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Stephen J. Field and Public Land Law Development in California, 1850-1866: A Case Study of Judicial Resource Allocation in Nineteenth-Century America

Published online by Cambridge University Press:  05 August 2024

Charles W. McCurdy
Charles W. McCurdy*
Affiliation:
University of Virginia
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The landmarks of California resource law were laid down within the turbulent context of “the stampede of 1849 and subsequent years.” From all over the world men came to seek fortune in that “glorious country,” fully expecting government “to use its resources positively to enlarge their opportunities.” But federal policy was in a state of flux when gold was discovered on the public domain. Before 1846 mineral lands had been reserved from sale or pre-emption; federal authorities had attempted simultaneously to expedite development and to raise revenue through a complex set of leasing and regulatory arrangements with private firms. Several factors had impeded effective administration of the program, however, and in 1846 lead, copper, and iron lands had become subject to public sale. The discovery of gold in California, then, found the federal government without an applicable policy and “at a loss for knowledge as how to act.” Public sale of gold-bearing tracts was impossible, given the time necessary for survey and classification. A handful of federal officials did submit—and even tried to secretly impose— various plans for reviving some form of federal intervention. But Californians made it clear that they would stubbornly resist any program likely to forestall rapid exploitation of the public domain, and widespread recognition of the difficulties inherent in administering any policy that would conflict with local interests led to congressional unwillingness to take any action until 1866. In the interim, the State of California deemed it advantageous to take the situation “precisely as it finds it…. It looks to the fact that the General Government permits [miners] to trespass on the public domain without complaint … [and] the State is not the steward, nor bailiff, of the General Government, having in charge the protection of the public property.?

Type
Research Article
Information
Law & Society Review , Volume 10 , Issue 2: Essays in Honor of J. Willard Hurst: Part II , January 1976 , pp. 235 - 266
Copyright
Copyright © 1976 The Law and Society Association.

Footnotes

*

The author wishes to thank the Russell Sage Foundation and Professor Stan Wheeler of the Yale Law School for generous support of the research upon which this paper is based. Harry N. Scheiber, Bliss Cartwright, and Robert W. Gordon read the manuscript, provided encouragement, and made a number of excellent suggestions. Some tentative conclusions drawn from this project appeared earlier in 'Eminent Domain Law and Western Agriculture“ (with Harry N. Scheiber), 49 Agricultural History 112 (1975).

References

1. Rodman Paul, California Gold: The Beginning of Mining in the Far West 23 (1947).

2. Stephen J. Field, Personal Reminiscences of Early Days in California 7 (1893, reprinted 1968); Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States 6 (1956).

3. Curtis Lindley, A Treatise on the American Law Relating to Mines and Mineral Lands, I, 60-70 (3d ed., 3 vols. 1914), hereinafter Lindley Mines. For an important case study, see James E. Wright, The Galena Lead District: Federal Policy and Practice, 1824-1847 (1966).

4. Joseph Ellison, “The Mineral Land Question in California, 1848-1866,” 30 S.W. Hist. Q. 34 (1926).

5. See Samuel C. Weil, Lincoln's Crisis in the Far West (1949).

6. Ellison, supra, note 4, at 34-55.

7. People v. Naglee, 1 Cal. 232, 244-45 (1850).

8. Gregory Yale, Legal Titles to Mining Claims and Water Rights in California 17 (1867), hereinafter Yale, Legal Titles. Mexican law is surveyed in Lindley, Mines, I, 27-35; the military governor's motives are examined in Wiel, supra note 5, at 3.

9. John Norton Pomeroy, “Introductory Sketch,” in Some Account of the Work of Stephen J. Field 15 (Chauncey Black & Samuel B. Smith eds. 1881).

10. Yale, Legal Titles 59; Arthur S. Aiton, “The First American Mining Code,” 23 Mich. L. Rev. 105 (1924); William E. Colby, “The Freedom of the Miner and its Influence on Water Law,” in Legal Essays in Tribute to Orrin Kip McMurray 67 (Max Radin & A.M. Kidd eds. 1935).

11. Charles Howard Shinn, Mining Camps: A Study in American Frontier Government 109 (1884; reprinted 1965), hereinafter Shinn, Mining Camps.

