But notwithstanding all this, when I turned my face towards Marysville

I was, in a pecuniary sense, ruined. I had barely the means to pay my

passage home. My ventures, after my expulsion from the bar, in June,

1850, had proved so many maelstroms into which the investments were

not only drawn but swallowed up. My affairs had got to such a pass

that before I left Marysville for the Legislature I felt it to be my

duty to transfer all my real property to trustees to pay my debts,

and I did so. And now when I stepped upon the landing in Marysville my

whole available means consisted of eighteen and three-quarter cents,

and I owed about eighteen thousand dollars, the whole of which bore

interest at the rate of ten per cent. a month. I proceeded at once to

the United States Hotel, kept by a Mr. Peck, who had known me in the

days of my good fortune. "My dear Mr. Peck," I said, "will you trust

me for two weeks' board?" "Yes," was the reply, "and for as long as

you want." "Will you also send for my trunks on the steamer, for

I have not the money to pay the carman." "Certainly," the good man

added, and so the trunks were brought up. On the next day I looked

around for quarters. I found a small house, thirty feet by sixteen,

for an office, at eighty dollars a month, and took it. It had a small

loft or garret, in which I placed a cot that I had purchased upon

credit. Upon this cot I spread a pair of blankets, and used my valise

for a pillow. I secured a chair without a back for a wash-stand, and

with a tin basin, a pail, a piece of soap, a toothbrush, a comb, and

a few towels, I was rigged out. I brought myself each day the water

I needed from a well near by. I had an old pine table and a

cane-bottomed sofa, and with these and the bills which had passed the

Legislature, corrected as they became laws, and the statutes of

the previous session, I put out my sign as an attorney and

counsellor-at-law, and began the practice of my profession.

Soon afterwards I found my name mentioned as a candidate for the State

Senate. The idea of returning to the Legislature as a Senator

pleased me. The people of the county seemed to favor the suggestion.

Accordingly I made a short visit to neighboring precincts, and finding

my candidacy generally approved I went to work to make it successful.

At the election of delegates to the county convention, which was to

nominate candidates, a majority was returned in my favor. Several of

them being unable to attend the convention, which was to be held at

Downieville, a distance of about seventy miles from Marysville, sent

me their proxies made out in blank to be filled with the name of any

one whom I might designate. To one supposed friend I gave ten proxies,

to another five, and to a third two. When the members met, just

previous to the assembling of the convention, it was generally

conceded that I had a majority of the delegates. But I had a new

lesson in manipulation to learn. Just before the opening of the

convention my supposed friend, who had the ten proxies, was approached

by the other side, and by promises to give the office of sheriff

to his partner--an office supposed to be worth thirty thousand a

year--his ten votes were secured for my opponent. The one to whom

I had given five proxies was promised for those votes the county

judgeship. So when the convention voted, to my astonishment and that

of my friends, fifteen of my proxies were cast for my opponent, Joseph

C. McKibbin, afterwards a member of Congress, who acted so fearlessly

when the Kansas question came up. I was accordingly beaten by two

votes.

For the moment I was furious, and hunted up the man who had held my

ten proxies, and had been seduced from my support. When I found him

in the room of the convention, I seized him and attempted to throw

him out of the window. I succeeded in getting half his body out, when

bystanders pulled me back and separated us. This was fortunate for

both of us; for just underneath the window there was a well or shaft

sunk fifty feet deep. The following morning I left Downieville,

returned to my office and loft at Marysville, and gave my attention to

the practice of the law. My business soon became very large; and, as

my expenses were moderate, within two years and a half I paid off all

my indebtedness, amounting with the accumulations of interest to

over thirty-eight thousand dollars. Part of this amount was paid by

a surrender of the property mortgaged, or a sale of that previously

assigned, but the greater part came from my earnings. I paid every

creditor but one in full; to each I gave his pound of flesh, I mean

his interest, at ten per cent. a month. I never asked one of them to

take less than the stipulated rate. The exceptional creditor was Mr.

Berry, a brother lawyer, who refused to receive more than five per

cent. a month on a note he held for $450. By this time I had become so

much interested in my profession as to have no inclination for office

of any kind. On several occasions I was requested by influential party

leaders to accept a nomination for the State Senate, but I refused.

I am inclined to think that I had for some time a more lucrative

practice than any lawyer in the State, outside of San Francisco. No

such fees, however, were paid in those days as have been common in

mining cases since the discovery of the silver mines of Nevada and the

organization of great corporations to develop them.

The Bar of Marysville during this period, and afterwards while I

remained in that city--which was until October, 1857--was a small,

but a very able body of men. Many of its members have since attained

distinction and held offices of honor and trust. Richard S. Mesick,

who settled there in 1851, became a State Senator, and after his

removal to Nevada, a District Judge of that State. He ranks now among

the ablest lawyers of the Coast. Charles H. Bryan, who settled there

the same year, was an eloquent speaker, and in his forensic contests

gave great trouble to his opponent whenever he got at the jury. He

was on the Supreme Court of the State for a short period, under the

appointment of Governor Bigler. Jesse O. Goodwin, of whom I have

already spoken, settled in Marysville in 1850. He was a ready speaker,

and sometimes rose to genuine eloquence. He was distinguished in

criminal cases. As already stated, he was elected District Attorney

in 1850, and afterwards became County Judge, and is now State Senator.

Gabriel N. Swezy, who settled there in 1850, was learned in his

profession, and quick of apprehension. Few lawyers could equal him

in the preparation of a brief. He afterwards at different times

represented the county in the Assembly and the Senate of the State.

William Walker, who afterwards figured so conspicuously in the

filibustering expeditions to Nicaragua, and was called by his

followers "the grey-eyed man of destiny," had an office in Marysville

in 1851 and '52. He was a brilliant speaker, and possessed a sharp but

not a very profound intellect. He often perplexed both court and jury

with his subtleties, but seldom convinced either. John V. Berry, who

came to Marysville from the mines in 1851, was a fine lawyer, deeply

read in the law of adjudged cases. He died in 1853 from poison given

to him in mistake by a druggist. Edward D. Wheeler, who came there in

1850, and Thomas B. Reardon, who came in 1853, were both men of strong

minds. Mr. Wheeler represented Yuba County at one time in the Senate,

and is now the District Judge of the Nineteenth District, at San

Francisco. He is regarded as among the ablest and best of the State

Judges. Mr. Reardon has been a District Judge for some years in the

Fourteenth District, greatly respected by the profession for his

ability and learning. Isaac S. Belcher, who came to Marysville at a

later period--in 1855, I believe--was noted for his quiet manners and

studious habits. He has since been District Judge, and has worthily

filled a seat on the bench of the Supreme Court of the State, where he

was greatly respected by his associates and members of the bar. Edward

C. Marshall, the brilliant orator, who at one time represented the

State in Congress, had his office in Marysville in 1855 and '56. He

occasionally appeared in court, though he was generally occupied in

politics, and in his case, as in nearly all others, the practice

of the law and the occupation of politics did not always move

harmoniously together.

Charles E. Filkins, afterwards County Judge; Charles Lindley,

afterwards also County Judge and one of the Code Commissioners; Henry

P. Haun, the first County Judge, and afterwards appointed to the

United States Senate by Governor Weller; N.E. Whitesides, afterwards

a member of the Legislature from Yuba, and Speaker of the House; F.L.

Hatch, now County Judge of Colusa; George Howe, afterwards Treasurer

of the County; and Wm. S. Belcher, who afterwards rendered good

service to the public as a School Commissioner, also practiced at the

Marysville bar with success.

Charles E. DeLong, afterwards a member of the State Senate, and our

Minister to Japan, and Henry K. Mitchell, afterwards a nominee of

the Democrats for the U.S. Senate in Nevada, were just getting a good

position at the bar when I left, and gave evidence of the ability

which they afterwards exhibited. Others might be named who held fine

positions in the profession.

These mentioned show a bar of great respectability, and I may add

that its members were, with few exceptions, gentlemen of general

information and courteous manners. The litigation which chiefly

occupied them and gave the largest remuneration related to mines and

mining claims. The enforcement of mortgages and collection of debts

was generally--by me, at least--entrusted to clerks, unless a contest

was made upon them.

There was one case which I recall with pleasure, because of the result

obtained in face of unconcealed bribery on the other side. The subject

of the suit was the right to a "placer" mine in Yuba River, at Park's

Bar. Its value may be estimated from the fact that within two or three

weeks after the decision of the case, the owners took from the mine

over ninety thousand dollars in gold dust. The suit was brought before

a justice of the peace, and was for an alleged forcible entry and

detainer, a form of action generally adopted at the time for the

recovery of mining claims, because the title to the lands in which

the mines were found was in the United States. It was prosecuted as

a purely possessory action. The constable whose duty it was to summon

the jurors had received the sum of two hundred dollars to summon

certain parties, named by the other side. This fact was established

beyond controversy by evidence placed in my hands. And whilst I was in

bed in one of the tents or canvas sheds at the Bar, which the people

occupied in the absence of more substantial buildings, I heard a

conversation in the adjoining room--I could not help hearing it, as

it was carried on without any attempt at concealment, and the room was

only separated from me by the canvas--between one of the jurors and

one of the opposite party, in which the juror assured the party that

it was "all right," and he need not worry as to the result of the

suit; his side would have the verdict; the jury were all that way.

On the next day, when the case was summed up, the saloon in which the

trial was had was crowded with spectators, most of whom were partisans

of the other side. I addressed the jury for over three hours,

and after having commented upon the evidence at length and shown

conclusively, as I thought, that my client was entitled to a verdict,

I said substantially as follows: "Gentlemen, we have not endeavored to

influence your judgment except by the evidence; we have not approached

you secretly and tried to control your verdict; we have relied solely

upon the law and the evidence to maintain our rights to this property.

But the other side have not thus acted; they have not been content

that you should weigh only the evidence; they have endeavored to

corrupt your minds and pervert your judgments; they have said that

you were so low and debased that although you had with uplifted hands

declared that so might the ever-living God help you, as you rendered

a verdict according to the evidence, you were willing, to please them,

to decide against the evidence, and let perjury rest on your souls.

I know that you [pointing to one of the jurors] have been approached.

Did you spurn the wretch away who made a corrupt proposal to you,

or did you hold counsel, sweet counsel with him? I know that you

[pointing to another juror] talked over this case with one of the

other side at the house on the hill last night, for I overheard the

conversation--the promise made to you and your pledge to him. In the

canvas houses here all rooms are as one; the words uttered in one

are voices in all. You did not dream that any but you two were in the

tent; but I was there and overheard the foul bargain."

At this thrust there was great excitement, and click, click, was heard

all through the room, which showed a general cocking of pistols; for

every one in those days went armed. I continued: "There is no terror

in your pistols, gentlemen; you will not win your case by shooting

me; you can win it only in one way--by evidence showing title to the

property; you will never win it by bribery or threats of violence. I

charge openly attempted bribery, and if what I say be not true,

let the jurors speak out now from their seats. Attempted bribery, I

say--whether it will be successful bribery, will depend upon what may

occur hereafter. If, after invoking the vengeance of Heaven upon their

souls should they not render a verdict according to the evidence, the

jurors are willing to sell their souls, let them decide against us."

This home-thrust produced a great sensation. It was evident that the

jury were disturbed. When the case was submitted to them, they were

absent only a few minutes. They returned a verdict in our favor.

Some of them afterwards came to me and admitted that they had been

corruptly approached, but added that they were not low enough to be

influenced in their verdict in that way. "Of course not," I replied;

though I had little doubt that it was only the fear of exposure which

forced them to do right.

I have said that in those days everyone went armed; it would be more

correct to say that this was true in the mining regions of the State

and when travelling. I, myself, carried a Derringer pistol and a

Bowie-knife until the Summer of 1854, though of course out of sight.

