[E. G. Waite, "An Estimate of the Life and Character of David S. Terry," from The Overland Monthly, October 1889]

 

AN ESTIMATE OF THE LIFE AND CHARACTER OF DAVID S. TERRY.

            THE last chapter of a remarkable life is closed. David S. Terry, a prominent figure in the history of the Golden State is in his grave. His deeds are part of the annals of an important era.

            It is too soon to analyze the life of Judge Terry for the popular mind. Public sentiment is too overwhelmingly opposed to him to receive an estimate given even in a philosophic spirit. If he had virtues, at this hour we count them of small value, and not sufficient to make an equation of his character.

            But merely as commentator on prominent and passing events, what shall one say of him ? A former Judge of the

1889.] An Estimate of the Life and Character of David S. Terry. 435

Supreme Court of the State, one of the framers of its present Constitution, a prominent lawyer, and a conspicuous figure in most important affairs, has fallen by the bullet. The events in the dead man's career are so marked that they furnish a drama without adventitious aids from the poet or .novelist.

            David S. Terry was a man of well proportioned, massive frame. He would attract attention anywhere by his size, and a certain majesty of appearance. His friends unite in saying he had a quick and violent temper. When aroused he was practically ungovernable. He sought to command, and in his boyhood, such was his physical superiority, he must have been a recognized leader. Brave as he was and daring, he was just the leader boys are likely to follow. Taught the skillful use of arms, and having a commanding mien and address, he was just a man in a rude state of society to be obeyed. Born in Kentucky and growing to manhood in Texas, left mostly to his own resources we have the material and the influences that made the man.

            Further influences, those growing out of taking a part in the war for the independence of Texas and in the Mexican War, were powerful in giving bent to such a character. Still further rough life, soon after, on the trail to California and in the years that followed, when society was moulding its heterogeneous elements into order, is to be considered in the building of such a character.

            Imperious and impetuous, he was a terror to those he hated, and his hates were strong. His reputation was that of a man of violence. Yet strong as were his dislikes, his love for his friends, and friendship for those who did not antagonize him, were as strong. He was a genial and companionable spirit when in his best estate, and attached men to him by his admirable traits. No one ever accused him of dishonesty. Judged by the standard of his class, he was the soul of honor. He was no fawning sycophant in the pay of wealth and power, his chivalric tendencies being in the direction of the people. It has never been charged that he was in the interest of wealth that oppresses and corrupts.

            As a lawyer, David S. Terry showed by his looks that he was not one of the pale students intent on absorbing all law. Indeed, the life he led, almost always on the frontier, where books were few, made his reading desultory and not profound. His power as a lawyer was in his strong sense and ability of statement, rather than in legal learning. His attainments however, were large, and were at ready command. He was a forcible advocate, and making his client's cause his own, he won the confidence of men who hoped to be honestly served. He was never accused of selling out his client ; but the complaint often was that he fought out his cause even to the bitter end.

            Judge Terry was on the Supreme bench of the State from January 1st, 1856, till after the election in September, 1859, when as Chief Justice he resigned to meet David C. Broderick on a bloody field. I do not think there is any record of his work in that time that will give him eminence for learning or judicial intellect. His temperament and mind cannot be said to have been judicial. Perhaps the most important case decided in those years was that when the State debt, amounting to four million dollars, was declared unconstitutional. The first organic law of the State provided that no debt which in the aggregate should exceed three hundred thousand dollars should be created, unless by a vote of the people, except for certain specified purposes. The debt had gradually accumulated, until it exceeded four millions.

            There is nothing remarkable, either in learning, or ability of argument, in the decision, and we only mention it to relate an incident connected with it. The

436 An Estimate of the Life and Character of David S. Terry. [Oct.

Judge had been saving of his salary, and about two thousand dollars in warrants on the Treasury were in his hands at the time the decision had been agreed on, but not promulgated. He needed money and there were present the influences of precedent and pressure. I have heard the tempter himself relate the circumstances. He approached Judge Terry when at work at his table, and said in substance :

            "Judge, you cannot afford to lose this scrip you have on hand. You have a family to support. I have sold scrip for others to a certain firm here, and I will do the same for you."

            My informant, who was in a position to know what the decision would be, said in an instant there was the form of an infuriated giant towering over him, and a stentorian voice in his ears :

            " What ! do you take me for a ----- thief? Do you think I would cheat a Jew with what I have declared worthless ? No, sir : I shall take my chances with the other creditors of the State for its redemption. Never come to me with such a proposition again, sir ! "

            With few affinities for the class to which Judge Terry belonged, I confess to have had a respect for him for his honesty to this day, from the impression this circumstance produced.

