To a newspaper writer, Thomas T. Williams, he said: "Judge Field would not dare to come out to the Pacific Coast, and he would have a settlement with him if he did come."

J.M. Shannon, a friend of Terry's for thirty years, testified that while the Terrys were in jail he called there with Mr. Wigginton, formerly a member of Congress from California; that during the call Mrs. Terry said something to her husband to the effect that they could not do anything at all in regard to it. He said: "Yes, we can." She asked what they could do. He said: "I can kill old Sawyer, d.a.m.n him. I will kill old Sawyer, and then the President will have to appoint some one in his place." In saying this "he brought his fist down hard and seemed to be mad."

Ex-Congressman Wigginton also testified concerning this visit to Terry. It occurred soon after the commitment. He went to arrange about some case in which he and Terry were counsel on opposite sides. He told Terry of a rumor that there was some old grudge or difference between him and Judge Field. Terry said there was none he knew of. He said:

"'When Judge Field's name was mentioned as candidate for President of the United States,'--I think he said,--'when I was a delegate to the convention, it being supposed that I had certain influence with a certain political element, that also had delegates in the convention, some friend or friends'--I will not be sure whether it was friend or friends--'of Judge Field came to me and asked for my influence with these delegates to secure the nomination for Judge Field. My answer'--I am now stating the language as near as I can of Judge Terry's--'my answer was, 'no, I have no influence with that element.' I understood it to be the workingmen's delegates. I could not control these delegates, and if I could would not control them for Field.' He said: 'That may have caused some alienation, but I do not know that Field knew that.'"

Mr. Wigginton said that Mrs. Terry asked her husband what he could do, and he replied, showing more feeling than he had before: "Do? I can kill old Sawyer, and by G.o.d, if necessary, I will, and the President will then have to appoint some one else in his place."

[1] One of the witnesses stated that Terry also said, "Get a written order from the court."

CHAPTER IX.

TERRY'S PEt.i.tION TO THE CIRCUIT COURT FOR A RELEASE--ITS REFUSAL--HE APPEALS TO THE SUPREME COURT--UNANIMOUS DECISION AGAINST HIM THERE--PRESIDENT CLEVELAND REFUSES TO PARDON HIM--FALSEHOODS REFUTED.

On the 12th of September Terry pet.i.tioned the Circuit Court for a revocation of the order of imprisonment in his case, and in support thereof made the following statement under oath:

"That when pet.i.tioner's wife, the said Sarah A. Terry, first arose from her seat, and before she uttered a word, your pet.i.tioner used every effort in his power to cause her to resume her seat and remain quiet, and he did nothing to encourage her in her acts of indiscretion; when this court made the order that pet.i.tioner's wife be removed from the court-room your pet.i.tioner arose from his seat with the intention and purpose of himself removing her from the court-room quietly and peaceably, and that he had no intention or design of obstructing or preventing the execution of said order of the court; that he never struck or offered to strike the United States marshal until the said marshal had a.s.saulted himself, and had in his presence violently, and as he believed unnecessarily, a.s.saulted the pet.i.tioner's wife.

"Your pet.i.tioner most solemnly swears that he neither drew nor attempted to draw any deadly weapon of any kind whatever in said court-room, and that he did not a.s.sault or attempt to a.s.sault the U.S. marshal with any deadly weapon in said court-room or elsewhere. And in this connection he respectfully represents that after he left said court-room he heard loud talking in one of the rooms of the U.S. marshal, and among the voices proceeding therefrom he recognized that of his wife, and he thereupon attempted to force his way into said room through the main office of the United States marshal; the door of the room was blocked by such a crowd of men that the door could not be closed; that your pet.i.tioner then, for the first time, drew from inside his vest a small sheath-knife, at the same time saying to those standing in his way in said door, that he did not want to hurt any one; that all he wanted was to get into the room where his wife was. The crowd then parted and your pet.i.tioner entered the doorway, and there saw a United States deputy marshal with a revolver in his hand pointed to the ceiling of the room. Some one then said: 'Let him in if he will give up his knife,' and your pet.i.tioner immediately released hold of the knife to some one standing by.

"In none of these transactions did your pet.i.tioner have the slightest idea of showing any disrespect to this honorable court or any of the judges thereof.

"That he lost his temper, he respectfully submits was a natural consequence of himself being a.s.saulted when he was making an honest effort to peaceably and quietly enforce the order of the court, so as avoid a scandalous scene, and of his seeing his wife so unnecessarily a.s.saulted in his presence."

It will be observed that Terry, in his pet.i.tion, contradicts the facts recited in the orders for the commitment of himself and his wife.

These orders were made by Justice Field. Circuit Judge Sawyer, and District Judge Sabin from the district of Nevada, who did not depend upon the testimony of others for information as to the facts in the case, but were, themselves, eye-witnesses and spoke from personal observation and absolute knowledge.

