Ex-Congressman Wigginton also testified concerning this visit to

Terry. It occurred soon after the commitment. He went to arrange about

some case in which he and Terry were counsel on opposite sides. He

told Terry of a rumor that there was some old grudge or difference

between him and Judge Field. Terry said there was none he knew of. He

said:

"'When Judge Field's name was mentioned as candidate for

President of the United States,'--I think he said,--'when I

was a delegate to the convention, it being supposed that I had

certain influence with a certain political element, that also

had delegates in the convention, some friend or friends'--I

will not be sure whether it was friend or friends--'of Judge

Field came to me and asked for my influence with these

delegates to secure the nomination for Judge Field. My

answer'--I am now stating the language as near as I can of

Judge Terry's--'my answer was, 'no, I have no influence with

that element.' I understood it to be the workingmen's

delegates. I could not control these delegates, and if I could

would not control them for Field.' He said: 'That may have

caused some alienation, but I do not know that Field knew

that.'"

Mr. Wigginton said that Mrs. Terry asked her husband what he could do,

and he replied, showing more feeling than he had before: "Do? I can

kill old Sawyer, and by God, if necessary, I will, and the President

will then have to appoint some one else in his place."

[1] One of the witnesses stated that Terry also said, "Get a

written order from the court."

CHAPTER IX.

TERRY'S PETITION TO THE CIRCUIT COURT FOR A RELEASE--ITS REFUSAL--HE

APPEALS TO THE SUPREME COURT--UNANIMOUS DECISION AGAINST HIM

THERE--PRESIDENT CLEVELAND REFUSES TO PARDON HIM--FALSEHOODS REFUTED.

On the 12th of September Terry petitioned the Circuit Court for a

revocation of the order of imprisonment in his case, and in support

thereof made the following statement under oath:

"That when petitioner's wife, the said Sarah A. Terry, first

arose from her seat, and before she uttered a word, your

petitioner used every effort in his power to cause her to

resume her seat and remain quiet, and he did nothing to

encourage her in her acts of indiscretion; when this court

made the order that petitioner's wife be removed from the

court-room your petitioner arose from his seat with the

intention and purpose of himself removing her from the

court-room quietly and peaceably, and that he had no intention

or design of obstructing or preventing the execution of said

order of the court; that he never struck or offered to strike

the United States marshal until the said marshal had assaulted

himself, and had in his presence violently, and as he believed

unnecessarily, assaulted the petitioner's wife.

"Your petitioner most solemnly swears that he neither drew nor

attempted to draw any deadly weapon of any kind whatever in

said court-room, and that he did not assault or attempt to

assault the U.S. marshal with any deadly weapon in said

court-room or elsewhere. And in this connection he

respectfully represents that after he left said court-room he

heard loud talking in one of the rooms of the U.S. marshal,

and among the voices proceeding therefrom he recognized that

of his wife, and he thereupon attempted to force his way into

said room through the main office of the United States

marshal; the door of the room was blocked by such a crowd of

men that the door could not be closed; that your petitioner

then, for the first time, drew from inside his vest a small

sheath-knife, at the same time saying to those standing in his

way in said door, that he did not want to hurt any one; that

all he wanted was to get into the room where his wife was. The

crowd then parted and your petitioner entered the doorway, and

there saw a United States deputy marshal with a revolver in

his hand pointed to the ceiling of the room. Some one then

said: 'Let him in if he will give up his knife,' and your

petitioner immediately released hold of the knife to some one

standing by.

"In none of these transactions did your petitioner have the

slightest idea of showing any disrespect to this honorable

court or any of the judges thereof.

"That he lost his temper, he respectfully submits was a

natural consequence of himself being assaulted when he was

making an honest effort to peaceably and quietly enforce the

order of the court, so as avoid a scandalous scene, and of his

seeing his wife so unnecessarily assaulted in his presence."

It will be observed that Terry, in his petition, contradicts the facts

recited in the orders for the commitment of himself and his wife.

These orders were made by Justice Field. Circuit Judge Sawyer, and

District Judge Sabin from the district of Nevada, who did not depend

upon the testimony of others for information as to the facts in the

case, but were, themselves, eye-witnesses and spoke from personal

observation and absolute knowledge.

In passing upon Terry's petition, these judges, speaking through

Justice Field, who delivered the opinion of the court, bore testimony

to a more particular account of the conduct of Terry and his wife

than had been given in the order for the commitment. As the scene has

already been described at length, this portion of the opinion of the

court would be a mere repetition, and is therefore omitted. After

reciting the facts, Justice Field referred to the gravity of Terry's

offense in the following terms:

"The misbehavior of the defendant, David S. Terry, in the

presence of the court, in the court-room, and in the corridor,

which was near thereto, and in one of which (and it matters

not which) he drew his bowie-knife, and brandished it with

threats against the deputy of the marshal and others aiding

him, is sufficient of itself to justify the punishment

imposed. But, great as this offense was, the forcible

resistance offered to the marshal in his attempt to execute

the order of the court, and beating him, was a far greater

and more serious affair. The resistance and beating was the

highest possible indignity to the Government. When the flag of

the country is fired upon and insulted, it is not the injury

to the bunting, the linen, or silk on which the stars and

stripes are stamped which startles and arouses the country.

It is the indignity and insult to the emblem of the nation's

majesty which stirs every heart, and makes every patriot

eager to resent them. So, the forcible resistance to an

officer of the United States in the execution of the process,

orders, and judgments of their courts is in like manner an

indignity and insult to the power and authority of the

Government which can neither be overlooked nor extenuated."

After reviewing Terry's statement, Justice Field said:

"We have read this petition with great surprise at its

omissions and misstatements. As to what occurred under our

immediate observation, its statements do not accord with the

facts as we saw them; as to what occurred at the further end

of the room and in the corridor, its statements are directly

opposed to the concurring accounts of the officers of the

court and parties present, whose position was such as to

preclude error in their observations. According to the sworn

statement of the marshal, which accords with our own

observations, so far from having struck or assaulted Terry, he

had not even laid his hands upon him when the violent blow in

the face was received. And it is clearly beyond controversy

that Terry never voluntarily surrendered his bowie-knife, and

that it was wrenched from him only after a violent struggle.

"We can only account for his misstatement of facts as they

were seen by several witnesses, by supposing that he was in

such a rage at the time that he lost command of himself, and

does not well remember what he then did, or what he then said.

Some judgment as to the weight this statement should receive,

independently of the incontrovertible facts at variance with

it, may be formed from his speaking of the deadly bowie-knife

he drew as 'a small sheath-knife,' and of the shameless

language and conduct of his wife as 'her acts of

indiscretion.'

"No one can believe that he thrust his hand under his vest

where his bowie-knife was carried without intending to draw

it. To believe that he placed his right hand there for any

other purpose--such as to rest it after the violent fatigue of

the blow in the marshal's face or to smooth down his ruffled

linen--would be childish credulity.

"But even his own statement admits the assaulting of the

marshal, who was endeavoring to enforce the order of the

court, and his subsequently drawing a knife to force his way

into the room where the marshal had removed his wife. Yet he

offers no apology for his conduct; expresses no regret for

what he did, and makes no reference to his violent and

vituperative language against the judges and officers of the

court, while under arrest, which is detailed in the affidavits

filed."

In refusing to grant the petition the court said:

"There is nothing in his petition which would justify any

remission of the imprisonment. The law imputes an attempt to

accomplish the natural result of one's acts, and when these

acts are of a criminal nature it will not accept, against such

implication, the denial of the transgressor. No one would be

safe if the denial of a wrongful or criminal act would suffice

to release the violator of the law from the punishment due his

offenses."

On September 17, 1888, after the announcement of the opinion of the

court by Mr. Justice Field denying the petition of D.S. Terry for a

revocation of the order committing him for contempt, Mr. Terry made

public a correspondence between himself and Judge Solomon Heydenfeldt,

which explains itself, and is as follows:

"MY DEAR TERRY:

"The papers which our friend Stanley sends you will explain

what we are trying to do. I wish to see Field to-morrow

and sound his disposition, and if it seems advisable I will

present our petition. But in order to be effective, and

perhaps successful, I wish to feel assured and be able to give

the assurance that failure to agree will not be followed by

any attempt on your part to break the peace either by action

or demonstration. I know that you would never compromise me

in any such manner, but it will give me the power to make an

emphatic assertion to that effect and that ought to help.

"Please answer promptly.

"S. HEYDENFELDT."

The reply of Judge Terry is as follows:

"DEAR HEYDENFELDT:

"Your letter was handed me last evening. I do not expect a

favorable result from any application to the Circuit Court,

and I have very reluctantly consented that an application be

made to Judge Field, who will probably wish to pay me for my

refusal to aid his presidential aspirations four years ago.

I had a conversation with Garber on Saturday last in which

I told him if I was released I would seek no personal

satisfaction for what had passed. You may say as emphatically

as you wish that I do not contemplate breaking the peace, and

that, so far from seeking, I will avoid meeting any of the

parties concerned. I will not promise that I will refrain from

denouncing the decision or its authors. I believe that the

decision was purchased and paid for with coin from the Sharon

estate, and I would stay here for ten years before I would say

that I did not so believe. If the judges of the Circuit Court

would do what is right they would revoke the order imprisoning

my wife. She certainly was in contempt of court, but that

great provocation was given by going outside the record to

smirch her character ought to be taken into consideration

in mitigation of the sentence. Field, when a legislator,

thought that no court should be allowed to punish for contempt

by imprisonment for a longer period than five days. My wife

has already been in prison double that time for words spoken

under very great provocation. No matter what the result,

I propose to stay here until my wife is dismissed.

"Yours truly,

"D.S. TERRY."

In the opinion of the court, referred to in the foregoing letter

as "smirching the character" of Mrs. Terry, there was nothing said

reflecting upon her, except what was contained in quotations from the

opinion of Judge Sullivan of the State court in the divorce case of

Sharon vs. Hill in her favor. These quotations commenced at page 58

of the pamphlet copy of Justice Field's opinion, when less than three

pages remained to be read. It was at page 29 of the pamphlet that

Justice Field was reading when Mrs. Terry interrupted him and was

removed from the court-room. After her removal he resumed the reading

of the opinion, and only after reading 29 pages, occupying nearly an

hour, did he reach the quotations in which Judge Sullivan expressed

his own opinion that Mrs. Terry had committed perjury several times in

his court. The reading of them could not possibly have furnished her

any provocation for her conduct. She had then been removed from

the court-room more than an hour. Besides, if they "smirched" her

character, why did she submit to them complacently when they were

originally uttered from the bench by Judge Sullivan in his opinion

rendered in her favor?