            The people -- to their lasting credit -- the next year adopted the debt by a direct vote.

            Another important decision, rendered during Judge Terry's occupancy of the bench -- important from its influence on the public mind, and as showing the trend of his judgment, was in the celebrated Archey case. Stovall, a young man in poor health, had brought his slave Archey with him to this State. Archey had assumed to be free. A case was brought before the Supreme Court. Burnett wrote the decision. After citing the law and precedents, the learned Judge says there are but two exceptions to the general rule, by virtue of which a slave can be taken to a free State, and not be a free man. A traveler has the right to take his slave in transit, and a visitor is granted the privilege by comity. But, says the learned Judge, it will be seen by the reasoning that the slave in this case does not come under either of the exceptions ; but as his master is sick, we will not draw the line very closely, this time, as it is the first instance, but shall rigidly adhere to the rules hereafter. Jo Baldwin, himself a Virginian, afterwards Chief Justice of this State, wittily said of this decision, that it "gave the law to the North and the negro to the South." Judge Terry concurred in the decision, but added, that in his opinion this master lost none of his rights to the slave if he went to work to obtain a support while sojourning in a free State. It is difficult to tell where such a doctrine, carried out to all its logical consequences, would end ; certainly, it is more far-reaching than the Dred Scott decision, made soon after, which only affirmed the right to take slave property into Territories.

            Judge Terry was a believer in African slavery, and had little patience with any one who was not. His reasoning and sense of justice were warped to suit that belief. But should not the mantle of charity be flung over him, when in northern pulpits at that time reverend divines preached in favor of the institution from the texts, "Cursed be Canaan," and "Servants, obey your masters," as commands from on high, applicable to American slavery, while all around them lived souls imbued with a diviner sense of right than the god these sacred teachers affected to worship ? Terry never had such advantages, and came nearer guiding himself by the best light he had.

            On the whole, I think the impress made upon the laws of the State by Judge Terry was not great, but his record is equal to the average. David C. Broderick once said of him that he was the only honest Judge on the Supreme

1889.] An Estimate of the Life and Character of David S. Terry. 437

bench ; but he was, too, a man of strong enmities and passions, and his remarks on men often expressed the passion of the moment.

            Judge Terry, when he had been about six months on the Supreme bench, made himself obnoxious to public opinion by his interference with the Vigilance Committee of San Francisco.

            There had been perpetrated the most gross political frauds on the public for several years. The people had been plundered, ballot boxes systematically stuffed, and the vicious class had control of the municipal government. A Vigilance Committee, composed of good citizens, undertook the purification of affairs. They were governed by all the forms and rules that obtain in Courts.

            The Bulletin had told the truth about a worthless fellow named Casey, who had fraudulently made himself an officer of the city. Casey shot the editor, James King of William. The Vigilance Committee brought the murderer and other malefactors to condign punishment. Judge Terry left his place in Sacramento, to assert his authority in putting down the Vigilance Committee. An officer of the Committee was dispatched to arrest one Maloney, who was wanted as a witness. Maloney and Terry were together when the arrest was attempted. Terry was armed with a rifle. Hopkins, the officer, took hold of Terry's rifle, and was stabbed in the neck for the act. Terry was arrested, imprisoned seven weeks by the Vigilance Committee, tried, and let go.

            Terry had no affinities with the ballot box stuffers and public thieves of San Francisco. He despised them as a class. In a letter to his wife, written in the prison of the Vigilance Committee, he says Maloney was a bad man, and his removal would have worked no injury to the community ; yet though his arrest might have been attempted from good motives, he could not allow the consummation of an act in his presence that was a violation of the Constitution he had sworn to support. He says he looked to his oath and to the sacredness of a principle rather than the demerits of the man, whom he declares again he knows to be bad.

            Political or partisan motives did not influence him, because the scoundrels the Vigilantes would put down belonged to another party. As he was himself a man ready at all times in case of provocation to take the law into his own hands, recognizing the code though the Constitution of the State made duelling a crime, it is difficult to account for Judge Terry's active opposition to the Vigilance Committee, except upon his own statement to his wife. He knew it was supported by the most respectable sentiment of the whole State. Perhaps he thought the Executive of the State was pusillanimous, and being a man of force and personal courage, he must do something to repair the defect. Accustomed as he was to feats of desperation, it was a field for his prowess. At any rate, it would seem that Terry was at the time acting under a paroxysmal devotion to the legalized forms of law.

