Chapter XXI: Concluding Observations (3)

On my return from the Legislature, and afterwards, this same McCarty was in my presence the most abject and humble wretch I knew in Marysville. He almost piteously begged recognition by me, and was ready to go down on his knees for it. He was a blustering miscreant, full of courage where no force was required, and ready to run at the first appearance of a fight. He was one of a class, all of whom are alike, in whom bluster, toadyism, and pusillanimity go in concert, and are about equally developed in degree.

LIFE IN THE LEGISLATURE

Immediately after the election I commenced the preparation of a bill relating to the courts and judicial officers of the State, intending to present it early in the session. The Legislature met at San Jose on the first Monday of January, 1851, and I was placed on the Judiciary Committee of the House. My first business was to call the attention of the Committee to the bill I had drawn. It met their approval, was reported with a favorable recommendation, and after a full discussion was passed. Its principal provisions remained in force for many years, and most of them are retained in the Code, which went into effect in January, 1873. It created eleven judicial districts and defined the jurisdiction and powers of every judicial officer in the State, from a Supreme Judge to a Justice of the Peace. It provided that the then incumbent District Judges should continue to be the Judges of the new Districts according to their respective numbers. At the same time I introduced a bill dividing the county of Trinity, and creating that of Klamath; and also a bill dividing the county of Yuba, and creating that of Nevada; and I so arranged it that out of Trinity and Klamath a new Eighth Judicial District was created, and out of Yuba, Nevada, and Sutter a Tenth Judicial District. Thus Turner, being Judge of the Eighth District, was sent to the then comparative wilderness of Trinity and Klamath; and the Tenth District was to have a new judge. After this bill was passed I presented petitions from the citizens of Yuba County, and of that part which now constitutes Nevada County, praying for the impeachment of Turner, and his removal from office, charging as grounds for it his incompetency from ignorance to discharge its duties, his arbitrary and tyrannical conduct towards the County Judge and members of the Marysville bar, the particulars of which I have related, his contemptuous treatment of the writ of _habeas corpus_, and his general immoral conduct.

A committee was thereupon appointed to which the petitions were referred, with power to send for persons and papers. The testimony taken by them fully established the charges preferred. Indeed, there was no serious attempt made to refute them. The only evidence offered in behalf of the Judge was that of a few persons who testified that they had been treated by him with courtesy in some instances and that good order had been maintained in court when they were present. There is no doubt that the impeachment would have been ordered but for a strong desire of the members to bring the session to a close, and a report which had obtained credence, that after the passage of the court bill, by which Turner was sent out of the eighth district, I was content to let the question of impeachment be indefinitely postponed. The testimony taken was reported by the Committee on the 15th of April. His impeachment would have required a trial by the Senate, which would have prolonged the session at least a month, and to this members were much averse. Parties came to me and said, "Judge, what's the use of pressing this matter. You have sent Turner where there are only grizzly bears and Indians; why not let him remain there? He can do no harm there." I replied that he was not fit to be a judge anywhere, and I refused assent to a postponement of the matter. Afterwards, when the vote was about to be taken, a Senator and a personal friend of Turner, misinterpreting some expressions of mine that I desired to bring the matter to a speedy close, privately stated to members of the House that I had declared myself satisfied by the passage of the court bill and was willing to let the impeachment be dropped, it being understood that this course would not be taken as a sanction of the Judge's conduct. To my astonishment, members who had said only half an hour before that they should vote for the impeachment now voted for an indefinite postponement, which was carried by three votes--fifteen to twelve. I did not vote, and three members who strongly favored the impeachment were absent at the time. Seven of the members who voted for the indefinite postponement afterwards informed me that they had done so under the impression that such a disposition of the matter would be satisfactory to me, and that if a direct vote had been taken on the charges they should have voted for the impeachment. Here the matter ended; I did not pursue it. Turner did not go back to Marysville and I had no further trouble with him.[1]

To understand fully the legislation with which I was connected, and its effect upon the State, one must be familiar with the history of the country and the condition of its people. In addition to the act concerning the courts and judicial officers referred to, I took up the Code of Civil Procedure, as reported by the Commissioners in New York, remodelled it so as to adapt it to the different condition of things and the different organization of the courts in California, and secured its passage. It became what was known as the California Civil Practice Act, and was afterwards adopted in Nevada and in the Territories west of the Rocky Mountains.