I did so by the advice of Judge Mott, of the District Court, who

remarked that, though I never abused a witness or a juror, or was

discourteous to any one in court, there were desperate men in the

country, and no one could know to what extremity they might go, as I

would not be deterred by any considerations from the discharge of

my whole duty to my clients. So, until the Summer of 1854, I carried

weapons. And yet they were not such provocatives of difficulty as some

of our Eastern friends are accustomed to think. On the contrary,

I found that a knowledge that they were worn generally created a

wholesome courtesy of manner and language.

I continued to occupy my small office and slept in its loft through

the Summer and Fall of 1851, and felt quite contented with them. Twice

I was summarily dislodged, being threatened by a fire on the other

side of the street. On one occasion a most ludicrous incident

occurred, which I cannot recall without a smile. A little after

midnight we were aroused, on the occasion referred to, by a loud

thumping at our door, accompanied by a cry of "fire." My loft was

shared with three others, and at the cry we all leaped from our cots

and two of our number seizing whatever was convenient and portable

carried it out of the house to a distance of about one hundred yards,

where gathered a multitude of people, fleeing before the flames with

all sorts of baggage, trunks, chairs, beds, and utensils of every kind

which they had brought from their houses. I hastily threw the papers

of sundry suits and a dozen law books, recently purchased, into a box,

and with the assistance of the other occupant of my loft, carried it

off. Just as we reached the crowd, a pair of young grizzly bears which

the owner had kept in a cage near by were let loose, and they came

towards us growling in their peculiar way. At their sight, there was

a general _stampede_ of men, women, and children, in all directions.

Boxes and everything else portable were instantly dropped, and such

an indiscriminate flight was never before seen except from a panic in

battle.

THE BARBOUR DIFFICULTY.

When the bill of 1851, dividing the State into new judicial districts,

became a law, there were several candidates for the office of Judge

of the Tenth Judicial District, which comprised the counties of Yuba,

Nevada, and Sutter. Henry P. Haun, the County Judge of Yuba, was one

candidate; John V. Berry, a lawyer of the same county was another;

and Gordon N. Mott, a lawyer of Sutter County, was a third. My first

choice was Berry; but, finding that he had very little chance, I gave

what influence I had in favor of Mr. Mott, and he received from the

Governor the appointment of Judge of the new district.

In the Summer of 1851, the Governor issued his proclamation for the

Fall elections, and, among others, for an election to fill the office

of Judge of the Tenth District. I had supposed--and there were

many others who agreed with me--that Judge Mott's term under his

appointment would continue until the election of 1852. But there

being some doubts about the matter and the Governor having issued

his proclamation for an election, candidates were nominated by the

conventions; and at the ensuing election one of them, William T.

Barbour, a lawyer of Nevada County, received a majority of the votes

cast and was declared elected. When he came, however, to demand

the office, Judge Mott expressed his opinion that there had been no

vacancy to be filled and declined to surrender. This led to a suit

between them. The question involved being exclusively one of law, an

agreed case was made up and presented to the Supreme Court, and that

tribunal decided in favor of Barbour. A report of the case is given in

the 3d California Reports, under the title of People, ex rel. Barbour,

vs. Mott.

In the case I appeared as counsel for Judge Mott and argued his

cause. This offended Judge Barbour, and he gave free expression to his

displeasure. Afterwards, when his term for the vacancy was about to

expire and a new election was to be held, he presented himself as

a candidate for a second term. It was my opinion that he was not

qualified for the position, and I therefore recommended my friends to

vote for his opponent. For some weeks previous to the election I was

absent from the district; but I returned two days before it was to

take place and at once took a decided part against Barbour and did all

I could to defeat him. This action on my part, in connection with my

previous zeal in behalf of Judge Mott, led Barbour to make some very

bitterly vituperative remarks about me, which being reported to me, I

called on him for an explanation. Some harsh words passed between

us at the interview. The result was that Barbour refused to make any

explanation, but gave me a verbal challenge to settle our difficulties

in the usual way among gentlemen. I instantly accepted it and

designated Judge Mott as my friend.

In half an hour afterwards Judge Mott was called upon by Mr. Charles

S. Fairfax as the friend of Barbour, who stated that Barbour had been

challenged by me, and that his object in calling upon Mott was

to arrange the terms of a hostile meeting. Mott answered that he

understood the matter somewhat differently; that the challenge, as he

had been informed, came from Barbour, and that I, instead of being the

challenging, was the accepting party. Fairfax, however, insisted upon

his version of the affair; and upon consulting with Mott, I waived the

point and accepted the position assigned me. Fairfax then stated

that Barbour, being the challenged party, had the right to choose

the weapons and the time and place of meeting; to all of which

Mott assented. Fairfax then said that, upon consultation with his

principal, he had fixed the time for that evening; the place, a room

twenty feet square, describing it; the weapons, Colt's revolvers and

Bowie-knives; that the two principals so armed were to be placed at

opposite sides of the room with their faces to the wall; that they

were to turn and fire at the word, then advance and finish the

conflict with their knives. Mott answered that the terms were unusual,

unprecedented, and barbarous, and that he could not consent to them.

Fairfax admitted that they were so; but replied that they were those

Barbour had prescribed. He would, however, see Barbour and endeavor

to obtain a modification of them. Soon afterwards he reported that

Barbour still insisted upon the terms first named and would not agree

to any other.

When Mott reported the result of his conference with Fairfax, I at

once said that Barbour was a coward and would not fight at all. I knew

perfectly well that such terms could come only from a bully. I saw

that it was a game of bluff he was playing. So I told Mott to accept

them by all means. Mott accordingly called on Fairfax and accepted the

terms as proposed, and gave notice that I would be on hand and ready

at the time and place designated. This being reported to Barbour,

Fairfax soon afterwards made his appearance with a message that his

principal would waive the Bowie-knives; and not long afterwards he

came a second time with another message that it would not do to have

the fight in the room designated, because the firing would be heard

outside and attract a crowd. In accordance with my instructions, Mott

assented to all the modifications proposed, and it was finally agreed

that the meeting should take place the next morning in Sutter County.

I was to take a private conveyance, and Barbour was to take one of the

two daily stages that ran to Sacramento. At a specified place we

were to leave our conveyances and walk to a retired spot, which was

designated, where the hostile meeting was to take place.

The next morning, accordingly, I took a carriage, and with my friend

Judge Mott drove down to the appointed place. After we had been there

some time the first stage appeared and stopped. Soon after the second

stage appeared and stopped, and Judge Barbour and Mr. Fairfax got out.

But instead of proceeding to the designated place, Barbour declared

that he was a judicial officer, and as such could not engage in a

duel. At the same time he would take occasion to say that he would

protect himself, and, if assaulted, would kill the assailant. With

these words, leaving Fairfax standing where he was, he walked over to

the first stage, and mounting rode on to Sacramento. Seeing Fairfax

standing alone on the ground I sent word to him that I would be happy

to give him a place in my carriage--an invitation which he accepted,

and we then drove to Nicolaus, where we breakfasted, and thence

returned to Marysville.[1]

The conduct of Barbour on the ground, after his fierce and savage

terms at the outset, produced a great deal of merriment and derision;

and some very sharp squibs appeared in the newspapers. One of them

gave him great annoyance, and he inquired for its author. I told the

editor of the paper in which it appeared that if it was necessary to

protect the writer, to give my name, although I did not write it, or

know beforehand that it was to be written.

On the following morning, whilst in front of my office gathering up

kindling-wood for a fire, and having my arms full--for each man was

his own servant in those days--Barbour came up and, placing a cocked

navy revolver near my head, cried out, "Draw and defend yourself." As

I had not observed his approach I was taken by surprise, but turning

on him I said, "You infernal scoundrel, you cowardly assassin--you

come behind my back and put your revolver to my head and tell me to

draw; you haven't the courage to shoot; shoot and be damned." There

were at least ten witnesses of this scene; and it was naturally

supposed that having advanced so far he would go farther; but as soon

as he found I was not frightened, he turned away and left me. It is

impossible to express the contempt I felt for him at that moment for

his dastardly conduct, a feeling which the spectators shared with me,

as they have since often stated.[2]

I do not give these details as having any importance in themselves;

but they illustrate the semi-barbarous condition of things in those

early days, and by comparison show out of what our existing condition

has been evolved, and how far we have advanced. I give them also for

the reason that Barbour afterwards wrote a letter to Turner, which

the latter published, referring to the affair, in which he boasted

of having given me a "whipping." How far his boast was warranted the

above facts show.

For a long time afterwards he expressed his bitterness towards me in

every possible way. He did not take Turner's plan of expelling me from

the bar; but he manifested his feelings by adverse rulings. In such

cases, however, I generally took an appeal to the Supreme Court, and

in nearly all of them procured a reversal. The result was that he

suddenly changed his conduct and commenced ruling the other way. While

this was his policy, there was hardly any position I could take in

which he did not rule in my favor. At last I became alarmed lest I

should lose my cases in the appellate court by winning them before

him.

About a year afterwards he sent one of his friends to ask me if I was

willing to meet him half-way--stating that my conduct in court had

always been courteous, and he was satisfied that he had done me

injustice. I answered that I was always willing to meet any one

half-way, but in this case it must be without explanations for the

past. This condition was accepted; accordingly we met, and taking

a glass of wine, I said, "Here is to an act of oblivion, but no

explanations." For a long time no allusion was made by either to the

old difficulties. But at last he insisted upon telling me how

tales had been brought to him, and how they exasperated him; and he

expressed great regret for what had taken place; and to make amends,

as far as he was able, for what he had written about me, he sent me

the following letter:

"MARYSVILLE, _Dec. 22, 1856_.

"Hon. S.J. FIELD.

"DEAR SIR: On yesterday I learned through our mutual friend

Charles S. Fairfax, Esq., that Judge W.R. Turner has recently

issued a publication which contains a letter of mine, written

him some four years ago. I have not been able to procure a

copy of this publication, and I have entirely forgotten the

language used; in truth I do not remember to have written him

on the subject of yourself or otherwise; but I suppose I must

have done so, and have given expressions of opinion that I

have long since ceased to entertain, and to invectives that I

have no disposition to justify. You will recall that, at the

time referred to, there unfortunately existed between us

feelings of deep hostility; and I may at the time have used

harsh terms indicative of my then feelings, which I regret and

do not now approve, if they are as represented by others."

"Judge Turner has taken an unwarranted liberty in publishing

the letter, be it of what character it may. He never requested

my permission for this purpose, nor did I know that it was his

intention."

"Trusting that this explanation may be satisfactory, I

remain,"

"Very respectfully yr. obt. servant,"

"WM. T. BARBOUR."

He ever afterwards, as occasion offered, spoke of me in the highest

terms as a gentleman and lawyer. My resentment accordingly died out,

but I never could feel any great regard for him. He possessed a fair

mind and a kindly disposition, but he was vacillating and indolent.

Moreover, he loved drink and low company. He served out his second

term and afterwards went to Nevada, where his habits became worse, and

he sunk so low as to borrow of his acquaintances from day to day small

sums--one or two dollars at a time--to get his food and lodging. He

died from the effects of his habits of intemperance.

In stating the result of the intended hostile meeting with him, I

mentioned that when he proceeded on his way to Sacramento, he left his

second, Mr. Fairfax, standing alone on the ground, and that I

invited the latter to take a seat in my carriage. From this time the

intercourse between Mr. Fairfax and myself became more frequent than

it had been previously, and a friendship followed which continued as

long as he lived. He was not sparing in his censure of the conduct of

his principal, whilst his language was complimentary of mine. In a few

months I became quite intimate with him, and I found him possessed of

a noble and chivalric spirit. With great gentleness of manner, he had

the most intrepid courage. His fidelity to his friends and devotion to

their interests attached them strongly to him. He was beloved by all

who knew him. No man in the State was more popular. He represented

the county of Yuba in the Legislature two or three times, and at

one session was Speaker of the Assembly. When the land office at

Marysville was established in 1855, he was appointed Register; and in

1856, he was elected Clerk of the Supreme Court of the State. It was

my good fortune to aid him in securing both of these positions. At my

suggestion, Mr. McDougal, a Member of Congress from California,

urged the establishment of the land office, and obtained for him the

appointment of Register. In 1856, when he sought the clerkship of the

Supreme Court of the State, I became a delegate from Yuba County

to the State Convention, and made his nomination for that office

my special object, and with the aid of the rest of the delegation,

succeeded in obtaining it.

