✯ CH. 2: A HISTORY OF THE CALIFORNIA SUPREME COURT, 1850–1879 307 Chapter 2 THE JUSTICES The Three-Man Court nder provisions of the third section of the article on the judiciary, the U first Legislature elected Serranus C. Hastings, Henry A. Lyons, and Nathaniel Bennett the first three justices of the Supreme Court by a joint vote of both houses.1 They were sworn into office in January 1850, and on February 1 the Legislature classified them so that Hastings was to serve two years and become chief justice, while Lyons and Ben- nett, as associate justices, were to have four- and six-year terms, respectively.2 In March 1851 the Legislature pro- vided for the election of future justices by having one jus- tice elected that year and one at the general election every second year thereafter. The same section also stated that after the first election of a justice, the senior justice in point of service would become the chief justice.3 The next Serr anus C. section provided for the filling of a vacancy on the Court Hastings 1 California. Legislature, Senate and Assembly. Journals (1849–50), 53–54. 2 Cal. Stats. (1850), 462. 3 Cal. Stats. (1851), chap. 1, § 3. 308 CALIFORNIA LEGAL HISTORY ✯ VOLUME 14, 2019 by gubernatorial appointment, such appointment lasting until the election and qualification of a successor elected at the first general election after the vacancy occurred.4 The office of Supreme Court justice drew the atten- tion of men with quite diverse backgrounds and interests. In the earliest years of statehood many of the justices, to- gether with many of the leaders in the other two branch- Henry A. es of the state government, were men who had held high Lyons positions in other states before coming to California.5 Serranus C. Hastings, California’s first chief justice, had already been a member of Congress from Iowa and chief justice of that state’s supreme court. He arrived in Cali- fornia in 1849 at the age of thirty-five, and went into the practice of law in Sacramento. In the two years he served on the Court, he wrote thirty-five opinions for the major- ity, but his most notable opinion (discussed below) was Nathaniel his dissent in Woodworth v. Fulton, which was later to Bennett become law.6 After leaving the Court, Hastings served as attorney general for a term, and he later founded the Hastings College of the Law as a part of the University of California. When Hastings’ term expired, Henry A. Lyons, who had been elected to the four-year term, acceded to the position of chief justice, but resigned after three months. “About the only distinguishing feature relating to Hen- ry A. Lyons’ legal career in California is the fact that he was one of the first three men to come to its Supreme Court. His work on the Court was of a role so minor as to justify little notice.”7 Lyons wrote only about a dozen opinions, and does not appear to have made any lasting contribution. The third of the initial justices, Nathaniel Bennett, was the strongest and the most productive member of the first Court. Bennett, who had 4 Ibid., § 4. 5 Richard Dale Batman, “The California Political Frontier: Democratic or Bureau- cratic?” Journal of the West VII (October, 1968): 461–70. 6 Woodworth v. Fulton (1850), 1 Cal. 295. 7 J. Edward Johnson, History of the Supreme Court Justices of California, vol. 1 (2 vols., vol. 1 San Francisco: Bender-Moss Company, 1963; vol. 2 San Francisco: Bancroft- Whitney Company, 1966), 31. The biographical data used in this chapter is derived from this work. ✯ CH. 2: A HISTORY OF THE CALIFORNIA SUPREME COURT, 1850–1879 309 been chairman of the State Senate Judiciary Committee, wrote more than twice the number of opinions than did Hastings and Lyons together. Even though he drew the longest term, he was the first to resign, leaving the Court in October 1851 to become the court reporter, in which capacity he became responsible for the publication of the first volume of theSupreme Court Reports. To fill the vacancy created by Bennett’s resignation, Governor John Mc- Dougal appointed Hugh C. Murray to the Court. Murray was only twenty-six at the time, and when Henry A. Lyons resigned the next year, Murray, by now the senior justice, became chief justice, the youngest ever to hold this position in California. Murray was elected to succeed himself in 1852 (to fill the rest of Bennett’s term, originally to terminate at the close of 1855), and for a full term in 1855. Murray did not care for change in the law as he had learned it in Illinois; he was also a follower of John