THE BARBOUR DIFFICULTY.
When the bill of 1851, dividing the State into new judicial districts, became a law, there were several candidates for the office of Judge of the Tenth Judicial District, which comprised the counties of Yuba, Nevada, and Sutter. Henry P. Haun, the County Judge of Yuba, was one candidate; John V. Berry, a lawyer of the same county was another; and Gordon N. Mott, a lawyer of Sutter County, was a third. My first choice was Berry; but, finding that he had very little chance, I gave what influence I had in favor of Mr. Mott, and he received from the Governor the appointment of Judge of the new district.
In the Summer of 1851, the Governor issued his proclamation for the Fall elections, and, among others, for an election to fill the office of Judge of the Tenth District. I had supposed—and there were many others who agreed with me—that Judge Mott's term under his appointment would continue until the election of 1852. But there being some doubts about the matter and the Governor having issued his proclamation for an election, candidates were nominated by the conventions; and at the ensuing election one of them, William T. Barbour, a lawyer of Nevada County, received a majority of the votes cast and was declared elected. When he came, however, to demand the office, Judge Mott expressed his opinion that there had been no vacancy to be filled and declined to surrender. This led to a suit between them. The question involved being exclusively one of law, an agreed case was made up and presented to the Supreme Court, and that tribunal decided in favor of Barbour. A report of the case is given in the 3d California Reports, under the title of People, ex rel. Barbour, vs. Mott.
In the case I appeared as counsel for Judge Mott and argued his cause. This offended Judge Barbour, and he gave free expression to his displeasure. Afterwards, when his term for the vacancy was about to expire and a new election was to be held, he presented himself as a candidate for a second term. It was my opinion that he was not qualified for the position, and I therefore recommended my friends to vote for his opponent. For some weeks previous to the election I was absent from the district; but I returned two days before it was to take place and at once took a decided part against Barbour and did all I could to defeat him. This action on my part, in connection with my previous zeal in behalf of Judge Mott, led Barbour to make some very bitterly vituperative remarks about me, which being reported to me, I called on him for an explanation. Some harsh words passed between us at the interview. The result was that Barbour refused to make any explanation, but gave me a verbal challenge to settle our difficulties in the usual way among gentlemen. I instantly accepted it and designated Judge Mott as my friend.
In half an hour afterwards Judge Mott was called upon by Mr. Charles S. Fairfax as the friend of Barbour, who stated that Barbour had been challenged by me, and that his object in calling upon Mott was to arrange the terms of a hostile meeting. Mott answered that he understood the matter somewhat differently; that the challenge, as he had been informed, came from Barbour, and that I, instead of being the challenging, was the accepting party. Fairfax, however, insisted upon his version of the affair; and upon consulting with Mott, I waived the point and accepted the position assigned me. Fairfax then stated that Barbour, being the challenged party, had the right to choose the weapons and the time and place of meeting; to all of which Mott assented. Fairfax then said that, upon consultation with his principal, he had fixed the time for that evening; the place, a room twenty feet square, describing it; the weapons, Colt's revolvers and Bowie-knives; that the two principals so armed were to be placed at opposite sides of the room with their faces to the wall; that they were to turn and fire at the word, then advance and finish the conflict with their knives. Mott answered that the terms were unusual, unprecedented, and barbarous, and that he could not consent to them. Fairfax admitted that they were so; but replied that they were those Barbour had prescribed. He would, however, see Barbour and endeavor to obtain a modification of them. Soon afterwards he reported that Barbour still insisted upon the terms first named and would not agree to any other.
When Mott reported the result of his conference with Fairfax, I at once said that Barbour was a coward and would not fight at all. I knew perfectly well that such terms could come only from a bully. I saw that it was a game of bluff he was playing. So I told Mott to accept them by all means. Mott accordingly called on Fairfax and accepted the terms as proposed, and gave notice that I would be on hand and ready at the time and place designated. This being reported to Barbour, Fairfax soon afterwards made his appearance with a message that his principal would waive the Bowie-knives; and not long afterwards he came a second time with another message that it would not do to have the fight in the room designated, because the firing would be heard outside and attract a crowd. In accordance with my instructions, Mott assented to all the modifications proposed, and it was finally agreed that the meeting should take place the next morning in Sutter County. I was to take a private conveyance, and Barbour was to take one of the two daily stages that ran to Sacramento. At a specified place we were to leave our conveyances and walk to a retired spot, which was designated, where the hostile meeting was to take place.
The next morning, accordingly, I took a carriage, and with my friend Judge Mott drove down to the appointed place. After we had been there some time the first stage appeared and stopped. Soon after the second stage appeared and stopped, and Judge Barbour and Mr. Fairfax got out. But instead of proceeding to the designated place, Barbour declared that he was a judicial officer, and as such could not engage in a duel. At the same time he would take occasion to say that he would protect himself, and, if assaulted, would kill the assailant. With these words, leaving Fairfax standing where he was, he walked over to the first stage, and mounting rode on to Sacramento. Seeing Fairfax standing alone on the ground I sent word to him that I would be happy to give him a place in my carriage—an invitation which he accepted, and we then drove to Nicolaus, where we breakfasted, and thence returned to Marysville.[1]
The conduct of Barbour on the ground, after his fierce and savage terms at the outset, produced a great deal of merriment and derision; and some very sharp squibs appeared in the newspapers. One of them gave him great annoyance, and he inquired for its author. I told the editor of the paper in which it appeared that if it was necessary to protect the writer, to give my name, although I did not write it, or know beforehand that it was to be written.
On the following morning, whilst in front of my office gathering up kindling-wood for a fire, and having my arms full—for each man was his own servant in those days—Barbour came up and, placing a cocked navy revolver near my head, cried out, "Draw and defend yourself." As I had not observed his approach I was taken by surprise, but turning on him I said, "You infernal scoundrel, you cowardly assassin—you come behind my back and put your revolver to my head and tell me to draw; you haven't the courage to shoot; shoot and be damned." There were at least ten witnesses of this scene; and it was naturally supposed that having advanced so far he would go farther; but as soon as he found I was not frightened, he turned away and left me. It is impossible to express the contempt I felt for him at that moment for his dastardly conduct, a feeling which the spectators shared with me, as they have since often stated.[2]
I do not give these details as having any importance in themselves; but they illustrate the semi-barbarous condition of things in those early days, and by comparison show out of what our existing condition has been evolved, and how far we have advanced. I give them also for the reason that Barbour afterwards wrote a letter to Turner, which the latter published, referring to the affair, in which he boasted of having given me a "whipping." How far his boast was warranted the above facts show.
For a long time afterwards he expressed his bitterness towards me in every possible way. He did not take Turner's plan of expelling me from the bar; but he manifested his feelings by adverse rulings. In such cases, however, I generally took an appeal to the Supreme Court, and in nearly all of them procured a reversal. The result was that he suddenly changed his conduct and commenced ruling the other way. While this was his policy, there was hardly any position I could take in which he did not rule in my favor. At last I became alarmed lest I should lose my cases in the appellate court by winning them before him.
