The TRAGIC HISTORY of the SHARON CASES

 

            William Sharon, born in Ohio, of Quaker parents, on the 9th of January, 1820, arrived in California on August 15, 1849, and followed the business of a real estate broker. He prospered, and, after a good many years, speculated in the mines on the Comstock lode, in Nevada, on a vast scale, and acquired a fortune of many millions of dollars. He was president of the syndicate which reorganized the Bank of California, after its suspension, in 1875. He had then for some years, had charge of the Virginia City (Nev.) agency of that bank. In February, 1874, he purchased the Enterprise newspaper of that place. In the following year he was elected, as a Republican, United States senator for Nevada, and served a full term of six years, being succeeded by James G. Fair, Democrat, on the 4th of March, 1881. His wife died in San Francisco in 1875. He had two daughters. One of these, who has since deceased, became the wife of Frank G. Newlands, who has now for a long period been representative in Congress from Nevada ; the other married Sir Thomas Hesketh, of England, in 1880.

            In the San Francisco city directory for 1879-80 is to be found the name "Miss S. A. Hill, resides The Baldwin," and in the same book for 1880-81 appears, "Miss Allie Hill, resides The Baldwin"—her first appearance, and her last, on the directory pages.

            The "Life of David S. Terry" appeared in 1892—by A. E. Wagstaff (a name very favorably known) authorized by Judge Terry's son. Of course, the book is quite interesting. Sarah Althea is thus introduced in the well-written story:

            Dramatic incidents are usually embellished by a woman, and no woman is capable of creating incidents of moment, involving the attention of the public, unless possessed of some extraordinary abilities or peculiar characteristics not in keeping with the usual order of her sex. The Pacific Coast has been the nursery of surprises in almost every department of life. It was here millionaires were first counted in large numbers, vast wealth supplied the sinews of war for the rebellion, and schemes of marvelous engineering surmounted obstacles in crossing the mountains and building the transcontinental railway. Society was also shocked with her characters, and the

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174 History of the Bench and Bar of California.

enterprise of a Meiggs and his compeers astonished the country. The clash of nationalities represented in the avenues of trade and commerce only irritated the spirit of enterprise with its cosmopolitan ideas. Among the contributions to society was a Missouri girl whose advent was noted in 1870. She came unheralded and unknown, and was only one of a thousand who had preceded her. She would have probably remained in modest obscurity had she not become infused with a spirit of speculation in an endeavor to regain a foolishly-spent fortune. At that time both sexes were wild over mining stocks, but, unfortunately for her, she was endowed with a rash and impetuous nature, backed by zeal and determination, and her faculties for scheming in the channels of the general gamble were sharply defined. In her contact with the world, all her faculties were on edge. She was a woman of fair education, strong passions, and infinite resources, in the pursuit of whatever fancy took possession of her mind, and in her endeavors to obtain wealth in the field of speculation, she became acquainted with Hon. William Sharon, then United States senator from the State of Nevada, who was a wealthy banker and controlled vast mining interests. The social intimacy and business relations, whether honorable or not, led to the most startling results.

            The following brief mention of the lady is taken from what is said to be a correct history of her former life in Missouri, and as its correctness has never been challenged, it is here presented without comment :—

            "Sarah Althea Hill was born near the town of Cape Girardeau, Missouri, in 1848. She comes of good stock, her father being Samuel Hill, a prominent attorney, and her mother, Julia Sloan, the daughter of a wealthy lumber-dealer. She has one brother, Hiram Morgan Hill. Her parents died in 1854, leaving the two orphans an estate valued at $40,000. Sarah is related to some of the best families in the country.

            "She attended school at Danville, Kentucky, and finally graduated from St. Vincent convent. Cape Girardeau, Missouri. She had a governess in the person of a Mrs. Barrall, a sister of ex-Congressman Hatcher. Her grandfather, Hiram Sloan, was her guardian, and appears to have held a slack rein.

            "The young woman developed a spirited temper, and soon reaching legal age, made her money fly. She grew up into womanhood in much her own way, and was noted for her beauty and temper. She was a schemer, above all things, and this made her unpopular among her girl companions. It was said of her, too, that, though she was a spendthrift, she worshiped money, and gave her attention mostly to those who possessed it. She is remembered by her friends here as something of a flirt, and at one time is said to have had three engagements to marry on her hands. One of the parties is now a prominent politician in Southeastern Missouri, and another resides in St. Louis.

            "Her conquests were numerous during the time she held her sway. She was fast, but her name was never tarnished with scandal. In love affairs Sarah was tyrannical, and more than one of her lovers had to suffer her iron rule and eccentric whims.

            "It is said that she really loved one young fellow, named Will Shaw. They were engaged to be married, but as the result of a tiff the young man determined to break the engagement. Sarah heard of this, and when next he called she was so charming that he pressed his suit with more ardor than ever, when she had her revenge by snubbing him.

            "The story goes that she really wanted and expected him to return, but he did not, and in September, 1870, disgusted and broken-hearted, with only the shadow of her fortune, she started for California.

            "A young uncle named William Sloan accompanied her to the Coast. He was wealthy and took his niece to his mother's home. Sarah and the old lady did not live in harmony, and Sloan gave the girl a fine suite of rooms in a hotel. It is there that she met Senator Sharon."

            These were the parties to a litigation which extended over a period of years in the State and Federal courts, marked by incidents and episodes unprecedentedly strange, and accomplishing the worst ends of fate for a number of persons.

