A HISTORY OF JUDICIAL VIOLENCE

Are we witnessing an upsurge of violence against government officials?

Congress is holding hearings on the January 6 riot, during which the physical safety of the Vice President was threatened by a mob chanting “Hang Mike Pence.” Nicholas John Roske was arrested at 1 am outside the home of Justice Kavanaugh, while carrying a suitcase containing a Glock 17 pistol, a tactical knife, ammunition, hammer, crow bar, and other equipment useful for breaking into a home and murdering its inhabitants,

America has experienced a long history of political violence. Four American presidents – Abraham Lincoln, James Garfield, William McKinley, and John Kennedy – have been assassinated. Six others have survived assassination attempts: Franklin Roosevelt, days before he took office; Andrew Jackson, Harry Truman, Ronald Reagan, and Gerald Ford (twice) while in office; and Theodore Roosevelt, after he left office while campaigning for another term.

Fifteen members of Congress have been killed while in office, and an additional thirteen have been seriously wounded.

But this history of violence has involved the executive and legislative branches. Only one Supreme Court member has ever been the victim of actual violence.

The event occurred on August 14, 1889 and involved Supreme Court Justice Stephen Field. The assailant was a lawyer and former judge, David S. Terry. The characters and the circumstances are worth recounting, as they provide some perspective for the current turbulence.

Born in New England, Stephen Field was a prodigy in a family of prodigies. His brother David Dudley Field was a prominent New York lawyer and the principal creator of the Field Code, which codified common law procedures. Another brother, Cyrus Field, promoted the first underwater telegraph cable connecting the United States to Europe. Another brother, Henry, was a leading clergyman and author. Stephen Field’s nephew David Brewer sat on the Supreme Court alongside him for seven years. His niece Anita Whitney was the plaintiff in Whitney v. California, a major First Amendment case.

Field graduated from Williams College, read the law, and practiced with his brother in New York before taking passage to San Francisco. He arrived in 1849, and set up a practice in the mining town of Marysville. He was elected to the post of magistrate, and then to the state legislature where he chaired the judiciary committee.

In 1857, he was elected to the California Supreme Court. He relocated to San Francisco, a wild and lawless place. Though a scholarly man, Field understood his violent millieu and decided it was best to be prepared. He purchased a pair of revolvers, and had a cloth coat made with pockets deep enough to conceal them. He later recalled: “I began to practice firing the pistols from the pockets. In time I acquired considerable skill, and was able to hit a small object across the street. An object so large as a man I could have hit without difficulty.” Fortunately, he never had occasion to use them.

David Terry was a jurist of a different nature. Far from fearing violence, he went looking for it. Born in Kentucky, he moved to Texas where he became a Texas Ranger. He was a large man – 6’3” and 250 pounds — and skilled in the use of a Bowie knife. After fighting in the Mexican-American War, he studied law in Galveston and gained admission to the bar by successfully answering the one question posed to him: “Do you know the price of a dish of oysters?” He celebrated his admission by buying oysters and whiskey for the bar examiners.

Terry moved to California where he practiced both law and violence, often at the same time. Offended by a local newspaper, he beat up the editor, for which he was fined $300. He stabbed a litigant, for which he was fined again, but this time for only $50.

In 1855, with the support of local pro-slavery activists and the Know-Nothing Party, Terry was elected to the California Supreme Court. Crime was rampant in San Francisco, and the local citizenry had established a Vigilance Committee to restore order. Members of the Committee, led by Sterling Hopkins, were on their way to arrest a man who happened to be a friend of Terry when they encountered the judge and a group of pro-slavery associates determined to prevent the arrest. Matters quickly turned violent. In the ensuing melee, Justice Terry stabbed Hopkins  in the neck with his Bowie knife. After a long trial, during which Terry himself examined witnesses, Terry was imprisoned. Fortunately for all concerned, his victim survived. Terry was released and allowed to resume his seat on the High Court, as a non-fatal stabbing was not considered serious enough to warrant disqualification.

