Section 787 of the Revised Statutes also declares that "It shall be

the duty of the marshal of each district to attend the District and

Circuit Courts when sitting therein, and to execute throughout the

district all lawful precepts directed to him and issued under the

authority of the United States, and he shall have power to command all

necessary assistance in the execution of his duty." There is no more

authority specifically conferred upon the marshal by this section to

protect the judge from assassination in open court, without a specific

order or command, than there is to protect him out of court, when on

the way from one court to another in the discharge of his official

duties. The marshals are in daily attendance upon the judges,

and performing official duties in their chambers. Yet no statute

specifically points out those duties or requires their performance.

Indeed, no such places as chambers for the circuit judges or circuit

justices are mentioned at all in the statutes. Yet the marshal is as

clearly authorized to protect the judges there as in the court-room.

All business done out of court by the judge is called chamber

business. But it is not necessary to be done in what is usually

called chambers. Chamber business may be done, and often is done, on

the street, in the judge's own house, at the hotel where he stops,

when absent from home, or it may be done in transitu, on the cars in

going from one place to another within the proper jurisdiction to

hold court. Mr. Justice Field could, as well, and as authoritatively,

issue a temporary injunction, grant a writ of _habeas corpus_, an

order to show cause, or do any other chamber business for the

district in the dining-room at Lathrop, as at his chambers in San

Francisco, or in the court-room. The chambers of the judge, where

chambers are provided, are not an element of jurisdiction, but are a

convenience to the judge, and to suitors--places where the judge at

proper times can be readily found, and the business conveniently

transacted.

But inasmuch as the Revised Statutes of the United States (sec.

753) declare that the writ of _habeas corpus_ shall not extend to "a

prisoner in jail unless where he is in custody--for an act done or

omitted in pursuance of a _law_ of the United States, or of an order,

process, or decree of a court or judge thereof, or in custody in

violation of the Constitution or of a law or treaty of the United

States," it was urged in the argument by counsel for the State that

there is no statute which specifically makes it the duty of a marshal

or deputy marshal to protect the judges of the United States whilst

out of the court-room, travelling from one point to another in their

circuits, on official business, from the violence of litigants who

have become offended at the adverse decisions made by them in the

performance of their judicial duties, and that such officers are not

within the provisions of that section. To this the court replied that

the language of the section is, "an act done in pursuance of a _law_

of the United States"--not in pursuance of a statute of the United

States; and that the statutes do not present in express terms all the

law of the United States; that their incidents and implications are as

much a part of the law as their express provisions; and that when

they prescribe duties providing for the accomplishment of certain

designated objects, or confer authority in general terms, they carry

with them all the powers essential to effect the ends designed. As

said by Chief Justice Marshall in Osborn v. Bank of the United States

(9 Wheaton, 865-866), "It is not unusual for a legislative act to

involve consequences which are not expressed. An officer, for example,

is ordered to arrest an individual. It is not necessary, nor is it

usual, to say that he shall not be punished for obeying this order.

His security is implied in the order itself. It is no unusual thing

for an act of Congress to imply, without expressing, this very

exemption from State control, which is said to be so objectionable

in this instance. The collectors of the revenue, the carriers of

the mail, the mint establishment, and all those institutions which

are public in their nature, are examples in point. It has never

been doubted that all who are employed in them are protected while

in the line of duty; and yet this protection is not expressed

in any act of Congress. It is incidental to, and is implied

in, the several acts by which these institutions are created; and

is secured to the individuals employed in them by the judicial power

alone--that is, the judicial power is the instrument employed by the

Government in administering this security."

Upon this the Circuit Court observed:

"If the officers referred to in the preceding passage are to

be protected while in the line of their duty, without any

special law or statute requiring such protection, the judges

of the courts, the principal officers in a department of the

Government second to no other, are also to be protected, and

their executive subordinates--the marshals and their

deputies--shielded from harm by the national laws while

honestly engaged in protecting the heads of the courts from

assassination."[1]

To the position that the preservation of the peace of the State is

devolved solely upon the officers of the State, and not in any respect

upon the marshals of the United States, the court replied: This

position is already answered by what has been said. But it is

undoubtedly true that it was the imperative duty of the State

to preserve the public peace and amply protect the life of Justice

Field, _but it did not do it_, and had the United States relied upon

the State to keep the peace as to him--one of the justices of the

highest court--in relation to matters concerning the performance of

his official duties, they would have leaned upon a broken reed. The

result of the efforts to obtain an officer from the State to assist

in preserving the peace and protecting him at Lathrop was anything

but successful. The officer of the State at Lathrop, instead of

arresting the conspirator of the contemplated murderer, the wife of

the deceased, arrested the officer of the United States, assigned

by the Government to the special duty of protecting the justice

against the very parties, while in the actual prosecution of duties

assigned to him, without warrant, thereby leaving his charge without

the protection provided by the Government he was serving, at a time

when such protection seemed most needed. And, besides, the use of

the State police force beyond the limits of a county for the

protection of Justice Field would have been impracticable, as the

powers of the sheriff would have ended at its borders, and of other

township and city peace officers at the boundaries of their respective

townships and cities. Only a United States marshal or his deputy could

have exercised these official functions throughout the judicial

district, which embraces many counties. The only remedy suggested on

the part of the State was to arrest the deceased and hold him to bail

to keep the peace under section 706 of the Penal Code, the highest

limit of the amount of bail being $5,000. But although the threats are

conceded to have been publicly known in the State, no State officer

took any means to provide this flimsy safeguard. And the execution of

a bond in this amount to keep the peace would have had no effect in

deterring the intended assailants from the, commission of the offense

contemplated, when the penalties of the law would not deter them.

As to the deliberation and wisdom of Neagle's conduct under the

circumstances, the court, after stating the established facts,

concludes as follows:

"When the deceased left his seat, some thirty feet distant,

walked stealthily down the passage in the rear of Justice

Field and dealt the unsuspecting jurist two preliminary blows,

doubtless by way of reminding him that the time for vengeance

had at last come, Justice Field was already at the traditional

'wall' of the law. He was sitting quietly at a table, back to

the assailant, eating his breakfast, the side opposite being

occupied by other passengers, some of whom were women,

similarly engaged. When, in a dazed condition, he awoke to the

reality of the situation and saw the stalwart form of the

deceased with arm drawn back for a final mortal blow, there

was no time to get under or over the table, had the law, under

any circumstances, required such an act for his justification.

Neagle could not seek a 'wall' to justify his acts without

abandoning his charge to certain death. When, therefore, he

sprang to his feet and cried, 'Stop! I am an officer,' and saw

the powerful arm of the deceased drawn back for the final

deadly stroke instantly change its direction to his left

breast, apparently seeking his favorite weapon, the knife, and

at the same time heard the half-suppressed, disappointed growl

of recognition of the man who, with the aid of half a dozen

others, had finally succeeded in disarming him of his knife at

the court-room a year before, the supreme moment had come, or,

at least, with abundant reason he thought so, and fired the

fatal shot. The testimony all concurs in showing this to be

the state of facts, and the almost universal consensus of

public opinion of the United States seems to justify the act.

On that occasion a second, or two seconds, signified, at

least, two valuable lives, and a reasonable degree of prudence

would justify a shot one or two seconds too soon rather than a

fraction of a second too late. Upon our minds the evidence

leaves no doubt whatever that the homicide was fully justified

by the circumstances. Neagle on the scene of action, facing

the party making a murderous assault, knowing by personal

experience his physical powers and his desperate character,

and by general reputation his life-long habit of carrying

arms, his readiness to use them, and his angry, murderous

threats, and seeing his demoniac looks, his stealthy assault

upon Justice Field from behind, and, remembering the sacred

trust committed to his charge--Neagle, in these trying

circumstances, was the party to determine when the supreme

moment for action had come, and if he, honestly, acted with

reasonable judgment and discretion, the law justifies him,

even if he erred. But who will have the courage to stand up in

the presence of the facts developed by the testimony in this

case, and say that he fired the smallest fraction of a second

too soon?

"In our judgment he acted, under the trying circumstances

surrounding him, in good faith and with consummate courage,

judgment, and discretion. The homicide was, in our opinion,

clearly justifiable in law, and in the forum of sound,

practical common sense commendable. This being so, and the act

having been 'done * * * in pursuance of a law of the United

States,' as we have already seen, it cannot be an offense

against, and he is not amenable to, the laws of the State."

The petitioner was accordingly discharged from arrest.

[1] NOTE.--I find the following apt illustrations of this doctrine

in a journal of the day:

If a military or naval officer of the United States, in the

necessary suppression of a mutiny or enforcement of obedience,

should wound or take the life of a subordinate, would it

be contended that, if arrested for that act by the State

authority, he could not be released on _habeas corpus_,

because no statute expressly authorized the performance of the

act? If the commander of a revenue cutter should be directed

to pursue and retake a vessel which, after seizure, had

escaped from the custody of the law, and the officer in the

performance of that duty, and when necessary to overcome

resistance, should injure or kill a member of the crew of the

vessel he was ordered to recapture, and if for that act

he should be arrested and accused of crime under the State

authority, will any sensible person maintain that the

provisions of the _habeas corpus_ act could not be invoked for

his release, notwithstanding that no statute could be shown

which directly authorized the act for which he was arrested?

If by command of the President a company of troops were

marched into this city to protect the subtreasury from

threatened pillage, and in so doing life were taken, would not

the act of the officer who commanded the troops be an act

done in pursuance of the laws of the United States, and in the

lawful exercise of its authority? Could he be imprisoned and

tried before a State jury on the charge of murder, and the

courts of the United States be powerless to inquire into the

facts on _habeas corpus_, and to discharge him if found to

have acted in the performance of his duty? Can the authority

of the United States for the protection of their officers be

less than their authority to protect their property?

There appears to be but one rational answer to these

questions.

In all these cases the authority vested in the officer to

suppress a mutiny, or to overtake and capture an escaped

vessel, or to protect the subtreasury from threatened pillage,

carries with it power to do all things necessary to accomplish

the object desired, even the killing of the offending party.

The law conferring the authority thus extended to the officer

in these cases, is in the sense of the _habeas corpus_ act,

a law of the United States to do all things necessary for the

execution of that authority.

CHAPTER XIX.

