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Title: Personal Reminiscences of Early Days in California with Other Sketches; To Which Is Added the Story of His Attempted Assassination by a Former Associate on the Supreme Bench of the State
Author: Gorham, George Congdon, 1832-1909, Field, Stephen Johnson, 1816-1899
Language: English
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*** Start of this LibraryBlog Digital Book "Personal Reminiscences of Early Days in California with Other Sketches; To Which Is Added the Story of His Attempted Assassination by a Former Associate on the Supreme Bench of the State" ***
PERSONAL REMINISCENCES OF EARLY DAYS IN CALIFORNIA, WITH OTHER SKETCHES.
BY
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 stenographer 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.
* * * * *
PERSONAL REMINISCENCES OF EARLY DAYS IN CALIFORNIA, WITH OTHER SKETCHES.
INDEX.
Why and how I came to California.
First experiences in San Francisco.--Visit to Marysville, and
elected First Alcalde of that District.
Experiences as Alcalde.
The Turner Controversy.
Running for the Legislature.
The Turner Controversy continued.
Life in the Legislature.
Friendship for David C. Broderick.
Legislation secured and beginning a new life.
The Barbour Difficulty.
Removal from Marysville.--Life on the Supreme Bench.--End
of Judge Turner.
Career on the Supreme Bench of California, as described by
Judge Baldwin.
THE ANNOYANCES OF MY JUDICIAL LIFE.
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.
Hostility to the Supreme Court after the Civil War.--The Scofield
Resolution.
The Moulin Vexation.
The Hastings Malignity.
APPENDIX.
Ex. A.--Notice of departure from New York for California, November
13, 1849.
Ex. B.--Aid at election of Alcalde by Wm. H. Parks.--A sketch
of my opponent.
Ex. C.--Oath of office as Alcalde.
Ex. D.--Order of District Court 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
imprison me be enforced.
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.
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.
Ex. H, No. I.--Letters from Surviving Members of the Legislature
of 1851, who voted to indefinitely postpone the proceedings
for the impeachment of Judge Turner.
Ex. H, No. II.--Letter of Judge Mott on the difficulty with Judge
Barbour.
Ex. I.--Letter of L. Martin, the friend of Judge Barbour in his
street attack.
Ex. J.--Sections 4, 5, and 7 of the act of July 1, 1864, to expedite
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.
Ex. K.--Letter of Judge Lake giving an account of the Torpedo.
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
* * * * *
THE ATTEMPTED ASSASSINATION OF MR. JUSTICE FIELD
INDEX.
ATTEMPTED ASSASSINATION OF JUSTICE FIELD BY A FORMER ASSOCIATE ON
THE STATE SUPREME BENCH
CHAPTER I The Sharon-Hill-Terry Litigation.
CHAPTER II Proceedings in the Superior Court of the State.
CHAPTER III Proceedings in the United States Circuit Court.
[Transcriber's note: there is no Chapter IV]
CHAPTER V Decision of the Case in the Federal Court.
CHAPTER VI The Marriage of Terry and Miss Hill.
CHAPTER VII The Bill of Revivor.
CHAPTER VIII The Terrys Imprisoned for Contempt.
CHAPTER IX Terry's Petition to the Circuit Court for a
Release--Its Refusal--He Appeals to the Supreme
Court--Unanimous Decision against Him there.
CHAPTER X President Cleveland refuses to Pardon Terry--False
Statements of Terry Refuted.
CHAPTER XI Terry's continued Threats to Kill Justice Field--Return
of the Latter to California in 1889.
CHAPTER XII Further Proceedings in the State Court.--Judge
Sullivan's Decision Reversed.
CHAPTER XIII Attempted Assassination of Justice Field, Resulting in
Terry's own Death at the Hands of a Deputy United
States Marshal.
CHAPTER XIV Sarah Althea Terry Charges Justice Field and Deputy
Marshal Neagle with Murder.
CHAPTER XV Justice Field's Arrest and Petition for Release on
Habeas Corpus.
CHAPTER XVI Judge Terry's Funeral--Refusal of the Supreme Court
of California to Adjourn on the Occasion.
CHAPTER XVII Habeas Corpus Proceedings in Justice Field's Case.
CHAPTER XVIII Habeas Corpus Proceedings in Neagle's Case.
CHAPTER XIX Expressions of Public Opinion.
CHAPTER XX The Appeal to the Supreme Court of the United States,
and the Second Trial of Sarah Althea's Divorce Case.
CHAPTER XXI Concluding Observations.
* * * * *
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 Review
upon the subject of the Northwestern Boundary between the territory 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.[1] While writing these articles he had occasion to examine
several 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 conversation 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 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 conversation 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 subject 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 intention, 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 Europe 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 influence for good upon its destinies; and the more I
thought of the new territory about to fall into our hands beyond the
Sierra Nevada, the more I was fascinated 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 necessary arrangements to do so until
the Summer of 1848. On the first of May of that year, I dissolved
partnership with my brother, and in June started for Europe. In the
following December, while at Galignani's News Room in Paris, I read
in the New York Herald the message of President Polk, 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
Europe, 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 Chagres. It went crowded every trip.
The impulse which had been started in me by my brother in 1846,
strengthened by the message of President Polk, had 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 excitement, 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, notwithstanding they
appeared at the time to be great bargains, 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
suffering 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 burden; but probably no
ship of two thousand ever carried 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 informed.[2] 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 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.
[1] The first article was entitled "The Oregon Question," and the
second "The Edinburgh and Foreign Quarterly on the Oregon
Question."
[2] 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.
FIRST EXPERIENCES IN SAN FRANCISCO.
Upon landing from the steamer, my baggage consisted 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 exhilarating
and exciting in the atmosphere which made everybody cheerful and
buoyant. As I walked along the streets, I met a great many persons
I had known in New York, and they all seemed to be in the highest
spirits. Every one in greeting me, said "It is a glorious country,"
or "Isn't it a glorious country?" or "Did you ever see a more
glorious country?" or something to that effect. In every case the word
"glorious" was sure to come out. There was something 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 Folsom streets, was occupied in a similar
way. The streets were filled with people, it seemed to me, from every
nation under Heaven, all wearing their peculiar costumes. The majority
of them were from the States; and each State had furnished 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 everything required for
transportation and mining, were in urgent demand and obtained
extravagant prices. Yet no one seemed to complain of the charges made.
There was an apparent disdain of all attempts to cheapen articles
and reduce prices. News from the East was eagerly sought from all new
comers. Newspapers from New York were sold at a dollar apiece. I had a
bundle of them, and seeing the price paid for such papers, I gave them
to a fellow-passenger, telling him he might have half he could get for
them. There were sixty-four numbers, if I recollect 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 experience of my own with some chamois
skins. Before I 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 course, 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 practising 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 experience in San
Francisco. After taking my breakfast, 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 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 inscription 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 Stevenson 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 dollar. 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
glorious 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 condition. 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, and in my enthusiasm
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[1] 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 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 matters 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 professional abilities. But I was in no
way discouraged. To tell the truth I was hardly fit for business. I
was too much excited by 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 occurred which determined my future career
in California. 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 mercantile 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 Vernon, 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. Accordingly 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 people, 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
anticipate a sudden acquisition of fortune. I had already caught the
infection myself, and these new crowds and their enthusiasm increased
my excitement. The exuberance of my spirits was marvelous. The next
day I took the little steamer "Lawrence," for Vernon, 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 asked what place that was, and was answered,
"Vernon,"--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 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 afterwards 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 Francisco to invest in lots in the rising town. The consequence
was that the proprietors of the place waited upon me and showed me
great attention.
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.[2] The
next day Mr. Covillaud 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 inquiries I found that the proprietors
had purchased the 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 when it was
signed there was no officer to take the acknowledgment 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 settlement 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 magistrates. 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
become 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 commerce 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 Ayuntamiento 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.[3]
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
the new town. One man suggested "Yubafield," because 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, "Marysville." No sooner 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 christened 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
crossing 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, I did not attach much importance to the
election, but I had a certificate of election 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 election, 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 Sacramento, 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 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.[4]
Captain Sutter, whose deed I had drawn, was a remarkable 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
became well acquainted with him, and learned both to respect and to
pity him. I respected him for his intrepid courage, his gentle
manners, his large heart, and his unbounded benevolence. I pitied him
for his simplicity, 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 afterwards. In 1834,
he emigrated to America, and had varied and strange adventures among
the Indians at the West; in the Sandwich Islands, at Fort Vancouver,
in Alaska, and along the Pacific Coast. In July, 1839, the vessel
which he was aboard of, was 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 Sacramento, 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, subsequently, a still larger concession was
made to him by the Governor of the Department. But the Governor being
afterwards expelled from the country, the concession was held to be
invalid. The emigrants arriving 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 timber, and drove away
his cattle. Sharpers robbed him 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 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 destitute in his
old age.
[1] Col. Stevenson was born at the commencement of the century,
and is therefore now, 1893, in his ninety-fourth year.
[2] See Exhibit A, in Appendix.
[3] See Exhibit B, in Appendix.
[4] See Exhibit C, in Appendix.
EXPERIENCES AS ALCALDE.
Under the Mexican law, Alcaldes had, as already stated, a very
limited jurisdiction. But in the anomalous 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 authority.
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, whether there was any mark or brand on
the animal, and, in short, put all those questions which would
naturally 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 attention 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," retorted 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 once shipped to Marysville. As soon as the
frame house was put up I opened my office in it, and exercised 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 conveyances 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 myself, having
refused to act, I appointed an active and courageous person in his
place, R.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 service of the process the captain
appeared, gave the required 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
people, and also the accused, when necessary. The Americans 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 administer justice promptly, but upon a due consideration of
the rights of every one, and not rashly, I was sustained with great
unanimity by the community.
I have reported a civil case tried before me as Alcalde. 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,
Alcalde, there has been a robbery, and you are wanted." 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 suspicion 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 immediately 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 accompany 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 impracticable 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, however, 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 immediately 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 satisfied. 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
punishment as before, but, as there was no other course, I 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
marched the prisoner out to a tree, made him hug the tree, and in the
presence of the crowd that followed, began inflicting the lashes. The
man stood it for awhile without 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
consulted 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 authority 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 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 indicted, 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 afterwards reported that he received an additional
punishment. 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 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 compelled 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 my office together and stated that they had
agreed to leave the matter in dispute between them to my decision. I
immediately heard their respective statements--sometimes under oath,
and sometimes 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
occasion 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 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 workingmen should receive eleven dollars a day, with
which both appeared to be well satisfied. On another occasion 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, apparently 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 by officers
under the State government, I superintended municipal affairs and
administered justice in Marysville 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 unfortunately 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 peacefulness 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 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 afterwards the
man from Sacramento arrived; but in the meanwhile I had become so much
pleased with the brightness and quickness of my young 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 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 committed to his
charge, and usually with perfect correctness. 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, with the exception of the period during which he acted as
secretary of Gov. Low, he remained as such clerk until he was
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 friendship 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 convened 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 "Evening 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 and 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 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 before 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 practice act, passed
at the recent session of the Legislature, contained a section
bearing upon the question; and at the same time handed me the act.
I immediately 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
apparently 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
contempt 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 ignorant of the practice of the law, regarded
an exception to his decision as an impeachment of his judgment,
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--subpoena
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 accompanied me to my office, and
after remaining there a few moments left me to myself. On the way an
incident 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 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 key 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 directed." 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 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
presented 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, 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 enjoying 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 fellow" that he was
an inferior judge, and that the witnesses 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
engaged 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 they were present at the time, ordered that Judge Haun
be fined fifty dollars and be imprisoned forty-eight hours for his
judicial act in discharging me from arrest, under some pretence that
the 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 proceedings." Judge Haun paid his fine and left the
court-room, and I was again taken into custody by the sheriff.[1]
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 proceeded from the District Court to the room engaged for
the Court of Sessions, and there, in connection with an associate
justice, opened that court. Immediately afterwards I sued out another
writ of _habeas corpus_, 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 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 summoned 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, notwithstanding 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 disturbers. The new bailiff summoned
all the bystanders, who instantly responded, and the court-room was
immediately 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 notwithstanding the manly and
courageous conduct which Judge Haun had thus shown, no sooner was the
court adjourned 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
contempt by so doing;" and thereupon the District Court ordered that
he be released from confinement, and that his fine be remitted.[2]
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 nothing 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, Goodwin, and myself, to be
stricken from the roll of attorneys, 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 reinstate 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 expelled 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 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 mandamus
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
announce 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, which he published in one of the newspapers. We
replied in a sharp and bitter article, signed by ourselves 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.[3] The matter had by this time assumed such a serious
character, and the Judge's conduct 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 ungovernable 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 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 "perjured 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 consulted 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 replied, "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 manner, and that the only way to get along was
to hold every man responsible, and resent every trespass upon
one's rights. Though I 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 I 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, I asked a
friend to carry a message to him, and to make sure that it would reach
him, I told different parties 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 desire 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."[4] I
acted on my plan. I often met him 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 interfered 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 business was ruined. Not only
was I prevented, by his 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.
[1] See Exhibit D, in Appendix.
[2] See Exhibit E, in Appendix.
[3] See Exhibit F, in Appendix.
[4] See Exhibit G, in Appendix.
RUNNING FOR THE LEGISLATURE.
One morning about this time I unexpectedly found myself in the
newspapers, nominated by my 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 backward 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
fastened 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 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 election. 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 country were
in town and had nothing else to do than to be amused, I mounted a
platform erected for the purpose in the main street, and commenced
speaking. I soon had a crowd of listeners. I began about my candidacy,
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 utensils 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 Tennessee, and with which one, I asked, in the name
of all that is good, were they going to place me. I wondered if these
"honorable" men, who sought by such 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 government of the
Union and the government of the States, to show that the former
was created for national purposes which the States could not well
accomplish--that we might have uniformity of commercial 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 institution which each State must regulate for itself,
without 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 country 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.
