Not long afterwards both the appeals to the Supreme Court were

dismissed by stipulation of parties. The litigation over the source

of title to lands within the limits of the city, not disposed of by

independent grants of the government previous to the acquisition of

the country, was thus settled and closed. The title of the city rests,

therefore, upon the decree of the Circuit Court entered on the 18th

day of May, 1865, and this confirmatory act of Congress. It has been

so adjudged by the Supreme Court of the United States.--(See Townsend

vs. Greely, 5 Wall., 337; Grisar vs. McDowell, 6 Wall., 379.)

The title of the city being settled, the municipal authorities took

measures, under the provisions of the confirmatory act, to set apart

lands for school-houses, hospitals, court-house buildings, and

other public purposes, and through their exertions, instigated and

encouraged by Mr. McCoppin, the accomplished and efficient Mayor

of the city at that time, the Ocean Park, which looks out upon the

Pacific Ocean and the Golden Gate, and is destined to be one of the

finest parks in the world, was set apart and secured to the city for

all time. As the grounds thus taken were, in many instances, occupied

by settlers, or had been purchased from them, an assessment was

levied by the city and sanctioned by the Legislature upon other lands

conveyed to the occupants, as a condition of their receiving deeds

from the city; and the money raised was applied to compensate those

whose lands had been appropriated.

[1] Mr. Justice Clifford.

[2] Cornwall vs. Culver, 16 Cal., 429.

[3] Van Reynegan vs. Bolton, 95 U.S., 33.

[4] See Exhibit J, in Appendix.

[5] See Exhibit K, in Appendix.

HOSTILITY TO THE SUPREME COURT AFTER THE CIVIL WAR.--THE SCOFIELD

RESOLUTION.

The irritations and enmities created by the civil war did not end with

the cessation of active hostilities. They were expressed whenever

any acts of the military officers of the United States were called in

question; or any legislation of the States or of Congress in hostility

to the insurgents was assailed; or the validity of the "Reconstruction

Acts" was doubted. And they postponed that cordial reconciliation

which all patriotic men earnestly desired.

The insurrection was overthrown after a contest which, for its

magnitude and the number and courage of the belligerents, was without

a parallel in history. The immense loss of life and destruction of

property caused by the contest, and the burden of the enormous debt

created in its prosecution, left a bitterness in the hearts of the

victors which it was difficult to remove. The assassination of Mr.

Lincoln added intensity to the feeling. That act of a madman, who had

conceived the idea that he might become in our history what Brutus was

in the history of Rome, the destroyer of the enemy of his country, was

ascribed to a conspiracy of leading Confederates. The proclamation of

the Secretary of War, offering a reward for the arrest of parties

charged with complicity in the act, gave support to this notion. The

wildest stories, now known to have had no foundation, were circulated

and obtained ready credence among the people of the North, already

wrought up to the highest pitch of excitement. They manifested,

therefore, great impatience when a doubt was cast upon the propriety

or validity of the acts of the government, or of its officers, which

were taken for the suppression of the rebellion or "the reconstruction"

of the States; and to question their validity was almost considered

proof of hostility to the Union.

By those who considered the union indissoluble, except by the common

consent of the people of the several States, the organization known

as the Confederate States could only be regarded as unlawful and

rebellious, to be suppressed, if necessary, by force of arms. The

Constitution prohibits any treaty, alliance, or confederation by one

State with another, and it declares on its face that it is the supreme

law of the land. The Confederate government, therefore, could only

be treated by the United States as the military representative of the

insurrection against their authority. Belligerent rights were accorded

to its armed forces in the conduct of the war, and they thus had

the standing and rights of parties engaged in lawful warfare. But no

further recognition was ever given to it, and when those forces were

overthrown its whole fabric disappeared. But not so with the insurgent

States which had composed the Confederacy. They retained the same

form of government and the same general system of laws, during and

subsequent to the war, which they had possessed previously. Their

organizations as distinct political communities were not destroyed

by the war, although their relations to the central authority were

changed. And their acts, so far as they did not impair or tend to

impair the supremacy of the general government, or the rights of

citizens of the loyal States, were valid and binding. All the ordinary

authority of government for the protection of rights of persons and

property, the enforcement of contracts, the punishment of crime, and

the due order of society, continued to be exercised by them as though

no civil war had existed.

There was, therefore, a general expectation throughout the country,

upon the cessation of actual hostilities, that these States would

be restored to their former relations in the Union as soon as

satisfactory evidence was furnished to the general government that

resistance to its authority was overthrown and abandoned, and its laws

were enforced and obeyed. Some little time might elapse before this

result would clearly appear. It was not expected that they would be

immediately restored upon the defeat of the armies of the Confederacy,

nor that their public men, with the animosities of the struggle still

alive, would at once be admitted into the councils of the nation, and

allowed to participate in its government. But whenever it was

satisfactorily established that there would be no renewal of the

struggle and that the laws of the United States would be obeyed, it

was generally believed that the restoration of the States would be

an accomplished fact.

President Johnson saw in the institution of slavery the principal

source of the irritation and ill-feeling between the North and the

South, which had led to the war. He believed, therefore, that its

abolition should be exacted, and that this would constitute a complete

guaranty for the future. At that time the amendment for its abolition,

which had passed the two Houses of Congress, was pending before the

States for their action. He was of opinion, and so expressed himself

in his first message to Congress, that its ratification should be

required of the insurgent States on resuming their places in the

family of the Union; that it was not too much, he said, to ask of them

"to give this pledge of perpetual loyalty and peace." "Until it is

done," he added, "the past, however much we may desire it, will not be

forgotten. The adoption of the amendment re-unites us beyond all power

of disruption. It heals the wound that is still imperfectly closed; it

removes slavery, the element which has so long perplexed and divided

the country; it makes of us once more a united people, renewed and

strengthened, bound more than ever to mutual affection and support."

It would have been most fortunate for the country had this condition

been deemed sufficient and been accepted as such. But the North was in

no mood for a course so simple and just. Its leaders clamored for

more stringent measures, on the ground that they were needed for the

protection of the freedmen, and the defeat of possible schemes for

a new insurrection. It was not long, therefore, before a system of

measures was adopted, which resulted in the establishment at the South

of temporary governments, subject to military control, the offices of

which were filled chiefly by men alien to the States and indifferent

to their interests. The misrule and corruption which followed are

matters of public history. It is no part of my purpose to speak of

them. I wish merely to refer to the state of feeling existing upon the

close of the civil war as introductory to what I have to say of the

unfriendly disposition manifested at the North towards the Supreme

Court and some of its members, myself in particular.

Acts of the military officers, and legislation of some of the States

and of Congress, during and immediately succeeding the war, were soon

brought to the consideration of the Court. Its action thereon was

watched by members of the Republican party with manifest uneasiness

and distrust. Its decision in the Dred Scott case had greatly impaired

their confidence in its wisdom and freedom from political influences.

Many of them looked upon that decision as precipitating the war upon

the country, by the sanction it gave to efforts made to introduce

slavery into the Territories; and they did not hesitate to express

their belief that the sympathies of a majority of the Court were with

the Confederates. Intimations to that effect were thrown out in

some of the journals of the day, at first in guarded language, and

afterwards more directly, until finally it came to be generally

believed that it was the purpose of the Court, if an opportunity

offered, to declare invalid most of the legislation relating to the

Southern States which had been enacted during the war and immediately

afterwards. Nothing could have been more unjust and unfounded. Many

things, indeed, were done during the war, and more after its

close, which could not be sustained by any just construction of the

limitations of the Constitution. It was to be expected that many

things would be done in the heat of the contest which could not bear

the examination of calmer times. Mr. Chief Justice Chase expressed

this fact in felicitous language when speaking of his own change of

views as to the validity of the provision of law making government

notes a legal tender, he said: "It is not surprising that amid the

tumult of the late civil war, and under the influence of apprehensions

for the safety of the Republic almost universal, different views,

never before entertained by American statesmen or jurists, were

adopted by many. The time was not favorable to considerate reflection

upon the constitutional limits of legislative or executive authority.

If power was assumed from patriotic motives, the assumption found

ready justification in patriotic hearts. Many who doubted yielded

their doubts; many who did not doubt were silent. Those who were

strongly averse to making government notes a legal tender felt

themselves constrained to acquiesce in the views of the advocates

of the measure. Not a few who then insisted upon its necessity, or

acquiesced in that view, have, since the return of peace, and under

the influence of the calmer time, reconsidered this conclusion, and

now concur in those which we have just announced."

Similar language might be used with reference to other things done

during the war and afterwards, besides making government notes a

legal tender. The Court and all its members appreciated the great

difficulties and responsibilities of the government, both in the

conduct of the war, and in effecting an early restoration of the

States afterwards, and no disposition was manifested at any time to

place unnecessary obstacles in its way. But when its measures and

legislation were brought to the test of judicial judgment there

was but one course to pursue, and that was to apply the law and

the Constitution as strictly as though no war had ever existed. The

Constitution was not one thing in war, and another in peace. It always

spoke the same language, and was intended as a rule for all times

and occasions. It recognized, indeed, the possibility of war, and, of

course, that the rules of war had to be applied in its conduct in the

field of military operations. The Court never presumed to interfere

there, but outside of that field, and with respect to persons not in

the military service within States which adhered to the Union, and

after the war in all the States, the Court could not hesitate to say

that the Constitution, with all its limitations upon the exercise of

executive and legislative authority, was, what it declares on its face

to be, the supreme law of the land, by which all legislation, State

and federal, must be measured.

The first case growing out of the acts of military officers during

the war, which attracted general attention and created throughout the

North an uneasy feeling, was the Milligan case, which was before the

Court on habeas corpus. In October, 1864, Milligan, a citizen of the

United States and a resident of Indiana, had been arrested by order

of the military commander of the district and confined in a military

prison near the capital of the State. He was subsequently, on the 21st

of the same month, put on trial before a military commission convened at

Indianapolis, in that State, upon charges of: 1st. Conspiring against

the government of the United States; 2d. Affording aid and comfort to

the rebels against the authority of the United States; 3d. Inciting

insurrection; 4th. Disloyal practices; and 5th. Violations of the laws

of war; and was found guilty and sentenced to death by hanging. He had

never been in the military service; there was no rebellion in Indiana;

and the civil courts were open in that State and in the undisturbed

exercise of their jurisdiction. The sentence of the military

commission was affirmed by the President, who directed that it should

be carried into immediate execution. The condemned thereupon presented

a petition to the Circuit Court of the United States in Indiana for a

writ of habeas corpus, praying to be discharged from custody, alleging

the illegality of his arrest and of the proceedings of the military

commission. The judges of the Circuit Court were divided in opinion

upon the question whether the writ should be issued and the prisoner

be discharged, which, of course, involved the jurisdiction of the

military commission to try the petitioner. Upon a certificate of the

division the case was brought to the Supreme Court at the December

term of 1865. The case has become historical in the jurisprudence of

the country, and it is unnecessary to state the proceedings at length.

