YubaRoots.com

Yuba County History

HISTORY OF THE LIFE OF STEPHEN J. FIELD

by Hubert Howe Bancroft

San Francisco, The History Company, Publishers, 1891

    In our investigations concerning the origin and under-currents of progress, we have frequently found ourselves in the wilderness alone with the products of civilization, the adjuncts thereof, being absent.  A community whose members, like the members of other communities, were born under the dominion of the law, suddenly awakes to the fact that it is living without law; that individuals thus thrown unexpectedly together, in a country where no law exists, must as best they may, become a law unto themselves.  Thus arose popular tribunals, being, in many instances the outcome of attempts to administer non-existent laws.

    Prior to the ownership of the United States, the strip of southern seaboard which constituted all that was occupied by civilization in Alta California, was ruled by priests and soldiers, with a small sprinkling of legal lights, whose official status was seldom above that of the ordinary alcalde.  Subsequently, and to the time when gold was discovered, the country was nominally under military rule, though the influence of Stockton at Los Angeles, Mason at Monterey, or Persifer Smith or Riley at San Francisco, was not felt far away from salt water.  The great interior, the valley of California, and the Sierra foothills, were practically without law or the administration of justice.

    Among the builders of our western commonwealths, there are none whose names are more worthy of being placed on record than those by whom were formulated the constitution and laws of California.  It was not until two or three years after the gold discovery that law and justice existed in their proper sense.  For the former we depended largely on the regulations framed by mining camps, and for the latter on the administration of Judge Lynch.  For forms a few home precedents sufficed, and for the settlement of differences courts were improvised, in which judge and jury, selected from the miners by the miners themselves, rendered their decisions with promptness, if not always with equity.  In 1851, however, there was enacted by the first legislature elected after the admission of California to statehood, a complete code of civil and criminal procedure, the provisions of which have, with slight modifications, remained in force until this day.  to the author of that code, Stephen Johnson Field, not only as its author, but as the founder of our judicial system, and for the third of a century himself a member of the judiciary, it is but due that more than passing mention should be made of his career.

    Mr. Field was born on the 4th of November 1816, at Haddam, Connecticut, where his father, the Reverend David Dudley Field, was an eminent congregational minister.  His grandfathers, Timothy Field and Noah Dickinson, were captains in the war of the revolution, the latter receiving his baptism of fire under General Putnam in the French and Indian war.  It was playfully remarked among the members of the family, that Stephen's mother, Submit Dickinson Field, had been wrongly named, since she was a woman of great energy and determination of character.  She is described by those who knew her as a singularly beautiful woman, possessing a graceful figure, an expressive countenance, and a happy, buoyant temperament, so that Grace or Hope would have been a more appropriate appellation than Submit.  Her children regarded her with the greatest affection, and felt that they inherited from her their ability to work hopefully in the midst of adverse circumstances.  Doubtless, too, they owe much of their success in life to her training and example.

"Happy he
With such a mother! faith in womankind
Beats with his blood, and trust in all things high
Comes easy to him."

    In the early half of the present century the minister's family was in most New England villages the centre of intellectual and social life.  If he were the graduate of a college, he expected to entertain the alumni at his simple board when they visited the parish, and scarcely a month passed without some distinguished guest being admitted to the inner circle of the parsonage.  When he travelled from town to town the abode of his brother clergyman was always open to him, as indeed was that of anyone with whom he chose to sojourn, for in every country house was one spare room at least, and in most of them were several.  Thus, while his income was small, and the external conditions of life were rude, neither he nor his family were denied the advantages of social intercourse.

    Perhaps a less thoughtful couple than Dudley Field and his wife might have allowed their children to sink below their own level in the little town of Haddam, where they lived during the first fourteen years of their married life, since it was neither a wealthy nor a cultivated place, its inhabitants being mainly composed of farmers, sailors, stone-cutters, and ship-builders.  But in this modest household, amid the stone-quarries of the Connecticut valley was always maintained as high a standard of culture and refinement as in the homes of the wealthy and long descended.  A graduate of Yale, the minister not only maintained his connection with his alma mater, but extended them to other associations, becoming vice-president of the historical society of Connecticut, and corresponding member of the historical societies of Massachusetts and Pennsylvania.

    Stephen, his seventh child, was frail and delicate, and that he survived the period of infancy was due to his mother's tender and constant care.  When he was three years old the family removed to a larger parish at Stockbridge, Massachusetts, and it was probably due to this change to the bracing air of the Berkshire hills that he grew to be a sturdy, active boy.  His life varied little from that of other minister's sons until he was thirteen years of age, when an event occurred by which his early career was largely determined.

    At that time the Greeks had but recently thrown off the Turkish yoke, and Byron's death at Missolonghi, and Marco Bozzaris' struggle for freedom on the classic field of Ilatoea were events still fresh in the minds of men.  It was then that his brother-in-law, the Reverend Josiah Brewer, for years a missionary to eastern countries, and one deeply interested in the education of Greek women, was about to set forth for Greece, the Aegean islands, and the coast cities of Asia Minor.  At the suggestion of David Dudley, his elder brother, who had ever at heart the interests of the younger members of the family, it was arranged that Stephen should accompany him, with a view to prepare himself for a professorship of Oriental languages.  Gladly did Mr. Brewer and his wife consent, for with both of them the boy was a favorite, and with him at their side they would feel less acutely the bitterness of their voluntary exile.

    Ever afterward Stephen retained the most vivid impressions of this trip to Greece, regarding it as one of the most interesting events of his life.  Here he learned to speak modern Greek fluently, keeping a journal in that language, and also acquired the elements of the Turkish, French, and Italian languages.  One of the effects of his visit to Athens and its vicinity were to make him tolerant of the religious opinions and customs of foreign nations, and to give him a breadth of mental vision which enabled him to comprehend and sympathize with the feelings and prejudices of alien races.

    Young Stephen was also an eye-witness of the devastations of the cholera which raged in Smyrna about this date, visiting the sick and dying in company with Mr. Brewer, and carrying medicines for their relief.  His brother, Henry Martyn, in his Record of the Family, thus describes in a single paragraph the horrors of the dread epidemic.  "In the terrible plague of 1831," he writes, "every one avoided his neighbor, as if the slightest touch carried contagion.  If two men met on the street, each drew away form the other, as if contact were death.  Sometimes they hugged the walls of the houses, with canes in their hands, ready to strike down any one who should approach.  All papers and letters coming through the mails were smoked and dipped in vinegar before they were delivered, lest they might communicate infection.  Even vegetables were passed through water before they were taken from the hands of the seller."

    After residing for more than two years in the east, Stephen, by the advice of Mr. Brewer, returned home to enter an American college and fit himself for life in an American community; for a longer residence abroad, while his character was forming, might not be of much advantage.  Entering William's college, Massachusetts, in 1833, he was selected to deliver the Greek oration in his junior year and the valedictory in the senior year, thus winning some of the highest honors in the gift of his alma mater.  Doubtless his acquaintance with modern Greek materially assisted him in the acquisition of the ancient tongue, for as Schliemann, the archaeologist, remarks, the study of that language is the master-key with which most readily to unlock the treasures of Homer, Sophocles, and Plato.

    Fortunately the plan of the professorship of Oriental languages seems to have been abandoned soon after his graduation, for, in the following spring, he began the study of law in the office of his brother David Dudley.  His legal training was interrupted by a severe illness, and for a time thereafter he was a teacher in the Albany female academy.  But even while teaching he devoted his spare hours to preparing for his chosen profession in the office of John Van Buren, then attorney-general of the state of New York.

    After Mr. Field was admitted to the New York bar, his brother admitted him into partnership, and for seven years they were associated in pleasant business relations.  Doubtless this partnership would have continued for some years longer, but that Stephen was infected with the restlessness of youth, feeling that he had not yet found his life-work, longing to revisit Europe, and lay aside for a time at least the cares of his profession.

    It happened that in June and November, 1845, the elder brother had written two articles, entitled "The Oregon Question," and the "Edinburgh and Foreign Quarterly on the Oregon Question," both of which were published in the Democratic Review, a noted political and literary magazine of that day.  While preparing these articles he had become familiar with the geography of the Pacific coast, and foresaw, in the event of the United States obtaining possession of California, the rapid development of the region around San Francisco bay, although the wildest imagination could hardly have foreshadowed the reality of its marvellous growth.  "If I were a young man I would go to San Francisco," he observed, offering to pay his brother's expenses and invest in property for his benefit.  But Stephen was intent on going to Europe.  Some time thereafter, while the New York regiment was preparing for its westward journey, the elder brother again referred to the matter, and proposed that Stephen should accompany it; but again he declined, for though strongly tempted by the offer, he was not yet ready to cast himself adrift in that direction.  Strange as it may seem in one so young and with his way still to make in the world, Europe, with her wealth of historic scenes and associations, with her works of ancient and modern art, was more attractive than the native wilds of California, with all her golden possibilities.  Thus, in June 1848, he again embarked for the old world.