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
precinct in the outskirts I had a majority of two to one. In the
county generally I ran well, and was elected, notwithstanding the fact
that I was not the nominee of any convention or the candidate of any
party. The morning 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 was 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 debt to Keiger, which he refused either to pay or to
give security for its payment. Exasperated by his refusal, 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 excitement 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 administered 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 prisoner 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 beforehand that
such would be the result of my conduct. When the civil tribunals are
open and in the undisturbed exercise of their jurisdiction, a resort
to violence can never be approved or excused.
I witnessed some strange scenes during the campaign, 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 included, that I was a candidate for the
Legislature, and that I would be glad if they would join me in a glass
in the saloon, an 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 towards him. So, after the jurors had taken their drinks
and were talking pleasantly together, I slipped out of the building
and approaching the man, said to him, "What is the case against you?
Can I help you?" The poor fellow looked up to me and his eyes filled
with great globules of tears as he replied. "I am innocent of all I am
charged with. I have never stolen anything nor cheated any one; but I
have no one here to befriend me." That was enough for me. Those eyes,
filled as they were, touched my heart. I hurried back to the saloon;
and as the jurors were standing about chatting with each other I
exclaimed, "How is this? you have not had your cigars? Mr. bar-keeper,
please give the gentlemen the best you have; and, besides, 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 carried 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 remarked, "What is the case
against your prisoner? He, too, perhaps, may have a mother and sister
in the East, thinking of him as your mother and sister do of you, and
wondering when he will come back. For God's sake remember this."
The heart of the good man responded in a voice which, even to this
day--now nearly 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, gentlemen, let us take another
glass." They again acceded to my request, and seeing that they were
a little mellowed by their indulgence, I ventured to speak about the
trial. I told them that the courts of the state were organized, and
there was no necessity or justification now for Lynch juries; that the
prisoner appeared to be without friends, and I appealed to them, as
men of large hearts, to think how they would feel if they were accused
of crime where they had no counsel and no friends. "Better send him,
gentlemen, to Marysville for trial, and keep your own hands free from
stain." A pause ensued; their hearts were softened; and, fortunately,
a man going to Marysville with a wagon coming up at this moment, I
prevailed upon them to put the prisoner in his charge to be taken
there. The owner of the wagon consenting, they swore him to take the
prisoner to that place and deliver him over to the sheriff; and to
make sure that he would keep the oath, I handed him a "slug," a local
coin of octagonal form of the value of fifty dollars, issued at that
time by assayers in San Francisco. We soon afterwards separated. As I
moved away on my horse my head swam a little, but my heart was joyous.
Of all things which I can recall of the past, this is one of the most
pleasant. I believe I saved the prisoner's life; for in those days
there was seldom any escape for a person tried by a Lynch jury.
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 fortunes 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 Legislature.
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
expenses 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
towards 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:
Mr. S.J. FIELD,
TO ORLEANS HOUSE.
To 460 drinks................................ $230 00
275 cigars................................ 68 75
------
Downieville, _October 9th, 1850_. $298 75
[Endorsed:]
"We hereby certify that the within account is correct.
"P.L. Moore.
"Wm. S. Spear."
"Received payment of the within bill in full from Stephen J. Field.
"J. Stratman.
"_October 14th, 1850_."
THE TURNER CONTROVERSY 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
application 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, before 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 previous to
the day of service and to the date of the order, no attention was paid
to it. The Judge, however, proceeded, and on the eleventh of the month
made another order of expulsion. After the adjournment 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 purposes, 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
myself 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 it, but my request was refused. Mr.
Mulford being called upon to show cause why he should not be expelled,
began to 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
substantially 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 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 permit
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 afterwards was Judge of Yuba County, and is now
(1877) a member of the State Senate. Mr. Mulford was afterwards 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 impeachment, 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 censure. There was nothing in the miserable swaggering
billingsgate of the publication which merited a moment'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:
A CARD.
Judge William E. 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 switch or a whip in his hand. He has
made, as I am 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 understood in this place that he has stated he should
feel bound by his oath of office to endeavor to obtain an
indictment against any gentleman 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.
MARYSVILLE, _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. MCCARTY.
John T. McCarty, in a letter to Judge William E. Turner, dated
the 22d of November, takes occasion to apply several vile
epithets to myself, 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 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 testified "_that the conduct of Judge
Turner on the bench was the most outrageous he had ever
witnessed in any court in which he had practiced;" and the
tenor and effect of his whole testimony was in the highest
degree condemnatory of the conduct of Judge Turner_.
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 perjured scoundrel. Thus convicted out of
his own mouth, his vile epithets respecting myself are not
worth a moment's consideration.
STEPHEN J. FIELD.
MARYSVILLE, _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 LEGISLATURE
Immediately after the election I commenced the preparation 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 respective numbers. At the same time I
introduced a bill dividing the county of Trinity, and creating that
of Klamath; 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 District was created, and out of Yuba, Nevada,
and Sutter a Tenth Judicial District. Thus Turner, being Judge of
the Eighth District, was sent to the then comparative wilderness of
Trinity and Klamath; and the Tenth District 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 incompetency from ignorance to
discharge its duties, his arbitrary and tyrannical conduct towards
the County Judge and members of the Marysville bar, the particulars
of which I have related, his contemptuous treatment of the writ of
_habeas corpus_, and his general immoral 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 established the charges preferred. Indeed, there
was no serious attempt made to refute them. The only evidence 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 bill, by which Turner was sent out of the eighth district, 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 replied that he was not fit to be a judge
anywhere, and I refused assent to a postponement of the matter.
Afterwards, 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 House that I had declared myself satisfied by the
passage of the court bill and was willing to let the impeachment 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 postponement, 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
time. Seven of the members who voted for the indefinite postponement
afterwards informed me that they had done so under the impression that
such a disposition 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.[1]
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 condition 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 Commissioners 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 California
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 constituted what was afterwards known as the California
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 implicit 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 Legislature at all. The rules
were suspended and the bill read by its title and passed. When it came
before the Governor, on 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 working 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 impeachment. 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 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 opprobrious language, applying to me offensive epithets, and
frequently interspersing his remarks with the declaration 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 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 constitutional
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 expressions of regard for me and regret at
the law, declined to carry the note. I then applied to Mr. Richardson,
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 thinking 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 tem._ 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, you don't look well, what
is the matter?" I answered that I did not feel well, 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, I 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 objection 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 fight there should be; and
thereupon named a time and place when and where I would be found the
next morning.
Within an hour afterwards Moore changed his mind, and informed Mr.
Broderick that Drury Baldwin, another 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 declared
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 himself responsible for
what he said, and state that respect 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. Broderick soon afterwards informed me of
his conversation 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.
[1] See Exhibit H, in Appendix.
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 occasion on which he befriended me. When I came to San
Francisco after the adjournment of the Legislature, 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 explanation, 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 carried 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 surprise 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 explanation 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 expressed a good
deal of hostility to the Administration. In that hostility I did
not participate, and he complained 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 nomination. 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.
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 regulating the procedure in civil and criminal cases,
remodelled 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 provisions 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 of husbandry of the
farmer, two beasts of burden employed 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 legislation which would
allow a poor debtor to be stripped of all needed articles of his
household and of the implements by which alone he could earn the means
of supporting himself and family and of ultimately discharging 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 Practice Act respecting
suits for mining claims, which was 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, regulations, and customs, when not in conflict with the
constitution 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 substantially by the legislation of Congress. Simple as
the provision is, it solved a difficult problem.
I also advocated and aided the passage of the Homestead 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
exemption 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 gratification.
I also secured the passage of an act concerning attorneys and
counsellors-at-law, in which I incorporated provisions that rendered
it impossible for any judge to disbar an attorney in the arbitrary
manner in which Judge Turner had acted towards me, without notice of
the charges against him and affording him an opportunity to be heard
upon them.
I also introduced a bill creating the counties of Nevada and Klamath,
the provisions of which were afterwards incorporated into a
general bill which was passed, dividing the State into counties and
establishing the seats of justice therein, and by which also the
county of Placer was created.
I drafted and secured the passage of an act concerning county
sheriffs, in which the duties and responsibilities 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 presented 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 husband 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 provide 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 supported 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 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." "Certainly," 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 sixteen,
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 people of the county seemed to favor the suggestion.
Accordingly I made a short visit to neighboring precincts, 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
nominate 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 assembling 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 opening 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 convention 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.
For the moment I was furious, and hunted up the man who had held my
ten proxies, and had been seduced 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 Marysville, 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 five 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 influential 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 afterwards 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
distinction 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
appointment 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 Judge, and is now State Senator.
Gabriel N. Swezy, who settled there in 1850, was learned in his
profession, 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. Edward 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 learning. Isaac S. Belcher, who came to Marysville at a
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, afterwards
a member of the Legislature from Yuba, and Speaker of the House; F.L.
Hatch, now County Judge of Colusa; George Howe, 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. Mitchell, afterwards a nominee of
the Democrats for the U.S. Senate in Nevada, were just getting a good
position at the bar when I left, and gave evidence of the ability
which they afterwards exhibited. Others might be named who held fine
positions in the profession.
These mentioned show a bar of great respectability, and I may add
that its members were, with few exceptions, 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--entrusted to clerks, unless a contest
was made upon them.
There was one case which I recall with pleasure, because 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 help 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 approached
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 endeavored to
corrupt your minds and pervert your judgments; 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 rendered
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
conversation--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 shooting
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 attempted bribery, and if what I say be not true,
let the jurors speak out now from their seats. Attempted 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 evidence, 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 discharge of
my whole duty to my clients. So, until the Summer of 1854, I carried
weapons. And yet they were not such provocatives of difficulty as some
of our Eastern friends are accustomed to think. On the contrary,
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 purchased, 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 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 except 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 Judicial District, which comprised the counties of Yuba,
Nevada, and Sutter. 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 appointment 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 election of 1852. But there
being some doubts about the matter and the Governor having issued
his proclamation for an election, candidates were nominated by the
conventions; and at the ensuing election one of them, William T.
Barbour, a lawyer of Nevada County, received 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 surrender. This led to a suit
between them. The question 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 Reports, 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. Afterwards, 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, which being reported to me, I
called on him for an explanation. 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 gentlemen. 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 Barbour, who stated that Barbour had been
challenged by me, and that his object in calling upon Mott was
to arrange 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
challenging, was the accepting party. Fairfax, however, insisted upon
his version of the affair; and upon consulting with Mott, I waived the
point and accepted the position assigned me. Fairfax then stated
that Barbour, being the challenged party, had the right to choose
the weapons and the time and place of meeting; 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 revolvers and
Bowie-knives; that the two principals so armed were to be placed at
opposite sides of the room with their faces to the wall; that they
were to turn and fire at the word, then advance and finish the
conflict 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
Barbour 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 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 appointed place. After we had been there
some time the first stage appeared and stopped. Soon after the second
stage appeared and stopped, and Judge Barbour and Mr. Fairfax got out.
But instead of proceeding 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.[1]
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 appeared 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 contempt 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.[2]
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 comparison show out of what our existing condition
has been evolved, and how far we have advanced. I give them also for
the reason that Barbour afterwards wrote a letter to Turner, which
the latter published, referring to the affair, in which he boasted
of having given me a "whipping." How far his boast was warranted the
above facts show.
For a long time afterwards he expressed his bitterness towards me in
every possible way. He did not take Turner's plan of expelling me from
the bar; but he manifested his feelings by adverse rulings. In such
cases, however, I generally took an appeal to the Supreme Court, and
in nearly all of them procured a reversal. The result was that he
suddenly changed his conduct and commenced ruling the other way. While
this was his policy, there was hardly any position I could take in
which he did not rule in my favor. At last I became alarmed lest I
should lose my cases in the appellate court by winning them before
him.
About a year afterwards he sent one of his friends to ask me if I was
willing to meet him half-way--stating that my conduct in court had
always been courteous, and he was satisfied that he had done me
injustice. I answered that I was always willing to meet any one
half-way, but in this case it must be without explanations for the
past. This condition was accepted; accordingly we met, and taking
a 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:
"MARYSVILLE, _Dec. 22, 1856_.
"Hon. S.J. FIELD.
"DEAR SIR: On yesterday I learned through our mutual friend
Charles S. Fairfax, Esq., that Judge W.R. Turner has recently
issued a publication which contains a letter of mine, written
him some four years ago. I have not been able to procure a
copy of this publication, and I have entirely forgotten the
language used; in truth I do not remember to have written him
on the subject of yourself or otherwise; but I suppose I must
have done so, and have given expressions of opinion that I
have long since ceased to entertain, and to invectives that I
have no disposition to justify. You will recall that, at the
time referred to, there unfortunately existed between us
feelings of deep hostility; and I may at the time have used
harsh terms indicative of my then feelings, which I regret and
do not now approve, if they are as represented by others."
"Judge Turner has taken an unwarranted liberty in 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. BARBOUR."
He ever afterwards, as occasion offered, spoke of me in the highest
terms as a gentleman and lawyer. My resentment accordingly died out,
but I never could feel any great regard for him. He possessed a fair
mind and a kindly disposition, but he was vacillating and indolent.
Moreover, he loved drink and low company. He served out his second
term and afterwards went to Nevada, where his habits became worse, and
he sunk so low as to borrow of his acquaintances from day to day small
sums--one or two dollars at a time--to get his food and lodging. He
died from the effects of his habits of intemperance.
