the 
 United States in 1849, arriving at New York on the 1st 
 of October of that year. 
 
 There was already at that early period a steamer 
 leaving that city once or twice every month for Cha- 
 gres. It went crowded every trip. The impulse which 
 had been started in me by my brother in 1846, 
 strengthened by the message of Bresident Bolk, had 
 
 \j o *
 
 now become irresistible. I joined the throng, and on 
 November 13th, 1849, took passage on the " Crescent 
 City ; " and in about a week's time, in company with 
 many others, I found myself at the little old Spanish- 
 American town of Chagres, on the Isthmus of Panama. 
 There we took small boats and were poled up the river 
 .by Indians to Cruces, at which place we mounted 
 mules and rode over the mountain to Panama. There 
 I found a crowd of persons in every degree of excite- 
 ment, waiting for passage to California. There were 
 thousands of them. Those who came on the " Crescent 
 City " had engaged passage on the Pacific side also ; 
 but such was the demand among the multitude at 
 Panama for the means of transportation, that some of 
 the steerage passengers sold their tickets from that 
 place to San Francisco for $750 apiece and took their 
 chances of getting on cheaper. These sales, notwith- 
 standing they appeared at the time to be great bar- 
 gains, proved, in most cases, to be very unfortunate 
 transactions ; for the poor fellows who thus sold their 
 tickets, besides losing their time, exposed themselves 
 to the malaria of an unhealthy coast. There was in 
 fact a good deal of sickness already among those on 
 the Isthmus, and many deaths afterwards occurred ; 
 and among those who survived there was much suffer- 
 ing before they could get away. 
 
 The vessel that conveyed us, and by " us " I mean
 
 the passengers of the " Crescent City," and as many 
 others as could by any possibility procure passage 
 from Panama to San Francisco was the old steamer 
 " California." She was about one thousand tons bur- 
 den ; but probably no ship of two thousand ever car- 
 ried a greater number of passengers on a long voyage. 
 When we came to get under way, there did not seem 
 to be any spare space from stem to stern. There were 
 over twelve hundred persons on board, as I was in- 
 formed.* Unfortunately many of them carried with 
 them the seeds of disease. The infection contracted 
 under a tropical sun, being aggravated by hardships, 
 insufficient food, and the crowded condition of the 
 steamer, developed as the voyage proceeded. Panama 
 fever in its worst form broke out ; and it was not long 
 before the main deck was literally covered with the 
 sick. There was a physician attached to the ship ; but 
 unfortunately he was also prostrated. The condition 
 of things was very sad and painful. 
 
 Among the passengers taken sick were two by the 
 name of Gregory Yale and Stephen Smith ; and I 
 turned myself into a nurse and took care of them. 
 Mr. Yale, a gentleman of high attainments, and who 
 afterwards occupied a prominent place at the bar of 
 
 * NOTE. The number of passengers reported to the journals of 
 San Francisco on the arrival of the steamer was much less than this, 
 probably to avoid drawing attention to the violation of the statute 
 which restricted the number.
 
 the State, was for a portion of the time dangerously ill, 
 and I believe that but for my attentions he would have 
 died. He himself was of this opinion, and afterwards 
 expressed his appreciation of my attention in every 
 way he could. In the many years I knew him he never 
 failed to do me a kindness whenever an opportunity 
 presented. Finally, on the evening of December 28, 
 1849, after a passage of twenty-two days from Panama, 
 we reached San Francisco, and landed between eight 
 and nine o'clock that night.
 
 FIRST EXPERIENCES IN SAN FRANCISCO. 
 
 UPON landing from the steamer, my baggage con- 
 sisted of two trunks, and I had only the sum of ten 
 dollars in my pocket. I might, perhaps, have carried 
 one trunk, but I could not manage two ; so I was 
 compelled to pay out seven of my ten dollars to have 
 them taken to a room in an old adobe building on the 
 west side of what is now known as Portsmouth Square. 
 This room was about ten feet long by eight feet wide, 
 and had a bed in it. For its occupation the sum of 
 $35 a week was charged. Two of my fellow-passengers 
 and myself engaged it. They took the bed, and I took 
 the floor. I do not think they had much the advantage 
 on the score of comfort. 
 
 The next morning I started out early with three 
 dollars in my pocket. I hunted up a restaurant and 
 ordered the cheapest breakfast I could get. It cost 
 me two dollars. A solitary dollar was, therefore, all 
 the money in the world I had left, but 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 exhilarat- 
 ing and exciting in the atmosphere which made every- 
 body cheerful and buoyant. As I walked along the
 
 8 
 
 streets, I inet a great many persons I had known in 
 New York, and they all seemed to be in the highest 
 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 some- 
 thing infectious in the use of the word, or rather in 
 the feeling, which made its use natural. I had not 
 been out many hours that morning 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 everybody 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 what is now the east side of Montgomery 
 street, between Jackson and Sacramento streets ; 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 locality then called Happy Valley, where Mission 
 and Howard streets now are, between Market and 
 Folsoni streets, was occupied in a similar way. The 
 streets were rilled with people, it seemed to me, from
 
 every nation under Heaven, all wearing their peculiar 
 costiimes. The majority of them were from the States; 
 and each State had furnished specimens 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 Chilians, 
 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 every- 
 thing 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 arti- 
 cles and reduce prices. News fivom 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 num- 
 bers, if I recollect aright, 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. And this reminds me of an expe- 
 rience of my own with some chamois skins. Before I
 
 10 
 
 left New York, I purchased a lot of stationery and the 
 usual accompaniments of a writing-table, as I intended 
 to practise my profession in California. The stationer, 
 learning from some remark made by my brother Cyrus, 
 who was with me at the time, that I intended to go to 
 California, said that I ought to buy some chamois skins 
 in which to wrap the stationery, as they would be needed 
 there to make bags for carrying gold-dust. Upon this 
 suggestion, I bought a dozen skins for ten dollars. On 
 unpacking my trunk, in Marysville, these chamois skins 
 were of course exposed, and a gentleman calling at the 
 tent, which I then occupied, asked me what I would take 
 for them. I answered by inquiring what he would give 
 for them. He replied at once, an ounce apiece. My 
 astonishment nearly choked me, for an ounce was taken 
 for sixteen dollars ; at the mint, it often yielded eighteen 
 or nineteen dollars in coin. I, of coarse, let the skins 
 go, and blessed the hunter who brought the chamois 
 down. The purchaser made bags of the skins, and the 
 profit to him from their sale amounted to two ounces on 
 each skin. From this transaction, the story arose that 
 I had sold porte-monnaies in Marysville before practis- 
 ing law, which is reported in the interesting book of 
 Messrs. Barry and Patten, entitled " Men and Memories 
 of San Francisco in the Spring of 1850." The story has 
 no other foundation. 
 
 But I am digressing from the narrative of my first
 
 11 
 
 experience in San Francisco. After taking my break- 
 fast, as already stated, the first thing I noticed was a 
 small building in the Plaza, near which a crowd was 
 gathered. Upon inquiry, I was told it was the court- 
 house. I at once started for the building, and on 
 entering it, found that Judge Almond, of the San 
 Francisco District, was holding what was known as the 
 Court of First Instance, and that a case was on trial. 
 To my astonishment I saw two of my fellow-passengers, 
 who had landed the night before, sitting on the jury. 
 This seemed so strange that I waited till the case 
 was over, and then inquired how it happened they 
 were there. They said that they had been attracted to 
 the building by the crowd, just as I had been, and 
 that while looking on the proceedings of the court the 
 sheriff had summoned them. They replied to the 
 summons, that they had only just arrived in the 
 country. But he said that fact made no difference ; 
 nobody had been in the country three months. They 
 added that they had received eight dollars each for 
 their services. At this piece of news I thought of my 
 solitary dollar, and wondered if similar good fortune 
 might not happen to me. So I lingered in the court- 
 room, placing myself near the sheriff in the hope that 
 on another jury he might summon me. But it was not 
 my good luck. So I left the temple of justice and 
 strolled around the busy city, enjoying myself with the
 
 12 
 
 novelty of everything. Passing down Clay street, and 
 near Kearney street, my attention was attracted by a 
 sign in large letters, " Jonathan D. Stevenson, Gold 
 Dust Bought and Sold Here." As I saw this inscrip- 
 tion I exclaimed, " Hallo, here is good luck," for I 
 suddenly recollected that when I left New York my 
 brother Dudley had handed me a note against Steven- 
 son for $350 or $400 ; stating that he understood the 
 Colonel had become rich in California, and telling me, 
 that if such were the case, to ask him to pay the note. 
 I had put the paper in my pocket-book and thought no 
 more of it until the sight of the sign brought it to my 
 recollection, and also reminded me of my solitary dol- 
 lar. Of course I immediately entered the office to see 
 the Colonel. He had known me very well in New 
 York, and was apparently delighted to see me, for he 
 gave me a most cordial greeting. After some inquiries 
 about friends in New York, he commenced talking 
 about the country. "Ah," he continued, " it is a glori- 
 ous country. I have made two hundred thousand 
 dollars." This was more than I could stand. I had 
 already given him a long shake of the hand but I 
 could not resist the impulse to shake his hand 
 again, thinking all the time of my financial condi- 
 tion. So I seized his hand again and shook it 
 vigorously, assuring him that I was delighted to 
 hear of his good luck. We talked over the matter,
 
 13 
 
 and in my entlmsiasm I shook his hand a third time, 
 expressing my satisfaction at his good fortune. We 
 passed a long time together, he dilating all the while 
 upon the fine country it was in which to make money. 
 At length I pulled out the note and presented it to 
 him. I shall never forget the sudden change, from 
 wreaths of smiles to an elongation of physiognomy, 
 expressive of mingled surprise and disgust, which came 
 over his features on seeing that note. He took it in 
 his hands and examined it carefully ; he turned it over 
 and looked at its back, and then at its face again, and 
 then, as it were, at both sides at once. At last he said 
 in a sharp tone, " That's my signature," and began to 
 calculate the interest ; that ascertained, he paid me the 
 full amount due. If I remember rightly he paid me 
 $440 in Spanish doubloons, but some of it may have 
 been in gold dust. If it had not been for this lucky 
 incident, I should have been penniless before night. 
 
 The good fortune which the Colonel then enjoyed 
 has not always attended him since. The greater part 
 of his property he lost some years afterwards, but he 
 has always retained, and now in his seventy-eighth 
 year* still retains, great energy and vigor of mind, and 
 a manly independence of character, which have made 
 him warm friends. In all the changes of my life his 
 
 * Col. Stevenson was born at the commencement of the century, 
 and is therefore now, 1893, in his ninety-fourth year.
 
 14 
 
 name is pleasantly associated with the payment of the 
 note, and the timely assistance which he thus gave me. 
 His career as commander of the well-known regiment 
 of New York volunteers which arrived in California in 
 March, 1847, and subsequently in the State, are mat- 
 ters of public history. 
 
 As soon as I found myself in funds I hired a room 
 as an office at the corner of Montgomery and Clay 
 streets for one month for $300, payable in advance. 
 It was a small room, about fifteen feet by twenty. I 
 then put out my shingle as attorney and counsellor-at- 
 law, and waited for clients ; but none came. One day 
 a fellow-passenger requested me to draw a deed, for 
 which I charged him an ounce. He thought that too 
 much, so I compromised and took half an ounce. For 
 two weeks this was the only call I had upon my pro- 
 fessional abilities. But I was in no way discouraged. 
 To tell the truth I was hardly tit for business. I was 
 too much excited b} 7 the stirring life around me. There 
 was so much to hear and see that I spent half my time 
 in the streets and saloons talking with people from the 
 mines, in which I was greatly interested. I felt sure 
 that there would soon be occasion in that quarter for 
 my services. 
 
 Whilst I was excited over the news which was daily 
 brought from the mines in the interior of the State, 
 and particularly from the northern part, an incident
 
 15 
 
 occurred which determined my future career in Cali- 
 fornia. I had brought from New York several letters 
 of introduction to persons who had preceded me to 
 the new country, and among them one to the mercan- 
 tile firm of Simmons. Hutchinson & Co., of San 
 Francisco, upon whom I called. They received me 
 cordially, and inquired particularly of my intentions 
 as to residence and business. They stated that there 
 was a town at the head of river navigation, at the 
 junction of Sacramento and Feather Rivers, which 
 offered inducements to a young lawyer. They called 
 it Veriion, and said they owned some lots in it which 
 they would sell to me. I replied that I had no money. 
 That made no difference, they said ; they would let me 
 have them on credit ; they desired to build up the 
 town and would let the lots go cheap to encourage its 
 settlement. They added that they owned the steamer 
 " McKim," going the next day to Sacramento, and 
 they offered me a ticket in her for that place, which 
 they represented to be not far from Vernon. Accord- 
 ingly I took the ticket, and on January 12th, 1850, 
 left for Sacramento, where I arrived the next morning. 
 It was the time of the great flood of that year, and the 
 entire upper country seemed to be under water. 
 Upon reaching the landing place at Sacramento, we 
 took a small boat and rowed to the hotel. There I 
 found a great crowd of earnest and enthusiastic peo-
 
 16 
 
 pie, all talking about California, and in the highest 
 spirits. In fact I did not meet with any one who did 
 not speak in glowing terms of the country and antici- 
 pate a sudden acquisition of fortune. I had already 
 caught the infection myself, and these new crowds and 
 their enthusiasm increased my excitement. The ex- 
 uberance of my spirits was marvelous. The next day 
 I took the little steamer " Lawrence," for Veruon, 
 which was so heavily laden as to be only eighteen 
 inches out of water; and the passengers, who 
 amounted to a large number, were requested not to 
 move about the deck, but to keep as quiet as possible. 
 In three or four hours after leaving Sacramento, the 
 Captain suddenly cried out with great energy, " Stop 
 her ! stop her ! " ; and with some difficulty the boat 
 escaped running into what seemed to be a solitary 
 house standing in a vast lake of water. I askad what 
 place that was, and was answered, " Veruon," the 
 town where I had been advised to settle as affording 
 a good opening for a young lawyer. I turned to the 
 Captain and said, I believed I would not put out my 
 shingle at Vernon just yet, but would go further on. 
 The next place we stopped at was Nicolaus, and the 
 following day we arrived at a place called Nye's 
 Ranch, near the junction of Feather and Yuba Rivers. 
 No sooner had the vessel struck the landing at 
 Nye's Ranch than all the passengers, some forty or
 
 17 
 
 fifty in number, as if moved by a common impulse, 
 started for an old adobe building, which stood upon 
 the bank of the river, and near which were numerous 
 tents. Judging by the number of the tents, there 
 must have been from five hundred to a thousand 
 people there. When we reached the adobe and 
 entered the principal room, we saw a map spread out 
 upon the counter, containing the plan of a town, 
 which was called " Yubaville," and a man standing 
 behind it, crying out, " Gentlemen, put your names 
 down ; put your names down, all you that want lots." 
 He seemed to address himself to me, and I asked the 
 price of the lots. He answered, " Two hundred and 
 fifty dollars each for lots 80 by 160 feet." I replied, 
 " But, suppose a man puts his name down and after- 
 wards don't want the lots ? " He rejoined, " Oh, you 
 need not take them if you don't want them : put your 
 names down, gentlemen, you that want lots." I took 
 him at his word and wrote my name down for sixty- 
 five lots, aggregating in all $16,250. This produced a 
 great sensation. To the best of my recollection I had 
 only about twenty dollars left of what Col. Stevenson 
 had paid me ; but it was immediately noised about 
 that a great capitalist had come up from San Fran- 
 cisco to invest in lots in the rising town. The conse- 
 quence was that the proprietors of the place waited 
 upon me and showed me great attention.
 
 18 
 
 Two of the proprietors were French gentlemen, named 
 Covillaud and Sicard. They were delighted when they 
 found I could speak French and insisted on showing me 
 the town site. It was a beautiful spot, covered with 
 live-oak trees that reminded me of the oak parks in 
 England, and the neighborhood was lovely. I saw at 
 once that the place, from its position at the head of 
 practical river navigation, was destined to become an 
 important depot for the neighboring mines, and that its 
 beauty and salubrity would render it a pleasant place 
 for residence. In return for the civilities shown me by 
 Mr. Covillaud, and learning that he read English, I 
 handed him some New York papers I had with me, and 
 among them a copy of the New York " Evening Post " 
 of November 13th, 1849, which happened to contain a 
 notice of my departure for California with an expression 
 of good wishes for my success.* The next day Mr. Co- 
 villaud came to me and in an excited manner said : "Ah, 
 Monsieur, are you the Monsieur Field, the lawyer from 
 New York, mentioned in this paper ? " I took the 
 paper and looked at the notice with apparent surprise 
 that it was marked, though I had myself drawn a pencil 
 line around it, and replied, meekly and modestly, that 
 I believed I was. " Well, then," he said, " we must 
 have a deed drawn for our land." Upon making in- 
 quiries I found that the proprietors had purchased the 
 
 * See Exhibit A, in Appendix.
 
 19 
 
 tract upon which the town was laid out, and several 
 leagues of land adjoining, of General then Captain 
 John A. Sutter, but had not yet received a conveyance 
 of the property. I answered that I would draw the 
 necessary deed; and they immediately dispatched a 
 couple of vaqueros for Captain Sutter, who lived at 
 Hock Farm, six miles below, on Feather River. When 
 he arrived the deed was ready for signature. It was 
 for some leagues of land ; a considerably larger tract 
 than I had ever before put into a conveyance. But 
 Avhen it was signed there was no officer to take the ac- 
 knowledgment of the grantor, nor an office in which it 
 could be recorded, nearer than Sacramento. 
 
 I suggested to those present on the occasion, that in 
 a place of such fine prospects, and where there was 
 likely in a short time to be much business and many 
 transactions in real property, there ought to be an officer 
 to take acknowledgments and record deeds, and a 
 magistrate for the preservation of order and the settle- 
 ment of disputes. It happened that a new house, the 
 frame of which was brought in the steamer, was put up 
 that day ; and it was suggested by Mr. Covillaud that 
 we should meet there that evening and celebrate the 
 execution of the deed, and take into consideration the 
 subject of organizing a town by the election of magis- 
 trates. When evening came the house was filled. It 
 is true it had no floor, but the sides were boarded up
 
 and a roof was overhead, and we improvised seats out 
 of spare planks. The proprietors sent around to the 
 tents for something to give cheer to the meeting, and, 
 strange as it may seem, they found two baskets of 
 champagne. These they secured, and their contents 
 were joyously disposed of. When the wine passed 
 around, I was called upon and made a speech. I started 
 out by predicting in glowing colors the prosperity of 
 the new town, and spoke of its advantageous situation 
 on the Feather and Yuba Rivers ; how it was the most 
 accessible point for vessels coming up from the cities 
 of San Francisco and Sacramento, and must in time be- 
 come the depot for all the trade with the northern mines. 
 I pronounced the auriferous region lying east of the 
 Feather River and north of the Yuba the finest and 
 richest in the country ; and I felt certain that its com- 
 merce must concentrate at the junction of those rivers. 
 But, said I, to avail ourselves of all these advantages 
 we must organize and establish a government, and the 
 first thing to be done is to call an election and choose 
 magistrates and a town council. These remarks met 
 with general favor, and it was resolved that a public 
 meeting should be held in front of the Adobe house the 
 next morning, and if it approved of the project, that an 
 election should be held at once. 
 
 Accordingly, on the following morning, which was the 
 18th of January, 1850, a public meeting of citizens was
 
 there held, and it was resolved that a town government 
 should be established and that there should be elected 
 an Ayuntamieiito or town council, a first and second 
 Alcalde, (the latter to act in the absence or sickness of 
 the former,) and a Marshal. The Alcalde was a judicial 
 officer under the Spanish and Mexican laws, having a 
 jurisdiction something like that of a Justice of the 
 Peace ; but in the anomalous condition of affairs in 
 California at that time, he, as a matter of necessity, 
 assumed and exercised very great powers. The election 
 ordered took place in the afternoon of the same day. 
 I had modestly whispered to different persons at the 
 meeting in the new house the night before, that my 
 name was mentioned by my friends for the office of 
 Alcalde ; and my nomination followed. But I was not 
 to have the office without a struggle ; an opposition 
 candidate appeared, and an exciting election ensued. 
 The main objection urged against me was that I was a 
 new comer. I had been there only three days ; my 
 opponent had been there six. I beat him, however, by 
 nine votes.* 
 
 On the evening of the election, there was a general 
 gathering of people at the Adobe house, the principal 
 building of the place, to hear the official announcement 
 of the result of the election. When this was made, 
 some one proposed that a name should be adopted for 
 
 * See Exhibit B, in Appendix,
 
 22 
 
 the new town. One man suggested " Yubafield," be- 
 cause of its situation on the Yuba River ; and another, 
 " Yubaville," for the same reason. A third, urged the 
 name " Circumdoro," (surrounded with gold, as he 
 translated the word,) because there were mines in 
 every direction round about. But there was a fourth, 
 a solid and substantial old man, evidently of kindly 
 domestic affections, who had come out to California to 
 better his fortunes. He now rose and remarked that 
 there was an American lady in the place, the wife of 
 one of the proprietors ; that her name was Mary ; and 
 that, in his opinion, her name ought to be given to the 
 town, and it should be called, in her honor, " Marys- 
 ville." No nooner had he made the suggestion, than 
 the meeting broke out into loud hurrahs ; every hat 
 made a circle around its owner's head, and we chris- 
 tened the new town " Marysville," without a dissenting 
 voice. For a few days afterwards, the town was called 
 both Yubaville and Marysville, but the latter name was 
 soon generally adopted, and the place is so called to 
 this day. The lady, in whose honor it was named was 
 Mrs. Covillaud. She was one of the survivors of the 
 Donner party, which suffered so frightfully while cross- 
 ing the Sierra Nevadas in the winter of 1846-7, and 
 had been living in the country ever since that terrible 
 time. 
 
 With my notions of law, 1 did not attach much im-
 
 23 
 
 portance to the election, but I had a certificate of elec- 
 tion made out and signed by the Inspectors, stating 
 that at a meeting of the residents of the District of 
 Yubaville, on the day named, an election for officers 
 had been held, and designating the Inspectors who 
 were appointed, the number of votes that had been 
 cast for the office of Alcalde, and the number received 
 by myself, and the number received by my opponent, 
 and that as I had received a majority of all the votes 
 cast, I was elected to that office. It was made out 
 with all possible formality, and when completed, was 
 sent to the Prefect of the District. This officer, a Mr. 
 E. O. Crosby, afterwards Minister to one of the South 
 American Republics, wrote back approving my elec- 
 tion, and advising me to act. His advice, under the 
 circumstances, was a matter of some moment. The 
 new Constitution of the State had gone into effect, 
 though it was still uncertain whether it would be 
 recognized by Congress. Mr. Crosby, therefore, 
 thought it best for me to procure, in addition to my 
 commission as Alcalde, an appointment as Justice of 
 the Peace ; and through his kind offices, I obtained 
 from Governor Burnett the proper document bearing 
 his official seal. After my election, I went to Sacra- 
 mento, and on the 22d of January, 1850, was sworn 
 into office as first Alcalde of Yubaville, by the Judge 
 of the Court of First Instance, as that was the name of
 
 24 
 
 the district in the certificate of election ; but I was 
 always designated, after the name of the town had 
 been adopted, as First Alcalde of Marysville.* 
 
 Captain Sutter, whose deed I had drawn, was a re- 
 markable character. He was about five feet nine 
 inches in height, and was thick-set. He had a large 
 head and an open, manly face, somewhat hardened 
 and bronzed by his life in the open air. His hair was 
 thin and light, and he wore a mustache. He had the 
 appearance of an old officer of the French army, with 
 a dignified and military bearing. I subsequently be- 
 came well acquainted with him, and learned both to 
 respect and to pity him. I respected him for his in- 
 trepid courage, his gentle manners, his large heart, and 
 his unbounded benevolence. I pitied him for his sim- 
 plicity, which, while suspecting nothing wrong in 
 others, led him to trust all who had a kind word on 
 their lips, and made him the victim of every sharper 
 in the country. He was a native of Switzerland and 
 was an officer in the Swiss Guards, in the service of 
 the King of France, in 1823, and for some years after- 
 wards. In 1834, he emigrated to America, and had 
 varied and strange adventures among the Indians at 
 the West ; in the Sandwich Islands, at Fort Van- 
 couver, in Alaska, and along the Pacific Coast. In 
 
 July, 1839, the vessel which he was aboard of, was 
 
 
 
 * See Exhibit C, in Appendix,
 
 25 
 
 stranded in the harbor of San Francisco. He then 
 penetrated into the interior of California and founded 
 the first white settlement in the valley of the Sacra- 
 mento, on the river of that name, at the mouth of the 
 American River, which settlement he named Helvetia. 
 He built a fort there and gathered around it a large 
 number of native Indians and some white settlers. In 
 1841, the Mexican government granted to him a tract 
 of land eleven square leagues in extent ; and, subse- 
 quently, a still larger concession was made to him by 
 the Governor of the Department. But the Governor 
 being afterwards expelled from the country, the con- 
 cession was held to be invalid. The emigrants arriv- 
 ing in the country after the discovery of gold proved 
 the ruin of his fortunes. They squatted upon his 
 land, denied the validity of his title, cut down his tim- 
 ber, and drove away his cattle. Sharpers fobbed hfm 
 of what the squatters did not take, until at last he was 
 stripped of everything ; and, finally, he left the State, 
 and for some years has been living with relatives in 
 Pennsylvania. Even the stipend of $2,500, which the 
 State of California for some years allowed him, has 
 been withdrawn, and now in his advanced years, he is 
 almost destitute. Yet, in his days of prosperity, he 
 was always ready to assist others. His fort was 
 always open to the stranger, and food, to the value of 
 many thousand dollars, was, every year, so long as he
 
 26 
 
 had the means, sent out by him for the relief of 
 emigrants crossing the plains. It is a reproach to 
 California that she leaves the pioneer and hero desti- 
 tute in his old age.
 
 EXPERIENCES AS ALCALDE. 
 
 UNDEK the Mexican law, Alcaldes had, as already 
 stated, a very limited jurisdiction. But in the anoma- 
 lous condition of affairs under the American occupation, 
 they exercised almost unlimited powers. They were, in 
 fact, regarded as magistrates elected by the people for 
 the sake of preserving public order and settling disputes 
 of all kinds. In my own case, and with the approval of 
 the community, I took jurisdiction of every case brought 
 before me. I knew nothing of Mexican laws ; did not 
 pretend to know anything of them ; but I knew that 
 the people had elected me to act as a magistrate and 
 looked to me for the preservation of order and the 
 settlement of disputes; and I did my best that they 
 should not be disappointed. I let it be known that 
 my election had been approved by the highest au- 
 thority. 
 
 The first case I tried was in the street. Two men 
 came up to me, one of them leading a horse. He said, 
 " Mr. Alcalde, we both claim this horse, and we want 
 you to decide which of us is entitled to it." I turned 
 to the man who had the horse, administered an oath to 
 him, and then examined him as to where he got the 
 horse, of whom and when, whether he had a bill of sale,
 
 28 
 
 whether there was any mark or brand on the animal, 
 and, in short, put all those questions which would nat- 
 urally be asked in such a case to elicit the truth. I 
 then administered an oath to the other man and put 
 him through a similar examination, paying careful atten- 
 tion to what each said. When the examination was 
 completed I at once decided the case. " It is very plain, 
 gentlemen," I said, " that the horse belongs to this man 
 (pointing to one of them) and the other must give him 
 up." " But," said the man who had lost and who held 
 the horse, " the bridle certainly belongs to me, he does 
 not take the bridle, does he ? " I said, " Oh no, the 
 bridle is another matter." As soon as I said this the 
 owner of the bridle turned to his adversary and said, 
 " What will you take for the horse ? " " Two hundred 
 and fifty dollars," was the instant reply. " Agreed," re- 
 torted the first, and then turning to me, he continued : 
 "And now, Mr. Alcalde, I want you to draw me up a 
 bill of sale for this horse which will stick." I, of course, 
 did as he desired. I charged an ounce for trying the 
 case and an ounce for the bill of sale ; charges which 
 were promptly paid. -Both parties went off perfectly 
 satisfied. I was also well pleased with my first judicial 
 experience. 
 
 Soon after my election I went to San Francisco to 
 get my effects ; and while there I purchased, on credit, 
 a frame house and several zinc houses, which were at
 
 29 
 
 once shipped to Marysville. As soon as the frame 
 house was put up I opened my office in it, and exer- 
 cised not only the functions of a magistrate and justice, 
 but also of a supervisor of the town. I opened books 
 for the record of deeds and kept a registry of convey- 
 ances in the district. I had the banks of the river 
 graded so as to facilitate the landing from vessels. The 
 marshal of my court, elected at the same time with my- 
 self, having refused to act, I appointed an active and 
 courageous person in his place, E. B. Buchanan by 
 name, and directed him to see that peace was preserved, 
 and for that purpose to appoint as many deputies as 
 might be necessary. He did so, and order and peace 
 were preserved throughout the district, not only in 
 Marysville, but for miles around. 
 
 As a judicial officer, I tried many cases, both civil 
 and criminal, and I dictated the form of process suited 
 to the exigency. Thus, when a complaint was made to 
 me by the owner of a river boat, that the steamer, which 
 plied between Marysville and Sacramento, had run 
 down his boat, by which a part of its cargo was lost, I 
 at once dictated process to the- marshal, in which the 
 alleged injury was recited, and he was directed to seize 
 the steamer, and hold it until further orders, unless the 
 captain or owner gave security to appear in the action 
 commenced by the owner of the boat, and pay any 
 judgment that might be recovered therein. Upon serv-
 
 30 
 
 ice of the process the captain appeared, gave the re- 
 quired security, and the case was immediately tried. 
 Judgment was rendered and paid within five hours after 
 the commission of the injury. 
 
 In civil cases, I always called a jury, if the parties 
 desired one ; and in criminal cases, when the offence 
 was of a high grade, I went through the form of calling 
 a grand jury, and having an indictment found ; and in 
 all cases I appointed an attorney to represent the peo- 
 ple, and also the accused, when necessary. The Amer- 
 icans in the country had a general notion of what was 
 required for the preservation of order and the due 
 administration of justice ; and as I endeavored to ad- 
 minister justice promptly, but upon a due consideration 
 of the rights of every one, and not rashly, I was sus- 
 tained with great unanimity by the community. 
 
 I have reported a civil case tried before me as Al- 
 calde. I will now give a few criminal prosecutions and 
 their circumstances. One morning, about five o'clock, 
 a man tapped at my window, and cried, "Alcalde, Al- 
 calde, there has been a robbery, and you are w- anted." 
 I got up at once, and while I was dressing he told his 
 story. Nearly every one in those days lived in a tent 
 and had his gold dust with him. The man, who proved 
 to be Gildersleeve, the famous runner, upon going to 
 bed the previous evening had placed several pounds of 
 gold dust in his trunk, which was not locked. In the
 
 night some one had cut through his tent and taken the 
 gold dust. I asked him if he suspected anybody ; and 
 he named two men, and gave such reasons for his sus- 
 picion that I immediately dictated a warrant for their 
 arrest ; and in a short time the two men were arrested 
 and brought before me. The gold dust was found on 
 one of them. I immediately called a grand jury, by 
 whom he was indicted. I then called a petit jury, and 
 assigned counsel for the prisoner. He was immedi- 
 ately placed upon his trial, and was convicted. The 
 whole proceeding occupied only a part of the day. 
 There was a great crowd and much excitement, and 
 some talk of lynching. Curiously enough, my real 
 trouble did not commence until after the conviction. 
 What was to be done with the prisoner ? How was he 
 to be punished ? Imposing a fine would not answer ; 
 and, if he had been discharged, the, crowd would have 
 immediately hung him. When at San Francisco, 
 Mayor Geary, of that place, told me if I would send 
 my convicts to him, with money enough to pay for a 
 ball and chain for each one, he would put them in the 
 chain-gang. But at that time the price of passage by 
 steamer from Marysville to San Francisco was fifty 
 dollars, which, with the expense of an officer to accom- 
 pany the prisoner, and the price of a ball and chain, 
 would have amounted to a much larger sum than the 
 prosecution could afford ; so it was clearly impractica-
 
 32 
 
 ble to think of sending him to San Francisco. Nor is 
 it at all likely that the people would have consented to 
 his removal. Under these circumstances there was but 
 one course to pursue, and, however repugnant it was 
 to my feelings to adopt it, I believe it was the only 
 thing that saved the man's life. I ordered him to be 
 publicly whipped with fifty lashes, and added that if 
 he were found, within the next two years, in the vicinity 
 of Marysville, he should be again whipped. I, how- 
 ever, privately ordered a physician to be present so as 
 to see that no unnecessary severity was practiced. In 
 accordance with this sentence, the fellow was immedi- 
 ately taken out and flogged ; and that was the last seen 
 of him in that region. He went off and never came 
 back. The latter part of the sentence, however, was 
 supererogatory ; for there was something so degrading 
 in a public whipping, that I have never known a man 
 thus whipped who would stay longer than he could 
 help, or ever desire to return.' However this may have 
 been, the sense of justice of the community was satis- 
 fied. No blood had been shed ; there had been no 
 hanging ; yet a severe public example had been given. 
 On another occasion a complaint was made that a 
 man had stolen fifteen hundred dollars from a woman. 
 He was arrested, brought before me, indicted, tried, and 
 convicted. I had the same compunctions about pun- 
 ishment as before, but, as there was no other course, I
 
 33 
 
 ordered him to receive fifty lashes on his back on two 
 successive days, unless he gave up the money, in which 
 case he was to receive only fifty lashes. As soon as 
 the sentence was written down the marshal inarched 
 the prisoner out to a tree, made him hug the tree, and 
 in the presence of the crowd that followed, began in- 
 flicting the lashes. The man stood it for awhile with- 
 out flinching, but when he had received the twenty- 
 second lash he cried out, " Stop, for God's sake, and I 
 will tell you where the money is." The marshal stopped 
 and, accompanied by the crowd, took the man to the 
 place indicated, where the money was recovered ; and 
 the thief was then made to carry it back to the woman 
 and apologize for stealing it. The marshal then con- 
 sulted the sentence, and, finding that it prescribed fifty 
 lashes at any rate, he marched the wretch back to the 
 tree and gave him the balance, which was his due. 
 
 But the case which made the greatest impression 
 upon the people, and did more to confirm my author- 
 ity than anything else, was the following : There was 
 a military encampment of United States soldiers on 
 Bear River, about fifteen miles from Marysville, known 
 as " Camp Far West." One day an application was 
 made to me to issue a warrant for the arrest of one of 
 the soldiers for a larceny he had committed. It was 
 stated that a complaint had been laid before the local 
 Alcalde near the camp ; but that the officer in charge
 
 34 
 
 had refused to give up the soldier unless a warrant for 
 that purpose were issued by me, it being the general 
 impression that I was the only duly commissioned 
 Alcalde in the district above Sacramento. On this 
 showing I issued my warrant, and a lieutenant of the 
 army brought the soldier over. The soldier was in- 
 dicted, tried, convicted, and sentenced to be publicly 
 whipped with the usual number of lashes, and the 
 officer stood by and saw the punishment inflicted. He 
 then took the soldier back to camp, where it was after- 
 wards reported that he received an additional punish- 
 ment. But before the lieutenant left me that day, and 
 while we were dining together, he took occasion to say 
 that, if at any time I had any trouble in enforcing the 
 law, I had but to send him word and he would order 
 out a company of troops to support me. This offer I 
 permitted to become known through the town ; and 
 people said and with what effect may be imagined 
 " Why here is an Alcalde that has the troops of the 
 United States at his back." 
 
 I have already stated that I had the banks of the 
 Yuba River graded so as to facilitate the landing from 
 vessels. I will now mention another instance of my 
 administration as general supervisor of the town. 
 There were several squatters on the landing at the 
 river, which, according to the plan of the town, was 
 several hundred feet wide. The lots fronting on this
 
 35 
 
 landing being the best for business, commanded the 
 highest prices. But on account of the squatters the 
 owners were deprived of the benefit of the open 
 ground of the landing in front of their property, and 
 they complained to me. I called upon the squatters 
 and told them that they must leave, and that if they 
 were not gone by a certain time, I should be com- 
 pelled to remove them by force, and, if necessary, to 
 call to my aid the troops of the United States. This 
 was enough ; the squatters left, the landing was 
 cleared, and business went on smoothly. 
 
 In addition to my ordinary duties as a judicial 
 officer and as general supervisor of the town, I acted 
 as arbitrator in a great number of controversies which 
 arose between the citizens. In such cases the parties 
 generally came to m}* office together and stated that 
 they had agreed to leave the matter in dispute between 
 them to my decision. I immediately heard their re- 
 spective statements sometimes under oath, and some- 
 times without oath and decided the matter at once. 
 The whole matter was disposed of without any written 
 proceedings, except in some instances I gave to parties 
 a memorandum of my decision. Thus on one occa- 
 sion a dispute arose as to the rate of wages, between 
 several workmen and their employer ; the workmen 
 insisting upon twelve dollars a day and the employer 
 refusing to give more than ten. To settle the dispute
 
 36 
 
 they agreed to leave the matter to me. I heard their 
 respective statements, and after stating that both of 
 them ought to suffer a little for not having made a 
 specific contract at the outset, decided that the work- 
 ingmen should receive eleven dollars a day, with which 
 both appeared to be well satisfied. On another occa- 
 sion parties disputed as to whether freight on a box 
 of crockery should be charged by measurement or by 
 weight, a specific contract having been made that all 
 articles shipped by the owner should be carried at a 
 fixed price per hundred pounds. They agreed to 
 leave the matter to my determination, and I settled it 
 in five minutes. Again, on one occasion a woman, ap- 
 parently about fifty-six, rushed into my office under 
 great excitement, exclaiming that she wanted a divorce 
 from her husband, who had treated her shamefully. 
 A few moments afterwards the husband followed, and 
 he also wanted relief from the bonds of matrimony. I 
 heard their respective complaints, and finding that 
 they had children, I persuaded them to make peace, 
 kiss, and forgive ; and so they left my office arm-in- 
 arm, each having promised the other never to do so 
 again, amid the applause of the spectators. In this 
 way I carried out my conception of the good Cadi of 
 the village, from which term (Al Cadi) my own official 
 designation, Alcalde, was derived. 
 
 To make a long story short, until I was superseded
 
 37 
 
 by officers uuder the State government, I superintended 
 municipal affairs and administered justice in Marys- 
 ville with success. Whilst there was a large number 
 of residents there of high character and culture, who 
 would have done honor to any city, there were also un- 
 fortunately many desperate persons, gamblers, black- 
 legs, thieves, and cut-throats ; yet the place was as 
 orderly as a New England village. There were no 
 disturbances at night, no riots, and no lynching. It 
 was the model town of the whole country for peaceful- 
 ness and respect for law. 
 
 And now a word about my speculations. In a short 
 time after going to Marysville and writing my name 
 down for sixty-five town lots, property increased ten- 
 fold in value. Within ninety days I sold over $25,000 
 worth, and still had most of my lots left. My frame 
 and zinc houses brought me a rental of over $1,000 a 
 month. The emoluments of my office of Alcalde were 
 also large. In criminal cases I received nothing for 
 my services as judge, and in civil cases the fees were 
 small ; but as an officer to take acknowledgments and 
 affidavits and record deeds, the fees I received amounted 
 to a large sum. At one time I had $14,000 in gold 
 dust in my safe, besides the rentals and other property. 
 
 One day whilst I was Alcalde, a bright-looking 
 lad, with red cheeks and apparently about seventeen 
 years of age, came into the office and asked if I did
 
 38 
 
 not want a clerk. I said I did, and would willingly 
 give $200 a month for a good one ; but that I had 
 written to Sacramento and was expecting one from 
 there. The young man suggested that perhaps the one 
 from Sacramento would not come or might be delayed, 
 and he would like to take the place in the meanwhile. 
 I replied, very well, if he was willing to act until the 
 other arrived, he might do so. And thereupon he 
 took hold and commenced work. Three days after- 
 wards the man from Sacramento arrived ; but in the 
 meanwhile I had become so much pleased with the 
 brightness and quickness of my yonng clerk that I 
 would not part with him. That young clerk was George 
 C. Gorham, the present Secretary of the United States 
 Senate. I remember him distinctly as he first appeared 
 to me, with red and rosy cheeks. His quickness of 
 comprehension was really wonderful. Give him half 
 an idea of what was wanted, and he would complete it 
 as it were by intuition. I remember on one occasion 
 he wanted to know" what was necessary for a marriage 
 settlement. I asked him why. He replied that he had 
 been employed by a French lady to prepare such a 
 settlement, and was to receive twenty-five dollars for 
 the instrument. I gave him some suggestions, but 
 added that he had better let me see the document after 
 he had written it. In a short time afterwards he 
 brought it to me, and I was astonished to find it so
 
 39 
 
 nearly perfect. There was only one correction to make. 
 And thus ready I always found him. With the most 
 general directions he would execute everything com- 
 mitted to his charge, and usually with perfect correct- 
 ness. He remained with me several months, and acted 
 as clerk of my Alcalde court, and years afterwards, at 
 different times was a clerk in my office. When I went 
 upon the bench of the Supreme Court, I appointed 
 him clerk of the Circuit Court of the United States for 
 the District of California, and, wHth the exception of 
 the period during which he acted as secretary of Gov. 
 Low, he remained as such clerk until he w r as nominated 
 for the office of governor of the State, when he resigned. 
 Through the twenty-seven years of our acquaintance, 
 from 1850 to the present time, July, 1877, his friend- 
 ship and esteem have been sincere and cordial, which 
 no personal abuse of me could change and no political 
 differences between us could alienate. His worldly 
 possessions would have been more abundant had he 
 pursued the profession of the law, which I urged him 
 to do ; and his success as a public man would have 
 been greater, had he been more conciliatory to those 
 who differed from him in opinion.
 
 THE TURNER CONTROVERSY. 
 
 TOWARDS the end of May, 1850, William E. Turner, 
 who had been appointed Judge of the Eighth Judicial 
 District of the State by the first Legislature which con- 
 vened under the Constitution, made his appearance 
 and announced that he intended to open the District 
 Court at Marysville on the first Monday of the next 
 month. We were all pleased with the prospect of 
 having a regular court and endeavored, as far as lay in 
 our power, to make the stay of the Judge with us 
 agreeable. I had been in the habit of receiving a 
 package of New York newspapers by every steamer, 
 and among them came copies of the New York " Even- 
 ing Post," which was at that time the organ of the so- 
 called Free-soil party. When Judge Turner arrived, 
 I waited on him to pay my respects, and sent him the 
 various newspapers I had received. He had lived for 
 years in Texas, and, as it proved, was a man of narrow 
 mind and bitter prejudices. He seems to have had a 
 special prejudice against New Yorkers aud regarded a 
 Free-soiler as an abomination. I have been told, and 
 I believe such to be the fact, that my sending him these 
 newspapers, and particularly the " Evening Post," led 
 him to believe that I was an " Abolitionist " a person
 
 41 
 
 held in special abhorrence in those days by gentlemen 
 from the South. At any rate he conceived a violent 
 dislike of me, which was destined in a short time to 
 show itself and cause me great annoyance. What was 
 intended on my part as an act of courtesy, turned out 
 to be the beginning of a long, bitter, and on his part, 
 ferocious quarrel. At that time my affairs were in a 
 very prosperous condition, as I have already stated. 
 I had $14,000 in gold dust, a rental of over a thousand 
 dollars a month, and a large amount of city property 
 constantly increasing in value. Such being the case, I 
 thought I would go East on a visit, and accordingly 
 began making arrangements to leave. But shortly be- 
 fore the opening of the June term of the District 
 Court, Captain Sutter came to me and told me he had 
 been sued by a man named Cameron, and wished me to 
 appear as his counsel. I answered that I was making 
 arrangements to go East and he had better retain some 
 one else. He replied that I ought to remain long 
 enough to appear for him and assist his attorney, and 
 begged of me as an act of friendship to do so. I 
 finally consented, and deferred my departure. 
 
 Soon after the opening of the court, some time 
 during the first week, the case of Captain Sutter was 
 called. A preliminary motion, made by his attorney, 
 was decided against him. Mr. Jesse O. Goodwin, a 
 member of the bar, sitting near, said to me that the
 
 42 
 
 practice act, passed at the recent session of the Legis- 
 lature, contained a section bearing upon the question ; 
 and at the same time handed me the act. I immedi- 
 ately rose, and addressing the court, remarked that I 
 was informed there was a statutory provision applicable 
 to the point, and begged permission to read it ; and 
 commenced turning over the pages of the act in search 
 of it, when Judge Turner, addressing me and appar- 
 ently irritated, said in a petulant manner ; " The 
 court knows the law the mind of the court is made 
 up take your seat, sir." I was amazed at hearing 
 such language ; but in a respectful and quiet manner 
 stated that I excepted to the decision, and appealed, 
 or would appeal from the order. The Judge instantly 
 replied, in a loud and boisterous manner, " Fine that 
 gentleman two hundred dollars." I replied quietly, 
 " Very well," or " Well, sir." He immediately added, 
 in an angry tone, " I fine him three hundred dollars, 
 and commit him to the custody of the sheriff eight 
 hours." I again replied, " Very well." He instantly 
 exclaimed, in the same violent manner, " I fine him 
 four hundred dollars and commit him twelve hours." 
 I then said that it was my right by statute to appeal 
 from any order of his honor, and that it was no con- 
 tempt of court to give notice of an exception or an 
 appeal, and asked the members of the bar present if 
 it could be so regarded. But the Judge, being very
 
 43 
 
 ignorant of the practice of the law, regarded an excep- 
 tion to his decision as an impeachment of his judg- 
 ment, and, therefore, something like a personal affront. 
 And so, upon my statement, he flew into a perfect rage, 
 and in a loud and boisterous tone cried out, " I fine 
 him five hundred dollars and commit him twenty-four 
 hours forty-eight hours turn him out of court 
 subpoana a posse subpoena me." I then left the 
 court-room. The attorney in the case accompanied 
 me, and we were followed by the deputy sheriff. After 
 going a few steps we met the coroner, to whom the 
 deputy sheriff transferred me ; and the coroner accom- 
 panied me to my office, and after remaining there a 
 few moments left me to myself. On the way an inci- 
 dent occurred, which probably inflamed Judge Turner 
 against me more than anything else that could have 
 happened. The attorney, who was much exasperated 
 at the conduct of the Judge, said to me as we met the 
 coroner, " Never mind what the Judge does ; he is an 
 old fool." I replied, "Yes, he is an old jackass." This 
 was said in an ordinary conversational tone ; but a 
 man by the name of Captain Powers, with whom 
 Turner boarded, happened to overhear it, and running 
 to the court-house, and opening the door, he hallooed 
 out, "Judge Turner! oh, Judge Turner! Judge Field 
 says you are an old jackass." A shout followed, and 
 the Judge seemed puzzled whether or not he should
 
 44 
 
 send an officer after me, or punish his excitable friend 
 for repeating my language. 
 
 I remained in my office the remainder of the day, 
 and many people who were present in court, or heard of 
 what had occurred, called to see me. I immediately 
 wrote out a full statement of everything that happened 
 in the court-room, and had it verified by a number of 
 persons who were eye and ear witnesses of the affair. 
 Towards evening the deputy sheriff met the Judge, 
 who asked him what he had done with me. The 
 deputy answered that I had gone to my office and was 
 still there. The Judge said, " Go and put him under 
 lock and key, and, if necessary, put him in irons." 
 The deputy came to me and said, " The Judge has sent 
 me to put you under lock and key ; let me turn the 
 kej- upon you in your own office." At this I became 
 indignant, and asked for his warrant or commitment to 
 hold me. He replied that he had none, that only a 
 verbal order was given to him by the Judge in the 
 street. I then told him he must go away from me and 
 leave me alone. He replied that, "as he was acting 
 by the orders of the sheriff, whose deputy he was, in 
 obeying the Judge, he must do as he had been di- 
 rected." He added, " I will lock the door anyway," 
 and doing so he went off. I immediately sued out a 
 writ of habeas corpus returnable before Henry P. 
 Haun, the County Judge. The writ was executed
 
 45 
 
 forthwith, and the same evening I was taken before 
 the Judge. There was a great crowd present. I called 
 the sheriff to the stand and asked him if he had any 
 writ, process, commitment, or order by which he held 
 me in custody. He replied that he had none. I then 
 put on the stand Samuel B. Mulford and Jesse O. 
 Goodwin and several others, who were present in the 
 District Court where the scenes narrated had occurred, 
 and they testified that there was nothing disrespectful 
 in my language or manner ; that I had not used an 
 expression at which anybody could justly take offence ; 
 and that they had been utterly surprised at the conduct 
 of the Judge, which was violent and tyrannical ; and 
 that they saw no possible excuse for it. This testimony 
 was of course of no consequence on the question pre- 
 sented by the habeas corpus ; because, as there was no 
 order or warrant for my arrest in the possession of the 
 officer, I could not, under any circumstances, be held ; 
 but I wished to show my friends, who had not been 
 present in the court-room, the facts of the case. 
 
 I was of course at once discharged. But the matter 
 did not end there. An excited crowd was present, and 
 as I left the court-room they cheered enthusiastically. 
 I thereupon invited them to the Covillaud House, a 
 public house in the town, and directed the keeper to 
 dispense to them the good things of his bar. The 
 champagne was accordingly uncorked without stint,
 
 46 
 
 and the best Havana boxes were soon emptied of their 
 most fragrant cigars. A bill of $290 paid the next day 
 settled the account. Whilst the boys were thus enjoy- 
 ing themselves, Judge Turner, who was not far off, 
 entered the Covillaud House, perfectly furious, and 
 applied obscene and vile epithets to the County Judge, 
 declaring with an oath that he would teach " that fel- 
 low" that he was an inferior judge, and that the wit- 
 nesses before him were a set of " perjured scoundrels " 
 who should be expelled from the bar. Similar threats 
 were made by him in different saloons in the town, to 
 the disgust of every one. That evening he was burned 
 in effigy in the public plaza. I had nothing to do 
 with that act, and did not approve of it. I did not 
 know then, and do not know to this day who were en- 
 gaged in it. He attributed it to me, however, and his 
 exasperation towards me in consequence became a 
 malignant fury. 
 
 On the Monday following, June 10th, which was the 
 first day on which the court was held after the scenes 
 narrated, Judge Turner, on the opening of the court, 
 before the minutes of the previous session were read, 
 and without notice to the parties, or any hearing of 
 them, although the} 7 were present at the time, ordered 
 that Judge Haun be fined fifty dollars and be im- 
 prisoned forty-eight hours for his judicial act in dis- 
 charging me from arrest, under some pretence that the
 
 47 
 
 order of the court had been thus obstructed by him. 
 At the same time he ordered that I should be re- 
 imprisoned, and that Mr. Mulford, Mr. Goodwin, and 
 myself should be expelled from the bar ; myself for 
 suing out the writ, and those two gentlemen for being 
 witnesses on its return, under the pretence that we 
 had " vilified the court and denounced its proceed- 
 ings." Judge Haun paid his fine and left the court- 
 room, and I was again taken into custody by the 
 sheriff.* 
 
 It happened to be the day appointed by law for the 
 opening of the Court of Sessions of the county, over 
 which the County Judge presided. Judge Haun pro- 
 ceeded from the District Court to the room engaged 
 for the Court of Sessions, and there, in connection 
 with an associate justice, opened that court. Immedi- 
 ately afterwards I sued out another writ of habeas cor- 
 pus, returnable forthwith, and whilst before the court 
 arguing for my discharge under the writ, the sheriff 
 entered and declared his intention of taking me out of 
 the room, and of taking Judge Haun from the bench 
 and putting us in confinement, pursuant to the order of 
 Judge Turner. Judge Haun told the sheriff that the 
 Court of Sessions was holding its regular term ; that 
 he was violating the law, and that the court must not 
 be disturbed in its proceedings. Judge Turner was 
 
 * See Exhibit D, in Appendix.
 
 48 
 
 then informed that the Court of Sessions was sitting ; 
 that Judge Haun was on the bench, and that I was 
 arguing before the court on a writ of habeas corpus. 
 Judge Turner immediately ordered a posse to be sum- 
 moned and appealed to gentlemen in the court-room 
 to serve on it, and directed the sheriff to take Judge 
 Haun and myself into custody by force, notwithstand- 
 ing Judge Haun was on the bench, and I was arguing 
 my case ; and if necessary to put Judge Haun in irons 
 to handcuff him. Soon afterwards the sheriff, with 
 a posse, entered the room of the Court of Sessions, 
 and forced me out of it, and was proceeding to seize 
 Judge Haun on the bench, when the Judge stepped to 
 a closet and drew from it a navy revolver, cocked it. 
 and, pointing it towards the sheriff, informed him in a 
 stern manner that he was violating the law ; that whilst 
 on the bench he, the Judge, could not be arrested, and 
 that if the sheriff attempted to do so he would kill him. 
 At the same time he fined the sheriff for contempt of 
 court $200, and appointed a temporary bailiff to act, 
 and directed him to clear the court-room of the dis- 
 turbers. The new bailiff summoned all the bystanders, 
 who instantly responded, and the court-room was im- 
 mediately cleared. Judge Haun then laid his revolver 
 on a drawer before him, and inquired if there was any 
 business ready; for if so the court would hear it. 
 There being none, the court adjourned.
 
 I regret to be compelled to add, that notwithstand- 
 ing the manly and courageous conduct which Judge 
 Haun had thus shown, no sooner was the court ad- 
 journed than he was persuaded to make a qualified 
 apology to the District Court for discharging me, by 
 sending a communication to it, stating "that if he was 
 guilty of obstructing the order of the court in releasing 
 Field, he did it ignorantly, not intending any con- 
 tempt by so doing;" and thereupon the District Court 
 ordered that he be released from confinement, and 
 that his fine be remitted.* 
 
 Of course there was great excitement through the 
 town as soon as these proceedings became known. 
 That night nearly all Marysville came to my office. I 
 made a speech to the people. Afterwards some of 
 them passed in front of Turner's house, and gave him 
 three groans. They then dispersed, and in returning 
 home some of them fired off their pistols as a sort of 
 finale to the proceedings of the evening. The firing 
 was not within three hundred yards of Turner's house ; 
 but he seized hold of the fact of firing, and stated that 
 he had been attacked in his house by an armed mob. 
 He also charged that I had instigated the crowd to 
 attack him, but the facts are as I have stated them. 
 There was a great deal of feeling on the part of the 
 people, who generally sided with me ; but I did noth- 
 
 *See Exhibit E, in Appendix.
 
 50 
 
 ing to induce them to violate the law or disturb the 
 peace. Even if I wished to do so, prudence and 
 policy counselled otherwise. 
 
 When Turner caused the names of Mulford, Good- 
 win, and myself, to be stricken from the roll of attor- 
 neys, we, of course, could no longer appear as counsel 
 in his court. I at once prepared the necessary papers, 
 and applied to the Supreme Court of the State for a 
 mandamus to compel him to vacate the order and rein- 
 state us. I took the ground that an attorney and 
 counsellor, by his admission to the bar, acquired 
 rights of which he could not be arbitrarily deprived ; 
 that he could not, under any circumstances, be ex- 
 pelled from the bar without charges being preferred 
 against him and an opportunity afforded to be heard 
 in his defence ; that the proceedings of Judge Turner 
 being ex-parte, without charges preferred, and without 
 notice, were void ; and that a mandate, directing him 
 to vacate the order of expulsion and restore us to the 
 bar, ought to be issued immediately. 
 
 In addition to this application, I also moved for a 
 mandamus to him to vacate the order imposing a fine 
 and imprisonment upon me for the alleged contempt 
 of his court, or for such other order in the premises as 
 might be just. I took the ground, that as the order 
 did not show any act committed which could constitute 
 a contempt of court, it was void on its face, and should
 
 51 
 
 be so declared. My old friend, Gregory Yale, assisted 
 me in the presentation of these motions. In deciding 
 them, the court delivered two opinions, in which these 
 positions were sustained. They are reported under 
 the titles of People, ex rel. Mulford et al., vs. Turner, 
 1 Cal., 143 ; and People, ex rel. Field vs. Turner, 1 
 Cal., 152. In the first case, a peremptory writ of man- 
 damus was issued, directed to Judge Turner, ordering 
 him to reinstate us as attorneys ; in the second, a writ 
 of certiorari was issued to bring up the order imposing 
 a fine, which was subsequently reversed and vacated, 
 as shown in Ex-parte Field, 1 Cal., 187. The opinions 
 referred to were delivered by Judge Bennett, and are 
 models of their kind. Many years afterwards, when a 
 somewhat similar question came before the Supreme 
 Court of the United States, I was called upon to an- 
 nounce its judgment ; and in doing so, I followed 
 these opinions, as may be seen by reference to the 
 case of Ex-parte Robinson, 19 Wallace, 510. I there 
 repeated substantially the doctrine of Judge Bennett, 
 which is the only doctrine that will protect an attorney 
 and counsellor from the tyranny of an arbitrary and 
 capricious officer, and preserve to him his self-respect 
 and independence. 
 
 When the order for our restoration came down from 
 the Supreme Court, Turner refused to obey it ; and 
 wrote a scurrilous " Address to the Public " about us,
 
 52 
 
 which he published in one of the newspapers. We 
 replied in a sharp and bitter article, signed by our- 
 selves and five other gentlemen ; and at the same time 
 we published a petition to the Governor, signed by all 
 the prominent citizens of Marysville, asking for Judge 
 Turner's removal. There was a general impression in 
 those days that Judges appointed before the admission 
 of the State into the Union held their offices subject 
 to removal by the Governor. I hardly know how this 
 impression originated, but probably * in some vague 
 notions about the powers of Mexican Governors. 
 However this may be, such was the general notion, 
 and in accordance with it, a petition for Turner's 
 removal was started, and, as I have said, was very 
 generally signed.* The matter had by this time as- 
 sumed such a serious character, and the Judge's con- 
 duct was so atrocious, that the people became alarmed 
 and with great unanimity demanded his deposition 
 from office. 
 
 In the article referred to as published by us, we 
 said, after setting forth the facts, that " Judge Turner 
 is a man of depraved tastes, of vulgar habits, of an un- 
 governable temper, reckless of truth when his passions 
 are excited, and grossly incompetent to discharge the 
 duties of his office." Unfortunately the statement was 
 perfectly true. He refused to obey the mandate of 
 
 * See Exhibit F, in Appendix.
 
 53 
 
 the Supreme Court, even talked of setting that court 
 at defiance, and went around saying that every one 
 who had signed an affidavit against him was a " per- 
 jured villain," and that as to Goodwin, Mulford, and 
 Field, he would " cut their ears off." He frequented 
 the gambling saloons, associated with disreputable 
 characters, and was addicted to habits of the most 
 disgusting intoxication. Besides being abusive in his 
 language, he threatened violence, and gave out that he 
 intended to insult me publicly the first time we met, 
 and that, if I resented his conduct, he would shoot me 
 down on the spot. This being reported to me by 
 various persons, I went to San Francisco and con- 
 sulted Judge Bennett as to what course I ought to 
 pursue. Judge Bennett asked if I were certain that 
 he had made such a threat. I replied I was. " Well," 
 said* the Judge, " I will not give you any advice ; but 
 if it were my case, I think I should get a shot-gun and 
 stand on the street, and see that I had the first shot." 
 I replied that " I could not do that ; that I would act only 
 in self-defence." He I'eplied, " That would be acting 
 in self-defence." When I came to California, I came 
 with all those notions, in respect to acts of violence, 
 which are instilled into New England youth ; if a man 
 were rude, I would turn away from him. But I soon 
 found that men in California were likely to take very 
 great liberties with a person who acted in such a man-
 
 54 
 
 ner, and that the only way to get along was to hold 
 every man responsible, and resent every trespass upon 
 one's rights. Though 1 was not prepared to follow 
 Judge Bennett's suggestion, I did purchase a pair of 
 revolvers and had a sack-coat made with pockets in 
 which the barrels could lie, and be discharged ; and 1 
 began to practice firing the pistols from the pockets. 
 In time I acquired considerable skill, and was able to 
 hit a small object across the street. An object so 
 large as a man I could have hit without difficulty. 
 I had come to the conclusion that if I had to give up 
 my independence ; if I had to avoid a man because I 
 was afraid he would attack me ; if I had to cross the 
 street every time I saw him coming, life itself was not 
 worth having. 
 
 Having determined neither to seek him nor to shun 
 him, T asked a friend to carry a message to him, and to 
 make sure that it would reach him, I told different par- 
 ties what I had sent, and I was confident that they 
 would repeat it to him. " Tell him from me," I said, 
 " that I do not want any collision with him ; that I de- 
 sire to avoid all personal difficulties ; but that I shall 
 not attempt to avoid him ; that I shall not cross the 
 street on his account, nor go a step out of my way for 
 him ; that I have heard of his threats, and that if he 
 attacks me or comes at me in a threatening manner I 
 will kill him." : I acted on my plan. I often met him 
 
 * See Exhibit G, in Appendix,
 
 55 
 
 in the streets and in saloons, and whenever I drew near 
 him I dropped my hand into my pocket and cocked my 
 pistols to be ready for any emergency. People warned 
 me to look out for him ; to beware of being taken at a 
 disadvantage ; and I was constantly on my guard. I 
 felt that I was in great danger ; but after awhile this 
 sense of danger had a sort of fascination, and I often 
 went to places where he was, to which I would not 
 otherwise have gone. Whenever I met him I kept my 
 eye on him, and whenever I passed him on the street 
 I turned around and narrowly watched him until he 
 had gone some distance. I am persuaded if I had taken 
 any other course, I should have been killed. I do not 
 say Turner would have deliberately shot me down, or 
 that he would have attempted anything against me in 
 his sober moments ; but when excited with drink, and 
 particularly when in the presence of the lawless crowds 
 who heard his threats, it would have taken but little to 
 urge him on. As it turned out, however, he never in- 
 terfered with me, perhaps because he knew I was armed 
 and believed that, if I were attacked, somebody, and 
 perhaps more than one, would be badly hurt. I have 
 been often assured by citizens of Marysville that it was 
 only the seeming recklessness of my conduct, and the 
 determination I showed not to avoid him or go out of 
 his way, that saved me. But at the same time my busi- 
 ness was ruined. Not only was I prevented, by his
 
 56 
 
 refusal to obey the mandate of the Supreme Court, from 
 appearing as an advocate, but I could not, on account 
 of the relation I occupied towards him, practice at all ; 
 nor could I, under the circumstances, leave Marysville 
 and make my intended visit East. Having nothing else 
 to do, I went into speculations which failed, and in a 
 short time a much shorter time than it took to make 
 my money I lost nearly all I had acquired and became 
 involved in debt,
 
 BUNNING FOE THE LEGISLATURE. 
 
 ONE morning about this time I unexpectedly found 
 myself in the newspapers, nominated by nay friends as 
 a candidate for the lower house of the Legislature. 
 Who the friends were that named me I did not know ; 
 but the nomination opened a new field and suggested 
 new ideas. I immediately accepted the candidacy. 
 Judge Turner had threatened, among other things, to 
 drive me into the Yuba River. I now turned upon 
 him, and gave out that my object in wishing to go to 
 the Legislature was to reform the judiciary, and, 
 among other things, to remove him from the district. 
 I canvassed the county thoroughly and was not back- 
 ward in portraying him in his true colors. He and his 
 associates spared no efforts to defeat me. Their great 
 reliance consisted in creating the belief that I was an 
 abolitionist. If that character could have been fast- 
 ened upon me it would have been fatal to my hopes, 
 for it was a term of great reproach. Yuba County 
 then comprised the present county of that name, and 
 also what are now Nevada and Sierra Counties. It 
 was over a hundred miles in length and about fifty in 
 width, and had a population of twenty-five thousand
 
 58 
 
 people, being the most populous mining region in the 
 State. I visited nearly every precinct and spoke 
 whenever I could get an audience. An incident of the 
 canvass may not be uninteresting. I went to the town 
 of Nevada a little more than a week before the elec- 
 tion. As I was riding through its main street a 
 gentleman whom I had long known, General John 
 Anderson, hailed me, and, after passing a few words, 
 said, " Field, you won't get fifty votes here." I asked, 
 " Why not ? " He replied, " Because everybody is for 
 McCarty, your opponent." I said, somewhat sharply, 
 " Anderson, I have come here to fight my own battle 
 and I intend to carry Nevada." He laughed and I 
 rode on. The first man I met after reaching the hotel 
 was Captain Morgan, who afterwards commanded a 
 steamer on the Bay of San Francisco. After talking 
 for some time on general topics, he asked me about a 
 story in circulation that I was an abolitionist. I saw 
 at once the work of enemies, and I now understood 
 the meaning of General Anderson's remark. I assured 
 Morgan that the story was entirely false, and added ; 
 " To-morrow will be Sunday ; everybody will be in 
 town ; I will then make a speech and show the people 
 what kind of a man I am, and what my sentiments are 
 on this and other subjects." Accordingly, the next 
 day, in the afternoon, when the miners from the coun- 
 try were in town and had nothing else to do than to
 
 be amused, I mounted a platform erected for the pur- 
 pose in the main street, and commenced speaking. I 
 soon had a crowd of listeners. I began about niy can- 
 didacy, and stated what I expected to do if elected. I 
 referred to the necessity of giving greater jurisdiction 
 to the local magistrates, in order that contests of 
 miners respecting their claims might be tried in their 
 vicinity. As things then existed the right to a mule 
 could not be litigated without going to the county seat, 
 at a cost greater than the value of the animal. I was 
 in favor of legislation which would protect miners in 
 their claims, and exempt their tents, rockers, and uten- 
 sils used in mining from forced sale. I was in favor 
 of dividing the county, and making Nevada the seat of 
 the new county. I had heard of numerous measures 
 they wanted, and I told them how many of these 
 measures I advocated. Having got their attention and 
 excited their interest, I referred to 'the charge made 
 against me of being an abolitionist, and denounced it 
 as a base calumny. In proof of the charge I was told 
 that I had a brother in New York who was a free- 
 soiler. So I had, I replied, and a noble fellow he is 
 God bless him wherever he may be. But I added, I 
 have another brother who is a slaveholder in Tennes- 
 see, and with which one, I asked, in the name of all 
 that is good, were they going to place me. I won- 
 dered if these " honorable " men, who sought by such
 
 60 
 
 littleness to defeat me, did not find out whether I did 
 not have some other relatives, women, perhaps, who 
 believed in things unearthly and spiritual, whose 
 opinions they could quote to defeat me. Shame on 
 such tactics, I said, and the crowd answered by loud 
 cheering. I then went on to give my views of our 
 government, of the relation between the general gov- 
 ernment of the Union and the government of the 
 States, to show that the former was created for 
 national purposes which the States coald not well 
 accomplish that we might have uniformity of com- 
 mercial regulations, one army and one navy, a common 
 currency, and the same postal system, and present 
 ourselves as one nation to foreign countries but that 
 all matters of domestic concern were under the control 
 and management of the States, with which outsiders 
 could not interfere ; that slavery was a domestic insti- 
 tution which each State must regulate for itself, with- 
 out question or interference from others. In other 
 words, I made a speech in favor of State Rights, 
 which went home to my hearers, who were in great 
 numbers from the South. I closed with a picture of 
 the future of California, and of the glories of a coun- 
 try bounded by two oceans. When I left the platform 
 the cheers which followed showed that I had carried 
 the people with me. McCarty, my opponent, followed, 
 but his speech fell flat. Half his audience left before 
 he had concluded.
 
 61 
 
 The election took place a week from the following 
 Monday. I remained in Nevada until it was over. At 
 the precinct in town where I had spoken, I had between 
 three and four hundred majority/ and in another pre- 
 cinct in the outskirts I had a majority of two to one. 
 In the county generally I ran well, and was elected, not- 
 withstanding the fact that I was not the nominee of any 
 convention or the candidate of any party. The morn- 
 ing following the election, as I was leaving Nevada, I 
 rode by the store of General Anderson, and hailing him, 
 inquired what he thought now of my getting fifty votes 
 in the town. " Well," he replied, " it was that Sunday 
 speech of yours which did the business. McCarty could 
 not answer it." 
 
 There Avas one thing in the election which I regretted, 
 and that was that I did not carry Marysville ; a majority 
 of the votes of its citizens was cast for my opponent. 
 It is true that there the greater number of gamblers 
 and low characters of the county were gathered, but 
 the better class predominated in numbers, and I looked 
 with confidence to its support. My regret, however, 
 was sensibly diminished when I learned the cause of 
 the failure of a portion of the people to give me their 
 votes. Some few weeks previous to the day of election 
 a man was killed in the street by a person by the name 
 of Keiger, who was immediately arrested. The person 
 killed was about leaving the State, and owed a small
 
 62 
 
 debt to Keiger, which he refused either to pay or to 
 give security for its payment. Exasperated by his refu- 
 sal, Keiger drew a pistol and shot him. I was sent for 
 by an acquaintance of Keiger to attend his examination 
 before the local magistrate, by whom he was held for 
 the action of the grand jury. In the afternoon of the 
 same day a large crowd assembled in the streets, with 
 the purpose of proceeding to the summary execution of 
 Keiger. Whilst the people were in a great state of ex- 
 citement I made a speech to them, begging them not to 
 resort to violence and thus cast reproach upon the good 
 name of Marysville, but to let the law take its course, 
 assuring them that justice would certainly be adminis- 
 tered by the courts. My remarks were received with 
 evident displeasure, and I am inclined to think that 
 violence would have been resorted to had not the pris- 
 oner been secretly removed from the city and taken to 
 Sacramento. The exasperation of a large number, at 
 this escape of their intended victim, vented itself on me, 
 and cost me at least a hundred votes in the city. I 
 would not have acted otherwise had I known before- 
 hand that such would be the result of my conduct. 
 When the civil tribunals are open and in the undis- 
 turbed exercise of their jurisdiction, a resort to violence 
 can never be approved or excused. 
 
 I witnessed some strange scenes during the cam- 
 paign, which well illustrated the anomalous condition
 
 of society in the county. 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 Californians, 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 some little delay in the 
 proceedings, I mentioned to those present, the jury in- 
 cluded, 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 invitation which was seldom declined 
 in those days. It was at once accepted, and leaving 
 the accused in 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 to- 
 wards him. So, after the jurors had taken their drinks 
 and w r ere 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 rilled 
 with great globules of tears as he replied. " I am inno- 
 cent of all I am charged with. I have never stolen
 
 64 
 
 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. bar-keeper, 
 please give the gentlemen the best you have ; and, be- 
 sides, I added, let us have another ' smile ' 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 Connecticut. 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 often write to them, 
 of course." His eyes glistened, and I saw pearl-like 
 dew-drops gathering in them ; his thoughts were car- 
 ried over the 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, I re- 
 marked, " 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,
 
 65 
 
 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 twenty- 
 seven 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, gentle- 
 men, let us take another glass." They again acceded 
 to my request, and seeing that they were a little mel- 
 lowed 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, for- 
 tunately, 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 as-
 
 66 
 
 sajers in San Francisco. We soon afterwards sepa- 
 rated. 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 pleas- 
 ant. 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. 
 
 The expenses of the election were very great. It was 
 difficult to interest the miners in it ; most of them had 
 come to the country in the hope of improving their for- 
 tunes in one or two years, and then returning to " the 
 States." It was, therefore, a matter of little moment to 
 them who were chosen members of the coming Legis- 
 lature. Party lines were not regarded among them, 
 and party questions could not draw many of them from 
 their labors. As I was an independent candidate, not 
 supported by any party, I had to bear the whole ex- 
 denses of the campaign. How great those expenses 
 were may be imagined from the following bill, one of a 
 large number sent to me after the election. I had told 
 the saloon-keepers in the vicinity of the polling places 
 in the different precincts to be liberally disposed to- 
 wards my friends on the day of election. They took 
 me literally at my word, as this bill from the keeper of 
 a saloon where the polls were opened in Downieville 
 precinct will show ;
 
 67 
 
 Mr. S. J. FIELD, 
 
 To OELEANS HOUSE. 
 
 To 460 drinks $230 00 
 
 275 cigars 68 75 
 
 DOWNIEVILLE, October 9th, 1850. $298 75 
 
 [Endorsed :] 
 " We hereby certify that the withiu account is correct. 
 
 "P. L. MOOKE. 
 " WM. S. SPBAB." 
 
 " Received payment of the within bill iu full from Stephen J. Field. 
 
 " J. STEATMAN. 
 "October 14th, 1850."
 
 THE TUENEE CONTEOVEESY CONTINUED. 
 