History of the Bench and Bar of California. 175

            On the 3d of October, 1883, William Sharon, declaring himself to be a citizen of Nevada, brought suit in the United States Circuit Court at San Francisco against Sarah Althea Hill (the Miss Hill above) to obtain a decree adjudging that a certain paper, purporting to be a declaration of marriage between them, was a forgery, and ordering that the paper be cancelled. In his complaint Sharon alleged that he was possessed of a large fortune in real and personal property ; was extensively engaged in business enterprises and ventures, and had a wide business and social connection ; that, as he was informed, the defendant was an unmarried woman of about thirty years of age, for some time a resident of San Francisco ; that within two months then past she had repeatedly and publicly claimed and represented that she was his lawful wife; that she falsely and fraudulently pretended that she was duly married to him on the 25th day of August, 1880, at the city and county of San Francisco ; that these several claims, representations and pretentions were wholly and maliciously false, and were made by her for the purpose of injuring him in his property, business and social relations; for the purpose of obtaining credit by the use of his name with merchants and others and thereby compelling him to maintain her ; and for the purpose of harassing him, and, in case of his death, his heirs, and next of kin and legatees into payment of large sums of money to quiet her. He prayed for a decree that the defendant had never been his wife; that he did not make any declaration of marriage, and that she be perpetually enjoined from making any allegation of marriage with him ; and that she deliver up the alleged marriage contract for cancellation.

            On the first day of November, 1883, before pleading to Sharon's complaint in the United States Court, Sarah Althea, giving her name as Sarah Althea Sharon, and declaring that she was the wife of William Sharon, brought an action for divorce against him, in the Superior Court of San Francisco. She alleged that the two had been married by virtue of having made and signed a written marriage declaration at San Francisco on. the 25th of August, 1880—that is, the same alleged contract for the cancellation of which Sharon had brought suit against her four weeks prior. She prayed that the alleged marriage might be declared legal and valid, and that she might be divorced from him on account of certain infidelities, which she set forth. Alleging that he was worth fifteen millions of dollars, with an income of over one hundred thousand dollars per month, she prayed that an account might be taken, to ascertain what portion of his wealth was their common property, and that this be equally divided between them. Her attorneys were Geo. W. Tyler and his son. W. B. Tyler (Tyler & Tyler). Judge Terry was called in afterwards.

            On November 10th Sharon filed his answer in this suit, denying the alleged marriage, declaring that the document in question was forged; that he had never heard of it until within sixty days then past, and further, in

176 History of the Bench and Bar of California.

regard to his property, that he was not worth over five million dollars, and his income was not over $30,000 a month.

            On November 24th on petition of Sharon, the parties being citizens of different States, this action was transferred from the Superior Court to the United States Circuit Court, where his own cause was pending. General W. H. L. Barnes was Sharon's attorney in both suits, ex-Supreme Judge Wm. T. Wallace being "of counsel."

            Next on December 3d Sarah Althea filed a demurrer in the first action.

            On December 31st the second suit, that had been instituted in the State court, and removed as stated, was, by agreement between the parties, remanded to that tribunal for trial.

            On March 3, 1884, Sarah Althea's demurrer in the first suit was overruled by United States Judges Sawyer and Sabin, with leave to her to answer Sharon's complaint on payment of $20, the usual terms. Before further proceedings there, the trial of the second suit was begun in the Superior Court, before Judge J. F. Sullivan, on March 10, 1884, a jury being waived.

            There was a widely accepted notion in the public mind, and even among many lawyers, that there was some sort of interference on the part of the Federal courts to negative or obstruct the free action of the State courts in this great controversy. There was no real basis for this idea—the jurisdiction of the Federal courts first attached. While the trial at which we have now nearly arrived, was in progress in the State court, and during the pendency of appeals, proceedings were had at long intervals, in the United States Circuit Court, as follows:

            On the 24th day of April, 1884, a plea in abatement was filed.

            On the 5th day of May, 1884, a replication to said plea was filed.

            On the 16th day of October, 1884, an order adjudging said plea false, etc., was made and entered.

            On the 30th day of December, 1884, an answer was filed.

            A replication to said answer was filed on the 2nd day of January, 1885.

            On the 25th day of February, 1885, a supplemental answer was filed.

            A replication to said supplemental answer was filed on the 11th day of March, 1885.

            On the 15th day of January, 1886, a final decree was entered.

            This decree, made on the 15th of January, 1886, was dated as of September 29th, 1885, and entered as of this last given date, for two reasons, namely: First, that was the date of the final submission of the cause to the court after argument; and, second, Mr. Sharon had died after the submission and before the decree—on November 13, 1885.

            This decree adjudged that the alleged marriage contract was false, counterfeited, fabricated, forged and fraudulent, and therefore utterly null and void, and directed that it be surrendered to the clerk of the court for cancellation within twenty days. As a matter of fact the document was never delivered over; and when, more than three years thereafter, David S. Terry,

History of the Bench and Bar of California. 177

who had meanwhile married Sarah Althea, was called upon, not by this court, but by the State Supreme Court, to produce the paper, he responded that it had been burned, with his residence at Fresno, in 1889.

            The decree of the United States Circuit Court was signed by Judges Lorenzo Sawyer and Matthew P. Deady, and was entered actually, not constructively, just three and a half years prior to the final disposition of the case by the Supreme Court of the State.

            The trial of the action in the Superior Court was begun on March 10, 1884, and was concluded on the 17th of September following, covering eighty days of actual trial.

            Its adventurous course need not be closely followed here. George W. Tyler was often in trouble. There was nearly a personal collision between Terry and Barnes in the court-room. Some witnesses for Sarah Althea were sent to the State prison before the case ended, for perjury.

            During the progress of the trial, the defense learned that on the 1st of May, 1883, the plaintiff had visited a newly-made grave, prepared for the body of Anson Olin, at the Masonic cemetery, in San Francisco, and there, in the presence of a Mr. Gillard, employed in the cemetery, she deposited, under the box which was to contain the coffin, a package. The body was on the same or next day deposited in the grave over the package, which remained there until the grave was opened, after the commencement of the trial.

            These proceedings of the plaintiff came to the knowledge of the defense, while ex-Superior Judge Oliver P. Evans, associated with General Barnes, was cross-examining her. Under an order from the health officer authorizing it, the grave was opened, and the package referred to was found under the coffin. It contained a few articles of Sharon's underwear. Judge Evans held up each bit of clothing before the plaintiff in court, and asked if she had ever seen them before. She answered that she had not.