            He could easily have stayed in his chambers in Sacramento, and issued his writs of habeas corpus, or sat in cases of appeal, without mingling in the strife at San Francisco,— leaving all to the Executive branch of the State Government or to national aid. He antagonized a popular movement and lost caste. He stabbed an officer of the Vigilantes, — a worthless fellow, — and was popularly condemned for the act.

            There are two opinions regarding Vigilance Committees. They are dangerous as precedents. It is fair to suppose Terry took this view of them. But to the credit of the Committee of 1856 it may be safely said, it purged San Francisco of a nest of murderers and thieves, and gave the city for years the best and most economical municipal government it ever had.

            Terry had not recovered from the bad

438 An Estimate of the Life and Character of David S. Terry. [Oct.

eminence he had won by his opposition to the Vigilantes, when, in 1859, he resigned from the Supreme Bench, to challenge Broderick to mortal combat. The circumstances attending the duel conspired to give Terry more condemnation, and Broderick more sympathy and exculpation, than either deserved.

            It was in a transition period of politics. Southern men of Terry's type, though there were scarcely more in California, from all the slave States together, than from the single State of New York, had dominated both the Whig and Democratic parties from the beginning. They were trained politicians, and practised all the arts, except that of stuffing the ballot-box. They assumed superiority, were aspiring, and had a way of ruining a northern opponent, by branding him as unsound on the slavery question. To be suspected of being an abolitionist was political death, and the suspicion was sure to be started if it would help a southern aspirant to office. These tactics had been carried too far, until a northern sentiment was aroused, made more pronounced by the atrocities in Kansas, the weakness of Buchanan, and the Dred Scott decision.

            In the affair with Broderick, a fair statement of facts is needed, to show the relative position of the two parties.

            The casus belli began in a speech by Terry, when a candidate for re-election, in which, commenting on Broderick's break with Buchanan, he said of the anti-Lecompton wing of the Democratic party :

            "They are a miserable remnant of a faction, sailing under false colors, trying to obtain votes under false pretenses. They are the followers of one man, the personal chattels of a single individual, whom they are ashamed of. They belong body and soul to David C. Broderick. They are ashamed to acknowledge their master, and call themselves Douglas Democrats. The claim that he is following the lead of Douglas, needs the explanation that it is the lead, not of Stephen A. Douglas, the statesman, but of Frederick Douglass, the mulatto."

            Certainly, there was small cause in these remarks to provoke great anger. Sharper and more malignant) language is often heard on the stump, in warm political campaigns, without eliciting more than tart rejoinders ; and editors in no very bad humor indulge now, as they did thirty years ago, in quite as caustic remarks, when dealing with rivals.

            Nor do we see any sufficient cause in the reported remark of Broderick, when he read the speech of Terry, at the breakfast table, for the events that grew out of it. Broderick is reported to have said that he had heretofore spoken of Terry as the only honest man on the Supreme bench, but now he took it back. Without the attending circumstances, this might mean that Broderick had discovered he had done injustice to others on this same bench, and wished to include them with Terry as honest judges. But the expletives, and violence of feeling of the man, must have been pronounced, as a challenge came to him in consequence from D. W. Perley, a friend of Terry, who was present.

            The challenge was declined on the grounds that Perley was an alien, and had no political rights to suffer ; that he was not equal to Broderick in position, and that Broderick had determined not to take notice of any attacks during the pending canvass. It would have been well if he had begun a little earlier, and had not noticed the thrust of Terry about his following the lead of Fred Douglass.

            In the letter of Broderick to Perley, declining his challenge, the inference is conveyed, that after the campaign was over he might except an invitation to the field from "a gentleman holding a position equally elevated and responsible as himself." The evidence put on record by John S. Hittell, in the January

1889.] An Estimate of the Life and Character of David S. Terry. 439

 

number of the OVERLAND, seems to be conclusive, that Broderick was intent on a conflict at arms with William M. Gwin, his colleague in the United States Senate, whose position was " equally elevated and responsible" as his own.

            Terry resigned his seat on the Supreme bench the next day after the September election, in 1859, and sent Broderick a challenge. It would seem it was not incumbent on Broderick to accept the challenge. After Terry had stepped down from the Supreme bench, he became only a private citizen, and did not come within the scope of Broderick's letter to Perley. But the election had gone against Broderick. He was exasperated. He met Terry, a dead shot, and fell.

            Neither can be justified by any code of ethics for this combat. But still this truth may be said : Broderick in this affair did not live up to his teachings. He was taught to believe duelling to be a relic of barbarism, and the killing of an antagonist by this mode as nothing less than murder.