About a year afterwards he sent one of his friends to ask me if I was willing to meet him half-way—stating that my conduct in court had always been courteous, and he was satisfied that he had done me injustice. I answered that I was always willing to meet any one half-way, but in this case it must be without explanations for the past. This condition was accepted; accordingly we met, and taking a glass of wine, I said, "Here is to an act of oblivion, but no explanations." For a long time no allusion was made by either to the old difficulties. But at last he insisted upon telling me how tales had been brought to him, and how they exasperated him; and he expressed great regret for what had taken place; and to make amends, as far as he was able, for what he had written about me, he sent me the following letter:
"MARYSVILLE, Dec. 22, 1856.
"Hon. S.J. FIELD.
"DEAR SIR: On yesterday I learned through our mutual friend Charles S. Fairfax, Esq., that Judge W.R. Turner has recently issued a publication which contains a letter of mine, written him some four years ago. I have not been able to procure a copy of this publication, and I have entirely forgotten the language used; in truth I do not remember to have written him on the subject of yourself or otherwise; but I suppose I must have done so, and have given expressions of opinion that I have long since ceased to entertain, and to invectives that I have no disposition to justify. You will recall that, at the time referred to, there unfortunately existed between us feelings of deep hostility; and I may at the time have used harsh terms indicative of my then feelings, which I regret and do not now approve, if they are as represented by others."
"Judge Turner has taken an unwarranted liberty in publishing the letter, be it of what character it may. He never requested my permission for this purpose, nor did I know that it was his intention."
"Trusting that this explanation may be satisfactory, I
remain,"
"Very respectfully yr. obt. servant,"
"WM. T. BARBOUR."
He ever afterwards, as occasion offered, spoke of me in the highest terms as a gentleman and lawyer. My resentment accordingly died out, but I never could feel any great regard for him. He possessed a fair mind and a kindly disposition, but he was vacillating and indolent. Moreover, he loved drink and low company. He served out his second term and afterwards went to Nevada, where his habits became worse, and he sunk so low as to borrow of his acquaintances from day to day small sums—one or two dollars at a time—to get his food and lodging. He died from the effects of his habits of intemperance.
In stating the result of the intended hostile meeting with him, I mentioned that when he proceeded on his way to Sacramento, he left his second, Mr. Fairfax, standing alone on the ground, and that I invited the latter to take a seat in my carriage. From this time the intercourse between Mr. Fairfax and myself became more frequent than it had been previously, and a friendship followed which continued as long as he lived. He was not sparing in his censure of the conduct of his principal, whilst his language was complimentary of mine. In a few months I became quite intimate with him, and I found him possessed of a noble and chivalric spirit. With great gentleness of manner, he had the most intrepid courage. His fidelity to his friends and devotion to their interests attached them strongly to him. He was beloved by all who knew him. No man in the State was more popular. He represented the county of Yuba in the Legislature two or three times, and at one session was Speaker of the Assembly. When the land office at Marysville was established in 1855, he was appointed Register; and in 1856, he was elected Clerk of the Supreme Court of the State. It was my good fortune to aid him in securing both of these positions. At my suggestion, Mr. McDougal, a Member of Congress from California, urged the establishment of the land office, and obtained for him the appointment of Register. In 1856, when he sought the clerkship of the Supreme Court of the State, I became a delegate from Yuba County to the State Convention, and made his nomination for that office my special object, and with the aid of the rest of the delegation, succeeded in obtaining it.
Two or three incidents which I will relate will illustrate the character of the man. It was either in the session of 1854 or 1855, I forget which, that a petition was presented to the Assembly of California on the part of some of the colored people of the State, requesting that the laws then in force, which excluded them from being witnesses in cases where a white person was a party, might be repealed so as to allow them to testify in such cases. At that time there was a great deal of feeling throughout the country on the subject of slavery, and any attempt to legislate in behalf of the colored people was sure to excite opposition, and give rise to suggestions that its promoter was not sound on the slavery question. The presentation of the petition accordingly stirred up angry feelings. It created a perfect outburst of indignation, and some one moved that the petition should be thrown out of the window; and the motion was passed almost unanimously. If I recollect aright, there was but a single vote in the negative. I was standing by Mr. Fairfax when he was informed of the proceeding. He at once denounced it, and said, in energetic terms—"This is all wrong—the petition should have been received. If my horse or my dog could in any way express its wishes to me I would listen to it. It is a shame that a petition from any one, black or white, should not be received by the Legislature of the State, whether it be granted or not." I was greatly impressed at that time with the manliness of this expression in a community which looked with suspicion on any movement in favor of extending any rights to the colored race.
On another occasion, some years afterwards, when I was Judge of the Supreme Court of the State and he was the clerk of the court, there was a good deal of complaint against Harvey Lee, the reporter of the court, who was appointed to the office by Governor Weller. I believe that Lee was instrumental, but of this I am not certain, in getting a law passed which took the appointment of the reporter from the court and gave it to the Governor. He was an inferior lawyer, and, of course, had very little practice. The appointment, therefore, to which a fair salary was attached, was eagerly sought by him. His reports, however, were so defective that an effort was made by the judges to get the law repealed and have the appointment restored to the court. This led to a bitter feeling on his part towards the judges, and in a conversation with Mr. Fairfax he gave vent to it in violent language. Mr. Fairfax resented the attack and an altercation ensued, when Lee, who carried a sword-cane, drew the sword and ran it into Fairfax's body. Fortunately it entered the chest above the heart. Withdrawing the sword Lee made a second lunge at Fairfax, which the latter partially avoided so as to receive only a flesh wound in the side. By this time Fairfax had drawn his pistol and covered the body of Lee, as he was raising his sword for a third thrust. Lee, seeing the pistol, stepped back and threw up his arms exclaiming, "I am unarmed"—though he had only that moment withdrawn his sword from the body of Fairfax, and it was then dripping with blood. "Shoot the damned scoundrel," cried the latter's friend, Samuel B. Smith, then standing by his side. But Fairfax did not shoot. Looking at Lee, whose body was covered with his pistol, while the blood was trickling from his own person, he said, "You are an assassin! you have murdered me! I have you in my power! your life is in my hands!" And gazing on him, he added, "But for the sake of your poor sick wife and children I will spare you." He thereupon uncocked his pistol and handed it to his friend, into whose arms he fell fainting. He had known the wife of Lee when a young girl; and, afterwards, in speaking of the affair to a friend, he said, "I thought my wife would be a widow before sundown, and I did not wish to leave the world making another." All California rang with the story of this heroic act. It has its parallel only in the self-abnegation of the dying hero on the battle-field, who put away from his parched lips the cup of water tendered to him, and directed that it be given to a wounded soldier suffering in agony by his side, saying, "His need is greater than mine."
During the war his sympathies, as was the case with most Southerners in California, were with his people in Virginia. He told me on one occasion that he could not but wish they would succeed; but, he said; "Though I am a Virginian by birth, I have adopted California, and whilst I live in a State which has taken her stand with the Northern people, I cannot in honor do anything, and I will not, to weaken her attachment to the Union. If my health were good I should leave the State and return to Virginia and give my services to her; but, as that is impossible, I shall remain in California, and, whilst here, will not be false to her by anything I do or say."