I also took up the Code of Criminal Procedure, as reported by the same Commissioners, and remodelled that in the same way and secured its passage. It constituted what was afterwards known as the California Criminal Practice Act, and was also adopted in the State and Territories mentioned. The amount of labor bestowed upon these acts will be appreciated when I state that I recast, in the two, over three hundred sections, and added over one hundred new ones. I devoted so much attention and earnestness to the work, that in a short time the Legislature placed implicit confidence in everything relating to the judiciary which I recommended. The Criminal Practice Act, for instance, remodelled as stated, consisting of over six hundred sections, was never read before the Legislature at all. The rules were suspended and the bill read by its title and passed. When it came before the Governor, on the last day of the session, he said he could not sign it without reading it, and it was too late for him to do that. I represented to him that its passage was essential to secure the harmonious working of laws already passed. Turning to me he said, "You say it is all right?" I replied, "Yes;" and thereupon he signed it.

I have already stated that I moved Turner's impeachment. After the testimony was taken I addressed the House upon the subject. In reply to my remarks a member, by the name of B.F. Moore, from Tuolumne County, took occasion to make an abusive attack on me. It was the common practice in those days to go armed. Of the thirty-six members of which the Assembly then consisted, over two-thirds never made their appearance without having knives or pistols upon their persons, and frequently both. It was a thing of every-day occurrence for a member, when he entered the House, before taking his seat, to take off his pistols and lay them in the drawer of his desk. He did it with as little concern and as much a matter of course, as he took off his hat and hung it up. Nor did such a thing excite surprise or comment. But when Mr. Moore rose to reply to me, he first ostentatiously opened his drawer, took out his revolvers, cocked them, and laid them in the open drawer before him. He then launched out into a speech of the most opprobrious language, applying to me offensive epithets, and frequently interspersing his remarks with the declaration that he was responsible for what he said, both there and elsewhere. It is difficult for me to describe the indignation I felt at this outrageous assault and the manner in which it was made. Its very fierceness made me calm, as it is said that a tempest at sea is sometimes so violent as to still the waves. So when I came to make my rejoinder, I answered only such portions of his speech as attempted argument, and made no allusion to the personal language he had used towards me. But as soon as the vote was had on the question of postponing the impeachment, I took measures to call him to account. For this purpose I applied to Mr. Samuel A. Merritt, a member from Mariposa County, to carry a note from me to him, calling upon him to apologize for his offensive conduct or give me the satisfaction which it was understood one gentleman had the right to demand from another.

At that time it was generally supposed that the constitutional provision in regard to duelling was self-operative, and that any person who either sent or accepted a challenge, or acted as a second to one who thus offended, would _ipso facto_ be disqualified from afterwards holding any public office. Upon this understanding of the law, Mr. Merritt, with many expressions of regard for me and regret at the law, declined to carry the note. I then applied to Mr. Richardson, also a member, but he declined for the same reason. I was afraid, as matters stood, that I could not get anybody to act for me, and I did not know to whom to apply or what to do. Whilst thinking the matter over, I happened, about nine o'clock in the evening, to walk into the Senate Chamber, and there found Mr. David C. Broderick, afterwards United States Senator, sitting at his desk writing. He was at that time President _pro tem._ of the Senate. I had known him for some time, but not intimately; we were merely bowing acquaintances. As I entered he looked up and said, "Why, Judge, you don't look well, what is the matter?" I answered that I did not feel well, for I had not a friend in the world. He replied, "What is it that worries you?" I then related to him everything that had happened, giving the particulars of the gross and violent assault upon my character, and stated that I was determined, at all hazards, to call Moore to account. Mr. Broderick, without hesitation, said, "My dear Field, I will be your friend in this matter; go and write at once a note to Moore, and I will deliver it myself." I accordingly sat down at an adjoining desk and wrote him a note, the purport of which was that I required him either to make a public retraction of his insulting language in the Legislature, or to give me the satisfaction I had a right to demand. Broderick approved of its terms and at once proceeded to deliver it.