EXPRESSIONS OF PUBLIC OPINION.

This case and all the attendant circumstances--the attempted

assassination of Justice Field by his former associate, Terry; the

defeat of this murderous attempt by Deputy Marshal Neagle; the arrest

of Justice Field and the deputy marshal upon the charge of murder,

and their discharge--created very great interest throughout the United

States. They were the subject of articles in all the leading journals

of the country; and numerous telegrams and letters of congratulation

were sent to the Justice on his escape from the murderous attempt.

Satisfaction was very generally expressed at the fate which Terry met,

and much praise was given to the courageous conduct of Neagle and at

the bearing of Justice Field under the trying circumstances.

A few of the letters received by him are here given, and citations

are made from some of the periodicals, which indicated the general

sentiment of the country.

Letter from Hon. T.F. Bayard, ex-Secretary of State:

WILMINGTON, DELAWARE, _August 18, 1889_.

MY DEAR BROTHER FIELD:

I was absent from home when I first saw in the newspapers an

account of the infamous assault of the Terrys--husband and

wife--upon you, and the prompt and courageous action of Deputy

Marshal Neagle that happily frustrated the iniquitous plot

against your life.

Accept, my dear friend, my fervent congratulations on your

escape from the designs of this madman and of the shameless

creature who was his wife and accomplice.

For the sake of our country and its reputation in the eyes of

Christendom, I am indeed grateful that this vile stab at its

judicial power, as vested in your personality, miscarried, and

that by good fortune the insane malice of a disappointed

suitor should have been thwarted.

Your dignified courage in this tragical episode is most

impressive, and, while it endears you the more to those who

love you, will wring even from your foes a tribute of respect

and admiration.

Passing over the arguments that may be wrought out of the

verbiage of our dual constitution of government, the robust

and essential principle _must_ be recognized and

proclaimed--that the _inherent powers_ of every government

which are sufficient to authorize and enforce the judgments 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.

The case, my dear friend, is not yours alone; it is equally

mine and that of every other American. A principle so vital to

society, to the body politic, was never more dangerously and

wickedly assailed than by the assault of Terry and his wife

upon you for your just and honorable performance of your duty

as a magistrate.

I can well comprehend the shock to which this occurrence has

subjected you, and I wish I could be by your side to give you

assurance orally (if any were needed) of that absolute

sympathy and support to which you are so fully entitled. But

these lines will perhaps suffice to make you feel the

affectionate and steadfast regard I entertain for you, and

which this terrible event has but increased.

I cannot forbear an expression of the hope that the arguments

of jurisdictional and other points which must attend the

litigation and settlement of this tragedy may not be abated or

warped to meet any temporary local or partisan demand.

The voice of Justice can never speak in clearer or more divine

accents than when heard in vindication and honor of her own

faithful ministers.

Ever, my dear Judge Field,

Sincerely yours,

T.F. BAYARD.

The Hon. STEPHEN J. FIELD,

_San Francisco, Cal_.

Letter from Hon. E.J. Phelps, former Minister to England:

BURLINGTON, VERMONT, _August 17, 1889_.

MY DEAR JUDGE FIELD:

Pray let me congratulate you most heartily on the Terry

transaction. Nothing that has ever occurred in the

administration of justice has given me more satisfaction than

this prompt, righteous, and effectual vindication through an

officer of the court of the sanctity of the judiciary when in

the discharge of its duty. What your marshal did was exactly

the right thing, at the right time, and in the right way. I

shall be most happy to join in a suitable testimonial to him,

if our profession will, as they ought, concur in presenting

it. * * *

Your own coolness and carriage in confronting this danger in

the discharge of your duty must be universally admired, and

will shed an additional lustre on a judicial career which was

distinguished enough without it.

You have escaped a great peril--acquired a fresh

distinction--and vindicated most properly the dignity of your

high station.

I am glad to perceive that this is the general opinion.

Anticipating the pleasure of seeing you in Washington next

term,

I am always, dear sir,

Most sincerely yours,

E.J. PHELPS.

Letter from Hon. George F. Hoar, Senator from Massachusetts:

WORCESTER, _August 16, 1889_.

MY DEAR JUDGE FIELD:

I think I ought to tell you, at this time, how high you stand

in the confidence and reverence of all good men here, how

deeply they were shocked by this outrage attempted not so much

on you as on the judicial office itself, and how entirely the

prompt action of the officer is approved. I hope you may long

be spared to the public service.

I am faithfully yours,

GEO. F. HOAR.

Letter from Hon. J. Proctor Knott, for many years a Member of Congress

from Kentucky and Chairman of the Judiciary Committee of the House of

Representatives, and afterwards Governor of Kentucky:

LEBANON, KENTUCKY, _September 5, 1889_.

MY DEAR JUDGE: * * *

I have had it in mind to write you from the moment I first

heard of your fortunate escape from the fiendish assassination

with which you were so imminently threatened, but I have,

since the latter part of May, been suffering from a most

distressing affection of the eyes which has rendered it

extremely difficult, and frequently, for days together, quite

impossible to do so. Even now, though much improved, I write

in great pain, but I cannot get my consent to delay it longer

on any account. You are to be congratulated, my dear friend,

and you know that no one could possibly do so with more

genuine, heartfelt sincerity than I do myself. * * *

I had been troubled, ever since I saw you had gone to your

circuit, with apprehensions that you would be assassinated, or

at least subjected to some gross outrage, and cannot express

my admiration of the serene heroism with which you went to

your post of duty, determined not to debase the dignity of

your exalted position by wearing arms for your defense,

notwithstanding you were fully conscious of the danger which

menaced you. It didn't surprise me, however; for I knew the

stuff you were made of had been tested before. But I _was_

surprised and disgusted, too, that _you_ should have been

charged or even suspected of anything wrong in the matter. The

magistrate who issued the warrant for your arrest may possibly

have thought it his duty to do so, without looking beyond the

"railing accusation" of a baffled and infuriated murderess,

which all the world instinctively knew to be false, yet I

suppose there is not an intelligent man, woman, or child on

the continent who does not consider it an infamous and

unmitigated outrage, or who is not thoroughly satisfied that

the brave fellow who defended you so opportunely was legally

and morally justifiable in what he did. I have not been in a

condition to _think_ very coherently, much less to read

anything in relation to the question of jurisdiction raised by

the State authorities in the _habeas corpus_ issued in your

behalf by the U.S. Circuit Court, and it may be that, from

the mere newspaper's reports that have reached me, I have been

unable to fully apprehend the objections which are made to the

courts hearing all the facts on the trial of the writ; but it

occurs to me as a plain principle of common sense that the

federal government should not only have the power, but that it

is necessary to its own preservation, to protect its officers

from being wantonly or maliciously interfered with, hindered

or obstructed in the lawful exercises of their official

duties, not arbitrarily of course, but through its regularly

constituted agencies, and according to the established

principles of law; and where such obstruction consists in the

forcible restraint of the officer's liberty, I see no reason

why the federal judiciary should not inquire into it on

_habeas corpus_, when it is alleged to be not only illegal but

contrived for the very purpose of hindering the officer in the

discharge of his official duties, and impairing the efficiency

of the public service. It is true that in such an

investigation a real or apparent conflict between State and

federal authority may be presented, which a due regard to the

respective rights of the two governments would require to be

considered with the utmost caution, such caution, at least, as

it is fair to presume an intelligent court would always be

careful to exercise, in view of the absolute importance of

maintaining as far as possible the strictest harmony between

the two jurisdictions. Yet those rights are determined and by

fixed legal principles, which it would be impossible for a

court to apply in any case without a competent knowledge of

the _facts_ upon which their application in the particular

case might depend. For instance, if your court should issue a

writ of _habeas corpus_ for the relief of a federal officer

upon the averments in his petition that he was forcibly and

illegally restrained of his liberty for the purpose of

preventing him from performing his official duties, and it

should appear in the return to the writ that the person

detaining the prisoner was a ministerial officer of the State

government authorized by its laws to execute its process, and

that he held the petitioner in custody by virtue of a warrant

of arrest in due form, issued by a competent magistrate, to

answer for an offense against the State laws, I presume the

court, in the absence of any further showing, would instantly

remand the petitioner to the custody of the State authorities

without regard to his official position or the nature of his

public duties. But, on the other hand, suppose there should be

a traverse of the return, averring that the warrant of the

arrest, though apparently regular in all respects, was in

truth but a fraudulent contrivance designed and employed for

the sole purpose of hindering and obstructing the petitioner

in the performance of his duties as an officer of the

government of the United States; that the magistrate who

issued it, knowingly and maliciously abused his authority for

that purpose in pursuance of a conspiracy between himself and

others, and not in good faith, and upon probable cause to

bring the prisoner to justice for a crime against the State.

How then? Here is an apparent conflict--not a _real_

one--between the rights of the government of the United States

and the government of the State. The one has a right to the

service of its officer, and the right to prevent his being

unlawfully interfered with or obstructed in the performance of

his official duties; the other has the right to administer its

laws for the punishment of crime through its own tribunals;

but it must be observed that the former has no right to shield

one of its officers from a valid prosecution for a violation

of the laws of the latter not in conflict with the

Constitution and laws of the United States, nor can it be

claimed that the latter has any right to suffer its laws to be

prostituted, and its authority fraudulently abused, in aid of

a conspiracy to defeat or obstruct the functions of the

former. Such an abuse of authority is not, and cannot be in

any sense, a _bona fide_ administration of State laws, but is

itself a crime against them. What, then, would your court do?

You would probably say: If it is true that this man is held

without probable cause under a fraudulent warrant, issued in

pursuance of a conspiracy to which the magistrate who issued

it was a party, to give legal color to a malicious

interference with his functions as a federal official, he is

the victim of a double crime--a crime against the United

States and a crime against the State--and it is not only our

duty to vindicate his right to the free exercise of his

official duties, but the right of the federal government to

his services, and its right to protect him in the legal

performance of the same. But if, on the other hand, he has

raised a mere "false clamor"--if he is held in good faith upon

a valid warrant to answer for a crime committed against the

State, it is equally as obligatory upon us to uphold its

authority, and maintain its right to vindicate its own laws

through its own machinery. To determine between these two

hypotheses we must know the _facts_. * * * The same simple

reasoning, it occurs to me, applies to Mr. Neagle's case.

