Field returned to Washington after this imbroglio, and the next summer he was urged by friends in California not to return to the state then because of the uproar created by these proceedings. Field was determined to do so, however, saying:
I cannot and will not allow threats of personal violence to deter me from the regular performance of my judicial duties at the times and places fixed by law. As a judge of the highest court in the country, I should be ashamed to look any man in the face if I allowed a ruffian, by threats against my person, to keep me from holding the regular courts in my circuit.3
A marshal named David Neagle was deputized to travel with Field in California in order to protect him. In mid-August 1889, Field was traveling by train from Los Angeles to San Francisco; he and Neagle both had berths in the same sleeping car. When the train reached Fresno, Neagle saw that the Terrys boarded, and told Field. The train later stopped at Lathrop to allow passengers to get breakfast. Field and Neagle walked into the station dining room and sat down. Shortly afterward, David and Sarah Terry walked in, but Sarah left immediately while Terry took a seat at another table. What followed is described by Swisher in these words:
Terry remained seated for a time and then got up and walked down the aisle toward the door, this time taking the aisle immediately behind Field. Those who were watching him assumed that he was going to join his wife. When he arrived at a point just behind Field he turned suddenly and struck him twice on the side of the face or head. Succeeding events came too quickly for accurate observation. Neagle leaped to his feet and shouted “stop, stop!” Neagle saw a terrible expression on the face of Terry, and thought that the latter reached for his knife. With his right hand extended Neagle drew his gun with his left and fired twice in rapid succession, killing Terry instantly.4
A county sheriff arrested Neagle, over Field’s protest, and took him to the county jail in Stockton. Efforts were made to arrest Field as he proceeded alone to San Francisco, but U.S. Marshals foiled them, and Field arrived safely in San Francisco. Word of Terry’s shooting made headlines across the country. Neagle was charged with murder in state court, and his attorneys sought a writ of habeas corpus from the federal court in San Francisco.
The circuit court granted the writ, and the state authorities— who wished to try Neagle for murder in the state court— appealed to the U.S. Supreme Court. The law governing the use of the writ in federal courts provided that it could be obtained for a person in custody “for any act done or omitted in pursuance of a law of the United States.” The state parties said that no “law of the United States” authorized the appointment of Neagle to guard Field while he performed his judicial duties on circuit in California. The Supreme Court, in an opinion written by Justice Miller less than a month before his death, held that even though there was no act of Congress authorizing Neagle’s appointment, the circuit court had nonetheless been correct in its decision. Miller’s opinion said:
. . . in the protection of the person and the life of Mr. Justice Field while in the discharge of his official duties, Neagle was authorized to resist the attack of Terry upon him; that Neagle was correct in the belief that without prompt action on his part the assault of Terry upon the judge would have ended in the death of the latter; that such being his well-founded belief, he was justified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in so doing.... 5
Neagle was thereupon set free.
SAMUEL FREEMAN MILLER was the senior of the two Republican justices named to the Electoral Commission. He was appointed to the Court by Lincoln in 1862 and served until his death in 1890. Both by reason of ability and length of service, he ranked with Field in his influence on the development of constitutional law, though the two were often of opposite views. Carl
Ulysses S. Grant, c. 1872.
Brent Swisher, Field’s biographer, describes Miller in these words:
Justice Miller, who was a colleague of Justice Field’s for more than a quarter of a century, may be taken as sharply in contrast with him in appearance, disposition, and habit. He was a great, stocky man, heavy of build and heavy of tread. He was square faced and smooth shaven. People sought his company because he rarely failed to have a good time, and in enjoying himself he radiated mirth and happiness to others.6
Miller was born in 1816—in the same year as Field—in Richmond, Kentucky, the first of eight children. He studied medicine at Transylvania University in nearby Lexington. Upon receiving his degree at the age of twenty-two, he took up residence in Barbourville in southeastern Kentucky. Becoming dissatisfied with the practice of medicine after a few years, he began studying law in his spare time and was eventually admitted to the Kentucky bar. Politically, he was a Whig and sought to advance the cause of gradual emancipation in Kentucky. Failing in this, he and his family moved to Keokuk, Iowa, a city on the Mississippi River in the southeastern corner of that state.