Two or three incidents which I will relate will illustrate the

character of the man. It was either in the session of 1854 or 1855,

I forget which, that a petition was presented to the Assembly of

California on the part of some of the colored people of the State,

requesting that the laws then in force, which excluded them from being

witnesses in cases where a white person was a party, might be repealed

so as to allow them to testify in such cases. At that time there was

a great deal of feeling throughout the country on the subject of

slavery, and any attempt to legislate in behalf of the colored people

was sure to excite opposition, and give rise to suggestions that its

promoter was not sound on the slavery question. The presentation

of the petition accordingly stirred up angry feelings. It created a

perfect outburst of indignation, and some one moved that the petition

should be thrown out of the window; and the motion was passed almost

unanimously. If I recollect aright, there was but a single vote in the

negative. I was standing by Mr. Fairfax when he was informed of

the proceeding. He at once denounced it, and said, in energetic

terms--"This is all wrong--the petition should have been received. If

my horse or my dog could in any way express its wishes to me I would

listen to it. It is a shame that a petition from any one, black or

white, should not be received by the Legislature of the State, whether

it be granted or not." I was greatly impressed at that time with

the manliness of this expression in a community which looked with

suspicion on any movement in favor of extending any rights to the

colored race.

On another occasion, some years afterwards, when I was Judge of the

Supreme Court of the State and he was the clerk of the court, there

was a good deal of complaint against Harvey Lee, the reporter of the

court, who was appointed to the office by Governor Weller. I believe

that Lee was instrumental, but of this I am not certain, in getting a

law passed which took the appointment of the reporter from the court

and gave it to the Governor. He was an inferior lawyer, and, of

course, had very little practice. The appointment, therefore, to which

a fair salary was attached, was eagerly sought by him. His reports,

however, were so defective that an effort was made by the judges to

get the law repealed and have the appointment restored to the court.

This led to a bitter feeling on his part towards the judges, and in a

conversation with Mr. Fairfax he gave vent to it in violent language.

Mr. Fairfax resented the attack and an altercation ensued, when Lee,

who carried a sword-cane, drew the sword and ran it into Fairfax's

body. Fortunately it entered the chest above the heart. Withdrawing

the sword Lee made a second lunge at Fairfax, which the latter

partially avoided so as to receive only a flesh wound in the side. By

this time Fairfax had drawn his pistol and covered the body of Lee, as

he was raising his sword for a third thrust. Lee, seeing the pistol,

stepped back and threw up his arms exclaiming, "I am unarmed"--though

he had only that moment withdrawn his sword from the body of Fairfax,

and it was then dripping with blood. "Shoot the damned scoundrel,"

cried the latter's friend, Samuel B. Smith, then standing by his side.

But Fairfax did not shoot. Looking at Lee, whose body was covered

with his pistol, while the blood was trickling from his own person,

he said, "You are an assassin! you have murdered me! I have you in my

power! your life is in my hands!" And gazing on him, he added, "But

for the sake of your poor sick wife and children I will spare you." He

thereupon uncocked his pistol and handed it to his friend, into whose

arms he fell fainting. He had known the wife of Lee when a young girl;

and, afterwards, in speaking of the affair to a friend, he said, "I

thought my wife would be a widow before sundown, and I did not wish to

leave the world making another." All California rang with the story

of this heroic act. It has its parallel only in the self-abnegation of

the dying hero on the battle-field, who put away from his parched lips

the cup of water tendered to him, and directed that it be given to a

wounded soldier suffering in agony by his side, saying, "His need is

greater than mine."

During the war his sympathies, as was the case with most Southerners

in California, were with his people in Virginia. He told me on one

occasion that he could not but wish they would succeed; but, he said;

"Though I am a Virginian by birth, I have adopted California, and

whilst I live in a State which has taken her stand with the Northern

people, I cannot in honor do anything, and I will not, to weaken her

attachment to the Union. If my health were good I should leave the

State and return to Virginia and give my services to her; but, as that

is impossible, I shall remain in California, and, whilst here, will

not be false to her by anything I do or say."

These incidents, better than any elaborate description, illustrate the

character of the man. He was a lineal descendant of the great Fairfax

family which has figured so conspicuously in the history of England

and of Virginia. He was its tenth Baron in a direct line. But

notwithstanding the rank of his family he was a republican in his

convictions. He loved his country and its institutions. He was

himself more noble than his title. He came East to attend the National

Democratic Convention in 1868 at the head of the delegates from

California. After the Convention, he spent some months among his

friends and relatives at the old family residence in Maryland. At

this time the seeds of consumption, which had long been lurking in

his system, began to be developed, and he was taken down with a severe

illness which proved fatal. He became so ill as to be unable to walk,

and was conveyed to Baltimore to procure the best medical attendance;

and there he died on the 4th of April, 1869, in the arms of his

devoted wife, who had come from California to be with him in his last

hours. His body was brought to Washington and interred within sight

of the Capitol, near Hock Creek Church, in which his ancestors had

worshipped.

I have mentioned that when Fairfax was stabbed by Lee he fell into

the arms of Mr. Samuel B. Smith. This gentleman I had known slightly

before my difficulty with Judge Barbour; but the intimacy which sprung

up between Fairfax and myself, after that affair, brought me more in

contact with Mr. Smith, who was his constant companion. Mr. Smith

came to California from New Jersey in 1849, and passed through some

stirring scenes during that and the following year. He came with Mr.

John S. Hagar, who was afterwards State Senator, District Judge, and

United States Senator, and was engaged with him in the mines in the

winter of 1849-'50. In 1850 he settled in Sutter County; and in the

fall of 1852 was elected State Senator from that county. Having become

more intimately acquainted with him after he was elected Senator, I

requested him to introduce a bill into the Legislature, revising and

amending the one which I had originally drawn concerning the courts

and judicial officers of the State; and he cheerfully consented to do

so, and took great interest in securing its passage. Indeed, it was

through his influence that the bill became a law. Many circumstances

threw us together after that, and I learned to appreciate his manly

character, his generous disposition, and his great devotion to his

friends. Finally, in the fall of 1854, we agreed to form a partnership

after my return from the Eastern States, which I then proposed to

visit. After the Barbour affair the course of my professional life was

much the same as that of any other lawyer. My business was large and

I gave to it my unremitting attention. In 1854 I determined to go East

to see my parents and brothers and sisters, who had never been out of

my mind a single day since I left them in 1849. Accordingly, I

went East, and after passing a few months with them I returned to

California in January, 1855. After that I continued to practice my

profession, with Mr. Smith as my partner, until the spring of 1857,

though during this period he went to Washington as Commissioner of the

State to obtain from Congress the payment of moneys expended by her

in suppressing the hostilities of Indians within her borders, and

was absent several months. In April of that year we dissolved our

partnership. A few months afterwards I was nominated for the bench of

the Supreme Court of the State, and was elected by a large majority.

There were two candidates besides myself for the position, and 93,000

votes were polled. Of these I received a majority of 36,000 over each

of my opponents, and 17,000 over them both together.[3] The term to

which I was elected was for six years, commencing January 1st, 1858.

In September, 1857, Hugh C. Murray, then Chief Justice, died, and

Associate Justice Peter H. Burnett was appointed to fill the vacancy.

This left the balance of Judge Burnett's term of service to be filled,

and I was urged by the Governor of the State to accept his appointment

to it, as it was for less than three months, and immediately preceded

my own term. At first I refused, as I desired to revisit the East; but

being assured by the judges that taking the place need not prevent

my intended visit, I accepted the appointment, and on the 13th of

October, 1857, took my seat on the bench.

[1] See Letter of Judge Mott detailing the particulars of the

affair; Exhibit H, in Appendix.

[2] See Exhibit I, in Appendix.

[3] The exact vote was as follows:

For myself 55,216

For Nathaniel Bennett 18,944

For J.P. Ralston 19,068

------

Total vote 93,228

Majority over Bennett 36,272

Majority over Balston 36,148

Majority over both 17,204

REMOVAL FROM MARYSVILLE--LIFE ON THE SUPREME BENCH.--END OF JUDGE

TURNER.

The day following my acceptance of the Governor's appointment to

the Supreme Court of the State, I returned to Marysville to close my

business before taking up my residence in Sacramento, where the court

held its sessions. I had gone to Sacramento to argue some cases before

the court when the appointment was tendered to me; and, of course,

did not expect to remain there very long. In a few days I arranged my

affairs at Marysville and then removed permanently to Sacramento.

I left Marysville with many regrets. I had seen it grow from a

collection of tents with a few hundred occupants to a town of

substantial buildings with a population of from eight to ten thousand

inhabitants. From a mere landing for steamers it had become one of the

most important places for business in the interior of the State. When

I left, it was a depot of merchandise for the country lying north and

east of it; and its streets presented a scene of bustle and activity.

Trains of wagons and animals were constantly leaving it with goods for

the mines. Its merchants were generally prosperous; some of them were

wealthy. Its bankers were men of credit throughout the State. Steamers

plied daily between it and Sacramento, and stages ran to all parts

of the country and arrived every hour. Two daily newspapers were

published in it. Schools were opened and fully attended. Churches

of different denominations were erected and filled with worshippers.

Institutions of benevolence were founded and supported. A provident

city government and a vigorous police preserved order and peace.

Gambling was suppressed or carried on only in secret. A theatre was

built and sustained. A lecture-room was opened and was always crowded

when the topics presented were of public interest. Substantial stores

of brick were put up in the business part of the city; and convenient

frame dwellings were constructed for residences in the outskirts,

surrounded with plats filled with trees and flowers. On all sides were

seen evidences of an industrious, prosperous, moral, and happy people,

possessing and enjoying the comforts, pleasures, and luxuries of life.

And they were as generous as they were prosperous. Their hearts and

their purses were open to all calls of charity. No one suffering

appealed to them in vain. No one in need was turned away from their

doors without having his necessities relieved. It is many years since

I was there, but I have never forgotten and I shall never forget the

noble and generous people that I found there in all the walks of life.

The Supreme Court of the State then consisted of three members, the

senior in commission being the Chief Justice. David S. Terry was the

Chief Justice and Peter H. Burnett was the Associate Justice. Both of

these gentlemen have had a conspicuous career in California, and of

both I have many interesting anecdotes which would well illustrate

their characters and which at some future day I may put upon paper.

They were both men of vigorous minds, of generous natures and of

positive wills; but in all other respects they differed as widely

as it was possible for two extremes. Mr. Terry had the virtues and

prejudices of men of the extreme South in those days. His contact and

larger experience since with men of the North have no doubt modified

many of those prejudices, and his own good sense must have led him to

alter some of his previous judgments. Probably his greatest regret is

his duel with Mr. Broderick, as such encounters, when they terminate

fatally to one of the parties, never fail to bring life-long

bitterness to the survivor. A wiser mode of settling difficulties

between gentlemen has since been adopted in the State; but those who

have not lived in a community where the duel is practiced cannot

well appreciate the force of the public sentiment which at one time

existed, compelling a resort to it when character was assailed.

Mr. Burnett was one of the early settlers in Oregon, and had held

positions of honor and trust there before settling in California. He

came here soon after the discovery of gold, took an interest in public

affairs, and was elected the first Governor of the State, when the

constitution was adopted.