    But the fates had already spun the web of his life with invisible thread, and he could not escape his destiny.  At Galignani's news-room, in Paris, he read in the New York Herald President Polk's message, officially announcing the discovery of gold in the newly acquired territory of California.  Over and over again, he read it, regretting that he had not accepted his brother's offer; but even as Lord Howard of Effingham, when news arrived that the Spaniards were in the English channel, directed his officers to finish their game of bowls before proceeding to attack the armada, so did our young traveller quietly complete his projected tour, visiting all the principal capitals of Europe, and returning to New York in October 1849.

    On November 13th of this year we find him on board the Crescent City, bound for Chagres, and crossing the Isthmus he continued his voyage on the steamer California, one of the patriarchs of the Pacific Mail company.  Although the ship was only of 1,000 tons burden, she carried 1,200 passengers, and such was the demand for berths that some of the steerage passengers sold their tickets for $750.  To make matters worse, the Panama fever in its worst form broke out on board the crowded vessel, and now, recalling his experiences in Smyrna, Mr. Field went fearlessly among the passengers, ministering to their wants.  By one of them, who later became a prominent San Francisco lawyer, it was never afterward forgotten that to his care and skill he owed his life.

    It was on the 28th of December, 1849, when the future chief-justice landed in San Francisco, his worldly effects consisting of the contents of his trunk, and for capital, the sum of $10, of which $7 were paid for the transportation of his baggage to the single room, some ten feet by eight, which he shared with two of his fellow-passengers.  For breakfast, and that the cheapest that could be had, he expended two of his remaining dollars, and then with a single dollar in his pocket set forth to make his fortune, a stranger in a strange land.   But he was not in the least dismayed; in fact, he had seldom been in higher spirits, and soon caught up the refrain that was upon every one's lips, "Is it not a magnificent country?"

    Certain of his fellow-passengers had barely stepped on shore when they were impaneled upon a jury, and received eight dollars each for their services.  Thinking of his solitary dollar, Field lingered in the court-room, and placed himself near the sheriff, in the hope of being called upon to do the state some service as a juror; but in vain; his time had not yet come.  So that day he spent in strolling through the town, by no means in disconsolate mood, but on the contrary, enjoying everything he saw.  As he passed down Clay street and had nearly reached the corner of Kearny, his attention was attracted by the sign "Jonathan D. Stevenson, Gold Dust Bought and Sold Here."  Then for the first time he remembered that his brother had given him a note against Stevenson for $400.  He had been well acquainted with this man in New York, and at once entering his office, they had a pleasant chat together, in the course of which Stevenson remarked:  "Ah, it's a glorious country!  I have made over two hundred thousand dollars here."  When Field heard this, he again shook hands with his friend, and felt the note burning in his pocket at the glad news.  A moment later he presented it.  But the face of him who dealt in gold-dust lengthened when he read the document which bore his signature, and his appearance was by no means that of a man who could meet with unconcern so trifling an obligation.  It is impossible to say what were the feelings of the other at that moment; but at last Stevenson exclaimed in a sharp voice:  "that's my signature," and began to calculate the interest.  Finally he paid Mr. Field the principal and interest, $440 in Spanish doubloons.

    Out of these funds Field paid $300 as one month's rent for a law office on the corner of Montgomery and Clay streets, but during that time his only client was a fellow passenger who requested him to draw up a deed.  He was fortunate enough, however, to sell, through an agent, some New York papers at a dollar a piece, from which he realized $34.

    Among his letters of introduction to various San Francisco firms, was one to the mercantile house of Simmons, Hutchinson, and company, who owned some property in the embryo town of Vernon, on the Sacramento river, and offered to sell him a number of lots on credit, giving him a ticket with which to proceed on their steamer McKim to Sacramento city.  Reaching that point, on the following day he embarked for Vernon on the steamboat Lawrence, a craft so small and crowded that she sank to within eighteen inches of the level of her deck, while the passengers were requested to remain quietly in their seats.

    It was the year of the great flood, and Vernon was under water; so the boat continued up the river to Nye's rancho near the junction of the Feather and Yuba rivers.  At this point forty or fifty of the passengers left the boat, and among them Mr. Field.  Here he found some five hundred people, most of them living in tents.  The travellers made their way to an old adobe building, in which was an office where a real-estate speculator had spread out on the counter a map of a proposed town which he called Yubaville.  Addressing Field, he urged him to buy some of the lots.  "Suppose a man puts his name down and then does not want to take the lots?" inquired Field.  "Oh, you need not take them if you don't want them," was the answer.  Thereupon he put down his name for sixty-five lots, the aggregate value of which as $16,250.  At the moment he had exactly $20 in his pocket.  Immediately the report spread around Yubaville that Stephen J. Field, a great capitalist from San Francisco, was investing heavily.  Two of the proprietors of the place, Frenchmen, named Covillaud and Sicard, when they found that the San Francisco capitalist could speak French fluently, expressed for him the warmest admiration, and insisted on showing him the town.  Mr. Field was not slow to observe that here was a promising site, at the head of steamboat navigation, easy of access to the mining camps, and destined soon to become a point of distribution for mining supplies.  In exchange for the courtesy extended to him, he handed the Frenchmen some copies of the New York Evening Post, in one of which was the following notice:

                       "Among the passengers leaving in the Crescent City to-day is Stephen J. Field, Esq., of this city, brother and 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."

    The next morning M. Covillaud came to Mr. Field in an excited manner, with the paper containing this notice in his hand.  "Ah, Monsieur!" he exclaimed, "are you indeed the Monsieur Field, the lawyer from New York, mentioned in this paper?"  It seemed that the two Frenchmen had purchased several leagues of land from Captain Sutter, but were obliged to wait for a lawyer before they could obtain a conveyance of their property.  Thus they were delighted to find in the new-comer what they so greatly desired, and at once engaged him to prepare the necessary documents, meanwhile despatching messengers to Sutter.  But, the deed being drawn, it was found there was no official before whom it could be formally executed, and no place or functionary where or by whom a record of real estate transactions might be preserved.  With his promptitude and fertility of resource, Field at once pointed out to the members of the new community the necessity of electing an officer for such purposes, and also to maintain order and settle disputes.

    His suggestions were made known, and immediately accepted with enthusiasm.  It happened that the frame of a house had been brought upon the steamer Lawrence, and on the next day was erected.  Here in the evening all the tent and cabin dwellers were assembled and Mr. Field made them a stirring speech, in which he set forth the natural advantages of the place, and showed the importance of organizing and establishing a government.  If one has ever watched the rise of a city in California and noted with what eagerness the inhabitants regard the increase of population, he will understand with what enthusiasm the project was received.  It was agreed to call a meeting before the adobe house the following morning, and Mexican forms still being prevalent in California law matters, two candidates were nominated for the office of alcalde - C. B. Dodson and Stephen J. Field.  Each of them had his supporters, and while Field was the favorite, there was one objection which, for the moment, threatened to prove fatal.  He was a new comer, having been in the town but three days, while Dodson had been there six days!  At this juncture, one William H. Parks, who was engaged in transporting miners' supplies, made a bet of a dinner with a friend that Field would be elected, and directed his eleven teamsters to work and vote for his man.  The election was hotly contested, but Field was finally chosen by a majority of nine.

    The next important question was as to the name which should be given the town.  Yubafield, Yubaville, and Circumdoro were the most popular ones proposed; but the matter was decided by a  plain, old-fashioned argonaut, who arose and gravely informed the meeting that there was an American woman in the camp, and that her first name was Mary; therefore he proposed the town should be called Marysville in her honor.  It would not have been the California of olden times, had not this proposition been unanimously adopted.  A certificate of election was made out in due form, and forwarded to E. O. Crosby, the prefect of the district, who advised Mr. Field to procure his appointment as justice of the peace, and so Americanize his office, which was done.  How far was the step from a Marysville justice of the peace to a Washington justice of the United States supreme court, the sequel will presently explain.  Here it need only be stated that after his election Mr. Field went to Sacramento, and was sworn into office as first alcalde by the judge of the court of first instance, on the 22d of January, 1850, just twenty-five days after his arrival in California.

