MANUEL CACHÁN

FORUM:
ONCE MORE UNTO THE BREACH: LATE NINETEENTH-CENTURY JURISPRUDENCE REVISITED

Justice Stephen Field and "Free Soil,
Free Labor Constitutionalism":
Reconsidering Revisionism

Progressive legal scholars from the 1930s through the 1960s sought to explain why the Supreme Court had set itself in such bald opposition to the concurrent branches of the federal government.¹ The Court seemed profoundly committed, even to the point of risking its very existence, to an ideology that, in Justice Holmes's famously understated phrase, "a large part of the country d[id] not entertain."² What had led to the union between jurisprudence and conservative reaction? 1

     One strand of the Progressive explanation for the Supreme Court's New Deal- era conservatism was historico-doctrinal. When followed to their source, claimed Progressive legal historians, conventional understandings of the Constitution proved to be premised on doubtful legal propositions. ³ By focusing on a few key cases, Progressives could demonstrate how what had originally been a minority position, expressed in vituperative dissents in the Slaughter-House ⁴ and Granger Cases, ⁵ had gradually become the majority position as the Court's composition changed, culminating in Lochner 's full-throated defense of reactionary constitutionalism. Eventually, said Progressives, the conservative wing of the Court had succeeded in inserting its laissez-faire economic views into the Constitution. ⁶ One historian, critical of what he perceives as the simplicity of the Progressive account, has described its chronology of cases as a steady "progression from Slaughterhouse and Munn to Lochner, by way of the Mississippi and Minnesota rate cases, Smyth v. Ames, and Allgeyer v. Louisiana. " ⁷ 2

     A separate strand of the Progressive critique was theoretical. Progressives claimed that judges insulated their policy decisions from popular criticism by employing the technical grammar of legal discourse, and that the vision of a neutral, politics-free, and independent judiciary was false. Importantly, this was an attack not on conservative jurisprudence specifically but on conventional understandings of "legal science." It was usually not the case, as later writers have claimed, that Progressives "could not conceive of the Court's rhetoric about liberty and due process as anything but cant, a subterfuge designed to camouflage other purposes."⁸ It was the structure of the legal order, said Progressives, and not the machinations of a few reactionary judges, that obscured ideology. Morris Cohen, for example, writing about nineteenth-century methods of "systemic" jurisprudence, maintained that "[t]he neglect of the social-economic factors that actually mold legal. . . institutions naturally went together with the tendency to elevate into the rank of fixed principles legal rules that are by no means universally valid but can be more appropriately explained by references to specific historical conditions."⁹ Given its analytical abstractions, it is ironic that the Progressive critique is now condemned on the grounds that it was too simplistic and confined merely to charging presumed reactionaries with hypocrisy. The making of modest conceptual claims was never the hallmark of any modernist philosophy, legal or otherwise. 3

     By the 1970s, a caricature of the Progressive critique had become the standard explanation for the Lochner Court's hostility to social legislation and the constitutional crisis that it engendered. Even now this caricature continues to influence leading constitutional law casebooks, although its strength has been somewhat overstated. ¹⁰ With increasing force from the 1980s until today, revisionist historians have raised doubts about the strength of the Progressive critique. Revisionists are particularly hostile to the notion, supposedly advanced by Progressives, of a pre-Lochner Court majority composed of laissez-faire ideologues, willing to supplant legal precedent with dubious economics. 4

     This article examines the assumptions underlying the revisionists' reevaluation of laissez-faire constitutionalism, paying special attention to the new "Free Soil, Free Labor" understanding of Stephen J. Field's jurisprudence. In examining Field's career, revisionists have crafted historical arguments that are, by design or accident, the dialectical opposites of those made by their Progressive predecessors. Some legal historians have too quickly accepted a reevaluation of Field's jurisprudence that is based on equivocal historical evidence and critical principles that should be, to a postrealist sensibility, inherently doubtful. 5

     Where Progressives saw the influence of conservatism and laissez-faire economics in Field's judicial work, revisionists point to the impact of Jacksonianism, the radical Democratic politics of New York, and free labor ideology. Where Progressives interpreted Field's jurisprudence as policy-rooted but masked by precedential arguments, revisionists see Field's doctrine of constitutional limitations as consistent with both long-standing precedent and American traditions of political philosophy dating to the Founders. Where Progressives saw Field as an extremist who swung the judiciary to the political right, revisionism minimizes the degree of conflict in postbellum American thought and understands Field as an articulate conformer to the political culture of his time. Progressives focused on Field's career in order to question the putative neutrality of legal science. The revisionists, in reasserting the consistency of Field's jurisprudence, have implicitly rejected the critical Realist claims for the indeterminacy of legal rules.¹¹ 6

     First, I review the work of the principal proponents of "Free Soil, Free Labor" constitutionalism. Next, I demonstrate that the strength of Justice Field's free soil and free labor views is doubtful. In remaking Field in the mold of Free Soiler, revisionists have created too stark a division between free soil politics and laissez-faire economics, casting the ideologies in a binary relationship that likely never existed.¹² Finally, I examine Field's Supreme Court jurisprudence to test whether the rhetoric contained in his decisions can be credibly attributed to the influence of Free Soil, Free Labor.¹³ 7

I. Surveying Revisionism

Alan Jones's article on Thomas M. Cooley was the first significant entry in the revisionist camp. Progressives' view of American constitutional law as "anxiously preoccupied with the judicial protection of property rights," complained Jones, "oversimplifies and misleads, especially when expressed in such terms as 'laissez-faire constitutionalism.'" Contrary to the unflattering portraits of him in the work of Progressive historians Benjamin Twiss, Clyde Jacobs, and Sidney Fine, ¹⁴ Cooley was no laissez-faire advocate but a "historically minded common lawyer, who was less concerned with abstract theories of economic liberty than with maintaining the. . . doctrine of equal rights, a doctrine with deep roots in. . . Jeffersonian political thought." Describing the Treatise on Constitutional Limitations as "a leading document in the Jeffersonian-Jacksonian tradition" that was "not intended to. . . develop[] laissez-faire capitalism," Jones called for a reevaluation of Cooley's place in American jurisprudence. ¹⁵ 8

     Calling him a Free Soil champion, Jones revealed Cooley's early inclinations in favor of radical democracy and his defense of "equal rights, free trade, free schools, free discussion, and free soil." What the Progressives had interpreted in Cooley's legal writings as conservatism motivated by adherence to laissez-faire economic convictions was, said Jones, actually symptomatic of "the loco-foco premise that unlimited power was too often used to exploit the many and benefit the few."¹⁶ Jones's recasting of Cooley as a radical, loco-foco Democrat and Free Soiler contains the same elements that have been applied to Justice Field's conservatism by revisionist historians. Whatever their merits in Cooley's case, they are less applicable to Field. 9

     Michael Les Benedict extended Jones's analysis in a wide-ranging article on laissez-faire constitutionalism. Progressive historians, maintained Benedict, living in a period animated by fundamentally different political assumptions, were intellectually incapable of comprehending the Lochner and pre-Lochner Courts. "The intellectual foundations of laissez-faire constitutionalism have been so alien to most legal scholars since the 1930s (and equally unintelligible to many even earlier) that they have found it difficult to believe [that decisions incorporating laissez-faire principles] were the result of efforts to enforce 'neutral' principles of constitutional law. . . ." Though widely accepted, the established interpretation of the late nineteenth-century Court's conservatism reflects "the chasm separating the world view of the twentieth century from the nineteenth century." ¹⁷ 10

     Progressive scholarship about the Gilded Age, posited Benedict, was more valuable for what it said about Progressives than for its interpretation of the period that it pretended to study. "'Sometimes whole generations of historians. . . find in certain periods of history nothing intelligible, and call them dark ages;. . . such phrases tell us nothing about those ages themselves, though they tell us. . . the persons who use them. . . are unable to re-think the thoughts that were fundamental to their life [sic].'" Writing in 1985, Benedict claimed that, thanks to the decline of the "intellectual commitments forged in the Progressive and New Deal eras" and the concomitant rise of "older notions we now call 'conservative,'" it was "possible once more to make sense of laissez-faire constitutionalism."¹⁸ 11

     Just as Progressives, in Benedict's formulation, tried to analyze a nineteenth-century mode of thinking about economic rights that they were fundamentally incapable of understanding, so, too, were the conservatives they criticized creatures of their Jacksonian world view. Nineteenth-century conservatives were ideologically programmed to interpret legislation intended to advance the social welfare as mere "'class' or 'special' legislation--using the power of government for the benefit of a particular group at the expense of the rest of society." "It was this conviction," wrote Benedict, "a fundamental idea about right and wrong. . . that lay at the heart of American laissez-faire constitutionalism." Field, meanwhile, was an idealistic Jacksonian whose conservative judicial opinions were best explained not with economic abstractions but with political ones, notably radical Democratic antimonopolism, "loco-focoism," and a belief in "Equal Rights." Benedict viewed the libertarian beliefs of the conservative members of the pre-Lochner Courts as common to nearly all nineteenth-century Americans (and all American judges of the period) and traceable to seventeenth-century British political theory. By the 1930s, when the Progressives began their interpretive task, however, this common American heritage of Jacksonian thought had vanished entirely, not to appear for another forty years. ¹⁹ 12

     Charles McCurdy also employed the revisionist analysis to reevaluate Stephen Field's career. While admitting that Field used "both the power and opportunity to forge new doctrine" that "'dr[e]w the line between regulation and confiscation,'" McCurdy maintained that Field's government-business jurisprudence could be best understood by analyzing the origins of his political thought and the "extraordinarily consistent body of immutable rules [that Field had intended as 'final solutions']. . . to separate the public and private sectors into fixed and inviolable spheres." At the core of Field's judicial philosophy was neither conservatism nor laissez-faire economics but a "Jacksonian, radical antislavery" ideology.²⁰ 13

     Like both Jones and Benedict, then, McCurdy attributed the pre-Lochner Courts' aversion to social legislation to antimonopolistic, Democratic radicalism. Field's hostility to the police power and his insistence on Fourteenth Amendment protections for corporate interests were positions entirely consistent with the "narrow 'public use' and broad 'takings' doctrines" that Field embraced in Pumpelly v. Green Bay Co. ²¹ As a matter of political theory, Field's Slaughter-House dissent was inspired by his genuine conviction that "the individual's right to pursue one of the 'ordinary trades' was 'in many respects. . . a distinguishing feature of our republican institutions.'" The Jacksonian heart of Field's views, claimed McCurdy, was common to his colleagues who "on the whole,. . . shared the same values and convictions." When many aspects of Field's government-business jurisprudence were reversed in the 1930s, it was not "because [Field] had been internally inconsistent or had failed to reflect the ideological commitments of post- Civil War Americans, but rather because his doctrinal system proved to be incongruent with the. . . needs of an ever-expanding capitalist society." ²² Put another way, the downfall of Field's jurisprudence was inevitable when Americans collectively began to question the wisdom of limited government. McCurdy's analysis has replaced earlier Progressives' work on Field to become the standard understanding of the justice's judicial work. ²³ 14

     Howard Gillman and Owen Fiss have also produced books reflecting the revisionist view. Gillman accepts the characterization of Field as a radical, locofoco Democrat and Free Labor proponent. He sees the jurisprudence that Progressives labeled laissez-faire as a misidentification of conservatives' Jacksonian distrust of privilege and monopoly. Gillman also echoes earlier revisionists by finding the seeds of substantive due process in the American Revolution. "To men like Alexander Hamilton and Jefferson, it was better that the government promote and protect the market and its attendant privileges and adopt policies that nurtured these conditions without intruding into the conflicts that were a natural feature of the opportunities it had to offer." Conservatives like Justice Field, then, were never hostile to government interference with market relations per se, though they feared the factional, class politics that such interference might produce. It followed that Field's constitutionalism was consistent not only with precedent but with fundamental American political values.²⁴ 15