Whether he acted in the line of his duty under the laws of the

United States, as an officer of that government, is clearly a

question within the jurisdiction of the federal judiciary. If

he _did_, he cannot be held responsible to the State

authority; if he did _not_, he should answer, if required,

before its tribunals of justice. I presume no court of

ordinary intelligence, State or federal, would question these

obvious principles; but how _any_ court could determine

whether he did or did not act in the line of his official duty

under the laws of his government without a judicial inquiry

into the _facts_ connected with the transaction I am unable to

imagine. * * *

I am, as always,

Your faithful friend,

J. PROCTOR KNOTT.

Hon. S.J. FIELD,

_Associate Justice Supreme Court U.S._

Letter from Hon. William D. Shipman, formerly U.S. District Judge for

the district of Connecticut:

NEW YORK, _October 20, 1889_.

DEAR JUDGE:

* * * * *

I have attentively read Judge Sawyer's opinion in the Neagle

_habeas corpus_ case, and I agree with his main conclusions.

It seems to me that the whole question of jurisdiction turns

on the fact whether you were, at the time the assault was made

on you, engaged in the performance of your official duty.

You had been to Los Angeles to hold court there and had

finished that business. In going there you were performing

an official duty as much as you were when you had held court

there. It was then your official duty to go from Los Angeles

to San Francisco and hold court there. You could not hold

court at the latter place without going, and you were engaged

in the line of your official duty in performing that journey

for that purpose, as you were in holding the court after you

got there. The idea that a judge is not performing official

duty when he goes from court-house to court-house or from

court-room to court-room in his own circuit seems to me to

be absurd. The distance from one court-house or court-room to

another is not material, and does not change or modify the act

or duty of the judge.

Now, Neagle was an officer of your court, charged with the

duty of protecting your person while you were engaged in the

performance of your official duty. _His_ duty was to see

to it that you were not unlawfully prevented from performing

_your_ official duty--not hindered or obstructed therein. For

the State authorities to indict him for repelling the assault

on you in the only way which he could do so effectually seems

to me to be as unwarranted by law as it would be for them

to indict him for an assault on Terry when he assisted in

disarming the latter in the court-room last year.

When, therefore, it was conceded on the argument that if the

affair at Lathrop had taken place in the court-room during the

sitting of the court, the jurisdiction of the Circuit Court

would be unquestionable, it is difficult for me to see why

the whole question of federal jurisdiction was not embraced in

that concession. Assassinating a judge _on_ the bench would no

more obstruct and defeat public justice than assassinating him

on his way to the bench. In each case he is _proceeding in the

line of official duty imposed on him by law and_ his official

oath. The law requires him to go to court wherever the latter

is held, and he is as much engaged in performing the duty

thus imposed on him while he is proceeding to the place of

his judicial labors as he is in performing the latter after he

gets there.

It would, therefore, seem to go without saying that any acts

done in defense and protection of the judge in the performance

of the duties of his office must pertain to the exclusive

jurisdiction of the court of which he forms a part.

The fact that the assault on you was avowedly made in revenge

for your judicial action in a case heard by you gives a darker

tinge to the deed, but, perhaps, does not change the legal

character of the assault itself.

That Neagle did his whole duty, and in no way exceeded it, is

too plain for argument.

Yours faithfully,

W.D. SHIPMAN

Mr. Justice FIELD.

Letter from James C. Welling, president of Columbian University,

Washington:

HARTFORD, _August 15, 1889._

MY DEAR JUDGE:

It is a relief to know that Justice, as well as the honored

justice of our Supreme Judiciary, has been avenged by the

pistol-shot of Neagle. The life of Terry has long since been

forfeited to law, to decency, and to morals. He has already

exceeded the limit assigned by holy scripture to men of his

ilk. "The bloody-minded man shall not live out half his days."

The mode of his death was in keeping with his life. Men who

break all the laws of nature should not expect to die by the

laws of nature.

In all this episode you have simply worn the judicial ermine

without spot or stain. You defeated a bold, bad man in his

machinations, and the enmity you thereby incurred was a crown

of honor. I am glad that you are to be no longer harassed

by the menace of this man's violence, for such a menace is

specially trying to a minister of the law. We all know that

Judge Field the _man_ would not flinch from a thousand Terrys,

but Judge Field the _Justice_ could hardly take in his own

hands the protection of his person, where the threatened

outrage sprang _entirely_ from his official acts.

I wish, therefore, to congratulate you on your escape alike

from the violence of Terry and from the necessity of killing

him with your own hands. It was meet that you should have been

defended by an executive officer of the court assailed in your

person. For doubtless Terry, and the hag who was on the hunt

with him, were minded to murder you.

Convey my cordial felicitations to Mrs. Field, and believe me

ever, my dear Mr. Justice,

Your faithful friend,

JAMES C. WELLING.

Mr. Justice FIELD.

Letter from Right Rev. B. Wistar Morris, Episcopal Bishop of Oregon:

BISHOPCROFT, PORTLAND, OREGON,

_August 22, 1889_.

MY DEAR JUDGE FIELD:

I hope a word of congratulation from your Oregon friends for

your escape in the recent tragedy will not be considered an

intrusion. Of course we have all been deeply interested in its

history, and proud that you were found as you were, without

the defenses of a bully.

I will not trespass further on your time than to subscribe

myself,

Very truly your friend,

B. WISTAR MORRIS.

Mr. Justice FIELD.

A copy of the following card was enclosed in this letter:

AN UNARMED JUSTICE.

PORTLAND OREGON, _August 19_.

_To the Editor of the Oregonian_:

There is one circumstance in the history of the Field and

Terry tragedy that seems to me is worthy of more emphatic

comment than it has yet received. I mean the fact that Judge

Field had about his person no weapon of defense whatever,

though he knew that this miserable villain was dogging his

steps for the purpose of assaulting him, perhaps of taking his

life. His brother, Mr. Cyrus W. Field, says:

"It was common talk in the East here, among my brother's

friends, that Terry's threats to do him bodily harm were

made with the full intent to follow them up. Terry threatened

openly to shoot the Justice, and we, who knew him, were

convinced he would certainly do it if he ever got a chance.

"I endeavored to dissuade my brother from making the trip West

this year, but to no purpose, and he said, 'I have a duty to

perform there, and this sort of thing can't frighten me away.

I know Terry will do me harm if he gets a chance, and as I

shall be in California some time, he will have chances enough.

Let him take them.'

"When urged to arm himself he made the same reply. He said

that when it came to such a pass in this country that judges

find it necessary to go armed, it will be time to close the

courts themselves."

This was a manly and noble reply and must recall to many

minds that familiar sentiment: "He is thrice armed who has his

quarrel just." With the daily and hourly knowledge that this

assassin was ever upon his track, this brave judge goes about

his duty and scorns to take to himself the defenses of a bully

or a brigand; and in doing so, how immeasurably has he placed

himself above the vile creature that sought his life, and all

others who resort to deeds of violence. "They that take

the sword shall perish with the sword," is a saying of wide

application, and had it been so in this case; had this brave

and self-possessed man been moved from his high purpose by the

importunity of friends, and when slain by his enemy, had been

found armed in like manner with the murderer himself, what

a stain would it have been upon his name and honor? And how

would our whole country have been disgraced in the eyes of the

civilized world, that her highest ministers of justice must be

armed as highwaymen as they go about their daily duties!

Well said this undaunted servant of the state: "Then will it

be time to close the courts themselves." May we not hope, Mr.

Editor, that this example of one occupying this high place in

our country may have some influence in staying the spirit and

deeds of violence now so rife, and that they who are so ready

to resort to the rifle and revolver may learn to regard them

only as the instruments of the coward or the scoundrel?

B. WISTAK MORRIS.

The citations given below from different journals, published at the

time, indicated the general opinion of the country. With rare

exceptions it approved of the action of the Government, the conduct

of Neagle, and the bearing of Justice Field.

The _Alta California_, a leading paper in California, had, on

August 15, 1889, the day following the tragedy, the following

article:

THE TERRY TRAGEDY.

The killing of David S. Terry by the United States Marshal

David Neagle yesterday was an unfortunate affair, regretted,

we believe, by no one more than by Justice Field, in whose

defense the fatal shot was fired. There seems, however, to

be an almost undivided sentiment that the killing was

justifiable. Every circumstance attending the tragedy points

to the irresistible conclusion that there was a premeditated

determination on the part of Terry and his wife to provoke

Justice Field to an encounter, in which Terry might either

find an excuse for killing the man against whom he had

threatened vengeance, or in which his wife might use the

pistol which she always carries, in the pretended defense

of her husband. For some time past it has been feared that

a meeting between Terry and Justice Field would result in

bloodshed. There is now indisputable proof that Terry had made

repeated threats that he would assault Justice Field the first

time he met him off the bench, and that if the Judge resisted

he would kill him. Viewed in the light of these threats,

Terry's presence on the same train with Justice Field will

hardly be regarded as accidental, and his actions in the

breakfast-room at Lathrop were directly in line with the

intentions he had previously expressed. Neagle's prompt and

deadly use of his revolver is to be judged with due reference

to the character and known disposition of the man with whom

he had to deal and to his previous actions and threats. He was

attending Justice Field, against the will of the latter and

in spite of his protest, in obedience to an order from the

Attorney-General of the United States to Marshal Franks to

detail a deputy to protect the person of Justice Field from

Terry's threatened violence. A slap in the face may not, under

ordinary circumstances, be sufficient provocation to justify

the taking of human life; but it must be remembered that there

were no ordinary circumstances and that Terry was no ordinary

man. Terry was a noted pistol-shot; it was known that he

invariably carried arms and that he boasted of his ability to

use them. If on this occasion he was unarmed, as Mrs. Terry

asserts,[1] Neagle had no means of knowing that fact; on the

contrary, to his mind every presumption was in favor of the

belief that he carried both pistol and knife, in accordance

with his usual habit. As a peace officer, even apart from the

special duty which had been assigned to him, he was justified

in taking the means necessary to prevent Terry from continuing

his assault; but the means necessary in the case of one man

may be wholly inadequate with a man bearing the reputation

of David S. Terry, a man who only a few months previously had

drawn a knife while resisting the lawful authority of another

United States officer. It is true that if Terry was unarmed,

the deputy marshal might have arrested him without taking his

life or seriously endangering his own; but Terry was a man of

gigantic stature, and though aged, in possession of a giant's

strength; and there is no one who was acquainted with him, or

has had opportunity to learn his past history, who does not

know that he was a desperate man, willing to take desperate

chances and to resort to desperate means when giving way to

his impulses of passion, and that any person who should at

such a moment attempt to stay his hand would do so at the risk

of his life. Whether he had a pistol with him at that moment

or not, there was every reason to believe that he was armed,

and that the blow with his hand was intended only as the

precursor to a more deadly blow with a weapon. At such moments

little time is allowed for reflection. The officer of the law

was called upon to act and to act promptly. He did so, and the

life of David S. Terry was the forfeit. He fell, a victim to

his own ungovernable passions, urged on to his fate by the

woman who was at once his wife and his client, and perhaps

further incited by sensational newspaper articles which

stirred up the memory of his resentment for fancied wrongs,

and taunted him with the humiliation of threats unfulfilled.