    Property in Marysville rose rapidly in price, and within ninety days Mr. Field sold more than $25,000 worth of land, while still retaining the greater portion of his lots.  Purchasing in San Francisco some frame and zinc houses, he shipped them to Marysville and soon derived therefrom a rental of $1000 a month.  His income as alcalde was considerable, for though when acting as judge in criminal cases he received nothing, and in civil cases but little, his fees for affidavits, acknowledgments, and recording of deeds amounted to a very good revenue.  In the then disorganized condition of affairs, all sorts of questions were brought to him for settlement.  Controversies over the rates of wages, the expulsion of squatters, trials of criminals, even disputes between man and wife were brought under his jurisdiction.  Substantial justice was administered without strict regard to forms and precedents, which sometimes obstruct rather than promote the ends in view.  In the peace and good order maintained, and the respect shown for law, Marysville was the model town of California during the entire period that Mr. Field was chief magistrate.  He continued to perform the multiform duties of his office until superseded by the new officers of the state government.

    An now, as to the administration of justice, the quiet town of Marysville was destined to witness a new and somewhat lively dispensation.  Upon resuming his practice at the bar, Mr. Field paid a visit of courtesy to the newly appointed  judge of the eighth judicial district, William R. Turner, who had lived in Texas in the rough pioneer stages of its history, and was a violent pro-slavery man, arrogant, ignorant, of bad manners and worse morals.  Mr. Field presented him with copies of the latest issues of the New York Evening Post, and from this fact Turner inferred that he was an abolitionist, then deemed by the southerners the vilest of created beings.  Hence he deliberately determined to insult him whenever the opportunity should offer, and the occasion was not far to seek.  It chanced that the ex-alcalde was employed by Sutter, as counsel in the suit of Cameron vs. Sutter, then pending before Judge Turner, and a preliminary motion in the case was made by Field's associate, which was denied.  Surmising that a provision of the practice act applicable to the question had been overlooked by the court, Field arose and asked permission to read it.  But instead of according permission as a matter of course, Turner, in insulting tone and language, ordered the attorney to sit down; whereupon the advocate, in a respectful manner, excepted to the ruling of the court, and stated that he would appeal.  This added fuel to the flames of Turner's wrath, and in a loud and angry voice he shouted:  "Fine that man $200."  "Very well," quietly remarked the other, and for this he was sentenced to an additional fine of $300, and imprisonment for eight hours.  A similar response by the lawyer elicited another outbreak from the judge, this time with a fine of $400 and imprisonment for twelve hours.  A protest from the victim, that it was his right to appeal from the order of the judge, and that to take exception to a decision and give notice of appeal could not constitute contempt of court, was construed into an aggravation of the previous offending, and the judge cried out:  "I fine him $500 and commit him twenty-four hours - forty-eight hours, - turn him out of court, - subpoena a posse, - subpoena me!"  Field thereupon left the court-room, accompanied by his associate in the case, and was followed by the deputy-sheriff, who, at the express order of Turner, put him under lock and key, - that is, he locked up the ex-alcalde in his own office.  Being thus technically imprisoned, a writ of habeas corpus was sued out, and Field was brought before the county judge, Henry P. Haun, by whom he was discharged, the officer having no warrant for his arrest.  The proceeding coming to Turner's ears, he hurled vengeance upon all concerned, and particularly on Judge Haun, to whom he applied the vilest epithets, declaring he would teach that fellow his position as an inferior judge.

    When the district court next opened, Turner made an order that Field be disbarred, for suing out a writ of habeas corpus to secure his own release from imprisonment, and that two other attorneys be also disbarred for testifying upon the return of the writ before the county judge, whom he fined $50, and ordered imprisonment for forty-eight hours.  Haun paid his fine, and left the court-room, while Field was taken into custody by the sheriff.  Another writ of habeas corpus was issued, and Field a second time brought before the county judge.  On this occasion the sheriff, by the direction of Turner, proceeded to the court-room and while the judge was presiding over his own court, attempted to arrest him and drag him from the bench.  But the judge rose to the occasion, and stepping to a closet drew therefrom a navy revolver, pointed it at the sheriff, and declared he would shoot him dead if he persisted in enforcing the orders of Turner.  He also imposed a fine of $200 for contempt of court, and appointed a temporary bailiff, who promptly ejected the sheriff and his party.  In due time the matter of disbarment was brought before the supreme court, and Turner's orders were annulled.  During the interval, however, the effect of these disgraceful proceedings of Turner was to ruin the practice of Mr. Field.  Such was justice in the early days of Marysville and in the metropolis, and elsewhere in the state scenes equally outrageous were of no unfrequent occurrence.

    Upon the reorganization of the judicial districts, Turner was transferred from Yuba county, and Field was no longer brought in contact with him.  A few years later, when Mr. Field had become a member of the supreme court and the validity of Turner's election to his new district came before the appellate tribunal for decision, the former refused to sit at the hearing of the case, but left the decision to his associates.  Soon afterward Turner, who was surprised and overcome by the forbearance of one to whom, of malice aforethought, he had given serious and unprovoked offence, endeavored to effect a reconciliation; but the latter felt that the injuries and indignities he had suffered could not be lightly excused, and repelling the advances of his old enemy, simply remarked to him who acted as mediator that the world was wide enough for both, and that each one would go his own way.  In 1867, resolutions with a view to Turner's impeachment for gross judicial misconduct were introduced in the legislature, but action thereon was forestalled by his resignation, and soon afterward he ended his days an inmate of an inebriate asylum.

    It might have been supposed that after such a controversy, the result of which so thoroughly vindicated Mr. Field, there would be no similar experience in store for him.  But law, like all things human, is founded on antagonisms, and there was much feeling in California in those days between men from the north and those from the south.  In accordance with the provisions of the law of 1851, reorganizing the judicial districts of the state, the counties of Yuba, Nevada, and Sutter constituted the tenth judicial district, or which, through the influence of Judge Field, Gordon M. Mott was appointed by the governor the first judge.  In the autumn of that year, an election was held, at which William T. Barbour, a lawyer of Nevada county, was elected to succeed Mott, who refused to surrender his seat, on the ground that his successor could not be legally chosen until the election of 1852.  The views of the latter were upheld by Field, who appeared as his counsel when the question was brought before the supreme court.  Hence was aroused the most bitter hostility on the part of Mr. Barbour, one that was entirely unwarranted, was without fair ground of provocation, was without just cause or reason, for, as it will be remarked, Judge Field was acting only in his professional career, and as is the case with all reputable members of that profession, doing for the cause of his client everything that lay in his power.

    In the following year Barbour was again elected, when he began to use the most violent and abusive language against Mr. Field, who had labored zealously for his opponent.  The quarrel ran high, and finally the conduct of the judge became so utterly intolerable that there remained no alternative but to send him a challenge.  An hour or two later Charles S. Fairfax waited on Mr. Mott - the two being chosen as seconds - stating that, after consultation with his principal, the conditions proposed were a meeting that very evening in a room twenty feet square, the participants to be armed with Colt's revolvers and bowie knives.  Both seconds agreed that these terms were barbarous and unprecedented, but Barbour would listen to no others.  Judge Field, however, knew his man, and convinced that his bloodthirsty proposition was merely the subterfuge of a coward, instructed Mott to accept.  This being reported to Barbour, Fairfax presently returned with certain modifications of the terms.  First of all, his principal would agree to dispense with bowie knives; then for the first time it occurred to him that to fight in a room would be improper, because the firing might attract a crowd.  Would the challenger consent to other arrangements, solely, of course, with a view to avoid a disturbance of the public peace ?  Finally it was arranged that the meeting should take place the next morning in Sutter county, Barbour taking one of the Sacramento stages, and his opponent proceeding by private conveyance to the appointed rendezvous.  At the time and place agreed on, Field appeared on the ground, accompanied by his second, and soon afterward Barbour and Fairfax alighted from the stage, which then passed on some distance down the road.  But now occurred another change in the programme.  Instead of proceeding to business, Barbour declared that his judicial office forbade him to engage in a duel, but that in defense of his person he would kill his assailant ! with which valiant proclamation, he walked down the road to the stage and proceeded on his way to Sacramento, leaving his second, Fairfax, standing alone on the ground, in sore amaze at this unexpected but fitting conclusion to the drama.