In stating the result of the intended hostile meeting with him, I
mentioned that when he proceeded on his way to Sacramento, he left his
second, Mr. Fairfax, standing alone on the ground, and that I
invited the latter to take a seat in my carriage. From this time the
intercourse between Mr. Fairfax and myself became more frequent than
it had been previously, and a friendship 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 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 was established in 1855, he was appointed Register; and in
1856, he was elected Clerk of the Supreme Court of the State. It was
my good fortune to aid him in securing both of these positions. At my
suggestion, Mr. McDougal, a Member of Congress from California,
urged the establishment of the land office, and obtained for him the
appointment of Register. In 1856, when he sought the 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 illustrate 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 any attempt to legislate in behalf of the colored people
was sure to excite opposition, and give rise to suggestions that its
promoter was not sound on the slavery question. The presentation
of the 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 expression in a community which looked with
suspicion on any movement in favor of extending any rights to the
colored race.
On another occasion, some years afterwards, when I was Judge of the
Supreme Court of the State and he was the clerk of the court, there
was a good deal of complaint against Harvey Lee, the reporter of the
court, who was appointed to the office by Governor Weller. I believe
that Lee was instrumental, but of this I am not certain, in getting a
law 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 withdrawn his sword from the body of Fairfax,
and it was then dripping with blood. "Shoot the damned scoundrel,"
cried the latter's friend, Samuel B. Smith, then standing by his side.
But Fairfax did not shoot. Looking at Lee, whose body was covered
with his pistol, while the blood was trickling from his own person,
he said, "You are an assassin! you have murdered me! I have you in my
power! your life is in my hands!" And gazing on him, he added, "But
for the sake of your poor sick wife and children I will spare you." He
thereupon 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 making another." All California rang with the story
of this heroic act. It has its parallel only in the self-abnegation of
the dying hero on the battle-field, who put away from his parched lips
the cup of water tendered to him, and directed that it be given to a
wounded soldier suffering in agony by his side, saying, "His need is
greater than mine."
During the war his sympathies, as was the case with most Southerners
in California, were with his people in Virginia. He told me on one
occasion that he could not but wish they would succeed; but, he said;
"Though I am a Virginian by birth, I have adopted California, and
whilst I live in a State which has taken her stand with the Northern
people, I cannot in honor do anything, and I will not, to weaken her
attachment to the Union. If my health were good I should leave the
State and return to Virginia and give my services to her; but, as that
is impossible, I shall remain in California, and, whilst here, will
not be false to her by anything I do or say."
These incidents, better than any elaborate description, 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 months among his
friends and relatives at the old family residence in Maryland. At
this time the seeds of consumption, which had long been lurking in
his system, began to be developed, and he was taken down with a severe
illness which proved fatal. He became so ill as to be unable to walk,
and was conveyed to Baltimore to procure the best medical attendance;
and there he died on the 4th of April, 1869, in the arms of his
devoted wife, who had come from California to be with him in his last
hours. His body was brought to Washington and interred within sight
of the Capitol, near Hock Creek Church, in which his ancestors had
worshipped.
I have mentioned that when Fairfax was stabbed by Lee he fell into
the arms of Mr. Samuel B. Smith. This gentleman I had known slightly
before my difficulty with Judge Barbour; but the intimacy which sprung
up between Fairfax and myself, after that affair, brought me more in
contact with Mr. Smith, who was his constant companion. Mr. Smith
came to California from New Jersey in 1849, and 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 cheerfully consented to do
so, and took great interest in securing its passage. Indeed, it was
through his influence that the bill became a law. Many circumstances
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 to
visit. After the Barbour affair the course of my professional life was
much the same as that of any other lawyer. My business was large and
I gave to it my unremitting attention. In 1854 I determined to go East
to see my parents and brothers and sisters, who had never been out of
my mind a single day since I left them in 1849. Accordingly, I
went East, and after 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 partner, 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
partnership. A few months afterwards I was nominated for the bench of
the Supreme Court of the State, and was elected by a large majority.
There were two candidates besides myself for the position, and 93,000
votes were polled. Of these I received a majority of 36,000 over each
of my opponents, and 17,000 over them both together.[3] The term to
which I was elected was for six years, commencing January 1st, 1858.
In September, 1857, Hugh C. Murray, then Chief Justice, died, and
Associate Justice Peter H. Burnett was appointed to fill the vacancy.
This left the balance of Judge Burnett's term of service to be filled,
and I was urged by the Governor of the State to accept his appointment
to it, as it was for less than three months, and immediately preceded
my own term. At first I refused, as I desired to revisit the East; but
being 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.
[1] See Letter of Judge Mott detailing the particulars of the
affair; Exhibit H, in Appendix.
[2] See Exhibit I, in Appendix.
[3] The exact vote was as follows:
For myself 55,216
For Nathaniel Bennett 18,944
For J.P. Ralston 19,068
------
Total vote 93,228
Majority over Bennett 36,272
Majority over Balston 36,148
Majority over both 17,204
REMOVAL FROM MARYSVILLE--LIFE ON THE SUPREME BENCH.--END OF JUDGE
TURNER.
The day following my acceptance of the Governor's appointment to
the Supreme Court of the State, I returned to Marysville to close my
business before taking up my residence in Sacramento, where the court
held its sessions. I had gone to Sacramento to argue some cases before
the court when the appointment was tendered to me; and, of course,
did not expect to remain there very long. In a few days I arranged my
affairs at Marysville and then removed permanently to Sacramento.
I left Marysville with many regrets. I had seen it grow from a
collection of tents with a few hundred occupants to a town of
substantial buildings with a population of from eight to ten thousand
inhabitants. From a mere landing for steamers it had become one of the
most important places for business in the interior of the State. When
I left, it was a depot of merchandise for the country lying north and
east of it; and its streets presented a scene of bustle and activity.
Trains of wagons and animals were constantly leaving it with goods for
the mines. Its merchants were generally prosperous; some of them were
wealthy. Its bankers were men of credit throughout the State. Steamers
plied daily between it and Sacramento, and stages ran to all parts
of the country and arrived every hour. Two daily newspapers were
published in it. Schools were opened and fully attended. Churches
of different denominations were erected and filled with worshippers.
Institutions of benevolence were founded and supported. A provident
city government and a vigorous police preserved order and peace.
Gambling was suppressed or carried on only in secret. A theatre was
built and sustained. A lecture-room was opened and was always crowded
when the topics presented were of public interest. Substantial stores
of brick were put up in the business part of the city; and convenient
frame dwellings were constructed for residences in the outskirts,
surrounded with plats filled with trees and flowers. On all sides were
seen evidences of an industrious, prosperous, moral, and happy people,
possessing and enjoying the comforts, pleasures, and luxuries of life.
And they were as generous as they were prosperous. Their hearts and
their purses were open to all calls of charity. No one suffering
appealed to them in vain. No one in need was turned away from their
doors without having his necessities relieved. It is many years since
I was there, but I have never forgotten and I shall never forget the
noble and generous people that I found there in all the walks of life.
The Supreme Court of the State then consisted of three members, the
senior in commission being the Chief Justice. David S. Terry was the
Chief Justice and Peter H. Burnett was the Associate Justice. Both of
these gentlemen have had a conspicuous career in California, 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 extreme South in those days. His contact and
larger experience since with men of the North have no doubt modified
many of those prejudices, and his own good sense must have led him to
alter some of his previous judgments. Probably his greatest regret is
his duel with Mr. Broderick, as such encounters, when they terminate
fatally to one of the parties, never fail to bring life-long
bitterness to the survivor. A wiser mode of settling difficulties
between gentlemen has since been adopted in the State; but those who
have not lived in a community where the duel is practiced cannot
well appreciate the force of the public sentiment which at one time
existed, compelling a resort to it when character was assailed.
Mr. Burnett was one of the early settlers in Oregon, and had held
positions of honor and trust there before settling in California. He
came here soon after the discovery of gold, took an interest in public
affairs, and was elected the first Governor of the State, when the
constitution was adopted.
Judge Terry resigned his office in September, 1859, when he determined
to send a challenge to Mr. Broderick, and I succeeded him as Chief
Justice; and W.W. Cope, of Amador, was elected to fill the vacant
place on the bench. I was absent from the State at the time, or I
should have exerted all the power I possessed by virtue of my office
to put a stop to the duel. I would have held both of the combatants to
keep the peace under bonds of so large an amount as to have made them
hesitate about taking further steps; and in the meantime I should have
set all my energies to work, and called others to my aid, to
bring about a reconciliation. I believe I should have adjusted the
difficulty.
Mr. Cope, who filled the vacant place on the bench, possessed a
superior mind and a genial nature. He made an excellent Judge. He
studiously examined every case and carefully prepared his opinions. He
remained on the bench until January, 1864, when the new constitutional
amendments, reorganizing the court, went into effect. He is now in
practice in San Francisco, and has a large clientage.
Judge Burnett continued in office until the election of his successor
in the fall of 1858. His successor was Joseph G. Baldwin, a lawyer of
distinction and a gentleman of literary reputation. He was the
author of "The Flush Times of Alabama and Mississippi," and of "Party
Leaders." The first is a work full of humor and a great favorite in
the section of the country whose "times" it portrays with such spirit
and glee as to excite roars of laughter in the reader. The latter is a
thoughtful history of the character and influence upon the country
of Jefferson, Hamilton, Jackson, Clay, and Randolph. His portraitures
present these men in the fullness and freshness of living beings, whom
we see and hear, and whose power we feel.
My friendship for Mr. Baldwin commenced long before he came to the
bench, and it afterwards warmed into the attachment of a brother. He
had a great and generous heart; there was no virtue of humanity of
which he did not possess a goodly portion. He was always brimful of
humor, throwing off his jokes, which sparkled without burning, like
the flashes of a rocket. There was no sting in his wit. You felt as
full of merriment at one of his witticisms, made at your expense, as
when it was played upon another. Yet he was a profound lawyer, and
some of his opinions are models of style and reasoning. He remained on
the bench until January, 1862, when he was succeeded by Edward Norton,
of San Francisco. This gentleman was the exemplar of a judge of
a subordinate court. He was learned, patient, industrious, and
conscientious; but he was not adapted for an appellate tribunal. He
had no confidence in his own unaided judgment. He wanted some one upon
whom to lean. Oftentimes he would show me the decision of a tribunal
of no reputation with apparent delight, if it corresponded with his
own views, or with a shrug of painful doubt, if it conflicted with
them. He would look at me in amazement if I told him that the decision
was not worth a fig; and would appear utterly bewildered at my
waywardness when, as was sometimes the case, I refused to look at it
after hearing by what court it was pronounced.
It is not my purpose to speak of my own career on the Bench of the
Supreme Court of California. It is only for reminiscences of my
previous life that you, Mr. Hittell, have asked.[1] I am tempted,
however, to hand to you a letter of Judge Baldwin, my associate for
over three years, in which he presents, in terms exaggerated by his
friendship, the result of my labors there.[2]
There is only one scene to which I wish to refer.
About a year and a half after I went upon the bench, a contested
election case came up from Trinity County. It appeared that Judge
Turner, who had been sent to the district composed of the counties of
Trinity and Klamath, by the act concerning the courts and judicial
officers of the State, at the end of his term offered himself for
re-election as Judge of that district. When the vote was counted there
appeared to be a majority of one against him, and his opponent was
declared elected. He 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
communicated to him. The next morning he stationed himself at the foot
of the stairway leading up to the Supreme Court rooms, which was on
the outside of the building, and, as I 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 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 position for the furtherance of his own ends of private
hate; that he was an habitual drunkard, with rare intervals of
sobriety, and had upon occasions come into the court-room to sit upon
the trial of causes so intoxicated as to be unable to stand, and had
fallen helplessly upon the floor, whence he had been removed by
officers of the court; that upon one occasion, when engaged in a
trial, he had in the presence of jurors, witnesses, and other persons
attending the court, deliberately gone out of the court-room and
openly entered a house of ill-fame near by; and that by his
disgraceful conduct he had become a burden upon the people of that
district too grievous to be borne. These things Mr. Westmoreland
stated he stood prepared to prove, and he invoked the interposition of
the Legislature to protect the people of the Eighth Judicial District
who were suffering from the deportment and conduct of this officer. The
resolution was 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 passages 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 assassination, 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 conduct.
In the contest with this man I was cheered by the support of the best
men of the State. But of all of them no one aided me so much, and so
freely, as the editor of the Marysville Herald, Mr. Robert H. Taylor,
a gentleman still living, in the full strength of his intellect, and
honored and trusted as a learned member of the legal profession in
Nevada. May length of years and blessings without number attend him.
* * * * *
Here my narrative of "Personal Experiences" must for the present end.