Suffice it to say that it was argued with great ability by eminent

counsel--consisting of Mr. Joseph E. McDonald, now U.S. Senator from

Indiana, Mr. James A. Garfield, a distinguished member of Congress,

Mr. Jeremiah S. Black, the eminent jurist of Pennsylvania, and Mr.

David Dudley Field, of New York, for the petitioner; and by Mr.

Henry Stanbery, the Attorney-General, and Gen. B.F. Butler, for the

government. Their arguments were remarkable for learning, research,

ability, and eloquence, and will repay the careful perusal not only of

the student of law, but of all lovers of constitutional liberty. Only

a brief synopsis of them is given in the report of the case in 4th

Wallace. The decision of the Court was in favor of the liberty of the

citizen. Its opinion was announced by Mr. Justice Davis, and it will

stand as a perpetual monument to his honor. It laid down in clear and

unmistakable terms the doctrine that military commissions organized

during the war, in a State not invaded nor engaged in rebellion, in

which the federal courts were open and in the undisturbed exercise of

their judicial functions, had no jurisdiction to try a citizen who was

not a resident of a State in rebellion, nor a prisoner of war, nor a

person in the military or naval service; and that Congress could not

invest them with any such power; and that in States where the

courts were thus open and undisturbed the guaranty of trial by jury

contained in the Constitution was intended for a state of war as well

as a state of peace, and is equally binding upon rulers and people at

all times and under all circumstances.

This decision was concurred in by Justices Nelson, Grier, Clifford,

and myself, then constituting, with Justice Davis, a majority of the

Court. At this day it seems strange that its soundness should have

been doubted by any one, yet it was received by a large class--perhaps

a majority of the Northern people--with disfavor, and was denounced

in unmeasured terms by many influential journals. It was cited as

conclusive evidence of the hostility of the Court to the acts of the

government for the suppression of the rebellion. The following,

taken from the _Daily Chronicle_ of January 14th, 1867, a journal of

Washington, edited by Mr. Forney, then Secretary of the Senate, is a

fair sample of the language applied to the decision:

"The opinion of the Supreme Court on one of the most momentous

questions ever submitted to a judicial tribunal, has not

startled the country more by its far-reaching and calamitous

results, than it has amazed jurists and statesmen by the

poverty of its learning and the feebleness of its logic. It

has surprised all, too, by its total want of sympathy with the

spirit in which the war for the Union was prosecuted, and,

necessarily, with those great issues growing out of it, which

concern not only the life of the Republic, but the very

progress of the race, and which, having been decided on the

battle-field, are now sought to be reversed by the very theory

of construction which led to rebellion."

At the same term with the Milligan case the test-oath case from

Missouri was brought before the Court and argued. In January, 1865, a

convention had assembled in that State to amend its constitution. Its

members had been elected in November previous. In April, 1865, the

constitution, as revised and amended, was adopted by the convention,

and in June following by the people. Elected, as the members were,

in the midst of the war, it exhibited throughout traces of the

animosities which the war had engendered. By its provisions the most

stringent and searching oath as to past conduct known in history was

required, not only of officers under it, but of parties holding trusts

and pursuing avocations in no way connected with the administration of

the government. The oath, divided into its separates parts, contained

more than thirty distinct affirmations touching past conduct, and even

embraced the expression of sympathies and desires. Every person unable

to take the oath was declared incapable of holding, in the State, "any

office of honor, trust, or profit under its authority, or of being

an officer, councilman, director, or trustee, or other manager of any

corporation, public or private, now existing or hereafter established

by its authority, or of acting as a professor or teacher in any

educational institution, or in any common or other school, or of

holding any real estate or other property in trust for the use of any

church, religious society, or congregation."

And every person holding, at the time the amended constitution took

effect, any of the offices, trusts, or positions mentioned, was

required, within sixty days thereafter, to take the oath; and, if

he failed to comply with this requirement, it was declared that his

office, trust, or position should _ipso facto_ become vacant.

No person, after the expiration of the sixty days, was permitted,

without taking the oath, "to practice as an attorney or

counsellor-at-law," nor, after that period could "any person be

competent as a bishop, priest, deacon, minister, elder, or other

clergyman, of any religious persuasion, sect, or denomination, to

teach, or preach, or solemnize marriages."

Fine and imprisonment were prescribed as a punishment for holding or

exercising any of "the offices, positions, trusts, professions,

or functions" specified, without having taken the oath; and false

swearing or affirmation in taking it was declared to be perjury,

punishable by imprisonment in the penitentiary.

Mr. Cummings of Missouri, a priest of the Roman Catholic Church, was

indicted and convicted in one of the Circuit Courts of that State, of

the crime of teaching and preaching as a priest and minister of

that religious denomination without having first taken the oath thus

prescribed, and was sentenced to pay a fine of five hundred dollars

and to be committed to jail until the same was paid. On appeal to the

Supreme Court of the State the judgment was affirmed, and the case

was brought on a writ of error to our court. It was there argued with

great learning and ability by Mr. Montgomery Blair, of Washington, Mr.

David Dudley Field, of New York, and Mr. Reverdy Johnson, of Maryland,

for Mr. Cummings; and by Mr. G.P. Strong and Mr. John B. Henderson, of

Missouri, the latter then United States Senator for the State.

It was evident, after a brief consideration of the case, that the

power asserted by the State of Missouri to exact this oath for past

conduct from parties, as a condition of their continuing to pursue

certain professions, or to hold certain trusts, might, if sustained,

be often exercised in times of excitement to the oppression, if not

ruin, of the citizen. For, if the State could require the oath for the

acts mentioned, it might require it for any other acts of one's past

life, the number and character of which would depend upon the mere

will of its legislature. It might compel one to affirm, under oath,

that he had never violated the ten commandments, nor exercised his

political rights except in conformity with the views of the existing

majority. Indeed, under this kind of legislation, the most flagrant

wrongs might be committed and whole classes of people deprived, not

only of their political, but of their civil rights.

It is difficult to speak of the whole system of expurgatory oaths for

past conduct without a shudder at the suffering and oppression they

were not only capable of effecting but often did effect. Such oaths

have never been exacted in England, nor on the Continent of Europe;

at least I can recall no instance of the kind. Test-oaths there have

always been limited to an affirmation on matters of present belief, or

as to present disposition towards those in power. It was reserved for

the ingenuity of legislators in our country during the civil war to

make test-oaths reach to past conduct.

The Court held that enactments of this character, operating, as they

did, to deprive parties by legislative decree of existing rights for

past conduct, without the formality and the safeguard of a judicial

trial, fell within the inhibition of the Constitution against the

passage of bills of attainder. In depriving parties of existing rights

for past conduct, the provisions of the constitution of Missouri

imposed, in effect, a punishment for such conduct. Some of the acts

for which such deprivation was imposed were not punishable at the

time; and for some this deprivation was added to the punishments

previously prescribed, and thus they fell under the further prohibition

of the Constitution against the passage of an _ex post facto_ law. The

decision of the Court, therefore, was for the discharge of the Catholic

priest. The judgment against him was reversed, and the Supreme Court of

Missouri was directed to order the inferior court by which he was tried

to set him at liberty.

Immediately following the case of Cummings that of _Ex-parte_ Garland

was argued, involving the validity of the iron-clad oath, as it was

termed, prescribed for attorneys and counsellors-at-law by the act of

Congress of January 24th, 1865. Mr. A.H. Garland, now United States

Senator from Arkansas, had been a member of the Bar of the Supreme

Court of the United States before the civil war. When Arkansas passed

her ordinance of secession and joined the Confederate States, he went

with her, and was one of her representatives in the Congress of the

Confederacy. In July, 1865, he received from the President a full

pardon for all offences committed by his participation, direct or

implied, in the rebellion. At the following term of the Court he

produced his pardon and asked permission to continue to practice as an

attorney and counsellor without taking the oath required by the act of

Congress, and the rule of the Court made in conformity with it, which

he was unable to take by reason of the offices he had held under the

Confederate government. The application was argued by Mr. Matthew H.

Carpenter, of Wisconsin, and Mr. Reverdy Johnson, of Maryland, for the

petitioner--Mr. Garland and Mr. Marr, another applicant for admission,

who had participated in the rebellion, filing printed arguments--and

by Mr. Speed, of Kentucky, and Mr. Henry Stanbery, the Attorney-General,

on the other side. The whole subject of expurgatory oaths was discussed,

and all that could be said on either side was fully and elaborately

presented.

The Court in its decision followed the reasoning of the Cummings

case and held the law invalid, as applied to the exercise of the

petitioner's right to practice his profession; that such right was

not a mere indulgence, a matter of grace and favor, revocable at the

pleasure of the Court, or at the command of the legislature; but was

a right of which the petitioner could be deprived only by the judgment

of the Court for moral or professional delinquency. The Court also

held that the pardon of the petitioner released him from all penalties

and disabilities attached to the offence of treason committed by his

participation in the rebellion, and that, so far as that offence was

concerned, he was placed beyond the reach of punishment of any kind.

But to exclude him by reason of that offence--that is, by requiring

him to take an oath that he had never committed it--was to enforce

a punishment for it notwithstanding the pardon; and that it was not

within the constitutional power of Congress thus to inflict punishment

beyond the reach of executive clemency.

I had the honor to deliver the opinion of the Court in these

cases--the Cummings case and the Garland case. At the present day both

opinions are generally admitted to be sound, but when announced they

were received by a portion of the Northern Press with apparent

astonishment and undisguised condemnation. It is difficult to appreciate

at this day the fierceness with which the majority of the Court was

assailed. That majority consisted of Justices Wayne, Nelson, Grier,

Clifford, and myself. I was particularly taken to task, however, as it

was supposed--at least I can only so infer from the tone of the

Press--that because I had been appointed by Mr. Lincoln, I was under

some sort of moral obligation to support all the measures taken by the

States or by Congress during the war. The following, respecting the

opinion in the Garland case, from the editor of the _Daily Chronicle_,

of Washington, to the _Press_, of Philadelphia, under date of January

16, 1867, is moderate in its language compared with what appeared in

many other journals:

"Dred Scott Number Three has just been enacted in the Supreme

Court of the United States, Justice Field, of California,

taking the leading part as the representative of the majority

decision against the constitutionality of the iron-clad

test-oath, to prevent traitors from practicing before that

high tribunal. I understand it takes the ground that, as the

law is a living or profession, the oath cannot be insisted

upon to take that living away, and that the President's pardon

restores all such rights. The country has been repeatedly

admonished that such a decision would be made about this time;

nevertheless, a very considerable sensation was created when

it was officially enunciated. All these movements are but

preparations for a counter-revolution in the interest of

slavery and treason." ---- "I learn that the opinion of Justice

Field against the test-oath, like that against military trials

in time of war, goes outside of the immediate case in issue,

and indulges in a fierce onslaught upon test-oaths

in general. If so, it will only add another reason for such a

re-organization as will prevent the judges in the last resort

from becoming the mere agents of party, or the mere defenders

of rebellion. The adage constantly quoted, yet never out of

fashion, that 'Whom the Gods wish to destroy they first make

mad,' is having a pointed illustration in these successive

judicial assaults upon the rights of the people. Although

the Supreme Judges hold for life, there is at once precedent,

necessity, and law for such a change in the present system

as will in a short time make it a fearless interpreter of

republican institutions, instead of the defender and apologist

of treason."