    But the end was not yet.  Taking Fairfax into his carriage, Mr. Field returned to Marysville, where the incidents just narrated soon became known, and the conduct of Barbour was the occasion of much humorous and sarcastic comment.  A few squibs appeared in the Marysville Herald, at which Barbour was greatly enraged, and demanded the name of their author.  To oblige him, Field instructed the publisher to credit the authorship of the obnoxious paragraphs to himself, although in fact he knew nothing of them until they appeared in print.  A day or two afterwards, when in front of his office, he was suddenly accosted by Barbour, who placed a revolver near his head, exclaiming, "Draw and defend yourself."  Nothing daunted Field calmly informed him that he carried no weapon, and that he could do as he pleased.  But again, as in the case of his prototype, Bob Acres, the judge's courage failed, and like the Arab in Longfellow's poem, he "silently stole away."

    There was a number of witnesses to this affair, one of whom, a friend of Barbour's, Mr. L. Martin, wrote to Judge Field in March 1854, a letter, in which, among other things, he said:  "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 his intended duel in Sutter county, and knew that 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 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 wood, 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 in 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."

    About a year afterward Barbour attempted to explain, and as far as possible to excuse his conduct, and at a subsequent meeting between them expressed great regret at what had occurred.   Although, of course, no real esteem could be felt for such a man, Field was perfectly willing that here the matter should end.  When they met for the first time after an apology was made, he said, as they drank a glass of wine together:  "Here is to an act of oblivion, but no explanations."  Ever afterward Barbour spoke of him in the highest terms, both personally and professionally.

    These episodes in the life of Mr. Field, while displaying some of the strongest traits in his character, serve also, as he himself remarks, "to 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."

    Soon after the termination of his duties as alcalde, Judge Field received the nomination for the assembly from his district; and although not backed by any organized political party, made a vigorous and successful canvas.  Immediately after his election to this the first legislature chosen after the admission of California to statehood, he began the preparation of the law subsequently to be enacted, relating to  the judiciary.  Upon the assembling of that body, which took place on the first Monday of January 1851, at San José, he was appointed a member of the judiciary committee, and to it submitted a carefully prepared bill creating the judicial system.  The committee reported favorably, and it passed into law, remaining in force in all its essential features until the reorganization of the judiciary by the new constitution of 1879.  In fact, it may be said that fundamentally it is in force to-day.  Besides dividing the state into eleven judicial districts, in which the geographical and topographical conditions and relations of localities were carefully considered, the jurisdiction of the various courts, from that of justice of the peace to the supreme court, was specifically defined.

    Following this, in due logical order, came the civil practice act, now called the code of civil procedure.  The magnitude and importance of this work can only be appreciated by those who have studied the history of judicial procedure in England, and in the older states of the union.  Law reformers, from Jeremy Bentham to David Dudley Field, have devoted the highest ability and the widest learning, with unremitting labor, to the accomplishment of those changes which they felt to be necessary to the adequate and speedy administration of justice.  At this time David Dudley Field had been only partially successful in securing the adoption of the reformed methods of judicial procedure in New York, and the practice in civil cases in that state is still governed by rules drawn from different sources, - the code, the revised statutes, and the general principles deduced from decisions in common law and equity, besides the special rules promulgated by the various courts themselves.

    To frame this bill, as the one prepared by Stephen Field, required not merely a theoretical knowledge of the subject, drawn from books, and a practical acquaintance gained by experience and observation in court, but the power of clear and concise statement and definition.  The problem to be solved was to set forth the rules in language scientifically accurate, which should avoid metaphysical subtlety on the one hand and loose phraseology on the other.  That it was successfully solved is proved by the fact that it stood forty years after its compilation substantially as it came from the hand of its author, and that it has formed the basis of the codes of other states and territories.

    Next came the criminal practice act, now in force under the name of the penal code.  The object in view was to simplify the procedure, so that the community should be protected by the prompt and legal punishment of the offenders, while at the same time every safeguard was thrown around the accused, shielding him from the dangers of local prejudice and sudden popular fury.  Like the judiciary bill and civil practice act, this required ample knowledge of the subject and the faculty of clothing it in apt scientific phrase.  After devoting to this work the necessary labor, there was barely time to introduce the bill during the closing hours of the legislative session; there was not even time to read it, but such was the confidence reposed in its author, that the rules were suspended, and the bill was read by its title only and passed.  It then went to the governor who said he had not time to consider it before the adjournment of the legislature, and was disinclined to approve it without examination.  Thereupon Mr. Field, knowing how important it was that the bill should become law, in order that the efficiency of the measures already passed might not be impaired, urged the governor to sign it, and to this he finally consented on the personal recommendation of the author.

    Among the most beneficent provisions of the civil practice act were those relating to miners, and those exempting certain property from forced sale for the payment of debts.  The first required the courts to recognize and enforce the customs, rules, and usages of miners in actions respecting mining claims, providing such customs, rules, and usages were not in contravention of the laws of the state, or of the United States.  The second exempted from forced sale under execution furniture and books of $100 value; necessary wearing apparel, and provisions for one month; the implements, wagons, and teams of the farmer; the tools of the mechanic; the instruments and chests of the surgeon, physician, surveyor, or dentist, and the articles necessary for the work of the miners and laborers.

    "I never could appreciate," said Mr. Field, "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 ahs 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."

    Besides these most important measures, Field drafted and secured the passage of an act relating to county sheriffs, declaring and defining their duties and responsibilities in the execution of process, in the detention of prisoners, and as keepers of county jails.  To him is due the enactment of a law concerning divorce, in which, besides adultery, extreme cruelty, habitual intemperance, wilful desertion, and wilful neglect, were made sufficient causes.  He also drew up the charters of the cities of Marysville, Nevada, and Monterey, all of which were adopted.  Finally, he secured the passage of many necessary laws introduced by other members of the legislature, notably that concerning attorneys and counsellors-at-law, whereby they were effectually protected from the infliction of such injuries as he himself had suffered at the hands of Judge Turner, making it impossible to deprive a lawyer of his right to practice without notice of the charges against him, and full opportunity to be heard in his defense.  The principles embodied in this statute he afterward thoroughly vindicated, when he had become a justice of the supreme court of the United States, in the case of one Robinson, reported in 19 Wallace, in which, while fully upholding the courts in the just exercise of their powers to protect themselves by the summary process of contempt, he enforces the basic principle of all free government that no man shall be condemned unheard.

    His legislative duties completed, Mr. Field returned to Marysville, and declining all offers of political preferment, devoted himself exclusively to his profession.  Owing to his troubles with Turner, which, as I have said, completely destroyed his practice, and to the miscarriage of some of his business ventures, he found himself about $18,000 in debt, upon which he was obliged to pay interest at the rate of ten per cent per month, - his creditors with one exception, exacting from him their pound of flesh.  Many a man would have become disheartened, and have abandoned further effort; but he never for a moment faltered, denying himself all but the barest necessities of life until he could say that what he possessed was his own.  Gradually his practice increased, so that it became in time one of the most lucrative in the state, and in less than three years he had paid off all his debts, which, with the enormous rate of interest, aggregated the sum of $38,000.  In no instance did he ask for a reduction of that rate; nor was it offered to him, except in the case of a brother advocate, who holding his note for $450, refused to accept more than five per cent a month.

    At that time the Marysville bar included some names which have since become well-known throughout the state.  Among them were Richard S. Mesick, afterward district judge of the state of Nevada; Charles H. Bryan, for a short time judge of the California supreme court; Jesse O. Goodwin, author of the Goodwin act; William Walker, filibuster, and grey-eyed man of destiny; E. D. Wheeler, subsequently judge of the 19th district court, and Thomas B. Reardon, who became judge of the 14th district court, and presided at the second trial of Laura D. Fair, in place of Judge Dwinelle.

    Mr. Field was a safe counsellor and a model advocate, and his clients soon learned to repose confidence in his judgment.  He left nothing to chance, or to what has been facetiously styled "spontaneous combustion."  He had no faith in the vulgar conception of inspiration; to him, success signified the legitimate consequence of logical thought and untiring industry.  Not that he believed that thorough preparation was incompatible with such flashes of rhetoric as are evoked by the fervent heat of intellectual controversy.  Such masters of forensic eloquence as Erskine, Pinkney, Choate, and O'Conor - not to speak of the living - attained their proud preeminence in their profession only through constant and well-directed labor.  In a word, they had mastered the law, both as a science and an art.