When he called on Moore and presented it, the latter said he expected to be a candidate for Congress before the coming convention, and he could not accept a challenge because it would disqualify him under the constitution from holding the office. But at the same time he observed that he was willing to meet me at any time and place; in other words, that he had no objection to a street fight. Broderick replied that a street fight was not exactly the thing among gentlemen; but that if Moore would do no better, a street fight there should be; and thereupon named a time and place when and where I would be found the next morning.

Within an hour afterwards Moore changed his mind, and informed Mr. Broderick that Drury Baldwin, another member of the House, would act as his friend, and give a reply to my note the next morning.

In anticipation of a possible collision, Mr. Broderick took me out early the following morning to try my skill in the use of a pistol. I tried a navy revolver and succeeded in hitting a knot on a tree, at a distance of thirty yards, three times out of five. Broderick declared himself satisfied, and I then urged upon him the necessity of bringing the matter to a speedy issue. In all this he concurred, and before the meeting of the House, called upon Baldwin for an answer to my note. Baldwin replied that his principal had made up his mind to do nothing further in the matter. "Then," said Broderick, "as soon as the House meets, Judge Field will arise in his seat and refer to the attack on him and to the language of Moore, that he held himself responsible for what he said, and state that respect for the dignity of the House had prevented him from replying to the attack at the time in the terms it deserved; that he had since demanded satisfaction of Moore for his language, and that Moore had refused to respond, and will thereupon pronounce him a liar and a coward." "Then," said Baldwin, "Judge Field will get shot in his seat." "In that case," rejoined Broderick, "there will be others shot too." Mr. Broderick soon afterwards informed me of his conversation with Baldwin, and asked me if I would act as he had stated I would. "Most certainly," I replied; "never fear for me; I will meet the case as it should be met." Accordingly, when the House opened, I took my seat at my desk as usual. Looking around I saw that Broderick was seated near me, and behind him were eight or nine of his personal friends, all armed to the teeth and ready for any emergency. In the meantime, and just before the House met, General John E. Addison, who had found out what was going on and knew the seriousness of the affair, called on Moore, who was his friend, and urged him to retract what he had said and make a suitable apology, and for that purpose drew up a document for him to read to the House, but of this I was not at the time informed. As soon as the journal was read I rose in my seat and said, "Mr. Speaker." At the same moment Moore rose in his seat and said, "Mr. Speaker." The Speaker recognized Moore first; and Moore thereupon proceeded to read the written apology prepared by Addison for his conduct and language to me. It was full, ample, and satisfactory; and of course with that the matter ended. From that time forward to the end of the session I had no further trouble with any one.

[1] See Exhibit H, in Appendix.

FRIENDSHIP FOR DAVID C. BRODERICK.