            Terry, on the other hand, received his impressions and principles from a rough state of society, in which the so-called field of honor was the spot to vindicate supreme manliness of character. The better class of Broderick's friends, all over California, abhorred duelling, and would have kept him from the field. Terry's intimates would urge him on, knowing the chances were many to one that his coolness and marksmanship would rid politics of a hated leader, and because, they made themselves believe, the insult to Terry could be atoned only with blood. There is evidence that most of Broderick's friends, who were cognizant of the intended meeting, attempted to dissuade him from taking the field, and to convince him that he was under no obligation to meet Terry ; that the code duello did not demand it, and that his place in the Senate should not be hazarded in a political crisis. Some other friends insisted that he must fight.

            Duelling had been common in California. Many of the most prominent citizens had recognized the code. Even men from Puritan families had not moral courage to resist the tyranny of a bad sentiment,—which nevertheless at most did not infect one fourth of the Californian population. The moral sense of the majority was opposed to the practice. Yet duels were numerous, as the list would show if collected. Without attempting to give more than a fraction of it, the following cases occur to me : Denver and Gilbert ; Gwin and McCorkle ; Broderick and Smith ; Nugent and Hayes ; Percy and Showalter ; Lippincott and Tevis ; Johnson and Ferguson ; Lundy and Dibble ; Weathered and Winters; Wethered and Shaffer; Nugent and Smith, and Broderick and Terry. Stephen J. Field himself submitted to the yoke of the code, and met Judge William T. Barbour with the full intention to fight.

            As I have said, the duel between Broderick and Terry occurred in a transition period in politics. We were rapidly making history on the grandest scale. The nation was approaching a point of culmination. Broderick, was a sort of representative of a progressive purpose. His death was made a factor in the reactionary spirit of the times. He became hero for the moment, though in no sense a moral one, and Terry was made by the majority press and the eloquence of Baker the incarnation of evil. It was unjust so to balance the culpability between the two.

            Much has been said and published to create the impression that Broderick was the victim of a conspiracy, in which a pistol with a sensitive trigger played its part. The statement made by Jo McKibben in Washington, since the recent tragedy at Lathrop, that the duel was a fair one in every respect is conclusive, and this letter, written at the time of the duel by a reporter, an eye witness, under

440 An Estimate of the Life and Character of David S. Terry. [Oct.

date of September 14, 1859, given in the " Bench and Bar in California," by Oscar L. Shuck, ought to settle the question as to the fairness of the duel according to the laws that govern such affairs. The writer of the letter says that McKibben, who was a second of Broderick, examined the pistol given to Broderick, and " snapped a cap on it, with an air of satisfaction." Had he found the trigger too finely set he would have notified his principal of the fact, and given him due caution. Broderick, as the challenged party, had the choice of weapons, and his first second, Gen. D. D. Colton, won the word. According to Colton's private statement afterward, he had told Broderick if the word fell to him he would prolong the time several seconds between the words, "Are you ready ? " and " One " so as to disconcert Terry, and when the word "one " came Broderick must fire, — which he did, the ball striking the ground a few feet in front of Terry, and in a direct line with him. The shot of Terry was made a second or two after, but within the time agreed upon, and according to the announcement of seconds but a few minutes before, which was understood by both parties to the affair. The bullet took effect in the right breast of his antagonist, who sank to the earth in spite of his efforts to brace himself for another shot.

            Broderick died five days after, and was accorded one of the largest and most imposing funerals ever seen on the Pacific Coast, and a funeral oration by one of the finest orators the world has ever produced, worthy to have been spoken over the body of Lincoln.

            Terry escaped the punishment of the law, as all duelists had done before him. The constitution and the statutes had become a dead letter. But he was under the popular ban, owing more to the changing politics of the times and Broderick's connection with a rising sentiment, than to anything else. Had a duel between the same parties occurred a few years earlier, it would have left no such remarkable impress.

            The war of Secession came, and true to his convictions as a believer in slavery, and consistently with his previous life, Terry left a free State, going through Mexico, to take service in the Southern army. He served on the staff of General Bragg for a time, but raised a regiment of Texans soon after, and commanded them to the close of the war, approving himself a brave and able officer. His regiment was noted for being under the best of discipline.

            When the cause was a lost one, he returned to California, declining a command under Maximillian in Mexico, and resumed the practice of the law at his own home in Stockton, and with success.

            A few years ago, he was employed in the case of Sharon versus Sharon, one of the most notable trials in the legal history of California. We can give only the briefest account of the case. Sarah Althea Sharon, or Hill, sued William Sharon, former United States Senator from Nevada, and more than millionaire, for a divorce and division of property, alleging secret marriage, and producing a written marriage agreement. The trial in the Superior Court resulted in a verdict for the plaintiff, although the Court admitted the case reeked with perjury on both sides.