The close of Judge Terry's life ends a career and an era. He

had the misfortune to carry into a ripened state of society

the conditions which are tolerable only where social order is

not fully established. Restless under authority, and putting

violence above law, he lived by the sword and has perished by

it.

That example which refused submission to judicial finalities

was becoming offensive to California, but the incubus of

physical fear was upon many who realized that the survival

of frontier ways into non-frontier period was a damage to the

State. But, be this as it may, the stubborn spirit that defied

the law has fallen by the law.

When Justice Field showed the highest judicial courage in

the opening incidents of the tragedy that has now closed, the

manhood of California received a distinct impetus. When the

Justice, with threats made against his life, returned to the

State unarmed, and resentful of protection against assault,

declaring that when judges must arm to defend themselves from

assault offered in reprisal of their judicial actions

society must be considered dissolved, he was rendering to our

institutions the final and highest possible service. The event

that followed, the killing of Terry in the act of striking

him the second time from behind, while he sat at table in

a crowded public dining-room, was the act of the law.

The Federal Department of Justice, by its chief, the

Attorney-General of the United States, had ordered its

officer, the United States marshal for the northern district

of California, to take such means and such measures as might

be necessary to protect the persons of the judges against

assault by Judge Terry, in carrying out the threats that

he had made. This order was from the executive arm of the

Government, and it was carried out to the letter. Judge Terry

took the law into his own hands and fell. Nothing can add to

the lesson his fate teaches. It is established now that in

California no man is above the law; that no man can affect the

even poise of justice by fear. Confiding in his own strength

as superior to the law, David S. Terry fell wretchedly.

No more need be said. New California inscribes upon her

shield, "Obedience to the law the first condition of good

citizenship," and the past is closed.

_The Record-Union_ of Sacramento, one of the leading papers of

California, on August 15, 1889, the day following the tragedy,

had the following article under the head--

KILLING OF JUDGE TERRY.

In the news columns of the _Record-Union_ will be found all

the essential details of the circumstances of the killing

of D.S. Terry. It will be evident to the reader that they

readily sap the whole case, and that there is no substantial

dispute possible concerning the facts. These truths we assert,

without fear of successful contradiction, establish the

justifiableness of the act of the United States marshal who

fired upon and killed Terry. We think there will be no dispute

among sensible men that a federal circuit judge or a justice

of the supreme bench, passing from one portion of the circuit

to another in which either is required to open a court and

hear causes, and for the purpose of fully discharging his

official duties, is while en route in the discharge of an

official function, and constructively his court is open to the

extent that an assault upon him, because of matters pending

in his court, or because of judgments he has rendered or is

to render, is an assault upon the court, and his bailiff or

marshal detailed to attend the court or to aid in preserving

the order and dignity of the court has the same right to

protect him from assault then that he would have, had the

judge actually reached his court-room.

But further than this, we hold that in view of the undeniable

fact that the Justice had knowledge of the fact that the

Terrys, man and wife, had sworn to punish him; that they

had indulged in threats against him of the most pronounced

character; that they had boarded a train on which it is

probable they knew he had taken passage from one part of his

circuit to another in his capacity as a magistrate; in view of

the fact that Terry sought the first opportunity to approach

and strike him, and that, too, when seated; and in view of the

notorious fact that Terry always went armed--the man who shot

Terry would have been justified in doing so had he not even

been commissioned as an officer of the court. He warned the

assailant to desist, and knowing his custom to go armed, and

that he had threatened the Justice, and Terry refusing to

restrain his blows, it was Neagle's duty to save life, to

strike down the assailant in the most effectual manner. Men

who, having the ability to prevent murder, stand by and see

it committed, may well be held to accountability for criminal

negligence.

But in this case it is clear that murder was intended on the

part of the Terrys. One of them ran for her pistol and brought

it, and would have reached the other's side with it in time,

had she not been detained by strong men at the door. Neagle

saw this woman depart, and coupling it with the advance of

Terry, knew, as a matter of course, what it meant. He had been

deputed by the chief law officer of the Government--in view of

previous assaults by the Terrys and their threats and display

of weapons in court--to stand guard over the judges and

protect them. He acted, therefore, precisely as it was proper

he should do. Had he been less prompt and vigorous, all the

world knows that not he but Terry would to-day be in custody,

and not Terry but the venerable justice of the Supreme Court

of the United States would to-day be in the coffin.

These remarks have grown too extended for any elaboration of

the moral of the tragedy that culminated in the killing of

David S. Terry yesterday. But we cannot allow the subject to

be even temporarily dismissed without calling the thought

of the reader to contemplation of the essential truth that

society is bound to protect the judges of the courts of the

land from violence and the threats of violence; otherwise

the decisions of our courts must conform to the violence

threatened, and there will be an end of our judicial

system, the third and most valuable factor in the scheme of

representative government. Society cannot, therefore, punish,

but must applaud the man who defends the courts of the people

and the judges of those courts from such violence and threats

of violence. For it must be apparent to even the dullest

intellect that all such violence is an outrage upon the

judicial conscience, and therefore involves and puts in peril

the liberties of the people.

The New Orleans _Times-Democrat,_ in one of its issues at this period,

used the following language:

The judge in America who keeps his official ermine spotless,

who faithfully attends to the heavy and responsible duties

of his station, deserves that the people should guard the

sanctity of his person with a strength stronger than armor of

steel and readier than the stroke of lance or sword. Though

the judges be called to pass on tens of thousands of cases, to

sentence to imprisonment or to death thousands of criminals,

they should be held by the people safe from the hate and

vengeance of those criminals as if they were guarded by an

invulnerable shield.

If Judge Field, of the Supreme Court, one of the nine highest

judges under our republican government, in travelling recently

over his circuit in California, had been left to the mercy of

the violent man who had repeatedly threatened his life, who

had proved himself ready with the deadly knife or revolver, it

would have been a disgrace to American civilization; it would

have been a stigma and stain upon American manhood; it would

have shown that the spirit of American liberty, which exalts

and pays reverence to our judiciary, had been replaced by

a public apathy that marked the beginning of the decline of

patriotism.

Judge Field recognized this when, in being advised to arm

himself in case his life was endangered, he uttered the noble

words: "No, sir; I do not and will not carry arms, for when

it is known that the judges of the court are compelled to arm

themselves against assaults offered in consequence of their

judicial action it will be time to dissolve the courts,

consider the government a failure, and let society lapse into

barbarism." That ringing sentence has gone to the remotest

corner of the land, and everywhere it has gone it should fire

the American heart with a proud resolve to protect forever the

sanctity of our judiciary.

Had not Neagle protected the person of Judge Field from the

assault of a dangerous and violent ruffian, apparently intent

on murder, by his prompt and decisive action, shooting the

assailant down to his death, it is certain that other brave

men would have rushed quickly to his rescue; but Neagle's

marvelous quickness forestalled the need of any other's

action. The person of one of the very highest American judges

was preserved unharmed, while death palsied the murderous hand

that had sworn to take his life.

That act of Neagle's was no crime. It was a deed that any and

every American should feel proud of having done. It was an act

that should be applauded over the length and breadth of this

great land. It should not have consigned him for one minute to

prison walls. It should have lifted him high in the esteem of

all the American people. When criminals turn executioners, and

judges are the victims, we might as well close our courts

and hoist the red flag of anarchy over their silent halls and

darkened chambers.

The New York _Herald_, in its issue of August 19, 1889, said:

The sensation of the past week is a lesson in republicanism

and a eulogium on the majesty of the law.

It was not a personal controversy between Stephen J. Field

and David S. Terry. It was a conflict between law and

lawlessness--between a judicial officer who represented the

law and a man who sought to take it into his own hands. One

embodied the peaceful power of the nation, the will of the

people; the other defied that power and appealed to the

dagger.

Justice Field's whole course shows a conception of judicial

duty that lends grandeur to a republican judiciary. It is an

inspiring example to the citizens and especially to the judges

of the country. He was reminded of the danger of returning to

California while Judge Terry and his wife were at large. His

firm answer was that it was his duty to go and his would go.

He was then advised to arm himself for self-defense. His reply

embodies a nobility that should make it historic: "When it

comes to such a pass in this country that judges of the courts

find it necessary to go armed it will be time to close the

courts themselves."

This sentiment was not born of any insensibility to danger;

Justice Field fully realized the peril himself. But above all

feeling of personal concern arose a lofty sense of the duty

imposed upon a justice of the nation's highest court. The

officer is a representative of the law--a minister of peace.

He should show by his example that the law is supreme; that

all must bow to its authority; that all lawlessness must yield

to it. When judges who represent the law resort to violence

even in self-defense, the pistol instead of the court becomes

the arbiter of controversies, and the authority of the

government gives way to the power of the mob.

Rather than set a precedent that might tend to such a result,

that would shake popular confidence in the judiciary, that

would lend any encouragement to violence, a judge, as Justice

Field evidently felt, may well risk his own life for the

welfare of the commonwealth. He did not even favor the

proposition that a marshal be detailed to guard him.

The course of the venerable Justice is an example to all who

would have the law respected. It is also a lesson to all who

would take the law into their own hands.

Not less exemplary was his recognition of the supremacy of the

law when the sheriff of San Joaquin appeared before him with

a warrant of arrest on the grave charge of murder. The warrant

was an outrage, but it was the duty of the officer to serve

it, even on a justice of the United States Supreme Court.

