As I write this post, the Texas House of Representatives is meeting on the final day of the Special Session. Apparently, one of the bills still under consideration is the TSA “ant-groping” legislation authored by Rep. Simpson. Although no one can condone the methods that the federal government is allowing TSA employees to use during their “pat-downs” of airline travelers, there are real constitutional hurdles to the enforcement of any state law designed to stop or punish such behavior. Because of these hurdles, the most effective way to actually stop this behavior is for our Congressmen and Senators to act to stop it. Even though I understand the strategy of threatening a law in hopes that it will force the federal government to act, creating an empty bluff that is inconsistent with our conservative stand to follow the Constitution could do more harm than good to our conservative causes in the long run.
The most fundamental hurdle to enforcement of this new law is an interpretation of the Supremacy Clause of the U.S. Constitution, which the Supreme Court first issued in the late 1880s, which holds that states can not interfere with or punish federal employees for engaging in activity that is required by, or conducted within the scope of, their federal employment. That decision was rendered by the first Justice Harlan in the case of In Re Neagle. Although I could go on about the wisdom and constitutionality of the proposed “anti-groping” bill, I am going to digress in this post to present the story that led to that Supreme Court opinion—for it is one of the most interesting chapters in American legal history, but few people have ever heard of it. It is a story that arose from a 40-year struggle to impose federal authority over California, and from a 40-year political feud between two men that ended with the thwarting of an attempted assassination of a sitting Supreme Court Justice.
Although the story ends in 1889, it actually begins over 40 years before—during the Mexican-American War. As that war was progressing, President Polk realized that the U.S. would obtain a large amount of land from Mexico at the end of the war, including California, and he realized that American authority needed to be imposed quickly on the new territories. Hoping to also establish political control through the Democratic Party, Polk solicited Democratic politicians to enlist local “regiments” from among local Democratic activists to be sent to the new territories with the intent that they would never return. Instead, they would stay after the war and become the new local mayors and sheriffs, who simultaneously would establish American legal authority and the Democratic Party. One notorious regiment, known as the “Stevenson Regiment” was constituted of street- gang members from New York City, whose members spread-out in California and created much havoc during the 1850s.
While Polk’s troops were establishing American authority in California, a little event occurred at Sutter’s Mill in Northern California—the discovery of gold. What followed between 1849 and 1861 was the “Gold Rush”—which spawned both the greatest internal migration of people the United States has ever known, and the first great wave of immigration from across both the Pacific and Atlantic Oceans. As part of the internal migration, two men came to California to seek their fortunes: David Terry, a young prosecutor from Galveston, Texas, whose brother was a famed Texas Ranger and hero of the Mexican-American War; and Stephen Field, a young lawyer from New York, whose brother was one of the greatest legal scholars in the country who had authored one of the first codifications of procedural rules and statutes in the country. Both men settled in the gold region around San Francisco, and both men quickly became leaders in the legal community and the Democratic Party.
Unfortunately, these men shared bad tempers and ambition, while being members of rival factions of the Democratic Party. Terry was known to holster Bowie knife under his overcoat, while Field was notorious for drawing his pistol during legal negotiations. By the mid-1850s, Terry had been elected to the California Supreme Court, while Field had become a mayor of Almeda, an expert in mineral-rights law, and a protégé of U.S. Senator Broderick. One of the decisions Terry authored while a member of the California Supreme Court was a ruling against the claim to a large segment of the gold fields by John C. Freemont, the first Republican Nominee for the Presidency.
Among many of the disputes that led to riots, that then led to vigilantes twice taking over San Francisco and burning parts of the City to the ground, Terry and Broderick formed a personal grudge that led Terry to challenge Broderick to a duel. Field was Broderick’s second, when Terry shot Broderick and killed him. Terry fled California, and did not return until after the Civil War. In the meantime, Field was elected to Terry’s seat on the California Supreme Court and authored an opinion that reversed Terry’s previous opinion, thereby legitimizing Freemont’s claim to a large segment of the California gold fields.
This opinion caught the attention of civic leaders, including prominent Republicans like Freemont and Leeland Stanford, who recommended to Abraham Lincoln that he appoint Field to the U.S. Supreme Court. Lincoln did appoint Field, who would serve on the Court for over 34 years—the longest tenure in the Court’s history until surpassed by William O. Douglas in the 1970s—and would stay long enough to see his nephew also appointed to the Court. As was the custom of the day, Field not only sat on the Supreme Court, but also sat as a Circuit appellate judge over what is now the 9th Circuit when the Supreme Court was not in session.
