Field, David Dudley (1805-1894) and Stephen Johnson Field (1816-1899)

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David Dudley Field (1805-1894) and Stephen Johnson Field (1816-1899)

Brothers of bar and bench

Family of Achievers. The eight sons and two daughters of Congregationalist minister David Dudley Field and Submit Dickinson Field constituted one of the most remarkable families of the mid nineteenth century. Cyrus Field became an entrepreneur best remembered for successfully promoting the Atlantic telegraph cable; Henry Martyn Field became a popular author of travel books; Jonathan Edwards Field served several terms as president of the Massachusetts state senate; Emilia Fields was the mother of David J. Brewer, a justice of the U.S. Supreme Court. The first child in this extraordinary group, named for his father, was born in Haddam, Connecticut, in 1805; his brother Stephen followed eleven years later, shortly before the family moved from Haddam to Stockbridge, Massachusetts. Both attended Williams College, one of the academic centers of New England religious orthodoxy.

Politics and Legal Codification. David Dudley Field entered the practice of law in New York in 1828. He aspired to a political career as a Jacksonian Democrat, but his personality did not lend itself to working within a party or appealing to voters. Field would eventually join the Free Soil movement and later the Republican Party, strongly supporting Lincoln’s 1860 campaign for the presidential nomination against the New Yorker William H. Seward. By that time, however, he had won fame as the foremost proponent of the codification of law. The codification movement argued that judge-made common law was not consistent with American principles and should be replaced by legislatively enacted codes of law. A code, Field maintained, was “the necessary complement of a written constitution for a free people.” In 1847 the New York State Assembly appointed him to a commission to study the reform of courtroom procedures. Field took charge of the committee and produced the Field Code for procedure in civil cases, which New York adopted in 1848 and twenty-four states and territories had imitated by 1873. He also proposed a code for procedure in criminal cases in 1848, and although the New York legislature did not enact it, eleven states did in the next twenty-five years.

A Western Road. Stephen J. Field followed the professional and political lead of his brother, completing his training for the bar in the office of President Martin Van Buren’s son John, known in New York politics as “the Prince.” Stephen then became his brother’s partner for seven years, although by the end of that period David Dudley Field was devoting much of his time to the codification movement. Stephen struck out in a different direction, joining the California Gold Rush of 1849. He soon focused not on mining but on real estate speculation, law practice, and the government offices that he helped to set up. He was elected to the California state legislature in 1850 and to the state supreme court in 1857. His climb along the rough-and-tumble western path to prominence made for one of the most colorful backgrounds in the history of the American bench. He was disbarred twice; he accepted two challenges to duels (from which his adversaries retreated); and his bodyguard shot to death a judge who seemed likely to make good on a threat to kill Field. A strong Democrat, he met the federal need for a judge with expertise in the specialized legal field of mining claims. When Congress created a federal judicial circuit in California and added a seat on the Supreme Court in 1863, Lincoln appointed Field to the positions.

Reconstruction. During his first few years on the Supreme Court, one of the advocates whom Justice Stephen Field often saw in the most important political cases was his brother. Reverting to his Democratic allegiances when the Republican Congress began to take energetic measures to transform the South, David Dudley Field joined a distinguished legal team that attacked the constitutionality of Radical Reconstruction. Other lawyers contributing to this effort included former attorney general Reverdy Johnson; former postmaster general Montgomery Blair; and Jeremiah S. Black, who had served as chief justice of Pennsylvania, U.S. attorney general, and secretary of state. Field appeared in several major Reconstruction cases. In Ex Parte Milligan (1866) his group successfully argued that the Constitution prohibited trials by military commissions in areas outside of an active war zone. In Cummings v. Missouri (1867) they secured invalidation of a provision in the Missouri constitution that barred former Confederates from public life. Ex Parte McCardle (1869) was a broad attack on the Reconstruction Act of 1867 based on the denial of a writ of habeas corpus for a Mississippi advocate of resistance to Reconstruction. After the Supreme Court heard arguments but before it announced a decision, Congress forestalled the case by requiring all pending and future appeals from denial of the writ of habeas corpus to work their way through the lower federal courts before reaching the Supreme Court. Field made another major constitutional argument in United States v. Cruikshank (1876), representing one of three white Louisianans convicted under the Civil Rights Enforcement Act of 1870 after the Colfax Massacre of 13 April 1873, in which more than one hundred blacks were killed. The Supreme Court overturned the conviction, concluding that murder was a matter for state authorities—even if it was mass murder with racial and political motives. In United States v. Reese (1876) the Supreme Court found for another of Field’s clients on similar grounds, invalidating two sections of the 1871 Ku Klux Klan Act in a decision which foreshadowed the conclusion that the civil rights laws could only regulate state action, not private conduct.

Wall Street Wars. Field was the central attorney in another of the great legal dramas of the mid nineteenth century, the financial battles between his clients Jay Gould and Jim Fisk and rival railroad promoter Cornelius Vanderbilt. This flurry of business made Field one of the most highly paid lawyers in the country during the late 1860s and early 1870s, earning about $75,000 per year. The cases also put him at the center of controversy within the New York legal community over professional ethics, a struggle for identity that led to the 1870 formation of the Bar Association of the City of New York. Field blocked repeated efforts within the Bar Association to censure or expel him, defending his own conduct and pointing out that almost every prominent lawyer in New York had at some point represented Fisk, Gould, or their financial adversaries. He did not enhance his ethical stature within the bar by serving as chief counsel to William Marcy “Boss” Tweed in the criminal and civil cases that lasted from 1872 to 1876, culminating in conviction of Tweed on more than two hundred counts of graft and corruption. After these cases David Dudley Field represented one of the key prosecution witnesses whom he had vigorously cross-examined in the Tweed cases, Gov. Samuel Tilden of New York, in the proceedings organized to resolve the 1876 presidential election.

Constitutional Orthodoxy. The judicial opinions of Stephen J. Field similarly helped to define the constitutional meaning of liberty and property. In Cummings v. Missouri (1866) and Ex Parte Garland (1867) his opinions for the slim majorities invalidated the use of loyalty oaths to bar former Confederates from the practice of a profession, declaring that the right to pursue a trade was a vital property interest. He broadened this point in his famous dissent in the Slaughterhouse cases (1873), arguing for protection of New Orleans butchers from legislation that would eliminate their business by creating a meat-processing monopoly. In Munn v. Illinois (1877) Justice Field denounced legislative price setting as a deprivation of property. As his dissenting opinions became constitutional orthodoxy, the judiciary increasingly claimed, in Field’s words, “a negative power, the power of resistance.” Judicial exercise of this power would set the tone for American constitutional law in the late nineteenth and early twentieth centuries. Stephen J. Field died in 1899, five years after the death of his brother David.