Justice Stephen Field of California

Abstract

Justice Stephen Field of California PAUL KENS Stephen Field sat on the U.S. Supreme Court for thirty-four years, from 1863 to 1897. He outlasted eight President and three ChiefJustices. His time on the Court ran from the Civil War through the Gilded Age and came within a breath ofthe twentieth century. There is a lot to say about Stephen Field, but I will limit my comments to just two things. First, I would like to summarize Field’s experiences in California. Field was a true pi­ oneer. As a young adult, he joined the wave of people who came to California during the Gold Rush of 1849. His experiences in the Califor­ nia frontier left an indelible impression. The second thing I would like to do is explore a few ways in which his experiences in early California shaped his thinking about the law and the Constitution.1 Field is usually thought ofas an arch conservative, but I would like to suggest that the ideas to which he sub­ scribed, especially his ideas about economic liberty, were actuallyrevolutionary inthe sense that they rejected tradition and gave an entirely new shape to the way we think about our gov­ ernment and our social order. I. Field’s Early Days in California Some time ago, while digging through old doc­ uments in the Bancroft library, I ran across a memoirofa Californiapioneernamed William Moses. It was really more a story than a mem­ oir. In fact, it was really more a tall tale. But I would like to tell it anyway. Moses recalledthathe was working a min­ ing claim in the mountains near Marysville, California. One time, when Moses was visiting the nearest mining camp, he was tapped to sit on ajury. On one side ofthe dispute was an old miner who, after being stricken with scurvy, staked his claim according to traditional min­ ing code and went back to the mining camp for treatment. On the other side was a group of accused claim-jumpers. The trial took place in a saloon and gam­ bling house called the Striped Tent. When it began, the justice of the peace ordered the gambling to cease and opened court at a big gambling table in the middle of the estab­ lishment. Each side presented its case, and then the gambling resumed while the jury went into another room to deliberate. It didn’t take the jury long find in favor of the old miner. But that didn’t end the dispute. Hearing the verdict, the claim-jumpers’ lawyer leaped 150 JOURNAL OF SUPREME COURT HISTORY Field graduated from Williams College in 1837 and then studied law in New York with his brother David Dudley. He joined his brother's practice after passing the bar, but then was drawn by the Gold Rush and left for California in 1849. from his seat, shouting that he would advise his clients to resist the verdict to the hilt of a knife. The jury foreman reacted by pulling a revolver out of its holster and asking thejudge whether he intended to protect thejury or ifthe jury mustprotect itself. In an instant, Moses re­ called, there were a least twenty revolvers and other pistols of various kinds drawn. But the thing about the incident that most impressed Moses was the judge’s reaction. Let me read how Moses describes it: The judge said he would not al­ low such language by the attor­ ney and would Himself protect the Jury. And—doing what I never saw before—drew from his pocket an eight-inch Bowie knife, placing it back between his teeth. Then from his holsterhe drew a Navy Colts revolver, cocked it, and placed its muzzle at the lawyer’s head—and Hissed at him, the command, “Eat those words, or I will send you to Hell.” The claim jumpers’ attorney meekly said “I eat my words” and everyone returned his pistol to his holster. The judge then turned to the claim jumpers and told them “If you or your lawyer are here at here at sunrise tomorrow morn­ ing, you will never leave this camp again.—Court is closed.” That justice of the peace, Moses tells...