The decisions were announced on the 14th of January, 1867. On the 22d

of the month, Mr. Boutwell, from Massachusetts, introduced a bill

into the House far more stringent in its provisions than the act of

Congress just declared invalid. It was a pitiable exhibition of hate

and vengeance against all persons who had been engaged, directly or

indirectly, in the rebellion. It declared that no person who had been

thus engaged should be permitted to act as an attorney and counsellor

in any courts of the United States; and made it the duty of the

judges, when it was suggested in open court, or when they had reason

to believe that any person was thus debarred, to enquire and ascertain

whether he had been so engaged, and if the court was of opinion that

such was the fact, he was to be excluded. The court was thus, upon the

suggestion of any one, to be turned into a tribunal for the summary

trial of the accused without the ordinary safeguards for the

protection of his rights. In introducing it Mr. Boutwell, referring to

the decision of the Court, said that--

"If there be five judges upon the bench of the highest

tribunal who have not that respect for themselves to enact

rules, and to enforce proper regulations, by which they will

protect themselves from the contamination of conspirators and

traitors against the government of the country, then the time

has already arrived when the legislative department of the

government should exercise its power to declare who shall be

officers of the government in the administration of the law in

the courts of the Union; and this bill is for that purpose."

And he called for the previous question upon it. In subsequently

advocating its passage, he said:

"I say here upon my responsibility, with reference to the

recent decision of the Supreme Court, that it is an offence

to the dignity and respectability of the nation that this

tribunal, under the general authority vested in it under

the Constitution and laws, does not protect itself from the

contamination of rebels and traitors, until the rebellion

itself shall be suppressed and those men shall be restored to

their former rights as citizens of the country."

This language was used in 1867, and the last gun of the war had been

fired in May, 1865. It showed the irritation of violent partisans

of the North against the Court because it gave no sanction to their

vindictive and proscriptive measures.

The bill was passed, under a suspension of the rules, by a vote of 111

to 40.[1]

The Reconstruction Acts, so-called--that is, "An act to provide for

the more efficient government of the rebel States," of March 2d, 1867,

and an act of the 23d of the same month, supplementary to the

former--were at once attacked, as may well be supposed, as invalid,

unconstitutional, and arbitrary measures of the government; and

various steps were taken at an early day to bring them to the test

of judicial examination and arrest their enforcement. Those acts

divided the late insurgent States, except Tennessee, into five

military districts, and placed them under military control to be

exercised until constitutions, containing various provisions stated,

were adopted and approved by Congress, and the States declared to

be entitled to representation in that body. In the month of April

following the State of Georgia filed a bill in the Supreme Court,

invoking the exercise of its original jurisdiction, against Stanton,

Secretary of War, Grant, General of the Army, and Pope, Major-General,

assigned to the command of the Third Military District, consisting

of the States of Georgia, Florida, and Alabama; to restrain those

officers from carrying into effect the provisions of those acts. The

bill set forth the existence of the State of Georgia as one of the

States of the Union; the civil war in which she, with other States

forming the Confederate States, had been engaged with the government

of the United States; the surrender of the Confederate armies in 1865,

and her submission afterwards to the Constitution and laws of the

Union; the withdrawal of the military government from Georgia by the

President as Commander-in-Chief of the Army of the United States;

the re-organization of the civil government of the State under

his direction and with his sanction; and that the government thus

re-organized was in the full possession and enjoyment of all the

rights and privileges, executive, legislative, and judicial, belonging

to a State in the Union under the Constitution, with the exception of

a representation in the Senate and House of Representatives. The

bill alleged that the acts were designed to overthrow and annul the

existing government of the State, and to erect another and a different

government in its place, unauthorized by the Constitution and in

defiance of its guarantees; that the defendants, acting under orders

of the President, were about to set in motion a portion of the army

to take military possession of the State, subvert her government, and

subject her people to military rule. The presentation of this bill

and the argument on the motion of the Attorney-General to dismiss it

produced a good deal of hostile comment against the Judges, which did

not end when the motion was granted. It was held that the bill

called for judgment upon a political question, which the Court had no

jurisdiction to entertain.[2]

Soon afterwards the validity of the Reconstruction Acts was again

presented in the celebrated McArdle case, and in such a form that the

decision of the question could not well be avoided. In November, 1867,

McArdle had been arrested and held in custody by a military commission

organized in Mississippi under the Reconstruction Acts, for trial upon

charges of (1) disturbance of the public peace; (2) inciting to

insurrection, disorder, and violence; (3) libel; and (4) impeding

reconstruction. He thereupon applied to the Circuit Court of the United

States for the District of Mississippi for a writ of habeas corpus, in

order that he might be discharged from his alleged illegal imprisonment.

The writ was accordingly issued, but on the return of the officer showing

the authority under which the petitioner was held, he was ordered to be

remanded. From that judgment he appealed to the Supreme Court. Of

course, if the Reconstruction Acts were invalid, the petitioner could

not be held, and he was entitled to his discharge. The case excited

great interest throughout the country. Judge Sharkey and Robert J.

Walker, of Mississippi, David Dudley Field and Charles O'Connor, of

New York, and Jeremiah S. Black, of Pennsylvania, appeared for the

appellant; and Matthew H. Carpenter, of Wisconsin, Lyman Trumbull, of

Illinois, and Henry Stanbery, the Attorney-General, appeared for the

other side. The hearing of it occupied four days, and seldom has it

been my fortune during my judicial life, now (1877) of nearly

twenty years, to listen to arguments equal in learning, ability, and

eloquence. The whole subject was exhausted. As the arguments were

widely published in the public journals, and read throughout the

country, they produced a profound effect. The impression was general

that the Reconstruction Acts could not be sustained; that they were

revolutionary and destructive of a republican form of government in

the States, which the Constitution required the Federal government to

guarantee. I speak now merely of the general impression. I say nothing

of the fact, as the Court never expressed its opinion in judgment. The

argument was had on the 2d, 3d, 4th, and 9th of March, 1868, and it

ought to have been decided in regular course of proceedings when it

was reached on the second subsequent consultation day, the 21st. The

Judges had all formed their conclusions, and no excuse was urged

that more time was wanted for examination. In the meantime an act was

quietly introduced into the House, and passed, repealing so much of

the law of February 5th, 1867, as authorized an appeal to the Supreme

Court from the judgment of the Circuit Court on writs of _habeas

corpus_, or the exercise of jurisdiction on appeals already taken. The

President vetoed the bill, but Congress passed it over his veto, and

it became a law on the 27th of the month.[3] Whilst it was pending in

Congress the attention of the Judges was called to it, and in

consultation on the 21st they postponed the decision of the case

until it should be disposed of. It was then that Mr. Justice

Grier wrote the following protest, which he afterwards read in Court:

IN RE }

MCARDLE.} PROTEST OF MR. JUSTICE GEIER.

This case was fully argued in the beginning of this month. It

is a case that involves the liberty and rights not only of the

appellant, but of millions of our fellow-citizens. The country

and the parties had a right to expect that it would receive

the immediate and solemn attention of this Court. By the

postponement of the case we shall subject ourselves, whether

justly or unjustly, to the imputation that we have evaded the

performance of a duty imposed on us by the Constitution, and

waited for legislation to interpose to supersede our action

and relieve us from our responsibility. I am not willing to be

a partaker either of the eulogy or opprobrium that may follow;

and can only say:

"Pudet haec opprobria nobis,

Et dici potuisse; et non potuisse repelli."[4]

R.C. GRIER.

I am of the same opinion with my brother Grier, and unite in

his protest.

FIELD, J.

After the passage of the repealing act, the case was continued; and

at the ensuing term the appeal was dismissed for want of

jurisdiction.--(7 Wall., 506.)

The record had been filed early in the term, and, as the case involved

the liberty of the citizen, it was advanced on the calendar on motion

of the appellant. From that time until its final disposition the Judges

were subjected to close observation, and most of them to unfriendly

comment. Their every action and word were watched and canvassed as

though national interests depended upon them. I was myself the subject

of a most extraordinary exhibition of feeling on the part of members

of the lower house of Congress, the immediate cause of which was a

circumstance calculated to provoke merriment. Towards the close of

January, 1868, I was invited to a dinner given by Mr. Samuel Ward to

the Secretary of the Treasury, Mr. McCullough. It was understood that

the dinner was to be one of unusual excellence, and that gentlemen

of distinction in Congress would be present. As some of the invited

guests desired to go to New York on the same evening, the hour was

fixed at five. A distinguished party assembled at that time at the

rooms of Welcker, a noted restaurateur in Washington. Our host, Mr.

Ward, was a character deserving of special notice. He had been a

member of the noted firm of bankers, Prime, Ward & King, of New

York; and afterwards represented our government in Brazil. He was an

accomplished linguist, familiar with several languages, ancient and

modern. He was a profound mathematician, and had read, without the

assistance of Bowditch's translation, Laplace's celebrated work, the

"Mécanique Céleste." He passed most of his time during the sessions

of Congress in Washington, looking after the interests of bankers and

others in New York, as they might be affected by pending legislation.

Though called "King of the Lobby," he had little of the character of

the lobbyist. He was a gentleman in manners and education, and as such

he always drew the company of gentlemen to his entertainments. On the

occasion mentioned, some of the brightest spirits of Congress were

present. As we took our seats at the table I noticed on the menu a

choice collection of wines, Johannisberg among others. The dinner was

sumptuous and admirably served. Our host saw that the appropriate wine

accompanied the successive courses. As the dinner progressed, and the

wine circulated, the wit of the guests sparkled. Story and anecdote,

laughter and mirth abounded, and each guest seemed joyous and

happy. At about eight song had been added to other manifestations of

pleasure. I then concluded that I had better retire. So I said to my

host, that if he would excuse me, I would seek the open air; and I

left.