During his tenure, Field still harbored political ambitions and twice sought the Democratic nomination for President—in 1868 and 1876. By the time Field sought the Presidency in 1876 as the favorite son of California, Terry had returned from his self-imposed exile in Mexico and Texas and was a leader of the California delegation to the Democratic Convention. Terry convinced the delegation to vote against Field, thereby depriving Field of the nomination. As a result, by the late 1870s, both men’s loathing for each other had reached a fever-pitch.
Then things got really interesting.
One of the richest men in San Francisco—the owner of the largest bank in the City and a co-owner of the “Comstock load” in Nevada—who served as one of the U.S. Senators from Nevada, became a widower and, then, allegedly fell in love with a young protégé of one of the leading madams of San Francisco. When he finally stopped seeing her, she claimed to be his common law wife and filed suit for a divorce and half his money. That case would eventually become part of a probate proceeding, due to his premature demise. Then his children filed a case in federal court (under what is known as “diversity jurisdiction” due to the Senator’s claim to be a resident of both California and Nevada), seeking a declaration that the documents the young lady was relying upon were forged and invalid. The federal case came to trial first, and the court ruled that the documents had been forged and were invalid. When the state case was heard, the state judge allowed the documents to be admitted into evidence and the jury ruled in favor of the young lady’s claim. For much of the next ten years, the California Supreme Court and the U.S. Supreme Court would issue dueling rulings over which court had proper jurisdiction and which ruling was binding, with the California Supreme Court finally recognizing the supremacy of the federal decision in a battle that makes Bush v. Gore seem tame.
As this dispute unfolded, the young lady in our story fell in love with, and married, one of her attorneys, who just happened to be David Terry. Meanwhile, as her case kept bouncing between state and federal courts, Justice Field held hearings on more than one occasion related to the case as a federal circuit judge. During one of those hearings, Justice Field made a remark about the young lady that Attorney and Husband Terry took as an insult, and he drew his Bowie knife and charged toward Justice Field. Once he was restrained, Field held Terry in contempt and sentenced him to a term in jail. As he was removed from the courtroom, he could be heard yelling that he would get even with Field. One of the persons who heard him was a U.S. Marshall by the name of Neagle, who had been one of the minor combatants at the shootout at the OK Corral in Tombstone, Arizona.
While in jail, Terry told anyone who would listen that if Field ever stepped foot in California again, Terry would kill him. News of these threats reached Washington, and alarmed the Attorney General. He asked Field not to return to California the next year for the session of the Circuit court. Field, being stubborn, refused the request. In response, the Attorney General wrote orders appointing a U.S. Marshall to serve as a bodyguard for Field while in California, with orders to shoot to kill anyone who might attempt to harm the Justice. Neagle was appointed to serve as the bodyguard.
Well, as you’ve probably figured out by now, Terry did confront Field. It happened while Field’s train was at a stop taking on water. Field and Neagle had left the train and were sitting down to lunch in the station’s dinning hall when Terry approached. When he reached into his overcoat Neagle believed Terry was reaching for his Bowie knife, and Neagle shot him dead. Field and Neagle quickly left and the train headed for its next stop. At that stop, based on news that had been telegraphed to the local authorities, the local sheriff boarded the train and arrested Field and Neagle for murder. Though Field was soon released with his charges dropped, Neagle was held over for murder under state law, even though he was acting under specific orders from the U.S. Attorney General.
Neagle filed for a writ of habeas corpus in federal court to be released based on the fact that state law could not punish him for acting under federal law. Eventually, Neagle’s case reached the Supreme Court. The Court ruled unanimously (though with Justice Field not participating), that, because of the Supremacy Clause, state law could not interfere with or punish a federal employee for acting within the scope of his employment by the federal government, and found that Neagle was acting within that scope of employment when he shot Terry.
There you have it—sometimes fact really is stranger than fiction. As a result of a blood-feud between two prominent men and a decade-long struggle for supremacy between California and federal courts, an interpretation of the U.S. Constitution was established—one that has important implications for issues we are debating today.