 IT was not until after my election that Judge Turner 
 paid any attention to the mandate of the Supreme 
 Court commanding him to vacate his order of expulsion 
 against myself and Messrs. Goodwin and Mulford, and 
 to restore us to the bar. The mandate was issued on 
 the fourth of July, and was served on the Judge on the 
 sixteenth. He immediately and publicly declared that 
 he would not obey it, but would stand an impeachment 
 first. Whilst attending the Supreme Court on the ap- 
 plication for the writ, Mr. Goodwin, Mr. Mulford, and 
 myself, were admitted as attorneys and counsellors of 
 that court, and that admission under its rules entitled 
 us to practice in all the courts of the State. The effect 
 of this, which re-instated us in the District Court, he 
 determined to defeat. He accordingly directed the 
 sheriff of the county to notify us to show cause be- 
 fore the court in Sutter County, why we should not be 
 again expelled from the bar for the publication of the 
 article in the Placer Times, to which I have referred, 
 written in reply to his attack on us in his "Address to 
 the Public." The order was dated on the fourth of 
 October, and was served on the eighth, and required us
 
 to appear on the first Thursday of the month, which 
 was the third. As the time for appearance was pre- 
 vious to the day of service and to the date of the 
 order, no attention was paid to it. The Judge, how- 
 ever, proceeded, and on the eleventh of the month 
 made another order of expulsion. After the adjourn- 
 ment of the court, he discovered his blunder, and at 
 once issued another direction to the sheriff to notify 
 us that the last order of expulsion was suspended until 
 the twenty-eighth of October, and to show cause on 
 that day why we should not be again expelled. In the 
 meantime, the Judge made no concealment of his pur- 
 poses, but publicly declared in the saloons of the town 
 that if we did not appear upon this second notice, he 
 would make an order for our expulsion, and if we did 
 appear, he would expel us for " contempt in publishing 
 the reply to his article, which he termed a false and 
 slanderous communication. We knew, of course, that 
 it would be useless to appear and attempt to resist his 
 threatened action ; still we concluded to appear and 
 put in an answer. Accordingly, on the day designated, 
 we presented ourselves before the court in Sutter 
 County. I was the first one called upon to show cause 
 why I should not be again expelled. I stated that I 
 was ready, and first read an affidavit of one of the 
 Associate Justices of the Court of Sessions, to show 
 that the Judge had declared his purpose to expel my-
 
 70 
 
 self and the other gentlemen in any event, and that it 
 was an idle ceremony to call upon us to show cause 
 against such threatened action. As soon as it was 
 read, the Judge declared that it was not respectful and 
 could not be received. I then began to read my answer 
 to the order to show cause, but was stopped when I had 
 read about one half of it, and was told that it was not 
 respectful and could not be received. I then requested 
 permission to file ifc, but my request was refused. Mr. 
 Mulford being called upon to show cause why he 
 should not be expelled, began b read an answer, but 
 was stopped after reading a few lines. His answer was 
 respectful, and was substantially to the effect that he 
 had been admitted as attorney and counsellor in the 
 Supreme Court on the previous July, and was thus 
 entitled to practice in all the courts of the State ; that 
 the communication in the Placer Times was written in 
 reply to an article of the Judge, and that he was ready 
 at the proper time and place to substantiate its truth ; 
 and he protested against the Judge's interfering in the 
 matter in the manner indicated in the notice. Mr. 
 Goodwin being called upon, took in his answer substan- 
 tially the same grounds as Mr. Mulford. Immediately 
 after Mr. Goodwin took his seat, without a moment's 
 hesitation, the Judge made an order that his previous 
 order of the eleventh of October, expelling us, should 
 be confirmed, and that the order should be published
 
 71 
 
 in the Sacramento Times and the San Francisco Herald. 
 I immediately took the proper steps to obtain another 
 mandate from the Supreme Court to vacate this second 
 expulsion ; and also to attach the Judge for non- 
 compliance with the original mandate, the first order 
 of expulsion still being unvacated on the records of 
 the court. At the January term, 1851, the applications 
 to the court in both cases were decided, and they are 
 reported in the 1st California Reports, at pages 189 
 and 190. In the attachment case, the court denied the 
 application on the ground that no motion had been 
 made by us or any one on our behalf to cause the 
 original order of expulsion to be vacated, and that the 
 Judge had, in the proceedings to expel us, substantially 
 recognized us as re-instated. In the other case, the 
 court decided that the proceedings to re-expel us were 
 irregular, and directed an alternative writ to issue, 
 commanding the Judge to vacate the order and to per- 
 mit us to practice in all the courts of the district, or 
 to show cause to the contrary, at the next term. No 
 cause was ever shown ; and thus ended the attempts of 
 an ignorant, malicious, and brutal judge to keep us out 
 of the profession of our choice. Mr. Goodwin has 
 since held many positions of honor and trust in the 
 State. He was elected District Attorney at the same 
 time that I was elected to the Legislature, and after- 
 wards was Judge of Yuba County, and is now (1877) a
 
 72 
 
 member of the State Senate. Mr. Mulford was after- 
 wards and until his death a successful practitioner at 
 the bar of Marysville, and was in all the affairs of life 
 respected as a high-spirited and honorable man. 
 
 But with Judge Turner I have not yet done. I have 
 a long story still to relate with respect to him. After 
 my election to the Legislature was ascertained, he 
 became exceedingly solicitous to prevent in advance 
 my exerting any influence in it. He expected that I 
 would attack him, and endeavor to secure his impeach- 
 ment, and he wanted to break me down if possible. 
 He accordingly published a pamphlet purporting to be 
 a statement of the charges that I preferred against 
 him, which was, however, little else than a tirade of 
 low abuse of myself and the editor of the Marysville 
 Herald, in the columns of which the conduct of the 
 Judge had been the subject of just criticism and cen- 
 sure. There was nothing in the miserable swaggering 
 billingsgate of the publication which merited a mo- 
 ment's notice, but as in one passage he stated that he 
 had attempted to chastise me with a whip, and that I 
 had fled to avoid him, I published in the Marysville 
 Herald the following card : 
 
 Judge William K. Turner, in a "statement" published over his 
 signature on the 12th instant, asserts that he attempted to chastise 
 me with a switch, and that I fled to avoid him. This assertion is a 
 shameless lie. I never, to my recollection, saw Judge Turner with a
 
 73 
 
 switch or a whip in his hand. He has made, as I ain informed, many 
 threats of taking personal vengeance on myself, but he has never 
 attempted to put any of them into execution. I have never avoided 
 him, but on the contrary have passed him in the street almost every 
 day for the last four months. When he attempts to carry any of his 
 threats into execution, I trust that I shall not forget, at the time, 
 what is due to myself. 
 
 Judge Turner says he holds himself personally responsible in and 
 under all circumstances. This he says in print ; but it is well un- 
 derstood in this place that he has stated he should feel bound by his 
 oath of office to endeavor to obtain an indictment against any gen- 
 tleman who should attempt to call him to account. Shielded behind 
 his oath of office he has displayed his character by childish boasts of 
 personal courage and idle threats of vengeance. 
 
 STEPHEN J. FIELD. 
 
 MABYSVILLE, Dec. 21st, 1850. 
 
 There were also annexed to the publication of 
 Turner, letters from different persons expressive of 
 their opinion of his general bearing on the bench and 
 courtesy to them. Among these was one from John 
 T. McCarty, the candidate against me at the recent 
 election, in which he spoke in high terms of the 
 Judge's conduct on the bench, and assailed me as his 
 calumniator, applying to me sundry coarse epithets. 
 In answer to this letter I published in the Herald the 
 following card : 
 
 JOHN T. McCABTT. 
 
 John T. McCarty, in a letter to Judge William K. Turner, dated the 
 22d of November, takes occasion to apply several vile epithets to my- 
 self, and uses the following language to Judge Turner : "Having 
 been present, at the first term of your court ever held in this district, 
 and most of your courts since that time, and being familiar with 
 almost every decision and your entire conduct upon the bench, I take
 
 74 
 
 pleasure in saying that I never have practiced before any court where 
 there was so great a dispatch of business, so much order and general 
 satisfaction rendered by the rules and decisions of the court, and 
 that, notwithstanding the base denunciations of your enemies, a 
 large majority of the people who have attended your courts approve 
 and sustain your positions and decisions." 
 
 During the session of the District Court, at its first term, this same 
 John T. McCarty was called before the County Judge to give his 
 testimony on the return of a writ of habeas corpus, and then he tes- 
 tified " that the conduct of Judge Turner on the bench was the most 
 outrageous he had ever witnessed in any court in which he had prac- 
 ticed ; " and the tenor and effect of his whole testimony was in the 
 highest degree condemnatory of the conduct of Judge Turnei: 
 
 One of two things follows : If the statement in the letter be true, 
 then John T. McCarty was guilty of perjury before the County 
 Judge ; but if he testified to the truth, then his statement in the 
 letter is false. In the one case he is a liar and in the other a per- 
 jured scoundrel. Thus convicted out of his own mouth, his vile 
 epithets respecting myself are not worth a moment's consideration. 
 
 STEPHEN J. FIELD. 
 
 MABYSVILLE, Dec. 21st, 1850. 
 
 On my return from the Legislature, and afterwards, 
 this same McCarty was in my presence the most abject 
 and humble wretch I knew in Marysville. He almost 
 piteously begged recognition by me, and was ready to 
 go down on his knees for it. He was a blustering 
 miscreant, full of courage where no force was required, 
 and ready to run at the first appearance of a fight. 
 He was one of a class, all of whom are alike, in whom 
 bluster, toadyism, and pusillanimity go in concert, and 
 are about equally developed in degree.
 
 LIFE IN THE LEGISLATUKE. 
 
 IMMEDIATELY after the election I commenced the prepa- 
 ration of a bill relating to the courts and judicial officers 
 of the State, intending to present it early in the session. 
 The Legislature met at San Jose on the first Monday 
 of January, 1851, and I was placed on the Judiciary 
 Committee of the House. My first business was to call 
 the attention of the Committee to the bill I had drawn. 
 It met their approval, was reported with a favorable 
 recommendation, and after a full discussion was passed. 
 Its principal provisions remained in force for many 
 years, and most of them are retained in the Code, which 
 went into effect in January, 1873. It created eleven 
 judicial districts and defined the jurisdiction and powers 
 of every judicial officer in the State, from a Supreme 
 Judge to a Justice of the Peace. It provided that the 
 then incumbent District Judges should continue to be 
 the Judges of the new Districts according to their re- 
 spective numbers. At the same time I introduced a bill 
 dividing the county of Trinity, and creating -that of 
 Klainath ; and also a bill dividing the county of Yuba, 
 and creating that of Nevada ; and I so arranged it that 
 out of Trinity and Klamath a new Eighth Judicial Dis- 
 trict was created, and out of Yuba, Nevada, and Sutter
 
 76 
 
 a Tenth Judicial District. Thus Turner, being Judge of 
 the Eighth District, was sent to the then comparative 
 wilderness of Trinity and Klamath ; a'nd the Tenth Dis- 
 trict was to have a new judge. After this bill was 
 passed I presented petitions from the citizens of Yuba 
 County, and of that part which now constitutes Nevada 
 County, praying for the impeachment of Turner, and 
 his removal from office, charging as grounds for it his 
 incompetenoy from ignorance to discharge its duties, 
 his arbitrary and tyrannical conduct towards the County 
 Judge and members of the Marysville bar, the particu- 
 lars of which I have related, his contemptuous treat- 
 ment of the writ of habeas corpus, and his general im- 
 moral conduct. 
 
 A committee was thereupon appointed to which the 
 petitions were referred, with power to send for persons 
 and papers. The testimony taken by them fully estab- 
 lished the charges preferred. Indeed, there was no 
 serious attempt made to refute them. The only evi- 
 dence offered in behalf of the Judge was that of a few 
 persons who testified that they had been treated by him 
 with courtesy in some instances and that good order 
 had been maintained in court when they were present. 
 There is no doubt that the impeachment would have 
 been ordered but for a strong desire of the members to 
 bring the session to a close, and a report which had 
 obtained credence, that after the passage of the court
 
 77 
 
 bill, by which Turner was sent out of the eighth dis- 
 trict, I was content to let the question of impeachment 
 be indefinitely postponed. The testimony taken was 
 reported by the Committee on the 15th of April. His 
 impeachment would have required a trial by the 
 Senate, which would have prolonged the session at 
 least a month, and to this members were much averse. 
 Parties came to me and said, "Judge, what's the use of 
 pressing this matter. You have sent Turner where 
 there are only grizzly bears and Indians ; why not let 
 
 him remain there ? He can do no harm there." I re- 
 
 i 
 
 plied that he was not tit to be a judge anywhere, and I 
 refused assent to a postponement of the matter. After- 
 wards, when the vote was about to be taken, a Senator 
 and a personal friend of Turner, misinterpreting some 
 expressions of mine that I desired to bring the matter 
 to a speedy close, privately stated to members of the 
 Hojise that I had declared myself satisfied by the pas- 
 sage of the court bill and was willing to let the im- 
 peachment be dropped, it being understood that this 
 course would not be taken as a sanction of the Judge's 
 conduct. To my astonishment, members who had said 
 only half an hour before that they should vote for the 
 impeachment now voted for an indefinite postpone- 
 ment, which was carried by three votes fifteen to 
 
 twelve. I did not vote, and three members who 
 
 * 
 
 strongly favored the impeachment were absent at the
 
 78 
 
 time. Seven of the members who voted for the indefi- 
 nite postponement afterwards informed me that they 
 had done so under the impression that such a disposi- 
 tion of the matter would be satisfactory to me, and that 
 if a direct vote had been taken on the charges they 
 should have voted for the impeachment. Here the 
 matter ended ; I did not pursue it. Turner did not go 
 back to Marysville and I had no further trouble with 
 him.* 
 
 To understand fully the legislation with which I was 
 connected, and its effect upon the State, one must be 
 familiar with the history of the country and the con- 
 dition of its people. In addition to the act concerning 
 the courts and judicial officers referred to, I took up 
 the Code of Civil Procedure, as reported by the Com- 
 missioners in New York, remodelled it so as to adapt 
 it to the different condition of things and the different 
 organization of the courts in California, and secured 
 its passage. It became what was known as the Cali- 
 fornia Civil Practice Act, and was afterwards adopted 
 in Nevada and in the Territories west of the Rocky 
 Mountains. 
 
 I also took up the Code of Criminal Procedure, as 
 reported by the same Commissioners, and remodelled 
 that in the same way and secured its passage. It con- 
 stituted what was afterwards known as the California 
 t 
 
 * See Exhibit H, in Appendix.
 
 79 
 
 Criminal Practice Act, and was also adopted in the 
 State and Territories mentioned. The amount of labor 
 bestowed upon these acts will be appreciated when I 
 state that I recast, in the two, over three hundred 
 sections, and added over one hundred new ones. 
 I devoted so much attention and earnestness to the 
 work, that in a short time the Legislature placed im- 
 plicit confidence in everything relating to the judiciary 
 which I recommended. The Criminal Practice Act, 
 for instance, remodelled as stated, consisting of over 
 six hundred sections, was never read before the Legis- 
 lature at all. The rules were suspended and the bill 
 read by its title and passed. When it came before the 
 Governor, bn the last day of the session, he said he 
 could not sign it without reading it, and it was too late 
 for him to do that. I represented to him that its 
 passage was essential to secure the harmonious work- 
 ing of laws already passed. Turning to me he said, 
 "You say it is all right?'' I replied, "Yes;" and 
 thereupon he signed it. 
 
 I have already stated that I moved Turner's impeach- 
 ment. After the testimony was taken I addressed the 
 House upon the subject. In reply to my remarks a 
 member, by the name of B. F. Moore, from Tuolumne 
 County, took occasion to make an abusive attack .on 
 me. It was the common practice in those days to go 
 armed. Of the thirty-six members of which the
 
 80 
 
 Assembly then consisted, over two-thirds never made 
 their appearance without having knives or pistols upon 
 their persons, and frequently both. It was a thing of 
 every-day occurrence for a member, when he entered 
 the House, before taking his seat, to take off his pistols 
 and lay them in the drawer of his desk. He did it 
 with as little concern and as much a matter of course, 
 as he took off his hat and hung it up. Nor did such a 
 thing excite surprise or comment. But when Mr. 
 Moore rose to reply to me, he first ostentatiously 
 opened his drawer, took out his revolvers, cocked them, 
 and laid them in the open drawer before him. He 
 then launched out into a speech of the most oppro- 
 brious language, applying to me offensive epithets, and 
 frequently interspersing his remarks with the declara- 
 tion that he was responsible for what he said, both 
 there and elsewhere. It is difficult for me to describe 
 the indignation I felt at this outrageous assault and the 
 manner in which it was made. Its very fierceness 
 made me calm, as it is said that a tempest at sea is 
 sometimes so violent as to still the waves. So when 
 I came to make my rejoinder, I answered only such 
 portions of his speech as attempted argument, and 
 made no allusion to the personal language he had used 
 towards me. But as soon as the vote was had on the 
 question of postponing the impeachment, I took 
 measures to call him to account. For this purpose I
 
 81 
 
 applied to Mr. Samuel A. Merritt, a member from 
 Mariposa County, to carry a note from me to him, 
 calling upon him to apologize for his offensive conduct 
 or give me the satisfaction which it was understood 
 one gentleman had the right to demand from another. 
 At that time it was generally supposed that the con- 
 stitutional provision in regard to duelling was self- 
 operative, and that any person who either sent or 
 accepted a challenge, or acted as a second to one who 
 thus offended, would ipso facto be disqualified from 
 afterwards holding any public office. Upon this 
 understanding of the law, Mr. Merritt, with many ex- 
 pressions of regard for me and regret at the law, 
 declined to carry the note. I then applied to Mr. 
 Kichardson, also a member, but he declined for the 
 same reason. I was afraid, as matters stood, that I 
 could not get anybody to act for me, and I did not 
 know to whom to apply or what to do. Whilst think- 
 ing the matter over, I happened, about nine o'clock in 
 the evening, to walk into the Senate Chamber, and 
 there found Mr. David C. Broderick, afterwards United 
 States Senator, sitting at his desk writing. He was at 
 that time President pro tern, of the Senate. I had 
 known him for some time, but not intimately ; we were 
 merely bowing acquaintances. As I entered he looked 
 up and said, " Why, Judge, yon don't look well, what 
 is the matter ? " I answered that I did not feel well,
 
 82 
 
 for I had not a friend in the world. He replied, 
 " What is it that worries you ? " I then related to him 
 everything that had happened, giving the particulars 
 of the gross and violent assault upon my character, 
 and stated that I was determined, at all hazards, to call 
 Moore to account. Mr. Broderick, without hesitation, 
 said, " My dear Field, 1 will be your friend in this 
 matter ; go and write at once a note to Moore, and I 
 will deliver it myself." I accordingly sat down at an 
 adjoining desk and wrote him a note, the purport of 
 which was that I required him either to make a public 
 retraction of his insulting language in the Legislature, 
 or to give me the satisfaction I had a right to demand. 
 Broderick approved of its terms and at once proceeded 
 to deliver it. 
 
 When he called on Moore and presented it, the 
 latter said he expected to be a candidate for Congress 
 before the coming convention, and he could not accept 
 a challenge because it would disqualify him under the 
 constitution from holding the office. But at the same 
 time he observed that he was willing to meet me at 
 any time and place ; in other words, that he had no ob- 
 jection to a street fight. Broderick replied that a street 
 fight was not exactly the thing among gentlemen ; but 
 that if Moore would do no better, a street tight there 
 should be ; and thereupon named a time and place 
 when and where I would be found the next morning.
 
 83 
 
 Within an hour afterwards Moore changed his mind, 
 and informed Mr. Broderick that Drury Baldwin, an- 
 other member of the House, would act as his friend, 
 and give a reply to my note the next morning. 
 
 In anticipation of a possible collision, Mr. Broderick 
 took me out early the following morning to try my 
 skill in the use of a pistol. I tried a navy revolver 
 and succeeded in hitting a knot on a tree, at a distance 
 of thirty yards, three times out of five. Broderick de- 
 clared himself satisfied, and I then urged upon him 
 the necessity of bringing the matter to a speedy issue. 
 In all this he concurred, and before the meeting of the 
 House, called upon Baldwin for an answer to my note. 
 Baldwin replied that his principal had made up his 
 mind to do nothing further in the matter. " Then," 
 said Broderick, " as soon as the House meets, Judge 
 Field will arise in his seat and refer to the attack on 
 him and to the language of Moore, that he held him- 
 self responsible for what he said, and state that re- 
 spect for the dignity of the House had prevented him 
 from replying to the attack at the time in the terms it 
 deserved ; that he had since demanded satisfaction of 
 Moore for his language, and that Moore had refused 
 to respond, and will thereupon pronounce him a liar 
 and a coward." " Then," said Baldwin, " Judge Field 
 will get shot in his seat." " In that case," rejoined 
 Broderick, " there will be others shot too." Mr.
 
 84 
 
 Broderick soon afterwards informed me of his conver- 
 sation with Baldwin, and asked me if I would act as 
 he had stated I would. " Most certainly," I replied ; 
 " never fear for me ; I will meet the case as it should 
 be met." Accordingly, when the House opened, I 
 took my seat at my desk as usual. Looking around I 
 saw that Broderick was seated near me, and behind 
 him were eight or nine of his personal friends, all 
 armed to the teeth and ready for any emergency. In 
 the meantime, and just before the House met, General 
 John E. Addison, who had found out what was going 
 on and knew the seriousness of the affair, called on 
 Moore, who was his friend, and urged him to retract 
 what he had said and make a suitable apology, and for 
 that purpose drew up a document for him to read to 
 the House, but of this I was not at the time informed. 
 As soon as the journal was read I rose in my seat and 
 said, " Mr. Speaker." At the same moment Moore 
 rose in his seat and said, " Mr. Speaker." The 
 Speaker recognized Moore first ; and Moore thereupon 
 proceeded to read the written apology prepared by 
 Addison for his conduct and language to me. It was 
 full, ample, and satisfactory ; and of course with that 
 the matter ended. From that time forward to the end 
 of the session I had no further trouble with any one.
 
 FRIENDSHIP FOR DAVID C. BRODERICK. 
 
 THE narrative which I have given of my difficulty 
 with Moore explains how Broderick befriended me at 
 a very trying time. But that was not the only occa- 
 sion on which he befriended me. When I came to 
 San Francisco after the adjournment of the Legisla- 
 ture, in May, 1851, I went several times to see him at 
 the hotel where he stopped. On one occasion in the 
 evening, while we were in the saloon of the hotel, he 
 asked me to take a glass of wine with him. We 
 stepped up to the bar and were about drinking, when 
 he suddenly threw himself before me and with great 
 violence pushed me out of the room. The proceeding 
 was so sudden and unexpected that I was astonished 
 and for a moment indignant. I demanded an explana- 
 tion, saying "What does this mean, Mr. Broderick?" 
 He then told me that while we were standing at the 
 bar he had noticed Vi. or to give his full name, 
 Vicesimus Turner, a brother of the Judge, a man of 
 desperate character, come into the bar-room, throw 
 back his Spanish cloak, draw forth a navy revolver, 
 and level it at me. Seeing the movement, he had 
 thrown himself between me and the desperado and car-
 
 86 
 
 ried me off. These good offices on the part of Mr. 
 Broderick filled me with a profound sense of gratitude. 
 For years afterwards I thought and felt as if there was 
 nothing I could do that would be a sufficient return for 
 his kindness. On his account I took much greater 
 interest in political matters than I otherwise should. 
 In order to aid him in his aspirations for election to 
 the United States Senate, upon which he had set his 
 heart, I attended conventions and gave liberally, often 
 to my great inconvenience, to assist the side to which 
 he belonged. To many persons it was a matter of sur- 
 prise that I should take such an interest in his success 
 and through good and evil report remain so constant 
 and determined in my support of him ; but the expla- 
 nation lies in the circumstances I have narrated and the 
 brave manner in which he had stood by me in a most 
 critical moment of my life. 
 
 I regret to state that this friendship was ever broken. 
 It was not by me ; but broken it was. Shortly after 
 Mr. Broderick was elected to the Senate, he quarrelled 
 with Mr. Buchanan over appointments to office in 
 California ; and when he returned to the State, he ex- 
 pressed a good deal of hostility to the Administration. 
 In that hostility I did not participate, and he com- 
 plained of me for that reason. I was then spoken of 
 throughout the State as a probable candidate for the 
 bench, and he announced his opposition to my nomi-
 
 87 
 
 nation. I made no complaints of his conduct, but was 
 much hurt By it. My nomination and election soon 
 afterwards removed me from the sphere of politics. I 
 seldom met him after my election, and never had any 
 conversation with him. Though he was offended at 
 my failure to take sides with him in his controversy 
 with the President, and our intimacy ceased, I could 
 never forget his generous conduct to me ; and for his 
 sad death there was no more sincere mourner in the 
 State.
 
 I 
 
 LEGISLATION SECURED AND BEGINNING A NEW 
 
 LIFE. 
 
 MY legislative career was not without good results. 
 I drew, as already stated, and carried through the 
 Legislature a bill defining the powers and jurisdiction 
 of the courts and judicial officers of the State ; and 
 whilst thus doing good, I also got rid of the ignorant 
 and brutal judge of our district who had outraged my 
 rights, assaulted my character, and threatened my life. 
 I also, as I have mentioned, introduced bills regulat- 
 ing the procedure in civil and criminal cases, re- 
 modelled with many changes from the Codes of Civil 
 and Criminal Procedure reported by the Commissioners 
 of New York ; and secured their passage. 
 
 In the Civil Practice Act I incorporated provisions 
 making the most liberal exemptions from forced sale of 
 the personal property of a debtor, including not merely 
 a limited amount of household furniture, and pro- 
 visions sufficient for individual or family use for one 
 month, but also the instruments or tools by which he 
 earned his livelihood. The exemptions embraced 
 necessary household and kitchen furniture, wearing 
 apparel, beds and bedding of the debtor, whatever his 
 calling ; and also the farming utensils and implements
 
 89 
 
 of husbandry of the farmer, two beasts of burden em- 
 ployed by him, and one cart or wagon ; the tools and 
 implements of a mechanic or artisan necessary to carry 
 on his trade ; the instruments and chests of a surgeon, 
 physician, surveyor, and dentist ; the law libraries of 
 an attorney and counsellor ; the cabin or dwelling of a 
 miner, and his pick, rocker, wheelbarrow, and other 
 implements necessary to carry on mining operations ; 
 two oxen, two horses or two mules and their harness, 
 and one cart or wagon of the cartman, hackman, or 
 teamster ; and one horse with vehicle and harness and 
 other equipments used by a physician, surgeon, or 
 minister of the gospel in making his professional visits ; 
 and all arms and accoutrements required by law to be 
 kept by any person. 
 
 I never could appreciate the wisdom of that legisla- 
 tion which would allow a poor debtor to be stripped of 
 all needed articles of his household and of the imple- 
 ments by which alone he could earn the means of sup- 
 porting himself and family and of ultimately discharg- 
 ing his obligations. It has always seemed to me that 
 an exemption from forced sale of a limited amount of 
 household and kitchen furniture of the debtor, and of 
 the implements used in his trade or profession, was 
 not only the dictate of humanity, but of sound policy. 
 
 I also incorporated a provision into the Civil Prac- 
 tice Act respecting suits for mining claims, which was
 
 90 
 
 the foundation of the jurisprudence respecting mines 
 in the country. The provision was that in actions 
 before magistrates for such claims, evidence should 
 be admitted of the usages, regulations, and customs 
 prevailing in the vicinity, and that such usages, regula- 
 tions, and customs, when not in conflict with the con- 
 stitution and laws of the State, or of the United States, 
 should govern the decision of the action. At this time 
 suits for mining claims, the mines being confessedly on 
 the property of the United States, were brought upon 
 an alleged forcible or unlawful detainer. This rule, 
 thus for the first time adopted by legislative enactment, 
 was soon extended to actions for such claims in all 
 courts, and has since been adopted in all the States 
 and Territories west of the Rocky Mountains and sub- 
 stantially by the legislation of Congress. Simple as 
 the provision is, it solved a difficult problem. 
 
 I also advocated and aided the passage of the Home- 
 stead Exemption Bill. That bill was introduced by 
 Mr. G. D. Hall, a member from El Dorado, and now a 
 resident of San Francisco. It provided for an exemp- 
 tion of the homestead to the value of $5,000. An 
 effort was made to reduce the amount to $3,000, and I 
 think I rendered some aid in defeating this reduction, 
 which has always been to me a source of great grati- 
 ication. 
 
 I also secured the passage of an act concerning
 
 91 
 
 attorneys and counsellors-at-law, in which I in- 
 corporated provisions that rendered it impossible for 
 any judge to disbar an attorney in the arbitrary man- 
 ner in which Judge Turner had acted towards me, 
 without notice of the charges against him and afford- 
 ing him an opportunity to be heard upon them. 
 
 I also introduced a bill creating the counties of Ne- 
 vada and Klamath, the provisions of which were after- 
 wards incorporated into a general bill which was 
 passed, dividing the State into counties and establish- 
 ing the seats of justice therein, and by which also the 
 county of Placer was created. 
 
 I drafted and secured the passage of an act concern- 
 ing county sheriffs, in which the duties and responsi- 
 bilities of those officers, not only in the execution of 
 process and the detention of prisoners, but as keepers 
 of the county jail, were declared and defined ; also an 
 act concerning county recorders, in which the present 
 system of keeping records was adopted. This latter 
 act, though drawn by me, was introduced by Mr. 
 Merritt, of Mariposa, but he does not hesitate to speak 
 publicly of my authorship of it. I also prepared a 
 bill concerning divorces, which was reported from the 
 Judiciary Committee as a substitute for the one pre- 
 sented by Mr. Carr, of San Francisco, and was passed. 
 In this act, aside from the ordinary causes of adultery, 
 and consent obtained by force or fraud, for which
 
 divorces are granted, I made extreme cruelty and 
 habitual intemperance, wilful desertion of either hus- 
 band or wife for a period of two years, and wilful 
 neglect of the husband to provide for the wife the 
 common necessaries of life, having the ability to pro- 
 vide the same, for a period of three years, also causes 
 of divorce. I also drew the charters of the cities of 
 Marysville, Nevada, and Monterey, which were adopted 
 that of Monterey being reported by the Judiciary 
 Committee as a substitute for one introduced by a 
 member from that district. Other bills drawn or sup- 
 ported by me were passed, the provisions of which are 
 still retained in the laws of the State. 
 
 But notwithstanding all this, when I turned my face 
 towards Marysville I was, in a pecuniary sense, ruined. 
 I had barely the means to pay my passage home. My 
 ventures, after my expulsion from the bar, in June, 
 1850, had proved so many maelstroms into which the 
 investments were not only drawn but swallowed up. 
 My affairs had got to such a pass that before I left 
 Marysville for the Legislature I felt it to be my duty 
 to transfer all my real property to trustees to pay my 
 debts, and I did so. And now when I stepped upon 
 the landing in Marysville my whole available means 
 consisted of eighteen and three-quarter cents, and I 
 owed about eighteen thousand dollars, the whole of 
 which bore interest at the rate of ten per cent, a
 
 93 
 
 month. I proceeded at once to the United States 
 Hotel, kept by a Mr. Peck, who had known me in the 
 days of my good fortune. " My dear Mr. Peck," I 
 said, " will you trust me for two weeks' board ? " 
 " Yes," was the reply, " and for as long as you want." 
 " Will you also send for my trunks on the steamer, for 
 I have not the money to pay the carman." " Cer- 
 tainly," the good man added, and so the trunks were 
 brought up. On the next day I looked around for 
 quarters. I found a small house, thirty feet by six- 
 teen, for an office, at eighty dollars a month, and took 
 it. It had a small loft or garret, in which I placed a 
 cot that I had purchased upon credit. Upon this cot 
 I spread a pair of blankets, and used my valise for a 
 pillow. I secured a chair without a back for a wash- 
 stand, and with a tin basin, a pail, a piece of soap, a 
 toothbrush, a comb, and a few towels, I was rigged 
 out. I brought myself each day the water I needed 
 from a well near by. I had an old pine table and a 
 cane-bottomed sofa, and with these and the bills which 
 had passed the Legislature, corrected as they became 
 laws, and the statutes of the previous session, I put 
 out my sign as an attorney and counsellor-at-law, and 
 began the practice of my profession. 
 
 Soon afterwards I found my name mentioned as a 
 candidate for the State Senate. The idea of returning 
 to the Legislature as a Senator pleased me. The
 
 94 
 
 people of the county seemed to favor the suggestion. 
 Accordingly I made a short visit to neighboring pre- 
 cincts, and finding my candidacy generally approved I 
 went to work to make it successful. At the election of 
 delegates to the county convention, which was to nomi- 
 nate candidates, a majority was returned in my favor. 
 Several of them being unable to attend the convention, 
 which was to be held at Downieville, a distance of about 
 seventy miles from Marysville, sent me their proxies 
 made out in blank to be filled with the name of any 
 one whom I might designate. To one supposed friend 
 I gave ten proxies, to another five, and to a third two. 
 When the members met, just previous to the assem- 
 bling of the convention, it was generally conceded that 
 I had a majority of the delegates. But I had a new 
 lesson in manipulation to learn. Just before the open- 
 ing of the convention my supposed friend, who had the 
 ten proxies, was approached by the other side, and by 
 promises to give the office of sheriff to his partner an 
 office supposed to be worth thirty thousand a year 
 his ten votes were secured for my opponent. The one 
 to whom I had given five proxies was promised for 
 those votes the county judgeship. So when the conven- 
 tion voted, to my astonishment and that of my friends, 
 fifteen of my proxies were cast for my opponent, 
 Joseph C. McKibbin, afterwards a member of Congress, 
 who acted so fearlessly when the Kansas question 
 came up. I was accordingly beaten by two votes.
 
 95 
 
 For the moment I was furious, and hunted up the 
 man who had held my ten proxies, and had been se- 
 duced from my support. When I found him in the 
 room of the convention, I seized him and attempted to 
 throw him out of the window. I succeeded in getting 
 half his body out, when bystanders pulled me back and 
 separated us. This was fortunate for both of us ; for 
 just underneath the window there was a well or shaft 
 sunk fifty feet deep. The following morning I left 
 Downieville, returned to my office and loft at Marys- 
 ville, and gave my attention to the practice of the law. 
 My business soon became very large ; and, as my 
 expenses were moderate, within two years and a half I 
 paid off all my indebtedness, amounting with the 
 accumulations of interest to over thirty-eight thousand 
 dollars. Part of this amount was paid by a surrender 
 of the property mortgaged, or a sale of that previously 
 assigned, but the greater part came from my earnings. 
 I paid every creditor but one in full ; to each I gave 
 his pound of flesh, I mean his interest, at ten per cent, 
 a month. I never asked one of them to take less than 
 the stipulated rate. The exceptional creditor was Mr. 
 Berry, a brother lawyer, who refused to receive more 
 than live per cent, a month on a note he held for $450. 
 By this time I had become so much interested in my 
 profession as to have no inclination for office of any 
 kind. On several occasions I was requested by in-
 
 96 
 
 fluential party leaders to accept a nomination for the 
 State Senate, but I refused. I am inclined to think 
 that I had for some time a more lucrative practice than 
 any lawyer in the State, outside of San Francisco. No 
 such fees, however, were paid in those days as have 
 been common in mining cases since the discovery of 
 the silver mines of Nevada and the organization of 
 great corporations to develop them. 
 
 The Bar of Marysville during this period, and after- 
 wards while I remained in that city which was until 
 October, 1857 was a small, but a very able body of 
 men. Many of its members have since attained distinc- 
 tion and held offices of honor and trust. Richard S. 
 Mesick, who settled there in 1851, became a State 
 Senator, and after his removal to Nevada, a District 
 Judge of that State. He ranks now among the ablest 
 lawyers of the Coast. Charles H. Bryan, who settled 
 there the same year, was an eloquent speaker, and in 
 his forensic contests gave great trouble to his opponent 
 whenever he got at the jury. He was on the Supreme 
 Court of the State for a short period, under the ap- 
 pointment of Governor Bigler. Jesse O. Goodwin, of 
 whom I have already spoken, settled in Marysville in 
 1850. He was a ready speaker, and sometimes rose to 
 genuine eloquence. He was distinguished in criminal 
 cases. As already stated, he was elected District 
 Attorney in 1850, and afterwards became County
 
 97 
 
 Judge, and is DOW State Senator. Gabriel N. Swezy, 
 who settled there in 1850, was learned in his pro- 
 fession, and quick of apprehension. Few lawyers 
 could equal him in the preparation of a brief. He 
 afterwards at different times represented the county in 
 the Assembly and the Senate of the State. William 
 Walker, who afterwards figured so conspicuously in the 
 filibustering expeditions to Nicaragua, and was called 
 by his followers " the grey-eyed man of destiny," had 
 an office in Marysville in 1851 and '52. He was a 
 brilliant speaker, and possessed a sharp but not a very 
 profound intellect. He often perplexed both court 
 and jury with his subtleties, but seldom convinced 
 either. John V. Berry, who came to Marysville from 
 the mines in 1851, was a fine lawyer, deeply read in 
 the law of adjudged cases. He died in 1853 from 
 poison given to him in mistake by a druggist. Ed- 
 ward D. Wheeler, who came there in 1850, and Thomas 
 B. Reardon, who came in 1853, were both men of 
 strong minds. Mr. Wheeler represented Yuba County 
 at one time in the Senate, and is now the District 
 Judge of the Nineteenth District, at San Francisco. 
 He is regarded as among the ablest and best of the 
 State Judges. Mr. Reardon has been a District Judge 
 for some years in the Fourteenth District, greatly 
 respected by the profession for his ability and learn- 
 ing-. Isaac S. Belcher, who came to Marysville at a
 
 98 
 
 later period in 1855, I believe was noted for his 
 quiet manners and studious habits. He has since been 
 District Judge, and has worthily filled a seat on the 
 bench of the Supreme Court of the State, where he was 
 greatly respected by his associates and members of 
 the bar. Edward C. Marshall, the brilliant orator, who 
 at one time represented the State in Congress, had his 
 office in Marysville in 1855 and '56. He occasionally 
 appeared in court, though he was generally occupied 
 in politics, and in his case, as in nearly all others, the 
 practice of the law and the occupation of politics did 
 not always move harmoniously together. 
 
 Charles E. Filkins, afterwards County Judge ; Charles 
 Lindley, afterwards also County Judge and one of the 
 Code Commissioners ; Henry P. Haun, the first County 
 Judge, and afterwards appointed to the United States 
 Senate by Governor Weller; N. E. Whitesides, after- 
 wards a member of the Legislature from Yuba, and 
 Speaker of the House ; F. L. Hatch, now County Judge 
 of Colusa ; George Eowe, afterwards Treasurer of the 
 County ; and Wm. S. Belcher, who afterwards rendered 
 good service to the public as a School Commissioner, 
 also practiced at the Marysville bar with success. 
 
 Charles E. DeLong, afterwards a member of the State 
 Senate, and our Minister to Japan, and Henry K. Mitch- 
 ell, afterwards a nominee of the Democrats for the U. 
 S. Senate in Nevada, were just getting a good position
 
 99 
 
 at the bar when I left, and gave evidence of the ability 
 which they afterwards exhibited. Others might be 
 named who held tine positions in the profession. 
 
 These mentioned show a bar of great respectability, 
 and I may add that its members were, with few excep- 
 tions, gentlemen of general information and courteous 
 manners. The litigation which chiefly occupied them 
 and gave the largest remuneration related to mines and 
 mining claims. The enforcement of mortgages and 
 collection of debts was generally by me, at least en- 
 trusted to clerks, unless a contest was made upon them. 
 
 There was one case which I recall with pleasure, be- 
 cause of the result obtained in face of unconcealed 
 bribery on the other side. The subject of the suit was 
 the right to a " placer " mine in Yuba River, at Park's 
 Bar. Its value may be estimated from the fact that 
 within two or three weeks after the decision of the case, 
 the owners took from the mine over ninety thousand 
 dollars in gold dust. The suit was brought before a 
 justice of the peace, and was for an alleged forcible 
 entry and detainer, a form of action generally adopted 
 at the time for the recovery of mining claims, because 
 the title to the lands in which the mines were found 
 was in the United States. It was prosecuted as a 
 purely possessory action. The constable whose duty 
 it was to summon the jurors had received the sum of 
 two hundred dollars to summon certain parties, named
 
 by the other side. This fact was established beyond 
 controversy by evidence placed in my hands. And 
 whilst I was in bed in one of the tents or canvas sheds 
 at the Bar, which the people occupied in the absence 
 of more substantial buildings, I heard a conversation in 
 the adjoining room I could not nelp hearing it, as it 
 was carried on without any attempt at concealment, and 
 the room was only separated from me by the canvas 
 between one of the jurors and one of the opposite party, 
 in which the juror assured the party that it was " all 
 right," and he need not worry as to the result of the 
 suit ; his side would have the verdict ; the jury were all 
 that way. On the next day, when the case was summed 
 up, the saloon in which the trial was had was crowded 
 with spectators, most of whom were partisans of the 
 other side. I addressed the jury for over three hours, 
 and after having commented upon the evidence at length 
 and shown conclusively, as I thought, that my client was 
 entitled to a verdict, I said substantially as follows : 
 " Gentlemen, we have not endeavored to influence your 
 judgment except by the evidence ; we have not ap- 
 proached you secretly and tried to control your verdict ; 
 we have relied solely upon the law and the evidence to 
 maintain our rights to this property. But the other 
 side have not thus acted ; they have not been content 
 that you should weigh only the evidence ; they have en- 
 deavored to corrupt your minds and pervert your judg-
 
 101 
 
 raents ; they have said that you were so low and debased 
 that although you had with uplifted hands declared 
 that so might the ever-living God help you, as you ren- 
 dered a verdict according to the evidence, you were 
 willing, to please them, to decide against the evidence, 
 and let perjury rest on your souls. I know that you 
 [pointing to one of the jurors] have been approached. 
 Did you spurn the wretch away who made a corrupt 
 proposal to you, or did you hold counsel, sweet counsel 
 with him ? I know that you [pointing to another juror] 
 talked over this case with one of the other side at the. 
 house on the hill last night, for I overheard the conver- 
 sation the promise made to you and your pledge to 
 him. In the canvas houses here all rooms are as one ; 
 the words uttered in one are voices in all. You did not 
 dream that any but you two were in the tent ; but I was 
 there and overheard the foul bargain." 
 
 At this thrust there was great excitement, and click, 
 click, was heard all through the room, which showed a 
 general cocking of pistols ; for every one in those days 
 went armed. I continued : " There is no terror in your 
 pistols, gentlemen ; you will not win your case by shoot- 
 ing me ; you can win it only in one way by evidence 
 showing title to the property ; you will never win it by 
 bribery or threats of violence. I charge openly at- 
 tempted bribery, and if what I say be not true, let the 
 jurors speak out now from their seats. Attempted
 
 102 
 
 bribery, I say whether it will be successful bribery, 
 will depend upon what may occur hereafter. If, after 
 invoking the vengeance of Heaven upon their souls 
 should they not render a verdict according to the evi- 
 dence, the jurors are willing to sell their souls, let them 
 decide against us." 
 
 This home-thrust produced a great sensation. It was 
 evident that the jury were disturbed. When the case 
 was submitted to them, they were absent only a few 
 minutes. They returned a verdict in our favor. Some 
 of them afterwards came to me and admitted that they 
 had been corruptly approached, but added that they 
 were not low enough to be influenced in their verdict 
 in that way. " Of course not," I replied ; though I had 
 little doubt that it was only the fear of exposure which 
 forced them to do right. 
 
 I have said that in those days everyone went armed ; 
 it would be more correct to say that this was true in 
 the mining regions of the State and when travelling. I, 
 myself, carried a Derringer pistol and a Bowie-knife 
 until the Summer of 1854, though of course out of sight. 
 I did so by the advice of Judge Mott, of the District 
 Court, who remarked that, though I never abused a 
 witness or a juror, or was discourteous to any one in 
 court, there were desperate men in the country, and no 
 one could know to what extremity they might go, as I 
 would not be deterred by any considerations from the
 
 103 
 
 discharge of my whole duty to my clients. So, until 
 the Summer of 1854, 1 carried weapons. And yet they 
 were not such provocatives of difficulty as some of our 
 Eastern friends are accustomed to think. On the con- 
 trary, I found that a knowledge that they were worn 
 generally created a wholesome courtesy of manner and 
 language. 
 
 I continued to occupy my small office and slept in its 
 loft through the Summer and Fall of 1851, and felt quite 
 contented with them. Twice I was summarily dislodged, 
 being threatened by a fire on the other side of the street. 
 On one occasion a most ludicrous incident occurred, 
 which I cannot recall without a smile. A little after 
 midnight we were aroused, on the occasion referred to, 
 by a loud thumping at our door, accompanied by a cry 
 of " fire." My loft was shared with three others, and 
 at the cry we all leaped from our cots and two of our 
 number seizing whatever was convenient and portable 
 carried it out of the house to a distance of about one 
 hundred yards, where gathered a multitude of people, 
 fleeing before the flames with all sorts of baggage, trunks, 
 chairs, beds, and utensils of every kind which they had 
 brought from their houses. I hastily threw the papers 
 of sundry suits and a dozen law books, recently pur- 
 chased, into a box, and with the assistance of the other 
 occupant of my loft, carried it off. Just as we reached 
 the crowd, a pair of young grizzly bears which the
 
 104 
 
 owner had kept in a cage near by were let loose, and 
 they came towards us growling in their peculiar way. 
 At their sight, there was a general stampede of men, 
 women, and children, in all directions. Boxes and 
 everything else portable were instantly dropped, and 
 such an indiscriminate flight was never before seen ex- 
 cept from a panic in battle.
 
 THE BARBOUR DIFFICULTY. 
 
 WHEN the bill of 1851, dividing the State into new 
 judicial districts, became a law, there were several 
 candidates for the office of Judge of the Tenth Ju- 
 dicial District, which comprised the counties of Yuba, 
 Nevada, and Butter. Henry P. Haun, the County 
 Judge of Yuba, was one candidate ; John V. Berry, a 
 lawyer of the same county was another ; and Gordon 
 N. Mott, a lawyer of Sutter County, was a third. My 
 first choice was Berry ; but, finding that he had very 
 little chance, I gave what influence I had in favor of 
 Mr. Mott, and he received from the Governor the ap- 
 pointment of Judge of the new district. 
 
 In the Summer of 1851, the Governor issued his 
 proclamation for the Fall elections, and, among others, 
 for an election to fill the office of Judge of the Tenth 
 District. I had supposed and there were many 
 others who agreed with me that Judge Mott's term 
 under his appointment would continue until the elec- 
 tion of 1852. But there being some doubts about the 
 matter and the Governor having issued his proclama- 
 tion for an election, candidates were nominated by the 
 conventions ; and at the ensuing election one of them,
 
 06 
 
 William T. Barbour, a lawyer of Nevada County, re- 
 ceived a majority of the votes cast and was declared 
 elected. When he came, however, to demand the 
 office, Judge Mott expressed his opinion that there 
 had been no vacancy to be filled and declined to sur- 
 render. This led to a suit between them. The ques- 
 tion involved being exclusively one of law, an agreed 
 case was made up and presented to the Supreme 
 Court, and that tribunal decided in favor of Barbour. 
 A report of the case is given in the 3d California Re- 
 ports, under the title of People, ex rel. Barbour, vs. 
 Mott. 
 
 In the case I appeared as counsel for Judge Mott 
 and argued his cause. This offended Judge Barbour, 
 and he gave free expression to his displeasure. After- 
 wards, when his term for the vacancy was about to 
 expire and a new election was to be held, he presented 
 himself as a candidate for a second term. It was my 
 opinion that he was not qualified for the position, and 
 I therefore recommended my friends to vote for his 
 opponent. For some weeks previous to the election I 
 was absent from the district ; but I returned two days 
 before it was to take place and at once took a decided 
 part against Barbour and did all I could to defeat him. 
 This action on my part, in connection with my previous 
 zeal in behalf of Judge Mott, led Barbour to make 
 some very bitterly vituperative remarks about me ?
 
 107 
 
 which being reported to me, I called on him for an ex- 
 planation. Some harsh words passed between us at 
 the interview. The result was that Barbour refused to 
 make any explanation, but gave me a verbal challenge 
 to settle our difficulties in the usual way among gentle- 
 men. I instantly accepted it and designated Judge 
 Mott as my friend. 
 
 In half an hour afterwards Judge Mott was called 
 upon by Mr. Charles S. Fairfax as the friend of Bar- 
 bour, who stated that Barbour had been challenged by 
 me, and that his object in calling upon Mott was to ar- 
 range the terms of a hostile meeting. Mott answered 
 that he understood the matter somewhat differently ; 
 that the challenge, as he had been informed, came 
 from Barbour, and that I, instead of being the chal- 
 lenging, was the accepting party. Fairfax, however, 
 insisted upon his version of the affair ; and upon con- 
 sulting with Mott, I waived the point and accepted the 
 position assigned me. Fairfax then stated that Bar- 
 bour, being the challenged party, had the right to 
 choose the weapons and the time and place of meet- 
 ing ; to all of which Mott assented. Fairfax then said 
 that, upon consultation with his principal, he had fixed 
 the time for that evening ; the place, a room twenty 
 feet square, describing it; the weapons, Colt's revol- 
 vers and Bowie-knives ; that the two principals so 
 armed were to be placed at opposite sides of the room
 
 108 
 
 with their faces to the wall ; that they were to turn 
 and fire at the word, then advance and finish the con- 
 flict with their knives. Mott answered that the terms 
 were unusual, unprecedented, and barbarous, and that 
 he could not consent to them. Fairfax admitted that 
 they were so ; but replied that they were those Bar- 
 bour had prescribed. He would, however, see Barbour 
 and endeavor to obtain a modification of them. Soon 
 afterwards he reported that Barbour still insisted upon 
 the terms first named and would not agree to any 
 other. 
 
 When Mott reported the result of his conference 
 with Fairfax, I at once said that Barbour was a coward 
 and would not fight at all. I knew perfectly well that 
 such terms could come only from a bully. I saw that 
 it was a game of bluff he was playing. So I told Mott 
 to accept them by all means. Mott accordingly called 
 on Fairfax and accepted the terms as proposed, and 
 gave notice that I would be on hand and ready at the 
 time and place designated. This being reported to 
 Barbour, Fairfax soon afterwards made his appearance 
 with a message that his principal would waive the 
 Bowie-knives ; and not long afterwards he came a 
 second time with another message that it would not 
 do to have the fight in the room designated, because 
 the firing would be heard outside and attract a crowd. 
 In accordance with my instructions, Mott assented to
 
 109 
 
 all the modifications proposed, and it was finally agreed 
 that the meeting should take place the next morning 
 in Sutter County. I was to take a private conveyance, 
 and Barbour was to take one of the two daily stages 
 that ran to Sacramento. At a specified place we were 
 to leave our conveyances and walk to a retired spot, 
 which was designated, where the hostile meeting was 
 to take place. 
 
 The next morning, accordingly, I took a carriage, 
 "and with my friend Judge Mott drove down to the ap- 
 pointed place. After we had been there some time 
 the first stage appeared and stopped. Soon after the 
 second stage appeared and stopped, and Judge Bar- 
 bour and Mr. Fairfax got out. But instead of pro- 
 ceeding to the designated place, Barbour declared that 
 he was a judicial officer, and as such could not engage 
 in a duel. At the same time he would take occasion 
 to say that he would protect himself, and, if assaulted, 
 would kill the assailant. With these words, leaving 
 Fairfax standing where he was, he walked over to the 
 first stage, and mounting rode on to Sacramento. 
 Seeing Fairfax standing alone on the ground I sent 
 word to him that I would be happy to give him a place 
 in my carriage an invitation which he accepted, and 
 we then drove to Nicolaus, where we breakfasted, and 
 thence returned to Marysville.* 
 
 * See Letter of Judge Mott detailing the particulars of the affair ; 
 Exhibit H, in Appendix.
 
 110 
 
 The conduct of Barbour on the ground, after his 
 fierce and savage terms at the outset, produced a great 
 deal of merriment and derision ; and some very sharp 
 squibs appeared in the newspapers. One of them 
 gave him great annoyance, and he inquired for its 
 author. I told the editor of the paper in which it ap- 
 peared that if it was necessary to protect the writer, 
 to give my name, although I did not write it, or know 
 beforehand that it was to be written. 
 
 On the following morning, whilst in front of my 
 office gathering up kindling-wood for a fire, and having 
 my arms full for each man was his own servant in those 
 days Barbour came up and, placing a cocked navy 
 revolver near my head, cried out, " Draw and defend 
 yourself/' As I had not observed his approach I was 
 taken by surprise, but turning on him I said, " You 
 infernal scoundrel, you cowardly assassin you come 
 behind my back and put your revolver to my head and 
 tell me to draw ; you haven't the courage to shoot ; 
 shoot and be damned." There were at least ten 
 witnesses of this scene ; and it was naturally supposed 
 that having advanced so far he would go farther; but 
 as soon as he found I was not frightened, he turned 
 away and left me. It is impossible to express the con- 
 tempt I felt for him at that moment for his dastardly 
 conduct, a feeling which the spectators shared with 
 me, as they have since often stated.* 
 
 * See Exhibit I, in Appendix.
 
 Ill 
 
 I do not give these details as having any importance 
 in themselves ; but they illustrate the semi-barbarous 
 condition of things in those early days, and by com- 
 parison show out of what our existing condition has 
 been evolved, and how far we have advanced. I give 
 them also for the reason that Barbour afterwards wrote 
 a letter to Turner, which the latter published, referring 
 to the affair, in which he boasted of having given me 
 a " whipping." How far his boast was warranted the 
 above facts show. 
 
 For a long time afterwards he expressed his bitter- 
 ness towards me in every possible way. He did not 
 take Turner's plan of expelling me from the bar ; but 
 he manifested his feelings by adverse rulings. In such 
 cases, however, I generally took an appeal to the 
 Supreme Court, and in nearly all of them procured a 
 reversal. The result was that he suddenly changed 
 his conduct and commenced ruling the other way. 
 While this was his policy, there was hardly any posi- 
 tion I could take in which he did not rule in my favor. 
 At last I became alarmed lest I should lose my cases 
 in the appellate court by winning them before him. 
 
 About a year afterwards he sent one of his 
 friends to ask me if I -was willing to meet him half- 
 way stating that my conduct in court had always 
 been courteous, and he was satisfied that he had done 
 me injustice. I answered that I was always will-
 
 112 
 
 ing to meet any one half-way, but in this case it must 
 be without explanations for the past. This condition 
 was accepted ; accordingly we met, and taking a glass 
 of wine, I said, " Here is to an act of oblivion, but no 
 explanations." For a long time no allusion was made 
 by either to the old difficulties. But at last he insisted 
 upon telling me how tales had been brought to him, 
 and how they exasperated him; and he expressed 
 great regret for what had taken place ; and to make 
 amends, as far as he was able, for what he had written 
 about me, he sent me the following letter : 
 
 "MABYSVILLE, Dec. 22, 1856. 
 " Hon. S. J. FIELD. 
 
 ' ' DK A K SIB : On yesterday I learned through our mutual friend 
 Charles S. Fairfax, Esq. , that Judge W. li. Turner has recently issued 
 a publication which contains a letter of mine, written him some four 
 years ago. I have not been able to procure a copy of this publica- 
 tion, and I have entirely forgotten the language used ; in truth I do 
 not remember to have written him on the subject of yourself or 
 otherwise ; but I suppose I must have done so, and have given 
 expressions of opinion that I have long since ceased to entertain, 
 and to invectives that I have no disposition to justify. You will 
 recall that, at the time referred to, there unfortunately existed be- 
 tween us feelings of deep hostility ; and I may at the time have used 
 harsh terms indicative of my then feelings, which I regret and do 
 not now approve, if they are as represented by others. 
 
 " Judge Turner has taken an unwarranted liberty in publishing 
 the letter, be it of what character it may. He never requested my 
 permission for this purpose, nor did I know that it was his intention. 
 
 " Trusting that this explanation may be satisfactory, I remain, 
 " Very respectfully yr. obt. servant, 
 
 " WM. T. BABBOUB."
 
 113 
 
 He ever afterwards, as occasion offered, spoke of me 
 in the highest terms as a gentleman and lawyer. My 
 resentment accordingly died out, but I never could feel 
 any great regard for him. He possessed a fair mind 
 and a kindly disposition, but he was vacillating and in- 
 dolent. Moreover, he loved drink and low company. 
 He served out his second term and afterwards went to 
 Nevada, where his habits became worse, and he sunk 
 so low as to borrow of his acquaintances from day to 
 day small sums one or two dollars at a time to get 
 his food and lodging. He died from the effects of his 
 habits of intemperance. 
 
 In stating the result of the intended hostile meeting 
 with him, I mentioned that when he proceeded on his 
 way to Sacramento, he left his second, Mr. Fairfax, 
 standing alone on the ground, and that I invited the 
 latter to take a seat in my carriage. From this time 
 the intercourse between Mr. Fairfax and myself became 
 more frequent than it had been previously, and a friend- 
 ship followed which continued as long as he lived. He 
 was not sparing in his censure of the conduct of his 
 principal, whilst his language was complimentary of 
 mine. In a few months I became quite intimate with 
 him, and I found him possessed of a noble and chivalric 
 spirit. With great gentleness of manner, he had the 
 most intrepid courage. His fidelity to his friends and 
 devotion to their interests attached them strongly to 
 
 -
 
 114 
 
 him. He was beloved by all who knew him. No man 
 in the State was more popular. He represented the 
 county of Yuba in the Legislature two or three times, 
 and at one session was Speaker of the Assembly. When 
 the land office at Marysville w r as established in 1855, he 
 was appointed Register ; and in 1856, he was elected 
 Clerk of the Supreme Court of the State. It was my 
 good fortune to aid him in securing both of these posi- 
 tions. At my suggestion, Mr. McDougal, a Member of 
 Congress from California, urged the establishment of 
 the land office, and obtained for him the appointment 
 of Register. In 1856, when he sought the clerkship of 
 the Supreme Court of the State, I became a delegate 
 from Yuba County to the State Convention, and made 
 his nomination for that office my special object, and 
 with the aid of the rest of the delegation, succeeded in 
 obtaining it. 
 
 Two or three incidents which I will relate will illus- 
 trate the character of the man. It was either in the 
 session of 1854 or 1855, I forget which, that a petition 
 was presented to. the Assembly of California on the part 
 of some of the colored people of the State, requesting 
 that the laws then in force, which excluded them from 
 being witnesses in cases where a white person was a party, 
 might be repealed so as to allow them to testify in such 
 cases. At that time there was a great deal of feeling 
 throughout the country on the subject of slavery, and
 
 115 
 
 any attempt to legislate in behalf of the colored people 
 was sure to excite opposition, and give rise to sugges- 
 tions that its promoter was not sound on the slavery 
 question. The presentation of the petition accordingly 
 stirred up angry feelings. It created a perfect outburst 
 of indignation, and some one moved that the petition 
 should be thrown out of the window ; and the motion 
 was passed almost unanimously. If I recollect aright, 
 there was but a single vote in the negative. I was 
 standing by Mr. Fairfax when he was informed of the 
 proceeding. He at once denounced it, and said, in 
 energetic terms" This is all wrong the petition 
 should have been received. If my horse or my dog 
 could in any way express its wishes to me I would listen 
 to it. It is a shame that a petition from any one, black 
 or white, should not be received by the Legislature of 
 the State, whether it be granted or not." I was greatly 
 impressed at that time with the manliness of this ex- 
 pression in a community which looked with suspicion 
 on any movement in favor of extending any rights to 
 the colored race. 
 
 On another occasion, some years afterwards, when I 
 was Judge of the Supreme Court of the State and he 
 was the clerk of the court, there was a good deal of 
 complaint against Harvey Lee, the reporter of the court, 
 who was appointed to the office by Governor Weller. 
 I believe that Lee was instrumental, but of this I am
 
 116 
 
 not certain, in getting a law passed which took the 
 appointment of the reporter from the court and gave 
 it to the Governor. He was an inferior lawyer, and, 
 of course, had very little practice. The appointment, 
 therefore, to which a fair salary was attached, was 
 eagerly sought by him. His reports, however, were so 
 defective that an effort was made by the judges to get 
 the law repealed and have the appointment restored 
 to the court. This led to a bitter feeling on his part 
 towards the judges, and in a conversation with Mr. 
 Fairfax he gave vent to it in violent language. Mr. 
 Fairfax resented the attack and an altercation ensued, 
 when Lee, who carried a sword-cane, drew the sword 
 and ran it into Fairfax's body. Fortunately it entered 
 the chest above the heart. Withdrawing the sword 
 Lee made a second lunge at Fairfax, which the latter 
 partially avoided so as to receive only a flesh wound 
 in the side. By this time Fairfax had drawn his pistol 
 and covered the body of Lee, as he was raising his 
 sword for a third thrust. Lee, seeing the pistol, 
 stepped back and threw up his arms exclaiming, " I am 
 unarmed " though he had only that moment with- 
 drawn his sword from the body of Fairfax, and it was 
 then dripping with blood. " Shoot the damned scoun- 
 drel," cried the latter's friend, Samuel B. Smith, then 
 standing by his side. But Fairfax did not shoot. 
 Looking at Lee, whose body was covered with his
 
 117 
 
 pistol, while the blood was trickling from his own 
 person, he said, "You are an assassin! you have mur- 
 dered me ! I have you in my power ! your life is in my 
 hands!" And gazing on him, he added, "But for the 
 sake of your poor sick wife and children I will spare 
 you." He thereupon uncocked his pistol and handed 
 it to his friend, into whose arms he fell fainting. He 
 had known the wife of Lee when a young girl ; and, 
 afterwards, in speaking of the affair to a friend, he 
 said, " I thought my wife would be a widow before 
 sundown, and I did not wish to leave the world mak- 
 ing another." All California rang with the story of 
 this heroic act. It has its parallel only in the self- 
 abnegation of the dying hero on the battle-field, who 
 put away from his parched lips the cup of water 
 tendered to him, and directed that it be given to a 
 wounded soldier suffering in agony by his side, saying, 
 "His need is greater than mine." . 
 
 During the war his sympathies, as was the case with 
 most Southerners in California, were with his people 
 in Virginia. He told me on one occasion that he could 
 not but wish they would succeed ; but, he said ; 
 " Though I am a Virginian by birth, I have adopted 
 California, and whilst I live in a State which has taken 
 her stand with the Northern people, I cannot in honor 
 do anything, and I will not, to weaken her attachment 
 to the Union. If my health were good I should leave
 
 118 
 
 the State and return to Virginia and give my services 
 to her ; but, as that is impossible, I shall remain in 
 California, and, whilst here, will not be false to her by 
 anything I do or say." 
 
 These incidents, better than any elaborate descrip- 
 tion, illustrate the character of the man. He was a 
 lineal descendant of the great Fairfax family which has 
 figured so conspicuously in the history of England and 
 of Virginia. He was its tenth Baron in a direct line. 
 But notwithstanding the rank of his family he was a 
 republican in his convictions. He loved his country 
 and its institutions. He was himself more noble than 
 his title. He came East to attend the National 
 Democratic Convention in 1868 at the head of the 
 delegates from California. After the Convention, he 
 spent some mouths among his friends and relatives at 
 the old family residence in Maryland. At this time 
 the seeds of consumption, which had long been lurking 
 in his system, began to be developed, and he was 
 taken down with a severe illness which proved fatal. 
 He became so ill as to be unable to walk, and was con- 
 veyed to Baltimore to procure the best medical attend- 
 ance; and there he died on the 4th of April, 1869, in 
 the arms of his devoted wife, who had come from Cali- 
 fornia to be with him in his last hours. His body was 
 brought to Washington and interred within sight of 
 the Capitol, near Rock Creek Church, in which his an- 
 cestors had worshipped.
 
 119 
 
 I have mentioned that when Fairfax was stabbed by 
 Lee he fell into the arras of Mr. Samuel B. Smith. 
 This gentleman I had known slightly before my 
 difficulty with Judge Barbour ; but the intimacy which 
 sprung up between Fairfax and myself, after that 
 affair, brought me more in contact with Mr. Smith, 
 who was his constant companion. Mr. Smith came to 
 California from New Jersey in 1849, and passed 
 through some stirring scenes during that and the 
 following year. He came with Mr. John S. Hagar, 
 who was afterwards State Senator, District Judge, and 
 United States Senator, and was engaged with him in 
 the mines in the winter of 1849-'50. In 1850 he 
 settled in Sutter County ; and in the fall of 1852 was 
 elected State Senator from that county. Having 
 become more intimately acquainted with him after he 
 was elected Senator, I requested him to introduce a 
 bill into the Legislature, revising and amending the 
 one which I had originally drawn concerning the 
 courts and judicial officers of the State ; and he cheer- 
 fully consented to do so, and took great interest in 
 securing its passage. Indeed, it was through his in- 
 fluence that the bill became a law. Many circum- 
 stances threw us together after that, and I learned to 
 appreciate his manly character, his generous disposition, 
 and his great devotion to his friends. Finally, in the 
 fall of 1854, we agreed to form a partnership after my 
 return from the Eastern States, which I then proposed
 
 120 
 
 to visit. After the Barbour affair the course of iny 
 professional life was much the same as that of any 
 other lawyer. My business was large and I gave to it 
 my unremitting attention. In 1854 I determined to 
 go East to see my parents and brothers and sisters, 
 who had never been out of my mind a single day since 
 I left them in 1849. Accordingly, I went East, and 
 after passing a few months with them I returned to 
 California in January, 1855. After that I continued 
 to practice my profession, with Mr. Smith as my part- 
 ner, until the spring of 1857, though during this 
 period he went to Washington as Commissioner of 
 the State to obtain from Congress the payment of 
 moneys expended by her in suppressing the hostilities 
 of Indians within her borders, and was absent several 
 months. In April of that year we dissolved our part- 
 nership. A few months afterwards I was nominated 
 for the bench of the Supreme Court of the State, and 
 was elected by a large majority. There were two 
 candidates besides myself for the position, and 93,000 
 votes were polled. Of these I received a majority of 
 36,000 over each of my opponents, and 17,000 over 
 them both together.* The term to which I was elected 
 
 * The exact vote was as follows : 
 
 For myself 55.216 
 
 For Nathaniel Bennett 18,944 
 
 For J. P. Ralston 19,068 
 
 Total vote 93,228
 
 121 
 
 was for six years, commencing January 1st, 1858. In 
 September, 1857, Hugh C. Murray, then Chief Justice, 
 died, and Associate Justice Peter H. Burnett was ap- 
 pointed to fill the vacancy. This left the balance of 
 Judge Burnett's term of service to be filled, and I was 
 urged by the Governor of the State to accept his 
 appointment to it, as it was for less than three months, 
 and immediately preceded my own term. At first I 
 refused, as I desired to revisit the East ; but being 
 assured by the judges that taking the place need not 
 prevent my intended visit, I accepted the appointment, 
 and on the 13th of October, 1857, took my seat on the 
 bench. 
 
 Majority over Bennett 36,272 
 
 Majority over Ralston 36,148 
 
 Majority over both 17,204
 
 KEMOVAL FROM MAE YSVILLE. LIFE ON THE 
 SUPREME BENCH. END OF JUDGE TURNER. 
 
 THE day following my acceptance of the Governor's 
 appointment to the Supreme Court of the State, I re- 
 turned to Marysville to close my business before taking 
 up my residence in Sacramento, where the court held 
 its sessions. I had gone to Sacramento to argue some 
 cases before the court when the appointment was ten- 
 dered to me ; and, of course, did not expect to remain 
 there very long. In a few days I arranged my affairs 
 at Marysville and then removed permanently to Sacra- 
 mento. I left Marysville with many regrets. I had 
 seen it 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 a depot of merchan- 
 dise for the country lying north and east of it ; and its 
 streets presented a scene of bustle and activity. Trains 
 of wagons and animals were constantly leaving it with 
 goods for the mines. Its merchants were generally 
 prosperous ; some of them were wealthy. Its bankers 
 were men of credit throughout fehe State. Steamers
 
 123 
 
 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 de- 
 nominations were erected and filled with worshippers. 
 Institutions of benevolence were founded and sup- 
 ported. A provident city government and a vigorous 
 police preserved order and peace. Gambling was sup- 
 pressed or carried on only in secret. A theatre was 
 built and sustained. A lecture-room was opened and 
 was always crowded when the topics presented were of 
 public interest. Substantial stores of brick were put 
 up in the business part of the city ; and convenient 
 frame dwellings were constructed for residences in the 
 outskirts, surrounded with plats filled with trees and 
 flowers. On all sides were seen evidences of an indus- 
 trious, prosperous, moral, and happy people, possessing 
 and enjoying the comforts, pleasures, and luxuries of 
 life. And they were as generous as they were pros- 
 perous. Their hearts and their purses were open to 
 all calls of charity. No one suffering appealed to them 
 in vain. No one in need was turned away from their 
 doors without having his necessities relieved. It is 
 many years since I was there, but I have never forgot- 
 ten and I shall never forget the noble and generous 
 people that I found there in all the walks of life. 
 
 The Supreme Court of the State then consisted of
 
 124 
 
 three members, the senior in commission being the Chief 
 Justice. David S. Terry was the Chief Justice and 
 Peter H. Burnett was the Associate Justice. Both of 
 these gentlemen have had a conspicuous career in Cal- 
 ifornia, and of both I have many interesting anecdotes 
 which would well illustrate their characters and which 
 at some future day I may put upon paper. They were 
 both men of vigorous minds, of generous natures and 
 of positive wills ; but in all other respects they differed 
 as widely as it was possible for two extremes. Mr. 
 Terry had the virtues and prejudices of men of the ex- 
 treme South in those days. His contact and larger ex- 
 perience since with men of the North have no doubt 
 modified many of those prejudices, and his own good 
 sense must have led him to alter some of his previous 
 judgments. Probably his greatest regret is his duel 
 with Mr. Broderick, as such encounters, when they ter- 
 minate fatally to one of the parties, never fail to bring 
 life-long bitterness to the survivor. A wiser mode of 
 settling difficulties between gentlemen has since been 
 adopted in the State ; but those who have not lived in 
 a community where the duel is practiced cannot well 
 appreciate the force of the public sentiment which at 
 one time existed, compelling a resort to it when char- 
 acter was assailed. 
 
 Mr. Burnett was one of the early settlers in Oregon, 
 and had held positions of honor and trust there before
 
 125 
 
 settling in California. He came here soon after the dis- 
 covery of gold, took an interest in public affairs, and 
 was elected the first Governor of the State, when the 
 constitution was adopted. 
 
 Judge Terry resigned his office in September, 1859, 
 when he determined to send a challenge to Mr. Brod- 
 erick, and I succeeded him as Chief Justice ; and W. 
 W. Cope, of Amador, was elected to fill the vacant place 
 on the bench. I was absent from the State at the time, 
 or I should have exerted all the power I possessed by 
 virtue of my office to put a stop to the duel. I would 
 have held both of the combatants to keep the peace 
 under bonds of so large an amount as to have made 
 them hesitate about taking further steps ; and in the 
 meantime I should have set all my energies to work, 
 and called others to my aid, to bring about a reconcili- 
 ation. I believe I should have adjusted the difficulty. 
 
 Mr. Cope, who filled the vacant place on the bench, 
 possessed a superior mind and a genial nature. He 
 made an excellent Judge. He studiously examined 
 every case and carefully prepared his opinions. He 
 remained on the bench until January, 1864, when the 
 new constitutional amendments, reorganizing the court, 
 went into effect. He is now in practice in San Fran- 
 cisco, and has a large clientage. 
 
 Judge Burnett continued in office until the election 
 of his successor in the fall of 1858. His successor was
 
 126 
 
 Joseph G. Baldwin, a lawyer of distinction and a gen- 
 tleman of literary reputation. He was the author of 
 " The Flush Times of Alabama and Mississippi," and 
 of " Party Leaders." The first is a work full of humor 
 and a great favorite in the section of the country whose 
 " times " it portrays with such spirit and glee as to ex- 
 cite roars of laughter in the reader. The latter is a 
 thoughtful history of the character and influence upon 
 the country of Jefferson, Hamilton, Jackson, Clay, and 
 Randolph. His portraitures present these men in the 
 fullness and freshness of living beings, whom we see 
 and hear, and whose power we feel. 
 
 My friendship for Mr. Baldwin commenced long be- 
 fore he came to the bench, and it afterwards warmed 
 into the attachment of a brother. He had a great and 
 generous heart ; there was no virtue of humanity of 
 which he did not possess a goodly portion. He was 
 always brimful of humor, throwing off his jokes, which 
 sparkled without burning, like the flashes of a rocket. 
 There was no sting in his wit. You felt as full of 
 merriment at one of his witticisms, made at your ex- 
 pense, as when it was played upon another. Yet he 
 was a profound lawyer, and some of his opinions are 
 models of style and reasoning. He remained on the 
 bench until January, 1862, when he was succeeded by 
 Edward Norton, of San Francisco. This gentleman 
 was the exemplar of a judge of a subordinate court.
 
 127 
 
 He was learned, patient, industrious, and conscientious ; 
 but he was not adapted for an appellate tribunal. He 
 had no confidence in his own unaided judgment. He 
 wanted some one upon whom to lean. Oftentimes he 
 would show me the decision of a tribunal of no repu- 
 tation with apparent delight, if it corresponded with 
 his own views, or with a shrug of painful doubt, if it 
 conflicted with them. He would look at me in amaze- 
 ment if I told him that the decision was not worth a 
 fig ; and would appear utterly bewildered at my way- 
 wardness when, as was sometimes the case, I refused 
 to look at it after hearing by what court it was pro- 
 nounced. 
 
 It is not my purpose to speak of my own career on 
 the Bench of the Supreme Court of California. It is 
 only for reminiscences of my previous life that you, 
 Mr. Hittell, have asked.* I am tempted, however, to 
 hand to you a letter of Judge Baldwin, my associate 
 for over three years, in which he presents, in terms 
 exaggerated by his friendship, the result of my labors 
 there.t 
 
 There is only one scene to which I wish to refer. 
 
 About a year and a half after I went upon the bench, 
 a contested election case came up from Trinity County. 
 It appeared that Judge Turner, who had been sent to 
 
 * These sketches were in the main dictated to a short-hand writer 
 at the request of Mr. Theodore H. Hittell, of San Francisco. 
 fThe letter is printed at the end of this narrative at page 135.
 