The narrative which I have given of my difficulty with Moore explains how Broderick befriended me at a very trying time. But that was not the only occasion on which he befriended me. When I came to San Francisco after the adjournment of the Legislature, in May, 1851, I went several times to see him at the hotel where he stopped. On one occasion in the evening, while we were in the saloon of the hotel, he asked me to take a glass of wine with him. We stepped up to the bar and were about drinking, when he suddenly threw himself before me and with great violence pushed me out of the room. The proceeding was so sudden and unexpected that I was astonished and for a moment indignant. I demanded an explanation, saying "What does this mean, Mr. Broderick?" He then told me that while we were standing at the bar he had noticed Vi.--or to give his full name, Vicesimus--Turner, a brother of the Judge, a man of desperate character, come into the bar-room, throw back his Spanish cloak, draw forth a navy revolver, and level it at me. Seeing the movement, he had thrown himself between me and the desperado and carried me off. These good offices on the part of Mr. Broderick filled me with a profound sense of gratitude. For years afterwards I thought and felt as if there was nothing I could do that would be a sufficient return for his kindness. On his account I took much greater interest in political matters than I otherwise should. In order to aid him in his aspirations for election to the United States Senate, upon which he had set his heart, I attended conventions and gave liberally, often to my great inconvenience, to assist the side to which he belonged. To many persons it was a matter of surprise that I should take such an interest in his success and through good and evil report remain so constant and determined in my support of him; but the explanation lies in the circumstances I have narrated and the brave manner in which he had stood by me in a most critical moment of my life.

I regret to state that this friendship was ever broken. It was not by me; but broken it was. Shortly after Mr. Broderick was elected to the Senate, he quarrelled with Mr. Buchanan over appointments to office in California; and when he returned to the State, he expressed a good deal of hostility to the Administration. In that hostility I did not participate, and he complained of me for that reason. I was then spoken of throughout the State as a probable candidate for the bench, and he announced his opposition to my nomination. I made no complaints of his conduct, but was much hurt by it. My nomination and election soon afterwards removed me from the sphere of politics. I seldom met him after my election, and never had any conversation with him. Though he was offended at my failure to take sides with him in his controversy with the President, and our intimacy ceased, I could never forget his generous conduct to me; and for his sad death there was no more sincere mourner in the State.

LEGISLATION SECURED AND BEGINNING A NEW LIFE.

My legislative career was not without good results. I drew, as already stated, and carried through the Legislature a bill defining the powers and jurisdiction of the courts and judicial officers of the State; and whilst thus doing good, I also got rid of the ignorant and brutal judge of our district who had outraged my rights, assaulted my character, and threatened my life. I also, as I have mentioned, introduced bills regulating the procedure in civil and criminal cases, remodelled with many changes from the Codes of Civil and Criminal Procedure reported by the Commissioners of New York; and secured their passage.

In the Civil Practice Act I incorporated provisions making the most liberal exemptions from forced sale of the personal property of a debtor, including not merely a limited amount of household furniture, and provisions sufficient for individual or family use for one month, but also the instruments or tools by which he earned his livelihood. The exemptions embraced necessary household and kitchen furniture, wearing apparel, beds and bedding of the debtor, whatever his calling; and also the farming utensils and implements of husbandry of the farmer, two beasts of burden employed by him, and one cart or wagon; the tools and implements of a mechanic or artisan necessary to carry on his trade; the instruments and chests of a surgeon, physician, surveyor, and dentist; the law libraries of an attorney and counsellor; the cabin or dwelling of a miner, and his pick, rocker, wheelbarrow, and other implements necessary to carry on mining operations; two oxen, two horses or two mules and their harness, and one cart or wagon of the cartman, hackman, or teamster; and one horse with vehicle and harness and other equipments used by a physician, surgeon, or minister of the gospel in making his professional visits; and all arms and accoutrements required by law to be kept by any person.

I never could appreciate the wisdom of that legislation which would allow a poor debtor to be stripped of all needed articles of his household and of the implements by which alone he could earn the means of supporting himself and family and of ultimately discharging his obligations. It has always seemed to me that an exemption from forced sale of a limited amount of household and kitchen furniture of the debtor, and of the implements used in his trade or profession, was not only the dictate of humanity, but of sound policy.