These incidents, better than any elaborate description, illustrate the character of the man. He was a lineal descendant of the great Fairfax family which has figured so conspicuously in the history of England and of Virginia. He was its tenth Baron in a direct line. But notwithstanding the rank of his family he was a republican in his convictions. He loved his country and its institutions. He was himself more noble than his title. He came East to attend the National Democratic Convention in 1868 at the head of the delegates from California. After the Convention, he spent some months among his friends and relatives at the old family residence in Maryland. At this time the seeds of consumption, which had long been lurking in his system, began to be developed, and he was taken down with a severe illness which proved fatal. He became so ill as to be unable to walk, and was conveyed to Baltimore to procure the best medical attendance; and there he died on the 4th of April, 1869, in the arms of his devoted wife, who had come from California to be with him in his last hours. His body was brought to Washington and interred within sight of the Capitol, near Hock Creek Church, in which his ancestors had worshipped.
I have mentioned that when Fairfax was stabbed by Lee he fell into the arms of Mr. Samuel B. Smith. This gentleman I had known slightly before my difficulty with Judge Barbour; but the intimacy which sprung up between Fairfax and myself, after that affair, brought me more in contact with Mr. Smith, who was his constant companion. Mr. Smith came to California from New Jersey in 1849, and passed through some stirring scenes during that and the following year. He came with Mr. John S. Hagar, who was afterwards State Senator, District Judge, and United States Senator, and was engaged with him in the mines in the winter of 1849-'50. In 1850 he settled in Sutter County; and in the fall of 1852 was elected State Senator from that county. Having become more intimately acquainted with him after he was elected Senator, I requested him to introduce a bill into the Legislature, revising and amending the one which I had originally drawn concerning the courts and judicial officers of the State; and he cheerfully consented to do so, and took great interest in securing its passage. Indeed, it was through his influence that the bill became a law. Many circumstances threw us together after that, and I learned to appreciate his manly character, his generous disposition, and his great devotion to his friends. Finally, in the fall of 1854, we agreed to form a partnership after my return from the Eastern States, which I then proposed to visit. After the Barbour affair the course of my professional life was much the same as that of any other lawyer. My business was large and I gave to it my unremitting attention. In 1854 I determined to go East to see my parents and brothers and sisters, who had never been out of my mind a single day since I left them in 1849. Accordingly, I went East, and after passing a few months with them I returned to California in January, 1855. After that I continued to practice my profession, with Mr. Smith as my partner, until the spring of 1857, though during this period he went to Washington as Commissioner of the State to obtain from Congress the payment of moneys expended by her in suppressing the hostilities of Indians within her borders, and was absent several months. In April of that year we dissolved our partnership. A few months afterwards I was nominated for the bench of the Supreme Court of the State, and was elected by a large majority. There were two candidates besides myself for the position, and 93,000 votes were polled. Of these I received a majority of 36,000 over each of my opponents, and 17,000 over them both together.[3] The term to which I was elected was for six years, commencing January 1st, 1858. In September, 1857, Hugh C. Murray, then Chief Justice, died, and Associate Justice Peter H. Burnett was appointed to fill the vacancy. This left the balance of Judge Burnett's term of service to be filled, and I was urged by the Governor of the State to accept his appointment to it, as it was for less than three months, and immediately preceded my own term. At first I refused, as I desired to revisit the East; but being assured by the judges that taking the place need not prevent my intended visit, I accepted the appointment, and on the 13th of October, 1857, took my seat on the bench.
[1] See Letter of Judge Mott detailing the particulars of the affair; Exhibit H, in Appendix.
[2] See Exhibit I, in Appendix.
[3] The exact vote was as follows:
For myself 55,216
For Nathaniel Bennett 18,944
For J.P. Ralston 19,068
———
Total vote 93,228
Majority over Bennett 36,272
Majority over Balston 36,148
Majority over both 17,204
REMOVAL FROM MARYSVILLE—LIFE ON THE SUPREME BENCH.—END OF JUDGE TURNER.
The day following my acceptance of the Governor's appointment to the Supreme Court of the State, I returned to Marysville to close my business before taking up my residence in Sacramento, where the court held its sessions. I had gone to Sacramento to argue some cases before the court when the appointment was tendered to me; and, of course, did not expect to remain there very long. In a few days I arranged my affairs at Marysville and then removed permanently to Sacramento. I left Marysville with many regrets. I had seen it grow from a collection of tents with a few hundred occupants to a town of substantial buildings with a population of from eight to ten thousand inhabitants. From a mere landing for steamers it had become one of the most important places for business in the interior of the State. When I left, it was a depot of merchandise for the country lying north and east of it; and its streets presented a scene of bustle and activity. Trains of wagons and animals were constantly leaving it with goods for the mines. Its merchants were generally prosperous; some of them were wealthy. Its bankers were men of credit throughout the State. Steamers plied daily between it and Sacramento, and stages ran to all parts of the country and arrived every hour. Two daily newspapers were published in it. Schools were opened and fully attended. Churches of different denominations were erected and filled with worshippers. Institutions of benevolence were founded and supported. A provident city government and a vigorous police preserved order and peace. Gambling was suppressed or carried on only in secret. A theatre was built and sustained. A lecture-room was opened and was always crowded when the topics presented were of public interest. Substantial stores of brick were put up in the business part of the city; and convenient frame dwellings were constructed for residences in the outskirts, surrounded with plats filled with trees and flowers. On all sides were seen evidences of an industrious, prosperous, moral, and happy people, possessing and enjoying the comforts, pleasures, and luxuries of life. And they were as generous as they were prosperous. Their hearts and their purses were open to all calls of charity. No one suffering appealed to them in vain. No one in need was turned away from their doors without having his necessities relieved. It is many years since I was there, but I have never forgotten and I shall never forget the noble and generous people that I found there in all the walks of life.
The Supreme Court of the State then consisted of three members, the senior in commission being the Chief Justice. David S. Terry was the Chief Justice and Peter H. Burnett was the Associate Justice. Both of these gentlemen have had a conspicuous career in California, and of both I have many interesting anecdotes which would well illustrate their characters and which at some future day I may put upon paper. They were both men of vigorous minds, of generous natures and of positive wills; but in all other respects they differed as widely as it was possible for two extremes. Mr. Terry had the virtues and prejudices of men of the extreme South in those days. His contact and larger experience since with men of the North have no doubt modified many of those prejudices, and his own good sense must have led him to alter some of his previous judgments. Probably his greatest regret is his duel with Mr. Broderick, as such encounters, when they terminate fatally to one of the parties, never fail to bring life-long bitterness to the survivor. A wiser mode of settling difficulties between gentlemen has since been adopted in the State; but those who have not lived in a community where the duel is practiced cannot well appreciate the force of the public sentiment which at one time existed, compelling a resort to it when character was assailed.