Just at this moment Mr. Rodman M. Price, formerly Governor of New

Jersey, made his appearance and exclaimed, "How is this? I was invited

to dinner at eight"--producing his card of invitation. "Look again,"

said Ward, "and you will see that your eight is a five," And so it

was, "But never mind," said Ward; "the dinner is not over. Judge Field

has just left. Take his seat." And so Price took my place. He had been

travelling in the Southern States, and had been an observer of the

proceedings of various State conventions then in session to frame

constitutions under the Reconstruction Acts, which he termed "Congo

Conventions." To the amusement of the party he gave an account of some

curious scenes he had witnessed in these conventions; and wound up

one or two of his stories by expressing his opinion that the whole

reconstruction measures would soon be "smashed up" and sent to

"kingdom come" by the Supreme Court. The loud mirth and the singing

attracted the attention of news-hunters for the Press--item gatherers

in the rooms below. Unfortunately one of these gentlemen looked

into the banquet-hall just as Price had predicted the fate of

the reconstruction measures at the hands of the Supreme Court. He

instantly smelt news, and enquired of one of the waiters the name of

the gentleman who had thus proclaimed the action of the Court. The

waiter quietly approached the seat of the Governor, and, whilst he was

looking in another direction, abstracted the card near his plate

which bore my name. Here was, indeed, a grand item for a sensational

paragraph. Straight way the newsgatherer communicated it to a

newspaper in Washington, and it appeared under an editorial notice. It

was also telegraphed to a paper in Baltimore. But it was too good

to be lost in the columns of a newspaper. Mr. Scofield, a member of

Congress from Pennsylvania, on the 30th of January, 1868, asked and

obtained unanimous consent of the House to present the following

preamble and resolution:

"Whereas it is editorially stated in the _Evening Express_,

a newspaper published in this city, on the afternoon of

Wednesday, January 29, as follows: 'At a private gathering of

gentlemen of both political parties, one of the Justices

of the Supreme Court spoke very freely concerning the

reconstruction measures of Congress, and declared in the most

positive terms that all those laws were unconstitutional, and

that the Court would be sure to pronounce them so. Some of

his friends near him suggested that it was quite indiscreet to

speak so positively; when he at once repeated his views in a

more emphatic manner; 'and whereas several cases under said

reconstruction measures are now pending in the Supreme Court:

Therefore, be it--

"_Resolved_, That the Committee on the Judiciary be directed to

enquire into the truth of the declarations therein contained,

and report whether the facts as ascertained constitute such a

misdemeanor in office as to require this House to present to

the Senate articles of impeachment against said Justice of the

Supreme Court; and that the committee have power to send for

persons and papers, and have leave to report at any time."

An excited debate at once sprung up in the House, and in the course of

it I was stated to be the offending Justice referred to. Thereupon the

members for California vouched for my loyalty during the war. Other

members wished to know whether an anonymous article in a newspaper was

to be considered sufficient evidence to authorize a committee of

the House to enquire into the private conversation of members of the

Supreme Court. The mover of the resolution, Mr. Scofield, declared

that he knew nothing of the truth of the statement in the paper, but

deemed it sufficient authority for his action, and moved the previous

question on the resolution. Several of the members protested against

the resolution, declaring that it was unworthy of the House to direct

an investigation into the conduct of a judicial officer upon a mere

newspaper statement. But it was of no use. The resolution was adopted

by a vote of 97 to 57--34 not voting. Some members, indeed, voted

for its passage, stating that it was due to myself that I should be

vindicated from the charge implied in the debate; the force of which

reason I have never been able to appreciate.

The resolution was evidently intended to intimidate me, and to act

as a warning to all the Judges as to what they might expect if they

presumed to question the wisdom or validity of the reconstruction

measures of Congress. What little effect it had on me my subsequent

course in the McArdle case probably showed to the House. I had only

one feeling for the movement--that of profound contempt; and I believe

that a similar feeling was entertained by every right-thinking person

having any knowledge of the proceeding.

The facts of the case soon became generally known, and created a

good deal of merriment in Washington. But all through the country

the wildest stories were circulated. Communications of a sensational

character relating to the matter were published in the leading

journals. Here is one which appeared in the New York _Evening Post_

from its correspondent:

"It is the intention of the committee to examine the matter

thoroughly, and in view of this a large number of witnesses

have been summoned to appear on Friday.

"The friends of Justice Field are endeavoring to hush the

matter up, and, if possible, to avert an investigation; but

in this they will be disappointed, for the members of the

Judiciary Committee express themselves firmly determined to

sift the case, and will not hesitate to report articles

of impeachment against Justice Field if the statements are

proved."

Other papers called for the strictest scrutiny and the presentation of

articles of impeachment, representing that I was terribly frightened

by the threatened exposure. So for some months I was amused reading

about my supposed terrible excitement in anticipation of a threatened

removal from office. But, as soon as the author of the objectionable

observations was ascertained, the ridiculous nature of the subsequent

proceedings became manifest. The Chairman of the Judiciary Committee,

Mr. Wilson, of Iowa, occupied a seat next to me at Mr. Ward's dinner,

and knew, of course, that, so far as I was concerned, the whole

story was without foundation. And so he said to his associates on the

Judiciary Comnfittee.

Near the close of the session--on June 18th, 1868--the committee were

discharged from the further consideration of the resolution, and

it was laid on the table--a proceeding which was equivalent to its

indefinite postponement.

The amusing mistake which gave rise to this episode in the lower house

of Congress would be unworthy of the notice I have taken of it,

except that it illustrates the virulent and vindictive spirit which

occasionally burst forth for some time after the close of the war, and

which, it is to be greatly regretted, is not yet wholly extinguished.

[1] Congressional Globe, 39th Congress, 2d Session, Part I.,

pp. 646-649.

When the bill reached the Senate it was referred to the

Judiciary Committee, and by them to a sub-committee of which

Mr. Stewart, Senator from Nevada, was chairman. He retained it

until late in the session, and upon his advice, the committee

then recommended its indefinite postponement. The bill was

thus disposed of.

[2] 6th Wallace, 50.

[3] 15 Stats. at Large, 44.

[4] "It fills us with shame that these reproaches can be uttered,

and cannot be repelled." The words are found in Ovid's

Metamorphoses, Book I., lines 758-9. In some editions the last

word is printed _refelli_.

THE MOULIN VEXATION.

Soon after my appointment to the Bench of the U.S. Supreme Court, I

had a somewhat remarkable experience with a Frenchman by the name of

Alfred Moulin. It seems that this man, sometime in the year 1854

had shipped several sacks of onions and potatoes on one of the mail

steamers, from San Francisco to Panama. During the voyage the ship's

store of fresh provisions ran out, and the captain appropriated the

vegetables, and out of this appropriation originated a long and bitter

prosecution, or rather persecution, on the part of Moulin, who

proved to be not only one of the most malignant, but one of the most

persevering and energetic men I have ever known.

Upon the return of the steamer from Panama to San Francisco, Moulin

presented himself at the steamship company's office, and complained,

as he properly might, of the appropriation of his property, and

demanded compensation. The company admitted his claim and expressed

a willingness to make him full compensation; but when it came to an

adjustment of it, Moulin preferred one so extravagant that it could

not be listened to. The property at the very most was not worth more

than one or two hundred dollars, but Moulin demanded thousands; and

when this was refused, he threatened Messrs. Forbes and Babcock,

the agents of the company, with personal violence. These threats he

repeated from time to time for two or three years, until at length

becoming annoyed and alarmed by his fierce manner, they applied to the

police court and had him bound over to keep the peace.

Notwithstanding he was thus put upon his good behavior, Moulin kept

continually making his appearance and reiterating his demands at the

steamship company's office. Forbes and Babcock repeatedly told him to

go to a lawyer and commence suit for his claim; but Moulin refused to

do so, saying that he could attend to his own business as well as, and

he thought better than, any lawyer. At length, to get rid of further

annoyance, they told him he had better go to New York and see Mr.

Aspinwall, the owner of the vessel, about the matter; and, to enable

him to do so, gave him a free ticket over the entire route from San

Francisco to that city.

Upon arriving in New York, Moulin presented himself to Mr. Aspinwall

and asked that his claim should be allowed. Mr. Aspinwall said that he

knew nothing about his claim and that he did not want to be bothered

with it. Moulin still insisted, and Mr. Aspinwall told him to go away.

Moulin thereupon became excited, said he was determined to be paid,

and that he would not be put off. He thereupon commenced a regular

system of annoyance. When Mr. Aspinwall started to go home from his

office, Moulin walked by his side along the street. When Aspinwall got

into an omnibus, Moulin got in also; when Aspinwall got out, Moulin

got out too. On the following morning, when Aspinwall left his

residence to go to his office, Moulin was on hand, and taking his

place, marched along by his side as before. If Aspinwall hailed an

omnibus and got in, Moulin got in at the same time. If Aspinwall got

out and hailed a private carriage, Moulin got out and hailed another

carriage, and ordered the driver to keep close to Mr. Aspinwall's

carriage. In fact, wherever Aspinwall went Moulin went also, and it

seemed as if nothing could tire him out or deter him from his purpose.

At length Mr. Aspinwall, who had become nervous from the man's

actions, exclaimed, "My God, this man is crazy; he will kill me;"

and calling him into the office, asked him what he wanted in thus

following and persecuting him. Moulin answered that he wanted pay for

his onions and potatoes. Aspinwall replied, "But I don't know anything

about your onions and potatoes; how should I? Go back to my agents in

California, and they will do what is right. I will direct them to do

so." "But," said Moulin, "I have no ticket to go to California;" and

thereupon Aspinwall gave him a free ticket back to San Francisco.

Moulin departed, and in due course of time again presented himself to

Forbes and Babcock, in San Francisco. At the re-appearance of the man,

they were more annoyed than ever; but finally managed to induce him to

commence a suit in the United States District Court. When the case was

called, by an understanding between his lawyer and the lawyer of the

steamship company, judgment was allowed to be entered in Moulin's

favor for four hundred and three dollars and a half, besides costs.

The amount thus awarded greatly exceeded the actual value of the

onions and potatoes appropriated. It was thought by the defendant that

on the payment of so large a sum, the whole matter would be ended.

But Moulin was very far from being satisfied. He insisted that the

judgment ought to have been for three thousand and nine hundred

dollars, besides interest, swelling the amount to over six thousand

dollars, and applied to Judge Hoffman of the District Court to set it

aside. But as the judgment had been rendered for the full value of

the property taken, as admitted by his lawyer, the Judge declined to

interfere. This was in 1861.

In 1863 I received my appointment as Judge of the Supreme Court of the

United States, and was assigned to the circuit embracing the district

of California. Moulin then appealed to the Circuit Court from the

judgment in his favor, and at the first term I held, a motion was made

to dismiss the appeal. I decided that the appeal was taken too late,

and dismissed it. Moulin immediately went to Mr. Gorham, the clerk

of the court, for a copy of the papers, insisting that there was

something wrong in the decision. Gorham asked him what he meant, and

he replied that I had no right to send him out of court, and that

there was something wrong in the matter, but he could not tell exactly

what it was. At this insinuation, Gorham told him to leave the office,

and in such a tone, that he thought proper to go at once and not stand

upon the order of his going. The following year, after Mr. Delos Lake

had been appointed United States District Attorney, Moulin went to his

office to complain of Gorham and myself; but Lake, after listening to

his story, told him to go away. Two or three years afterwards he again

presented himself to Lake and demanded that Judge Hoffman, Gorham,

and myself should be prosecuted. Lake drove him a second time from his

office; and thereupon he went before the United States Grand Jury and

complained of all four of us. As the grand jury, after listening to

his story for a while, dismissed him in disgust, be presented himself

before their successors at a subsequent term and complained of them.