When the sheriff hesitated and began to apologize before

discharging his painful duty, Justice Field promptly spoke

out: "Officer, proceed with your duty. I am ready, and an

officer should always do his duty." These are traits of

judicial heroism worthy the admiration of the world.

The _Albany Evening Union_, in one of its issues at this time, has

the following:

JUSTICE FIELD RELIES UPON THE LAW FOR HIS DEFENSE.

The courage of Justice Stephen J. Field in declining to carry

weapons and declaring that it is time to close the courts when

judges have to arm themselves, and at the same time proceeding

to do his duty on the bench when his life was threatened by

a desperate man, is without parallel in the history of our

judiciary. We do not mean by this that he is the only judge

on the bench that would be as brave as he was under the

circumstances, but every phase of the affair points to the

heroism of the man. He upheld the majesty of the law in a

fearless manner and at the peril of his life. He would not

permit the judiciary to be lowered by any fear of the personal

harm that might follow a straightforward performance of his

duty. His arrest for complicity in a murder was borne by the

same tranquil bravery--a supreme reliance upon a due process

of law. He did not want the officer to apologize to him for

doing his duty. He had imprisoned Judge Terry and his wife

Sarah Althea for contempt of court. * * * The threats by

Judge Terry did not even frighten him to carry weapons of

self-defense. This illustration of upholding the majesty of

the law is without precedent, and is worth more to the cause

of justice than the entire United States army could be if

called out to suppress a riotous band of law-breakers. Justice

Field did what any justice should do under the circumstances,

but how many judges would have displayed a like courage had

they been in his place?

The _New York World_, in its issue of Monday evening, August 26th,

has the following article:

A NEW LEAF TURNED.

When Judge Field, knowing that his life was threatened,

went back unarmed into the State of California and about his

business there, he gave wholesome rebuke to the cowardice that

prompts men to carry a pistol--a cowardice that has been too

long popular on the coast. He did a priceless service to the

cause of progress in his State, and added grace to his ermine

when he disdained to take arms in answer to the threats of

assassins.

The men who have conspired to take Judge Field's life ought to

need only one warning that a new day has dawned in California,

and to find that warning in the doom of the bully Terry. The

law will protect the ermine of its judges.

The New York _World_ of August 18th treats of the arrest of Justice

Field as an outrage, and speaks of it as follows:

THE ARREST OF FIELD AN OUTRAGE AND AN ABSURDITY.

The California magistrate who issued a warrant for Justice

Field's arrest is obviously a donkey of the most precious

quality. The Justice had been brutally assailed by a notorious

ruffian who had publicly declared his intention to kill his

enemy. Before Justice Field could even rise from his chair

a neat-handed deputy United States marshal shot the ruffian.

Justice Field had no more to do with the shooting than any

other bystander, and even if there had been doubt on that

point it was certain that a justice of the United States

Supreme Court was not going to run away beyond the

jurisdiction. His arrest was, therefore, as absurd as it was

outrageous. It was asked for by the demented widow of the dead

desperado simply as a means of subjecting the Justice to an

indignity, and no magistrate possessed of even a protoplasmic

possibility of common sense and character would have lent

himself in that way to such a service.

The Kansas City _Times_, in its issue at this period, uses the following

language:

NO ONE WILL CENSURE.

_Gratitude for Judge field's Escape the Chief Sentiment._

Deputy Marshal Neagle acted with terrible promptitude in

protecting the venerable member of the Supreme Court with

whose safety he was specially charged, but few will be

inclined to censure him. He had to deal with a man of fierce

temper, whose readiness to use firearms was part of the best

known history of California.

It is a subject for general congratulation that Justice Field

escaped the violence of his assailant. The American nation

would be shocked to learn that a judge of its highest tribunal

could not travel without danger of assault from those whom

he had been compelled to offend by administering the laws.

Justice Field has the respect due his office and that deeper

and more significant reverence produced by his character

and abilities. Since most of the present generation were

old enough to observe public affairs he has been a jurist of

national reputation and a sitting member of the Supreme Court.

In that capacity he has earned the gratitude of his countrymen

by bold and unanswerable defense of sound constitutional

interpretation on more than one occasion. In all the sad

affair the most prominent feeling will be that of gratitude at

his escape.

_The Army and Navy Journal_, in its issue of August 24, 1889, had

the following article under the head of--

MARSHAL NEAGLE'S CRIME.

The public mind appears to be somewhat unsettled upon the

question of the right of Neagle to kill Terry while assaulting

Judge Field. His justification is as clear as is the benefit

of his act to a long-suffering community. Judge Field

was assaulted unexpectedly from behind, while seated at a

dining-table, by a notorious assassin and ruffian, who had

sworn to kill him, and who, according to the testimony of at

least one witness, was armed with a long knife, had sent his

wife for a pistol, and was intending to use it as soon as

obtained. * * *

The rule is that the danger which justifies homicide in

self-defense must be actual and urgent. And was it not so

in this case? No one who reflects upon the features of the

case--an old man without means of defense, fastened in a

sitting posture by the table at which he sat and the chair he

occupied, already smitten with one severe blow and about to

receive another more severe from a notorious ruffian who had

publicly avowed his intention to slay him--no one surely can

deny that the peril threatening Judge Field was both actual

and urgent in the very highest degree.

"A man may repel force by force in the defense of his person,

habitation, or property, against one or many who manifestly

intend and endeavor by violence or surprise to commit a

known felony on either." "In such a case he is not obliged to

retreat, but may pursue his adversary till he find himself

out of danger; and if in a conflict between them he happens to

kill, such killing is justifiable. The right of self-defense

in case of this kind is founded on the law of nature, and is

not, nor can be, superseded by any law of society. Where a

known felony is attempted upon the person, be it to rob or

murder, the party assaulted may repel force by force; and

even his servant attendant on him, or any person present, may

interpose for preventing mischief, and, if death ensue, the

party interposing will be justified." (Wharton Amer. Crim.

Law, Vol. 2, Sec. 1019.)

This is the law, as recognized at the present day and

established by centuries of precedent, and it completely

exonerates Neagle--of course Judge Field needs no

exoneration--from any, the least, criminality in what he did.

He is acquitted of wrong-doing, not only in his character of

attendant servant, but in that of bystander simply. He was

as much bound to kill Terry under the circumstances as every

bystander in the room was bound to kill him; and in his

capacity of guard, especially appointed to defend an

invaluable life against a known and imminent felony, he was so

bound in a much greater degree.

"A sincere and apparently well-grounded belief that a felony

is about to be perpetrated will extenuate a homicide committed

in prevention of it, though the defendant be but a private

citizen" (25 Ala., 15.) See Wharton, above quoted, who

embodies the doctrine in his text (Vol. 2, Sec. 1039).

* * * * *

Let us be grateful from our hearts that the old Mosaic law,

"Whoso sheddeth man's blood by man shall his blood be shed,"

is shown by this memorable event to have not yet fallen

altogether into innocuous desuetude; and let us give thanks

to God that he has seen fit on this occasion to preserve from

death at the hands of an intolerable ruffian the life of that

high-minded, pure-handed, and excellent jurist and magistrate,

Stephen J. Field.

The Philadelphia _Times_ of August 15th has the following:

ONLY ONE OPINION.

_Marshal Neagle Could Not Stand Idly By._

The killing of Judge Terry of California is a homicide that

will occasion no regret wherever the story of his stormy and

wicked life is known. At the same time, the circumstances that

surrounded it will be deeply lamented. This violent man,

more than once a murderer, met his death while in the act of

assaulting Justice Field of the Supreme Court of the United

States. Had he not been killed when he was, Judge Field would

probably have been another of his victims. Terry had declared

his purpose of killing the Justice, and this was their first

meeting since his release from deserved imprisonment.

In regard to the act of United States Marshal Neagle, there

can be only one opinion. He could not stand idly by and see

a judge of the Suprene Court murdered before his eyes. The

contumely that Terry sought to put upon the Judge was only the

insult that was to go before premeditated murder. The case has

no moral except the certainty that a violent life will end in

a violent death.

The _Philadelphia Inquirer_ of the same date says as follows:

A PREMEDITATED INSULT.

_Followed Quickly by a Deserved Retribution._

Ex-Judge Terry's violent death was a fitting termination to

a stormy life, and the incidents of his last encounter were

characteristic of the man and his methods. He was one of the

few lingering representatives of the old-time population of

California. He was prominent there when society was organizing

itself, and succeeded in holding on to life and position when

many a better man succumbed to the rude justice of the period.

Most of his early associates died with their boots on, a

generation ago. Terry lived, assailed on all sides, despised

by the better element and opposed by the law, in trouble

often, but never punished as he deserved. His last act was to

offer a gross, premeditated insult to the venerable Justice

Field, and the retribution he had long defied followed it

quickly. California will have little reason to mourn his loss.

The _Cleveland Leader_, in its issue of August 18th, speaks of the

conduct of Neagle as follows:

THE KILLING OF TERRY.

We have already expressed the opinion in these columns that

the killing of David S. Terry by Deputy Marshal Neagle at

Lathrop, California, Wednesday, was entirely justifiable. In

that opinion it is a pleasure to note that the press of the

country concur almost unanimously. The judgment of eminent

members of the legal profession, as published in our telegraph

columns and elsewhere, support and bear out that view of the

case. The full account of the trouble makes the necessity of

some such action on the part of the deputy marshal clear. The

judgment of the country is that Neagle only did his duty in

defending the person of Justice Field, and in that judgment

the California jury will doubtless concur when the case is

brought before it.