I could have given you, Mr. Hittell, more interesting matter. I could
have given you sketches of Fremont, Halleck, Gwin, Broderick, Weller,
Geary, Sherman, Bigler, McDougal, Bennett, Heydenfeldt, Murray, and
others, with many striking anecdotes 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 related the story of
the Vigilance Committees of 1851 and 1856, and shown how the men of
order and virtue acquired and maintained ascendency over the irregular
and disorderly elements of society. I could have told you of the
gradual development of the industries of the State until her yearly
products have become one of the marvels of the world. I could have
described the wild excitement produced by the supposed discoveries
of gold in boundless quantities on Fraser River; and the later but
more substantial movement upon the development of the silver mines of
Nevada. I could have recounted the efforts made in 1860 and 1861
to keep the State in the Union against the movements of the
Secessionists, and the communications had with President Lincoln
by relays of riders over the Plains. I could have described the
commencement, progress, and completion of the Pacific railroad, and
the wonderful energy and unfailing resolution of its constructors. I
could have told you stories without number, full of interest, of the
Judges of California, State and Federal, who preceded me on the bench,
and of members of the profession; of Hastings, Bennett, Lyons, Wells,
Anderson, Heydenfeldt, and Murray, of the State Supreme Court; of
Hoffman and McAllister of the Federal bench; of Robinson, Crittenden,
Randolph, Williams, Yale, McConnell, Felton, and others of the Bar,
now dead, and of some who are at its head, now living; composing as a
whole a bar not exceeded in ability, learning, eloquence, and literary
culture by that of any other State of the Union. But you asked me
merely for personal reminiscences, of occurrences at Marysville and
during the days preceding my going there. I will, therefore, postpone
until another occasion a narrative which I think will be more
interesting than anything I have here related.
[1] These sketches were in the main dictated to a short-hand
writer at the request of Mr. Theodore H. Hittell, of San
Francisco.
[2] The letter is printed at the end of this narrative at
page 135.
THE CAREER 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
practice 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.[1] In 1857 he was nominated for Judge
of the Supreme Court for a full term, and in October of
the same year was appointed by Governor Johnson to fill
the unexpired term of Justice Heydenfeldt, resigned. He
immediately entered upon the office, and has continued ever
since to discharge its duties. Recently, 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 acumen, and extraordinary
solidity of judgment. As an adviser, no man had more the
confidence of his clients, for he trusted nothing to chance
or accident when certainty could be attained, and felt his
way cautiously to his conclusions, which, once reached, rested
upon sure foundations, and to which he clung with remarkable
pertinacity. Judges soon learned to repose confidence in his
opinions, and he always gave them the strongest proofs of the
weight justly due to his conclusions.
"When he came to the bench, from various unavoidable causes
the calendar was crowded with cases involving immense
interests, the most important questions, and various and
peculiar litigation. California was then, as now, in the
development of her multiform physical resources. The judges
were as much pioneers of law as the people of settlement.
To be sure something had been done, but much had yet to be
accomplished; and something, too, had to be undone of that
which had been done in the feverish and anomalous period that
had preceded. It is safe to say that, even in the experience
of new countries hastily settled by heterogeneous crowds of
strangers from all countries, no such example of legal or
judicial difficulties was ever before presented as has been
illustrated in the history of California. There was no general
or common source of jurisprudence. Law was to be administered
almost without a standard. There was the civil law, as
adulterated or modified by Mexican provincialism, usages, and
habitudes, for a great part of the litigation; and there was
the common law for another part, but _what that was_ was to be
decided from the conflicting decisions of any number of
courts in America and England, and the 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 interpreted 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 unprecedented
number of contracts, and an amount of business without
parallel, had been made and done in hot haste, with the utmost
carelessness; that legislation was accomplished in the same
way, and presented the crudest and most incongruous materials
for construction; 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 broad and
deep the foundation of our civil and criminal law. The land
titles of the State--the most important and permanent of the
interests of a great commonwealth--have received from his hand
their permanent protection, and this alone should entitle him
to the lasting gratitude of the bar and the people.
"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 comprehensive 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 defined 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 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
expectations of his friends."
J.G.B.
SAN FRANCISCO, _May 1, 1863_.
[1] He was in the Legislature only one session.
* * * * *
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 soon be added to the Supreme Court, and that
the appointment 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 recommending 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 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 increased 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 decided 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.[1]
[1] 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 subjected 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 conscientious 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 anxious 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 disappointment 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
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 colonization,
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 boundaries, and
sometimes of places by name, but more frequently of specified
quantities within boundaries embracing 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 thousand. 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
vagueness, also, in many instances, of the boundaries of the land
claimed gave force and apparent reason to their objections. They
accordingly settled upon what they found unenclosed 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 boundaries 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 immigrant would undertake to appropriate
to himself a portion of what he deemed the surplus; forgetting that
other immigrants might do the same thing, each claiming that what he
had taken was a portion of such surplus, until the grantee was deprived
of his entire property.
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 Mexico were to be respected and enforced. This treaty
had stipulated for the protection of all rights of property 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 portions of her domain, or
of the United States in stipulating 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 enormous 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 themselves
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 powerful language of
Judge Black. In the Fossat case, referring to the land claimed by one
Justo Larios, a Mexican grantee, he said: "The land we are claiming
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 public 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.[1] 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 enjoyment of their
property. The pledge was not only that the government itself would
abstain from all disturbance 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 Constitution 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 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
material 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 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 government
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 boundaries, 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 measurement no individual could
complain, much less could he be permitted to determine in advance,
that any particular locality would fall within the supposed surplus,
and thereby justify its forcible seizure and detention by himself.
"If one person could in this way appropriate 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."[2]
These views have since met with general assent in California and have
been approved by the Supreme Court of the United States.[3] But at
that time they gave great offence to a large class, and the judges
were denounced in unmeasured terms as acting in the interests 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, to
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 immigration
to the country. The slopes of 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. Conflicting 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 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 received
the entire concurrence of my associates, and was applied by us, in its
fullest extent, for the protection 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 anomalous condition
of things arising from the peculiar character of the mining and landed
interests of the country, been, to a certain extent, qualified and
limited. The larger portion of the mining lands within the State
belong to the United States, and yet that fact has never been
considered as a sufficient answer to the prosecution of actions for
the recovery of portions of such lands. Actions for the possession
of mining claims, water 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
between parties thus situated, this court proceeds upon the
presumption of a grant from the government to the first appropriator
of mines, water privileges, and the like. This presumption, which
would have no place for consideration as against the assertion of
the rights of the superior proprietor, is held absolute in all those
controversies. And with the public lands which are not mineral lands,
the title, as between citizens of the State, where neither connects
himself with the government, is considered as vested in the first
possessor, and to proceed from him."--(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, belonged 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 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 produces or
yields, gold and silver are the most excellent, and of all persons in
the realm, the King is, in the eye of the law, most excellent. And the
common 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 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 individual is furnished with all necessary
commodities, but one has need of the 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
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
pleasure. Therefore, for these reasons, viz., for the excellency 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 considering 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 regulation; to
license miners; and to affix such terms and conditions as she may
deem proper to the freedom of their use. In the legislation upon this
subject she has established the policy of permitting all who desire it
to work her mines of gold and silver, with or without conditions,
and she has wisely provided that their conflicting claims shall be
adjudicated by the rules and customs which may be established by
bodies of them working in the same vicinity."--(3 Cal., 220.)
The miners soon grasped the full scope of this decision, and the lands
of private proprietors were accordingly 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 possessions
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
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 afterwards, in the case of Biddle
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 maintained by parties having no connection with
the government, nor any claim of title to the land. Its existence 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 proprietorship,
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 mining. The entry might be made at all seasons, whether
the land was under cultivation or not, and without reference to its
condition, whether covered with orchards, vineyards, gardens, or
otherwise. Under such a state of things, the proprietor would never be
secure in his 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 existing, 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 public or
private lands was not one of those rights. Such ownership stands in
no different relation to the sovereignty of a State than that of any
other property which is the subject of barter and sale. Sovereignty
is a term used to express the supreme political authority of an
independent State or Nation. Whatever rights are essential to the
existence of this authority are rights of sovereignty. Thus the right
to declare war, to make treaties of peace, to levy taxes, to take
private property for public uses, termed the right of eminent domain,
are all rights of sovereignty, for they are rights essential to
the existence of supreme political authority. In this country, this
authority is vested in the people, and is exercised through the
joint action of their federal and State governments. To the federal
government is 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 prohibited, 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
government, or prohibited to the States; in other words, that she
possesses all the rights and powers essential to the existence of an
independent political organization, except as they are withdrawn
by the provisions of the Constitution of the United States. To the
existence of this political authority of the State--this qualified
sovereignty, or 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 differ 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 jurisdiction 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 sovereignty."
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 sustain 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 citizens in commercial transactions is undoubtedly
promoted 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.
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 land
was made by an individual or by the government. By such conveyance
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 perished 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 denunciation 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 organized municipality. The _Pueblo_ of San
Francisco was composed of a small population; but, as early as 1835,
it was of sufficient importance to have an _Ayuntamiento_ 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 peninsula 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 distributing
these municipal lands in small parcels to settlers for building,
cultivation, and other uses.
When the forces of the United States took possession 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 exercised 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 insisted that the land belonged
to the United States.
Early in 1850, after the State government was organized, the
Legislature incorporated the City of San Francisco; and, as is usual
with municipal bodies not restrained by the most stringent provisions,
it contracted more debts than its means warranted, and did not
always make provision for their payment at maturity. Numerous suits,
therefore, were instituted and judgments were recovered against the
city. Executions followed, which were levied upon the lands claimed by
her as successor of the _pueblo_. Where the occupants 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 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 defined by the charter
of 1851, with certain exceptions, 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
recovered by legal process. And it declared that, for the purposes 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 Mexico to the United States,--or
by virtue of a grant subsequently 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 the
county of San Francisco on or before 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 disposing 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, 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 municipal organizations; that as such pueblo it
had proprietary 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 purposes could be granted in lots to private persons by
its ayuntamiento or by alcaldes or other officers who represented 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 officers, 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 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 possession, 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 assassination 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 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 confirmation 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 government, should be presented to
the board for examination 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 the 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 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 was 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 all parts of it.
The magnitude of the interests which had thus grown up demanded 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 consulted 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
section, which were added at the request of the Commissioner of the
Land Office.[4] The fourth section authorized the District Court to
transfer to the Circuit 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
relinquished and granted to the city and its successors for the uses
and purposes specified in the Van Ness Ordinance. The exceptions
incorporated at the suggestion 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 purposes, 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 occupants 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 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 disposition 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 entered; 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 so as to limit the confirmation to land
above ordinary high water mark, as it existed at the date of the
acquisition 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 Washington 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, 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 messenger had not brought my
mail; but if he would accompany 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:
[Illustration:
Per steamer.
[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 "Washington, 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:
[Illustration:
From
GEO. H. JOHNSON'S
Pioneer Gallery,
645 and 649 Clay street,
SAN FRANCISCO.]
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 Christmas 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
appearance 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
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 murderous 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 returned, giving a detailed description of
the machine:
WASHINGTON ARSENAL, _Jan. 16, 1866_.
_Gen. A.B. Dyer, Chief of Ordnance, Washington, D.C._
SIR: 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 & 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.
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
indentation 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 command 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 detectives of the San Francisco
police--but all in vain. Suspicions were excited as to the complicity
of different parties, but they were never sustained by sufficient
evidence to justify the arrest of any one. The instrument, after
remaining in the hands of the detectives in San Francisco for nearly
two years, was returned to me and it is now in my possession.[5]
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 protection of her son, breathed years before, was
answered then? Who can say that her spirit was not then hovering over
him and whispering caution in his 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 Congress 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
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 Senator 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. McRuer,
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, subject, 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 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. McDowell, 6 Wall., 379.)
The title of the city being settled, the municipal authorities took
measures, under the provisions of the confirmatory act, to set apart
lands for school-houses, hospitals, court-house buildings, and
other public purposes, and through their exertions, instigated and
encouraged 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 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 purchased 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 receiving deeds
from the city; and the money raised was applied to compensate those
whose lands had been appropriated.
[1] Mr. Justice Clifford.
[2] Cornwall vs. Culver, 16 Cal., 429.
[3] Van Reynegan vs. Bolton, 95 U.S., 33.
[4] See Exhibit J, in Appendix.
[5] See Exhibit K, in Appendix.
HOSTILITY TO THE SUPREME 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 hostility
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 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 support to this notion. The
wildest stories, now known to have had no foundation, were circulated
and obtained 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, except by the common
consent of the people of the several States, the organization known
as the Confederate States could only be regarded as unlawful and
rebellious, to be suppressed, if necessary, by force of arms. The
Constitution prohibits any treaty, alliance, or confederation 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 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 government and the same general system of laws, during and
subsequent to the war, which they had possessed previously. Their
organizations as distinct political communities 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
impair 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 throughout the country,
upon the cessation of actual hostilities, that these States would
be restored to their former relations 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 upon the defeat of the armies of the Confederacy,
nor that their public men, with the animosities of the struggle still
alive, would at once be admitted into the councils of the nation, and
allowed to participate in its government. 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 between 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 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 accepted 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 introductory to what I have to say of the
unfriendly disposition 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 consideration of the Court. Its action thereon was
watched 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 declare 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, indeed, were done during the war, and more after its
close, which could not be sustained by any just construction 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 examination of calmer times. Mr. Chief Justice Chase expressed
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 tender, 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 motives, the assumption found
ready justification in patriotic 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 conclusion, and
now concur in those which we have just announced."
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
difficulties and responsibilities of the government, both in the
conduct of the war, and in effecting an early restoration of the
States afterwards, and no disposition was manifested at any time to
place unnecessary obstacles 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 operations. 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 attention and created throughout the
North an uneasy feeling, was the Milligan case, which was before the
Court on habeas corpus. In October, 1864, Milligan, a citizen 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 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 government of the United States; 2d. Affording aid and comfort to
the rebels against the authority of the United States; 3d. Inciting
insurrection; 4th. Disloyal practices; 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 condemned 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 proceedings of the military
commission. The judges of the Circuit Court were divided in opinion
upon the question whether the writ should be issued and the prisoner
be discharged, which, of course, involved the jurisdiction 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
the country, and it is unnecessary to state the proceedings 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 member 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
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 Chronicle_ 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 momentous
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 Republic, 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 construction which led to rebellion."