 128 
 
 the district composed of the counties of Trinity and 
 Klamath, by the act concerning the courts and judicial 
 officers of the State, at the end of his term offered 
 himself for re-election as Judge of that district. When 
 the vote was counted there appeared to be a majority 
 of one against him, and his opponent was declared 
 elected. He instituted a contest for the office, and, 
 being defeated in the court below, appealed to the 
 Supreme Court. He then became very much exercised 
 over his appeal, because I was one of the Justices.. 
 There were not wanting persons who, out of sheer 
 malice, or not comprehending any higher motives of 
 conduct than such as governed themselves, represented 
 that I would improve the opportunity to strike him a 
 blow. 
 
 When his case came on for hearing. I left the bench 
 to my associates, Judges Terry and Baldwin, and they 
 decided in his favor. At this action of mine Turner 
 was amazed. It was something wholly unexpected and 
 surprising to him. Soon after the decision he sent 
 one of his friends, named Snowden, to know if I would 
 speak to him if he should make the first advance. I 
 answered that under no circumstances would I ever 
 consent to speak to him ; that he had done me injuries 
 which rendered any intercourse with him impossible ; 
 that the world was wide enough for us both, and he 
 must go his own way. This answer Snowden com-
 
 129 
 
 municated to him. The next morning he stationed 
 himself at the foot of the stairway leading up to the 
 Supreme Court rooms, which was on the outside of the 
 building, and, as I passed up, he cried out ; " I am now 
 at peace with all the world ; if there is any man who 
 feels that I have done him an injury, I am ready to 
 make him amends." I turned and looked at him for a 
 moment, and then passed on without saying a word. 
 On the following morning he took the same position 
 and repeated substantially the same language. I 
 stopped and gazed at him for a moment, and then 
 passed on in silence. This was the last time I saw him. 
 He returned to Trinity, and held his office for the 
 balance of his term, six years, under the decision of 
 the Supreme Court, and was re-elected in 1863. But 
 his character and habits unfitted him for a judicial 
 position. He was addicted to gambling and drinking, 
 and he consorted with the lowest characters ; and the 
 same tyrannical temper and conduct which he had 
 exhibited towards me in Marysville, were displayed in 
 his new district. Accordingly measures were taken by 
 citizens of Trinity to secure his impeachment by the 
 Legislature. Mr. Westmoreland, a member of the 
 Assembly from that county in 1867 offered a resolution 
 for the appointment of a committee to inquire whether 
 articles of impeachment should be presented against 
 him for high crimes and misdemeanors, with power to
 
 130 
 
 send for persons and papers and report articles if 
 warranted by the evidence. In offering the resolution 
 Mr. Westmoreland charged, that during the time Turner 
 had held the office of District Judge he had been 
 grossly tyrannical ; that he had imprisoned citizens, 
 depriving them of their liberty without process of law ; 
 that he had neglected and refused to perform the duties 
 incumbent upon him by statute; that by a standing 
 rule he allowed no witness to be called in a case unless 
 he was subpoenaed and in attendance on the first day 
 of the term ; that he had used the power of his posi- 
 tion for the furtherance of his own ends of private 
 hate ; that he was an habitual drunkard, with rare in- 
 tervals of sobriety, and had upon occasions come into 
 the court-room to sit upon the trial of causes so intoxi- 
 cated as to be unable to stand, and had fallen helplessly 
 upon the floor, whence he had been removed by officers 
 of the court ; that upon one occasion, when engaged 
 in a trial, he had in the presence of jurors, witnesses, 
 and other persons attending the court, deliberately gone 
 out of the court-room and openly entered a house of 
 ill-fame near by ; and that by his disgraceful conduct 
 he had become a burden upon the people of that dis- 
 trict too grievous to be borne. These things Mr. West- 
 moreland stated he stood prepared to prove, and he 
 invoked the interposition of the Legislature to protect 
 the people of the Eighth Judicial District who were
 
 131 
 
 suffering from the deportment and conduct of this 
 officer. The resolution was passed. Finding that 
 articles of impeachment would be presented against 
 him, Turner resigned his office. After this his habits 
 of drinking became worse, and he was sent to the 
 Asylum for Inebriates, where he died. 
 
 In thinking over my difficulties with Turner at this 
 distant day, there is nothing in .my conduct which I in 
 the least regret. Had I acted differently ; had I yielded 
 one inch, I should have lost my self-respect and been 
 for life an abject slave. There was undoubtedly an 
 unnecessary severity of language in two or three pas- 
 sages of my answers to his attacks ; and some portion 
 of my answer in court to his order to show cause why 
 I should not be re-expelled from the bar might better 
 have been omitted. I have since learned that one is 
 never so strong as when he is calm, and never writes 
 so forcibly as when he uses the simplest language. 
 My justification in these particulars, if they require any, 
 must be found in the savage ferocity with which I was 
 assailed, the brutal language applied to my character 
 and conduct, and the constant threats made of personal 
 violence. Malignity and hate, with threats of assassi- 
 nation, followed me like a shadow for months. I went 
 always armed for protection against assault. I should 
 have been less or more than man had I preserved at all 
 times perfect calmness either in my language or con- 
 duct.
 
 132 
 
 In the contest with this man I was cheered by the 
 support of the best men of the State. But of all of 
 them no one aided me so much, and so freely, as the 
 editor of the Marysville Herald, Mr. Robert H. Taylor, 
 a gentleman still living, in the full strength of his in- 
 tellect, and honored and trusted as a learned member 
 of the legal profession in Nevada. May length of 
 years and blessings without number attend him. 
 
 Here my narrative of " Personal Experiences " must 
 for the present end. I could have given you, Mr. 
 Hittell, more interesting matter. I could have given 
 you sketches of Fremont, Halleck, Gwin, Broderick, 
 Weller, Geary, Sherman, Bigler, McDougal, Bennett, 
 Heydenfeldt, Murray, and others, with many striking 
 anecdotes illustrative of their characters. They were 
 all remarkable men, and the history of their lives would 
 be full of interest and instruction. I could have re- 
 lated the story of the Vigilance Committees of 1851 
 and 1856, and shown how the men of order and virtue 
 acquired and maintained ascendency over the irregular 
 and disorderly elements of society. I could have told 
 you of the gradual development of the industries of 
 the State until her yearly products have become one of 
 the marvels of the world. I could have described the 
 wild excitement produced by the supposed discoveries
 
 of gold in boundless quantities on Fraser River ; and 
 the later but more substantial movement upon the de- 
 velopment of the silver mines of Nevada. I could 
 have recounted the efforts made in 1860 and 1861 to 
 keep the State in the Union against the movements of 
 the Secessionists, and the communications had with 
 President Lincoln by relays of riders over the Plains. 
 I could have described the commencement, progress, 
 and completion of the Pacific railroad, and the wonder- 
 ful energy and unfailing resolution of its constructors. 
 I could have told you stories without number, full of 
 interest, of the Judges of California, State and Fed- 
 eral, who preceded me on the bench, and of members 
 of the profession ; of Hastings, Bennett, Lyons, Wells, 
 Anderson, Heydenfeldt, and Murray, of the State Su- 
 preme Court ; of Hoffman and McAllister of the 
 Federal bench ; of Robinson, Crittenden, Randolph, 
 Williams, Yale, McConnell, Felton, and others of the 
 Bar, now dead, and of some who are at its head, now 
 living ; composing as a whole a bar not exceeded in 
 ability, learning, eloquence, and literary culture by that 
 of any other State of the Union. But you asked me 
 merely for personal reminiscences of occurrences at 
 Marysville and during the days preceding my going 
 there. I will, therefore, postpone until another occa- 
 sion a narrative which I think will be more interesting 
 than anything I have here related.
 
 THE CAEEEE OF JUDGE FIELD ON THE SUPREME BENCH 
 OF CALIFORNIA, BY JUDGE JOSEPH G. BALDWIN, HIS 
 
 ASSOCIATE FOR THREE YEARS. 
 
 {From, the Sacramento Union, of May 6, 1863.] 
 
 " THE resignation by Judge Field of the office of 
 Chief Justice of the Supreme Court of California, to 
 take effect on the 20th instant, has been announced. 
 By this event the State has been deprived of the ablest 
 jurist who ever presided over her courts. Judge Field 
 came to California from New York in 1849, and settled 
 in Marysville. He immediately commenced the prac- 
 tice of law and rose at once to a high position at the 
 local bar, and upon the organization of the Supreme 
 Court soon commanded a place in the first class of the 
 counsel practicing in that forum. For many years, 
 and until his promotion to the bench, his practice was 
 as extensive, and probably as remunerative, as that of 
 any lawyer in the State. He served one or two sessions 
 in the Legislature, and the State is indebted to him for 
 very many of the laws which constitute the body of 
 her legislation.* In 1857 he was nominated for Judge 
 of the Supreme Court for a full term, and in October 
 
 * He was in the Legislature only one session.
 
 136 
 
 of the same year was appointed by Governor Johnson 
 to fill the unexpired term of Justice Heydenfeldt, re- 
 signed. He immediately entered upon the office, and 
 has continued ever since to discharge its duties. 
 Kecently, as the reader knows, he was appointed, by 
 the unanimous request of our delegation in Congress, 
 to a seat upon the Bench of the Supreme Court of the 
 United States, and was confirmed, without opposition, 
 by the Senate. 
 
 " Like most men who have risen to distinction in 
 the United States, Judge Field commenced his career 
 without the advantages of wealth, and he prosecuted 
 it without the factitious aids of family influence or 
 patronage. He had the advantage, however which 
 served him better than wealth or family influence of 
 an accomplished education, and careful study and 
 mental discipline. He brought to the practice of his 
 profession a mind stored with professional learning, 
 and embellished with rare scholarly attainments. 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 acu- 
 men, 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 cer- 
 tainty could be attained, and felt his way cautiously to 
 his conclusions, which, once reached, rested upon sure
 
 137 
 
 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. 
 
 " When he came to the bench, from various una- 
 voidable causes the calendar was crowded with cases 
 involving immense interests, the most important ques- 
 tions, and various and peculiar litigation. California 
 was then, as now, in the development of her multiform 
 physical resources. The judges were as much pioneers 
 of law as the people of settlement. To be sure some- 
 thing had been done, but much had yet to be accom- 
 plished ; 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 difficulties was 
 ever before presented as has been illustrated in the 
 history of California. There was no general or com- 
 mon source of jurisprudence. Law was to be admin- 
 istered almost without a standard. There was the 
 civil law, as adulterated or modified by Mexican pro- 
 vincialism, usages, and habitudes, for a great part of 
 the litigation ; and there was the common law for an- 
 other part, but what that was was to be decided from 
 the conflicting decisions of any number of courts in
 
 138 
 
 America and England, and the various 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 inter- 
 preted^here. Besides all which may be added that 
 large and important interests peculiar to the State 
 existed mines, ditches, etc. for 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 un- 
 precedented number of contracts, and an amount of 
 business without parallel, had been made and done in 
 hot haste, with the utmost carelessness ; that legisla- 
 tion was accomplished in the same way, and presented 
 the crudest and most incongruous materials for con- 
 struction ; that the whole scheme and organization of 
 the government, and the relation of the departments to 
 each other, had to be adjusted 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
 
 139 
 
 broad and deep the foundation of our civil and crimi- 
 nal law. The land titles of the State the most im- 
 portant 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. 
 
 " His opinions, whether for their learning, logic, or 
 diction, will compare favorably, in the judgment of 
 some of our best lawyers, with those of any judge 
 upon the Supreme Bench of the Union. It is true 
 what he has accomplished has been done with labor; 
 but this is so much more to his praise, for such work 
 was not to be hastily done, and it was proper that the 
 time spent in perfecting the work should bear some 
 little proportion to the time it should last. We know 
 it has been said of Judge Field that he is too much of 
 a ' case lawyer,' and not sufficiently broad and com- 
 prehensive in his views. This criticism is not just. 
 It is true he is reverent of authority, and likes to be 
 sustained by precedent; but an examination of his 
 opinions will show that, so far from being a timid 
 copyist, or the passive slave of authority, his rulings 
 rest upon clearly denned principles and strong common 
 sense. 
 
 " He retires from office without a stain upon his 
 ermine. Millions might have been amassed by venality. 
 He retires as poor as when he entered, owing nothing
 
 140 
 
 and owning little, except the title to the respect of 
 good men, which malignant mendacity cannot wrest 
 from a public officer who has deserved, by a long and 
 useful career, the grateful appreciation of his fellow- 
 citizens. We think that we may safely predict that, in 
 his new place, Justice Field will fulfill the sanguine ex- 
 pectations of his friends." 
 
 J. G. B. 
 SAN FRANCISCO, May 1, 1863. 
 
 In 1855 a circuit court for California was created by 
 Congress, and clothed with the ordinary jurisdiction of 
 the several circuit courts of the United States. Hon. 
 M. Hall McAllister was appointed its judge. In 
 January, 1863, he resigned and my appointment as his 
 successor was recommended by our Senators. They 
 telegraphed me what they had done, and I replied that 
 I could not accept the place, that I preferred to remain 
 Chief Justice of the Supreme Court of the State than 
 to be a judge of an inferior federal court, but that if a 
 new justice were added to the Supreme Court of the 
 United States, I would accept the office if tendered to 
 me. Notwithstanding this reply my appointment was 
 urged, and I was nominated by the President. The 
 Senators have since told me that they pressed my 
 nomination from a belief that another justice would
 
 141 
 
 soon be added to the Supreme Court, and that the ap- 
 pointment would be made from the Pacific States, and 
 that if I were circuit judge it would more likely be 
 tendered to me than to any one else. The interests of 
 those States were so great, and from the character of 
 their land titles, and their mines of gold and silver, 
 were in some respects so different from those of the 
 Eastern States, that it was deemed important to have 
 some one familiar with them on the Supreme Bench of 
 the United States. Accordingly, while my nomination 
 for circuit judge was pending before the Senate, a bill 
 providing for an additional justice of the Supreme 
 Court, and making the Pacific States a new circuit, was 
 introduced into both Houses of Congress, and on the 
 last day of the session, March 3d, 1863, it became a 
 law. Soon after the adjournment of Congress, the 
 entire delegation from the Pacific States united in rec- 
 ommending my appointment to the new office. The 
 delegation then consisted of four Senators and four 
 Members of the House, of whom five were Democrats 
 and three Republicans ; all of them were Union men. 
 I was accordingly nominated by the President, and the 
 nomination was unanimously confirmed by the Senate. 
 My commission was signed on the 10th of March, 
 1863, and forwarded to me. I did not, however, take 
 the oath of office and enter upon its duties until the 
 20th of May following. At the time I received the
 
 142 
 
 commission there were many important cases pending 
 in the Supreme Court of California, which had been 
 argued when only myself and one of the associate 
 justices were present. I thought that these cases should 
 be disposed of before I resigned, as otherwise a re- 
 argument of them would be required, imposing in- 
 creased expense and delay upon the parties. I 
 therefore sent my resignation as Chief Justice to the 
 Governor, to take effect on the 20th of May. I selected 
 that day, as I believed the cases argued could be de- 
 cided by that time, and because it was the birthday of 
 my father. I thought it would be gratifying to him 
 to know that on the eighty-second anniversary of his 
 birth his son had become a Justice of the Supreme 
 Court of the United States. Accordingly on that day 
 I took the oath of office.* 
 
 * Although I had informed the Attorney-General of my action and 
 delay in taking the oath of office, the salary of the office was sent to 
 me from the date of my commission, March 10th, 1863. I immediately 
 deposited with the sub-treasurer at San Francisco, to the credit of 
 the United States, the proportion for the time between that date and 
 the 20th of May, and informed the Secretary of the Treasury of the 
 deposit, enclosing to him the sub-treasurer's receipt.
 
 THE 
 
 ANNOYANCES OF MY JUDICIAL LIFE. 
 
 AFTER the narrative of my Personal Reminiscences 
 was completed, I concluded to dictate an account of 
 some strange annoyances to which I had been sub- 
 jected in the course of my judicial life. The account 
 will have an interest to those of my friends for whom 
 the Reminiscences were printed, and it is intended for 
 their perusal alone.
 
 ROSY VIEWS OF JUDICIAL LIFE GRADUALLY 
 VANISHING. UNSETTLED LAND TITLES OF 
 THE STATE. ASSERTED OWNERSHIP BY 
 THE STATE OF GOLD AND SILVER FOUND IN 
 THE SOIL. PRESENT OF A TORPEDO. 
 
 WHEN I went on the bench, I not only entertained 
 elevated notions of the dignity and importance of the 
 judicial office, but looked forward confidently to the 
 respect and honor of the community from a faithful 
 discharge of its duties. I soon discovered, however, 
 that there would be but little appreciation for conscien- 
 tious labor on the bench, except from a small number 
 of the legal profession, until after the lapse of years. 
 For the heavy hours of toil which the judges endured, 
 for the long examination which they gave to voluminous 
 records, for their nights of sleeplessness passed in anx- 
 ious thought to ascertain what was true and right 
 amidst a mass of conflicting evidence and doubtful 
 principles, the public at large appeared to have little 
 thought and less consideration. The cry of disappoint- 
 ment over frustrated schemes of cupidity and fraud was 
 sufficient for the time to drown all other expressions of 
 judgment upon the action of the court. 
 
 The unsettled condition of the land titles of the State
 
 148 
 
 gave occasion to a great deal of litigation and was for 
 a long time the cause of much bad feeling towards the 
 judges who essayed to administer impartial justice. 
 When California was acquired, the population was 
 small and widely scattered. To encourage coloniza- 
 tion, grants of land in large quantities, varying from 
 one to eleven leagues, had been made to settlers by the 
 Mexican government. Only small tracts were subjected 
 to cultivation. The greater part of the land was used 
 for grazing cattle, which were kept in immense herds. 
 The grants were sometimes of tracts with defined boun- 
 daries, and sometimes of places by name, but more fre- 
 quently of specified quantities within boundaries em- 
 bracing a greater amount. By the Mexican law, it was 
 incumbent upon the magistrates of the vicinage to put 
 the grantees in possession of the land granted to them ; 
 and for that purpose to measure off and segregate the 
 quantity designated. Owing to the sparseness of the 
 population there was little danger of dispute as to 
 boundaries, and this segregation in the majority of 
 cases had been neglected before our acquisition of the 
 country. From the size of the grants and the want of 
 definite boundaries, arose nearly all the difficulties and 
 complaints of the early settlers. Upon the discovery 
 of gold, immigrants from all parts of the world rushed 
 into the country, increasing the population in one or 
 two years from a few thousand to several hundred thou-
 
 149 
 
 sand. A large number crossed the plains from the 
 Western States, and many of them sought for farming 
 lands upon which to settle. To them a grant of land, 
 leagues in extent, seemed a monstrous wrong to which 
 they could not be reconciled. The vagueaess, also, in 
 manty instances, of the boundaries of the land claimed 
 gave force and apparent reason to their objections. 
 They accordingly settled upon what they found unen- 
 closed or uncultivated, without much regard to the 
 claims of the Mexican grantees. If the land upon 
 which they thus settled was within the tracts formerly 
 occupied by the grantees with their herds, they denied 
 the validity of grants so large in extent. If the boun- 
 daries designated enclosed a greater amount than that 
 specified in the grants, they undertook to locate the 
 supposed surplus. Thus, if a grant were of three 
 leagues within boundaries embracing four, the immi- 
 grant would undertake to appropriate to himself a por- 
 tion of what he d*eemed the surplus ; forgetting that 
 other immigrants might do the same thing, each claim- 
 ing that what he had taken was a portion of such sur- 
 plus, until the grantee was deprived of his entire prop- 
 erty. 
 
 When I was brought to consider the questions to 
 which this condition of things gave rise, I assumed, at 
 the outset that the obligations of the treaty with Mex- 
 ico were to be respected and enforced. This treaty
 
 150 
 
 had stipulated for the protection of all rights of prop- 
 erty of the citizens of the ceded country ; and that 
 stipulation embraced inchoate and equitable rights, as 
 well as those which were perfect. It was not for the 
 Supreme Court of California to question the wisdom or 
 policy of Mexico in making grants of such large por- 
 tions of her domain, or of the United States in stipulat- 
 ing for their protection. I felt the force of what Judge 
 Grier had expressed in his opinion in the case of The 
 United States vs. Sutherland, in the 19th of Howard, 
 that the rhetoric which denounced the grants as enor- 
 mous monopolies and princedoms might have a just 
 influence when urged to those who had a right to give 
 or refuse ; but as the United States had bound them- 
 selves by a treaty to acknowledge and protect all bona- 
 fide titles granted by the previous government, the 
 court had no discretion to enlarge or contract such 
 grants to suit its own sense of propriety or to defeat 
 just claims, however extensive, by stringent technical 
 rules of construction to which they were not originally 
 subjected. Since then, while sitting on the Bench of 
 the Supreme Court of the United States, I have heard 
 this obligation of our government to protect the rights 
 of Mexican grantees stated in the brilliant and power- 
 ful language of Judge Black. In the Fossat case, re- 
 ferring to the land claimed by one Justo Larios, a 
 Mexican grantee, he said : " The land we are claiming
 
 51 
 
 never belonged to this government. It was private 
 property under a grant made long before our war with 
 Mexico. When the treaty of Guadalupe Hidalgo 
 came to be ratified at the very moment when Mexico 
 was feeling the sorest pressure that could be applied 
 to her by the force of our armies, and the diplomacy 
 of our statesmen she utterly refused to cede her pub- 
 lic property in California unless upon the express 
 condition that all private titles should be faithfully 
 protected. We made the promise. The gentleman 
 sits on this bench who was then our Minister there.* 
 With his own right hand he pledged the sacred honor 
 of this nation that the United States would stand over 
 the grantees of Mexico and keep them safe in the en- 
 joyment of their property. The pledge was not only 
 that the government itself would abstain from all dis- 
 turbance of them, but that every blow aimed at their 
 rights, come from what quarter it might, should be 
 caught upon the broad shield of our blessed Constitu- 
 tion and our equal laws." 
 
 " It was by this assurance thus solemnly given that 
 we won the reluctant consent of Mexico to part with 
 California. It gave us a domain of more than imperial 
 grandeur. Besides the vast extent of that country, it 
 has natural advantages such as no other can boast. 
 Its valleys teem with unbounded fertility, and its 
 
 * Mr. Justice Clifford.
 
 152 
 
 mountains are filled with inexhaustible treasures of 
 mineral wealth. The navigable rivers run hundreds of 
 miles into the interior, and the coast is indented with 
 the most capacious harbors in the world. The climate 
 is more healthful than any other on the globe : men 
 can labor longer with less fatigue. The vegetation is 
 more vigorous and the products more abundant ; the 
 face of the earth is more varied, and the sky bends 
 
 over it with a lovelier blue. That was what we 
 
 gained by the promise to protect men in the situation 
 of Justo Larios, their children, their alienees, and 
 others claiming through them. It is impossible that 
 in this nation they will ever be plundered in the face 
 of such a pledge." (2 Wallace, 703.) 
 
 Actuated by this principle that fidelity to a nation's 
 pledge is a sacred duty, and that justice is the highest 
 interest of the country, I endeavored, whenever the 
 occasion presented itself, and my associates heartily 
 co-operated with me, to protect the Mexican grantees. 
 Their grants contained a stipulation for the possession 
 of the lands granted, inasmuch as they were subject to 
 the conditions of cultivation and occupancy, and a 
 failure to comply with the conditions was considered 
 by the tribunals of the United States as a most ma- 
 terial circumstance in the determination of the right of 
 the grantees to a confirmation of their claims. I held, 
 therefore, with the concurrence of my associates, that
 
 153 
 
 the grantees, whether they were to be considered as 
 having a legal or an equitable right to the lands, were 
 entitled to their possession until the action of the gov- 
 ernment upon their claims, and, therefore, that they 
 could recover in ejectment. And when the grant was 
 not a mere float, but was of land within defined boun 
 daries, which embraced a greater quantity than that 
 specified in it, with a provision that the surplus should 
 be measured off by the government, I held that until 
 such measurement the grantee could hold the whole as 
 against intruders, and until then he was a tenant in 
 common with the government. As I said in one of my 
 opinions, speaking for the court, until such measure- 
 ment no individual could complain, much less could he 
 be permitted to determine in advance, that any partic- 
 ular locality .would fall within the supposed surplus, 
 and thereby justify its forcible seizure and detention 
 by himself. " If one person could in this way appro- 
 priate a particular parcel to himself, all persons could 
 do so ; and thus the grantee, who is the donee of the 
 government, would be stripped of its bounty for the 
 benefit of those who were not in its contemplation and 
 were never intended to be the recipients of its favors."* 
 These views have since met with general assent in 
 California and have been approved by the Supreme 
 Court of the United States.! But at that time they 
 
 * Cornwall vs. Culver, 16 Gal., 429. 
 
 t Van Reynegan vs. Bolton, 95 U. S., 33.
 
 154 
 
 gave great ofi'ence to a large class, and the judges were 
 denounced in unmeasured terms as acting in the inter- 
 ests of monopolists and land-grabbers. Even now, 
 when the wisdom and justice of 'their action are seen 
 and generally recognized, words of censure for it are 
 occasionally whispered through the Press. Persons 
 sometimes seem to forget that to keep the plighted 
 faith of the nation, t^> preserve from reproach its fair 
 fame, where its honor is engaged, is one of the highest 
 duties of all men in public life. 
 
 The action of the court as to the possession of the 
 public lands of the United States met with more favor. 
 The position of the people of California with respect 
 to the public lands was unprecedented. The discovery 
 of gold brought, as already stated, an immense immi- 
 gration to the country. The slopes oj the Sierra 
 Nevada were traversed by many of the immigrants in 
 search of the precious metals, and by others the 
 tillable land was occupied for agricultural purposes. 
 The title was in the United States, and there had been 
 no legislation by which it could be acquired. Conflict- 
 ing possessory claims naturally arose, and the question 
 was presented as to the law applicable to them. As I 
 have mentioned in my Narrative of Reminiscences, the 
 Legislature in 1851 had provided that in suits before 
 magistrates for mining claims, evidence of the customs, 
 usages, and regulations of miners in their vicinage
 
 155 
 
 should be admissible, and, when not in conflict with 
 the Constitution and laws of the United States, should 
 govern their decision, and that the principle thus 
 approved was soon applied in actions for mining 
 claims in all courts. In those cases it was considered 
 that the first possessor or appropriator of the claim 
 had the better right as against all parties except the 
 government, and that he, and persons claiming under 
 him, were entitled to protection. This principle re- 
 ceived the entire concurrence of my associates, and 
 was applied by us, in its fullest extent, for the protec- 
 tion of all possessory rights on the public lands. 
 Thus, in Coryell vs. Cain, I said, speaking for the 
 court: "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 adversary'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 anom- 
 alous condition of things arising from the peculiar 
 character of the mining and landed interests of the 
 country, been, to a certain extent, qualified and lim- 
 ited. 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
 
 156 
 
 claims, water privileges, and the like, situated upon 
 the public lands, are matters of daily occurrence, and 
 if the proof of the paramount title of the government 
 would operate to defeat them, confusion and ruin 
 would be the result. In determining controversies be- 
 tween 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 govern- 
 ment, is considered as vested in the first possessor, and 
 to proceed from him." (16 Cal., p. 572.) 
 
 The difficulties attendant upon any attempt to give 
 security to landed possessions in the State, arising from 
 the circumstances I have narrated, were increased by 
 an opinion, which for some time prevailed, that the 
 precious metals, gold and silver, found in various parts 
 of the country, whether in public or private lands, be- 
 longed to the State by virtue of her sovereignty. To 
 this opinion a decision of the Supreme Court of the 
 State, made in 1853, gave great potency. In Hicks 
 vs. Bell, decided that year, the court came to that 
 conclusion, relying upon certain decisions of the courts
 
 157 
 
 of England recognizing the right of the Crown to those 
 metals. The principal case on the subject was that of 
 The Queen vs. The Earl of Northumberland, reported 
 in Plowden. The counsel of the Queen in that case 
 gave, according to our present notions, some very 
 fanciful reasons for the conclusion reached, though 
 none were stated in the judgment of the court. There 
 were three reasons, said the counsel, why the King 
 should have the mines and ores of gold and silver 
 within the realm, in whatsoever land they were found : 
 " The first was, in respect to the excellency of the 
 thing, for of all things which the soil within this realm 
 p'roduces or yields, gold and silver are the most ex- 
 cellent, and of all persons in the realm, the King is, 
 in the eye of the law, most excellent. And the com- 
 mon law, which is founded upon reason, appropriates 
 everything to the person whom it best suits, as common 
 and trivial things to the common people, things of 
 more worth to persons in a higher and superior class, 
 and things most excellent to those persons who excel 
 all others ; and because gold and silver are the most 
 excellent things which the soil contains, the law has 
 appointed them (as in reason it ought) to the person 
 
 who is most excellent, and that is the King. The 
 
 second reason was, in respect of the necessity of the 
 thing. For the King is the head of the Weal-public 
 and the subjects are his members; and the office of
 
 158 
 
 the King, to which the law has appointed him, is to 
 preserve his subjects; and their preservation consisted 
 in two things, viz., in an army to defend them against 
 hostilities, and in good laws. And an army cannot be 
 had and maintained without treasure, for which reason 
 some authors, in their books, call treasure the sinews 
 of war ; and, therefore, inasmuch as God has created 
 mines within this realm, as a natural provision of 
 treasure for the defence of the realm, it is reasonable 
 that he who has the government and care of the people, 
 whom he cannot defend without treasure, should have 
 
 the treasure wherewith to defend them. The, 
 
 third reason was, in respect of its convenience to the 
 subjects in the way of mutual commerce and traffic. 
 For the subjects of the realm must, of necessity, have 
 intercourse or dealing with one another, for no in- 
 dividual is furnished with all necessary commodities, 
 but one has need of tire things which another has, and 
 
 they cannot sell or buy together without coin. 
 
 And if the subject should have it (the ore of gold or 
 silver) the law would not permit him to coin it, nor 
 put a print or value upon it, for it belongs to the King 
 only to fix the value of coin, and to ascertain the price 
 of the quantity, and to put the print upon it, which 
 being done, the coin becomes current for so much as 
 
 the King has limited. So that the body of the 
 
 realm would receive no benefit or advantage if the
 
 159 
 
 subject should have the gold and silver found in mines 
 in his land ; but on the other hand, by appropriating 
 it to the King, it tends to the universal benefit of all 
 the subjects in making their King able to defend them 
 with an army against all hostilities, and when he has 
 put the print and value upon it, and has dispersed it 
 among his subjects, they are thereby enabled to carry 
 on mutual commerce with one another, and to buy and 
 sell as they have occasion, and to traffic at their pleas- 
 ure. Therefore, for these reasons, viz., for the ex- 
 cellency of the thing, and for the necessity of it, and 
 the convenience that will accrue to the subjects, the 
 common law, which is no other than pure and 
 tried reason, has appropriated the ore of gold and 
 silver to the King, in whatever land it be found." 
 
 The Supreme Court of the State, without consider- 
 ing the reasons thus assigned in the case in Plowden, 
 adopted its conclusion ; and as the gold and silver in 
 the British realm are there held to belong to the Crown, 
 it was concluded, on the hypothesis that the United 
 States have no municipal sovereignty within the limits 
 of the State, that they 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 regu- 
 lation ; to license miners ; and to affix such terms and 
 conditions as she may deem proper to the freedom of
 
 160 
 
 their use. In the legislation upon this subject she has 
 established the policy of permitting all who desire it 
 to work her mines of gold and silver, with or without 
 conditions, and she has wisely provided that their con- 
 flicting claims shall be adjudicated by the rules and 
 customs which may be established by bodies of them 
 working in the same vicinity." (3 Cal., 220.) 
 
 The miners soon grasped the full scope of this decis- 
 ion, and the lands of private proprietors were accord- 
 ingly invaded for the purpose of mining as freely as 
 the public lands. It was the policy of the State to 
 encourage the development of the mines, and no greater 
 latitude in exploration could be desired than was thus 
 sanctioned by the highest tribunal of the State. It 
 was not long, however, before a cry came up from 
 private proprietors against the invasion of their pos- 
 sessions which the decision had permitted ; and the 
 court was compelled to put some limitation upon the 
 enjoyment by the citizen of this right of the State. 
 Accordingly, within two years afterwards, in Stoakes 
 vs. Barrett, (5 Cal., 37,) it held that although the State 
 was the owner of the gold and silver found in the lands 
 of private individuals as well as in the public lands, 
 " yet to authorize an invasion of private property in 
 order to enjoy a public franchise would require more 
 specific legislation than any yet resorted to." 
 
 The spirit to invade other people's lands, to which
 
 161 
 
 the original decision gave increased force against the 
 intention of its authors, could not be as easily repressed 
 as it was raised in the crowd of adventurers, who filled 
 the mining regions. Accordingly, long before I went 
 on the bench, the right to dig for the precious metals on 
 the lands of private individuals was stoutly asserted 
 under an assumed license of the State. And after- 
 wards, in the case of Birdie Boggs vs. The Merced 
 Mining Co., which came before the court in 1859, 
 where the plaintiff claimed under a patent of the United 
 States, issued upon the confirmation of a Mexican 
 grant, the existence of this license was earnestly main- 
 tained by parties having no connection with the gov- 
 ernment, nor any claim of title to the land. Its exist- 
 ence was, however, repudiated by the court, and 
 speaking for it in that case I said : " There is gold in 
 limited quantities scattered through large and valuable 
 districts, where the land is held in private proprietor- 
 ship, and under this pretended license the whole might 
 be invaded, and, for all useful purposes, destroyed, no 
 matter how little remunerative the product of the min- 
 ing. The entry might be made at all seasons, whether 
 the land was under cultivation or not, and without ref- 
 erence 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 
 possessions, and without security there would be little
 
 development, for the incentive to improvement would 
 be wanting. What value would there be to a title in 
 one man, with a right of invasion in the whole world ? 
 And what property would the owner possess in mineral 
 land the same being in fact to him poor and valueless 
 just in proportion to the actual richness and abundance 
 of its products ? There is something shocking to all 
 our ideas of the rights of property in the proposition 
 that one man may invade the possessions of another, 
 dig up his fields and gardens, cut down his timber, and 
 occupy his land, under the pretence that he has reason 
 to believe there is gold under the surface, or if exist- 
 ing, that he wishes to extract and remove it." 
 
 At a later day the court took up the doctrine, that 
 the precious metals belonged to the State by virtue of 
 her sovereignty, and exploded it. The question arose 
 in Moore vs. Smaw, reported in 17th California, and in 
 disposing of it, speaking for the court, I said : " It is 
 undoubtedly true that the United States held certain 
 rights of sovereignty over the territory which is now 
 embraced within the limits of California, only in trust 
 for the future State, and that such rights at once vested 
 in the new State upon her admission into the Union. 
 But the ownership of the precious metals found in pub- 
 lic or private lands was not one of those rights. Such 
 ownership stands in no different relation to the sov- 
 ereignty of a State than that of any other property.
 
 163 
 
 which is the subject of barter and sale. Sovereignty is 
 a terra 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 property 
 for public uses, termed the right of eminent domain, 
 are all rights of sovereignty, for they are rights essen- 
 tial 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 
 delegated the exercise of certain rights or powers of 
 sovereignty ; and with respect to sovereignty, rights 
 and powers are synonymous terms ; and the exercise of 
 all other rights of sovereignty, except as expressly pro- 
 hibited, is reserved to the people of the respective 
 States, or vested 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, except as to those matters over 
 which such authority is delegated to the federal gov- 
 ernment, or prohibited to the States ; in other words, 
 that she possesses all the rights and powers essential 
 to the existence of an independent political organiza- 
 tion, except as they are withdrawn by the provisions of 
 the Constitution of the United States. To the exist-
 
 ence of this political authority of the State this qual- 
 ified sovereignty, or to any part of it the ownership 
 of the minerals of gold and silver found within her 
 limits is in no way essential. The minerals do not dif- 
 fer from the great mass of property, the ownership of 
 which may be in the United States, or in individuals, 
 without affecting in any respect the political jurisdic- 
 tion of the State. They may be acquired by the State, 
 as any other property may be, but when thus acquired 
 she will hold them in the same manner that individual 
 proprietors hold their property, and by the same right ; 
 by the right of ownership, and not by any right of sov- 
 ereignty." 
 
 And referring to the argument of counsel in the case 
 in Plowden, I said that it would be a waste of time to 
 show that the reasons there advanced in support of the 
 right of the Crown to the mines could not avail to sus- 
 tain any ownership of the State in them. The State 
 takes no property by reason of " the excellency of the 
 thing," and taxation furnishes all requisite means for 
 the expenses of government. The convenience of citi- 
 zens in commercial transactions is undoubtedly pro- 
 moted by a supply of coin, and the right of coinage 
 appertains to sovereignty. But the exercise of this right 
 does not require the ownership of the precious metals 
 by the State, nor by the federal government, where this 
 right is lodged under our system, as the experience of 
 every day demonstrates.
 
 165 
 
 I also held that, although under the Mexican law 
 the gold and silver found in land did not pass with a 
 grant of the land, a different result followed, under the 
 common law, when a conveyance of laud was made by 
 an individual or by the government. By such convey- 
 ance everything passed in any way connected with the 
 land, forming a portion of its soil or fixed to its 
 surface. 
 
 The doctrine of the right of the State by virtue of 
 her sovereignty to the mines of gold and silver per- 
 ished with this decision. It was never afterwards 
 seriously asserted. But for holding what now seems 
 so obvious, the judges were then grossly maligned as 
 acting in the interest of monopolists and land owners, 
 to the injury of the laboring class. 
 
 The decisions, however, which caused for the time 
 the greatest irritation, and excited the bitterest denun- 
 ciation of the judges, related to the titles to land in the 
 city of San Francisco, though in the end they proved 
 to be of incalculable benefit. Upon the acquisition of 
 California, there was a Mexican Pueblo upon the site 
 of the city. The term pueblo is aptly translated by the 
 English word town. It has all the vagueness of that 
 term, and is equally applicable to a settlement of a few 
 individuals at a particular place, or to a regularly or- 
 ganized municipality. The Pueblo of San Francisco 
 was composed of a small population ; but, as early as
 
 166 
 
 1835, it was of sufficient importance to have an Ayun- 
 tamiento or Town Council, composed of alcaldes and 
 other officers, for its government. At the time of our 
 acquisition of the country it was under the government 
 of alcaldes or justices of the peace. By the laws of 
 Mexico, then in force, pueblos or towns, when once 
 officially recognized as such by the appointment of 
 municipal magistrates, became entitled to four square 
 leagues of land, to be measured off and assigned to 
 them by the officers of the government. Under these 
 laws the city of San Francisco, as successor of the 
 Mexican Pueblo, asserted a claim to such lands, to be 
 measured off from the northern portion of the penin- 
 sula upon which the city is situated. And the alcaldes, 
 assuming an authority similar to that possessed by 
 alcaldes in other pueblos, exercised the power of dis- 
 tributing these municipal lands in small parcels to 
 settlers for building, cultivation, and other uses. 
 
 When tke forces of the United States took posses- 
 sion of the city, the alcaldes, holding under the Mexican 
 government, were superseded by persons appointed by 
 our military or naval officers having command of the 
 place. With the increase of population which followed 
 the discovery of gold, these magistrates were besieged 
 by applicants for grants of land ; and it was refreshing 
 to see with what generous liberality they disposed of 
 lots in the city a liberality not infrequent when exer-
 
 16; 
 
 cised with reference to other people's property. Lots, 
 varying in size from fifty to one hundred varas square, 
 (a measure nearly equal to our yard,) were given away 
 as freely as they were asked, only a small fee to meet 
 necessary charges for preparing and recording the 
 transfers being demanded. Thus, for the lot occupied 
 by the Lick House, and worth now nearly a million, 
 only a few dollars, less I believe than twenty, were 
 paid. And for the lot covered by the Grand Hotel, 
 admitted to be now worth half a million, less than 
 thirty-five dollars were paid. 
 
 The authority of the alcaldes to dispose of the lands 
 was questioned by many of the new immigrants, and 
 the validity of their grants denied. They asserted that 
 the land was part of the public property of the United 
 States. Many holding these views gave evidence of 
 the earnestness of their convictions by immediately 
 appropriating to themselves as much vacant land in 
 the city as they could conveniently occupy. Disputes 
 followed, as a matter of course, between claimants 
 under the alcalde grants and those holding as settlers, 
 which often gave rise to long and bitter litigation. 
 The whole community was in fact divided between 
 those who asserted the existence of a pueblo having a 
 right to the lands mentioned, and the power of the 
 alcaldes to make grants of them ; and those who in- 
 sisted that the land belonged to the United States.
 
 168 
 
 Early in 1850, after the State government was or- 
 ganized, the Legislature incorporated the City of San 
 Francisco ; and, as is usual with municipal bodies not 
 restrained by the most stringent provisions, it con- 
 tracted more debts than its means warranted, and did 
 not always make provision for their payment at ma- 
 turity. Numerous suits, therefore, were instituted and 
 judgments were recovered against the city. Execu- 
 tions followed, which were levied upon the lands claimed 
 by her as successor of the pueblo. Where the occu- 
 pants denied the title of the city, they were generally 
 indifferent to the sales by the sheriff. Property of 
 immense value, in some cases many acres in extent, 
 was, in consequence, often struck off to bidders at a 
 merely nominal price. Upon the deeds of the officer, 
 suits in ejectment were instituted in great numbers ; 
 and thus questions as to the existence of the alleged 
 pueblo, and whether, if existing, it had any right to 
 land, and the nature of such right, if any, were brought 
 before the lower courts ; and, finally, in a test case 
 Hart vs. Burnett they found their way to the Supreme 
 Court of the State. In the meantime a large number 
 of persons had become interested in these sales, aside 
 from the occupants of the land, and the greatest 
 anxiety was manifested as to the decision of the Court. 
 Previous decisions on the questions involved were not 
 consistent ; nor had they met the entire approval of
 
 169 
 
 the profession, although the opinion prevailed generally 
 that a Mexican pueblo of some kind, owning or having 
 an interest in lands, had existed on the site of the city 
 upon the acquisition of the country, and that, such 
 lands, like other property of the city not used for public 
 purposes, were vendible on execution. 
 
 In 1855, after the sale in respect to which the test 
 case was made, the Council of the city passed "the 
 Van Ness Ordinance," so called from the name of its 
 author, the object of which was to settle and quiet, as 
 far as practicable, the title of persons occupying land 
 in the city. It relinquished and granted the right and 
 interest of the city to lands within its corporate limits, 
 as denned by the charter of 1851, with certain excep- 
 tions, to parties in the actual possession thereof, by 
 themselves or tenants, on or before the first of January, 
 1855, if the possession were continued to the time of 
 the introduction of the ordinance into the Common 
 Council in June of that year ; or, if interrupted by an 
 intruder or trespasser, it had been or might be recov- 
 ered by legal process. And it declared that, for the 
 piirposes of the act, all persons should be deemed in 
 possession who held titles to land within the limits 
 mentioned, by virtue of a grant made by the authorities 
 of the pueblo, including alcaldes among them, before 
 the 7th of July, 1846, the day when the jurisdiction 
 over the country is deemed to have passed from Mex-
 
 170 
 
 ico to the United States, or by virtue of a grant sub- 
 sequently made by those authorities, if the grant, or a 
 material portion of it, had been entered in a proper 
 book of record deposited in the office or custody of 
 the recorder of 1 the county of San Francisco on or be- 
 fore April 3d, 1850. This ordinance was approved 
 by an act of the Legislature of the State in March, 
 1858, and the benefit of it and of the confirmatory act 
 was claimed by the defendant in the test case. 
 
 That case was most elaborately argued by able and 
 learned counsel. The whole law of Mexico respecting 
 pueblos, their powers, rights, and property, and whether, 
 if possessing property, it was subject to forced sale, 
 the effect upon such land of the change of sovereignty 
 to the United States, the powers of alcaldes in dispos- 
 ing of the property of these municipalities, the effect 
 of the Van Ness Ordinance, and the confirmatory act 
 of the Legislature, were all discussed with a fullness 
 and learning which left nothing unexplained or to be 
 added. For weeks afterwards the judges gave the 
 most laborious attention to the questions presented, 
 and considered every point and the argument on both 
 sides of it with anxious and painful solicitude to reach 
 a just conclusion. The opinion of the court, prepared 
 by Mr. Justice Baldwin, is without precedent for the 
 exhaustive learning and research it exhibits upon the 
 points discussed. The Court held, among other things,
 
 171 
 
 that, at the date of the conquest and cession of the 
 country, San Francisco was a pueblo, having the rights 
 which the law of Mexico conferred upon such munici- 
 pal organizations ; that as such pueblo it had proprie- 
 tary rights to certain lands, which were held in trust 
 for the public use of the city, and were not subject to 
 seizure and sale under execution ; that such portions 
 as were not set apart for common use or special pur- 
 poses could be granted in lots to private persons by its 
 ayuntamiento or by alcaldes or other officers who rep- 
 resented or had succeeded to its powers ; that the 
 lands, and the trusts upon which they were held, were 
 public and municipal in their nature, and since the 
 organization of the State were under its control and 
 supervision ; that the act of the Legislature confirming 
 the Van Ness Ordinance was a proper exercise of the 
 power of the State, and vested in the possessors 
 therein described, as against the city and State, a title 
 to the lands mentioned ; and that the city held the 
 lands of the pueblo, not legally disposed of by its offi- 
 cers, unaffected by sheriff's sales under executions 
 against her. 
 
 This decision was of the greatest importance both to 
 the city and the occupants of land within its limits. 
 The Van Ness Ordinance had reserved from grant for 
 the uses of the city all the lots which it then occupied 
 or had set apart for public squares, streets, sites for
 
 172 
 
 school-houses, city hall and other buildings belonging 
 to the corporation, and also such other lots as it might 
 subsequently select for public purposes within certain 
 designated limits. All these were by the decision at 
 once released from any possible claim by virtue of sales 
 on executions. All persons occupying lands not thus 
 reserved were by the decision quieted in their posses- 
 sion, so far as any claim of the city or State could be 
 urged against them. Property to the value of many 
 millions was thereby rescued from the spoiler and 
 speculator, and secured to the city or settler. Peace 
 was given to thousands of homes. Yet for this just 
 and most beneficent judgment there went up from a 
 multitude, who had become interested in the sales, a 
 fierce howl of rage and hate. Attacks full of venom 
 were made upon Judge Baldwin and myself, who had 
 agreed to the decision. No epithets were too vile to be 
 applied to us ; no imputations were too gross to be cast 
 at us. The Press poured out curses upon our heads. 
 Anonymous circulars filled with falsehoods, which 
 malignity alone could invent, were spread broadcast 
 throughout the city, and letters threatening assassina- 
 tion in the streets or by-ways were sent to us through 
 the mail. The violence of the storm, however, was too 
 great to last. Gradually it subsided and reason began 
 to assert its sway. Other words than those of reproach 
 were uttered ; and it was not many months before the
 
 173 
 
 general sentiment of the people of the city was with 
 the decision. A year did not elapse before the great 
 good it had conferred upon the city and settler was 
 seen and appreciated. Since then its doctrines have 
 been repeatedly re-affirmed. They have been approved 
 by the Supreme Court of the United States ; and now 
 no one doubts their soundness. 
 
 After that decision there was still wanting for the 
 complete settlement of titles in the city the confirma- 
 tion by the tribunals of the United States of her claim 
 to the lands. The act of Congress of March 3d, 1851, 
 creating the Board of Land Commissioners, provided 
 that all claims to land in California, by virtue of any 
 right or title derived from. the Spanish or Mexican gov- 
 ernment, should be presented to the board for exami- 
 nation and adjudication. Accordingly, the city of San 
 Francisco, soon after the organization of the board, in 
 1852, presented her claim for four square leagues as 
 successor of the pueblo, and asked for its confirmation. 
 In December, 1854, the board confirmed the claim for 
 a portion of the four square leagues, but not for jthe 
 whole ; the portion confirmed being embraced within 
 the charter limits of 1851. The city was dissatisfied 
 with this limitation, and appealed from the decision of 
 the Commissioners to the District Court of the United 
 States. An appeal was also taken by the United States, 
 but was subsequently withdrawn. The case remained
 
 174 
 
 in the District Court without being disposed of until 
 September, 1864, nearly ten years, when, under the 
 authority of an act of Congress of July 1st of that 
 year, it was transferred to the Circuit Court of the 
 United States. Whilst the case Avas pending in the 
 District Court, the population of the city had increased 
 more than four-fold ; and improvements of a costly 
 character had been made in ail parts of it. The mag- 
 nitude of the interests which had thus grown up de- 
 manded that the title to the land upon which the city 
 rested should be in some way definitely settled. To 
 expedite this settlement, as well as the settlement of 
 titles generally in the State, was the object of the act 
 of July 1st, 1864. Its object is so stated in its title. It 
 was introduced by Senator Conness, of California, who 
 was alive to everything that could tend to advance the 
 interests of the State. He felt that nothing would 
 promote its peace and prosperity more than giving 
 security to its land titles, and he labored earnestly to 
 bring about that result. In framing the act, he con- 
 sulted me, and at my suggestion introduced sections 
 four, five, and seven, which I drafted and gave to him, 
 but without the exception and proviso to the fifth sec- 
 tion, which were added at the request of the Commis- 
 sioner of the Land Office.* The fourth section au- 
 thorized the District Court to transfer to the Circuit 
 
 *See Exhibit J, in Appendix.
 
 175 
 
 Court cases pending before it arising under the act of 
 March 3d, 1851, affecting the title to lands within the 
 corporate limits of a city or town, and provided that in 
 such cases both the District and Circuit Judges might 
 sit. By the fifth section, all the right and title of the 
 United States to the land within the corporate limits 
 of the city, as defined by its charter of 1851, were re- 
 linquished and granted to the city and its successors 
 for the uses and purposes specified in the Van Ness 
 Ordinance. The exceptions incorporated at the sug- 
 gestion of the Commissioner of the Land Office related 
 to parcels of land previously or then occupied by the 
 United States for military, naval, or other public pur- 
 poses, and such other parcels as might be subsequently 
 designated for such purposes by the President within 
 one year after the return to the land office of an approved 
 plat of the exterior limits of the city. The holders of 
 grants from the authorities of the pueblo and the occu- 
 pants of land within the limits of the charter of 1851 
 were thus quieted in their possessions. But as the 
 claim of the city was for a much greater quantity, the 
 case for its confirmation was still prosecuted. Under 
 the fourth section it was transferred to the Circuit 
 Court, as already stated ; and it was soon afterwards 
 brought to a hearing. On the 30th of October, 1864, 
 it was decided. For some reason I do not now recall, 
 the District Judge was unable to sit with me, and the
 
 176 
 
 case was, therefore, heard before me alone. I held 
 that a pueblo of some kind existed at the site of the 
 present city of San Francisco upon the cession of the 
 country ; that as such it was entitled to the possession 
 of certain lands to the extent of four square leagues ; 
 and that the present city had succeeded to such rights, 
 following, in these particulars, the decision which had 
 previously been made in the case of Hart vs. Burnett, 
 by the Supreme Court of the State, in which I had 
 participated. I accordingly decided that the city was 
 entitled to have her claim confirmed to four square 
 leagues of land, subject to certain reservations. But I 
 also added that the lands to which she was entitled 
 had not been given to her by the laws of the former 
 government in absolute property with full right of dis- 
 position and alienation, but to be held in trust for the 
 benefit of the whole community, with such powers of 
 use, disposition, and alienation as had been or might 
 thenceforth be conferred upon her or her officers for 
 the execution of the trust. The trust character of the 
 city's title was expressed in the decree of confirmation. 
 The decision was rendered on the 30th of October, 
 1864, as stated, and a decree was soon afterwards en- 
 tered; but as a motion was made for a re-hearing, the 
 control over it was retained by the Circuit Court until 
 May of the following year. Upon the suggestion of 
 counsel, it was then modified in some slight particulars
 
 177 
 
 so as to limit the confirmation to land above ordinary 
 high water mark, as it existed at the date of the acqui- 
 sition of the country, namely, the 7th of July, 1846. 
 On the 18th of May, 1865, the decree was finally settled 
 and entered. Appeals from it were prosecuted 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. 
 
 In October following I proceeded as usual to Wash- 
 ington to attend the then approaching term of the 
 Supreme Court, and thought no more of the case until 
 my attention was called to it by a most extraordinary 
 circumstance. Just before leaving San Francisco Mr. 
 Rulofson, a photographer of note, requested me to sit 
 for a photograph, expressing a desire to add it to his 
 gallery. I consented, and a photograph of a large size 
 was taken. As I was leaving his rooms he observed 
 that he intended to make some pictures of a small size 
 from it, and would send me a few copies. On the 
 morning of the 13th of January following (1866), at 
 Washington, Mr. 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 
 me, remarking, as he did so, that the arrival of the 
 California steamer at New York had been telegraphed,
 
 178 
 
 and he hoped that I had received some letters for him, 
 as he had directed his letters to be forwarded to my 
 care. I replied that when I left my room my messen- 
 ger had not brought my mail ; but if he would accom- 
 pany me there we would probably find it. Accordingly, 
 we proceeded to my room, where on the centre-table 
 lay my mail from California, consisting of a large 
 number of letters and papers. Among them I noticed 
 a small package about an inch and a half thick, three 
 inches in breadth, and three and a half in length. It 
 was addressed as follows, the words being printed : 
 
 i 
 
 [Three postage stamps.] 
 
 Hon. STEPHEN J. FIELD, 
 
 Washington, D. C. 
 
 It bore the stamp of the San Francisco post-office 
 upon the address. My name had evidently been cut 
 from the California Reports, but the words " Washing- 
 ton, D. C.," and " Per steamer," had been taken from a 
 newspaper. 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 FBANCISCO.
 
 179 
 
 As I took up the package I remarked that this must 
 come from Rulofson ; no, I immediately added, 
 Rulofson has nothing to do with the Pioneer Gallery. 
 It then occurred to me that it might be a present for 
 my wife, recollecting at the moment that the mail came 
 by the steamer which sailed from San Francisco about 
 Christmas time. It may be, I said to myself, a Christ- 
 mas present for my wife. I will open it just far 
 enough to see. and, if it be intended for her, I will 
 close it and forward it to New York, where she was at 
 the time. I accordingly tore off the covering and 
 raised the lid just far enough to enable me to look 
 inside. I was at once struck with the black appear- 
 ance of the inside. " What is this, Lake ? " I said, 
 addressing myself to my friend. Judge Lake looked 
 over my shoulder into the box, as I held it in my hand, 
 and at once exclaimed, " It is a torpedo. Don't open 
 it." I was startled by the suggestion, for the idea of 
 a torpedo was the last thing in the world to occur to 
 me. I immediately laid the package on the sill of the 
 window, where it was subjected to a careful inspection 
 by us both, so far as it could be made with the lid only 
 an eighth of an inch open. 
 
 Soon afterwards Judge Lake took the package to the 
 Capitol, which was directly opposite to my rooms, and 
 to the office of the Clerk of the Supreme Court, and 
 showed it to Mr. Broom, one of the deputies. They
 
 180 
 
 dipped the package into water and left it to soak for 
 some minutes. They then took it into the carriage 
 way under the steps leading to the Senate Chamber, 
 and shielding themselves behind one of the columns, 
 threw the box against the wall. The blow broke the 
 hinge of the lid and exposed the contents. A murder- 
 ous contrivance it was ; a veritable 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 fulminating powder, and so 
 connected with a bunch of friction matches, a strip of 
 sand-paper, and a piece of linen attached to the lid, 
 that on opening the box the matches would be ignited 
 and the whole exploded. The package was sent to the 
 War Department, and the following report was re- 
 turned, giving a detailed description of the machine : 
 
 WASHINGTON ARSENAL. Jan. 16, 1866. 
 Gen. A. B. Dyer, Chief of Ordnance, Washington, D. G. 
 
 SIK: Agreeably to your instructions, I have examined the explosive 
 machine sent to this arsenal yesterday. It is a small miniature case 
 containing twelve copper cartridges, such as are used in a Smith <fe 
 Wesson pocket pistol, a bundle of sensitive friction matches, a strip 
 of sand-paper, and some fulminating powder. The cartridges and 
 matches are imbedded in common glue to keep them in place. The 
 strip of sand-paper lies upon the heads of the matches. One end has 
 been thrown back, forming a loop, through which a bit of thread 
 evidently passed to attach it to the lid of the case. This thread may 
 be seen near the clasp of the lid, broken in two. There are two wire 
 staples, under which the strip of sand-paper was intended to pass to 
 produce the necessary pressure on the matches. The thread is so 
 fixed that the strip of sand-paper could be secured to the lid after it 
 was closed.
 
 181 
 
 The whole affair is so arranged that the opening of the lid would 
 necessarily ignite the matches, were it not that the lower end of the 
 strip has become imbedded in the glue, which prevents it from 
 moving. That the burning of the matches may explode the cartridges, 
 there is a hole in each case, and all are covered with mealed powder. 
 One of the cartridges has been examined and found to contain 
 ordinary grain powder. Two of the cartridges were exploded in a 
 closed box sent herewith. The effect of the explosion was an inden- 
 tation on one side of the box. 
 
 Very respectfully, your obedient servant, 
 
 J. G. BENTON, 
 Major of Ord. and Bvt. Col. Comdg. 
 
 Between the outside covering and the box there 
 were two or three folds of tissue-paper placed there, 
 no doubt, to prevent the possibility of an explosion 
 from the stamping at the post office, or the striking 
 against other packages 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 31st, 1864, stating 
 that on the day previous I 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 my opinion. 
 
 The Secretary of War, Mr. Stanton, immediately 
 telegraphed in cypher to General Halleck, then in com- 
 mand in San Francisco, to take active measures to find 
 out, if possible, the person who made and sent the 
 infernal machine. General Halleck put the detectives 
 of his department on the search. Others employed
 
 182 
 
 detectives of the San Francisco police but all in vain. 
 Suspicions were excited as to the complicity of differ- 
 ent parties, but they were never sustained by sufficient 
 evidence to justify the arrest of any one. The instru- 
 ment, after remaining in the hands of the detectives in 
 San Francisco for nearly two years, was returned to 
 me and it is now in my possession.* 
 
 It has often been a matter of wonder to me how it 
 was that some good angel whispered to me not to open 
 the box. My impetuous temperament would naturally 
 have led me to tear it open without delay. Probably 
 such hesitation in opening a package directed to me 
 never before occurred, and probably never will again. 
 Who knows but that a mother's prayer for the protec- 
 tion of her son, breathed years before, was answered 
 then ? Who can say that her spirit was not then hov- 
 ering over him and whispering caution in his ear? 
 That I should on that occasion have departed from my 
 usual mode of action is strange passing strange. 
 
 As already stated, the fifth section of the act of Con- 
 gress of July 1st, 1864, which granted the interest of 
 the United States to the lands within the charter limits 
 of 1851 to the city and its successors, in trust for the 
 benefit of possessors under the Van Ness Ordinance, 
 among other things provided for certain reservations 
 
 * See Exhibit K, in Appendix.
 
 183 
 
 to be subsequently made by the President, within one 
 year after an approved plat showing the exterior limits 
 of the city had been filed in the land office. No such 
 map was filed nor were any reservations made. The 
 'case on appeal in the meantime was not reached in the 
 Supreme Court, and was not likely to be for a long 
 period. Ascertaining from General Halleck that the 
 Secretary of War would not recommend any further 
 reservations to be made from the municipal lands, and 
 that probably none would be made, I drew a bill to 
 quiet the title of the city to all the lands embraced 
 within the decree of confirmation, and gave it to Sena- 
 tor Conness, who being ready, as usual, to act for the 
 interests of the city, immediately took charge of it and 
 secured its passage in the Senate. In the House Mr. 
 McEuer, Member of Congress from California, took 
 charge of it, and with the assistance of the rest of the 
 delegation from the State, procured its passage there. 
 It was signed by the President and became a law on 
 the 8th of March, 1866. By it all the right and title 
 of the United States to the land covered by the decree 
 of the Circuit Court were relinquished and granted to 
 the city, and the claim to the land was confirmed, sub- 
 ject, however, to certain reservations and exceptions ; 
 and upon trust that all the land not previously granted 
 to the city, should be disposed of and conveyed by the 
 city to the parties in the bona fide actual possession
 
 184 
 
 thereof, by themselves or tenants, on the passage of 
 the act, in such quantities, and upon such terms and 
 conditions, as the Legislature of the State of California 
 might prescribe, except such parcels thereof as might 
 be reserved and set apart by ordinance of the city for 
 public uses. 
 
 Not long afterwards both the appeals to the Supreme 
 Court were dismissed by stipulation of parties. The 
 litigation over the source of title to lands within the 
 limits of the city, not disposed of by independent 
 grants of the government previous to the acquisition of 
 the country, was thus settled and closed. The title of 
 the city rests, therefore, upon the decree of the Circuit 
 Court entered on the 18th day of May, 1865, and this 
 confirmatory act of Congress. It has been so adjudged 
 by the Supreme Court of the United States. (See 
 Townsend vs. Greely, 5 Wall., 337 ; Grisar vs. McDow- 
 ell, 6 Wall., 379.) 
 
 The title of the city being settled, the municipal au- 
 thorities took measures, under the provisions of the 
 confirmatory act, to set apart lands for school-houses, 
 hospitals, court-house buildings, and other public pur- 
 poses, and through their exertions, instigated and en- 
 couraged ' by Mr. McCoppin, the accomplished and 
 efficient Mayor of the city at that time, the Ocean 
 Park, which looks out upon the Pacific Ocean and the 
 Golden Gate, and is destined to be one of the finest
 
 185 
 
 parks in the world, was set apart and secured to the 
 city for all time. As the grounds thus taken were, in 
 many instances, occupied by settlers, or had been pur- 
 chased from them, an assessment was levied by the city 
 and sanctioned by the Legislature upon other lands 
 conveyed to the occupants, as a condition of their re- 
 ceiving deeds from the city ; and the money raised was 
 applied to compensate those whose lands had been 
 appropriated.
 
 HOSTILITY TO THE SUPEEME COURT AFTER 
 THE CIVIL WAR. THE SCOFIELD RESOLUTION. 
 
 THE irritations and enmities created by the civil war 
 did not end with the cessation of active hostilities. 
 They were expressed whenever any acts of the military 
 officers of the United States were called in question ; 
 or any legislation of the States or of Congress in hos- 
 tility to the insurgents was assailed ; or the validity of 
 the "Reconstruction Acts" was doubted. And they 
 postponed that cordial reconciliation which all patriotic 
 men earnestly desired. 
 
 The insurrection was overthrown after a contest 
 which, for its magnitude and the number and courage 
 of the belligerents, was without a parallel in history. 
 The immense loss of life and destruction of property 
 caused by the contest, and the burden of the enormous 
 debt created in its prosecution, left a bitterness in the 
 hearts of the victors which it was difficult to remove. 
 The assassination of Mr. Lincoln added intensity to 
 the feeling. That act of a madman, who had conceived 
 the idea that he might become in our history what 
 Brutus was in the history of Rome, the destroyer of 
 the enemy of his country, was ascribed to a conspiracy
 
 187 
 
 of leading Confederates. The proclamation of the 
 Secretary of War, offering a reward for the arrest of 
 parties charged with complicity in the act, gave sup- 
 port to this notion. The wildest stories, now known 
 to have had no foundation, were circulated and ob- 
 tained ready credence among the people of the North, 
 already wrought up to the highest pitch of excitement. 
 They manifested, therefore, great impatience when a 
 doubt was cast upon the propriety or validity of the 
 acts of the government, or of its officers, which were 
 taken for the suppression of the rebellion or "the 
 reconstruction " of the States ; and to question their 
 validity was almost considered proof of hostility to the 
 Union. 
 
 By those who considered the union indissoluble, ex- 
 cept by the common consent of the people of the sev- 
 eral States, the organization known as the Confederate 
 States could only be regarded as unlawful and rebel- 
 lious, to be suppi'essed, if necessary, by force of arms. 
 The Constitution prohibits any treaty, alliance, or con- 
 federation by one State with another, and it declares on 
 its face that it is the supreme law of the land. The 
 Confederate government, therefore, could only be treated 
 by the United States as the military representative of 
 the insurrection against their authority. Belligerent 
 rights were accorded to its armed forces in the conduct 
 of the war, and they thus had the standing and rights
 
 188 
 
 of parties engaged in lawful warfare. But no further 
 recognition was ever given to it, and when those forces 
 were overthrown its whole fabric disappeared. But not 
 so with the insurgent States which had composed the 
 Confederacy. They retained the same form of govern- 
 ment and the same general system of laws, during and 
 subsequent to the war, which they had possessed pre- 
 viously. Their organizations as distinct political com- 
 munities were not destroyed by the war, although their 
 relations to the central authority were changed. And 
 their acts, so far as they did not impair or tend to im- 
 pair the supremacy of the general government, or the 
 rights of citizens of the loyal States, were valid and 
 binding. All the ordinary authority of government for 
 the protection of rights of persons and property, the 
 enforcement of contracts, the punishment of crime, and 
 the due order of society, continued to be exercised by 
 them as though no civil war had existed. 
 
 There was, therefore, a general expectation through- 
 out the country, upon the cessation of actual hostilities, 
 that these States would be restored to their former re- 
 lations in the Union as soon as satisfactory evidence 
 was furnished to the general government that resistance 
 to its authority was overthrown and abandoned, and its 
 laws were enforced and obeyed. Some little time might 
 elapse before this result would clearly appear. It was 
 not expected that they would be immediately restored
 
 189 
 
 upon the defeat of the armies of the Confederacy, nor 
 that their public men, with the animosities of the strug- 
 gle still alive, would at once be admitted into the coun- 
 cils of the nation, and allowed to participate in its gov- 
 ernment. But whenever it was satisfactorily established 
 that there would be no renewal of the struggle and that 
 the laws of the United States would be obeyed, it was 
 generally believed that the restoration of the States 
 would be an accomplished fact. 
 
 President Johnson saw in the institution of slavery 
 the principal source of the irritation and ill-feeling be- 
 tween the North and the South, which had led to the 
 war. He believed, therefore, that its abolition should 
 be exacted, and that this would constitute a complete 
 guaranty for the future. At that time the amendment 
 for its abolition, which had passed the two Houses of 
 Congress, was pending before the States for their 
 action. He was of opinion, and so expressed himself 
 in his first message to Congress, that its ratification 
 should be required of the insurgent States on resuming 
 their places in the family of the Union ; that it was not 
 too much, he said, to ask of them " to give this pledge 
 of perpetual loyalty and peace." " Until it is done," 
 he added, " the past, however much we may desire it, 
 will not be forgotten. The adoption of the amendment 
 re-unites us beyond all power of disruption. It heals 
 the wound that is still imperfectly closed ; it removes
 
 190 
 
 slavery, the element which has so long perplexed and 
 divided the country ; it makes of us once more a united 
 people, renewed and strengthened, bound more than 
 ever to mutual affection and support." 
 
 It would have been most fortunate for the country 
 had this condition been deemed sufficient and been ac- 
 cepted as such. But the North was in no mood for a 
 course so simple and just. Its leaders clamored for 
 more stringent measures, on the ground that they were 
 needed for the protection of the freedmen, and the 
 defeat of possible schemes for a new insurrection. It 
 was not long, therefore, before a system of measures 
 was adopted, which resulted in the establishment at 
 the South of temporary governments, subject to military 
 control, the offices of which were filled chiefly by men 
 alien to the States and indifferent to their interests. 
 The misrule and corruption which followed are matters 
 of public history. It is no part of my purpose to 
 speak of them. I wish merely to refer to the state of 
 feeling existing upon the close of the civil war as intro- 
 ductory to what I have to say of the unfriendly dispo- 
 sition manifested at the North towards the Supreme 
 Court and some of its members, myself in particular. 
 
 Acts of the military officers, and legislation of some 
 of the States and of Congress, during and immediately 
 succeeding the war, were soon brought to the consid- 
 eration of the Court. Its action thereon was watched
 
 191 
 
 by members of the Republican party with manifest 
 uneasiness and distrust. Its decision in the Dred 
 Scott case had greatly impaired their confidence in its 
 wisdom and freedom from political influences. Many 
 of them looked upon that decision as precipitating the 
 war upon the country, by the sanction it gave to efforts 
 made to introduce slavery into the Territories ; and 
 they did not hesitate to express their belief that the 
 sympathies of a majority of the Court were with the 
 Confederates. Intimations to that effect were thrown 
 out in some of the journals of the day, at first in 
 guarded language, and afterwards more directly, until 
 finally it came to be generally believed that it was the 
 purpose of the Court, if an opportunity offered, to de- 
 clare invalid most of the legislation relating to the 
 Southern States which had been enacted during the 
 war and immediately afterwards. Nothing could have 
 been more unjust and unfounded. Many things, in- 
 deed, were done during the war, and more after its 
 close, which could not be sustained by any just con- 
 struction of the limitations of the Constitution. It was 
 to be expected that many things would be done in the 
 heat of the contest which could not bear the examina- 
 tion of calmer times. Mr. Chief Justice Chase ex- 
 pressed this fact in felicitous language when speaking 
 of his own change of views as to the validity of the 
 provision of law making government notes a legal ten-
 
 192 
 
 der, he said : " It is not surprising that amid the 
 tumult of the late civil war, and under the influence of 
 apprehensions for the safety of the Republic almost 
 universal, different views, never before entertained by 
 American statesmen or jurists, were adopted by many. 
 The time was not favorable to considerate reflection 
 upon the constitutional limits of legislative or executive 
 authority. If power was assumed from patriotic mo- 
 tives, the assumption found ready justification in patri- 
 otic hearts. Many who doubted yielded their doubts ; 
 many who did not doubt were silent. Those who were 
 strongly averse to making government notes a legal 
 tender felt themselves constrained to acquiesce in the 
 views of the advocates of the measure. Not a few who 
 then insisted upon its necessity, or acquiesced in that 
 view, have, since the return of peace, and under the 
 influence of the calmer time, reconsidered this conclu- 
 sion, and now concur in those which we have just an- 
 nounced." 
 
 Similar language might be used with reference to 
 other things done during the war and afterwards, 
 besides making government notes a legal tender. The 
 Court and all its members appreciated the great diffi- 
 culties and responsibilities of the government, both in 
 the conduct of the war, and in effecting an early resto- 
 ration of the States afterwards, and no disposition was 
 manifested at any time to place unnecessary obstacles
 
 193 
 
 in its way. But when its measures and legislation were 
 brought to the test of judicial judgment there was but 
 one course to pursue, and that was to apply the law 
 and the Constitution as strictly as though no war had 
 ever existed. The Constitution was not one thing in 
 war, and another in peace. It always spoke the same 
 language, and was intended as a rule for all times and 
 occasions. It recognized, indeed, the possibility of 
 war, and, of course, that the rules of war had to be 
 applied in its conduct in the field of military opera- 
 tions. The Court never presumed to interfere there, 
 but outside of that field, and with respect to persons 
 not in the military service within States which adhered 
 to the Union, and after the war in all the States, the 
 Court could not hesitate to say that the Constitution, 
 with all its limitations upon the exercise of executive 
 and legislative authority, was, what it declares on -its 
 face to be, the supreme law of the land, by which all 
 legislation, State and federal, must be measured. 
 
 The first case growing out of the acts of military 
 officers during the war, which attracted general atten- 
 tion and created throughout the North an uneasy feel- 
 ing, was the Milligan case, which was before the Court 
 on habeas corpus. In October, 1864, Milligan, a citi- 
 zen of the United States and a resident of Indiana, 
 had been arrested by order of the military commander 
 of the district and confined in a military prison near
 
 194 
 
 the capital of the State. He was subsequently, on the 
 21st of the same month, put on trial before a military 
 commission convened at Indianapolis, in that State, 
 upon charges of : 1st. Conspiring against the govern- 
 ment of the United States ; 2d. Affording aid and com- 
 fort to the rebels against the authority of the United 
 States; 3d. Inciting insurrection; 4th. Disloyal prac- 
 tices ; and 5th. Violations of the laws of war ; and was 
 found guilty and sentenced to death by hanging. He 
 had never been in the military service ; there was no 
 rebellion in Indiana ; and the civil courts were open in 
 that State and in the undisturbed exercise of their 
 jurisdiction. The sentence of the military commission 
 was affirmed by the President, who directed that it 
 should be carried into immediate execution. The con- 
 demned thereupon presented a petition to the Circuit 
 Court of the United States in Indiana for a writ of 
 habeas corpus, praying to be discharged from custody, 
 alleging the illegality of his arrest and of the proceed- 
 ings of the military commission. The judges of the 
 Circuit Court were divided in opinion upon the ques- 
 tion whether the writ should be issued and the prisoner 
 be discharged, which, of course, involved the jurisdic- 
 tion of the military commission to try the petitioner. 
 Upon a certificate of the division the case was brought 
 to the Supreme Court at the December term of 1865. 
 The case has become historical in the jurisprudence of
 
 195 
 
 the country, and it is unnecessary to state the proceed- 
 ings at length. Suffice it to say that it was argued 
 with great ability by eminent counsel consisting of 
 Mr. Joseph E. McDonald, now U. S. Senator from 
 Indiana, Mr. James A. Garfield, a distinguished mem- 
 ber of Congress, Mr. Jeremiah S. Black, the eminent 
 jurist of Pennsylvania, and Mr. David Dudley Field, 
 of New York, for the petitioner ; and by Mr. Henry 
 Stanbery, the Attorney-General, and Gen. B. F. Butler, 
 for the government. Their arguments were remarkable 
 for learning, research, ability, and eloquence, and will 
 repay the careful perusal not only of the student of 
 law, but of all lovers of constitutional liberty. Only a 
 brief synopsis of them is given in the report of the case 
 in 4th Wallace. The decision of the Court was in 
 favor of the liberty of the citizen. Its opinion was 
 announced by Mr. Justice Davis, and it will stand as a 
 perpetual monument to his honor. It laid down in 
 clear and unmistakable terms the doctrine that military 
 commissions organized during the war, in a State not 
 invaded nor engaged in rebellion, 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 ; and that Congress could not invest them 
 with any such power ; and that in States where the
 
 196 
 
 courts were thus open and undisturbed 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. 
 