The _Argonaut_, a leading paper of San Francisco, not a political,

but a literary paper, and edited with great ability, in its issue of

August 26, 1889, used the following language:

The course of Judge Field throughout this troublesome business

has been in the highest degree creditable to him. He has

acted with dignity and courage, and his conduct has been

characterized by most excellent taste. His answer, when

requested to go armed against the assault of Terry, is worthy

of preservation. And now that his assailant has been arrested

in his career by death, all honest men who respect the law

will breathe more freely. Judge Terry had gained a most

questionable reputation, not for courage in the right

direction; not for generosity which overlooked or forgave,

or forgot offenses against himself or his interests. He never

conceded the right to any man to hold an opinion in opposition

to his prejudices, or cross the path of his passion with

impunity. He could with vulgar whisper insult the judge who

rendered an opinion adverse to his client, and with profane

language insult the attorney who had the misfortune to be

retained by a man whose cause he did not champion. He had

become a terror to society and a walking menace to the

social circle in which he revolved. His death was a necessity,

and, except here and there a friend of blunted moral

instincts, there will be found but few to mourn his

death or criticise the manner of his taking off. To say

that Marshal Neagle should have acted in any other manner than

he did means that he was to have left Justice Field in the

claws of a tiger, and at the mercy of an infuriated, angry

monster, who had never shown mercy or generosity to an enemy

in his power. * * *

Judge Field has survived the unhappy conflict which carried

Judge Terry to his grave. He is more highly honored now than

when this quarrel was thrust upon him; he has lost no friends;

he has made thousands of new ones who honor him for protecting

with his life the honor of the American bench, the dignity of

the American law, and the credit of the American name. In

the home where Judge Terry lived he went to the grave almost

unattended by the friends of his social surroundings, no

clergyman consenting to read the service at his burial. The

Supreme Court over which he had presided as chief justice

refused to adjourn in honor of his death, the press and public

opinion, for a wonder, in accord over the manner of his taking

off.

Indeed, the public opinion of the country, as shown by the press and

declarations of prominent individuals, was substantially one in its

approval of the action of the Government, the conduct of Neagle, and

the bearing of Justice Field.[2]

The _Daily Report_, a paper of influence in San Francisco at the time,

published the following article on "The Lesson of the Hour," from the

pen of an eminent lawyer of California, who was in no way connected

with the controversy which resulted in Judge Terry's death:

The universal acquiescence of public opinion in the

justifiable character of the act which terminated the life of

the late David S. Terry is to be accounted for by the peculiar

nature of the offense which he had committed. It was not for a

mere assault, though perpetrated under circumstances which

rendered it peculiarly reprehensible, that he met his death

without eliciting from the community one word of condemnation

for the slayer or of sympathy with the slain.

Mr. Justice Field is an officer of high rank in the most

important department of the Government of the United States,

namely, that which is charged with the administration of

legal justice. When David S. Terry publicly and ostentatiously

slapped the face of this high official--this representative of

public justice--the blow being in all probability the intended

prelude to a still more atrocious offense, he committed a

gross violation of the peace and dignity of the United States.

The echo of the blow made the blood tingle in the veins of

every true American, and from every quarter, far and near,

thick and fast, came denunciations of the outrage. That any

man under a government created "by the people, for the people"

shall assume to be a law unto himself, the sole despot in a

community based on the idea of the equality of all before

the law, and the willing submission and obedience of all to

established rule, is simply intolerable.

In his audacious assault on "the powers that be" Terry took

his life in his hand, and no lover of peace and good order can

regret that, of the two lives in peril, his was extinguished.

He threw down the gage of battle to the whole community, and

it is well that he was vanquished in the strife.

In the early part of the war of the rebellion General Dix,

of New York, was placed in charge of one of the disaffected

districts. We had then hardly begun to see that war was a very

stern condition of things, and that it actually involved the

necessity of killing. Those familiar with the incidents of

that time will remember how the General's celebrated order,

"If any one attempts to haul down the American flag, shoot him

on the spot," thrilled the slow pulses of the Northern heart

like the blast of a bugle. Yet some adverse obstructionist

might object that the punishment pronounced far exceeded

the offense, which was merely the effort to detach from its

position a piece of colored bunting. But it is the _animus_

that characterizes the act. An insult offered to a mere

symbol of authority becomes, under critical circumstances,

an unpardonable crime. If the symbol, instead of being an

inanimate object, be a human being--a high officer of the

Government--does not such an outrage as that committed by

Terry exceed in enormity the offense denounced by General Dix?

And if so, why should the punishment be less?

In every civilized community, society, acting with a keen

instinct of self-preservation, has always punished with just

severity those capital offenders against peace and good order

who strike at the very foundation on which all government must

rest.

[1] It has been conclusively established since that he was armed

with his usual bowie-knife at the time.

[2] NOTE.--Whilst there was a general concurrence of opinion as to

the threats of Terry and of the fate he met at the hands of

Neagle and of the bearing of Justice Field through all the

proceedings, there were exceptions to this judgment. There

were persons who sympathized with Terry and his associates and

grieved at his fate, although he had openly avowed his

intention not merely to insult judicial officers for their

judicial conduct, but to kill them in case they resented the

insult offered. He married Sarah Althea Hill after the United

States Circuit Court had delivered its opinion, in open court,

announcing its decision that she had committed forgery,

perjury, and subornation of perjury, and was a woman of

abandoned character. And yet a writer in the _Overland

Monthly_ in October, 1889, attributes his assault upon the

marshal--striking him violently in the face for the execution

of the order of the court to remove her from the court-room

because of her gross imputation upon the judges--chiefly to

his chivalric spirit to protect his wife, and declares that

"the universal verdict" upon him "will be that he was

possessed of _sterling integrity of purpose_, and stood out

from the rest of his race as a strongly individualized

character, which has been well called an anachronism in our

civilization." And Governor Pennoyer, of Oregon, in his

message to the legislature of that State, pronounced the

officer appointed by the marshal under the direction of the

Attorney-General to protect Justices Field and Sawyer from

threatened violence and murder as a "_secret armed assassin_,"

who accompanied a Federal judge in California, and who shot

down in cold blood an unarmed citizen of that State.

CHAPTER XX.

THE APPEAL TO THE SUPREME COURT OF THE UNITED STATES, AND THE SECOND

TRIAL OF SARAH ALTHEA'S DIVORCE CASE.

With the discharge from arrest of the brave deputy marshal, Neagle,

who had stood between Justice Field and the would-be assassin's

assault, and the vindication by the Circuit Court of the right of the

general government to protect its officers from personal violence, for

the discharge of their duties, at the hands of disappointed litigants,

the public mind, which had been greatly excited by the proceedings

narrated, became quieted. No apprehension was felt that there would be

any reversal of the decision of the Circuit Court on the appeal which

was taken to the Supreme Court. General and absolute confidence was

expressed in the determination of the highest tribunal of the nation.

The appeal was argued on the part of Neagle by the Attorney-General of

the United States and Joseph H. Choate, Esq., of the New York bar;

and the briefs of counsel in the Circuit Court were also filed. The

attorney-general of California and Mr. Zachariah Montgomery appeared

upon behalf of the State, and briefs of Messrs. Shellabarger and

Wilson were also filed in its behalf.

The argument of the Attorney-General of the United States was

exceedingly able. He had watched all the proceedings of the case from

the outset. He had directed that protection should be extended by

the marshal to Justice Field and Judge Sawyer against any threatened

violence, and he believed strongly in the doctrine that the officers

of the general government were entitled to receive everywhere

throughout the country full protection against all violence whilst in

the discharge of their duties. He believed that such protection was

necessary to the efficiency and permanency of the government; and its

necessity in both respects was never more ably presented.

The argument of Mr. Choate covered all the questions of law and fact

in the case and was marked by that great ability and invincible logic

and by that clearness and precision of statement which have rendered

him one of the ablest of advocates and jurists in the country, one

who all acknowledge has few peers and no superiors at the bar of the

nation.[1]

The argument of the attorney-general of the State consisted chiefly of

a repetition of the doctrine that, for offenses committed within

its limits, the State alone has jurisdiction to try the offenders--a

position which within its proper limits, and when not carried to the

protection of resistance to the authority of the United States, has

never been questioned.

The most striking feature of the argument on behalf of the State

was presented by Zachariah Montgomery. It may interest the reader to

observe the true Terry flavor introduced into his argument, and the

manifest perversion of the facts into which it led him. He deeply

sympathized with Terry in the grief and mortification which he

suffered in being charged with having assaulted the marshal with a

deadly weapon in the presence of the Circuit Court in September, 1888.

He attempted to convince the Supreme Court that one of its members

had deliberately made a misrecital, in the order committing Terry

for contempt, and treated this as a mitigation of that individual's

subsequent attack on Justice Field. He did not, however, attempt to

gainsay the testimony of the numerous witnesses who swore that

Terry did try to draw his knife while yet in the court-room on that

occasion, and that, being temporarily prevented from doing so by

force, he completed the act as soon as this force was withdrawn,

and pursued the marshal with knife in hand, loudly declaring in

the hearing of the court, in language too coarse and vulgar to be

repeated, that he would do sundry terrible things to those who should

obstruct him on his way to his wife. As she was then in the custody

of the marshal and in his office, under an order of the court; and as

Terry had resisted her arrest and removal from the court-room until

overpowered by several strong men, and as he had instantly on being

released rushed madly from the court-room, drawing and brandishing

his knife as he went, the conclusion is irresistible that he was

determined upon her rescue from the marshal, if, with the aid of

his knife, he could accomplish it. That Mr. Montgomery allowed these

facts, which constitute the offense of an assault with a deadly

weapon, to go unchallenged, compels us to the charitable presumption

that he did not know the law.

A reading of the decisions on this subject would have taught him

that in order to constitute that offense it is not necessary that

the assailant should actually stab with his knife or shoot with his

pistol. The assault by Terry was commenced in the court-room, under

the eyes of the judges, and was a continuing act, ending only-with the

wrenching of the knife from his hands. It was all committed "in the

presence of the court," for the Supreme Court has decided in the Savin

case that "the jury-room and hallway were parts of the place in which

the court was required by law to hold its sessions, and that the

court, at least when in session, is present in every part of the place

set apart for its own use and for the use of its officers, jurors, and

witnesses, and that misbehavior in such a place is misbehavior in the

presence of the court. (See vol. 131, U.S. Reports, page 277, where

the case is reported.)

Mr. Montgomery was feckless enough to contradict the record when he

stated that Justice Field in his opinion in the revivor case "took

occasion to discuss at considerable length the question of the

genuineness of the aforesaid marriage document, maintaining very

strenuously that it was a forgery, and that this it was that so

aroused the indignation of Mrs. Terry that she sprang to her feet and

charged Justice Field with having been bought."