From the Federal Court he proceeded to the State tribunals; and first

of all he went to the County Court of San Francisco with a large

bundle of papers and detailed his grievances against the United States

judges, clerks, district attorney and grand jury. Judge Stanley, who

was then county judge, after listening to Moulin's story, told the

bailiff to take possession of the papers, and when he had done so,

directed him to put them into the stove, where they were soon burned

to ashes. Moulin then complained of Stanley. At the same time, one of

the city newspapers, the "Evening Bulletin," made some comments upon

his ridiculous and absurd proceedings, and Moulin at once sued the

editors. He also brought suit against the District Judge, District

Attorney and his assistant, myself, the clerk of the court, the

counsel against him in the suit with the steamship company and its

agents, and numerous other parties who had been connected with his

various legal movements. And whenever the United States Grand Jury

met, he besieged it with narratives of his imaginary grievances; and,

when they declined to listen to him, he complained of them. The courts

soon became flooded with his voluminous and accumulated complaints

against judges, clerks, attorneys, jurors, editors, and, in fact,

everybody who had any connection with him, however remote, who refused

to listen to them and accede to his demands. By this course Moulin

attracted a good deal of attention, and an inquiry was suggested and

made as to whether he was _compos mentis_. The parties who made

the inquiry reported that he was not insane, but was actuated by

a fiendish malignity, a love of notoriety and the expectation of

extorting money by blackmail. For years--indeed until September,

1871--he continued to besiege and annoy the grand juries of the

United States courts with his imaginary grievances, until he became an

intolerable nuisance. His exemption from punishment had emboldened

him to apply to the officers of the court--the judges, clerks, and

jurors--the most offensive and insulting language. Papers filled with

his billingsgate were scattered all through the rooms of the court, on

the desks of the judges, and on the seats of jurors and spectators. It

seemed impossible, under existing law, to punish him, for his case did

not seem to fall within the class of contempts for which it provided.

But in September of 1871 his insolence carried him beyond the limits

of impunity. In that month he came to the United States Circuit Court,

where Judge Sawyer (then United States Circuit Judge) and myself

were sitting, and asked that the grand jury which was about to be

discharged might be detained; as he proposed to have us indicted for

corruption, and commenced reading a long string of vituperative

and incoherent charges of criminal conduct. The proceeding was so

outrageous that we could not overlook it. We accordingly adjudged him

guilty of contempt, fined him five hundred dollars, and ordered him

to be committed to prison until the fine should be paid. Whilst in

prison, and not long after his commitment, he was informed that upon

making a proper apology for his conduct, he would he discharged.

Instead, however, of submitting to this course, he commenced writing

abusive articles to the newspapers, and sending petitions to the

Legislature charging us with arbitrary and criminal conduct. His

articles were of such a character as to create quite erroneous

impressions of our action. The newspapers, not waiting to ascertain

the facts, at first took sides with him and assailed us. These

attacks, of course, had no effect upon the man's case; but, after he

had remained in prison for several weeks, on understanding that his

health was infirm, and being satisfied that he had been sufficiently

punished, we ordered his discharge.

THE HASTINGS MALIGNITY.

Whilst the Moulin matter was in progress, an individual by the name

of William Hastings was practising before the United States Courts.

He had been, as I am told, a sailor, and was then what is known as a

"sailor's lawyer." He was a typical specimen of that species of the

profession called, in police court parlance, "shysters." He was

always commencing suits for sailors who had wrongs to redress, and

particularly for steerage passengers who complained that they had not

had sufficient accommodations and proper fare. He generally took their

cases on speculation, and succeeded very often in forcing large

sums from vessels libelled, as he was generally careful to bring his

actions so as to arrest the vessels on the eve of their departure,

when the payment of a few hundred dollars was a much cheaper mode of

proceeding for the captains than detention even for a few days.

But in one of his suits in the United States District Court, in the

year 1869, brought for a steerage passenger against a vessel from

Australia, the captain declined to be blackmailed and defended

himself. When the matter came on for hearing, Hastings was found to

have no cause of action, and the case was thereupon dismissed by Judge

Hoffman. Hastings then appealed to the United States Circuit Court,

and that court affirmed the judgment of the District Court. This

happened as I was about leaving for Europe; and I left supposing that

I had heard the last of the case.

During my absence, Hastings moved Judge Hoffman, of the United States

District Court, from whose decision the appeal had been taken, to

vacate the decision of the United States Circuit Court. This, of

course, Judge Hoffman refused. Hastings thereupon made a motion that

my decision should be set aside, on the ground that it was rendered by

fraud and corruption. When Judge Hoffman became aware of the charges

thus made, he was indignant and immediately cited Hastings before

him to show cause why he should not be disbarred and punished for

contempt. Hastings refused to make any explanation or withdraw his

offensive language; and thereupon Judge Hoffman expelled him from the

bar and ordered his name to be stricken from the roll of attorneys.

I was then absent in Europe, and knew nothing whatever of the

proceedings.

About this time Mr. George W. Julian, a member of Congress from

Indiana, came to California and pretended to be a great friend of

the settlers. He obtained the confidence of that large class of

the community, and especially of those who were known as the Suscol

claimants. These were the men who, upon the rejection by the United

States Supreme Court of the so-called Suscol grant, in Napa and Solano

Counties, rushed in and squatted upon the most valuable land in the

State. The title to this land had previously been considered as good

as any in California; it had been held valid by the local tribunals,

and also by the Board of Land Commissioners and by the District Court

of the United States. On the strength of these confirmations the land

had been divided into farms, upon which, besides cultivated fields,

there were numerous orchards, vineyards, gardens, and two cities, each

of which had been the capital of the State. The farms and city lots

had been sold, in good faith, to purchasers at full value. But when

the question came before the United States Supreme Court, and

it appeared that the grant had been made to General Vallejo, in

consideration of military services, and for moneys advanced to the

Mexican government, and not for colonization purposes, it was

held that there was no authority under the Mexican laws for such a

disposition of the public domain, and that the grant was, therefore,

invalid. At the same time Judge Grier filed a dissenting opinion, in

which he expressed a hope that Congress would not allow those who

had purchased in good faith from Vallejo, and expended their money in

improving the land, to be deprived of it. Congress at once acted upon

the suggestion thus made and passed an act allowing the grantees of

Vallejo to purchase the lands occupied by them at a specified sum per

acre. Mr. John B. Frisbie, Vallejo's son-in-law, who had bought and

sold large quantities, took immediate steps to secure himself and his

grantees by purchasing the lands and obtaining patents for them.

In the meanwhile the squatters had located themselves all over the

property; most of them placing small shanties on the land in the

night-time, near the houses, gardens, and vineyards, and on cultivated

fields of the Vallejo grantees. They then filed claims in the Land

Office as pre-emptioners, under the general land laws of the United

States, and insisted that, as their settlements were previous to the

act of Congress, their rights to the land were secure. In this view

Julian, when he came to California, encouraged them, and, as was

generally reported and believed, in consideration of a portion of the

land to be given to him in case of success, undertook to defend their

possessions.[1]

When Frisbie applied, under the provisions of the act of Congress,

for a patent to the land, a man named Whitney, one of the squatters,

protested against its issue, on the ground that under the pre-emption

laws he, Whitney, having settled upon the land, had acquired a vested

right, of which Congress could not deprive him. But the Land Department

took a different view of the matter and issued the patent to Frisbie.

Whitney thereupon commenced a suit against Frisbie in the Supreme

Court of the District of Columbia to have him declared a trustee of

the land thus patented, and to compel him, as such trustee, to execute

a conveyance to the complainant. The Supreme Court of the District of

Columbia decided the case in favor of Whitney, and ordered Frisbie to

execute a conveyance; but on appeal to the Supreme Court the decision

was reversed; and it was held that a pre-emptioner did not acquire any

vested right as against the United States by making his settlement,

nor until he had complied with all the requirements of the law,

including the payment of the purchase-money; and that until then

Congress could reserve the land from settlement, appropriate it to the

uses of the government, or make any other disposition thereof which it

pleased. The court, therefore, adjudged that the Suscol act was valid,

that the purchasers from Vallejo had the first right of entry, and

that Frisbie was accordingly the owner of the land purchased by him.

Soon after the decision was rendered Julian rose in his seat in the

House of Representatives and denounced it as a second Dred Scott

decision, and applied to the members of the court remarks that were

anything but complimentary. It so happened that previous to this

decision a similar suit had been decided in favor of Frisbie by

the Supreme Court of California, in which a very able and elaborate

opinion was rendered by the Chief Justice. I did not see the opinion

until long after it was delivered, and had nothing whatever to do

with it; but in some way or other, utterly inexplicable to me, it was

rumored that I had been consulted by the Chief Justice with respect

to that case, and that the decision had been made through my

instrumentality. With this absurd rumor Hastings, after he had been

disbarred by Judge Hoffman, went on to Washington. There he joined

Julian; and after concocting a long series of charges against Judge

Hoffman and myself, he placed them in Julian's hands, who took

charge of them with alacrity. The two worthies were now to have their

vengeance--Hastings for his supposed personal grievances and Julian

for the Suscol decision which injured his pocket.

These charges on being signed by Hastings were presented to Congress

by Julian; and at his request they were referred to the Judiciary

Committee. That committee investigated them, considered the whole

affair a farce, and paid no further attention to it. But the next year

Mr. Holman, of Indiana, who succeeded Julian, the latter having failed

of a re-election, re-introduced Hastings' memorial at Julian's

request and had it referred to the Judiciary Committee, with express

instructions to report upon it. Hastings appeared for the second

time before that committee and presented a long array of denunciatory

statements, in which Judge Hoffman, myself, and others were charged

with all sorts of misdemeanors. The committee permitted him to go to

any length he pleased, untrammelled by any rules of evidence; and he

availed himself of the license to the fullest extent. There was hardly

an angry word that had been spoken by a disappointed or malicious

litigant against whom we had ever decided, that Hastings did not

rake up and reproduce; and there was hardly an epithet or a term of

villification which he did not in some manner or other manage to lug

into his wholesale charges. As a specimen of his incoherent and wild

ravings, he charged that "the affairs of the federal courts for the

District of California were managed principally in the interests of

foreign capitalists and their co-conspirators, and that the judges

thereof appeared to be under the control of said foreign capitalists,

and that the said courts and the process thereof were being used or

abused to deprive the government of the United States and the citizens

thereof of the property that legally and equitably belonged to them

respectively, and to transfer the same, in violation of law and

through a perversion of public justice, to said foreign capitalists

and their confederates and co-conspirators, and that nearly the

whole of the sovereign powers of the State were under the control

and management of said foreign capitalists and their confederates and

co-conspirators;" and he alleged that he "was aware of the existence

in the United States of a well-organized, oath-bound band of

confederated public officials who are in league with the subjects of

foreign powers, and who conspire against the peace, prosperity, and

best interests of the United States, and who prey upon and plunder the

government of the United States and the city and county governments

thereof, and also upon private citizens, and who now are carrying into

practice gigantic schemes of plunder through fraud, usurpation, and

other villainy, in order to enrich themselves, bankrupt the nation,

and destroy our government, and that their power is so great that they

can and do obstruct the administration of public justice, corrupt its

fountains, and paralyze to some extent the sovereign powers of the

government of the United States and the people thereof." The Judiciary

Committee after having patiently listened to this rigmarole, absurd

and ludicrous as it was, unanimously reported that Hastings' memorial

should be laid upon the table and the committee discharged from any

further consideration of the subject. The House adopted the report,

and, so far as Congress was concerned, there the matter dropped. But

in the meanwhile it had been telegraphed all over the country

that articles of impeachment were pending against the judges, and

sensational newspaper articles appeared in different parts of the

country. Some expressed regret that the conduct of the judges had been

of a character to necessitate such proceedings. Others said it was

not to be wondered at that the judicial ermine should be soiled in a

country of such loose morals as California. Still others thought it no

more than proper to impeach a few of the judges, in order to teach the

remainder of them a salutary lesson. These articles were paraded in

large type and with the most sensational headings.