 This decision was concurred in by Justices Nelson, 
 Grier, Clifford, and myself, then constituting, with 
 Justice Davis, a majority of the Court. At this day it 
 seems strange that its soundness should have been 
 doubted by any one, yet it was received by a large 
 class perhaps a majority of the Northern people 
 with disfavor, and was denounced in unmeasured 
 terms by many influential journals. It was cited as 
 conclusive evidence of the hostility of the Court to the 
 acts of the government for the suppression of the 
 rebellion. The following, taken from the Daily Chron- 
 icle of January 14th. 1867, a journal of Washington, 
 edited by Mr. Forney, then Secretary of the Senate, is 
 a fair sample of the language applied to the decision : 
 
 "The opinion of the Supreme Court on one of the most momen- 
 tous questions ever submitted to a judicial tribunal, has not startled 
 the country more by its far-reaching and calamitous results, than it 
 has amazed jurists and statesmen by the poverty of its learning and 
 the feebleness of its logic. It has surprised all, too, by its total want 
 of sympathy with the spirit in which the war for the Union was 
 prosecuted, and, necessarily, with those great issues growing out 
 of it, which concern not only the life of the Eepublic, but the very 
 progress of the race, and which, having been decided on the battle- 
 field, are now sought to be reversed by the very theory of construc- 
 tion which led to rebellion,"
 
 197 
 
 At the same term with the Milligan case the test- 
 oath case from Missouri was brought before the Court 
 and argued. In January, 1865, a convention had as- 
 sembled in that State to amend its constitution. Its 
 members had been elected in November previous. 
 In April, 1865, the constitution, as revised and 
 amended, was adopted by the convention, and in June 
 following by the people. Elected, as the members 
 were, in the midst of the war, it exhibited throughout 
 traces of the animosities which the war had en- 
 gendered. By its provisions the most stringent and 
 searching oath as to past conduct known in history 
 was required, not only of officers under it, but of par- 
 ties holding trusts and pursuing avocations in no way 
 connected with the administration of the government. 
 The oath, divided into its separates parts, contained 
 more than thirty distinct affirmations touching past 
 conduct, and even embraced the expression of sym- 
 pathies and desires. Every person unable to take the 
 oath was declared incapable of holding, in the State, 
 " any office of honor, trust, or profit under its au- 
 thority, or of being an officer, councilman, director, or 
 trustee, or other manager of any corporation, public 
 or private, now existing or hereafter established by its 
 authority, or of acting as a professor or teacher in any 
 educational institution, or in any common or other 
 school, or of holding any real estate or other property
 
 198 
 
 in trust for the use of any church, religious society, or 
 congregation." 
 
 And every person holding, at the time the amended 
 constitution took effect, any of the offices, trusts, or 
 positions mentioned, was required, within sixty days 
 thereafter, to take the oath ; and, if he failed to com- 
 ply with this requirement, it was declared that his 
 office, trust, or position should ipso facto become 
 vacant. 
 
 No person, after the expiration of the sixty days, 
 was permitted, without taking the oath, " to practice as 
 an attorney or counsellor-at-law," nor, after that period 
 could " any person be competent as a bishop, priest, 
 deacon, minister, elder, or other clergyman, of any re- 
 ligious persuasion, sect, or denomination, to teach, or 
 preach, or solemnize marriages." 
 
 Fine and imprisonment were prescribed as a punish- 
 ment for holding or exercising any of " the offices, posi- 
 tions, trusts, professions, or functions " specified, with- 
 out having taken the oath ; and false swearing or 
 affirmation in taking it was declared to be perjury, 
 punishable by imprisonment in the penitentiary. 
 
 Mr. Cummings of Missouri, a priest of the Roman 
 Catholic Church, was indicted and convicted in one of 
 the Circuit Courts of that State, of the crime of teach- 
 ing and preaching as a priest and minister of that re- 
 ligious denomination without having first taken the oath
 
 199 
 
 thus prescribed, and was sentenced to pay a fine of five 
 hundred dollars and to be committed to jail until the 
 same was paid. On appeal to the Supreme Court of the 
 State the judgment was affirmed, and the case was 
 brought on a writ of error to our court. It was there 
 argued with great learning and ability by Mr. Mont- 
 gomery Blair, of Washington, Mr. David Dudley Field, 
 of New York, and Mr. Reverdy Johnson, of Maryland, 
 for Mr. Cummings ; and by Mr. G. P. Strong and Mr. 
 John B. Henderson, of Missouri, the latter then United 
 States Senator for the State. 
 
 It was evident, after a brief consideration of the case, 
 that the power asserted by the State of Missouri to 
 exact this oath for past conduct from parties, as a con- 
 dition of their continuing to pursue certain professions, 
 or to hold certain trusts, might, if sustained, be often 
 exercised in times of excitement to the oppression, if 
 not ruin, of the citizen. For, if the State could require 
 the oath for the acts mentioned, it might require it for 
 any other acts of one's past life, the number and char- 
 acter of which would depend upon the mere will of its 
 legislature. It might compel one to affirm, under oath, 
 that he had never violated the ten commandments, nor 
 exercised his political rights except in conformity with 
 the views of the existing majority. Indeed, under this 
 kind of legislation, the most flagrant wrongs might be 
 committed and whole classes of people deprived, not 
 only of their political, but of their civil rights.
 
 200 
 
 It is difficult to speak of the whole system of ex- 
 purgatory oaths for past conduct without a shudder at 
 the suffering and oppression they were not only capa- 
 ble of effecting but often did effect. Such oaths have 
 never been exacted in England, nor on the Continent 
 of Europe ; at least I can recall no instance of the kind. 
 Test-oaths there have always been limited to an affir- 
 mation on matters of present belief, or as to present 
 disposition towards those in power. It was reserved for 
 the ingenuity of legislators in our country during the 
 civil war to make test-oaths reach to past conduct. 
 
 The Court held that enactments of this character, 
 operating, as they did, to deprive parties by legislative 
 decree of existing rights for past conduct, without the 
 formality and the safeguard of a judicial trial, fell within 
 the inhibition of the Constitution against the passage 
 of bills of attainder. In depriving parties of existing 
 rights for past conduct, the provisions of the constitu- 
 tion of Missouri imposed, in effect, a punishment for such 
 conduct. Some of the acts for which such deprivation 
 was imposed were not punishable at the time ; and for 
 some" this deprivation was added to the punishments 
 previously prescribed, and thus they fell under the fur- 
 ther prohibition of the Constitution against the passage 
 , of an ex potst facto law. The decision of the Court, 
 therefore, was for the discharge of the Catholic priest. 
 The judgment against him was reversed, and the Su-
 
 201 
 
 preme Court of Missouri was directed to order the in- 
 ferior court by which he was tried to set him at liberty. 
 Immediately following the case of Cummings that of 
 Ex-parte Garland was argued, involving the validity of 
 the iron-clad oath, as it was termed, prescribed for at- 
 torneys and counsellors-at-law by the act of Congress 
 of January 24th, 1865. Mr. A. H. Garland, now United 
 States Senator from Arkansas, had been a member of 
 the Bar of the Supreme Court of the United States be- 
 fore the civil war. When Arkansas passed her ordi- 
 nance of secession and joined the Confederate States, 
 he went with her, and was one of her representatives in 
 the Congress of the Confederacy. In July, 1865, he 
 received from the President a full pardon for all offences 
 committed by his participation, direct or implied, in the 
 rebellion. At the following term of the Court he pro- 
 duced his pardon and asked permission to continue to 
 practice as an attorney and counsellor without taking 
 the oath required by the act of Congress, and the rule 
 of the Court made in conformity with it, which he was 
 unable to take by reason of the offices he had held un- 
 der the Confederate government. The application was 
 argued by Mr. Matthew H. Carpenter, of Wisconsin, 
 and Mr. Reverdy Johnson, of Maryland, for the peti- 
 tioner Mr. Garland and Mr. Marr, another applicant 
 for admission, who had participated in the rebellion, 
 filing printed arguments and by Mr. Speed, of Ken-
 
 202 
 
 tucky, and Mr. Henry Stanbery, the Attorney-General, 
 on the other side. The whole subject of expurgatory 
 oaths was discussed, and all that could be said on either 
 side was fully and elaborately presented. 
 
 The Court in its decision followed the reasoning of 
 the Cumraings case and held the law invalid, as applied 
 to the exercise of the petitioner's right to practice his 
 profession ; that such right was not a mere indulgence, 
 a matter of grace and favor, revocable at the pleasure 
 of the Court, or at the command of the legislature ; but 
 was a right of which the petitioner could be deprived 
 only by the judgment of the Court for moral or profes- 
 sional delinquency. The Court also held that the par- 
 don of the petitioner released him from all penalties 
 and disabilities attached to the offence of treason com- 
 mitted by his" participation in the rebellion, and that, 
 so far as that offence was concerned, he was placed be- 
 yond the reach of punishment of any kind. But to 
 exclude him by reason of that offence that is, by re- 
 quiring him to take an oath that he had never commit- 
 ted it was to enforce a punishment for it notwith- 
 standing the pardon ; and that it was not within the 
 constitutional power of Congress thus to inflict punish- 
 ment beyond .the reach of executive clemency. 
 
 I had the honor to deliver the opinion of the Court 
 in these cases the Cummings case and the Garland 
 case. At the present day both opinions are generally
 
 203 
 
 admitted to be sound, but when announced they were 
 received by a portion of the Northern Press with ap- 
 parent astonishment and undisguised condemnation. 
 It is difficult to appreciate at this day the fierceness 
 with which the majority of the Court was assailed. 
 That majority consisted of Justices Wayne, Nelson, 
 Grier, Clifford, and myself. I was particularly taken 
 to task, however, as it was supposed at least I can 
 only so infer from the tone of the Press that because 
 I had been appointed by Mr. Lincoln, I was under 
 some sort of moral obligation to support all the meas- 
 ures taken by the States or by Congress during the 
 war. The following, respecting the opinion in the Gar- 
 land case, from the editor of the Daily Chronicle, of 
 Washington, to the Press, of Philadelphia, under date 
 of January 16, 1867, is moderate in its language com- 
 pared with what appeared in many other journals : 
 
 " Dred Scott Number Three has just been enacted in the Supreme 
 Court of the United States, Justice Field, of California, taking the 
 leading part as the representative of the majority decision against 
 the constitutionality of the iron-clad test-oath, to prevent traitors 
 from practicing before that high tribunal. I understand it takes the 
 ground that, as the law is a living or profession, the oath cannot be 
 insisted upon to take that living away, and that the President's par- 
 don restores all such rights. The country has been repeatedly ad- 
 monished that such a decision would be made about this time ; 
 nevertheless, a very considerable sensation was created when it was 
 officially enunciated. All these movements are but preparations for 
 a counter-revolution in the interest of slavery and treason." 
 "I learn that the opinion of Justice Field against the test-oath, like 
 that against military trials in time of war, goes outside of the imme- 
 diate case in issue, and indulges in a fierce onslaught upon test-oaths
 
 204 
 
 in general. If so, it, will only add another reason for such a re- 
 organization as will prevent the judges in the last resort from becom- 
 ing the mere agents of party, or the mere defenders of rebellion. 
 The adage constantly quoted, yet never out of fashion, that ' Whom 
 the Gods wish to destroy they first make mad,' is having a pointed 
 illustration in these successive judicial assaults upon the rights of 
 the people. Although the Supreme Judges hold for life, there is at 
 once precedent, necessity, and law for such a change in the present 
 system as will in a short time make it a fearless interpreter of repub- 
 lican institutions, instead of the defender and apologist of treason." 
 
 The decisions were announced on the 14th of Janu- 
 ary, 1867. On the 22d of the month, Mr. Boutwell, 
 from Massachusetts, introduced a bill into the House 
 far more stringent in its provisions than the act of 
 Congress just declared invalid. It was a pitiable exhi- 
 bition of hate and vengeance against all persons who 
 had been engaged, directly or indirectly, in the rebel- 
 lion. It declared that no person who had been thus 
 engaged should be permitted to act as an attorney and 
 counsellor in any courts of the United States ; and 
 made it the duty of the judges, when it was suggested 
 in open court, or when they had reason to believe that 
 any person was thus debarred, to enquire and ascer- 
 tain whether he had been so engaged, and if the court 
 was of opinion that such was the fact, he was to be 
 excluded. The court was thus, upon the suggestion of 
 any one, to be turned into a tribunal for the summary 
 trial of the accused without the ordinary safeguards 
 for the protection of his rights. In introducing it Mr. 
 Boutwell, referring to the decision of the Court, said 
 that
 
 205 
 
 " If there be five judges upon the bench of the highest tribunal 
 who have not that respect for themselves to enact rules, and to enforce 
 proper regulations, by which they will protect themselves from the 
 contamination of conspirators and traitors against the government of 
 the country, then the time has already arrived when the legislative 
 department of the government should exercise its power to declare 
 who shall be officers of the government in the administration of the 
 law in the courts of the Union ; and this bill is for that purpose." 
 
 And he called for the previous question upon it. In 
 subsequently advocating its passage, he said : 
 
 " I say here upon my responsibility, with reference to the recent 
 decision of the Supreme Court, that it is an offence to the dignity and 
 respectability of the nation that this tribunal, under the general au- 
 thority vested in it under the Constitution and laws, does not protect 
 itself from the contamination of rebels and traitors, until the rebel- 
 lion itself shall be suppressed and those men shall be restored to their 
 former rights as citizens of the country." 
 
 This language was used in 1867, and the last gun of 
 the war had been tired in May, 1865. It showed the 
 irritation of violent partisans of the North against the 
 Court because it gave no sanction to their vindictive 
 and prescriptive measures. 
 
 The bill was passed, under a suspension of the 
 rules, by a vote of 111 to 40.* 
 
 The Reconstruction Acts, so-called that is, "An act 
 to provide for the more efficient government of the rebel 
 
 * Congressional Globe, 39th Congress, 2d Session, Part I., pp. 646- 
 649. 
 
 When the bill reached the Senate it was referred to the Judiciary 
 Committee, and by them to a sub-committee of which Mr. Stewart, 
 Senator from Nevada, was chairman. He retained it until late in the 
 session, and upon his advice, the committee then recommended its 
 indefinite postponement. The bill was thus disposed of.
 
 206 
 
 States," of March 2d, 1867, and An act of the 23d of 
 the same month, supplementary to the former were 
 at once attacked, as may well be supposed, as invalid, 
 unconstitutional, and arbitrary measures of the govern- 
 ment ; and various steps were taken at an early day to 
 bring them to the test of judicial examination and 
 arrest their enforcement. Those acts divided the late 
 insurgent States, except Tennessee, into five military 
 districts, and placed them under military control to be 
 exercised until constitutions, containing various pro- 
 visions stated, were adopted and approved by Congress, 
 and the States declared to be entitled to representation 
 in that body. In the month of April following the 
 State of Georgia filed a bill in the Supreme Court, in- 
 voking the exercise of its original jurisdiction, against 
 Stanton, Secretary of War, Grant, General of the Army, 
 and Pope, Major-General, assigned to the command of 
 the Third Military District, consisting of the States of 
 Georgia, Florida, and Alabama ; to restrain those offi- 
 cers from carrying into effect the provisions of those 
 acts. The bill set forth the existence of the State of 
 Georgia as one of the States of the Union ; the civil 
 war in which she, with other States forming the Con- 
 federate States, had been engaged with the government 
 of the United States ; the surrender of the Confederate 
 armies in 1865, and her submission afterwards to the 
 Constitution and laws of the Union ; the withdrawal of
 
 207 
 
 the military government from Georgia by the President 
 as Commander-in-Chief of the Army of the United 
 States ; the re-organization of the civil government of 
 the State under his direction and with his sanction ; 
 and that the government thus re-organized was in the 
 full possession and enjoyment of all the rights and 
 privileges, executive, legislative, and judicial, belonging 
 to a State in the Union under the Constitution, with the 
 exception of a representation in the Senate and House 
 of Representatives. The bill alleged that the acts were 
 designed to overthrow and annul the existing govern- 
 ment of the State, and to erect another and a different 
 government in its place, unauthorized by the Constitu- 
 tion and in defiance of its guarantees ; that the de- 
 fendants, acting under orders of the President, were 
 about to set in motion a portion of the army to take 
 military possession of the State, subvert her govern- 
 ment, and subject her people to military rule. The 
 presentation of this bill and the argument on the mo- 
 tion of the Attorney-General to dismiss it produced 
 a good deal of hostile comment against the Judges, 
 which did not end when the motion was granted. It 
 was held that the bill called for judgment upon a 
 political question, which the Court had no jurisdiction 
 to entertain.* 
 
 Soon afterwards the validity of the Reconstruction 
 
 * 6th Wallace, 50.
 
 208 
 
 Acts was again presented in the celebrated McArdle 
 case, and in such a form that the decision of the ques- 
 tion could not well be avoided. In November, 1867, 
 McArdle had been arrested and held in custody by a 
 military commission organized in Mississippi under the 
 Reconstruction Acts, for trial upon charges of (1) dis- 
 turbance of the public peace ; (2) inciting to insurrec- 
 tion, disorder, and violence ; (8) libel ; and (4) impeding 
 reconstruction. He thereupon applied to the Circuit 
 Court of the United States for the District of Mississippi 
 for a writ of habeas corpus, in order that he might be 
 discharged from his alleged illegal imprisonment. The 
 writ was accordingly issued, but on the return of the 
 officer showing the authority under which the petitioner 
 was held, he was ordered to be remanded. From that 
 judgment he appealed to the Supreme Court. Of 
 course, if the Reconstruction Acts were invalid, the 
 petitioner could not be held, and he was entitled to his 
 discharge. The case excited great interest throughout 
 the country. Judge Sharkey and Robert J. Walker, of 
 Mississippi, David Dudley Field and Charles O'Connor, 
 of New York, and Jeremiah S. Black, of Pennsylvania, 
 appeared for the appellant ; and Matthew H. Carpen- 
 ter, of Wisconsin, Lyman Trumbull, of Illinois, and 
 Henry Staubery, the Attorney-General, appeared for 
 the other side. The hearing of it occupied four days, 
 and seldom has it been my fortune during my judicial
 
 209 
 
 life, now (1877) of nearly twenty years, to listen to 
 arguments equal in learning, ability, and eloquence. 
 The whole subject was exhausted. As the arguments 
 were widely published in the public journals, and read 
 throughout the country, they produced a profound 
 effect. The impression was general that the Kecon- 
 struction Acts could not be sustained ; that they were 
 revolutionary and destructive of a republican form of 
 government in the States, which the Constitution re- 
 quired the Federal government to guarantee. I speak 
 now merely of the general impression. I say nothing 
 of the fact, as the Court never expressed its opinion in 
 judgment. The argument was had on the 2d, 3d, 4th, 
 and 9th of March, 1868, and it ought to have been de- 
 cided in regular course of proceedings when it was 
 reached on the second subsequent consultation day, the 
 21st. The Judges had all formed their conclusions, 
 and no excuse was urged that more time was wanted 
 for examination. In the meantime an act was quietly 
 introduced into the House, and passed, repealing so 
 much of the law of February 5th, 1867, as authorized 
 an appeal to the Supreme Court from the judgment of 
 the Circuit Court on writs of habeas corpus, or the 
 exercise of jurisdiction on appeals already taken. The 
 President vetoed the bill, but Congress passed it over 
 his veto, and it became a law on the 27th of the 
 month.* Whilst it was pending in Congress the atten- 
 
 * 15 Stats, at Large, 44.
 
 210 
 
 tion of the Judges was called to it, and in consultation 
 on the 21st they postponed the decision of the case 
 until it should be disposed of. It was then that Mr. 
 Justice Grier wrote the following protest, which he 
 afterwards read in Court : 
 
 MCAKDL \ PROTEST OF MB. JUSTICE GKIEB. 
 
 This case was fully argued in the beginning of this month. It is a 
 case that involves the liberty and rights not only of the appellant, 
 but of millions of our fellow-citizens. The country and the parties 
 had a right to expect that it would receive the immediate and solemn 
 attention of this Court. By the postponement of the case we shall 
 subject ourselves, whether justly or unjustly, to the imputation that 
 we have evaded the performance of a duty imposed on us by the Con- 
 stitution, and waited for legislation to interpose to supersede our 
 action and relieve us from our responsibility. I am not willing to be 
 a partaker either of the eulogy or opprobrium that may follow ; and 
 can only say : 
 
 " Pudet haec opprobria nobis. 
 Et dici potuisse ; et non potuisse repelli." * 
 
 K. C. GBIEB. 
 
 I am of the same opinion with my brother Grier, and unite in his 
 protest. 
 
 FIELD, J. 
 
 After the passage of the repealing act, the case was 
 continued ; and at the ensuing term the appeal was 
 dismissed for want of jurisdiction. (7 Wall., 506.) 
 
 The record had been filed early in the term, and, as 
 the case involved the liberty of the citizen, it was 
 
 * " It fills us with shame that these reproaches can be uttered, and 
 cannot be repelled." The words are found in Ovid's Metamorphoses, 
 Book I., lines 758-9. In some editions the last word is printed refelli.
 
 211 
 
 advanced on the calendar on motion of the appellant. 
 From that time until its final disposition the Judges 
 were subjected to close observation, and most of them 
 to unfriendly comment. Their every action and word 
 were watched and canvassed as though national inter- 
 ests depended upon them. I was myself the subject 
 of a most extraordinary exhibition of feeling on the 
 part of members of the lower house of Congress, the 
 immediate cause of which was a circumstance calcu- 
 lated to provoke merriment. Towards the close of 
 January, 1868, I was invited to a dinner given by Mr. 
 Samuel Ward to the Secretary of the Treasury, Mr. 
 McCullough. It was understood that the dinner was to 
 be one of unusual excellence, and that gentlemen of 
 distinction in Congress would be present. As some of 
 the invited guests desired to go to New York on the 
 same evening, the hour was fixed at five. A distin- 
 guished party assembled at that time at the rooms of 
 Welcker, a noted restaurateur in Washington. Our 
 host, Mr. Ward, was a character deserving of special 
 notice. He had been a member of the noted firm of 
 bankers, Prime, W T ard & King, of New York ; and after- 
 wards represented our government in Brazil. He was 
 an accomplished linguist, familiar with several lan- 
 guages, ancient and modern. He was a profound 
 mathematician, and had read, without the assistance of 
 Bowditch's translation, Laplace's celebrated work, the
 
 212 
 
 " Mecanique Celeste." He passed most of his time 
 during the sessions of Congress in Washington, looking 
 after the interests of bankers and others in New York, 
 as they might be affected by pending legislation. 
 Though called " King of the Lobby," he had little of the 
 character of the lobbyist. He was a gentleman in man- 
 ners and education, and as such he always drew the 
 company of gentlemen to his entertainments. On the 
 occasion mentioned, some of the brightest spirits of 
 Congress were present. As we took our seats at the 
 table I noticed on the menu a choice collection of wines, 
 Johannisberg among others. The dinner was sumptu- 
 ous and admirably served. Our host saw that the ap- 
 propriate wine accompanied the successive courses. 
 As the dinner progressed, and the wine circulated, the 
 wit of the guests sparkled. Story and anecdote, laughter 
 and mirth abounded, and each guest seemed joyous and 
 happy. At about eight song had been added to other 
 manifestations of pleasure. I then concluded that I 
 had better retire. So I said to my host, that if he 
 would excuse me, I would seek the open air ; and I left. 
 Just at this moment Mr. Rodman M. Price, formerly 
 Governor of New Jersey, made his appearance and ex- 
 claimed, " How is this ? I was invited to dinner at 
 eight " producing his card of invitation. " Look 
 again," said Ward, " and you will see that your eight is 
 a five." And so it was, " But never mind," said Ward ;
 
 213 
 
 " the dinner is not over. Judge Field lias just left. 
 Take his seat." And so Price took my place. He had 
 been travelling in the Southern States, and had been 
 an observer of the proceedings of various State con- 
 ventions then in session to frame constitutions under 
 the Reconstruction Acts, which he termed " Congo Con- 
 ventions." To the amusement of the party he gave an 
 account of some curious scenes he had witnessed in 
 these conventions ; and wound up one or two of his 
 stories by expressing his opinion that the whole recon- 
 struction measures would soon be " smashed up " and 
 sent to " kingdom come " by the Supreme Court. The 
 loud mirth and the singing attracted the attention of 
 news-hunters for the Press item gatherers in the rooms 
 below. Unfortunately one of these gentlemen looked 
 into the banquet-hall just as Price had predicted the 
 fate of the reconstruction measures at the hands of the 
 Supreme Court. He instantly smelt news, and enquired 
 of one of the waiters the name of the gentleman who 
 had thus proclaimed the action of the Court. The 
 waiter quietly approached the seat of the Governor, 
 and, whilst he was looking in another direction, ab- 
 stracted the card near his plate which bore my name. 
 Here was, indeed, a grand item for a sensational para- 
 graph. Straightway the newsgatherer communicated it 
 to a newspaper in Washington, and it appeared under 
 an editorial notice. It was also telegraphed to a paper
 
 214 
 
 in Baltimore. But it was too good to be lost in the 
 columns of a newspaper. Mr. Scofield, a member of 
 Congress from Pennsylvania, on the 30th of January, 
 1868, asked and obtained unanimous consent of the 
 House to present the following preamble and resolution : 
 
 " WHEREAS it is editorially stated in the Evening Express, a news- 
 paper published in this city, on the afternoon of Wednesday, Janu- 
 ary 29, as follows : ' At a private gathering of gentlemen of both 
 political parties, one of the Justices of the Supreme Court spoke very 
 freely concerning the reconstruction measures of Congress, and de- 
 clared in the most positive terms that all those laws were unconstitu- 
 tional, and that the Court would be sure to pronounce them so. 
 Some of his friends near him suggested that it was quite indiscreet 
 to speak so positively ; when he at once repeated his views in a more 
 emphatic manner ; ' and whereas several cases under said reconstruc- 
 tion measures are now pending in the Supreme Court : Therefore, 
 be it 
 
 " Resolved, That the Committee on the Judiciary be directed to 
 enquire into the truth of the declarations therein contained, and re- 
 port whether the facts as ascertained constitute such a misdemeanor 
 in office as to require this House to present to the Senate articles of 
 impeachment against said Justice of the Supreme Court ; and that 
 the committee have power to send for persons and papers, and have 
 leave to report at any time." 
 
 An excited debate at once sprung up in the House, 
 and in the course of it I was stated to be the offending 
 Justice referred to. Thereupon the members for Cali- 
 fornia vouched for my loyalty during the war. Other 
 members wished to know whether an anonymous 
 article in a newspaper was to be considered sufficient 
 evidence to authorize a committee of the House to en- 
 quire into the private conversation of members of the
 
 215 
 
 Supreme Court. The mover of the resolution, Mr. 
 Scofield, declared that he knew nothing of the truth of 
 the statement in the paper, but deemed it sufficient 
 authority for his action, and moved the previous ques- 
 tion on the resolution. Several of the members pro- 
 tested against the resolution, declaring that it was 
 unworthy of the House to direct an investigation into 
 the conduct of a judicial officer upon a mere news- 
 paper statement. But it was of no use. The resolu- 
 tion was adopted by a vote of 97 to 57 34 not voting. 
 Some members, indeed, voted for its passage, stating 
 that it was due to myself that I should be vindicated 
 from the charge implied in the debate ; the force of 
 which reason I have never been able to appreciate. 
 
 The resolution was evidently intended to intimidate 
 me, and to act as a warning to all the Judges as to 
 what they might expect if they presumed to question 
 the wisdom or validity of the reconstruction measures 
 of Congress. What little effect it had on me my sub- 
 sequent course in the McArdle case probably showed 
 to the House. I had only one feeling for the move- 
 ment that of profound contempt ; and I believe that 
 a similar feeling was entertained by every right- 
 thinking person having any knowledge of the pro- 
 ceeding. 
 
 The facts of the case soon became generally known, 
 and created a good deal of merriment in Washington. 
 But all through the country the wildest stories were
 
 216 
 
 circulated. Communications of a sensational character 
 relating to the matter were published in the leading 
 journals. Here is one which appeared in the New 
 York Evening Post from its correspondent : 
 
 " It is the intention of the committee to examine the matter 
 thoroughly, and in view of this a large number of witnesses have 
 been summoned to appear on Friday. 
 
 " The friends of Justice Field are endeavoring to hush the matter 
 up, and, if possible, to avert an investigation ; but in this they will 
 be disappointed, for the members of the Judiciary Committee express 
 themselves firmly determined to sift the case, and will not hesitate 
 to report articles of impeachment against Justice Field if the state- 
 ments are proved." 
 
 Other papers called for the strictest scrutiny and the 
 presentation of articles of impeachment, representing 
 that I was terribly frightened by the threatened ex- 
 posure. So for some mouths I was amused reading 
 about my supposed terrible excitement in anticipation 
 of a threatened removal from office. But, as soon as 
 the author of the objectionable observations was ascer- 
 tained, the ridiculous nature of the subsequent pro- 
 ceedings became manifest. The Chairman of the 
 Judiciary Committee, Mr. Wilson, of Iowa, occupied 
 a seat next to me at Mr. Ward's dinner, and knew, of 
 course, that, so far as I was concerned, the whole story 
 was without foundation. And so he said to his asso- 
 ciates on the Judiciary Committee. 
 
 Near the close of the session on June 18th, 1868 
 the committee were discharged from the further con-
 
 217 
 
 sideration of the resolution, and it was laid on the 
 table a proceeding which was equivalent to its in- 
 definite postponement. 
 
 The amusing mistake which gave rise to this episode 
 in the lower house of Congress would be unworthy of 
 the notice I have taken of it, except that it illustrates 
 the virulent and vindictive spirit which occasionally 
 burst forth for some time after the close of the war, 
 and which, it is to be greatly regretted, is not yet 
 wholly extinguished.
 
 THE MOULIN VEXATION. 
 
 SOON after my appointment to the Bench of the U. S. 
 Supreme Court, I had a somewhat remarkable experi- 
 ence with a Frenchman by the name of Alfred Moulin. 
 It seems that this man, sometime in the year 1854 had 
 shipped several sacks of onions and potatoes on one 
 of the mail steamers, from San Francisco to Panama. 
 During the voyage the ship's store of fresh provisions 
 ran out, and the captain appropriated the vegetables, 
 and out of this appropriation originated a long and 
 bitter prosecution, or rather persecution, on the part 
 of Moulin, who proved to be not only one of the most 
 malignant, but one of the most persevering and ener- 
 getic men I have ever known. 
 
 Upon the return of the steamer from Panama to San 
 Francisco, Moulin presented himself at the steamship 
 company's office, and complained, as he properly 
 might, of the appropriation of his property, and de- 
 manded compensation. The company admitted his 
 claim and expressed a willingness to make him full 
 compensation ; but when it came to an adjustment of 
 it, Moulin preferred one so extravagant that it could 
 not be listened to. The property at the very most was 
 not worth more than one or two hundred dollars, but
 
 219 
 
 Moulin demanded thousands ; and when this was re- 
 fused, he threatened Messrs. Forbes and Babcock, the 
 agents of the company, with personal violence. These 
 threats he repeated from time to time for two or three 
 years, until at length becoming annoyed and alarmed 
 by his fierce manner, they applied to the police court 
 and had him bound over to keep the peace. 
 
 Notwithstanding he was thus put upon his good 
 behavior, Moulin kept continually making his appear- 
 ance and reiterating his demands at the steamship 
 company's office. Forbes and Babcock repeatedly 
 told him to go to a lawyer and commence suit for his 
 claim ; but Moulin refused to do so, saying that he 
 could attend to his own business as well as, and he 
 thought better than, any lawyer. At length, to get rid 
 of further annoyance, they told him he had better go 
 to New York and see Mr. Aspinwall, the owner of the 
 vessel, about the matter ; and, to enable him to do so, 
 gave him a free ticket over the entire route from San 
 Francisco to that city. 
 
 Upon arriving in New York, Moulin presented him- 
 self to Mr. Aspinwall and asked that his claim should 
 be allowed. Mr. Aspiuwall said that he knew nothing 
 about his claim and that he did not want to be both- 
 ered with it. Moulin still insisted, and Mr. Aspinwall 
 told him to go away. Moulin thereupon became ex- 
 cited, said he was determined to be paid, and that he
 
 220 
 
 would Dot be put off. He thereupon commenced a 
 regular system of annoyance. When Mr. Aspinwall 
 started to go home from his office, Moulin walked by 
 his side along the street. When Aspinwall got into an 
 omnibus, Moulin got in also ; when Aspinwall got out, 
 Moulin got out too. On the following morning, when 
 Aspinwall left his residence to go to his office, Moulin 
 was on hand, and taking his place, inarched along by 
 his side as before. If Aspinwall hailed an omnibus 
 and got in, Moulin got in at the same time. If Aspin- 
 wall got out and hailed a private carriage, Moulin got 
 out and hailed another carriage, and ordered the driver 
 to keep close to Mr. Aspinwall's carriage. In fact, 
 w 7 herever Aspinwall w r ent Moulin went also, and it 
 seemed as if nothing could tire him out or deter him 
 from his purpose. 
 
 At length Mr. Aspinwall, who had become nervous 
 from the man's actions, exclaimed, " My God, this man 
 is crazy ; he will kill me ;" and calling him into the 
 office, asked him what he wanted in thus following and 
 persecuting him. Moulin answered that he wanted 
 pay for his onions and potatoes. Aspinwall replied, 
 " But I don't know anything about your onions and 
 potatoes ; how should I ? Go back to my agents in 
 California, and they will do what is right. I will 
 direct them to do so." " But," said Moulin, " I have 
 no ticket to go to California ;" and thereupon Aspin-
 
 221 
 
 Avail gave him a free ticket back to San Francisco. 
 Moulin departed, and in due course of time again pre- 
 sented himself to Forbes and Babcock, in San Fran- 
 cisco. At the re-appearance of the man, they were 
 more annoyed than ever ; but finally managed to induce 
 him to commence a suit in the United States District 
 Court. When the case was called, by an understand- 
 ing between his lawyer and the lawyer of the steam- 
 ship company, judgment was allowed to be entered in 
 Moulin's favor for four hundred and three dollars and a 
 half, besides costs. The amount thus awarded greatly 
 exceeded the actual value of the onions and potatoes 
 appropriated. It was thought by the defendant that 
 on the payment of so large a sum, the whole matter 
 would be ended. But Moulin was very far from being 
 satisfied. He insisted that the judgment ought to have 
 been for three thousand and nine hundred dollars, be- 
 sides interest, swelling the amount to over six thousand 
 dollars, and applied to Judge Hoffman of the District 
 Court to set it aside. But as the judgment had been 
 rendered for the full value of the property taken, as 
 admitted by his lawyer, the Judge declined to inter- 
 fere. This was in 1861. 
 
 In 1863 I received my appointment as Judge of the 
 Supreme Court of the United States, and was assigned 
 to the circuit embracing the district of California. 
 Moulin then appealed to the Circuit Court from the
 
 222 
 
 judgment in his favor, and at the first term I held, a 
 motion was made to dismiss the appeal. I decided that 
 the appeal was taken too late, and dismissed it. Moulin 
 immediately went to Mr. Gorham, the clerk of the court, 
 for a copy of the papers, insisting that there was some- 
 thing wrong in the decision. Gorham asked him what 
 he meant, and he replied that I had no right to send 
 him out of court, and that there was something wrong 
 in the matter, but he could not tell exactly what it was. 
 At this insinuation, Gorham told him to leave the office, 
 and in such a tone, that he thought proper to go at 
 once and not stand upon the order of his going. The 
 following year, after Mr. Delos Lake had been appointed 
 United States District Attorney, Moulin went to his 
 office to complain of Gorham and myself ; but Lake, 
 after listening to his story, told him to go away. Two 
 or three years afterwards he again presented himself to 
 Lake and demanded that Judge Hoffman, Gorham, and 
 myself should be prosecuted. Lake drove him a sec- 
 ond time from his office ; and thereupon he went before 
 the United States Grand Jury and complained of all 
 four of us. As the grand jury, after listening to his 
 story for a while, dismissed him in disgust, be pre- 
 sented himself before their successors at a subsequent 
 term and complained of them. From the Federal 
 Court he proceeded to the State tribunals ; and first of 
 all he went to the County Court of San Francisco with
 
 223 
 
 a large bundle of papers and detailed his grievances 
 against the United States judges, clerks, district at- 
 torney and grand jury. Judge Stanley, who was then 
 county judge, after listening to Moulin's story, told the 
 bailiff to take possession of the papers, and when he 
 had done so, directed him to put them into the stove, 
 where they were soon burned to ashes. Moulin then 
 complained of Stanley. At the same time, one of the 
 city newspapers, the " Evening Bulletin," made some 
 comments upon his ridiculous and absurd proceedings, 
 and Moulin at once sued the editors. He also brought 
 suit against the District Judge, District Attorney and 
 his assistant, myself, the clerk of the court, the counsel 
 against him in the suit with the steamship company 
 and its agents, and numerous other parties who had 
 been connected with his various legal movements. And 
 whenever the United States Grand Jury met, he be- 
 sieged it with narratives of his imaginary grievances ; 
 and, when they declined to listen to him, he complained 
 of them. The courts soon became flooded with his 
 voluminous and accumulated complaints against judges, 
 clerks, attorneys, jurors, editors, and, in fact, everybody 
 who had any connection with him, however remote, 
 who refused to listen to them and accede to his de- 
 mands. By this course Moulin attracted a good deal 
 of attention, and an inquiry was suggested and made 
 as to whether he was compos mcntix. The parties who
 
 224 
 
 made the inquiry reported that he was not insane, but 
 was actuated by a fiendish malignity, a love of noto- 
 riety and the expectation of extorting money by black- 
 mail. For years indeed until September, 1871 he 
 continued to besiege and annoy the grand juries of the 
 United States courts with his- imaginary grievances, 
 until he became an intolerable nuisance. His exemp- 
 tion from punishment had emboldened him to apply to 
 the officers of the court the judges, clerks, and jurors 
 the most offensive and insulting language. Papers filled 
 with his billingsgate were scattered all through the 
 rooms of the court, on the desks of the judges, and on 
 the seats of jurors and spectators. It seemed impossi- 
 ble, under existing law, to punish him, for his case did 
 not seem to fall within the class of contempts for which 
 it provided. But in September of 1871 his insolence 
 carried him beyond the limits of impunity. In that 
 month he came to the United States Circuit Court, 
 where Judge Sawyer (then United States Circuit Judge) 
 and myself were sitting, and asked that the grand jury 
 which was about to be discharged might be detained ; 
 as he proposed to have us indicted for corruption, and 
 commenced reading a long string of vituperative and 
 incoherent charges of criminal conduct. The proceed- 
 ing was so outrageous that we could not overlook it. 
 We accordingly adjudged him guilty of contempt, fined 
 him five hundred dollars, and ordered him to be com-
 
 225 
 
 mitted to prison until the fine should be paid. "Whilst 
 in prison, and not long after his commitment, he was 
 informed that upon making a proper apology for his 
 conduct, he would he discharged. Instead, however, 
 of submitting to this course, he commenced writing 
 abusive articles to the newspapers, and sending peti- 
 tions to the Legislature charging us with arbitrary and 
 criminal conduct. His articles were of such a character 
 as to create quite erroneous impressions of our action. 
 The newspapers, not waiting to ascertain the facts, at 
 first took sides with him and assailed us. These at- 
 tacks, of course, had no effect upon the man's case ; 
 but, after he had remained in prison for several weeks, 
 on understanding that his health was infirm, and being 
 satisfied that he had been sufficiently punished, we 
 ordered his discharge.
 
 THE HASTINGS MALIGNITY. 
 
 WHILST the Moulin matter was in progress, an in- 
 dividual by the name of William Hastings was practis- 
 ing before the United States Courts. He had been, 
 as I am told, a sailor, and was then what is known as 
 a " sailor's lawyer." He was a typical specimen of 
 that species of the profession called, in police court 
 parlance, " shysters." He was always commencing 
 suits for sailors who had wrongs to redress, and par- 
 ticularly for steerage passengers who complained that 
 they had not had sufficient accommodations and proper 
 fare. He generally took their cases on speculation, 
 and succeeded very often in forcing large sums from 
 vessels libelled, as he was generally careful to bring his 
 actions so as to arrest the vessels on the eve of their 
 departure, when the payment of a few hundred dollars 
 was a much cheaper mode of proceeding for the cap- 
 tains than detention even for a few days. 
 
 But in one of his suits in the United States District 
 Court, in the year 1869, brought for a steerage passen- 
 ger against a vessel from Australia, the captain de- 
 clined to be blackmailed and defended himself. When 
 the matter came on for hearing, Hastings was found to 
 have no cause of action, and the case was thereupon
 
 227 
 
 dismissed by Judge Hoffman. Hastings then appealed 
 to the United States Circuit Court, and that court 
 affirmed the judgment of the District Court. This 
 happened as I was about leaving for Europe ; and I 
 left supposing that I had heard the last of the case. 
 
 During my absence, Hastings moved Judge Hoffman, 
 of the United States District Court, from whose de- 
 cision the appeal had been taken, to vacate the decision 
 of the United States Circuit Court. This, of course. 
 Judge Hoffman refused. Hastings thereupon made a 
 motion that my decision should be set aside, on the 
 ground that it was rendered by fraud and corruption. 
 When Judge Hoffman became aware of the charges 
 thus made, he was indignant and immediately cited 
 Hastings before him to show cause why he should not 
 be disbarred and punished for contempt. Hastings 
 refused to make any explanation or withdraw his offen- 
 sive language ; and thereupon Judge Hoffman expelled 
 him from the bar and ordered his name to be stricken 
 from the roll of attorneys. I was then absent in 
 Europe, and knew nothing whatever of the proceed- 
 ings. 
 
 About this time Mr. George W. Julian, a member of 
 Congress from Indiana, came to California and pre- 
 tended to be a great friend of the settlers. He ob- 
 tained the confidence of that large class of the commu- 
 nity, and especially of those who were known as the
 
 228 
 
 Suscol claimants. These were the men who, upon the 
 rejection by the United States Supreme Court of the 
 so-called Suscol grant, in Napa and Solano Counties, 
 rushed in and squatted upon the most valuable land in 
 the State. The title to this land liad previously been 
 considered as good as any in California ; it had been 
 held valid by the local tribunals, and also by the Board 
 of Laud Commissioners and by the District Court of 
 the United Stales. On the strength of these confirma- 
 tions the land had been divided into farms, upon 
 which, besides cultivated fields, there were numerous 
 orchards, vineyards, gardens, and two cities, each of 
 which had been the capital of the State. The farms 
 and city lots had been sold, in good faith, to pur- 
 chasers at full value. But when the question came 
 before the United States Supreme Court, and it ap- 
 peared that the grant had been made to General 
 Vallejo, in consideration of military services, and for 
 moneys advanced to the Mexican government, and not 
 for colonization purposes, it was held that there was 
 no authority under the Mexican laws for such a dispo- 
 sition of the public domain, and that the grant was, 
 therefore, invalid. At the same time Judge Grier filed 
 a dissenting opinion, in which he expressed a hope 
 that Congress would not allow those who had pur- 
 chased in good faith from Vallejo, and expended their 
 money in improving the land, to be deprived of it.
 
 229 
 
 Congress at once acted upon the suggestion thus made 
 and passed an act allowing the grantees of Vallejo to 
 purchase the lands occupied by them at a specified 
 sum per acre. Mr. John B. Frisbee, Vallejo's son-in- 
 law, who had bought and sold large quantities, took 
 immediate steps to secure himself and his grantees by 
 purchasing the lands and obtaining patents for them. 
 In the meanwhile the squatters had located themselves 
 all over the property ; most of them placing small 
 shanties on the land in the night-time, near the houses, 
 gardens, and vineyards, and on cultivated fields of the 
 Vallejo grantees. They then filed claims in the Land 
 Office as pre-emption ers, under the general land laws 
 of the United States, and insisted that, as their .settle- 
 ments were previous to the act of Congress, their 
 rights to the land were secure. In this view Julian, 
 when he came to California, encouraged them, and, as 
 was generally reported and believed, in consideration 
 of a portion of the land to be given to him in case of 
 success, undertook to defend their possessions.* 
 
 When Frisbie applied, under the provisions of the 
 act of Congress, for a patent to the land, a man named 
 Whitney, one of the squatters, protested against its 
 issue, on the ground that under the pre-emption laws 
 he, Whitney, having settled upon the land, had acquired 
 a vested right, of which Congress could not deprive 
 
 *See Exhibit L, in Appendix.
 
 230 
 
 him. But the Land Department took a different view 
 of the matter and issued the patent to Frisbie. Whit- 
 ney thereupon commenced a suit against Frisbie in the 
 Supreme Court of the District of Columbia to have him 
 declared a trustee of the land thus patented, and to 
 compel him, as such trustee, to execute a conveyance 
 to the complainant. The Supreme Court of the Dis- 
 trict of Columbia decided the case in favor of Whitney, 
 and ordered Frisbie to execute a conveyance ; but on 
 appeal to the Supreme Court the decision was reversed ; 
 and it was held that a pre-emptioner did not acquire 
 any vested right as against the United States by making 
 his settlement, nor until he had complied with all the 
 requirements of the law, including the payment of the 
 purchase-money ; and that until then Congress could 
 reserve the land from settlement, appropriate it to the 
 uses of the government, or make an}' other disposition 
 thereof which it pleased. The court, therefore, ad- 
 judged that the Suscol act was valid, that the purchasers 
 from Vallejo had the first right of entry, and that Fris- 
 bie was accordingly the owner of the land purchased 
 by him. Soon after the decision was rendered Julian 
 rose in his seat in the House of Representatives and 
 denounced it as a second Dred Scott decision, and ap- 
 plied to the members of the court remarks that were 
 anything but complimentary. It so happened that pre- 
 vious to this decision a similar suit had been decided
 
 231 
 
 in favor of Frisbie by the Supreme Court of California, 
 in which a very able and elaborate opinion was ren- 
 dered by the Chief Justice. I did not see the opinion 
 until long after it was delivered, and had nothing what- 
 ever to do with it ; but in some way or other, utterly 
 inexplicable to me, it was rumored that I had been con- 
 sulted by the Chief Justice with respect to that case, 
 and that the decision had been made through my in- 
 strumentality. With this absurd rumor Hastings, after 
 he had been disbarred by Judge Hoffman, went on to 
 Washington. There he joined Julian ; and after con- 
 cocting a long series of charges against Judge Hoffman 
 and myself, he placed them in Julian's hands, who took 
 charge of them with alacrity. The two worthies were 
 now to have their vengeance Hastings for his supposed 
 personal grievances and Julian for the Suscol decision 
 which injured his pocket. 
 
 These charges on being signed by Hastings were 
 presented to Congress by Julian ; and at his request 
 they were referred to the Judiciary Committee. That 
 committee investigated them, considered the whole af- 
 fair a farce, and paid no further attention to it. But 
 the next year Mr. Holman, of Indiana, who succeeded 
 Julian, the latter having failed of a re-election, re-intro- 
 duced Hastings' memorial at Julian's request and had 
 it referred to the Judiciary Committee, with express 
 instructions to report upon it. Hastings appeared for
 
 232 
 
 the second time before that committee and presented a 
 long array of denunciatory statements, in which Judge 
 Hoffman, myself, and others were charged with all sorts 
 of misdemeanors. The committee permitted him to go 
 to any length he pleased, untrammelled by any rules of 
 evidence ; and he availed himself of the license to the 
 fullest extent. There was hardly an angry word that 
 had been spoken by a disappointed or malicious litigant 
 against whom we had ever decided, that Hastings did 
 not rake up and reproduce ; and there was hardly an 
 epithet or a term of villification which he did not in 
 some manner or other manage to Jug into his wholesale 
 charges. As a specimen of his incoherent and wild 
 ravings, he charged that " the affairs of the federal 
 courts for the District of California were managed prin- 
 cipally in the interests of foreign capitalists and their 
 co-conspirators, and that the judges thereof appeared 
 to be under the control of said foreign capitalists, and 
 that the said courts and the process thereof were being 
 used or abused to deprive the government of the United 
 States and the citizens thereof of the property that le- 
 gally and equitably belonged to them respectively, and 
 to transfer the same, in violation of law and through a 
 perversion of public justice, to said foreign capitalists 
 and their confederates and co-conspirators, and that 
 nearly the whole of the sovereign powers of the State 
 were under the control and management of said foreign
 
 233 
 
 capitalists and their confederates and co-conspirators ; " 
 and he alleged that he " was aware of the existence in 
 the United States of a well-organized, oath-bound band 
 of confederated public officials who are in league with 
 the subjects of foreign powers, and who conspire against 
 the peace, prosperity, and best interests of the United 
 States, and who prey upon and plunder the government 
 of the United States and the city and county govern- 
 ments thereof, and also upon private citizens, and who 
 now are carrying into practice gigantic schemes of 
 plunder through fraud, usurpation, and other villainy, 
 in order to enrich themselves, bankrupt the nation, and 
 destroy our government, and that their power is so 
 great that they can and do obstruct the administration 
 of public justice, corrupt its fountains, and paralyze to 
 some extent the sovereign powers of the government of 
 the United States and the people thereof." The Judi- 
 ciary Committee after having patiently listened to this 
 rigmarole, absurd and ludicrous as it was, unanimously 
 reported that Hastings' memorial should be laid upon 
 the table and the committee discharged from any fur- 
 ther consideration of the subject. The House adopted 
 the report, and, so far as Congress was concerned, 
 there the matter dropped. But in the meanwhile 
 it had been telegraphed all over the country that 
 articles of impeachment were pending against the 
 judges, and sensational newspaper articles appeared in
 
 234 
 
 different parts of the country. Some expressed regret 
 that the conduct of the judges had been of a character 
 to necessitate such proceedings. Others said it was 
 not to be wondered at that the judicial ermine should 
 be soiled in a country of such loose morals as Califor- 
 nia. Still others thought it no more than proper to 
 impeach a few of the judges, in order to teach the re- 
 mainder of them a salutary lesson. These articles were 
 paraded in large type and with the most sensational 
 headings. 
 
 When the action of the House on the memorial was 
 announced, Hastings and Julian became furious. It 
 then appeared that the only charge which had made 
 any impression upon the minds of the committee was 
 that relating to Moulin, the Frenchman. Three, in- 
 deed, of the members, (Messrs. Voorhees, of Indiana, 
 Potter, of New York, and Peters, of Maine,) said it was 
 a shame and disgrace that such ridiculous and mon- 
 strous twaddle should be listened to for a moment ; 
 but a majority considered it their duty, under the order 
 of reference, to hear the matter patiently. They had, 
 therefore, allowed Hastings the widest latitude and 
 listened to everything that his malice could invent. 
 
 As a comical conclusion to these extraordinary pro- 
 ceedings, Hastings commenced a suit in the U. S. Cir- 
 cuit Court for the State of New York against the Judi- 
 ciary Committee for dismissing his memorial. Being
 
 235 
 
 a non-resident he was required by that court to give 
 security for costs, and as that was not given the action 
 was dismissed. This result was so distasteful to him 
 that he presented a petition to the Chief Justice of the 
 U. S. Supreme Court, stating that Judge Hunt had too 
 much to do with churches, banks, and rings, and asking 
 that some other judge might be appointed to hold the 
 court. The petition was regarded as unique in its 
 character, and caused a great deal of merriment. But 
 the Chief Justice sent it back, with an answer that he 
 had no jurisdiction of the matter. After this Hastings 
 took up his residence in New York, and at different 
 times worried the judges there by suits against them 
 Judge Blatchford, among others generally charging 
 in his peculiar way a conspiracy between them and 
 others to injure him and the rest of mankind. 
 
 The above was written upon my dictation in the 
 summer of 1877. In November of that year Hastings 
 again appeared at Washington and applied to a Sena- 
 tor to move his admission to the Supreme Court. The 
 Senator inquired if he was acquainted with any of the 
 Judges, and was informed in reply of that gentleman's 
 proceedings against myself; whereupon the Senator 
 declined to make the motion. Hastings then presented 
 to the House of Representatives a petition to be re- 
 lieved from his allegiance as a citizen of the United
 
 236 
 
 States. As illustrative of the demented character of 
 the man's brain, some portions of the petition are 
 given. After setting forth his admission to the Su- 
 preme Court of California as an attorney and coun- 
 sellor-at-law, and his taking the oath then required, he 
 proceeded to state that on the 6th of November, 1877, 
 he entered the chamber of the Supreme Court of the 
 United States to apply for admission as an attorney 
 and counsellor of that court ; that he was introduced 
 by a friend to a Senator, with a request that the Sena- 
 tor would move his admission ; that the Senator asked 
 him if he knew a certain Justice of the Supreme Court, 
 and upon being informed that he did, and that his re- 
 lations with said Justice were not friendly, as he had 
 endeavored to get him impeached, and that the dam- 
 aging evidence he produced against such Justice had 
 been secreted and covered up by the Judiciary Com- 
 mittee of the House, whom he had accordingly sued, 
 the petition continued as follows : " Whereupon said 
 Senator replied, I have a cause to argue as counsel 
 before this court this morning, and I would, therefore, 
 prefer not to move your admission. Said Senator then 
 and there arose and took his seat in front of the bench 
 of said court ; and your petitioner remained in said U. 
 S. Supreme Court until one application for admission 
 was made and granted on motion of one S. P. Nash, 
 of Tweed-Sweeney Ring settlement fame [thereby
 
 237 
 
 demonstrating poetic injustice], and until the Chief 
 Justice of the United States shadow not shade of 
 Selden called the first case on the docket for that 
 day, and a moment or two after the argument of said 
 cause commenced, your petitioner arose and left the 
 court-room of said United States Supreme Court, (to 
 which the genius of a Marshall and a Story has bid a 
 long farewell,) and as your petitioner journeyed to- 
 wards his hotel, your petitioner soliloquized thus : 
 
 ' Senator W is evidently afraid of Justice , 
 
 with whom I have had a difficulty, and he possesses 
 neither the manly independence of a freeman, nor 
 moral nor physical courage, and he is, therefore, an 
 improper person (possibly infamous) for such a high 
 and responsible position, and my rights *as a citizen 
 are not safe in the keeping of such a poltroon and 
 conniving attorney, and he is probably disqualified to 
 hold the high and responsible office of Senator of the 
 United States that he improperly accepts fees from 
 clients, possibly in part for the influence which his ex- 
 alted position as Senator gives him as counsel for 
 parties having cases before the U. S. Supreme Court, 
 and which practice is wholly inconsistent with the 
 faithful, impartial performance of his sworn duty as 
 such Senator ; and by thus accepting fees he has 
 placed himself in a position where his personal inter- 
 ests conflict with the obligations of his oath of office ;
 
 238 
 
 while the Justices of the Supreme Court are, I con- 
 ceive, derelict in the performance of their sworn duty, 
 for permitting such practices to be inaugurated and 
 continued.' 
 
 " Cowardice taints the character with moral turpi- 
 tude ; and I believe the facts related above show that 
 said Senator is a coward ; at all events he lacks moral 
 courage, and is afraid of the Justices of the United 
 States Supreme Court, whose judge the Senator-attor- 
 ney of the court becomes in case of trial of any of 
 said Justices by impeachment ; surely this is one un- 
 clean body incestuously holding illicit commerce with 
 another unclean body, and both become interchange- 
 ably soiled, and too impure to touch the spotless robes 
 of the judicial ermine ; still, as this government has 
 ceased to be a government of law and justice, and has 
 become a foul and unclean machine of corrupt com- 
 promises, carried on by colluding and conniving shys- 
 ter bartering attorneys, the practice of said Supreme 
 Court of the United States, above referred to, is strictly 
 in accord therewith.' 
 
 The petition continued in a similar strain, and wound 
 up by asking the passage of a concurrent resolution of 
 the Houses releasing him from his allegiance to the 
 United States !
 
 APPENDIX.
 
 EXHIBIT A. 
 
 [From the New York Evening Post of November 13th, 1849. J 
 
 Among the passengers leaving in the Crescent City to-day is 
 Stephen J. Field, Esq., of this city, brother and late law-partner of 
 D. D. Field, Esq., one of the Commissioners of the Code of Practice. 
 
 Mr. Field is on his way to San Francisco, where he proposes to 
 practise his profession, and take up his future residence. If he 
 should realize either the hopes or the expectations of the numerous 
 friends he leaves behind, he will achieve an early and desirable dis- 
 tinction in the promising laud of his adoption. 
 
 EXHIBIT B. 
 
 Mr. William H. Parks, of Marysville, has always asserted that my 
 election as Alcalde was owing to a wager for a dinner made by him 
 with a friend. He was at the time engaged in transporting goods to 
 the mines from the landing at Nye's Ranch on the Yuba River, called 
 Yubaville, and arriving at the latter place whilst the election was 
 going on he made the wager that I would be elected, and voted all 
 his teamsters, numbering eleven, for me. As I had a majority of 
 only nine, he claims that he had the honor of giving me my first 
 office. The claim must be allowed, unless the person with whom he 
 wagered offset this number, or at least some of the teamsters, by 
 votes for my opponent. 
 
 After the election Mr. Parks introduced himself to me, and from 
 that time to this he has been a warm and steadfast friend. He after- 
 wards settled in Sutter County, but now resides in Marysville. He 
 has amassed a handsome fortune, and takes an interest in all public 
 affairs. He has represented his county as a Senator in the Legisla- 
 ture of the State. He is a gentleman of high character and has the 
 confidence and respect of the community.
 
 242 
 
 My opponent for the office of Alcalde was Mr. C. B. Dodsoii, from 
 Illinois. I afterwards met him only once or twice in California, and 
 knew little of his history. But when I was a member of the Elec- 
 toral Commission, in February of this year (1877), a copy of a paper 
 published in Geneva, Illinois the Republican, of the 10th of that 
 month was sent to me, containing the following account of him, 
 from which it appears that he, too, has lived a life of strange vicissi- 
 tudes and stirring adventure : 
 
 REMINISCENCES. 
 
 An account of the various positions of the selected arbitrators says 
 that in 1850 Judge Field was elected Alcalde and Recorder of Marys- 
 ville, California. Judge Field's competitor for the position was our 
 townsman, Capt. C. B. Dodson, who was defeated by nine votes. 
 As there is no doubt that had the Captain gained the position of 
 Alcalde he would have risen as his competitor did, to various judicial 
 positions, and finally to the arbitrator's seat, these nine votes must 
 be considered as the only reasons why Geneva does not number one 
 of her citizens among the arbitrators for the highest of the world's 
 official positions. Among the votes polled for our friend Dodsou on 
 that occasion was that of Macaulay, one of the family of the famous 
 historian of England's greatest days and proudest times. 
 
 The Captain has been a natural and inveterate pioneer, and few 
 citizens of the State have figured more prominently or proudly in its 
 early annals. In 1834, forty-three years ago, Mr. Dodson came to 
 dispute with the aboriginal Pottawatomies the possession of the Fox 
 River valley. White faces were rare in those days, and scarcely a 
 squatter's cabin rose among the Indian lodges. The Captain built 
 the first saw-mill on the river, and he and Col. Lyon were the hardy 
 spirits about whom the early settlers clustered for encouragement 
 and advice. 
 
 In 1837 he was employed by the government to superintend the 
 removal of the Indians to Council Bluffs and Kansas, and their suc- 
 cessful emigration, as well as their uniform good will toward the 
 whites prior to their removal, were largely due to his sagacity and 
 influence among them. 
 
 When Capt. Sutter first found the yellow gold gleaming in the dirt 
 of his mill-race, and all the world joined in a mad rush to the mines, 
 the venturesome spirit of Capt. Dodson led him to press forward with 
 the first, and he was a " forty-niner," that pride of the old Califor-
 
 243 
 
 nians. In that surging crowd of wild adventurers from the ends of 
 the earth, the Captain was, as he has been among the early pioneers 
 of Illinois, a directing and controlling spirit. Though he failed in 
 his judicial aspirations for Alcalde, and Judge Field succeeded, yet 
 his continued exertions and marked influence caused him to leave a 
 name richly associated with all the early history of Marysville and 
 vicinity. 
 
 When the war broke out, Mr. Dodson was among the very first to 
 proffer his services, and he raised the first company of cavalry which 
 went to the front from Kane County. 
 
 The Captain is not an old man yet in health and vigor, although an 
 ' old settler " in varied and numerous experiences. His name is 
 marked in unmistakable characters on every prominent event of the 
 early settlement of Northern Illinois, and blended and associated 
 with all the pioneer way-marks of California. A friend and com- 
 panion of all the great Illinoians of the generation which is now 
 passing into old age, he has not yet ceased to be a spirit actively 
 mingling in all the affairs of the present times. But we only started 
 to tell of his contest with Field, not to write an eulogium on the 
 Captain, for here where he is known it is better pronounced in his 
 record, which lies in the memories of his friends. 
 
 EXHIBIT C. 
 
 Oath of Office as Alcalde. 
 
 STATE OF CALIFORNIA,) 
 SACRAMENTO DISTRICT. ) 
 
 SACRAMENTO CITY, January 2'2d, 1850. 
 
 Personally appeared before me Stephen J. Field, First Alcalde of 
 Yubaville, in the District of Sacramento, and made oath that he would 
 discharge the duties of the office of First Alcalde as aforesaid with 
 faithfulness and fidelity to the best of his ability, and that he would 
 support the Constitution of the United States and the constitution of 
 the State of California. 
 
 R. A. WILSON. 
 Judge of 1st Instance, Sacramento District.
 
 244 
 EXHIBIT D. 
 
 The following are the orders of the District Court mentioned in the 
 Narrative. 
 
 Ordei' imprisoning and fining Mr Field for alleged contempt of court. 
 
 DISTBICT COURT, ) 
 
 EIGHTH JUDICIAL DISTRICT, - 
 COUNTY OF YUBA. ) 
 
 At a term of said District Court held at Marysville, county of Yuba, 
 on the 7th of June, 1850, present, Hon. Wm. R. Turner, Judge, the 
 following proceeding was had : 
 
 Ordered, That Stephen J. Field be imprisoned forty-eight hours 
 and fined five hundred dollars for contempt of court. 
 
 Order expelling Messrs. Field, Goodwin, and Mulfordfrom the bar. 
 
 DISTRICT COURT, ) 
 
 EIGHTH JUDICIAL DISTRICT, > 
 COUNTY OF YUBA. ' ) 
 
 At a term of said court held at Marysville, on the 10th of June, 
 1850, present, Hon. William R. Turner. Judge, the following pro- 
 ceeding was had : 
 
 Whereas, Messrs. Field. Goodwin, and Mulford, having set at defi- 
 ance the authority of this court, and having vilified the court and 
 denounced its proceedings, the said Field, Goodwin, and Mulford are 
 hereby, by order of the court, expelled from the bar of the same. 
 
 Order imprisoning and fining Judge Haun for releasing Mr. Field from 
 imprisonment upon a writ of habeas corpus, and directing that the 
 order to imprison Mr. Field be enforced. 
 
 DISTRICT COURT, ) 
 
 EIGHTH JUDICIAL DISTRICT, - 
 COUNTY OF YUBA. ) 
 
 At a term of said District Court held at Marysville. county of Yuba, 
 on the 10th of June, 1850, present, Hon. Wm. R. Turner, Judge, the 
 following proceeding was had : 
 
 Whereas, Judge Haun having, in defiance of the authority of this
 
 245 
 
 court, and in violation of the law, obstructed and prevented the ex- 
 ecution of an order of this court to imprison Mr. Field for a contempt 
 offered to the court while in session, by releasing the said Field from 
 the custody of the sheriff ; the said Haun is hereby sentenced to 
 forty-eight hours' imprisonment and to pay a fine of fifty dollars. 
 
 The sheriff will enforce the order of the court to imprison Mr. 
 Field for forty-eight hours. 
 
 EXHIBIT E. 
 
 Record of Proceedings in the Court of Sessions, mentioned in the 
 Narrative. 
 
 Court of Sessions of Yuba County. 
 
 Met at Marysville, June 10th, A. D. 1850, at 10 o'clock A. M., and 
 was duly opened by B. B. Buchanan, sheriff of the county. 
 
 Present, Hon. H. P. Haun, County Judge, F. W. Barnard, Asso- 
 ciate Justice. 
 
 IN THE MATTEK OF ) . 
 
 STEPHEN J. FIELD./ A PP hcatlon for Habeas Corpus. 
 
 On the reading of the petition of the applicant, duly authenticated 
 by his oath, it is ordered that the prayer of the petitioner be granted, 
 and that R. B. Buchanan, sheriff of Yuba County, or any person act- 
 ing under him and having said Field in custody, bring the said Field 
 into court forthwith, to be dealt with according to law. 
 
 In pursuance of the above order, the said Field came into court, 
 and proceeded to address the court on the matter touching the cause 
 of his confinement, and while making his remarks, and previous to 
 the close thereof, and while the court was in session, R. B. Buchanan, 
 sheriff of Yuba County, at the head of fifty men, entered the court, 
 and stated that he came there for the purpose and with the intent to 
 seize H. P. Haun, County Judge as aforesaid, and place him in close 
 confinement, under and by virtue of a certain order or decree made 
 by one William R. Turner, Judge of the Eighth Judicial District of 
 the State of California. 
 
 The court informed the said Sheriff Buchanan that it was holding 
 its regular term, aud that order must be preserved while it was in ses-
 
 246 
 
 sion. The said Sheriff Buchanan then left the court, whereupon the 
 business before the court was agaiu resumed. 
 
 At the expiration of some five minutes, the said R. B. Buchanan, as 
 aforesaid, re-entered the court, and stated that the said H. P. Haun, 
 County Judge as aforesaid, must leave the court and go with him, as 
 he was peremptorily ordered by William R. Turner, the Judge as 
 aforesaid, to arrest the said H. P. Haun and keep him in close con- 
 finement for the space of forty-eight hours. 
 
 R. B. Buchanan was here notified that he was violating the laws of 
 the land, and that he would be fined if he persisted in disturbing the 
 session of the court. The reply of said Buchanan was "that he could 
 not be trifled with," and immediately seized the said H. P. Haun. 
 County Judge as aforesaid, by the arm, and attempted to drag him 
 from the room where the court was in session. Whereupon a fine 
 of two hundred dollars was then and there imposed upon the said R. 
 B. Buchanan for a contempt of court. 
 
 The said R. B. Buchanan then and there called upon the fifty persons 
 ordered out by him as his posse to take hold of the said H. P. Haun, 
 and take him from the court. But the persons in attendance, con- 
 ceiving the order to arrest the Hon. H. P. Haun to be illegal and un- 
 justifiable, refused to assist the sheriff in the execution of his illegal 
 order. The sheriff then retired, and the court was then adjourned to 
 3 o'clock P. M. 
 
 Court met pursuant to adjotirnment. Court adjourned to to-morrow 
 morning at 9 o'clock. 
 
 I hereby certify the above to be a true transcript of the record of 
 the proceedings of the Court of Sessions on the 10th day of June, A. 
 D. 1850. Witness E. D. Wheeler, clerk of the Court of Sessions of 
 Yuba County, California, with the seal of the court affixed, this 26th 
 day of December, A. D. 1850. 
 
 [L. &.] E. D. WHEELEB, Clerk. 
 
 The records of the District Court show the following entry made 
 the same day, June 10, 1850 : 
 
 " A communication was received from H. P. Haun, stating 'that if 
 he was guilty of obstructing the order of the court in releasing Field, 
 he did it ignorantly, not intending any contempt by so doing ' 
 Whereupon the court ordered that H. P. Haun be released from con- 
 finement, and his fine be remitted."
 
 247 
 
 The following is taken from the deposition of Mr. Wheeler, the 
 clerk of the court, before the committee of the Assembly to whom 
 was referred the petition of citizens of Yuba County for the impeach- 
 ment of Judge Turner : 
 
 MAECH 26th, 1851. 
 
 E. D. Wheeler," being duly sworn, says : I reside in Marysville, 
 Yuba County ; I am the county clerk of that county : I know Win. 
 R. Turner, judge of the Eighth Judicial District ; I am clerk of his 
 court in and for Yuba County. 
 
 Question. Were you in court on the 7th day of June last, when 
 Stephen J. Field was fined by Judge Turner and ordered to be im- 
 prisoned? If so, please to state what took place at that time in 
 court. 
 
 Ans. I was in court on the 7th day of June last. A motion was 
 made in a suit (Cameron against Sutter) in which Stephen J. Field 
 was counsel for the defendant, upon which motion a discussion arose 
 among the members of the bar employed in the case. 
 
 During the remarks of Mr. Field, Judge Turner said that it was 
 useless to say more, as the mind of the court was made up. I think 
 Mr. Field then offered to read from the Statutes, whereupon Judge 
 Turner ordered him to take his seat, and that a fine of two hundred 
 dollars be entered up against him, and that he be imprisoned eight 
 hours or thereabout. Mr. Field replied, '' Very well." Then Judge 
 Turner said, fine him three hundred dollars and imprison him I do 
 not remember the precise time but think it was twenty-four hours. 
 Mr. Field made some quiet reply I think it was "Very well;" where- 
 upon the fine was increased to four hundred dollars and the imprison- 
 ment made something longer. I think Mr. Field said something about 
 his rights at the bar, and I think be appealed to the members of the 
 bar. Then Judge Turner became quite furious, and in loud and 
 boisterous language ordered the fine to be five hundred dollars and 
 the imprisonment to be forty-eight hours, and ordered the sheriff to 
 take him out of court. He was boisterous, and several times ordered 
 the sheriff to take him out ; to summon a posse ; to summon the 
 court, and he would turn him out. 
 
 Q. Did you see anything disrespectful in the manner, or hear any- 
 thing disrespectful in the language of Mr. Field which occasioned the 
 fine and imprisonment ? 
 
 Mr. Wheeler is at present (1877) District Judge of the Nineteenth District of the 
 State.
 
 248 
 
 Ans. I did not. 
 
 Q. Did Mr. Field, in consequence of the order of Judge Turner, 
 leave the court-room in company with the deputy sheriff ? 
 
 Ans. He left in company with the deputy sheriff, and I suppose it 
 was in consequence of the order of Judge Turner. 
 
 Q. Was the trial of Cameron against Sutter proceeded with after 
 Mr. Field left ? 
 
 Ans. It was. 
 
 Q. Who took the place of Mr. Field after he left ? 
 
 Ans. John V. Berry, Esq. 
 
 Q. Were you in court on the 10th day of June ? 
 
 Ans. I was. * 
 
 Q. Were any members of the bar expelled by Judge Turner on that 
 day ? And if so, please state who they were and whether they were 
 in court at the time, and whether or not the order was made upon a 
 hearing of the parties. 
 
 Ans. There were three persons expelled, to wit : S. J. Field, S. B. 
 Mulford, and J. O. Goodwin. I do not recollect whether the parties 
 were all in court at the time. I am sure that Mr. Goodwin was in 
 court. There was no hearing had to my knowledge. 
 
 Q. After the order imprisoning Mr. Field, on the 7th of June and 
 before the 10th, were any steps taken by Mr. Field to be discharged 
 on a writ of habeas corpus ? 
 
 Ans. There were, and Mr. I'ield was discharged by the Judge of the 
 County of Yuba. 
 
 Q. What was done by Judge Turner with Judge Haun. the County 
 Judge, in consequence of his discharging Mr. Field from imprison- 
 ment on the writ of habeas corpus ? 
 
 Ans. Judge Haun was fined fifty dollars by Judge Turner and 
 ordered to be imprisoned forty-eight hours. This was on the 10th 
 of June, at the same time that the other gentlemen were expelled 
 from the bar. 
 
 Q. Did the Court of Sessions of Yuba County hold a session on that 
 day? 
 
 Ans. Yes. 
 
 Q. Did you continue in the District Court or did you go to the 
 Court of Sessions ? 
 
 Ans. I continued in the District Court. 
 
 Q. Who made up the records of the Court of Sessions on that day ? 
 
 Ans. F. W. Barnard, one of the associate justices of the court.
 
 249 
 
 Q. Look at this paper and state whether it is a copy of the proceed- 
 ings of that court on the 10th of June, certified by you as the clerk. 
 
 Ans. It is. * 
 
 Q. Whilst you were in the District Court on that day did the sheriff 
 of Yuba County give any information to the District Court about the 
 Court of Sessions being in session ? 
 
 Ans. He did. 
 
 Q. Did Judge Turner give any directions to the sheriff to arrest 
 Judge Haun, notwithstanding he was holding his court ? 
 
 Ans He did, and told the sheriff to put him in irons, if necessary 
 to handcuff him. 
 
