ples is the highest intellectual quality, so is a true fearlessness the highest moral attribute of the ideal judge. No other American judge has so often been called upon to face popular opposition in the decision of controversies involving important legal questions, in which large masses of the population were interested, and on one side of which all their passions, prejudices, and selfish motives were fully aroused, and often were raging in the fiercest manner; and no other judge has more frequently and faithfully discharged his sacred duty of deeiding according to his own enlightened convictions of law and justice, in complete oblivion of all external forces, and in absolute fearlessness of the consequences. He has neither courted personal popularity nor shrunk from unpopularity by means of his decisions. He could well apply to himself the memorable and noble language which Lord Mansfield used from the Bench when made the object of a violent clamor on account of his decisions:

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"I will do my duty unawed. What am I to fear? The lies of calumny carry no terror to me. I trust that my temper of mind, and the color and conduct of my life, have given me a suit of armor against these arrows. I wish popularity, but it is that popularity which follows, not that which is run after; it is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press; I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels,—all that falsehood and malice can invent, or the credulity of a deluded populace can swallow. I can say, with a great magistrate, upon an occasion and under circumstances not unlike, 'Ego hoc animo semper fui, ut invidiam virtute partam, gloriam, non invidiam, putarem.'

No friend of Judge Field can estimate his intellectual and moral fearlessness too highly; no enemy can deny, or ever has denied that he possessed it. He has repeatedly

encountered, and been compelled to endure, the bitter hostility of extreme partisans belonging to the most opposite schools of opinion; of extreme Republicans and extreme Democrats; of those who maintain the dogma of State sovereignty, and of those who assert the absolute legislative power of the national government; of ignorant and prejudiced masses, and of scheming speculators who would disregard all law and right in order to accomplish their purposes. All these outbursts of opposition have, however, died away; the justice and wisdom, as well as the law, of his decisions are vindicated. That true popularity has succeeded among all intelligent persons, which, in the words of Lord Mansfield, "never fails to do justice to the pursuit of noble ends by noble means." From the very commencement of his career on the State Bench, and through all the following years, opportunities have frequently been presented to him, in the regular discharge of his official functions, by which, without any plain surrender of right, any obvious transgression of duty, by the mere adoption of a different line of argument leading to a different conclusion,--and even sometimes when that line of argument and that conclusion were, upon a surface view, correct, and were approved by a majority of the legal pro fession, opportunities, I say, by which, in this manner, he might have obtained an immediate and even an enthusiastic popularity; but in which, by following the voice of conscience and duty, and the dictates of his own matured judgment, he was certain to encounter a storm of hostile criticism, and even malignant hatred. On no occasion was he ever influenced by either of these considerations; on no occasion did he ever swerve from his duty and surrender his own conscience and enlightened judgment. My space will not permit me to review these events in his life. Any correct account of the decisions made in the State Supreme Court concerning the pueblo of San Francisco and the titles derived from the municipality, concerning the occupation of public lands, con

cerning the State ownership of gold and silver, and the claims of miners to enter upon all lands, private as well as public, in search for the precious metals, concerning the rights of Mexican grantees and the intruders upon their lands, and concerning the validity of certain acts done by the municipal government of San Francisco, will exhibit in the clearest manner the quality of rectitude and fearlessness which is such a distinctive element of his character.* In many of the decisions rendered in the United States Supreme Court, indirectly growing out of the civil war, and directly out of congressional legislation enacted in consequence of the war, including those dealing with the validity of test-oaths, the extent and limitations of martial law, the trial of civilians by military tribunals, the suspension of the writ of habeas corpus, and similar questions affecting the very foundations of our political institutions and of our civil liberties,--the same quality was exhibited from a higher station and in the presence of the whole nation. In addition to other instances, there is one of later occurrence which is still more illustrative. It may be affirmed, I think, without any real doubt as to its correctness, that during the past year, by his deliberate and fearless discharge of duty, by following his own convictions as to the law, and by rendering a decision in the now memorable Chinese Queue Case, which, however righteous and in accordance with the fundamental principles of constitutional law, awoke a storm of fierce opposition and hatred among all the lowest and most ignorant classes of the political party with which he is connected, Judge Field lost-nay, sacrificed--his chances, otherwise good, of a nomination by his party for the Presidency. It can be certainly shown that scheming politicians, anxious only for their own personal advancement, working upon this temporary unpopularity among the Democratic masses of California, prevented him