There he entered into a partnership with one of the town’s leading lawyers and in a short time became a highly respected lawyer in his own right. He was active in Republican politics from the time of the party’s infancy and served as a member of the state’s central committee. He campaigned actively for Lincoln in 1860, and the state went Republican by a wide margin.
As already noted, when Lincoln took office, he had three vacancies in the Supreme Court to fill. He did not act immediately, because Congress was in the process of realigning the federal judicial circuits. After much deliberation, Iowa was grouped along with Missouri, Kansas, and Minnesota in a Trans-Mississippi Circuit. The Iowa bar, and its congressional delegation, enthusiastically supported Miller’s candidacy for one of the vacancies. Lincoln nominated him in July 1862, and the Senate confirmed him in half an hour without reference to a committee.
Miller would serve on the Court for nearly three decades, very likely the dominant figure during that time. He would write twice his share of opinions in cases involving constitutional questions. One of the best known was in the Slaughterhouse Cases (described on page 149). His opinion placed a narrow construction on the portion of the amendment before the Court, and went on to comment that its intent was only to benefit the newly freed slaves. Field, joined by three others, dissented, insisting that it should receive a much broader construction. In the long run it was Field’s view, not Miller’s, which prevailed.
When the chief justiceship became vacant upon Salmon Chase’s death in 1873, Miller was the candidate most widely endorsed by the nation’s bar. Typical is the comment of the Albany Law Journal:
We know of no one in the country whose appointment would be so appropriate, or give such universal satisfaction, as would that of Mr. Justice Miller. Endowed with every moral as well as intellectual attribute which can adorn the highest judicial character, in the maturity of life, with great experience upon the bench, he would make a worthy successor of Marshall, or Taney, and of Chase.7
Grant, however, as described in Chapter 6, chose to look outside the Court, and Morrison Waite became Chief Justice in 1874. That summer, Miller wrote in a letter to his brother-in-law of an apparent rift between him and Justice Joseph Bradley arising out of their aspirations for the office. But the strain between them vanished with the appointment of Waite, and Miller would shortly afterward appraise Bradley: “with some allowance for eccentricity he is a useful and valuable man on the bench.” 8 Bradley would be the fifth justice chosen for the Electoral Commission.
Miller’s biographer, Charles Fairman, observes that “when Justice Miller died it was generally remarked that the Court had lost the ablest of its members and the greatest figure in constitutional law since Marshall.” John Dillon, a widely respected circuit judge who sat frequently with Miller on circuit, was more poetic, hailing him as “easily . . . the master of us all. His frame, features and majestic port duly put in marble m
ight stand for those of a Roman Caesar in Rome’s best day; and Rome, so distinguished for its legal genius, never produced a jurisconsult more worthy of perpetual honor than . . . Justice Miller.9
WILLIAM STRONG of Pennsylvania was the fourth justice named to the Electoral Commission by the law creating it. The earlier drafts of the bill had not named him, but Noah Swayne, as the second Republican appointee to serve on the Commission. But, whether for reasons of geographic diversity, or, as suggested by the New York Sun (Wednesday, January 31, 1877), because of Swayne’s expressed desire to avoid serving, is not clear.
Strong was appointed to the Court in 1870 by President Grant. Along with Bradley, who was selected at the same time, he had joined the majority opinion in Knox v. Lee, overruling the earlier decision in the Legal Tender cases. As a justice of the supreme court of Pennsylvania, Strong had joined an opinion of that court upholding the validity of the Greenback Laws, so his vote in Knox v. Lee scarcely came as a surprise. Strong was born in Connecticut in 1808 and attended Yale College before studying law. He was admitted to the Pennsylvania bar at the age of twenty-four, and proceeded to establish a successful practice in Reading. A Democrat, twice elected as a representative in Congress, in 1857 he was elected to a fifteen-year term on the Pennsylvania Supreme Court. He served there until his resignation in 1868.