Judge Terry resigned his office in September, 1859, when he determined

to send a challenge to Mr. Broderick, and I succeeded him as Chief

Justice; and W.W. Cope, of Amador, was elected to fill the vacant

place on the bench. I was absent from the State at the time, or I

should have exerted all the power I possessed by virtue of my office

to put a stop to the duel. I would have held both of the combatants to

keep the peace under bonds of so large an amount as to have made them

hesitate about taking further steps; and in the meantime I should have

set all my energies to work, and called others to my aid, to

bring about a reconciliation. I believe I should have adjusted the

difficulty.

Mr. Cope, who filled the vacant place on the bench, possessed a

superior mind and a genial nature. He made an excellent Judge. He

studiously examined every case and carefully prepared his opinions. He

remained on the bench until January, 1864, when the new constitutional

amendments, reorganizing the court, went into effect. He is now in

practice in San Francisco, and has a large clientage.

Judge Burnett continued in office until the election of his successor

in the fall of 1858. His successor was Joseph G. Baldwin, a lawyer of

distinction and a gentleman of literary reputation. He was the

author of "The Flush Times of Alabama and Mississippi," and of "Party

Leaders." The first is a work full of humor and a great favorite in

the section of the country whose "times" it portrays with such spirit

and glee as to excite roars of laughter in the reader. The latter is a

thoughtful history of the character and influence upon the country

of Jefferson, Hamilton, Jackson, Clay, and Randolph. His portraitures

present these men in the fullness and freshness of living beings, whom

we see and hear, and whose power we feel.

My friendship for Mr. Baldwin commenced long before he came to the

bench, and it afterwards warmed into the attachment of a brother. He

had a great and generous heart; there was no virtue of humanity of

which he did not possess a goodly portion. He was always brimful of

humor, throwing off his jokes, which sparkled without burning, like

the flashes of a rocket. There was no sting in his wit. You felt as

full of merriment at one of his witticisms, made at your expense, as

when it was played upon another. Yet he was a profound lawyer, and

some of his opinions are models of style and reasoning. He remained on

the bench until January, 1862, when he was succeeded by Edward Norton,

of San Francisco. This gentleman was the exemplar of a judge of

a subordinate court. He was learned, patient, industrious, and

conscientious; but he was not adapted for an appellate tribunal. He

had no confidence in his own unaided judgment. He wanted some one upon

whom to lean. Oftentimes he would show me the decision of a tribunal

of no reputation with apparent delight, if it corresponded with his

own views, or with a shrug of painful doubt, if it conflicted with

them. He would look at me in amazement if I told him that the decision

was not worth a fig; and would appear utterly bewildered at my

waywardness when, as was sometimes the case, I refused to look at it

after hearing by what court it was pronounced.

It is not my purpose to speak of my own career on the Bench of the

Supreme Court of California. It is only for reminiscences of my

previous life that you, Mr. Hittell, have asked.[1] I am tempted,

however, to hand to you a letter of Judge Baldwin, my associate for

over three years, in which he presents, in terms exaggerated by his

friendship, the result of my labors there.[2]

There is only one scene to which I wish to refer.

About a year and a half after I went upon the bench, a contested

election case came up from Trinity County. It appeared that Judge

Turner, who had been sent to the district composed of the counties of

Trinity and Klamath, by the act concerning the courts and judicial

officers of the State, at the end of his term offered himself for

re-election as Judge of that district. When the vote was counted there

appeared to be a majority of one against him, and his opponent was

declared elected. He instituted a contest for the office, and, being

defeated in the court below, appealed to the Supreme Court. He then

became very much exercised over his appeal, because I was one of the

Justices. There were not wanting persons who, out of sheer malice, or

not comprehending any higher motives of conduct than such as governed

themselves, represented that I would improve the opportunity to strike

him a blow.

When his case came on for hearing, I left the bench to my associates,

Judges Terry and Baldwin, and they decided in his favor. At this

action of mine Turner was amazed. It was something wholly unexpected

and surprising to him. Soon after the decision he sent one of his

friends, named Snowden, to know if I would speak to him if he should

make the first advance. I answered that under no circumstances would

I ever consent to speak to him; that he had done me injuries which

rendered any intercourse with him impossible; that the world was wide

enough for us both, and he must go his own way. This answer Snowden

communicated to him. The next morning he stationed himself at the foot

of the stairway leading up to the Supreme Court rooms, which was on

the outside of the building, and, as I passed up, he cried out; "I am

now at peace with all the world; if there is any man who feels that I

have done him an injury, I am ready to make him amends." I turned and

looked at him for a moment, and then passed on without saying a

word. On the following morning he took the same position and repeated

substantially the same language. I stopped and gazed at him for a

moment, and then passed on in silence. This was the last time I saw

him. He returned to Trinity, and held his office for the balance of

his term, six years, under the decision of the Supreme Court, and was

re-elected in 1863. But his character and habits unfitted him for a

judicial position. He was addicted to gambling and drinking, and he

consorted with the lowest characters; and the same tyrannical temper

and conduct which he had exhibited towards me in Marysville, were

displayed in his new district. Accordingly measures were taken by

citizens of Trinity to secure his impeachment by the Legislature.

Mr. Westmoreland, a member of the Assembly from that county in 1867

offered a resolution for the appointment of a committee to inquire

whether articles of impeachment should be presented against him for

high crimes and misdemeanors, with power to send for persons and

papers and report articles if warranted by the evidence. In offering

the resolution Mr. Westmoreland charged, that during the time Turner

had held the office of District Judge he had been grossly tyrannical;

that he had imprisoned citizens, depriving them of their liberty

without process of law; that he had neglected and refused to perform

the duties incumbent upon him by statute; that by a standing rule he

allowed no witness to be called in a case unless he was subpoenaed

and in attendance on the first day of the term; that he had used the

power of his position for the furtherance of his own ends of private

hate; that he was an habitual drunkard, with rare intervals of

sobriety, and had upon occasions come into the court-room to sit upon

the trial of causes so intoxicated as to be unable to stand, and had

fallen helplessly upon the floor, whence he had been removed by

officers of the court; that upon one occasion, when engaged in a

trial, he had in the presence of jurors, witnesses, and other persons

attending the court, deliberately gone out of the court-room and

openly entered a house of ill-fame near by; and that by his

disgraceful conduct he had become a burden upon the people of that

district too grievous to be borne. These things Mr. Westmoreland

stated he stood prepared to prove, and he invoked the interposition of

the Legislature to protect the people of the Eighth Judicial District

who were suffering from the deportment and conduct of this officer. The

resolution was passed. Finding that articles of impeachment would

be presented against him, Turner resigned his office. After this his

habits of drinking became worse, and he was sent to the Asylum for

Inebriates, where he died.

In thinking over my difficulties with Turner at this distant day,

there is nothing in my conduct which I in the least regret. Had I

acted differently; had I yielded one inch, I should have lost my

self-respect and been for life an abject slave. There was undoubtedly

an unnecessary severity of language in two or three passages of my

answers to his attacks; and some portion of my answer in court to his

order to show cause why I should not be re-expelled from the bar might

better have been omitted. I have since learned that one is never so

strong as when he is calm, and never writes so forcibly as when he

uses the simplest language. My justification in these particulars, if

they require any, must be found in the savage ferocity with which I

was assailed, the brutal language applied to my character and conduct,

and the constant threats made of personal violence. Malignity and

hate, with threats of assassination, followed me like a shadow for

months. I went always armed for protection against assault. I should

have been less or more than man had I preserved at all times perfect

calmness either in my language or conduct.

In the contest with this man I was cheered by the support of the best

men of the State. But of all of them no one aided me so much, and so

freely, as the editor of the Marysville Herald, Mr. Robert H. Taylor,

a gentleman still living, in the full strength of his intellect, and

honored and trusted as a learned member of the legal profession in

Nevada. May length of years and blessings without number attend him.

* * * * *

Here my narrative of "Personal Experiences" must for the present end.

I could have given you, Mr. Hittell, more interesting matter. I could

have given you sketches of Fremont, Halleck, Gwin, Broderick, Weller,

Geary, Sherman, Bigler, McDougal, Bennett, Heydenfeldt, Murray, and

others, with many striking anecdotes illustrative of their characters.

They were all remarkable men, and the history of their lives would be

full of interest and instruction. I could have related the story of

the Vigilance Committees of 1851 and 1856, and shown how the men of

order and virtue acquired and maintained ascendency over the irregular

and disorderly elements of society. I could have told you of the

gradual development of the industries of the State until her yearly

products have become one of the marvels of the world. I could have

described the wild excitement produced by the supposed discoveries

of gold in boundless quantities on Fraser River; and the later but

more substantial movement upon the development of the silver mines of

Nevada. I could have recounted the efforts made in 1860 and 1861

to keep the State in the Union against the movements of the

Secessionists, and the communications had with President Lincoln

by relays of riders over the Plains. I could have described the

commencement, progress, and completion of the Pacific railroad, and

the wonderful energy and unfailing resolution of its constructors. I

could have told you stories without number, full of interest, of the

Judges of California, State and Federal, who preceded me on the bench,

and of members of the profession; of Hastings, Bennett, Lyons, Wells,

Anderson, Heydenfeldt, and Murray, of the State Supreme Court; of

Hoffman and McAllister of the Federal bench; of Robinson, Crittenden,

Randolph, Williams, Yale, McConnell, Felton, and others of the Bar,

now dead, and of some who are at its head, now living; composing as a

whole a bar not exceeded in ability, learning, eloquence, and literary

culture by that of any other State of the Union. But you asked me

merely for personal reminiscences, of occurrences at Marysville and

during the days preceding my going there. I will, therefore, postpone

until another occasion a narrative which I think will be more

interesting than anything I have here related.

[1] These sketches were in the main dictated to a short-hand

writer at the request of Mr. Theodore H. Hittell, of San

Francisco.

[2] The letter is printed at the end of this narrative at

page 135.

THE CAREER OF JUDGE FIELD ON THE SUPREME BENCH OF CALIFORNIA, BY JUDGE

JOSEPH G. BALDWIN, HIS ASSOCIATE FOR THREE YEARS.

[_From the Sacramento Union, of May 6, 1863._]

"The resignation by Judge Field of the office of Chief Justice

of the Supreme Court of California, to take effect on the 20th

instant, has been announced. By this event the State has

been deprived of the ablest jurist who ever presided over her

courts. Judge Field came to California from New York in

1849, and settled in Marysville. He immediately commenced the

practice of law and rose at once to a high position at the

local bar, and upon the organization of the Supreme Court soon

commanded a place in the first class of the counsel practicing

in that forum. For many years, and until his promotion to

the bench, his practice was as extensive, and probably as

remunerative, as that of any lawyer in the State. He served

one or two sessions in the Legislature, and the State is

indebted to him for very many of the laws which constitute the

body of her legislation.[1] In 1857 he was nominated for Judge

of the Supreme Court for a full term, and in October of

the same year was appointed by Governor Johnson to fill

the unexpired term of Justice Heydenfeldt, resigned. He

immediately entered upon the office, and has continued ever

since to discharge its duties. Recently, as the reader knows,

he was appointed, by the unanimous request of our delegation

in Congress, to a seat upon the Bench of the Supreme Court of

the United States, and was confirmed, without opposition, by

the Senate.

"Like most men who have risen to distinction in the United

States, Judge Field commenced his career without the

advantages of wealth, and he prosecuted it without the

factitious aids of family influence or patronage. He had the

advantage, however--which served him better than wealth or

family influence--of an accomplished education, and careful

study and mental discipline. He brought to the practice of

his profession a mind stored with professional learning,

and embellished with rare scholarly attainments. He was

distinguished at the bar for his fidelity to his clients, for

untiring industry, great care and accuracy in the preparation

of his cases, uncommon legal acumen, and extraordinary

solidity of judgment. As an adviser, no man had more the

confidence of his clients, for he trusted nothing to chance

or accident when certainty could be attained, and felt his

way cautiously to his conclusions, which, once reached, rested

upon sure foundations, and to which he clung with remarkable

pertinacity. Judges soon learned to repose confidence in his

opinions, and he always gave them the strongest proofs of the

weight justly due to his conclusions.