*See "Personal Reminiscences of Early Days in California," pages 137 to 171, inclusive.

from obtaining the support of his own State, and thus rendered his nomination by the National Convention impossible. As a moderate Republican, knowing the opinions of that large division of the party commonly called "Liberal Republicans," I do not hesitate to express the strong conviction that if Judge Field had received the nomination from the Democratic party, he would certainly have been elected. The decision as to the validity of a miserable city. ordinance requiring the queues of Chinese prisoners to be cut off, lost him the Democratic support of California. He has, instead, the approval of his own judgment, and of all intelligent, thoughtful men throughout the country.

There are other traits of his intellectual character and of his work, in themselves worthy of mention, such as his diligence, his capacity for continued labor, his rapidity of execution, and particularly his clear and accurate style of literary composition, which renders some of his more carefully prepared opinions models of judicial argumentation; but I pass them by without further notice as not being distinctive, since they are shared with him in an equal and sometimes in a superior degree, by others judges both of the State and the national courts.

pass to a consideration of the work which he did while a member of the Supreme Court of California. This must be merely a brief reference. Any full account would necessarily be a reproduction of the matters contained in pages 16 to 38 of the printed volume. I shall, therefore, simply enumerate the leading decisions, arranged in groups according to their subject-matter, which best exhibit his distinctive qualities as a judge, and embody his most important judicial work. They naturally fall into two main divisions: (1) Those which deal with common law and equitable doctrines of general interest to the profession of all the States; and (2) Those which deal with mere local matters, of which the interest is chiefly confined to the profession and people of California and the other Pacific States.

1. Matters of a general interest.—Among the most important of these topics were the following. The powers and liabilities of Municipal Corporations. Certain transactions entered into and acts done by the governing body of San Francisco gave rise to a bitter judicial controversy extending through several litigations, in which the Supreme Court was called upon to examine, from their very foundations, the doctrines of the American common law concerning the powers and liabilities of Municipal Corporations, in the absence of express charter or other statutory provisions defining and limiting the same. The opinions of Judge Field in these cases are universally regarded as of the highest authority. They are able, thorough, and exhaustive decisions of the law, and reach conclusions based both upon principle and precedent which have been accepted by the ablest text-writers, and especially by Judge Dillon, as final.

Mortgages.-The Supreme Court, while he was a member of it, freed the jurisprudence of California from the last vestige of the old common-law notions concerning the nature and effect of the mortgage, and adopted the rational and consistent equitable theory as the single system which should determine all private relations and should prevail in all tribunals, both of law and of equity. His opinions explaining, advocating, and enforcing this single equitable conception of the mortgage as purely a hypothecation, as creating no estate in the land, as a mere lien, and not a jus ad rem nor a jus in re, have not been excelled in their clearness of statement and cogency of argument by those of any other Court which has maintained the same view, and they have undoubtedly done much to promote its acceptance in other States.† No opinions upon the subject

*McCraken vs. San Francisco, 16 Cal., 591; Grogan vs. The Same, 18 Cal., 608; Pimental vs. The Same, 21 Cal., 359; Argenti vs. The Same, 16 Cal., 282; Zottman vs. The Same, 20 Cal., 96.-See the printed volume, pp. 30-32.

McMillan vs. Richards, 9 Cal., 365; Nagle vs. Macy, 9 Cal., 426; Johnson vs. Sherman, 15 Cal., 287; Goodenow vs. Ewer, 16 Cal., 461.-See printed vol., pp. 32, 33.