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 assembled 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 engendered. 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 parties 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 sympathies 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 authority, 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 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 comply 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 religious persuasion, sect, or denomination, to
teach, or preach, or solemnize marriages."
Fine and imprisonment were prescribed as a punishment for holding or
exercising any of "the offices, positions, trusts, professions,
or functions" specified, without 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 teaching and preaching as a priest and minister of
that religious denomination without having first taken the oath 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. Montgomery 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 condition 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 character 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.
It is difficult to speak of the whole system of expurgatory oaths for
past conduct without a shudder at the suffering and oppression they
were not only capable 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 affirmation 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 constitution 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 further prohibition
of the Constitution against the passage of an _ex post facto_ law. The
decision of the Court, therefore, was for the discharge of the Catholic
priest. The judgment against him was reversed, and the Supreme Court of
Missouri was directed to order the inferior 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 attorneys 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 before the civil war. When Arkansas passed
her ordinance 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
produced 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 under the
Confederate government. The application was argued by Mr. Matthew H.
Carpenter, of Wisconsin, and Mr. Reverdy Johnson, of Maryland, for the
petitioner--Mr. Garland and Mr. Marr, another applicant for admission,
who had participated in the rebellion, filing printed arguments--and
by Mr. Speed, of Kentucky, 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 Cummings
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 professional delinquency. The Court also
held that the pardon of the petitioner released him from all penalties
and disabilities attached to the offence of treason committed by his
participation in the rebellion, and that, so far as that offence was
concerned, he was placed beyond the reach of punishment of any kind.
But to exclude him by reason of that offence--that is, by requiring
him to take an oath that he had never committed it--was to enforce
a punishment for it notwithstanding the pardon; and that it was not
within the constitutional power of Congress thus to inflict punishment
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 admitted to be sound, but when announced they
were received by a portion of the Northern Press with apparent
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 measures taken by the
States or by Congress during the war. The following, respecting the
opinion in the Garland 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 compared 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 pardon
restores all such rights. The country has been repeatedly
admonished 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 immediate case in issue,
and indulges in a fierce onslaught upon test-oaths
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 becoming 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
republican institutions, instead of the defender and apologist
of treason."
The decisions were announced on the 14th of January, 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 exhibition of hate
and vengeance against all persons who had been engaged, directly or
indirectly, in the rebellion. 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 ascertain
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--
"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 authority vested in it under
the Constitution and laws, does not protect itself from the
contamination of rebels and traitors, until the rebellion
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
fired 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 proscriptive measures.
The bill was passed, under a suspension of the rules, by a vote of 111
to 40.[1]
The Reconstruction Acts, so-called--that is, "An act to provide for
the more efficient government of the rebel 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 government; 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 provisions 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,
invoking 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
officers 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 Confederate 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 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 government of the State, and to erect another and a different
government in its place, unauthorized by the Constitution and in
defiance of its guarantees; that the defendants, 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 government, and
subject her people to military rule. The presentation of this bill
and the argument on the motion 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.[2]
Soon afterwards the validity of the Reconstruction Acts was again
presented in the celebrated McArdle case, and in such a form that the
decision of the question 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) disturbance of the public peace; (2) inciting to
insurrection, disorder, and violence; (3) 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. Carpenter, of Wisconsin, Lyman Trumbull, of
Illinois, and Henry Stanbery, 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 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 Reconstruction Acts could not be sustained; that they were
revolutionary and destructive of a republican form of government in
the States, which the Constitution required 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 decided 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.[3] Whilst it was pending in
Congress the attention 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:
IN RE }
MCARDLE.} PROTEST OF MR. JUSTICE GEIER.
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 Constitution, 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."[4]
R.C. GRIER.
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 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 interests 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 calculated 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 distinguished 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, Ward & King, of New
York; and afterwards represented our government in Brazil. He was an
accomplished linguist, familiar with several languages, ancient and
modern. He was a profound mathematician, and had read, without the
assistance of Bowditch's translation, Laplace's celebrated work, the
"Mécanique Céleste." 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 manners 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
sumptuous and admirably served. Our host saw that the appropriate 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 exclaimed, "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; "the dinner is not over. Judge Field
has 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 conventions then in session to frame
constitutions under the Reconstruction Acts, which he termed "Congo
Conventions." 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
reconstruction 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, abstracted the card near his plate
which bore my name. Here was, indeed, a grand item for a sensational
paragraph. Straight way the newsgatherer communicated it to a
newspaper in Washington, and it appeared under an editorial notice. It
was also telegraphed to a paper 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 newspaper published in this city, on the afternoon of
Wednesday, January 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 declared in the most
positive terms that all those laws were unconstitutional, 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
reconstruction 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 report 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 California 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 enquire into the private conversation of members of the
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
question on the resolution. Several of the members protested 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
newspaper statement. But it was of no use. The resolution 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 subsequent
course in the McArdle case probably showed to the House. I had only
one feeling for the movement--that of profound contempt; and I believe
that a similar feeling was entertained by every right-thinking person
having any knowledge of the proceeding.
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 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 statements 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 exposure. So for some months 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 ascertained, the ridiculous nature of the subsequent
proceedings 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 associates on the
Judiciary Comnfittee.
Near the close of the session--on June 18th, 1868--the committee were
discharged from the further consideration of the resolution, and
it was laid on the table--a proceeding which was equivalent to its
indefinite 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.
[1] 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.
[2] 6th Wallace, 50.
[3] 15 Stats. at Large, 44.
[4] "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_.
THE MOULIN VEXATION.
Soon after my appointment to the Bench of the U.S. Supreme Court, I
had a somewhat remarkable experience 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 energetic 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
demanded 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 Moulin demanded thousands; and
when this was refused, 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 appearance 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 himself to Mr. Aspinwall
and asked that his claim should be allowed. Mr. Aspinwall said that he
knew nothing about his claim and that he did not want to be bothered
with it. Moulin still insisted, and Mr. Aspinwall told him to go away.
Moulin thereupon became excited, said he was determined to be paid,
and that he would not 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, marched along by his side as before. If Aspinwall hailed an
omnibus and got in, Moulin got in at the same time. If Aspinwall 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, wherever Aspinwall went 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 Aspinwall gave him a free ticket back to San Francisco.
Moulin departed, and in due course of time again presented himself to
Forbes and Babcock, in San Francisco. 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 understanding between his lawyer and the lawyer of the
steamship 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, besides 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
interfere. 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
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
something 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 second 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 presented 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 a large
bundle of papers and detailed his grievances against the United States
judges, clerks, district attorney 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 besieged 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 demands. By this course Moulin
attracted a good deal of attention, and an inquiry was suggested and
made as to whether he was _compos mentis_. The parties who made
the inquiry reported that he was not insane, but was actuated by
a fiendish malignity, a love of notoriety and the expectation of
extorting money by blackmail. 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 exemption 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 impossible, 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 proceeding 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 committed 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 petitions 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
attacks, 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 individual by the name
of William Hastings was practising 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
particularly 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 captains 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 passenger against a vessel from
Australia, the captain declined 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 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 decision 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
offensive 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
proceedings.
About this time Mr. George W. Julian, a member of Congress from
Indiana, came to California and pretended to be a great friend of
the settlers. He obtained the confidence of that large class of
the community, and especially of those who were known as the 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 had previously been considered as good
as any in California; it had been held valid by the local tribunals,
and also by the Board of Land Commissioners and by the District Court
of the United States. On the strength of these confirmations 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 purchasers at full value. But when
the question came before the United States Supreme Court, and
it appeared 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
disposition 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 purchased in good faith from Vallejo, and expended their money in
improving the land, to be deprived of it. 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. Frisbie, 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-emptioners, under the general land laws of the United
States, and insisted that, as their settlements 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.[1]
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 him. But the Land Department
took a different view of the matter and issued the patent to Frisbie.
Whitney 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 District 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 any other disposition thereof which it
pleased. The court, therefore, adjudged that the Suscol act was valid,
that the purchasers from Vallejo had the first right of entry, and
that Frisbie 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 applied to the members of the court remarks that were
anything but complimentary. It so happened that previous to this
decision a similar suit had been decided in favor of Frisbie by
the Supreme Court of California, in which a very able and elaborate
opinion was rendered by the Chief Justice. I did not see the opinion
until long after it was delivered, and had nothing whatever to do
with it; but in some way or other, utterly inexplicable to me, it was
rumored that I had been consulted by the Chief Justice with respect
to that case, and that the decision had been made through my
instrumentality. With this absurd rumor Hastings, after he had been
disbarred by Judge Hoffman, went on to Washington. There he joined
Julian; and after concocting 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
affair 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-introduced Hastings' memorial at Julian's
request and had it referred to the Judiciary Committee, with express
instructions to report upon it. Hastings appeared for 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 lug
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 principally 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 legally 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 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 governments
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 Judiciary
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
further 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 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 California. Still others thought it no
more than proper to impeach a few of the judges, in order to teach the
remainder 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, indeed, 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
monstrous 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 proceedings, Hastings
commenced a suit in the U.S. Circuit Court for the State of New York
against the Judiciary Committee for dismissing his memorial. Being 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 Senator 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 relieved
from his allegiance as a citizen of the United 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 Supreme
Court of California as an attorney and counsellor-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 Senator 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
relations with said Justice were not friendly, as he had endeavored to
get him impeached, and that the damaging evidence he produced against
such Justice had been secreted and covered up by the Judiciary
Committee 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 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
towards 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 exalted 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 interests
conflict with the obligations of his oath of office; while the
Justices of the Supreme Court are, I conceive, derelict in the
performance of their sworn duty, for permitting such practices to be
inaugurated and continued.'
"Cowardice taints the character with moral turpitude; 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-attorney of the
court becomes in case of trial of any of said Justices by impeachment;
surely this is one unclean body incestuously holding illicit commerce
with another unclean body, and both become interchangeably 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 compromises,
carried on by colluding and conniving shyster 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!
[1] See Exhibit L, in Appendix.
APPENDIX.
EXHIBIT A.
[From the New York _Evening Post_ of November 13th, 1849.]
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
distinction in the promising land 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 afterwards
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 Legislature
of the State. He is a gentleman of high character and has the
confidence and respect of the community.
My opponent for the office of Alcalde was Mr. C.B. Dodson, 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 Electoral
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
vicissitudes 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
Marysville, 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 Dodson 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 successful
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
Californians. 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 companion 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. } _ss._
SACRAMENTO CITY, _January 22d, 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._
* * * * *
EXHIBIT D.
The following are the orders of the District Court mentioned in the
Narrative.
_Order imprisoning and fining Mr. Field for alleged contempt of
court._
DISTRICT 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. B. 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 Mulford from 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 proceeding was
had:
Whereas, Messrs. Field, Goodwin, and Mulford, having set at defiance
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. B. Turner, Judge, the
following proceeding was had:
Whereas, Judge Haun having, in defiance of the authority of this
court, and in violation of the law, obstructed and prevented the
execution 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 R.B. Buchanan, sheriff of the county.
Present, Hon. H.P. Haun, County Judge, F.W. Barnard, Associate
Justice.
IN THE MATTER OF }
STEPHEN J. FIELD } Application 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 acting
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, and that order must be preserved while it was in session.
The said Sheriff Buchanan then left the court, whereupon the
business before the court was again 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 confinement 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,
conceiving the order to arrest the Hon. H.P. Haun to be illegal and
unjustifiable, 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 adjournment. 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.S.] E.D. WHEELER, _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 confinement, and
his fine be remitted." 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 impeachment of Judge Turner:
MARCH 26th, 1851.
E.D. Wheeler,[1] being duly sworn, says: I reside in Marysville, Yuba
County; I am the county clerk of that county; I know Wm. 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 imprisoned? 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;" whereupon the fine was
increased to four hundred dollars and the imprisonment made something
longer. I think Mr. Field said something about his rights at the bar,
and I think he 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 anything
disrespectful in the language of Mr. Field which occasioned the fine
and imprisonment?
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. Field 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 imprisonment 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.
Q. Look at this paper and state whether it is a copy of the
proceedings of that court on the 10th of June, certified by you as the
clerk.
Ans. It is.[2]
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 forthwith
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 Haun. Then the excitement became so great
that several of the members of the bar requested him to adjourn 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,
expelling 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.
[1] Mr. Wheeler is at present (1877) District Judge of the
Nineteenth District of the State.
[2] The record of the proceedings is printed above.
* * * * *
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
and sent to him the State had not been admitted into the Union, and
Congress had not approved of the action of the people in calling a
convention and framing a constitution; and it appeared very doubtful
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, Governor 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
judicial career, and particularly during the session of the District
Court held at Marysville, in Yuba County, during the present month,
ignorance 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 hear counsel 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
appealed 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.
5th. Because the said William R. 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
presided, and to carry off by force the said county judge and put him
in close custody.
6th. Because the said William R. 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 William
R. 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 R. Turner has, in the exercise of
arbitrary power, expelled counsel from the bar for giving their
testimony 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 R. 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 R. 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. Stenhome, John Parks,
Absalom Parks, David Parks, James Imbrie, Alfred Parry, H.C. Ward,
Richard McRae, Wm. Johnson, F. Prunean, H.W. Taylor, R.A. Eddy, S.T.
Brewster, C. Sala, Dericerpre, M. Donaldson Kinney, R.M. Foltz.,
Jas. F. Hibbard, Thomas Gaffney, Allen Gries, W.H. Swain, Oben Lacey,
E.S. Peck, B. Smith, John Graham, Wm. Kyle, S.C. Tompkins, A.C. Ladd,
C.B. Kinnard, Cyrus Crouch, H.H. Welch, Jas. Stuart, Jas. DeBell,
Uriah Davis, L.H. Babb & Co., I.B. Purdy, G. Dimon, Henry J.