     Owen Fiss's volume in the Oliver Wendell Holmes Devise has provided the revisionist critique with its most developed articulation, though the book is largely silent on the role of Justice Field. Less committed than Gillman to the notion that the ideological origins of the Waite and Fuller Courts lie in Jacksonianism, Fiss nonetheless agrees that Progressive historians, in order to advance their own conspiratorial theories of laissez-faire domination, too easily dismissed the justifications that pre-Lochner judges provided for their decisions. And like Gillman, Fiss conceives of the justices who made up the Court between the Civil War and the early twentieth century as reflecting an American "social contract tradition. . . defined by its reduction of liberty to a demand for limited government." By the 1930s, a "change. . . [had] been wrought in [America's] understanding of liberty and the role of the state," and "[t]he social contract tradition seemed to be at an end."²⁵ 16

     Running through revisionist historiography is the sense that Progressive legal historians, caught up in the radical 1930s zeitgeist, were unable to write fair-minded history and that, consequently, they misrepresented their Gilded Age subjects. Revisionists now seek to rehabilitate these individuals by portraying them as completely disconnected from the "inevitable" changes that were occurring in America's speedily industrializing economy.²⁶ The revisionist narrative at times appears to be peopled by clueless historical actors being relentlessly swept along by ideological currents that, despite their unanimous influence on contemporaries, did not correspond to social reality. These singularly disconnected and essentially passive individuals later come to be studied by Progressive historians and theorists who were under the spell of an entirely different, but similarly irrelevant, "leftist" ideology that rendered them unable to understand the behavior of people in the recent past.²⁷ 17

     Accompanying (and perhaps a necessary corollary to) the call for a new, neutral history of American constitutionalism is an antipathy to the quasi-Marxist analysis performed by the Progressives and a desire to refocus on the history of intellectual movements. "When precisely used," wrote Jones, "laissez-faire refers to a systematic economic theory; when the concept is used casually and applied to phenomena that are not strictly economic, one risks explaining away the concrete realities of history." ²⁸ 18

II. Field as Locofoco

Most revisionist work on Justice Field asserts that he was a radical Democrat who early on allied with the antimonopolist Locofoco or Equal Rights Party of New York. ²⁹ Field's later insistence on the right of working men to contract for employment with capitalists on an individual level, free of the imagined fetters of collective action or ameliorative government legislation, was born of locofoco radicalism. His antipathy toward the Louisiana butchering monopoly in Slaughter-House originated in an essentially political, not economic, belief that the legislature should pass no law meant to benefit one class of people at the expense of another. Field's hostility to government regulation in Munn v. Illinois ³⁰ was rooted in his conviction that the government should not attempt to restrict the ordinary occupations of citizens without a demonstrable threat to public safety or health. Field's jurisprudence, say revisionists, was motivated by libertarian tenets that have been celebrated, in a different context, for their connection to abolitionism, Republicanism, and the early history of American labor movements. ³¹ Pilloried for what were taken to be reactionary political opinions that he was willing to express as binding law, Stephen Field was actually a misunderstood antislavery reformer and Free Laborite. His jurisprudence only expressed a set of Jacksonian beliefs held by a broad spectrum of the Northern and Western bench, bar, and populace. 19

     There is some reason to suspect that Field at least sympathized with radical democracy and Free Labor beliefs. Stephen Field's brother, David Dudley Field, was one of the principle leaders of the Barnburner faction of the New York Democrats that split from the party over the issue of extending slavery into the territories. At the first Barnburner convention in 1847, David Dudley declared of his new party that "we believe in the dignity and the rights of free labor; that free white labor cannot thrive upon the same soil as slave labor. . . and that it would be neither right nor wise to devote new territories to the slave labor of a part of the States, to the exclusion of the free labor of all the States."³² 20

     Only a few months earlier, David Dudley had introduced a series of resolutions at the state Democratic convention commending the New York congressional delegation for supporting the Wilmot Proviso. He lauded the measure as sound doctrine. Later, along with many other prominent Barnburner Democrats, David Dudley Field joined the Republican party out of a conviction that Democrats lacked a sufficient commitment to Free Soil principles. David Dudley was a prominent aide of the first Republican administration and a friend to Abraham Lincoln.³³ 21

     Stephen Field had intimate ties, familial and professional, to his brother and, by association, to David Dudley's Free Labor convictions. ³⁴ David Dudley Field's law partner, for example, was the uncle of Theodore Sedgwick, Jr., the radical Democrat, antimonopolist columnist for the New York Evening Post, and author of What is a Monopoly? ³⁵ (Theodore Sedgwick's colleague on the paper was none other than William Leggett.) Sedgwick, too, was employed in David Dudley's law office after graduating from Columbia College and shared Barnburner allegiances with the older Field. ³⁶ The connections between the Free Labor movement and Stephen Field, then, generally support the revisionist conclusion that Field's jurisprudence was motivated by Jacksonian rather than laissez-faire influences. 22

     The danger of distortion is ever present, however, in determinations of historical guilt-by-association. A look at Field's early career shows why. Like all of his contemporaries, Stephen Field was doubtless affected by Jackson's election to some degree. Nonetheless, the evidence that Stephen Field was a radical Free Soiler, an antimonopolist, a Locofoco, or a Barnburner is much more equivocal. Early on in his public life, Field repudiated Free Labor. Field was never an antislavery advocate. He criticized abolition as an irresponsible idea and, unlike his brother David Dudley, did not favor the Wilmot Proviso. Field's opinions on the California Supreme Court, when he should have been most heavily influenced by free soil ideas, belie the revisionist notion that Free Soil was the source of his jurisprudence. In short, Stephen Field was never fooled by Free Labor into misunderstanding the struggles of capital and labor or the changes that industrial capitalism was bringing about in the second half of the nineteenth century. 23

     Field's autobiography, dictated to a stenographer in 1877 and employed as political propaganda during his several presidential campaigns, was silent on his involvement in the Barnburners, Locofocos, or radical Free Soilers. The summer after David Dudley Field's participation in the first Barnburner convention, where he condemned slavery and championed Free Soil and Free Labor, Stephen Field set off on a European tour. Six weeks after returning, and having read in Paris of the discovery of gold on the American frontier, he left for California. Unlike his brother, Stephen Field's impact on New York Democratic politics, including his involvement with the Free Soil movement, can only be charitably described as minimal.³⁷ 24

     Field's autobiography, Personal Reminiscences, which alternates between accounts of his manly frontiersmanship and the venality of the many political enemies he made in his decades of public life, begins with his arrival in California in 1849 and ends with his appointment to the Supreme Court in 1863. The book fails to mention Field's New York political career at all, a surprising omission considering the prominence that revisionists have given Field's Free Labor thought. 25

     To be sure, the full title of Field's autobiography is Personal Reminiscences of Early Days in California and it does not pretend to be a full account of the author's life. Nevertheless, the text's narrative power is derived from its dual character as testimonial literature and promotional political tract. Paul Kens, for example, doubts the accuracy of the legend printed on the book's title page, claiming that it was "printed for a few friends." Parts of the book were serialized in newspapers, ³⁸ and Field submitted copies of the book to at least one university collection. ³⁹ In any case, Personal Reminiscences was doubtless as widely disseminated, and probably more so, than most of Field's judicial opinions. The revisionist reading of Field is weakened by the absence of Free Soil or Free Labor politics in the autobiography of a jurist whose work is now described, even by a scholar less convinced of revisionism's explanatory strength, as "symboliz[ing] the radical individualist strain of the Jacksonian-free-labor tradition." ⁴⁰ 26

     More damaging still to the revisionist portrait of Field as Free Soil antimonopolist is that, when Field does mention Free Soil and Free Labor in Personal Reminiscences, it is to distance himself from his brother's views. Describing his campaign for the California legislature, Field relates the following encounter with a group of voters: 27

Having got their attention and excited their interest, I referred to the charge made against me of being an abolitionist, and denounced it as a base calumny. In proof of the charge I was told that I had a brother in New York who was a free-soiler. So I had, I replied, and a noble fellow he is--God bless him wherever he may be. But I added, I have another brother who is a slaveholder in Tennessee, and with which one, I asked, in the name of all that is good, were they to place me[?] I wondered if these "honorable" men, who sought by such littleness to defeat me, did not find out whether I did not have some other relatives,--women, perhaps, who believed in things unearthly and spiritual,--whose opinions they could quote to defeat me.. . . I then went on to give my views of our government. . . that slavery was a domestic institution which each State must regulate for itself, without question or interference from others.⁴¹

Though sharply critical of Progressives for failing to take Field at his word, revisionists have portrayed Field as a radical while ignoring his published views on Free Labor. Of course, Field made his declaration in the heat of a political campaign, and it is possible he believed that strong support for the Wilmot Proviso would cost him the votes of Southerners in his district. Recall, however, that Personal Reminiscences is not a contemporary account. Field was sufficiently committed to his 1850 speech to include it in an autobiographical retelling thirty years later. And although his book was subsequently reedited, Field's words, and, presumably, the political sentiments back of them, remained unchanged. 28

III. Free Soil in California

Field's early work on the California Supreme Court, because of proximity in time, could be expected to express most clearly the Free Soil, Jacksonian tendencies ascribed to him. Instead, it reveals a different picture. In Ex parte Newman, ⁴² an early case concerning the validity of California Sabbath legislation, Field did not follow the dictates of Free Labor, which were instead adopted by his colleagues on the bench. In later land dispute cases, he opposed basic Free Soil tenets and was labeled a friend to monopoly by settlers and miners, California's largest free soil constituency. 29

     Ex parte Newman was Field's first significant case, decided by the California Supreme Court less than one year after his election to the bench. The appellant Newman sought habeas corpus relief after being convicted under a law that criminalized certain commercial activity on Sunday. A two-man majority agreed with Newman's view that the 1858 law violated the California Constitution. Field dissented. 30

     The separate opinions by Field's colleagues David Terry and Peter Burnett reveal the strong influence of both free labor and laissez-faire notions. ⁴³ Justice Terry first opined that, even in the absence of coerced Sunday worship, the Sabbath act interfered with the recently enacted California Constitution's establishment of "religious liberty in its largest sense." Terry proceeded, however, to show how the law also violated the economic liberties guaranteed by a section of the California Constitution that declared that "all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness," modeled on the Declaration of Independence's "unalienable rights" clause and on the Fifth Amendment's proscription against denying life, liberty, or property without due process. Terry provided this language with a gloss similar to that later given the Fourteenth Amendment by Justice Field. Crucial to determining the act's constitutionality were the questions whether the legislature could "enforce a compulsory abstinence from lawful and ordinary occupations for a given period of time without some apparent civil necessity," and "whether a pursuit, which is. . . peaceable and lawful. . . for six days in the week, [could] be arbitrarily converted into a penal offense. . . on the seventh." ⁴⁴ 31

     Noting that "men have a natural right to anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others," Terry concluded that the Sunday law was beyond the legislature's lawmaking powers. Terry's insistence on the laborer's right to a vocation was rooted in Free Labor politics. So was his extensive quotation of Senator Richard M. "Tecumseh" Johnson, hero of the War of 1812 and Van Buren's running mate in the presidential election of 1836.⁴⁵ 32