Justice Field, in what he was reading that so incensed Mrs. Terry, was

simply stating the effect of a decree previously rendered in a case,

in the trial of which he had taken no part. He was stating the law

as to the rights established by that decree. The efforts then made by

Terry, and subsequently by his friends and counsel, to make it appear

that his assault upon the marshal and defiance of the court were

caused by his righteous indignation at assaults made by Judge Field

upon his wife's character were puerile, because based on a falsehood.

The best proof of this is the opinion itself.

Judge Terry next applied to the Supreme Court of the United States for

a writ of habeas corpus. In that application he declared that on

the 12th day of September, 1888, he addressed to the Circuit Court a

petition duly verified by his oath, and then stated the petition for

release above quoted. Yet in a communication published in the _San

Francisco Examiner_ of October 22d he solemnly declared that this very

petition was not filed by any one on his behalf. After full argument

by the Supreme Court the writ was denied, November 12, 1888, by an

unanimous court, Justice Field, of course, not sitting in the case.

Justice Harlan delivered the opinion of the Court.

CHAPTER X.

PRESIDENT CLEVELAND REFUSES TO PARDON TERRY--FALSE STATEMENTS OF TERRY

REFUTED.

Before the petition for habeas corpus was presented to the Supreme

Court of the United States, Judge Terry's friends made a strenuous

effort to secure his pardon from President Cleveland. The President

declined to interfere. In his efforts in that direction Judge Terry

made gross misrepresentations as to Judge Field's relations with

himself, which were fully refuted by Judge Heydenfeldt, the very

witness he had invoked. Judge Heydenfeldt had been an associate of

Judge Terry on the State supreme bench. These representations and

their refutation are here given as a necessary element in this

narrative.

Five days after he had been imprisoned, to wit, September 8, Terry

wrote a letter to his friend Zachariah Montgomery at Washington,

then Assistant Attorney-General for the Interior Department under the

Cleveland Administration, in which he asked his aid to obtain a pardon

from the President. Knowing that it would be useless to ask this upon

the record of his conduct as shown by the order for his commitment,

he resorted to the desperate expedient of endeavoring to overcome

that record by putting his own oath to a false statement of the

facts, against the statement of the three judges, made on their own

knowledge, as eye-witnesses, and supported by the affidavits of court

officers, lawyers, and spectators.

To Montgomery he wrote:

"I have made a plain statement of the facts which occurred in

the court, and upon that propose to ask the intervention of

the President, and I request you to see the President; tell

him all you know of me, and what degree of credit should be

given to a statement by me upon my own knowledge of the facts.

When you read the statement I have made you will be satisfied

that the statement in the order of the court is false."

He then proceeded to tell his story as he told it in his petition to

the Circuit Court. His false representations as to the assault he made

upon the marshal, and as to his alleged provocation therefor, were

puerile in the extreme. He stood alone in his declaration that the

marshal first assaulted him, while the three judges and a dozen

witnesses declared the very opposite. His denial that he had assaulted

the marshal with a deadly weapon was contradicted by the judges and

others, who said that they saw him attempt to draw a knife in the

court-room, which attempt, followed up as it was continually until

successful, constituted an assault with that weapon. To call his

bowie-knife "a small sheath-knife," and the outrageous conduct of

his wife "acts of indiscretion;" to pretend that he lost his temper

because he was assaulted "while making an honest effort to peaceably

and quietly enforce the order of the court," and finally to pretend

that his wife had been "unnecessarily assaulted" in his presence, was

all not only false, but simply absurd and ridiculous.

He said: "I don't want to stay in prison six months for an offense of

which I am not guilty. There is no way left except to appeal to the

President. The record of a court imports absolute verity, so I am not

allowed to show that the record of the Circuit Court is absolutely

false. If you can help me in this matter you will confer on me the

greatest possible favor."

He told Montgomery that it had been suggested to him that one

reason for Field's conduct was his refusal to support the latter's

aspirations for the Presidency. In this connection he made the

following statement:

"In March, 1884, I received a note from my friend Judge

Heydenfeldt, saying that he wished to see me on important

business, and asking me to call at his office. I did so, and

he informed me that he had received a letter from Judge Field,

who was confident that if he could get the vote of California

in the Democratic National Convention, which would assemble

that year, he would be nominated for President and would be

elected as, with the influence of his family and their

connection, that he would certainly carry New York; that Judge

Field further said that a Congressman from California and

other of his friends had said that if I would aid him, I could

give him the California delegation; that he understood I

wanted official recognition as, because of my duel years ago,

I was under a cloud; that if I would aid him, I should have

anything I desired."

It will be observed that he here positively states that Judge

Heydenfeldt told him he had received a letter from Judge Field, asking

Terry's aid and promising, for it, a reward. Judge Heydenfeldt, in a

letter dated August 21, 1889, to the _San Francisco Examiner_,

branded Terry's assertion as false. The letter to the _Examiner_ is

as follows:

"The statement made in to-day's _Examiner_ in reference to the

alleged letter from Justice Field to me, derived, as is stated

by Mr. Ashe, from a conversation with Judge Terry, is utterly

devoid of truth.

"I had at one time, many years ago, a letter from Justice

Field, in which he stated that he was going to devote his

leisure to preparing for circulation among his friends his

reminiscences, and, referring to those of early California

times, he requested me to obtain from Judge Terry his,

Terry's, version of the Terry-Broderick duel, in order that

his account of it might be accurate. As soon as I received

this letter, I wrote to Judge Terry, informing him of Judge

Field's wishes, and recommending him to comply, as coming, as

the account would, from friendly hands, it would put him

correct upon the record, and would be in a form which would

endure as long as necessary for his reputation on that

subject.

"I received no answer from Judge Terry, but meeting him, some

weeks after, on the street in this city, he

excused himself, saying that he had been very busy, and adding

that it was unnecessary for him to furnish a version of the

duel, as the published and accepted version was correct.

"The letter to me from Justice Field above referred to is the

only letter from Justice Field to me in which Judge Terry's

name was ever mentioned, and, with the exception of the

above-mentioned street conversation, Judge Field was never the

subject of conversation between Judge Terry and myself, from

the time I left the bench, on the 1st of January, 1857, up to

the time of Terry's death.

"As to the statement that during Terry's trouble with the

Sharon case, I offered Terry the use of Field's letter, it

results from what I have above stated--that it is a vile

falsehood, whoever may be responsible for it.

"I had no such letter, and consequently could have made no

such offer.

"San Francisco, August 21, 1889.

"S. HEYDENFELDT."

Judge Heydenfeldt subsequently addressed the following letter to Judge

Field:

"SAN FRANCISCO, _August 31, 1889_.

"MY DEAR JUDGE: I received yours of yesterday with the extract

from the Washington _Post_ of the 22d inst., containing a

copy of a letter from the late Judge Terry to the Hon. Zack

Montgomery.

"The statement in that letter of a conversation between

Terry and myself in reference to you is untrue. The only

conversation Terry and I ever had in relation to you was, as

heretofore stated, in regard to a request from you to me to

get from Terry his version of the Terry-Broderick duel, to be

used in your intended reminiscences.

"I do not see how Terry could have made such an erroneous

statement, unless, possibly, he deemed that application as

an advance made by you towards obtaining his political

friendship, and upon that built up a theory, which he moulded

into the fancy written by him in the Montgomery letter.

"In all of our correspondence, kept up from time to time

since your first removal to Washington down to the present,

no letter of yours contained a request to obtain the political

support of any one.

"I remain, dear Judge, very truly yours,

"S. HEYDENFELDT.

"Hon. STEPHEN J. FIELD,

"Palace Hotel, San Francisco."

At the hearing of the Neagle case, Justice Field was asked if he had

been informed of any statements made by Judge Terry of ill feeling

existing between them before the latter's imprisonment for contempt.

He replied:

"Yes, sir. Since that time I have seen a letter purporting to

come from Terry to Zack Montgomery, published in Washington,

in which he ascribed my action to personal hostility, because

he had not supported me in some political aspiration. There

is not one particle of truth in that statement. It is a pure

invention. In support of his statement he referred to a letter

received or an interview had with Judge Heydenfeldt. There is

not the slightest foundation for it, and I cannot understand

it, except that the man seems to me to have been all changed

in the last few years, and he did not hesitate to assert

that the official actions of others were governed by improper

considerations. I saw charges made by him against judges of

the State courts; that they had been corrupt in their

decisions against him; that they had been bought. That was

the common assertion made by him when decisions were rendered

against him."

He then referred to the above letters of Judge Heydenfeldt, declaring

Terry's assertion to be false.

It should be borne in mind that Terry's letter to Montgomery was

written September 8th. It directly contradicts what he had said to

ex-Congressman Wigginton on the 5th or 6th of the same month. To

that gentleman he declared that he knew of no "old grudge or little

difference" between himself and Judge Field. He said he had declined

to support the latter for the Presidency, and added: "That may have

caused some alienation, but I do not know that Judge Field knew that."

In his insane rage Terry did not realize how absurd it was to expect

people to believe that Judge Sawyer and Judge Sabin, both Republicans,

had participated in putting him in jail, to punish him for not having

supported Justice Field for the Presidency in a National Democratic

Convention years before.

Perhaps Terry thought his reference to the fact that Judge Field's

name had been previously used in Democratic Conventions, in connection

with the Presidency, might have some effect upon President Cleveland's

mind.

This letter was not forwarded to Zachariah Montgomery until a week

after it was written. He then stated in a postscript that he had

delayed sending it upon the advice of his attorneys pending the

application to the Circuit Court for his release. Again he charged

that the judges had made a false record against him, and that evidence

would be presented to the President to show it.

Terry and his friends brought all the pressure to bear that they could

command, but the President refused his petition for a pardon, and,

as already shown, the Supreme Court unanimously decided that his

imprisonment for contempt had been lawfully ordered. He was therefore

obliged to serve out his time.

Mrs. Terry served her thirty days in jail, and was released on the 3d

of October.

There is a federal statute that provides for the reduction of a term

of imprisonment of criminals for good behavior. Judge Terry sought

to have this statute applied in his case, but without success. The

Circuit Court held that the law relates to state penitentiaries, and

not to jails, and that the system of credits could not be applied to

prisoners in jail. Besides this, the credits in any case are counted

by the year, and not by days or months. The law specifies that

prisoners in state prisons are entitled to so many months' time for

the first year, and so many for each subsequent year. As Terry's

sentence ran for six months, the court said the law could not apply.