            The evidence of a fortune-teller, a witness for Sharon, detailed conversations the plaintiff had with her in the latter part of 1882 and the early part of 1883, with reference to a grave-yard charm, and what she, the fortuneteller, had advised was necessary in order to perfect that charm; that the plaintiff must wear about her person, for nine days and nine nights, certain specific articles of clothing, of the man whom she desired to marry; and that afterward she should deposit them in a newly made grave before the burial of the body, between the hours of twelve and one o'clock at night ; and that when the buried clothing would rot, the man whom she desired to marry would either marry her or die.

            Subsequently, the conditions of this charm were modified, so that the articles might be deposited in the day-time, rather than at night. There was testimony also that the plaintiff did wear about her left leg, above the knee, a sock or socks of the defendant, for nine days and nine nights; also that she slept in one of Sharon's shirts.

178 History of the Bench and Bar of California.

            During the trial, General Barnes had reason to suspect that there was a secret agreement between Geo. W. Tyler and the handwriting expert, Gumpel, by the terms of which Gumpel was to swear to the genuineness of the signature ("William Sharon, Nevada") to the alleged marriage contract, and, in the event of the plaintiff's success, was to receive a very large reward. The General freely expressed this thought, and Tyler saw his opportunity to get for everybody interested, and the public, too, some first-class sport, if nothing else. He wrote out, in his own hand, such a document as General Barnes believed to be existing, subscribed the names of himself and Gumpel, and placed the paper in his private drawer in his office. Gumpel gave Tyler lessons in the art of simulating his ( Gumpel 's) signature. Tyler's chief clerk was John F. McLaughlin, quite a capable young man, admitted to the bar, and by arrangement between the two, McLaughlin waited on General Barnes at his residence and told him that he had discovered among his employer's private papers, a contract between him and Gumpel (reciting its terms), and that he would get it and hand it over, if suitably compensated. McLaughlin was bold enough to say, substantially, "Mr. Sharon has sworn in his pleadings that his income is thirty thousand dollars a month. Give me one month's income, and I'll steal the agreement and deliver it up to you."

            Passing by the details of the negotiation, which indeed did not take up much time, General Barnes agreed to pay McLaughlin twenty-five thousand dollars for the document. He actually paid him that sum in new crisp, government bills, (Sharon's money), at the General's house at night, and received the desired paper. There was no witness present.

            Gumpel had sworn that the Sharon name to the alleged marriage contract was a genuine signature. General Barnes argued that if Gumpel and Tyler had entered into such an agreement as supposed, it was a demonstration that the whole thing was a conspiracy.

            The affluent McLaughlin did not see fit to ever go back to his post as law-clerk, but hastily arranged to flee the country. He was on the Honolulu steamer before Tyler knew of his success. He went from Honolulu after a very short stay, to Australia, where he was unmolested, and where, a few years later, he died. In Honolulu he started a steam laundry, and lost the greater part of his fortune in the venture.

            The high-priced "agreement" was exhibited in court, but when Tyler declared that it was a decoy, and pointed to its face for proof, General Barnes did not long question it. Tyler was indicted for obtaining money ($25,000) under false pretenses, and was tried in the Superior Court (Judge T. K. Wilson's department), and the jury disagreed, standing ten for acquittal. This was on July 3, 1886. On a second trial, the jury again disagreed, August 21, 1886. He was not prosecuted further. He received no part of the money paid to McLaughlin.

            On the 24th of December, 1884. Judge Sullivan rendered his decision in favor of Sarah Althea, finding that the alleged marriage contract was genuine.

History of the Bench and Bar of California. 179

and that under it the parties had been married since August 25th, 1880; that the defendant had deserted her, and that she was entitled to a divorce and to a division of the community property. On the 16th of February, 1885, the same court made an order directing the defendant to pay the plaintiff before the 9th of March, alimony in the sum of $7,500, and the further sum of $2,500 per month. It was also ordered that the defendant pay counsel fees as follows:

            To Tyler & Tyler, $20,000; to George Flournoy, $10,000; to Walter H. Levy, $10,000; to David S. Terry, $10,000; and R. P. Clement, $5.000—all these being plaintiff's attorneys.

            Sharon appealed from the judgment, at first without asking for a new trial, confident that the findings did not support the judgment. Judge Sullivan having found among other things that defendant never introduced plaintiff as his wife, nor spoke of her as such in the presence of other persons; that plaintiff never introduced defendant as her husband, nor spoke to nor of him to other persons in his presence as her husband ; that the parties were never reputed among their mutual friends to be husband and wife, nor was there at any time any mutual, open recognition of such relationship by the parties, nor any public assumption by the parties of the relation of husband and wife.

            The Supreme Court, however, held that the findings supported the judgment (75 Cal., 1 ).

            Sharon also appealed from the order allowing alimony and counsel fees. The Supreme Court modified Judge Sullivan's order by reducing the $7,500 and  $2,500 respectively to $1,500 and $500, and entirely denied all counsel fees by reversing the order on that point.

            This decision was rendered on the 31st of January, 1888. It was written by Justice McKinstry, and Chief Justice Searls and Justices Temple and Paterson concurred. Justices Thornton, McFarland and Sharpstein dissented.

            Immediately after this decision the heirs of Sharon (who had died November 13, 1885) placed this litigation so far as they were concerned, in the hands of William F. Herrin as their attorney, and he thereafter continued in charge of the case until the conclusion of this remarkable litigation, as hereinafter stated.

            Sharon had in due time made his motion for a new trial in Judge Sullivan's court, and while it was pending he died, November 13, 1885. It was overruled on the 4th day of October, 1886, the executor of the will being substituted in his place and perfecting an appeal both from the judgment and from the order denying a new trial.

            Pending this last appeal, the executor, F. W. Sharon, commenced a suit in the United States Circuit Court against David S. Terry and Sarah Althea Terry to revive the old suit in equity which William Sharon had instituted on the 3d of October, 1883.

            Judge Terry had married Sarah Althea at Stockton, January 7, 1886.

180 History of the Bench and Bar of California.

This last suit by the executor against Terry and wife was filed on the 12^th of March, 1888. Wm. F. Herrin was the plaintiff's attorney.