 Q. Were any directions given about a posse ? 
 
 Ans. There were. He told the sheriff to summon a posse forth- 
 with and enforce the orders of the court. He addressed two or three 
 professional gamblers present and asked them if they would not join 
 the posse to arrest Judge Hauu . Then the excitement became so 
 great that several of the members of the bar requested him to ad- 
 journ the court ; but before the court adjourned the Judge asked 
 several of the members of the bar to join the posse ; but they made 
 excuses, whereupon the court adjourned. 
 
 Q. Was the order entered on the records of the District Court, ex- 
 pelling Messrs. Field, Goodwin, and Mulford ? 
 
 Ans It was. 
 
 Q. What day was that order entered ? 
 
 Ans. On the 10th day of June. 
 
 Q. Has that order ever been vacated on the records of the District 
 Court ? 
 
 Ans. So far as it relates to Mr. Goodwin it has been vacated, but 
 no further. 
 
 Q. Has Mr. Field or Mr. Mulford ever been restored to the bar by 
 the District Court since the order of expulsion on the 10th of June ? 
 
 Ans. No. 
 
 EXHIBIT F. 
 
 The following is the petition to the Governor mentioned in the 
 Narrative. Of course the Governor possessed no power to suspend a 
 judicial officer from office. But at the time the petition was signed 
 
 * The record of the proceedings ia printed above.
 
 and sent to him the State had not been admitted into the Union, nnd 
 Congress had not approved of the action of the people in calling a 
 convention and framing a constitution : and it appeared very doubt- 
 ful whether such approval would be given. There was a general 
 impression that in the meantime the Governor could exercise the 
 power to remove and suspend officers of the State which the former 
 governors under Mexico possessed, or were supposed to possess. The 
 petition, however, is none the less significant, as the expression of 
 the opinions of the people of Marysville upon the conduct of Judge 
 Turner. 
 
 To His Excellency Peter H. Burnett, Oovernor of California. 
 
 The undersigned citizens of Marysville, Yuba County, in this State, 
 respectfully request that Your Excellency would suspend William R. 
 Turner, District Judge of the Eighth Judicial District of this State, 
 from his judicial office. 
 
 1st. Because the said William R. Turner is grossly incompetent to 
 discharge the duties of a judge, he having exhibited during his judi- 
 cial career, and particularly during the session of the District Court 
 held at Marysville, in Yuba County, during the present month, igno- 
 rance of the most elementary principles of law, such as to excite the 
 derision of counsel, jurors, witnesses, and persons in attendance upon 
 the court. 
 
 2d. Because the said William R. Turner has, during the session of 
 the District Court held at Marysville, exercised the power vested in 
 him as judge, in an arbitrary and tyrannical manner, outraging the 
 rights of counsel, clients, and witnesses. 
 
 3d. Because the said William R. Turner has refused to bear coun- 
 sel on questions of vital importance to the suits of their clients, and 
 in one instance fined and imprisoned counsel for stating in the most 
 respectful manner and in the most respectful language, that he ap- 
 pealed from an order made by him, though such is an acknowledged 
 right of all counsel, and a right given by statute under pretence that 
 counsel by so doing was guilty of a contempt. 
 
 4th. Because the said Wm. R. Turner has trampled upon and 
 spurned with contempt the privilege of the writ of habeas corpus 
 which is guaranteed to all citizens by the Constitution of the United 
 States and by the constitution of the State of California, and fined and 
 imprisoned the Hon. Henry P. Haun, Judge of Yuba County, for the 
 exercise by him of a judicial act in discharging a gentleman from 
 arrest under a writ of habeas corpus.
 
 251 
 
 5th. Because the said William E. Turner, to carry out his arbitrary 
 order to fine and imprison the Hon. Henry P. Haun, Judge of Yuba 
 County, for the exercise of a judicial act, ordered the sheriff of said 
 county with a posse to invade the Court of Sessions of Yuba County 
 while the said court was sitting, and over which the said Haun pre- 
 sided, and to carry off by force the said county judge and put him in 
 close custody. 
 
 6th. Because the said William E. Turner ordered the sheriff of 
 Yuba County, with a posse, to force Mr. S. J. Field from the Court 
 of Sessions of said county whilst said Field was before said court on 
 a writ of habeas corpus arguing for his discharge, and the said Wil- 
 liam E. Turner was informed that the Court of Sessions forbid the 
 sheriff from disturbing the proceedings of the court on the hearing of 
 said writ. 
 
 7th. Because the said William E. Turner has, in the exercise of 
 arbitrary power, expelled counsel from the bar for giving their testi- 
 mony as witnesses on the return of a writ of habeas corpus before 
 the Hon. Henry P. Haun, Judge of the County Court, under pretence 
 that by so doing they were vilifying the court and denouncing its 
 proceedings. 
 
 8th. Because the said William E. Turner, during the session of 
 the District Court at Marysville, Yuba County, in the present month, 
 frequently went into Court with revolving pistols upon his person, 
 to the great scandal of the court and of the county. 
 
 For the above, and other reasons, your petitioners respectfully 
 request that the said William E. Turner may be suspended from his 
 office, as the further exercise by him of judicial power will destroy 
 all confidence of the community in the administration of justice, and 
 all respect for the tribunals of the country ; and your petitioners 
 will ever pray. 
 
 Marysville, June 19th, .1850. 
 
 Stephen J. Field, Ira A. Eaton, James S. Green, T. B. Parker, E. 
 W. Judkins, Harrington Osgood, Chas. W. Gleason, Geo. W. Hastat, 
 S. Sartwell, jr., M. S. Ebright, S. C. Stambaugh, P. Steinman, Henry 
 Cuttcher, M. Cunningham, Ed. B. Jefferds, Wm. H. Mitchell, Benj. 
 Barker, H. Cecil & Co., Osbourn & Co., Asa Stearns, John Bennett, 
 jr., J. P. F. Haskell, W. A. Crampton, J. C. Jewett, H. Stenhorne, John 
 Parks, Absalom Parks, David Parks, James Imbrie, Alfred Parry, H. C. 
 Ward, Eichard McEae, Wm. Johnson, F. Prunean, H. W. Taylor, E. A. 
 Eddy, S. T. Brewster, C. Sala, Dericerpre, M. Donaldson Kinney. E.
 
 252 
 
 M. Foltz. Jas. F. Hibbard, Thomas Gaffney, Allen Gries, W. H. Swain. 
 Oben Lacey, E. 8. Peck, B. Smith, John Graham, Win. Kyle, S. C. 
 Tompkins, A. C. Ladd, C. B. Kinnard, Cyrus Crouch, H. H. Welch 
 Jas. Stuart, Jae. DeBell, Uriah Davis, L. H. Babb & Co., I. B. Purdy, 
 G. Dimon, Henry J. Williams, D. W. C. Bice, N. Purdy, William K. 
 Coit, James B. Gushing, Thomas West, S. B. Mulford, J. Ford, Wm. 
 Ford, Charles A. Van Dorn, Gustavus B. Wright, J. Burlingame, G. 
 Beaulamy, A. Mace, F. Frossard, C. W. Durkee. John S. Byder, Geo. 
 H. Childs, Ezra F. Nye, S. T. Nye, Geo. W. Durkee, John C. Marks, 
 John L. Carpenter, Leonard Crofford, Bobert Lacy, French Paige, 
 L. A. Allen, James Hughes, J. C. Sargent, Wm. P. Hoyt, F. L. Reed, 
 J. S. Bell, Henry B. Compton, G. F. Kussel, Reuben Scott, Warren 
 Drury, Joel F. Whitney, O. C. Gardner, B. F. Taber, Johnson 
 Thompson, jr., Ganahl & Co., T. W. Hall, J. Donnel, Wm. Irwin, 
 Wm. W. Nelson, R. H. McCall, B. G. Bixby, Geo. L. Boswell, Wm. 
 W. Tinker, Robert S. Baker, N. F. Cooke, Edwards Woodruff, J. N. 
 Briceland, Joseph F. Emeric, John F. Delong, James Q. Packard, 
 Sibley & Co., Boone, Larrow & Co., P. W. Hayes & Co., Geo. C. 
 Gorham, R. Dunlap, M. Cameron, R. Brown, A. W. Loynes, F. 
 Owradon, J. W. Turner, P. D. Bailey, James L. Springer. Matthew 
 S. Smith, Wm. Fulton, John George Smith, Isaiah Porter, Wm. R. 
 Taylor, John McClellan, R. H. Macy, Charles B. Mitchell, Thomas 
 R. Anthony, Geo. W. Webster, Daniel M. Shepherd, M. J. Eavyer- 
 berth, Lewis A. Gosey, John Rueyer, Tehan Van De Wett, Wm. 
 Cassede, G. P. Russell, S. G. Haywood, G. W. Hopkins, Win. E. 
 Wightman, E. Ferris, Samuel R. St. John, A. O. Garrett, D. C. 
 Benham. 
 
 EXHIBIT G. 
 
 Letter of Mr. Eaton, by whom the message mentioned in the Narrative 
 was sent to Judge Turner. 
 
 WEDNESDAY AFTERNOON. Aug. 7, '50. 
 
 DEAB JUDGE : I have given your message to Turner. He does'not 
 like it much and flared up considerably when I told him. But it was 
 no use. I have made him understand that you do not want any 
 personal difficulty with him, but that you are ready for him, and if
 
 253 
 
 he attacks you he will get badly hurt. I will see you soon and 
 
 explain. Give him . You can always count on me. 
 
 Yours truly, 
 
 IRA A. EATON. 
 
 The Narrative of Reminiscences was sent to a friend in San Fraii- 
 cisco, soon after it was printed, and was shown to Gen. A. M. Winn 
 of that city. He was in Marysville in 1850 and also gave Judge Tur- 
 ner to understand the line of conduct I intended to pursue. The 
 following letter has since been received from him. 
 
 SAN FBANCISCO. May IQtfi, '80. 
 
 FRIEND FIELD : In looking over the Early Eeminiscences of Cali- 
 fornia I was pleased with the faithful recital of your trouble with 
 Judge Turner at Marysville in 1850. Being there about that time I 
 recollect to have met with Judge Turner and found him in a fighting 
 rage, making threats of what he would do on meeting you. Although 
 I have not an exalted opinion of men's courage, when they talk so 
 much about it, I thought he might put his threats into execution and 
 warned you of approaching danger. 
 
 The course you pursued was generally approved, and public opinion 
 culminated in your favor. You made many warm friends, though 
 Turner and his friends were the more enraged in consequence of that 
 fact. 
 
 With great respect, I am, as ever, your friend, 
 
 A. M. WINN. 
 Hon. STEPHEN J. FIELD, 
 
 Washington, D. C. 
 
 EXHIBIT H, No. I.* 
 
 After the Narrative of Reminiscences was written, the Proceedings 
 of the Assembly of California of 1851, on the petition of citizens of 
 
 *By mistake, there ate two Exhibits H; they are, therefore, marked No. I. and 
 No. IL
 
 254 
 
 Yuba and Nevada Counties for the impeachment of Judge Turner, 
 were published. Annexed to them was a statement by the editor of 
 the causes of the indefinite postponement of the matter. They are 
 there stated to be : 1st, That it was supposed that I had acquiesced 
 in such a disposition of the case, because by the act concerning the 
 courts of justice and judicial officers, Turner had been sent to the 
 northern portion of the State, where he could do no harm ; 2d, That 
 the legislature did not wish to extend the session for the period which 
 the trial of an impeachment would require; and, 3d, That the whole 
 matter had become extremely distasteful to me. 
 
 A copy of this statement with the record of the proceedings was 
 sent to the surviving members of the seven, mentioned in the Nar- 
 rative, who voted for the indefinite postponement of the matter : and 
 they wrote the replies which are given below as part of this exhibit. 
 They are preceded by a letter from a member, written soon after the 
 vote was taken. 
 
 Letter of Mr. Bennett. 
 
 HOUSE OF ASSEMBLY. 
 
 SAN JOSE, April 23d, 1851. 
 Hon. STEPHEN J. FIELD. 
 
 DK. SIK : I take pleasure in adopting this form to explain to you 
 my vote upon the question put to the House in the final disposition 
 of the case for the impeachment of Judge Turner. 
 
 Had the House been called for a direct vote upon the question of 
 impeachment, I should certainly have voted for the impeachment ; 
 but finding that some of the members thought the wishes of the citi- 
 zens of Yuba County had been accomplished by the removal of Judge 
 Turner from your district, and on that account would vote against 
 the impeachment, I thought there was less injustice in postponing 
 the whole matter indefinitely, than in coming to a direct vote. I will 
 also say that it was understood by many members that you would be 
 satisfied with such a disposition. 
 
 I am very truly your friend, 
 
 F. C. BENNETT. 
 
 To the Hon. STEPHEN J. FIELD, San Jose.
 
 255 
 
 Letter of Mr. Merritt. 
 
 SALT LAKE CITY, UTAH, May 4th, 1879. 
 MY DEAK JUDGE : 
 
 Your letter of the 27th of April reached me day before yesterday, 
 and the copy of the proceedings in the matter of the impeachment of 
 W. R. Turner, on yesterday. The editorial comments on the case, 
 so far as I am concerned, are exactly correct I remember distinctly 
 having voted for the indefinite postponement of the charges against 
 Turner on the distinct understanding that you consented to it, or at 
 least acquiesced, for the reasons : 
 
 1st, That Turner, by the passage of the bill concerning courts of 
 justice, etc., had been sent to a district where he could do no harm 
 and was out of the way ; 2d, That you did not desire to extend the 
 session of the Legislature : and, 3d, That the whole matter was ex- 
 tremely distasteful and disagreeable to you. I remember further very 
 distinctly, even after this great lapse of time, that I was very much 
 astonished when you told me that I had voted under a misappre- 
 hension as to your views and wishes. It is very certain that Turner 
 would have been impeached had not a false report, as to your views 
 and wishes on the subject, been industriously circulated among the 
 members of the Assembly a short time before the vote was taken. 
 That report alone saved Turner from impeachment. 
 
 Very truly your friend, 
 
 SAML. A. MEKKITT. 
 
 Hon. S. J. FIELD, Sup. Ot. U. 8. 
 
 Letter of Mr. McCorkle. 
 
 WASHINGTON CITY, D. C., May 8th, 1879. 
 Hon. S. J. FIELD. 
 
 MY DEAR SIR : I have received your note and the printed record of 
 the "Proceedings of the Assembly of the State of California of 1851, 
 on the petition of the citizens of Yuba and Nevada Counties for the 
 impeachment of Win. R. Turner, Judge of the Eighth Judicial Dis- 
 trict of California." The simple reading of the record recalls vividly 
 to my mind all of the circumstances of the case and enables me to
 
 256 
 
 answer your inquiry in regard to the indefinite postponement of the 
 motion to impeach Judge Turner. 
 
 A bill introduced by yourself, increasing and changing the num- 
 bers of the judicial districts of the State, had passed the Legislature, 
 and became a law some weeks before the motion to impeach Judge 
 Turner was called up. By this law Judge Turner was banished to 
 the Kiamath a region inhabited almost exclusively by savage red- 
 skins, the elk, and grizzly bear, and as Turner was supposed by 
 anthropologists to be a resultant of that mysterious law of generation 
 denominated atavism or reversionary heredity, and bore the impres- 
 sion, in not only the bodily form, but the instincts, passions, man- 
 ners, and habits of the " cave-dwellers" of the rough-stone age, there 
 appeared to be a fitness and adaptation in the new locality and its 
 surroundings to the man, which was at once appreciated and approved 
 by all persons familiar with him, and his conduct and behavior, both 
 on and off the bench. 
 
 Under these circumstances the report obtained general credence, 
 that you and your constituents were satisfied with the removal of 
 Judge Turner from the bench of the Eighth Judicial District ; and I 
 have no doubt influenced all or nearly all who voted to indefinitely 
 postpone his impeachment. 
 
 As for myself, having a personal knowledge of the truth of the 
 charges made against Judge Turner by the citizens of Yuba and Ne- 
 vada Counties, I am free to say that no consideration other than that 
 you and your constituents were satisfied with Judge Turner's removal 
 from the Eighth Judicial District, could have induced me to cast my 
 vote for the indefinite postponement of Judge Turner's impeach- 
 ment. 
 
 Do you realize the fact, my dear Judge, that more than a quarter 
 of a century has elapsed since these events transpired ? Though my 
 respect for you as a man, and my admiration for you as a jurist, have 
 increased since we were actors in these scenes ; yet I am frank enough 
 to say to you, that if I had to play my part again, with my increased 
 experience, I would not vote to indefinitely postpone the impeach- 
 ment of a judge whom I knew to be guilty of the charges made against 
 Judge Turner by yourself and others, even though the report were true 
 that you and your constituents were satisfied with his simple removal 
 from your judicial district. 
 
 Respectfully and truly yours, <fec., 
 
 Jos. W. McCoBKLE.
 
 257 
 
 Letter of Mr. Bradford. 
 
 SPRINGFIELD, ILL , May 8th, 1879. 
 JUDGE FIELD. 
 
 MY DEAR FRIEND : Yours of the 27th April should have been an- 
 swered ere this, but before doing so I desired to get all the reminders 
 that I could. I looked carefully over the journal. All that I had 
 recollected in the whole matter was that I had an intense feeling in 
 favor of sustaining your position, and when you informed me that I 
 had voted to dismiss the proceedings I was profoundly astonished. 
 
 I thought you must be mistaken until I saw the journal 
 
 Some very satisfactory assurance must have been given me that such 
 vote would be satisfactory to you, and I only wonder that I did not 
 have the assurance verified. ... I assume that the Editor is cor- 
 rect in the explanation as given. 
 
 Very truly, J. S. BRADFORD. 
 
 Letter of Mr. Carr. 
 
 SAN FRANCISCO, May 15th, 1879. 
 
 MY DEAR JUDGE : I have received your letter and a printed copy of 
 the record of the proceedings of the Assembly of California of 1851, 
 in the matter of the impeachment of William R. Turner, Judge of the 
 then Eighth Judicial District of the State. In reply, I have to say, 
 that the statement of the Editor as to the vote on the motion to in- 
 definitely postpone the proceedings is correct, so far as I am con- 
 cerned. 
 
 It was distinctly understood by me, and to my knowledge by other 
 members of the Assembly, that you had consented to such postpone- 
 ment, it being explained that the postponement was not to be taken 
 as an approval of the Judge's conduct. On no other ground could 
 the motion have been carried. If the vote had been taken on the 
 charges made, articles of impeachment against the Judge would un- 
 doubtedly have been ordered. 
 
 Your consent to the postponement was understood to have been 
 given, because of the change in the judicial districts by an act intro- 
 duced into the Assembly by yourself, under which Judge Turner was 
 sent to a district in the northern part of the State, where there was at 
 the time scarcely any legal business, and which was removed to a
 
 25S 
 
 great distance from the district in which you resided, and because of 
 the general desire manifested by others to bring the session of the 
 Legislature to a speedy close The impeachment of the Judge would 
 have necessitated a great prolongation of the session. 
 
 No member of the Assembly justified or excused the atrocious and 
 tyrannical conduct of the Judge towards yourself and others. 
 I am, very truly, yours, 
 
 JESSE D. GARB. 
 Hon. STEPHEN J. FIELD. 
 
 EXHIBIT H, No. II. 
 
 Letter of Judge Gordon N. Mott giving the particulars o f the difficulty 
 with Judge Barbour. 
 
 SAN FRANCISCO, Apr. 28t7i, 1876. 
 Hon. STEPHEN J. FIELD. 
 
 DEAR SIR : Your letter of the eleventh instant, in which you re- 
 quested me to give you, in writing, an account of the affair between 
 yourself and Judge W. T. Earbour, at Marysville in 1853, was duly 
 received. 
 
 The facts in relation to that unpleasant affair are as fresh in my 
 memory as if they had happened yesterday ; and I give them to you 
 the more willingly for the reason that you incurred the spite and 
 malice of Judge Barbour, by acts of personal and professional kind- 
 ness to me, which gave him no just or reasonable cause of offenee : 
 and though the following statement of facts will place the character 
 of Judge Barbour, now deceased, in a very bad and even ludicrous 
 light, the events in mind are nevertheless a part of the history of our 
 early days in California, and I see no impropriety in complying with 
 your request. The facts are as follows : You and I were walking 
 together along D street in the city of Marysville, when we met Judge 
 Barbour, who, after using some offensive and insolent remarks, gave 
 you a verbal challenge to meet him in the way resorted to by gentle- 
 men for the settlement of their personal difficulties. You accepted 
 the challenge instantly, and referred him to me, as your friend, who
 
 259 
 
 would act for you in settling the preliminaries of a hostile meeting. 
 In half an hour I was called upon by Hon. Chas. S. Fairfax as the 
 friend of Judge Barbour. He said Judge Barbour had told him that 
 Judge Field had challenged him to mortal combat, and requested 
 him to meet me for the purpose of arranging the terms of the meet- 
 ing between them. I told Mr. Fairfax at once that such was not my 
 understanding of the matter ; that I was present when the challenge 
 was given by Judge Barbour and accepted by Judge Field. After 
 further consultation with you we agreed that it was better for you to 
 accept the false position in which Judge Barbour seemed determined 
 to place you, and %i to fight it out on that line," than longer submit 
 to the insolence and persecution of a bitter and unscrupulous adver- 
 sary. Mr. Fairfax then claimed, in behalf of Judge Barbour, that, 
 as he was the party challenged, he had the right to the choice of 
 weapons, and the time, place, and manner of the combat ; to which 
 I assented. He then stated that Judge Barbour proposed that the 
 meeting should take place that evening in a room twenty feet square ; 
 that each party was to be armed with a Colt's navy revolver and a 
 Bowie-knife ; that they should be stationed at opposite sides of the 
 room, and should tire at the word, and advance at pleasure, and 
 finish the conflict with the knives. I told Mr. Fairfax that the terms 
 proposed by his principal were unusual and inconsistent with the 
 " code," and that I could not consent to them or countenance a con- 
 flict so unpi'ecedented and barbarous. Mr. Fairfax agreed with me 
 that Judge Barbour had no right to insist upon the terms proposed, 
 and said that he would consult with him and get him to modify his 
 proposition. Upon doing so he soon returned, and stated that Judge 
 Barbour insisted upon the terms he had proposed as his ultimatum, 
 and requested me to go with him and call on Judge Barbour, which 
 I did. I had now come to the conclusion that Barbour was play- 
 ing the role of the bravo and bully, and that he did not intend to 
 fight, and resolved on the course that I would pursue with him. 
 Mr. Fairfax and myself then called on Judge Barbour, and I re- 
 peated what I had said to Mr. Fairfax, adding that it would be 
 shameful for two gentlemen, occupying such positions as they in 
 society, to fall upon each other with knives like butchers or savages, 
 and requesting him to dispense with the knives, which he still re- 
 fused to do. I then looked him straight in the eye and said, well, 
 sir, if you insist upon those terms, we shall accept. I saw his 
 countenance change instantly. " His coward lips did froin their
 
 260 
 
 color fly ; " and he finally stammered out that he would ' ' waive 
 the knife." Without consulting you. I had determined that if Bav- 
 bour still insisted upon a conflict with Bowie-knives I would take 
 your place, believing that he would not have any advantage over 
 me in any fight he could make ; and knowing, moreover, that you 
 had involved yourself in the difficulty on my account, I thought it 
 only just for me to do so. But it was demonstrated in the sequel that 
 Barbour was playing the game of bluff, and that he did not intend to 
 fight from the start. It was finally settled, however, that the combat 
 should take place as first proposed, except that pistols only were to 
 be used. Mr. Fairfax and myself then commenced looking about for 
 a room : but in the meantime the affair had been noised about town 
 and we found it impossible to get one. Mr. Fairfax then, after con- 
 sulting Judge Barbour, proposed that the meeting should take place 
 the next morning in Sutter County ; to which I assented : and all the 
 terms and preliminaries were arranged and agreed upon. At that 
 time there were two daily lines of stages leaving Marysville for Sacra- 
 mento, and you and your friends were to go down the Sacramento 
 road to a point below Bear River in advance of the stages, and I was 
 to select a suitable place for the meeting. Judge Barbour and his 
 friends were to follow us in one of the coaches and I was to hail the 
 driver as he approached the place of meeting. You and your adver- 
 sary were to be stationed one hundred yards apart, each armed with 
 as many Colt's revolvers as he chose to carry : to fire upon each othei- 
 at the word, and to advance at pleasure and finish the conflict. Our 
 party was promptly on the ground according to agreement : and when 
 the first coach came in sight I hailed the driver and found that Judge 
 Barbour and his friends were not aboard, and the coach passed on a 
 little below us and turned out of the road and stopped. Soon after 
 the other coach came in sight, and I again hailed the driver, who 
 stopped the coach, and Judge Barbour instantly jumped out, and in 
 a very excited manner said that he was going forward to the other 
 coach, and called on the passengers " to take notice, that if that 
 
 d d rascal " (pointing to you) " attacked him he would kill him." 
 
 I stepped in front of Judge Barbour and said : Hold ! Judge Field 
 will not attack you, sir ; remarking at the same time to Mr. Fairfax 
 that this was strange conduct on the part of his friend, and not in 
 accordance with our understanding and agreement : that each party 
 was to bear his portion of the responsibility of the meeting which 
 was to take place between them. Mr. Fairfax appeared both aston-
 
 261 
 
 islied and mortified at the pusillanimous conduct of his principal, who 
 seemed determined to rush forward to the other coach ; and I re- 
 quested him to wait until I could go back and consult you in the mat- 
 ter, for I was afraid that you might possibly be provoked to make the 
 attack. When I returned to you and explained what had been said 
 at the coach, you asked if it would be proper for you to make the 
 attack. I told you most decidedly not ; to let the coward go, and he 
 would never annoy or trouble you again. Mr. Fairfax, who possessed 
 a nice sense of honor, and was a gallant and accomplished gentleman, 
 was so disgusted and mortified at the conduct of his principal that he 
 left him and came over and joined our party, and after taking break- 
 fast with us at Nicolaus, returned with us to Marysville, while Judge 
 Barbour went on his way to Sacramento. Thus, what threatened in 
 its inception to be a sanguinary tragedy, ended in a ridiculous farce. 
 The determined and resolute stand which you assumed in this affair 
 with Judge Barbour, saved you from any farther insolence or perse- 
 cution from men of his class. 
 
 This letter has been drawn out to a most tedious length, and yet 
 there are many circumstances connected with our early life and 
 times in Marysville that I would add but for fear of trying your 
 patience. 
 
 Please write to me on receipt of this, and tell me how my memory 
 of the facts contained in this letter agrees with yours. 
 Very respectfully and truly your friend, 
 
 GOEDON N. MOTT. 
 
 EXHIBIT I. 
 
 Letter of L. Martin, Esq., the friend of Judge Barbour in Ms 
 street attack. 
 
 MAKYSVILLE, Tuesday, March 21, '54. 
 
 DEAR JUDGE : I was glad to hear a few days ago from our friend 
 Filkins that the trouble between you and Judge Barbour had been 
 settled, and that the hatchet was buried. 
 
 I wish now to explain my connection with the assault made upon 
 you about a year ago by Barbour.* You have always appeared to 
 
 * It was February 21, 1853.
 
 262 
 
 think me in some way implicated in that affair, because I was seen 
 by you at that time not far off from him. The facts are these : Judge 
 Barbour told me the night before that he expected to have a street 
 fight with you, and wanted me to accompany him. I had heard of 
 his conduct in the affair of the intended duel in Sutter County, and 
 knew there was bad blood between you, but I was astonished at his 
 saying there was going to be a difficulty between you in the street. 
 I consented to accompany him, but I supposed of course that you had 
 received notice of his purpose, and that there would be no unfair ad- 
 vantage taken by him. I was, therefore, surprised when I saw you in 
 front of your office with your arms partly filled with small pieces of 
 board, apparently to kindle a fire. Barbour's drawing a pistol upon 
 you under these circumstances, and calling upon you to draw and de- 
 fend yourself, was not what we call at the South very chivalric. It 
 was not justified by me then, and never has been in any way or man- 
 ner, and I told him he had acted badly. I was glad to hear you defy 
 him as you did, and dare him to shoot. I reckon he is not very proud 
 of his conduct. I have never approved of his action, and should 
 never have accompanied him had I believed or suspected he had not 
 given you notice of his purpose. 
 
 With great respect I am very truly yours, 
 
 L. MABTIN. 
 Hon. JUDGE FIELD. 
 
 EXHIBIT J. 
 
 Sections four. Jive, and seven of the act entitled " An act to expedite tlie 
 settlement of titles to land* in tlie State of California" approved 
 July 1st, 1864. 
 
 SEC. 4. And be it further enacted. That whenever the district judge 
 of any one of the district courts of the United States for California is 
 interested in any land, the claim to which, under the said act of 
 March third, eighteen hundred and fifty-one, is pending before him 
 on appeal from the board of commissioners created by said act, the 
 said district court shall order the case to be transferred to the Circuit 
 Court of the United States for California, which court shall thereupon
 
 263 
 
 take jurisdiction and determine the same. The said district courts 
 may also order a transfer to the said circuit court of any other cases 
 arising under said act, pending before them, affecting the title to 
 lands within the corporate limits of any city or town, and in such 
 cases both the district and circuit judges may sit. 
 
 SEC. 5. And be ft further enacted, That all the right and title of the 
 United States to the lands within the corporate limits of the city of 
 San Francisco, as defined in the act incorporating said city, passed 
 by the Legislature of the State of California, on the fifteenth of April, 
 one thousand eight hundred and fifty-one, are hereby relinquished 
 and granted to the said city and its successors, for tbe uses and pur- 
 poses specified in the ordinance of said city, ratified by an act of the 
 Legislature of the said State, approved on the eleventh of March, 
 eighteen hundred and fifty-eight, entitled " An act concerning the 
 city of San Francisco, and to ratify and confirm certain ordinances of 
 the common council of said city," there being excepted from this re- 
 linquishment and grant all sites or other parcels of lands which have 
 been, or now are, occupied by the United States for military, naval, 
 or other public uses, [or such other sites or parcels as may hereafter 
 be designated by the President of the United States, within one year 
 after the rendition to the General Land-Office, by the surveyor-gen- 
 eral, of an approved plat of the exterior limits of San Francisco, as 
 recognized in this section, in connection with the lines of the public 
 surveys: And provided, That the relinquishment and grant by this 
 act shall in no manner interfere with or prejudice any bona fide claims 
 of others, whether asserted adversely under rights derived from 
 Spain, Mexico, or the laws of the United States, nor preclude a 
 judicial examination and adjustment thereof.] 
 
 SEC. 7. And be it further enacted, That it shall be the duty of the 
 Surveyor-General of California, in making surveys of the private land 
 claims finally confirmed, to follow the decree of confirmation as 
 closely as practicable whenever such decree designates the specific 
 boundaries of the claim. But when such decree designates only the 
 out-boundaries within which the quantity confirmed is to be taken, 
 the location of such quantity shall be made, as near as practicable, in 
 one tract and in a compact form. And if the character of the land, 
 or intervening grants, be such as to render the location impracticable 
 in one tract, then each separate location shall be made, as near as 
 practicable, in a compact form And it shall be the duty of the Com- 
 missioner of the General Land-Office to require a substantial com-
 
 264 
 
 pliance with the directions of this section before approving any survey 
 and plat forwarded to him. [13 Stats, at Large, pp. 333-4.] 
 
 That part of the fifth section, which is included within brackets, 
 was inserted at the suggestion of the Commissioner of the General 
 Land-Office. 
 
 The, act entitled " An act to quiet the title to certain lands within the 
 corporate limits oftfie city of San Francisco," approved March 8th, 
 1866. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That all the right and title 
 of the United States to the land situated within the corporate limits 
 of the city of San Francisco, in the State of California, confirmed to 
 the city of San Francisco by the decree of the Circuit Court of the 
 United States for the Northern District of California, entered on the 
 eighteenth day of May. one thousand eight hundred and sixty-five, 
 be. and the same are hereby, relinquished and granted to the said city 
 of San Francisco and its successors, and the claim of the said city to 
 said land is hereby confirmed, subject, however, to the reservations 
 and exceptions designated in said decree, and upon the following 
 trusts, namely, that all the said land, not heretofore granted to said 
 city, shall be disposed of and conveyed by said city to parties in the 
 bona fide actual possession thereof, by themselves or tenants, on the 
 passage of this act, in such quantities and upon such terms and con- 
 ditions as the legislature of the State of California may prescribe, ex- 
 cept such parcels thereof as may be reserved and set apart by ordi- 
 nance of said city for public uses : Provided, however. That the 
 relinquishment and grant by this act shall not interfere with or 
 prejudice any valid adverse right or claim, if such exist, to said land 
 or any part thereof, whether derived from Spain, Mexico, or the 
 United States, or preclude a judicial examination and adjustment 
 thereof. [14 Stat. at Large, p. 4.]
 
 265 
 EXHIBIT K. 
 
 Letter of Judge Lake giving an account of the torpedo. 
 
 SAN FRANCISCO, April 29, '80. 
 Honorable STEPHEN J. FIELD. 
 
 MY DEAE SIR : In the winter of 1866 I was in Washington attend- 
 ing the United States Supreme Court, and was frequently a visitor at 
 your room. 
 
 One morning in January of that year I accompanied you to your 
 room, expecting to find letters from San Francisco, as I had directed 
 that my letters should be forwarded to your care. I found your mail 
 lying on the table. Among other matter addressed to you was a small 
 package, about four inches square, wrapped in white paper, and bear- 
 ing the stamp of the Pioneer Photographic Gallery of San Francisco. 
 Two printed slips were pasted upon the face of the package and 
 formed the address : Your name, evidently cut from the title-page of 
 the "California Law Reports;" and " Washington, D. C.," taken from 
 a newspaper. You supposed it to be a photograph, and said as much 
 to me, though from the first you professed surprise at the receipt 
 of it. 
 
 You were standing at the window, when you began to open it, and 
 had some difficulty in making the cover yield. When you had re- 
 moved the cover you raised the lid slightly, but in a moment said to 
 me, " What is this, Lake ? It can hardly be a photograph." A sud- 
 den suspicion flashed upon me, and stepping to your side, I exclaimed, 
 ' Don't open it ; it means mischief ! " 
 
 When I had looked at it more nearly, I said, " It's an infernal ma- 
 chine " or " a torpedo." I carried it over to the Capitol, opposite to 
 your rooms, where Mr. Broom, one of the clerks of the Supreme 
 Court, joined me in the examination of your mysterioxis looking 
 present. It was put in water, and afterwards we dashed off the lid 
 of the box by throwing it against the wall in the carriage way under 
 the Senate steps. About a dozen copper cartridges were disclosed 
 those used in a Smith & Wesson pocket pistol, it appeared afterward 
 six of them lying on each side of a bunch of friction matches in
 
 266 
 
 the centre. The sides of tho cartridges had been filed through, so 
 that the burning of the matches might explode the cartridges. The 
 whole was kept in place in a bed of common glue, and a strip of 
 sand-paper lying upon the heads of the matches was bent into a loop 
 to receive the bit of thread, whose other end, secured to the clasp of 
 the box, produced that tension and consequent pressure requisite to 
 ignite the matches upon the forcible opening of the lid. To make 
 assurance doubly sure, a paste of fulminating powder and alcohol 
 had been spn-ad around the matches and cartridges. 
 
 There was a newspaper slip also glued to the inside of the lid, with 
 words as follows : " Monday. Oct. 31, 1864. The City of San Fran- 
 cisco vs. United States. Judge Field yesterday delivered the follow- 
 ing opinion in the above case. It will be read with great interest by 
 the people of this city." Then followed several lines of the opinion. 
 Even that gave no clue to the source of the infernal machine, but 
 from the fact that it was evidently made by a scientific man, and that 
 from its size it must have been passed through the window at the post 
 office, instead of into the letter-box, it was thought [that there was] 
 a sufficiently conspicuous mode of action to expose the sender of the 
 torpedo to detection. Whoever it may have been took a late ven- 
 geance for the decision of the Pueblo case if such was the veritable 
 motive of the frustrated assassination as the decision referred to was 
 rendered in 1864. On that account it was conjectured that the con- 
 triver of the machine might be some guilty person, who had received 
 sentence from you, and who used the reference to the Pueblo case to 
 divert suspicion from himself. 
 
 So far as I know, all efforts to discover the author of the intended 
 mischief have been fruitless. 
 
 The box with its contents was sent to the Secretary of War, who 
 directed an examination by the Ordnance Department. General 
 Dyer, then Chief of Ordnance, pronounced it a most cleverly combined 
 torpedo, and exploded one of the cartridges in a closed box, produc- 
 ing a deep indentation upon its sides. 
 
 General Dyer added, among other analytical details, that the ball 
 weighed 52 grains. 
 
 All the circumstances connected with the reception of the infernal 
 machine were too singular and, at that time, ominous, not to remain 
 vividly impressed upon my memory. 
 
 Very truly, your friend, 
 
 DELOS LAKE.
 
 267 
 
 EXHIBIT L. 
 
 The following is an extract from the Report to the Commissioner of the 
 General Land-Office by the Register and Receiver of the Land-Office 
 in California, to whom the matter .of the contents for lands on the 
 Soficol Ranch was submitted for investigation, shoiaing the condition 
 and occupation of the lands previous to the rejection of the grant 
 by the Supreme Court of the United States, and the character of the 
 alleged pre-emption settlements which Julian undertook to defend. 
 
 A general report of the facts established by said evidence is briefly 
 as follows : * When the United States government took possession 
 of California, Don Mariana Guadaloupe Vallejo was in the occu- 
 pancy of the rancho of Soscol, claiming to own it by virtue of the 
 grant from the Mexican nation, which has recently (December term, 
 1861) been declared invalid by the Supreme Court of the United 
 States. His occupancy was the usual one of the country and in ac- 
 cordance with the primitive habits of the people. He possessed the 
 land by herding stock upon it. General Vallejo, as military com- 
 mandante of his district, consisting of all Alta California lying north 
 of the bay of San Francisco, was necessarily the leading personage of 
 the country. His influence among the rude inhabitants of the Terri- 
 tory was almost monarchical, and his establishment was in accordance 
 with his influence. His residence at Sonoma was the capital of his 
 commandancy, and the people of the country for hundreds of miles 
 around looked to General Vallejo for advice and assistance in business 
 and for protection and defence in time of trouble. These things are 
 part of the history of California. 
 
 He had other ranches besides that of Soscol, as that at Sonoma, 
 which was devoted to agricultue and residences. 
 
 The Soscol he especially devoted to the herding and grazing of 
 stock, for which purpose it was most admirably adapted. Wild oats 
 grew in great luxuriance all over this tract, from the water's edge to 
 
 * The evidence taken before those officers.
 
 268 
 
 the tops of the highest hills, and being surrounded on three sides by 
 the waters of the bays and rivers, required little attention in the way 
 of herdsmen. 
 
 On this rancho General Vallejo kept as many as fifteen thousand 
 head of horses and horned cattle running at will, attended only by the 
 necessary vaqueros employed to watch and attend them. 
 
 There was no other use to which the land could at that time be 
 devoted. The want of reliable labor and lack of a market both for- 
 bade agricultural operations beyond personal or family necessities. 
 It was not practicable then, nor for years after, to put the land to any 
 use other than stock pasturing. 
 
 We have, therefore, to report that the possession that General Val- 
 lejo had of " Soscol" in 1846 was the usual use and possession of the 
 time and the country, and that it was the best and most perfect use 
 and occupation of which the land was capable. 
 
 The rancho was, therefore, reduced to possession by General Val- 
 lejo before the Americans took possession of the country. 
 
 Soon after the American occupation or conquest, General Vallejo 
 began to sell off portions of the "Soscol," and continued this prac- 
 tice until about the year 1855, at which time he sold the last of it, and 
 does not appear to have had or claimed any interest since. 
 
 This sale and consequent dividing the land into small parcels pro- 
 duced its usual effect in the way of improvements. 
 
 From 1855 to 1860 the " rancho of Soscol " was almost entirely re- 
 duced to absolute and actual possession and control by his vendees, 
 being by them fenced up into fields, surrounded by substantial en- 
 closures, and improved with expensive farm-houses, out-buildings, 
 orchards, and the like, and was cultivated to grain wherever suitable 
 for that purpose. 
 
 It had upon it two cities of considerable importance, viz : Benicia 
 and Vallejo, each of which had been at one time the capital of the 
 State of California. 
 
 No rural district of California was more highly improved than this, 
 and but a very small portion equal to it. 
 
 The title to ;i Soscol," before its rejection by the United States 
 Supreme Court, was considered the very best in all California. All 
 the really valuable agricultural land in California was held under 
 Mexican grants, and, as a consequence, all had to pass the ordeal of 
 the Land Commission. 
 
 From 1853 to about 1860 very few had been finally passed upon by
 
 269 
 
 the courts, so that during that time the question for the farmer to 
 decide was not what title is perfect, but what title is most likely to 
 prove so by the final judgment of the Supreme Court. 
 
 Amongst the very best, in the opinion of the public, stood 
 " Soscol." 
 
 One conclusive, unanswerable proof of that fact is this, that there 
 was not a single settler on the grant at the time it was rejected. Not 
 one person on it, except in subordination to the Vallejo title. Every 
 resident on the whole tract held his land by purchase from Vallejo. 
 or his assigns, and held just precisely the land so purchased, and not 
 one acre more or less. This fact was not even disputed during the 
 whole eight months of investigation through which we have just 
 passed. It is a notorious fact that of the grants in California which 
 have stood the test of the Supreme Court, very many have been en- 
 tirely in the possession of squatters, and all with more or less of such 
 possessions, and the final patent has alone succeeded in recovering 
 the long-lost possession to the grantholder. There were no settlers 
 on the " Soscol." The people had the most perfect confidence in 
 the title. It had been twice confirmed by tribunals of high authority 
 and great learning first by the United States Land Commission', and 
 then by the District Court of the United States. 
 
 It only wanted the final confirmation by the Supreme Court, and 
 none doubted that it would follow of course. Business could not, 
 and would not, await the nine years consumed in adjudicating this 
 title. Farmers were obliged to have lands, and they bought them. 
 Capital must and would seek investment, and it was lent on mort- 
 gage. When all titles required the same confirmatory decree, the 
 citizen could not discriminate, but exercised his best judgment. 
 
 The sales of lauds upon the " Soscol " were made at prices which 
 called for perfect title ; they brought the full improved value of the 
 land. Money was lent on mortgage in the same way. 
 
 The deeds and mortgages, which accompany the respective cases, 
 are the very best evidence of the opinion the public entertained of 
 the character of the Soscol grant title. The people were amazed 
 when it was announced that the Soscol grant had been rejected. 
 
 No fact developed by this examination has appeared so surprising 
 to the mind of the register and receiver as that there were no pre- 
 emption settlers on the " Soscol." This is so unusual in California 
 that we expected to find the contrary. There was no possession on 
 the tract adverse to the grant title.
 
 270 
 
 Thus stood matters until early in the year 1862, when the intelli- 
 gence reached California that the grant had been rejected by the 
 Supreme Court. The struggle soon began. There was at that time 
 employed upon the United States uavy-yard at Mare Island, and also 
 upon the Pacific Mail Company's works at Beuieia, a large number 
 of mechanics and laborers. There was also in the towns of Benicia 
 and Vallejo a large floating population. Tempted by the great value 
 of these lands in their highly improved state, many of these persons 
 squatted upon the rancho. 
 
 The landholders in possession resisted. 
 
 The houses of the great majority of the settlers were erected in 
 the night time, as it was necessary to enter the enclosed fields by 
 stealth. These houses were built of rough redwood boards set up 
 edgewise, with shed roof, and without window, fire place, or floor. 
 
 They were about eight feet square, sometimes eight by ten feet, 
 and never over six feet high. 
 
 We have no hesitation in saying that they were utterly unfit for 
 the habitation of human beings, and further that they were never 
 designed for permanent residences. The mode of erecting these 
 shanties was as follows : The planks were sawed the right length in 
 the town of Vallejo or Benicia, in the afternoon of the day, and at 
 nightfall were loaded upon a cart. About eleven o'clock at night 
 the team would start for the intended settlement, reaching there 
 about one or two o'clock in the morning. Between that hour and 
 daylight the house would be erected and finished. Sometimes the 
 house would be put together with nails, but when too near the resi- 
 dence of the landholder in possession, screws would be used to pre- 
 vent the sound of the hammer attracting attention. Very few of 
 this class of settlers remained upon their claims above a few days, 
 but soon returned to their ordinary occupations in the towns. 
 
 Generally after they would leave the landholders would remove 
 the shanties from the ground. In some cases they would pull them 
 down with force immediately upon discovering them, and in the 
 presence of the settlers. 
 
 A few of them got settlements near enough to their places of em- 
 ployment to enable them to work in town, or at the navy-yard, and 
 to sleep in their shanties ; some regularly, others only occasionally. 
 These generally remained longer than the others, but none of this 
 class remained up to the time of trial. 
 
 None of the settlers, who went on since the grant was rejected,
 
 271 
 
 have attempted regular improvements or cultivation. A few have 
 harvested the grain planted by the landholders, as it grew on their \ 
 [quarter-section] ; they would harvest it, and offer this as evidence 
 of good faith and cultivation. 
 
 We have no hesitation in pronouncing, from the evidence, that 
 these are not settlers within the spirit of the pre-emption laws, but 
 are mere speculators, desirous of getting the improvements of an- 
 other to sell and to make money.
 
 The preceding Personal Reminiscences of Early 
 Days in California by Judge Field, with other sketches, 
 were dictated by him to a stenographer in the summer 
 of 1877, at San Francisco. They were afterwards 
 printed for a few friends, but not published. The edi- 
 tion was small and soon exhausted, and each year since 
 the Judge has been asked for copies. The reprint is 
 therefore made. 
 
 The history of the attempt at his assassination by a 
 former associate on the supreme bench of California is 
 added. It is written by Hon. George C. Gorham, a 
 warm personal friend of the Judge for many years, who 
 is thoroughly informed of the events described.
 
 TIHIE STOZR/Y" 
 
 ATTEMPTED ASSASSINATION 
 
 JUSTICE FIELD 
 
 FORMER ASSOCIATE ON THE SUPREME BENCH 
 OF CALIFORNIA. 
 
 BY HON. GEORGE C. GORHAM.
 
 NOTE BY THE PUBLISHERS. 
 
 Mr. Gorham is a life-long friend of Justice Field. He was his clerk when the 
 latter held the Alcalde's Court in Marysville, in 1850 ; and was Clerk of the U. S. Circuit 
 Court of the District of California when it was organized, after Judge Field's appoint- 
 ment to the U. S. Supreme Bench. Subsequently, and for several years, he was Secretary 
 of the U. S. Senate. Since his retirement from office he has resided in Washington. 
 For a part of the time he edited a Republican paper in that city, but of late years he 
 has been chiefly engaged in literary works, of which the principal one is the life and 
 history of the late Secretary of War, Edwin M. Stanton.
 
 INDEX. 
 
 PAGE. 
 
 ATTEMPTED ASSASSINATION OF JUSTICE FIELD BY A FOKMEE ASSO- 
 CIATE ON THE STATE SUPREME BENCH 279 
 
 CHAPTEB 1 282 
 
 The Sharon-Hill-Terry Litigation. 
 
 CHAPTEB II 289 
 
 Proceedings in the Superior Court of the State. 
 
 CHAPTER III 299 
 
 Proceedings in the United States Circuit Court. 
 
 CHAPTER V 306 
 
 Decision of the Case in the Federal Court. 
 
 CHAPTEB VI 308 
 
 The Marriage of Terry and Miss Hill. 
 
 ' 
 
 CHAPTER VII 314 
 
 The Bill of Revivor. 
 
 CHAPTER VIII 320 
 
 The Terrys Imprisoned for Contempt. 
 
 CHAPTER IX 330 
 
 Terry's Petition to the Circuit Court for a Release Its 
 Refusal He Appeals to the Supreme Court Unani- 
 mous Decision against Him there. 
 
 CHAPTER X 339 
 
 President Cleveland refuses to Pardon Terry False 
 Statements of Terry Refuted. 
 
 CHAPTER XI 348 
 
 Terry's continued Threats to Kill Justice Field Return 
 of the Latter to California in 1889.
 
 278 
 
 CHAPTEB XII 351 
 
 Further Proceedings in the State Court. Judge Sullivan's 
 Decision Reversed. 
 
 CHAPTEKXIII 357 
 
 Attempted Assassination of Justice Field, Resulting in 
 Terry's own Death at the Hands of a Deputy United 
 States Marshal. 
 
 CHAPTER XIV 376 
 
 Sarah Althea Terry Charges Justice Field and Deputy 
 Marshal Neagle with Murder. 
 
 CHAPTER XV 380 
 
 Justice Field's Arrest and Petition for Release on Habeas 
 Corpus. 
 
 CHAPTER XVI 387 
 
 Judge Terry's Funeral Refusal of the Supreme Court 
 of California to Adjourn on the Occasion. 
 
 CHAPTER XVII 390 
 
 Habeas Corpus Proceedings in Justice Field's Case. 
 
 CHAPTER XVIII 398 
 
 Habeas Corpus Proceedings in Neagle's (?ase. 
 
 CHAPTER XIX 416 
 
 Expressions of Public Opinion. 
 
 CHAPTER XX 450 
 
 The Appeal to the Supreme Court of the United States, 
 and the Second Trial of Sarah Althea's Divorce Case. 
 
 CHAPTER XXI 464 
 
 Concluding Observations.
 
 ATTEMPTED ASSASSINATION OF JUSTICE FIELD 
 BY A FORMER ASSOCIATE ON THE STATE 
 SUPREME BENCH. 
 
 THE most thrilling episode in the eventful life of 
 Justice Field was his attempted assassination at 
 Lathrop, California, on the 14th day of August, 1889, 
 by David S. Terry, who had been Chief Justice of the 
 State during a portion of Justice Field's service on that 
 bench. Terry lost his own life in his desperate 
 
 
 
 attempt, by the alertness and courage of David S. 
 Neagle, a Deputy United States Marshal, who had been 
 deputed by his principal, under an order from the 
 Attorney-General of the United States, to protect 
 Justice Field from the assassin, who had, for nearly a 
 year, boldly and without concealment, proclaimed his 
 murderous purpose. The motive of Terry was not in 
 any manner connected with their association on the 
 State supreme bench, for there had never been any but 
 pleasant relations between them. 
 
 Terry resigned from the bench in 1859 to challenge 
 Senator Broderick of California to the duel in which 
 the latter was killed. He entered the Confederate 
 service during the war, and some time after its close he
 
 280 
 
 returned to California, and entered upon the practice 
 of the law. In 1880 he was a candidate for Presi- 
 dential elector on the Democratic ticket. His as- 
 sociates on that ticket were all elected, while he was 
 defeated by the refusal of a number of the old friends 
 of Broderick to give him their votes. It is probable 
 that his life was much embittered by the intense hatred 
 he had engendered among the friends of Broderick, 
 and the severe censure of a large body of the people 
 of the State, not especially attached to the political 
 fortunes of the dead Senator. These facts are men- 
 tioned as furnishing a possible explanation of Judge 
 Terry's marked descent in character and standing from 
 the Chief -Justiceship <5f the State to being the counsel, 
 partner, and finally the husband of the discarded com- 
 panion of a millionaire in a raid upon the latter's 
 property in the courts. It was during the latter stages 
 of this litigation that Judge Terry became enraged 
 against Justice Field, because the latter, in the dis- 
 charge of his judicial duties, had been compelled to 
 order the revival of a decree of the United States Cir- 
 cuit Court, in the rendering of which he had taken no 
 part. 
 
 A proper understanding of this exciting chapter in 
 the life of Justice Field renders necessary a narrative 
 of the litigation referred to. It is doubtful if the an- 
 nals of the courts or the pages of romance can parallel
 
 281 
 
 this conspiracy to compel a man of wealth to divide 
 his estate with adventurers. Whether it is measured 
 by the value of the prize reached for, by the character 
 of the conspirators, or by the desperate means to which 
 they resorted to accomplish their object, it stands in 
 the forefront of the list of such operations.
 
 CHAPTER I. 
 
 THE SHA.RON-HILL-TERRY LITIGATION. 
 
 The victim, upon a share of whose enormous estate, 
 commonly estimated at $15,000,000, these conspirators 
 had set their covetous eyes, was William Sharon, then 
 a Senator from the State of Nevada. ,The woman with 
 whom he had terminated his relations, because he be- 
 lieved her to be dangerous to his business interests, 
 was Sarah Althea Hill. Desirous of turning to the 
 best advantage her previous connection with him, she 
 sought advice from an old negress of bad repute, and 
 the result was a determination to clflim that she had a 
 secret contract of marriage with him. This negress, 
 who during the trial gave unwilling testimony to hav- 
 ing furnished the sinews of war in the litigation to the 
 extent of at least five thousand dollars, then consulted 
 G. W. Tyler, a lawyer noted for his violent manner and 
 reckless practices, who explained to her what kind of a 
 paper would constitute a legal marriage contract under 
 the laws of California. No existing contract was sub- 
 mitted to him, but he gave his written opinion as to what 
 kind of a contract it would be good to have for the pur- 
 pose. The pretended contract was then manufactured 
 by Sarah Althea in accordance with this opinion, and
 
 283 
 
 Tyler subsequently made a written agreement with her 
 by which he was to act as her attorney, employ all nec- 
 essary assistance, and pay all expenses, and was to have 
 one-half of all they could get out of Sharon by their 
 joint efforts as counsel and client. This contract was 
 negotiated by an Australian named Neilson, who was 
 to have one-half of the lawyer's share. 
 
 On the 7th of September, 1883, a demand was made 
 upon Mr. Sharon for money for Miss Hill. He drove 
 her emissary, Neilson, out of the hotel where he had 
 called upon him, and the latter appeared the next day 
 in the police court of San Francisco and made an affi- 
 davit charging Mr. Sharon with the crime of adultery. 
 A warrant was issued for the latter's arrest, and he was 
 held to bail in the sum of $5,000. This charge was 
 made for the avowed purpose of establishing the manu- 
 factured contract of marriage already referred to, which 
 bore date three years before. A copy of this alleged 
 contract was furnished to the newspapers together with 
 a letter having Sharon's name appended to it, addressed 
 at the top to " My Dear Wife," and at the bottom to " Miss 
 Hill." This pretended contract and letter Mr. Sharon 
 denounced as forgeries. 
 
 On the 3d of October, 1883, Mr. Sharon commenced 
 suit in the United States Circuit Court at San Fran- 
 cisco against Sarah Althea Hill, setting forth in his 
 complaint that he was a citizen of the State of Nevada, 
 and she a citizen of California ;
 
 284 
 
 " that he was, and had been for years, an unmarried 
 man ; that formerly he was the husband of Maria Ann 
 Sharon, who died in May, 1875, and that he had never 
 been the husband of any other person ; that there were 
 two children living, the issue of that marriage, and also 
 grandchildren, the children of a deceased daughter of 
 the marriage ; that he was possessed of a large fortune 
 in real and personal property ; was extensively engaged 
 in business enterprises and ventures, and had a wide 
 business and social connection ; that, as he was in- 
 formed, the defendant was an unmarried woman of 
 about thirty years of age, for some time a resident of 
 San Francisco ; that within two months then past she 
 had repeatedly and publicly claimed and represented 
 that she was his lawful wife ; that she falsely and fraud- 
 ulently pretended that she was duly married to him on the 
 twenty-fifth day of August, 1880, at the city and county 
 of San Francisco ; that on that day they had jointly 
 made a declaration of marriage showing the names, 
 ages, and residences of the parties, jointly doing the 
 acts required by the Civil Code of California to consti- 
 tute a marriage between them, and that there by they 
 became and were husband and wife according to the 
 law of that State. 
 
 " The complainant further alleged that these several 
 claims, representations, and pretensions were wholly 
 and maliciously false, and were made by her for the 
 purpose of injuring him in his property, business, and 
 social relations ; for the purpose of obtaining credit by 
 the use of his name with merchants and others, and 
 thereby compelling him to maintain her ; and for the 
 purpose of harassing him, and in case of his death, his 
 heirs and next of kin and legatees, into payment of large 
 sums of money to quiet her false and fraudulent claims 
 and pretensions. He also set forth what he was in- 
 formed was a copy of the declaration of marriage, and 
 alleged that if she had any such instrument, it was ' false,
 
 285 
 
 forged, and counterfeited ; ' that he never, on the day 
 of its date, or at any other time, made or executed any 
 such document or declaration, and never knew or heard 
 of the same until within a month previous to that time, 
 and that the same was null and void as against him, 
 and ought, in equity and good conscience, to be so de- 
 clared, and ordered to be delivered up, to be annulled 
 and cancelled." 
 
 The complaint concluded with a prayer that it be ad- 
 judged and decreed that the said Sarah Althea Hill 
 was not and never had been his wife ; that he did not 
 make the said joint declaration of marriage with her, 
 or any marriage between them ; that said contract or 
 joint declaration of marriage be decreed and adjudged 
 false, fraudulent, forged, and counterfeited, and ordered 
 to be delivered up and cancelled and annulled, and that 
 she be enjoined from setting up any claims or preten- 
 sions of marriage thereby. Sharon was a citizen of 
 Nevada, while Miss Hill was a citizen of California.* 
 
 * NOTE. A court of equity having jurisdiction to lay its hands upon 
 and control forged and fraudulent instruments, it matters not with 
 what pretensions and claims their validity may be asserted by their 
 possessor ; whether they establish a marriage relation with another, 
 or render him an heir to an estate, or confer a title to designated 
 pieces of property, or create a pecuniary obligation. It is enough 
 that, unless set aside or their use restrained, they may impose bur- 
 dens upon the complaining party, or create claims upon his property 
 by which its possession and enjoyment may be destroyed or impaired. 
 (Sharon vs. Terry, 13 Sawyer's Rep., 406.) The Civil Code of Cali- 
 fornia also declares that ' a written instrument in respect to which 
 there is a reasonable apprehension that, if left outstanding, it may 
 cause serious iujury to a person against whom it is void or voidable, 
 may, upon his application, be so adjudged, and ordered to be deliv- 
 ered up or cancelled" (Sec. 3412).
 
 286 
 
 Before the time expired in which Miss Hill was re- 
 quired to answer the complaint of Mr. Sharon in the 
 United States Circuit Court, but not until after the 
 federal jurisdiction had attached in that court, she 
 brought suit against him, November 1st, in a state 
 Superior Court, in the city and county of San Fran- 
 cisco, to establish their alleged marriage and then ob- 
 tain a decree, and a division of the property stated to 
 have been acquired since such marriage. In her com- 
 plaint she alleged that on the 25th day of August, 
 1880, they became, by mutual agreement, husband and 
 wife, and thereafter commenced living together as hus- 
 band and wife ; that on that day they had jointly made 
 a declaration of marriage in writing, signed by each, 
 substantially in form as required by the Civil Code of 
 California, and until the month of November, 1881, 
 had lived together as husband and wife ; that since 
 then the defendant had been guilty of sundry viola- 
 tions of the marriage contract. The complaint also 
 alleged that when the parties intermarried the defend- 
 ant did not have in money or property more than 
 five millions of dollars, with an income not exceeding 
 thirty thousand dollars a month, but that since their 
 intermarriage they had by their prudent management 
 of mines, fortunate speculations, manipulations of the 
 stock market, and other business enterprises, accumu- 
 lated in money and property more than ten millions of
 
 287 
 
 dollars, and that now he had in his possession money 
 and property of the value at least of fifteen millions of 
 dollars, from which he received an income of over one 
 hundred thousand dollars a month. The complaint 
 concluded with a prayer that the alleged marriage with 
 the defendant might be declared legal and valid, and 
 that she might be divorced from him, and that an ac- 
 count be taken of the common property, and that the 
 same be equally divided between them. 
 
 The campaign was thus fully inaugurated, which for 
 more than six years disgraced the State with its vio- 
 lence and uucleanness, and finally ended in bloodshed. 
 The leading combatants were equally resolute and de- 
 termined. Mr. Sharon, who was a man of remarkable 
 will and energy, would have expended his entire for- 
 tune in litigation before he would have paid tribute to 
 those who thus attempted to plunder him. Sarah 
 Althea Hill was respectably connected, but had drifted 
 away from her relations, and pursued, without re- 
 straint, her disreputable course. She affected a reck- 
 less and daredevil character, carrying a pistol, and 
 exhibiting it on occasions in cow-boy fashion, to con- 
 vey the impression that those who antagonized her 
 had a dangerous character with whom to deal. She 
 was ignorant, illiterate, and superstitious. The forged 
 document which she thought to make a passport to 
 the enjoyment of a share of Sharon's millions was a
 
 288 
 
 clumsy piece of work. It was dated August 25, 1880, 
 and contained a clause pledging, secrecy for two years 
 thereafter. But she never made it public until Sep- 
 tember, 1883. although she had, nearly two years 
 before that, been turned out of her hotel by Sharon's 
 orders. At this treatment she only whimpered and 
 wrote begging letters to him, not once claiming, even 
 in these private letters to him, to be his wife. She 
 could then have published the alleged contract without 
 any violation of its terms, and claimed any rights it 
 conferred, and it is obvious to any sane man that she 
 would have done so had any such document then been 
 in existence. 
 
 Although Sharon's case against Sarah Althea Hill 
 was commenced in the federal court before the com- 
 mencement of Miss Hill's case against Sharon in the 
 state court, the latter case was first brought to trial, on 
 the 10th of March, 1884.
 
 CHAPTEE II. 
 
 PROCEEDINGS IN THE SUPERIOR COURT OF THE STATE. 
 
 Mr. Sharon defended in the state court, and prose- 
 cuted in the federal court with equal energy. In the 
 former he made an affidavit that the pretended mar- 
 riage contract was a forgery and applied to the court 
 for the right to inspect it, and to have photographic 
 copies of it made. Sarah Althea resisted the judge's 
 order to produce the document in question, until he 
 informed her that, if she djd not obey, the paper would 
 not be admitted as evidence on the trial of the action. 
 
 On the second day of the trial in the state court 
 Miss Hill reinforced her cause by the employment of 
 Judge David S. Terry as associate counsel. He 
 brought to the case a large experience in the use of 
 deadly weapons, and gave the proceedings something 
 of the character of the ancient " wager of battle." 
 Numerous auxiliaries and supernumeraries in the 
 shape of lesser lawyers, fighters, and suborned wit- 
 nesses were employed in the proceedings as from time 
 to time occasion required. The woman testified in her 
 own behalf that upon a visit to Mr. Sharon's office he 
 had offered to pay her $1,000 per month if she would 
 become his mistress ; that she declined his offer in a
 
 290 
 
 busiuess-like manner, without anger, and entered upon 
 a conversation about getting married ; she swore at a 
 subsequent interview she drafted a marriage contract 
 at Sharon's dictation. This document, to which she 
 testified as having been thus drawn up, is as follows : 
 
 " In the city and county of San Francisco, State of 
 California, on the 25th day of August, A. D., 1880, I, 
 Sarali Althea Hill, of the city and county of San Fran- 
 cisco, State of California, aged twenty-seven years, do 
 here, in the presence of almighty God, take Senator 
 William Sharon, of the State of Nevada, to be my law- 
 ful and wedded husband, and do here acknowledge and 
 declare myself to be the wife of Senator William Sharon, 
 of the State of Nevada. 
 
 " SARAH ALTHEA HILL. 
 
 " AUGUST 25, 1880, SAN FRANCISCO, CAL. 
 
 " I agree not to make known the contents of this 
 paper or its existence for two years unless Mr. Sharon, 
 himself, sees fit to make it known. 
 
 " SAKAH ALTHEA HILL. 
 
 " In the city and county of San Francisco, State of 
 .California, on the 25th day of August, A. D. 1880, I, 
 Senator William Sharon, of the State of Nevada, aged 
 sixty years, do here, in the presence of Almighty God, 
 take Sarah Althea Hill, of the city and county of San 
 Francisco, California, to be my lawful and wedded wife, 
 and do here acknowledge myself to be the husband of 
 Sarah Althea Hill. 
 
 " WILLIAM SHARON, 
 
 " Nevada. 
 " AUGUST 25, 1880." 
 
 In his testimony Mr. Sharon contradicted every ma-
 
 291 
 
 terial statement made by Sarah Althea Hill. He de- 
 nied every circumstance connected with the alleged 
 drawing up of the marriage contract. 
 
 He testified that on the 7th day of November, 1881, 
 he terminated his relations with and dismissed her, 
 and made a full settlement with her by the payment of 
 $3,000 in cash, and notes amounting to $4,500. For 
 these she gave him a receipt in full. He charged her 
 with subsequently stealing that receipt at one of two 
 or three visits made by her after her discharge. 
 
 It is unnecessary to review the voluminous testimony 
 introduced by the parties in support of their respective 
 contentions. The alleged contract was clearly proven 
 to be a forgery. A number of witnesses testified to 
 conversations had with Miss Hill long after the date 
 of the pretended marriage contract, in which she made 
 statements entirely inconsistent with the existence of 
 such a document. She employed fortune-tellers to 
 give her charms with which she could compel Mr. 
 Sharon to marry her, and this, too, when she pretended 
 to have in her possession the evidence that she was 
 already his wife. Not an appearance of probability 
 attended the claim of this bold adventuress. Every 
 statement she made concerning the marriage contract, 
 and every step she took in her endeavor to enforce it, 
 betrayed its false origin. 
 
 The trial of the case in the state court continued
 
 292 
 
 from March 10th until May 28th, when the summer re- 
 cess intervened. It was resumed July 15th, and occu- 
 pied the court until September 17th, on which day the 
 argument of counsel was concluded and the case sub- 
 mitted. No decision was rendered until more than 
 three months afterwards, namely, December 24th. 
 Nearly two months were then allowed to pass before the 
 decree was entered, February 19, 1885. The case 
 was tried before Judge Sullivan without a jury, by 
 consent of the parties. He decided for the plaintiff, 
 holding the marriage contract to be genuine, and to 
 constitute a valid marriage. It was manifest that he 
 made his decision solely upon the evidence given by 
 Sarah Althea herself, whom he nevertheless branded in 
 his opinion as a perjurer, suborner of perjury, and 
 forger. Lest this should seem an exaggeration his own 
 words are here quoted. She stated that she was 
 introduced by Sharon to certain parties as his wife. Of 
 her statements to this effect the Judge said : 
 
 " Plaintiff's testimony as to these occasions is directly 
 contradicted, and in my judgment her testimony as to 
 these matters is wilfully false." 
 
 Concerning $7,500 paid her by Sharon, which she 
 alleged she had placed in his hands in the early part of 
 her acquaintance with him, the Judge said : 
 
 " This claim, in my judgment, is utterly unfounded. 
 No such advance was ever made."
 
 293 
 
 At another place in his opinion the Judge said : 
 
 " Plaintiff claims that defendant wrote her notes at 
 different times after her expulsion from the Grand 
 Hotel. If such notes were written, it seems strange that 
 they have not been preserved and produced in evidence. 
 I do not believe she received any such notes." 
 
 With respect to another document which purported 
 to have been signed by Mr. Sharon, and which Sarah 
 Althea produced under compulsion, then withdrew it, 
 and failed to produce it afterwards, when called for, 
 saying she had lost it, Judge Sullivan said : 
 
 " Among the objections suggested to this paper as ap- 
 pearing on its face, was one made by counsel that the 
 signature was evidently a forgery. The matters recited 
 in the paper are, in my judgment, at variance with the 
 facts it purports to recite. Considering the stubborn 
 manner in which the production of this paper was at 
 first resisted and the mysterious manner of its disap- 
 pearance, I am inclined to regard it in the light of one 
 of the fabrications for the purpose of bolstering up 
 plaintiff's case. I can view the paper in no other light 
 than as a fabrication." 
 
 In another part of his opinion Judge Sullivan made 
 a sort of a general charge of perjury against her in the 
 following language : 
 
 " I am of the opinion that to some extent plaintiff 
 has availed herself of the aid of false testimony for the 
 purpose of giving her case a better appearance in the 
 eyes of the court, but sometimes parties have been 
 known to resort to false testimony, where in their judg-
 
 294 
 
 raent it would assist them in prosecuting a lawful claim. 
 As I understand the facts of this case, that was done 
 in this instance." 
 
 In another place Judge Sullivan said : 
 
 " I have discussed fully, in plain language, the nu- 
 merous false devices resorted to by the plaintiff for the 
 purpose of strengthening her case." 
 
 Miss Sarah and her attorneys had now come in sight 
 of the promised land of Sharon's ample estate. Regu- 
 lar proceedings, however, under the law, seemed to 
 them too slow ; and besides there was the peril of an 
 adverse decision of the Supreme Court on appeal. 
 They then decided upon a novel course. Section 137 
 of the Civil Code of California provides that while an 
 action for divorce is pending, the court may, in its 
 discretion, require the husband to pay as alimony any 
 money necessary to enable the wife to support herself 
 and to prosecute or defeat the action. The enterprising 
 attorneys, sharing the bold spirit of their client, and 
 presuming upon the compliance of a judge who had 
 already done so well by them, went into the court on 
 the 8th of January, 1885, and modestly demanded for 
 Sarah Althea, upon the sole authority of the provision 
 of law above quoted, $10,000 per month, as the money 
 necessary to enable her to support herself, and $150,000 
 for attorneys' fees to prosecute the action. This was 
 to include back pay for thirty-eight months, making a
 
 295 
 
 sum of $380,000, which added to the $150,000, attor- 
 neys' fees, would have made a grand total of $530,000. 
 This was an attempt, under the color of a beneficent 
 law, applicable only to actions for divorce, in which 
 the marriage was not denied, to extort from a man 
 more than one-half million dollars, for the benefit of a 
 woman, seeking first to establish a marriage, and then 
 to secure a divorce, in a case in which no decree had 
 as yet been entered, declaring her to be a wife. It was 
 not merely seeking the money necessary to support the 
 plaintiff and prosecute the case ; it was a request that 
 the inferior court should confiscate more than half a 
 million dollars, in anticipation of a decision of the 
 Supreme Court on appeal. It was as bold an attempt 
 at spoliation as the commencement of the sui,t itself. 
 The Supreme Court of the State had decided that the 
 order of a Superior Court allowing alimony during the 
 pendency of any action for divorce is not appealable, 
 but it had not decided that, under the pretence of 
 granting alimony, an inferior judge could apportion a 
 rich man's estate among champerty lawyers, and their 
 adventurous client, by an order from which there could 
 be no appeal, made prior to any decree that there had 
 ever been a marriage between the parties, when the 
 fact of the marriage was the main issue in the case. 
 The counsel for Sharon insisted upon his right to have 
 a decree entered from which he could appeal, before
 
 296 
 
 being thus made to stand and deliver, and the court 
 entertained the motion. 
 
 Upon this motion, among other affidavits read in 
 opposition, was one by Mr. Sharon himself, in which 
 he recited the agreement between Miss Hill and her 
 principal attorney, George W. Tyler, in which she was 
 to pay him for his services, one-half of all she might 
 receive in any judgment obtained against Sharon, he, 
 Tyler, advancing all the costs of the litigation. The 
 original of this agreement had been filed by Tyler with 
 the county clerk immediately after the announcement 
 of the opinion in the case as an evidence of his right 
 to half of the proceeds of the judgment. It was con- 
 clusive evidence that Sarah Althea required no money 
 for the payment of counsel fees. 
 
 After the filing of a mass of affidavits, and an exhaust- 
 ive argument of the motion, Judge Sullivan rendered his 
 decision, February 16, 1885, granting to Sarah Althea 
 Hill an allowance of $2,500 per month, to take effect 
 as of the date of the motion, January 8, 1885, and 
 further sums of $2,500 each to be paid on the 8th day 
 of April, and of each succeeding month until further 
 order of the court. 
 
 This the Judge thought reasonable allowance " in 
 view of the plaintiff's present circumstances and diffi- 
 culties." For counsel fees he allowed the sum of 
 $60,000, and at the request of the victors, made in ad- 
 vance, he divided the spoils among them as follows :
 
 297 
 
 To Tyler and Tyler $25,000 
 
 To David S. Terry 10,000 
 
 To Moon and Flournoy 10,000 
 
 To W. H. Levy . . 10,000 
 
 To Clement, Osmond and Clement. . . 5,000 
 
 By what rule $2,500 was awarded as a proper 
 monthly allowance to the woman whose services to 
 Mr. Sharon had commanded but $500 per month it is 
 difficult to conjecture. It was benevolence itself to give 
 $60,000 to a troop of lawyers enlisted under the com- 
 mand of Tyler, who had agreed to conduct the pro- 
 ceedings wholly at his own cost, for one-half of what 
 could be made by the buccaneering enterprise. It 
 seemed to be the purpose of these attorneys to see 
 how much of Mr. Sharon's money they could, with 
 Judge Sullivan's assistance, lay their hands upon be- 
 fore the entry of the judgment in the case. From the 
 judgment an appeal could be taken. By anticipating 
 its entry they thought that they had obtained an order 
 from which no appeal would lie. 
 
 It was not until three days after this remarkable 
 order was made that the decree was entered by Judge 
 Sullivan declaring plaintiff and defendant to be hus- 
 band and wife ; that he had deserted her, and that she 
 was entitled to a decree of divorce, with one-half of the 
 common property accumulated by the parties since the 
 date of what he decided to be a valid marriage contract.
 
 298 
 
 Sharon appealed from, the final judgment, and also 
 from the order for alimony. Notwithstanding this ap- 
 peal, and the giving of a bond on appeal in the sum 
 of $300,000 to secure the payment of all alimony and 
 counsel fees, Judge Sullivan granted an order directing 
 Mr. Sharon to show cause why he should not be pun- 
 ished for contempt in failing to pay alimony and coun- 
 sel fees, as directed by the order. 
 