Williams, D.W.C. Rice, N. Purdy, William K. Coit, James B. Cushing,
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. Ryder, Geo. H. Childs, Ezra F. Nye, S.T. Nye,
Geo. W. Durkee, John C. Marks, John L. Carpenter, Leonard Crofford,
Robert 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. Eavyerberth, Lewis A. Gosey, John Rueyer, Tehan Van
De Wett, Wm. Cassede, G.P. Russell, S.G. Haywood, G.W. Hopkins, Wm. 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_.
DEAR 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 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 Francisco,
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 Turner to
understand the line of conduct I intended to pursue. The following
letter has since been received from him.
SAN FRANCISCO, _May 10th '80_.
FRIEND FIELD: In looking over the Early Reminiscences of California
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.[1]
After the Narrative of Reminiscences was written, the Proceedings of
the Assembly of California of 1851, on the petition of citizens of
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 Narrative, 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.
DR. SIR: 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 citizens 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_.
* * * * *
_Letter of Mr. Merritt._
SALT LAKE CITY, UTAH, _May 4th, 1879_.
MY DEAR 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
extremely 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 misapprehension
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. MERRITT.
HON. S.J. FIELD, _Sup. Ct. U.S._
* * * * *
_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 Wm. R. Turner, Judge of the Eighth Judicial District
of California." The simple reading of the record recalls vividly to my
mind all of the circumstances of the case and enables me to 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 numbers 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 Klamath--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 impression, in not only the
bodily form, but the instincts, passions, manners, 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 Nevada 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 impeachment.
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 impeachment
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, &c.,
JOS. W. MCCORKLE.
* * * * *
_Letter of Mr. Bradford._
SPRINGFIELD, ILL, _May 8th, 1879_.
JUDGE FIELD.
MY DEAR FRIEND: Yours of the 27th April should have been answered 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 correct in
the explanation as given.
Very truly, J.S. BRAFORD.
* * * * *
_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
indefinitely postpone the proceedings is correct, so far as I am
concerned.
It was distinctly understood by me, and to my knowledge by other
members of the Assembly, that you had consented to such postponement,
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 undoubtedly 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 introduced
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 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. CARR.
HON. STEPHEN J. FIELD.
[1] By mistake, there are two Exhibits H; they are, therefore,
marked No. I. and No. II.
* * * * *
EXHIBIT H, No. II.
_Letter of Judge Gordon N. Mott giving the particulars of the
difficulty with Judge Barbour._
SAN FRANCISCO, _Apr. 28th, 1876_.
HON. STEPHEN J. FIELD.
DEAR SIR: Your letter of the eleventh instant, in which you requested
me to give you, in writing, an account of the affair between yourself
and Judge W.T. Barbour, 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 kindness to me,
which gave him no just or reasonable cause of offence; 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 gentlemen
for the settlement of their personal difficulties. You accepted the
challenge instantly, and referred him to me, as your friend, who
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 meeting 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 "to
fight it out on that line," than longer submit to the insolence and
persecution of a bitter and unscrupulous adversary. 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 fire 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 conflict so unprecedented 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 playing
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 repeated 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 refused 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 from their color fly;" and he finally stammered
out that he would "waive the knife." Without consulting you, I
had determined that if Barbour 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 consulting 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 Sacramento, 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 adversary 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 other 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 astonished and
mortified at the pusillanimous conduct of his principal, who seemed
determined to rush forward to the other coach; and I requested him to
wait until I could go back and consult you in the matter, 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 breakfast 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 persecution 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,
GORDON N. MOTT.
* * * * *
EXHIBIT I.
_Letter of L. Martin, Esq., the friend of Judge Barbour in his street
attack._
MARYSVILLE, _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.[1] You have always appeared to 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 advantage
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 defend
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 manner,
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. MARTIN.
HON. JUDGE FIELD.
[1] It was February 21, 1863.
* * * * *
EXHIBIT J.
_Sections four, five, and seven of the act entitled "An act
to expedite the settlement of titles to lands in the 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
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 it 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 the
uses and purposes 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 relinquishment 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-general, 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
Commissioner of the General Land-Office to require a substantial
compliance 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 of the 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 conditions as the legislature of the State
of California may prescribe, except such parcels thereof as may be
reserved and set apart by ordinance 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.]
* * * * *
EXHIBIT K.
_Letter of Judge Lake giving an account of the torpedo._
SAN FRANCISCO, _April 29, '80_.
Honorable STEPHEN J. FIELD.
MY DEAR SIR: In the winter of 1866 I was in Washington attending 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 bearing 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 removed 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 sudden 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
machine" 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 mysterious 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 the centre. The sides
of the 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 spread 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 Francisco
vs. United States. Judge Field yesterday delivered the following
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 vengeance
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
contriver 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, producing 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.
* * * * *
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 contests for
lands on the Soscol Ranch was submitted for investigation, showing 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:[1] When the United States government took possession of
California, Don Mariana Guadaloupe Vallejo was in the occupancy 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 accordance with the primitive
habits of the people. He possessed the land by herding stock upon it.
General Vallejo, as military commandante 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 Territory 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 agriculture 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 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 forbade
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 Vallejo
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 Vallejo
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 practice
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 produced
its usual effect in the way of improvements.
From 1855 to 1860 the "rancho of Soscol" was almost entirely reduced
to absolute and actual possession and control by his vendees, being by
them fenced up into fields, surrounded by substantial enclosures, 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 "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
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 entirely
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 mortgage. When all
titles required the same confirmatory decree, the citizen could not
discriminate, but exercised his best judgment.
The sales of lands 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.
Thus stood matters until early in the year 1862, when the intelligence
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 navy-yard at Mare Island, and also upon the Pacific
Mail Company's works at Benicia, 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 residence of the landholder in possession,
screws would be used to prevent 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
employment 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,
have attempted regular improvements or cultivation. A few have
harvested the grain planted by the landholders, as it grew on their 1/4
[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 another to
sell and to make money.
[1] The evidence taken before those officers.
* * * * *
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 edition
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.
* * * * *
THE STORY OF THE ATTEMPTED ASSASSINATION OF JUSTICE FIELD
BY A 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. . Circuit Court of the District of California when
it was organized, after Judge Field's appointment 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.
ATTEMPTED ASSASSINATION OF JUSTICE FIELD BY A FORMER ASSOCIATE ON
THE STATE SUPREME BENCH
CHAPTER I The Sharon-Hill-Terry Litigation.
CHAPTER II Proceedings in the Superior Court of the State.
CHAPTER III Proceedings in the United States Circuit Court.
[Transriber's note: there is no Chapter IV]
CHAPTER V Decision of the Case in the Federal Court.
CHAPTER VI The Marriage of Terry and Miss Hill.
CHAPTER VII The Bill of Revivor.
CHAPTER VIII The Terrys Imprisoned for Contempt.
CHAPTER IX Terry's Petition to the Circuit Court for a
Release--Its Refusal--He Appeals to the Supreme
Court--Unanimous Decision against Him there.
CHAPTER X President Cleveland refuses to Pardon Terry--False
Statements of Terry Refuted.
CHAPTER XI Terry's continued Threats to Kill Justice Field--Return
of the Latter to California in 1889.
CHAPTER XII Further Proceedings in the State Court.--Judge
Sullivan's Decision Reversed.
CHAPTER XIII Attempted Assassination of Justice Field, Resulting in
Terry's own Death at the Hands of a Deputy United
States Marshal.
CHAPTER XIV Sarah Althea Terry Charges Justice Field and Deputy
Marshal Neagle with Murder.
CHAPTER XV Justice Field's Arrest and Petition for Release on
Habeas Corpus.
CHAPTER XVI Judge Terry's Funeral--Refusal of the Supreme Court
of California to Adjourn on the Occasion.
CHAPTER XVII Habeas Corpus Proceedings in Justice Field's Case.
CHAPTER XVIII Habeas Corpus Proceedings in Neagle's Case.
CHAPTER XIX Expressions of Public Opinion.
CHAPTER XX The Appeal to the Supreme Court of the United States,
and the Second Trial of Sarah Althea's Divorce Case.
CHAPTER XXI 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 returned to California, and entered upon the practice of the law.
In 1880 he was a candidate for Presidential elector on the Democratic
ticket. His associates 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 mentioned as furnishing a possible
explanation of Judge Terry's marked descent in character and standing
from the Chief-Justiceship of the State to being the counsel, partner,
and finally the husband of the discarded companion 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 discharge of his
judicial duties, had been compelled to order the revival of a decree
of the United States Circuit 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 annals of the courts or the pages of romance can
parallel 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 SHARON-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 believed 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 claim that she had a secret contract of
marriage with him. This negress, who during the trial gave unwilling
testimony to having 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 submitted to him, but he gave his written opinion as to what kind
of a contract it would be good to have for the purpose. The pretended
contract was then manufactured by Sarah Althea in accordance with this
opinion, and Tyler subsequently made a written agreement with her by
which he was to act as her attorney, employ all necessary 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 affidavit 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
manufactured 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 Francisco 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;
"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 informed, 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 fraudulently
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 constitute a marriage between them, and that
thereby 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 informed was a copy
of the declaration of marriage, and alleged that if she
had any such instrument, it was 'false, 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 declared, and ordered to be delivered up, to be
annulled and cancelled."
The complaint concluded with a prayer that it be adjudged 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
pretensions of marriage thereby. Sharon was a citizen of Nevada, while
Miss Hill was a citizen of California.[1]
Before the time expired in which Miss Hill was required 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 Francisco, to establish their alleged
marriage and then obtain a decree, and a division of the property
stated to have been acquired since such marriage. In her complaint she
alleged that on the 25th day of August, 1880, they became, by mutual
agreement, husband and wife, and thereafter commenced living together
as husband 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 violations of the
marriage contract. The complaint also alleged that when the parties
intermarried the defendant 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, accumulated in money
and property more than ten millions of 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
account 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 violence and uncleanness, and finally
ended in bloodshed. The leading combatants were equally resolute and
determined. Mr. Sharon, who was a man of remarkable will and energy,
would have expended his entire fortune 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 restraint, her disreputable course.
She affected a reckless and daredevil character, carrying a pistol,
and exhibiting it on occasions in cow-boy fashion, to convey 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 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 September,
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 commencement 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.
[1] 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 burdens 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
California also declares that "a written instrument in respect
to which there is a reasonable apprehension that, if left
outstanding, it may cause serious injury to a person against
whom it is void or voidable, may, upon his application, be so
adjudged, and ordered to be delivered up or cancelled" (Sec.
3412).
CHAPTER II.
PROCEEDINGS IN THE SUPERIOR COURT OF THE STATE.
Mr. Sharon defended in the state court, and prosecuted in the federal
court with equal energy. In the former he made an affidavit that the
pretended marriage 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 did 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
witnesses 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 business-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, Sarah Althea Hill,
of the city and county of San Francisco, 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 lawful 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.
SARAH 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 material statement
made by Sarah Althea Hill. He denied 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 from March 10th
until May 28th, when the summer recess intervened. It was resumed
July 15th, and occupied the court until September 17th, on which
day the argument of counsel was concluded and the case submitted.
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."
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 appearing 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 disappearance, 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 judgment 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 numerous 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. Regular 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 sum of $380,000,
which added to the $150,000, attorneys' 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 suit 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 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 conclusive evidence that Sarah Althea
required no money for the payment of counsel fees.
After the filing of a mass of affidavits, and an exhaustive 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 difficulties." For counsel fees
he allowed the sum of $60,000, and at the request of the victors, made
in advance, he divided the spoils among them as follows:
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 command of Tyler, who had
agreed to conduct the proceedings 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
before 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 husband 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.
Sharon appealed from the final judgment, and also from the order for
alimony. Notwithstanding this appeal, 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 punished for contempt in failing to
pay alimony and counsel 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 permanent, 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
commenced 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 attorneys seemed to think that her salvation depended upon
reaching a decision in her case before the determination 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 subsequently 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 federal 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 Superior 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 last day allowed by the rule. A month
later she filed a demurrer. Her counsel contrived to delay the
argument 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 overruled 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 was filed 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
replication. There was at no time any delay or want of diligence 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
testimony 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 interrupting the
proceedings with her turbulent and violent conduct 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 violent
that the taking of the testimony could not proceed, and Justice
Field, the presiding judge of the circuit, 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 Proceedings 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 scandalous
remarks of hers were omitted] I feel like taking that man
Stewart[1] 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 deliberately lie about me like that. I will
shoot him. They know when 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 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 occasions 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 subsequently 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 examination of
witnesses, armed with a pistol. Such conduct 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 contempt. 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
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 recurrence. My
associate will comment on the laws of Congress which 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 jurisdiction 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 became 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
"Whereas it further appears that said defendant habitually
attends before said examiner carrying a pistol,
"_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 surveillance, while she is
attending the examination of witnesses before said examiner,
and whenever attending in court, and that a deputy be detailed
for that purpose."
[1] Senator Stewart, who was one of the counsel against her in the
suit.
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 defendant, 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 tunc, 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.
Of the old negress under whose direction the fraudulent 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 Pleasant, 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 satisfactorily established the forgery and the fraudulent
character of the instrument in question.
CHAPTER VI.