When the action of the House on the memorial was announced, Hastings

and Julian became furious. It then appeared that the only charge

which had made any impression upon the minds of the committee was

that relating to Moulin, the Frenchman. Three, indeed, of the members,

(Messrs. Voorhees, of Indiana, Potter, of New York, and Peters, of

Maine,) said it was a shame and disgrace that such ridiculous and

monstrous twaddle should be listened to for a moment; but a majority

considered it their duty, under the order of reference, to hear the

matter patiently. They had, therefore, allowed Hastings the widest

latitude and listened to everything that his malice could invent.

As a comical conclusion to these extraordinary proceedings, Hastings

commenced a suit in the U.S. Circuit Court for the State of New York

against the Judiciary Committee for dismissing his memorial. Being a

non-resident he was required by that court to give security for costs,

and as that was not given the action was dismissed. This result was so

distasteful to him that he presented a petition to the Chief Justice

of the U.S. Supreme Court, stating that Judge Hunt had too much to

do with churches, banks, and rings, and asking that some other judge

might be appointed to hold the court. The petition was regarded as

unique in its character, and caused a great deal of merriment. But the

Chief Justice sent it back, with an answer that he had no jurisdiction

of the matter. After this Hastings took up his residence in New York,

and at different times worried the judges there by suits against

them--Judge Blatchford, among others--generally charging in his

peculiar way a conspiracy between them and others to injure him and

the rest of mankind.

* * * * *

The above was written upon my dictation in the summer of 1877. In

November of that year Hastings again appeared at Washington and

applied to a Senator to move his admission to the Supreme Court. The

Senator inquired if he was acquainted with any of the Judges, and

was informed in reply of that gentleman's proceedings against myself;

whereupon the Senator declined to make the motion. Hastings then

presented to the House of Representatives a petition to be relieved

from his allegiance as a citizen of the United States. As illustrative

of the demented character of the man's brain, some portions of the

petition are given. After setting forth his admission to the Supreme

Court of California as an attorney and counsellor-at-law, and his

taking the oath then required, he proceeded to state that on the

6th of November, 1877, he entered the chamber of the Supreme Court

of the United States to apply for admission as an attorney and

counsellor of that court; that he was introduced by a friend to a

Senator, with a request that the Senator would move his admission;

that the Senator asked him if he knew a certain Justice of the

Supreme Court, and upon being informed that he did, and that his

relations with said Justice were not friendly, as he had endeavored to

get him impeached, and that the damaging evidence he produced against

such Justice had been secreted and covered up by the Judiciary

Committee of the House, whom he had accordingly sued, the petition

continued as follows: "Whereupon said Senator replied, I have a cause

to argue as counsel before this court this morning, and I would,

therefore, prefer not to move your admission. Said Senator then and

there arose and took his seat in front of the bench of said court;

and your petitioner remained in said U.S. Supreme Court until one

application for admission was made and granted on motion of one S.P.

Nash, of Tweed-Sweeney Ring settlement fame [thereby demonstrating

poetic injustice], and until the Chief Justice of the United

States--shadow not shade of Selden--called the first case on the

docket for that day, and a moment or two after the argument of said

cause commenced, your petitioner arose and left the court-room of said

United States Supreme Court, (to which the genius of a Marshall and

a Story has bid a long farewell,) and as your petitioner journeyed

towards his hotel, your petitioner soliloquized thus: 'Senator

W---- is evidently afraid of Justice ----, with whom I have had a

difficulty, and he possesses neither the manly independence of a

freeman, nor moral nor physical courage, and he is, therefore, an

improper person (possibly infamous) for such a high and responsible

position, and my rights as a citizen are not safe in the keeping

of such a poltroon and conniving attorney, and he is probably

disqualified to hold the high and responsible office of Senator of the

United States--that he improperly accepts fees from clients, possibly

in part for the influence which his exalted position as Senator gives

him as counsel for parties having cases before the U.S. Supreme Court,

and which practice is wholly inconsistent with the faithful, impartial

performance of his sworn duty as such Senator; and by thus accepting

fees he has placed himself in a position where his personal interests

conflict with the obligations of his oath of office; while the

Justices of the Supreme Court are, I conceive, derelict in the

performance of their sworn duty, for permitting such practices to be

inaugurated and continued.'

"Cowardice taints the character with moral turpitude; and I believe

the facts related above show that said Senator is a coward; at all

events he lacks moral courage, and is afraid of the Justices of the

United States Supreme Court, whose judge the Senator-attorney of the

court becomes in case of trial of any of said Justices by impeachment;

surely this is one unclean body incestuously holding illicit commerce

with another unclean body, and both become interchangeably soiled, and

too impure to touch the spotless robes of the judicial ermine; still,

as this government has ceased to be a government of law and justice,

and has become a foul and unclean machine of corrupt compromises,

carried on by colluding and conniving shyster bartering attorneys, the

practice of said Supreme Court of the United States, above referred

to, is strictly in accord therewith."

The petition continued in a similar strain, and wound up by asking the

passage of a concurrent resolution of the Houses releasing him from

his allegiance to the United States!

[1] See Exhibit L, in Appendix.

APPENDIX.

EXHIBIT A.

[From the New York _Evening Post_ of November 13th, 1849.]

Among the passengers leaving in the Crescent City to-day is Stephen J.

Field, Esq., of this city, brother and late law-partner of D.D. Field,

Esq., one of the Commissioners of the Code of Practice.

Mr. Field is on his way to San Francisco, where he proposes to

practise his profession, and take up his future residence. If he

should realize either the hopes or the expectations of the numerous

friends he leaves behind, he will achieve an early and desirable

distinction in the promising land of his adoption.

* * * * *

EXHIBIT B.

Mr. William H. Parks, of Marysville, has always asserted that my

election as Alcalde was owing to a wager for a dinner made by him

with a friend. He was at the time engaged in transporting goods to

the mines from the landing at Nye's Ranch on the Yuba River, called

Yubaville, and arriving at the latter place whilst the election was

going on he made the wager that I would be elected, and voted all his

teamsters, numbering eleven, for me. As I had a majority of only nine,

he claims that he had the honor of giving me my first office. The

claim must be allowed, unless the person with whom he wagered offset

this number, or at least some of the teamsters, by votes for my

opponent.

After the election Mr. Parks introduced himself to me, and from that

time to this he has been a warm and steadfast friend. He afterwards

settled in Sutter County, but now resides in Marysville. He has

amassed a handsome fortune, and takes an interest in all public

affairs. He has represented his county as a Senator in the Legislature

of the State. He is a gentleman of high character and has the

confidence and respect of the community.

My opponent for the office of Alcalde was Mr. C.B. Dodson, from

Illinois. I afterwards met him only once or twice in California, and

knew little of his history. But when I was a member of the Electoral

Commission, in February of this year (1877), a copy of a paper

published in Geneva, Illinois--the _Republican_, of the 10th of that

month--was sent to me, containing the following account of him,

from which it appears that he, too, has lived a life of strange

vicissitudes and stirring adventure:

REMINISCENCES.

An account of the various positions of the selected arbitrators

says that in 1850 Judge Field was elected Alcalde and Recorder of

Marysville, California. Judge Field's competitor for the position was

our townsman, Capt. C.B. Dodson, who was defeated by nine votes. As

there is no doubt that had the Captain gained the position of Alcalde

he would have risen as his competitor did, to various judicial

positions, and finally to the arbitrator's seat, these nine votes must

be considered as the only reasons why Geneva does not number one of

her citizens among the arbitrators for the highest of the world's

official positions. Among the votes polled for our friend Dodson on

that occasion was that of Macaulay, one of the family of the famous

historian of England's greatest days and proudest times.

The Captain has been a natural and inveterate pioneer, and few

citizens of the State have figured more prominently or proudly in

its early annals. In 1834, forty-three years ago, Mr. Dodson came to

dispute with the aboriginal Pottawatomies the possession of the Fox

River valley. White faces were rare in those days, and scarcely a

squatter's cabin rose among the Indian lodges. The Captain built

the first saw-mill on the river, and he and Col. Lyon were the hardy

spirits about whom the early settlers clustered for encouragement and

advice.

In 1837 he was employed by the government to superintend the removal

of the Indians to Council Bluffs and Kansas, and their successful

emigration, as well as their uniform good will toward the whites prior

to their removal, were largely due to his sagacity and influence among

them.

When Capt. Sutter first found the yellow gold gleaming in the dirt of

his mill-race, and all the world joined in a mad rush to the mines,

the venturesome spirit of Capt. Dodson led him to press forward with

the first, and he was a "forty-niner," that pride of the old

Californians. In that surging crowd of wild adventurers from the ends

of the earth, the Captain was, as he has been among the early pioneers

of Illinois, a directing and controlling spirit. Though he failed in

his judicial aspirations for Alcalde, and Judge Field succeeded, yet

his continued exertions and marked influence caused him to leave a

name richly associated with all the early history of Marysville and

vicinity.

When the war broke out, Mr. Dodson was among the very first to proffer

his services, and he raised the first company of cavalry which went to

the front from Kane County.

The Captain is not an old man yet in health and vigor, although an

"old settler" in varied and numerous experiences. His name is marked

in unmistakable characters on every prominent event of the early

settlement of Northern Illinois, and blended and associated with all

the pioneer way-marks of California. A friend and companion of all the

great Illinoians of the generation which is now passing into old age,

he has not yet ceased to be a spirit actively mingling in all the

affairs of the present times. But we only started to tell of his

contest with Field, not to write an eulogium on the Captain, for here

where he is known it is better pronounced in his record, which lies in

the memories of his friends.

* * * * *

EXHIBIT C.

_Oath of Office as Alcalde._

STATE OF CALIFORNIA, }

SACRAMENTO DISTRICT. } _ss._

SACRAMENTO CITY, _January 22d, 1850_.

Personally appeared before me Stephen J. Field, First Alcalde

of Yubaville, in the District of Sacramento, and made oath

that he would discharge the duties of the office of First

Alcalde as aforesaid with faithfulness and fidelity to the

best of his ability, and that he would support the

Constitution of the United States and the constitution of the

State of California.

R.A. WILSON,

_Judge of 1st Instance, Sacramento District._

* * * * *

EXHIBIT D.

The following are the orders of the District Court mentioned in the

Narrative.

_Order imprisoning and fining Mr. Field for alleged contempt of

court._

DISTRICT COURT, }

EIGHTH JUDICIAL DISTRICT, }

COUNTY OF YUBA. }

At a term of said District Court held at Marysville, county of Yuba,

on the 7th of June, 1850, present, Hon. Wm. B. Turner, Judge, the

following proceeding was had:

_Ordered_. That Stephen J. Field be imprisoned forty-eight hours and

fined five hundred dollars for contempt of court.