     A committed Jacksonian, "Tecumseh" Johnson had conducted Senate hearings on the Sunday mail issue and published a Report on the Transportation of the Mails on Sunday. ⁴⁶ The Sunday mails question had greatly exercised a number of Jacksonians, from Orestes A. Brownson to Theophilus Fisk, whose fiery rhetoric denouncing "partial legislation" has been cited as an influence on Field's jurisprudence, ⁴⁷ but who in 1830 was attacking Sunday legislation as the work "of a proud and aspiring priesthood, [possessed of] a determination to establish an Ecclesiastical Hierarchy, and to reduce us to a worse than Egyptian bondage." ⁴⁸ As late as 1837, Francis Wayland, the American economist and philosopher whose Elements of Moral Science was assigned reading at Williams College while Stephen Field was a student, expressed an opinion on the Sunday mails. ⁴⁹ 33

     Justice Terry's decision quoted extensively from Johnson's Report, particularly to a section that compared Sunday laws to commercial monopolies and thus blended the twin Jacksonian strains of antimonopolism and anticlericalism: "Extensive religious combinations to effect a political object, were, in the opinion of the [Johnson] [C]ommittee, always dangerous.. . . All religious despotism commences by combination and influence, and when that influence begins to operate upon the political institution of a country, the civil power soon bends under it. . . ." ⁵⁰ 34

     With its comparison between Sunday legislation and economic monopoly, its insistence on the sanctity of the "ordinary and lawful avocation," and its quotation as authority of a popular Jacksonian figure and vice presidential candidate, Terry's opinion clearly displayed the marks of Jacksonian, free labor philosophy. Other portions of the opinion, however, contained rudimentary laissez-faire economic theory. 35

     If laborers toiled on Sundays, it was because they were industrious, and "we have yet to learn that there has ever been any general complaint of an intemperate, vicious, unhealthy, or morbid industry." Whenever the legislature attempts to "fix the days and hours for work," it "leaves its legitimate sphere, and its enactments. . . must be regarded as an invasion, without reason or necessity, of the natural rights of the citizen, which are guaranteed by fundamental law." Workers and businessmen must be let alone to arrive at their own bargains. To the argument that the legislature was permitted "to judge of the necessity and character of all police rules," Terry answered, mixing free labor "avocationism" and laissez-faire noninterference principles, that "[i]f they possess this power, it is without limit, and may extend to the prohibition of all occupations at all times." Terry struck down the Sabbath law because "it infringes upon the liberty of the citizen, by restraining his right to acquire property." Field in his Slaughter-House dissent would employ nearly the same arguments, which revisionists have labeled "[t]he fundamental theorem of Field's government-business jurisprudence" and a pillar of "Jacksonian, radical antislavery." ⁵¹ It is at least ironic that Field opposed the Wilmot Proviso and that Terry was enthusiastically proslavery. 36

     Field's dissent in Ex parte Newman, exhaustively analyzed by Progressive historians, ⁵² has failed to elicit notice in revisionist work. The disappearance of Field's dissent may be due to the way in which it reveals the inherent ambiguity in historians' use of terms like "Free Labor," "Free Soil," and "laissez-faire," exposing disagreements between Field and his contemporaries about what these ideas meant and how they were to be practically applied. For Progressives, Field's liberal dissent in Newman signaled that some later, intervening event had caused a profound change in his political philosophy. ⁵³ For the purposes of this article, it is sufficient to see how Field's text confounds unidimensional, or strictly causal, historical explanations for what is an often contradictory jurisprudence. 37

     Field began his dissent by worrying over the court's lack of judicial restraint in striking down the Sunday law. "[T]he opinions of my associates," he wrote, "appear to me to. . . adopt a construction of constitutional provisions, which must deprive the Legislature of all control over a great variety of subjects, upon which its right to legislate, in the promotion of the public weal, has never been doubted." Field ignored entirely the Jacksonian strain of anticlericalism represented by "Tecumseh" Johnson and confessed himself "unable to perceive" how the commercial activities prohibited by the Sunday law had anything "to do with religious profession or worship." For the remainder of the opinion, he treated the Sabbath law as a labor regulation well within the state's police powers.⁵⁴ 38

     Field replied to the majority's Free Labor and laissez-faire arguments with language that might have been taken directly from the Kearneyite workingmen's movement or, perhaps more surprisingly, from the subsequent writings of Legal Progressives:⁵⁵ 39

It is no answer to the. . . statute to say that mankind will seek cessation from labor by natural influences of self-preservation. The position assumes that all men are independent, and at liberty to work whenever they choose. Whether this be true or not in theory, it is false in fact; it is contradicted by every day's experience.. . . Labor is in a great degree dependent upon capital, and unless the exercise of the power which capital affords is restrained, those who are obliged to labor will not possess the freedom for rest which they would otherwise exercise.. . . It is idle to talk of a man's freedom to rest when his wife and children are looking to his daily labor.. . . The law steps in to restrain the power of capital. Its object is not to protect those who can rest at their pleasure, but to afford rest to those who need it, and. . . could not otherwise obtain it.. . . Authority for the enactment I find in the great object of all government, which is protection. Labor is a necessity imposed by the condition of our race, and to protect labor is the highest office of our laws.

Field continued: 40

That the Legislature possesses the power to legislate for the. . . welfare. . . of society, is not denied.. . . The existence of discretion implies a liability to abuse, but because the discretion of the Legislature may be abused, its acts are not, for that reason, void. It is no argument against the existence of the power. . . that it may be exerted to the prohibition of labor for six days in the week instead of one. There is no single power which may not be so exercised as to become intolerable.. . . It is to be supposed that the members of the Legislature will exercise some wisdom in its acts; if they do not, the remedy is with the people. . . .

     All sorts of restrictions and regulations are placed upon the acquisition and disposition of property.. . . The right to acquire property, like the use of it, must be considered in relation to other rights. It may be regulated for the public good, though thereby the facility of acquisition is lessened.. . . To say that a prohibition of work on Sunday prevents the acquisition of property, is to beg the question.⁵⁶

Field's words are neither those of a laissez-faire zealot hostile to state interference, nor of a radical antimonopolist. They contradict revisionists' contention that Field "never suggested greater indulgence towards class legislation for the poor." ⁵⁷ Neither do they correspond to the ideology of the corporatist Free Labor faction that drew sharp distinctions between wage labor and chattel slavery and resisted legislative action against the former. Field's language in Ex parte Newman is far closer to that of Robert Hale or Oliver Wendell Holmes than it is to that of Herbert Spencer or Theodore Sedgwick. ⁵⁸ It may retain a Jacksonian flavor but only if we accept the more populist definition of Jacksonianism advanced by Progressive historians and rejected by revisionists. ⁵⁹ 41

     The Newman dissent suggests that Field was never conceptually incapable, because of unwavering free labor convictions, of comprehending that coercion could be applied to free laborers and that the state might need to correct the market's failures. Field's later decisions were not labeled conservative or laissez-faire merely because historians, legal scholars, and contemporaries misread what was really his expression of a "doctrinal system [Free Labor, Jacksonianism, radical antimonopolism, etc.]. . . incongruent with the rapidly changing needs of an ever-expanding capitalist society." ⁶⁰ Field was aware of American society's constantly altering conditions and, as Newman demonstrates, his later response to those changes was contingent and willful rather than preordained. 42

     About the same time it handed down its opinion in Newman, the California Supreme Court decided a number of cases involving land disputes with implications for California miners and settlers. This was precisely the group whose interests Free Soil championed. According to the revisionist analysis of Field's jurisprudence, we might expect to find him in sympathy with them. As in Newman, however, Field's opinions in these cases lack the imprint of a doctrinaire free soil ideology, though they do demonstrate a profound awareness of the economic issues involved. ⁶¹ 43

     Biddle Boggs v. Merced Mining Co. ⁶² involved competing claims over mineral rights on a tract of land owned by John C. Frémont, United States senator and Republican presidential candidate. While the Treaty of Guadalupe Hidalgo was pending ratification, Frémont had purchased title to an 1844 Mexican land grant. The grant was known as "floating" because, rather than containing specific boundaries, it allowed its owner to pick out a designated parcel from within a larger area of land. Following the terms of the California Land Act of 1851, Frémont applied to the Land Commission to quiet the title to his property. Frémont's title was eventually validated by the United States Supreme Court in Frémont v. United States. ⁶³ 44

     As part of its ruling in Frémont, the Supreme Court ordered a new survey of Frémont's land. In this new survey, Frémont claimed the most valuable mining land in the region, land already being worked by independent miners as well as the Merced Mining Company. Settlers argued that, notwithstanding the Supreme Court's ruling, traditional mining law should apply to allow those who had discovered and invested in claims to keep their property. Frémont filed suit seeking Merced's eviction through Biddle Boggs, an employee to whom he had leased one of the mines worked by the Merced Mining Company in anticipation of acquiring the property. Merced countered that, although Frémont possessed title to the property at issue, he did not own any mineral rights. A lower court ruled in favor of Frémont, confirming his right to the land and its gold. The California Supreme Court heard the case on appeal. ⁶⁴ 45

     At common law, and barring any contractual reservations, mineral rights were passed in any fee simple sale of land. The same did not hold true under Mexican law, where the state reserved to itself all mineral rights. When it took possession of California, the federal government had agreed to recognize existing land titles in California. Frémont therefore could only possess the same property interests that Mexican law provided, and, under Mexican law, he had no mineral rights whatsoever. Merced maintained that the federal government owned the mineral rights to Frémont's land, just as the Mexican government had owned them before. Since the federal government did not work the mines on Frémont's property but instead encouraged independent settlers to do so, it had in effect transferred title to these settlers.⁶⁵ 46

     The court's opinion was written by Justice Burnett, who said at the outset that Biddle Boggs was "one of the most important [cases] that has ever been considered by this Court, not only in regard to the pecuniary value of the subject in controversy, but in reference to the consequences likely to flow from the decision." The key portion of the decision appeared late in Burnett's opinion, where he discussed the nature of the mineral right that Mexico had reserved in its land titles. In a legal system almost entirely preoccupied with private rights, wrote Burnett, the mineral right was "a public right--a right of property in the nation; and in the language of the Supreme Court of the United States, 'passed with all other public rights, to the United States.'" "[T]he title to the gold," continued Burnett, "was reserved by Mexico, and, passed,. . . to the United States, and has not passed from them to [Frémont]." The remaining issues were whether the federal government, as owner of the mineral rights, was entitled to mine for them on private land, whether the government could employ agents to do its mining, and whether Merced and the independent miners possessed an actual or implied license to act as agents in extracting gold from Frémont's property. The court answered all three questions affirmatively. "The right to the gold carries with it the right to search and dig.. . . The ownership of the mineral would be of no value without the right to extract it." In addition, "[t]he owner of the gold, whether a natural or artificial person, could do that by agent that could be done by principal." Finally, Burnett concluded that the miners "are [on Frémont's land] by the clear license of both [state and federal] governments, and have such a title as will hardly be divested." ⁶⁶ 47

     Burnett's opinion, while bereft of stirring rhetoric, was a model of Free Soil policy. While accepting the U.S. Supreme Court's decision regarding the legitimacy of floating grants, which often left settlers without a remedy when large landholders succeeded in quieting their titles, Burnett nonetheless reasserted the right of independent miners to claims they had discovered and worked. Justice Field dissented without opinion.⁶⁷ 48