            Just one month later Francis G. Newlands, as trustee named in a trust deed which William Sharon had executed nine days before his death (conveying his vast estate in trust for his heirs), also brought a like suit in the same court to revive the original action, the defendants being David S. Terry and Sarah Althea Terry; Wm. F. Herrin being the attorney. Stanly, Stoney & Hayes appeared as attorneys for the defendants and demurred. The demurrer was overruled, and the original suit of William Sharon against Sarah Althea Hill was, by order entered September 17, 1888, revived in the name of Frederick W. Sharon, as executor, against David S. Terry and Sarah Althea Terry.

            In the second suit to revive there were united with Mr. Newlands as complainants Frederick W. Sharon (both as executor and individually), and William Sharon's heirs.

            In these cases briefs were filed on the Sharon side by R. S. Mesick and Samuel M. Wilson. Wm. F. Herrin submitted a written argument of 120 printed pages octavo on that side. David S. Terry made an oral argument in reply; John A. Stanly also.

            The cases came before the Circuit Court for determination on the 3d of September, 1888, the judges sitting being Field, Sawyer and Sabin. The doctrine was laid down that when a Federal court and a State court may each take jurisdiction of the same subject matter and parties, the tribunal whose jurisdiction first attaches will retain it to the final determination of the controversy.

            The opinion was written by Justice Field. We quote:

            The great question in both cases was the genuineness of the alleged marriage contract—the holder, Sarah Althea, affirming its genuineness, and the alleged signer, William Sharon, asseverating its forgery. Both have accompanied their statements with their oaths. Both have not testified to the truth; there is falsehood on one side or the other. The burden of proof was on her, and the learned Judge of the State Court often speaks of testimony offered by her in terms of condemnation. In one passage he says of certain testimony given by her : "This is unimportant, except that it shows a disposition which crops out occasionally in her testimony to misstate or deny facts when she deems it of advantage to her case." Again, with respect to alleged introductions of her to several persons as the wife of Sharon, the Judge says: "Plaintiff's testimony as to these occasions is directly contradicted; and in my judgment her testimony as to these matters is willfully false." As to her testimony that she advanced to Sharon in the early part of her acquaintance $7,500, the Judge says : "This claim, in my judgment, is utterly unfounded. No such advance was ever made." Again the court said : "The plaintiff claims that the defendant wrote her notes at different times after her expulsion from the Grand Hotel. If such notes were written, it seems strange that they have not been preserved and produced in evidence. I do not believe she received any such notes." Again, a document purporting to be signed by Sharon was produced by her, explaining why she was sent from the Grand Hotel in the fall of 1881, and also acknowledging that the money he was then paying her was part of $7,500 she had placed in his hands. The production of the paper for inspection was vigorously resisted, but it was finally produced. At a subsequent period, when called for, it could not be found. Of this paper the Judge said:

History of the Bench and Bar of California. 181

"Among the objections suggested to this paper as appearing on its face, was one made by counsel that the signature was evidently a forgery. The matters recited in the paper are, in my judgment, at variance with the facts which it purports to recite. Considering the stubborn manner in which the production of this paper was at first resisted, and the mysterious manner of its disappearance, I am inclined to regard it in the light of one of the fabrications constructed for the purpose of bolstering up plaintiff's case. I can view the paper in no other light than as a fabrication."

            There are several other equally significant and pointed passages expressive of the character of the testimony produced in support of her case. Of what she attempted, the Judge thus speaks : "I am of the opinion that to some extent plaintiff has availed herself of the aid of false testimony for the purpose of giving her case a better appearance in the eyes of the court ; but sometimes parties have been known to resort to false testimony, where, in their judgment, it would assist them in prosecuting a lawful claim. As I understand the facts of this case, that was done in this instance." Notwithstanding this characterization of parts of her testimony, the genuineness of the alleged marriage contract rests to a great extent upon her testimony. It would seem that the learned Judge reached his conclusions without due regard to a principle in the weighing of testimony, as old as the hills, and which ought to be as eternal in the administration of justice, that the presentation knowingly of fabricated papers, or false evidence, to sustain the story of a party, throws discredit upon his whole statement. It is generally deemed equivalent to an admission of the falsity of the whole claim.

            The opinion concluded with these word:

            The judgment of this court is that the demurrers in both cases be overruled; that in the first case the original suit of William Sharon against Sarah Althea Hill, now Sarah Althea Terry, and the proceedings and final decree therein stand revived in the name of Frederick W. Sharon as executor, and against Sarah Althea Terry and David S. Terry, her husband—the said executor being substituted as plaintiff in the place of William Sharon, deceased, and the said David S. Terry being joined as defendant with his wife, so as to give to the said plaintiff executor as aforesaid the full benefit, rights and protection of said final decree, and full power to enforce the same against the said defendants at all times, and in all places, and in all particulars. In the second case, that of Francis G. Newlands, trustee, and others, beneficiaries under the trust deed, the defendants will have leave to answer until the next rule day.

            During the reading of this opinion in the presence of a large audience, in which were many leading members of the bar and prominent citizens, occurred the most remarkable instance of contempt known to the annals of American courts. Statements describing it were subscribed and sworn to by Joseph D. Redding, now of the New York bar; Alfred Barstow, and J. H. Miller, well-known lawyers; General Thomas B. Van Buren (a name widely known) ; W. W. Presbury, John Taggart, N. R. Harris, A. L. Parish, deputy United States marshals ; Henry Finnegass, the noted government detective ; the United States marshal ; Henry Finnegas, the noted government detective ; the United Glennon [sic], police officers, who were sent to the court-room by the captain of police, I. W. Lees. Officer Bohen prefaced his account with the words that Captain Lees had said that he had just learned that the decision was about to be rendered in the Sharon case, and if it should be against the Terrys, that they (the Terrys) might make trouble, and that we should render any assistance that might be needed in preserving the peace. We need only give the statement of Marshal Franks, which was substantially corroborated by all the others just named. It is as follows:

182 History of the Bench and Bar of California.

            I am and have been since March. 1886, the United States marshal for the northern district of California. On the 3d day of September, 1888, I was standing where I usually stand in the court-room, on the west side of the railing enclosing the place where the clerk of the court sits, while Judge Field was reading his decision in the case of Sharon vs. Terry, Judge Terry and his wife, Mrs. Terry, sat at the large table for attorneys in front of the railing around the clerk's desk, they being to my left, Mr. Terry being farther away from me. Judge Field had read for a few minutes when Mrs. Terry stood up, interrupting the court, and said, among other things. "You have been paid for this decision." Judge Field then ordered her to keep her seat, but she continued, saying, "How much did Newlands pay you?" Then Judge Field, looking towards me. said, "Mr. Marshal, remove that woman from the courtroom." Mrs. Terry said, in a very defiant manner, "You cannot take me from the court." I immediately stepped to my left to execute the order, passing Judge Terry to where Mrs. Terry was standing. Mrs. Terry immediately sprang at me, striking me in my face with both her hands, saying, "You dirty scrub, you dare not remove me from this court-room." Mrs. Terry made this assault upon me before I had touched her. I immediately moved to take hold of her, when Judge Terry threw himself in my way, getting in front of me, and unbuttoning his coat, said, in the most defiant and threatening manner, "No man shall touch my wife; get a written order," or words to that effect. I put out my hands towards him, saying, "Judge, stand back ; no written order is required": and just as I was taking hold of Mrs. Terry's arm. Judge Terry assaulted me, striking me a hard blow in the mouth with the right fist, breaking one of my teeth, and I immediately let his wife go and pushed him back. He then put his right hand in his bosom, while at the same time Deputy Parish, Detective Finnegass and other citizens, caught him by the arms and pulled him down in his chair. I caught hold of Mrs. Terry again. Mr. N. R. Harris, one of my deputies, coming to my assistance, and we took her out of the court-room into my office, she resisting, scratching and striking me all the time, using violent language, denouncing and threatening the judges and myself, claiming that I had stolen her diamonds and bracelets from her wrists, and calling several times to Porter Ashe to give her her satchel, I, during the whole time, using no more force than was necessary, considering the resistance made by her, addressing her as politely as possible. When we got her into the inner room of my office, I left her in charge of Mr. Harris, went into the main office, saw a body of men scuffling at the door, heard Deputy Marshall Taggart say, "If you attempt to come in here with that knife, I will blow your brains out." I said, "What, has he a knife?" Deputy Parish answered and said, "He had a knife, but we took it away." I then took hold of Judge Terry, and with the assistance of others, pulled him in the main office and shut the door. I had him and his wife placed in my private office in charge of Deputy Marshals Harris, Donnelly and Taggart. I then went into the court-room, and when I had been there but a short time, Mr. Farish came in and said, "Mrs. Terry wants her satchel, which Porter Ashe has." I went into the corridor and found Mr. Ashe with the satchel. I requested him to hand it to me; at first, he refused, saying that it was Mrs. Terry's private property, and he was going to deliver it to her. I told him she was my prisoner, and her effects should be in my custody, and if he did not give the satchel up I would place him under arrest. He then gave it to me, and I told him to come with me into my office, and I would open it in his presence. He did so. and I opened it and took therefrom, a self-cocking 41-calibre Colt's pistol, with five chambers loaded, the sixth being empty; after which I delivered the satchel to Mrs. Terry. Mr. Ashe then said he did not intend to give the satchel to her with the pistol in it. I append hereto a photograph of the bowie-knife taken from the hands of Judge Terry by a citizen, with the assistance of my officers, and handed to me by the citizens, and also a photograph of the pistol taken from Mrs. Terry's satchel, both photographs exhibiting the actual size of these weapons. All this occurred in the Appraisers' Building, corner of Washington and Sansome streets, in the presence of and within the hearing of the United States Judges, while they were delivering the decision.

            I noticed Judge Terry and his wife during the reading of the opinion, and, as some

History of the Bench and Bar of California. 183

points were being decided against them, I carefully observed them before I commenced to remove Mrs. Terry from the court-room, and there was no word or act that I observed on the part of Judge Terry to restrain his wife in her conduct, or to take her from the court-room, or to assist me in doing so. On the contrary, Judge Terry resisted me with violence, as I have stated.

            After Judge Terry was placed in my inner office, as I have above stated, he used very abusive language concerning the Judges, referring to Judge Sawyer as "that corrupt son of a -----," and also saying, "Tell that bald-headed old son of a ----- Field that I want to go to lunch" ; and after the order was made committing him six months for contempt, Judge Terry said: "Field thinks that when I get out, he will be away, but I will meet him when he comes back next year, and it will not be a very pleasant meeting for him." Mrs. Terry said several times that she would kill both Judges Field and Sawyer.

J. C. FRANKS,

            Subscribed and sworn to before me this 17th day of September, A. D. 1888.

F. D. MONKTON.

                                                            Commissioner U. S. Circuit Court.

            Judge Terry's statement of what occurred is as follows:

            I made no resistance to any order, and the record is a lie. I was sitting down when my wife interrupted Judge Field, and when he said, "Marshal, remove the woman from the court-room," I rose to take her out. As the marshal came towards me I said, "Don't touch her. I will take her out of the court-room." Marshal Franks yelled out, "I know my business," and grabbing me by the lapels of my coat, tried to force me back into my chair. Two others seized me by the shoulders and forced me down. Again I said, "I will take her out." The men who were bending me back hurt me, and I wrenched myself free and struck at Franks, the blow hitting him in the mouth. I struck at him because he assaulted me without any right or order of the court. By that time they had dragged Mrs. Terry out of the courtroom. Then their duty ended. They had obeyed the order brutally. The order was to take her out of the court-room, and she had been taken out. But that was not enough. They dragged her to a room and shut the door. I heard her scream and went to her. I was a free man and she legally a free woman. I had a right to be by her side. They had no order to lock her up or keep me from her. But they barred the door, and to scare them away I drew my knife. I told them I did not want to hurt any of them, but they pulled out their pistols, I could have killed half a dozen of them if I had wanted to. Two of them had pistols pointed at me. Some one said, "Let him in if he will give up his knife." I said, "Certainly," and gave up my knife. They did not take it from me. One of them, a man named Taggart, said in my presence that he would have shot me if I had not stopped. I told him that he would not dare to shoot me, and that if he wanted to shoot he would have a chance. Then he said he did not want to have any trouble with me, and I told him not to brag after it was all over, about what he would have done. The fact is, the court was frightened of something, and had the room full of deputies and fighters of all kinds who wanted a chance to make a showing of bravery, and after it was all over Judge Field lied in the record. I want to get him on the witness-stand to repeat his story, and then we will see if there is any law against perjury.