    Such was Stephen J. Field at this early day, when everything pointed to his successful career as an advocate, and if he had declined all offers of promotion to the bench he might speedily have amassed an ample fortune.  But he had identified himself with the interests of the new state of California to such an extent that he preferred to take whatever position would best subserve the commonwealth.  At that time California needed good advocates less than she needed good judges.  Immense grants of land had been bestowed by the Mexican government upon a few favored individuals.  Some of them were comparatively well defined, while others, like that of Las Mariposas, which included Fremont's claim, were undetermined, and afterward the subject of bitter and protracted litigation.

    Settlers, squatters, and miners crowded into the state by the thousands, taking whatever land seemed to be unoccupied, often evicting the true owners, whom the United States had promised by treaty to protect.  In the words of Judge J. Black: "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 express condition that all private titles should be faithfully protected.  We made the promise.  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."

    Statutes had to be framed in respect to miners, which should protect their peculiar industry, and at the same time have due regard to the rights of the tillers of the soil; charters had to be drawn for new cities, and, in a word, all that goes toward the making of a civilized state had to be crowded into a single decade.  The condition of affairs when Field accepted the position of judge of the supreme court of California is thus described by a jurist of the day: -

    "The calendar was crowded with cases involving immense interests, and most important questions, the most various and peculiar litigation.  California was then, as now, in the development of her multiform material resources.  The judges were as much pioneers of law as the people of 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 a civil law, as adulterated or modified by Mexican provincialisms, usages, and habitudes, for a great part of the litigation; and there was the common law for another part, but what that was was to be decided from the conflicting decisions of any number of courts in America and England, and the 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 this 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 was 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 be well conceived what task even the ablest jurist would take upon himself when he assumed this office."

    In 1857, Mr. Field was elected judge of the supreme court of California for a term of six years, commencing January 1, 1858; but a vacancy occurred requiring an appointment for an unexpired term of three months next preceding the commencement of the term for which he had been elected.  Judge Field was thereupon pressed to assume at once the duties of his office, and to this he reluctantly consented, receiving his appointment from Governor Johnson, who was a political opponent, and taking his seat on the bench on the 13th of October 1857.  Some two years later, when Judge Terry, who in the mean time had become chief-justice, resigned in order to fight the celebrated duel with David C. Broderick, which created almost as much of a sensation throughout the land as did that of Hamilton and Burr, Mr. Field became chief-justice.

    It is not necessary to give an account of the many important cases decided by Judge Field during his term of five and a half years as judge of the state supreme court.  Among those decisions, however, may be mentioned the famous case of Biddle Boggs vs. Merced Mining company, in which was involved the title to a valuable portion of the Mariposa grant, claimed by Fremont.  A most elaborate, learned, and interesting discussion, by counsel and court, of English, Mexican, and American law, is contained in the report of the case, which comprises more than one hundred closely printed pages of the 14th volume of California Reports.  The legal acumen and close logical reasoning displayed therein affords matter of the deepest interest to the public, no less than to the professional reader.

    Among other cases worthy of mention are those of ex parte Neuman, 9 Cal. 502, and ex parte Andrews, 18 Cal. 680, in which the validity of Sunday laws was the subject of judicial consideration.  In the first case the court held that such laws were unconstitutional and void, as attempting to interfere with matters of religious belief.  Judge Field wrote a dissenting opinion, in the course of which he said: - -

    "Upon no subject is there such a concurrence of opinion among philosophers, moralists, and statesmen of all nations, as on the necessity of periodical cessations from labor.  One day in seven is the rule, founded on experience and sustained by science.  There is no nation, possessing any degree of civilization, where the rule is not observed, either from the sanctions of law or the sanctions of religion.  This fact has not escaped the observation of men of science, and distinguished philosophers have not hesitated to pronounce the rule founded upon a law of our race.

    "The legislature possesses the undoubted right to pass laws for the preservation of health and the promotion of good morals, and if it is of the opinion that periodical cessation from labor will tend to both, and thinks proper to carry its opinion into a statutory enactment on the subject, there is no power, outside of its constitution, which can sit in judgment upon its action.  It is not for the judiciary to assume a wisdom which it denies to the legislature, and exercise a supervision over the discretion of the latter.  It is not the province of the judiciary to pass upon the wisdom and policy of legislation; and when it does so it usurps a power never conferred by the constitution."   

    In the case of ex parte Andrews, the doctrines of his dissenting opinions, just quoted, were adopted and promulgated as the opinions of the supreme court, and have been followed ever since, despite the changing personnel and diverse political opinions of that tribunal.  The Sunday law, which was nullified by the decision in the Neuman case, was passed in April 1858; the second, which was upheld, was passed in May 1861, and remained in force until repealed by the act of February 8, 1883, at the beginning of the administration of Governor Stoneman.

    As in the case of Neuman, Judge Field deprecated any attempt on the part of the courts to interfere in any way with the exercise of powers belonging to the legislature, so in that of Houston vs, Williams, 13 Cal. 24, he vigorously repelled what he considered an encroachment by the legislature upon the rights of the judiciary.  The arguments which he put forward in support of his views have never been answered, for they are in fact unanswerable.

    Perhaps apart from establishing rules for the settlement of disputed land titles, of rights to mining claims, and of the powers of municipal corporations, his influence was most potent in the interpretation of the system of pleading and practice, which as we have seen he introduced as legislator.  Especially in the case of Green vs. Palmer, 15 Cal, judicial sanction was given to the seminal principles of the reformed and rational system of pleading, and that case has ever since remained one of the prominent guide-posts in this branch of the science of law.

    When a tenth United States judicial district was created, and an additional justice of the supreme court of the United States was to be appointed, the entire Pacific coast delegation, democrats and republicans alike, urged President Lincoln to appoint Judge Field.  He was immediately nominated by the president, and his nomination was unanimously confirmed by the senate.  Though his commission was dated March 10, 1863, he declined to take his seat until some two months later, for many important cases were pending in California which he considered it his duty to decide.  The oath of office was administered on the eighty-second anniversary of his father's birthday, who, in full possession of all his faculties, rejoiced in the advancement of his son.

    Of the many tributes of respect paid to him by bar and bench on withdrawing from the highest judicial position in the gift of the state, one only, and that of the briefest, will suffice.  Said Judge Baldwin, for several years his associate:  "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."

    Since Field has been on the bench of the supreme court of the United States, Taney, Chase, Waite, and Fuller have occupied the positions of chief justice, and among his associates were Wayne, Catron, Nelson, Grier, Clifford, Swayne, Miller, and Davis.  It is pertinent to give only a passing notice to the long list of cases that have been decided since 1863 by that august tribunal.  Among those of immediate interest and of far-reaching consequence, growing out of the war between the north and south, may be mentioned the test oath cases, in one of which a Roman Catholic priest was convicted and sentenced to pay a fine of $500, because he had taught the doctrines of his church without taking the test oath.  In the other, A. H. Garland was prohibited from practising his profession as a lawyer, because of his participation in the rebellion.  In both instances Justice Field delivered the opinion of the court, holding the legislation under which these penalties had been inflicted to be in violation of the constitution of the United States.

    In the suits known as the slaughter-house cases, he dissented form the view of the majority, and in the course of his opinion made an unexpected application of the 14th amendment of the constitution of the United States.  A monopoly had been granted to a corporation composed of seventeen persons, to exercise the exclusive privilege of slaughtering cattle for the city of New Orleans.  The attempt was made to justify the act under the pretense that it was a sanitary measure, and a proper exercise of the police powers of the state.  We quote the following from his opinion, as it is one of the best examples of the clear, concise style which characterizes all his decisions:

    "It is contended in justification of the act in question that it was adopted in the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the state.  That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is experienced on a great variety of subjects, and in almost numberless ways.  All sorts of restrictions and burdens are imposed under it, and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be safely assailed in a judicial tribunal.  With this power of the state and its legitimate exercise, I shall not differ from the majority of the court.  But under the pretense of prescribing a police regulation, the state cannot be permitted to encroach upon any of the just rights of the citizen, which the constitution intended to secure against abridgment.

    "If exclusive privileges of this character can be granted to a corporation of seventeen persons, they may in the discretion of the legislature be equally granted to a single individual.  If they may granted for twenty-five years, they may be equally granted for a century, and in perpetuity.  If they may be granted for the landing and keeping of animals intended for sale or slaughter, they may be equally granted for the landing and storing of grain and other products of the earth, or for any article of commerce.  If they may be granted for structures in which animal food is prepared for market, they may be equally granted for structures in which farinaceous or vegetable food is prepared.  They may be granted for any of the pursuits of human industry, even in its most simple and common forms.  Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained, there is no monopoly in the most odious form which may not be upheld.

