Bagehot in his essay on Macaulay speaks of men who "think literature more instructive than life."75 "There is a whole class of minds," he says, "which prefers the literary delineation of objects to the actual eyesight of them. To some life is difficult. An insensible nature, like a rough hide, resists the breath of passing things; an unobservant retina in vain depicts whatever a quicker eye does not explain. But anyone can understand a book; the work is done, the facts observed, the formulae suggested, the subjects classified." Field's mind was the antithesis of all that is described by Bagehot as characteristic of Macaulay. It was a first-hand, not a second-hand mind; it was one not fed on pre-digested food; it was that of the man of affairs dealing with things of the mind, not that of the closet student dealing with affairs. Field looked at life directly; he required no smoked glasses. Berkeley, California. Orrin K. McMurray. 75 Thomas Babington Macaulay in Collected Works, ed. by Mrs. Russell Barrington, Vol. II, p. 94. T Justice Field's Opinions on Consti- 1. COMMERCE UNDER THE CONSTITUTION. HE act of Congress of March 3, 1863, entitled "An Act to provide Circuit Courts for the Districts of California and Oregon," authorized the appointment of one additional Associate Justice of the Supreme Court of the United States. Stephen J. Field, then Chief Justice of the Supreme Court of California, was appointed by President Lincoln to fill the position thus created, and was allotted to the district covering California and Oregon.1 Justice Field's first opinions appear in the 23rd volume of Wallace's Reports, and, down to 163 United States, covering nearly one hundred volumes, every volume, except three, namely, 23 Wallace, 126 United States and 135 United States, contains opinions written by him. These opinions cover many branches of both public and private law. Justice Field's service in the Supreme Court extended over a period of thirty-four years, from May, 1863, to December, 1897, extending over a period longer than that of any other justice. The two judges, whose terms almost equalled that of Justice Field, were Chief Justice Marshall and Justice Harlan. His appointment came in the midst of the Civil War, and Justice Field had to deal with the great problems growing out of that struggle. The Reconstruction period furnished its series of important cases. The adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments opened up a vast field of new constitutional construction. The economic and industrial expansion of the eighties and nineties presented numerous questions which came before the Supreme Court for final review. In the judicial consideration given to these cases Justice Field took a part, always active, important and influential, and frequently commanding. When Justice Field took his place on the bench at Washington, the Supreme Court was presided over by Chief Justice Taney, and the Associate Justices thereof were Justices Wayne, Nelson, Clifford, Miller, Catron, Grier, Swayne, and Davis. He served throughout 1 1 (1863), 2 Black 7. the terms of Chief Justices Chase and Waite, and during nine years of the term of Chief Justice Fuller. Other justices who sat with him, for longer or shorter times, during his extended term of service were Justices Strong, Bradley, Hunt, Harlan, Woods, Matthews, Gray, Blatchford, L. Q. C. Lamar, Brewer, Brown, Shiras, Jackson, White, and Peckham. The mention of these names gives the personal color of the court. The purpose of these papers is to make a study of the constitutional opinions of Justice Field. Characterization and appreciation of his work will come better after, rather than before, the examination of his opinions. The subject of constitutional construction before the Supreme Court during Justice Field's term which demanded the largest attention was that of interstate and foreign commerce. The close of the Civil War was attended with expanding commercial interests, and consequent conflicting views of the sphere of state and national control of the subject of commerce show themselves. Before the year 1840, the construction of the commerce clause of the Constitution2 had been involved in but five cases submitted to the Supreme Court. In 1860 the number of cases in the court on that subject had increased to twenty; in 1870 the number was thirty; in 1880 the number had increased to seventy-seven; in 1890 it was one hundred and forty-eight; and by the time of Justice Field's retirement the number was not less than two hundred.3 Justice Field's position in the determination of all questions involving the conflicting jurisdiction between state and nation on the subject of interstate and foreign commerce was clear, logical and undeviating. It has been a subject that has perplexed the court on many occasions, and the court has not found it easy to establish a rule or especially, to apply a rule when established to difficult and delicate adjustments of jurisdiction. One of Justice Field's earliest opinions was in the well known case of The Daniel Ball. Several important principles were laid down in this case, making it a leading authority. It is most frequently cited for its definition of what constitutes the navigable waters of the United States. Wherever interstate and foreign commerce extends, the to regu 2 U. S. Const. Art. I, § 8: "Congress shall have power . . late commerce with foreign nations, and among the several states, and with the Indian tribes." 3 Prentice & Egan, Commerce Clause of the Federal Constitution, 14. * (1870), 10 Wall. 557, 19 L. Ed. 999. 4 power of the United States goes with it for its protection. The authority of Congress is not limited to navigation on the ocean, or to the great rivers, like the Mississippi, Ohio, and Hudson, but extends to all lakes and streams, which by their connections make channels of interstate or foreign commerce. The common law test of navigability, the rise and fall of the tide, is supplanted by a new test, the test of navigability in fact. On this subject Justice Field made the following classic statement: The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water. On the other hand, Justice Field has held that a river "can only be deemed a navigable water of the United States when it forms, by itself or by its connection with other waters" a "continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water. If, however, the river is not itself a highway for commerce with other states or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the state, then it is not a navigable water of the United States, but only a navigable water of the state.' On the doctrine thus established it was held in The Daniel Ball that a steamer transporting, on a navigable water of the United States as there defined, goods destined for other states, was engaged in interstate commerce; that whenever a commodity has begun to move as an article of trade from one state to another, commerce between the states in that commodity has commenced; and the fact that several different and independent agencies are employed in transporting the commodity, some acting in one state, and others through two or more states, does not affect the character of the transaction, each agency, to the extent to which it acts in such transportation, being subject to the regulations of Congress. Hereon Justice Field said: We are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the states when that agency extends through two or more states, and when it is confined in its action entirely within the limits of a single state. If its authority does not extend to an agency in such commerce, when that agency is confined within the limits of a state, its entire authority over interstate commerce may be defeated." It has been said that it may be doubted whether any one decision of the Supreme Court has placed so much power within the hands of Congress as the case of The Daniel Ball." Justice Brown has summed up the law of the constitutional construction of the commerce power, by sayings that the adjudications of the Supreme Court with respect to the power of the states over the general subject of commerce are divisible into three classes. First, those in which the power of the state is exclusive; second, those in which the states may act in the absence of legislation by Congress; third, those in which the action of Congress is exclusive and the states cannot interfere at all. The first class, 5 The Montello (1870), 11 Wall. 411, 415, 20 L. Ed. 191. In this case the court held that from the information presented they could not affirm that the Fox River, in Wisconsin, formed such a continued highway as to be considered a navigable water of the United States. But in a later case, [The Montello (1874), 20 Wall. 430, 22 L. Ed. 391] it was held that the Fox River was to be brought within the class of streams forming continued highways of commerce, although its navigability was interrupted by rapids and falls around which portages had to be made. The Daniel Ball (1870), 10 Wall. 557, 566, 19 L. Ed. 999. 7 Great American Lawyers, 73. 8 Covington & Cincinnati Bridge Co. v. Kentucky (1894), 154 U. S. 204, 209, 38 L. Ed. 962, 14 Sup. Ct. Rep. 1087. |