THE MARRIAGE 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 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 subject-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 an 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 success. 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 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 personally responsible to him for any
decision that would 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 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
Circuit 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 annulled, 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 maintaining 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 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 11th of February following,
upon proper application, 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 denying 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 this decision, namely, McKinstry, Searles,
Patterson, and Temple. Three judges dissented, to wit, Thornton,
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 decision on this appeal, as soon 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 controversy 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 condition and plight in which
it was at the time of its entry, which, being _nunc pro tunc_, 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 lifetime. The
decree directed the surrender and cancellation of the forged marriage
certificate, and perpetually enjoined Sarah Althea Hill, and her
representatives, from alleging the genuineness or validity of that
instrument, 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 cancellation, 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 decree of another court,
essentially founded thereupon, contrary to the perpetual injunction
ordered by the Circuit Court. To this suit, David S. Terry, as husband
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 filed 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
executor, 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; her husband's assault upon the marshal with a deadly weapon
for executing the order, and 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 physical 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 commencement 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 Sawyer occupied 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 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 facing Judge Sawyer. Mrs. Terry did not (at the moment) accompany
him. A few minutes later she walked rapidly down the passage, and as
she passed Judge Sawyer, 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 passing 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 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 been 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 Sawyer
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 entirely 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 danger, 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 reviving the decree.
CHAPTER VIII.
THE TERRYS 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 sufficient 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 concealed bowie-knife, and she with a 41-calibre revolver,
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 11th 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."
When Mrs. Terry heard the above words concerning the surrender of the
alleged marriage contract for cancellation, 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; everybody knows you were
sent out here by the Newlands to make this decision."
"Every one of you there have been paid for this decision."
At the commencement of this tirade, and after her refusal to desist
when twice ordered to do so, the presiding 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 suspension 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,[1] breaking one of his front teeth. He then
unbuttoned his coat and thrust his hand under his vest, where his
bowie-knife was kept, apparently for the purpose of drawing it, when
he was seized by persons present, his hands held from drawing his
weapon, and he himself forced down on his back. The marshal,
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 Sawyer, 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 officers. 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 succeeded in drawing his knife. As he
crossed the threshold 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
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 commenced 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 the boisterous and violent
proceedings described. On their conclusion, by the arrest of the
Terrys, he proceeded 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 considered 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 vituperative
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 meeting 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 replied: "He will not tell that;
that was too good."
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."
J.M. Shannon, a friend of Terry's for thirty years, testified that
while the Terrys were in jail he called there with Mr. Wigginton,
formerly a member of Congress 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 appoint 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 commitment. 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 candidate 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 influence with
that element.' I understood it to be the workingmen'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 alienation, but I do not know that Field knew
that.'"
Mr. Wigginton said that Mrs. Terry asked her husband 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."
[1] One of the witnesses stated that Terry also said, "Get a
written order from the court."
CHAPTER 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 Circuit Court for a
revocation of the order of imprisonment 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 indiscretion; 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 petitioner'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 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 inside 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 marshal 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, contradicts the facts
recited in the orders for the commitment 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 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 particular 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 fired 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 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 judgments 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 corridor, its statements are directly
opposed to the concurring 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
statement 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 command 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
indiscretion.'
"No one can believe that he thrust his hand under his vest
where his bowie-knife was carried without intending 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 language 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:
"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 assured 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 conversation with Garber on Saturday last in which
I told him if I was released I would seek no personal
satisfaction for what had passed. You may say as emphatically
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 promise 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 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
under very great provocation. No matter what the result,
I propose to stay here until my wife is dismissed.
"Yours truly,
"D.S. TERRY."
In the opinion of the court, referred to in the foregoing letter
as "smirching the character" of Mrs. Terry, there was nothing said
reflecting upon her, except 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 committed 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 removed from
the court-room more than an hour. Besides, 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 opinion
rendered in her favor?
Justice Field, in what he was reading that so incensed 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 September, 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 communication published in the _San
Francisco Examiner_ of October 22d he solemnly declared that this very
petition was not filed by any one on his behalf. After full 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 Harlan delivered the opinion of the Court.
CHAPTER X.
PRESIDENT CLEVELAND REFUSES TO PARDON TERRY--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
declined 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 Heydenfeldt, the very
witness he had invoked. Judge Heydenfeldt had been an associate of
Judge Terry on the State supreme bench. These representations and
their refutation are here given as a necessary element in this
narrative.
Five days after he had been imprisoned, to wit, September 8, Terry
wrote a letter to his friend Zachariah Montgomery at Washington,
then Assistant Attorney-General for the Interior Department under the
Cleveland Administration, in which he asked his aid to obtain 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 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 satisfied
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 representations 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-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 absolutely
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 would aid him, I could
give him the California delegation; 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 desired."
It will be observed that he here positively states that Judge
Heydenfeldt told him he had received a letter 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 reference 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 early California
times, he requested me to obtain from Judge Terry his,
Terry's, version of the Terry-Broderick 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 meeting him, some
weeks after, on the street in this city, he
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 between 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 following 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 between
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.
"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 obtaining 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 before the latter's imprisonment for contempt.
He replied:
"Yes, sir. Since that time I have seen a letter purporting to
come from Terry to Zack Montgomery, published 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 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 Heydenfeldt, 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 Wigginton 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 participated 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 Democratic Conventions, in connection
with the Presidency, might have some effect upon President Cleveland's
mind.
This letter was not forwarded to Zachariah Montgomery 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
application 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 reduction 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 penitentiaries, and
not to jails, and that the system of credits could not be applied to
prisoners in jail. Besides 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 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 consequently remained in jail until the 3d of March, 1889.
CHAPTER XI.
TERRY'S CONTINUED THREATS TO KILL JUSTICE FIELD--RETURN OF THE LATTER
TO CALIFORNIA IN 1889.
Justice Field left California for Washington in September, 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 Justice 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 advised against his going
to hold court in California in 1889, and that was, "I cannot and will
not allow threats of personal violence to deter me from the regular
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 Senators from the Pacific Coast, in interviews
with the Attorney-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 subject 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 notoriety, 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 purpose
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 Attorney if deemed best.
"Yours truly,
"W.H.H. MILLER,
"_Attorney-General_."
A month later the Attorney-General authorized the employment of
special deputies for the purpose named in the foregoing letter.
CHAPTER XII.
FURTHER PROCEEDINGS IN THE STATE COURT.--JUDGE SULLIVAN'S DECISION
REVERSED.
Mrs. Terry did not wait for the release of her husband 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 interest 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 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 decided, 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 decision 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
indictments 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 indictments were filed. The summer vacation followed
without any argument of these demurrers. It was during this vacation
that Justice Field arrived in California, 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 demurrers 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 decision 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 receiver 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.
As the 15th of July approached, the lawyers who had been associated
with Terry commenced discussing among themselves what would be the
probable consequence 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
authority 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 appeared
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. Before 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 trial, thereby obliterating the judgment in favor of Sarah Althea,
and the previous decision of the appellate 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 therefore 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 and she
entered a plea of not guilty. No 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 purpose of holding court.
CHAPTER 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 marriage agreement a forgery, and ordered it to be delivered
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
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
encounter, disarmed, arrested, and finally imprisoned, his rage
was boundless. He had found a tribunal which cared nothing for his
threats, and was able to overcome his violence. A court that would put
him in the 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 murder
the Justice, as to when and under what circumstances 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 absence 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
Washington 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 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 defied 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 motion for a receiver
before Judge Sullivan, July 15th, grave apprehensions were entertained
of serious trouble. Great impatience was expressed with the Supreme
Court of the State for not rendering its decision 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 jurisdictions 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 deputy 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 following 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 and 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 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 breakfast 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, proceeded 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. 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
"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. They walked
up the aisle, between 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
purpose, 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 movement, 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
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
interposed 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 marshal'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 described 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 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 immediately commenced
sinking very slowly. Knowing by experience that men mortally 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 testimony, 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 faculties that constitute life instantly
extinguished without being affected, and I was. I looked at
him for a moment, 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 I think it was Mr. Lidgerwood,
who has been examined as a witness in this case, and said:
'What is this?' I said: 'I am a Justice of the Supreme Court
of the United States. My name is Judge Field. Judge Terry
threatened my life and attacked me, and the deputy marshal has
shot him.' The deputy marshal was perfectly cool and
collected, and stated: 'I am a deputy marshal, and I have shot
him to protect the life of Judge Field.' I cannot give you the
exact words, but I give them to you as near as I can remember
them. A few moments afterwards the deputy marshal said to me:
'Judge, I think you had better go to the car.' I said, 'Very
well.' Then this gentleman, Mr. 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, remained some time, and then left
his seat in the car, and, as I thought, went back to the
dining-room. (This is, however, I am told, a mistake, and that
he only went to the end of the car.) He returned, and either
he or some one else stated that there was great excitement;
that Mrs. Terry was calling for some violent proceedings. I
must say here that, dreadful as it is to take life, it was
only a question of seconds whether my life or Judge Terry's
life should be taken. I am firmly convinced that had the
marshal delayed two seconds both he and myself would have been
the victims of Terry.
"In answer to a question whether he had a pistol or other
weapon on the occasion of the homicide, Justice Field replied:
'No, sir. I have never had on my person or used a weapon since
I went on the bench of the Supreme Court of this State, on the
13th of October, 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
question 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 anything. 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
audacity 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
from springing at 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
anything of the mode of life and of quarrelling and fighting 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 revengeful and openly
avowed purpose was by killing him on the spot. Only a lunatic or
an imbecile or an accomplice 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 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 movement for the
knife with which Judge Terry intended to dispose of the alert little
man, with 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 was
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 husband about a minute, and when she rose up she 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
opportunity 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
manufacture 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 concealed upon her person. A number of witnesses
testified 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 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 addressing 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, remarking, 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 controversy, 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
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 intense 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 connect him with the
killing.
Mrs. Terry did not see the shooting and was not in the hotel at the
time of the homicide. Having, therefore, 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 attorney, Mr. White, a young and inexperienced
lawyer, to carry him along with them. The justice of the peace
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 satisfaction
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 Stockton, 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 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 possessed 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 having her own pistol returned to
her that she, herself, might kill Justice Field. It was beyond belief
that the magistrate believed that there was probable 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 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 examination 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.
CHAPTER XV.
JUSTICE FIELD'S ARREST AND PETITION FOB RELEASE ON HABEAS CORPUS.
At the appointed hour Justice Field awaited the sheriff in his
chambers, surrounded by friends, including 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 presented to Judge Sawyer
for a writ of _habeas corpus_, 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 complied 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.
Then followed a statement of the facts, showing the arrest and
detention to be illegal. This statement embraced the principal facts
connected with the contempt proceedings in 1888, and the threats then
and thereafter 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
swore 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 warrant 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."
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 document produced in
that case, and had attempted to support 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 abandoned character of
the said Sarah Althea Terry, and the fact that she was found guilty
of perjury and forgery 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 petitioner
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
affidavit of the said Sarah Althea Terry was not entitled to the
slightest consideration whatever.
"Your petitioner further states that it is to him incomprehensible
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 discharging the duties of his office in
cases pending against her in the federal court at San Francisco."
The sheriff's return was as follows:
"Return of sheriff of San Joaquin county, Cala., County of San
Joaquin, State of California:
"SHERIFF'S OFFICE.
"_To the Honorable 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 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 further hearing upon the return was adjourned
until the following Thursday morning, the 22d, and the petitioner 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 Cunningham. 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 morning of Saturday, August 17,
Neagle was brought from Stockton by the sheriff at 4:30 A.M. District
Attorney 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 appeared 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
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 important of which were that an officer of the United
States, specially charged with a particular duty, that of protecting
one of the justices of the Supreme Court of the United States
whilst engaged in the performance of his duty, could not, for an act
constituting the very performance of that duty, be taken from the
further 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 inquired into before the
tribunals of the State.
CHAPTER XVI.
JUDGE TERRY'S FUNERAL--REFUSAL OF THE SUPREME COURT OF CALIFORNIA TO
ADJOURN 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 excitement.
The rector being absent, the funeral service was read by a vestryman
of the church.
On the day after Judge Terry's death the following 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 before 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 postponed until the court has had a consultation about it."
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
instance, I understand the funeral is to take place to-morrow."
Chief Justice Beatty: "Mr. Crittenden, the members 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 gentleman and
his family and myself for so long a period, require that I
should at this time move this court, as a 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 persisted 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 notorious, and under these circumstances this court
had determined 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 district 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 return 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 return of the
sheriff of San Joaquin county, State of California, 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 said warrant of the
justice of the peace, H.V.J. Swain, in Stockton, California,
issued on the 14th day of August, 1889, under which the
petitioner is held, was issued by said justice of the peace
without reasonable or probable 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
hereafter, 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 accusation 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 advised 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 dispute, 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 Constitution
or any law or treaty of the United States. The case was thereupon
submitted with leave to counsel 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 addressed the following
communication to the attorney-general:
"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 disavowed. 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 indignity on Justice Field does
not admit of argument.
"Yours truly,
"R.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 indignity 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 purpose. 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 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 extricating 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 proceeding 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 tragedy, 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
country.
"It was, under the circumstances, and upon the sole affidavit
produced, especially after the coroner's inquest, so far as
Mr. Justice Field is concerned, a shameless proceeding, and,
as intimated by the Governor of the Commonwealth, if it had
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 murder, and should he
be so unfortunate as to be unavoidably 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 assaulted 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-general, 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 enforcing 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 intensified 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.
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 perfectly evident
to whoever will read sections 811, 812, and 813 of the Penal Code of
California. These sections provide that no warrant can be issued by
a magistrate 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 depositions 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 blameless, and be rewarded for perjury
by being allowed the use of our jails as places in which to satisfy
its vengeance. Such a view of the law made Sarah Althea 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 delay the examination.
The arrest of Justice Field was an attempt to kidnap him for a foul
purpose, and if the United States circuit 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.