I also incorporated a provision into the Civil Practice Act respecting suits for mining claims, which was the foundation of the jurisprudence respecting mines in the country. The provision was that in actions before magistrates for such claims, evidence should be admitted of the usages, regulations, and customs prevailing in the vicinity, and that such usages, regulations, and customs, when not in conflict with the constitution and laws of the State, or of the United States, should govern the decision of the action. At this time suits for mining claims, the mines being confessedly on the property of the United States, were brought upon an alleged forcible or unlawful detainer. This rule, thus for the first time adopted by legislative enactment, was soon extended to actions for such claims in all courts, and has since been adopted in all the States and Territories west of the Rocky Mountains and substantially by the legislation of Congress. Simple as the provision is, it solved a difficult problem.

I also advocated and aided the passage of the Homestead Exemption Bill. That bill was introduced by Mr. G.D. Hall, a member from El Dorado, and now a resident of San Francisco. It provided for an exemption of the homestead to the value of $5,000. An effort was made to reduce the amount to $3,000, and I think I rendered some aid in defeating this reduction, which has always been to me a source of great gratification.

I also secured the passage of an act concerning attorneys and counsellors-at-law, in which I incorporated provisions that rendered it impossible for any judge to disbar an attorney in the arbitrary manner in which Judge Turner had acted towards me, without notice of the charges against him and affording him an opportunity to be heard upon them.

I also introduced a bill creating the counties of Nevada and Klamath, the provisions of which were afterwards incorporated into a general bill which was passed, dividing the State into counties and establishing the seats of justice therein, and by which also the county of Placer was created.

I drafted and secured the passage of an act concerning county sheriffs, in which the duties and responsibilities of those officers, not only in the execution of process and the detention of prisoners, but as keepers of the county jail, were declared and defined; also an act concerning county recorders, in which the present system of keeping records was adopted. This latter act, though drawn by me, was introduced by Mr. Merritt, of Mariposa, but he does not hesitate to speak publicly of my authorship of it. I also prepared a bill concerning divorces, which was reported from the Judiciary Committee as a substitute for the one presented by Mr. Carr, of San Francisco, and was passed. In this act, aside from the ordinary causes of adultery, and consent obtained by force or fraud, for which divorces are granted, I made extreme cruelty and habitual intemperance, wilful desertion of either husband or wife for a period of two years, and wilful neglect of the husband to provide for the wife the common necessaries of life, having the ability to provide the same, for a period of three years, also causes of divorce. I also drew the charters of the cities of Marysville, Nevada, and Monterey, which were adopted--that of Monterey being reported by the Judiciary Committee as a substitute for one introduced by a member from that district. Other bills drawn or supported by me were passed, the provisions of which are still retained in the laws of the State.

But notwithstanding all this, when I turned my face towards Marysville I was, in a pecuniary sense, ruined. I had barely the means to pay my passage home. My ventures, after my expulsion from the bar, in June, 1850, had proved so many maelstroms into which the investments were not only drawn but swallowed up. My affairs had got to such a pass that before I left Marysville for the Legislature I felt it to be my duty to transfer all my real property to trustees to pay my debts, and I did so. And now when I stepped upon the landing in Marysville my whole available means consisted of eighteen and three-quarter cents, and I owed about eighteen thousand dollars, the whole of which bore interest at the rate of ten per cent. a month. I proceeded at once to the United States Hotel, kept by a Mr. Peck, who had known me in the days of my good fortune. "My dear Mr. Peck," I said, "will you trust me for two weeks' board?" "Yes," was the reply, "and for as long as you want." "Will you also send for my trunks on the steamer, for I have not the money to pay the carman." "Certainly," the good man added, and so the trunks were brought up. On the next day I looked around for quarters. I found a small house, thirty feet by sixteen, for an office, at eighty dollars a month, and took it. It had a small loft or garret, in which I placed a cot that I had purchased upon credit. Upon this cot I spread a pair of blankets, and used my valise for a pillow. I secured a chair without a back for a wash-stand, and with a tin basin, a pail, a piece of soap, a toothbrush, a comb, and a few towels, I was rigged out. I brought myself each day the water I needed from a well near by. I had an old pine table and a cane-bottomed sofa, and with these and the bills which had passed the Legislature, corrected as they became laws, and the statutes of the previous session, I put out my sign as an attorney and counsellor-at-law, and began the practice of my profession.