* * * * *

_Order expelling Messrs. Field, Goodwin, and Mulford from the bar._

DISTRICT COURT, }

EIGHTH JUDICIAL DISTRICT, }

COUNTY OF YUBA. }

At a term of said court held at Marysville, on the 10th of June, 1850,

present, Hon. William R. Turner, Judge, the following proceeding was

had:

Whereas, Messrs. Field, Goodwin, and Mulford, having set at defiance

the authority of this court, and having vilified the court and

denounced its proceedings, the said Field, Goodwin, and Mulford are

hereby, by order of the court, expelled from the bar of the same.

* * * * *

_Order imprisoning and fining Judge Haun for releasing Mr. Field from

imprisonment upon a writ of habeas corpus, and directing that the

order to imprison Mr. Field be enforced._

DISTRICT COURT, }

EIGHTH JUDICIAL DISTRICT, }

COUNTY OF YUBA. }

At a term of said District Court held at Marysville, county of Yuba,

on the 10th of June, 1850, present, Hon. Wm. B. Turner, Judge, the

following proceeding was had:

Whereas, Judge Haun having, in defiance of the authority of this

court, and in violation of the law, obstructed and prevented the

execution of an order of this court to imprison Mr. Field for a

contempt offered to the court while in session, by releasing the

said Field from the custody of the sheriff; the said Haun is hereby

sentenced to forty-eight hours' imprisonment and to pay a fine of

fifty dollars.

The sheriff will enforce the order of the court to imprison Mr. Field

for forty-eight hours.

* * * * *

EXHIBIT E.

_Record of Proceedings in the Court of Sessions, mentioned in the

Narrative._

Court of Sessions of Yuba County.

Met at Marysville, June 10th, A.D. 1850, at 10 o'clock A.M., and was

duly opened by R.B. Buchanan, sheriff of the county.

Present, Hon. H.P. Haun, County Judge, F.W. Barnard, Associate

Justice.

IN THE MATTER OF }

STEPHEN J. FIELD } Application for Habeas Corpus.

On the reading of the petition of the applicant, duly authenticated by

his oath, it is ordered that the prayer of the petitioner be granted,

and that R.B. Buchanan, sheriff of Yuba County, or any person acting

under him and having said Field in custody, bring the said Field into

court forthwith, to be dealt with according to law.

In pursuance of the above order, the said Field came into court, and

proceeded to address the court on the matter touching the cause of his

confinement, and while making his remarks, and previous to the close

thereof, and while the court was in session, R.B. Buchanan, sheriff of

Yuba County, at the head of fifty men, entered the court, and stated

that he came there for the purpose and with the intent to seize H.P.

Haun, County Judge as aforesaid, and place him in close confinement,

under and by virtue of a certain order or decree made by one William

R. Turner, Judge of the Eighth Judicial District of the State of

California.

The court informed the said Sheriff Buchanan that it was holding its

regular term, and that order must be preserved while it was in session.

The said Sheriff Buchanan then left the court, whereupon the

business before the court was again resumed.

At the expiration of some five minutes, the said R.B. Buchanan, as

aforesaid, re-entered the court, and stated that the said H.P. Haun,

County Judge as aforesaid, must leave the court and go with him, as he

was peremptorily ordered by William R. Turner, the Judge as aforesaid,

to arrest the said H.P. Haun and keep him in close confinement for the

space of forty-eight hours.

R.B. Buchanan was here notified that he was violating the laws of the

land, and that he would be fined if he persisted in disturbing the

session of the court. The reply of said Buchanan was "that he could

not be trifled with," and immediately seized the said H.P. Haun,

County Judge as aforesaid, by the arm, and attempted to drag him

from the room where the court was in session. Whereupon a fine of two

hundred dollars was then and there imposed upon the said R.B. Buchanan

for a contempt of court.

The said R.B. Buchanan then and there called upon the fifty persons

ordered out by him as his posse to take hold of the said H.P. Haun,

and take him from the court. But the persons in attendance,

conceiving the order to arrest the Hon. H.P. Haun to be illegal and

unjustifiable, refused to assist the sheriff in the execution of

his illegal order. The sheriff then retired, and the court was then

adjourned to 3 o'clock P.M.

Court met pursuant to adjournment. Court adjourned to to-morrow

morning at 9 o'clock.

I hereby certify the above to be a true transcript of the record of

the proceedings of the Court of Sessions on the 10th day of June, A.D.

1850. Witness E.D. Wheeler, clerk of the Court of Sessions of Yuba

County, California, with the seal of the court affixed, this 26th day

of December, A.D. 1850.

[L.S.] E.D. WHEELER, _Clerk_.

* * * * *

The records of the District Court show the following entry made the

same day, June 10, 1850:

"A communication was received from H.P. Haun, stating 'that if he was

guilty of obstructing the order of the court in releasing Field, he

did it ignorantly, not intending any contempt by so doing.' Whereupon

the court ordered that H.P. Haun be released from confinement, and

his fine be remitted." The following is taken from the deposition

of Mr. Wheeler, the clerk of the court, before the committee of the

Assembly to whom was referred the petition of citizens of Yuba

County for the impeachment of Judge Turner:

MARCH 26th, 1851.

E.D. Wheeler,[1] being duly sworn, says: I reside in Marysville, Yuba

County; I am the county clerk of that county; I know Wm. R. Turner,

judge of the Eighth Judicial District; I am clerk of his court in and

for Yuba County.

Question. Were you in court on the 7th day of June last, when Stephen

J. Field was fined by Judge Turner and ordered to be imprisoned? If

so, please to state what took place at that time in court.

Ans. I was in court on the 7th day of June last. A motion was made in

a suit (Cameron against Sutter) in which Stephen J. Field was counsel

for the defendant, upon which motion a discussion arose among the

members of the bar employed in the case.

During the remarks of Mr. Field, Judge Turner said that it was useless

to say more, as the mind of the court was made up. I think Mr. Field

then offered to read from the Statutes, whereupon Judge Turner ordered

him to take his seat, and that a fine of two hundred dollars be

entered up against him, and that he be imprisoned eight hours or

thereabout. Mr. Field replied, "Very well." Then Judge Turner said,

fine him three hundred dollars and imprison him--I do not remember the

precise time--but think it was twenty-four hours. Mr. Field made

some quiet reply--I think it was "Very well;" whereupon the fine was

increased to four hundred dollars and the imprisonment made something

longer. I think Mr. Field said something about his rights at the bar,

and I think he appealed to the members of the bar. Then Judge Turner

became quite furious, and in loud and boisterous language ordered the

fine to be five hundred dollars and the imprisonment to be forty-eight

hours, and ordered the sheriff to take him out of court. He was

boisterous, and several times ordered the sheriff to take him out; to

summon a posse; to summon the court, and he would turn him out.

Q. Did you see anything disrespectful in the manner, or hear anything

disrespectful in the language of Mr. Field which occasioned the fine

and imprisonment?

Ans. I did not.

Q. Did Mr. Field, in consequence of the order of Judge Turner, leave

the court-room in company with the deputy sheriff?

Ans. He left in company with the deputy sheriff, and I suppose it was

in consequence of the order of Judge Turner.

Q. Was the trial of Cameron against Sutter proceeded with after Mr.

Field left?

Ans. It was.

Q. Who took the place of Mr. Field after he left?

Ans. John V. Berry, Esq.

Q. Were you in court on the 10th day of June?

Ans. I was.

Q. Were any members of the bar expelled by Judge Turner on that day?

And if so, please state who they were and whether they were in court

at the time, and whether or not the order was made upon a hearing of

the parties.

Ans. There were three persons expelled, to wit: S.J. Field, S.B.

Mulford, and J.O. Goodwin. I do not recollect whether the parties were

all in court at the time. I am sure that Mr. Goodwin was in court.

There was no hearing had to my knowledge.

Q. After the order imprisoning Mr. Field, on the 7th of June and

before the 10th, were any steps taken by Mr. Field to be discharged on

a writ of habeas corpus?

Ans. There were, and Mr. Field was discharged by the Judge of the

County of Yuba.

Q. What was done by Judge Turner with Judge Haun, the County Judge, in

consequence of his discharging Mr. Field from imprisonment on the writ

of habeas corpus?

Ans. Judge Haun was fined fifty dollars by Judge Turner and ordered to

be imprisoned forty-eight hours. This was on the 10th of June, at the

same time that the other gentlemen were expelled from the bar.

Q. Did the Court of Sessions of Yuba County hold a session on that

day?

Ans. Yes.

Q. Did you continue in the District Court or did you go to the Court

of Sessions?

Ans. I continued in the District Court.

Q. Who made up the records of the Court of Sessions on that day?

Ans. F.W. Barnard, one of the associate justices of the court.

Q. Look at this paper and state whether it is a copy of the

proceedings of that court on the 10th of June, certified by you as the

clerk.

Ans. It is.[2]

Q. Whilst you were in the District Court on that day did the sheriff

of Yuba County give any information to the District Court about the

Court of Sessions being in session?

Ans. He did.

Q. Did Judge Turner give any directions to the sheriff to arrest Judge

Haun, notwithstanding he was holding his court?

Ans. He did, and told the sheriff to put him in irons, if necessary to

handcuff him.

Q. Were any directions given about a posse?

Ans. There were. He told the sheriff to summon a posse forthwith

and enforce the orders of the court. He addressed two or three

professional gamblers present and asked them if they would not join

the posse to arrest Judge Haun. Then the excitement became so great

that several of the members of the bar requested him to adjourn the

court; but before the court adjourned the Judge asked several of the

members of the bar to join the posse; but they made excuses, whereupon

the court adjourned.

Q. Was the order entered on the records of the District Court,

expelling Messrs. Field, Goodwin, and Mulford?

Ans. It was.

Q. What day was that order entered?

Ans. On the 10th day of June.

Q. Has that order ever been vacated on the records of the District

Court?

Ans. So far as it relates to Mr. Goodwin it has been vacated, but no

further.

Q. Has Mr. Field or Mr. Mulford ever been restored to the bar by the

District Court since the order of expulsion on the 10th of June?

Ans. No.

[1] Mr. Wheeler is at present (1877) District Judge of the

Nineteenth District of the State.

[2] The record of the proceedings is printed above.

* * * * *

EXHIBIT F.

The following is the petition to the Governor mentioned in the

Narrative. Of course the Governor possessed no power to suspend a

judicial officer from office. But at the time the petition was signed

and sent to him the State had not been admitted into the Union, and

Congress had not approved of the action of the people in calling a

convention and framing a constitution; and it appeared very doubtful

whether such approval would be given. There was a general impression

that in the meantime the Governor could exercise the power to remove

and suspend officers of the State which the former governors under

Mexico possessed, or were supposed to possess. The petition, however,

is none the less significant, as the expression of the opinions of

the people of Marysville upon the conduct of Judge Turner.

_To His Excellency Peter H. Burnett, Governor of California._

The undersigned citizens of Marysville, Yuba County, in this State,

respectfully request that Your Excellency would suspend William R.