Though he would stay only ten years on the U.S. Supreme Court, he wrote the opinion of the Court in several significant cases. In Strauder v. West Virginia,10 for example, he spoke for the Court in holding that the Fourteenth Amendment prohibited discrimination on the basis of race in the selection of grand jurors by the states.
He resigned from the Court in 1880 but would live for another fifteen years. He remained active in the Presbyterian Church and served as president of the American Sunday School Union and of the American Tract Society.
The four justices named in the Act as members of the Electoral Commission met in Washington on Tuesday, January 30, to consider who the fifth member should be. The New York Sun carried this account of their deliberations:
THE CHOICE OF THE JUDGES
———
THREE OF THE FOUR FAVORING THE
SELECTION OF DAVIS
———
MR. CLIFFORD VIEWING JUDGE DAVIS’S
ELECTION TO THE SENATE AS A FITTING
QUALIFICATION FOR THE DUTIES OF THE
ELECTORAL COMMISSION
———
WASHINGTON. Jan. 30.—The four Justices of the Supreme Court—Messrs. Clifford, Miller, Field and Strong— whose duty it is under the Electoral bill, to select the fifth Justice, and thus complete the Grand Commission, met this morning and had a conference of several hours duration. No vote was taken, the time was simply consumed in a friendly discussion of the propriety of selecting Justice Davis as the fifth judge. It is understood that it was agreed that Justice Swayne was not to be considered available, inasmuch as he had indicated his aversion to serving on the Commission. This determination of Justice Swayne was known to be founded partly on his disinclination to assume the great labor which this new duty would impose, and partly on account of his long and close intimacy with both Mr. Tilden and Mr. Hayes. As Mr. Davis had also expressed his unwillingness to serve, it was supposed that the four judges would feel constrained to select either Justice Bradley or Justice Hunt as the fifth judge. When they came to consult this morning, however, it appeared that Messrs. Clifford, Field, and Strong were of the opinion that Mr. Davis was, of all the Justices, more eminently qualified than any member of the Court to give satisfaction to both parties in this contest. Mr. Justice Miller contended that Mr. Davis’s election to the United States Senate had to some extent disqualified him; therefore he thought it would be more satisfactory to select either Mr. Hunt or Mr. Bradley. Mr. Miller’s choice seemed to be Mr. Hunt, and, so far as Mr. Strong indicated a preference between these two, it was for Mr. Bradley.
Mr. Clifford indicated his entire willingness to accept Mr. Bradley as the fifth judge, but he argued that instead of Mr. Davis’s election to the Senate disqualifying him, it really made him the more eminently fit for the position. . . .
Judge Strong agreed fully with Judge Clifford, but he doubted whether Mr. Davis could be induced to reconsider his determination not to accept the position. It was, however, agreed that Judge Davis should be notified that he was the choice of three of the judges, and that they had determined to give him until tomorrow morning to reconsider.11
The next day, the Sun carried the following story on its page 1:
As foreshadowed yesterday, the election of Justice Bradley to be the fifth member of the Judicial Branch of the tripartite Electoral Commission was made very promptly and with entire unanimity, soon after the four Justices assembled this morning.
Justice Davis last night received over 50 telegrams urging him to reconsider his refusal to allow himself to be voted for as a member of the Commission, and was also called upon by a number of his friends in this city for the same purpose. He, however, replied that if he should consent to occupy that position he would consider himself necessitated to decline the Illinois Senatorship which he was not inclined to do.
In that same edition, the Sun expressed its editorial view of this result:
The almost absolute decision of the Presidential question is left to Judge Joseph B. Bradley of Newark, a partisan to whom his party never looked in vain. HAYES being counted in, the frauds by which this result is established will be covered with the quasi-mantle of the Supreme Court. . . .