"When he came to the bench, from various unavoidable causes

the calendar was crowded with cases involving immense

interests, the most important questions, and various and

peculiar litigation. California was then, as now, in the

development of her multiform physical resources. The judges

were as much pioneers of law as the people of settlement.

To be sure something had been done, but much had yet to be

accomplished; and something, too, had to be undone of that

which had been done in the feverish and anomalous period that

had preceded. It is safe to say that, even in the experience

of new countries hastily settled by heterogeneous crowds of

strangers from all countries, no such example of legal or

judicial difficulties was ever before presented as has been

illustrated in the history of California. There was no general

or common source of jurisprudence. Law was to be administered

almost without a standard. There was the civil law, as

adulterated or modified by Mexican provincialism, usages, and

habitudes, for a great part of the litigation; and there was

the common law for another part, but _what that was_ was to be

decided from the conflicting decisions of any number of

courts in America and England, and the various and diverse

considerations of policy arising from local and other facts.

And then, contracts made elsewhere, and some of them in

semi-civilized countries, had to be interpreted here. Besides

all which may be added that large and important interests

peculiar to the State existed--mines, ditches, etc.--for which

the courts were compelled to frame the law, and make a system

out of what was little better than chaos.

"When, in addition, it is considered that an unprecedented

number of contracts, and an amount of business without

parallel, had been made and done in hot haste, with the utmost

carelessness; that legislation was accomplished in the same

way, and presented the crudest and most incongruous materials

for construction; that the whole scheme and organization of

the government, and the relation of the departments to each

other, had to be adjusted by judicial construction--it may

well be conceived what task even the ablest jurist would

take upon himself when he assumed this office. It is no small

compliment to say that Judge Field entered upon the duties of

this great trust with his usual zeal and energy, and that he

leaves the office not only with greatly increased reputation,

but that he has raised the character of the jurisprudence

of the State. He has more than any other man given tone,

consistency, and system to our judicature, and laid broad and

deep the foundation of our civil and criminal law. The land

titles of the State--the most important and permanent of the

interests of a great commonwealth--have received from his hand

their permanent protection, and this alone should entitle him

to the lasting gratitude of the bar and the people.

"His opinions, whether for their learning, logic, or diction,

will compare favorably, in the judgment of some of our best

lawyers, with those of any judge upon the Supreme Bench of the

Union. It is true what he has accomplished has been done with

labor; but this is so much more to his praise, for such work

was not to be hastily done, and it was proper that the

time spent in perfecting the work should bear some little

proportion to the time it should last. We know it has been

said of Judge Field that he is too much of a 'case lawyer,'

and not sufficiently broad and comprehensive in his views.

This criticism is not just. It is true he is reverent of

authority, and likes to be sustained by precedent; but an

examination of his opinions will show that, so far from

being a timid copyist, or the passive slave of authority, his

rulings rest upon clearly defined principles and strong common

sense.

"He retires from office without a stain upon his ermine.

Millions might have been amassed by venality. He retires as

poor as when he entered, owing nothing and owning little,

except the title to the respect of good men, which malignant

mendacity cannot wrest from a public officer who has deserved,

by a long and useful career, the grateful appreciation of his

fellow-citizens. We think that we may safely predict that,

in his new place, Justice Field will fulfill the sanguine

expectations of his friends."

J.G.B.

SAN FRANCISCO, _May 1, 1863_.

[1] He was in the Legislature only one session.

* * * * *

In 1855 a circuit court for California was created by Congress, and

clothed with the ordinary jurisdiction of the several circuit courts

of the United States. Hon. M. Hall McAllister was appointed its judge.

In January, 1863, he resigned and my appointment as his successor was

recommended by our Senators. They telegraphed me what they had done,

and I replied that I could not accept the place, that I preferred to

remain Chief Justice of the Supreme Court of the State than to be a

judge of an inferior federal court, but that if a new justice were

added to the Supreme Court of the United States, I would accept the

office if tendered to me. Notwithstanding this reply my appointment

was urged, and I was nominated by the President. The Senators have

since told me that they pressed my nomination from a belief that

another justice would soon be added to the Supreme Court, and that

the appointment would be made from the Pacific States, and that if

I were circuit judge it would more likely be tendered to me than to

any one else. The interests of those States were so great, and from

the character of their land titles, and their mines of gold and

silver, were in some respects so different from those of the Eastern

States, that it was deemed important to have some one familiar with

them on the Supreme Bench of the United States. Accordingly, while

my nomination for circuit judge was pending before the Senate, a bill

providing for an additional justice of the Supreme Court, and making

the Pacific States a new circuit, was introduced into both Houses of

Congress, and on the last day of the session, March 3d, 1863, it

became a law. Soon after the adjournment of Congress, the entire

delegation from the Pacific States united in recommending my

appointment to the new office. The delegation then consisted of four

Senators and four Members of the House, of whom five were Democrats

and three Republicans; all of them were Union men. I was accordingly

nominated by the President, and the nomination was unanimously

confirmed by the Senate. My commission was signed on the 10th of

March, 1863, and forwarded to me. I did not, however, take the oath

of office and enter upon its duties until the 20th of May following.

At the time I received the commission there were many important

cases pending in the Supreme Court of California, which had been

argued when only myself and one of the associate justices were

present. I thought that these cases should be disposed of before I

resigned, as otherwise a re-argument of them would be required,

imposing increased expense and delay upon the parties. I therefore

sent my resignation as Chief Justice to the Governor, to take

effect on the 20th of May. I selected that day, as I believed the

cases argued could be decided by that time, and because it was the

birthday of my father. I thought it would be gratifying to him to

know that on the eighty-second anniversary of his birth his son had

become a Justice of the Supreme Court of the United States.

Accordingly on that day I took the oath of office.[1]

[1] Although I had informed the Attorney-General of my action and

delay in taking the oath of office, the salary of the office

was sent to me from the date of my commission, March 10th,

1863. I immediately deposited with the sub-treasurer at San

Francisco, to the credit of the United States, the proportion

for the time between that date and the 20th of May, and

informed the Secretary of the Treasury of the deposit,

enclosing to him the sub-treasurer's receipt.

* * * * *

THE ANNOYANCES OF MY JUDICIAL LIFE.

After the narrative of my Personal Reminiscences was completed, I

concluded to dictate an account of some strange annoyances to which I

had been subjected in the course of my judicial life. The account will

have an interest to those of my friends for whom the Reminiscences

were printed, and it is intended for their perusal alone.

ROSY VIEWS OF JUDICIAL LIFE GRADUALLY VANISHING.--UNSETTLED LAND

TITLES OF THE STATE.--ASSERTED OWNERSHIP BY THE STATE OF GOLD AND

SILVER FOUND IN THE SOIL.--PRESENT OF A TORPEDO.

When I went on the bench, I not only entertained elevated notions of

the dignity and importance of the judicial office, but looked forward

confidently to the respect and honor of the community from a faithful

discharge of its duties. I soon discovered, however, that there would

be but little appreciation for conscientious labor on the bench,

except from a small number of the legal profession, until after the

lapse of years. For the heavy hours of toil which the judges endured,

for the long examination which they gave to voluminous records, for

their nights of sleeplessness passed in anxious thought to ascertain

what was true and right amidst a mass of conflicting evidence and

doubtful principles, the public at large appeared to have little

thought and less consideration. The cry of disappointment over

frustrated schemes of cupidity and fraud was sufficient for the time

to drown all other expressions of judgment upon the action of the

court.

The unsettled condition of the land titles of the State

gave occasion to a great deal of litigation and was for a long time

the cause of much bad feeling towards the judges who essayed to

administer impartial justice. When California was acquired, the

population was small and widely scattered. To encourage colonization,

grants of land in large quantities, varying from one to eleven

leagues, had been made to settlers by the Mexican government. Only

small tracts were subjected to cultivation. The greater part of the

land was used for grazing cattle, which were kept in immense herds.

The grants were sometimes of tracts with defined boundaries, and

sometimes of places by name, but more frequently of specified

quantities within boundaries embracing a greater amount. By the

Mexican law, it was incumbent upon the magistrates of the vicinage to

put the grantees in possession of the land granted to them; and for

that purpose to measure off and segregate the quantity designated.

Owing to the sparseness of the population there was little danger

of dispute as to boundaries, and this segregation in the majority of

cases had been neglected before our acquisition of the country. From

the size of the grants and the want of definite boundaries, arose

nearly all the difficulties and complaints of the early settlers. Upon

the discovery of gold, immigrants from all parts of the world rushed

into the country, increasing the population in one or two years from a

few thousand to several hundred thousand. A large number crossed the

plains from the Western States, and many of them sought for farming

lands upon which to settle. To them a grant of land, leagues in extent,

seemed a monstrous wrong to which they could not be reconciled. The

vagueness, also, in many instances, of the boundaries of the land

claimed gave force and apparent reason to their objections. They

accordingly settled upon what they found unenclosed or uncultivated,

without much regard to the claims of the Mexican grantees. If the land

upon which they thus settled was within the tracts formerly occupied

by the grantees with their herds, they denied the validity of grants

so large in extent. If the boundaries designated enclosed a greater

amount than that specified in the grants, they undertook to locate the

supposed surplus. Thus, if a grant were of three leagues within

boundaries embracing four, the immigrant would undertake to appropriate

to himself a portion of what he deemed the surplus; forgetting that

other immigrants might do the same thing, each claiming that what he

had taken was a portion of such surplus, until the grantee was deprived

of his entire property.

When I was brought to consider the questions to which this condition

of things gave rise, I assumed at the outset that the obligations of

the treaty with Mexico were to be respected and enforced. This treaty

had stipulated for the protection of all rights of property of the

citizens of the ceded country; and that stipulation embraced inchoate

and equitable rights, as well as those which were perfect. It was not

for the Supreme Court of California to question the wisdom or policy

of Mexico in making grants of such large portions of her domain, or

of the United States in stipulating for their protection. I felt the

force of what Judge Grier had expressed in his opinion in the case

of The United States vs. Sutherland, in the 19th of Howard, that

the rhetoric which denounced the grants as enormous monopolies and

princedoms might have a just influence when urged to those who had a

right to give or refuse; but as the United States had bound themselves

by a treaty to acknowledge and protect all _bona fide_ titles granted

by the previous government, the court had no discretion to enlarge or

contract such grants to suit its own sense of propriety or to defeat

just claims, however extensive, by stringent technical rules of

construction to which they were not originally subjected. Since then,

while sitting on the Bench of the Supreme Court of the United States,

I have heard this obligation of our government to protect the rights

of Mexican grantees stated in the brilliant and powerful language of

Judge Black. In the Fossat case, referring to the land claimed by one

Justo Larios, a Mexican grantee, he said: "The land we are claiming

never belonged to this government. It was private property under

a grant made long before our war with Mexico. When the treaty of

Guadalupe Hidalgo came to be ratified--at the very moment when Mexico

was feeling the sorest pressure that could be applied to her by the

force of our armies, and the diplomacy of our statesmen--she utterly

refused to cede her public property in California unless upon the

express condition that all private titles should be faithfully

protected. We made the promise. The gentleman sits on this bench who

was then our Minister there.[1] With his own right hand he pledged the

sacred honor of this nation that the United States would stand over

the grantees of Mexico and keep them safe in the enjoyment of their

property. The pledge was not only that the government itself would

abstain from all disturbance of them, but that every blow aimed at

their rights, come from what quarter it might, should be caught upon

the broad shield of our blessed Constitution and our equal laws."

