California Law Review Volume V JANUARY, 1917 Number 2 Field's Work as Lawyer and Judge in California T HE hundredth anniversary of the birth of Stephen J. Field is a fitting occasion to say a few words concerning a man who contributed perhaps more than any other individual to the creation of the legal system of California. It is not proposed to deal in detail with the events of Justice Field's life. That has been excellently done elsewhere.1 Nor will the attempt be made to offer a complete estimate of Justice Field's contributions to the jurisprudence of state and nation. It may be useful, however, to say something of his work at the bar and on the bench of California, if it serve only to fix attention upon the fact that though our law is ultimately a result of economic and social force, commanding personalities have none the less been the means through which those forces have acted. I. It is a singular and characteristic fact that while Field's personal opinions never obtrude themselves in his decisions, while he never permits an impatient word to escape him, as did his rugged contemporary, Harlan, while he never makes a judicial pronouncement the occasion for giving utterance to a philosophical theory as does his brilliant successor, Mr. Justice Holmes, while his judicial 1 See the very interesting sketch by Professor John Norton Pomeroy, Jr., of the University of Illinois, in Great American Lawyers, vol. VII, pp. 3-51; also the Introductory Sketch (1881), reprinted in 1895, in the Legislative and Judicial work of Justice Field. Field's own "Personal Reminiscences of Early Days in California, with other Sketches," 1877; 2d Ed., 1893 (privately printed) should be made more generally accessible. 2 Professor Jones publishes in another part of this Review an article on "Justice Field's Opinions on Constitutional Law" which undertakes a critical discussion of this important phase of Field's work. A less complete treatment by Horace Stern, of Philadelphia, may be found in Great American Lawyers, vol. VII, pp. 52-85, entitled "An Examination of Justice Field's Work in Constitutional Law." theory seems to have been that the man should merge himself in the judge, a fairly complete life of Field could be written from the law reports, if all other sources of information should fail. By some strange freak of fortune the most dramatic events in Field's career found their way into the sheep bound volumes where one rarely looks for such things. At the beginning of his life in California we find a considerable portion of the first volume of reports of the new State occupied with an account of his conflict with Judge Turner, his punishment for contempt, his arbitrary disbarment, and his ultimate victory by a series of extraordinary writs.3 When his judicial career was not far from its close, the one hundred and thirty fifth volume of the United States Supreme Court reports contains the story of the assault on Field by Terry and the killing of the latter by Deputy Marshal Neagle. Earlier volumes of the same reports and of the Federal Reporter give the story of the remarkable scene in the Circuit Court of the United States in which the Terry's defied the court and insulted its judges-the prelude to the case of In re Neagle. And one who was seeking merely the materials for the external facts of the man's life would find in the reports the account of other less dramatic incidents in connection with his romantic career. For example, the fact that he was compelled to make an assignment of his property for the benefit of his creditors, which he tells us in his "Reminiscences" was the penalty for his neglect of his private affairs while he was a member of the Legislature, is duly set forth in the case of Benham v. Rowe." 4 The reports embracing Field's judicial work give us a much better picture of the man than could be gleaned merely from a narrative of the events of his life, however full. They would not indeed tell us that he was born in Haddam, Connecticut, on November 4, 1816, of revolutionary stock; that he was one of four brothers, David Dudley, Cyrus W. and Henry M. Field, each of whom in his own way achieved great things; that he was educated 3 People ex rel. Mulford v. Turner (1850), 1 Cal. 144; People ex rel. Field v. Turner (1850), 1 Cal. 152; Ex parte Stephen J. Field (1850), 1 Cal. 187; People ex rel. Field v. Turner (1850), 1 Cal. 188; People ex rel. Field v. Turner (1850), 1 Cal. 190. 4 Ex parte Neagle (1890), 135 U. S. 1, 34 L. Ed. 55, 10 Sup. Ct. Rep. 658. In re Terry (1888), 36 Fed. 419; Sharon v. Hill (1885), 24 Fed. 726; Ex parte Terry (1888), 128 U. S. 289, 32 L. Ed. 405, 9 Sup. Ct. Rep. 77; Sharon v. Terry (1888), 36 Fed. 337. 6 Benham v. Rowe (1852), 2 Cal. 387. in part in the Orient and was familiar to some extent with modern Greek and Oriental languages; that he had it in mind to train himself to become a professor of Greek; that he graduated at Williams College at the head of his class; that he travelled in Europe, was admitted to the New York bar, and practiced in the office of his distinguished brother, David Dudley Field, in New York City, from 1841 to 1848, while the latter was in the midst of his fight for codification. But the essential things that resulted from this heredity and this rather unique training are visible in the opinions which constitute his life work. The logical mind, the conscientiousness in detail, the tenacity of opinion, the reserve in mode of expression, the solidity and massiveness of character, visible in Justice Field's written opinions, betray the Puritan origin; the breadth of view, the openness to new ideas, the ability to adapt himself to a strange and rough environment, are the results of the training. II. Field's superior mind and training are apparent from the outset of his career in this State. His contest with Judge Turner has already been mentioned. It is in connection with the various writs brought to set aside his commitment for contempt and his disbarment by that judge that Field's name first appears in the reports. He won a complete