BRADLEY WAS, INDEED, being placed in an almost impossible position. David Davis by 1877 was recognized as a genuine Independent, appointed to the Supreme Court by Lincoln, but no more sympathetic to the Republican Party than to the Democratic Party. This fact made the whole idea of an Electoral Commission palatable to many members of Congress. But now, instead of a recognized Independent, the fifth justice on the Commission was a Republican appointee who, if not deserving the condemnation in the above editorial of the Sun, was not thought of by anyone as an “Independent” in the same sense as Davis was.
It was said of Joseph P. Bradley that he had the face of an Italian cardinal. Appointed to the Supreme Court by Grant in 1870, he served until his death in 1892. He ranked with Miller and Field as one of the most influential justices during this period.
He was born in 1813 in upstate New York, a few miles west of Albany. His parents were married when they were seventeen, and he was the eldest of their twelve children. His birthplace was not far from that of Samuel Tilden, but his family circumstances were far more straitened. Subsistence farming was the way the Bradleys made their living. Their eldest son was educated in country schools and picked up extra knowledge from family members as he could. In his eighteenth year, he felt the need for a better education:
Whilst my father and I were threshing out the buckwheat crop one day the desire for an education became so strong that I broke out in a way I had never done before to my poor father. I told him that my life was being wasted . . . that I felt that I must have an education. He said, “I cannot afford to give you an education.” I said, I did not expect him to do it, but if he would let me go (I was then over 18) I would somehow obtain an education myself; and I would fully make up to him the loss of my unexpired time before coming of age. . . . 12
Bradley spent a year being tutored in preparation for college. To attend Rutgers College in New Brunswick, New Jersey, he walked the entire distance from Albany to New Brunswick, where he appeared in class in a homespun suit made by his mother. He distinguished himself in college, graduating in only three years. Along with two of his classmates—Frederick T. Frelinghuysen, a future senator from New Jersey, and Cortland Parker, a future president of the American Bar Association, he read law in the Newark office of Frelinghuysen’s uncle. In 1839 he was admitted to practice law in New Jersey.
He decided to remain in Newark, where he was offered a partnership by the attorney for the New Jersey Railroad. Soon he came t
o be noticed by other railroads, and especially the Camden & Amboy. This railroad bisected the state from northeast to southwest and gained a transportation monopoly in the state. Since the docile New Jersey legislature would do nothing to regulate it, the railroad’s opponents sought help from Congress. Bradley defended the railroad and its activities before Congress and in the courts. He was a “railroad lawyer,” and an able one.
He had an extensive practice in the federal courts and argued half a dozen cases before the Supreme Court. In one of them, Murray v. Hoboken Land Co.,13 the Court gave its first exposition of the meaning of the Due Process Clause of the Fifth Amendment. In 1844, he married Mary Hornblower, the daughter of the Chief Justice of New Jersey. He was identified with the Republican Party and in 1862 ran unsuccessfully for Congress on that party’s ticket.
The Senate confirmed his nomination to the Supreme Court with only a few dissenting votes. He and William Strong, appointed at the same time, joined with those who had dissented in the first Legal Tender case, Hepburn v. Griswald, to overrule that decision in the later case of Knox v. Lee. He joined Field’s dissent in the Slaughterhouse Cases, and in 1883 would author the Court’s landmark decision in the Civil Rights Cases. 14 His participation as the decisive fifteenth member of the Electoral Commission would subject him to largely undeserved opprobrium.
— CHAPTER 8 —
IN ADDITION to the five justices on the Commission, the Electoral Commission Act provided that there should be five senators and five representatives. The Senate chose Frederick Frelinghuysen of New Jersey, Oliver Morton of Indiana, and George Edmunds of Vermont, all Republicans. Allen Thurman of Ohio and Thomas Bayard of Delaware, Democrats, were also included. The House named Henry Payne of Ohio, Eppa Hunton of Virginia, and Josiah Abbott of Massachusetts, Democrats, and James Garfield of Ohio and George J. Hoar of Massachusetts, Republicans. With the naming of Joseph Bradley as the fifth justice, the membership of the Commission was now complete.
Centennial Crisis- the Disputed Election of 1876 Page 14