12. For surveys of typical mining-camp regulations, see Yale, Legal Titles 71-88; Shinn, Mining Camps 232-258; W. Turrcntine Jackson, Treasure Hill: Portrait of a Silver Mining Camp (1983).

13. Shinn, Mining Camps 288-89.

14. Joseph F. Rarick, “Oklahoma Water Law: Stream and Surface in the Pre-1863 Period,” 22 Okla. L. Rev. 1, 20 (1969); Pratt v. Ayer, 3 Pinn. 236, 256 (Wis. 1851); Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 54-130 (1964).

15. Hurst, supra, note 2, at 3-6; Allan Bogue, “The Iowa Claims Clubs: Symbol and Substance,” 45 Miss. Val. Hist. Rev. 231 (1958).

16. Doris M. Wright, “The Making of Cosmopolitan California: An Analysis of Immigration, 1848-1870,” 19 Cal. Hist. Soc'y Q. 323, 324 (1940).

17. Warren Thompson, Growth and Changes in California's Population 9, 11 (1955); Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1957, 13 (1961).

18. Shinn, Mining Camps 212-218.

19. Paul, supra, note 1 at 161; see also Harold E. Rogers and Alan H. Nichols, Water for California, I, 21 (2 vols. 1967).

20. Joseph Bingham, “Some Suggestions Concerning the California Law of Riparian Rights,” in Legal Essays in Tribute to Orrin Kip McMurray, supra, note 9 at 8. For a more elaborate discussion of this interpretation, see Harry N. Scheiber and Charles W. McCurdy, “Eminent Domain Law and Western Agriculture,” 49 Agricultural Hist. 112 (1975).

21. Field, supra, note 2 at 2; Black and Smith, “Judge Field as a Legislator,” in Some Account of the Work of Stephen J. Field, supra, note 9, at 4.

22. 9 U.S. Stat. at Large 452, § 3 (Sept. 9, 1850).

23. Black and Smith, supra, note 21, at 11.

24. 2 Calif. Stats. 9, § 89, 5 (March 11, 1851); for an exhaustive analysis of jurisdictional matters respecting possessory-claim actions, see Yale, Legal Titles 115-127.

25. 2 Calif. Stats. 51, § 621 (April 29, 1851); see William Wirt Blume, “Adoption in California of the Field Code of Civil Procedure,” 17 Hastings L.J. 701 (1966).

26. Joseph G. Baldwin, “Judge Field,” in Some Account of the Work of Stephen J. Field 18. Baldwin sat with Field on the California Supreme Court between 1858 and 1862.

27. Lindley, supra, note 3 at 80; see also J. Edward Johnson, History of the Supreme Court Justices of California I, 65 (2 vols. 1963).

28. Shinn, Mining Camps 270; McClintock v. Bryden, 5 Cal. 97, 99 (1855).

29. Stiles v. Laird, 5 Cal. 120, 123 (1855); Tarter v. Spring Creek Water and Mining Co., 5 Cal. 395, 399 (1855); Crandall v. Woods, 8 Cal. 136, 143 (1857).

30. The quotation is from Field's classic, if somewhat romanticized account of the interaction between law and early California society in Jennison v. Kirk, 98 U.S. 453, 457 (1878).

31. Shinn, Mining Camps 175.

32. According to Shinn, “first-comers … readily yielded when other miners arrived.” But see Ralph Mann, “The Decade After the Gold Rush: Social Structure of Grass Valley and Nevada City, California, 1850-1860,” 41 Pacific Hist Rev. 484 (1972), also the sources cited at note 37, infra.

33 See Edward S. Corwin, “The Basic Doctrine of American Constitutional Law,” 12 Mich. L. Rev. 247 (1914).

34 Wallace Mendelson, “A Missing Link in the Evolution of Due Process,” 10 Vand L. Rev. 125, 127 (1956).

35. Smith v. Doe, 15 Cal. 100, 106 (1860). As Field later indicated, “the distinction between a judicial and legislative act [was] well defined [in his jurisprudence]. The one determines what the law is and what the rights are with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it. Whenever an act undertakes to determine a question of [existing] right or obligation, or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions.” Field J., dissenting in The Sinking Fund Cases, 99 U.S. 700, 761 (1878).