Mr. Burnett was one of the early settlers in Oregon, and had held positions of honor and trust there before settling in California. He came here soon after the discovery of gold, took an interest in public affairs, and was elected the first Governor of the State, when the constitution was adopted.
Judge Terry resigned his office in September, 1859, when he determined to send a challenge to Mr. Broderick, and I succeeded him as Chief Justice; and W.W. Cope, of Amador, was elected to fill the vacant place on the bench. I was absent from the State at the time, or I should have exerted all the power I possessed by virtue of my office to put a stop to the duel. I would have held both of the combatants to keep the peace under bonds of so large an amount as to have made them hesitate about taking further steps; and in the meantime I should have set all my energies to work, and called others to my aid, to bring about a reconciliation. I believe I should have adjusted the difficulty.
Mr. Cope, who filled the vacant place on the bench, possessed a superior mind and a genial nature. He made an excellent Judge. He studiously examined every case and carefully prepared his opinions. He remained on the bench until January, 1864, when the new constitutional amendments, reorganizing the court, went into effect. He is now in practice in San Francisco, and has a large clientage.
Judge Burnett continued in office until the election of his successor in the fall of 1858. His successor was Joseph G. Baldwin, a lawyer of distinction and a gentleman of literary reputation. He was the author of "The Flush Times of Alabama and Mississippi," and of "Party Leaders." The first is a work full of humor and a great favorite in the section of the country whose "times" it portrays with such spirit and glee as to excite roars of laughter in the reader. The latter is a thoughtful history of the character and influence upon the country of Jefferson, Hamilton, Jackson, Clay, and Randolph. His portraitures present these men in the fullness and freshness of living beings, whom we see and hear, and whose power we feel.
My friendship for Mr. Baldwin commenced long before he came to the bench, and it afterwards warmed into the attachment of a brother. He had a great and generous heart; there was no virtue of humanity of which he did not possess a goodly portion. He was always brimful of humor, throwing off his jokes, which sparkled without burning, like the flashes of a rocket. There was no sting in his wit. You felt as full of merriment at one of his witticisms, made at your expense, as when it was played upon another. Yet he was a profound lawyer, and some of his opinions are models of style and reasoning. He remained on the bench until January, 1862, when he was succeeded by Edward Norton, of San Francisco. This gentleman was the exemplar of a judge of a subordinate court. He was learned, patient, industrious, and conscientious; but he was not adapted for an appellate tribunal. He had no confidence in his own unaided judgment. He wanted some one upon whom to lean. Oftentimes he would show me the decision of a tribunal of no reputation with apparent delight, if it corresponded with his own views, or with a shrug of painful doubt, if it conflicted with them. He would look at me in amazement if I told him that the decision was not worth a fig; and would appear utterly bewildered at my waywardness when, as was sometimes the case, I refused to look at it after hearing by what court it was pronounced.
It is not my purpose to speak of my own career on the Bench of the Supreme Court of California. It is only for reminiscences of my previous life that you, Mr. Hittell, have asked.[1] I am tempted, however, to hand to you a letter of Judge Baldwin, my associate for over three years, in which he presents, in terms exaggerated by his friendship, the result of my labors there.[2]
There is only one scene to which I wish to refer.
About a year and a half after I went upon the bench, a contested election case came up from Trinity County. It appeared that Judge Turner, who had been sent to the district composed of the counties of Trinity and Klamath, by the act concerning the courts and judicial officers of the State, at the end of his term offered himself for re-election as Judge of that district. When the vote was counted there appeared to be a majority of one against him, and his opponent was declared elected. He instituted a contest for the office, and, being defeated in the court below, appealed to the Supreme Court. He then became very much exercised over his appeal, because I was one of the Justices. There were not wanting persons who, out of sheer malice, or not comprehending any higher motives of conduct than such as governed themselves, represented that I would improve the opportunity to strike him a blow.
When his case came on for hearing, I left the bench to my associates, Judges Terry and Baldwin, and they decided in his favor. At this action of mine Turner was amazed. It was something wholly unexpected and surprising to him. Soon after the decision he sent one of his friends, named Snowden, to know if I would speak to him if he should make the first advance. I answered that under no circumstances would I ever consent to speak to him; that he had done me injuries which rendered any intercourse with him impossible; that the world was wide enough for us both, and he must go his own way. This answer Snowden communicated to him. The next morning he stationed himself at the foot of the stairway leading up to the Supreme Court rooms, which was on the outside of the building, and, as I passed up, he cried out; "I am now at peace with all the world; if there is any man who feels that I have done him an injury, I am ready to make him amends." I turned and looked at him for a moment, and then passed on without saying a word. On the following morning he took the same position and repeated substantially the same language. I stopped and gazed at him for a moment, and then passed on in silence. This was the last time I saw him. He returned to Trinity, and held his office for the balance of his term, six years, under the decision of the Supreme Court, and was re-elected in 1863. But his character and habits unfitted him for a judicial position. He was addicted to gambling and drinking, and he consorted with the lowest characters; and the same tyrannical temper and conduct which he had exhibited towards me in Marysville, were displayed in his new district. Accordingly measures were taken by citizens of Trinity to secure his impeachment by the Legislature. Mr. Westmoreland, a member of the Assembly from that county in 1867 offered a resolution for the appointment of a committee to inquire whether articles of impeachment should be presented against him for high crimes and misdemeanors, with power to send for persons and papers and report articles if warranted by the evidence. In offering the resolution Mr. Westmoreland charged, that during the time Turner had held the office of District Judge he had been grossly tyrannical; that he had imprisoned citizens, depriving them of their liberty without process of law; that he had neglected and refused to perform the duties incumbent upon him by statute; that by a standing rule he allowed no witness to be called in a case unless he was subpoenaed and in attendance on the first day of the term; that he had used the power of his position for the furtherance of his own ends of private hate; that he was an habitual drunkard, with rare intervals of sobriety, and had upon occasions come into the court-room to sit upon the trial of causes so intoxicated as to be unable to stand, and had fallen helplessly upon the floor, whence he had been removed by officers of the court; that upon one occasion, when engaged in a trial, he had in the presence of jurors, witnesses, and other persons attending the court, deliberately gone out of the court-room and openly entered a house of ill-fame near by; and that by his disgraceful conduct he had become a burden upon the people of that district too grievous to be borne. These things Mr. Westmoreland stated he stood prepared to prove, and he invoked the interposition of the Legislature to protect the people of the Eighth Judicial District who were suffering from the deportment and conduct of this officer. The resolution was passed. Finding that articles of impeachment would be presented against him, Turner resigned his office. After this his habits of drinking became worse, and he was sent to the Asylum for Inebriates, where he died.