            The court convened at 2 o'clock P. M. of the same day, September 3, 1888. The defendants were not present. All four judges occupied the bench, and Judge Field at once read an order adjudging the defendants guilty of contempt, and directing their imprisonment in the Alameda county jail, Terry for six months, and Mrs. Terry for thirty days. They were placed in that jail by the marshal at seven o'clock on the evening of the same day, and served out their sentences. A petition of Judge Terry just two weeks afterwards for a revocation of the orders of imprisonment, and which he had been influenced

184 History of the Bench and Bar of California.

to make by ex-Supreme Judge Heydenfeldt, was denied. It was on the hearing of this petition that the sworn statements of eye-witnesses before referred to, were read.

            We give this on the authority of Mr. Wagstaff:

            J. H. O'Brien, of Stockton, an old-time friend, visited Terry in the Alameda jail. Terry said: "When I get out of jail, I will horsewhip Judge Field. He will not dare to come back to California, but the earth is not big enough to hide him from me." Judge Field was required by law to "come back to California," in the sphere of his high office. These quoted words were from a man, admittedly honest and brave, who ''never made idle threats."

            Judge Field did come back to California, and for the same reason that always brought him—to hold court. Judge Terry's biographer is to be quoted again now, as to the conduct of the defendants after their release from jail:

            On one occasion, as Judge and Mrs. Terry were on their way from Los Angeles, where he had been attending the sessions of the United States Circuit Court, they happened upon the same train which Judge Lorenzo Sawyer was. During the trip Mrs. Terry assaulted Judge Sawyer by pulling his hair. This act was witnessed by one of the Superior Judges of Los Angeles, who was a passenger on the train, and it was reported to the authorities at Washington, and noted in connection with other threats which had been made against Field and Sawyer.

* * * *

            Letters passed between the United States district attorney and the attorney-general, which finally resulted in an order instructing the United States marshal to provide a body-guard to protect Justice Stephen J. Field during his sojourn on the Pacific Coast from threatened assaults and insults by Judge Terry. Sufficient evidence had accumulated (the italics are ours — Editor) to make these precautionary measures necessary, and the greatest secrecy was observed in order to prevent Terry from being provided with any knowledge of their existence.

            Mr. Wagstaff thinks that the authorities ought to have "advised" Judge Terry of what they were about.

            The letter of instructions from the attorney-general to the marshal was as follows:

                                                            Department of Justice,

Washington, D. C, April 27, 1889.

John C. Franks, U. S. Marshal, San Francisco, Cal. —

            Sir: The proceedings which have heretofore been had in connection with the case of Mr. and Mrs. Terry in your United States Circuit Court have become matters of notoriety, and I deem it my duty to call your attention to the propriety of exercising unusual caution in case further proceedings shall be had in that case, for the protection of his honor, Justice Field, or whosoever may be called upon to hear and determine the matter. Of course, I do not know what may be the feelings or purposes of Mr. and Mrs. Terry in the premises, but many things that have happened indicate that violence on their part is not impossible. It is due to the dignity and independence of the court and the character of its Judges that no effort on the part of the government shall be spared to make them feel entirely safe and free from anxiety in the discharge of their duties.

            You will understand, of course, that this letter is not for the public, but to put you on your guard. It will be proper for you to show it to the district attorney, if deemed best.

W. H. MILLER, Attorney-General.

            Mr. Wagstaff, in speaking of the letter of Attorney-General Miller to Marshal Franks, remarks that the attorney-general was a stranger to the true

History of the Bench and Bar of California. 185

character of the man (Terry)—which seems to be an intimation that the official order for Judge Field's protection was hardly necessary. But he adds, in the very next sentence but one, that the attorney-general "was made aware of the fact that Terry never made idle threats and was fully aware of the fact that it was his duty to protect the judiciary" ; which is a demonstration that in writing his letter to the marshal the attorney-general did just what he ought to have done.

            We will let Mr. Wagstaff lead the reader up to the catastrophe:

            Marshal Franks appointed David Neagle a deputy United States marshal, and assigned him to the position of body-guard to Justice Field during his sojourn on the Pacific Coast. Neagle had the reputation of being a rash, brave man, having figured as a hero in Arizona among the "toughs" of that territory who have given it an unenviable notoriety. He had also gained some notoriety in San Francisco among the politicians. He accepted the position and accompanied Justice Field to Los Angeles on the 10th day of August, 1889, where Field held court in connection with Judge Ross. On the 14th of August, Field left Los Angeles for San Francisco with Neagle. As the train passed Fresno, Judge and Mrs. Terry went aboard for the purpose of being present at the hearing of the cases against them in the Circuit Court. They were not aware of the presence of Judge Field on the train, believing he had passed through the day before. The train passed Fresno at 2:30 A. M., and there being no room in the sleeping car, Judge and Mrs. Terry took seats in a regular passenger car. Neagle was on the alert, and saw the Terrys when they took the train. He immediately informed Justice Field of the fact, and when the train arrived at Merced he telegraphed for an officer to be on hand in case trouble should occur.

            When Judge Terry was at the depot at Fresno, just before the train arrived, his former partner, W. D. Grady, handed him a pistol, saying, "Take this, Judge ; you may need it." "No," said the Judge, "I have no use for a pistol ; I never carry one." "Well," said Grady, "I want you to take it ; you may need it, for I feel I would never see you again." Terry took the pistol and gave it to his wife, just as they stepped aboard the train.