36. Biddle Boggs v. Merced Mining Co., 14 Cal. 279, 378 (1859).

37. For typical examples, see Jim Dan Hill, “The Early Mining Camp in American Life,” 1 Pacific Hist. Rev. 295 (1932). Harwood Hinton, “Frontier Speculation: A Study of the Walker Mining District,” 29 Pacific Hist. Rev. 245 (1960).

38. Hill, supra, note 37 at 298.

39. Gore v. McBrayer, 18 Cal. 582, 589 (1861).

40. Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 199, 211 (1862).

41. Hurst, supra, note 2 at 8.

42. Dutch Flat Water Co. v. Mooney, 12 Cal. 534, 535 (1859).

43. Roach v. Grey, 16 Cal. 383, 385 (1860).

44. William E. Nelson, “Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790-1860,” 120 17. Pa. L. Rev. 1166, 1178 (1972).

45. Edward S. Corwin, “The Supreme Court and the Fourteenth Amendment,” 7 Mich. L. Rev. 643, 653 (1909).

46. Court records apparently supply only a small sample of claim-jumping activity. Rodman Paul suggests that most claim-jumpers hoped to be “bought off” and only threatened the prior claimant with litigation. See Mining Frontiers of the Far West, 1848-1880, 170 (1963).

47. Yale, Legal Titles 81.

48. Fairbanks v. Woodhouse, 6 Cal. 433 (1856), reprimanding a lower court for allowing the jury to determine what constituted abandonment of the claim; Mitchell v. Hagood, 6 Cal. 148 (1856), holding that state officials alone could enforce the law requiring “foreign” miners to purchase a license.

49. Packer v. Heaton, 9 Cal. 568, 570 (1858); see also McGarrity v. Byington, 12 Cal. 426 (1859), holding negotiations with a mechanic for the construction of a tunnel equivalent to diligence in working the claim.

50. Atwood v. Fricott, 17 Cal. 38 (1860); English v. Johnson, 17 Cal. 108, 116 (1860).

51. Prosser v. Parks, 18 Cal. 47 (1861).

52. Paul, California Gold 124-70.

53. Prosser v. Parks, 18 Cal. 47, 48 (1861).

54. See State v. Moore, 12 Cal. 56 (1859) (taxes); McKeon v. Bisbee, 9 Cal. 137 (1858) (sheriffs sale).

55. English v. Johnson, 17 Cal. 108, 117 (1860).

56. Coryell v. Cain, 16 Cal. 367, 573 (1860).

57. 1 Cal. Stats. 203 (April 11, 1850).

58. 3 Cal. Stats. 158 (April 20, 1852).

59. See Gerald D. Nash, State Government and Economic Development: A History of Administrative Policies in California, 1849-1933, 97 (1964).

60. Shinn, Mining Camps 264.

61. 5 U.S. Stats. 453, § 10 (Sept. 4, 1841).

62. Emory Washburn, A Treatise on the American Law of Real Property, III, 114 (3rd ed., 3 vols., 1868). In Hutchison v. Perley, 4 Cal. 33, 34 (1854), the court held that in cases involving conflicting mining claimants “possession is always prima facie evidence of title; and proof of prior possession is enough to maintain ejectment against a mere naked trespasser.”

63. McClintock v. Bryden (arg.), 5 Cal. 97, 98 (1855).

64. Livingston v. Livingston, 6 Johns Ch. 497, 499 (N.Y. 1822). See also Joseph Story, Commentaries on Equity Jurisprudence II, 248-49, 260-61 (5th ed., 2 vols. 1849).

65. McClintock v. Bryden, 5 Cal. 97, 100-101 (1855).

66. Id. at 102.

67. Id. at 101.

68. Id. at 102.

69. Nash, supra, note 59, at 30.

70. 6 Cal. Assembly Journal 401 (1855).

71. 6 Cal Stats. 145 (April 25, 1855).

72. On the continent precious metals are owned by the state, thus franchised miners can dig for gold on private land upon posting bond. In England, however, sub-soil mineral rights pass with title to the land. See Yale, Legal Titles 44-47 on continental doctrine; Linley, supra, note 3, at 5-19 on English Law. When finally confronted with a case involving the entry of miners on land held in fee, derived from a patented Mexican grant, the Field Court flatly rejected continental law. See Moore v. Smaw, 17 Cal. 199 (1861); [Emory Washburn], “Mines—Mariposa Grant,” 10 Am. L. Reg. 462 (1862); Carl Brent Swisher, Stephen J. Field: Craftsman of the Law 82-88 (1930).

