Personal reminiscences of early days in California, with other sketches

by Stephen J. Field; George C. Gorham

CHAPTER XVII.

HABEAS CORPUS PROCEEDINGS IN JUSTICE FIELD'S CASE.

On Thursday, August 22d, the hearing of the habeas corpus case of Justice Field commenced in the United States Circuit Court, under orders from the Attorney-General, to whom a report of the whole matter had been telegraphed. The United States district attorney appeared on behalf of Justice Field. In addition to him there also appeared as counsel for Justice Field, Hon. Richard T. Mesick, Saml. M. Wilson, Esq., and W.F. Herrin, Esq. The formal return of the writ of habeas corpus had been made by the sheriff of San Joaquin county on the 16th. To that return Justice Field presented a traverse, which was in the following language, and was signed and sworn to by him:

"The petitioner, Stephen J. Field, traverses the return of the sheriff of San Joaquin county, State of California, made by him to the writ of habeas corpus by the circuit judge on the ninth circuit, and made returnable before the Circuit Court of said circuit, and avers:

"That he is a justice of the Supreme Court of the United States, allotted to the ninth judicial circuit, and is now and has been for several weeks in California, in attendance upon the Circuit Court of said circuit in the discharge of his judicial duties; and, further, that the said warrant of the justice of the peace, H.V.J. Swain, in Stockton, California, issued on the 14th day of August, 1889, under which the petitioner is held, was issued by said justice of the peace without reasonable or probable cause, upon the sole affidavit of one Sarah Althea Terry, who did not see the commission of the act which she charges to have been a murder, and who is herself a woman of abandoned character, and utterly unworthy of belief respecting any matter whatever; and, further, that the said warrant was issued in the execution of a conspiracy, as your petitioner is informed, believes, and charges, between the said Sarah Althea Terry and the district attorney, White, and the said justice of the peace, H.V.J. Swain, and one E.L. Colnon, of said Stockton, to prevent by force and intimidation your petitioner from discharging the duties of his office hereafter, and to injure him in his person on account of the lawful discharge of the duties of his office heretofore, by taking him to Stockton, where he could be subjected to indignities and humiliation, and where they might compass his death.

"That the said conspiracy is a crime against the United States, under the laws thereof, and was to be executed by an abuse of the process of the State court, two of said conspirators being officers of the said county of San Joaquin, one the district attorney and the other a justice of the peace, the one to direct and the other to issue the warrant upon which your petitioner could be arrested.

"And the petitioner further avers that the issue of said writ of habeas corpus and the discharge of your petitioner thereunder were and are essential to defeat the execution of the said conspiracy.

"And your petitioner further avers that the accusation of crime against him, upon which said warrant was issued, is a malicious and malignant falsehood, for which there is not even a pretext; that he neither advised nor had any knowledge of the intention of any one to commit the act which resulted in the death of David S. Terry, and that he has not carried or used any arm or weapon of any kind for nearly thirty years.

"All of which your petitioner is ready to establish by full
and competent proof.

"Wherefore your petitioner prays that he may be discharged
from said arrest and set at liberty.

"STEPHEN J. FIELD."

The facts alleged in this document were beyond dispute, and constituted an outrageous crime, and one for which the conspirators were liable to imprisonment for a term of six years, under section 5518 of the Revised Statutes of the United States. To this traverse the counsel for the sheriff filed a demurrer, on the ground that it did not appear by it that Justice Field was in custody for an act done or omitted in pursuance of any law of the United States, or of any order or process or decree of any court or judge thereof, and it did not appear that he was in custody in violation of the Constitution or any law or treaty of the United States. The case was thereupon submitted with leave to counsel to file briefs at any time before the 27th of August, to which time the further hearing was adjourned.

Before that hearing the Governor of the State addressed the following communication to the attorney-general:

"EXECUTIVE DEPARTMENT,
"STATE OF CALIFORNIA,
"SACRAMENTO, August 21, 1889.

"Hon. A.G. JOHNSTON,
"Attorney-General, Sacramento.

"DEAR SIR: The arrest of Hon. Stephen J. Field, a justice of the Supreme Court of the United States, on the unsupported oath of a woman who, on the very day the oath was taken, and often before, threatened his life, will be a burning disgrace to the State unless disavowed. I therefore urge upon you the propriety of at once instructing the district attorney of San Joaquin county to dismiss the unwarranted proceedings against him.

"The question of the jurisdiction of the state courts in the case of the deputy United States marshal, Neagle, is one for argument. The unprecedented indignity on Justice Field does not admit of argument.

"Yours truly, "R.W. WATERMAN, "Governor."