 The Supreme Court, upon application, granted an 
 order temporarily staying proceedings in the case. 
 This stay of proceedings was subsequently made per- 
 manent, during the pendency of the appeal. 
 
 Mr. Sharon died November 15, 1885. That very 
 day had been set for a hearing of Sharon's motion 
 for a new trial. The argument was actually com- 
 menced on that day and continued until the next, at 
 which time the motion was ordered off the calendar 
 because meantime Mr. Sharon had deceased.
 
 CHAPTER III. 
 
 PROCEEDINGS IN THE UNITED STATES CIRCUIT COURT. 
 
 While these proceedings were being had in the state 
 courts the case of Sharon vs. Hill in the federal 
 court was making slow progress. Miss Hill's attor- 
 neys seemed to think that her salvation depended 
 upon reaching a decision in her case before the deter- 
 mination of Sharon's suit in the United States Circuit 
 Court. They were yet to learn, as they afterwards 
 did, that after a United States court takes jurisdiction 
 in a case, it cannot be ousted of that jurisdiction by 
 the decision of a state court, in a proceeding subse- 
 quently commenced in the latter. Seldom has " the 
 law's delay " been exemplified more thoroughly than it 
 was by the obstacles which her attorneys were able to 
 interpose at every step of the proceedings in the fed- 
 eral court. 
 
 Sharon commenced his suit in the United States 
 Circuit Court October 3, 1883, twenty-eight days 
 before his enemy commenced hers in the State Su- 
 perior Court. By dilatory pleas her counsel succeeded 
 in delaying her answer to Sharon's suit until after the 
 decision in her favor in the state court. She did not 
 enter an appearance in the federal court until the very
 
 300 
 
 last day allowed by the rule. A month later she filed 
 a demurrer. Her counsel contrived to delay the argu- 
 ment of this demurrer for seven weeks after it was 
 filed. It was finally argued and submitted on the 21st 
 of January, 1884. On the 3d of March it was over- 
 ruled and the defendant was ordered to answer in ten 
 days, to wit, March 13th. Then the time for answering 
 was extended to April 24th. When that day arrived 
 her counsel, instead of filing an answer, filed a plea in 
 abatement, denying the non-residence of Mr. Sharon 
 in the State of California, on which depended his right 
 to sue in the federal court. To this Mr. Sharon's 
 counsel filed a replication on the 5th of May. It then 
 devolved upon Miss Hill's counsel to produce evidence 
 of the fact alleged in the plea, but, after a delay of five 
 months and ten days, no evidence whatever was 
 offered, and the court ordered the plea to be argued on 
 the following day. It was overruled, and thirty days 
 were given to file an answer to Sharon's suit. The case 
 in the state court had then been tried, argued, and 
 submitted thirty days before, but Miss Hill's counsel 
 were not yet ready to file their answer within the thirty 
 days given them, and the court extended the time for 
 answer until December 30th. Six days before that day 
 arrived Judge Sullivan rendered his decision. At last, 
 on the 30th of December, 1884, fourteen months after 
 the filing of Sharon's complaint, Sarah Althea's answer
 
 301 
 
 was tiled in the federal court, in which, among other 
 things, she set up the proceedings and decree of the 
 state court, adjudging the alleged marriage contract to 
 be genuine and legal, and the parties to be husband 
 and wife, and three days later Sharon filed his replica- 
 tion. There was at no time any delay or want of dili- 
 gence on the part of the plaintiff in prosecuting this 
 suit to final judgment. On the contrary, as is plainly 
 shown in the record above stated, the delays were all 
 on the part of the defendant. The taking of the testi- 
 mony in the United States Circuit Court commenced 
 on the 12th of February, 1885, and closed on the 12th 
 of August following. 
 
 The struggle in the state court was going on during 
 all the time of the taking of the testimony in the 
 federal court, and intensified the excitement attendant 
 thereon. Miss Hill was in constant attendance before 
 the examiner who took the testimony, often interrupt- 
 ing the proceedings with her turbulent and violent con- 
 duct and language, and threatening the lives of Mr. 
 Sharon's counsel. She constantly carried a pistol, and 
 on occasions exhibited it during the examination of 
 witnesses, and, pointing it at first one and then another, 
 expressed her intention of killing them at some stage 
 of the proceedings. She was constantly in contempt 
 of the court, and a terror to those around her. Her 
 conduct on one occasion, in August, 1885, became so
 
 302 
 
 violent that the taking of the testimony could not pro- 
 ceed, and Justice Field, the presiding judge of the cir- 
 cuit, made an order that she should be disarmed, and 
 that a bailiff of the court should sit constantly at her 
 side to restrain her from any murderous outbreak, such 
 as she was constantly threatening. Her principal 
 attorney, Tyler, was also most violent and disorderly. 
 Judge Terry, while less explosive, was always ready to 
 excuse and defend his client. (See Report of Pro- 
 ceedings in Sharon vs. Hill, 11 Sawyer's Circuit Court 
 Reps., 122.) 
 
 Upon the request of counsel for the complainant, the 
 examiner in one case reported to the court the language 
 and the conduct of Miss Hill. Among other things, he 
 reported her as saying : 
 
 " When I see this testimony [from which certain scan- 
 dalous remarks of hers were omitted] I feel like taking 
 that man Stewart* out and cowhiding him. I will shoot 
 him yet ; that very man sitting there. To think that 
 he would put up a woman to come here and delib- 
 erately lie about me like that. I will shoot him. They 
 know wiien I say I will do it that I will do it. I shall 
 shoot him as sure as you live ; that man that is sitting 
 right there. And I shall have that woman Mrs. Smith 
 arrested for this, and make her prove it." 
 
 And again : 
 
 " I can hit a four-bit piece nine times out of ten." 
 The examiner said that pending the examination of 
 * Senator Stewart, who was one of the counsel against her in the suit.
 
 303 
 
 one of the witnesses, on the occasion mentioned, the 
 respondent drew a pistol from her satchel, and held it 
 in her right hand ; the hand resting for a moment upon 
 the table, with the weapon pointed in the direction of 
 Judge Evans. He also stated that on previous occa- 
 sions she had brought to the examiner's room during 
 examinations a pistol, and had sat for some length of 
 time holding it in her hand, to the knowledge of all 
 persons present at the time. After the reading of the 
 examiner's report in open court, Justice Field said : 
 
 " In the case of William Sharon versus Sarah Althea 
 Hill, the Examiner in Chancery appointed by the court to 
 take the testimony has reported to the court that very 
 disorderly proceedings took place before him on the 3d 
 instant ; that at that day, in his room, when counsel of 
 the parties and the defendant were present, and during 
 the examination of a witness by the name of Piper, the 
 defendant became very much excited, and threatened 
 to take the life of one of the counsel, and that subse- 
 quently she drew a pistol and declared her intention to 
 carry her threat into effect. It appears also from the 
 report of the examiner that on repeated occasions the 
 defendant has attended before him, during the ex- 
 amination of witnesses, armed with a pistol. Such con- 
 duct is an offense against the laws of the United States 
 punishable by fine and imprisonment. It interferes 
 with the due order of proceedings in the administration 
 of justice, and is well calculated to bring them into con- 
 tempt. I, myself, have not heretofore sat in this case 
 and do not expect to participate in its decision ; I intend 
 in a few days to leave for the East, but I have been 
 consulted by my associate, and have been requested to 
 take part in this side proceeding, for it is of the utmost
 
 304 
 
 importance for the due administration of justice that such 
 misbehavior as the examiner reports should be stopped, 
 and measures be taken which will prevent its recur- 
 rence. My associate will comment on the laws of Con- 
 gress whicli make the offense a misdemeanor, punishable 
 by fine and imprisonment. 
 
 " The marshal of the court will be directed to disarm 
 the defendant whenever she goes before the examiner 
 or into court in any future proceeding, and to appoint 
 an officer to keep strict surveillance over her, in order 
 that she may not carry out her threatened purpose. 
 This order will be entered. The Justice then said that 
 it is to be observed that this block, embracing this 
 building the court-house is under the exclusive juris- 
 diction of the United States. Every offense committed 
 within it is an offense against the United States, and the 
 State has no jurisdiction whatever. This fact seems to 
 have been forgotten by the parties." 
 
 The following is the order then entered as directed 
 by Justice Field : 
 
 " Whereas it appears from the report to this court 
 of the Examiner in Chancery in this case appointed to 
 take the depositions of witnesses, that on the 3d day 
 of August, instant, at his office, counsel of the parties 
 appeared, namely, William M. Stewart, Esquire,, and 
 Oliver P. Evans, Esquire, for the complainant, and W. 
 B. Tyler, Esquire, for the defendant, and the defendant 
 in person, and that during the examination before said 
 examiner of a witness named Piper, the defendant be- 
 came excited and threatened the life of the counsel of 
 the complainant present, and exhibited a pistol with a 
 declared intention to carry such threat into effect, 
 thereby obstructing the order of the proceedings, and 
 endeavoring to bring the same into contempt ; and
 
 305 
 
 " Whereas it further appears that said defendant 
 habitually attends before said examiner carrying a pis- 
 tol, 
 
 " It is ordered, That the marshal of this court take 
 such measures as may be necessary to disarm the said 
 defendant, and keep her disarmed, and under strict sur- 
 veillance, while she is attending the examination of wit- 
 nesses before said examiner, and whenever attending 
 in court, and that a deputy be detailed for that purpose."
 
 CHAPTER V. 
 
 DECISION OF THE CASE IN THE FEDERAL COURT. 
 
 The taking of the testimony being completed, the 
 cause was set for a hearing on September 9th. After 
 an argument of thirteen days the cause was submitted 
 on the 29th of September, 1885. On the 26th of 
 December, 1885, the court rendered its decision, that 
 the alleged declaration of marriage and the letters 
 purporting to have been addressed " My Dear Wife " 
 were false and forged, and that the contemporaneous 
 conduct of the parties, and particularly of the defend- 
 ant, was altogether incompatible with the claim of 
 marriage or the existence of any such declaration or 
 letters. 
 
 A decree was ordered accordingly, and the court 
 made the following further order : 
 
 " As the case was argued and submitted during the 
 lifetime of the complainant, who has since deceased, the 
 decree will be entered nunc pro tune, as of September 
 29, 1885, the date of its submission and a day prior to 
 the decease of the complainant." 
 
 The opinion of the court was delivered by Judge 
 Deady, of the United States District Court of Oregon, 
 who sat in the case with Judge Sawyer, the circuit 
 judge.
 
 307 
 
 Of the old negress under whose direction the fraud- 
 ulent marriage contract had been manufactured, and 
 under whose advice and direction the suit in the 
 state court had been brought, the Judge said : 
 
 " Mary E. Pleasant, better known as Mammie Pleas- 
 ant, is a conspicuous and important figure in this affair ; 
 without her it would probably never have been brought 
 before the public. She appears to be a shrewd old 
 negress of some means. 
 
 " In my judgment this case and the forgeries and 
 perjuries committed in its support had their origin 
 largely in the brain of this scheming, trafficking, crafty 
 old woman." 
 
 He found that the declaration of marriage was 
 forged by the defendant by writing the declaration 
 over a simulated signature, and that her claim to be 
 the wife of the plaintiff was wholly false, and had been 
 put forth by her and her co-conspirators for no other 
 purpose than to despoil the plaintiff of his property. 
 Judge Sawyer also filed an opinion in the case, in 
 which he declared that the weight of the evidence sat- 
 isfactorily established the forgery and the fraudulent 
 character of the instrument in question.
 
 CHAPTEE VI. 
 
 THE MARKIAGE OF TERRY AND MISS HILL. 
 
 Sarah Althea now received a powerful recruit, who 
 enlisted for the war. This was one of her lawyers, 
 David S. Terry, whom she married on the 7th day of 
 January, 1886, twelve days after the decision of the 
 Circuit Court against her, and which he had heard 
 announced, but before a decree had been entered in 
 conformity with the decision. Terry seemed willing to 
 take the chances that the decree of the Superior Court 
 would not be reversed in the Supreme Court of the 
 State. The decision of the federal court he affected to 
 utterly disregard. It was estimated that not less than 
 $5,000,000 would be Sarah Althea's share of Sharon's 
 estate, in the event of success in her suit. She would 
 be a rich widow if it could be established that she had 
 ever been a wife. She had quarreled with Tyler, her 
 principal attorney, long before, and accused him of 
 failing in his professional duty. If she could escape 
 from the obligations of her contract with him, she 
 would not be compelled to divide with him the hoped- 
 for $5,000,000. 
 
 Although Judge Terry had been Chief Justice of the 
 Supreme Court of California, the crimes of perjury and
 
 309 
 
 forgery and subornation of perjury which had been 
 loudly charged in Judge Sullivan's opinion against the 
 woman, in whose favor he gave judgment, seemed to 
 him but trifles. Strangely enough, neither he nor 
 Sarah Althea ever uttered a word of resentment against 
 him on account of these charges. 
 
 The marriage of Terry with this desperate woman in 
 the face of an adverse decision of the Circuit Court, 
 by which jurisdiction was first exercised upon the sub- 
 ject-matter, was notice to all concerned that, by all the 
 methods known to him, he would endeavor to win her 
 cause, which he thus made his own. He took the 
 position that any denial of Sarah Althea's pretense to 
 have been the wife of Sharon was ah insult to her, 
 which could only be atoned by the blood of the person 
 who made it. This was the proclamation of a vendetta 
 against all who should attempt to defend the heirs of 
 Mr. Sharon in the possession of that half of their 
 inheritance which he and Sarah Althea had marked for 
 their own. His subsequent course showed that he 
 relied upon the power of intimidation to secure suc- 
 cess. He was a man of powerful frame, accustomed 
 all his life to the use of weapons, and known to be 
 always armed with a knife. He had the reputation of 
 being a fighting man. He had decided that Sarah 
 Althea had been the lawful wife of Sharon, and that 
 therefore he had married a virtuous widow. He had
 
 310 
 
 not often been crossed in his purpose or been resisted 
 when he had once taken a position. By his marriage 
 he virtually served notice on the judges of the Supreme 
 Court of the State, before whom the appeal was then 
 pending, that he would not tamely submit to be by 
 them proclaimed to be the dupe of the discarded 
 woman of another. It was well understood that he 
 intended to hold them personalty responsible to him 
 for any decision that w r ould have that effect. These 
 intentions were said to have been made known to them. 
 
 His rule in life, as once stated by himself, was to 
 compel acquiescence in his will by threats of violence, 
 and known readiness to carry his threats into effect. 
 This, he said, would in most cases insure the desired 
 result. He counted on men's reluctance to engage in 
 personal difficulties with him. He believed in the 
 persuasiveness of ruffianism. 
 
 Whether he thought his marriage would frighten 
 Judges Sawyer and Deady, who had just rendered 
 their decision in the United States Circuit Court, and 
 cause them either to modify the terms of the decree 
 not yet entered, or deter them from its enforcement, is 
 a matter of uncertainty. He was of the ultra State's- 
 rights school and had great faith in the power of the 
 courts of a State when arrayed against those of the 
 United States. He had always denied the jurisdiction 
 of the latter in the case of Sarah Althea, both as to
 
 311 
 
 the subject-matter and as to the parties. He refused 
 to see any difference between a suit for a divorce and 
 a suit to cancel a forged paper, which, if allowed to 
 pass as genuine, would entitle its holder to another's 
 property. He persisted in denying that Sharon had 
 been a citizen of Nevada during his lifetime, and 
 ignored the determination of this question by the Cir- 
 cuit Court. 
 
 But if Judge Terry had counted on the fears of the 
 United States judges of California he had reckoned 
 too boldly, for on the 15th of January, 1886, eight 
 days after his marriage, the decree of the Circuit 
 Court was formally entered. This decree adjudged 
 the alleged marriage contract of August 25, 1880, 
 false, counterfeited, fabricated, and fraudulent, and 
 ordered that it be surrendered to be cancelled and an- 
 nulled, and be kept in the custody of the clerk, subject 
 to the further order of the court ; and Sarah Althea 
 Hill and her representatives were perpetually enjoined 
 from alleging the genuineness or the validity of the 
 instrument, or making use of it in any way to support 
 her claims as wife of the complainant. 
 
 The execution of this decree would, of course, put 
 an end to Sarah Althea's claim, the hope of maintain- 
 ing which was supposed to have been the motive of 
 the marriage. To defeat its execution then became 
 the sole object of Terry's life. This he hoped to do
 
 312 
 
 by antagonizing it with a favorable decision of the 
 Supreme Court of the State, on the appeals pending 
 therein. It has heretofore been stated that the case 
 against Sharon in the Superior Court was removed 
 from the calendar on the 14th day of November, 1885, 
 because of the defendant's death on the previous day. 
 The llth of February following, upon proper applica- 
 tion, the court ordered the substitution of Frederick 
 W. Sharon as executor and sole defendant in the suit 
 in the place of William Sharon, deceased. The motion 
 for a new trial was argued on the 28th of the following 
 May, and held under advisement until the 4th of the 
 following October, when it was denied. From this 
 order of denial an appeal was taken by the defendant. 
 
 It must be borne in mind that there were now two 
 appeals in this case to the Supreme Court of the State 
 from the Superior Court. One taken on the 25th of 
 February, 1885, from the judgment of Judge Sullivan, 
 and from his order for alimony and fees, and the other 
 an appeal taken October 4, 1886, from the order deny- 
 ing the new trial in the cause. 
 
 On the 31st of January, 1888, the Supreme Court 
 rendered its decision, affirming the judgment of the 
 Superior Court in favor of Sarah Althea, but reversing 
 the order made by Judge Sullivan granting counsel 
 fees, and reducing the allowance for alimony from 
 $2,500 per month to $500, Four judges concurred in
 
 313 
 
 this decision, namel} r , McKinstry, Searles, Patterson, 
 and Temple. Three judges dissented, to wit, Thorn- 
 ton, Sharpstein, and McFarland. 
 
 There then remained pending in the same court the 
 appeal from the order granting a new trial. It was 
 reasonable that Terry should expect a favorable decis- 
 ion on this appeal, as sooU as it could be reached. 
 This accomplished, he and Sarah Althea thought to 
 enter upon the enjoyment of the great prize for which 
 they had contended with such desperate energy. 
 Terry had always regarded the decree of the Circuit 
 Court as a mere harmless expression of opinion, which 
 there would be no attempt to enforce, and which the 
 state courts would wholly ignore. Whatever force it 
 might finally be given by the Supreme Court of the 
 United States appeared to him a question far in the 
 future, for he supposed he had taken an appeal from 
 the decree. This attempted appeal was found to be 
 without effect, because when ordered the suit had 
 abated by the death of the plaintiff, and no appeal 
 could be taken until the case was revived by order of 
 the court. This order was never applied for. The 
 two years within which an appeal could have been 
 taken expired January 15, 1888. The decree of the 
 Circuit Court had therefore become final at that time.
 
 CHAPTER VII. 
 
 THE BILL OF REVIVOR. 
 
 It was at this stage of the prolonged legal contro- 
 versy that Justice Field first sat in the case. The 
 executor of the Sharon estate, on the 12th of March, 
 1888, filed a bill of revivor in the United States Circuit 
 Court. This was a suit to revive the case of Sharon 
 vs. Hill, that its decree might stand in the same condi- 
 tion and plight in which it was at the time of its entry, 
 which, being nunc pro time, was of the same effect as 
 if the entry had preceded the death of Mr. Sharon, the 
 case having been argued and submitted during his life- 
 time. The decree directed the surrender and cancella- 
 tion of the forged marriage certificate, and perpetually 
 enjoined Sarah Althea Hill, and her representatives, 
 from alleging the genuineness or validity of that instru- 
 ment, or making any use of the same in evidence, or 
 otherwise to support any rights claimed under it. 
 
 The necessity for this suit was the fact that the 
 forged paper had not been surrendered for cancella- 
 tion, as ordered by the decree, and the plaintiff feared 
 that the defendant would claim and seek to enforce 
 property rights as wife of the plaintiff, by authority of 
 the alleged written declaration of marriage, under the
 
 315 
 
 decree of another court, essentially founded thereupon, 
 contrary to the pe/petual injunction ordered by the 
 Circuit Court. To this suit, David S. Terry, as hus- 
 band of the defendant, was made a party. It merely 
 asked the Circuit Court to place its own decree in a 
 position to be executed, and thereby prevent the 
 spoliation of the Sharon estate, under the authority of 
 the decree of Judge Sullivan in the suit in the state 
 court subsequently commenced. A demurrer was tiled 
 by the defendant. It was argued in July before Justice 
 Field, Judge Sawyer, and District Judge Sabin. It 
 was overruled on the 3d of September, when the court 
 ordered that the original suit of Sharon against Hill, 
 and the final decree therein, stand revived in the name 
 of Frederick W. Sharon as exec.utor, and that the said 
 suit and the proceedings therein be in the same plight 
 and condition they were in at the death of William 
 Sharon, so as to give the executor, complainant as 
 aforesaid, the full benefit, rights, and protection of the 
 decree, *and full power to enforce the same against the 
 defendants, and each of them, at all times and in all 
 places, and in all particulars. The opinion in the case 
 was delivered by Justice Field. During its delivery 
 he was interrupted by Mrs. Terry with violent and 
 abusive language, and an attempt by her to take a 
 pistol from a satchel which she held in her hand. Her 
 removal from the court-room by order of Justice Field ;
 
 316 
 
 her husband's assault upon the marshal with a deadly 
 weapon for executing the order, au<i the imprisonment 
 of both the Terrys for contempt of court, will be more 
 particularly narrated hereafter. 
 
 The commencement of the proceedings for the revival 
 of the suit was well calculated to alarm the Terrys. 
 They saw that the decree in the Circuit Court was to 
 be relied upon for something more than its mere moral 
 effect. Their feeling towards Judges Sawyer and 
 Deady was one of most intense hatred. Judge Deady 
 was at his home in Oregon, beyond the reach of phys- 
 ical violence at their hands, but Judge Sawyer was in 
 San Francisco attending to his official duties. Upon 
 him they took an occasion to vent their wrath. 
 
 It was on the 14th of August, 1888, after the com- 
 mencement of the revivor proceedings, but before the 
 decision. Judge Sawyer was returning in the railway 
 train to San Francisco from Los Angeles, where he 
 had been to hold court. Judge Terry and his wife 
 took the same train at Fresno. Judge Sawyet occu- 
 pied a seat near the center of the sleeping-car, and 
 Judge and Mrs. Terry took the last section of the car, 
 behind him, and on the same side. A few minutes 
 after leaving Fresno, Mrs. Terry walked down the aisle 
 to a point just beyond Judge Sawyer, and turning 
 around with an ugly glare at him, hissed out, in a 
 spiteful and contemptuous tone : " Are you here?" to
 
 317 
 
 which the Judge quietly replied : " Yes, Madam," and 
 bowed. She then resumed her seat. A few minutes 
 after, Judge Terry walked down the aisle about the 
 same distance, looked over into the end section at the 
 front of the car, and finding it vacant, went back, got a 
 small hand-bag, and returned and seated himself in 
 the front section, with his back to the engine and fac- 
 ing Judge Sawyer. Mrs. Terry did not (at the moment) 
 accompany him. A few minutes later she walked rap- 
 idly down the passage, and as she passed Judge Saw- 
 yer, seized hold of his hair at the back of his head, 
 gave it a spiteful twitch and passed quickly on, before 
 he could fully realize what had occurred. After pass- 
 ing she turned a vicious glance upon him, which was 
 continued for some time after taking her seat by the 
 side of her husband. A passenger heard Mrs. Terry 
 say to her husband: "'I will give him a taste of what 
 he will get bye and bye." Judge Terry was heard to 
 remark : " The best thing to do with him would be to 
 take him down the bay and drown him." Upon the 
 arrival of Judge Sawyer at San Francisco, he entered 
 a street car, and was followed by the Terrys. Mrs. 
 Terry took a third seat from him, and seeing him, said : 
 " What, are you in this car too ? " When the Terrys 
 left the car Mrs. Terry addressed some remark to 
 Judge Sawyer in a spiteful tone, and repeated it. He 
 said he did not quite catch it, but it was something
 
 318 
 
 like this : "We will meet again. This is not the end of 
 it." 
 
 Persons at all familiar with the tricks of those who 
 seek human life, and still contrive to keep out of the 
 clutches of the law, will see in the scene above recited 
 an attempt to provoke an altercation which would have 
 been fatal to Judge Sawyer, if he had resented the 
 indignity put upon him by Mrs. Terry, by even so 
 much as a word. This could easily have been made 
 the pretext for an altercation between the two men, in 
 which the result would not have been doubtful. There 
 could have ben no proof that Judge Terry knew of 
 his wife's intention to insult and assault Judge Sawyer 
 as she passed him, nor could it have been proven that 
 he knew she had done so. A remonstrance from Saw- 
 yer could easily have been construed by Terry, upon 
 the statement of his wife, into an original, unprovoked, 
 and aggressive affront. It is now, however, certain 
 that the killing of Judge Sawyer was not at that time 
 intended. It may have been, to use Mrs. Terry's 
 words, " to give him a taste of what he would get bye 
 and bye," if he should dare to render the decision in 
 the revivor case adversely to them. 
 
 This, incident has been here introduced and dwelt 
 upon for the purpose of showing the tactics resorted 
 to by the Terrys during this litigation, and the methods 
 by which they sought to control decisions. It is en-
 
 319 
 
 tirely probable that they had hopes of intimidating the 
 federal judges, as many believed some state judges had 
 been, and that thus they might " from the nettle dan- 
 ger, pluck the flower safety." 
 
 We have seen that they reckoned without their host. 
 We shall now see to what extent their rage carried 
 them on the day that the decision was rendered reviv- 
 ing the decree.
 
 CHAPTEE VIII. 
 
 THE TEBRYS IMPRISONED FOR CONTEMPT. 
 
 On the day after Judge Sawyer's return from Los 
 Angeles he called the marshal to his chambers, and 
 notified him of Mrs. Terry's violent conduct towards 
 him on the train in the presence of her husband, so 
 that he might take such steps as he thought proper to 
 keep order when they came into the court-building, 
 and see that there was no disturbance in the court- 
 room. On the morning of September 3d, the marshal 
 was again summoned to Judge Sawyer's room, where 
 Judge Field was also present. They informed him that 
 the decision in the revival suit would be rendered that 
 day, and they desired him to be present, with a suffi- 
 cient number of bailiffs to keep order in court. They 
 told him that judging from the action of the Terrys on 
 the train, and the threats they were making so publicly, 
 and which were being constantly published in the 
 newspapers, it was not impossible that they might 
 create a disturbance in the court-room. 
 
 When the court opened that day, it found Terry and 
 his wife already seated within the bar, and immediately 
 in front of the judges. As it afterward appeared, they 
 were both on a war-footing, he being armed with a
 
 321 
 
 concealed bowie-Jmife, and she with a 41 -calibre re- 
 volver, which she carried in a small hand-bag, five of 
 its chambers being loaded. The judges took their 
 seats on the bench, and very shortly afterward Justice 
 Field, who presided, began reading the opinion of the 
 court in which both of his associates concurred. A 
 printed pamphlet copy of this opinion contains 61 
 pages, of which 18 are taken up with a statement of 
 the case. The opinion commences at page 19 and 
 covers the remaining 42 pages of the pamphlet. 
 
 From time to time, as the reading of the opinion 
 progressed, Mrs. Terry, who was greatly excited, was 
 observed to unclasp and clasp again the fastening of 
 her satchel which contained her pistol, as if to be sure 
 she could do so at any desired moment. At the llth 
 page of the opinion the following passage occurs : 
 
 " The original decree is not self -executing in all its 
 parts ; it may be questioned whether any steps could 
 be taken for its enforcement, until it was revived, but 
 if this were otherwise, the surrender of the alleged 
 marriage contract for cancellation, as ordered, requires 
 affirmative action on the part of the defendant. The 
 relief granted is not complete until such surrender is 
 made. When the decree pronounced the instrument a 
 forgery, not only had the plaintiff the right that it 
 should thus be put out of the way of being used in the 
 future to his embarrassment and the embarrassment of 
 his estate, but public justice required that it should be 
 formally cancelled, that it might constantly bear on its 
 face the evidence of its bad character, whenever or 
 wherever presented or appealed to."
 
 322 
 
 When Mrs. Terry beard the above words concerning 
 the surrender of the alleged marriage contract for can- 
 cellation, she first endeavored for a few seconds, but 
 unsuccessfully, to open the satchel containing her 
 pistol. For some reason the catch refused to yield. 
 Then, rising to her feet, and placing the satchel before 
 her on the table, she addressed the presiding justice, 
 saying : 
 
 "Are you going to make me give up my marriage 
 contract ? " 
 
 Justice Field said, " Be seated, madam." 
 
 She repeated her question : 
 
 "Are you going to take the responsibility of ordering 
 me to deliver up that contract ? " 
 
 She was again ordered to resume her seat. At this 
 she commenced raving loudly and violently at the 
 justice in coarse terms, using such phrases as these : 
 
 " Mr. Justice Field, how much have you been bought 
 for ? Everybody knows that you have been bought ; 
 that this is a paid decision." 
 
 " How big was the sack? " 
 
 " How much have you been paid for the decision ? " 
 
 "You have been bought by Newland's coin ; every- 
 body knows you were sent out here by the Newlands to 
 make this decision." 
 
 " Every one of you there have been paid for this 
 decision."
 
 323 
 
 At the commencement of this tirade, and after her 
 refusal to desist when twice ordered to do so, the pre- 
 siding justice directed the marshal to remove her from 
 the court-room. She said defiantly : 
 
 " I will not be removed from the court-room ; you 
 dare not remove me from the court-room." 
 
 Judge Terry made no sign of remonstrance with her, 
 had not endeavored to restrain her, but had, on the 
 contrary, been seen to nod approvingly to her, as if 
 assenting to something she had said to him just before 
 she sprang to her feet. The instant, however, the 
 court directed her removal from the room, of which she 
 had thus taken temporary possession, to the total sus- 
 pension of the court proceedings, his soul was " in 
 arms and eager for the fray." As the marshal moved 
 toward the offending woman, he rose from his seat, 
 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 the 
 face,* breaking one of his front teeth. He then unbut- 
 toned 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, 
 
 * One of the witnesses stated that Terry also said, " Get a written 
 order from the court,"
 
 324 
 
 with the assistance of a deputy, then removed Mrs. 
 Terry from the court-room, she struggling, screaming, 
 kicking, striking, and scratching them as she went, and 
 pouring out imprecations upon Judges Field and Saw- 
 yer, denouncing them as " corrupt scoundrels," and 
 declaring she would kill them both. She was taken 
 from the room into the main corridor, thence into the 
 marshal's business office, and then into an inner room 
 of his office. She did not cease struggling when she 
 reached that room, but continued her frantic abuse. 
 
 While Mrs. Terry was being removed from the court- 
 room Terry was held down by several strong men. He 
 was thus, by force alone, prevented from drawing his 
 knife on the marshal. While thus held he gave vent 
 to coarse and denunciatory language against the offi- 
 cers. When Mrs. Terry was removed from the court- 
 room he was allowed to rise. He at once made a swift 
 rush for 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 suc- 
 ceeded in drawing his knife. As he crossed the thresh- 
 old he brandished the knife above his head, saying, " I 
 am going to my wife." There was a terrified cry from 
 the bystanders : " He has got a knife." His arms were 
 then seized by a deputy marshal and others present, to 
 prevent him from using it, and a desperate struggle 
 ensued. Four persons held on to the arms and body
 
 325 
 
 of Terry, and one 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 the other. David 
 Neagle then seized the handle of the knife and com- 
 menced drawing it through Terry's hand, when Terry 
 relinquished it. 
 
 The whole scene was one of the wildest alarm and 
 confusion. To use the language of one of the witnesses, 
 " Terry's conduct throughout this affair was most 
 violent. He acted like a demon, and all the time while 
 in the corridor he used loud and violent language, 
 which could be plainly heard in the court-room, and, 
 in fact, throughout the building," applying to the 
 officers vile epithets, and threatening to cut their hearts 
 out if they did not let him go to his wife. The knife 
 which Terry drew, and which he afterwards designated 
 as " a small sheath knife," was, including the handle, 
 nine and a quarter inches long, the blade being five 
 inches, having a sharp point, and is commonly called a 
 bowie-knife. He himself afterwards represented that 
 he drew this knife, not " because he wanted to hurt 
 anybody, but because he wanted to force his way into 
 the marshal's office." 
 
 The presiding justice had read only a small portion 
 of the opinion of the court when he was interrupted by
 
 326 
 
 the boisterous and violent proceedings described. On 
 their conclusion, by the arrest of the Terrys, he pro- 
 ceeded with the reading of the opinion, which occupied 
 nearly a whole hour. The justices, without adjourning 
 the court, then retired to the adjoining chambers of the 
 presiding justice for deliberation. They there con- 
 sidered of the action which should be taken against the 
 Terrys for their disorderly and contemptuous conduct. 
 After determining what that should be they returned to 
 the court-room and announced it. For their conduct 
 and resistance to the execution of the order of the court 
 both were adjudged guilty of contempt and ordered, as 
 a punishment, to be imprisoned in the county jail, 
 Terry for six months and his wife for thirty days. 
 When Terry heard of the order, and the commitment 
 was read to him, he said, " Judge Field " (applying to 
 him a coarse and vituperatiTe epithet) " thinks when I 
 get out, when I get released from jail, that he will be 
 in Washington, but I will meet him when he comes 
 back next year, and it will not be a very pleasant meet- 
 ing for him." 
 
 Mrs. Terry said that she would kill both Judges Field 
 and Sawyer, and repeated the threat several times. 
 While the prisoners were being taken to jail, Mrs. 
 Terry said to her husband, referring to Judge Sawyer : 
 " I wooled him good on the train coming from Los 
 Angeles. He has never told that." To which he re- 
 plied : " He will riot tell that ; that was too good."
 
 327 
 
 She said she could .have shot Judge Field and killed 
 him from where she stood in the court-room, but that 
 she was not ready then to kill the old villain ; she 
 wanted him to live longer. While crossing the ferry 
 to Oakland she said, " I could have killed Judges Field 
 and Sawyer ; I could shoot either one of them, and 
 you would not find a judge or a jury in the State 
 would convict me." She repeated this, and Terry 
 
 
 
 answered, saying: "No, you could not find a jury that 
 would convict any one for killing the old villain," 
 referring to Judge Field. 
 
 The jailer at Alameda testified that one day Mrs. 
 Terry showed him the sheath of her husband's knife, 
 saying : " That is the sheath of that big bowie-knife 
 that the Judge drew. Don't you think it is a large 
 knife ? " Judge Terry was present, and laughed and 
 said : " Yes ; I always carry that," meaning the knife. 
 
 To J. H. O'Brien, a well-known citizen, Judge Terry 
 said that " after he got out of jail he would horsewhip 
 Judge Field. He said he did not think he would ever 
 return to California, but this earth was not large 
 enough to keep him from finding Judge Field, and 
 horsewhipping him," and said, " if he resents it I will 
 kill him." 
 
 To a newspaper writer, Thomas T. Williams, he said : 
 " Judge Field would not dare to come out to the Pacific 
 Coast, and he would have a settlement with him if he 
 did come."
 
 328 
 
 J. M. Shannon, a friend of Terry's for thirty years, 
 testified that while the Terry s were in jail he called 
 there with Mr. Wigginton, formerly a member of Con- 
 gress from California ; that during the call Mrs. Terry 
 said something to her husband to the effect that they 
 could not do anything at all in regard to it. He said : 
 " Yes, we can." She asked what they could do. He 
 said : "I can kill old Sawyer, damn him. I will kill 
 old Sawyer, and then the President will have to ap- 
 point some one in his place." In saying this " he 
 brought his fist down hard and seemed to be mad." 
 
 Ex-Congressman Wigginton also testified concerning 
 this visit to Terry. It occurred soon after the commit- 
 ment. He went to arrange about some case in which 
 he and Terry were counsel on opposite sides. He told 
 Terry of a rumor that there was some old grudge or 
 difference between him and Judge Field. Terry said 
 there was none he knew of. He said : 
 
 " ' When Judge Field's name was mentioned as can- 
 didate for President of the United States,' I think 
 he said, ' when I was a delegate to the convention, it 
 being supposed that I had certain influence with a 
 certain political element, that also had delegates in the 
 convention, some friend or friends' I will not be sure 
 whether it was friend or friends ' of Judge Field came 
 to me and asked for my influence with these delegates 
 to secure the nomination for Judge Field. My answer '- 
 I am now stating the language as near as I can of 
 Judge Terry's ' my answer was, ' no, I have no in- 
 fluence with that element.' I understood it to be the
 
 329 
 
 workingmeu's delegates. I could not control these 
 delegates, and if I could would not control them for 
 Field.' He said : 'That may have caused some alien- 
 ation, but I do not know that Field knew that.' " 
 
 Mr. Wigginton said that Mrs. Terry asked her hus- 
 band what he could do, and he replied, showing more 
 feeling than he had before : " Do ? I can kill old 
 Sawyer, and by God, if necessary, I will, and the 
 President will then have to appoint some one else in 
 his place."
 
 CHAPTEE IX. 
 
 TERRY'S PETITION TO THE CIRCUIT COURT FOR A RELEASE 
 ITS REFUSAL HE APPEALS TO THE SUPREME COURT 
 UNANIMOUS DECISION AGAINST HIM THERE PRESIDENT 
 CLEVELAND REFUSES TO PARDON HIM FALSEHOODS 
 
 REFUTED. 
 
 On the 12th of September Terry petitioned the Cir- 
 cuit Court for a revocation of the order of imprison- 
 ment in his case, and in support thereof made the 
 following statement under oath : 
 
 " That when petitioner's wife, 'the said Sarah A. 
 Terry, first arose from her seat, and before she uttered 
 a word, your petitioner used every effort in his power 
 to cause her to resume her seat and remain quiet, and 
 he did nothing to encourage her in her acts of indiscre- 
 tion ; when this court made the order that petitioner's 
 wife be removed from the court-room your petitioner 
 arose from his seat with the intention and purpose of 
 himself removing her from the court-room quietly and 
 peaceably, and that he had no intention or design of 
 obstructing or preventing the execution of said order 
 of the court ; that he never struck or offered to strike 
 the United States marshal until the said marshal had 
 assaulted himself, and had in his presence violently, 
 and as he believed unnecessarily, assaulted the peti- 
 tioner's wife. 
 
 " Your petitioner most solemnly swears that he neither 
 drew nor attempted to draw any deadly weapon of any 
 kind whatever in said court-room, and that he did not
 
 331 
 
 assault or attempt to assault the U. S. marshal with 
 any deadly weapon in said court-room or elsewhere. 
 And in this connection he respectfully represents that 
 after he left said court-room he heard loud talking in 
 one of the rooms of the U. S. marshal, and among the 
 voices proceeding therefrom he recognized that of his 
 wife, and he thereupon attempted to force his way into 
 said room through the main office of the United States 
 marshal ; the door of the room was blocked by such a 
 crowd of men that the door could not be closed ; that 
 your petitioner then, for the first time, drew from in- 
 side his vest a small sheath-knife, at the same time 
 saying to those standing in his way in said door, that 
 he did not want to hurt any one ; that all he wanted 
 was to get into the room where his wife was. The 
 crowd then parted and your petitioner entered the 
 doorway, and there saw a United States deputy mar- 
 shal with a revolver in his hand pointed to the ceiling 
 of the room. Some one then said : ' Let him in if he 
 will give up his knife,' and your petitioner immediately 
 released hold of the knife to some one standing by. 
 
 "In none of these transactions did your petitioner 
 have the slightest idea of showing any disrespect to 
 this honorable court or any of the judges thereof. 
 
 " That he lost his temper, he respectfully submits 
 was a natural consequence of himself being assaulted 
 when he was making an honest effort to peaceably 
 and quietly enforce the order of the court, so as 
 avoid a scandalous scene, and of his seeing his wife so 
 unnecessarily assaulted in his presence." 
 
 It will be observed that Terry, in his petition, con- 
 tradicts the facts recited in the orders for the commit- 
 ment of himself and his wife. These orders were made 
 by Justice Field, Circuit Judge Sawyer, and District 
 Judge Sabin from the district of Nevada, who did not
 
 332 
 
 depend upon the testimony of others for information 
 as to the facts in the case, but were, themselves, eye- 
 witnesses and spoke from personal observation and 
 absolute knowledge. 
 
 In passing upon Terry's petition, these judges, 
 speaking through Justice Field, who delivered the 
 opinion of the court, bore testimony to a more partic- 
 ular account of the conduct of Terry and his wife than 
 had been given in the order for the commitment. As 
 the scene has already been described at length, this 
 portion of the opinion of the court would be a mere 
 repetition, and is therefore omitted. After reciting the 
 facts, Justice Field referred to the gravity of Terry's 
 offense in the following terms : 
 
 " The misbehavior of the defendant, David S. Terry, 
 in the presence of the court, in the court-room, and in 
 the corridor, which was near thereto, and in one of 
 which (and it matters not which) he drew his bowie- 
 knife, and brandished it with threats against the deputy 
 of the marshal and others aiding him, is sufficient of 
 itself to justify the punishment imposed. But, great as 
 this offense was, the forcible resistance offered to the 
 marshal in his attempt to execute the order of the 
 court, and beating him, was a far greater and more 
 serious affair. The resistance and beating was the 
 highest possible indignity to the Government. When 
 the flag of the country is tired upon and insulted, it is 
 not the injury to the bunting, the linen, or silk on 
 which the stars and stripes are stamped which startles 
 and arouses the country. It is the indignity and insult 
 to the emblem of the nation's majesty which stirs every
 
 333 
 
 heart, and makes every patriot eager to resent them. 
 So, the forcible resistance to an officer of the United 
 States in the execution of the process, orders, and judg- 
 ments of their courts is in like manner an indignity and 
 insult to the power and authority of the Government 
 which can neither be overlooked nor extenuated." 
 
 After reviewing Terry's statement, Justice Field said : 
 
 " We have read this petition with great surprise at 
 its omissions and misstatements. As to what occurred 
 under our immediate observation, its statements do not 
 accord with the facts as we saw them ; as to what 
 occurred at the further end of the room and in the cor- 
 ridor, its statements are directly opposed to the con- 
 curring accounts of the officers of the court and parties 
 present, whose position was such as to preclude error 
 in their observations. According to the sworn state- 
 ment of the marshal, which accords with our own 
 observations, so far from having struck or assaulted 
 Terry, he had not even laid his hands upon him when 
 the violent blow in the face was received. And it is 
 clearly beyond controversy that Terry never voluntarily 
 surrendered his bowie-knife, and that it was wrenched 
 from him only after a violent struggle. 
 
 " We can only account for his misstatement of facts 
 as they were seen by several witnesses, by supposing 
 that he was in such a rage at the time that he lost com- 
 mand of himself, and does not well remember what he 
 then did, or what he then said. Some judgment as to 
 the weight this statement should receive, independently 
 of the incontrovertible facts at variance with it, may be 
 formed from his speaking of the deadly bowie-knife he 
 drew as ' a small sheath-knife,' and of the shameless 
 language and conduct of his wife as ' her acts of indis- 
 cretion.' 
 
 " No one can believe that he thrust his hand under
 
 334 
 
 his vest where his bowie-knife was carried without in- 
 tending to draw it. To believe that he placed his right 
 hand there for any other purpose such as to rest it 
 after the violent fatigue of the blow in the marshal's 
 face or to smooth down his ruffled linen would be 
 childish credulity. 
 
 " But even his own statement admits the assaulting 
 of the marshal, who was endeavoring to enforce the 
 order of the court, and his subsequently drawing a 
 knife to force his way into the room where the marshal 
 had removed his wife. Yet he offers no apology for 
 his conduct ; expresses no regret for what he did, and 
 makes no reference to his violent and vituperative lan- 
 guage against the judges and officers of the court, while 
 under arrest, which is detailed in the affidavits filed." 
 
 In refusing to grant the petition the court said : 
 
 "There is nothing in his petition which would justify 
 any remission of the imprisonment. The law imputes 
 an attempt to accomplish the natural result of one's 
 acts, and when these acts are of a criminal nature it 
 will not accept, against such implication, the denial of 
 the transgressor. No one would be safe if the denial 
 of a wrongful or criminal act would suffice to release 
 the violator of the law from the punishment due his 
 offenses." 
 
 On September 17, 1888, after the announcement of 
 the opinion of the court by Mr. Justice Field denying 
 the petition of D. S. Terry for a revocation of the 
 order committing him for contempt, Mr. Terry made 
 public a correspondence between himself and Judge 
 Solomon Heydenfeldt, which explains itself, and is as 
 follows :
 
 335 
 
 " MY DEAR TERRY : 
 
 " The papers which our friend Stanley sends you will 
 explain what we are trying to do. I wish to see Field 
 to-morrow and sound his disposition, and if it seems 
 advisable I will present our petition. But in order to 
 be effective, and perhaps successful, I wish to feel as- 
 sured and be able to give the assurance that failure to 
 agree will not be followed by any attempt on your part 
 to break the peace either by action or demonstration. 
 I know that you would never compromise me in any 
 such manner, but it will give me the power to make an 
 emphatic assertion to that effect and that ought to help. 
 
 " Please answer promptly. 
 
 "S. HEYDENFELDT." 
 
 The reply of Judge Terry is as follows : 
 
 " DEAR HEYDENFELDT : 
 
 " Your letter was handed me last evening. I do not 
 expect a favorable result from any application to the 
 Circuit Court, and I have very reluctantly consented 
 that an application be made to Judge Field, who will 
 probably wish to pay me for my refusal to aid his 
 presidential aspirations four years ago. I had a con- 
 versation with Garber on Saturday last in which I told 
 him if I was released I would seek no personal satis- 
 faction for what had passed. You may say as emphat- 
 ically as you wish that I do not contemplate breaking 
 the peace, and that, so far from seeking, I will avoid 
 meeting any of the parties concerned. I will not prom- 
 ise that I will refrain from denouncing the decision or 
 its authors. I believe that the decision was purchased 
 and paid for with coin from the Sharon estate, and I 
 would stay here for ten years before I would say that 
 I did not so believe. If the judges of the Circuit Court 
 would do what is right they would revoke the order 
 imprisoning my wife. She certainly was in contempt
 
 336 
 
 of court, but that great provocation was given by going 
 outside the record to smirch her character ought to be 
 taken into consideration in mitigation of the sentence. 
 Field, when a legislator, thought that no court should 
 be allowed to punish for contempt by imprisonment for 
 a longer period than five days. My wife has already 
 been in prison double that time for words spoken un- 
 der very great provocation. No matter what the result, 
 I propose to stay here until my wife is dismissed. 
 " Yours truly, 
 
 " D. S. TEKRY." 
 
 i 
 
 In the opinion of the court, referred to in the fore- 
 going letter as " smirching the character " of Mrs. 
 Terry, there was nothing said reflecting upon her, ex- 
 cept what was contained in quotations from the opinion 
 of Judge Sullivan of the State court in the divorce case 
 of Sharon vs. Hill in her favor. These quotations 
 commenced at page 58 of the pamphlet copy of Justice 
 Field's opinion, when less than three pages remained 
 to be read. It was at page 29 of the pamphlet that 
 Justice Field was reading when Mrs. Terry interrupted 
 him and was removed from the court-room. After her 
 removal he resumed the reading of the opinion, and 
 only after reading 29 pages, occupying nearly an hour, 
 did he reach the quotations in which Judge Sullivan 
 expressed his own opinion that Mrs. Terry had com- 
 mitted perjury several times in his court. The reading 
 of them could not possibly have furnished her any 
 provocation for her conduct. She had then been re-
 
 337 
 
 moved from the court-room more than an hour. Be- 
 sides, if they " smirched " her character, why did she 
 submit to them complacently when they were originally 
 uttered from the bench by Judge Sullivan in his opin- 
 ion rendered in her favor ? 
 
 Justice Field, in what he was reading that so in- 
 censed Mrs. Terry, was simply stating the effect of a 
 decree previously rendered in a case, in the trial of 
 which he had taken no part. He was stating the law 
 as to the rights established by that decree. The efforts 
 then made by Terry, and subsequently by his friends 
 and counsel, to make it appear that his assault upon 
 the marshal and defiance of the court were caused by 
 his righteous indignation at assaults made by Judge 
 Field upon his wife's character were puerile, because 
 based on a falsehood. The best proof of this is the 
 opinion itself. 
 
 Judge Terry next applied to the Supreme Court of 
 the United States for a writ of habeas corpus. In that 
 application he declared that on the 12th day of Sep- 
 tember, 1888, he addressed to the Circuit Court a 
 petition duly verified by his oath, and then stated the 
 petition for release above quoted. Yet in a communi- 
 cation published in the Sftn Francisco Examiner of 
 October 22d he solemnly declared that this very peti- 
 tion was not tiled by any one on his behalf. After full
 
 338 
 
 argument by the Supreme Court the writ was denied, 
 November 12, 1888, by an unanimous court, Justice 
 Field, of course, not sitting in the case. Justice Har- 
 lan delivered the opinion of the Court.
 
 CHAPTEK X. 
 
 PEESIDENT CLEVELAND REFUSES TO PAEDON TEREY FALSE 
 STATEMENTS OF TERRY REFUTED. 
 
 Before the petition for habeas corpus was presented 
 to the Supreme Court of the United States, Judge 
 Terry's friends made a strenuous effort to secure his 
 pardon from President Cleveland. The President de- 
 clined to interfere. In his efforts in that direction 
 Judge Terry made gross misrepresentations as to 
 Judge Field's relations with himself, which were fully 
 refuted by Judge Heydenfelt, the very witness he had 
 invoked. Judge Heydenfelt had been an associate of 
 Judge Terry on the State supreme bench. These rep- 
 resentations and their refutation are here given as a 
 necessary element in this narrative. 
 
 Five days after he had been imprisoned, to wit, Sep- 
 tember 8, Terry wrote a letter to his friend Zachariah 
 Montgomery at Washington, then Assistant Attorney- 
 General for the Interior Department under the Cleve- 
 land Administration, in which he asked his aid to ob- 
 tain a pardon from the President. Knowing that it 
 would be useless to ask this upon the record of his 
 conduct as shown by the order for his commitment, he 
 resorted to the desperate expedient of endeavoring to
 
 340 
 
 overcome that record by putting his own oath to a 
 false statement of the facts, against the statement of 
 the three judges, made on their own knowledge, as 
 eye-witnesses, and supported by the affidavits of court 
 officers, lawyers, and spectators. 
 To Montgomery he wrote : 
 
 " I have made a plain statement of the facts which 
 occurred in the court, and upon that propose to ask 
 the intervention of the President, and I request you 
 to see the President ; tell him all you know of me, and 
 what degree of credit should be given to a statement 
 by me upon my own knowledge of the facts. When 
 you read the statement I have made you will be satis- 
 fied that the statement in the order of the court is 
 false." 
 
 He then proceeded to tell his story as he told it in 
 his petition to the Circuit Court. His false representa- 
 tions as to the assault he made upon the marshal, and as 
 to his alleged provocation therefor, were puerile in the 
 extreme. He stood alone in his declaration that the 
 marshal first assaulted him, while the three judges and 
 a dozen witnesses declared the very opposite. His 
 denial that he had assaulted the marshal with a deadly 
 weapon was contradicted by the judges and others, 
 who said that they saw him attempt to draw a knife in 
 the court-room, which attempt, followed up as it was 
 continually until successful, constituted an assault with 
 that weapon. To call his bowie-knife " a small sheath-
 
 341 
 
 knife," and the outrageous conduct of his wife " acts 
 of indiscretion ; " to pretend that he lost his temper 
 because he was assaulted " while making an honest 
 effort to peaceably and quietly enforce the order of the 
 court," and finally to pretend that his wife had been 
 " unnecessarily assaulted " in his presence, was all not 
 only false, but simply absurd and ridiculous. 
 
 He said : " I don't want to stay in prison six months 
 for an offense of which I am not guilty. There is no 
 way left except to appeal to the President. The record 
 of a court imports absolute verity, so I am not allowed 
 to show that the record of the Circuit Court is abso- 
 lutely false. If you can help me in this matter you 
 will confer on me the greatest possible favor." 
 
 He told Montgomery that it had been suggested to 
 him that one reason for Field's conduct was his refusal 
 to support the latter's aspirations for the Presidency. 
 In this connection he made the following statement : 
 
 " In March, 1884, I received a note from my friend 
 Judge Heydenfeldt, saying that he wished to see me on 
 important business, and asking me to call at his office. 
 I did so, and he informed me that he had received a 
 letter from Judge Field, who was confident that if he 
 could get the vote of California in the Democratic 
 National Convention, which would assemble that year, 
 he would be nominated for President and would be 
 elected as, with the influence of his family and their 
 connection, that he would certainly carry New York ; 
 that Judge Field further said that a Congressman from 
 California and other of his friends had said that if I
 
 342 
 
 would aid him, I could give him the California delega- 
 tion ; that he understood I wanted official recognition 
 as, because of my duel years ago, I was under a cloud ; 
 that if I would aid him, I should have anything I de- 
 sired." 
 
 It will be observed that he here positively states 
 that Judge Heydenfeldt told him he had received a let- 
 ter from Judge Field, asking Terry's aid and promising, 
 for it, a reward. Judge Heydenfeldt, in a letter dated 
 August 21, 1889, to the San Francisco Examiner, 
 branded Terry's assertion as false. The letter to the 
 Examiner is as follows : 
 
 " The statement made in to-day's Examiner in refer- 
 ence to the alleged letter from Justice Field to me, 
 derived, as is stated by Mr. Ashe, from a conversation 
 with Judge Terry, is utterly devoid of truth. 
 
 " I had at one time, many years ago, a letter from 
 Justice Field, in which he stated that he was going to 
 devote his leisure to preparing for circulation among 
 his friends his reminiscences, and, referring to those of 
 earl} 7 California times, he requested me to obtain from 
 Judge Terry his, Terry's, version of the Terry-Brod- 
 erick duel, in order that his account of it might be 
 accurate. As soon as I received this letter, I wrote to 
 Judge Terry, informing him of Judge Field's wishes, 
 and recommending him to comply, as coming, as the 
 account would, from friendly hands, it would put him 
 correct upon the record, and would be in a form which 
 would endure as long as necessary for his reputation on 
 that subject. 
 
 " I received no answer from Judge Terry, but meet- 
 ing him, some weeks after, on the street in this city, he
 
 34,3 
 
 excused himself, saying that he had been very busy, 
 and adding that it was unnecessary for him to furnish 
 a version of the duel, as the published and accepted 
 version was correct. 
 
 " The letter to me from Justice Field above referred 
 to is the only letter from Justice Field to me in which 
 Judge Terry's name was ever mentioned, and, with the 
 exception of the above-mentioned street conversation, 
 Judge Field was never the subject of conversation be- 
 tween Judge Terry and myself, from the time I left the 
 bench, on the 1st of January, 1857, up to the time of 
 Terry's death. 
 
 "As to the statement that during Terry's trouble with 
 the Sharon case, I offered Terry the use of Field's 
 letter, it results from what I have above stated that 
 it is a vile falsehood, whoever may be responsible 
 for it. 
 
 " I had no such letter, and consequently could have 
 made no such offer. 
 
 "San Francisco, August 21, 1889. 
 
 "S. HEYDENFELDT." 
 
 Judge Heydenfeldt subsequently addressed the fol- 
 lowing letter to Judge Field : 
 
 " SAN FRANCISCO, August 31, 1889. 
 
 " MY DEAR JUDGE : I received yours of yesterday 
 with the extract from the Washington Post of the 22d 
 inst., containing a copy of a letter from the late Judge 
 Terry to the Hon. Zack Montgomery. 
 
 " The statement in that letter of a conversation be- 
 tween Terry and myself in reference to you is untrue. 
 The only conversation Terry and I ever had in relation 
 to you was, as heretofore stated, in regard to a request 
 from you to me to get from Terry his version of the 
 Terry-Broderick duel, to be used in your intended 
 reminiscences,
 
 344 
 
 " I do not see how Terry could have made such an 
 erroneous statement, unless, possibly, he deemed that 
 application as an advance made by you towards ob- 
 taining his political friendship, and upon that built up 
 a theory, which he moulded into the fancy written by 
 him in the Montgomery letter. 
 
 " In all of our correspondence, kept up from time to 
 time since your first removal to Washington down to 
 the present, no letter of yours contained a request to 
 obtain the political support of any one. 
 
 " I remain, dear Judge, very truly yours, 
 
 "S. HEYDENFELDT. 
 " Hon. STEPHEN J. FIELD, 
 
 " Palace Hotel, San Francisco." 
 
 At the hearing of the Neagle case, Justice Field was 
 asked if he had been informed of any statements made 
 by Judge Terry of ill feeling existing between them be- 
 fore the latter's imprisonment for contempt. He 
 replied : 
 
 " Yes, sir. Since that time I have seen a letter pur- 
 porting to come from Terry to Zack Montgomery, pub- 
 lished in Washington, in which he ascribed my action 
 to personal hostility, because he had not supported me 
 in some political aspiration. There is not one particle 
 of truth in that statement. It is a pure invention. In 
 support of his statement he referred to a letter received 
 or an interview had with Judge Heydenfeldt. There 
 is not the slightest foundation for it, and I cannot 
 understand it, except that the man seems to me to have 
 been all changed in the last few years, and he did not 
 hesitate to assert that the official actions of others were 
 governed by improper considerations. I saw charges 
 made by him against judges of the State courts ; that
 
 345 
 
 they had been corrupt in their decisions against him ; 
 that they had been bought. That was the common 
 assertion made by him when decisions were rendered 
 against him." 
 
 He then referred to the above letters of Judge Hey- 
 denfeldt, declaring Terry's assertion to be false. 
 
 It should be borne in mind that Terry's letter to 
 Montgomery was written September 8th. It directly 
 contradicts what he had said to ex-Congressman Wig- 
 ginton on the 5th or 6th of the same month. To that 
 gentleman he declared that he knew of no " old grudge 
 or little difference " between himself and Judge Field. 
 He said he had declined to support the latter for the 
 Presidency, and added : " That may have caused some 
 alienation, but I do not know that Judge Field knew 
 that." 
 
 In his insane rage Terry did not realize how 
 absurd it was to expect people to believe that Judge 
 Sawyer and Judge Sabin, both Republicans, had par- 
 ticipated in putting him in jail, to punish him for not 
 having supported Justice Field for the Presidency in a 
 National Democratic Convention years before. 
 
 Perhaps Terry thought his reference to the fact that 
 Judge Field's name had been previously used in Demo- 
 cratic Conventions, in connection with the Presidency, 
 might have some effect upon President Cleveland's 
 mind.
 
 346 
 
 This letter was not forwarded to Zachariah Mont- 
 gomery until a week after it was written. He then 
 stated in a postscript that he had delayed sending it 
 upon the advice of his attorneys pending the applica- 
 tion to the Circuit Court for his release. Again he 
 charged that the judges had made a false record against 
 him, and that evidence would be presented to the 
 President to show it. 
 
 Terry and his friends brought all the pressure to 
 bear that they could command, but the President 
 refused his petition for a pardon, and, as already 
 shown, the Supreme Court unanimously decided that 
 his imprisonment for contempt had been lawfully 
 ordered. He was therefore obliged to serve out his 
 time. 
 
 Mrs. Terry served her thirty days in jail, and was 
 released on the 3d of October. 
 
 There is a federal statute that provides for the re- 
 duction of a term of imprisonment of criminals for 
 good behavior. Judge Terry sought to have this 
 statute applied in his case, but without success. The 
 Circuit Court held that the law relates to state peni- 
 tentiaries, and not to jails, and that the system of 
 credits could not be applied to prisoners in jail. Be- 
 sides this, the credits in any case are counted by the 
 year, and not by days or months. The law specifies 
 that prisoners in state prisons are entitled to so many
 
 347 
 
 months' time for the first year, and so many for each 
 subsequent year. As Terry's sentence ran for six 
 months, the court said the law could not apply. He 
 consequent!}' remained in jail until the 3d of March, 
 
 1889.
 
 CHAPTEE XI. 
 
 TERRY'S CONTINUED THREATS TO KILL JUSTICE FIELD 
 RETURN OF THE LATTER TO CALIFORNIA IN 1889. 
 
 Justice Field left California for Washington in Sep- 
 tember, 1888, a few days after the denial of Terry's 
 petition to the Circuit Court for a release. The 
 threats against his life and that of Judge Sawyer so 
 boldly made by the Terrys were as well known as the 
 newspaper press could make them. In addition to this 
 source of information, reports came from many other 
 directions, telling of the rage of the Terrys and their 
 murderous intentions. From October, 1888, till his 
 departure for California, in June following, 1889, his 
 mail almost every day contained reports of what they 
 were saying, and the warnings and entreaties of his 
 friends against his return to that State. These threats 
 came to the knowledge of the Attorney- General of the 
 United States, who gave directions to the marshal of 
 the northern district of California to see to it that Jus- 
 tice Field and Judge Sawyer should be protected from 
 personal violence at the hands of these parties. 
 
 Justice Field made but one answer to all who ad- 
 vised against his going to hold court in California in 
 1889, and that was, " I cannot and will not allow
 
 349 
 
 threats of personal violence to deter me from the regu- 
 lar performance of my judicial duties at the times and 
 places fixed by law. As a judge of the highest court 
 of the country, I should be ashamed to look any man 
 in the face if I allowed a ruffian, by threats against my 
 person, to keep me from holding the regular courts in 
 my circuit." 
 
 Terry's murderous intentions became a matter of 
 public notoriety, and members of Congress and Sena- 
 tors from the Pacific Coast, in interviews with the At- 
 torney-General, confirmed the information derived by 
 him from other sources of the peril to which the United 
 States judges in California were subjected. He, in 
 consequence, addressed the following letter on the sub- 
 ject to Marshal Franks : 
 
 "DEPARTMENT OF JUSTICE, 
 " WASHINGTON, April 27, 1889. 
 "JOHN C. FRANKS, 
 
 " United States Marshal, San Francisco, Cal. 
 
 " SIR : The proceedings which have heretofore been 
 had in the case of Mr. and Mrs. Terry in your United 
 States Circuit Court have become matter of public no- 
 toriety, and I deem it my duty to call your attention to 
 the propriety of exercising unusual precaution, in case 
 further proceedings shall be had in that case, for the 
 protection of His Honor Justice Field, or whoever may 
 be called upon to hear and determine the matter. Of 
 course, I do not know what may be the feelings or pur- 
 pose of Mr. and Mrs. Terry in the premises, but many 
 things which have happened indicate that violence on
 
 their part is not impossible. It is due to the dignity 
 and independence of the court and the character of its 
 judges that no effort on the part of the Government 
 shall be spared to make them feel entirely safe and free 
 from anxiety in the discharge of their high duties. 
 
 " You will understand, of course, that this letter is 
 not for the public, but to put you upon your guard. 
 It will be proper for you to show it to the District At- 
 torney if deemed best. 
 
 " Yours truly, 
 
 "W. H. H. MILLEK, 
 " Attorney -General" 
 
 A month later the Attorney-General authorized the 
 employment of special deputies for the purpose named 
 in the foregoing letter.
 
 CHAPTEE XII. 
 
 FUETHER PROCEEDINGS IN THE STATE COURT. JUDGE SUL- 
 
 LIVAN'S DECISION REVERSED. 
 
 Mrs. Terry did not wait for the release of her hus- 
 band from jail before renewing the battle. On the 22d 
 of January, 1889, she gave notice of a motion in the 
 Superior Court for the appointment of a receiver who 
 should take charge of the Sharon estate, which she 
 alleged was being squandered to the injury of her in- 
 terest therein acquired under the judgment of Judge 
 Sullivan. On the 29th of January an injunction was 
 issued by the United States Circuit Court commanding 
 her and all others to desist from this proceeding. The 
 Terrys seemed to feel confident that this would bring 
 on a final trial of strength between the federal and 
 state courts, and that the state court would prevail 
 in enforcing its judgment and orders. 
 
 The motion for a receiver was submitted after full 
 argument, and on the 3d of June following Judge 
 Sullivan rendered a decision asserting the jurisdiction 
 of his court to entertain the motion for a receiver, and 
 declaring the decree of the United States Circuit Court 
 inoperative. In his opinion Judge Sullivan reviewed 
 the opinion of Justice Field in the revivor suit, taking
 
 352 
 
 issue therewith. As that decision had been affirmed 
 by the Supreme Court of the United States nearly a 
 month before, to wit, on the 13th of May, 1889, it was 
 rather late for such a discussion. Having thus de- 
 cided, however, that the motion for a receiver could be 
 made, he set the hearing of the same for July 15, 
 1889. 
 
 On the 27th of May, one week before the rendering 
 of this decision by Judge Sullivan, the mandate of the 
 United States Supreme Court had been filed in the 
 Circuit Court at San Francisco, by which the decree 
 of that court was affirmed. Whether a receiver would 
 be appointed by Judge Sullivan, in the face of the de- 
 cision of the Supreme Court of the United States, 
 became now an interesting question. Terry and his 
 lawyers affected to hold in contempt the Supreme 
 Court decree, and seemed to think no serious attempt 
 would be made to enforce it. 
 
 Meantime, both of the Terrys had been indicted in 
 the United States Circuit Court for the several offenses 
 committed by them in assaulting the marshal in the 
 court-room as hereinbefore described. These indict- 
 ments were filed on the 20th of September. Dilatory 
 motions were granted from time to time, and it was 
 not until the 4th of June that demurrers to the indict- 
 ments were filed. The summer vacation followed 
 without any argument of these demurrers. It was
 
 353 
 
 during this vacation that Justice Field arrived in Cali- 
 fornia, on the 20th of June. The situation then 
 existing was as follows : 
 
 The criminal proceedings against the Terrys were at 
 a standstill, having been allowed to drag along for nine 
 months, with no further progress than the filing of de- 
 murrers to the indictments. 
 
 The appeal to the Supreme Court of the State from 
 Judge Sullivan's order denying a new trial had been 
 argued and submitted on the 4th of May, but no de- 
 cision had been rendered. 
 
 Despite the pendency of that appeal, by reason of 
 which the judgment of the Supreme Court of the State 
 had not yet become final, and despite the mandate of 
 the United States Supreme Court affirming the decree 
 in the revivor case, Judge Sullivan had, as we have 
 already seen, set the 15th of July for the hearing of 
 the motion of the Terrys for the appointment of a re- 
 ceiver to take charge of the Sharon estate. For them 
 to proceed with this motion would be a contempt of 
 the United States Circuit Court. 
 
 The arrival of Justice Field should have instructed 
 Judge Terry that the decree of that court could not be 
 defied with impunity, and that the injunction issued in 
 it against further proceedings upon the judgment in 
 the state court would be enforced with all the power 
 authorized by the Constitution and laws of the United 
 States for the enforcement of judicial process.
 
 354 
 
 As the 15th of July approached, the lawyers who 
 had been associated with Terry commenced discussing 
 among themselves what would be the probable conse- 
 quence to them of disobeying an injunction of the 
 United States Circuit Court. The attorneys for the 
 Sharon estate made known their determination to apply 
 to that Court for the enforcement of its writ in their 
 behalf. The Terrys' experience in resisting the au- 
 thority of that court served as a warning for their 
 attorneys. 
 
 On the morning of the 15th of July Judge Terry 
 and his wife appeared, as usual, in the Superior Court 
 room. Two of their lawyers came in, remained a few 
 minutes and retired. Judge Terry himself remained 
 silent. His wife arose and addressed the court, saying 
 that her lawyers were afraid to appear for her. She 
 said they feared if they should make a motion in her 
 behalf, for the appointment of a receiver, Judge Field 
 would put them in jail ; therefore, she said, she ap- 
 peared for herself. She said if she got in jail she 
 would rather have her husband outside, and this was 
 why she made the motion herself, while he remained a 
 spectator. 
 
 The hearing was postponed for several days. Be- 
 fore the appointed day therefor, the Supreme Court of 
 the State, on the 17th of July, rendered its decision, 
 reversing the order of Judge Sullivan refusing a new
 
 355 
 
 trial, thereby obliterating the judgment in favor of 
 .Sarah Althea, and the previous decision of the appel- 
 late court affirming it. The court held that this 
 previous judgment had not become the law of the case 
 pending the appeal from the order denying a new 
 trial. It held that where two appeals are taken in the 
 same case, one from the judgment and the other from 
 the order denying a new trial, the whole case must be 
 held to be under the control of the Supreme Court 
 until the whole is disposed of, and the case remanded 
 for further proceedings in the court below. The 
 court reversed its previous decision, and declared 
 that if the statements made by Sarah Althea and by 
 her witnesses had been true, she never had been the wife 
 of William Sharon, for the reason that, after the date 
 of the alleged contract of marriage, the parties held 
 themselves out to the public as single and unmarried 
 people, and that even according to the findings of fact 
 by Judge Sullivan the parties had not assumed marital 
 rights, duties, and obligations. The case was there- 
 fore remanded to the Superior Court for a new trial. 
 
 On the 2d of August the demurrers to the several 
 indictments against the Terrys came up to be heard in 
 the United States District Court. The argument upon 
 them concluded on the 5th. On the 7th the demurrer 
 to one of the indictments against Sarah Althea was 
 overruled anil she entered a plea of not guilty. No
 
 356 
 
 decision was rendered at that time upon either of the 
 five other indictments. 
 
 On the following day, August 8th, Justice Field left 
 San Francisco and went to Los Angeles for the pur- 
 pose of holding court.
 
 CHAPTEE XIII. 
 
 ATTEMPTED ASSASSINATION OF JUSTICE FIELD, RESULTING IN 
 TERRY'S OWN DEATH AT THE HANDS OF A DEPUTY 
 UNITED STATES MARSHAL. 
 
 In view of what was so soon to occur, it is important 
 to understand the condition of mind into which Judge 
 Terry and his wife had now wrought themselves. 
 They had been married about two years and a half. 
 In their desperate struggle for a share of a rich man's 
 estate they had made themselves the terror of the 
 community. Armed at all times and ready for mortal 
 combat with whoever opposed their claims, they 
 seemed, up to the 17th of July, to have won their way 
 in the State courts by intimidation. The decision of 
 the United States Circuit Court was rendered before 
 they were married. It proclaimed the pretended mar- 
 riage agreement a forgery, and ordered it to be deliv- 
 ered to the clerk of the court for cancellation. Terry's 
 marriage with Sarah Althea, twelve days after this, 
 was a declaration of intention to resist its authority. 
 
 The conduct of the pair in the Circuit Court on the 
 3d of September must have had some object. They 
 may have thought to break up the session of the court 
 for that day, and to so intimidate the judges that they 
 would not carry out their purpose of rendering the
 
 358 
 
 decision ; or they may have hoped that, if rendered, it 
 would be allowed to slumber without any attempt to 
 enforce it ; or even that a rehearing might be granted, 
 and a favorable decision forced from the court. It 
 takes a brave man on the bench to stand firmly for his 
 convictions in the face of such tactics as were adopted 
 by the Terrys. The scene was expected also to have 
 its effect upon the minds of the judges of the Supreme 
 Court of the State, who then were yet to pass finally 
 upon Sullivan's judgment on the appeal from the order 
 denying a new trial. 
 
 But the Terrys had not looked sufficiently at the 
 possible consequence of their actions. They had thus 
 far gone unresisted. As District Attorney Carey wrote 
 to the Attorney-General : 
 
 " They were unable to appreciate that an officer 
 should perform his official duty when that duty in any 
 way requires that his efforts be directed against them/' 
 
 When, therefore, Justice Field directed the removal 
 of Mrs. Terry from the court, and when her doughty 
 defendant and champion, confident of being able to 
 defeat the order, found himself vanquished in the en- 
 counter, disarmed, arrested, and finally imprisoned, his 
 rage was boundless. He had found a tribunal which 
 cared nothing for his threats, and was able to over- 
 come his violence. A court that would put him in the
 
 359 
 
 Alameda jail for six months for resisting its order 
 would enforce all its decrees with equal certainty. 
 
 From the time of the Terrys' incarceration in the 
 Alameda county jail their threats against Justice Field 
 became a matter of such notoriety that the drift of 
 discussion was not so much whether they would mur- 
 der the Justice, as to when and under what circum- 
 stances they would be likely to do so. 
 
 There is little doubt that Terry made many threats 
 for the express purpose of having them reach the 
 knowledge of Judge Field at Washington, in the hope 
 and belief that they would deter him from going to 
 California. He probably thought that the Judge would 
 prefer to avoid a violent conflict, and that if his ab- 
 sence could be assured it might result in allowing the 
 decree of the United States Circuit Court to remain a 
 dead letter. 
 
 He told many people that Justice Field would not 
 dare come out to the Pacific Coast. He got the idea 
 into his mind, or pretended to, that Justice Field had 
 put him in jail in order to be able to leave for Wash- 
 ington before a meeting could be had with him. Terry 
 would of course have preferred Field's absence and a 
 successful execution of Sullivan's judgment to his 
 presence in the State and the enforcement of the 
 federal decree. 
 
