Althea And The Judges


And it must also be remembered that the plaintiff is a person of long standing and commanding position in this community, of large fortune and manifold business and social relations, and is therefore so far, and by all that these imply, specially bound to speak the truth, and responsible for the correctness of his statements; and all this, over and beyond the moral obligation arising from the divine injunction not to bear false witness, or the fear of the penalty attached by human law to the crime of perjury. On the other hand, the defendant is a comparatively obscure and unimportant person, without property or position in the world. Although apparently of respectable birth and lineage, she has deliberately separated herself from her people, and selected as her intimates and confidants doubtful persons from the lower walks of life. … And by this nothing more is meant than that, while a poor and obscure person may be naturally and at heart as truthful as a rich and prominent one, and even more so, nevertheless, other things being equal, property and position are in themselves some certain guaranty of truth in their possessor, for the reason, if none other, that he is thereby rendered more liable and vulnerable to attack on account of any public moral delinquency, and has more to lose if found or thought guilty thereof than one wholly wanting in these particulars.

In this undertaking, doubtless, the proverbial sympathy of the multitude for an attractive young woman, engaged in an affair of this kind with an immoral old millionaire, was largely relied on to make the conspiracy successful. But in a court of justice such considerations have no place.…

A woman who voluntarily submits to live with a millionaire for hire ought not, after she finds herself supplanted or discharged, to be allowed to punish her paramour for the immorality of which she was a part, and may be the cause, by compelling him to recognize her as his wife and endow her of his fortune. If society thinks it expedient to punish men and women for the sin of fornication, let it do so directly. But until so authorized, the courts have no right to assume such functions, and, least of all, by aiding one of the parties to an irregular sexual intercourse, to despoil the other, on the improbable pretense that the same was matrimonial and not meretricious. …

But I cannot refrain from saying, in conclusion, that a community which allows the origin and integrity of the family, the corner-stone of society, to rest on no surer or better foundation than a union of the sexes, evidenced only by a secret writing, and unaccompanied by any public recognition of each other as husband and wife, or the assumption of marital rights, duties, and obligations except furtive intercourse, more befitting a brothel than otherwise, ought to remove the cross from its banner and symbols, and replace it with the crescent.

To Althea, the sting of this decision was eased by two new developments. Sharon had died before the decision was given—albeit he had left a will in which he made his final, solemn testimonial that she had never been his wife. More important, on January 7, 1886, two weeks after the decision, Althea and David Terry were married by a priest. For over a year she and her case had been a solace and a diversion to Terry. His wife and five of his six sons had died, one by suicide, and he had need of a gay and high-spirited woman. His marriage to Althea ended him socially, but when that became obvious he remained all the more true to her. “They shall not brand my wife a strumpet,” he said, over and over again.

Terry believed that the federal court’s order had died with Sharon. He did not trouble to appeal it. Althea did not obey it. It was, he said, “an ineffective, inoperative, unenforceable pronunciamento.” Meanwhile, Sharon’s lawyers, now representing his children, pressed the appeal from Judge Sullivan’s earlier divorce decree. In two years they got the California supreme court to reduce the alimony from $2,500 a month to the $500 that had been Althea’s allowance from Sharon, but that court still recognized Althea’s marriage to him as lawful. Consequently his children asked for a new trial and spent large sums of money to elect some new California judges.

They then filed a petition in the federal court to revive its order on Althea to surrender her marriage contract; they had deliberately waited until her time to appeal from the order had expired. Legally, Terry was outmaneuvered; but Althea was cocksure of the popularity of her case. One day in the summer of 1888 she and her husband were riding on a train when she saw Judge Sawyer sitting in the same car. She pranced up to his seat and taunted him. “I will give him a taste of what he will get bye and bye,” she said, and leaned over and yanked his hair. Terry laughed and said, “The best thing to do with him would be to take him into the bay and drown him.” The Judge asked the marshal to have deputies present the next time the Terrys came into court.