     After the court's ruling, Frémont filed a petition for rehearing. Due to Justice Terry's resignation in order to participate in a duel and Burnett's more prosaic electoral defeat, the court's political alignment was altered and a rehearing was granted. ⁶⁸ Field wrote the new Biddle Boggs opinion reversing Burnett's earlier decision. Unlike Burnett, Field did not conclude whether the mineral rights in Frémont's property belonged to the United States, California, or Frémont. Even assuming that the government did have title to the mineral rights in question, Field wrote, independent miners could not acquire a license to mine on public domain absent congressional legislation to that effect. "There is no general license [to mine on public lands] within the legal meaning of that term." Since the Merced company lacked a congressional license, any claims to the mineral rights on Frémont's property might belong to either the state or federal government, which had inherited them from Mexico, or to Frémont directly, if Anglo-American law did not recognize the public law aspect of mineral rights under Mexican law. They could not, however, belong to Merced or any independent miners. Field rejected as "untrue in fact, and unwarranted in law" Burnett's contention that miners acquired an implied license to land through the government's encouragement or forbearance. "If the mineral belong to either [the state or federal] government[s], there must be. . . more specific legislation than any yet resorted to, before the invasion of private property can be permitted in search of it or for its extraction." ⁶⁹ 49

     Merely calling Frémont's claim "private property," however, was logically unsatisfactory. As Field had written only a year earlier: "All sorts of restrictions and regulations are placed upon the acquisition and disposition of property.. . . The right to acquire property, like the use of it, must be considered in relation to other rights.. . . To say that a [legal] prohibition. . . prevents the acquisition of property, is to beg the question." ⁷⁰ Field therefore also attacked the philosophy advocated by miners and put in place by Burnett's earlier Biddle Boggs ruling as economically inefficient: 50

The doctrine of an unlimited general [mining] license--put forth in many instances, and advocated by the defense--is pregnant with the most pernicious consequences. If upheld, it must lead to the spoliation of landed estates.. . . Under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting.⁷¹

The practical impact of Field's ruling was to secure mineral rights for the holders of floating grants--absent specific legislation to the contrary--while placing in doubt settlers' claims to land that might subsequently be found to lie within the boundaries of a floating grant. ⁷² Insofar as it generally benefited large landowners at the expense of settlers and miners, and putting aside its technical merits, Field's Biddle Boggs opinion does not fit comfortably with revisionist characterizations of him as a Free Soil antimonopolist. With its emphasis on providing rational economic incentives for development by individuals with readily available, concentrated capital, the opinion was more Whig than Jacksonian, more utilitarian than populist Free Soil. As Charles McCurdy observed in an article published after his "Justice Field and the Jurisprudence of Government-Business Relations," "Field and his associates believed that it was. . . 'the duty of the Courts to protect private property,' [and therefore] they reserved to themselves the power to review [mining] regulations. . . and to formulate reasonable standards for the allocation of mining 'titles.'" ⁷³ 51

     After his decision in Biddle Boggs and other land cases, ⁷⁴ Field became intolerable to California's working class. Indeed, the strongest Free Soil element in the state, miners and settlers who opposed the floating grants that had been issued before United States acquisition, were early on wary of Field. An 1857 Settlers' Convention that nominated a mostly Republican slate of candidates actively opposed Field's election. When he sought the Democratic presidential nomination in 1884, the party adopted a platform resolution "repudiat[ing] the. . . aspirations of Stephen J. Field, and. . . pledg[ing]. . . to vote for no man as delegate to the national convention. . . who will not. . . pledge himself to use his earnest endeavors to defeat these aspirations." ⁷⁵ Animus against Field sprang in part from his unpopular decisions on Chinese immigration, ⁷⁶ though racism did not motivate populist repudiations of Field at the 1884 convention. When a representative moved to strike the anti-Field amendment from the platform, another responded, referring to Field's decision in County of Santa Clara v. Southern Pacific Rail Road, ⁷⁷ that "[i]f the conscience of Stephen J. Field is so constituted that he believes that the people have no rights, and can form no laws that are binding on the railroads, is that a reason why the people should elect him as their standard-bearer?" The resolution was retained by a vote of 453-19. ⁷⁸ 52

     We can be certain that Field's contemporaries saw him neither as an antislavery ideologue nor as an advocate for free soil and free labor. As I have demonstrated above, Field would have made a curious Free Soil, Free Labor radical: an opponent of the Wilmot Proviso and proponent of slave states' rights, he was nevertheless intellectually capable of seeing the ambiguities inherent in the idea of "free contract." A sometime-supporter of miners' interests, he came to be despised by settlers' groups after authoring decisions favorable to large land interests. It is significant that Field's ambivalence toward Free Labor and Free Soil are observable in his personal opinions and legal decisions before the Civil War, the heyday of those two ideological movements. The fact that Field was no Free Soiler even when Free Soil was cresting makes it especially doubtful that his later Supreme Court opinions can be credited to the movement's influence. 53

IV. Field and Free Labor on the Supreme Court

Field was deeply committed to the conservatism of his era, opposed to state interference with market mechanisms, apprehensive about labor agitation, and willing to convert his beliefs into legal precedent. Speaking about the Supreme Court in 1890, he set the tone for the activist conservatism of the Lochner era: "[T]o retain the respect and confidence conceded in the past, the [C]ourt, while cautiously abstaining from assuming powers granted by the Constitution to other departments of the government, must unhesitatingly. . . enforce. . . the guarantees it contains of the private rights of the citizen, both of persons and of property." Of the theories that supported this judicial vision, Field declared: "Where property is insecure, the rights of persons are unsafe. Protection to one goes with protection to the other; and there can be neither prosperity nor progress where either is uncertain." ⁷⁹ As early as his dissent in Slaughter-House, he set about investing property rights with institutional protections. 54

     Slaughter-House arose out of an attempt by Louisiana legislators to regulate the state's butchering industry following the Civil War. In 1869, Louisiana passed an act incorporating the Crescent City Live-Stock Landing and Slaughterhouse Company, a corporation that was to build a central slaughterhouse sufficient to accommodate five hundred animals. In exchange, the corporation would receive a fee for each animal it housed in preparation for slaughter. Once the entire system had been put into operation, independent abattoirs in New Orleans or environs were to cease operations. The actual butchering of animals, however, would not be conducted by the Crescent City Company, which was required to throw open its doors to the public. In fact, the company risked a substantial fine each time it illegally restricted an animal's slaughter. Thus, the Louisiana slaughtering statute was not meant to outlaw independent butchering altogether, but merely to ensure that butchers plied their trade in one location, that could more readily be made subject to health inspection and regulation. ⁸⁰ 55

     To be sure, the Crescent City slaughterhouse created significant dislocation, and many butchers would have found it inconvenient to change their businesses' location. Some surely would have been put out of work. Most scholars to have examined The Slaughter-House Cases have therefore tended, like Field in his dissenting opinion, to view the entire operation as a contrivance intended to mask the corrupt machinations of Reconstruction-era lawmakers. ⁸¹ Carl Brent Swisher said of the case that "[t]he [Louisiana] 'carpet-bag' legislature of 1869, apparently from corrupt motives. . . passed an act to regulate the slaughtering business in New Orleans." ⁸² Charles McCurdy, who disagreed with most of Swisher's conclusions, nonetheless concurred with his view of Slaughter-House that "New Orleans commercial interests ultimately succeeded in procuring the exclusive grant. . . by 'corrupting and improperly influencing members of the state legislature.'" ⁸³ Though it remains unclear to what degree the slaughterhouse act was the product of official corruption, a centralized slaughterhouse in 1860s Louisiana certainly made eminent sense as a health measure. ⁸⁴ 56

     Writing for the majority, Justice Miller understood the slaughterhouse act as a sanitary enactment and upheld its constitutionality. Crucially, however, he did not deny that the act created a monopoly in the Crescent City Company. "It is true," Miller admitted, "that [the slaughterhouse act] grants, for a period of twenty-five years, exclusive privileges." It might even be true, continued Miller, that these "privileges are at the expense of the community in the sense of a curtailment of. . . their fundamental rights, or even in the sense of doing them an injury." It was difficult to see, however, how the slaughterhouse act could, "with the duties and guards imposed upon the company,. . . be said to destroy the business of the butcher, or seriously interfere with its pursuit." The act was an exercise of Louisiana's police powers and, as such, within "the perfect right of the legislature."⁸⁵ 57

     It was "much easier to perceive and realize the existence and sources of" a state's power to regulate the health, safety, and morals of its population--its police power--than it was to "mark its boundaries, or proscribe limits to its exercise." What policies could be fit under the umbrella of "health, safety, and morals," in other words, was a murky question. Given the broad spectrum of legislation that had been passed in reliance on the police power throughout American history, it was best to provide legislators ample latitude in their statutory designs. If the state had the right to effect a given policy objective, then it had the corollary power to bring about that objective through a wide array of means. "Unless. . . it can be maintained that the exclusive privilege granted by this charter to the corporation is beyond the power of the legislature of Louisiana, there can be no just exception to the validity of the statute." The remainder of Miller's opinion was devoted to refuting the argument made by John A. Campbell, former Supreme Court justice and attorney for the independent butchers, that the Reconstruction Amendments were meant to protect citizens engaged in "lawful trades" from regulatory intrusion. Miller concluded that the amendments had been passed not to secure a form of economic liberty but to remedy the "gross injustice and hardship against" former slaves.⁸⁶ 58

     It should be noted that Justice Miller never explicitly agreed with the policy underlying the slaughterhouse act or the means that Louisiana had chosen to achieve its goals. "The wisdom of the monopoly granted by the legislature," he wrote, "may be open to question." Miller did not even bother to rebut Field's argument that the statute deprived butchers of their livelihood, other than to state that it did not. Miller was simply unprepared to draw the line beyond which a legislative act would be unconstitutional as sharply as Field was. That the slaughterhouse might be called monopolistic was irrelevant. "[T]he legislative bodies of this country, have from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges--privileges denied to other citizens--privileges which come under any just definition of the word monopoly. . . ."⁸⁷ Given a different fact pattern, Miller might have struck down the act. The particular facts of the slaughterhouse "monopoly," however, did not justify this extreme step. 59

     Field's dissent in Slaughter-House was lengthy, innovative, and scathing. Revisionists have rightly identified free labor ideology as one ingredient in the decision, ⁸⁸ but have too comfortably separated Free Labor from its ideological corollary, laissez-faire. Field repeated his outrage at Louisiana's slaughterhouse monopoly so often in his opinion, though, that it is little wonder the case has taken center stage in revisionist analyses. 60

     Progressive historians, by contrast, seemed bewildered by Slaughter-House. Swisher mentioned the case only toward the end of his biography of Field, focusing on the dissent's natural law language and opining that after Slaughter-House, "[t]he Supreme Court. . . was to have the final word in the definition of the boundaries of the inalienable gifts of God." ⁸⁹ Considering that Field wrote in dissent, this was an overstatement, though Swisher correctly understood that Slaughter-House aimed beyond the issue of the Crescent City Company's monopoly and toward greater protection for property rights. In Robert McCloskey's view, Slaughter-House was a trial run for Field's later opinions, where he could more clearly "see the possibilities of the due process clause" for enshrining "substantive protection for economic liberty into the Constitution." ⁹⁰ Though he neglected to account for the connections between free labor thinking and laissez-faire, McCloskey's analysis of Slaughter-House was in most respects accurate. 61

     Field conceded that the slaughterhouse act had provisions "which can properly be called police regulations." The act as a whole, however, was a "mere grant to a corporation. . . of special and exclusive privileges by which the health of the city is no way promoted." The Court should ignore those portions of the act directed at sanitary improvements and focus instead on its monopolistic aspects. "[I]t is only the special and exclusive privileges conferred by the act that this court has to consider in the cases before it." Field did not deny that the state could seize private property under its powers of eminent domain so long as it provided compensation. Property, however, had more than physical elements. The opportunity to exercise a trade was itself a form of property, and, if left unchecked by the courts, the state by extensive regulation could "seize" it. State regulation might then come to impact "any of the pursuits of human industry, even in its most simple and common forms" and there would be "no monopoly, in the most odious form, which [might] not be upheld." Field thus indicated that the decision in Slaughter-House would have implications stretching beyond the facts at hand and present issues "of the gravest importance, not merely to the parties here, but to the whole country." ⁹¹ 62