In pa.s.sing upon Terry's pet.i.tion, these judges, speaking through Justice Field, who delivered the opinion of the court, bore testimony to a more particular account of the conduct of Terry and his wife than had been given in the order for the commitment. As the scene has already been described at length, this portion of the opinion of the court would be a mere repet.i.tion, and is therefore omitted. After reciting the facts, Justice Field referred to the gravity of Terry's offense in the following terms:

"The misbehavior of the defendant, David S. Terry, in the presence of the court, in the court-room, and in the corridor, which was near thereto, and in one of which (and it matters not which) he drew his bowie-knife, and brandished it with threats against the deputy of the marshal and others aiding him, is sufficient of itself to justify the punishment imposed. But, great as this offense was, the forcible resistance offered to the marshal in his attempt to execute the order of the court, and beating him, was a far greater and more serious affair. The resistance and beating was the highest possible indignity to the Government. When the flag of the country is fired upon and insulted, it is not the injury to the bunting, the linen, or silk on which the stars and stripes are stamped which startles and arouses the country.

It is the indignity and insult to the emblem of the nation's majesty which stirs every heart, and makes every patriot eager to resent them. So, the forcible resistance to an officer of the United States in the execution of the process, orders, and judgments of their courts is in like manner an indignity and insult to the power and authority of the Government which can neither be overlooked nor extenuated."

After reviewing Terry's statement, Justice Field said:

"We have read this pet.i.tion with great surprise at its omissions and misstatements. As to what occurred under our immediate observation, its statements do not accord with the facts as we saw them; as to what occurred at the further end of the room and in the corridor, its statements are directly opposed to the concurring accounts of the officers of the court and parties present, whose position was such as to preclude error in their observations. According to the sworn statement of the marshal, which accords with our own observations, so far from having struck or a.s.saulted Terry, he had not even laid his hands upon him when the violent blow in the face was received. And it is clearly beyond controversy that Terry never voluntarily surrendered his bowie-knife, and that it was wrenched from him only after a violent struggle.

"We can only account for his misstatement of facts as they were seen by several witnesses, by supposing that he was in such a rage at the time that he lost command of himself, and does not well remember what he then did, or what he then said.

Some judgment as to the weight this statement should receive, independently of the incontrovertible facts at variance with it, may be formed from his speaking of the deadly bowie-knife he drew as 'a small sheath-knife,' and of the shameless language and conduct of his wife as 'her acts of indiscretion.'

"No one can believe that he thrust his hand under his vest where his bowie-knife was carried without intending to draw it. To believe that he placed his right hand there for any other purpose--such as to rest it after the violent fatigue of the blow in the marshal's face or to smooth down his ruffled linen--would be childish credulity.

"But even his own statement admits the a.s.saulting of the marshal, who was endeavoring to enforce the order of the court, and his subsequently drawing a knife to force his way into the room where the marshal had removed his wife. Yet he offers no apology for his conduct; expresses no regret for what he did, and makes no reference to his violent and vituperative language against the judges and officers of the court, while under arrest, which is detailed in the affidavits filed."

In refusing to grant the pet.i.tion the court said:

"There is nothing in his pet.i.tion which would justify any remission of the imprisonment. The law imputes an attempt to accomplish the natural result of one's acts, and when these acts are of a criminal nature it will not accept, against such implication, the denial of the transgressor. No one would be safe if the denial of a wrongful or criminal act would suffice to release the violator of the law from the punishment due his offenses."

On September 17, 1888, after the announcement of the opinion of the court by Mr. Justice Field denying the pet.i.tion of D.S. Terry for a revocation of the order committing him for contempt, Mr. Terry made public a correspondence between himself and Judge Solomon Heydenfeldt, which explains itself, and is as follows:

"MY DEAR TERRY:

"The papers which our friend Stanley sends you will explain what we are trying to do. I wish to see Field to-morrow and sound his disposition, and if it seems advisable I will present our pet.i.tion. But in order to be effective, and perhaps successful, I wish to feel a.s.sured and be able to give the a.s.surance that failure to agree will not be followed by any attempt on your part to break the peace either by action or demonstration. I know that you would never compromise me in any such manner, but it will give me the power to make an emphatic a.s.sertion to that effect and that ought to help.

"Please answer promptly.

"S. HEYDENFELDT."

The reply of Judge Terry is as follows:

"DEAR HEYDENFELDT:

"Your letter was handed me last evening. I do not expect a favorable result from any application to the Circuit Court, and I have very reluctantly consented that an application be made to Judge Field, who will probably wish to pay me for my refusal to aid his presidential aspirations four years ago.