He consequently remained in jail until the 3d of March, 1889.

CHAPTER XI.

TERRY'S CONTINUED THREATS TO KILL JUSTICE FIELD--RETURN OF THE LATTER

TO CALIFORNIA IN 1889.

Justice Field left California for Washington in September, 1888, a few

days after the denial of Terry's petition to the Circuit Court for

a release. The threats against his life and that of Judge Sawyer so

boldly made by the Terrys were as well known as the newspaper press

could make them. In addition to this source of information, reports

came from many other directions, telling of the rage of the Terrys and

their murderous intentions. From October, 1888, till his departure

for California, in June following, 1889, his mail almost every day

contained reports of what they were saying, and the warnings and

entreaties of his friends against his return to that State. These

threats came to the knowledge of the Attorney-General of the United

States, who gave directions to the marshal of the northern district of

California to see to it that Justice Field and Judge Sawyer should be

protected from personal violence at the hands of these parties.

Justice Field made but one answer to all who advised against his going

to hold court in California in 1889, and that was, "I cannot and will

not allow threats of personal violence to deter me from the regular

performance of my judicial duties at the times and places fixed by

law. As a judge of the highest court of the country, I should be

ashamed to look any man in the face if I allowed a ruffian, by threats

against my person, to keep me from holding the regular courts in my

circuit."

Terry's murderous intentions became a matter of public notoriety, and

members of Congress and Senators from the Pacific Coast, in interviews

with the Attorney-General, confirmed the information derived by him

from other sources of the peril to which the United States judges in

California were subjected. He, in consequence, addressed the following

letter on the subject to Marshal Franks:

"DEPARTMENT OF JUSTICE,

"WASHINGTON, _April 27, 1889_.

"JOHN C. FRANKS,

"_United States Marshal, San Francisco, Cal._

"SIR: The proceedings which have heretofore been had in the

case of Mr. and Mrs. Terry in your United States Circuit Court

have become matter of public notoriety, and I deem it my duty

to call your attention to the propriety of exercising unusual

precaution, in case further proceedings shall be had in that

case, for the protection of His Honor Justice Field, or

whoever may be called upon to hear and determine the matter.

Of course, I do not know what may be the feelings or purpose

of Mr. and Mrs. Terry in the premises, but many things which

have happened indicate that violence on their part is not

impossible. It is due to the dignity and independence of the

court and the character of its judges that no effort on the

part of the Government shall be spared to make them feel

entirely safe and free from anxiety in the discharge of their

high duties.

"You will understand, of course, that this letter is not for

the public, but to put you upon your guard. It will be proper

for you to show it to the District Attorney if deemed best.

"Yours truly,

"W.H.H. MILLER,

"_Attorney-General_."

A month later the Attorney-General authorized the employment of

special deputies for the purpose named in the foregoing letter.

CHAPTER XII.

FURTHER PROCEEDINGS IN THE STATE COURT.--JUDGE SULLIVAN'S DECISION

REVERSED.

Mrs. Terry did not wait for the release of her husband from jail

before renewing the battle. On the 22d of January, 1889, she gave

notice of a motion in the Superior Court for the appointment of

a receiver who should take charge of the Sharon estate, which she

alleged was being squandered to the injury of her interest therein

acquired under the judgment of Judge Sullivan. On the 29th of January

an injunction was issued by the United States Circuit Court commanding

her and all others to desist from this proceeding. The Terrys seemed

to feel confident that this would bring on a final trial of strength

between the federal and state courts, and that the state court would

prevail in enforcing its judgment and orders.

The motion for a receiver was submitted after full argument, and on

the 3d of June following Judge Sullivan rendered a decision asserting

the jurisdiction of his court to entertain the motion for a

receiver, and declaring the decree of the United States Circuit Court

inoperative. In his opinion Judge Sullivan reviewed the opinion of

Justice Field in the revivor suit, taking issue therewith. As that

decision had been affirmed by the Supreme Court of the United States

nearly a month before, to wit, on the 13th of May, 1889, it was rather

late for such a discussion. Having thus decided, however, that the

motion for a receiver could be made, he set the hearing of the same

for July 15, 1889.

On the 27th of May, one week before the rendering of this decision

by Judge Sullivan, the mandate of the United States Supreme Court had

been filed in the Circuit Court at San Francisco, by which the decree

of that court was affirmed. Whether a receiver would be appointed by

Judge Sullivan, in the face of the decision of the Supreme Court of

the United States, became now an interesting question. Terry and his

lawyers affected to hold in contempt the Supreme Court decree, and

seemed to think no serious attempt would be made to enforce it.

Meantime, both of the Terrys had been indicted in the United States

Circuit Court for the several offenses committed by them in assaulting

the marshal in the court-room as hereinbefore described. These

indictments were filed on the 20th of September. Dilatory motions were

granted from time to time, and it was not until the 4th of June that

demurrers to the indictments were filed. The summer vacation followed

without any argument of these demurrers. It was during this vacation

that Justice Field arrived in California, on the 20th of June. The

situation then existing was as follows:

The criminal proceedings against the Terrys were at a standstill,

having been allowed to drag along for nine months, with no further

progress than the filing of demurrers to the indictments.

The appeal to the Supreme Court of the State from Judge Sullivan's

order denying a new trial had been argued and submitted on the 4th of

May, but no decision had been rendered.

Despite the pendency of that appeal, by reason of which the judgment

of the Supreme Court of the State had not yet become final, and

despite the mandate of the United States Supreme Court affirming the

decree in the revivor case, Judge Sullivan had, as we have already

seen, set the 15th of July for the hearing of the motion of the Terrys

for the appointment of a receiver to take charge of the Sharon estate.

For them to proceed with this motion would be a contempt of the United

States Circuit Court.

The arrival of Justice Field should have instructed Judge Terry that

the decree of that court could not be defied with impunity, and that

the injunction issued in it against further proceedings upon the

judgment in the state court would be enforced with all the power

authorized by the Constitution and laws of the United States for the

enforcement of judicial process.

As the 15th of July approached, the lawyers who had been associated

with Terry commenced discussing among themselves what would be the

probable consequence to them of disobeying an injunction of the United

States Circuit Court. The attorneys for the Sharon estate made known

their determination to apply to that Court for the enforcement of

its writ in their behalf. The Terrys' experience in resisting the

authority of that court served as a warning for their attorneys.

On the morning of the 15th of July Judge Terry and his wife appeared,

as usual, in the Superior Court room. Two of their lawyers came in,

remained a few minutes and retired. Judge Terry himself remained

silent. His wife arose and addressed the court, saying that her

lawyers were afraid to appear for her. She said they feared if they

should make a motion in her behalf, for the appointment of a receiver,

Judge Field would put them in jail; therefore, she said, she appeared

for herself. She said if she got in jail she would rather have her

husband outside, and this was why she made the motion herself, while

he remained a spectator.

The hearing was postponed for several days. Before the appointed

day therefor, the Supreme Court of the State, on the 17th of July,

rendered its decision, reversing the order of Judge Sullivan refusing

a new trial, thereby obliterating the judgment in favor of Sarah Althea,

and the previous decision of the appellate court affirming it. The court

held that this previous judgment had not become the law of the case

pending the appeal from the order denying a new trial. It held that

where two appeals are taken in the same case, one from the judgment

and the other from the order denying a new trial, the whole case must

be held to be under the control of the Supreme Court until the whole

is disposed of, and the case remanded for further proceedings in the

court below. The court reversed its previous decision, and declared

that if the statements made by Sarah Althea and by her witnesses had

been true, she never had been the wife of William Sharon, for the

reason that, after the date of the alleged contract of marriage, the

parties held themselves out to the public as single and unmarried

people, and that even according to the findings of fact by Judge

Sullivan the parties had not assumed marital rights, duties, and

obligations. The case was therefore remanded to the Superior Court

for a new trial.

On the 2d of August the demurrers to the several indictments against

the Terrys came up to be heard in the United States District Court.

The argument upon them concluded on the 5th. On the 7th the demurrer

to one of the indictments against Sarah Althea was overruled and she

entered a plea of not guilty. No decision was rendered at that time

upon either of the five other indictments.

On the following day, August 8th, Justice Field left San Francisco and

went to Los Angeles for the purpose of holding court.

CHAPTER XIII.

ATTEMPTED ASSASSINATION OF JUSTICE FIELD, RESULTING IN TERRY'S OWN

DEATH AT THE HANDS OF A DEPUTY UNITED STATES MARSHAL.

In view of what was so soon to occur, it is important to understand

the condition of mind into which Judge Terry and his wife had now

wrought themselves. They had been married about two years and a half.

In their desperate struggle for a share of a rich man's estate they

had made themselves the terror of the community. Armed at all times

and ready for mortal combat with whoever opposed their claims, they

seemed, up to the 17th of July, to have won their way in the State

courts by intimidation. The decision of the United States Circuit

Court was rendered before they were married. It proclaimed the

pretended marriage agreement a forgery, and ordered it to be delivered

to the clerk of the court for cancellation. Terry's marriage with

Sarah Althea, twelve days after this, was a declaration of intention

to resist its authority.

The conduct of the pair in the Circuit Court on the 3d of September

must have had some object. They may have thought to break up the

session of the court for that day, and to so intimidate the judges

that they would not carry out their purpose of rendering the

decision; or they may have hoped that, if rendered, it would be

allowed to slumber without any attempt to enforce it; or even that a

rehearing might be granted, and a favorable decision forced from

the court. It takes a brave man on the bench to stand firmly for his

convictions in the face of such tactics as were adopted by the Terrys.

The scene was expected also to have its effect upon the minds of the

judges of the Supreme Court of the State, who then were yet to pass

finally upon Sullivan's judgment on the appeal from the order denying

a new trial.

But the Terrys had not looked sufficiently at the possible consequence

of their actions. They had thus far gone unresisted. As District

Attorney Carey wrote to the Attorney-General:

"They were unable to appreciate that an officer should perform

his official duty when that duty in any way requires that his

efforts be directed against them."

When, therefore, Justice Field directed the removal of Mrs. Terry from

the court, and when her doughty defendant and champion, confident of

being able to defeat the order, found himself vanquished in the

encounter, disarmed, arrested, and finally imprisoned, his rage

was boundless. He had found a tribunal which cared nothing for his

threats, and was able to overcome his violence. A court that would put

him in the Alameda jail for six months for resisting its order would

enforce all its decrees with equal certainty.

From the time of the Terrys' incarceration in the Alameda county jail

their threats against Justice Field became a matter of such notoriety

that the drift of discussion was not so much whether they would murder

the Justice, as to when and under what circumstances they would be

likely to do so.