Soon afterwards I found my name mentioned as a candidate for the State Senate. The idea of returning to the Legislature as a Senator pleased me. The people of the county seemed to favor the suggestion. Accordingly I made a short visit to neighboring precincts, and finding my candidacy generally approved I went to work to make it successful. At the election of delegates to the county convention, which was to nominate candidates, a majority was returned in my favor. Several of them being unable to attend the convention, which was to be held at Downieville, a distance of about seventy miles from Marysville, sent me their proxies made out in blank to be filled with the name of any one whom I might designate. To one supposed friend I gave ten proxies, to another five, and to a third two. When the members met, just previous to the assembling of the convention, it was generally conceded that I had a majority of the delegates. But I had a new lesson in manipulation to learn. Just before the opening of the convention my supposed friend, who had the ten proxies, was approached by the other side, and by promises to give the office of sheriff to his partner--an office supposed to be worth thirty thousand a year--his ten votes were secured for my opponent. The one to whom I had given five proxies was promised for those votes the county judgeship. So when the convention voted, to my astonishment and that of my friends, fifteen of my proxies were cast for my opponent, Joseph C. McKibbin, afterwards a member of Congress, who acted so fearlessly when the Kansas question came up. I was accordingly beaten by two votes.

For the moment I was furious, and hunted up the man who had held my ten proxies, and had been seduced from my support. When I found him in the room of the convention, I seized him and attempted to throw him out of the window. I succeeded in getting half his body out, when bystanders pulled me back and separated us. This was fortunate for both of us; for just underneath the window there was a well or shaft sunk fifty feet deep. The following morning I left Downieville, returned to my office and loft at Marysville, and gave my attention to the practice of the law. My business soon became very large; and, as my expenses were moderate, within two years and a half I paid off all my indebtedness, amounting with the accumulations of interest to over thirty-eight thousand dollars. Part of this amount was paid by a surrender of the property mortgaged, or a sale of that previously assigned, but the greater part came from my earnings. I paid every creditor but one in full; to each I gave his pound of flesh, I mean his interest, at ten per cent. a month. I never asked one of them to take less than the stipulated rate. The exceptional creditor was Mr. Berry, a brother lawyer, who refused to receive more than five per cent. a month on a note he held for $450. By this time I had become so much interested in my profession as to have no inclination for office of any kind. On several occasions I was requested by influential party leaders to accept a nomination for the State Senate, but I refused. I am inclined to think that I had for some time a more lucrative practice than any lawyer in the State, outside of San Francisco. No such fees, however, were paid in those days as have been common in mining cases since the discovery of the silver mines of Nevada and the organization of great corporations to develop them.

