The portion of the resolution referred to reads:

"Resolved, That Field and Shearman be employed to take all legal means for the recovery and restoration of the said books, and for the arrest and punishment of the persons abstracting them."

Mr. Hamilton Harris, who is thus stated to have sent this resolution to Messrs. Field and Shearman, authorizing this arrest, testified in relation to the same matter as follows:

"Question. When did you first know of the order of arrest which was issued against Joseph H. Ramsey, William L. M. Phelps, Robert H. Pruyn, and Henry Smith, or either of them?

"Answer. Soon after the poll was closed I heard that Mr. Ramsey and Mr. Smith had been arrested under some process, which I afterwards learned from Mr. Smith himself was an order of arrest.

is all I know about it.

That

"Q. Was that the first knowledge or information you had of such an order, or that such an one was to be applied for?

"A. It was."

The defendants against whom this order of arrest was obtained were all well-known citizens of Albany, who had lived there for years. Mr. Henry Smith is one of the first advocates in the State of New York, and one of the leaders of the Albany bar. These defendants were the president, secretary, receiver, and the counsel of a railroad company, which held its annual election at twelve o'clock, noon, on the 7th September, and these four defendants were the head and front of the opposition to the election of the Church or Fisk board, for whom Messrs. Field and Shearman had been counsel through this whole contest. The papers on which this order was obtained were completely ready in Messrs. Field and Shearman's office before the 2d September. Mr. David Dudley Field had already "discussed it repeatedly" with his son and partner. Messrs. Field and Shearman " delayed " the bringing the suit until the resolution of the 3d. Messrs. Field and Shearman "delayed" obtaining the order of arrest until the 6th. Some one or other "delayed" arresting these gentlemen until after the coveted books had actually been returned to the company's office, and until precisely twelve o'clock on the 7th of September, when the loss of one single minute might ruin the labors of a lifetime. Mr. Henry Smith, in his closing argument in the case VOL. CXII. - NO. 231.

27

already mentioned, said, speaking of Mr. Ramsey's arrest: "I saw this man in charge of the sheriff, and held there as a prisoner, just as this election was to be proceeded with, and at the same time saw David Dudley Field coming in and standing in the doorway, with his fingers in his vest, tauntingly laughing and sneering at him." Mr. David Dudley Field, in his closing argument in this same case, speaking of the same arrest, says: "It is clear that nobody in the Church party had anything to do with that arrest at that particular time."

This arrest suit was afterwards dismissed by the court, after hearing Mr. David Dudley Field in opposition thereto, and after reading his partner's affidavit, on the ground that it had been brought without any authority.

And this is, according to Mr. David Dudley Field, practice of the law. Is there not danger lest, if such practice obtain, the delicate courtesies and gentle sentiments of the profession be lost?

Mr. David Dudley Field has seen the palmy days of the New York bar. What are to the younger men of the profession merely dim traditions of a past age, are to him the fresh memories of a present life. Mr. Field is a legacy to the present generation at the bar from the golden age when, as we are told, counsel showed one another the knightly courtesy of a Bayard. He was taught in the days of Chancellor Kent. He is one of the most eloquent apostles of legal reform. He is, even now, urging an amendment to the New York code, providing that no receiverships shall be granted on the ex parte order of a judge. To him, probably more than to any other one man, the people of New York are indebted for the code of procedure. To him, of course, one of the oldest, ablest, and most cultivated members of the bar, the younger men are to look for an example of professional conduct. And they are to look for this example, doubtless, in Mr. Field's management of these Fisk litigations. For it is of them that Mr. Field says: "Nothing but a profound conviction that I could not with honor retire from these suits has kept me in them. Being in them, I shall do my whole duty to my clients." And this "whole duty to the clients" consists, we are to infer, in the devising and carrying out a transaction like the following.

Mr. James Fisk and his associates, all of them, in this matter, clients of Mr. David Dudley Field, acting under his advice, endeavor to get control of a railroad and elect its board of directors. As the court has decided, they own not more than a fifth of its stock. This is their procedure. They suspend the president, who is opposed to them, by an order of Mr. Justice Barnard, granted, as they themselves show, without a hearing, on not one word of evidence. They tie their opponents hand and foot with injunctions restraining any application for relief," except to this court in this action," "this court" being Mr. Justice Barnard. They pack a "sham" meeting with "rough" men from New York, Mr. David Dudley Field himself being at their head, to hinder the stockholders of the company from meeting in their own office to protect their own property. To bar the possibility of these stockholders meeting anywhere else, Messrs. Field and Shearman, at the very moment of the election, when an hour's delay costs millions of property, have the sheriff arrest the officers and counsel of this company, in a suit commenced, without authority, under the advice and direction of Mr. David Dudley Field; and the arrest is made under his eyes to his complete satisfaction. They pretend to elect a board of directors by votes cast on stolen stock, in defiance of an injunction of the Supreme Court. And, after all, they commit the unpardonable sin of failure.