In thinking over my difficulties with Turner at this distant day, there is nothing in my conduct which I in the least regret. Had I acted differently; had I yielded one inch, I should have lost my self-respect and been for life an abject slave. There was undoubtedly an unnecessary severity of language in two or three passages of my answers to his attacks; and some portion of my answer in court to his order to show cause why I should not be re-expelled from the bar might better have been omitted. I have since learned that one is never so strong as when he is calm, and never writes so forcibly as when he uses the simplest language. My justification in these particulars, if they require any, must be found in the savage ferocity with which I was assailed, the brutal language applied to my character and conduct, and the constant threats made of personal violence. Malignity and hate, with threats of assassination, followed me like a shadow for months. I went always armed for protection against assault. I should have been less or more than man had I preserved at all times perfect calmness either in my language or conduct.
In the contest with this man I was cheered by the support of the best men of the State. But of all of them no one aided me so much, and so freely, as the editor of the Marysville Herald, Mr. Robert H. Taylor, a gentleman still living, in the full strength of his intellect, and honored and trusted as a learned member of the legal profession in Nevada. May length of years and blessings without number attend him.
* * * * *
Here my narrative of "Personal Experiences" must for the present end. I could have given you, Mr. Hittell, more interesting matter. I could have given you sketches of Fremont, Halleck, Gwin, Broderick, Weller, Geary, Sherman, Bigler, McDougal, Bennett, Heydenfeldt, Murray, and others, with many striking anecdotes illustrative of their characters. They were all remarkable men, and the history of their lives would be full of interest and instruction. I could have related the story of the Vigilance Committees of 1851 and 1856, and shown how the men of order and virtue acquired and maintained ascendency over the irregular and disorderly elements of society. I could have told you of the gradual development of the industries of the State until her yearly products have become one of the marvels of the world. I could have described the wild excitement produced by the supposed discoveries of gold in boundless quantities on Fraser River; and the later but more substantial movement upon the development of the silver mines of Nevada. I could have recounted the efforts made in 1860 and 1861 to keep the State in the Union against the movements of the Secessionists, and the communications had with President Lincoln by relays of riders over the Plains. I could have described the commencement, progress, and completion of the Pacific railroad, and the wonderful energy and unfailing resolution of its constructors. I could have told you stories without number, full of interest, of the Judges of California, State and Federal, who preceded me on the bench, and of members of the profession; of Hastings, Bennett, Lyons, Wells, Anderson, Heydenfeldt, and Murray, of the State Supreme Court; of Hoffman and McAllister of the Federal bench; of Robinson, Crittenden, Randolph, Williams, Yale, McConnell, Felton, and others of the Bar, now dead, and of some who are at its head, now living; composing as a whole a bar not exceeded in ability, learning, eloquence, and literary culture by that of any other State of the Union. But you asked me merely for personal reminiscences, of occurrences at Marysville and during the days preceding my going there. I will, therefore, postpone until another occasion a narrative which I think will be more interesting than anything I have here related.
[1] These sketches were in the main dictated to a short-hand writer at the request of Mr. Theodore H. Hittell, of San Francisco.
[2] The letter is printed at the end of this narrative at
page 135.
THE CAREER OF JUDGE FIELD ON THE SUPREME BENCH OF CALIFORNIA, BY JUDGE JOSEPH G. BALDWIN, HIS ASSOCIATE FOR THREE YEARS.
[From the Sacramento Union, of May 6, 1863.]
"The resignation by Judge Field of the office of Chief Justice of the Supreme Court of California, to take effect on the 20th instant, has been announced. By this event the State has been deprived of the ablest jurist who ever presided over her courts. Judge Field came to California from New York in 1849, and settled in Marysville. He immediately commenced the practice of law and rose at once to a high position at the local bar, and upon the organization of the Supreme Court soon commanded a place in the first class of the counsel practicing in that forum. For many years, and until his promotion to the bench, his practice was as extensive, and probably as remunerative, as that of any lawyer in the State. He served one or two sessions in the Legislature, and the State is indebted to him for very many of the laws which constitute the body of her legislation.[1] In 1857 he was nominated for Judge of the Supreme Court for a full term, and in October of the same year was appointed by Governor Johnson to fill the unexpired term of Justice Heydenfeldt, resigned. He immediately entered upon the office, and has continued ever since to discharge its duties. Recently, as the reader knows, he was appointed, by the unanimous request of our delegation in Congress, to a seat upon the Bench of the Supreme Court of the United States, and was confirmed, without opposition, by the Senate.
"Like most men who have risen to distinction in the United States, Judge Field commenced his career without the advantages of wealth, and he prosecuted it without the factitious aids of family influence or patronage. He had the advantage, however—which served him better than wealth or family influence—of an accomplished education, and careful study and mental discipline. He brought to the practice of his profession a mind stored with professional learning, and embellished with rare scholarly attainments. He was distinguished at the bar for his fidelity to his clients, for untiring industry, great care and accuracy in the preparation of his cases, uncommon legal acumen, and extraordinary solidity of judgment. As an adviser, no man had more the confidence of his clients, for he trusted nothing to chance or accident when certainty could be attained, and felt his way cautiously to his conclusions, which, once reached, rested upon sure foundations, and to which he clung with remarkable pertinacity. Judges soon learned to repose confidence in his opinions, and he always gave them the strongest proofs of the weight justly due to his conclusions.
"When he came to the bench, from various unavoidable causes the calendar was crowded with cases involving immense interests, the most important questions, and various and peculiar litigation. California was then, as now, in the development of her multiform physical resources. The judges were as much pioneers of law as the people of settlement. To be sure something had been done, but much had yet to be accomplished; and something, too, had to be undone of that which had been done in the feverish and anomalous period that had preceded. It is safe to say that, even in the experience of new countries hastily settled by heterogeneous crowds of strangers from all countries, no such example of legal or judicial difficulties was ever before presented as has been illustrated in the history of California. There was no general or common source of jurisprudence. Law was to be administered almost without a standard. There was the civil law, as adulterated or modified by Mexican provincialism, usages, and habitudes, for a great part of the litigation; and there was the common law for another part, but what that was was to be decided from the conflicting decisions of any number of courts in America and England, and the various and diverse considerations of policy arising from local and other facts. And then, contracts made elsewhere, and some of them in semi-civilized countries, had to be interpreted here. Besides all which may be added that large and important interests peculiar to the State existed—mines, ditches, etc.—for which the courts were compelled to frame the law, and make a system out of what was little better than chaos.
"When, in addition, it is considered that an unprecedented number of contracts, and an amount of business without parallel, had been made and done in hot haste, with the utmost carelessness; that legislation was accomplished in the same way, and presented the crudest and most incongruous materials for construction; that the whole scheme and organization of the government, and the relation of the departments to each other, had to be adjusted by judicial construction—it may well be conceived what task even the ablest jurist would take upon himself when he assumed this office. It is no small compliment to say that Judge Field entered upon the duties of this great trust with his usual zeal and energy, and that he leaves the office not only with greatly increased reputation, but that he has raised the character of the jurisprudence of the State. He has more than any other man given tone, consistency, and system to our judicature, and laid broad and deep the foundation of our civil and criminal law. The land titles of the State—the most important and permanent of the interests of a great commonwealth—have received from his hand their permanent protection, and this alone should entitle him to the lasting gratitude of the bar and the people.