            As an alleged citizen of another State, Sharon applied to the United States Circuit Court, where the marriage certificate was pronounced a fraud. Meanwhile Sharon had died, and Terry married the claimant. The heirs of Sharon continued the contest. Last year, in the United States Court, Judge Field presiding, the decision was made that destroyed the hopes of the plaintiff. She exhibited her resentment in a passionate manner in the presence of the Court, which could not be overlooked. The United States Marshal attempted to remove her forcibly. Terry forgot the

1889.] An Estimate of the Life and Character of David S. Terry. 441

dignity of the Court — which; had he been on the bench, he would have been the first to protect — and seeing his wife struggling in the hands of officers, his chivalry was aroused, and he attempted to rescue her by force of arms. Though a giant in stature and strength, he was overpowered by numbers, and disarmed of a bowie knife. A pistol was found, also, in the satchel of Mrs. Terry. For this offense both were committed to the Alameda County jail, she for thirty days and he for six months.

            It is to be observed in this connection that the decision at this time was not simply an adverse one, disappointing the plaintiff of a heavy money claim granted her by the lower court, but also involved the question of her character. The natural disposition of Terry being in any case to make his client's cause his own, and the life and character of Sharon having been notorious, Terry's conviction that his client in this case was a deeply wronged woman was doubtless profound, and excited his sense of chivalry to the utmost ; and this sentiment, especially when she had become his wife, goes far to account for his violence on this occasion. I do not offer this as a palliation of his acts, but only as an explanation. Yet who among us, if unfortunately in the position of seeing a wife, whatever her faults, seized by force — even in the presence of the highest tribunal in the land—would not feel at least the impulse to interpose a strong arm for her relief ? Reason and philosophy are not always at supreme command even in the best of our kind.

            The evidence now, at this writing, coming before the public in the reports of the hearing of Neagle's case before the Circuit Court of the United States, Judge Sawyer, presiding, shows that Judge Field and the public were impressed that Terry and his wife had indulged in frequent threats against both Justices Field and Sawyer, while under incarceration in jail, and since their liberation.

            There was bad blood, so called, on their part. She pulled the hair of Judge Sawyer some months ago, on the train from Los Angeles, which, of course, coming from a woman, he could not resent with force; and, besides, her husband was with her, and presumed to be ready to espouse the cause of his wife.

            But the climax came. Justice Field had been to Southern California to hold a term of his court, and was on his return to San Francisco on the cars. Terry and his wife boarded the train in the night at Fresno. They entered the breakfast room at Lathrop, and saw Field sitting at table. She returned to her car for something. Terry walked behind Field and twice slapped his face.

            By order of Attorney General Miller, the United States Marshal had furnished a body-guard for Field, in the person of a deputy, David Neagle, who was in company, and sat near Field at the table. He rose, called on Terry to stop, and immediately fired two shots at him, killing him instantly.

            Neagle was arrested by the authorities of San Joaquin County, and lodged in jail at Stockton. Judge Sawyer, of the United States Circuit Court, issued a writ of habeas corpus, and brought Neagle before him at San Francisco. Justice Field was soon arrested by the same authority as Neagle, but was released by the action of Judge Sawyer, before whom a hearing is, at the time of this writing, going on.

            There are complications growing out of the action of the Federal Courts, about which the best lawyers differ. I do not propose to discuss them here.

            Looking back no farther than the conflict with the Vigilance Committee of 1856, we can see the beginning of influences on an imperious spirit that told in Terry's after career. His will was thwarted. The duel with Broderick gave to him no eclat, but rather to its victim. His political principles were repudiated by the nation and California in the elec-

442      An Estimate of the Life and Character of David S. Terry. [Oct.

tion of 1860. The lost cause was a lost one for him. He alone was defeated on the Hancock electoral ticket, in 1880. Fires destroyed his property. He lost standing with some of his friends and the public by marrying his last wife. The attempt to gain a part of Sharon's millions was a losing one. This he undoubtedly felt more on his wife's account than his own, as he was by no means mercenary. But the more than money question involved would touch him as nearly as possible. His anger was at its height for these reasons, and from incarceration in jail, which exasperated a restless spirit that never brooked restraint or control.

            His latest acts were those of a foiled, angered, and disappointed man. The virtues of loving his friends and of being true to them in any extremity will not be denied him. He was generous to his relatives, and charitable to others in money or service. He was pure and devoted in his domestic life. He meant to be honest in his convictions, and no one has ever accused him of bartering his honor for pelf, either as a lawyer or jurist. The universal verdict 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.

E. G. Waite.