triumph, and it may be well believed that the courage, energy and ability displayed in this contest made Field a striking figure in the eye of the bar and of the public. From the date of his first appearance in propria persona in People ex rel. Mulford v. Turner, until his resignation to take the office of an Associate Justice of the Supreme Court of the United States, Field's name appears as counsel or judge several times in every volume of the California reports. His career as counsel seems to have been very successful. In sixty-nine appeals in which his name appears as a counsel, he was on the victorious side fifty-two times." It may be of some interest to follow Field's work as a counsel, 7 His arguments as counsel are to be found in vols. 1 to 10, inclusive of the California Reports; his work as judge in vols. 8 to 21, inclusive. During the period of his work on the bench of California-from September, 1857, to May, 1863, he wrote three hundred and fifty opinions (including a few dissents). He was absent from the State with the consent of the legislature during a portion of the April term, during the entire July term, and during a portion of the October term, 1859. He became Chief Justice, September 12, 1859, upon Terry's resignation. especially in view of the fact that so far as we are aware it has not been done by his biographers in detail, and because it serves in some degree to illustrate the eternal "paradox of form and substance in the development of law." In theory the development of the law is through the application of the rules of formal logic to facts and established principles found in legislation or judicial precedents. In reality it is the result of human forces of which the personalities of the judges are not the least important. Lord Mansfield, the associate of the wits and the great merchants, approached the law from a point of view quite different from that of his successor, Lord Kenyon, who cared nothing for literature or a broad culture, and whose views on trade were those of the landed classes of the eighteenth century. Surely if the law "has to do not with a mere intellectual craft, but with a vital aspect of human and national history," the personalities of those who make it cannot be neglected. And in studying the personality of a great judge, what he did and thought as a practicing lawyer is bound to shed light upon his subsequent life and opinions. In Field's case, echoes from his work at the bar can frequently be heard in his utterances as a judge. Thus, is it unfair to say that his experience of judicial arbitrariness in his adventures with Judge Turner had much to do with his theories as to the relations of bench and bar, as to the nature and functions of the judicial power, as to the fundamental question of the position, duties and rights of counsel. In Ex parte Garland,10 Field delivering the opinion of the court says: "The profession of an attorney and counsellor is not like an office created by an Act of Congress which depends for its continuance, its powers and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution. . . . . The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein, The attorney and counsellor being, by the solemn judicial act of the Court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors and to argue causes is something more than a mere indulgence, revocable at the pleasure of the Court, or at the command of the legislature. It is a 8 Homes, Common Law, p. 35. Pollock, The Genius of the Common Law, p. 1. 10 (1866), 71 U. S. (4 Wall.) 333, 379, 18 L. Ed. 366. right of which he can only be deprived by the judgment of the court for moral or professional delinquency." Of the three authorities cited by Justice Field to support this doctrine, one, Fletcher v. Daingerfield11 was decided by himself, upon the authority of People v. Turner.12 Contrast with Justice Field's theory of the nature of the attorney's office that of Justice Miller, expressed in the dissenting opinion in the Garland case and concurred in by Chief Justice Chase and by Justices Swayne and Davis. "The right to practice law in the courts as a profession is a privilege granted by the law, under such limitations or conditions in each state or government as the law making power may prescribe. It is a privilege and not an absolute right. .. No reason is perceived why this body of men, in their important relations to the courts of the nation, are not subject to the action of Congress, to the same extent that they are under legislative control in the States or in any other government; and to the same extent that the judges, clerks, marshals, and other officers of the court are subject to congressional action."13 14 In Ex parte Wall, Justice Field's strong feelings upon the subject of the necessity for the protection of the independence of the bar led him to dissent from the opinion arrived at by all of the other justices, sustaining an order striking the name of the petitioner from the roll of attorneys. Though notice had been given the disbarred attorney, the order had been made without any affidavit making a charge against him. It clearly appeared however, that he had been guilty of a most flagrant contempt of court and a violation of his oath as an attorney by advising and aiding in the lynching of a prisoner. Field, in his dissenting opinion, said: "What then are the relations between attorneys and counsellors at law and the courts; and what is the power which the latter possess over them; and under what circumstances can they be disbarred? There is much vagueness of thought on this subject in discussions of counsel and in opinions of courts. Doctrines are sometimes advanced upholding the most arbitrary power in the courts, utterly inconsistent with any manly independence of the bar. . . . . The power to disbar attorneys in proper cases. is not to be exercised arbitrarily or tyrannically. Under our institutions arbitrary 11 (1862), 20 Cal. 427. 12 (1850), 1 Cal. 143. 13 At p. 384 and 385. 14 (1882), 107 U. S. 265, 27 L. Ed. 552, 2 Sup. Ct. Rep. 569. |