            At Modesto, Sheriff R. B. Purvis took the train, but not at the suggestion of Neagle, or having in his keeping the fact of the presence of the parties upon whom so much anxiety centered. The train stopped at Lathrop for breakfast, and Justice Field, although having been made aware of the presence of Judge and Mrs. Terry, and having been warned by Neagle, who proposed having breakfast served in the buffet, concluded to take breakfast at the station, remarking that he had eaten at the station before, and had gotten a good meal.

            Judge Field left the car, and, in company with his body-guard, was taken to a seat at a table near the center of the dining-room, facing toward the door. The dining-room is quite large, having three rows of five tables in each row. Field occupied a chair at the corner of the third table in the middle row, and Neagle next on his left. Soon after they were seated, Judge and Mrs. Terry entered, and the steward showed them to seats at a table at the rear end of the dining-room m the same row. In going to this table they passed down the aisle in front of Judge Field. Terry did not observe Field as he passed, but Mrs. Terry saw him, and, without taking a seat, she spoke to her husband in an undertone, and. turning about, passed out of the dining-room toward the cars.

            Observing these movements, T. M. Stackpole, one of the proprietors of the station eating house, knowing all the parties and the bitter feud existing between the Terrys and Justice Field, and also the vindictive and irrepressible character of Mrs. Terry, walked to where Judge Terry was sitting, and said : "Mr. Terry, I hope Mrs. Terry will not be so indiscreet as to create a disturbance in the dining-room."

186 History of the Bench and Bar of California.

            Judge Terry, who was until this time unconscious of the presence of Justice Field, inquired what he meant.

            "Justice Field is in the room." he replied, "and I feared Mrs. Terry would create a disturbance, as she has gone out to the car for some purpose. Do you think she will do so?"

            "I think it very likely," replied Terry. "You had better watch her at the door and prevent her from again entering the room."

            Mr. Stackpole did as Terry suggested, and placed two men at the door to intercept Mrs. Terry, should she again seek to enter the dining-room, and as he walked to his place at the door leading from the dining-room to the bar-room, Judge Terry arose from his seat and walked toward the door as though he were following -- his manner was such that no one supposed that he meditated any disturbance, and even Neagle, who was on the alert, did not realize that he was about to make an assault on Field. He passed Neagle, but when he arrived at a point immediately behind Field, he stopped, turned about, and stooping down over him, deliberately struck him on the right cheek with the palm of his hand, and then quickly struck with his left hand, which hit Field on the side of the head, as he had turned his head to look up. Neagle was quick to act, and without rising from his seat, drew his pistol with his left hand, holding the barrel in his right to be sure of his aim, and shot Terry, inflicting a mortal wound.

            Judge Terry expired at once.

            Nearly four years after Sharon's death, the appeal which he had taken from Judge Sullivan's order denying a new trial, was heard.

            On that appeal our State Supreme Court unanimously held against the plaintiff and reversed Judge Sullivan's judgment, Judge Works wrote the opinion. This is to he found in the California Reports, Volume 79, at page 638. The court dwelt particularly upon the letters written by the plaintiff to Sharon, and upon some of her acts—for instance :

            After the plaintiff had been expelled from the Grand, and long after she had been denied access to the defendant's room, we find her begging Ki, the defendant's Chinese servant, to admit her to Mr. Sharon's room, her object being to work a charm on the senator by sprinkling a black powder around his chair, putting some white powder in his bottles of liquor, left open on the side-board, and also putting something between the sheets of his bed. For permission to do this, she paid the Chinaman five dollars, and promised him one thousand dollars more, and forty dollars per month for his life, in case she succeeded in working the desired charm on the senator. She desired to repeat these performances in the defendant's room. Ki became alarmed at the possibility of his master's liquor being poisoned ; told Mr. Sharon, upon his return home from Belmont next day, what had occurred, and refused to allow the plaintiff to return for the purpose of repeating her powder performances, and thereby perfecting the charm.

* * * *

            At one time she secreted herself and saw Sharon and another woman undress and go to bed together in his room, and afterward told it as a laughable joke, and this at a time when she testified she was his wife.

            Again, at another time, evidently when she began to think it necessary that she should have some proof of her intimacy with him, she secreted a young girl, not yet twenty years of age, and who seems then to have become a kind of confidante of hers, behind the bureau in his room, to see Sharon and herself go to bed together and hear what was said, and the girl remained there until they had retired and he had fallen asleep, and then crept out of the room.

            The defendant testified positively that the relation of husband and wife never existed between him and the plaintiff; that she was his mistress, for which he agreed to and did pay her five hundred dollars a month ; that the alleged marriage contract

History of the Bench and Bar of California. 187

was never signed by him, and that he never addressed a letter to her as "My Dear Wife," and there was evidence strongly tending to show that the contract and addresses to these letters were forgeries.

            It seems to us that this evidence shows conclusively that these parties did not live and cohabit together "in the way usual with married people." They did not live or cohabit together at all. They had their separate habitations in different hotels. Her visits to his room and his visits to hers were occasional, and apparently as visitors. They had no common home or dwelling place. This did not constitute a living together or cohabitation. (Yardley's Estate, 75 Pa. St.. 207; Ohio vs. Connoway Township, Tapp. 58.) Their acts and conduct were entirely consistent with the meretricious relation of man and mistress, and almost entirely inconsistent with the relation of husband and wife.

            This decision of the Supreme Court was rendered on July 17, 1889—about a month before the death of Judge Terry.

            On the 10th of March, 1892, Mrs. Terry, the widow of Judge Terry, was adjudged insane by the Superior Court of San Francisco, and was committed to the State Asylum for the Insane at Stockton. She is still a patient at the institution, and her malady, which was at first acute mania, has become chronic. Upon the going down of the remittitur from the original judgment granting the divorce and from the order granting alimony and counsel fees, the plaintiff obtained judgment in the Superior Court against the executor of William Sharon, for $6,614 alimony, this being according to the modification by the Supreme Court of the original order granting alimony. From this second judgment the Sharon executor took an appeal, upon which the Supreme Court reversed the judgment upon the ground that the decree of the United States Circuit Court, which had first obtained jurisdiction of the parties, was controlling, and that the plaintiff could not enforce her claim of marriage and for property rights incident thereto upon the marriage contract, which had been adjudged by the Circuit Court to be a forgery (84 Cal. 424) ; so that, as a result of this extraordinary litigation, Mrs. Terry never succeeded in recovering a single cent from William Sharon or his estate.