"It was by this assurance thus solemnly given that we won the

reluctant consent of Mexico to part with California. It gave us a

domain of more than imperial grandeur. Besides the vast extent of that

country, it has natural advantages such as no other can boast. Its

valleys teem with unbounded fertility, and its mountains are filled with

inexhaustible treasures of mineral wealth. The navigable rivers run

hundreds of miles into the interior, and the coast is indented with

the most capacious harbors in the world. The climate is more healthful

than any other on the globe: men can labor longer with less fatigue.

The vegetation is more vigorous and the products more abundant; the

face of the earth is more varied, and the sky bends over it with a

lovelier blue.--That was what we gained by the promise to protect men

in the situation of Justo Larios, their children, their alienees, and

others claiming through them. It is impossible that in this nation

they will ever be plundered in the face of such a pledge."--(2

Wallace, 703.)

Actuated by this principle--that fidelity to a nation's pledge is a

sacred duty, and that justice is the highest interest of the

country, I endeavored, whenever the occasion presented itself, and

my associates heartily co-operated with me, to protect the Mexican

grantees. Their grants contained a stipulation for the possession of

the lands granted, inasmuch as they were subject to the conditions of

cultivation and occupancy, and a failure to comply with the conditions

was considered by the tribunals of the United States as a most

material circumstance in the determination of the right of the

grantees to a confirmation of their claims. I held, therefore, with

the concurrence of my associates, that the grantees, whether they were

to be considered as having a legal or an equitable right to the lands,

were entitled to their possession until the action of the government

upon their claims, and, therefore, that they could recover in

ejectment. And when the grant was not a mere float, but was of land

within defined boundaries, which embraced a greater quantity than that

specified in it, with a provision that the surplus should be measured

off by the government, I held that until such measurement the grantee

could hold the whole as against intruders, and until then he was a

tenant in common with the government. As I said in one of my opinions,

speaking for the court, until such measurement no individual could

complain, much less could he be permitted to determine in advance,

that any particular locality would fall within the supposed surplus,

and thereby justify its forcible seizure and detention by himself.

"If one person could in this way appropriate a particular parcel to

himself, all persons could do so; and thus the grantee, who is the

donee of the government, would be stripped of its bounty for the

benefit of those who were not in its contemplation and were never

intended to be the recipients of its favors."[2]

These views have since met with general assent in California and have

been approved by the Supreme Court of the United States.[3] But at

that time they gave great offence to a large class, and the judges

were denounced in unmeasured terms as acting in the interests of

monopolists and land-grabbers. Even now, when the wisdom and justice

of their action are seen and generally recognized, words of censure

for it are occasionally whispered through the Press. Persons sometimes

seem to forget that to keep the plighted faith of the nation, to

preserve from reproach its fair fame, where its honor is engaged, is

one of the highest duties of all men in public life.

The action of the court as to the possession of the public lands of

the United States met with more favor. The position of the people of

California with respect to the public lands was unprecedented. The

discovery of gold brought, as already stated, an immense immigration

to the country. The slopes of the Sierra Nevada were traversed by many

of the immigrants in search of the precious metals, and by others the

tillable land was occupied for agricultural purposes. The title was in

the United States, and there had been no legislation by which it could

be acquired. Conflicting possessory claims naturally arose, and the

question was presented as to the law applicable to them. As I have

mentioned in my Narrative of Reminiscences, the Legislature in 1851

had provided that in suits before magistrates for mining claims,

evidence of the customs, usages, and regulations of miners in their

vicinage should be admissible, and, when not in conflict with the

Constitution and laws of the United States, should govern their decision,

and that the principle thus approved was soon applied in actions for

mining claims in all courts. In those cases it was considered that the

first possessor or appropriator of the claim had the better right as

against all parties except the government, and that he, and persons

claiming under him, were entitled to protection. This principle received

the entire concurrence of my associates, and was applied by us, in its

fullest extent, for the protection of all possessory rights on the

public lands. Thus, in Coryell vs. Cain, I said, speaking for the

court: "It is undoubtedly true, as a general rule, that the claimant

in ejectment must recover upon the strength of his own title, and

not upon the weakness of his adversary's, and that it is a sufficient

answer to his action to show title out of him and in a third party.

But this general rule has, in this State, from the anomalous condition

of things arising from the peculiar character of the mining and landed

interests of the country, been, to a certain extent, qualified and

limited. The larger portion of the mining lands within the State

belong to the United States, and yet that fact has never been

considered as a sufficient answer to the prosecution of actions for

the recovery of portions of such lands. Actions for the possession

of mining claims, water privileges, and the like, situated upon the

public lands, are matters of daily occurrence, and if the proof of

the paramount title of the government would operate to defeat them,

confusion and ruin would be the result. In determining controversies

between parties thus situated, this court proceeds upon the

presumption of a grant from the government to the first appropriator

of mines, water privileges, and the like. This presumption, which

would have no place for consideration as against the assertion of

the rights of the superior proprietor, is held absolute in all those

controversies. And with the public lands which are not mineral lands,

the title, as between citizens of the State, where neither connects

himself with the government, is considered as vested in the first

possessor, and to proceed from him."--(16 Cal., p. 572.)

The difficulties attendant upon any attempt to give security to

landed possessions in the State, arising from the circumstances I have

narrated, were increased by an opinion, which for some time prevailed,

that the precious metals, gold and silver, found in various parts of

the country, whether in public or private lands, belonged to the

State by virtue of her sovereignty. To this opinion a decision of the

Supreme Court of the State, made in 1853, gave great potency. In

Hicks vs. Bell, decided that year, the court came to that conclusion,

relying upon certain decisions of the courts of England recognizing

the right of the Crown to those metals. The principal case on the

subject was that of The Queen vs. The Earl of Northumberland, reported

in Plowden. The counsel of the Queen in that case gave, according to

our present notions, some very fanciful reasons for the conclusion

reached, though none were stated in the judgment of the court. There

were three reasons, said the counsel, why the King should have the

mines and ores of gold and silver within the realm, in whatsoever land

they were found: "The first was, in respect to the excellency of the

thing, for of all things which the soil within this realm produces or

yields, gold and silver are the most excellent, and of all persons in

the realm, the King is, in the eye of the law, most excellent. And the

common law, which is founded upon reason, appropriates everything to

the person whom it best suits, as common and trivial things to the

common people, things of more worth to persons in a higher and superior

class, and things most excellent to those persons who excel all others;

and because gold and silver are the most excellent things which the

soil contains, the law has appointed them (as in reason it ought) to

the person who is most excellent, and that is the King.--The second

reason was, in respect of the necessity of the thing. For the King

is the head of the Weal-public and the subjects are his members;

and the office of the King, to which the law has appointed him,

is to preserve his subjects; and their preservation consisted

in two things, viz., in an army to defend them against hostilities,

and in good laws. And an army cannot be had and maintained without

treasure, for which reason some authors, in their books, call

treasure the sinews of war; and, therefore, inasmuch as God has

created mines within this realm, as a natural provision of treasure

for the defence of the realm, it is reasonable that he who has the

government and care of the people, whom he cannot defend without

treasure, should have the treasure wherewith to defend them.--The

third reason was, in respect of its convenience to the subjects

in the way of mutual commerce and traffic. For the subjects of

the realm must, of necessity, have intercourse or dealing with

one another, for no individual is furnished with all necessary

commodities, but one has need of the things which another has, and

they cannot sell or buy together without coin.--And if the subject

should have it (the ore of gold or silver) the law would not permit

him to coin it, nor put a print or value upon it, for it belongs to

the King only to fix the value of coin, and to ascertain the price of

the quantity, and to put the print upon it, which being done, the coin

becomes current for so much as the King has limited.--So that the

body of the realm would receive no benefit or advantage if the

subject should have the gold and silver found in mines in his land;

but on the other hand, by appropriating it to the King, it tends to

the universal benefit of all the subjects in making their King able to

defend them with an army against all hostilities, and when he has put

the print and value upon it, and has dispersed it among his subjects,

they are thereby enabled to carry on mutual commerce with one another,

and to buy and sell as they have occasion, and to traffic at their

pleasure. Therefore, for these reasons, viz., for the excellency of

the thing, and for the necessity of it, and the convenience that will

accrue to the subjects, the common law, which is no other than pure

and tried reason, has appropriated the ore of gold and silver to the

King, in whatever land it be found."

The Supreme Court of the State, without considering the reasons thus

assigned in the case in Plowden, adopted its conclusion; and as the

gold and silver in the British realm are there held to belong to the

Crown, it was concluded, on the hypothesis that the United States have

no municipal sovereignty within the limits of the State, that they

must belong in this country to the State. The State, therefore, said

the court, "has solely the right to authorize them" (the mines of

gold and silver) "to be worked; to pass laws for their regulation; to

license miners; and to affix such terms and conditions as she may

deem proper to the freedom of their use. In the legislation upon this

subject she has established the policy of permitting all who desire it

to work her mines of gold and silver, with or without conditions,

and she has wisely provided that their conflicting claims shall be

adjudicated by the rules and customs which may be established by

bodies of them working in the same vicinity."--(3 Cal., 220.)

The miners soon grasped the full scope of this decision, and the lands

of private proprietors were accordingly invaded for the purpose of

mining as freely as the public lands. It was the policy of the State

to encourage the development of the mines, and no greater latitude in

exploration could be desired than was thus sanctioned by the highest

tribunal of the State. It was not long, however, before a cry came

up from private proprietors against the invasion of their possessions

which the decision had permitted; and the court was compelled to put

some limitation upon the enjoyment by the citizen of this right of

the State. Accordingly, within two years afterwards, in Stoakes vs.

Barrett, (5 Cal., 37,) it held that although the State was the owner

of the gold and silver found in the lands of private individuals as

well as in the public lands, "yet to authorize an invasion of private

property in order to enjoy a public franchise would require more

specific legislation than any yet resorted to."

The spirit to invade other people's lands, to which

the original decision gave increased force against the intention of

its authors, could not be as easily repressed as it was raised in the

crowd of adventurers, who filled the mining regions. Accordingly, long

before I went on the bench, the right to dig for the precious metals

on the lands of private individuals was stoutly asserted under an

assumed license of the State. And afterwards, in the case of Biddle

Boggs vs. The Merced Mining Co., which came before the court in 1859,

where the plaintiff claimed under a patent of the United States,

issued upon the confirmation of a Mexican grant, the existence of this

license was earnestly maintained by parties having no connection with

the government, nor any claim of title to the land. Its existence was,

however, repudiated by the court, and speaking for it in that case I

said: "There is gold in limited quantities scattered through large and

valuable districts, where the land is held in private proprietorship,

and under this pretended license the whole might be invaded, and, for

all useful purposes, destroyed, no matter how little remunerative the

product of the mining. The entry might be made at all seasons, whether

the land was under cultivation or not, and without reference to its

condition, whether covered with orchards, vineyards, gardens, or

otherwise. Under such a state of things, the proprietor would never be

secure in his possessions, and without security there would be little

development, for the incentive to improvement would be wanting. What

value would there be to a title in one man, with a right of invasion

in the whole world? And what property would the owner possess in

mineral land--the same being in fact to him poor and valueless just in

proportion to the actual richness and abundance of its products? There

is something shocking to all our ideas of the rights of property in

the proposition that one man may invade the possessions of another,

dig up his fields and gardens, cut down his timber, and occupy his

land, under the pretence that he has reason to believe there is gold

under the surface, or if existing, that he wishes to extract and

remove it."