Turner, District Judge of the Eighth Judicial District of this State,

from his judicial office.

1st. Because the said William R. Turner is grossly incompetent to

discharge the duties of a judge, he having exhibited during his

judicial career, and particularly during the session of the District

Court held at Marysville, in Yuba County, during the present month,

ignorance of the most elementary principles of law,--such as to excite

the derision of counsel, jurors, witnesses, and persons in attendance

upon the court.

2d. Because the said William R. Turner has, during the session of the

District Court held at Marysville, exercised the power vested in him

as judge, in an arbitrary and tyrannical manner, outraging the rights

of counsel, clients, and witnesses.

3d. Because the said William R. Turner has refused to hear counsel on

questions of vital importance to the suits of their clients, and in

one instance fined and imprisoned counsel for stating in the most

respectful manner and in the most respectful language, that he

appealed from an order made by him, though such is an acknowledged

right of all counsel, and a right given by statute--under pretence

that counsel by so doing was guilty of a contempt.

4th. Because the said Wm. R. Turner has trampled upon and spurned

with contempt the privilege of the writ of habeas corpus which is

guaranteed to all citizens by the Constitution of the United States

and by the constitution of the State of California, and fined and

imprisoned the Hon. Henry P. Haun, Judge of Yuba County, for the

exercise by him of a judicial act in discharging a gentleman from

arrest under a writ of habeas corpus.

5th. Because the said William R. Turner, to carry out his arbitrary

order to fine and imprison the Hon. Henry P. Haun, Judge of Yuba

County, for the exercise of a judicial act, ordered the sheriff of

said county with a posse to invade the Court of Sessions of Yuba

County while the said court was sitting, and over which the said Haun

presided, and to carry off by force the said county judge and put him

in close custody.

6th. Because the said William R. Turner ordered the sheriff of Yuba

County, with a posse, to force Mr. S.J. Field from the Court of

Sessions of said county whilst said Field was before said court on a

writ of habeas corpus arguing for his discharge, and the said William

R. Turner was informed that the Court of Sessions forbid the sheriff

from disturbing the proceedings of the court on the hearing of said

writ.

7th. Because the said William R. Turner has, in the exercise of

arbitrary power, expelled counsel from the bar for giving their

testimony as witnesses on the return of a writ of habeas corpus before

the Hon. Henry P. Haun, Judge of the County Court, under pretence

that by so doing they were vilifying the court and denouncing its

proceedings.

8th. Because the said William R. Turner, during the session of the

District Court at Marysville, Yuba County, in the present month,

frequently went into Court with revolving pistols upon his person, to

the great scandal of the court and of the county.

For the above, and other reasons, your petitioners respectfully

request that the said William R. Turner may be suspended from his

office, as the further exercise by him of judicial power will destroy

all confidence of the community in the administration of justice, and

all respect for the tribunals of the country; and your petitioners

will ever pray.

Marysville, June 19th, 1850.

Stephen J. Field, Ira A. Eaton, James S. Green, T.B. Parker, E.W.

Judkins, Harrington Osgood, Chas. W. Gleason, Geo. W. Hastat, S.

Sartwell, jr., M.S. Ebright, S.C. Stambaugh, P. Steinman, Henry

Cuttcher, M. Cunningham, Ed. B. Jefferds, Wm. H. Mitchell, Benj.

Barker, H. Cecil & Co., Osbourn & Co., Asa Stearns, John Bennett, jr.,

J.P.F. Haskell, W.A. Crampton, J.C. Jewett, H. Stenhome, John Parks,

Absalom Parks, David Parks, James Imbrie, Alfred Parry, H.C. Ward,

Richard McRae, Wm. Johnson, F. Prunean, H.W. Taylor, R.A. Eddy, S.T.

Brewster, C. Sala, Dericerpre, M. Donaldson Kinney, R.M. Foltz.,

Jas. F. Hibbard, Thomas Gaffney, Allen Gries, W.H. Swain, Oben Lacey,

E.S. Peck, B. Smith, John Graham, Wm. Kyle, S.C. Tompkins, A.C. Ladd,

C.B. Kinnard, Cyrus Crouch, H.H. Welch, Jas. Stuart, Jas. DeBell,

Uriah Davis, L.H. Babb & Co., I.B. Purdy, G. Dimon, Henry J.

Williams, D.W.C. Rice, N. Purdy, William K. Coit, James B. Cushing,

Thomas West, S.B. Mulford, J. Ford, Wm. Ford, Charles A. Van Dorn,

Gustavus B. Wright, J. Burlingame, G. Beaulamy, A. Mace, F. Frossard,

C.W. Durkee, John S. Ryder, Geo. H. Childs, Ezra F. Nye, S.T. Nye,

Geo. W. Durkee, John C. Marks, John L. Carpenter, Leonard Crofford,

Robert Lacy, French Paige, L.A. Allen, James Hughes, J.C. Sargent,

Wm. P. Hoyt, F.L. Reed, J.S. Bell, Henry B. Compton, G.F. Kussel,

Reuben Scott, Warren Drury, Joel F. Whitney, O.C. Gardner, B.F.

Taber, Johnson Thompson, jr., Ganahl & Co., T.W. Hall, J. Donnel,

Wm. Irwin, Wm. W. Nelson, R.H. McCall, B.G. Bixby, Geo. L. Boswell,

Wm. W. Tinker, Robert S. Baker, N.F. Cooke, Edwards Woodruff,

J.N. Briceland, Joseph F. Emeric, John F. Delong, James Q. Packard,

Sibley & Co., Boone, Larrow & Co., P.W. Hayes & Co., Geo. C. Gorham,

R. Dunlap, M. Cameron, R. Brown, A.W. Loynes, F. Owradon, J.W.

Turner, P.D. Bailey, James L. Springer, Matthew S. Smith, Wm. Fulton,

John George Smith, Isaiah Porter, Wm. R. Taylor, John McClellan, R.H.

Macy, Charles B. Mitchell, Thomas R. Anthony, Geo. W. Webster, Daniel

M. Shepherd, M.J. Eavyerberth, Lewis A. Gosey, John Rueyer, Tehan Van

De Wett, Wm. Cassede, G.P. Russell, S.G. Haywood, G.W. Hopkins, Wm. E.

Wightman, E. Ferris, Samuel R. St. John, A.O. Garrett, D.C. Benham.

* * * * *

EXHIBIT G.

_Letter of Mr. Eaton, by whom the message mentioned in the Narrative

was sent to Judge Turner._

WEDNESDAY AFTERNOON, _Aug. 7, '50_.

DEAR JUDGE: I have given your message to Turner. He does not like it

much and flared up considerably when I told him. But it was no use. I

have made him understand that you do not want any personal difficulty

with him, but that you are ready for him, and if he attacks you he

will get badly hurt. I will see you soon and explain. Give him ----.

You can always count on me.

Yours truly,

IRA A. EATON.

The Narrative of Reminiscences was sent to a friend in San Francisco,

soon after it was printed, and was shown to Gen. A.M. Winn of that

city. He was in Marysville in 1850 and also gave Judge Turner to

understand the line of conduct I intended to pursue. The following

letter has since been received from him.

SAN FRANCISCO, _May 10th '80_.

FRIEND FIELD: In looking over the Early Reminiscences of California

I was pleased with the faithful recital of your trouble with Judge

Turner at Marysville in 1850. Being there about that time I recollect

to have met with Judge Turner and found him in a fighting rage, making

threats of what he would do on meeting you. Although I have not an

exalted opinion of men's courage, when they talk so much about it,

I thought he might put his threats into execution and warned you of

approaching danger.

The course you pursued was generally approved, and public opinion

culminated in your favor. You made many warm friends, though Turner

and his friends were the more enraged in consequence of that fact.

With great respect, I am, as ever, your friend,

A.M. WINN.

Hon. STEPHEN J. FIELD,

_Washington, D.C._

* * * * *

EXHIBIT H, No. I.[1]

After the Narrative of Reminiscences was written, the Proceedings of

the Assembly of California of 1851, on the petition of citizens of

Yuba and Nevada Counties for the impeachment of Judge Turner, were

published. Annexed to them was a statement by the editor of the causes

of the indefinite postponement of the matter. They are there stated

to be: 1st, That it was supposed that I had acquiesced in such a

disposition of the case, because by the act concerning the courts of

justice and judicial officers, Turner had been sent to the northern

portion of the State, where he could do no harm; 2d, That the

legislature did not wish to extend the session for the period which

the trial of an impeachment would require; and, 3d, That the whole

matter had become extremely distasteful to me.

A copy of this statement with the record of the proceedings was sent

to the surviving members of the seven, mentioned in the Narrative, who

voted for the indefinite postponement of the matter; and they wrote

the replies which are given below as part of this exhibit. They are

preceded by a letter from a member, written soon after the vote was

taken.

* * * * *

_Letter of Mr. Bennett._

HOUSE OF ASSEMBLY,

SAN JOSE, _April 23d, 1851_.

HON. STEPHEN J. FIELD.

DR. SIR: I take pleasure in adopting this form to explain to you my

vote upon the question put to the House in the final disposition of

the case for the impeachment of Judge Turner.

Had the House been called for a direct vote upon the question of

impeachment, I should certainly have voted for the impeachment; but

finding that some of the members thought the wishes of the citizens of

Yuba County had been accomplished by the removal of Judge Turner from

your district, and on that account would vote against the impeachment,

I thought there was less injustice in postponing the whole matter

indefinitely, than in coming to a direct vote. I will also say that it

was understood by many members that you would be satisfied with such a

disposition.

I am very truly your friend,

F.C. BENNETT.

TO THE HON. STEPHEN J. FIELD, _SAN JOSE_.

* * * * *

_Letter of Mr. Merritt._

SALT LAKE CITY, UTAH, _May 4th, 1879_.

MY DEAR JUDGE:

Your letter of the 27th of April reached me day before yesterday, and

the copy of the proceedings in the matter of the impeachment of W.R.

Turner, on yesterday. The editorial comments on the case, so far as I

am concerned, are exactly correct. I remember distinctly having voted

for the indefinite postponement of the charges against Turner on

the distinct understanding that you consented to it, or at least

acquiesced, for the reasons:

1st, That Turner, by the passage of the bill concerning courts of

justice, etc., had been sent to a district where he could do no harm

and was out of the way; 2d, That you did not desire to extend the

session of the Legislature; and, 3d, That the whole matter was

extremely distasteful and disagreeable to you. I remember further very

distinctly, even after this great lapse of time, that I was very much

astonished when you told me that I had voted under a misapprehension

as to your views and wishes. It is very certain that Turner would have

been impeached had not a false report, as to your views and wishes on

the subject, been industriously circulated among the members of the

Assembly a short time before the vote was taken.

That report alone saved Turner from impeachment.

Very truly your friend,

SAML. A. MERRITT.

HON. S.J. FIELD, _Sup. Ct. U.S._

* * * * *

_Letter of Mr. McCorkle._

WASHINGTON, CITY, D.C., _May 8th, 1879_.

HON. S.J. FIELD.