Upon the death of Chief Justice Hugh Murray, Justice Terry was elevated to Chief Justice. Field was elected to take Terry’s vacated seat. The two became colleagues, beginning a relationship that would last three decades. From the start, they did not get along. Chief Justice Terry once said: “There is no man living who could give a better reason for a wrong decision than Field.”

In 1859, Chief Justice Terry had a falling out with Senator David Broderick, an incident that would have a major impact on Field’s career. Senator Broderick had been overheard expressing doubts as to Terry’s honesty over breakfast at the International Hotel. After correspondence failed to resolve the matter, a duel was arranged. Since dueling was illegal, Chief Justice Terry wrote out his resignation before heading to San Mateo for the event. The now ex-Chief Justice won the coin toss, allowing him to choose weapons. He chose his own dueling pistols, which had hair-triggers. Both men were aware of this feature, but Terry was experienced with the weapons while Broderick was not. When it was time to fire, Broderick’s gun went off prematurely, the bullet hitting the ground. Terry then shot Broderick in the chest. The senator died three days later.

Terry was charged with murder, but venue was set in Marin County, where a friendly judge dismissed the case. 

The resignation of Terry enabled Field to replace him as Chief Justice. In 1863, in the midst of the Civil War, President Lincoln appointed Field, an anti-slavery Democrat, to the U.S. Supreme Court. Both as a state and federal court judge, Field was incredibly industrious. He authored 365 opinions for the California Supreme Court, 620 opinions for the U.S. Supreme Court, and an additional 57 opinions for the Ninth Circuit while riding circuit as U.S. Supreme Court Justices did in those days.

Meanwhile, former Chief Justice Terry had closed his law practice and found an occupation more suited to his temperament. He enlisted in the Confederate Army, rising to the rank of colonel. He was wounded in the Battle of Chickamauga. After the war, he tried his hand at ranching in Mexico, before returning to California in 1868 to resume his law practice.

The war or his advancing years may have had an ameliorative effect on his violent tendencies.  In 1879, while attending a constitutional convention in Sacramento, he received a challenge to a duel by an attorney named Archibald Peachy. Terry informed the bearer of the message that he would not fight Mr. Peachy because the man was nearly blind. When told of Terry’s response, Mr. Peachy sent back word that he could see as well as he cared to, and insisted on a duel. Terry was unmoved. It is the only recorded incident of the Judge refusing a challenge.

Terry might have lived out his years peacefully had he not been engaged to represent a young woman named Sarah Althea Hill in a lawsuit against William Sharon, a wealthy mining magnate and former senator. This engagement would cause the paths of Terry and Field to cross again.

Ms. Hill was a strong-willed, attractive lady who carried a Colt revolver in her satchel and frequently threatened to use it. Senator Sharon put her up at the Grand Hotel in San Francisco, and paid her $500 monthly to enjoy her favors. Notwithstanding his generosity, Sarah desired a better arrangement. She claimed that the two had secretly married. She hired Terry to represent her in divorce proceedings in which she sought half of Sharon’s fortune, valued at the then titanic sum of $30 million. After Senator Sharon died, she upped the ante. She produced a handwritten will which she claimed to have found in his desk, which bequeathed his entire estate to her.

The recently widowed Terry married his client, despite, or perhaps because of, the fact that she was 25 years his junior. The match proved explosive.

A Ninth Circuit panel, which included Justice Field riding circuit, declared the marriage contract between Sarah and the senator a forgery. After the hearing, Terry and his client, the new Mrs. Terry, encountered one of the other panel judges on a train. Mrs. Terry grabbed him by the hair and threatened to kill him, but nothing came of it.