73. Biddle Boggs v. Merced Mining Co., 14 Cal. 279, 379 (1859).

74. Id. at 374.

75. Smith v. Doe, 15 Cal. 100, 105-106 (1860).

76. Daubenspeck v. Grear (arg.), 18 Cal. 444, 447 (1861).

77. Gillan v. Hutchinson, 16 Cal. 154,157 (1860).

78. Id.

79. Daubenspeck v. Grear, 18 Cal. 444, 448 (1861).

80. Biddle Boggs v. Merced Mining Co., 14 Cal. 279, 377, 379 (1859). Italics added.

81. Field probably imbibed the “public purpose” limitation on eminent domain powers from Taylor v. Porter, 4 Hill 140 (N.Y. 1843)—a case that evoked a political furor and ultimately a constitutional amendment during Field's apprenticeship (1844-1848) in the New York office of his brother, David Dudley Field. It is also noteworthy that despite the propensity of other western-state courts to sustain broad devolution of condemnation powers to the mining sector, the California judiciary repeatedly refused to hold that mining was a “public purpose.” See Consolidated Channel Co. v. Central Pacific R.R. Co 51 Cal. 269 (1876); Harry N. Scheiber, “Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789-1910,” 33 J. Econ. Hist 232 (1973).

82. Baldwin v. Simpson, 12 Cal. 560, 561 (1859).

83. Martin v. Browner, 11 Cal. 12, 14 (1858); Smith v. Doe, 15 Cal. 100, 105 (1860).

84. Burdge v. Smith, 14 Cal. 381, 383 (1859).

85. Id.

86. Injunction granted to protect property rights: Fitzgerald v. Urton, 5 Cal. 308 (1855) (hotel); Smith v. Doe, 15 Cal. 100 (1860) (house, fence, and fruit trees); Gillan v. Hutchinson, 16 Cal. 154 (1860) (house, fence, and vegetable garden); Daubenspeck v. Grear, 18 Cal. 444 (1861) (house, fence, and fruit trees); Hicks v. Compton, 18 Cal. 206 (1861) (house, fence, and planted grain); Rogers v. Soggs, 22 Cal. 444 (1863) (timber on improved farm); Biddle Boggs v. Merced Mining Co., 14 Cal. 279 (1859) (mine on land held in fee). Injunction refused to provide “entire freedom of the mines”: Martin v. Browner, 11 Cal. 12 (1858) (unimproved “town lot”); Baldwin v. Simpson, 12 Cal. 560 (1859) (fence only); Burdge v. Smith, 14 Cal. 381 (1859) (enclosure for “grazing purposes,” but no evidence of livestock on claim); Wright v. Whitesides, 15 Cal. 46 (1860) (house and fence but no crops); Garrison v. Sampson, 15 Cal. 93 (1860) (same). Compare the impressionistic discussion in Shinn, Mining Camps 260-65.

87. Slade v. Sullivan, 17 Cal. 103, 106 (1860).

88. Id. at 107.

89. Baldwin, supra, note 26, at 18.

90. Hicks v. Compton, 18 Cal. 206, 210 (1861).

91. Colby, supra, note 10, at 67-84; Samuel C. Wiel, Water Rights in the Western States I, 74-75 (3rd ed., 2 vols. 1911); John B. Clayberg, “The Genesis and Development of the Law of Waters in the Far West,” 1 Mich. L. Rev. 91 (1902).

92. 1 Cal. Stats. 219 (April 13, 1850); see Edwin W. Young, “The Adoption of the Common Law in California,” 4 Am. J. Legal Hist. 355 (1960).

93. See James Kent, Commentaries on American Law III, 438-41 (6th ed., 4 vols. 1848). In other urisdictions, of course, these rigid rules were modified to enable leading economic sectors to make best use of running water. Nevertheless, modifications were always made within the framework of riparianism. See Morton Horwitz, “The Transformation in the Conception of Property in American Law, 1790-1860,” 40 U. Chi. L. Rev. 248 (1973); Mark Jacobson, “Stream Pollution and Special Interests,” 8 Wisc. L. Rev. 99 (1933).