The Bar of Marysville during this period, and afterwards while I remained in that city--which was until October, 1857--was a small, but a very able body of men. Many of its members have since attained distinction and held offices of honor and trust. Richard S. Mesick, who settled there in 1851, became a State Senator, and after his removal to Nevada, a District Judge of that State. He ranks now among the ablest lawyers of the Coast. Charles H. Bryan, who settled there the same year, was an eloquent speaker, and in his forensic contests gave great trouble to his opponent whenever he got at the jury. He was on the Supreme Court of the State for a short period, under the appointment of Governor Bigler. Jesse O. Goodwin, of whom I have already spoken, settled in Marysville in 1850. He was a ready speaker, and sometimes rose to genuine eloquence. He was distinguished in criminal cases. As already stated, he was elected District Attorney in 1850, and afterwards became County Judge, and is now State Senator. Gabriel N. Swezy, who settled there in 1850, was learned in his profession, and quick of apprehension. Few lawyers could equal him in the preparation of a brief. He afterwards at different times represented the county in the Assembly and the Senate of the State. William Walker, who afterwards figured so conspicuously in the filibustering expeditions to Nicaragua, and was called by his followers "the grey-eyed man of destiny," had an office in Marysville in 1851 and '52. He was a brilliant speaker, and possessed a sharp but not a very profound intellect. He often perplexed both court and jury with his subtleties, but seldom convinced either. John V. Berry, who came to Marysville from the mines in 1851, was a fine lawyer, deeply read in the law of adjudged cases. He died in 1853 from poison given to him in mistake by a druggist. Edward D. Wheeler, who came there in 1850, and Thomas B. Reardon, who came in 1853, were both men of strong minds. Mr. Wheeler represented Yuba County at one time in the Senate, and is now the District Judge of the Nineteenth District, at San Francisco. He is regarded as among the ablest and best of the State Judges. Mr. Reardon has been a District Judge for some years in the Fourteenth District, greatly respected by the profession for his ability and learning. Isaac S. Belcher, who came to Marysville at a later period--in 1855, I believe--was noted for his quiet manners and studious habits. He has since been District Judge, and has worthily filled a seat on the bench of the Supreme Court of the State, where he was greatly respected by his associates and members of the bar. Edward C. Marshall, the brilliant orator, who at one time represented the State in Congress, had his office in Marysville in 1855 and '56. He occasionally appeared in court, though he was generally occupied in politics, and in his case, as in nearly all others, the practice of the law and the occupation of politics did not always move harmoniously together.

Charles E. Filkins, afterwards County Judge; Charles Lindley, afterwards also County Judge and one of the Code Commissioners; Henry P. Haun, the first County Judge, and afterwards appointed to the United States Senate by Governor Weller; N.E. Whitesides, afterwards a member of the Legislature from Yuba, and Speaker of the House; F.L. Hatch, now County Judge of Colusa; George Howe, afterwards Treasurer of the County; and Wm. S. Belcher, who afterwards rendered good service to the public as a School Commissioner, also practiced at the Marysville bar with success.

Charles E. DeLong, afterwards a member of the State Senate, and our Minister to Japan, and Henry K. Mitchell, afterwards a nominee of the Democrats for the U.S. Senate in Nevada, were just getting a good position at the bar when I left, and gave evidence of the ability which they afterwards exhibited. Others might be named who held fine positions in the profession.

These mentioned show a bar of great respectability, and I may add that its members were, with few exceptions, gentlemen of general information and courteous manners. The litigation which chiefly occupied them and gave the largest remuneration related to mines and mining claims. The enforcement of mortgages and collection of debts was generally--by me, at least--entrusted to clerks, unless a contest was made upon them.

There was one case which I recall with pleasure, because of the result obtained in face of unconcealed bribery on the other side. The subject of the suit was the right to a "placer" mine in Yuba River, at Park's Bar. Its value may be estimated from the fact that within two or three weeks after the decision of the case, the owners took from the mine over ninety thousand dollars in gold dust. The suit was brought before a justice of the peace, and was for an alleged forcible entry and detainer, a form of action generally adopted at the time for the recovery of mining claims, because the title to the lands in which the mines were found was in the United States. It was prosecuted as a purely possessory action. The constable whose duty it was to summon the jurors had received the sum of two hundred dollars to summon certain parties, named by the other side. This fact was established beyond controversy by evidence placed in my hands. And whilst I was in bed in one of the tents or canvas sheds at the Bar, which the people occupied in the absence of more substantial buildings, I heard a conversation in the adjoining room--I could not help hearing it, as it was carried on without any attempt at concealment, and the room was only separated from me by the canvas--between one of the jurors and one of the opposite party, in which the juror assured the party that it was "all right," and he need not worry as to the result of the suit; his side would have the verdict; the jury were all that way. On the next day, when the case was summed up, the saloon in which the trial was had was crowded with spectators, most of whom were partisans of the other side. I addressed the jury for over three hours, and after having commented upon the evidence at length and shown conclusively, as I thought, that my client was entitled to a verdict, I said substantially as follows: "Gentlemen, we have not endeavored to influence your judgment except by the evidence; we have not approached you secretly and tried to control your verdict; we have relied solely upon the law and the evidence to maintain our rights to this property. But the other side have not thus acted; they have not been content that you should weigh only the evidence; they have endeavored to corrupt your minds and pervert your judgments; they have said that you were so low and debased that although you had with uplifted hands declared that so might the ever-living God help you, as you rendered a verdict according to the evidence, you were willing, to please them, to decide against the evidence, and let perjury rest on your souls. I know that you [pointing to one of the jurors] have been approached. Did you spurn the wretch away who made a corrupt proposal to you, or did you hold counsel, sweet counsel with him? I know that you [pointing to another juror] talked over this case with one of the other side at the house on the hill last night, for I overheard the conversation--the promise made to you and your pledge to him. In the canvas houses here all rooms are as one; the words uttered in one are voices in all. You did not dream that any but you two were in the tent; but I was there and overheard the foul bargain."