On September 3, 1888, in a subsequent circuit court proceeding, Justice Field ruled that the will was also a forgery. Mr. and Mrs. Terry were incensed. Sarah stood up, hurled obscenities at the judge, and fumbled in her satchel for her pistol. When federal Marshal John Franks tried to restrain her, Judge Terry rose to defend his wife, punching Franks in the mouth and knocking out a tooth. Terry drew his Bowie knife. Spectators piled on Terry and forced him out of the courtroom and into the corridor, where he again brandished his Bowie knife and threatened the crowd. Federal Marshal David Neagle, a small man about a foot shorter and one hundred pounds lighter than Terry, put his pistol in his face and arrested him. The couple were led back into the courtroom, where Justice Field sentenced them to jail for contempt of court: Terry for six months and his wife for one.

During their incarceration, Mrs. Terry repeatedly threatened to kill Justice Field. Her husband told a visitor that the earth wasn’t big enough to keep him from finding and horsewhipping Field. Despite these threats, they were released and returned to their home in Fresno.

On August 14, 1889, Terry and his wife boarded a train. By an unfortunate coincidence, Justice Field and Marshal Neagle were already on the same train, returning from Los Angeles where Field had been riding circuit. When the train arrived in Lathrop, the passengers were allowed to disembark to have breakfast at the railroad station dining room.  Marshal Neagle learned of the presence of Terry and his wife, and advised Field to remain on the train and take his breakfast in his car. The Justice declined to follow this sensible suggestion. He insisted on having breakfast in the station dining room where, according to a contemporary account in the Los Angeles Herald, the following occurred:

… Justice Field entered and took a seat at the head of the table a short distance from the main entrance to the railway dining-room, Deputy Neagle taking a seat at his side. Judge Terry and wife entered the room almost immediately afterwards and took seats at a table distant possibly twenty feet from that at which Justice Field was seated. Mrs. Terry instantly recognized Justice Field and at once left the room, going to the sleeping coach and returning toward the room with a satchel. She was met at the door by the proprietor of the restaurant, who knew all of the parties, and who refused her admission.

In the meantime Judge Terry had sat at his table, never taking his eyes from Justice Field, and finally rose and walked toward the door, passing in the rear of Field. When opposite the latter he turned and struck him from the rear on the side of the face. Deputy Neagle rose and cried out, “Stop! Stop!” But Terry had raised his clenched fist for another blow when the fatal shot was fired. A second shot immediately followed, but the ponderous form of Terry had fallen to the floor. He did not utter a word. The alarmed people in the room immediately left, while Deputy Neagle announced to everybody that he was a United States officer in the performance of his duty, and warned everyone not to molest him. He and Justice Field then returned to the sleeping car.

 In the meantime Mrs. Terry returned to the dining-room and when made aware of the death of her husband, made an attempt to board the sleeping-car containing the Justice and deputy. Her satchel was taken away from her, which was found to contain a revolver.

Marshal Neagle was arrested by the local authorities and jailed. Justice Field telegraphed the Attorney General, who directed the U.S. Attorney in San Francisco to seek a writ of habeas corpus for Neagle’s release. The lawfulness of the arrest and release were litigated all the way up to the Supreme Court. In a 6-2 decision (with Justice Field recusing himself), the Court ruled in favor of Neagle, holding that federal officers are immune from state prosecution for taking actions within the scope of their federal authority.

The widow Sarah Terry returned to San Francisco. For years she wandered the streets, talking to her deceased husband and gradually descending into insanity. She was diagnosed with dementia praecox, and committed at age 42 to the California Asylum at Stockton where she lived another 45 years.

As for Justice Field, he remained on the Court until 1897, serving for a total of 34 years and 9 months, longer than any predecessor and second only to William O. Douglas. He encountered no other threats of violence. But he never forgot what happened in Lathrop, and did all he could to thwart the careers of anyone associated with Judge and Mrs. Terry. As a contemporary  noted: “When Field hates, he hates for keeps.” Of course, his hatred was not without cause.

The threat of violence against Justice Kavanaugh must be taken seriously. But history provides perspective. Neither the armed young man arrested outside Kavanaugh’s house, nor the obnoxious demonstrators chanting on his and his colleagues’ sidewalks, seem as dangerous nor as colorful as the one-time Bowie knife-wielding Judge David Terry and his pistol-packing wife.