"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.