There is little doubt that Terry made many threats for the express

purpose of having them reach the knowledge of Judge Field at

Washington, in the hope and belief that they would deter him from

going to California. He probably thought that the Judge would prefer

to avoid a violent conflict, and that if his absence could be assured

it might result in allowing the decree of the United States Circuit

Court to remain a dead letter.

He told many people that Justice Field would not dare come out to the

Pacific Coast. He got the idea into his mind, or pretended to, that

Justice Field had put him in jail in order to be able to leave for

Washington before a meeting could be had with him. Terry would of

course have preferred Field's absence and a successful execution of

Sullivan's judgment to his presence in the State and the enforcement

of the federal decree.

When the announcement was made that Justice Field had left Washington

for San Francisco, public and private discussions were actively

engaged in, as to where he would be likely to encounter danger. A

special deputy was sent by the marshal to meet the overland train

on which he was travelling, at Reno, in Nevada. The methods of

Mrs. Terry defied all calculations. She was as likely to make her

appearance, with her burly husband as an escort, at the State line,

as she finally did at the breakfast table at Lathrop. Justice Field

reached his quarters in San Francisco on the 20th of June. From that

day until the 14th of August public discussion of what the Terrys

would do continued. Some of the newspapers seemed bent upon provoking

a conflict, and inquired with devilish mischief when Terry was going

to carry out his threatened purpose.

The threats of the Terrys and the rumors of their intended assault

upon Justice Field were reported to him and he was advised to go

armed against such assault, which would be aimed against his life. He

answered: "No, sir! I will not carry arms, for when it is known that

the judges of our courts are compelled to arm themselves against

assaults in consequence of their judicial action it will be time to

dissolve the courts, consider government a failure, and let society

lapse into barbarism."

As the time approached for the hearing of the motion for a receiver

before Judge Sullivan, July 15th, grave apprehensions were entertained

of serious trouble. Great impatience was expressed with the Supreme

Court of the State for not rendering its decision upon the appeal from

the order denying a new trial. It was hoped that the previous decision

might be reversed, and a conflict between the two jurisdictions thus

avoided. When the decision came, on the 17th of July, there seemed

to be some relaxation of the great tension in the public mind. With

the Supreme Court of the State, as well as the Supreme Court of the

United States, squarely on the record against Mrs. Terry's pretensions

to have been the wife of William Sharon, it was hoped that the long

war had ended.

When Justice Field left San Francisco for Los Angeles he had no

apprehensions of danger, and strenuously objected to being accompanied

by the deputy marshal. Some of his friends were less confident. They

realized better than he did the bitterness that dwelt in the hearts

of Terry and his wife, intensified as it was by the realization of the

dismal fact that their last hope had expired with the decision of the

Supreme Court of the State. The marshal was impressed with the danger

that would attend Justice Field's journey to and from the court at Los

Angeles.

He went from San Francisco on the 8th of August.

After holding court in Los Angeles he took the train for San Francisco

August 13th, the deputy marshal occupying a section in the sleeping

car directly opposite to his. Judge Terry and his wife left San

Francisco for their home in Fresno the day following Justice Field's

departure for Los Angeles. Fresno is a station on the Southern Pacific

between Los Angeles and San Francisco. His train left Los Angeles

for San Francisco at 1:30 Tuesday afternoon, August 13th. The deputy

marshal got out at all the stations at which any stop was made for any

length of time, to observe who got on board. Before retiring he asked

the porter of the car to be sure and wake him in time for him to get

dressed before they reached Fresno. At Fresno, where they arrived

during the night, he got off the train and went out on the platform.

Among the passengers who took the train at that station were Judge

Terry and wife. He immediately returned to the sleeper and informed

Justice Field, who had been awakened by the stopping of the train,

that Terry and his wife had got on the train. He replied: "Very well.

I hope that they will have a good sleep."

Neagle slept no more that night. The train reached Merced, an

intervening station between Fresno and Lathrop, at 5:30 that morning.

Neagle there conferred with the conductor, on the platform, and

referred to the threats so often made by the Terrys. He told him that

Justice Field was on the train, and that he was accompanying him. He

requested him to telegraph to Lathrop, to the constable usually in

attendance there, to be at hand, and that if any trouble occurred he

would assist in preventing violence.

Justice Field got up before the train reached Lathrop, and told

the deputy marshal that he was going to take his breakfast in the

dining-room at that place. The following is his statement of what took

place:

"He said to me, 'Judge, you can get a good breakfast at the buffet on

board.' I did not think at the time what he was driving at, though I

am now satisfied that he wanted me to take breakfast on the car and

not get off. I said I prefer to have my breakfast at this station. I

think I said I had come down from the Yosemite Valley a few days

before, and got a good breakfast there, and was going there for that

purpose.

"He replied: 'I will go with you.' We were among the first to get off

from the train."

As soon as the train arrived, Justice Field, leaning on the arm of

Neagle, because of his lameness, proceeded to the dining-room, where

they took seats for breakfast.

There were in this dining-room fifteen tables, each one of which was

ten feet long and four feet wide. They were arranged in three rows of

five each, the tables running lengthwise with each other, with spaces

between them of four feet. The aisles between the two rows were about

seven feet apart, the rows running north and south.

Justice Field and Neagle were seated on the west side of the middle

table in the middle row, the Justice being nearer the lower corner of

the table, and Neagle at his left. Very soon after--Justice Field says

"a few minutes," while Neagle says "it may be a minute or so"--Judge

Terry and his wife entered the dining-room from the east. They walked

up the aisle, between the east and middle rows of tables, so that

Justice Field and Neagle were faced towards them. Judge Terry preceded

his wife. Justice Field saw them and called Neagle's attention to

them. He had already seen them.

As soon as Mrs. Terry had reached a point nearly in front of Justice

Field, she turned suddenly around, and scowling viciously, went in

great haste out of the door at which she had come in. This was for the

purpose, as it afterwards appeared, of getting her satchel with the

pistol in it, which she had left in the car. Judge Terry apparently

paid no attention to this movement, but proceeded to the next table

above and seated himself at the upper end of it, facing the table at

which Justice Field was seated. Thus there were between

the two men as they sat at the tables a distance equal to two

table-lengths and one space of four feet, making about twenty-four

feet. Terry had been seated but a very short time--Justice Field

thought it a moment or two, Neagle thought it three or four

minutes--when he arose and moved down towards the door, this time

walking through the aisle _behind_ Justice Field, instead of the one

in front of him as before. Justice Field supposed, when he arose, that

he was going out to meet his wife, as she had not returned, and went

on with his breakfast; but when Terry had reached a point behind him,

and a little to the right, within two or three feet of him, he halted.

Justice Field was not aware of this, nor did he know that Terry had

stopped, until he was struck by him a violent blow in the face from

behind, followed instantaneously by another blow at the back of his

head. Neagle had seen Terry stop and turn. Between this and Terry's

assault there was a pause of four or five seconds. Instantaneously

upon Terry's dealing a blow, Neagle leaped from his chair and

interposed his diminutive form between Justice Field and the enraged

and powerful man, who now sought to execute his long-announced and

murderous purpose. Terry gave Justice Field no warning of his presence

except a blow from behind with his right hand.

As Neagle rose, he shouted: "Stop, stop, I am an officer." Judge Terry

had drawn back his right arm for a third blow at Justice Field, and with

clinched fist was about to strike, when his attention was thus arrested

by Neagle, and looking at him he evidently recognized in him the man who

had drawn the knife from his hand in the corridor before the marshal's

office on the third of September of the preceding year, while he was

attempting to cut his way into the marshal's office. Neagle put his right

hand up as he ordered Terry to stop, when Terry carried his right hand at

once to his breast, evidently to seize the knife which he had told the

Alameda county jailer he "always carried." Says Neagle:

"This hand came right to his breast. It went a good deal

quicker than I can explain it. He continued looking at me in a

desperate manner and his hand got there."

The expression of Terry's face at that time was described by Neagle in

these words:

"The most desperate expression that I ever saw on a man's

face, and I have seen a good many in my time. It meant life or

death to me or him."

Having thus for a moment diverted the blow aimed at Justice Field and

engaged Terry himself, Neagle did not wait to be butchered with the

latter's ready knife, which he was now attempting to draw, but raised

his six-shooter with his left hand (he is left-handed) and holding

the barrel of it with his right hand, to prevent the pistol from

being knocked out of his hands, he shot twice; the first shot into

Terry's body and the second at his head. Terry immediately commenced

sinking very slowly. Knowing by experience that men mortally wounded

have been often known to kill those with whom they were engaged in

such an encounter, Neagle fired the second shot to defend himself and

Justice Field against such a possibility.

The following is an extract from Justice Field's testimony, commencing

at the point where Judge Terry rose from his seat at the breakfast

table:

"I supposed, at the time, he was going out to meet his wife,

as she had not returned, so I went on with my breakfast. It

seems, however, that he came around back of me. I did not see

him, and he struck me a violent blow in the face, followed

instantaneously by another blow. Coming so immediately

together, the two blows seemed like one assault. I heard

'Stop, stop,' cried by Neagle. Of course I was for a moment

dazed by the blows. I turned my head around and saw that great

form of Terry's with his arm raised and fist clinched to

strike me. I felt that a terrific blow was coming, and his arm

was descending in a curved way as though to strike the side of

my temple, when I heard Neagle cry out: 'Stop, stop, I am an

officer.' Instantly two shots followed. I can only explain the

second shot from the fact that he did not fall instantly. I

did not get up from my seat, although it is proper for me to

say that a friend of mine thinks I did, but I did not. I

looked around and saw Terry on the floor. I looked at him and

saw that particular movement of the eyes that indicates the

presence of death. Of course it was a great shock to me. It is

impossible for any one to see a man in the full vigor of life,

with all those faculties that constitute life instantly

extinguished without being affected, and I was. I looked at

him for a moment, then went around and looked at him again,

and passed on. Great excitement followed. A gentleman came to

me, whom I did not know, but I think it was Mr. Lidgerwood,

who has been examined as a witness in this case, and said:

'What is this?' I said: 'I am a Justice of the Supreme Court

of the United States. My name is Judge Field. Judge Terry

threatened my life and attacked me, and the deputy marshal has

shot him.' The deputy marshal was perfectly cool and

collected, and stated: 'I am a deputy marshal, and I have shot

him to protect the life of Judge Field.' I cannot give you the

exact words, but I give them to you as near as I can remember

them. A few moments afterwards the deputy marshal said to me:

'Judge, I think you had better go to the car.' I said, 'Very

well.' Then this gentleman, Mr. Lidgerwood, said: 'I think you

had better.' And with the two I went to the car. I asked Mr.