This letter of Governor Waterman rang out like an alarm bell, warning the chief law officer of the State that a subordinate of his was prostituting its judicial machinery to enable a base woman to put a gross indignity upon a justice of the Supreme Court of the United States, whom she had just publicly threatened to kill, and also to aid her in accomplishing that purpose. The wretched proceeding had already brought upon its authors indignant denunciation and merciless ridicule from every part of the Union. The attorney-general responded to the call thus made upon him by instructing the district attorney to dismiss the charge against Justice Field, because no evidence existed to sustain it.

The rash young district attorney lost no time in extricating himself from the position in which the arrest of Justice Field had placed him. On the 26th of August, upon his motion, and the filing of the attorney-general's letter, the charge against Justice Field was dismissed by the justice of the peace who had issued the warrant against him.

The dismissal of this charge released him from the sheriff's claim to his custody, and the habeas corpus proceedings in his behalf fell to the ground. On the 27th, the day appointed for the further hearing, the sheriff announced that in compliance with the order of the magistrate he released Justice Field from custody, whereupon the case of habeas corpus was dismissed.

In making the order, Circuit Judge Sawyer severely animadverted on what he deemed the shameless proceeding at Stockton. He said:

"We are glad that the prosecution of Mr. Justice Field has been dismissed, founded, as it was, upon the sole, reckless, and as to him manifestly false affidavit of one whose relation to the matters leading to the tragedy, and whose animosity towards the courts and judges who have found it their duty to decide against her, and especially towards Mr. Justice Field, is a part of the judicial and notorious public history of the country.

"It was, under the circumstances, and upon the sole affidavit produced, especially after the coroner's inquest, so far as Mr. Justice Field is concerned, a shameless proceeding, and, as intimated by the Governor of the Commonwealth, if it had been further persevered in, would have been a lasting disgrace to the State.

"While a justice of the Supreme Court of the United States, like every other citizen, is amenable to the laws, he is not likely to commit so grave an offense as murder, and should he be so unfortunate as to be unavoidably involved in any way in a homicide, he could not afford to escape, if it were in his power to do so; and when the act is so publicly performed by another, as in this instance, and is observed by so many witnesses, the officers of the law should certainly have taken some little pains to ascertain the facts before proceeding to arrest so distinguished a dignitary, and to attempt to incarcerate him in prisons with felons, or to put him in a position to be further disgraced, and perhaps assaulted by one so violent as to be publicly reported, not only then but on numerous previous occasions, to have threatened his life.

"We are extremely gratified to find that, through the action of the chief magistrate, and the attorney-general, a higher officer of the law, we shall be spared the necessity of further inquiring as to the extent of the remedy afforded the distinguished petitioner, by the Constitution and laws of the United States, or of enforcing such remedies as exist, and that the stigma cast upon the State of California by this hasty and, to call it by no harsher term, ill-advised arrest will not be intensified by further prosecution."

Thus ended this most remarkable attempt upon the liberty of a United States Supreme Court Justice, under color of State authority, the execution of which would again have placed his life in great peril.

The grotesque feature of the performance was aptly presented by the following imaginary dialogue which appeared in an Eastern paper:

Newsboy: "Man tried to kill a judge in California!"

Customer: "What was done about it?"

Newsboy: "Oh! They arrested the judge."

The illegality of Justice Field's arrest will be perfectly evident to whoever will read sections 811, 812, and 813 of the Penal Code of California. These sections provide that no warrant can be issued by a magistrate until he has examined, on oath, the informant, taken depositions setting forth the facts tending to establish the commission of the offense and the guilt of the accused, and himself been satisfied by these depositions that there is reasonable ground that the person accused has committed the offense. None of these requirements had been met in Justice Field's case.

It needs no lawyer to understand that a magistrate violates the plain letter as well as the spirit of these provisions of law when he issues a warrant without first having before him some evidence of the probable, or at least the possible, guilt of the accused. If this were otherwise, private malice could temporarily sit in judgment upon the object of its hatred, however blameless, and be rewarded for perjury by being allowed the use of our jails as places in which to satisfy its vengeance. Such a view of the law made Sarah Althea the magistrate at Stockton on the 14th of August, and Justice Swain her obsequious amanuensis. Such a view of the law would enable any convict who had just served a term in the penitentiary to treat himself to the luxury of dragging to jail the judge who sentenced him, and keeping him there without bail as long as the magistrate acting for him could be induced to delay the examination.

The arrest of Justice Field was an attempt to kidnap him for a foul purpose, and if the United States circuit judge had not released him he would have been the victim of as arbitrary and tyrannical treatment as is ever meted out in Russia to the most dangerous of nihilists, to punish him for having narrowly escaped assassination by no act or effort of his own.