At a later day the court took up the doctrine, that the precious

metals belonged to the State by virtue of her sovereignty, and

exploded it. The question arose in Moore vs. Smaw, reported in 17th

California, and in disposing of it, speaking for the court, I said:

"It is undoubtedly true that the United States held certain rights of

sovereignty over the territory which is now embraced within the limits

of California, only in trust for the future State, and that such

rights at once vested in the new State upon her admission into the

Union. But the ownership of the precious metals found in public or

private lands was not one of those rights. Such ownership stands in

no different relation to the sovereignty of a State than that of any

other property which is the subject of barter and sale. Sovereignty

is a term used to express the supreme political authority of an

independent State or Nation. Whatever rights are essential to the

existence of this authority are rights of sovereignty. Thus the right

to declare war, to make treaties of peace, to levy taxes, to take

private property for public uses, termed the right of eminent domain,

are all rights of sovereignty, for they are rights essential to

the existence of supreme political authority. In this country, this

authority is vested in the people, and is exercised through the

joint action of their federal and State governments. To the federal

government is delegated the exercise of certain rights or powers of

sovereignty; and with respect to sovereignty, rights and powers are

synonymous terms; and the exercise of all other rights of sovereignty,

except as expressly prohibited, is reserved to the people of the

respective States, or vested by them in their local governments. When

we say, therefore, that a State of the Union is sovereign, we only

mean that she possesses supreme political authority, except as to

those matters over which such authority is delegated to the federal

government, or prohibited to the States; in other words, that she

possesses all the rights and powers essential to the existence of an

independent political organization, except as they are withdrawn

by the provisions of the Constitution of the United States. To the

existence of this political authority of the State--this qualified

sovereignty, or to any part of it--the ownership of the minerals of

gold and silver found within her limits is in no way essential. The

minerals do not differ from the great mass of property, the ownership

of which may be in the United States, or in individuals, without

affecting in any respect the political jurisdiction of the State. They

may be acquired by the State, as any other property may be, but when

thus acquired she will hold them in the same manner that individual

proprietors hold their property, and by the same right; by the right

of ownership, and not by any right of sovereignty."

And referring to the argument of counsel in the case in Plowden, I

said that it would be a waste of time to show that the reasons there

advanced in support of the right of the Crown to the mines could not

avail to sustain any ownership of the State in them. The State takes

no property by reason of "the excellency of the thing," and taxation

furnishes all requisite means for the expenses of government. The

convenience of citizens in commercial transactions is undoubtedly

promoted by a supply of coin, and the right of coinage appertains

to sovereignty. But the exercise of this right does not require the

ownership of the precious metals by the State, nor by the federal

government, where this right is lodged under our system, as the

experience of every day demonstrates.

I also held that, although under the Mexican law the gold and silver

found in land did not pass with a grant of the land, a different

result followed, under the common law, when a conveyance of land

was made by an individual or by the government. By such conveyance

everything passed in any way connected with the land, forming a

portion of its soil or fixed to its surface.

The doctrine of the right of the State by virtue of her sovereignty to

the mines of gold and silver perished with this decision. It was

never afterwards seriously asserted. But for holding what now seems

so obvious, the judges were then grossly maligned as acting in the

interest of monopolists and land owners, to the injury of the laboring

class.

The decisions, however, which caused for the time the greatest

irritation, and excited the bitterest denunciation of the judges,

related to the titles to land in the city of San Francisco, though

in the end they proved to be of incalculable benefit. Upon the

acquisition of California, there was a Mexican Pueblo upon the site

of the city. The term _pueblo_ is aptly translated by the English

word _town_. It has all the vagueness of that term, and is equally

applicable to a settlement of a few individuals at a particular

place, or to a regularly organized municipality. The _Pueblo_ of San

Francisco was composed of a small population; but, as early as 1835,

it was of sufficient importance to have an _Ayuntamiento_ or Town

Council, composed of alcaldes and other officers, for its government.

At the time of our acquisition of the country it was under the

government of alcaldes or justices of the peace. By the laws of

Mexico, then in force, _pueblos_ or towns, when once officially

recognized as such by the appointment of municipal magistrates,

became entitled to four square leagues of land, to be measured off and

assigned to them by the officers of the government. Under these

laws the city of San Francisco, as successor of the Mexican Pueblo,

asserted a claim to such lands, to be measured off from the northern

portion of the peninsula upon which the city is situated. And

the alcaldes, assuming an authority similar to that possessed by

_alcaldes_ in other _pueblos_, exercised the power of distributing

these municipal lands in small parcels to settlers for building,

cultivation, and other uses.

When the forces of the United States took possession of the city, the

alcaldes, holding under the Mexican government, were superseded by

persons appointed by our military or naval officers having command

of the place. With the increase of population which followed the

discovery of gold, these magistrates were besieged by applicants

for grants of land; and it was refreshing to see with what generous

liberality they disposed of lots in the city--a liberality not

infrequent when exercised with reference to other people's property.

Lots, varying in size from fifty to one hundred varas square, (a

measure nearly equal to our yard,) were given away as freely as they

were asked, only a small fee to meet necessary charges for preparing

and recording the transfers being demanded. Thus, for the lot occupied

by the Lick House, and worth now nearly a million, only a few dollars,

less I believe than twenty, were paid. And for the lot covered by the

Grand Hotel, admitted to be now worth half a million, less than

thirty-five dollars were paid.

The authority of the alcaldes to dispose of the lands was questioned

by many of the new immigrants, and the validity of their grants

denied. They asserted that the land was part of the public property

of the United States. Many holding these views gave evidence of the

earnestness of their convictions by immediately appropriating to

themselves as much vacant land in the city as they could conveniently

occupy. Disputes followed, as a matter of course, between claimants

under the alcalde grants and those holding as settlers, which often

gave rise to long and bitter litigation. The whole community was in

fact divided between those who asserted the existence of a _pueblo_

having a right to the lands mentioned, and the power of the alcaldes

to make grants of them; and those who insisted that the land belonged

to the United States.

Early in 1850, after the State government was organized, the

Legislature incorporated the City of San Francisco; and, as is usual

with municipal bodies not restrained by the most stringent provisions,

it contracted more debts than its means warranted, and did not

always make provision for their payment at maturity. Numerous suits,

therefore, were instituted and judgments were recovered against the

city. Executions followed, which were levied upon the lands claimed by

her as successor of the _pueblo_. Where the occupants denied the

title of the city, they were generally indifferent to the sales by

the sheriff. Property of immense value, in some cases many acres in

extent, was, in consequence, often struck off to bidders at a merely

nominal price. Upon the deeds of the officer, suits in ejectment were

instituted in great numbers; and thus questions as to the existence

of the alleged _pueblo_, and whether, if existing, it had any right

to land, and the nature of such right, if any, were brought before

the lower courts; and, finally, in a test case--Hart vs. Burnett--they

found their way to the Supreme Court of the State. In the meantime a

large number of persons had become interested in these sales,

aside from the occupants of the land, and the greatest anxiety was

manifested as to the decision of the Court. Previous decisions on the

questions involved were not consistent; nor had they met the entire

approval of the profession, although, the opinion prevailed generally

that a Mexican pueblo of some kind, owning or having an interest in

lands, had existed on the site of the city upon the acquisition of the

country, and that such lands, like other property of the city not used

for public purposes, were vendible on execution.

In 1855, after the sale in respect to which the test case was made,

the Council of the city passed "the Van Ness Ordinance," so called

from the name of its author, the object of which was to settle and

quiet, as far as practicable, the title of persons occupying land in

the city. It relinquished and granted the right and interest of the

city to lands within its corporate limits, as defined by the charter

of 1851, with certain exceptions, to parties in the actual possession

thereof, by themselves or tenants, on or before the first of January,

1855, if the possession were continued to the time of the introduction

of the ordinance into the Common Council in June of that year; or,

if interrupted by an intruder or trespasser, it had been or might be

recovered by legal process. And it declared that, for the purposes of

the act, all persons should be deemed in possession who held titles

to land within the limits mentioned, by virtue of a grant made by the

authorities of the pueblo, including alcaldes among them, before the

7th of July, 1846,--the day when the jurisdiction over the country

is deemed to have passed from Mexico to the United States,--or

by virtue of a grant subsequently made by those authorities, if the

grant, or a material portion of it, had been entered in a proper book

of record deposited in the office or custody of the recorder of the

county of San Francisco on or before April 3d, 1850. This ordinance

was approved by an act of the Legislature of the State in March, 1858,

and the benefit of it and of the confirmatory act was claimed by the

defendant in the test case.

That case was most elaborately argued by able and learned counsel. The

whole law of Mexico respecting _pueblos_, their powers, rights, and

property, and whether, if possessing property, it was subject to

forced sale, the effect upon such land of the change of sovereignty to

the United States, the powers of alcaldes in disposing of the property

of these municipalities, the effect of the Van Ness Ordinance, and

the confirmatory act of the Legislature, were all discussed with a

fullness and learning which left nothing unexplained or to be added.

For weeks afterwards the judges gave the most laborious attention to

the questions presented, and considered every point and the argument

on both sides of it with anxious and painful solicitude to reach a

just conclusion. The opinion of the court, prepared by Mr. Justice

Baldwin, is without precedent for the exhaustive learning and research

it exhibits upon the points discussed. The Court held, among other

things, that, at the date of the conquest and cession of the country, San

Francisco was a pueblo, having the rights which the law of Mexico

conferred upon such municipal organizations; that as such pueblo it

had proprietary rights to certain lands, which were held in trust for

the public use of the city, and were not subject to seizure and sale

under execution; that such portions as were not set apart for common

use or special purposes could be granted in lots to private persons by

its ayuntamiento or by alcaldes or other officers who represented or

had succeeded to its powers; that the lands, and the trusts upon which

they were held, were public and municipal in their nature, and since

the organization of the State were under its control and supervision;

that the act of the Legislature confirming the Van Ness Ordinance

was a proper exercise of the power of the State, and vested in the

possessors therein described, as against the city and State, a title

to the lands mentioned; and that the city held the lands of the

pueblo, not legally disposed of by its officers, unaffected by

sheriff's sales under executions against her.

This decision was of the greatest importance both to the city and

the occupants of land within its limits. The Van Ness Ordinance had

reserved from grant for the uses of the city all the lots which it

then occupied or had set apart for public squares, streets, sites

for school-houses, city hall and other buildings belonging to the

corporation, and also such other lots as it might subsequently select

for public purposes within certain designated limits. All these were

by the decision at once released from any possible claim by virtue

of sales on executions. All persons occupying lands not thus reserved

were by the decision quieted in their possession, so far as any claim

of the city or State could be urged against them. Property to the

value of many millions was thereby rescued from the spoiler and

speculator, and secured to the city or settler. Peace was given to

thousands of homes. Yet for this just and most beneficent judgment

there went up from a multitude, who had become interested in the

sales, a fierce howl of rage and hate. Attacks full of venom were

made upon Judge Baldwin and myself, who had agreed to the decision.

No epithets were too vile to be applied to us; no imputations were too

gross to be cast at us. The Press poured out curses upon our heads.

Anonymous circulars filled with falsehoods, which malignity alone

could invent, were spread broadcast throughout the city, and letters

threatening assassination in the streets or by-ways were sent to us

through the mail. The violence of the storm, however, was too great to

last. Gradually it subsided and reason began to assert its sway. Other

words than those of reproach were uttered; and it was not many months

before the general sentiment of the people of the city was with the

decision. A year did not elapse before the great good it had conferred

upon the city and settler was seen and appreciated. Since then its

doctrines have been repeatedly re-affirmed. They have been approved by

the Supreme Court of the United States; and now no one doubts their

soundness.