I had a conversation with Garber on Sat.u.r.day last in which I told him if I was released I would seek no personal satisfaction for what had pa.s.sed. You may say as emphatically as you wish that I do not contemplate breaking the peace, and that, so far from seeking, I will avoid meeting any of the parties concerned. I will not promise that I will refrain from denouncing the decision or its authors. I believe that the decision was purchased and paid for with coin from the Sharon estate, and I would stay here for ten years before I would say that I did not so believe. If the judges of the Circuit Court would do what is right they would revoke the order imprisoning my wife. She certainly was in contempt of court, but that great provocation was given by going outside the record to smirch her character ought to be taken into consideration in mitigation of the sentence. Field, when a legislator, thought that no court should be allowed to punish for contempt by imprisonment for a longer period than five days. My wife has already been in prison double that time for words spoken under very great provocation. No matter what the result, I propose to stay here until my wife is dismissed.

"Yours truly, "D.S. TERRY."

In the opinion of the court, referred to in the foregoing letter as "smirching the character" of Mrs. Terry, there was nothing said reflecting upon her, except what was contained in quotations from the opinion of Judge Sullivan of the State court in the divorce case of Sharon vs. Hill in her favor. These quotations commenced at page 58 of the pamphlet copy of Justice Field's opinion, when less than three pages remained to be read. It was at page 29 of the pamphlet that Justice Field was reading when Mrs. Terry interrupted him and was removed from the court-room. After her removal he resumed the reading of the opinion, and only after reading 29 pages, occupying nearly an hour, did he reach the quotations in which Judge Sullivan expressed his own opinion that Mrs. Terry had committed perjury several times in his court. The reading of them could not possibly have furnished her any provocation for her conduct. She had then been removed from the court-room more than an hour. Besides, if they "smirched" her character, why did she submit to them complacently when they were originally uttered from the bench by Judge Sullivan in his opinion rendered in her favor?

Justice Field, in what he was reading that so incensed Mrs. Terry, was simply stating the effect of a decree previously rendered in a case, in the trial of which he had taken no part. He was stating the law as to the rights established by that decree. The efforts then made by Terry, and subsequently by his friends and counsel, to make it appear that his a.s.sault upon the marshal and defiance of the court were caused by his righteous indignation at a.s.saults made by Judge Field upon his wife's character were puerile, because based on a falsehood.

The best proof of this is the opinion itself.

Judge Terry next applied to the Supreme Court of the United States for a writ of habeas corpus. In that application he declared that on the 12th day of September, 1888, he addressed to the Circuit Court a pet.i.tion duly verified by his oath, and then stated the pet.i.tion for release above quoted. Yet in a communication published in the _San Francisco Examiner_ of October 22d he solemnly declared that this very pet.i.tion was not filed by any one on his behalf. After full argument by the Supreme Court the writ was denied, November 12, 1888, by an unanimous court, Justice Field, of course, not sitting in the case.

Justice Harlan delivered the opinion of the Court.

CHAPTER X.

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

Before the pet.i.tion for habeas corpus was presented to the Supreme Court of the United States, Judge Terry's friends made a strenuous effort to secure his pardon from President Cleveland. The President declined to interfere. In his efforts in that direction Judge Terry made gross misrepresentations as to Judge Field's relations with himself, which were fully refuted by Judge Heydenfeldt, the very witness he had invoked. Judge Heydenfeldt had been an a.s.sociate of Judge Terry on the State supreme bench. These representations and their refutation are here given as a necessary element in this narrative.

Five days after he had been imprisoned, to wit, September 8, Terry wrote a letter to his friend Zachariah Montgomery at Washington, then a.s.sistant Attorney-General for the Interior Department under the Cleveland Administration, in which he asked his aid to obtain a pardon from the President. Knowing that it would be useless to ask this upon the record of his conduct as shown by the order for his commitment, he resorted to the desperate expedient of endeavoring to overcome that record by putting his own oath to a false statement of the facts, against the statement of the three judges, made on their own knowledge, as eye-witnesses, and supported by the affidavits of court officers, lawyers, and spectators.

To Montgomery he wrote:

"I have made a plain statement of the facts which occurred in the court, and upon that propose to ask the intervention of the President, and I request you to see the President; tell him all you know of me, and what degree of credit should be given to a statement by me upon my own knowledge of the facts.

When you read the statement I have made you will be satisfied that the statement in the order of the court is false."

He then proceeded to tell his story as he told it in his pet.i.tion to the Circuit Court. His false representations as to the a.s.sault he made upon the marshal, and as to his alleged provocation therefor, were puerile in the extreme. He stood alone in his declaration that the marshal first a.s.saulted him, while the three judges and a dozen witnesses declared the very opposite. His denial that he had a.s.saulted the marshal with a deadly weapon was contradicted by the judges and others, who said that they saw him attempt to draw a knife in the court-room, which attempt, followed up as it was continually until successful, const.i.tuted an a.s.sault with that weapon. To call his bowie-knife "a small sheath-knife," and the outrageous conduct of his wife "acts of indiscretion;" to pretend that he lost his temper because he was a.s.saulted "while making an honest effort to peaceably and quietly enforce the order of the court," and finally to pretend that his wife had been "unnecessarily a.s.saulted" in his presence, was all not only false, but simply absurd and ridiculous.