 When the announcement was made that Justice
 
 360 
 
 Field had left Washington for San Francisco, public 
 and private discussions were actively engaged in, as 
 to where he would be likely to encounter danger. 
 A special deputy was sent by the marshal to meet 
 the overland train on which he was travelling, 
 at Reno, in Nevada. The methods of Mrs. Terry de- 
 fied all calculations. She was as likely to make her 
 appearance, with her burly husband as an escort, at 
 the State line, as she finally did at the breakfast table 
 at Lathrop. Justice Field reached his quarters in San 
 Francisco on the 20th of June. From that day until 
 the 14th of August public discussion of what the 
 Terrys would do continued. Some of the newspapers 
 seemed bent upon provoking a conflict, and inquired 
 with devilish mischief when Terry was going to carry 
 out his threatened purpose. 
 
 The threats of the Terrys and the rumors of their 
 intended assault upon Justice Field were reported to 
 him and he was advised to go armed against such 
 assault, which would be aimed against his life. He 
 answered : " No, sir ! I will not carry arms, for when 
 it is known that the judges of our courts are compelled 
 to arm themselves against assaults in consequence of 
 their judicial action it will be time to dissolve the 
 courts, consider government a failure, and let society 
 lapse into barbarism." 
 
 As the time approached for the hearing of the
 
 361 
 
 motion for a receiver before Judge Sullivan, July 
 loth, grave apprehensions were entertained of serious 
 trouble. Great impatience was expressed with the 
 Supreme Court of the State for not rendering its de- 
 cision upon the appeal from the order denying a new 
 trial. It was hoped that the previous decision might 
 be reversed, and a conflict between the two jurisdic- 
 tions thus avoided. When the decision came, on the 
 17th of July, there seemed to be some relaxation of 
 the great tension in the public mind. With the 
 Supreme Court of the State, as well as the Supreme 
 Court of the United States, squarely on the record 
 against Mrs. Terry's pretensions to have been the wife 
 of William Sharon, it was hoped that the long war had 
 ended. 
 
 When Justice Field left San Francisco for Los 
 Angeles he had no apprehensions of danger, and 
 strenuously objected to being accompanied by the dep- 
 uty marshal. Some of his friends were less confident. 
 They realized better than he did the bitterness that dwelt 
 in the hearts of Terry and his wife, intensified as it was 
 by the realization of the dismal fact that their last 
 hope had expired with the decision of the Supreme 
 Court of the State. The marshal was impressed with 
 the danger that would attend Justice Field's journey 
 to and from the court at Los Angeles. 
 
 He went from San Francisco on the 8th of August.
 
 After holding court in Los Angeles he took the 
 train for San Francisco August 13th, the deputy 
 marshal occupying a section in the sleeping car 
 directly opposite to his. Judge Terry and his wife. left 
 San Francisco for their home in Fresno the day fol- 
 lowing Justice Field's departure for Los Angeles. 
 Fresno is a station on the Southern Pacific between 
 Los Angeles and San Francisco. His train left 
 Los Angeles for San Francisco at 1.30 Tuesday 
 afternoon, August 13th. The deputy marshal got out 
 at all the stations at which any stop was made for 
 any length of time, to observe who got on board. 
 Before retiring he asked the porter of the car to be 
 sure and wake him in time for him to get dressed 
 before they reached Fresno. At Fresno, where they 
 arrived during the night, he got off the train and 
 went out on the platform. Among the passengers 
 who took the train at that station were Judge Terry 
 iiiid wife. He immediately returned to the sleeper and 
 informed Justice Field, who had been awakened by the 
 stopping of the train, that Terry and his wife had got 
 on the train. He replied : " Very well. I hope that 
 they will have a good sleep." 
 
 Neagle slept no more that night. The train reached 
 Merced, an intervening station between Fresno and 
 Lathrop, at 5.30 that morning. Neagle there conferred 
 with the conductor, on the platform, and referred to
 
 363 
 
 the threats so often made by the Terrys. He told him 
 that Justice Field was on the train, and that he was 
 accompanying him. He requested him to telegraph to 
 Lathrop, to the constable usually in attendance there, 
 to be at hand, and that if any trouble occurred he 
 would assist in preventing violence. 
 
 Justice Field got up before the train reached 
 Lathrop, and told the deputy marshal that he was 
 going to take his breakfast in the dining-room at that 
 place. The following is his statement of what took 
 place : 
 
 " He said to me, ' Judge, you can get a good break- 
 fast at the buffet on board.' I did not think at the 
 time what he was driving at, though I am now satisfied 
 that he wanted me to take breakfast on the car and not 
 get off. I said I prefer to have my breakfast at this 
 station. I think I said I had come down from the 
 Yosemite Valley a few days before, and got a good 
 breakfast there, and was going there for that purpose. 
 
 " He replied : ' I will go with you.' We were among 
 the first to get off from the train." 
 
 As soon as the train arrived, Justice Field, leaning 
 on the arm of Neagle, because of his lameness, pro- 
 ceeded to the dining-room, where they took seats for 
 breakfast. 
 
 There were in this dining-room fifteen tables, each 
 one of which was ten feet long and four feet wide.
 
 364 
 
 They were arranged in three rows of five each, the 
 tables running lengthwise with each other, with spaces 
 between them of four feet. The aisles between the 
 two rows were about seven feet apart, the rows running 
 north and south. 
 
 Justice Field and Neagle were seated on the west 
 side of the middle table in the middle row, the Justice 
 being nearer the lower corner of the table, and Neagle 
 at his left. Very soon after Justice Field says u a 
 few minutes," while Neagle says " it may be a minute 
 or so " Judge Terry and his wife entered the dining- 
 room from the east. The} r walked up the aisle, be- 
 tween the east and middle rows of tables, so that Justice 
 Field and Neagle were faced towards them. Judge 
 Terry preceded his wife. Justice Field saw them and 
 called Neagle's attention to them. He had already 
 seen them. 
 
 As soon as Mrs. Terry had reached a point nearly 
 in front of Justice Field, she turned suddenly around, 
 and scowling viciously, went in great haste out of the 
 door at which she had come in. This was for the pur- 
 pose, as it afterwards appeared, of getting her satchel 
 with the pistol in it, which she had left in the car. 
 Judge Terry apparently paid no attention to this move- 
 ment, but proceeded to the next table above and seated 
 himself at the upper end of it, facing the table at which 
 Justice Field was seated. Thus there were between
 
 365 
 
 the two men as they sat at the tables a distance equal 
 to two table-lengths and one space of four feet, making 
 about twenty -four feet. Terry had been seated but a 
 very short time Justice Field thought it a moment or 
 two, Neagle thought it three or four minutes when he 
 arose and moved down towards the door, this time 
 walking through the aisle behind Justice Field, instead 
 of the one in front of him as before. Justice Field 
 supposed, when he arose, that he was going out to meet 
 his wife, as she had not returned, and went on with his 
 breakfast ; but when Terry had reached a point behind 
 him, and a little to the right, within two or three feet 
 of him, he halted. Justice Field was not aware of this, 
 nor did he know that Terry had stopped, until he was 
 struck by him a violent blow in the face from behind, 
 followed instantaneously by another blow at the back 
 of his head. Neagle had seen Terry stop and turn. 
 Between this and Terry's assault there was a pause of 
 four or five seconds. Instantaneously upon Terry's 
 dealing a blow, Neagle leaped from his chair and inter- 
 posed his diminutive form between Justice Field and 
 the enraged and powerful man, who now sought to 
 execute his long-announced and murderous purpose. 
 Terry gave Justice Field no warning of his presence 
 except a blow from behind with his right hand. 
 
 As Neagle rose, he shouted : " Stop, stop, I am an 
 officer." Judge Terry had drawn back his right arm
 
 for a third blow at Justice Field, and with clinched fist 
 was about to strike, when his attention was thus 
 arrested by Neagle, and looking at him he evidently 
 recognized in him the man who had drawn the knife 
 from his hand in the corridor before the marshal's 
 office on the third of September of the preceding year, 
 while he was attempting to cut his way into the mar- 
 shal's office. Neagle put his right hand up as he 
 ordered Terry to stop, when Terry carried his right 
 hand at once to his breast, evidently to seize the knife 
 which he had told the Alameda county jailer he 
 " always carried." Says Neagle : 
 
 " This hand came right to his breast. It went a 
 good deal quicker than I can explain it. He continued 
 looking at me in a desperate manner and his hand got 
 there." 
 
 The expression of Terry's face at that time was de- 
 scribed by Neagle in these words : 
 
 " The most desperate expression that I ever saw on 
 a man's face, and I have seen a good many in my time. 
 It meant life or death to me or him." 
 
 Having thus for a moment diverted the blow aimed 
 at Justice Field and engaged Terry himself, Neagle did 
 not wait to be butchered with the latter's ready knife, 
 which he was now attempting to draw, but raised his 
 six-shooter with his left hand (he is left-handed) and
 
 367 
 
 holding the barrel of it with his right hand, to prevent 
 the pistol from being knocked out of his hands, he shot 
 twice ; the first shot into Terry's body and the second 
 at his head. Terry immediate!}- commenced sinking 
 very slowly. Knowing by experience that men mor- 
 tally wounded have been often known to kill those with 
 whom they were engaged in such an encounter, Neagle 
 fired the second shot to defend himself and Justice 
 Field against such a possibility. 
 
 The following is an extract from Justice Field's tes- 
 timony, commencing at the point where Judge Terry 
 rose from his seat at the breakfast table : 
 
 "I supposed, 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 around 
 back of me. I did not see him, and he 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 around and 
 saw that great form of Terry's with his arm raised and 
 fist clinched 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 I did, but I did 
 not. I looked around and saw Terry on the floor. I 
 looked at him and saw that particular 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 facul- 
 ties that constitute life instantly extinguished without 
 being affected, and I was. I looked at him for a mo- 
 ment, then went around and looked at him again, and 
 passed on. Great excitement followed. A gentleman 
 came to me, whom I did not know, but T 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 col- 
 lected, 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. Lidgerwood, said : 'I think you 
 had better.' And with the two I went to the car. I 
 asked Mr. Lidgerwood to go back and get my hat and 
 cane, which he did. The marshal went with me, re- 
 mained 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 proceed- 
 ings. 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 con- 
 vinced that had the marshal delayed two seconds both 
 he and myself would have been the victims of Terry. 
 
 " In answer to a question whether he had a pistol 
 or other weapon on the occasion of the homicide,
 
 369 
 
 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 this State, on the 13th of Oc- 
 tober, 1857, except once, when, years ago, I rode over 
 the Sierra Nevada mountains in a buggy with General 
 Hutchinson, and at that time I took a pistol with me 
 for protection in the mountains. With that exception, 
 I have not had on my person, or used, any pistol or 
 other deadly weapon.' " 
 
 Judge Terry had fallen very near the place where he 
 first stopped, near the seat occupied by Justice Field 
 at the table. 
 
 Neagle testified that if Justice Field had had a 
 weapon, and been active in using it, he was at such 
 a disadvantage, seated as he was, with Terry standing 
 over him, that he would have been unable to raise his 
 hand in his own defense. 
 
 A large number of witnesses were examined, all of 
 whom agreed upon the main facts as above stated. 
 Some of them distinctly heard the blows administered 
 by Terry upon Justice Field's face and head. All 
 testified to the loud warning given Terry by Neagle 
 that he was an officer of the law, accompanied by his 
 command that Terry should desist. It was all the 
 work of a few seconds. Terry's sudden attack, the 
 quick progress of which, from the first blow, was 
 neither arrested nor slackened until he was disabled 
 by the bullet from Neagle's pistol, could have been 
 dealt with in no other way. It was evidently a ques-
 
 370 
 
 tion of the instant whether Terry's knife or Neagle's 
 pistol should prevail. Says Neagle : 
 
 " He never took his eyes off me after he looked at 
 me, or I mine off him. I did not hear him say any- 
 thing. The only thing was he looked like an infuriated 
 giant to me. I believed if I waited two seconds I 
 should have been cut to pieces. I was within four 
 feet of him." 
 
 Q. " What did the motion that Judge Terry made 
 with his right hand indicate to you ? " 
 
 A. " That he would have had that knife out there 
 within another second and a half, and trying to cut 
 my head off." 
 
 Terry, in action at such a time, from all accounts, 
 was more like an enraged wild animal than a human 
 being. The supreme moment had arrived to which he 
 had been looking forward for nearly a year, when the 
 life of the man he hated was in his hands. He had 
 repeatedly sworn to take it. Not privately had he 
 made these threats. With an insolence and an audac- 
 ity born of lawlessness and of a belief that he could hew 
 his way with a bowie-knife in courts as well as on the 
 streets, he had publicly sentenced Judge Field to 
 death as a penalty for vindicating the majesty of the 
 law in his imprisonment for contempt. 
 
 It would have been the wildest folly that can be 
 conceived of for the murderous assault of such a man 
 to have been met with mild persuasion, or an attempt 
 to arrest him. As well order a hungry tiger to desist
 
 37L 
 
 from springing ut his prey, to sheathe his outstretched 
 claws and suffer himself to be bound, as to have met 
 Terry with anything less than the force to which he 
 was himself appealing. Every man who knows any- 
 thing of the mode of life and of quarrelling and fight- 
 ing among the men of Terry's class knows full well 
 that when they strike a blow they mean to follow it up 
 to the death, and they mean to take no chances. The 
 only way to prevent the execution of Terry's revenge- 
 ful and openly avowed purpose was by killing him on 
 the spot. Only a lunatic or an imbecile or an accom- 
 plice would have pursued any other course in Neagle's 
 place than the one he pursued, always supposing he 
 had Neagle's nerve and cool self-possession to guide 
 him in such a crisis. 
 
 While this tragedy was being enacted Mrs. Terry 
 was absent, having returned to the car for the satchel 
 containing her pistol. Before she returned, the shot 
 had been fired that defeated the conspiracy between 
 her and her husband against the life of a judge for 
 the performance of his official duties. She returned 
 to the hotel with her satchel in her hand just as her 
 husband met his death. The manager of the hotel 
 stopped her at the door she was entering, and seized 
 her satchel. She did not relinquish it, but both 
 struggled for its possession. A witness testified that 
 she screamed out while so struggling : " Let me get at
 
 372 
 
 it ; I will fix him." Many witnesses testified to her 
 frantic endeavor to get the pistol. She called upon the 
 crowd to hang the man that killed Judge Terry, and 
 cried out, " Lynch Judge Field." Again and again she 
 made frantic appeals to those present to lynch Judge 
 Field. She tried to enter the car where he was, but 
 was not permitted to do so. She cried out, " If I had 
 my pistol I would fix him." 
 
 The testimony subsequently taken left no room to 
 doubt that Terry had his deadly knife in its place in 
 his breast at the time he made the attack on Justice 
 Field. As the crowd were all engaged in breakfasting, 
 his movements attracted little attention, and his motion 
 toward his breast for the knife escaped the notice of 
 all but Neagle and one other witness, Neagle rushed 
 between Terry and Justice Field, and the latter had not 
 a complete view of his assailant at the moment when 
 the blow intended for him was changed into a move- 
 ment for the knife with which Judge Terry intended to 
 dispose of the alert little man, Avith whom he had had 
 a former experience, and who now stood between him 
 and the object of his greater wrath. 
 
 But the conduct of Mrs. Terry immediately after the 
 homicide w T as proof enough that her husband's knife 
 had been in readiness. The conductor of the train 
 swore that he saw her lying over the body of her hus- 
 band about a minute, and when she rose up she
 
 373 
 
 unbuttoned his vest and said : " You may search him ; 
 he has got no weapon on him." Not a word had been 
 said about his having had a weapon. No one had made 
 a movement towards searching him, as ought to have 
 been done; but this woman, who had been to the car 
 for her pistol and returned with it to join, if necessary, 
 in the murderous work, had all the time and opportun- 
 ity necessary for taking the knife from its resting-place 
 under his vest, smearing one of her hands with his 
 blood, which plainly showed where it had been and 
 what she had been doing. Neagle could not search 
 the body, for his whole attention was directed to the 
 protection of Justice Field. Mrs. Terry repeated the 
 challenge to search the body for the knife after it had 
 been removed. This showed clearly that the idea 
 uppermost in her mind was to then and there manu- 
 facture testimony that he had not been armed at all. 
 Her eagerness on this subject betrayed her. Had she 
 herself then been searched, after rising from Terry's 
 body, the knife would doubtless have been found con- 
 cealed upon her person. A number of witnesses tes- 
 tified to her conduct as above described. She said 
 also : " You will find that he has no arms, for I took 
 them from him in the car, and I said to him that I did 
 not want him to shoot Justice Field, but I did not 
 object to a fist bout." 
 
 This reference to a fist bout was, of course, an
 
 374 
 
 admission that they had premeditated the assault. It 
 was Judge Terry's knife and not a pistol that Judge 
 Field had to fear. Terry's threats had always pointed 
 to some gross indignity that he would put upon Justice 
 Field, and then kill him if he resented or resisted it. 
 One of his threats was that he would horsewhip Judge 
 Field, and that if he resented it he would kill him. In 
 short, his intentions seem to have been to commit an 
 assassination in alleged self-defense. 
 
 The train soon left the station for San Francisco. 
 A constable of Lathrop had taken the train, and ad- 
 dressing Neagle told him that he would have to arrest 
 him. This officer had no warrant and did not himself 
 witness the homicide. Justice Field told him that he 
 ought to have a warrant before making the arrest, re- 
 marking, if a man should shoot another when he was 
 about to commit a felony, such as setting fire to your' 
 house, you would not arrest him for a murder ; or if a 
 highwayman got on the train to plunder. The officer 
 replied very courteously by the suggestion that there 
 would have to be an inquest. Neagle at once said, '' I 
 am ready to go," thinking it better to avoid all contro- 
 versy, and being perfectly willing to answer anywhere 
 for what he had done. Arriving at the next station 
 (Tracy). Neagle and the officer took a buggy and went 
 to the county jail at Stockton. Thus was a deputy 
 marshal of the United States withdrawn from the
 
 375 
 
 service of his Government while engaged in a most 
 important and as yet unfinished duty because he had 
 with rigid faithfulness performed that duty. He was 
 arrested by an officer who had no warrant and had not 
 witnessed the homicide, and lodged in jail. 
 
 Meanwhile a detective in San Francisco received a 
 telegram from the sheriff of San Joaquin county to 
 arrest Judge Field. Supposing it to be his duty to 
 comply with this command, the detective crossed the 
 bay to meet the train for that purpose. Marshal 
 Franks said to him : " You shall not arrest him. You 
 have no right to do so. It would be an outrage, and 
 if you attempt it I will arrest you." 
 
 The news of these exciting events produced an in- 
 tense excitement in San Francisco. Upon his arrival 
 at this place, under the escort of the marshal and 
 many friends, Justice Field repaired to his quarters in 
 the Palace Hotel.
 
 CHAPTER XIV. 
 
 SARAH ALTHEA TERRY CHARGES JUSTICE FIELD AND DEPUTY 
 MARSHAL NEAGLE WITH MURDER. 
 
 The body of Judge Terry was taken from Lathrop 
 to Stockton, accompanied by his wife, soon after his 
 death. On that very evening Sarah Althea Terry 
 swore to a complaint before a justice of the peace 
 named Swain, charging Justice Field and Deputy 
 Marshal Neagle with murder. After the investigation 
 before the coroner Assistant District Attorney Gibson 
 stated that the charge against Justice Field would be 
 dismissed, as there was no evidence whatever to con- 
 nect him with the killing. 
 
 Mrs. Terry did not see the shooting and was not in 
 the hotel at the time of the homicide. Having, there- 
 fore, no knowledge upon which to base her statement, 
 her affidavit was entitled to no greater consideration 
 than if it had stated that it was made solely upon her 
 belief without any positive information on the subject. 
 
 Only the most violent of Terry's friends favored the 
 wanton indignity upon Justice Field, and his arrest, 
 but they had sufficient influence with the district attor- 
 ney, Mr. White, a young and inexperienced lawyer, to 
 carry him along with them. The justice of the peace
 
 377 
 
 before whom Sarah Althea had laid the information 
 issued a warrant on the following day for the arrest 
 both of Justice Field and Neagle. From this time 
 this magistrate and the district attorney appeared to 
 act under orders from Mrs. Terry. 
 
 The preliminary examination was set for Wednesday 
 of the following week, during which time the district 
 attorney stated for publication that Justice Field 
 would have to go to jail and stay there during the six 
 intervening days. It was obvious to all rational minds 
 that Mrs. Terry's purpose was to use the machinery of 
 the magistrate's court for the purpose of taking Judge 
 Field to Stockton, where she could execute her threats 
 of killing him or having him killed ; and if she should 
 fail to do so, or postpone it, then to have the satisfac- 
 tion of placing a justice of the Supreme Court of the 
 United States in a prisoner's cell, and hold him there 
 for six days awaiting an examination, that being the 
 extreme length of time that he could be so held under 
 the statute. The district attorney was asked if he had 
 realized the danger of bringing Justice Field to Stock- 
 ton, where he might come in contact with Mrs. Terry. 
 The officer replied : / 
 
 ' We had intended that if Justice Field were brought 
 here, Mrs. Terry would be placed under the care of 
 her friends, and that all precautions to prevent any 
 difficulty that was in the power of the district attorney
 
 378 
 
 would be taken." That was to say, Mrs. Terry would 
 do no violence to Justice Field unless " her friends " 
 permitted her to do so. As some of them were pos- 
 sessed of the same murderous feelings towards Justice 
 Field as those named here, the whole transaction had 
 the appearance of a conspiracy to murder him. 
 
 No magistrate can lawfully issue a warrant without 
 sufficient evidence before him to show probable cause. 
 It was a gross abuse of power and an arbitrary and 
 lawless act to heed the oath of this frenzied woman, 
 who notoriously had not witnessed the shooting, and 
 had, but a few hours before, angrily insisted upon hav- 
 ing her own pistol returned to her that she, herself, 
 might kill Justice Field. It was beyond belief that the 
 magistrate believed that there was probabla cause, or 
 the slightest appearance of a cause, upon which to base 
 the issue of the warrant. 
 
 Neagle was brought into court at Stockton at 10 
 o'clock on the morning after the shooting, to wit, on 
 Thursday, the 15th, and his preliminary examination 
 set for Wednesday, the 21st. Bail could not be given 
 prior to that examination. This examination could 
 have proceeded at once, and a delay of six days can 
 only be accounted for by attributing it to the malice 
 and vindictiveness of the woman who seemed to be in 
 charge of the proceedings. 
 
 The keen disappointment of Mrs. Terry, and those
 
 379 
 
 who were under her influence, at Judge Terry's failure 
 to murder Justice Field, must have been greatly 
 soothed by the prospect of having yet another chance 
 at the latter's life, and, in any event, of seeing him in 
 a cell in the jail during the six days for which the ex- 
 amination could be delayed for that express purpose. 
 The sheriff of San Joaquin county proceeded to San 
 Francisco with the warrant for his arrest on Thursday 
 evening. In company with the chief of police and 
 Marshal Franks, he called upon Justice Field, and 
 after a few moments' conversation it was arranged that 
 he should present the warrant at one o'clock on the 
 following day, at the building in which the federal 
 courts are held.
 
 CHAPTEE XY. 
 
 JUSTICE FIELD'S ARREST AND PETITION FOR RELEASE 
 ON HABEAS CORPUS. 
 
 At the appointed hour Justice Field awaited the 
 sheriff in his chambers, surrounded by friends, includ- 
 ing judges, ex-judges, and members of the bar. As 
 the sheriff entered Justice Field arose and pleasantly 
 greeted him. The sheriff bore himself with dignity, 
 and with a due sense of the extraordinary proceeding 
 in which his duty as an officer required him to be a 
 participant. With some agitation he said : " Justice 
 Field, I presume you are aware of the nature of my 
 ' errand." " Yes," replied the Justice, " proceed with 
 your duty ; I am ready. An officer should always do 
 his duty." The sheriff stated to him that he had a 
 warrant, duly executed and authenticated, and asked 
 him if he should read it. " I will waive that, Mr. 
 Sheriff," replied the Justice. The sheriff then handed 
 him the warrant, which he read, folded it up and 
 handed it back, saying pleasantly : " I recognize your 
 authority, sir, and submit to the arrest ; I am, sir, in 
 your custody." 
 
 Meanwhile a petition had been prepared to be pre- 
 sented to Judge Sawyer for a writ of habeas corpus,
 
 381 
 
 returnable at once before the United States court. As 
 soon as the arrest was made the petition was signed 
 and presented to Judge Sawyer, who ordered the writ 
 to issue returnable forthwith. In a very few minutes 
 U. S. Marshal Franks served the writ on the sheriff. 
 
 While the proceedings looking to the issue of the 
 writ were going on, Justice Field had seated himself, 
 and invited the sheriff to be seated. The latter com- 
 plied with the invitation, and began to say something 
 in regard to the unpleasant duty which had devolved 
 upon him, but Justice Field promptly replied : " Not 
 so, not so ; you are but doing your plain duty, and I 
 mine in submitting to arrest. It is the first duty of 
 judges to obey the law." 
 
 As soon as the habeas corpus writ had been served, 
 the sheriff said he was ready to go into the court. 
 " Let me walk with you," said Justice Field, as they 
 arose, and took the sheriff's arm. In that way they 
 entered the court-room. Justice Field seated himself 
 in one of the chairs usually occupied by jurors. Time 
 was given to the sheriff to make a formal return to the 
 writ, and in a few minutes he formally presented it. 
 The petition of Judge Field for the writ set forth his 
 official character, and the duties imposed upon him by 
 law, and alleged that he had been illegally arrested, 
 while he was in the discharge of those duties, and that 
 his illegal detention interfered with and prevented him 
 from discharging them.
 
 382 
 
 Then followed a statement of the facts, showing the 
 arrest and detention to be illegal. This statement em- 
 braced the principal facts connected with the contempt 
 proceedings in 1888, and the threats then and there- 
 after made by the Terrys of violence upon Justice 
 Field ; the precautions taken in consequence thereof 
 by the Department of Justice for his protection from 
 violence at their hands, and the murderous assault 
 made upon him, and his defense by Deputy Marshal 
 Neagle, resulting in the death of Terry, and that he, the 
 petitioner, in no manner defended or protected himself, 
 and gave no directions to the deputy marshal, and that 
 he was not armed with any weapon. The petition then 
 states : " That under the circumstances detailed, the 
 said Sarah Althea Terry, as your petitioner is informed 
 and believes, and upon such information and belief 
 alleges, falsely and maliciously sw r ore out the warrant 
 of arrest hereinbefore set out against your petitioner, 
 without any further basis for the charge of murder 
 than the facts hereinbefore detailed, and that the war- 
 rant aforesaid was issued by such justice of the peace, 
 without any just or probable cause therefor. * * * 
 And your petitioner further represents that the charge 
 against him, and the warrant of arrest in the hands of 
 said sheriff, are founded upon the sole affidavit of Mrs. 
 Sarah Althea Terry, who was not present and did not 
 see the shooting which caused the death of said David 
 S. Terry."
 
 383 
 
 In order to show the little reliance to be placed in 
 the oath of Mrs. Terry, the petition stated : " That in a 
 suit brought by William Sharon, now deceased, against 
 her before her marriage to the said Terry, it was 
 proved and held by the Circuit Court of the United 
 States that she had committed the forgery of the docu- 
 ment produced in that case, and had attempted to sup- 
 port it by perjury and subornation of perjury, and had 
 also been guilty of acts and conduct showing herself to 
 be an abandoned woman, without veracity. 
 
 "Your petitioner further represents that the aban- 
 doned character of the said Sarah Althea Terry, and 
 the fact that she was found guilty of perjury and for- 
 gery in the case above mentioned by the said Circuit 
 Court, and the fact of the revengeful malice entertained 
 toward your petitioner by said Sarah Althea Terry, are 
 notorious in the State of California, and are notorious 
 in the city of Stockton, and as your petitioner believes 
 are well known to the district attorney of the said 
 county of San Joaquin, and also to the said justice of 
 the peace who issued the said warrant ; and your peti- 
 tioner further alleges that had either of the said officers 
 taken any pains whatever to ascertain the truth in the 
 case, he would have ascertained and known that 
 there was not the slightest pretext or foundation for 
 any such charge as was made, and also that the affi- 
 davit of the said Sarah Althea Terry was not entitled 
 to the slightest consideration whatever.
 
 384 
 
 " Your petitioner further states that it is to him in- 
 comprehensible how any man, acting in a consideration 
 of duty, could have listened one moment to charges 
 from such a source, and without having sought some 
 confirmation from disinterested witnesses ; and your 
 petitioner believes and charges that the whole object 
 of the proceeding is to subject your petitioner to the 
 humiliation of arrest and confinement at Stockton, 
 where the said Sarah Althea Terry may be able, by the 
 aid of partisans of hers, to carry out her long-continued 
 and repeated threats of personal violence upon your 
 petitioner, and to prevent your petitioner from dis- 
 charging the duties of his office in cases pending 
 against her in the federal court at San Francisco." 
 
 The sheriff's return was as follows : 
 
 "Keturn of sheriff of San Joaquin county, Gala., 
 County of San Joaquin, State of California : 
 
 " SHERIFF'S OFFICE. 
 " To the HonoraUe Circuit Court of the United States 
 
 for the Northern District of California : 
 " I hereby certify and return that before the coming 
 to me of the hereto-annexed writ of habeas corpus, the 
 said Stephen J. Field was committed to my custody, 
 and is detained by me by virtue of a warrant issued 
 out of the justice's court of Stockton township, State 
 of California, county of San Joaquin, and by the 
 endorsement made upon said warrant. Copy of said 
 warrant and endorsement is annexed hereto, and made 
 a part of this return. Nevertheless, I have the body
 
 385 
 
 of the said Stephen J. Field before the honorable 
 court, as I am in the said writ commanded. 
 "August 16, 1889. 
 
 "THOMAS CUNNINGHAM, 
 " Sheriff, San Joaquin Co., California? 
 
 In order to give the petitioner time to traverse the 
 return if he thought it expedient to do so, and to give 
 him and the State time to produce witnesses, the fur- 
 ther hearing upon the return was adjourned until the 
 following Thursday morning, the 22d, and the peti- 
 tioner was released on his recognizance with a bond 
 fixed at $5,000. 
 
 On the same day a petition on the part of Neagle 
 was presented to Judge Sawyer asking that a writ of 
 habeas corpus issue in his behalf to Sheriff Cunning- 
 ham. The petition was granted at once, and served 
 upon the sheriff immediately after the service of the writ 
 issued on behalf of Justice Field. Early on the morn- 
 ing of Saturday, August 17, Neagle was brought from 
 Stockton by the sheriff at 4.30 A. M. District Attor- 
 ney White and Mrs. Terry's lawyer, Maguire, were 
 duly notified of this movement and were passengers 
 on the same train. At 10.30 Sheriff Cunningham ap- 
 peared in the Circuit Court with Neagle to respond 
 to the writ. He returned that he held Neagle in 
 custody under a warrant issued by a justice of the 
 peace of that county, a copy of which he produced ; 
 and also a copy of the affidavit of Sarah Althea Terry
 
 386 
 
 upon which the warrant was issued. A traverse to 
 that return was then filed, presenting various grounds 
 why the petitioner should not be held, the most im- 
 portant 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 perform- 
 ance of his duty, could not, for an act constituting the 
 very performance of that duty, be taken from the fur- 
 ther discharge 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 tribunals 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 was charged could only be in- 
 quired into before the tribunals of the State.
 
 CHAPTER XVI. 
 
 JUDGE TEEEY'S FUNEEAL EEFUSAL OF THE SUPEEME COUET 
 OF CALIFOENIA TO ADJOUEN ON THE OCCASION. 
 
 The funeral of Judge Terry occurred on Friday, the 
 16th. An unsuccessful attempt was made for a public 
 demonstration. The fear entertained by some that 
 eulogies of an incendiary character would be delivered 
 was not realized. The funeral passed off without ex- 
 citement. The rector being absent, the funeral service 
 was read by a vestryman of the church. 
 
 On the day after Judge Terry's death the fol- 
 lowing proceedings occurred in the Supreme Court of 
 the State : 
 
 Late in the afternoon, just after the counsel in a 
 certain action had concluded their argument, and be- 
 fore the next cause on the calendar was called, James 
 L. Crittenden, Esq., who was accompanied by W. T. 
 Baggett, Esq., arose to address the court. He said : 
 " Your honors, it has become my painful and sad duty 
 to formally announce to the court the death of a former 
 chief justice " 
 
 Chief Justice Beatty: "Mr. Crittenden, I think that 
 is a matter which should be postpone^ until the court 
 has had a consultation about it."
 
 388 
 
 The court then, without leaving the bench, held a 
 whispered consultation. Mr. Crittenden then went on to 
 say : " I was doing this at the request of several friends 
 of the deceased. It has been customary for the court 
 to take formal action prior to the funeral. In this in- 
 stance, I understand the funeral is to take place to- 
 morrow." 
 
 Chief Justice Beatty : " Mr. Crittenden, the mem- 
 bers of the court wish to consult with each other on 
 this matter, and you had better postpone your motion 
 of formal announcement until to-morrow morning." 
 
 Mr. Crittenden and Mr. Baggett then withdrew from 
 the court-room. 
 
 On the following day, in the presence of a large 
 assembly, including an unusually large attendance 
 of attorneys, Mr. Crittenden renewed his motion. He 
 said: 
 
 " If the court please, I desire to renew the matter 
 which I began to present last evening. As a friend a 
 personal friend of the late Judge Terry, I should deem 
 myself very cold, indeed, and very far from discharging 
 the duty which is imposed upon that relation, if I did 
 not present the matter which I propose to present to 
 this bench this morning. I have known the gentleman 
 to whom I have reference for over thirty years, and I 
 desire simply now, in stating that I make this motion, 
 to say that the friendship of so many years, and the 
 acquaintance and intimacy existing between that gentle- 
 man and his family and myself for so long a period, 
 require that I should at this time move this court, as a
 
 389 
 
 court, out of recollection for the memory of the man 
 who presided in the Supreme Court of this State for so 
 many years with honor, ability, character, and integrity, 
 and, therefore, I ask this court, out of respect for his 
 memory, to adjourn during the day on which he is to 
 be buried, which is to-day." 
 
 Chief Justice Beatty said : 
 
 " I regret very much that counsel should have per- 
 sisted in making this formal announcement, after the 
 intimation from the court. Upon full consultation we 
 thought it would be better that it should not be done. 
 The circumstances of Judge Terry's death are notori- 
 ous, and under these circumstances this court had de- 
 termined that it would be better to pass this matter in 
 silence, and not to take any action upon it ; and that is 
 the order of the court." 
 
 The deceased had been a chief justice of the 
 tribunal which, by its silence, thus emphasized its 
 condemnation of the conduct by which he had placed 
 himself without the pale of its respect.
 
 CHAPTER XVII. 
 
 HABEAS CORPUS PROCEEDINGS IN JUSTICE FIELD'S CASE. 
 
 On Thursday, August 22d, the hearing of the habeas 
 corpus case of Justice Field commenced in the 
 United States Circuit Court, under orders from the 
 Attorney-General, to whom a report of the whole 
 matter had been telegraphed. The United States dis- 
 trict attorney appeared on behalf of Justice Field. 
 In addition to him there also appeared as counsel for 
 Justice Field, Hon. Richard T. Mesick, Saml. M. 
 Wilson, Esq., and W. F. Herrin, Esq. The formal re- 
 turn of the writ of habeas corpus had been made by 
 the sheriff of San Joaquin county on the 16th. To 
 that return Justice Field presented a traverse, which 
 was in the following language, and was signed and 
 sworn to by him : 
 
 " The petitioner, Stephen J. Field, traverses the re- 
 turn of the sheriff of San Joaquin county, State of Cal- 
 ifornia, made by him to the writ of habeas corpus by the 
 circuit judge on the ninth circuit, and made returnable 
 before the Circuit Court of said circuit, and avers : 
 
 "That he is a justice of the Supreme Court of the 
 United States, allotted to the ninth judicial circuit, and 
 is now and has been for several weeks in California, in 
 attendance upon the Circuit Court of said circuit in the 
 discharge of his judicial duties ; and, further, that the
 
 391 
 
 said warrant of the justice of the peace, H. V. J. Swain, 
 in Stockton, California, issued on the 14th day of Au- 
 gust, 1889, under which the petitioner is held, was issued 
 by said justice of the peace without reasonable or proba- 
 ble cause, upon the sole affidavit of one Sarah Althea 
 Terry, who did not see the commission of the act which 
 she charges to have been a murder, and who is herself 
 a woman of abandoned character, and utterly unworthy 
 of belief respecting any matter whatever ; and, further, 
 that the said warrant was issued in the execution of a 
 conspiracy, as your petitioner is informed, believes, and 
 charges, between the said Sarah Althea Terry and the 
 district attorney, White, and the said justice of the 
 peace, H. V. J. Swain, and one E. L. Colnon, of said 
 Stockton, to prevent by force and intimidation your 
 petitioner from discharging the duties of his office here- 
 after, and to injure him in his person on account of the 
 lawful discharge of the duties of his office heretofore, 
 by taking him to Stockton, where he could be subjected 
 to indignities and humiliation, and where they might 
 compass his death. 
 
 " That the said conspiracy is a crime against the 
 United States, under the laws thereof, and was to be 
 executed by an abuse of the process of the State court, 
 two of said conspirators being officers of the said county 
 of San Joaquin, one the district attorney and the other 
 a justice of the peace, the one to direct and the other 
 to issue the warrant upon which your petitioner could 
 be arrested. 
 
 "And the petitioner further avers that the issue of 
 said writ of habeas corpus and the discharge of your 
 petitioner thereunder were and are essential to defeat 
 the execution of the said conspiracy. 
 
 "And your petitioner further avers that the accusa- 
 tion of crime against him, upon which said warrant was 
 issued, is a malicious and malignant falsehood, for 
 which there is not even a pretext ; that he neither ad-
 
 392 
 
 vised nor had any knowledge of the intention of any 
 one to commit the act which resulted in the death of 
 David S. Terry, and that he has not carried or used any 
 arm or weapon of any kind for nearly thirty years. 
 
 "All of which your petitioner is ready to establish 
 by full and competent proof. 
 
 " Wherefore your petitioner prays that he may be 
 discharged from said arrest and set at liberty. 
 
 "STEPHEN J. FIELD." 
 
 The facts alleged in this document were beyond dis- 
 pute, and constituted an outrageous crime, and one for 
 which the conspirators were liable to imprisonment for 
 a term of six years, under section 5518 of the Revised 
 Statutes of the United States. To this traverse the 
 counsel for the sheriff filed a demurrer, on the ground 
 that it did not appear by it that Justice Field was in 
 custody for an act done or omitted in pursuance of any 
 law of the United States, or of any order or process 
 or decree of any court or judge thereof, and it did not 
 appear that he was in custody in violation of the Con- 
 stitution or any law or treaty of the United States. 
 The case was thereupon submitted with leave to coun- 
 sel to file briefs at any time before the 27th of August, 
 to which time the further hearing was adjourned. 
 
 Before that hearing the Governor of the State ad- 
 dressed the following communication to the attorney- 
 general ;
 
 393 
 
 "EXECUTIVE DEPARTMENT, 
 
 " STATE OF CALIFORNIA, 
 "SACRAMENTO, August 21, 1889. 
 " Hon. A. G. JOHNSTON, 
 
 "Attorney-General, Sacramento. 
 
 " DEAR SIR : The arrest of Hon. Stephen J. Field, a 
 justice of the Supreme Court of the United States, on 
 the unsupported oath of a woman who, on the very day 
 the oath was taken, and often before, threatened his 
 life, will be a burning disgrace to the State unless dis- 
 avowed. I therefore urge upon you the propriety of 
 at once instructing the district attorney of San Joaquin 
 county to dismiss the unwarranted proceedings against 
 him. 
 
 " The question of the jurisdiction of the state courts 
 in the case of the deputy United States marshal, 
 Neagle, is one for argument. The unprecedented in- 
 dignity on Justice Field does not admit of argument. 
 " Yours truly, 
 
 " B. W. WATERMAN, 
 
 "Governor." 
 
 This letter of Governor Waterman rang out like an 
 alarm bell, warning the chief law officer of the State 
 that a subordinate of his was prostituting its judicial 
 machinery to enable a base woman to put a gross in- 
 dignity upon a justice of the Supreme Court of the 
 United States, whom she had just publicly threatened 
 to kill, and also to aid her in accomplishing that pur- 
 pose. The wretched proceeding had already brought 
 upon its authors indignant denunciation and merciless 
 ridicule from every part of the Union. The attorney- 
 general responded to the call thus made upon him by
 
 394 
 
 instructing, the district attorney to dismiss the charge 
 against Justice Field, because no evidence existed to 
 sustain it. 
 
 The rash young district attorney lost no time in ex- 
 tricating himself from the position in which the arrest 
 of Justice Field had placed him. On the 26th of 
 August, upon his motion, and the filing of the attorney- 
 general's letter, the charge against Justice Field was 
 dismissed by the justice of the peace who had issued 
 the warrant against him. 
 
 The dismissal of this charge released him from the 
 sheriff's claim to his custody, and the habeas corpus 
 proceedings in his behalf fell to the ground. On the 
 27th, the day appointed for the further hearing, the 
 sheriff announced that in compliance with the order of 
 the magistrate he released Justice Field from custody, 
 whereupon the case of habeas corpus was dismissed. 
 
 In making the order, Circuit Judge Sawyer severely 
 animadverted on what he deemed the shameless pro- 
 ceeding at Stockton. He said : 
 
 " We are glad that the prosecution of Mr. Justice 
 Field has been dismissed, founded, as it was, upon the 
 sole, reckless, and as to him manifestly false affidavit 
 of one whose relation to the matters leading to the tra- 
 gedy, and whose animosity towards the courts and 
 judges who have found it their duty to decide against 
 her, and especially towards Mr. Justice Field, is a part 
 of the judicial and notorious public history of the coun- 
 try.
 
 395 
 
 " It was, under the circumstances, and upon the sole 
 affidavit produced, especially after the coroner's in- 
 quest, so far as Mr. Justice Field is concerned, a shame- 
 less proceeding, and, as intimated by the Governor of 
 the Commonwealth, if it bad been further persevered in, 
 would have been a lasting disgrace to the State. 
 
 " While a justice of the Supreme Court of the United 
 States, like every other citizen, is amenable to the laws, 
 he is not likely to commit so grave an offense as mur- 
 der, and should he be so unfortunate as to be unavoid- 
 ably involved in any way in a homicide, he could not 
 afford to escape, if it were in his power to do so ; and 
 when the act is so publicly performed by another, as in 
 this instance, and is observed by so many witnesses, 
 the officers of the law should certainly have taken some 
 little pains to ascertain the facts before proceeding to 
 arrest so distinguished a dignitary, and to attempt to 
 incarcerate him in prisons with felons, or to put him in 
 a position to be further disgraced, and perhaps as- 
 saulted by one so violent as to be publicly reported, not 
 only then but on numerous previous occasions, to have 
 threatened his life. 
 
 "We are extremely gratified to find that, through the 
 action of the chief magistrate, and the attorney-gen- 
 eral, a higher officer of the law, we shall be spared the 
 necessity of further inquiring as to the extent of the 
 remedy afforded the distinguished petitioner, by the 
 Constitution and laws of the United States, or of en- 
 forcing such remedies as exist, and that the stigma cast 
 upon the State of California by this hasty and, to call 
 it by no harsher term, ill-advised arrest will not be in- 
 tensified by further prosecution." 
 
 Thus ended this most remarkable attempt upon the 
 liberty of a United States Supreme Court Justice, under 
 color of State authority, the execution of which would 
 again have placed his life in great peril.
 
 396 
 
 The grotesque feature of the performance was aptly 
 presented by the following imaginary dialogue which 
 appeared in an Eastern paper : 
 
 Newsboy : " Man tried to kill a judge in California !" 
 Customer : "What was done about it?" 
 Newsboy : " Oh ! They arrested the judge." 
 
 The illegality of Justice Field's arrest will be per- 
 fectly evident to whoever will read sections 811, 812, 
 and 813 of the Penal Code of California. These sec- 
 tions provide that no warrant can be issued by a magis- 
 trate until he has examined, on oath, the informant, 
 taken depositions setting forth the facts tending to 
 establish the commission of the offense and the guilt of 
 the accused, and himself been satisfied by these depo- 
 sitions that there is reasonable ground that the person 
 accused has committed the offense. None of these 
 requirements had been met in Justice Field's case. 
 
 It needs no lawyer to understand that a magistrate 
 violates the plain letter as well as the spirit of these 
 provisions of law when he issues a warrant without 
 first having before him some evidence of the probable, 
 or at least the possible, guilt of the accused. If this 
 were otherwise, private malice could temporarily sit in 
 judgment upon the object of its hatred, however blame- 
 less, and be rewarded for perjury by being allowed the 
 use of our jails as places in which to satisfy its ven- 
 geance. Such a view of the law made Sarah Althea
 
 397 
 
 the magistrate at Stockton on the 14th of August, and 
 Justice Swain her obsequious amanuensis. Such a 
 view of the law would enable any convict who had just 
 served a term in the penitentiary to treat himself to 
 the luxury of dragging to jail the judge who sentenced 
 him, and keeping him there without bail as long as 
 the magistrate acting for him could be induced to de- 
 lay the examination. 
 
 The arrest of Justice Field was an attempt to kidnap 
 him for a foul purpose, and if the United States cir- 
 cuit judge had not released him he would have been 
 the victim of as arbitrary and tyrannical treatment as 
 is ever meted out in Russia to the most dangerous of 
 nihilists, to punish him for having narrowly escaped 
 assassination by no act or effort of his own.
 
 CHAPTEK XVIII. 
 
 HABEAS CORPUS PROCEEDINGS IN NEAGLE'S CASE. 
 
 This narrative would not be complete without a 
 statement of the proceedings in the United States Cir- 
 cuit Court, and in the United States Supreme Court 
 on appeal, in the habeas corpus proceedings in the 
 case of Neagle, the deputy marshal, whose courageous 
 devotion to his official duties had saved the life of 
 Justice Field at the expense of that of his would-be 
 assassin. We have already seen that Neagle, being in 
 the custody of the sheriff of San Joaquin county, upon 
 a charge of murder in the shooting of Judge Terry, 
 had presented a petition to the United States Circuit 
 Court for a writ of habeas corpus to the end that he 
 might thereby be restored to his liberty. 
 
 A writ was issued, and upon its return, August 17th, 
 the sheriff of San Joaquin county produced Neagle and 
 a copy of the warrant under which he held him in cus- 
 tody, issued by the justice of the peace of that county, 
 and also of the affidavit of Sarah Althea Terry, upon 
 which the warrant was granted. Neagle being desirous 
 of traversing the return of the sheriff, further proceed- 
 ings were adjourned until the 22d of the month, and in 
 the meantime he was placed in the custody of the
 
 399 
 
 United States marshal for the district. On the 22d a 
 traverse of the return was filed by him stating the par- 
 ticulars of the homicide with which he was charged as 
 narrated above, and averring that he was at the time 
 of its commission a deputy marshal of the United 
 States for the district, acting under the orders of his 
 superior, and under the directions of the Attorney- 
 General of the United States in protecting the Asso- 
 ciate Justice, whilst in the discharge of his duties, from 
 the threatened assault and violence of Terry, who had 
 declared that on meeting the Justice he would insult, 
 assault, and kill him, and that the homicide with which 
 the petitioner is charged was committed in resisting 
 the attempted execution of these threats in the belief 
 that Terry intended at the time to kill the Justice, and 
 that but for such homicide he would have succeeded in 
 his attempt. These particulars are stated with great 
 fullness of detail. To this traverse, which was after- 
 wards amended, but not in any material respect, a 
 demurrer was interposed for the sheriff by the district 
 attorney of San Joaquin county. Its material point 
 was that it did not appear from the traverse that 
 Neagle was in the custody of the sheriff for an act done 
 or omitted in pursuance of any law of the United 
 States, or any order, process, or decree of any court or 
 judge thereof, or in violation of the Constitution or a 
 treatv of the United States. The court then considered
 
 400 
 
 whether it should hear testimony as to the facts of the 
 case, or proceed with the argument of the demurrer to 
 the traverse. It decided to take the testimony, and to 
 hear counsel when the whole case was before it, on the 
 merits as well as on the question of jurisdiction. The 
 testimony was then taken. It occupied several days, 
 and brought out strongly the facts which have been 
 already narrated, and need not here be repeated. 
 When completed, the question of the jurisdiction of 
 the Circuit Court of the United States to interfere in 
 the matter was elaborately argued by the attorney-gen- 
 eral of the State, and special counsel who appeared 
 with the district attorney of San Joaquin county on 
 behalf of the State, they contending that the offense, 
 with which the petitioner was charged, could only be 
 inquired into before a tribunal of the State. Mr. 
 Carey, United Stales district attorney, and Messrs. 
 Herrin, Mesick, and Wilson, special counsel, appeared 
 on behalf of the petitioner, and contended for the 
 jurisdiction, and for the discharge of the petitioner 
 upon the facts of the case. They did not pretend that 
 any person in the State, be he high or low, might not 
 be tried by the local authorities for a crime committed 
 against the State, but they did contend that when the 
 alleged crime consisted in an act which was claimed to 
 have been done in the performance of a duty devolv- 
 ing upon him by a law of the United States, it was
 
 401 
 
 within the competency of their courts to inquire, in the 
 first instance, whether that act thus done was in the 
 performance of a duty devolving upon him ; and if it 
 was, that the alleged offender had not committed a 
 crime against the State, and was entitled to be dis- 
 charged. Their arguments were marked by great 
 ability and learning, and their perusal would be 
 interesting and instructive, but space will not allow me 
 to give even a synopsis of them. 
 
 The court, in deciding the case, went into a full and 
 elaborate consideration, not only of its jurisdiction, but 
 of every objection on the merits presented by counsel 
 on behalf of the State. Only a brief outline can be 
 given. 
 
 The court held that it was within the competency of 
 the President, arid of the Attorney-General as the head 
 of the Department of Justice, representing him, to di- 
 rect that measures be taken for the protection of officers 
 of the Government whilst in the discharge of their 
 duties, and that it was specially appropriate that such 
 protection should be given to the justices of the Su- 
 preme Court of the United States, whilst thus engaged 
 in their respective circuits, and in passing to and from 
 them ; that the Attorney-General, representing the Pres- 
 ident, was fully justified in giving orders to the marshal 
 of the California district to appoint a deputy to look 
 specially to the protection of Justices Field and Saw-
 
 402 
 
 yer from assault and violence threatened by Terry and 
 bis 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. 
 
 The court recognized that the Government of the 
 United States exercised full jurisdiction, within the 
 sphere of its powers, over the whole territory of the 
 country, and that when any conflict arose between the 
 State and the General Government in the administra- 
 tion of their respective powers, the authority of the 
 United States must prevail, for the Constitution de- 
 clares that it and the laws of the United States in pur- 
 suance thereof " shall be the supreme law of the land, 
 and that the judges in every State shall be bound 
 thereby, anything in the Constitution and laws of any 
 State to the contrary notwithstanding." The court 
 quoted the language of the Supreme Court in Tennessee 
 v. Davis (100 U. S. 257, 263), that " It [the General 
 Government] can act only through its officers and 
 agents, and they must act within the States. If, when 
 thus acting and within the scope of their authority, 
 those officers can be arrested and brought to trial in a 
 State court, for an alleged offense against the law of 
 the State, yet warranted by the Federal authority they 
 possess, and if the General Government is powerless to 
 interfere at once for their protection if their protec-
 
 403 
 
 tion must be left to the action of the State court the 
 operations of the General Government may, at any 
 time, be arrested at the will of one of its members. 
 The legislation of a State may be unfriendly. It may 
 affix penalties to acts done under the immediate direc- 
 tion of the National Government and in obedience to 
 its laws. It may deny the authority conferred by those 
 laws. The State court may administer not only the 
 laws of the State, but equally Federal law, in such a 
 manner as to paralyze the operations of the Govern- 
 ment. And even if, after trial and final judgment in 
 the State court, a case can be brought into the United 
 States court for review, the officer is withdrawn from 
 the discharge of his duty during the pendency of the 
 prosecution, and the exercise of acknowledged Federal 
 power arrested. We do not think such an element of 
 weakness is to be found in the Constitution. The 
 United States is a government with authority extend- 
 ing over the whole territory of the Union, acting upon 
 the States and upon the people of the States. While 
 it is limited in the number of its powers, so far as its 
 sovereignty extends, it is supreme. No State govern- 
 ment can exclude it from the exercise of any authority 
 conferred upon it by the Constitution, obstruct its au- 
 thorized officers against its will, or withhold from it, for 
 a moment, the cognizance of any subject which that 
 instrument has committed to it." To this strong lan- 
 guage the Circuit Court added :
 
 404 
 
 " The very idea of a government composed of ex- 
 ecutive, legislative, and judicial departments necessarily 
 comprehends the power to do all things, through its 
 appropriate officers and agents, within the scope of its 
 general governmental purposes and powers, requisite to 
 preserve its existence, protect it and its ministers, and 
 give it complete efficiency in all its parts. It necessarily 
 and inherently includes power in its executive depart- 
 ment to enforce the laws, keep the national peace with 
 regard to its officers while in the line of their duty, and 
 protect by its all-powerful arm all the other depart- 
 ments and the officers and instrumentalities necessary 
 to their efficiency while engaged in the discharge of 
 their duties." 
 
 In language attributed to Mr. ex-Secretary Bayard, 
 used with reference to this very case, which we quote, 
 not as a controlling judicial authority, but for its in- 
 trinsic, sound, common sense, " The robust and essen- 
 tial principle must be recognized and proclaimed, 
 that the inherent powers of every government which 
 is sufficient to authorize and enforce the judgment of 
 its courts are, equally, and at all times, and in all 
 places, sufficient to protect the individual judge who, 
 fearlessly and conscientiously in the discharge of his 
 duty, pronounces those judgments." 
 
 In reference to the duties of the President and the 
 powers of the Attorney-General under him, and of the 
 latter's control of the marshals of the United States, 
 the court observed that the duties of the President are 
 prescribed in terse and comprehensive language in
 
 405 
 
 section 3 of article II of the Constitution, which de- 
 clares that " he shall take care that the laws be faith- 
 fully executed ;" that this gives him all the authority 
 necessary to accomplish the purposes intended all 
 the authority necessarily inherent in the office, not 
 otherwise limited, and that Congress, added the court, 
 in pursuance of powers vested in it, has provided for 
 seven departments, as subordinate to the President, to 
 aid him in performing his executive functions. Sec- 
 tion 346, K. S., provides that "there shall be at the 
 seat of government an executive department to be 
 known as the Department of Justice, and an Attorney- 
 General, who shall be the head thereof." He thus has 
 the general supervision of the executive branch of the 
 national judiciary, and section 362 provides, as a por- 
 tion of his powers and duties, that he " shall exercise 
 general superintendence and direction over the at- 
 torneys and marshals of all the districts in the United 
 States and the Territories as to the manner of dis- 
 charging their respective duties ; and the several 
 district attorneys and marshals are required to report 
 to the Attorney-General an account of their official 
 proceedings, and of the state and condition of their 
 respective offices, in such time and manner as the 
 Attorney-General may direct." Section 788, R. S., 
 provides that " the marshals and their deputies shall 
 have, in each State, the same powers in executing the
 
 406 
 
 laws of the United States as the sheriffs and their 
 deputies in such State may have, by law, in executing 
 the laws thereof." By section 817 of the penal code 
 of California the sheriff is a " peace officer," and by 
 section 4176 of the political code he is " to preserve 
 the peace " and " prevent and suppress breaches of the 
 peace." The marshal is, therefore, under the pro- 
 visions of the statute cited, " a peace officer," so far as 
 keeping the peace in any matter wherein the powers 
 of the United States are concerned, and as to such 
 matters he has all the powers of the sheriff, as 
 peace officer under the laws of the State. He is, in 
 such matters, " to preserve the peace " and " prevent 
 and suppress breaches of the peace." An assault 
 upon or an assassination of a judge of a United States 
 court while engaged in any matter pertaining to his 
 official duties, on account or by reason of his 
 judicial decisions, or action in performing his official 
 duties, is a breach of the peace, affecting the authority 
 and interests of the United States, and within the 
 jurisdiction and power of the marshal or his deputies to 
 prevent as a peace officer of the National Government. 
 Such an assault is not merely an assault upon the per- 
 son of the judge as a man ; it is an assault upon the 
 national judiciary, which he represents, and through it 
 an assault upon the authority of the nation itself. It 
 is, necessarily, a breach of the national peace. As a
 
 407 
 
 national peace officer, under the conditions indicated, 
 it is the'duty of the marshal and his deputies to pre- 
 vent a breach of the national peace by an assault upon 
 the authority of the United States, in the person of a 
 judge of its highest court, while in the discharge of 
 his duty. If this be not so, in the language of the 
 Supreme Court, " Why do we have marshals at all ? " 
 What useful functions can they perform in the economy 
 of the National Government ? 
 
 Section 787 of the Revised Statutes also declares 
 that " It shall be the duty of the marshal of each 
 district to attend the District and Circuit Courts when 
 sitting therein, and to execute throughout the district 
 all lawful precepts directed to him and issued under 
 the authority of the United States, and he shall have 
 power to command all necessary assistance in the 
 execution of his duty." There is no more authority 
 specifically conferred upon the marshal by this section 
 to protect the judge from assassination in open court, 
 without a specific order or command, than there is to 
 protect him out of court, when on the way from one 
 court to another in the discharge of his official duties. 
 The marshals are in daily attendance upon the judges, 
 and performing official duties in their chambers. Yet 
 no statute specifically points out those duties or re- 
 quires their performance. Indeed, no such places as 
 chambers for the circuit judges or circuit justices are
 
 408 
 
 mentioned at all in the statutes. Yet the marshal is 
 as clearly authorized to protect the judges there as in 
 the court-room. All business done out of co'urt by 
 the judge is called chamber business. But it is not 
 necessary to be done in what is usually called cham- 
 bers. Chamber business may be done, and often is 
 done, on the street, in the judge's own house, at the 
 hotel where he stops, when absent from home, or it 
 may be done in transitu, on the cars in going from 
 one place to another within the proper jurisdiction to 
 hold court. Mr. Justice Field could, as well, and as 
 authoritatively, issue a temporary injunction, grant a 
 writ of habeas corpus, an order to show cause, or do 
 any other chamber business for the district in the 
 dining-room at Lathrop, as at his chambers in San 
 Francisco, or in the court-room. The chambers of 
 the judge, where chambers are provided, are not an 
 element of jurisdiction, but are a convenience to the 
 judge, and to suitors places where the judge at 
 proper times can be readily found, and the business 
 conveniently transacted. 
 
 But inasmuch as the Revised Statutes of the United 
 States (sec. 753) declare that the writ of habeas corpus 
 shall not extend to " a prisoner in jail unless where he 
 is in custody for an act done or omitted in pursuance 
 of a law of the United States, or of an order, process, 
 or decree of a court or judge thereof, or in custody in
 
 409 
 
 violation of the Constitution or of a law or treaty of the 
 United States," it was urged in the argument by counsel 
 for the State that there is no statute which specifically 
 makes it the duty of a marshal or deputy marshal to 
 protect the judges of the United States whilst out of 
 the court-room, travelling from one point to another in 
 their circuits, on official business, from the violence of 
 litigants who have become offended at the adverse de- 
 cisions made by them in the performance of their 
 judicial duties, and that such officers are not within 
 the provisions of that section. To this the court 
 replied that the language of the section is, " an act 
 done in pursuance of a law of the United States " 
 not in pursuance of a statute of the United States ; 
 and that the statutes do not present in express terms 
 all the law of the United States ; that their incidents 
 and implications are as much a part of the law as their 
 express provisions ; and that when they prescribe 
 duties providing for the accomplishment of certain 
 designated objects, or confer authority in general terms, 
 they carry with them all the powers essential to effect 
 the ends designed. As said by Chief Justice Marshall 
 in Osborn v. Bank of the United States (9 Wheaton, 
 865-866), " It is not unusual for a legislative act to 
 involve consequences which are not expressed. An 
 officer, for example, is ordered to arrest an individual. 
 It is not necessary, nor is it usual, to say that he shall
 
 410 
 
 not be punished for obeying this order. His security 
 is implied in the order itself. It is no unusual thing 
 for an act of Congress to imply, without expressing, 
 this very exemption from State control, which is said 
 to be so objectionable in this instance. The collectors 
 of the revenue, the carriers of the mail, the mint 
 establishment, and all those institutions which are 
 public in their nature, are examples in point. It has 
 never been doubted that all who are employed in them 
 are protected while in the line of duty ; and yet this 
 protection is not expressed in any act of Congress. 
 It is incidental to, and is implied in, the several acts by 
 which these institutions are created ; and is secured to 
 the individuals employed in them by the judicial power 
 alone that is, the judicial power is the instrument 
 employed by the Government in administering this 
 security." 
 
 Upon this the Circuit Court observed : 
 
 " If the officers referred to in the preceding passage 
 are to be protected while in the line of their duty, 
 without any special law or statute requiring such pro- 
 tection, the judges of the courts, the principal officers 
 in a department of the Government second to no other, 
 are also to be protected, and their executive subordi- 
 nates the marshals and their deputies shielded from 
 harm by the national laws while honestly engaged in 
 protecting the heads of the courts from assassination." 
 
 NOTE. I find the following apt illustrations of this doctrine in a 
 journal of the day : 
 
 If a military or naval officer of the United States, in the necessary
 
 To the position that the preservation of the peace of 
 the State is devolved solely upon the officers of the 
 State, and not in any respect upon the marshals of the 
 United States, the court replied : This position is al- 
 
 suppression of a mutiny or enforcement of obedience, should wound 
 or take the life of a subordinate, would it be contended that, if 
 arrested for that act by the State authority, he could not be released 
 on Jiabeas corpus, because no statute expressly authorized the per- 
 formance of the act '{ If the commander of a revenue cutter should 
 be directed to pursue and retake a vessel which, after seizure, had 
 escaped from the custody of the law, and the officer in the perform- 
 ance of that duty, and when necessary to overcome resistance, should 
 injure or kill a member of the crew of the vessel he was ordered to 
 recapture, and if for that act he should be arrested and accused of 
 crime under the State authority, will any sensible person maintain 
 that the provisions of the liabeas corpus act could not be invoked for 
 his release, notwithstanding that no statute could be shown which 
 directly authorized the act for which he was arrested ? If by com- 
 mand of the President a company of troops were marched into this 
 city to protect the subtreasury from threatened pillage, and in so 
 doing life were taken, would not the act of the officer who commanded 
 the troops be an act done in pursuance of the laws of the United 
 States, and in the lawful exercise of its authority ? Could he be im- 
 prisoned and tried before a State jury on the charge of murder, and 
 the courts of the United States be powerless to inquire into the facts 
 on habeas corpus, and to discharge him if found to have acted in the 
 performance of his duty ? Can the authority of the United States for 
 the protection of their officers be less than their authority to protect 
 their property ? 
 
 There appears to be but one rational answer to these questions. 
 
 In all these cases the authority vested in the officer to suppress a 
 mutiny, or to overtake and capture an escaped vessel, or to protect 
 the subtreasury from threatened pillage, carries with it power to do 
 all things necessary to accomplish the object desired, even the killing 
 of the offending party. The law conferring the authority thus ex- 
 tended to the officer in these cases, is in the sense of the habeas 
 corpus act, a law of the United States to do all things necessary for 
 the execution of that authority.
 
 ready answered by what has been said. But it is 
 undoubtedly true that it was the imperative duty of the 
 State to preserve the public peace and amply protect 
 the life of Justice Field, but it did not do it, and had 
 the United States relied upon the State to keep the 
 peace as to him one of the justices of the highest 
 court in relation to matters concerning the performance 
 of his official duties, they would have leaned upon a 
 broken reed. The result of the efforts to obtain an 
 officer from the State to assist in preserving the peace 
 and protecting him at Lathrop was anything but suc- 
 cessful. The officer of the State at Lathrop, instead of 
 arresting the conspirator of the contemplated murderer, 
 the wife of the deceased, arrested the officer of the 
 United States, assigned by the Government to the spe- 
 cial duty of protecting the justice against the very par- 
 ties, while in the actual prosecution of duties assigned 
 to him, without warrant, thereby leaving his charge 
 without the protection provided by the Government he 
 was serving, at a time when such protection seemed 
 most needed. And, besides, the use of the State police 
 force beyond the limits of a county for the protection 
 of Justice Field would have been impracticable, as the 
 powers of the sheriff would have ended at its borders, 
 and of other township and city peace officers at the 
 boundaries of their respective townships and cities. 
 Only a United States marshal or his deputy could have
 
 413 
 
 exercised these official functions throughout the judi- 
 cial district, which embraces many counties. The only 
 remedy suggested on the part of the State was to arrest 
 the deceased and hold him to bail to keep the peace 
 under section 706 of the Penal Code, the highest limit 
 of the amount of bail being $5,000. But although the 
 threats are conceded to have been publicly known in 
 the State, no State officer took any means to provide 
 this flimsy safeguard. And the execution of a bond in 
 this amount to keep the peace would have had no effect 
 in deterring the intended assailants from the commis- 
 sion of the offense contemplated, when the penalties of 
 the law would not deter them. 
 
 As to the deliberation and wisdom of Neagle's con- 
 duct under the circumstances, the court, after stating 
 the established facts, concludes as follows : 
 
 "When the deceased left his seat, some thirty feet 
 distant, walked stealthily down the passage in the rear 
 of Justice Field and dealt the unsuspecting jurist two 
 preliminary blows, doubtless by way of reminding him 
 that the time for vengeance had at last come, Justice 
 Field was already at the traditional ' wall ' of the law. 
 He was sitting quietly at a table, back to the assailant, 
 eating his breakfast, the side opposite being occupied 
 by other passengers, some of whom were women, simi- 
 larly engaged. When, in a dazed condition, he awoke 
 to the reality of the situation and saw the stalwart 
 form of the deceased with arm drawn back for a final 
 mortal blow, there was no time to get under or over 
 the table, had the law, under any circumstances, re-
 
 414 
 
 quired such an act for bis justification. Neagle could 
 not seek a ' wall ' to justify his acts without abandon- 
 ing his charge to certain death. When, therefore, he 
 sprang to his feet and cried, ' Stop ! I am an officer,' 
 and saw the powerful arm of the deceased drawn back 
 for the final deadly stroke instantly change its direction 
 to' his left breast, apparently seeking his favorite 
 weapon, the knife, and at the same time heard the 
 half-suppressed, disappointed growl of recognition of 
 the man who, with the aid of half a dozen others, had 
 finally succeeded in disarming him of his knife at the 
 court-room a year before, the supreme moment had 
 come, or, at least, with abundant reason he thought so, 
 and fired the fatal shot. The testimony all concurs in 
 showing this to be the state of facts, and the almost 
 universal consensus of public opinion of the United 
 States seems to justify the act. On that occasion a 
 second, or two seconds, signified, at least, two valuable 
 lives, and a reasonable degree of prudence would jus- 
 tify a shot one or two seconds too soon rather than a 
 fraction of a second too late. Upon our minds the 
 evidence leaves no doubt whatever that the homicide 
 was fully justified by the circumstances. Neagle on 
 the scene of action, facing the party making a murder- 
 ous assault, knowing by personal experience his physi- 
 cal powers and his desperate character, and by general 
 reputation his life-long habit of carrying arms, his 
 readiness to use them, and his angry, murderous threats, 
 and seeing his demoniac looks, his stealthy assault 
 upon Justice Field from behind, and, remembering the 
 sacred trust committed to his charge Neagle, in these 
 trying circumstances, was the party to determine when 
 the supreme moment for action had come, and if he, 
 honestly, acted with reasonable judgment and discre- 
 tion, the law justifies him, even if he erred. But who 
 will have the courage to stand up in the presence of 
 the facts developed by the testimony in this case, and
 
 415 
 
 say that he fired the smallest fraction of a second too 
 soon ? 
 
 " In our judgment he acted, under the trying circum- 
 stances surrounding him, in good faith and with con- 
 summate courage, judgment, and discretion. The 
 homicide was, in our opinion, clearly justifiable in law, 
 and in the forum of sound, practical common sense 
 commendable. This being so, and the act having been 
 ' done * * in pursuance of a law of the United 
 
 States,' as we have already seen, it cannot be an of- 
 fense against, and he is not amenable to, the laws of 
 the State." 
 
 The petitioner was accordingly discharged from ar- 
 rest.
 
 CHAPTER XIX. 
 
 EXPRESSIONS OF PUBLIC OPINION. 
 
 This case and all the attendant circumstances the 
 attempted assassination of Justice Field by his former 
 associate, Terry ; the defeat of this murderous attempt 
 by Deputy Marshal Neagle ; the arrest of Justice 
 Field and the deputy marshal upon the charge of 
 murder, and their discharge created ver} 7 great 
 interest throughout the United States. They were the 
 subject of articles in all the leading journals of the 
 country ; and numerous telegrams and letters of con- 
 gratulation were sent to the Justice on his escape from 
 the murderous attempt. Satisfaction was very generally 
 expressed at the fate which Terry met, and much 
 praise was given to the courageous conduct of Neagle 
 and at the bearing of Justice Field under the trying 
 circumstances. 
 
 A few of the letters received by him are here given, 
 and citations are made from some of the periodicals, 
 which indicated the general sentiment of the country. 
 
 Letter from Hon. T. F. Bayard, ex-Secretary of State : 
 
 WILMINGTON, DELAWARE, August 18, 1889. 
 MY DEAR BROTHER FIELD : 
 
 I was absent from home when I first saw in the 
 newspapers an account of the infamous assault of the
 
 417 
 
 Terrys husband and wife upon you, and the prompt 
 and courageous action of Deputy Marshal Neagle that 
 happily frustrated the iniquitous plot against your 
 life. 
 
 Accept, my dear friend, my fervent congratulations 
 on your escape from the designs of this madman and of 
 the shameless creature who was his wife and accom- 
 plice. 
 
 For the sake of our country and its reputation in the 
 eyes of Christendom, I am indeed grateful that this 
 vile stab at its judicial power, as vested in your per- 
 sonality, miscarried, and that by good fortune the 
 insane malice of a disappointed suitor should have been 
 thwarted. 
 
 Your dignified courage in this tragical episode is 
 most impressive, and, while it endears you the more to 
 those who love you, will wring even from your foes a 
 tribute of respect and admiration. 
 
 Passing over the arguments that may be wrought out 
 of the verbiage of our dual constitution of government, 
 the robust and essential principle must be recognized 
 and proclaimed that the inherent powers of every gov- 
 ernment which are sufficient to authorize and enforce 
 the judgments of its courts are equally and at all 
 times and in all places sufficient to protect the individ- 
 ual judge who fearlessly and conscientiously, in the 
 discharge of his duty, pronounces those judgments. 
 
 The case, my dear friend, is not yours alone ; it is 
 equally mine and that of every other American. A priuci- 
 ple so vital to society, to the body politic, was never more 
 dangerously and wickedly assailed than by the assault 
 of Terry and his wife upon you for your just and hon- 
 orable performance of your duty as a magistrate. 
 
 I can well comprehend the shock to which this oc- 
 currence has subjected you, and I wish I could be by 
 your side to give you assurance orally (if any were 
 needed) of that absolute sympathy and support to
 
 418 
 
 which you are so fully entitled. But these lines will 
 perhaps suffice to make you feel the affectionate and 
 steadfast regard I entertain for you, and which this 
 terrible event has but increased. 
 
 I cannot forbear an expression of the hope that the 
 arguments of jurisdictional and other points which 
 must attend the litigation and settlement of this tragedy 
 may not be abated or warped to meet any temporary 
 local or partisan demand. 
 
 The voice of Justice can never speak in clearer or 
 more divine accents than when heard in vindication and 
 honor of her own faithful ministers. 
 Ever, my dear Judge Field, 
 
 Sincerely yours, 
 
 T. F. BAYAKD. 
 The Hon. STEPHEN J. FIELD, 
 
 San Francisco, CaL 
 
 Letter from Hon. E. J. Phelps, former Minister to 
 England : 
 
 BURLINGTON, VERMONT, August 17, 1889. 
 MY DEAR JUDGE FIELD : 
 
 Pray let me congratulate you most heartily on the 
 Terry transaction. Nothing that has ever occurred in 
 the administration of justice has given me more satisfac- 
 tion than this prompt, righteous, and effectual vindica- 
 tion through an officer of the court of the sanctity of 
 the judiciary when in the discharge of its duty. What 
 your marshal did was exactly the right thing, at the 
 right time, and in the right way. I shall be most 
 happy to join in a suitable testimonial to him, if our 
 
 profession will, as they ought, concur in presenting it. 
 
 * * * 
 
 Your own coolness and carriage in confronting this 
 danger in the discharge of your duty must be univer- 
 sally admired, and will shed an additional lustre on a
 
 419 
 
 judicial career which was distinguished enough without 
 'it. 
 
 You have escaped a great peril acquired a fresh 
 distinction and vindicated most properly the dignity of 
 your high station. 
 
 I am glad to perceive that this is the general opinion. 
 Anticipating the pleasure of seeing you in Washing- 
 ton next term, 
 
 I am always, dear sir, 
 
 Most sincerely yours, 
 
 E. J. PHELPS. 
 
 Letter from Hon. George F. Hoar, Senator from 
 
 Massachusetts : 
 
 WORCESTER, A ugust 16, 1889. 
 MY DEAR JUDGE FIELD : 
 
 I think I ought to tell you, at this time, how high 
 you stand in the confidence and reverence of all good 
 men here, how deeply they were shocked by this out- 
 rage attempted not so much on you as on the judicial 
 office itself, and how entirely the prompt action of the 
 officer is approved. I hope you may long be spared to 
 the public service. 
 