At this thrust there was great excitement, and click, click, was heard all through the room, which showed a general cocking of pistols; for every one in those days went armed. I continued: "There is no terror in your pistols, gentlemen; you will not win your case by shooting me; you can win it only in one way--by evidence showing title to the property; you will never win it by bribery or threats of violence. I charge openly attempted bribery, and if what I say be not true, let the jurors speak out now from their seats. Attempted bribery, I say--whether it will be successful bribery, will depend upon what may occur hereafter. If, after invoking the vengeance of Heaven upon their souls should they not render a verdict according to the evidence, the jurors are willing to sell their souls, let them decide against us."

This home-thrust produced a great sensation. It was evident that the jury were disturbed. When the case was submitted to them, they were absent only a few minutes. They returned a verdict in our favor. Some of them afterwards came to me and admitted that they had been corruptly approached, but added that they were not low enough to be influenced in their verdict in that way. "Of course not," I replied; though I had little doubt that it was only the fear of exposure which forced them to do right.

I have said that in those days everyone went armed; it would be more correct to say that this was true in the mining regions of the State and when travelling. I, myself, carried a Derringer pistol and a Bowie-knife until the Summer of 1854, though of course out of sight. I did so by the advice of Judge Mott, of the District Court, who remarked that, though I never abused a witness or a juror, or was discourteous to any one in court, there were desperate men in the country, and no one could know to what extremity they might go, as I would not be deterred by any considerations from the discharge of my whole duty to my clients. So, until the Summer of 1854, I carried weapons. And yet they were not such provocatives of difficulty as some of our Eastern friends are accustomed to think. On the contrary, I found that a knowledge that they were worn generally created a wholesome courtesy of manner and language.

I continued to occupy my small office and slept in its loft through the Summer and Fall of 1851, and felt quite contented with them. Twice I was summarily dislodged, being threatened by a fire on the other side of the street. On one occasion a most ludicrous incident occurred, which I cannot recall without a smile. A little after midnight we were aroused, on the occasion referred to, by a loud thumping at our door, accompanied by a cry of "fire." My loft was shared with three others, and at the cry we all leaped from our cots and two of our number seizing whatever was convenient and portable carried it out of the house to a distance of about one hundred yards, where gathered a multitude of people, fleeing before the flames with all sorts of baggage, trunks, chairs, beds, and utensils of every kind which they had brought from their houses. I hastily threw the papers of sundry suits and a dozen law books, recently purchased, into a box, and with the assistance of the other occupant of my loft, carried it off. Just as we reached the crowd, a pair of young grizzly bears which the owner had kept in a cage near by were let loose, and they came towards us growling in their peculiar way. At their sight, there was a general _stampede_ of men, women, and children, in all directions. Boxes and everything else portable were instantly dropped, and such an indiscriminate flight was never before seen except from a panic in battle.

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.