    "A prohibition to him to pursue certain callings open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude. . . . The counsel of the plaintiffs in error therefore, contend that 'whenever a law of the state, or a law of the United States, makes a discrimination between classes or persons, which deprives the one class of their freedom on their property, or which makes a caste of them to subserve the power, pride, avarice, vanity, or vengeance of others, their involuntary servitude exists within the meaning of the 13th amendment."

    The decision of the supreme court in respect to the privacy of mail matter, in which Field wrote the opinion, is of great interest to every citizen of the United States.  Travellers who have had their private correspondence tampered with by foreign governments will particularly appreciate the force of his reasoning.  After showing that congress has a right to prescribe what kind of matter may be transmitted by means of public mails, he states the rights of the people to a safe and secret transportation of matter entrusted by them to the post office, in the following words:

    "Letters and sealed packages of this kind in the mail are as fully guarded from examination, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.  The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, whatever they may be.  Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household.  No law of congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mails; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the constitution."

    Not infrequently, it has been the fate of Judge Field to render decisions which at the time occasioned strong feelings of resentment, but which the sober second thought of the people fully approved.  A case of this kind, which excited the most bitter hostility on the Pacific coast, was that rendered in what is popularly styled the queue case, Ah How vs Matthew Nunan, sheriff.  At that time the wave of popular feeling against the Chinese had reached its highest point, and many outrages were committed upon them during the agitation.  How Ah How had been imprisoned for violating the cubic-air ordinance, and the sheriff, in obedience to an ordinance of the board of supervisors of the City of San Francisco, cut off his queue.  This ordinance, which purported to be merely a sanitary regulation of the municipality, required that every person confined in the county jail should have his hair cut off within two inches of his head, and although general in its terms, was directed specially against the Chinese.  Every one knows that the deprivation of his queue is one of the greatest calamities that can befall a Chinaman, since it is considered as not only disgracing to him in this world, but as endangering his happiness in the next.  Suit was brought by the Chinaman, against the sheriff, in the United States circuit court, to recover damages for the injury caused by the loss of his queue.  The determination of the case involved the validity of the ordinance referred to, and in deciding the question Judge Field delivered an opinion in which he declared the ordinance to be special legislation, directed against the Chinese, by which they were denied the equal protection of the laws; that it was in violation of the fourteenth amendment of the constitution of the United States, and therefore void.

    In the United States supreme court he has, for more than a quarter of a century, borne his share of its labors.  His opinions, among other things, relate to test oaths, military commissions, confiscations, pardon and amnesty, legal tender notes, legislative power of the insurgent states during the civil war, protection of sealed matters in the mails from inspection by officials, power of the state to control compensation for use of private property, relation between general and state governments, powers and liabilities of corporations, interstate commerce, taxation, trust character of directors of corporations, and the use of running waters on public lands.

    Among the more important of these opinions the following may be mentioned:  In the test oath cases, Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall, 333.  In cases relating to interstate commerce, Welton v. Missouri, 91 U.S. 275; County of Mobile v. Kimball, 102 U.S. 691; Gloucester Ferry Co. v Pennsylvania, 114 U.S. 196; Sherlock v. Alling, 93 U.S. 99; Escanaba v. Chicago, 107 U. W. 678; Miller v. Mayor of New York, 109 U.S. 385; Cardwell v. American Bridge Co., 113 U.S. 205; and Huse v. Glover, 119 U.S. 543.  In cases on questions growing out of the civil war, Williams v. Bruffy, 96 U.S. 176; Coleman v. Tennessee, 97 U.S. 509; Pacific Railroad v. United States, 120 U.S. 227; Dow v. Johnson, 100 U.S. 158; and the Tarble Case, 13 Wall, 397.  On constitutional questions particularly affected by the fourteenth amendment, Barbier v. Connelly, 113 U.S. 27; Soon Hing v. Crowley, 113 U.S. 703; Missouri Pacific Railway Co. v. Humes, 115 U.S. 512; Hayes v. Missouri, 120 U.S. 65.  On state, city, and county bonded indebtedness, Pillsbury v. Louisiana, 105 U.S. 278; Hartman v. Greenhow, 102 U.S. 672; United States v. New Orleans, 98 U.S. 381; Broughton v. Pensacola, 93 U.S. 266.  On patents of the United States for lands and mining claims, Smelting Co. v. Kemp, 104 U.S. 636; Steel v. Smelting Co., 106 U.S. 447.  On mining claims and water rights, Jennison v. Kirk, 98 U.S. 453; Atchison v. Peterson, 20 Wall. 507; Dasey v. Gallagher, 20 Wall. 670; on the power of a state to prescribe the conditions on which foreign corporations may do business within its limits, Paul v. Virginia, 8 Wall. 168; on proceedings in state courts against non-resident debtors, Pennoyer v. Neff, 95 U.S. 714; on the invalidity of contracts for the use of influence with public officials, Oscanyan v. Arms Co., 103 U.S. 261; on federal jurisdiction over lands used for public purposes of the United States government within the states, Fort Leavenworth Co. v. Lowe, 114 U.S. 525; on the protection of sealed matter in the mails, Ex parte Jackson, 96 U.S. 727; and many others of equal importance.

    On the first day of January, 1873, the four codes of the state of California - political, civil, penal, and civil procedure - went into operation.  Many defects soon became apparent, and the necessity for a revision by competent hands was imperative.  In choosing a revisory commission, the difficulty confronting the governor was to find jurists qualified for the position, who would consent to serve.  When it was learned that Judge Field would be one of those to undertake this important work, general satisfaction was felt by the profession and by the public.  With him were the associated Jackson Temple and John W. Dwinelle, who entered upon the performance of their duties with promptitude, and the beneficent results of their joint labors have been enjoyed by the people of this commonwealth to the present time.  Defects were supplied, ambiguities removed, and important changes and additions recommended, most of which were adopted by the legislature.

    Among those taking a prominent part in the settlement of the disputed presidential election of 1876, when the country seemed, for a time, to be on the verge of revolution, Judge Field holds an honorable place.  It will be remembered that at that election Tilden had received a majority of about a quarter of a million of the people's votes, and if to these were added the electoral votes of either Louisiana, South Carolina, or Florida, in all of which states he had received considerable majorities, he would have had a majority in the electoral college.  To avoid this result, the returning boards of those states proceeded to canvass the votes, and by rejecting the suffrages of entire communities, which had given large majorities for Tilden, the will of the people was set aside, and certificates of election given to the Hayes electors.  Other certificates were given by the proper officials to the Tilden electors.  Votes were cast by both sets of electors and forwarded to Washington.  The question soon arose as to which were to be counted, and who was to decide between the two.  The senate being republican and the house of representatives democratic, the difference in opinion upon these questions were irreconcilable.  Hot-headed partisans on either side were urging extreme measures, and bloody conflicts seemed imminent.

    As a means of peacefully and lawfully determining the matter, and electoral commission was created, to which was confided the exercise of all the powers of both senate and representatives.  The commission was composed of five senators, five representatives, and five judges of the supreme court, among them being Justice Field, and to it was entrusted the right of determining which of the two candidates, Tilden or Hayes, was lawfully entitled to the electoral votes of the states mentioned, and also of the state of Oregon.  Of the opinions delivered by the members of this commission, upon the questions considered by it, none were more learned in constitutional law, or more judicious in tone, than that of Judge Field, whose vote was cast with the minority.

    And now comes an episode in the career of Judge Field, which, though reflecting the utmost credit on himself, I would, on account of its painful character, have fain expunged from the story of his life.  In the celebrated case of Sharon vs. Sharon, the plaintiff, Sarah Althea Hill, claiming to be the defendant's wife, and suing for a divorce, with a division of the community property, a decision in her favor was reversed in the supreme court, and the case was afterward dismissed by Judge McShafter, in the superior court.  Meanwhile, another suit was instituted, in which William Sharon, a well-known capitalist and ex-congressman, asked for a decree declaring the marriage contract, produced at the former trial a forgery, and enjoining Miss Hill from asserting any claims thereunder.  After a full hearing and consideration of the case, David S. Terry acting as counsel for the defendant, judgment was given for the plaintiff.

