So is the clause intended to buttress judicial power, or a statement that the executive has the tools needed to make sure that federal law and the Constitution themselves are not stymied by too narrow a reading, or some combination of the two? Perhaps the Civil War is too dramatic a setting to offer much in the way of clarity.
So consider this hypothetical instead: Suppose the written law did not bar the assassination of a Supreme Court justice. Would the attorney general have the power to prevent it anyway?
OK, not a hypothetical; it was the question presented in a 1890 case called Cunningham v. Neagle—starring our new old friend Stephen Field. Cunningham arises out of what 19th-century journalists called a “rencounter” between the crusty Justice Field and his former judicial colleague David Terry on August 14, 1889—one that left Terry dead, and Field and Deputy U.S. Marshal David Neagle in a California hoosegow.
One historian wrote that Terry “was a six-foot, three-inch giant and customarily carried a bowie knife tucked in his bosom.” Terry had been chief justice of the California Supreme Court when Field was elected to that court in 1857. Shortly afterwards, Terry resigned to fight a duel. Terry killed his antagonist, who had been a friend of Field’s. Field took offense—and, as one contemporary wrote, “when Field hates, he hates for keeps.”
After a stint in the Confederate Army, Terry returned to California to practice law. As a private lawyer, he represented Sarah Althea Hill, a volatile beauty who had briefly been the mistress of a powerful San Francisco lawyer. When he refused her pleas for marriage, she drank poison in his office. She recovered, though, and promptly made an arrangement with another suitor, former Nevada Senator William Sharon—a room in San Francisco's Grand Hotel and a $500 a month stipend. The relationship soured, however, and Sharon had the hotel manager remove the door from her hotel suite, and then evict her.
Not long afterwards, Hill, represented by Terry, filed suit against Sharon. She produced a document that, she claimed, proclaimed the two of them married—and thus entitled her to a half share in $10 million profit from his Nevada silver mines. As Hill’s lawyer, Terry was, to say the least, zealous—after Sharon died, Terry married Hill, who was three decades younger, and pursued the case against Sharon’s estate.
Field, meanwhile, was now a justice of the U.S. Supreme Court. Under the statutes of the day, justices also sat as a federal circuit judges; Field returned to California each year, and Terry’s case came before him and two other federal judges. When, on September 3, 1888, Field read aloud the court’s judgment against Hill, she leapt to her feet in the courtroom and reviled the judges as corrupt. When a marshal took her in charge, Terry pulled out his Bowie knife to defend her. Marshals subdued both of them. Field, as presiding judge, clapped them into prison for contempt. Terry was finally released, six months later; he publicly vowed to horsewhip Field—or worse.