There is not a word of truth in this statement. Justice Field, in

overruling the demurrer, never discussed at all the genuineness of the

marriage agreement. How, then, could it be true that words, nowhere to

be found in Judge Field's opinion, "so aroused the indignation of

Mrs. Terry that she sprang to her feet and charged Justice Field with

having been bought"? Justice Field discussed only the legal effect

of the decree already rendered by the United States Circuit Court. He

said nothing to excite the woman's ire, except to state the necessary

steps to be taken to enforce the decree. He had not participated in

the trial of the original case, and had never been called upon to

express any opinion concerning the agreement. Mr. Montgomery said in

his brief that the opinion read by Justice Field, "while overruling a

demurrer, assails this contract, in effect pronouncing it a forgery."

This statement is totally unfounded. From it the casual reader would

suppose that the demurrer was to the complaint in the original

case, and that the court was forestalling evidence, whereas it was a

demurrer in a proceeding to revive the suit, which had abated by the

death of the party, and to give effect to the decree already rendered

therein, after a full hearing of the testimony.

Mr. Montgomery said:

"The opinion also charges Mrs. Terry with perjury, after she has sworn

that it was genuine."

The judgment of a court may be referred to by one of its judges, even

though the rendering of the judgment convicted a party or a witness,

of perjury, without furnishing the perjurer with a justification

for denouncing the judge. Mr. Montgomery furthermore said that the

"opinion charged her not only with forgery and perjury, but with

unchastity as well; for if she had not been Sharon's wife, she had

unquestionably been his kept mistress." He says:

"At the announcement of this decision from the bench in the

presence of a crowded court-room; a decision which she

well knew, before the going down of another sun, would be

telegraphed to the remotest corners of the civilized world, to

be printed and reprinted with sensational head-lines in every

newspaper, and talked over by every scandal-monger on the face

of the earth; was it any wonder--not that it was right--but

was it any wonder that this high-spirited, educated woman,

sprung from as respectable a family as any in the great State

of Missouri, proud of her ancestry, and prizing her good name

above everything on this earth, when she heard herself thus

adjudged in one breath to be guilty of forgery, perjury, and

unchastity, and thus degraded from the exalted position of

wife--to which the Supreme Court of her State had said she was

entitled--down to that of a paid harlot; was it any wonder, I

say, that like an enraged tigress she sprang to her feet, and

in words of indignation sought to defend her wounded honor?"

Mr. Montgomery did not speak truly when he said that on this occasion

such a decision was announced from the bench. The decision was

announced on the 24th of December, 1885, nearly three years before.

The only decision announced on this occasion was that the case did not

die with the plaintiff therein--William Sharon--but that the executor

of his estate had the right to act--had a right to be substituted for

the deceased, and to have the decree executed just as it would have

been if Mr. Sharon had lived. It was amazing effrontery and disregard

of the truth on the part of Mr. Montgomery to make such a statement as

he did to the Supreme Court, when the record, lying open before them,

virtually contradicted what he was saying.

Towards the close of the decision Justice Field did make reference

to Mrs. Terry's testimony in the Superior Court. He said that in

the argument some stress had been laid upon the fact that in a

State court, where the judge had decided in Mrs. Terry's favor, the

witnesses had been examined in open court, where their bearing could

be observed by the judge; while in the federal court the testimony had

been taken before an examiner, and the court had not the advantage

of hearing and seeing the witnesses. In reply to this Justice Field

called attention to the fact that Judge Sullivan, while rendering his

decision in favor of Mrs. Terry, had accused her of having wilfully

perjured herself in several instances while testifying in her own

case, and of having suborned perjury, and of having knowingly offered

in evidence a forged document. But this reference to Judge Sullivan's

accusations against Mrs. Terry was not reached in the reading of

Justice Field's opinion until nearly an hour after Mrs. Terry had been

forcibly removed from the court-room for contempt, and therefore

she did not hear it. This fact appears on record in the contempt

proceedings.

But the most extraordinary feature of Mr. Montgomery's brief is yet

to be noticed. He says that "If the assault so made by Judge Terry was

not for the purpose of then and there killing or seriously injuring

the party assaulted, but for the purpose of provoking him into a duel,

then the killing of the assailant for such an assault was a crime."

And again he says:

"I have said that if the purpose of Judge Terry's assault

upon Field was for the purpose of killing him then and there,

Neagle, and not Neagle only, but anybody else, would have been

justifiable in killing Terry to save the life of Field; but

that if Terry's object in assaulting Field was not then and

there to kill or otherwise greatly injure him, but to draw

him into a duel, then such an assault was not sufficient to

justify the killing."

He then proceeds to speak of Judge Terry's duel with Senator

Broderick, in which the latter was killed. He refers to many eminent

citizens who have fought duels, although he admits that dueling is

a sin. He then explains that "as a rule the duelist who considers

himself wronged by another, having the position and standing of a

gentleman, tenders him an insult, either by a slap in the face or

otherwise, in order to attract a challenge. Such undoubtedly was

Terry's purpose in this case. All of Terry's threats point precisely

to that."

Here Mr. Montgomery seems to be in accord with Sarah Althea Terry,

who, as we have seen, stated that "Judge Terry intended to take out

his satisfaction in slaps." In the same direction is the declaration

of Porter Ashe, when he said:

"Instant death is a severe punishment for slapping a man on

the face. I have no suspicion that Terry meant to kill Field

or to do him further harm than to humiliate him."

And also that of Mr. Baggett, one of Terry's counsel, who said:

"I have had frequent conversations with Terry about Field,

and he has often told me that Field has used his court and

his power as a judge to humiliate him, and that he intended

to humiliate him in return to the extent of his power. 'I will

slap his face,' said Terry to me, 'if I run across him, but

I shall not put myself out of the way to meet him. I do not

intend to kill him, but I will insult him by slapping his

face, knowing that he will not resent it.'"

What knightly courage was here. If ever a new edition of the dueling

code is printed, it should have for a frontispiece a cut representing

the stalwart Terry dealing stealthy blows from behind upon a justice

of the United States Supreme Court, 72 years of age, after having

previously informed a trusted friend that he believed himself safe

from any resistance by the object of his attack. It may be here also

said that Justice Field, as was well known to every one, had for

many years suffered from great lameness in consequence of an injury

received by him in early life, and with difficulty could walk without

assistance.

Mr. Montgomery, with freezing candor, informs the Supreme Court that,

in strict accordance with the chivalrous code of honor, Judge Terry

administered blows upon a member of that court, to force him into a

duel, because of a judicial act with which he was displeased.

He says:

"The most conclusive proof that Terry had no intention, for

the time being, of seriously hurting Field, but that his sole

purpose was to tender him an insult, is found in the fact that

he only used his open hand, and that, too, in a mild manner."

We often hear of the "mild-mannered men" who "scuttle ships" and "cut

throats," but this is the very first one whose "very mild manner" of

beating a justice of the Supreme Court of the United States with his

hand was ever certified to by an attorney and counsellor of that court

in the argument of a case before it.

It would be difficult to conceive of anything more puerile or absurd

than this pretense that Terry had the slightest expectation of provoking

a man of Justice Field's age, official position, and physical condition,

to fight a duel with him in vindication of the right of the court over

which he presided to imprison a man for contempt for beating the marshal

in the face with his fist, and afterwards pursuing him with a knife, in

the presence of the court, for obeying an order of the court.

Mr. Montgomery appears to have been imported into the case mainly for

the purpose of reviewing the facts and giving them the Terry stamp.

His ambition seems to have been to insult Justice Field and his

associates in the Circuit Court by charging them with misrepresenting

the facts of the occurrence, thus repeating Terry's reckless

accusations to that effect. For Terry he had only words of eulogy and

admiration, and said he was "straightforward, candid, and incapable

of concealment or treachery himself, and therefore never suspected

treachery, even in an enemy."

These noble qualities Terry had illustrated by assaulting Justice

Field from behind while the latter was in a position which placed him

entirely at the mercy of his assailant.

Montgomery thought that not only Neagle, but the President,

Attorney-General, district attorney, and Marshal Franks should be

arraigned for Terry's murder.

Although Justice Field had expressly advised the marshal that it was

unnecessary for anybody to accompany him to Los Angeles, and although

Neagle went contrary to his wish, and only because the marshal

considered himself instructed by the Attorney-General to send him, yet

Mr. Montgomery especially demanded that he (Justice Field) should be

tried for Terry's homicide. This, too, in the face of the fact

that under instructions from the attorney-general of the State of

California, aroused to his duty by the Governor, the false, malicious,

and infamous charge made against Justice Field by Sarah Althea Terry

was dismissed by the magistrate who had entertained it, on the ground

that it was manifestly destitute of the shadow of a foundation, and

that any further proceedings against him would be "a burning disgrace

to the State."

The decision of the Circuit Court discharging Neagle from the custody

of the sheriff of San Joaquin county was affirmed by the Supreme court

of the United States on the 14th of April, 1890. Justice Field did not

sit at the hearing of the case, and took no part in its decision, nor

did he remain in the conference room with his associate justices at

any time while it was being considered or on the bench when it was

delivered. The opinion of the Court was delivered by Justice Miller.

Dissenting opinions were filed by Chief Justice Fuller and Justice

Lamar. Justice Miller's opinion concludes as follows:

"We have thus given, in this case, a most attentive

consideration to all the questions of law and fact which we

have thought to be properly involved in it. We have felt it

to be our duty to examine into the facts with a completeness

justified by the importance of the case, as well as from the

duty imposed upon us by the statute, which we think requires

of us to place ourselves, as far as possible, in the place

of the Circuit Court and to examine the testimony and the

arguments in it, and to dispose of the party as law and

justice require.

"The result at which we have arrived upon this examination

is, that in the protection of the person and the life of Mr.

Justice Field, while in the discharge of his official duties,

Neagle was authorized to resist the attack of Terry upon him;

that Neagle was correct in the belief that without prompt

action on his part the assault of Terry upon the Judge would

have ended in the death of the latter; that such being his

well-founded belief, he was justified in taking the life of

Terry, as the only means of preventing the death of the man

who was intended to be his victim; that in taking the life

of Terry, under the circumstances, he was acting under the

authority of the law of the United States, and was justified

in doing so; and that he is not liable to answer in the courts

of California on account of his part in that transaction.

"We therefore affirm the judgment of the Circuit Court

authorizing his discharge from the custody of the sheriff of

San Joaquin county."