94. Clayberg, supra, note 91, at 96.

95. Hoffman v. Stone, 7 Cal. 46, 48 (1857).

96. The best surveys of the manner in which the court initially dealt with the issue are still Yale, Legal Titles 144-77; Samuel C. Wiel, “Public Policy in Western Water Decisions,” 1 Cal. L. Rev. 11 (1912).

97. Eddy v. Simpson, 3 Cal. 249, 252 (1853).

98. Irwin v. Phillips, 5 Cal. 140, 147 (1855).

99. Wiel, supra, note 91, at 294.

100. Crandall v. Woods, 8 Cal. 136 (1857).

101. Id. at 142, quoting from Starr v. Child, 20 Wend. 149, 159 (N.Y. 1838).

102. Id. For an analysis of the influence of eastern modes of legal reasoning on western resource law, generally, see Scheiber and McCurdy, supra, note 20, at 115-117, 122.

103. Biddle Boggs v. Merced Mining Co., 14 Cal. 279, 374 (1859); Crandall v. Woods, 8 Cal. 136, 143 (1857).

104. Wiel, supra, note 96, at 12-13.

105. Conger v. Weaver, 6 Cal. 548, 588 (1856).

106. Biddle Boggs v. Merced Mining Co., 14 Cal. 279, 375, 377 (1859). Italics in original. Although Field assumed that proposition to be unquestionably correct, when the issue finally came up in Lux v. Haggin, 69 Cal. 255 (1886), it took the court eight years of argument and some two-hundred pages in the reports to reach the same conclusion. See Gordon R. Miller, “Shaping California Water Law,” 55 S. Cal. Q. 9 (1973); Scheiber and McCurdy, supra, note 20, at 123-25.

107. Wiel, supra, note 9, at 321.

108. Basey v. Gallagher, 20 Wall. (87 U.S.) 670, 683 (1873); see also Samuel C. Wiel, “Priority in Western Water Law,” 18 Yale L.J. 189 (1909).

109. Weaver v. Eureka Lake Co., 15 Cal. 271, 275 (1860).

110. McDonald v. Bear River Co., 13 Cal. 220, 233 (1859). See also Rupley v. Welch, 23 Cal. 452 (1863)—enjoining miners from taking water already appropriated by farmer in possession.

111. Park v. Kilham, 8 Cal. 77 (1857); Kimball v. Gearhart, 12 Cal. 27 (1859). The quotation is from Ortman v. Dixon, 13 Cal. 33, 39 (1859).

112. Maeris v. Bricknell, 7 Cal. 261 (1857); Weaver v. Conger, 10 Cal. 233 (1858).

113. Thompson v. Lee, 8 Cal. 275, 280 (1857).

114. Weaver v. Eureka Lake Co., 15 Cal. 271, 275 (1860).

115. For an exhaustive discussion of the nature of the appropriator's property right, see Wiel, supra, note 91, at 14-64.

116. Kelley v. Natoma Water Co., 6 Cal. 105 (1856); McKinley v. Smith, 21 Cal. 374 (1863).

117. White v. Todd's Valley Water and Mining Co., 8 Cal. 443 (1957); McDonald v. Bear River Co., 13 Cal. 220 (1859).

118. Ortman v. Dixon, 13 Cal. 33, 39 (1859).

119. Id. at 35.

120. Id. at 33.

121. Butte Canal and Ditch Co. v. Vaughan, 11 Cal. 143, 152 (1858).

122. Bear River and Auburn Water and Mining Co. v. New York Mining Co. (arg.), 8 Cal. 327, 329 (1856).

123. Id. at 335.

124. Id. at 336.

125. Pilot Rock Creek Land Co. v. Chapman, 11 Cal. 161, 162 (1858).

126. Hill v. Smith, 27 Cal. 476, 482-83 (1865); see also Logan v. Driscoll, 19 Cal. 623, 626 (1862); Atchison v. Peterson, 20 Wall. (87 U.S.) 507, 515 (1873). A riparian framework was particularly essential to handle disputes between miners and mill-dam operators. It was all public land; hence there could be no equivalent of a milldam franchise. Yet, if claimed by others after the initial construction of the dam, the surrounding land was regarded by the court as property. If wanton dumping had been permitted, either the milldam owner would have lost the value of his appropriation—property—or upstream miners would have had their claims flooded. See the discussion in Harvey v. Chilton, 11 Cal. 114 (1858); Nevada Water Co. v. Powell, 34 Cal. 109 (1867).