Lidgerwood to go back and get my hat and cane, which he did.

The marshal went with me, remained some time, and then left

his seat in the car, and, as I thought, went back to the

dining-room. (This is, however, I am told, a mistake, and that

he only went to the end of the car.) He returned, and either

he or some one else stated that there was great excitement;

that Mrs. Terry was calling for some violent proceedings. I

must say here that, dreadful as it is to take life, it was

only a question of seconds whether my life or Judge Terry's

life should be taken. I am firmly convinced that had the

marshal delayed two seconds both he and myself would have been

the victims of Terry.

"In answer to a question whether he had a pistol or other

weapon on the occasion of the homicide, Justice Field replied:

'No, sir. I have never had on my person or used a weapon since

I went on the bench of the Supreme Court of this State, on the

13th of October, 1857, except once, when, years ago, I rode

over the Sierra Nevada mountains in a buggy with General

Hutchinson, and at that time I took a pistol with me for

protection in the mountains. With that exception, I have not

had on my person, or used, any pistol or other deadly

weapon.'"

Judge Terry had fallen very near the place where he first stopped,

near the seat occupied by Justice Field at the table.

Neagle testified that if Justice Field had had a weapon, and been

active in using it, he was at such a disadvantage, seated as he was,

with Terry standing over him, that he would have been unable to raise

his hand in his own defense.

A large number of witnesses were examined, all of whom agreed upon the

main facts as above stated. Some of them distinctly heard the

blows administered by Terry upon Justice Field's face and head. All

testified to the loud warning given Terry by Neagle that he was an

officer of the law, accompanied by his command that Terry should

desist. It was all the work of a few seconds. Terry's sudden attack,

the quick progress of which, from the first blow, was neither arrested

nor slackened until he was disabled by the bullet from Neagle's

pistol, could have been dealt with in no other way. It was evidently a

question of the instant whether Terry's knife or Neagle's pistol should

prevail. Says Neagle:

"He never took his eyes off me after he looked at me, or I

mine off him. I did not hear him say anything. The only thing

was he looked like an infuriated giant to me. I believed if I

waited two seconds I should have been cut to pieces. I was

within four feet of him."

Q. "What did the motion that Judge Terry made with his right

hand indicate to you?"

A. "That he would have had that knife out there within another

second and a half, and trying to cut my head off."

Terry, in action at such a time, from all accounts, was more like an

enraged wild animal than a human being. The supreme moment had arrived

to which he had been looking forward for nearly a year, when the life

of the man he hated was in his hands. He had repeatedly sworn to take

it. Not privately had he made these threats. With an insolence and an

audacity born of lawlessness and of a belief that he could hew his

way with a bowie-knife in courts as well as on the streets, he had

publicly sentenced Judge Field to death as a penalty for vindicating

the majesty of the law in his imprisonment for contempt.

It would have been the wildest folly that can be conceived of for the

murderous assault of such a man to have been met with mild persuasion,

or an attempt to arrest him. As well order a hungry tiger to desist

from springing at his prey, to sheathe his outstretched claws and

suffer himself to be bound, as to have met Terry with anything less

than the force to which he was himself appealing. Every man who knows

anything of the mode of life and of quarrelling and fighting among the

men of Terry's class knows full well that when they strike a blow they

mean to follow it up to the death, and they mean to take no chances.

The only way to prevent the execution of Terry's revengeful and openly

avowed purpose was by killing him on the spot. Only a lunatic or

an imbecile or an accomplice would have pursued any other course

in Neagle's place than the one he pursued, always supposing he had

Neagle's nerve and cool self-possession to guide him in such a crisis.

While this tragedy was being enacted Mrs. Terry was absent, having

returned to the car for the satchel containing her pistol. Before she

returned, the shot had been fired that defeated the conspiracy between

her and her husband against the life of a judge for the performance of

his official duties. She returned to the hotel with her satchel in

her hand just as her husband met his death. The manager of the hotel

stopped her at the door she was entering, and seized her satchel.

She did not relinquish it, but both struggled for its possession. A

witness testified that she screamed out while so struggling: "Let me

get at it; I will fix him." Many witnesses testified to her frantic

endeavor to get the pistol. She called upon the crowd to hang the man

that killed Judge Terry, and cried out, "Lynch Judge Field." Again and

again she made frantic appeals to those present to lynch Judge Field.

She tried to enter the car where he was, but was not permitted to do

so. She cried out, "If I had my pistol I would fix him."

The testimony subsequently taken left no room to doubt that Terry had

his deadly knife in its place in his breast at the time he made

the attack on Justice Field. As the crowd were all engaged in

breakfasting, his movements attracted little attention, and his motion

toward his breast for the knife escaped the notice of all but Neagle

and one other witness. Neagle rushed between Terry and Justice Field,

and the latter had not a complete view of his assailant at the moment

when the blow intended for him was changed into a movement for the

knife with which Judge Terry intended to dispose of the alert little

man, with whom he had had a former experience, and who now stood

between him and the object of his greater wrath.

But the conduct of Mrs. Terry immediately after the homicide was

proof enough that her husband's knife had been in readiness. The

conductor of the train swore that he saw her lying over the body of

her husband about a minute, and when she rose up she unbuttoned his

vest and said: "You may search him; he has got no weapon on him." Not

a word had been said about his having had a weapon. No one had made a

movement towards searching him, as ought to have been done; but this

woman, who had been to the car for her pistol and returned with it to

join, if necessary, in the murderous work, had all the time and

opportunity necessary for taking the knife from its resting-place

under his vest, smearing one of her hands with his blood, which

plainly showed where it had been and what she had been doing. Neagle

could not search the body, for his whole attention was directed to

the protection of Justice Field. Mrs. Terry repeated the challenge to

search the body for the knife after it had been removed. This showed

clearly that the idea uppermost in her mind was to then and there

manufacture testimony that he had not been armed at all. Her

eagerness on this subject betrayed her. Had she herself then been

searched, after rising from Terry's body, the knife would doubtless

have been found concealed upon her person. A number of witnesses

testified to her conduct as above described. She said also: "You will

find that he has no arms, for I took them from him in the car, and I

said to him that I did not want him to shoot Justice Field, but I did

not object to a fist bout."

This reference to a fist bout was, of course, an admission that they

had premeditated the assault. It was Judge Terry's knife and not a

pistol that Judge Field had to fear. Terry's threats had always

pointed to some gross indignity that he would put upon Justice Field,

and then kill him if he resented or resisted it. One of his threats

was that he would horsewhip Judge Field, and that if he resented it

he would kill him. In short, his intentions seem to have been to

commit an assassination in alleged self-defense.

The train soon left the station for San Francisco. A constable of

Lathrop had taken the train, and addressing Neagle told him that he

would have to arrest him. This officer had no warrant and did not

himself witness the homicide. Justice Field told him that he ought to

have a warrant before making the arrest, remarking, if a man should

shoot another when he was about to commit a felony, such as setting

fire to your house, you would not arrest him for a murder; or if a

highwayman got on the train to plunder. The officer replied very

courteously by the suggestion that there would have to be an inquest.

Neagle at once said, "I am ready to go," thinking it better to avoid

all controversy, and being perfectly willing to answer anywhere for

what he had done. Arriving at the next station (Tracy), Neagle and

the officer took a buggy and went to the county jail at Stockton.

Thus was a deputy marshal of the United States withdrawn from the

service of his Government while engaged in a most important and as

yet unfinished duty because he had with rigid faithfulness performed

that duty. He was arrested by an officer who had no warrant and had

not witnessed the homicide, and lodged in jail.

Meanwhile a detective in San Francisco received a telegram from the

sheriff of San Joaquin county to arrest Judge Field. Supposing it to

be his duty to comply with this command, the detective crossed the bay

to meet the train for that purpose. Marshal Franks said to him: "You

shall not arrest him. You have no right to do so. It would be an

outrage, and if you attempt it I will arrest you."

The news of these exciting events produced an intense excitement in

San Francisco. Upon his arrival at this place, under the escort of the

marshal and many friends, Justice Field repaired to his quarters in

the Palace Hotel.

CHAPTER XIV.

SARAH ALTHEA TERRY CHARGES JUSTICE FIELD AND DEPUTY MARSHAL NEAGLE

WITH MURDER.

The body of Judge Terry was taken from Lathrop to Stockton,

accompanied by his wife, soon after his death. On that very evening

Sarah Althea Terry swore to a complaint before a justice of the peace

named Swain, charging Justice Field and Deputy Marshal Neagle with

murder. After the investigation before the coroner Assistant District

Attorney Gibson stated that the charge against Justice Field would be

dismissed, as there was no evidence whatever to connect him with the

killing.

Mrs. Terry did not see the shooting and was not in the hotel at the

time of the homicide. Having, therefore, no knowledge upon which to

base her statement, her affidavit was entitled to no greater

consideration than if it had stated that it was made solely upon her

belief without any positive information on the subject.

Only the most violent of Terry's friends favored the wanton indignity

upon Justice Field, and his arrest, but they had sufficient influence

with the district attorney, Mr. White, a young and inexperienced

lawyer, to carry him along with them. The justice of the peace

before whom Sarah Althea had laid the information issued a warrant

on the following day for the arrest both of Justice Field and Neagle.

From this time this magistrate and the district attorney appeared to

act under orders from Mrs. Terry.

The preliminary examination was set for Wednesday of the following

week, during which time the district attorney stated for publication

that Justice Field would have to go to jail and stay there during the

six intervening days. It was obvious to all rational minds that Mrs.

Terry's purpose was to use the machinery of the magistrate's court

for the purpose of taking Judge Field to Stockton, where she could

execute her threats of killing him or having him killed; and if she

should fail to do so, or postpone it, then to have the satisfaction

of placing a justice of the Supreme Court of the United States in a

prisoner's cell, and hold him there for six days awaiting an

examination, that being the extreme length of time that he could be

so held under the statute. The district attorney was asked if he had

realized the danger of bringing Justice Field to Stockton, where he

might come in contact with Mrs. Terry. The officer replied:

"We had intended that if Justice Field were brought here, Mrs. Terry

would be placed under the care of _her friends_, and that all

precautions to prevent any difficulty that was in the power of the

district attorney would be taken." That was to say, Mrs. Terry would

do no violence to Justice Field unless "her friends" permitted her to

do so. As some of them were possessed of the same murderous feelings

towards Justice Field as those named here, the whole transaction had

the appearance of a conspiracy to murder him.