     Field intimated that the slaughterhouse decision was but the first step in a seizure of power by government elites with monarchical pretensions. He reminded the Court's majority of the nation's free labor principles, embodied in the Reconstruction Amendments: "[T]he right to acquire and possess property of every kind, and to pursue and obtain happiness and safety. . . are those which of right belong to the citizens of all free governments." To place unequal restrictions on these prerogatives was to remove from Americans "the right to pursue a lawful employment in a lawful manner," thereby threatening the proudest legacy of Anglo-American jurisprudence.⁹² 63

     Focusing on the dissent's free labor and antimonopolist discourse, it is tempting to conclude, as revisionists do, that Field's politics have been misinterpreted. By the 1870s, though, Free Labor had imbibed a powerful dose of laissez-faire. Whatever Free Labor had meant before slavery's abolition, and it is clear that Field in the antebellum period was at best a lukewarm supporter of the doctrine, it had come to stand for something other than the rejection of chattel slavery. This "something else" was the conviction that businesses and individual workers should be allowed to reach their own economic bargains, without government interference. Thus, Field finished his opinion with a classic iteration of free labor principles: "[I]t is to me a matter of profound regret that [the statute's] validity is recognized by a majority of this court, for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated." Directly following the statement, however, was a footnote wherein Field explained what he meant by "free labor": 64

"The property which every man has in his own labor," says Adam Smith, "as it is the original foundation of all other property, so it is the most sacred and inviolable.. . . [T]o hinder him from employing this strength and dexterity in what matter he sees proper. . . is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper." (Smith's Wealth of Nations, b.1, ch. 10, part 2.) ⁹³

Not only was Field quoting Adam Smith, he was using Wealth of Nations to define Free Labor. This was not the Free Soil, Free Labor movement of America's idealized Western frontier, each man striking out on his own parcel of land to become his own boss. Field's view of Free Soil, Free Labor had become that of an employee contracting with his employer, just the sort of arrangement that a true radical like Orestes Brownson would have termed "wage slavery." ⁹⁴ Free labor, to Field, had become something more like "free contract." While Revisionism, then, has adroitly observed that Field borrowed freely from Free Labor rhetoric, that rhetoric was intimately interlaced with economic theories of liberty of contract and governmental noninterference. 65

     Revisionists have also tended to downplay the conflict between the majority and dissenting Slaughter-House opinions. "[E]ven among the tentative Slaughterhouse majority," Howard Gillman has written, "there was agreement that the [F]ourteenth [A]mendment imposed some limitations on state government." Despite some dispute about where to draw the line beyond which a statute would be declared unconstitutional for encroaching on fundamental market liberties, the judges of Field's era agreed that such encroachment could only be justified if it "furthered the well-being of the community as a whole." Harmony on the Court was echoed in the academy where, Gillman reports, "James Bradley Thayer told his students at Harvard Law School that [Field's] opinion was a sounder construction of the [F]ourteenth [A]mendment than the one offered by the majority." ⁹⁵ 66

     Where to draw the constitutional line was indeed the point of contention between Field and his colleagues in the majority, but the differences between them were significant. Whether the police power was to be given a broad interpretation, as Miller argued, or was to be honored more in its breach than in its observance, as Field suggested, was crucial to determining whether the Court would adopt a more or less activist response to the reform legislation of the coming decades. Field, after all, did not argue that states were forbidden to regulate industry altogether but that they should not infringe unreasonably on the "sacred right of labor." What constituted "unreasonableness" was, therefore, as vital a query in 1873, when Slaughter-House was decided, as it would be in 1905, when Lochner was handed down. 67

     Neither was academic commentary on Field's construction of the Fourteenth Amendment as positive as revisionists have made out. Thayer's students at Harvard Law School, in particular, appear to have been napping during his lectures on the merits of Field's dissent. An essay appearing in the second volume of the Harvard Law Review stated flatly that the Reconstruction Amendments were intended to apply only to freed slaves. Of the Fourteenth Amendment's life, liberty, or property clause, the author wrote that "[w]ith regard to property, 'deprive' is construed to mean an actual taking of the property right." "The State," he continued, "may regulate the use of property, and not come within the prohibition." A footnote referenced "cases where the police power has been exercised, even to the extent of practically depriving the owner of all, or nearly all, the benefits of ownership." ⁹⁶ 68

     Two years later, the Harvard Law Review published another essay critical of laissez-faire constructions of the Fourteenth Amendment. It began with a warning against the recent "tendency to regard constitutional prohibitions as a panacea for moral and political evils, [and] to look upon courts of law. . . as the only real protectors of individual rights." This popular view created the "danger of loose and unhistorical constitutional interpretation." Field's dissent was mentioned only in back-handed fashion, since "[t]he idea that one's labor is one's property is rather economic than legal, and indeed in another case a passage from Adam Smith's 'Wealth of Nations' is the authority cited." ⁹⁷ 69

     The essay concluded that "the tendency to give the [Fourteenth Amendment] a broad interpretation, and at least to include within the term 'liberty' the right to follow any lawful calling[]. . . seems. . . to have little real foundation either in history or principle." The student-written piece was recognized as the best essay by a member of that year's graduating class and awarded a prize by the Harvard Law School Association.⁹⁸ 70

     Four years after Slaughter-House, Field's putative aversion to monopoly was entirely missing in Pensacola Telegraph Co. v. Western Union Telegraph Co. ⁹⁹ The case involved Florida's granting of an absolute monopoly in electric telegraph lines, extending over two counties, to Pensacola Telegraph. An 1866 federal law, however, opened up the public domain to telegraph companies. Pensacola Telegraph sued to enjoin a competitor's attempt to erect a new line pursuant to the law. The suit was dismissed by a lower court, and appeal was taken to the Supreme Court. 71

     Speaking through Chief Justice Waite, the Court saw the case as principally implicating the Commerce Clause. Waite wrote that "[i]t is unnecessary to decide [whether Pensacola Telegraph's monopoly would be constitutional] if Congress had not acted upon the. . . subject, for it has acted." "The [Congressional] statute. . . amounts to a prohibition of all State monopolies," continued Waite. Accordingly, the monopolistic charter granted Pensacola Telegraph was unenforceable.¹⁰⁰ 72

     Field dissented from the Court's judgment in an opinion at odds with his views in Slaughter-House. Field would have allowed Pensacola Telegraph to enforce its charter, notwithstanding his previous attacks on "odious monopoly." "There can be no serious question," he wrote, "that. . . Florida possessed the absolute right to confer upon a corporation created by it the exclusive privilege for a limited period.. . . The exclusiveness of a privilege often constitutes the only inducement for undertakings holding out little prospects of immediate returns." Field echoed Justice Miller's argument in Slaughter-House that if a state had the power to regulate, it had the power to regulate using monopolies. "The power to grant," wrote Field, "implies a power to confer all the authority necessary to make a grant effectual." ¹⁰¹ 73

     Field also took a position adverse to the "public trust" doctrine that Charles McCurdy has identified as among the most consistent elements of his jurisprudence, proof that "[i]n [Field's] version of the American system, there was room for neither corruption and special privilege nor a self-denying spirit of largesse on the part of government." ¹⁰² Thus, Field in Illinois Central Railroad Co. v. Illinois ¹⁰³ would argue that the Illinois legislature's monopoly grant to a railroad was invalid as against future legislatures. But in Pensacola Telegraph, Field opined that, having once granted a monopoly to Pensacola Telegraph, Florida could not later permit the erection of competing lines without violating its contractual obligations. ¹⁰⁴ Grants of exclusive privilege, wrote Field, "so far from being deemed encroachments upon any rights or powers of the United States, are held to constitute contracts, and to be within the protecting clause of the Constitution prohibiting any impairing of their obligation." ¹⁰⁵ 74

     In this case, Field believed that the state's policy was preferable to that established by the federal government. He would have held that in order for "a country of such vast dimensions as ours. . . to be kept together," the "protection and enforcement of private rights of both persons and property" must be "left chiefly with the States."¹⁰⁶ In other cases, however, the "protection and enforcement of private rights of both persons and property" might mandate federal limitations on state regulation. 75

     By the time he authored his opinion in Pollock v. Farmers' Loan & Trust Co., ¹⁰⁷ in both its original incarnation and on rehearing, ¹⁰⁸ whatever "pure" Free Labor elements remained in Field's jurisprudence had melded imperceptibly with laissez-faire principles. In fact, many of the factors that had produced Free Labor philosophy had ceased to have any relevance to life in the United States. Slavery was no longer an issue, westward expansion had ceased, and the notion of a freeholder republic was already an anachronism. The nation was becoming preoccupied with a host of problems different from those that had animated Americans at mid-century, and Field had likely become more conservative and more alarmed by political radicalism. Pollock has received relatively little attention from revisionist historians. ¹⁰⁹ 76

     Suit was brought on behalf of stockholders of the Farmers' Loan and Trust Company, who sought to enjoin the company from complying with a federal income tax. Passed in 1894, the law taxed the company at two percent of its profits and mandated a similar tax for the income in excess of $4,000 of all minors and others for whom Farmers' Loan was acting in a fiduciary capacity. The case was dismissed by a lower court and appeal was taken by the Supreme Court. The Court reversed, ruling certain aspects of the tax unconstitutional. Then, after a petition for rehearing was granted, a sharply divided Court issued an even stronger opinion, vacating its earlier decision and wholly overruling the tax. 77

     Chief Justice Fuller's first opinion for the majority concentrated on original intent. He maintained that the Framers had understood the difference between direct and indirect taxation and that, in their view, the federal tax at issue would have required direct apportionment. He noted somewhat cryptically that many of the Constitution's authors were familiar with Adam Smith's Wealth of Nations. Fuller recognized the existence of precedent running counter to the majority's decision but expressed the view that "as this court is clothed with the power. . . to maintain the fundamental law of the Constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in principle might supervene." ¹¹⁰ 78

     Fuller's opinion was bereft of the antimonopolist rhetoric that characterized many of Field's opinions. In fact, Fuller recognized that if Congress ultimately took up the challenge of direct apportionment, the holding in Pollock would create inequalities greater than those established by the tax scheme before the Court. "[T]his inequality," however, "must be held to have been contemplated [by the Founders], and was manifestly designed to. . . prevent an attack upon accumulated property by mere force of numbers." ¹¹¹ Clearly, the Constitution could not be said to protect against partial legislation if inequality had been directly written into its text. 79

     Fuller's concern was not to maintain consistent impartiality on both sides of the regulatory continuum, but to ensure that taxation was kept to a minimum and that "accumulated property" was safe from attack by "mere force of numbers." Similarly, Fuller observed on rehearing that, with what remained of the act, "by far the largest part of the anticipated revenue would be eliminated, and this would leave the burden of the tax to be borne by professions, trades, employments, or vocations." Fuller then struck down the law in its entirety, but not because such an arrangement would unfairly burden the "fruits of labor" or the "right to a vocation." The chief justice concluded only that the Court could not "believe that such was the intention of Congress."¹¹² 80

     Field began by registering his view that the tax law violated the "rule of uniformity[,] which is prescribed in such cases by the Constitution."¹¹³ It is in the portion of Field's opinion dealing with the rule of uniformity that we may observe how closely in his mind free labor had come to laissez-faire economics and political conservatism. 81