After that decision there was still wanting for the complete

settlement of titles in the city the confirmation by the tribunals of

the United States of her claim to the lands. The act of Congress of

March 3d, 1851, creating the Board of Land Commissioners, provided

that all claims to land in California, by virtue of any right or title

derived from the Spanish or Mexican government, should be presented to

the board for examination and adjudication. Accordingly, the city

of San Francisco, soon after the organization of the board, in 1852,

presented her claim for four square leagues as successor of the

_pueblo_, and asked for its confirmation. In December, 1854, the board

confirmed the claim for a portion of the four square leagues, but not

for the whole; the portion confirmed being embraced within the charter

limits of 1851. The city was dissatisfied with this limitation, and

appealed from the decision of the Commissioners to the District Court

of the United States. An appeal was also taken by the United States,

but was subsequently withdrawn. The case remained in the District

Court without being disposed of until September, 1864, nearly ten

years, when, under the authority of an act of Congress of July 1st

of that year, it was transferred to the Circuit Court of the United

States. Whilst the case was pending in the District Court, the

population of the city had increased more than four-fold; and

improvements of a costly character had been made in all parts of it.

The magnitude of the interests which had thus grown up demanded that

the title to the land upon which the city rested should be in some

way definitely settled. To expedite this settlement, as well as the

settlement of titles generally in the State, was the object of the

act of July 1st, 1864. Its object is so stated in its title. It

was introduced by Senator Conness, of California, who was alive to

everything that could tend to advance the interests of the State. He

felt that nothing would promote its peace and prosperity more than

giving security to its land titles, and he labored earnestly to bring

about that result. In framing the act, he consulted me, and at my

suggestion introduced sections four, five, and seven, which I drafted

and gave to him, but without the exception and proviso to the fifth

section, which were added at the request of the Commissioner of the

Land Office.[4] The fourth section authorized the District Court to

transfer to the Circuit Court cases pending before it arising under

the act of March 3d, 1851, affecting the title to lands within the

corporate limits of a city or town, and provided that in such cases

both the District and Circuit Judges might sit. By the fifth section,

all the right and title of the United States to the land within the

corporate limits of the city, as defined by its charter of 1851, were

relinquished and granted to the city and its successors for the uses

and purposes specified in the Van Ness Ordinance. The exceptions

incorporated at the suggestion of the Commissioner of the Land Office

related to parcels of land previously or then occupied by the United

States for military, naval, or other public purposes, and such other

parcels as might be subsequently designated for such purposes by the

President within one year after the return to the land office of

an approved plat of the exterior limits of the city. The holders of

grants from the authorities of the _pueblo_ and the occupants of land

within the limits of the charter of 1851 were thus quieted in their

possessions. But as the claim of the city was for a much greater

quantity, the case for its confirmation was still prosecuted. Under

the fourth section it was transferred to the Circuit Court, as already

stated; and it was soon afterwards brought to a hearing. On the 30th

of October, 1864, it was decided. For some reason I do not now recall,

the District Judge was unable to sit with me, and the case was,

therefore, heard before me alone. I held that a pueblo of some kind

existed at the site of the present city of San Francisco upon the

cession of the country; that as such it was entitled to the possession

of certain lands to the extent of four square leagues; and that

the present city had succeeded to such rights, following, in these

particulars, the decision which had previously been made in the case

of Hart vs. Burnett, by the Supreme Court of the State, in which I had

participated. I accordingly decided that the city was entitled to have

her claim confirmed to four square leagues of land, subject to

certain reservations. But I also added that the lands to which she

was entitled had not been given to her by the laws of the former

government in absolute property with full right of disposition and

alienation, but to be held in trust for the benefit of the whole

community, with such powers of use, disposition, and alienation as had

been or might thenceforth be conferred upon her or her officers for

the execution of the trust. The trust character of the city's title

was expressed in the decree of confirmation. The decision was rendered

on the 30th of October, 1864, as stated, and a decree was soon

afterwards entered; but as a motion was made for a re-hearing, the

control over it was retained by the Circuit Court until May of the

following year. Upon the suggestion of counsel, it was then modified

in some slight particulars so as to limit the confirmation to land

above ordinary high water mark, as it existed at the date of the

acquisition of the country, namely, the 7th of July, 1846. On the 18th

of May, 1865, the decree was finally settled and entered. Appeals from

it were prosecuted to the Supreme Court both by the United States and

by the city; by the United States from the whole decree, and by

the city from so much of it as included certain reservations in the

estimate of the quantity of land confirmed.

In October following I proceeded as usual to Washington to attend the

then approaching term of the Supreme Court, and thought no more of

the case until my attention was called to it by a most extraordinary

circumstance. Just before leaving San Francisco Mr. Rulofson, a

photographer of note, requested me to sit for a photograph, expressing

a desire to add it to his gallery. I consented, and a photograph of a

large size was taken. As I was leaving his rooms he observed that he

intended to make some pictures of a small size from it, and would

send me a few copies. On the morning of the 13th of January following

(1866), at Washington, Mr. Delos Lake, a lawyer of distinction in

California, at one time a District Judge of the State, and then

District Attorney of the United States, joined me, remarking, as he

did so, that the arrival of the California steamer at New York had

been telegraphed, and he hoped that I had received some letters for

him, as he had directed his letters to be forwarded to my care. I

replied that when I left my room my messenger had not brought my

mail; but if he would accompany me there we would probably find it.

Accordingly, we proceeded to my room, where on the centre-table lay

my mail from California, consisting of a large number of letters and

papers. Among them I noticed a small package about an inch and a half

thick, three inches in breadth, and three and a half in length. It was

addressed as follows, the words being printed:

[Illustration:

Per steamer.

[Three postage stamps.]

Hon. STEPHEN J. FIELD,

Washington, D.C.]

It bore the stamp of the San Francisco post-office upon the address.

My name had evidently been cut from the California Reports, but the

words "Washington, D.C.," and "Per steamer," had been taken from a

newspaper. The slips were pasted on the package. On the opposite side

were the words in print:

[Illustration:

From

GEO. H. JOHNSON'S

Pioneer Gallery,

645 and 649 Clay street,

SAN FRANCISCO.]

As I took up the package I remarked that this must come from

Rulofson;--no, I immediately added, Rulofson has nothing to do with

the Pioneer Gallery. It then occurred to me that it might be a present

for my wife, recollecting at the moment that the mail came by the

steamer which sailed from San Francisco about Christmas time. It may

be, I said to myself, a Christmas present for my wife. I will open it

just far enough to see, and, if it be intended for her, I will

close it and forward it to New York, where she was at the time. I

accordingly tore off the covering and raised the lid just far enough

to enable me to look inside. I was at once struck with the black

appearance of the inside. "What is this, Lake?" I said, addressing

myself to my friend. Judge Lake looked over my shoulder into the box,

as I held it in my hand, and at once exclaimed, "It is a torpedo.

Don't open it." I was startled by the suggestion, for the idea of a

torpedo was the last thing in the world to occur to me. I immediately

laid the package on the sill of the window, where it was subjected to

a careful inspection by us both, so far as it could be made with the

lid only an eighth of an inch open.

Soon afterwards Judge Lake took the package to the Capitol, which was

directly opposite to my rooms, and to the office of the Clerk of the

Supreme Court, and showed it to Mr. Broom, one of the deputies. They

dipped the package into water and left it to soak for some minutes.

They then took it into the carriage way under the steps leading to

the Senate Chamber, and shielding themselves behind one of the columns

threw the box against the wall. The blow broke the hinge of the lid

and exposed the contents. A murderous contrivance it was;--a veritable

infernal machine! Twelve cartridges such as are used in a common

pistol, about an inch in length, lay imbedded in a paste of some kind,

covered with fulminating powder, and so connected with a bunch of

friction matches, a strip of sand-paper, and a piece of linen attached

to the lid, that on opening the box the matches would be ignited and

the whole exploded. The package was sent to the War Department, and

the following report was returned, giving a detailed description of

the machine:

WASHINGTON ARSENAL, _Jan. 16, 1866_.

_Gen. A.B. Dyer, Chief of Ordnance, Washington, D.C._

SIR: Agreeably to your instructions, I have examined the

explosive machine sent to this arsenal yesterday. It is a

small miniature case containing twelve copper cartridges, such

as are used in a Smith & Wesson pocket pistol, a bundle of

sensitive friction matches, a strip of sand-paper, and some

fulminating powder. The cartridges and matches are imbedded

in common glue to keep them in place. The strip of sand-paper

lies upon the heads of the matches. One end has been thrown

back, forming a loop, through which a bit of thread evidently

passed to attach it to the lid of the case. This thread may be

seen near the clasp of the lid, broken in two. There are two

wire staples, under which the strip of sand-paper was intended

to pass to produce the necessary pressure on the matches.

The thread is so fixed that the strip of sand-paper could be

secured to the lid after it was closed.

The whole affair is so arranged that the opening of the lid

would necessarily ignite the matches, were it not that the

lower end of the strip has become imbedded in the glue, which

prevents it from moving. That the burning of the matches may

explode the cartridges, there is a hole in each case, and all

are covered with mealed powder.

One of the cartridges has been examined and found to contain

ordinary grain powder. Two of the cartridges were exploded in

a closed box sent herewith. The effect of the explosion was an

indentation on one side of the box.

Very respectfully, your obedient servant,

J.G. BENTON,

_Major of Ord. and Bvt. Col. Comdg._

Between the outside covering and the box there were two or three folds

of tissue-paper--placed there, no doubt, to prevent the possibility

of an explosion from the stamping at the post office, or the striking

against other packages during the voyage from San Francisco to New

York.

On the inside of the lid was pasted a slip cut from a San Francisco

paper, dated October 31st, 1864, stating that on the day previous I

had decided the case of the City against the United States, involving

its claim to four square leagues of land, and giving the opening lines

of my opinion.

The Secretary of War, Mr. Stanton, immediately telegraphed in cypher

to General Halleck, then in command in San Francisco, to take active

measures to find out, if possible, the person who made and sent the

infernal machine. General Halleck put the detectives of his department

on the search. Others employed detectives of the San Francisco

police--but all in vain. Suspicions were excited as to the complicity

of different parties, but they were never sustained by sufficient

evidence to justify the arrest of any one. The instrument, after

remaining in the hands of the detectives in San Francisco for nearly

two years, was returned to me and it is now in my possession.[5]

It has often been a matter of wonder to me how it was that some good

angel whispered to me not to open the box. My impetuous temperament

would naturally have led me to tear it open without delay. Probably

such hesitation in opening a package directed to me never before

occurred, and probably never will again. Who knows but that a mother's

prayer for the protection of her son, breathed years before, was

answered then? Who can say that her spirit was not then hovering over

him and whispering caution in his ear? That I should on that occasion

have departed from my usual mode of action is strange--passing

strange.

* * * * *

As already stated, the fifth section of the act of Congress of July

1st, 1864, which granted the interest of the United States to

the lands within the charter limits of 1851 to the city and its

successors, in trust for the benefit of possessors under the Van Ness

Ordinance, among other things provided for certain reservations

to be subsequently made by the President, within one year after an

approved plat showing the exterior limits of the city had been filed

in the land office. No such map was filed nor were any reservations

made. The case on appeal in the meantime was not reached in

the Supreme Court, and was not likely to be for a long period.

Ascertaining from General Halleck that the Secretary of War would

not recommend any further reservations to be made from the municipal

lands, and that probably none would be made, I drew a bill to quiet

the title of the city to all the lands embraced within the decree

of confirmation, and gave it to Senator Conness, who being ready, as

usual, to act for the interests of the city, immediately took charge

of it and secured its passage in the Senate. In the House Mr. McRuer,

Member of Congress from California, took charge of it, and with the

assistance of the rest of the delegation from the State, procured its

passage there. It was signed by the President and became a law on the

8th of March, 1866. By it all the right and title of the United

States to the land covered by the decree of the Circuit Court were

relinquished and granted to the city, and the claim to the land was

confirmed, subject, however, to certain reservations and exceptions;

and upon trust that all the land not previously granted to the city,

should be disposed of and conveyed by the city to the parties in the

bona fide actual possession thereof, by themselves or tenants, on the

passage of the act, in such quantities, and upon such terms and

conditions, as the Legislature of the State of California might

prescribe, except such parcels thereof as might be reserved and set

apart by ordinance of the city for public uses.