No magistrate can lawfully issue a warrant without sufficient evidence

before him to show probable cause. It was a gross abuse of power and

an arbitrary and lawless act to heed the oath of this frenzied woman,

who notoriously had not witnessed the shooting, and had, but a few

hours before, angrily insisted upon having her own pistol returned to

her that she, herself, might kill Justice Field. It was beyond belief

that the magistrate believed that there was probable cause, or the

slightest appearance of a cause, upon which to base the issue of the

warrant.

Neagle was brought into court at Stockton at 10 o'clock on the morning

after the shooting, to wit, on Thursday, the 15th, and his preliminary

examination set for Wednesday, the 21st. Bail could not be given prior

to that examination. This examination could have proceeded at once,

and a delay of six days can only be accounted for by attributing it to

the malice and vindictiveness of the woman who seemed to be in charge

of the proceedings.

The keen disappointment of Mrs. Terry, and those who were under her

influence, at Judge Terry's failure to murder Justice Field, must

have been greatly soothed by the prospect of having yet another

chance at the latter's life, and, in any event, of seeing him in a

cell in the jail during the six days for which the examination could

be delayed for that express purpose. The sheriff of San Joaquin

county proceeded to San Francisco with the warrant for his arrest on

Thursday evening. In company with the chief of police and Marshal

Franks, he called upon Justice Field, and after a few moments'

conversation it was arranged that he should present the warrant at

one o'clock on the following day, at the building in which the

federal courts are held.

CHAPTER XV.

JUSTICE FIELD'S ARREST AND PETITION FOB RELEASE ON HABEAS CORPUS.

At the appointed hour Justice Field awaited the sheriff in his

chambers, surrounded by friends, including judges, ex-judges, and

members of the bar. As the sheriff entered Justice Field arose and

pleasantly greeted him. The sheriff bore himself with dignity, and

with a due sense of the extraordinary proceeding in which his duty as

an officer required him to be a participant. With some agitation he

said: "Justice Field, I presume you are aware of the nature of my

errand." "Yes," replied the Justice, "proceed with your duty; I am

ready. An officer should always do his duty." The sheriff stated to

him that he had a warrant, duly executed and authenticated, and asked

him if he should read it. "I will waive that, Mr. Sheriff," replied

the Justice. The sheriff then handed him the warrant, which he read,

folded it up and handed it back, saying pleasantly: "I recognize your

authority, sir, and submit to the arrest; I am, sir, in your custody."

Meanwhile a petition had been prepared to be presented to Judge Sawyer

for a writ of _habeas corpus_, returnable at once before the United

States court. As soon as the arrest was made the petition was signed

and presented to Judge Sawyer, who ordered the writ to issue returnable

forthwith. In a very few minutes U.S. Marshal Franks served the writ

on the sheriff.

While the proceedings looking to the issue of the writ were going

on, Justice Field had seated himself, and invited the sheriff to be

seated. The latter complied with the invitation, and began to say

something in regard to the unpleasant duty which had devolved upon

him, but Justice Field promptly replied: "Not so, not so; you are but

doing your plain duty, and I mine in submitting to arrest. It is the

first duty of judges to obey the law."

As soon as the _habeas corpus_ writ had been served, the sheriff

said he was ready to go into the court. "Let me walk with you," said

Justice Field, as they arose, and took the sheriff's arm. In that way

they entered the court-room. Justice Field seated himself in one of

the chairs usually occupied by jurors. Time was given to the sheriff

to make a formal return to the writ; and in a few minutes he formally

presented it. The petition of Judge Field for the writ set forth

his official character, and the duties imposed upon him by law, and

alleged that he had been illegally arrested, while he was in the

discharge of those duties, and that his illegal detention interfered

with and prevented him from discharging them.

Then followed a statement of the facts, showing the arrest and

detention to be illegal. This statement embraced the principal facts

connected with the contempt proceedings in 1888, and the threats then

and thereafter made by the Terrys of violence upon Justice Field; the

precautions taken in consequence thereof by the Department of Justice

for his protection from violence at their hands, and the murderous

assault made upon him, and his defense by Deputy Marshal Neagle,

resulting in the death of Terry, and that he, the petitioner, in no

manner defended or protected himself, and gave no directions to

the deputy marshal, and that he was not armed with any weapon. The

petition then states: "That under the circumstances detailed, the

said Sarah Althea Terry, as your petitioner is informed and believes,

and upon such information and belief alleges, falsely and maliciously

swore out the warrant of arrest hereinbefore set out against your

petitioner, without any further basis for the charge of murder than

the facts hereinbefore detailed, and that the warrant aforesaid was

issued by such justice of the peace, without any just or probable

cause therefor. * * * And your petitioner further represents that the

charge against him, and the warrant of arrest in the hands of said

sheriff, are founded upon the sole affidavit of Mrs. Sarah Althea

Terry, who was not present and did not see the shooting which caused

the death of said David S. Terry."

In order to show the little reliance to be placed in the oath of Mrs.

Terry, the petition stated: "That in a suit brought by William

Sharon, now deceased, against her before her marriage to the said

Terry, it was proved and held by the Circuit Court of the United

States that she had committed the forgery of the document produced in

that case, and had attempted to support it by perjury and subornation

of perjury, and had also been guilty of acts and conduct showing

herself to be an abandoned woman, without veracity. * * *

"Your petitioner further represents that the abandoned character of

the said Sarah Althea Terry, and the fact that she was found guilty

of perjury and forgery in the case above mentioned by the said

Circuit Court, and the fact of the revengeful malice entertained

toward your petitioner by said Sarah Althea Terry, are notorious in

the State of California, and are notorious in the city of Stockton,

and as your petitioner believes are well known to the district

attorney of the said county of San Joaquin, and also to the said

justice of the peace who issued the said warrant; and your petitioner

further alleges that had either of the said officers taken any pains

whatever to ascertain the truth in the case, he would have

ascertained and known that there was not the slightest pretext or

foundation for any such charge as was made, and also that the

affidavit of the said Sarah Althea Terry was not entitled to the

slightest consideration whatever.

"Your petitioner further states that it is to him incomprehensible

how any man, acting in a consideration of duty, could have listened

one moment to charges from such a source, and without having sought

some confirmation from disinterested witnesses; and your petitioner

believes and charges that the whole object of the proceeding is to

subject your petitioner to the humiliation of arrest and confinement

at Stockton, where the said Sarah Althea Terry may be able, by the

aid of partisans of hers, to carry out her long-continued and

repeated threats of personal violence upon your petitioner, and to

prevent your petitioner from discharging the duties of his office in

cases pending against her in the federal court at San Francisco."

The sheriff's return was as follows:

"Return of sheriff of San Joaquin county, Cala., County of San

Joaquin, State of California:

"SHERIFF'S OFFICE.

"_To the Honorable Circuit Court of the United States for the

Northern District of California:_

"I hereby certify and return that before the coming to me of

the hereto-annexed writ of _habeas corpus_, the said Stephen

J. Field was committed to my custody, and is detained by me

by virtue of a warrant issued out of the justice's court of

Stockton township, State of California, county of San Joaquin,

and by the endorsement made upon said warrant. Copy of said

warrant and endorsement is annexed hereto, and made a part of

this return. Nevertheless, I have the body of the said Stephen

J. Field before the honorable court, as I am in the said writ

commanded.

"August 16, 1889.

"THOMAS CUNNINGHAM,

"_Sheriff, San Joaquin Co., California_."

In order to give the petitioner time to traverse the return if he

thought it expedient to do so, and to give him and the State time to

produce witnesses, the further hearing upon the return was adjourned

until the following Thursday morning, the 22d, and the petitioner was

released on his recognizance with a bond fixed at $5,000.

On the same day a petition on the part of Neagle was presented to

Judge Sawyer asking that a writ of _habeas corpus_ issue in his behalf

to Sheriff Cunningham. The petition was granted at once, and served

upon the sheriff immediately after the service of the writ issued on

behalf of Justice Field. Early on the morning of Saturday, August 17,

Neagle was brought from Stockton by the sheriff at 4:30 A.M. District

Attorney White and Mrs. Terry's lawyer, Maguire, were duly notified of

this movement and were passengers on the same train. At 10:30 Sheriff

Cunningham appeared in the Circuit Court with Neagle to respond to

the writ. He returned that he held Neagle in custody, under a warrant

issued by a justice of the peace of that county, a copy of which he

produced; and also a copy of the affidavit of Sarah Althea Terry

upon which the warrant was issued. A traverse to that return was then

filed, presenting various grounds why the petitioner should not be

held, the most important of which were that an officer of the United

States, specially charged with a particular duty, that of protecting

one of the justices of the Supreme Court of the United States

whilst engaged in the performance of his duty, could not, for an act

constituting the very performance of that duty, be taken from the

further discharge of his duty and imprisoned by the State authorities,

and that when an officer of the United States in the discharge of his

duties is charged with an offense consisting in the performance of

those duties, and is sought to be arrested, and taken from the further

performance of them, he can be brought before the tribunals of the

nation of which he is an officer, and the fact then inquired into. The

attorney-general of the State appeared with the district attorney

of San Joaquin county, and contended that the offense of which

the petitioner was charged could only be inquired into before the

tribunals of the State.

CHAPTER XVI.

JUDGE TERRY'S FUNERAL--REFUSAL OF THE SUPREME COURT OF CALIFORNIA TO

ADJOURN ON THE OCCASION.

The funeral of Judge Terry occurred on Friday, the 16th. An

unsuccessful attempt was made for a public demonstration. The fear

entertained by some that eulogies of an incendiary character would be

delivered was not realized. The funeral passed off without excitement.

The rector being absent, the funeral service was read by a vestryman

of the church.

On the day after Judge Terry's death the following proceedings

occurred in the Supreme Court of the State:

Late in the afternoon, just after the counsel in a certain action had

concluded their argument, and before the next cause on the calendar

was called, James L. Crittenden, Esq., who was accompanied by W.T.

Baggett, Esq., arose to address the court. He said: "Your honors, it

has become my painful and sad duty to formally announce to the court

the death of a former chief justice"--

Chief Justice Beatty: "Mr. Crittenden, I think that is a matter which

should be postponed until the court has had a consultation about it."

The court then, without leaving the bench, held a whispered

consultation. Mr. Crittenden then went on to say: "I was doing this at

the request of several friends of the deceased. It has been customary

for the court to take formal action prior to the funeral. In this

instance, I understand the funeral is to take place to-morrow."