     Field saw the uniformity requirement as assuring that "the tax levied cannot be one sum upon an article at one place, and a different sum upon the same article at another place." "If," continued Field, "one kind of wine or grain or produce has a certain duty laid upon it. . . in New York, it must have a like duty. . . when imported at Charleston or San Francisco." The same was true for a federal tax imposed on a particular kind of business, which had to be uniformly applied to similar businesses across the United States. Field admitted that uniformity "would be satisfied if the same duty were laid in all the states, however variant it might be in different places in the same state," but complained that this approach would defeat "equality, which is an essential element of the uniformity." 82

     The unconstitutionality of the tax law was further aggravated by the exemptions it contained. It was essential that "[w]here property is exempt from taxation, the exemption. . . must be supported by some consideration that the public, and not private, interests will be advanced." "Private corporations and private enterprises cannot be aided under the pretense that it is the exercise of the discretion of the legislature to exempt them." Quoting Thomas Cooley, Field attacked the "capricious legislative favor" that produced "favoritism [that] could make no pretense to equality."¹¹⁴ 83

     It requires some imagination, however, to believe that Field fetishized abstract legislative neutrality while remaining oblivious to the practical import of his ruling. His chief objection to the tax law, after all, was not that it operated to give wealthy shareholders a benefit at the expense of laborers, or that it took from the poor to give to the rich. When Field warned that "class legislation" led "inevitably to oppression and abuses, and to general unrest and disturbance in society," his fear was of violent civil disturbance by the poor, not of backroom dealing by the rich. By the 1890s, "class legislation" and "discriminating taxation," whatever those terms might have meant in the 1850s, referred to legislation in favor of the working class. This was a fact that Field understood perfectly. The law "discriminates between those who receive an income of $4,000 and those who do not," he wrote.¹¹⁵ In an oft-quoted passage, Field continued: 84

The present assault upon capital is but the beginning. It will be but the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich,--a war growing constantly in intensity and bitterness. "If the court sanctions the power of discriminating taxation. . . it will mark the hour when the sure decadence of our present government will commence."¹¹⁶

Field opposed the tax law not because it was procedurally unfair but because it was redistributive. 85

     Before the second Pollock opinion had been handed down, Field corresponded with the popular laissez-faire economist, David Ames Wells. ¹¹⁷ Field complimented Wells for his recently published essay critical of the tax act and told him that he aimed to share the piece with Chief Justice Fuller. He also praised the argument made by Joseph Choate, the plaintiffs' attorney in Pollock. "[It] was particularly fine and forcible, and did not have a pin upon which a socialist could hang a point." ¹¹⁸ 86

     Field wrote Wells again three days after the Pollock decision had been announced. He reiterated his praise for Wells's article, particularly for the manner in which it "met the only persistent position which I have heard in favor of an income tax, that is, that it is one of the most equitable, certain and least exceptional forms of taxation." Despite the equity inherent in the tax scheme, said Field, it amounted to bad public policy because it "falls the heaviest on the most conscientious, and should be reserved as an extraordinary exercise for national emergencies." Field agreed with Gladstone that an income tax "does more than any other tax to demoralize and corrupt the people." ¹¹⁹ 87

     Field's objections to the federal tax in Pollock, at least as they appear in his private correspondence with Wells the laissez-faire economist, are at odds with his newfound reputation as a Jacksonian antimonopolist. Field discounted the view that the income tax was "the most equitable" form of taxation, even though he ostensibly agreed with it, because he believed the tax would create economic disincentives. Absolute impartiality, therefore, could not have been Field's object. As in earlier cases, the question in Pollock was where and how to draw a line of constitutionality. Justice Field was prepared to draw that line narrowly and against what he viewed as the unwise designs of socialistic legislators. 88

V. Conclusion

This article has aimed to examine the assumptions underlying revisionists' new understanding of Stephen Field's jurisprudence as rooted in radical free labor ideology. We have seen that Field was never a Free Labor radical and that, in his early decisions on the California Supreme Court, he was notably hostile to Free Soil as well. Later, while serving on the United States Supreme Court, Field's opinions revealed traces of free labor concepts. But by this point in American history, Free Labor and laissez-faire had been grafted. When the Court decided cases involving regulatory issues and the proper role of government in shaping the marketplace, therefore, it was debating economics as much as political and constitutional theory. To suppose otherwise is to imagine, paraphrasing Field on the Fourteenth Amendment, that the Court's decisions were vain and idle and most unnecessarily excited the people on their conclusion.¹²⁰ 89

     Field's concern was not maintaining equality on both sides of the regulatory continuum or hewing to the imagined dictates of a political ideology that had seen its heyday before the Civil War and that he, in any case, never adhered to. Instead, in 1895 Field was insisting that a halt be put to the "present assault upon capital."¹²¹ 90

     The degree to which the Progressive critique of Field surpasses the revisionist understanding of him, in terms both of historical accuracy and conceptual richness, seems to me a matter open to debate. Radical democracy, Jacksonianism, Free Soil and Free Labor, however, cannot account for Field's willingness to set the Supreme Court's judgment against that of federal and state legislatures. Put plainly, Field was never sufficiently committed to any of these ideologies for them to have blinded him to the great questions of late nineteenth-century industrial life. 91

Manuel Francisco Cachán is an associate at Munger, Tolles, and Olson in Los Angeles. He wishes to thank his referees for their insightful criticism. He wishes also to thank Charles McCurdy of the University of Virginia, Morton Horwitz, and Todd Rakoff of Harvard Law School and the Honorable Arthur L. Alarcón, Senior Circuit Judge for the United States Court of Appeals for the Ninth Circuit.