All this is done in pursuance of a cunningly devised plan. The court call it a "fraudulent conspiracy." Mr. Shearman calls it a "programme." Mr. Fisk calls it a "raid."

In "conspiracies " there are no accessories. All are principals. This particular "conspiracy" did not spring, Minervalike, from the brain of Mr. James Fisk. Mr. David Dudley Field, for one, helped devise it. Mr. David Dudley Field, for one, did execute it. Other lights of the bar, doubtless, had their share in it. Do they wish to claim it?

And this is, it is to be presumed, the "whole duty to clients." These are, it is to be presumed, the proceedings in which Mr. David Dudley Field is kept by "nothing but a profound conviction that he cannot with honor retire" from them. This is, it is to be presumed, Mr. Field's lesson to us from the days of Chancellor Kent.

And is the order of arrest henceforth to be one page of the advocate's brief?

It may be said, perhaps, that, after all, this decision of Mr. Justice Smith is merely the decision of a single judge; that it may be all wrong, may be reversed on appeal; that it is, as yet, too early to judge Mr. Field. The matters here stated in relation to Mr. Field do not in the least degree depend on the correctness or incorrectness of the decision of Mr. Justice Smith. To be sure, the language of that decision has been here sometimes borrowed, but merely for the purpose of showing that very respectable authority has already given a name to some of these proceedings taken on the part of Mr. Field's office. But the point of that decision is, Which board of directors was or was not legally elected? With that point we have here nothing whatever to do. It has been attempted here to make clear the character of some of those legal proceedings, by statements which are true, and which remain true whether Mr. Justice Smith's decision be reversed or not. And as to the direct share of Mr. David Dudley Field in these proceedings, no word of comment is here given, nor do any of the statements here made in relation thereto depend in any degree upon the decision of Mr. Justice Smith. These statements are made solely on the sworn testimony of Mr. Field's clients and his associate counsel. Mr. Field, assuredly, will not question the veracity of these witnesses.

Nor has Mr. Field been unheard in these matters. If guilty of anything, he is guilty of the same charges on which judgment has already gone against his clients in the case already mentioned. In that case Mr. Field and his associate counsel, with consummate ability, produced their witnesses, and argued the law and the facts before an able and impartial judge. He did his utmost there to clear his clients and failed. The issues and evidence here are precisely the same as in that case.

No one can ask of Mr. Field a higher standard of professional conduct than he himself lays down in this correspondence with Mr. Bowles. He says, "The lawyer is responsible, not for his clients, nor for their causes, but for the manner in which he conducts their causes.' "" "I do not assent to the theory of Brougham, that the lawyer should know nobody but his client.

I insist that he should defend his client per fas and not per nefas. By this rule I am willing to be judged."

And Mr. Field says: "I have never been consulted beforehand. about any transaction whatever of this company or these gentlemen, to which, so far as I now recollect, any exception has been taken."

Does Mr. Field "recollect" this Susquehanna litigation?

And Mr. Bowles admits that Mr. Field "believes himself right"; that Mr. Field has" sinned against no statute," and has not "violated any prescript of the code professional."

In the New York Revised Statutes, Vol. II. p. 691, are certain definitions and certain penalties of certain conspiracies. A portion of the statute reads as follows: "If two or more persons conspire falsely and maliciously to indict another for any offence, or to procure another to be charged or arrested for any such offence, or falsely to move or maintain any suit, or for the perversion or obstruction of justice, or the due administration of the laws, they shall be deemed guilty of a misdemeanor." Whether or not any of the matters here related fall within the definitions here cited, or either of them, need not here be discussed.

Mr. Warren, in his work on Law Studies, Vol. I. p. 423, after relating a case of professional misconduct on the part of a member of the English bar, adds: "This case has been presented to the reader because of the singularity of its circumstances. It appears to be the only instance recorded in the books of misconduct by a member of the bar, judicially cognizable, and punished, because of his being such."

ALBERT STICKNEY.