Chief Justice Beatty: "Mr. Crittenden, the members of the court wish

to consult with each other on this matter, and you had better postpone

your motion of formal announcement until to-morrow morning."

Mr. Crittenden and Mr. Baggett then withdrew from the court-room.

On the following day, in the presence of a large assembly, including

an unusually large attendance of attorneys, Mr. Crittenden renewed his

motion. He said:

"If the court please, I desire to renew the matter which I

began to present last evening. As a friend--a personal

friend--of the late Judge Terry, I should deem myself very

cold, indeed, and very far from discharging the duty which is

imposed upon that relation, if I did not present the matter

which I propose to present to this bench this morning. I have

known the gentleman to whom I have reference for over thirty

years, and I desire simply now, in stating that I make this

motion, to say that the friendship of so many years, and the

acquaintance and intimacy existing between that gentleman and

his family and myself for so long a period, require that I

should at this time move this court, as a court, out of

recollection for the memory of the man who presided in the

Supreme Court of this State for so many years with honor,

ability, character, and integrity, and, therefore, I ask this

court, out of respect for his memory, to adjourn during the

day on which he is to be buried, which is to-day."

Chief Justice Beatty said:

"I regret very much that counsel should have persisted in

making this formal announcement, after the intimation from the

court. Upon full consultation we thought it would be better

that it should not be done. The circumstances of Judge Terry's

death are notorious, and under these circumstances this court

had determined that it would be better to pass this matter in

silence, and not to take any action upon it; and that is the

order of the court."

The deceased had been a chief justice of the tribunal which, by its

silence, thus emphasized its condemnation of the conduct by which he

had placed himself without the pale of its respect.

CHAPTER XVII.

HABEAS CORPUS PROCEEDINGS IN JUSTICE FIELD'S CASE.

On Thursday, August 22d, the hearing of the _habeas corpus_ case of

Justice Field commenced in the United States Circuit Court, under

orders from the Attorney-General, to whom a report of the whole matter

had been telegraphed. The United States district attorney appeared

on behalf of Justice Field. In addition to him there also appeared as

counsel for Justice Field, Hon. Richard T. Mesick, Saml. M. Wilson,

Esq., and W.F. Herrin, Esq. The formal return of the writ of _habeas

corpus_ had been made by the sheriff of San Joaquin county on the

16th. To that return Justice Field presented a traverse, which was in

the following language, and was signed and sworn to by him:

"The petitioner, Stephen J. Field, traverses the return of the

sheriff of San Joaquin county, State of California, made by

him to the writ of _habeas corpus_ by the circuit judge on the

ninth circuit, and made returnable before the Circuit Court of

said circuit, and avers:

"That he is a justice of the Supreme Court of the United

States, allotted to the ninth judicial circuit, and is now and

has been for several weeks in California, in attendance upon

the Circuit Court of said circuit in the discharge of his

judicial duties; and, further, that the said warrant of the

justice of the peace, H.V.J. Swain, in Stockton, California,

issued on the 14th day of August, 1889, under which the

petitioner is held, was issued by said justice of the peace

without reasonable or probable cause, upon the sole affidavit

of one Sarah Althea Terry, who did not see the commission of

the act which she charges to have been a murder, and who is

herself a woman of abandoned character, and utterly unworthy

of belief respecting any matter whatever; and, further, that

the said warrant was issued in the execution of a conspiracy,

as your petitioner is informed, believes, and charges, between

the said Sarah Althea Terry and the district attorney, White,

and the said justice of the peace, H.V.J. Swain, and one E.L.

Colnon, of said Stockton, to prevent by force and intimidation

your petitioner from discharging the duties of his office

hereafter, and to injure him in his person on account of the

lawful discharge of the duties of his office heretofore, by

taking him to Stockton, where he could be subjected to

indignities and humiliation, and where they might compass his

death.

"That the said conspiracy is a crime against the United

States, under the laws thereof, and was to be executed by an

abuse of the process of the State court, two of said

conspirators being officers of the said county of San Joaquin,

one the district attorney and the other a justice of the

peace, the one to direct and the other to issue the warrant

upon which your petitioner could be arrested.

"And the petitioner further avers that the issue of said writ

of _habeas corpus_ and the discharge of your petitioner

thereunder were and are essential to defeat the execution of

the said conspiracy.

"And your petitioner further avers that the accusation of

crime against him, upon which said warrant was issued, is a

malicious and malignant falsehood, for which there is not even

a pretext; that he neither advised nor had any knowledge of

the intention of any one to commit the act which resulted in

the death of David S. Terry, and that he has not carried or

used any arm or weapon of any kind for nearly thirty years.

"All of which your petitioner is ready to establish by full

and competent proof.

"Wherefore your petitioner prays that he may be discharged

from said arrest and set at liberty.

"STEPHEN J. FIELD."

The facts alleged in this document were beyond dispute, and

constituted an outrageous crime, and one for which the conspirators

were liable to imprisonment for a term of six years, under section

5518 of the Revised Statutes of the United States. To this traverse

the counsel for the sheriff filed a demurrer, on the ground that it

did not appear by it that Justice Field was in custody for an act done

or omitted in pursuance of any law of the United States, or of any

order or process or decree of any court or judge thereof, and it did

not appear that he was in custody in violation of the Constitution

or any law or treaty of the United States. The case was thereupon

submitted with leave to counsel to file briefs at any time before the

27th of August, to which time the further hearing was adjourned.

Before that hearing the Governor of the State addressed the following

communication to the attorney-general:

"EXECUTIVE DEPARTMENT,

"STATE OF CALIFORNIA,

"SACRAMENTO, _August 21, 1889_.

"Hon. A.G. JOHNSTON,

"_Attorney-General, Sacramento_.

"DEAR SIR: The arrest of Hon. Stephen J. Field, a justice of

the Supreme Court of the United States, on the unsupported

oath of a woman who, on the very day the oath was taken, and

often before, threatened his life, will be a burning disgrace

to the State unless disavowed. I therefore urge upon you the

propriety of at once instructing the district attorney of San

Joaquin county to dismiss the unwarranted proceedings against

him.

"The question of the jurisdiction of the state courts in the

case of the deputy United States marshal, Neagle, is one for

argument. The unprecedented indignity on Justice Field does

not admit of argument.

"Yours truly,

"R.W. WATERMAN,

"_Governor_."

This letter of Governor Waterman rang out like an alarm bell, warning

the chief law officer of the State that a subordinate of his was

prostituting its judicial machinery to enable a base woman to put

a gross indignity upon a justice of the Supreme Court of the United

States, whom she had just publicly threatened to kill, and also to aid

her in accomplishing that purpose. The wretched proceeding had already

brought upon its authors indignant denunciation and merciless ridicule

from every part of the Union. The attorney-general responded to the

call thus made upon him by instructing the district attorney to dismiss

the charge against Justice Field, because no evidence existed to

sustain it.

The rash young district attorney lost no time in extricating himself

from the position in which the arrest of Justice Field had placed

him. On the 26th of August, upon his motion, and the filing of the

attorney-general's letter, the charge against Justice Field was

dismissed by the justice of the peace who had issued the warrant

against him.

The dismissal of this charge released him from the sheriff's claim to

his custody, and the _habeas corpus_ proceedings in his behalf fell

to the ground. On the 27th, the day appointed for the further hearing,

the sheriff announced that in compliance with the order of the

magistrate he released Justice Field from custody, whereupon the case

of _habeas corpus_ was dismissed.

In making the order, Circuit Judge Sawyer severely animadverted on

what he deemed the shameless proceeding at Stockton. He said:

"We are glad that the prosecution of Mr. Justice Field has

been dismissed, founded, as it was, upon the sole, reckless,

and as to him manifestly false affidavit of one whose relation

to the matters leading to the tragedy, and whose animosity

towards the courts and judges who have found it their duty to

decide against her, and especially towards Mr. Justice Field,

is a part of the judicial and notorious public history of the

country.

"It was, under the circumstances, and upon the sole affidavit

produced, especially after the coroner's inquest, so far as

Mr. Justice Field is concerned, a shameless proceeding, and,

as intimated by the Governor of the Commonwealth, if it had

been further persevered in, would have been a lasting disgrace

to the State.

"While a justice of the Supreme Court of the United States,

like every other citizen, is amenable to the laws, he is not

likely to commit so grave an offense as murder, and should he

be so unfortunate as to be unavoidably involved in any way in

a homicide, he could not afford to escape, if it were in his

power to do so; and when the act is so publicly performed

by another, as in this instance, and is observed by so many

witnesses, the officers of the law should certainly have taken

some little pains to ascertain the facts before proceeding

to arrest so distinguished a dignitary, and to attempt to

incarcerate him in prisons with felons, or to put him in a

position to be further disgraced, and perhaps assaulted by one

so violent as to be publicly reported, not only then but on

numerous previous occasions, to have threatened his life.

"We are extremely gratified to find that, through the action

of the chief magistrate, and the attorney-general, a higher

officer of the law, we shall be spared the necessity of

further inquiring as to the extent of the remedy afforded the

distinguished petitioner, by the Constitution and laws of the

United States, or of enforcing such remedies as exist, and

that the stigma cast upon the State of California by this

hasty and, to call it by no harsher term, ill-advised arrest

will not be intensified by further prosecution."

Thus ended this most remarkable attempt upon the liberty of a United

States Supreme Court Justice, under color of State authority, the

execution of which would again have placed his life in great peril.

The grotesque feature of the performance was aptly presented by the

following imaginary dialogue which appeared in an Eastern paper:

Newsboy: "Man tried to kill a judge in California!"

Customer: "What was done about it?"

Newsboy: "Oh! They arrested the judge."

The illegality of Justice Field's arrest will be perfectly evident

to whoever will read sections 811, 812, and 813 of the Penal Code of

California. These sections provide that no warrant can be issued by

a magistrate until he has examined, on oath, the informant, taken

depositions setting forth the facts tending to establish the

commission of the offense and the guilt of the accused, and himself

been satisfied by these depositions that there is reasonable ground

that the person accused has committed the offense. None of these

requirements had been met in Justice Field's case.

It needs no lawyer to understand that a magistrate violates the plain

letter as well as the spirit of these provisions of law when he

issues a warrant without first having before him some evidence of the

probable, or at least the possible, guilt of the accused. If this were

otherwise, private malice could temporarily sit in judgment upon the

object of its hatred, however blameless, and be rewarded for perjury

by being allowed the use of our jails as places in which to satisfy

its vengeance. Such a view of the law made Sarah Althea the magistrate

at Stockton on the 14th of August, and Justice Swain her obsequious

amanuensis. Such a view of the law would enable any convict who had

just served a term in the penitentiary to treat himself to the luxury

of dragging to jail the judge who sentenced him, and keeping him

there without bail as long as the magistrate acting for him could be

induced to delay the examination.