[1] NOTE.--Mr. Choate took great interest in the question

involved--the right of the Government of the United States

to protect its officers from violence whilst engaged in the

discharge of their duties,--deeming its maintenance essential

to the efficiency of the Government itself; and he declined to

make any charge or take any fee for his professional services

in the case. The privilege of supporting this great principle

before the highest tribunal of the country, where his powers

would be most effectively engaged in securing its recognition,

was considered by him as sufficient reward. Certainly he has

that reward in the full establishment of that principle--for

which, also, both he and Attorney-General Miller will receive

the thanks of all who love and revere our national government

and trust that its existence may be perpetuated.

Mr. James C. Carter, the distinguished advocate of New York,

also took a deep interest in the questions involved, and had

several consultations with Mr. Choate upon them; and his

professional services were given with the same generous and

noble spirit that characterized the course of Mr. Choate.

CHAPTER XXI.

CONCLUDING OBSERVATIONS.

Thus ends the history of a struggle between brutal violence and the

judicial authority of the United States. Commencing in a mercenary

raid upon a rich man's estate, relying wholly for success on forgery,

perjury, and the personal fear of judges, and progressing through more

than six years of litigation in both the Federal and the State courts,

it eventuated in a vindication by the Supreme Court of the United

States of the constitutional power of the Federal Government, through

its Executive Department, to protect the judges of the United

States courts from the revengeful and murderous assaults of defeated

litigants, without subjecting its appointed agents to malicious

prosecutions for their fidelity to duty, by petty State officials, in

league with the assailants.

The dignity and the courage of Justice Field, who made the stand

against brute force, and who, refusing either to avoid a great

personal danger or to carry a weapon for his defense, trusted his

life to that great power which the Constitution has placed behind the

judicial department for its support, was above all praise.

The admirable conduct of the faithful deputy marshal, Neagle, in whose

small frame the power of a nation dwelt at the moment when, like a

modern David, he slew a new Goliath, illustrated what one frail mortal

can do, who scorns danger when it crosses the path of duty.

The prompt action of the Executive Department, through its

Attorney-General, in directing the marshal to afford all necessary

protection against threatened danger, undoubtedly saved a justice

of the Supreme Court from assassination, and the Government from the

disgrace of having pusillanimously looked on while the deed was done.

The skill and learning of the lawyers who presented the case of Neagle

in the lower and in the appellate courts reflected honor on the legal

profession.

The exhaustive and convincing opinion of Circuit Judge Sawyer, when

ordering the release of Neagle, seemed to have made further argument

unnecessary.

The grand opinion of Justice Miller, in announcing the decision of

the Supreme Court affirming the order of the Circuit Court, was the

fitting climax of all. Its statement of the facts is the most graphic

and vivid of the many that have been written. Its vindication of

the constitutional right of the Federal Government to exist, and to

preserve itself alive in all its powers, and on every foot of its

territory, without leave of, or hindrance by, any other authority,

makes it one of the most important of all the utterances of that great

tribunal.

Its power is made the more apparent by the dissent, which rests rather

upon the assertion that Congress had not legislated in exact terms for

the case under consideration, than upon any denial of the power of

the Federal Government to protect its courts from violence. The

plausibility of this ground is dissipated by the citations in the

majority opinion of the California statute concerning sheriffs, and

of the federal statute concerning marshals, by which the latter are

invested with all the powers of the sheriffs in the States wherein

they reside, thus showing clearly that marshals possess the authority

to protect officers of the United States which sheriffs possess to

protect officers of the State against criminal assaults of every kind

and degree.

During the argument in the Neagle case, as well as in the public

discussions of the subject, much stress was laid by the friends of

Terry upon the power and duty of the State to afford full protection

to all persons within its borders, including the judges of the courts

of the United States. They could not see why it was necessary for the

Attorney-General of the United States to extend the arm of the

Federal Government. They held that the police powers of the State were

sufficient for all purposes, and that they were the sole lawful refuge

for all whose lives were in danger. But they did not explain why it

was that the State never did afford protection to Judges Field and

Sawyer, threatened as they notoriously were by two desperate persons.

The laws of the State made it the duty of every sheriff to preserve

the peace of the State, but the Terrys were permitted, undisturbed and

unchecked, to proclaim their intention to break the peace. If they

had announced their intention, for nearly a year, to assassinate

the judges of the Supreme Court of the State, would they have been

permitted to take their lives, before being made to feel the power of

the State? Would an organized banditti be permitted to unseat State

judges by violence, and only feel the strong halter of the law after

they had accomplished their purpose? Can no preventive measures be

taken under the police powers of the State, when ruffians give notice

that they are about to obstruct the administration of justice by the

murder of high judicial officers? It was not so much to insure the

punishment of Terry and his wife if they should murder Justice Field,

as to prevent the murder, that the executive branch of the United

States Government surrounded him with the necessary safeguards. How

can justice be administered under the federal statutes if the federal

judges must fight their way, while going from district to district,

to overcome armed and vindictive litigants who differ with them

concerning the judgments they have rendered?

But it was said Judge Terry could have been held to bail to keep the

peace. The highest bail that can be required in such cases under the

law of the State is five thousand dollars.

What restraint would that have been upon Terry, who was so filled

with malice and so reckless of consequences that he finally braved the

gallows by attempting the murder of the object of his hate? But even

this weak protection never was afforded. Shall it be said that Justice

Field ought to have gone to the nearest justice of the peace and

obsequiously begged to have Terry placed under bonds? But this he

could not have done until he reached the State, and he was in peril

from the moment that he reached the State line. The dust had not been

brushed from his clothing before some of the papers which announced

his arrival eagerly inquired what Terry would do and when he would do

it. Some of them seemed most anxious for the sensation that a murder

would produce.

The State was active enough when Terry had been prevented from

doing his bloody work upon Justice Field. The constable who had been

telegraphed for before the train reached Lathrop on the fatal day,

but who could not be found, and was not at the station to aid in

preserving the peace, was quick enough to _arrest Neagle without a

warrant, for an act not committed in his presence_, and therefore

known only to him by hearsay. Against the remonstrances of a supreme

justice of the United States, who had also been chief justice of

California, and who might have been supposed to know the laws as

well at least as a constable, the protection placed over him by the

Executive branch of the Federal Government was unlawfully taken from

him and the protector incarcerated in jail. The constable doubtless

did only what he was told and what he believed to be his duty. Neagle

declined to make any issue with him of a technical character and went

with him uncomplainingly. If Neagle's pistol had missed fire, or his

aim had been false, he might have been arrested on the spot for his

attempt to protect Justice Field, while Terry would have been left

free at the same time to finish his murderous work then, or to have

pursued Justice Field into the car and, free from all interference

by Neagle, have despatched him there. The State officials were all

activity to protect the would-be murderer, but seemed never to have

been ruffled in the least degree over the probable assassination of

a justice of the Supreme Court of the United States. The Terrys were

never thought to be in any danger. The general belief was that Judges

Field and Sawyer were in great danger from them.

The death of Terry displeased three classes: first, all who were

willing to see Justice Field murdered; second, all who naturally

sympathize with the tiger in his hunt for prey, and who thought it a

pity that so good a fighter as Terry should lose his life in seeking

that of another; and, third, all who preferred to see Sarah Althea

enjoy the property of the Sharon estate in place of its lawful heirs.

It is plain from the foregoing review that the State authorities of

California presented no obstruction to Terry and his wife as they

moved towards the accomplishment of their deadly purpose against

Justice Field. It was the Executive arm of the nation operating

through the deputy United States marshal, under orders from the

Department of Justice, that prevented the assassination of Justice

Field by David S. Terry.

* * * * *

It only remains to state the result of the second trial of the case

between Sarah Althea Hill, now Mrs. Terry, and the executor of William

Sharon before the Superior Court of the city of San Francisco. It will

be remembered that on the first trial in that court, presided over by

Judge Sullivan, a judgment was entered declaring that Miss Hill and

William Sharon had intermarried on the 25th of August, 1880, and had

at the time executed a written contract of marriage under the laws of

California, and had assumed marital relations and subsequently lived

together as husband and wife. From the judgment rendered an appeal was

taken to the Supreme Court of the State. A motion was also made for

a new trial in that case, and from the order denying the new trial an

appeal was also taken to the Supreme Court. The decision on the appeal

from the judgment resulted in its affirmance. The result of the appeal

from the order denying a new trial was its reversal, with a direction

for a new trial. The effect of that reversal was to open the whole

case. In the meantime William Sharon had died and Miss Hill had

married David S. Terry. The executor of William Sharon, Frederick

W. Sharon, appeared as his representative in the suit, and filed a

supplemental answer. The case was tried in the Superior Court, before

Judge Shafter, in July, 1890, and on the 4th of August following the

Judge filed his findings and conclusions of law, which were, briefly,

as follows:

That the plaintiff and William Sharon, deceased, did not, on the 25th

of August, 1880, or at any other time, consent to intermarry or

become, by mutual agreement or otherwise, husband and wife; nor did

they, thereafter, or at any time, live or cohabit together as husband

and wife, or mutually or otherwise assume marital duties, rights, or

obligations; that they did not, on that day or at any other time, in

the city and county of San Francisco, or elsewhere, jointly or

otherwise, make or sign a declaration of marriage in writing or

otherwise; and that the declaration of marriage mentioned in the

complaint was false, counterfeited, fabricated, forged, and

fraudulent, and, therefore, null and void. The conclusion of the

court was that the plaintiff and William Sharon were not, on August

25, 1880, and never had been husband and wife, and that the plaintiff

had no right or claim, legal or equitable, to any property or share

in any property, real or personal, of which William Sharon was the

owner or in possession, or which was then or might thereafter be held

by the executor of his last will and testament the defendant,

Frederick W. Sharon. Accordingly, judgment was entered for the

defendant. An appeal was taken from that judgment to the Supreme

Court of California, and on the 5th of August, 1892, Sarah Althea

Terry having become insane pending the appeal, and P.P. Ashe, Esq.,

having been appointed and qualified as the general guardian of her

person and estate, it was ordered that he be substituted in the case,

and that she subsequently appear by him as her guardian. In October

following, the appeal was dismissed.

Thus ended the legal controversy initiated by this adventuress to

obtain a part of the estate of the deceased millionaire.