            The effect of the second and last decision of the State Supreme Court, from which we have quoted passages, was to reopen the whole case, so far as the jurisdiction of the State courts was concerned. Sharon had asked for a new trial in the case which Superior Judge Sullivan had decided against him, and a new trial was now granted.

            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 James M. Shafter, in July, 1890, and on the 4th of August following the Judge filed his findings and conclusions of law 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

188 History of the Bench and Bar of California.

or otherwise assume marital duties, rights, or obligation ; 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 day of August, 1892, Sarah Althea Terry having become insane pending the appeal, and R. Porter 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.

            (In connection with this article read the closing paragraphs of the sketch of Judge Field.)

---THE EDITOR.

 

* * * * *

 

History of the Bench and Bar of California. 429

* * *

            Judge Field's judicial connection with the Sharon cases, and with the celebrated contempt case of David S. Terry, is set forth in this History in the article on that litigation. Judge Field and Judge Terry had been on the California Supreme bench together for two years (1857-59).

            After the killing of Terry, his slayer, David Neagle, was arrested at Stockton, upon a warrant issued there by a justice of the peace, before whom Mrs. Terry had filed a complaint charging both Neagle and Judge Field with the murder of her husband. On habeas corpus proceedings before the United States Circuit Judge Sawyer and United States District Judge Sabin, Neagle was discharged from custody on September 16, 1889. Judge Field, later in the same year, presented Neagle with a gold watch and chain.

            In discharging Neagle, the court said :

            "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 action 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 reputation, his lifelong 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

430 History of the Bench and Bar of California.

of the facts developed by the testimony of 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 law of 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 statutes, 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."

            Judge Field was also arrested under the same warrant in his chambers in the Federal building, San Francisco, by Sheriff Cunningham, of Stockton. The sheriff had given the Judge a day's notice, and a petition for a writ of habeas corpus was presented to the other Federal Judges before named. The writ was issued, and was heard on August 22d. The United States district attorney appeared for Judge Field, and associated with him were Richard T. Mesick, Samuel M. Wilson and William F. Herrin. The matter was submitted with leave to file briefs before August 27th. Before that date the Governor of the State wrote to the attorney-general as follows:

"Executive Department,

"State of California.

"SACRAMENTO, August 21, 1889.

"Hon. G. A. Johnson,

            "Attorney-General. Sacramento:

            "Dear Sir: The arrest of Hon. Stephen J. Field, a Justice of the Supreme Court of the United States, on the unsupported oath of a woman, who, on the very day the oath was taken, and often before, threatened his life, will be a burning disgrace to the State unless disavowed. I therefore urge upon you the propriety of at once instructing the district attorney of San Joaquin county to dismiss the unwarranted proceedings against him.

            "The question of the jurisdiction of the State court in the case of the deputy United States marshal, Neagle, is one for argument. The unprecedented indignity on Justice Field does not admit of argument.

                                                            "Yours truly.

                                                                        "R. W. WATERMAN,

                                                                                    "Governor."

            On the 26th of August, upon the motion of the district attorney and the filing of the attorney-general's letter, the charge against Justice Field was dismissed by the justice of the peace who had issued the warrant against him.

            The dismissal of this charge released him from the sheriff's claim to his custody, and the habeas corpus proceeding in his behalf fell to the ground. On the 27th, the day appointed for the further hearing, the sheriff announced that in compliance with the order of the magistrate he released Justice Field from custody, whereupon the case of habeas, corpus was dismissed.

History of the Bench and Bar of California. 431

            Among the expressions of public and private opinion conveyed to Judge Field on the subject of this tragedy, was one from the great Democratic leader and statesman, Thomas F. Bayard, of Delaware, of which the following is an extract:

            "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 and 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."

            On the day after Judge Terry's death, the following proceedings occurred in the Supreme Court of the State:

            Late in the afternoon, just after the counsel in a certain action had concluded their argument, and before the next cause on the calendar was called, James L. Crittenden, Esq., who was accompanied by W. T. Baggett, Esq., arose to address the court. He said : "Your honors, it has become my painful and sad duty to formally announce to the court the death of a former Chief Justice—"

            Chief Justice Beatty : "Mr. Crittenden, I think that is a matter which should be postponed until the court has had a consultation about it."

            The court then, without leaving the bench, held a whispered consultation, and Mr. Crittenden then went on to say: "I was doing this at the request of several friends of the deceased. It has been customary for the court to take formal action prior to the funeral. In this instance, I understand the funeral is to take place tomorrow."

            Chief Justice Beatty: "Mr. Crittenden, the members of the court wish to consult with each other on this matter, and you had better postpone your motion of formal announcement until tomorrow morning."

            Mr. Crittenden and Mr. Baggett then withdrew from the court-room.

            On the following day, in the presence of a large assembly, including an unusually large attendance of attorneys, Mr. Crittenden renewed his motion. He said :

            "If the court please, I desire to renew the matter, which I began to present last evening. As a friend—a personal friend—of the late Judge Terry, I should deem myself very cold, indeed, and very far from discharging the duty which is imposed upon that relation, if I did not present the matter which I propose to present to this bench this morning. I have known the gentleman to whom I have reference for over thirty years, and I desire simply now, in making this motion, to say that the friendship of so many years, and the acquaintance and intimacy existing between that gentleman and his family and myself for so long a period, require that I should at this time move this court, as a court, out of recollection for the memory of the man who presided in the Supreme Court of this State for so many years with honor, ability, character, and integrity, and, therefore, I ask this court, out of respect for his memory, to adjourn during the day on which he is to be buried, which is today."

            Chief Justice Beatty said:

            "I regret very much that counsel should have persisted in making this formal announcement, after the intimation from the court. Upon full consultation, we thought it would be better that it should not be done. The circumstances of Judge Terry's death are notorious, and under these circumstances this court had determined that it would be better to pass this matter in silence, and not to take any action upon it ; and that is the order of the court."