C. Cal- houn’s theories as to states’ rights. He died in 1857 at the age of Hugh C. Murray thirty-two of tuberculosis, complicated by heavy drinking.8 The honor of being the first justice to be elected by the people belonged to Solomon Heydenfeldt, who was elected in 1851 to succeed Hastings. As noted above, Hey- denfeldt was granted a leave of absence from his duties in 1852 in order to return to Alabama to get his family (dur- ing which time Alexander Wells served as temporary jus- tice, as noted above). Heydenfeldt served until January 1857 when he resigned; during his five years on the Court Solomon he wrote some 450 opinions, generally marked by their Heydenfeldt brevity and soundness. A South Carolinian by birth, Heydenfeldt was extremely pro-Southern, almost to the point of being a Secessionist; he refused to take the test oath of loyalty, and consequently was not able to practice law in California during the Civil War, although he remained in the state. Alexander Anderson, a native of Tennessee, was the only member of the Supreme Court to be born prior to 1800. He had fought with Andrew Jackson at New Orleans, and was later a United States senator from his native state. 8 Ibid., 43. 310 CALIFORNIA LEGAL HISTORY ✯ VOLUME 14, 2019 Arriving in California in May 1850, he was by September of 1851 an elected member of the State Senate from Tuolumne County. He was appointed to succeed Henry A. Lyons in April 1852 until a successor could be elected to finish the term. Anderson wanted this position himself, but lost the Demo- cratic nomination to Alexander Wells, who won the election as well. After leaving the Court in January 1853, Anderson left California completely. Alexander Wells arrived in California in 1849 from New York City, where he had been active in politics, being associated with Tammany Hall. As mentioned above, he served temporarily on the Court during Solomon Heydenfeldt’s absence, and was elected to finish Henry A. Lyon’s term. In 1853 he was elected to a full six-year term, but he served less than a year of the new term, dying suddenly in October 1854. Wells’ death brought about the appointment of Charles H. Bryan to the Court by Governor John Bigler. Bryan had come to California from Ohio in 1850 or 1851, settling in Marysville where he practiced law. He be- came district attorney of Yuba County in 1852, and in 1853 he was elected to the State Senate. Once on the Supreme Court he attempted to succeed himself and finish Wells’ term; he was the candidate of the Democratic Party, but lost the election to the Know-Nothing candidate, David S. Terry. Bryan was considered an outstanding lawyer, but his career on the bench, although lasting only a year, “was nevertheless a disappointment to those who had beheld his brilliant performances at the bar. It was the consensus of opinion that he did not show much aptitude for judicial work.”9 The man who defeated Charles Bryan in the 1855 election, David S. Terry, was possibly both the most controversial and colorful figure ever to become a justice in California. While on the California Supreme Court, he killed a United States senator in a duel, and had been imprisoned, tried, and convicted of stabbing a member of the Vigilantes. Terry was born in Kentucky in 1823, moving to Texas with his mother in 1835, where he fought in the Texas War of Independence when he was but thirteen. He came to California in 1849, settling down to the practice of law in Stockton, where a number of Southerners had settled. When he won the 1855 elec- tion, he was thirty-two, and during his first year on the bench he became involved with the Vigilantes. On Hugh C. Murray’s death in 1857, Terry 9 Johnson, Supreme Court Justices, vol. 1, 50. ✯ CH. 2: A HISTORY OF THE CALIFORNIA SUPREME COURT, 1850–1879 311 became chief justice. “Terry’s greatest attribute as a judge was his personal integrity.”10 This statement by J. Edward Johnson may not do Terry justice, for even Stephen J. Field’s biographer wrote that Terry was “a man with a great deal of legal ability.”11 Terry believed very strongly in the separation of powers in a state, and was not inter- ested “in unduly increasing the authority of the supreme court at the expense of lower courts.”12 David S. Terry In 1859, Terry lost the Democratic nomination to Warner W. Cope, but did not finish his term in office, resigning in September when he took part in the famous duel with David C. Broderick. After the duel, Terry left for Nevada, returning to Texas during the Civil War to serve in the Confederate army.