Notes

¹ See, for example, Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915); Adkins v. Children's Hospital, 261 U.S. 525 (1923); Murphy v. Sardell, 269 U.S. 530 (1925); Adams v. Tanner, 244 U.S. 590 (1917); New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).
² Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). 3. See Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bench and Bar, 1887-1985 (Ithaca: Cornell University Press, 1960), 159-84; Robert Green McCloskey, American Conservatism in the Age of Enterprise, 1865-1910 (Cambridge: Harvard University Press, 1951), 104-16; Clyde E. Jacobs, Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon Upon American Constitutional Law (Berkeley: University of California Press, 1954), 23-63; Benjamin R. Twiss, Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (Princeton: Princeton University Press, 1942), 42-62, 141-73; Edward S. Corwin, "The Doctrine of Due Process of Law Before the Civil War," Harvard Law Review 24 (1911): 366-85, 460-79.
⁴ The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 83-126 (1873).
⁵ Munn v. Illinois, 94 U.S. 113, 136-54 (1877); Chicago, Burlington & Quincy R.R. Co. v. Iowa, 94 U.S. 155 (1876); Peik v. Chicago & N.W. Ry. Co., 94 U.S. 164 (1876); Chicago, Milwaukee & St. Paul R.R. Co. v. Ackley, 94 U.S. 179 (1876); Winona & St. Peter R.R. Co. v. Blake, 94 U.S. 180 (1876); Stone v. Wisconsin, 94 U.S. 181, 183-87 (1876).
⁶ Twiss, Lawyers and the Constitution, 3-17.
⁷ Michael Les Benedict, "Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 (1985): 293, 331. Benedict cites to the Minnesota Rate Cases (Stone v. Farmer's Loan & Trust, 116 U.S. 307 [1886]; Chicago, Milwaukee, and St. Paul Ry. Co. v. Minnesota, 134 U.S. 418 [1890]), Smyth v. Ames, 169 U.S. 466 (1898), and Allgeyer v. Louisiana, 165 U.S. 578 (1897). 8. Benedict, "Laissez-Faire and Liberty," 293. This is a common characterization of Progressive legal history. Owen Fiss, for example, has written that Progressives built "a scholarly tradition that treats all the talk of liberty by the Fuller Court as mere camouflage or subterfuge." Fiss, Troubled Beginnings of the Modern State, 1888-1910, vol. 8 of History of the Supreme Court of the United States (New York: Macmillan, 1993), 12-13. Howard Gillman writes that Progressives "character[ized]. . . the Court's jurisprudence as essentially unprincipled or rooted in extraconstitutional policy preferences for laissez-faire economics." Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993), 4. Charles W. McCurdy has stated that "historians have relentlessly marched to the conclusion that [Justice Stephen] Field was a mere handmaiden for 'business needs.'" McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897," Journal of American History 61 (1975): 972.
⁹ Morris Raphael Cohen, American Thought, ed. Felix S. Cohen (New York: Collier Books, 1962), 191. A very few Progressives fit more comfortably into the revisionist stereotype. See Jerome Frank, Law and the Modern Mind (New York: Brentano's, 1931).
¹⁰ See, for example, William B. Lockhart et al., Constitutional Law: Cases-Comments-Questions, 8th ed. (St. Paul, Minn.: West Publishing, 1996), 315-31; Erwin Chemerinsky, Constitutional Law: Principles and Policies (New York: Aspen Law and Business, 1997), 477-86; John E. Nowak and Ronald D. Rotunda, Nowak and Rotunda's Hornbook on Constitutional Law, 4th ed. (St. Paul, Minn.: West Publishing, 1991), 356-62. For casebooks that question the accuracy of the Progressive view, see Laurence H. Tribe, American Constitutional Law, 3d ed. (New York: Foundation Press, 2000), 1332-52, 1348, n. 7; Jerome A. Barron et al., Constitutional Law: Principles and Policy, 4th ed. (Charlottesville, Va.: Michie Co., 1992), 381-89; Douglas W. Kmiec and Stephen B. Presser, The American Constitutional Order: History, Cases, and Philosophy (Cincinnati, Ohio: Anderson Publishing, 1998), 1090-127.
¹¹ In a lengthy and critically minded introduction to The Constitution Besieged, Howard Gillman grapples with the principle implicit in characterizing Field's jurisprudence as consistent with precedent: namely, that Realism's critical strand, questioning law's determinacy, must necessarily also be rejected. Gillman appears troubled by revisionism's rejection of the Realist critique. He resolves the dilemma by positing that law is capable of a weak determinism, or that "a particular interpretive community comes to treat (ostensibly indeterminate) texts and principles as meaningful and directive" at a level abstract enough that ideas resident in those texts become "meaningful for participants." Put another way, general principles can decide concrete cases at least some of the time and in the minds of some "interpretive communities." Gillman, Constitution Besieged, 1-18. Gillman's solution is, to my mind, useful in revealing the conceptual core of revisionism. The Realists maintained not that judges were insincere in their belief in a deterministic legal science but that, fundamentally, a geometrical jurisprudence revealing neutral first principles was impossible to achieve. See Edward A. Purcell, The Crisis of Democratic Theory (Lexington: University Press of Kentucky, 1973), 47-94.
¹² For a more textured picture of the interplay between Jacksonianism, political economy, and Gilded Age constitutionalism, see Herbert Hovenkamp, Enterprise and American Law (Cambridge, Mass.: Harvard University Press, 1991), 67-101.
¹³ Of course, the revisionist critique has not gone entirely unchallenged. Paul Kens has recently argued that Justice Field's jurisprudence displayed elements both of radical free soil ideology and laissez-faire corporatism. Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997). This article is intended to complement Kens's work. It also aspires to question, more pointedly than previous scholars have, whether Field was a free laborite or free soiler at all and to suggest that what revisionism has labeled "Free Soil, Free Labor" is difficult to distinguish from laissez-faire in Field's jurisprudence.
¹⁴ Twiss, Lawyers and the Constitution, 20-41; Jacobs, Law Writers and the Courts, 27-32; Sidney Fine, Laissez Faire and the General-Welfare State (Ann Arbor: University of Michigan Press, 1956), 140-44.
¹⁵ Alan Jones, "Thomas M. Cooley and 'Laissez-Faire Constitutionalism': A Reconsideration," Journal of American History 53 (1967): 751-52, 762; Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, 1868). 16. Jones, "Thomas M. Cooley and 'Laissez-Faire Constitutionalism,'" 755, 762. Jones pointed out that Cooley strenuously opposed railroad lawyers' claim that the Interstate Commerce Commission's setting of rail rates violated due process. See Flint & Fentonville Plank Road Co. v. Woodhull, 25 Mich. 99 (1872); Michigan v. Iron Cliffs Co., 54 Mich. 361 (1884).
¹⁷ Benedict, "Laissez-Faire and Liberty," 293, 296.
¹⁸ Ibid., 296, quoting R. G. Collingwood, The Idea of History (Oxford: Clarendon Press, 1946), 218-19.
¹⁹ Benedict, "Laissez-Faire and Liberty," 296, 313-26.
²⁰ McCurdy, "Jurisprudence of Government-Business Relations," 970, 973. "Final solutions" is McCurdy's phrase. Much of my article is a rebuttal of "Jurisprudence of Government-Business Relations," primarily because the piece is so often cited by scholars who accept the revisionist argument. McCurdy, however, has written numerous articles on Justice Field in the course of his career. In more recent work, McCurdy has been less sanguine about calling "Jacksonian libertarianism" the exclusive fount for Justice Field's judicial philosophy. He has argued, for example, that in early California land law cases, Field most often adopted a legal rule intended to maximize economic efficiency. Charles W. McCurdy, "Stephen J. Field and Public Land Law Development in California, 1850-1866: A Case Study of Judicial Resource Allocation in Nineteenth-Century America," Law and Society Review 10, no. 1 (Fall 1975): 235-66. Many of the points elaborated in my essay have already been suggested by his later scholarship. See McCurdy, "The 'Liberty of Contract' Regime in American Law," in The State and Freedom of Contract, ed. Harry N. Scheiber (Stanford: Stanford University Press, 1998), 161; idem, "Prelude to Civil War: A Snapshot of the California Supreme Court at Work in 1858," in The California Supreme Court Historical Society Yearbook 1 (1994): 3; idem, "Stephen J. Field and the American Judicial Tradition," in The Fields and the Law, Philip J. Bergan, Owen M. Fiss, and Charles W. McCurdy (San Francisco: United States District Court for the Northern District of California Historical Society, 1986), 5; idem, "The Knight Sugar Decision of 1895 and The Modernization of American Corporation Law, 1869-1903," Business History Review 53 (1979): 304-42.
²¹ 80 U.S. (13 Wall.) 166 (1871).
²² McCurdy, "Jurisprudence of Government-Business Relations," 976-78, quoting Dent v. West Virginia, 129 U.S. 114, 121 (1889).
²³ For an example of the influence of "Jurisprudence of Government-Business Relations," see Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, 2d ed. (New York: Oxford University Press, 1995), xxxvii. Foner cites McCurdy, among others, for the proposition that Field's dissent in Slaughter-House was principally motivated by free labor ideology. In a book published in 1988, however, before the new introductory essay was appended to Free Soil, Free Labor, Free Men, Foner wrote:[Field had] become convinced by the Grange, Paris Commune, and other "class" movements, that the federal government must exercise some restraints on unwise action by the states. His argument in Slaughterhouse blazed a trail toward the judicial conservatism of the 1880s and 1890s, when the federal courts became a refuge for those seeking to protect property rights against local restrictions on economic enterprise.Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper and Row, 1988), 530. See also Fiss, Troubled Beginnings, 3-21; Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, Belknap Press, 1991), 41-44, 81-104; William E. Nelson, "The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America," Harvard Law Review 87 (1974): 513, 551-52.
²⁴ Gillman, Constitution Besieged, 19-45, 74, 86-99. The quote is at ibid., 28. Gillman appears uneasy about being lumped in with some revisionist scholars, whom he calls "conservative polemicists." Nonetheless, he agrees that "the judiciary during the Lochner era was being faithful to a well-established constitutional tradition." Ibid., 12. Gillman later writes that "[m]arket freedom, or 'liberty of contract,' was linked inextricably with the [early American] commitment to faction-free legislation." Ibid., 114.
²⁵ Fiss, Troubled Beginnings, 389, 392. For general background, see ibid., 3-21, 389-95.
²⁶ For an incisive critique of the "inevitability" of the triumph of corporate capitalism in the twentieth century, see William E. Forbath, "The Ambiguities of Free Labor: Labor and Law in the Gilded Age," Wisconsin Law Review (1985): 767-817.
²⁷ It is as if Field were from Mars and the Progressives were from Venus. The problem here is that at least early Progressives (theorists like Corwin or historians like Swisher) were not that far removed, in time or core ideological influences, from the subjects of their study. The burden of historical proof, therefore, should be heavy to prove that late nineteenth-century conservative jurists were fundamentally incomprehensible to Progressives. Of course, the most succinct summary of the Progressive critique of laissez-faire constitutionalism occurs in Holmes's Lochner dissent. At least one revisionist scholar solves the problem by claiming that Holmes did not know what he was talking about. Gillman, Constitution Besieged, 131. Michael Les Benedict, though not quite as explicit as Gillman, has suggested the same. Benedict, "Laissez-Faire and Liberty," 305.
²⁸ Jones, "Thomas M. Cooley and 'Laissez-Faire Constitutionalism,'" 752. The emphasis is mine.
²⁹ See, for example, Gillman, Constitution Besieged, 66; Benedict, "Laissez-Faire and Liberty," 319.
³⁰ Munn v. Illinois, 94 U.S. at 136.
³¹ See Foner, Free Soil, Free Labor, Free Men, xi- xxxix; Eric Foner, Reconstruction, 124-75.
³² Oliver Cromwell Gardiner, The Great Issue (New York: W. C. Bryant, 1848), 56, quoted in Herbert D. A. Donovan, The Barnburners (New York: New York University Press, 1925), 96. For a description of the Barnburner convention and David Dudley Field's role, see Donovan, Barnburners, 90-97.
³³ Donovan, Barnburners, 93-94, 113; Henry M. Field, Life of David Dudley Field (Littleton, Colo.: F. B. Rothman, 1898), 196.
³⁴ The two brothers both studied at Williams College. Stephen Field read law in David Dudley's office for three years and eventually joined the partnership. David Dudley Field was also critical in securing Stephen Field's appointment to the Supreme Court. Field, Life of David Dudley Field, 12, 16, 21-22, 196; Philip J. Bergan, "David Dudley Field: A Lawyer's Life," in Bergan, Fiss, and McCurdy, Fields and the Law, 21, 29; William G. Mulligan, "A Tribute to David Dudley Field" (transcript of an address delivered at Irvington-on-Hudson, N.Y., Jan. 18, 1961), Harvard Law School Library; Carl Brent Swisher, Stephen J. Field: Craftsman of the Law (Washington, D.C.: Brookings Institution, 1930), 54.
³⁵ Theodore Sedgwick, Jr., "What is a Monopoly?" in Social Theories of Jacksonian Democracy, ed. Joseph L. Blau (New York: Hafner Publishing, 1947), 220. Originally published in monograph form as What is a Monopoly? (New York: G. P. Scott, 1835).
³⁶ Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown, 1945), 188, 462. Sedgwick wrote of the Locofocos that "[i]t is this Equal Rights party that alone can save the democracy," although he admitted that some locofoco notions were crude. Ibid., 245.
³⁷ Stephen J. Field, Personal Reminiscences of Early Days in California (Washington, D.C.: n.p., 1893), 3-4; Swisher, Stephen J. Field, 285-86; Kens, Justice Stephen Field, 177-78. For a useful discussion of Field's voyage to Europe, see Howard Jay Graham, "Justice Field and the Fourteenth Amendment," Yale Law Journal 52 (1943): 851, 868-69.