The arrest of Justice Field was an attempt to kidnap him for a foul

purpose, and if the United States circuit judge had not released him

he would have been the victim of as arbitrary and tyrannical treatment

as is ever meted out in Russia to the most dangerous of nihilists,

to punish him for having narrowly escaped assassination by no act or

effort of his own.

CHAPTER XVIII.

HABEAS CORPUS PROCEEDINGS IN NEAGLE'S CASE.

This narrative would not be complete without a statement of the

proceedings in the United States Circuit Court, and in the United

States Supreme Court on appeal, in the _habeas corpus_ proceedings in

the case of Neagle, the deputy marshal, whose courageous devotion to

his official duties had saved the life of Justice Field at the expense

of that of his would-be assassin. We have already seen that Neagle,

being in the custody of the sheriff of San Joaquin county, upon a

charge of murder in the shooting of Judge Terry, had presented a

petition to the United States Circuit Court for a writ of _habeas

corpus_ to the end that he might thereby be restored to his liberty.

A writ was issued, and upon its return, August 17th, the sheriff of

San Joaquin county produced Neagle and a copy of the warrant under

which he held him in custody, issued by the justice of the peace of

that county, and also of the affidavit of Sarah Althea Terry, upon

which the warrant was granted. Neagle being desirous of traversing the

return of the sheriff, further proceedings were adjourned until the

22d of the month, and in the meantime he was placed in the custody of

the United States marshal for the district. On the 22d a traverse of the

return was filed by him stating the particulars of the homicide with

which he was charged as narrated above, and averring that he was at

the time of its commission a deputy marshal of the United States for

the district, acting under the orders of his superior, and under the

directions of the Attorney-General of the United States in protecting

the Associate Justice, whilst in the discharge of his duties, from

the threatened assault and violence of Terry, who had declared that on

meeting the Justice he would insult, assault, and kill him, and that

the homicide with which the petitioner is charged was committed in

resisting the attempted execution of these threats in the belief that

Terry intended at the time to kill the Justice, and that but for such

homicide he would have succeeded in his attempt. These particulars

are stated with great fullness of detail. To this traverse, which was

afterwards amended, but not in any material respect, a demurrer was

interposed for the sheriff by the district attorney of San Joaquin

county. Its material point was that it did not appear from the

traverse that Neagle was in the custody of the sheriff for an act done

or omitted in pursuance of any law of the United States, or any order,

process, or decree of any court or judge thereof, or in violation

of the Constitution or a treaty of the United States. The court then

considered whether it should hear testimony as to the facts of the case,

or proceed with the argument of the demurrer to the traverse. It decided

to take the testimony, and to hear counsel when the whole case was

before it, on the merits as well as on the question of jurisdiction.

The testimony was then taken. It occupied several days, and brought

out strongly the facts which have been already narrated, and need not

here be repeated. When completed, the question of the jurisdiction of

the Circuit Court of the United States to interfere in the matter was

elaborately argued by the attorney-general of the State, and special

counsel who appeared with the district attorney of San Joaquin county

on behalf of the State, they contending that the offense, with which

the petitioner was charged, could only be inquired into before a

tribunal of the State. Mr. Carey, United States district attorney,

and Messrs. Herrin, Mesick, and Wilson, special counsel, appeared on

behalf of the petitioner, and contended for the jurisdiction, and for

the discharge of the petitioner upon the facts of the case. They did

not pretend that any person in the State, be he high or low, might not

be tried by the local authorities for a crime committed against the

State, but they did contend that when the alleged crime consisted in

an act which was claimed to have been done in the performance of a

duty devolving upon him by a law of the United States, it was

within the competency of their courts to inquire, in the first

instance, whether that act thus done was in the performance of a duty

devolving upon him; and if it was, that the alleged offender had

not committed a crime against the State, and was entitled to be

discharged. Their arguments were marked by great ability and learning,

and their perusal would be interesting and instructive, but space will

not allow me to give even a synopsis of them.

The court, in deciding the case, went into a full and elaborate

consideration, not only of its jurisdiction, but of every objection on

the merits presented by counsel on behalf of the State. Only a brief

outline can be given.

The court held that it was within the competency of the President,

and of the Attorney-General as the head of the Department of Justice,

representing him, to direct that measures be taken for the protection

of officers of the Government whilst in the discharge of their duties,

and that it was specially appropriate that such protection should

be given to the justices of the Supreme Court of the United States,

whilst thus engaged in their respective circuits, and in passing to

and from them; that the Attorney-General, representing the President,

was fully justified in giving orders to the marshal of the California

district to appoint a deputy to look specially to the protection of

Justices Field and Sawyer from assault and violence threatened by Terry

and his wife; and that the deputy marshal, acting under instructions

for their protection, was justified in any measures that were necessary

for that purpose, even to taking the life of the assailant.

The court recognized that the Government of the United States

exercised full jurisdiction, within the sphere of its powers, over

the whole territory of the country, and that when any conflict arose

between the State and the General Government in the administration

of their respective powers, the authority of the United States must

prevail, for the Constitution declares that it and the laws of the

United States in pursuance thereof "shall be the supreme law of the

land, and that the judges in every State shall be bound thereby,

anything in the Constitution and laws of any State to the contrary

notwithstanding." The court quoted the language of the Supreme Court

in Tennessee v. Davis (100 U.S. 257, 263), that "It [the General

Government] can act only through its officers and agents, and they

must act within the States. If, when thus acting and within the scope

of their authority, those officers can be arrested and brought to

trial in a State court, for an alleged offense against the law of the

State, yet warranted by the Federal authority they possess, and if

the General Government is powerless to interfere at once for their

protection--if their protection must be left to the action of the

State court--the operations of the General Government may, at any

time, be arrested at the will of one of its members. The legislation

of a State may be unfriendly. It may affix penalties to acts done

under the immediate direction of the National Government and in

obedience to its laws. It may deny the authority conferred by those

laws. The State court may administer not only the laws of the State,

but equally Federal law, in such a manner as to paralyze the

operations of the Government. And even if, after trial and final

judgment in the State court, a case can be brought into the

United States court for review, the officer is withdrawn from the

discharge of his duty during the pendency of the prosecution, and

the exercise of acknowledged Federal power arrested. We do not think

such an element of weakness is to be found in the Constitution. The

United States is a government with authority extending over the whole

territory of the Union, acting upon the States and upon the people of

the States. While it is limited in the number of its powers, so far

as its sovereignty extends, it is supreme. No State government can

exclude it from the exercise of any authority conferred upon it by the

Constitution, obstruct its authorized officers against its will, or

withhold from it, for a moment, the cognizance of any subject which

that instrument has committed to it." To this strong language the

Circuit Court added:

"The very idea of a government composed of executive,

legislative, and judicial departments necessarily comprehends

the power to do all things, through its appropriate officers

and agents, within the scope of its general governmental

purposes and powers, requisite to preserve its existence,

protect it and its ministers, and give it complete efficiency

in all its parts. It necessarily and inherently includes power

in its executive department to enforce the laws, keep the

national peace with regard to its officers while in the line

of their duty, and protect by its all-powerful arm all the

other departments and the officers and instrumentalities

necessary to their efficiency while engaged in the discharge

of their duties."

In language attributed to Mr. ex-Secretary Bayard, used with reference

to this very case, which we quote, not as a controlling judicial

authority, but for its intrinsic, sound, common sense, "The robust

and essential principle must be recognized and proclaimed, that the

inherent powers of every government which is sufficient to authorize

and enforce the judgment of its courts are, equally, and at all times,

and in all places, sufficient to protect the individual judge

who, fearlessly and conscientiously in the discharge of his duty,

pronounces those judgments."

In reference to the duties of the President and the powers of the

Attorney-General under him, and of the latter's control of the

marshals of the United States, the court observed that the duties of

the President are prescribed in terse and comprehensive language in

section 3 of article II of the Constitution, which declares that "he

shall take care that the laws be faithfully executed;" that this

gives him all the authority necessary to accomplish the purposes

intended--all the authority necessarily inherent in the office, not

otherwise limited, and that Congress, added the court, in pursuance

of powers vested in it, has provided for seven departments, as

subordinate to the President, to aid him in performing his executive

functions. Section 346, R.S., provides that "there shall be at

the seat of government an executive department to be known as the

Department of Justice, and an Attorney-General, who shall be the head

thereof." He thus has the general supervision of the executive branch

of the national judiciary, and section 362 provides, as a portion of

his powers and duties, that he "shall exercise general superintendence

and direction over the attorneys and marshals of all the districts in

the United States and the Territories as to the manner of discharging

their respective duties; and the several district attorneys and

marshals are required to report to the Attorney-General an account of

their official proceedings, and of the state and condition of their

respective offices, in such time and manner as the Attorney-General

may direct." Section 788, R.S., provides that "the marshals and their

deputies shall have, in each State, the same powers in executing the

laws of the United States as the sheriffs and their deputies in such

State may have, by law, in executing the laws thereof." By section 817

of the penal code of California the sheriff is a "peace officer," and

by section 4176 of the political code he is "to preserve the peace"

and "prevent and suppress breaches of the peace." The marshal is,

therefore, under the provisions of the statute cited, "a peace

officer," so far as keeping the peace in any matter wherein the powers

of the United States are concerned, and as to such matters he has

all the powers of the sheriff, as peace officer under the laws of the

State. He is, in such matters, "to preserve the peace" and

"prevent and suppress breaches of the peace." An assault upon or an

assassination of a judge of a United States court while engaged in any

matter pertaining to his official duties, on account or by reason of

his judicial decisions, or action in performing his official duties,

is a breach of the peace, affecting the authority and interests of the

United States, and within the jurisdiction and power of the marshal or

his deputies to prevent as a peace officer of the National Government.

Such an assault is not merely an assault upon the person of the judge

as a man; it is an assault upon the national judiciary, which he

represents, and through it an assault upon the authority of the nation

itself. It is, necessarily, a breach of the national peace. As a

national peace officer, under the conditions indicated, it is the duty

of the marshal and his deputies to prevent a breach of the national

peace by an assault upon the authority of the United States, in the

person of a judge of its highest court, while in the discharge of his

duty. If this be not so, in the language of the Supreme Court, "Why

do we have marshals at all?" What useful functions can they perform in

the economy of the National Government?