"His opinions, whether for their learning, logic, or diction, will compare favorably, in the judgment of some of our best lawyers, with those of any judge upon the Supreme Bench of the Union. It is true what he has accomplished has been done with labor; but this is so much more to his praise, for such work was not to be hastily done, and it was proper that the time spent in perfecting the work should bear some little proportion to the time it should last. We know it has been said of Judge Field that he is too much of a 'case lawyer,' and not sufficiently broad and comprehensive in his views. This criticism is not just. It is true he is reverent of authority, and likes to be sustained by precedent; but an examination of his opinions will show that, so far from being a timid copyist, or the passive slave of authority, his rulings rest upon clearly defined principles and strong common sense.
"He retires from office without a stain upon his ermine. Millions might have been amassed by venality. He retires as poor as when he entered, owing nothing and owning little, except the title to the respect of good men, which malignant mendacity cannot wrest from a public officer who has deserved, by a long and useful career, the grateful appreciation of his fellow-citizens. We think that we may safely predict that, in his new place, Justice Field will fulfill the sanguine expectations of his friends."
J.G.B.
SAN FRANCISCO, May 1, 1863.
[1] He was in the Legislature only one session.
* * * * *
In 1855 a circuit court for California was created by Congress, and clothed with the ordinary jurisdiction of the several circuit courts of the United States. Hon. M. Hall McAllister was appointed its judge. In January, 1863, he resigned and my appointment as his successor was recommended by our Senators. They telegraphed me what they had done, and I replied that I could not accept the place, that I preferred to remain Chief Justice of the Supreme Court of the State than to be a judge of an inferior federal court, but that if a new justice were added to the Supreme Court of the United States, I would accept the office if tendered to me. Notwithstanding this reply my appointment was urged, and I was nominated by the President. The Senators have since told me that they pressed my nomination from a belief that another justice would soon be added to the Supreme Court, and that the appointment would be made from the Pacific States, and that if I were circuit judge it would more likely be tendered to me than to any one else. The interests of those States were so great, and from the character of their land titles, and their mines of gold and silver, were in some respects so different from those of the Eastern States, that it was deemed important to have some one familiar with them on the Supreme Bench of the United States. Accordingly, while my nomination for circuit judge was pending before the Senate, a bill providing for an additional justice of the Supreme Court, and making the Pacific States a new circuit, was introduced into both Houses of Congress, and on the last day of the session, March 3d, 1863, it became a law. Soon after the adjournment of Congress, the entire delegation from the Pacific States united in recommending my appointment to the new office. The delegation then consisted of four Senators and four Members of the House, of whom five were Democrats and three Republicans; all of them were Union men. I was accordingly nominated by the President, and the nomination was unanimously confirmed by the Senate. My commission was signed on the 10th of March, 1863, and forwarded to me. I did not, however, take the oath of office and enter upon its duties until the 20th of May following. At the time I received the commission there were many important cases pending in the Supreme Court of California, which had been argued when only myself and one of the associate justices were present. I thought that these cases should be disposed of before I resigned, as otherwise a re-argument of them would be required, imposing increased expense and delay upon the parties. I therefore sent my resignation as Chief Justice to the Governor, to take effect on the 20th of May. I selected that day, as I believed the cases argued could be decided by that time, and because it was the birthday of my father. I thought it would be gratifying to him to know that on the eighty-second anniversary of his birth his son had become a Justice of the Supreme Court of the United States. Accordingly on that day I took the oath of office.[1]
[1] Although I had informed the Attorney-General of my action and delay in taking the oath of office, the salary of the office was sent to me from the date of my commission, March 10th, 1863. I immediately deposited with the sub-treasurer at San Francisco, to the credit of the United States, the proportion for the time between that date and the 20th of May, and informed the Secretary of the Treasury of the deposit, enclosing to him the sub-treasurer's receipt.
* * * * *
THE ANNOYANCES OF MY JUDICIAL LIFE.
After the narrative of my Personal Reminiscences was completed, I concluded to dictate an account of some strange annoyances to which I had been subjected in the course of my judicial life. The account will have an interest to those of my friends for whom the Reminiscences were printed, and it is intended for their perusal alone.
ROSY VIEWS OF JUDICIAL LIFE GRADUALLY VANISHING.—UNSETTLED LAND TITLES OF THE STATE.—ASSERTED OWNERSHIP BY THE STATE OF GOLD AND SILVER FOUND IN THE SOIL.—PRESENT OF A TORPEDO.
When I went on the bench, I not only entertained elevated notions of the dignity and importance of the judicial office, but looked forward confidently to the respect and honor of the community from a faithful discharge of its duties. I soon discovered, however, that there would be but little appreciation for conscientious labor on the bench, except from a small number of the legal profession, until after the lapse of years. For the heavy hours of toil which the judges endured, for the long examination which they gave to voluminous records, for their nights of sleeplessness passed in anxious thought to ascertain what was true and right amidst a mass of conflicting evidence and doubtful principles, the public at large appeared to have little thought and less consideration. The cry of disappointment over frustrated schemes of cupidity and fraud was sufficient for the time to drown all other expressions of judgment upon the action of the court.
The unsettled condition of the land titles of the State gave occasion to a great deal of litigation and was for a long time the cause of much bad feeling towards the judges who essayed to administer impartial justice. When California was acquired, the population was small and widely scattered. To encourage colonization, grants of land in large quantities, varying from one to eleven leagues, had been made to settlers by the Mexican government. Only small tracts were subjected to cultivation. The greater part of the land was used for grazing cattle, which were kept in immense herds. The grants were sometimes of tracts with defined boundaries, and sometimes of places by name, but more frequently of specified quantities within boundaries embracing a greater amount. By the Mexican law, it was incumbent upon the magistrates of the vicinage to put the grantees in possession of the land granted to them; and for that purpose to measure off and segregate the quantity designated. Owing to the sparseness of the population there was little danger of dispute as to boundaries, and this segregation in the majority of cases had been neglected before our acquisition of the country. From the size of the grants and the want of definite boundaries, arose nearly all the difficulties and complaints of the early settlers. Upon the discovery of gold, immigrants from all parts of the world rushed into the country, increasing the population in one or two years from a few thousand to several hundred thousand. A large number crossed the plains from the Western States, and many of them sought for farming lands upon which to settle. To them a grant of land, leagues in extent, seemed a monstrous wrong to which they could not be reconciled. The vagueness, also, in many instances, of the boundaries of the land claimed gave force and apparent reason to their objections. They accordingly settled upon what they found unenclosed or uncultivated, without much regard to the claims of the Mexican grantees. If the land upon which they thus settled was within the tracts formerly occupied by the grantees with their herds, they denied the validity of grants so large in extent. If the boundaries designated enclosed a greater amount than that specified in the grants, they undertook to locate the supposed surplus. Thus, if a grant were of three leagues within boundaries embracing four, the immigrant would undertake to appropriate to himself a portion of what he deemed the surplus; forgetting that other immigrants might do the same thing, each claiming that what he had taken was a portion of such surplus, until the grantee was deprived of his entire property.