127. Lindley, supra, note 3, at III, 2070.

128. See the sources cited at note 94, supra.

129. Atchison v. Peterson, 20 Wall. (87 U.S.) 507, 515 (1873).

130. Jones v. Jackson, 9 Cal. 237 (1858); O'Keiffe v. Cunningham, 9 Cal. 589 (1858); Esmond v. Chew (dictum), 15 Cal. 137, 143 (1860).

131. Pilot Rock Creek Land Co. v. Chapman, 11 Cal. 161 (1858); Esmond v. Chew, 15 Cal. 137 (1860); Logan v. Driscoll, 19 Cal. 623 (1862).

132. Wixon v. Bear River and Auburn Water and Mining Co., 24 Cal. 367 (1864).

133. Levaroni v. Miller, 34 Cal. 231 (1867).

134. Hill v. Smith, 27 Cal. 476 (1865).

135. Jennison v. Kirk, 98 U.S. 453, 461 (1878)—hydraulic miner held liable for damages when debris washes away the ditch of another appropriator.

136. Woodruff v. North Bloomfield Gravel Mining Co., 18 Fed. 753, 757, 763 (C.C. Cal. 1884).

137. Id. at 769. See also Kenneth Thompson, “Historic Flooding in the Sacramento Valley,” 29 Pacific Hist. Rev. 349 (1960).

138. Id. at 802. For analysis of the court's treatment of the constitutional issues raised by counsel, see Scheiber and McCurdy, supra, note 20, at 125-26.

139. 27 U.S. Stats. 507 (March 1, 1893). See Lindley, supra, note 3, at III, 2093-2114; Samuel Knight, “Federal Control of Hydraulic Mining,” 7 Yale L.J. 385 (1898).

140. Woodruff v. North Bloomfield Gravel Mining Co., 18 Fed. 753, 803 (C.C. Cal. 1884). The political context of the dispute is thoroughly treated in Robert L. Kelley, Gold versus Grain: The Hydraulic Mining Controversy in California's Sacramento Valley (1959).

141. Id. at 797.

142. Id. at 807.

143. Mary E. Young, “Congress Looks West: Liberal Ideology and Public Land Policy in the Nineteenth Century,” in The Frontier in American Development: Essays in Honor of Paul Wallace Gates 74, 111 (David M. Ellis ed. 1969).

144. Id., 77, 90; see also Hurst, supra, note 14, at 25-34.

145. Baldwin, supra, note 26, at 18.

146. Congressional Globe 39th Congress, 1st Session, 3226 (1866).

147. 14 U.S. Stats. 251 (July 26, 1866), 16 U.S. Stats. 217 (July 9, 1870). Especially noteworthy provisions of the federal statutes are section 10 (1866) and section 12 (1870): “[W]herever, prior to the passage of this act, upon the lands heretofore designated as mineral lands … there have been homesteads made … [which] have been improved, and used for agricultural purposes, and upon which there have been no valuable mines … discovered, the said settlers or owners of such homesteads shall have a right of pre-emption thereto … [N]othing contained in this section [authorizing purchase of placer loades] shall defeat or impair any bona fide pre-emption or homestead claim … or authorize the sale of the improvements of any bona fide settler to any purchaser [of placer claims].” For a full analysis of far-western resource law development under federal statutes, see Lindley, supra, note 3, at 89-126; Wiel, supra, note 91, at 96-117; Edward P. Weeks, A Commentary on the Mining Legislation of Congress (1877).

148. J. Edward Johnson, History of the Supreme Court Justices of California I, 65 (2 vols. 1963).

149. Lawrence Friedman, A History of American Law 296 (1973).

150. Compare the standard biographical treatments of Field, where much is made of an alleged metamorphosis from a liberal California jurist who consistently exercised judicial self-restraint, to the very paragon of activism during his tenure on the Supreme Court. See Swisher, supra, note 72, at 77-81, 103, 209; Howard J. Graham, “Justice Field and the Fourteenth Amendment,” 52 Yale L.J. 851 (1943); Robert G. McCloskey, American Conservatism in the Age of Enterprise 72-103 (1951). Graham and McCloskey explained that supposed transformation as a response to the Paris Commune! For a different perspective on Field's Supreme Court years, see Charles W. McCurdy, “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism,” 62 J. Am. Hist 970 (1975).