    But before this decision was rendered Mr. Sharon died, after conveying the bulk of his property to trustees, and appointing his son, Frederick W. Sharon, executor for the remainder of his estate.  A few months later Miss Hill was married to Mr. Terry, and not only refused to surrender the marriage contract for cancellation, as ordered by the circuit court, but continued to assert her claim under it as before.  Thereupon the executor and the trustees of the estate of Sharon filed bills of revivor in the circuit court, whereby they sought to revive the suit in their names, that the decree already rendered them might be employed for the protection of the estate of which they were custodians.  Resistance was made to these proceedings by Terry and his wife, who attempted to assail the validity of the decree, on the ground that the circuit court had no jurisdiction to hear and determine the original suit.  Upon hearing of the bills of revivor Judge Field presided in the circuit court, though he had nothing to do with any of the previous suits or proceedings between the parties.  With him sat judges Sawyer and Sabin.  After a patient hearing of the case, Mr. Field prepared an exhaustive opinion, which, on the 3d of September, 1888, he delivered in the United States circuit court, in San Francisco.

    The courtroom was crowded, and besides member of the bench and bar were many prominent citizens who had come to hear Judge Field's opinion on a subject which had been so long before the community.  Among the assemblage was the defendant and her husband, who seated themselves near the judges, at a table on which the former placed the satchel she usually carried.  Judge Field began reading the opinion of the court, and no sooner did Mrs. Terry catch the tenor of the decision that she started to her feet, her eyes flashing with indignation.

    "Be seated, madam," said the judge. "This court has been bought by Newlands," cried the woman - Newlands being Sharon's son-in-law.  "Judge Field, how much did you get?"  Marshal Franks was thereupon directed to remove her from the courtroom, but as he stepped forward to execute his orders she sprang at him, striking him in the face with both hands and using insulting language.  At this juncture Terry interposed, and placing himself in front of the marshal, exclaimed, "No man shall touch my wife; get a written order."  When Franks attempted to take her by the arm, Terry struck him a violent blow in the mouth, which broke one of his teeth.  The latter then thrust his hand into his bosom for the purpose of drawing a bowie-knife which he carried on his person, but was seized by several officers and forced into a chair.  With the assistance of one of his deputies, the marshal succeeded in removing Mrs. Terry from the room, she mean while resisting, scratching, and striking him, using violent language, denouncing the judges, threatening Franks, and charging him with having stolen the diamonds and bracelets from her wrists.  She called also for her satchel, which had, in the mean time, been taken possession of by one of her friends.  This the marshal secured, after placing the woman in his office, and on being opened it was found to contain a self-acting Colt's revolver, with five chambers loaded, the sixth being empty.

    After Mrs. Terry had been removed her husband arose to follow her, and as he emerged from the courtroom again drew his bowie-knife, and brandishing it above his head, threatened to kill any one who should prevent him from rejoining his wife.  He was promptly disarmed, and both were detained in custody in the marshal's office.  As stated in the affidavit of one of the officers who had witnessed the transaction:  "Terry's conduct throughout this affair was most violent.  He acted like a demon; and all the time while in the corridor, and before the counter in the marshal's office, he used loud and violent language, which could be plainly heard in the courtroom, and in fact throughout the building.  Mrs. Terry resisted with all her power the efforts of the marshal in taking her from the courtroom, and he was compelled to remove her forcibly.  While being removed, she screamed and shouted her abuse of the judges, saying they had been bought, and so forth, and also abused Marshal Franks, calling him 'a hireling, paid to do his dirty work.'"

    The scene over, Judge Field proceeded calmly to finish reading his opinion.  Orders were then made adjudging Terry and his wife guilty of contempt of court, and directing the former to be imprisoned for six months and the latter for thirty days in the Alameda county jail.  A few days afterward Terry filed a petition, asking for the revocation of the order committing him to prison, in which he stated that he had done nothing to encourage his wife in what he termed "her acts of indiscretion," and that he did not intend to do or say anything disrespectful to the court.  On the contrary, he claimed that he had not drawn his knife for the purpose of attacking any one; that he had merely attempted to defend himself and wife from unlawful assault, and that the marshal had interfered with him while he "was making an honest effort to peaceably and quietly enforce the order of the court, so as to avoid a scandalous scene."   

    In disposing of this petition, the court, speaking through Judge Field, remarked:  "The misbehavior of the defendant, David S. Terry, in the presence of the court, in the courtroom, 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 the 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.  This resistance and beating of its officer was the highest possible indignity to the government.  When the flag of a 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 or extenuated.  There is nothing in his petition which would justify any remission of the imprisonment.  The law imputes an intent to accomplish the natural result of one's acts, and when those acts are of a criminal nature it will not accept, against such implication, the denial of the transgressor.  No one would be safe if a denial of a wrongful or criminal intent would suffice to release the violator of law from the punishment due to his offenses.

    "Why did the petitioner come into court with a deadly weapon concealed on his person?  He knew that, as a citizen, he was violating the law, which forbids the carrying of concealed weapons, and as an officer of the court - and all attorneys are such officers - was committing an outrage upon professional propriety, and rendering himself liable to be disbarred.

    "Therefore, considering the enormity of the offenses committed, and the position of the petitioner once held in the state, which aggravates them to a degree not imputable to the generality of offenders, the court, with a proper regard to its own dignity, the majesty of the law, and the necessity of impressing upon all men that forcible resistance to the lawful orders of the courts of the United States will not go unpunished, however high the offending parties, cannot grant the prayer of the petitioner; and it is accordingly denied."

    Application for a writ of habeas corpus was made by Terry to the supreme court of the United States; but this was also denied, upon the facts stated in the petition.  An appeal to the same court from the decision in Sharon vs. Terry - which was the occasion of the proceedings herein described - was also taken by the defendants, and the judgment affirmed, the court holding that the appeal was "frivolous and unwarranted by the facts of the case."

    After the order was made committing him for contempt, Terry said to Marshal Franks, or in his hearing:  "Field thinks that when I get out he will be away; but I will meet him when he comes back next year, and it will not be a pleasant meeting for him."  Mrs. Terry threatened several times that she would kill both Field and Sawyer.  These facts were sworn to by Marshal Franks, upon the hearing of Terry's petition for a revocation of the order committing him to prison.  Subsequent and similar threats were made by Mr. and Mrs. Terry against the judges, and the danger of a murderous attack being made upon Judge Field, on his return to California, was the subject of general public discussion.  The violent temper and reckless defiance of the law shown by the whole life of Terry, and the character of his wife, were well known.  In addition to this, Mrs. Terry had assaulted Judge Sawyer some time after her release from imprisonment, while in a Los Angeles train, pulling his hair and swinging her parasol over his head.  Her husband was in a seat near by facing the judge, witnessing the acts of his wife, and tacitly approving of them.

    Taking all these facts into consideration, many of the friends of Judge Field were anxious that he should not return to California in 1889.  But he was not to be deterred from the path of duty by threats of personal violence.  When urged to arm himself, in order to guard against attack, he said:  "I do not, and will not, carry arms, because when it is known that the judges of our courts are compelled to carry arms for defense against assault, in consequence of their judicial action, it will be time to dissolve the courts, consider government a failure, and let society lapse into barbarism."

    Although the judge was thus resolved to confront the danger of which he had been apprised, and yet to adopt no special precautions to protect himself, measures were taken to maintain the law and prevent further attacks on the judiciary.  The department of justice at Washington had been informed of the condition of affairs, and attorney-general Miller had instructed Marshal Franks to detail an officer for the special service of protecting Judge Field while in California.  For the performance of this service the marshal appointed David Neagle.  Mr. Crowley, the chief of police in San Francisco, also detailed two officers to guard the judge from attack while holding court in that city.

    On the afternoon of Tuesday, August 13, 1889, Judge Field boarded the Los Angeles train bound for  San Francisco.  At Fresno, an intermediate station, about three o'clock on the following morning, Terry and his wife boarded the same train, but occupied another car.  Their presence was soon discovered by officer Neagle, then in attendance on Judge Field, whom he notified of the proximity of the Terrys.

    Arriving at Lathrop the following morning, Field, with Neagle, stepped from the train to a restaurant adjoining the station and ordered breakfast.  A few minutes later Terry and his wife entered, but the latter catching sight of Judge Field, immediately left the room, her husband taking his seat.  Meanwhile, one of the proprietors, named Stackpole, had been watching events, and was evidently nervous at Mrs. Terry's absence.  Stepping to Terry's side he asked him whether he thought she would be so indiscreet as to do anything desperate.  "Why?" responded Terry, "who is here?"  "Judge Field," answered the proprietor.  Terry looked intently at Judge Field for a moment, and then turning to Stackpole said, "Go and watch her!  Go and watch her!"  Terry then arose and passed through the room behind Judge Field, Stackpole supposing he had gone to join his wife.  When he reached the back of Field's chair, he paused for an instant, and then, without the least notice, struck him on both sides of the face.  Neagle sprang to his feet and ordered him to stop, but heedless of the command he placed his hand in his bosom, as if to draw his knife, whereupon Neagle shot him dead.  Thus did the slayer of Broderick meet with the fate which he had himself intended for one whose only offense was that he discharged, without fear or favor, the sacred duties of his office.