CHAPTER XVIII.
HABEAS CORPUS PROCEEDINGS IN NEAGLE'S CASE.
This narrative would not be complete without a statement of the
proceedings in the United States Circuit 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 custody, 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 proceedings were adjourned until the
22d of the month, and in the meantime he was placed in the custody of
the United States marshal for the district. On the 22d a traverse of the
return was filed by him stating the particulars 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 Associate 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
afterwards 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 treaty of the United States. The court then
considered 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-general 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 States 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 devolving upon him by a law of the United States, it was
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
discharged. 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,
and of the Attorney-General as the head of the Department of Justice,
representing him, to direct 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 Supreme 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 President,
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 Sawyer from assault and violence threatened by Terry
and his wife; and that the deputy marshal, acting under instructions
for their protection, was justified in any measures that were necessary
for that purpose, even to taking the life of the assailant.
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 administration
of their respective powers, the authority of the United States must
prevail, for the Constitution declares that it and the laws of the
United States in pursuance 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 protection 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 direction 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 Government. 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 extending 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 government can
exclude it from the exercise of any authority conferred upon it by the
Constitution, obstruct its authorized 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 language the
Circuit Court added:
"The very idea of a government composed of executive,
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 department 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 departments 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 intrinsic, sound, common sense, "The robust
and essential 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
section 3 of article II of the Constitution, which declares that "he
shall take care that the laws be faithfully 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. Section 346, R.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 portion of
his powers and duties, that he "shall exercise general superintendence
and direction over the attorneys and marshals of all the districts in
the United States and the Territories as to the manner of discharging
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
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 provisions 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 person 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
national peace officer, under the conditions indicated, it is the duty
of the marshal and his deputies to prevent 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 requires their performance.
Indeed, no such places as chambers for the circuit judges or circuit
justices are 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 court by the judge is called chamber
business. But it is not necessary to be done in what is usually
called chambers. 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
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 decisions 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 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 protection, 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 subordinates--the marshals and their
deputies--shielded from harm by the national laws while
honestly engaged in protecting the heads of the courts from
assassination."[1]
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 already 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 successful. 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 special duty of protecting the justice
against the very parties, 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 exercised these official functions throughout the judicial
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, commission of the offense
contemplated, when the penalties of the law would not deter them.
As to the deliberation and wisdom of Neagle's conduct 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,
similarly 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, required such an act for his justification.
Neagle could not seek a 'wall' to justify his acts without
abandoning 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 justify 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 murderous assault, knowing by personal
experience his physical 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 discretion, 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 say that he fired the smallest fraction of a second
too soon?
"In our judgment he acted, under the trying circumstances
surrounding him, in good faith and with consummate 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 offense
against, and he is not amenable to, the laws of the State."
The petitioner was accordingly discharged from arrest.
[1] 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 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 _habeas corpus_,
because no statute expressly authorized the performance 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
performance 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 _habeas 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 command 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 imprisoned 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 extended 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.
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 very 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 congratulation
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 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 accomplice.
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 personality, 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 government
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 individual 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 principle 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 honorable performance of your duty
as a magistrate.
I can well comprehend the shock to which this occurrence 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 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. BAYARD.
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 satisfaction than
this prompt, righteous, and effectual vindication 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 universally admired, and
will shed an additional lustre on a 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 Washington next
term,
I am always, dear sir,
Most sincerely yours,
E.J. PHELPS.
Letter from Hon. George F. Hoar, Senator from Massachusetts:
WORCESTER, _August 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 outrage 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. HOAR.
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
Representatives, 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 I first
heard of your fortunate escape from the fiendish 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 frequently, 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 outrage, and cannot express
my admiration of the serene heroism with which you went to
your post of duty, determined not to debase the dignity of
your exalted position by wearing arms for your defense,
notwithstanding 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 before. But I _was_
surprised and disgusted, too, that _you_ should have been
charged or even suspected of anything 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
"railing 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 infamous and
unmitigated outrage, or who is not thoroughly 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 authorities in the _habeas corpus_ issued in your
behalf by the U.S. Circuit Court, and it may be that, from
the 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 wantonly or maliciously interfered with, hindered
or obstructed in the lawful exercises of their official
duties, not arbitrarily of course, but through its regularly
constituted agencies, and according to the established
principles of law; and where such obstruction consists in the
forcible 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 illegal but
contrived for the very purpose of hindering the officer in the
discharge of his official duties, and impairing 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 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 apparently regular in all respects, was in
truth but a fraudulent 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
government 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 government of the State. The one has a right to the
service of its officer, and the right to prevent his being
unlawfully interfered with or obstructed in the performance 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
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 fraudulent 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 functions 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 vindicate 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 between 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.S._
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 question 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 prevented 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 as unwarranted by law as it would be for them
to indict him for an assault on Terry when he assisted in
disarming 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 jurisdiction 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 no
more obstruct 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 exceeded it, is
too plain for argument.
Yours faithfully,
W.D. SHIPMAN
Mr. Justice FIELD.
Letter from James C. Welling, president of Columbian University,
Washington:
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 already
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 expect 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.
Letter from Right 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 subscribe
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, 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 reply. 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
himself 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 saying 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 some influence in staying the spirit and
deeds of violence now so rife, and that they who are so ready
to resort to the rifle and revolver may learn to regard them
only as the instruments of the coward or the scoundrel?
B. WISTAK MORRIS.
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 _Alta 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 fired. There seems, however, to
be an almost undivided sentiment that the killing was
justifiable. Every circumstance 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 indisputable 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. Neagle'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
Attorney-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 circumstances and that Terry was no ordinary
man. Terry was a noted pistol-shot; it was known that he
invariably carried arms and that he boasted of his ability to
use them. If on this occasion he was unarmed, as Mrs. Terry
asserts,[1] 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 previously had
drawn a knife while resisting the lawful authority 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 endangering 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 ungovernable 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 unfulfilled.
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 courage in
the opening incidents of the tragedy that has now closed, the
manhood of California received a distinct impetus. When the
Justice, with threats made against his life, returned to the
State unarmed, and resentful of protection against assault,
declaring that when judges must arm to defend themselves from
assault 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. Confiding 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 condition 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 following 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 successful contradiction, establish the
justifiableness 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
Terrys, man and wife, had sworn to punish 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 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 Government--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 culminated 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 violence
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, therefore, 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 issues at this period,
used the following language:
The judge in America who keeps his official ermine spotless,
who faithfully attends to the heavy and responsible duties
of his station, deserves that the people 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
sentence 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 repeatedly threatened his life, who
had proved himself ready with the deadly knife or revolver, it
would have been a disgrace to American civilization; it would
have been a stigma and stain upon American manhood; it would
have shown that the spirit of American liberty, which exalts
and pays reverence to our judiciary, had been replaced by
a public apathy that marked the beginning of the decline of
patriotism.
Judge Field recognized this when, 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
barbarism." That ringing sentence has gone to the remotest
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, apparently 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 forestalled 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 having 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 republicanism
and a eulogium on the majesty of the law.
It was not a personal controversy between Stephen J. Field
and David S. Terry. It was a conflict between law and
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 his would go.
He was then advised to arm himself for self-defense. His reply
embodies a nobility that should make it historic: "When it
comes to such a pass in this country that judges of the courts
find it necessary to go armed it will be time to close the
courts 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 violence, a judge, as Justice
Field evidently felt, may well risk his own life for the
welfare of the commonwealth. He did not even favor the
proposition that a marshal be detailed to guard him.
The course of the venerable Justice is an example to all who
would have the law respected. It is also a lesson to all who
would take the law into their own hands.
Not less exemplary was his recognition of the supremacy of the
law when the sheriff of San Joaquin appeared before him with
a warrant of arrest on the grave charge of murder. The warrant
was an outrage, but it was the duty of the officer to serve
it, even on a justice of the United States Supreme Court.
When the sheriff hesitated and began to apologize before
discharging his painful duty, Justice Field promptly spoke
out: "Officer, 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
circumstances, 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 straightforward performance of his
duty. His arrest for complicity 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. * * * 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 entire United States army could be if
called out to suppress 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 York World_, in its issue of Monday evening, August 26th,
has the following article:
A NEW LEAF TURNED.
When Judge Field, knowing that his life was threatened,
went back unarmed into the State of California and about his
business there, he gave wholesome rebuke 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:
THE ARREST 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 assailed 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 common 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 promptitude 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 California.
It is a subject for general congratulation that Justice Field
escaped the violence of his assailant. The American 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 offend by administering the laws.
Justice Field has the respect due his office and that deeper
and more significant 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 occasion. 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 community. 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-defense 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 defense, 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 pursue 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 Amer. Crim.
Law, Vol. 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 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 desuetude; 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 following:
ONLY ONE OPINION.
_Marshal Neagle Could Not Stand Idly By._
The killing of Judge Terry of California is a homicide 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 murderer, 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 termination to
a stormy life, and the incidents of his last encounter 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, despised
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 columns that
the killing of David S. Terry by Deputy 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 troublesome 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 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 thousands of new ones who honor him for protecting
with his life the honor of the American bench, the dignity of
the American law, and the credit of the American name. In
the home where Judge Terry lived he went to the grave almost
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 adjourn in honor of his death, the press and public
opinion, for a wonder, in accord over the manner of his taking
off.
Indeed, the public opinion of the country, as shown by the press and
declarations of prominent individuals, was substantially one in its
approval of the action of the Government, the conduct of Neagle, and
the bearing of Justice Field.[2]
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 connected
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 perpetrated under circumstances which
rendered it peculiarly reprehensible, that he met his death
without eliciting from the community one word of condemnation
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
established 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 General 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 attempts to haul down the American flag, shoot him
on the spot," thrilled the slow pulses of the Northern heart
like the blast of a bugle. Yet some adverse obstructionist
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 insult 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 punished with just
severity those capital offenders against peace and good order
who strike at the very foundation on which all government must
rest.
[1] It has been conclusively established since that he was armed
with his usual bowie-knife at the time.
[2] 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 and of the bearing of Justice Field through all the
proceedings, there were exceptions to this judgment. There
were persons who sympathized with Terry and his associates and
grieved at his fate, although he had openly avowed his
intention not merely to insult judicial officers 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,
announcing its decision that she had committed forgery,
perjury, and subornation 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 integrity 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 Pennoyer, of Oregon, in his
message to the legislature of that State, pronounced the
officer appointed by the marshal under the direction of the
Attorney-General to protect 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 State.
CHAPTER XX.
THE APPEAL TO THE SUPREME 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 government to protect its officers from personal violence, for
the discharge of their duties, at the hands of disappointed 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. General and absolute confidence was
expressed in the determination of the highest tribunal of the nation.
The appeal was argued on the part of Neagle by the Attorney-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
attorney-general of California and Mr. Zachariah Montgomery appeared
upon behalf of the State, and briefs of Messrs. Shellabarger and
Wilson were also filed in its behalf.
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 directed 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 protection 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 questions of law and fact
in the case and was marked by that great ability and invincible logic
and by that clearness 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.[1]
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 mortification which he
suffered in being charged with having 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
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 temporarily prevented from doing so by
force, he completed the act as soon as this force was withdrawn,
and pursued 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 marshal 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 constitute the offense of an assault with a deadly
weapon, to go unchallenged, compels us to the charitable presumption
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 assault by Terry was commenced in the court-room, 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 session, 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 feckless 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 discussed at all the genuineness of the
marriage agreement. 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 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 enforce 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 judgment convicted a party or a witness,
of perjury, without furnishing the perjurer with a justification
for 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
unquestionably 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
newspaper, 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 degraded 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 Sharon--but that the executor
of his estate had the right to act--had a right to be substituted for
the deceased, 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 saying.
Towards the close of the decision Justice Field did make reference
to Mrs. Terry's testimony in the Superior 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 advantage
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 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. Montgomery'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 anybody 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 otherwise 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 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 counsel, 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 edition 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 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 consequence 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 chivalrous 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 intention, 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 justice of the Supreme Court of the United States with his
hand was ever certified to by an attorney and counsellor 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 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 misrepresenting
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 concealment 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 marshal 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 attorney-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 foundation, 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:
"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 ourselves, 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."
[1] NOTE.--Mr. Choate took great interest in the question
involved--the right of the Government of the United States
to protect its officers from violence 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, both he and Attorney-General Miller will receive
the thanks of all who love and revere our national government
and trust that its existence 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 consultations 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.
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 vindication 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
prosecutions 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.
The admirable conduct of the faithful deputy marshal, Neagle, in whose
small frame the power of a nation 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 hindrance 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 California statute concerning sheriffs, and
of the federal statute concerning marshals, by which the latter are
invested 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 degree.
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 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 administration 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 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 consequences that he finally braved the
gallows by attempting 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 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 hearsay. 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 protection placed over him by the
Executive branch of the Federal Government was unlawfully taken from
him and the protector incarcerated in jail. The constable 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 arrested 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 assassination 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.
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 accomplishment of their deadly purpose against
Justice Field. It was the Executive arm of the nation operating
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 Superior Court of the city of San Francisco. It will
be remembered that on the first trial in that court, presided over by
Judge Sullivan, a judgment was entered declaring that Miss Hill and
William Sharon had intermarried on the 25th of August, 1880, and had
at the time executed a written contract of marriage under the 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 reversal, 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, thereafter, or at any time, live or cohabit together as husband
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 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 William 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 William 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 insane 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 substituted 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 deceased millionaire.
*** End of this LibraryBlog Digital Book "Personal Reminiscences of Early Days in California with Other Sketches; To Which Is Added the Story of His Attempted Assassination by a Former Associate on the Supreme Bench of the State" ***
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