³⁸ Kens, Justice Stephen Field, 177-78.
³⁹ The 1893 edition of Personal Reminiscences in the Harvard College Library is signed by Field and marked, "Gift of the Author."
⁴⁰ Kens, Justice Stephen Field, 9.
⁴¹ Field, Personal Reminiscences of Early Days in California, 58-60.
⁴² 9 Cal. 502 (1858).
⁴³ In Justice Terry's case, identifying the independent influence of Free Labor is even more problematic than it is in Field's. Although he was a populist advocate of miner's rights, Terry was also a staunch supporter of slavery. When California Democrats split over the Civil War, Terry sought the nomination of the Lecompton, or pro-slavery wing of that party.
⁴⁴ 9 Cal. at 505-6, 506, 504, 507. Emphasis in Terry's quote is mine. Compare Terry's writing in Ex parte Newman with Field's in The Slaughter-House Cases, 83 U.S. at 94-131 (1873), and Munn v. Illinois, 94 U.S. at 136-54.
⁴⁵ 9 Cal. at 507; Leland Winfield Meyer, The Life and Times of Richard M. Johnson of Kentucky (New York: Columbia University Press, 1932).
⁴⁶ R. M. Johnson, Report of the Committee of the Senate of the United States, to whom were referred the several memorials on the subject of the transportation of the mails on Sunday (Baltimore: J. Lovegrove, 1829); Meyer, Life and Times of Richard M. Johnson, 256-63.
⁴⁷ Gillman, Constitution Besieged, 42, 44.
⁴⁸ Theophilus Fisk, Priestcraft Unmasked, quoted in Schlesinger, Age of Jackson, 139.
⁴⁹ Swisher, Stephen J. Field, 18; Francis Wayland, The Elements of Moral Science, 2d ed., ed. Joseph Blau (1837; reprint, Cambridge: Belknap Press, Harvard University Press, 1963), 172-73. Wayland opined that the carrying of mail on Sunday was a "social" violation of the Sabbath, but that it was not the duty of the state to enforce the Sabbath under its civil powers. For brief descriptions of Wayland's impact on early American economics, see Hovenkamp, Enterprise and American Law, 74-77, and Fine, Laissez Faire and the General-Welfare State, 11, 58.
⁵⁰ Newman, 9 Cal. at 506-7.
⁵¹ Ibid., at 506-10; McCurdy, "Jurisprudence of Government-Business Relations," 973.
⁵² Swisher, Stephen J. Field, 88-82, 103, 375; McCloskey, American Conservatism in the Age of Enterprise, 96-100, 111, 120.
⁵³ Graham, "Justice Field and the Fourteenth Amendment," 855-57; Swisher, Stephen J. Field, 383, 429; McCloskey, American Conservatism in the Age of Enterprise, 98-100. Graham theorized that the Franco-Prussian War and the Paris Commune had caused Field to make an ideological volte-face. For Swisher, who also thought he detected a change in Field's politics after 1870, the "menace of communism" was the culprit.
⁵⁴ Newman, 9 Cal. at 518-19.
⁵⁵ Compare the text that follows with Roscoe Pound, "Liberty of Contract," Yale Law Journal 18 (1909): 454-87. Pound observed that "the discussion about 'equal rights'" was "utterly hollow" to those "acquainted at first hand with actual industrial conditions."
⁵⁶ Newman, 9 Cal. at 520-21, 527-28.
⁵⁷ Benedict, "Laissez-Faire and Liberty," 319.
⁵⁸ Compare Field's dissent to the writing of Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly 38 (1923): 470-94. Hale wrote that "the systems advocated by professed upholders of laissez-faire are in reality permeated with coercive restrictions of individual freedom, and with restrictions, moreover, out of conformity with any formula of 'equal opportunity' or of 'preserving the rights of others.'" Ibid., 101. Compare also Holmes's dissent in Lochner v. New York, 198 U.S. 45, 75 (1905). Justice Holmes wrote that "[t]he liberty of the citizen to do as he likes so long as he does not interfere with the right of others to do the same. . . is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not." Field explained in Ex parte Newman that "[w]hat contracts are valid, and what are invalid, when they must be in writing, and when they can be made by parol, what is essential to transfer chattels, and what to convey realty, are matters of constant legislation. Some modes of acquisition are subject to licenses, and some are prohibited. The right to acquire property, like the use of it, must be considered in relation to other rights." 9 Cal. at 527.
⁵⁹ Favoring the work of Jackson scholar Marvin Meyers, Michael Les Benedict has written that "Schlesinger's argument that Jacksonism was a working-class movement is untenable." Benedict, "Laissez-Faire and Liberty," 320, n. 108. Although Meyers's text is useful for understanding the complexities of Jacksonian Democracy and its conflicting appeal to various interest groups, it does not pretend to negate Schlesinger's earlier and equally classic work. Meyers declared early in his book that "[t]he Jacksonian persuasion. . . is not a magic formula explaining everything Jacksonians said or did" and that "[t]here were Jacksonians of many sorts, whose thoughts and actions make a large and many-faceted historical record." Marvin Meyers, The Jacksonian Persuasion (Stanford: Stanford University Press, 1957), v. Something more than a brief footnote should be required to dismiss entirely Schlesinger's extensively documented argument for Jacksonianism's populist roots. See Schlesinger, Age of Jackson.
⁶⁰ McCurdy, "Jurisprudence of Government-Business Relations," 1005. 61. For detailed discussion of Field's influence on California land law, see Kens, Justice Stephen Field; McCurdy, "Stephen J. Field and Public Land Law Development in California." I am indebted to Paul Kens' work in this area, particularly for his clear explanation of the facts underlying the Frémont and Biddle Boggs decisions.
⁶² 14 Cal. 279 (1859).
⁶³ 58 U.S. (17 How.) 551 (1854).
⁶⁴ Kens, Justice Stephen Field, 79; Frémont, 58 U.S. at 565.
⁶⁵ Biddle Boggs, 14 Cal. at 304-14.
⁶⁶ Ibid., 304, 312, 313.
⁶⁷ Ibid., 314.
⁶⁸ Kens, Justice Stephen Field, 85-86; Swisher, Stephen J. Field, 83-88.
⁶⁹ 14 Cal. at 374, 375, 379.
⁷⁰ Ex parte Newman, 9 Cal. 502, 528 (1858).
⁷¹ Biddle Boggs, 14 Cal. at 379.
⁷² Though common law doctrines of first appropriation would still apply if putatively public land was never claimed under a valid grant. Ibid., 375.
⁷³ McCurdy, "Stephen J. Field and Public Land Law Development in California," 241.
⁷⁴ See, for example, Moore v. Smaw, 17 Cal. 199 (1861), finally establishing that California land grants included mineral rights. Though the opinion included language critical of monarchical privilege, the holding of Moore favored large grantholders over independent miners and was unquestionably hostile to Free Soil principles. Field's justification for the outcome in Moore was, again, his view of the economic efficiencies involved. Ibid., 212-13, 222-24. See also Ferris v. Coover, 10 Cal. 589 (1858), holding that a grantholder who mistakenly established boundaries larger than his grant allowed would be permitted to keep the entire tract, and to eject squatters, until the government had acted to take the surplus into the public domain. Ferris v. Coover "had serious implications for people who had settled within or near floating grants." Kens, Justice Stephen Field, 77.
⁷⁵ Winfield J. Davis, History of Political Conventions in California, 1849-1892 (Sacramento: n.p., 1893), 460; Kens, Justice Stephen Field, 73-74.
⁷⁶ See, for example, Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D. Cal. 1879); In re Ah Fong, 1 F. Cas. 213 (D.D.C. Cal. 1874). For a discussion of these cases, see Swisher, Stephen J. Field, 205-39; Kens, Justice Stephen Field, 197-235.
⁷⁷ Santa Clara v. Southern Pac. R.R., 18 F. 385, 402-5 (C.C.D. Cal. 1883); San Mateo v. Southern Pac. R.R., 13 F. 722, 746-48 (C.C.D. Cal. 1882) (companion cases).
⁷⁸ Swisher, Stephen J. Field, 307.
⁷⁹ Stephen J. Field, "Address at the Centennial Celebration of the Organization of the Federal Judiciary," in Some Account of the Work of Stephen J. Field as a Legislator, State Judge, and Justice of the Supreme Court of the United States, 2d ed., ed. George C. Gorham ([New York?]: n.p., 1895).
⁸⁰ The Slaughter-House Cases, 83 U.S. 36, 36-43 (1873).
⁸¹ See, for example, Ella Lonn, Reconstruction in Louisiana after 1868 (New York: G. P. Putnam's Sons, 1918), 42-43; Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, 1922), 258. For a contrasting view, see Hovenkamp, Enterprise and American Law, 116-24. Hovenkamp argues that the traditional view of Slaughter-House emerged from the racism of the Dunning School, which depicted postwar African-Americans as unqualified for self-government.
⁸² Swisher, Stephen J. Field, 416.
⁸³ McCurdy, "Jurisprudence of Government-Business Relations," 976, quoting Durbridge v. The Slaughter-House Co., 27 La. Ann. 676, 676 (1875). 84. Hovenkamp points out that "[n]o one has uncovered evidence that. . . the Louisiana legislature was bribed." Enterprise and American Law, 122-24. It is certain, in any event, that butchers in and near New Orleans had long disposed of waste directly into the Mississippi. The central slaughterhouse was seen as a method of ending the sanitation problem and was likely modeled on a similar arrangement, also organized through a corporation provided exclusive privileges, in New Jersey. Centralized slaughterhouses already operated in New York, San Francisco, Boston, and Philadelphia. See Ronald M. Labbé, "New Light on the Slaughterhouse Monopoly Act of 1869," in Louisiana's Legal Heritage, ed. Edward F. Haas (Pensacola, Fla.: Perdido Bay Press, 1983), 143-61.
⁸⁵ 83 U.S. at 83, 60, 61-62, 63.
⁸⁶ Ibid., 63, 65, 81.
⁸⁷ Ibid., 81, 66.
⁸⁸ Gillman, Constitution Besieged, 64-67; McCurdy, "Jurisprudence of Government-Business Relations," 976-79; Benedict, "Laissez-Faire and Liberty," 327-28.
⁸⁹ Swisher, Stephen J. Field, 420.
⁹⁰ McCloskey, American Conservatism in the Age of Enterprise, 113-14.
⁹¹ 83 U.S. at 87, 84, 89.
⁹² Ibid., 93, 97, 101-6.
⁹³ Ibid., 110, n. 39.
⁹⁴ Orestes Augustus Brownson, "The Laboring Classes," in Social Theories of Jacksonian Democracy, ed. Blau, 301. Originally published in Boston Quarterly Review, July 23, 1840.
⁹⁵ Gillman, Constitution Besieged, 67, 66.
⁹⁶ E. Irving Smith, "The Legal Aspect of the Southern Question," Harvard Law Review 2 (1889): 358, 375, citing Mugler v. Kansas, 123 U.S. 623 (1887); People v. Marx, 99 N.Y. 377 (1885); Powell v. Pennsylvania, 127 U.S. 678 (1888); State v. Addington, 12 Mo. App. 214 (1882).
⁹⁷ Charles E. Shattuck, "The True Meaning of the Term 'Liberty' in Those Clauses in the Federal and State Constitutions Which Protect 'Life, Liberty, and Happiness,'" Harvard Law Review 4 (1891): 365, 366, 385.
⁹⁸ Ibid., 388, 385, 392, 365.
⁹⁹ 96 U.S. 1 (1877).
¹⁰⁰ Ibid., 9, 11, 12.
¹⁰¹ Ibid., 15-16, 18.
¹⁰² McCurdy, "Jurisprudence of Government-Business Relations," 994, 993-95. See also McCurdy, "Stephen J. Field and the American Judicial Tradition," in Bergan, Fiss, and McCurdy, Fields and the Law, 5-9.
¹⁰³ 146 U.S. 387 (1892).
¹⁰⁴ Indeed, despite Field's alleged hostility to monopoly, he appears always to have allowed utility monopolies to pass constitutional muster. See, for example, New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885). For a discussion of these contradictions, see Charles W. McCurdy, "Federalism and the Judicial Mind in A Conservative Age: Stephen J. Field," in Power Divided: Essays on the Theory and Practice of Federalism, ed. Harry N. Scheiber and Malcom M. Feeley (Berkeley: Institute of Governmental Studies, 1989), 31. The apparent logical inconsistencies in Field's thought may be explained by the Fuller Court's insistence on placing the responsibility for corporate regulation in the hands of states rather than the federal government. McCurdy, "Knight Sugar Decision," 306-14. Field's rhetorical inconsistencies--his attack of monopoly in one decision and embrace of it in another--are less easily resolved.
¹⁰⁵ 96 U.S. at 16.
¹⁰⁶ Ibid., 23.
¹⁰⁷ 157 U.S. 429 (1895).
¹⁰⁸ 158 U.S. 601 (1895). 109. An exception is Fiss, who devotes nearly a chapter to Pollock. Fiss, Troubled Beginnings, 75-100. McCurdy dismissed the case in one sentence, stating that "Field believed. . . that partial and unequal tax laws effectively transferred property from one socioeconomic group to another in contravention of the fundamental precept that property could not be taken for private use." McCurdy, "Jurisprudence of Government-Business Relations," 991. Benedict failed to mention the case at all. Progressive historians, by contrast, lavished attention on Pollock. See, for example, Paul, Conservative Crisis and the Rule of Law, 159-220.
¹¹⁰ 157 U.S. at 559, 575, 558-74.
¹¹¹ Ibid., at 582-83.
¹¹² 158 U.S. at 636-37.
¹¹³ 157 U.S. at 592, 586-92.
¹¹⁴ Ibid., at 592-93, 593, 595, 596, quoting Thomas M. Cooley, A Treatise on the Law of Taxation Including the Law of Local Assessments, 2d ed. (Chicago: Callaghan and Co., 1886), 295.
¹¹⁵ 157 U.S. at 596.
¹¹⁶ Ibid., at 607.
¹¹⁷ For a biography of David Ames Wells, former United States Special Commissioner of the Revenue and New York Revenue Commissioner, see Fred Bunyan Joyner, David Ames Wells: Champion of Free Trade (Cedar Rapids, Iowa: Torch Press, 1939).
¹¹⁸ Field to Wells, 11 May 1895, Small Manuscript Collection, Harvard Law School Library; David Ames Wells, "The Income Tax: A Popular View of the Case," New York Tribune, 9 May 1895, 3.
¹¹⁹ Field to Wells, 23 May 1895, Small Manuscript Collection, Harvard Law School Library.
¹²⁰ The Slaughter-House Cases, 83 U.S. 36, 96 (Field, J. dissenting).
¹²¹ 157 U.S. at 607.

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FORUM: ONCE MORE UNTO THE BREACH: LATE NINETEENTH-CENTURY JURISPRUDENCE REVISITED

Justice Stephen Field and "Free Soil, Free Labor Constitutionalism": Reconsidering Revisionism

MANUEL CACHÁN

I. Surveying Revisionism

II. Field as Locofoco

III. Free Soil in California

IV. Field and Free Labor on the Supreme Court

V. Conclusion

Notes

FORUM:
ONCE MORE UNTO THE BREACH: LATE NINETEENTH-CENTURY JURISPRUDENCE REVISITED

Justice Stephen Field and "Free Soil,
Free Labor Constitutionalism":
Reconsidering Revisionism