When I was brought to consider the questions to which this condition of things gave rise, I assumed at the outset that the obligations of the treaty with Mexico were to be respected and enforced. This treaty had stipulated for the protection of all rights of property of the citizens of the ceded country; and that stipulation embraced inchoate and equitable rights, as well as those which were perfect. It was not for the Supreme Court of California to question the wisdom or policy of Mexico in making grants of such large portions of her domain, or of the United States in stipulating for their protection. I felt the force of what Judge Grier had expressed in his opinion in the case of The United States vs. Sutherland, in the 19th of Howard, that the rhetoric which denounced the grants as enormous monopolies and princedoms might have a just influence when urged to those who had a right to give or refuse; but as the United States had bound themselves by a treaty to acknowledge and protect all bona fide titles granted by the previous government, the court had no discretion to enlarge or contract such grants to suit its own sense of propriety or to defeat just claims, however extensive, by stringent technical rules of construction to which they were not originally subjected. Since then, while sitting on the Bench of the Supreme Court of the United States, I have heard this obligation of our government to protect the rights of Mexican grantees stated in the brilliant and powerful language of Judge Black. In the Fossat case, referring to the land claimed by one Justo Larios, a Mexican grantee, he said: "The land we are claiming never belonged to this government. It was private property under a grant made long before our war with Mexico. When the treaty of Guadalupe Hidalgo came to be ratified—at the very moment when Mexico was feeling the sorest pressure that could be applied to her by the force of our armies, and the diplomacy of our statesmen—she utterly refused to cede her public property in California unless upon the express condition that all private titles should be faithfully protected. We made the promise. The gentleman sits on this bench who was then our Minister there.[1] With his own right hand he pledged the sacred honor of this nation that the United States would stand over the grantees of Mexico and keep them safe in the enjoyment of their property. The pledge was not only that the government itself would abstain from all disturbance of them, but that every blow aimed at their rights, come from what quarter it might, should be caught upon the broad shield of our blessed Constitution and our equal laws."
"It was by this assurance thus solemnly given that we won the reluctant consent of Mexico to part with California. It gave us a domain of more than imperial grandeur. Besides the vast extent of that country, it has natural advantages such as no other can boast. Its valleys teem with unbounded fertility, and its mountains are filled with inexhaustible treasures of mineral wealth. The navigable rivers run hundreds of miles into the interior, and the coast is indented with the most capacious harbors in the world. The climate is more healthful than any other on the globe: men can labor longer with less fatigue. The vegetation is more vigorous and the products more abundant; the face of the earth is more varied, and the sky bends over it with a lovelier blue.—That was what we gained by the promise to protect men in the situation of Justo Larios, their children, their alienees, and others claiming through them. It is impossible that in this nation they will ever be plundered in the face of such a pledge."—(2 Wallace, 703.)
Actuated by this principle—that fidelity to a nation's pledge is a sacred duty, and that justice is the highest interest of the country, I endeavored, whenever the occasion presented itself, and my associates heartily co-operated with me, to protect the Mexican grantees. Their grants contained a stipulation for the possession of the lands granted, inasmuch as they were subject to the conditions of cultivation and occupancy, and a failure to comply with the conditions was considered by the tribunals of the United States as a most material circumstance in the determination of the right of the grantees to a confirmation of their claims. I held, therefore, with the concurrence of my associates, that the grantees, whether they were to be considered as having a legal or an equitable right to the lands, were entitled to their possession until the action of the government upon their claims, and, therefore, that they could recover in ejectment. And when the grant was not a mere float, but was of land within defined boundaries, which embraced a greater quantity than that specified in it, with a provision that the surplus should be measured off by the government, I held that until such measurement the grantee could hold the whole as against intruders, and until then he was a tenant in common with the government. As I said in one of my opinions, speaking for the court, until such measurement no individual could complain, much less could he be permitted to determine in advance, that any particular locality would fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself. "If one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is the donee of the government, would be stripped of its bounty for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors."[2]
These views have since met with general assent in California and have been approved by the Supreme Court of the United States.[3] But at that time they gave great offence to a large class, and the judges were denounced in unmeasured terms as acting in the interests of monopolists and land-grabbers. Even now, when the wisdom and justice of their action are seen and generally recognized, words of censure for it are occasionally whispered through the Press. Persons sometimes seem to forget that to keep the plighted faith of the nation, to preserve from reproach its fair fame, where its honor is engaged, is one of the highest duties of all men in public life.
The action of the court as to the possession of the public lands of the United States met with more favor. The position of the people of California with respect to the public lands was unprecedented. The discovery of gold brought, as already stated, an immense immigration to the country. The slopes of the Sierra Nevada were traversed by many of the immigrants in search of the precious metals, and by others the tillable land was occupied for agricultural purposes. The title was in the United States, and there had been no legislation by which it could be acquired. Conflicting possessory claims naturally arose, and the question was presented as to the law applicable to them. As I have mentioned in my Narrative of Reminiscences, the Legislature in 1851 had provided that in suits before magistrates for mining claims, evidence of the customs, usages, and regulations of miners in their vicinage should be admissible, and, when not in conflict with the Constitution and laws of the United States, should govern their decision, and that the principle thus approved was soon applied in actions for mining claims in all courts. In those cases it was considered that the first possessor or appropriator of the claim had the better right as against all parties except the government, and that he, and persons claiming under him, were entitled to protection. This principle received the entire concurrence of my associates, and was applied by us, in its fullest extent, for the protection of all possessory rights on the public lands. Thus, in Coryell vs. Cain, I said, speaking for the court: "It is undoubtedly true, as a general rule, that the claimant in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's, and that it is a sufficient answer to his action to show title out of him and in a third party. But this general rule has, in this State, from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country, been, to a certain extent, qualified and limited. The larger portion of the mining lands within the State belong to the United States, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. Actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount title of the government would operate to defeat them, confusion and ruin would be the result. In determining controversies between parties thus situated, this court proceeds upon the presumption of a grant from the government to the first appropriator of mines, water privileges, and the like. This presumption, which would have no place for consideration as against the assertion of the rights of the superior proprietor, is held absolute in all those controversies. And with the public lands which are not mineral lands, the title, as between citizens of the State, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him."—(16 Cal., p. 572.)
