"_To the Honorable Circuit Court of the United States for the Northern District of California:_

"I hereby certify and return that before the coming to me of the hereto-annexed writ of _habeas corpus_, the said Stephen J. Field was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of Stockton township, State of California, county of San Joaquin, and by the endors.e.m.e.nt made upon said warrant. Copy of said warrant and endors.e.m.e.nt is annexed hereto, and made a part of this return. Nevertheless, I have the body of the said Stephen J. Field before the honorable court, as I am in the said writ commanded.

"August 16, 1889.

"THOMAS CUNNINGHAM, "_Sheriff, San Joaquin Co., California_."

In order to give the pet.i.tioner time to traverse the return if he thought it expedient to do so, and to give him and the State time to produce witnesses, the further hearing upon the return was adjourned until the following Thursday morning, the 22d, and the pet.i.tioner was released on his recognizance with a bond fixed at $5,000.

On the same day a pet.i.tion on the part of Neagle was presented to Judge Sawyer asking that a writ of _habeas corpus_ issue in his behalf to Sheriff Cunningham. The pet.i.tion was granted at once, and served upon the sheriff immediately after the service of the writ issued on behalf of Justice Field. Early on the morning of Sat.u.r.day, August 17, Neagle was brought from Stockton by the sheriff at 4:30 A.M. District Attorney White and Mrs. Terry's lawyer, Maguire, were duly notified of this movement and were pa.s.sengers on the same train. At 10:30 Sheriff Cunningham appeared in the Circuit Court with Neagle to respond to the writ. He returned that he held Neagle in custody, under a warrant issued by a justice of the peace of that county, a copy of which he produced; and also a copy of the affidavit of Sarah Althea Terry upon which the warrant was issued. A traverse to that return was then filed, presenting various grounds why the pet.i.tioner should not be held, the most important of which were that an officer of the United States, specially charged with a particular duty, that of protecting one of the justices of the Supreme Court of the United States whilst engaged in the performance of his duty, could not, for an act const.i.tuting the very performance of that duty, be taken from the further discharge of his duty and imprisoned by the State authorities, and that when an officer of the United States in the discharge of his duties is charged with an offense consisting in the performance of those duties, and is sought to be arrested, and taken from the further performance of them, he can be brought before the tribunals of the nation of which he is an officer, and the fact then inquired into. The attorney-general of the State appeared with the district attorney of San Joaquin county, and contended that the offense of which the pet.i.tioner was charged could only be inquired into before the tribunals of the State.

CHAPTER XVI.

JUDGE TERRY'S FUNERAL--REFUSAL OF THE SUPREME COURT OF CALIFORNIA TO ADJOURN ON THE OCCASION.

The funeral of Judge Terry occurred on Friday, the 16th. An unsuccessful attempt was made for a public demonstration. The fear entertained by some that eulogies of an incendiary character would be delivered was not realized. The funeral pa.s.sed off without excitement.

The rector being absent, the funeral service was read by a vestryman of the church.

On the day after Judge Terry's death the following proceedings occurred in the Supreme Court of the State:

Late in the afternoon, just after the counsel in a certain action had concluded their argument, and before the next cause on the calendar was called, James L. Crittenden, Esq., who was accompanied by W.T.

Baggett, Esq., arose to address the court. He said: "Your honors, it has become my painful and sad duty to formally announce to the court the death of a former chief justice"--

Chief Justice Beatty: "Mr. Crittenden, I think that is a matter which should be postponed until the court has had a consultation about it."

The court then, without leaving the bench, held a whispered consultation. Mr. Crittenden then went on to say: "I was doing this at the request of several friends of the deceased. It has been customary for the court to take formal action prior to the funeral. In this instance, I understand the funeral is to take place to-morrow."

Chief Justice Beatty: "Mr. Crittenden, the members of the court wish to consult with each other on this matter, and you had better postpone your motion of formal announcement until to-morrow morning."

Mr. Crittenden and Mr. Baggett then withdrew from the court-room.

On the following day, in the presence of a large a.s.sembly, including an unusually large attendance of attorneys, Mr. Crittenden renewed his motion. He said:

"If the court please, I desire to renew the matter which I began to present last evening. As a friend--a personal friend--of the late Judge Terry, I should deem myself very cold, indeed, and very far from discharging the duty which is imposed upon that relation, if I did not present the matter which I propose to present to this bench this morning. I have known the gentleman to whom I have reference for over thirty years, and I desire simply now, in stating that I make this motion, to say that the friendship of so many years, and the acquaintance and intimacy existing between that gentleman and his family and myself for so long a period, require that I should at this time move this court, as a court, out of recollection for the memory of the man who presided in the Supreme Court of this State for so many years with honor, ability, character, and integrity, and, therefore, I ask this court, out of respect for his memory, to adjourn during the day on which he is to be buried, which is to-day."

Chief Justice Beatty said:

"I regret very much that counsel should have persisted in making this formal announcement, after the intimation from the court. Upon full consultation we thought it would be better that it should not be done. The circ.u.mstances of Judge Terry's death are notorious, and under these circ.u.mstances this court had determined that it would be better to pa.s.s this matter in silence, and not to take any action upon it; and that is the order of the court."

The deceased had been a chief justice of the tribunal which, by its silence, thus emphasized its condemnation of the conduct by which he had placed himself without the pale of its respect.

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 pet.i.tioner, 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 pet.i.tioner 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 pet.i.tioner 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 pet.i.tioner 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 compa.s.s 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 pet.i.tioner could be arrested.

"And the pet.i.tioner further avers that the issue of said writ of _habeas corpus_ and the discharge of your pet.i.tioner thereunder were and are essential to defeat the execution of the said conspiracy.

"And your pet.i.tioner 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 pet.i.tioner is ready to establish by full and competent proof.

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

"STEPHEN J. FIELD."

The facts alleged in this doc.u.ment were beyond dispute, and const.i.tuted 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 Const.i.tution 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 prost.i.tuting 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 circ.u.mstances, 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 a.s.saulted by one so violent as to be publicly reported, not only then but on numerous previous occasions, to have threatened his life.