    When Mrs. Terry saw her husband lying prostrate on the floor, she was seized with frenzy.  Stopping but a moment to wail over the dead, she strode forth and passed up and down the platform, appealing to the crowd to avenge the death of Terry.  In the midst of the confusion, Field and Neagle quietly returned to the train, and proceeded upon their journey.  Neagle, however, was arrested before reaching San Francisco, charged with murder, and confined in the jail at Stockton.  A day or two afterward, Judge Field was himself arrested upon the same charge, made by Mrs. Terry before a Stockton justice, but was released by the United States circuit court upon habeas corpus, and the prosecution dismissed by the district attorney of San Joaquin county, under the direction of the attorney-general of the state.  The governor had also addressed a letter to the latter official, in which he urged him to save the state from the burning disgrace of a malicious prosecution of a United States supreme judge, upon the charges of such a woman.

    A writ of habeas corpus was also sued out on behalf of Neagle, to whose release a strenuous resistance was made.  Elaborate arguments were presented, and after a thorough investigation of the facts, and a full consideration of the case, Sawyer delivered an opinion concluding with an order for the discharge of Neagle.  This decision caused considerable adverse comment on the part of a portion of the people and the press, who said that Neagle should have been tried and acquitted by a jury, as in ordinary cases of homicide occurring within the state.  An appeal was therefore taken to the supreme court of the United States, where Sawyer's judgment was approved.

    In the opinion of that tribunal, as rendered by Justice Miller, it was stated that the denunciations of Terry and his wife from the time of their imprisonment until the death of the former, "were open, frequent, and of the most vindictive and malevolent character."  While being carried to the jail at Alameda, Mrs. Terry threatened, a number of times that she would kill both Judge Field and Judge Sawyer.  Her husband, who did nothing to restrain her, declared that the world was not wide enough to keep him from finding Judge Field and horsewhipping him, and that if he resented it he would kill him.  In an interview with a newspaper editor, Terry had said that Justice Field had put a lie on record about him, and when he met him, if he did not take it back and apologize, he would slap his face.  The impression made by the conversation was that he was seeking to force a quarrel upon him and thus bring on a fight.

    In concluding, Judge Miller remarked:  "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 so doing, and that he is not liable to answer in the courts of California an account of his part in that transaction."

    In connection with the narrow escape of Judge Field may be mentioned a still narrower escape, which occurred more than a quarter of a century before.

    In October, 1865, before leaving California to attend the approaching term of the supreme court, Mr. Field was requested by the proprietor of the Rulofson gallery to sit for his photograph.  He consented, and a large sized photograph was taken, which Rulofson desired to add to his collection of portraits of distinguished persons.  The photographer then said that he would make some small copies of the picture, and send them to Judge Field at Washington.  On the morning of the 13th of January following, Judge Delos Lake, of San Francisco, called on Mr. Field in Washington, and asked if any letters had been received for him, as he had directed his mail to be sent to his care.  As the messenger had not brought the mail, when Field left his apartments at the hotel he requested Lake to accompany him, remarking that they would probably find it.  Accordingly, they proceeded to his rooms, and there found the California mail lying on a center-table.

    Among the letters and papers he noticed a small package, addressed to Honorable Stephen J. Field, Washington, D.C., and with the words "per steamer," on one side.  The name had been cut from the California Reports, and the "Washington, D.C." from some newspaper, and the printed slips had been fastened on the package with mucilage, while on the back was a printed slip, "From George H. Johnson's pioneer gallery, 645 and 649 Clay street, San Francisco."  Until he observed this slip Mr. Field supposed that the package was from Rulofson.  His next thought was that it might be a Christmas present for his wife; so he decided to open it, intending, if that were the case, to seal it up again and remail it to her at New York, where she was spending the holidays.  He accordingly tore off the cover and began to raise the lid, but very cautiously.  He was struck with the black appearance of the inside and called Lake's attention to it.  Lake looked over his shoulder and quickly exclaimed, "Don't open it, it's a torpedo!"

    The package was then taken to the capitol, and shown to one of the deputy clerks of the supreme court.  They dipped the package in water, and left it to soak for some minutes; then taking it to a safe place, and shielding themselves behind one of the columns of the capitol, threw the package violently against the wall.  The hinge of the lid was broken and the contents of the package exposed.  It was truly an infernal machine, the product of a most diabolical ingenuity.  It consisted of twelve cartridges, about an inch in length, imbedded in a paste covered with fulminating powder, and a connection with a bunch of friction matches and a slip of sandpaper was so arranged that in opening the box the matches would be ignited and the whole exploded.  There was a newspaper slip glued to the inside of the lid, containing the following words:  "The City of San Francisco vs. United States.  Judge Field yesterday delivered the following opinion in the above case."  Then followed several lines of the opinion.

    It was evident that it was the work of some one whose interests had been affected by the decision.  Every effort was made by the police of San Francisco to detect the criminal, but without avail.  The mystery still remains unsolved.  Judge Field could never understand why he opened the box with such deliberation, since an infernal machine was the very last thing that entered his thoughts.  Certainly it was not through fear, for neither in the aspect nor character of the man is such weakness indicated.

    The personal appearance of Judge Field is striking, commanding the attention of the casual passer-by, as well as of the thoughtful observer.  With features such as the phrenologist loves to study, he combines the mien and bearing of the ideal magistrate.  Off the bench, as well as on it, he is suave and urbane in manner.  His gestures are graceful, and his voice lends additional charm to the matter of his discourse.  It may be readily conceived, therefore, that with his store of knowledge, drawn from so varied an experience, coupled with considerable power of dramatic and humorous narrative, he is most charming in social intercourse, and that his hosts of friends are bound to him with more than bonds of steel.

    In 1859 he was married, at San Francisco, to Miss Sue Swearingen, and though childless their wedded life has been of the happiest.  Mrs. Field has accompanied her husband upon his many journeys across the continent, to and from this great empire of the Pacific, which owes so much to his civic virtues and juristic wisdom.  She has also accompanied him on his visits to the old world, where the name of Judge Field has long been associated with legal and scientific progress.  It need hardly be said that their home is the abode of hospitality, culture, and refinement.

    No better proof of his official eminence and private worth could be given, than that which was displayed at the celebration of the centennial anniversary of the supreme court in February 1890.  Respected most by those who know him best, he was chosen by his illustrious associates to speak for them on that occasion.  That he had earned this high tribute to his character and ability, was demonstrated by the thoughtful and eloquent address delivered by him, to the delight of all.  For twenty-eight years of the century that has passed, since the institution of that great tribunal, Judge Field has served his country as a justice of the supreme court of the United States.  The law of the land, in recognition of the value of such services, authorizes him to cease from his labors, and to draw the full salary to which he is now entitled, so long as he may live.  But he has declined to avail himself of this right, and still, with eye undimmed and natural force unabated, performs his arduous duties; and it is said by the profession that one of the ablest opinions ever rendered by him was delivered in 1891, in Rose v. McIntyre, respecting the jurisdiction of consular tribunals.

    In looking back upon the judicial work of Judge Field, it will be found that one of his strongest characteristics has been the fearlessness with which he has asserted what he believed to be the law, no matter how violent the opposition he encountered, extending as this sometimes did to harsh personal attacks.  For this courage, both physical and moral, was demanded.  The former is not uncommon; the latter is the greater and rarer virtue.  That Judge Field possesses his full share of physical courage has been demonstrated by the incidents of his early career in California as already related, and by many others that might be related.  Like a certain English judge, if he had desired popularity, it has been that popularity which follows, not that which is run after.  His own self-respect has always been dearer to him than popular favor gained by unworthy device, or cowardly subservience to local passion and sectional prejudice.                                     

[Note:  Stephen Johnson Field died April 9, 1899 and is buried at Rock Creek Cemetery in Washington, D.C.]

BACK TO HISTORY INDEX PAGE

©2008  Kathy Sedler   ALL RIGHTS RESERVED