The difficulties attendant upon any attempt to give security to landed possessions in the State, arising from the circumstances I have narrated, were increased by an opinion, which for some time prevailed, that the precious metals, gold and silver, found in various parts of the country, whether in public or private lands, belonged to the State by virtue of her sovereignty. To this opinion a decision of the Supreme Court of the State, made in 1853, gave great potency. In Hicks vs. Bell, decided that year, the court came to that conclusion, relying upon certain decisions of the courts of England recognizing the right of the Crown to those metals. The principal case on the subject was that of The Queen vs. The Earl of Northumberland, reported in Plowden. The counsel of the Queen in that case gave, according to our present notions, some very fanciful reasons for the conclusion reached, though none were stated in the judgment of the court. There were three reasons, said the counsel, why the King should have the mines and ores of gold and silver within the realm, in whatsoever land they were found: "The first was, in respect to the excellency of the thing, for of all things which the soil within this realm produces or yields, gold and silver are the most excellent, and of all persons in the realm, the King is, in the eye of the law, most excellent. And the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all others; and because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the King.—The second reason was, in respect of the necessity of the thing. For the King is the head of the Weal-public and the subjects are his members; and the office of the King, to which the law has appointed him, is to preserve his subjects; and their preservation consisted in two things, viz., in an army to defend them against hostilities, and in good laws. And an army cannot be had and maintained without treasure, for which reason some authors, in their books, call treasure the sinews of war; and, therefore, inasmuch as God has created mines within this realm, as a natural provision of treasure for the defence of the realm, it is reasonable that he who has the government and care of the people, whom he cannot defend without treasure, should have the treasure wherewith to defend them.—The third reason was, in respect of its convenience to the subjects in the way of mutual commerce and traffic. For the subjects of the realm must, of necessity, have intercourse or dealing with one another, for no individual is furnished with all necessary commodities, but one has need of the things which another has, and they cannot sell or buy together without coin.—And if the subject should have it (the ore of gold or silver) the law would not permit him to coin it, nor put a print or value upon it, for it belongs to the King only to fix the value of coin, and to ascertain the price of the quantity, and to put the print upon it, which being done, the coin becomes current for so much as the King has limited.—So that the body of the realm would receive no benefit or advantage if the subject should have the gold and silver found in mines in his land; but on the other hand, by appropriating it to the King, it tends to the universal benefit of all the subjects in making their King able to defend them with an army against all hostilities, and when he has put the print and value upon it, and has dispersed it among his subjects, they are thereby enabled to carry on mutual commerce with one another, and to buy and sell as they have occasion, and to traffic at their pleasure. Therefore, for these reasons, viz., for the excellency of the thing, and for the necessity of it, and the convenience that will accrue to the subjects, the common law, which is no other than pure and tried reason, has appropriated the ore of gold and silver to the King, in whatever land it be found."
The Supreme Court of the State, without considering the reasons thus assigned in the case in Plowden, adopted its conclusion; and as the gold and silver in the British realm are there held to belong to the Crown, it was concluded, on the hypothesis that the United States have no municipal sovereignty within the limits of the State, that they must belong in this country to the State. The State, therefore, said the court, "has solely the right to authorize them" (the mines of gold and silver) "to be worked; to pass laws for their regulation; to license miners; and to affix such terms and conditions as she may deem proper to the freedom of their use. In the legislation upon this subject she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions, and she has wisely provided that their conflicting claims shall be adjudicated by the rules and customs which may be established by bodies of them working in the same vicinity."—(3 Cal., 220.)
The miners soon grasped the full scope of this decision, and the lands of private proprietors were accordingly invaded for the purpose of mining as freely as the public lands. It was the policy of the State to encourage the development of the mines, and no greater latitude in exploration could be desired than was thus sanctioned by the highest tribunal of the State. It was not long, however, before a cry came up from private proprietors against the invasion of their possessions which the decision had permitted; and the court was compelled to put some limitation upon the enjoyment by the citizen of this right of the State. Accordingly, within two years afterwards, in Stoakes vs. Barrett, (5 Cal., 37,) it held that although the State was the owner of the gold and silver found in the lands of private individuals as well as in the public lands, "yet to authorize an invasion of private property in order to enjoy a public franchise would require more specific legislation than any yet resorted to."
The spirit to invade other people's lands, to which the original decision gave increased force against the intention of its authors, could not be as easily repressed as it was raised in the crowd of adventurers, who filled the mining regions. Accordingly, long before I went on the bench, the right to dig for the precious metals on the lands of private individuals was stoutly asserted under an assumed license of the State. And afterwards, in the case of Biddle Boggs vs. The Merced Mining Co., which came before the court in 1859, where the plaintiff claimed under a patent of the United States, issued upon the confirmation of a Mexican grant, the existence of this license was earnestly maintained by parties having no connection with the government, nor any claim of title to the land. Its existence was, however, repudiated by the court, and speaking for it in that case I said: "There is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship, and under this pretended license the whole might be invaded, and, for all useful purposes, destroyed, no matter how little remunerative the product of the mining. The entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gardens, or otherwise. Under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting. What value would there be to a title in one man, with a right of invasion in the whole world? And what property would the owner possess in mineral land—the same being in fact to him poor and valueless just in proportion to the actual richness and abundance of its products? There is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber, and occupy his land, under the pretence that he has reason to believe there is gold under the surface, or if existing, that he wishes to extract and remove it."
At a later day the court took up the doctrine, that the precious metals belonged to the State by virtue of her sovereignty, and exploded it. The question arose in Moore vs. Smaw, reported in 17th California, and in disposing of it, speaking for the court, I said: "It is undoubtedly true that the United States held certain rights of sovereignty over the territory which is now embraced within the limits of California, only in trust for the future State, and that such rights at once vested in the new State upon her admission into the Union. But the ownership of the precious metals found in public or private lands was not one of those rights. Such ownership stands in no different relation to the sovereignty of a State than that of any other property which is the subject of barter and sale. Sovereignty is a term used to express the supreme political authority of an independent State or Nation. Whatever rights are essential to the existence of this authority are rights of sovereignty. Thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses, termed the right of eminent domain, are all rights of sovereignty, for they are rights essential to the existence of supreme political authority. In this country, this authority is vested in the people, and is exercised through the joint action of their federal and State governments. To the federal government is delegated the exercise of certain rights or powers of sovereignty; and with respect to sovereignty, rights and powers are synonymous terms; and the exercise of all other rights of sovereignty, except as expressly prohibited, is reserved to the people of the respective States, or vested by them in their local governments. When we say, therefore, that a State of the Union is sovereign, we only mean that she possesses supreme political authority, except as to those matters over which such authority is delegated to the federal government, or prohibited to the States; in other words, that she possesses all the rights and powers essential to the existence of an independent political organization, except as they are withdrawn by the provisions of the Constitution of the United States. To the existence of this political authority of the State—this qualified sovereignty, or to any part of it—the ownership of the minerals of gold and silver found within her limits is in no way essential. The minerals do not differ from the great mass of property, the ownership of which may be in the United States, or in individuals, without affecting in any respect the political jurisdiction of the State. They may be acquired by the State, as any other property may be, but when thus acquired she will hold them in the same manner that individual proprietors hold their property, and by the same right; by the right of ownership, and not by any right of sovereignty."
And referring to the argument of counsel in the case in Plowden, I said that it would be a waste of time to show that the reasons there advanced in support of the right of the Crown to the mines could not avail to sustain any ownership of the State in them. The State takes no property by reason of "the excellency of the thing," and taxation furnishes all requisite means for the expenses of government. The convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coinage appertains to sovereignty. But the exercise of this right does not require the ownership of the precious metals by the State, nor by the federal government, where this right is lodged under our system, as the experience of every day demonstrates.