 I am faithfully yours, 
 
 GEO. F. HOAE. 
 
 Letter from Hon. J. Proctor Knott, for many years a 
 Member of Congress from Kentucky and Chairman of 
 the Judiciary Committee of the House of Representa- 
 tives, and afterwards Governor of Kentucky : 
 
 LEBANON, KENTUCKY, September 5, 1889. 
 MY DEAR JUDGE : * * * 
 
 I have had it in mind to write you from the moment 
 1 first heard of your fortunate escape from the fiendish
 
 420 
 
 assassination with which you were so imminently 
 threatened, but I have, since the latter part of May, 
 been suffering from a most distressing affection of the 
 eyes which has rendered it extremely difficult, and fre- 
 quently, for days together, quite impossible to do so. 
 Even now, though much improved, I write in great pain, 
 but I cannot get my consent to delay it longer on any 
 account. You are to be congratulated, my dear friend, 
 and you know that no one could possibly do so with more 
 genuine, heartfelt sincerity than I do myself. * * * 
 I had been troubled, ever since I saw you had gone 
 to your circuit, with apprehensions that you would be 
 assassinated, or at least subjected to some gross out- 
 rage, and cannot express my admiration of the serene 
 heroism with which you went to your post of duty, de- 
 termined not to debase the dignity of your exalted po- 
 sition by wearing arms for your defense, notwithstand- 
 ing you were fully conscious of the danger which 
 menaced you. It didn't surprise me, however, for I 
 knew the stuff you were made of had been tested be- 
 fore. But I was surprised and disgusted, too, that you 
 should have been charged or even suspected of any- 
 thing wrong in the matter. The magistrate who issued 
 the warrant for your arrest may possibly have thought 
 it his duty to do so, without looking beyond the " rail- 
 ing accusation " of a baffled and infuriated murderess, 
 which all the world instinctively knew to be false, yet I 
 suppose there is not an intelligent man, woman, or 
 child on the continent who does not consider it an in- 
 famous and unmitigated outrage, or who is not thor- 
 oughly satisfied that the brave fellow who defended you 
 so opportunely was legally and morally justifiable in 
 what he did. I have not been in a condition to think 
 very coherently, much less to read anything in relation 
 to the question of jurisdiction raised by the State au- 
 thorities in the habeas corpus issued in your behalf by 
 the U. S. Circuit Court, and it may be that, from the
 
 421 
 
 mere newspaper's reports that have reached me, I have 
 been unable to fully apprehend the objections which 
 are made to the courts hearing all the facts on the trial 
 of the writ ; but it occurs to me as a plain principle of 
 common sense that the federal government should not 
 only have the power, but that it is necessary to its own 
 preservation, to protect its officers from being wantoaly 
 or maliciously interfered with, hindered or obstructed 
 in the lawful exercises of their official duties, not arbi- 
 trarily of course, but through its regularly constituted 
 agencies, and according to the established principles of 
 law ; and where such obstruction consists in the forci- 
 ble restraint of the officer's liberty, I see no reason why 
 the federal judiciary should not inquire into it on 
 habeas corpus, when it is alleged to be not only ille- 
 gal but contrived for the very purpose of hindering the 
 officer in the discharge of his official duties, and im- 
 pairing the efficiency of the public service. It is true 
 that in such an investigation a real or apparent conflict 
 between State and federal authority may be presented, 
 which a due regard to the respective rights of the two 
 governments would require to be considered with the 
 utmost caution, such caution, at least, as it is fair to 
 presume an intelligent court would always be careful 
 to exercise, in view of the absolute importance of 
 maintaining as far as possible the strictest harmony 
 between the two jurisdictions. Yet those rights 
 are determined and by fixed legal principles, which 
 it would be impossible for a court to apply in any 
 case without a competent knowledge of the facts 
 upon which their application in the particular case 
 might depend. For instance, if your court should 
 issue a writ of habeas corpus for the relief of a 
 federal officer upon the averments in his petition that 
 he was forcibly and illegally restrained of his liberty 
 for the purpose of preventing him from performing 
 his official duties, and it should appear in the return
 
 422 
 
 to the writ that the person detaining the prisoner was 
 a ministerial officer of the State government authorized 
 by its laws to execute its process, and that he held the 
 petitioner in custody by virtue of a warrant of arrest 
 in due form, issued by a competent magistrate, to 
 answer for an offense against the State laws, I presume 
 the court, in the absence of any further showing, would 
 instantly remand the petitioner to the custody of the 
 State authorities without regard to his official position 
 or the nature of his public duties. But, on the other 
 hand, suppose there should be a traverse of the return, 
 averring that the warrant of the arrest, though appar- 
 entl} 7 regular in all respects, was in truth but a fraudu- 
 lent contrivance designed and employed for the sole 
 purpose of hindering and obstructing the petitioner in 
 the performance of his duties as an officer of the gov- 
 ernment of the United States ; that the magistrate who 
 issued it, knowingly and maliciously abused his 
 authority for that purpose in pursuance of a conspiracy 
 between himself and others, and not in good faith, and 
 upon probable cause to bring the prisoner to justice for 
 a crime against the State. How then ? Here is an 
 apparent conflict not a real one between the rights 
 of the government of the United States and the gov- 
 ernment of the State. The one has a right to the serv- 
 ice of its officer, and the right to prevent his being 
 unlawfully interfered with or obstructed in the per- 
 formance of his official duties ; the other has the right 
 to administer its laws for the punishment of crime 
 through its own tribunals ; but it must be observed that 
 the former has no right to shield one of its officers from 
 a valid prosecution for a violation of the laws of the 
 latter not in conflict with the Constitution and laws of 
 the United States, nor can it be claimed that the latter 
 has any right to suffer its laws to be prostituted, and its 
 authority fraudulently abused, in aid of a conspiracy 
 to defeat or obstruct the functions of the former. 
 Such an abuse of authority is not, and cannot be in
 
 423 
 
 any sense, a bona fide administration of State laws, but 
 is itself a crime against them. What, then, would your 
 court do ? You would probably say : If it is true that 
 this man is held without probable cause under a fraud- 
 ulent warrant, issued in pursuance of a conspiracy to 
 which the magistrate who issued it was a party, to give 
 legal color to a malicious interference with his func- 
 tions as a federal official, he is the victim of a double 
 crime a crime against the United States and a crime 
 against the State and it is not only our duty to vin- 
 dicate his right to the free exercise of his official duties, 
 but the right of the federal government to his services, and 
 its right to protect him in the legal performance of the 
 same. But if, on the other hand, he has raised a mere 
 " false clamor " if he is held in good faith upon a 
 valid warrant to answer for a crime committed against 
 the State, it is equally as obligatory upon us to uphold 
 its authority, and maintain its right to vindicate its own 
 laws through its own machinery. To determine be- 
 tween these two hypotheses we must know the facts. 
 * * * The same simple reasoning, it occurs to me, 
 applies to Mr. Neagle's case. Whether he acted in the 
 line of his duty under the laws of the United States, 
 as an officer of that government, is clearly a question 
 within the jurisdiction of the federal judiciary. If he 
 did, he cannot be held responsible to the State 
 authority ; if he did not, he should answer, if required, 
 before its tribunals of justice. I presume no court of 
 ordinary intelligence, State or federal, would question 
 these obvious principles ; but how any court could 
 determine whether he did or did not act in the line of 
 his official duty under the laws of his government 
 without a judicial inquiry into the facts connected with 
 the transaction I am unable to imagine. 
 I am, as always, 
 
 Your faithful friend, 
 
 J. PROCTOR KNOTT. 
 Hon. S. J. FIELD, 
 
 Associate Justice /Supreme Court U. 8.
 
 424 
 
 Letter from Hon. William D. Shipman, formerly U. 
 S. District Judge for the district of Connecticut : 
 
 NEW YORK, October 20, 1889. 
 DEAR JUDGE : 
 
 * * * * * * 
 
 I have attentively read Judge Sawyer's opinion in 
 the Neagle habeas corpus case, and I agree with his 
 main conclusions. It seems to me that the whole ques- 
 tion of jurisdiction turns on the fact whether you were, 
 at the time the assault was made on you, engaged in 
 the performance of your official duty. 
 
 You had been to Los Angeles to hold court there and 
 had finished that business. In going there you were 
 performing an official duty as much as you were when 
 you had held court there. It was then your official 
 duty to go from Los Angeles to San Francisco and hold 
 court there. You could not hold court at the latter 
 place without going, and you were engaged in the line 
 of your official duty in performing that journey for that 
 purpose, as you were in holding the court after you got 
 there. The idea that a judge is not performing official 
 duty when he goes from court-house to court-house or 
 from court-room to court-room in his own circuit seems 
 to me to be absurd. The distance from one court- 
 house or court-room to another is not material, and 
 does not change or modify the act or duty of the 
 judge. 
 
 Now, Neagle was an officer of your court, charged 
 with the duty of protecting your person while you were 
 engaged in the performance of your official duty. His 
 duty was to see to it that you were not unlawfully pre- 
 vented from performing your official duty not hindered 
 or obstructed therein. For the State authorities to 
 indict him for repelling the assault on you in the only 
 way which he could do so effectually seems to me to be
 
 425 
 
 as unwarranted by law as it would be for them to indict 
 him for an assault on Terry when he assisted in dis- 
 arming the latter in the court-room last year. 
 
 When, therefore, it was conceded on the argument 
 that if the affair at Lathrop had taken place in the 
 court-room during the sitting of the court, the jurisdic- 
 tion of the Circuit Court would be unquestionable, it is 
 difficult for me to see why the whole question of federal 
 jurisdiction was not embraced in that concession. 
 Assassinating a judge on the bench would 110 more ob- 
 struct and defeat public justice than assassinating him 
 on his way to the bench. In each case he is proceeding 
 in the line of official duty imposed on him by law and 
 his official oath. The law requires him to go to court 
 wherever the latter is held, and he is as much engaged 
 in performing the duty thus imposed on him while he 
 is proceeding to the place of his judicial labors as he 
 is in performing the latter after he gets there. 
 
 It would, therefore, seem to go without saying that 
 any acts done in defense and protection of the judge in 
 the performance of the duties of his office must pertain 
 to the exclusive jurisdiction of the court of which he 
 forms a part. 
 
 The fact that the assault on you was avowedly made 
 in revenge for your judicial action in a case heard by 
 you gives a darker tinge to the deed, but, perhaps, does 
 not change the legal character of the assault itself. 
 
 That Neagle did his whole duty, and in no way ex- 
 ceeded it, is too plain for argument. 
 Yours faithfully, 
 
 W. D. SHIPMAN. 
 Mr. Justice FIELD. 
 
 Letter from James C. Welling, president of Columbian 
 University, Washington :
 
 426 
 
 HARTFORD, August 15, 1889. 
 MY DEAR JUDGE: 
 
 It is a relief to know that Justice, as well as the 
 honored justice of our Supreme Judiciary, has been 
 avenged by the pistol-shot of Neagle. The life of 
 Terry has long since been forfeited to law, to decency, 
 and to morals. He has alread}' exceeded the limit 
 assigned by holy scripture to men of his ilk. " The 
 bloody-minded man shall not live out half his days." 
 The mode of his death was in keeping with his life. 
 Men who break all the laws of nature should not ex- 
 pect to die by the laws of nature. 
 
 In all this episode you have simply worn the judicial 
 ermine without spot or stain. You defeated a bold, 
 bad man in his machinations, and the enmity you* 
 thereby incurred was a crown of honor. I am glad 
 that you are to be no longer harassed by the menace 
 of this man's violence, for such a menace is specially 
 trying to a minister of the law. We all know that 
 Judge Field the man would not flinch from a thousand 
 Terrys, but Judge Field the Justice could hardly take 
 in his own hands the protection of his person, where 
 the threatened outrage sprang entirely from his official 
 acts. 
 
 I wish, therefore, to congratulate you on your escape 
 alike from the violence of Terry and from the necessity 
 of killing him with your own hands. It was meet that 
 you should have been defended by an executive officer 
 of the court assailed in your person. For doubtless 
 Terry, and the hag who was on the hunt with him, were 
 minded to murder you. 
 
 Convey my cordial felicitations to Mrs. Field, and 
 believe me ever, my dear Mr. Justice, 
 
 Your faithful friend, 
 
 JAMES C. WELLING. 
 Mr. Justice FIELD.
 
 427 
 
 Letter from Eight Rev. B. Wistar Morris, Episcopal 
 Bishop of Oregon : 
 
 BISHOPCROFT, PORTLAND, OREGON, 
 
 August 22, 1889. 
 MY DEAR JUDGE FIELD: 
 
 I hope a word of congratulation from your Oregon 
 friends for your escape in the recent tragedy will not 
 be considered an intrusion. Of course we have all 
 been deeply interested in its history, and proud that 
 you were found as you were, without the defenses of a 
 bully. 
 
 I will not trespass further on your time than to sub- 
 scribe myself, 
 
 Very truly your friend, 
 
 B. WISTAR MORRIS. 
 
 Mr. Justice FIELD. 
 
 A copy of the following card was enclosed in this 
 letter : 
 
 AN UNARMED JUSTICE. 
 
 PORTLAND OREGON, August 19. 
 To the Editor of the Oregonian : 
 
 There is one circumstance in the history of the Field 
 and Terry tragedy that seems to me is worthy of more 
 emphatic comment than it has yet received. I mean 
 the fact that Judge Field had about his person no 
 weapon of defense whatever, though he knew that this 
 miserable villain was dogging his steps for the purpose 
 of assaulting him, perhaps of taking his life. His 
 brother, Mr. Cyrus W. Field, says : 
 
 " It was common talk in the East here, among my 
 brother's friends, that Terry's threats to do him bodily 
 harm were made with the full intent to follow them up. 
 Terry threatened openly to shoot the Justice, and we,
 
 428 
 
 who knew him, were convinced he would certainly do 
 it if he ever got a chance. 
 
 " I endeavored to dissuade my brother from making 
 the trip West this year, but to no purpose, and he said, 
 ' I have a duty to perform there, and this sort of thing 
 can't frighten me away. I know Terry will do me harm 
 if he gets a chance, and as I shall be in California some 
 time, he will have chances enough. Let him take 
 them.' 
 
 " When urged to arm himself he made the same re- 
 ply. He said that when it came to such a pass in this 
 country that judges find it necessary to go armed, it 
 will be time to close the courts themselves." 
 
 This was a manly and noble reply and must recall to 
 many minds that familiar sentiment : " He is thrice 
 armed who has his quarrel just." With the daily and 
 hourly knowledge that this assassin was ever upon his 
 track, this brave judge goes about his duty and scorns 
 to take to himself the defenses of a bully or a brigand ; 
 and in doing so, how immeasurably has he placed him- 
 self above the vile creature that sought his life, and all 
 others who resort to deeds of violence. " They that 
 take the sword shall perish with the sword," is a say- 
 ing of wide application, and had it been so in this case ; 
 had this brave and self-possessed man been moved from 
 his high purpose by the importunity of friends, and 
 when slain by his enemy, had been found armed in like 
 manner with the murderer himself, what a stain would it 
 have been upon his name and honor ? And how would 
 our whole country have been disgraced in the eyes of 
 the civilized world, that her highest ministers of justice 
 must be armed as highwaymen as they go about their 
 daily duties ! 
 
 Well said this undaunted servant of the state : 
 " Then will it be time to close the courts themselves." 
 May we not hope, Mr. Editor, that this example of one 
 occupying this high place in our country may have
 
 429 
 
 some influence in staying the spirit and deeds of vio- 
 lence now so rife, and that they who are so ready to re- 
 sort to the rifle and revolver may learn to regard them 
 only as the instruments of the coward or the scoun- 
 drel ? 
 
 B. WISTAK MOEEIS. 
 
 The citations given below from different journals, 
 published at the time, indicated the general opinion of 
 the country. With rare exceptions it approved of the 
 action of the Government, the conduct of Neagle. and 
 the bearing of Justice Field. 
 
 The Aita California, a leading paper in California, 
 had, on August 15, 1889, the day following the tragedy, 
 the following article : 
 
 THE TERRY TRAGEDY. 
 
 The killing of David S. Terry by the United States 
 Marshal David Neagle yesterday was an unfortunate 
 affair, regretted, we believe, by no one more than by 
 Justice Field, in whose defense the fatal shot was tired. 
 There seems, however, to be an almost undivided senti- 
 ment that the killing was justifiable. Every circum- 
 stance attending the tragedy points to the irresistible 
 conclusion that there was a premeditated determination 
 on the part of Terry and his wife to provoke Justice 
 Field to an encounter, in which Terry might either find 
 an excuse for killing the man against whom he had 
 threatened vengeance, or in which his wife might use 
 the pistol which she always carries, in the pretended 
 defense of her husband. For some time past it has 
 been feared that a meeting between Terry and Justice 
 Field would result in bloodshed. There is now indis-
 
 430 
 
 putable proof that Terry had made repeated threats 
 that he would assault Justice Field the first time he met 
 him off the bench, and that if the Judge resisted he 
 would kill him. Viewed in the light of these threats, 
 Terry's presence on the same train with Justice Field 
 will hardly be regarded as accidental, and his actions 
 in the breakfast-room at Lathrop were directly in line 
 with the intentions he had previously expressed. Nea- 
 gle's prompt and deadly use of his revolver is to be 
 judged with due reference to the character and known 
 disposition of the man with whom he had to deal and 
 to his previous actions and threats. He was attending 
 Justice Field, against the will of the latter and in spite 
 of his protest, in obedience to an order from the Attor- 
 ney-General of the United States to Marshal Franks to 
 detail a deputy to protect the person of Justice Field 
 from Terry's threatened violence. A slap in the face 
 may not, under ordinary circumstances, be sufficient 
 provocation to justify the taking of human life ; but it 
 must be remembered that there were no ordinary cir- 
 cumstances and that Terry was no ordinary man. Terry 
 was a noted pistol-shot ; it was known that he invaria- 
 bly carried arms and that he boasted of his abilit} T to 
 use them. If on this occasion he was unarmed, as Mrs. 
 Terry asserts,* Neagle had no means of knowing that 
 fact ; on the contrary, to his mind every presumption 
 was in favor of the belief that he carried both pistol and 
 knife, in accordance with his usual habit. As a peace 
 officer, even apart from the special duty which had been 
 assigned to him, he was justified in taking the means 
 necessary to prevent Terry from continuing his assault ; 
 but the means necessary in the case of one man may be 
 wholly inadequate with a man bearing the reputation of 
 David S. Terry, a man who only a few months previ- 
 oxisly had drawn a knife while resisting the lawful au- 
 
 * It has been conclusively established since that he was armed with 
 his usual bowie-knife at the time.
 
 431 
 
 thority of another United States officer. It is true that 
 if Terry was unarmed, the deputy marshal might have 
 arrested him without taking his life or seriously endan- 
 gering his own ; but Terry was a man of gigantic stature, 
 and. though aged, in possession of a giant's strength ; 
 and there is no one who was acquainted with him, or 
 has had opportunity to learn his past history, who does 
 not know that he was a desperate man, willing to take 
 desperate chances and to resort to desperate means 
 when giving way to his impulses of passion, and that 
 any person who should at such a moment attempt to 
 stay his hand would do so at the risk of his life. 
 Whether he had a pistol with him at that moment or 
 not, there was every reason to believe that he was armed, 
 and that the blow with his hand was intended only as 
 the precursor to a more deadly blow with a weapon. 
 At such moments little time is allowed for reflection. 
 The officer of the law was called upon to act and to act 
 promptly. He did so, and the life of David S. Terry 
 was the forfeit. He fell, a victim to his own ungovern- 
 able passions, urged on to his fate by the woman who 
 was at once his wife and his client, and perhaps further 
 incited by sensational newspaper articles which stirred 
 up the memory of his resentment for fancied wrongs, 
 and taunted him with the humiliation of threats unful- 
 filled. 
 
 The close of Judge Terry's life ends a career and an 
 era. He had the misfortune to carry into a ripened 
 state of society the conditions which are tolerable only 
 where social order is not fully established. Restless 
 under authority, and putting violence above law. he 
 lived by the sword and has perished by it. 
 
 That example which refused submission to judicial 
 finalities was becoming offensive to California, but the 
 incubus of physical fear was upon many who realized 
 that the survival of frontier ways into non-frontier 
 period was a damage to the State. But, be this as it
 
 may, the stubborn spirit that defied the law has fallen 
 by the law. 
 
 When Justice Field showed the highest judicial cour- 
 age in the opening incidents of the tragedy that has 
 now closed, the manhood of California received a dis- 
 tinct impetus. When the Justice, with threats made 
 against his life, returned to the State unarmed, and re- 
 sentful of protection against assault, declaring that 
 when judges must arm to defend themselves from as- 
 sault offered in reprisal of their judicial actions society 
 must be considered dissolved, he was rendering to our 
 institutions the final and highest possible service. The 
 event that followed, the killing of Terry in the act of 
 striking him the second time from behind, while he sat 
 at table in a crowded public dining-room, was the act 
 of the law. The Federal Department of Justice, by its 
 chief, the Attorney-General of the United States, had 
 ordered its officer, the United States marshal for the 
 northern district of California, to take such means and 
 such measures as might be necessary to protect the 
 persons of the judges against assault by Judge Terry, 
 in carrying out the threats that he had made. This 
 order was from the executive arm of the Government, 
 and it was carried out to the letter. Judge Terry took 
 the law into his own hands and fell. Nothing can add 
 to the lesson his fate teaches. It is established now 
 that in California no man is above the law ; that no 
 man can affect the even poise of justice by fear. Con- 
 fiding in his own strength as superior to the law. David 
 S. Terry fell wretchedly. 
 
 No more need be said. New California inscribes 
 upon her shield, " Obedience to the law the first con- 
 dition of good citizenship," and the past is closed. 
 
 The Record- Union of Sacramento, one of the leading 
 papers of California, on 'August 15, 1889, the day fol-
 
 433 
 
 lowing the tragedy, had the following article under the 
 
 head 
 
 KILLING OF JUDGE TERRY. 
 
 In the news columns of the Record- Union will be 
 found all the essential details of the circumstances of 
 the killing of D. S. Terry. It will be evident to the 
 reader that they readily sap the whole case, and that 
 there is no substantial dispute possible concerning the 
 facts. These truths we assert, without fear of success- 
 ful contradiction, establish the justifiableuess of the 
 act of the United States marshal who fired upon and 
 killed Terry. We think there will be no dispute among 
 sensible men that a federal circuit judge or a justice of 
 the supreme bench, passing from one portion of the 
 circuit to another in which either is required to open a 
 court and hear causes, and for the purpose of fully 
 discharging his official duties, is while en route in the 
 discharge of an official function, and constructively his 
 court is open to the extent that an assault upon him, 
 because of matters pending in his court, or because of 
 judgments he has rendered or is to render, is an assault 
 upon the court, and his bailiff or marshal detailed to 
 attend the court or to aid in preserving the order and 
 dignity of the court has the same right to protect him 
 from assault then that he would have, had the judge 
 actually reached his court-room. 
 
 But further than this, we hold that in view of the 
 undeniable fact that the Justice had knowledge of the 
 fact that the Terry s, man and wife, had sworn to pun- 
 ish him ; that they had indulged in threats against him 
 of the most pronounced character ; that they had 
 boarded a train on which it is probable they knew he 
 had taken passage from one part of his circuit to 
 another in his capacity as a magistrate ; in view of the 
 fact that Terry sought the first opportunity to approach 
 and strike him, and that, too, when seated ; and in view
 
 434 
 
 of the notorious fact that Terry always went armed 
 the man who shot Terry would have been justified in 
 doing so had he not even been commissioned as an 
 officer of the court. He warned the assailant to desist, 
 and knowing his custom to go armed, and that he had 
 threatened the Justice, and Terry refusing to restrain 
 his blows, it was Neagle's duty to save life, to strike 
 down the assailant in the most effectual manner. Men 
 who, having the ability to prevent murder, stand by and 
 see it committed, may well be held to accountability 
 for criminal negligence. 
 
 But in this case it is clear that murder was intended 
 on the part of the Terrys. One of them ran for her 
 pistol and brought it, and would have reached the 
 other's side with it in time, had she not been detained 
 by strong men at the door. Neagle saw this woman 
 depart, and coupling it with the advance of Terry, 
 knew, as a matter of course, what it meant. He had 
 been deputed by the chief law officer of the Govern- 
 ment in view of previous assaults by the Terrys and 
 their threats and display of weapons in court to 
 stand guard over the judges and protect them. He 
 acted, therefore, precisely as it was proper he should 
 do. Had he been less prompt and vigorous, all the 
 world knows that not he but Terry would to-day be in 
 custody, and not Terry but the venerable justice of the 
 Supreme Court of the United States would to-day be 
 in the coffin. 
 
 These remarks have grown too extended for any 
 elaboration of the moral of the tragedy that culmi- 
 nated in the killing of David S. Terry yesterday. But 
 we cannot allow the subject to be even temporarily 
 dismissed without calling the thought of the reader to 
 contemplation of the essential truth that society is 
 bound to protect the judges of the courts of the land 
 from violence and the threats of violence ; otherwise 
 the decisions of our courts must conform to the vio-
 
 435 
 
 lence threatened, and there will be an end of our judicial 
 system, the third and most valuable factor in the scheme 
 of representative government. Society cannot, there- 
 fore, punish, but must applaud the man who defends 
 the courts of the people and the judges of those courts 
 from such violence and threats of violence. For it 
 must be apparent to even the dullest intellect that all 
 such violence is an outrage upon the judicial conscience, 
 and therefore involves and puts in peril the liberties of 
 the people. 
 
 The New Orleans Times- Democrat, in one of its is- 
 sues at this period, used the following language : 
 
 The judge in America who keeps his official ermine 
 spotless, who faithfully attends to the heavy and re- 
 sponsible duties of his station, deserves that the peo- 
 ple should guard the sanctity of his person with a 
 strength stronger than armor of steel and readier than 
 the stroke of lance or sword. Though the judges be 
 called to pass on tens of thousands of cases, to sentenee 
 to imprisonment or to death thousands of criminals, 
 they should be held by the people safe from the hate 
 and vengeance of those criminals as if they were guarded 
 by an invulnerable shield. 
 
 If Judge Field, of the Supreme Court, one of the 
 nine highest judges under our republican government, 
 in travelling recently over his circuit in California, had 
 been left to the mercy of the violent man who had re- 
 peatedly 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 be- 
 ginning of the decline of patriotism.
 
 436 
 
 Judge Field recognized this when, in being advised 
 to arm himself 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 court 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 bar- 
 barism." That ringing sentence has gone to the re- 
 motest corner of the land, and everywhere it has gone 
 it should fire the American heart with a proud resolve 
 to protect forever the sanctity of our judiciary. 
 
 Had not Neagle protected the person of Judge Field 
 from the assault of a dangerous and violent ruffian, ap- 
 parently intent on murder, by his prompt and decisive 
 action, shooting the assailant , down to his death, it is 
 certain that other brave men would have rushed quickly 
 to his rescue ; but Neagle's marvelous quickness fore- 
 stalled the need of any other's action. The person of 
 one of the very highest American judges was preserved 
 unharmed, while death palsied the murderous hand that 
 had sworn to take his life. 
 
 That act of Neagle's was no crime. It was a deed 
 that any and every American should feel proud of hav- 
 ing done. It was an act that should be applauded over 
 the length and breadth of this great land. It should 
 not have consigned him for one minute to prison walls. 
 It should have lifted him high in the esteem of all the 
 American, people. When criminals turn executioners, 
 and judges are the victims, we might as well close our 
 courts and hoist the red flag of anarchy over their silent 
 halls and darkened chambers. 
 
 The New York Herald, in its issue of August 19, 
 1889, said : 
 
 The sensation of the past week is a lesson in republi- 
 canism and a eulogium on the majesty of the law.
 
 437 
 
 It was not a personal controversy between Stephen 
 J. Field and David S. Terry. It was a conflict between 
 law and lawlessness 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 embodies a nobility that should make it his- 
 toric : " 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 themselves." 
 
 This sentiment was not born of any insensibility to 
 danger ; Justice Field fully realized the peril himself. 
 But above all feeling of personal concern arose a lofty 
 sense of the duty imposed upon a justice of the nation's 
 highest court. The officer is a representative of the 
 law a minister of peace. He should show by his 
 example that the law is supreme ; that all must bow to 
 its authority ; 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 vio- 
 lence, 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.
 
 438 
 
 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. 
 
 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 dis- 
 charging his painful duty, Justice Field promptly spoke 
 out : " Officer, proceed 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 Albany Evening Union, in one of its issues at 
 this time, has the following : 
 
 JUSTICE FIELD RELIES UPON THE LAW FOR HIS DEFENSE. 
 
 The courage of Justice Stephen J. Field in declining 
 to carry weapons and declaring that it is time to close 
 the courts when judges have to arm themselves, and at 
 the same time proceeding to do his duty on the bench 
 when his life was threatened by a desperate man, is 
 without parallel in the history of our judiciary. We 
 do not mean by this that he is the only judge on the 
 bench that would be as brave as he was under the cir- 
 cumstances, but every phase of the affair points to the 
 heroism of the man. He upheld the majesty of the 
 law in a fearless manner and at the peril of his life. 
 He would not permit the judiciary to be lowered by any 
 fear of the personal harm that might follow a straight- 
 forward performance of his duty. His arrest for com-
 
 439 
 
 plicity in a murder was borne by the same tranquil 
 bravery a supreme reliance upon a due process of 
 law. He did not want the officer to apologize to him 
 for doing his duty. He had imprisoned Judge Terry 
 and his wife Sarah Althea for contempt of court. " x 
 The threats by Judge Terry did not even frighten him 
 to carry weapons of self-defense. This illustration of 
 upholding the majesty of the law is without precedent, 
 and is worth more to the cause of justice than the en- 
 tire United States army could be if called out to sup- 
 press a riotous band of law-breakers. Justice Field 
 did what any justice should do under the circumstances, 
 but how many judges would have displayed a like 
 courage had they been in his place ? 
 
 The New fork World, in its issue of Monday even- 
 ing, August 26th, has the following article : 
 
 A NEW LEAF TURNED. 
 
 When Judge Field, knowing that his life was threat- 
 ened, went back unarmed into the State of California 
 and about his business there, he gave wholesome re- 
 buke to the cowardice that prompts men to carry a 
 pistol a cowardice that has been too long popular on 
 the coast. He did a priceless service to the cause of 
 progress in his State, and added grace to his ermine 
 when he disdained to take arms in answer to the 
 threats of assassins. 
 
 The men who have conspired to take Judge Field's 
 life ought to need only one warning that a new day has 
 dawned in California, and to find that warning in the 
 doom of the bully Terry. The law will protect the 
 ermine of its judges. 
 
 The New York World of August 18th treats of the 
 arrest of Justice Field as an outrage, and speaks of it 
 as follows :
 
 440 
 
 THE AKEEST OF FIELD AN OUTRAGE AND AN 
 ABSURDITY. 
 
 The California magistrate who issued a warrant for 
 Justice Field's arrest is obviously a donkey of the most 
 precious quality. The Justice had been brutally as- 
 sailed by a notorious ruffian who had publicly declared 
 his intention to kill his enemy. Before Justice Field 
 could even rise from his chair a neat-handed deputy 
 United States marshal shot the ruffian. Justice Field 
 had no more to do with the shooting than any other 
 bystander, and even if there had been doubt on that 
 point it was certain that a justice of the United States 
 Supreme Court was not going to run away beyond the 
 jurisdiction. His arrest was, therefore, as absurd as it 
 was outrageous. It was asked for by the demented 
 widow of the dead desperado simply as a means of 
 subjecting the Justice to an indignity, and no magistrate 
 possessed of even a protoplasmic possibility of com- 
 mon sense and character would have lent himself in 
 that way to such a service. 
 
 The Kansas City Times, in its issue at this period, 
 uses the following language : 
 
 NO ONE WILL CENSURE. 
 
 Gratitude for Judge Field's Escape the Chief Sentiment. 
 
 Deputy Marshal Neagle acted with terrible prompti- 
 tude in protecting the venerable member of the Supreme 
 Court with whose safety he was specially charged, but 
 few will be inclined to censure him. He had to deal 
 with a man of fierce temper, whose readiness to use 
 firearms was part of the best known history of Cali- 
 fornia.
 
 441 
 
 It is a subject for general congratulation that Justice 
 Field escaped the violence of his assailant. The Amer- 
 ican nation would be shocked to learn that a judge of 
 its highest tribunal could not travel without danger of 
 assault from those whom he had been compelled to of- 
 fend by administering the laws. Justice Field has the 
 respect due his office and that deeper and more signifi- 
 cant reverence produced by his character and abilities. 
 Since most of the present generation were old enough 
 to observe public affairs he has been a jurist of national 
 reputation and a sitting member of the Supreme Court. 
 In that capacity he has earned the gratitude of his 
 countrymen by bold and unanswerable defense of sound 
 constitutional interpretation on more than one occa- 
 sion. In all the sad affair the most prominent feeling 
 will be that of gratitude at his escape. 
 
 The Army and Navy Journal, in its issue of August 
 24, 1889, had the following article under the head of 
 
 MARSHAL NEAGLE'S CRIME. 
 
 The public mind appears to be somewhat unsettled 
 upon the question of the right of Neagle to kill Terry 
 while assaulting Judge Field. His justification is as 
 clear as is the benefit of his act to a long-suffering com- 
 munity. Judge Field was assaulted unexpectedly from 
 behind, while seated at a dining-table, by a notorious 
 assassin and ruffian, who had sworn to kill him, and 
 who, according to the testimony of at least one witness, 
 was armed with a long knife, had sent his wife for a 
 
 pistol, and was intending to use it as soon as obtained. 
 
 * * * 
 
 The rule is that the danger which justifies homicide 
 in self-defenso must be actual and urgent. And was it 
 not so in this case ? No one who reflects upon the 
 features of the case an old man without means of de-
 
 442 
 
 fense, fastened in a sitting posture by the table at which 
 he sat and the chair he occupied, already smitten with 
 one severe blow and about to receive another more 
 severe from a notorious ruffian who had publicly 
 avowed his intention to slay him no one surely can 
 deny that the peril threatening Judge Field was both 
 actual and urgent in the very highest degree. 
 
 " A man may repel force by force in the defense of 
 his person, habitation, or property, against one or many 
 who manifestly intend and endeavor by violence or 
 surprise to commit a known felony on either." " In 
 such a case he is not obliged to retreat, but may pur- 
 sue his adversary till he find himself out of danger ; 
 and if in a conflict between them he happens to kill, 
 such killing is justifiable. The right of self-defense in 
 case of this kind is founded on the law of nature, and 
 is not, nor can be, superseded by any law of society. 
 Where a known felony is attempted upon the person, 
 be it to rob or murder, the party assaulted may repel 
 force by force ; and even his servant attendant on him, 
 or any person present, may interpose for preventing 
 mischief, and, if death ensue, the party interposing 
 will be justified." (Wharton Ainer. Grim. Law, Yol. 2, 
 Sec. 1019.) 
 
 This is the law, as recognized at the present day and 
 established by centuries of precedent, and it completely 
 exonerates Neagle of course Judge Field needs no 
 exoneration from any, the least, criminality in what 
 he did. He is acquitted of wrong-doing, not only in his 
 character of attendant servant, but in that of bystander 
 simply. He was as much bound to kill Terry under the 
 circumstances as every bystander in the room was bound 
 to kill him ; and in his capacity of guard, especially 
 appointed to defend an invaluable life against a known 
 and imminent felony, he was so bound in a much 
 greater degree. 
 
 " A sincere and apparently well-grounded belief that
 
 443 
 
 a felony is about to be perpetrated will extenuate a 
 homicide committed in prevention of it, though the 
 defendant be but a private citizen " (25 Ala., 15.) 
 See Wharton, above quoted, who embodies the doctrine 
 in his text (Vol. 2, Sec. 1039). 
 
 * * * # * * * * 
 
 Let us be grateful from our hearts that the old 
 Mosaic law, " Whoso sheddeth man's blood by man shall 
 his blood be shed," is shown by this memorable event 
 to have not yet fallen altogether into innocuous desue- 
 tude ; and let us give thanks to God that he has seen 
 fit on this occasion to preserve from death at the hands 
 of an intolerable ruffian the life of that high-minded, 
 pure-handed, and excellent jurist and magistrate, 
 Stephen J. Field. 
 
 The Philadelphia Times of August 15th has the fol- 
 lowing : 
 
 ONLY ONE OPINION. 
 
 Marshal Neagle Could Not Stand Idly By. 
 
 The killing of Judge Terry of California is a homi- 
 cide that will occasion no regret wherever the story of 
 his stormy and wicked life is known. At the same 
 time, the circumstances that surrounded it will be deeply 
 lamented. This violent man, more than once a mur- 
 derer, met his death while in the act of assaulting Justice 
 Field of the Supreme Court of the United States. 
 Had he not been killed when he was, Judge Field 
 would probably have been another of his victims. 
 Terry had declared his purpose of killing the Justice, 
 and this was their first meeting since his release from 
 deserved imprisonment. 
 
 In regard to the act of United States Marshal Neagle, 
 there can be only one opinion. He could not stand
 
 idly by and see a judge of the Suprene Court murdered 
 before his eyes. The contumely that Terry sought to 
 put upon the Judge was only the insult that was to go 
 before premeditated murder. The case has no moral 
 except the certainty that a violent life will end in a 
 violent death. 
 
 The Philadelphia Inquirer of the same date says as 
 
 follows : 
 
 A PREMEDITATED INSULT. 
 
 Followed Quickly by a Deserved Retribution. 
 
 Ex-Judge Terry's violent death was a fitting termina- 
 tion to a stormy life, and the incidents of his last en- 
 counter were characteristic of the man and his methods. 
 He was one of the few lingering representatives of the 
 old-time population of California. He was prominent 
 there when society was organizing itself, and succeeded 
 in holding on to life and position when many a better 
 man succumbed to the rude justice of the period. 
 Most of his early associates died with their boots on, a 
 generation ago. Terry lived, assailed on all sides, de- 
 spised by the better element and opposed by the law, 
 in trouble often, but never punished as he deserved. 
 His last act was to offer a gross, premeditated insult to 
 the venerable Justice Field, and the retribution he had 
 long defied followed it quickly. California will have 
 little reason to mourn his loss. 
 
 The Cleveland Leader, in its issue of August 18th, 
 speaks of the conduct of Neagle as follows : 
 
 THE KILLING OF TERRY. 
 
 We have already expressed the opinion in these col- 
 umns that the killing of David S. Terry by Deputy
 
 445 
 
 Marshal Neagle at Lathrop, California, Wednesday, 
 was entirely justifiable. In that opinion it is a pleasure 
 to note that the press of the country concur almost 
 unanimously. The judgment of eminent members of 
 the legal profession, as published in our telegraph 
 columns and elsewhere, support and bear out that view 
 of the case. The full account of the trouble makes the 
 necessity of some such action on the part of the deputy 
 marshal clear. The judgment of the country is that 
 Neagle only did his duty in defending the person of 
 Justice Field, and in that judgment the California jury 
 will doubtless concur when the case is brought before it. 
 
 The Argonaut, a leading paper of San Francisco, 
 not a political, but a literary paper, and edited with 
 great ability, in its issue of August 26, 1889, used the 
 following language : 
 
 The course of Judge Field throughout this trou- 
 blesome business has been in the highest degree 
 creditable to him. He has acted with dignity and 
 courage, and his conduct has been characterized 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 reputation, not for 
 courage in the right direction ; not for generosity 
 which overlooked or forgave, or forgot 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
 
 446 
 
 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 infuriated, angry monster, who had never shown 
 mercy or generosity to an enemy in his power. * 
 
 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 thou- 
 sands 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 unattended 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 ad- 
 journ in honor of his death, the press and public opin- 
 ion, 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 bear- 
 ing of Justice Field.* 
 
 * NOTE. Whilst there was a general concurrence of opinion as to 
 the threats of Terry and of the fate he met at the hands of Neagle
 
 447 
 
 The Daily Report, a paper of influence in San 
 Francisco at the time, published the following article 
 on " The Lesson of the Hour," from the pen of an 
 eminent lawyer of California, who was in no way con- 
 nected with the controversy which resulted in Judge 
 Terry's death : 
 
 The universal acquiescence of public opinion in 
 the justifiable character of the act which terminated 
 the life of the late David S. Terry is to be accounted 
 for by the peculiar nature of the offense which he had 
 committed. It was not for a mere assault, though per,- 
 
 and of the bearing of Justice Field through all the proceedings, there 
 were exceptions to this judgment. There were persons who sympa- 
 thized with Terry and his associates and grieved at his fate, although 
 he had openly avowed his intention not merely to insult judicial offi- 
 cers for their judicial conduct, but to kill them in case they resented 
 the insult offered. He married Sarah Althea Hill after the United 
 States Circuit Court had delivered its opinion, in open court, announc- 
 ing its decision that she had committed forgery, perjury, and subor- 
 nation of perjury, and was a woman of abandoned character. And 
 yet a writer in the Overland Monthly in October, 1889, attributes his 
 assault upon the marshal striking him violently in the face for the 
 execution of the order of the court to remove her from the court- 
 room because of her gross imputation upon the judges chiefly to his 
 chivalric spirit to protect his wife, and declares that "the universal 
 verdict" upon him " will be that he was possessed of sterling integ- 
 rity of purpose, and stood out from the rest of his race as a strongly 
 individualized character, which has been well called an anachronism 
 in our civilization." And Governor Peunoyer, of Oregon, in his mes- 
 sage to the legislature of that State, pronounced the officer appointed 
 by the marshal under the direction of the Attorney-General to pro- 
 tect Justices Field and Sawyer from threatened violence and murder 
 as a "secret armed assassin," who accompanied a Federal judge in 
 California, and who shot down in cold blood an unarmed citizen of 
 that Stute.
 
 448 
 
 petrated under circumstances which rendered it pecu- 
 liarly reprehensible, that he met his death without 
 eliciting from the community one word of condemna- 
 tion for the slayer or of sympathy with the slain. 
 
 Mr. Justice Field is an officer of high rank in the 
 most important department of the Government of the 
 United States, namely, that which is charged with the 
 administration of legal justice. When David S. Terry 
 publicly and ostentatiously slapped the face of this 
 high official this representative of public justice 
 the blow being in all probability the intended prelude 
 to a still more atrocious offense, he committed a gross 
 violation of the peace and dignity of the United States. 
 The echo of the blow made the blood tingle in the 
 veins of every true American, and from every quarter, 
 far and near, thick and fast, came denunciations of the 
 outrage. That any man under a government created 
 " by the people, for the people " shall assume to be a 
 law unto himself, the sole despot in a community based 
 on the idea of the equality of all before the law, and 
 the willing submission and obedience of all to estab- 
 lished rule, is simply intolerable. 
 
 In his audacious assault on " the powers that be " 
 Terry took his life in his hand, and no lover of peace 
 and good order can regret that, of the two lives in peril, 
 his was extinguished. He threw down the gage of 
 battle to the whole community, and it is well that he 
 was vanquished in the strife. 
 
 In the early part of the war of the rebellion Gen- 
 eral Dix, of New York, was placed in charge of one of 
 the disaffected districts. We had then hardly begun to 
 see that war was a very stern condition of things, and 
 that it actually involved the necessity of killing. Those 
 familiar with the incidents of that time will remember 
 how the General's celebrated order, " If any one at- 
 tempts to haul down the American flag, shoot him on 
 the spot," thrilled the slow pulses of the Northern heart
 
 449 
 
 like the blast of a bugle. Yet some adverse obstruc- 
 tionist might object that the punishment pronounced 
 far exceeded the offense, which was merely the effort to 
 detach from its position a piece of colored bunting. 
 But it is the animus that characterizes the act. An in- 
 sult offered to a mere symbol of authority becomes, 
 under critical circumstances, an unpardonable crime. 
 If the symbol, instead of being an inanimate object, 
 be a human being a high officer of the Government 
 does not such an outrage as that committed by Terry 
 exceed in enormity the offense denounced by General 
 Dix ? And if so, why should the punishment be less ? 
 In every civilized community, society, acting with 
 a keen instinct of self-preservation, has always pun- 
 ished with just severity those capital offenders against 
 peace and good order who strike at the very founda- 
 tion on which all government must rest.
 
 CHAPTEE XX. 
 
 THE APPEAL TO THE SUPEEME COURT OF THE UNITED 
 STATES, AND THE SECOND TRIAL OF SARAH ALTHEA's 
 DIVORCE CASE. 
 
 With the discharge from arrest of the brave deputy 
 marshal; Neagle, who had stood between Justice Field 
 and the would-be assassin's assault, and the vindication 
 by the Circuit Court of the right of the general govern- 
 ment to protect its officers from personal violence, for 
 the discharge of their duties, at the hands of disap- 
 pointed litigants, the public mind, which had been 
 greatly excited by the proceedings narrated, became 
 quieted. No apprehension was felt that there would be 
 any reversal of the decision of the Circuit Court on the 
 appeal which was taken to the Supreme Court. Gen- 
 eral and absolute confidence was expressed in the de- 
 termination of the highest tribunal of the nation. The 
 appeal was argued on the part of Neagle by the At- 
 torney-General of the United States and Joseph H. 
 Choate, Esq., of the New York bar ; and the briefs of 
 counsel in the Circuit Court were also filed. The at- 
 torney-general of California and Mr. Zachariah Mont- 
 gomery appeared upon behalf of the State, and briefs 
 of Messrs. Shellabarger and Wilson were also filed in 
 its behalf.
 
 451 
 
 The argument of the Attorney-General of the United 
 States was exceedingly able. He had watched all the 
 proceedings of the case from the outset. He had di- 
 rected that protection should be extended by the 
 marshal to Justice Field and Judge Sawyer against any 
 threatened violence, and he believed strongly in the 
 doctrine that the officers of the general government 
 were entitled to receive everywhere throughout the 
 country full protection against all violence whilst in the 
 discharge of their duties. He believed that such pro- 
 tection was necessary to the efficiency and permanency 
 of the government ; and its necessity in both respects 
 was never more ably presented. 
 
 The argument of Mr. Choate covered all the ques- 
 tions of law and fact in the case and was marked by 
 that great ability and invincible logic and by that clear- 
 ness and precision of statement which have rendered 
 him one of the ablest of advocates and jurists in the 
 country, one who all acknowledge has few peers and 
 no superiors at the bar of the nation.* 
 
 *NOTE. Mr. Choate took great interest in the question involved 
 the right of the Government of the United States to protect its offi- 
 cers from violeuce whilst engaged in the discharge of their duties, 
 deeming its maintenance essential to the efficiency of the Government 
 itself ; and he declined to make any charge or take any fee for his 
 professional services in the case. The privilege of supporting this 
 great principle before the highest tribunal of the country, where his 
 powers would be most effectively engaged in securing its recognition, 
 was considered by him as sufficient reward. Certainly he has that 
 reward in the full establishment of that principle for which, also,
 
 452 
 
 The argument of the attorney-general of the State 
 consisted chiefly of a repetition of the doctrine that, for 
 offenses committed within its limits, the State alone 
 has jurisdiction to try the offenders a position which 
 within its proper limits, and when not carried to the 
 protection of resistance to the authority of the United 
 States, has never been questioned. 
 
 The most striking feature of the argument on behalf 
 of the State was presented by Zachariah Montgomery. 
 It may interest the reader to observe the true Terry 
 flavor introduced into his argument, and the manifest 
 perversion of the facts into which it led him. He 
 deeply sympathized with Terry in the grief and morti- 
 fication which he suffered in being charged with hav- 
 ing assaulted the marshal with a deadly weapon in the 
 presence of the Circuit Court in September, 1888. He 
 attempted to convince the Supreme Court that one of 
 its members had deliberately made a misrecital, in the 
 order committing Terry for contempt, and treated this 
 as a mitigation of that individual's subsequent attack 
 on Justice Field. He did not, however, attempt to 
 
 both he and Attorney-General Miller will receive the thanks of all 
 who love and revere our national government and trust that its exist- 
 ence may be perpetuated. 
 
 Mr. James C. Carter, the distinguished advocate of New York, also 
 took a deep interest in the questions involved, and had several con- 
 sultations with Mr. Choate upon them ; and his professional services 
 were given with the same generous and noble spirit that characterized 
 the course of Mr. Choate.
 
 453 
 
 gainsay the testimony of the numerous witnesses who 
 swore that Terry did try to draw his knife while yet in 
 the court-room on that occasion, and that, being tempo- 
 rarily prevented from doing so by force, he completed 
 the act as soon as this force was withdrawn, and pur- 
 sued the marshal with knife in hand, loudly declaring 
 in the hearing of the court, in language too coarse and 
 vulgar to be repeated, that he would do sundry terrible 
 things to those who should obstruct him on his way to 
 his wife. As she was then in the custody of the mar- 
 shal and in his office, under an order of the court ; and 
 as Terry had resisted her arrest and removal from the 
 court-room until overpowered by several strong men, 
 and as he had instantly on being released rushed 
 madly from the court-room, drawing and brandishing 
 his knife as he went, the conclusion is irresistible that 
 he was determined upon her rescue from the marshal, 
 if, with the aid of his knife, he could accomplish it. 
 That Mr. Montgomery allowed these facts, which con- 
 stitute the offense of an assault with a deadly weapon, 
 to go unchallenged, compels us to the charitable pre- 
 sumption that he did not know the law. 
 
 A reading of the decisions on this subject would 
 have taught him that in order to constitute that offense 
 it is not necessary that the assailant should actually 
 stab with his knife or shoot with his pistol. The as- 
 sault by Terry was commenced in the court-room,
 
 454 
 
 under the eyes of the judges, and was a continuing 
 act, ending only with the wrenching of the knife from 
 his hands. It was all committed " in the presence of the 
 court," for the Supreme Court has decided in the Savin 
 case that " the jury-room and hallway were parts of the 
 place in which the court was required by law to hold 
 its sessions, and that the court, at least when in ses- 
 sion, is present in every part of the place set apart for 
 its own use and for the use of its officers, jurors, and 
 witnesses, and that misbehavior in such a place is 
 misbehavior in the presence of the court. (See vol. 
 131, U. S. Reports, page 277, where the case is reported.) 
 
 Mr. Montgomery was reckless enough to contradict 
 the record when he stated that Justice Field in his 
 opinion in the revivor case " took occasion to discuss 
 at considerable length the question of the genuineness 
 of the aforesaid marriage document, maintaining very 
 strenuously that it was a forgery, and that this it was 
 that so aroused the indignation of Mrs. Terry that she 
 sprang to her feet and charged Justice Field with 
 having been bought." 
 
 There is not a word of truth in this statement. 
 Justice Field, in overruling the demurrer, never dis- 
 cussed at all the genuineness of the marriage agree- 
 ment. How, then, could it be true that words, nowhere 
 to be found in Judge Field's opinion, " so aroused the 
 indignation of Mrs. Terry that she sprang to her feet
 
 455 
 
 and charged Justice Field with having been bought"? 
 Justice Field discussed only the legal effect of the 
 decree already rendered by the United States Circuit 
 Court. He said nothing to excite the woman's ire, 
 except to state the necessary steps to be taken to en- 
 force the decree. He had not participated in the trial 
 of the original case, and had never been called upon 
 to express any opinion concerning the agreement. Mr. 
 Montgomery said in his brief that the opinion read by 
 Justice Field, " while overruling a demurrer, assails 
 this contract, in effect pronouncing it a forgery." This 
 statement is totally unfounded. From it the casual 
 reader would suppose that the demurrer was to the 
 complaint in the original case, and that the court was 
 forestalling evidence, whereas it was a demurrer in a 
 proceeding to revive the suit, which had abated by the 
 death of the party, and to give effect to the decree 
 already rendered therein, after a full hearing of the 
 testimony. 
 
 Mr. Montgomery said : 
 
 " The opinion also charges Mrs. Terry with perjury, 
 after she has sworn that it was genuine." 
 
 The judgment of a court may be referred to by one 
 of its judges, even though the rendering of the judg- 
 ment convicted a party or a witness, of perjury, with- 
 out furnishing the perjurer with a justification for
 
 456 
 
 denouncing the judge. Mr. Montgomery furthermore 
 said that the " opinion charged her not only with 
 forgery and perjury, but with unchastity as well ; for if 
 she had not been Sharon's wife, she had unquestion- 
 ably been his kept mistress." He says : 
 
 "At the announcement of this decision from the bench 
 in the presence of a crowded court-room ; a decision 
 which she well knew, before the going down of another 
 sun, would be telegraphed to the remotest corners of 
 the civilized world, to be printed and reprinted with 
 sensational head-lines in every nevyspaper, and talked 
 over by every scandal-monger on the face of the earth ; 
 was it any wonder not that it was right but was it 
 any wonder that this high-spirited, educated woman, 
 sprung from as respectable a family as any in the great 
 State of Missouri, proud of her ancestry, and prizing 
 her good name above everything on this earth, when 
 she heard herself thus adjudged in one breath to be 
 guilty of forgery, perjury, and unchastity, and thus de- 
 graded from the exalted position of wife to which the 
 Supreme Court of her State had said she was entitled 
 down to that of a paid harlot; was it any wonder, I 
 say, that like an enraged tigress she sprang to her feet, 
 and in words of indignation sought to defend her 
 wounded honor ? " 
 
 Mr. Montgomery did not speak truly when he said 
 that on this occasion such a decision was announced 
 from the bench. The decision was announced on the 
 24th of December, 1885, nearly three years before. 
 The only decision announced on this occasion was that 
 the case did not die with the plaintiff therein William
 
 457 
 
 Sharon but that the executor of his estate ha'd the 
 right to act had a right to be substituted for the de- 
 ceased, and to have the decree executed just as it would 
 have been if Mr. Sharon had lived. It was amazing 
 effrontery and disregard of the truth on the part of 
 Mr. Montgomery to make such a statement as he did 
 to the Supreme Court, when the record, lying open 
 before them, virtually contradicted what he was say- 
 ing. 
 
 Towards the close of the decision Justice Field did 
 make reference to Mrs. Terry's testimony in the Su- 
 perior Court. He said that in the argument some 
 stress had been laid upon the fact that in a State 
 court, where the judge had decided in Mrs. Terry's 
 favor, the witnesses had been examined in open court, 
 where their bearing could be observed by the judge ; 
 while in the federal court the testimony had been taken 
 before an examiner, and the court had not the advan- 
 tage of hearing and seeing the witnesses. In reply to 
 this Justice Field called attention to the fact that Judge 
 Sullivan, while rendering his decision in favor of Mrs. 
 Terry, had accused her of having wilfully perjured 
 herself in several instances while testifying in her own 
 case, and of having suborned perjury, and of having 
 knowingly offered in evidence a forged document. But 
 this reference to Judge Sullivan's accusations against 
 Mrs. Terry was not reached in the reading of Justice
 
 458 
 
 Field's opinion until nearly an hour after Mrs. Terry 
 had been forcibly removed from the court-room for 
 contempt, and therefore she did not hear it. This fact 
 appears on record in the contempt proceedings. 
 
 But the most extraordinary feature of Mr. Mont- 
 gomery's brief is yet to be noticed. He says that " If 
 the assault so made by Judge Terry was not for the 
 purpose of then and there killing or seriously injuring 
 the party assaulted, but for the purpose of provoking 
 him into a duel, then the killing of the assailant for 
 such an assault was a crime." 
 
 And again he says : 
 
 " I have said that if the purpose of Judge Terry's 
 assault upon Field was for the purpose of killing him 
 then and there, Neagle, and not Neagle only, but any- 
 body else, would have been justifiable in killing Terry 
 to save the life of Field ; but that if Terry's object in 
 assaulting Field was not then and there to kill or other- 
 wise greatly injure him, but to draw him into a duel, 
 then such an assault was not sufficient to justify the 
 killing." 
 
 He then proceeds to speak of Judge Terry's duel 
 with Senator Broderick, in which the latter was killed. 
 He refers to many eminent citizens who have fought 
 duels, although he admits that dueling is a sin. He 
 then explains that " as a rule the duelist who considers 
 himself wronged by another, having the position and 
 standing of a gentleman, tenders him an insult, either
 
 459 
 
 by a slap in the face or otherwise, in order to attract a 
 challenge. Such undoubtedly was Terry's purpose in 
 this case. All of Terry's threats point precisely to 
 that." 
 
 Here Mr. Montgomery seems to be in accord with 
 Sarah Althea Terry, who, as we have seen, stated that 
 " Judge Terry intended to take out his satisfaction in 
 slaps." In the same direction is the declaration of 
 Porter Ashe, when he said : 
 
 " Instant death is a severe punishment for slapping 
 a man on the face. I have no suspicion that Terry 
 meant to kill Field or to do him further harm than to 
 humiliate him." 
 
 And also that of Mr. Baggett, one of Terry's coun- 
 sel, who said : 
 
 " I have had frequent conversations with Terry 
 about Field, and he has often told me that Field has 
 used his court and his power as a judge to humiliate 
 him, and that he intended to humiliate him in return 
 to the extent of his power. ' I will slap his face,' said 
 Terry to me, ' if I run across him, but I shall not put 
 myself out of the way to meet him. I do not intend to 
 kill him, but I will insult him by slapping his face, 
 knowing that he will not resent it.' ' 
 
 What knightly courage was here. If ever a new edi- 
 tion of the dueling code is printed, it should have for 
 a frontispiece a cut representing the stalwart Terry 
 dealing stealthy blows from behind upon a justice of
 
 460 
 
 the United States Supreme Court, 72 years of age, 
 after having previously informed a trusted friend that 
 he believed himself safe from any resistance by the 
 object of his attack. It may be here also said that 
 Justice Field, as was well known to every one, had for 
 many years suffered from great lameness in conse- 
 quence of an injury received by him in early life, and 
 with difficulty could walk without assistance. 
 
 Mr. Montgomery, with freezing candor, informs the 
 Supreme Court that, in strict accordance with the chiv- 
 alrous code of honor, Judge Terry administered blows 
 upon a member of that court, to force him into a duel, 
 because of a judicial act with which he was displeased. 
 
 He says : 
 
 " The most conclusive proof that Terry had no in- 
 tention, for the time being, of seriously hurting Field, 
 but that his sole purpose was to tender him an insult, 
 is found in the fact that he only used his open hand, 
 and that, too, in a mild manner." 
 
 We often hear of the " mild-mannered men " who 
 " scuttle ships " and " cut throats," but this is the very 
 first one whose " very mild manner " of beating a jus- 
 tice of the Supreme Court of the United States with his 
 hand was ever certified to by an attorney and counsel- 
 lor of that court in the argument of a case before it. 
 
 It would be difficult to conceive of anything more 
 puerile or absurd than this pretense that Terry had the
 
 461 
 
 slightest expectation of provoking a man of Justice 
 Field's age, official position, and physical condition, to 
 fight a duel with him in vindication of the right of the 
 court over which he presided to imprison a man for 
 contempt for beating the marshal in the face with his 
 fist, and afterwards pursuing him with a knife, in the 
 presence of the court, for obeying an order of the 
 court. 
 
 Mr. Montgomery appears to have been imported into 
 the case mainly for the purpose of reviewing the facts 
 and giving them the Terry stamp. His ambition seems 
 to have been to insult Justice Field and his associates 
 in the Circuit Court by charging them with misrepre- 
 senting the facts of the occurrence, thus repeating 
 Terry's reckless accusations to that effect. For Terry 
 he had only words of eulogy and admiration, and said 
 he was " straightforward, candid, and incapable of con- 
 cealment or treachery himself, and therefore never 
 suspected treachery, even in an enemy." 
 
 These noble qualities Terry had illustrated by 
 assaulting Justice Field from behind while the latter 
 was in a position which placed him entirely at the 
 mercy of his assailant. 
 
 Montgomery thought that not only Neagle, but the 
 President, Attorney-General, district attorney, and 
 Marshal Franks should be arraigned for Terry's 
 murder.
 
 Although Justice Field had expressly advised the mar- 
 shal that it was unnecessary for anybody to accompany 
 him to Los Angeles, and although Neagle went contrary 
 to his wish, and only because the marshal considered 
 himself instructed by the Attorney-General to send 
 him, yet Mr. Montgomery especially demanded that he 
 (Justice Field) should be tried for Terry's homicide. 
 This, too, in the face of the fact that under instructions 
 from the attorne} 7 -general of the State of California, 
 aroused to his duty by the Governor, the false, 
 malicious, and infamous charge made against Justice 
 Field by Sarah Althea Terry was dismissed by the 
 magistrate who had entertained it, on the ground that 
 it was manifestly destitute of the shadow of a founda- 
 tion, and that any further proceedings against him 
 would be " a burning disgrace to the State." 
 
 The decision of the Circuit Court discharging Neagle 
 from the custody of the sheriff of San Joaquin county 
 was affirmed by the Supreme court of the United 
 States on the 14th of April, 1890. Justice Field did 
 not sit at the hearing of the case, and took no part in 
 its decision, nor did he remain in the conference room 
 with his associate justices at any time while it was 
 being considered or on the bench when it was delivered. 
 The opinion of the Court was delivered by Justice 
 Miller. Dissenting opinions were filed by Chief Justice 
 Fuller and Justice Lamar. Justice Miller's opinion 
 concludes as follows :
 
 463 
 
 " We have thus given, in this case, a most attentive 
 consideration to all the questions of law and fact which 
 we have thought to be properly involved in it. We 
 have felt it to be our duty to examine into the facts 
 with a completeness justified by the importance of the 
 case, as well as from the duty imposed upon us by the 
 statute, which we think requires of us to place our- 
 selves, as far as possible, in the place of the Circuit 
 Court and to examine the testimony and the arguments 
 in it, and to dispose of the party as law and justice 
 require. 
 
 " The result at which we have arrived upon this 
 examination is, that in the protection of the person 
 and the life of Mr. Justice Field, while in the discharge 
 of his official duties, Neagle was authorized to resist 
 the attack of Terry upon him ; that Neagle was correct 
 in the belief that without prompt action on his part the 
 assault of Terry upon the Judge would have ended in 
 the death of the latter ; that such being his well- 
 founded belief, he was justified in taking the life of 
 Terry, as the only means of preventing the death of 
 the man who was intended to be his victim ; that in 
 taking the life of Terry, under the circumstances, he 
 was acting under the authority of the law of the 
 United States, and was justified in doing so ; and that 
 he is not liable to answer in the courts of California 
 on account of his part in that transaction. 
 
 " We therefore affirm the judgment of the Circuit 
 Court authorizing his discharge from the custody of 
 the sheriff of San Joaquin county."
 
 CHAPTER XXI. 
 
 CONCLUDING OBSERVATIONS. 
 
 Thus ends the history of a struggle between brutal 
 violence and the judicial authority of the United States. 
 Commencing in a mercenary raid upon a rich man's 
 estate, relying wholly for success on forgery, perjury, 
 and the personal fear of judges, and progressing 
 through more than six years of litigation in both the 
 Federal and the State courts, it eventuated in a vindi- 
 cation by the Supreme Court of the United States of 
 the constitutional power of the Federal Government, 
 through its Executive Department, to protect the 
 judges of the United States courts from the revengeful 
 and murderous assaults of defeated litigants, without 
 subjecting its appointed agents to malicious prosecu- 
 tions for their fidelity to duty, by petty State officials, 
 in league with the assailants. 
 
 The dignity and the courage of Justice Field, who 
 made the stand against brute force, and who, refusing 
 either to avoid a great personal danger or to carry a 
 weapon for his defense, trusted his life to that great 
 power which the Constitution has placed behind the 
 judicial department for its support, was -above all 
 praise.
 
 465 
 
 The admirable conduct of the faithful deputy mar- 
 shal, Neagle, in whose small frame the power of a na- 
 tion dwelt at the moment when, like a modern David, 
 he slew a new Goliath, illustrated what one frail mortal 
 can do, who scorns danger when it crosses the path of 
 duty. 
 
 The prompt action of the Executive Department, 
 through its Attorney-General, in directing the marshal 
 to afford all necessary protection against threatened 
 danger, undoubtedly saved a justice of the Supreme 
 Court from assassination, and the Government from 
 the disgrace of having pusillanimously looked on while 
 the deed was done. 
 
 The skill and learning of the lawyers who presented 
 the case of Neagle in the lower and in the appellate 
 courts reflected honor on the legal profession. 
 
 The exhaustive and convincing opinion of Circuit 
 Judge Sawyer, when ordering the release of Neagle, 
 seemed to have made further argument unnecessary. 
 
 The grand opinion of Justice Miller, in announcing 
 the decision of the Supreme Court affirming the order 
 of the Circuit Court, was the fitting climax of all. Its 
 statement of the facts is the most graphic and vivid of 
 the many that have been written. Its vindication of 
 the constitutional right of the Federal Government to 
 exist, and to preserve itself alive in all its powers, and 
 on every foot of its territory, without leave of, or hin-
 
 466 
 
 drance by, any other authority, makes it one of the most 
 important of all the utterances of that great tribunal. 
 
 Its power is made the more apparent by the dissent, 
 which rests rather upon the assertion that Congress 
 had not legislated in exact terms for the case under 
 consideration, than upon any denial of the power of 
 the Federal Government to protect its courts from 
 violence. The plausibility of this ground is dissipated 
 by the citations in the majority opinion of the Cali- 
 fornia statute concerning sheriffs, and of the federal 
 statute concerning marshals, by which the latter are in- 
 vested with all the powers of the sheriffs in the States 
 wherein they reside, thus showing clearly that marshals 
 possess the authority to protect officers of the United 
 States which sheriffs possess to protect officers of the 
 State against criminal assaults of every kind and de- 
 gree. 
 
 During the argument in the Neagle case, as well as 
 in the public discussions of the subject, much stress 
 was laid by the friends of Terry upon the power and 
 duty of the State to afford full protection to all persons 
 within its borders, including the judges of the courts 
 of the United States. They could not see why it was 
 necessary for the Attorney -General of the United 
 States to extend the arm of the Federal Government. 
 They held that the police powers of the State were 
 sufficient for all purposes, and that they were the sole
 
 467 
 
 lawful refuge for all whose lives were in danger. But 
 they did not explain why it was that the State never 
 did afford protection to Judges Field and Sawyer, 
 threatened as they notoriously were by two desperate 
 persons. 
 
 The laws of the State made it the duty of every 
 sheriff to preserve the peace of the State, but the 
 Terrys were permitted, undisturbed and unchecked, 
 to proclaim their intention to break the peace. If 
 they had announced their intention, for nearly a 
 year, to assassinate the judges of the Supreme Court 
 of the State, would they have been permitted to take 
 their lives, before being made to feel the power of the 
 State ? Would an organized banditti be permitted to 
 unseat State judges by violence, and only feel the 
 strong halter of the law after they had accomplished 
 their purpose ? Can no preventive measures be taken 
 under the police powers of the State, when ruffians give 
 notice that they are about to obstruct the administra- 
 tion of justice by the murder of high judicial officers ? 
 It was not so much to insure the punishment of Terry 
 and his wife if they should murder Justice Field, as to 
 prevent the murder, that the executive branch of the 
 United States Government surrounded him with the 
 necessary safeguards. How can justice be administered 
 under the federal statutes if the federal judges must 
 fight their way, while going from district to. district, to
 
 468 
 
 overcome armed and vindictive litigants who differ 
 with them concerning the judgments they have 
 rendered ? 
 
 But it was said Judge Terry could have been held 
 to bail to keep the peace. The highest bail that can 
 be required in such cases under the law of the State is 
 five thousand dollars. 
 
 What restraint would that have been upon Terry, 
 who was so filled with malice and so reckless of con- 
 sequences that he finally braved the gallows by at- 
 tempting the murder of the object of his hate ? But 
 even this weak protection never was afforded. Shall 
 it be said that Justice Field ought to have gone to the 
 nearest justice of the peace and obsequiously begged 
 to have Terry placed under bonds ? But this he could 
 not have done until he reached the State, and he was 
 in peril from the moment that he reached the State 
 line. The dust had not been brushed from his clothing 
 before some of the papers which announced his arrival 
 eagerly inquired what Terry would do and when he 
 would do it. Some of them seemed most anxious for 
 the sensation that a murder would produce. 
 
 The State was active enough when Terry had been 
 prevented from doing his bloody work upon Justice 
 Field. The constable who had been telegraphed for 
 before the train reached Lathrop on the fatal day, but 
 who could not be found, and was not at the station to
 
 469 
 
 aid in preserving the peace, was quick enough to arrest 
 Neagle without a warrant, for an act not committed in 
 his presence, and therefore known only to him by hear- 
 say. Against the remonstrances of a supreme justice 
 of the United States, who had also been chief justice 
 of California, and who might have been supposed to 
 know the laws as well at least as a constable, the pro- 
 tection placed over him by the Executive branch of 
 the Federal Government was unlawfully taken from 
 him and the protector incarcerated in jail. The con- 
 stable doubtless did only what he was told and what he 
 believed to be his duty. Neagle declined to make any 
 issue with him of a technical character and went with 
 him uncomplainingly. If Neagle's pistol had missed 
 fire, or his aim had been false, he might have been ar- 
 rested on the spot for his attempt to protect Justice 
 Field, while Terry would have been left free at the 
 same time to finish his murderous work then, or to 
 have pursued Justice Field into the car and, free from 
 all interference by Neagle, have despatched him there. 
 The State officials were all activity to protect the 
 would-be murderer, but seemed never to have been 
 ruffled in the least degree over the probable assassina- 
 tion of a justice of the Supreme Court of the United 
 States. The Terrys were never thought to be in any 
 danger. The general belief was that Judges Field and 
 Sawyer were in great danger from them.
 
 470 
 
 The death of Terry displeased three classes : first, 
 all who were willing to see Justice Field murdered ; 
 second, all who naturally sympathize with the tiger in 
 his hunt for prey, and who thought it a pity that so 
 good a fighter as Terry should lose his life in seeking 
 that of another ; and, third, all who preferred to see 
 Sarah Althea enjoy the property of the Sharon estate 
 in place of its lawful heirs. 
 
 It is plain from the foregoing review that the State 
 authorities of California presented no obstruction to 
 Terry and his wife as they moved towards the accom- 
 plishment of their deadly purpose against Justice 
 Field. It was the Executive arm of the nation oper- 
 ating through the deputy United States marshal, under 
 orders from the Department of Justice, that prevented 
 the assassination of Justice Field by David S. Terry. 
 
 It only remains to state the result of the second trial 
 of the case between Sarah Althea Hill, now Mrs. Terry, 
 and the executor of William Sharon before the Supe- 
 rior Court of the city of San Francisco. It will be re- 
 membered that on the first trial in that court, presided 
 over by Judge Sullivan, a judgment was entered de- 
 claring that Miss Hill and William Sharon had inter- 
 married on the 25th of August, 1880, and had at the 
 time executed a written contract of marriage under the
 
 471 
 
 laws of California, and had assumed marital relations 
 and subsequently lived together as husband and wife. 
 From the judgment rendered an appeal was taken to 
 the Supreme Court of the State. A motion was also 
 made for a new trial in that case, and from the order 
 denying the new trial an appeal was also taken to the 
 Supreme Court. The decision on the appeal from the 
 judgment resulted in its affirmance. The result of the 
 appeal from the order denying a new trial was its re- 
 versal, with a direction for a new trial. The effect of that 
 reversal was to open the whole case. In the meantime 
 William Sharon had died and Miss Hill had married 
 David S. Terry. The executor of William Sharon, 
 Frederick W. Sharon, appeared as his representative 
 in the suit, and filed a supplemental answer. The case 
 was tried in the Superior Court, before Judge Shafter, 
 in July, 1890, and on the 4th of August following the 
 Judge filed his findings and conclusions of law, which 
 were, briefly, as follows : 
 
 That the plaintiff and William Sharon, deceased, did 
 not, on the 25th of August, 1880, or at any other time, 
 consent to intermarry or become, by mutual agreement 
 or otherwise, husband and wife ; nor did they, there- 
 after, or at any time, live or cohabit together as hus- 
 band and wife, or mutually or otherwise assume marital 
 duties, rights, or obligations ; that they did not, on that 
 day or at any other time, in the city and county of San
 
 472 
 
 Francisco, or elsewhere, jointly or otherwise, make or 
 sign a declaration of marriage in writing or otherwise ; 
 and that the declaration of marriage mentioned in the 
 complaint was false, counterfeited, fabricated, forged, 
 and fraudulent, and, therefore, null and void. The 
 conclusion of the court was that the plaintiff and Wil- 
 liam Sharon were not, on August 25, 1880, and never 
 had been husband and wife, and that the plaintiff had 
 no right or claim, legal or equitable, to any property or 
 share in any property, real or personal, of which Wil- 
 liam Sharon was the owner or in possession, or which 
 was then or might thereafter be held by the executor 
 of his last will and testament the defendant, Frederick 
 W. Sharon. Accordingly, judgment was entered for the 
 defendant. An appeal was taken from that judgment 
 to the Supreme Court of California, and on the 5th of 
 August, 1892, Sarah Althea Terry having become in- 
 sane pending the appeal, and P. P. Ashe, Esq., having 
 been appointed and qualified as the general guardian 
 of her person and estate, it was ordered that he be sub- 
 stituted in the case, and that she subsequently appear 
 by him as her guardian. In October following, the 
 appeal was dismissed. 
 
 Thus ended the legal controversy initiated by this 
 adventuress to obtain a part of the estate of the de- 
 ceased millionaire.
 
 P+5 
 
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