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Althea And The Judges
Farce in the Bedroom, Bedlam at the Bar Senator Sharon’s Discarded Rose Packed a Pistol, Her Lawyer a Knife. Blood Flowed at Their Last “Appeal,” as They Ambushed a Federal Judge. as They Ambushed a Federal Judge
June 1967 | Volume 18, Issue 4
Sarah Althea Hill was a rosy-cheeked, blue-eyed beauty of the Golden West, with spirit and a temper. By her own testimony—if no other—she could shoot a pistol straight and “hit a four-bit piece nine times out of ten.” During most of the eighteen eighties she was the sensation of San Francisco, and before she was through—in 1889—she had involved three of California’s most prominent men in a scandalous case that eventually required three Supreme Court decisions. The men were Senator William Sharon, king of the Comstock Lode; David S. Terry, sometime chief justice of California; and Justice Stephen J. Field of the United States Supreme Court. Before it was all over, Justice Field had been given a bodyguard; as things turned out, he needed one.
Senator Sharon was a widower of great wealth in a time when wealth had license. He had come to California with the forty-niners, and through speculation in real estate, banks, and silver (culminating in Nevada’s fabulous Comstock Lode), he had amassed more than fifteen million dollars. In 1875 the Nevada legislature elected him to the United States Senate, although his opponents pointed out that he was really a resident of San Francisco, where he had his office and owned the most extravagant estate on the coast as well as the largest, finest hotel in the West—the Palace. He was a little man, neither stately in appearance nor statesmanlike in conduct—but he was shrewd. His enemies berated him as a man of suspicious deals and licentious living. Apart from business and poker, his pleasures were Byronic poetry and pretty girls—and being a widower with grown children, he saw no reason to curb his instincts for voluptuous living.
Sarah Althea Hill entered Sharon’s life in 1880, when he was sixty and she was in her late twenties. The orphaned daughter of a respected Missouri lawyer, she had been brought up in a convent, and in 1871, while still in her teens, had come to California with her brother.
When Althea reached San Francisco she had a small inheritance, which she gradually dissipated in stock speculations. In the summer of 1880, when her speculations and her personal affairs were at a particularly low ebb—she had tried to commit suicide because of unrequited love for a San Francisco lawyer—she met Senator Sharon, who generously offered to give her some points on stocks. At his invitation she called on him at his office several times to “talk stocks”; but they always ended by talking about themselves. On one of her calls Sharon asked her to let him “love her” and said he could give her $500 a month. (Sharon later testified that that was the regular proposal he made to his mistresses.) Althea declined, whereupon he raised his ante to $1,000.
At this point their later recollections of events diverge. As Althea remembered it, she immediately rose to depart, saying, “You are mistaken in your woman. You can get plenty of women that will let you love them for less than that.” Sharon then put his back against the door and protested that he was really in love with her and wanted to marry her. That was different. She said (or said she said). “If that is what you want we will talk about that.” “Then,” according to the subsequent court summary, “the question arose as to how they should be married. He wanted the marriage secret: he had a liaison with a woman in Philadelphia who would make trouble if she heard of it, and that might injure his chances for re-election to the Senate.” Sharon told Althea that under the civil code of California they could marry one another simply by agreeing in writing to do so; and indeed, Section 75 of that code did recognize a written declaration of marriage in proper form if followed by cohabitation as husband and wife. Then, she said, he had her sit down at his office table and, consulting some law books, he dictated to her this declaration of marriage, which she wrote on note paper and they both signed:
In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A.D. 1880, I, Sarah Althea Hill, of the city and county of San Francisco, state of California, aged 27 years, do here, in the presence of Almighty God, take Senator William Sharon, of the state of Nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of Senator William Sharon, of the state of Nevada. SARAH ALTHEA HILL.
August 25, 1880, San Francisco, Cal. I agree not to make known the contents of this paper or its existence for two years, unless Mr. Sharon himself sees fit to make it known, S. A. HILL.
In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A.D. 1880. I, Senator William Sharon, of the state of Nevada, aged 60 years, do here, in the presence of Almighty God, take Sarah Althea Hill, of the city of San Francisco, Cal., to be my lawful and wedded wife, do here acknowledge myself to be the husband of Sarah Althea Hill. WILLIAM SHARON, Nevada, August 25, 1880.
That fateful instrument having been signed, and her honor thus protected, the secret bride and groom separated without benefit either of clergy or of honeymoon—he to Virginia City, Nevada, and she to her home in the Galindo Hotel in Oakland. Within a month the Galindo burned down, and she moved to the Baldwin in San Francisco. There Sharon came to her, and for a while he was with her almost constantly. But soon he became afraid that their being together so much was creating a good deal of comment. He asked her to move to the Grand, which was connected to his own hotel, the Palace, by a bridge that made confidential access to one another easier. He wrote a note to Mr. Thorn, the manager of the Grand, introducing “Miss Hill, a particular friend of mine, and a lady of unblemished character and of good family. Give her the best, and as cheap as you can.”
For a few months, apparently, the bridge between the Palace and the Grand was a bridge of love. He furnished her room as she wanted it and he gave her (by coincidence?) $500 a month expense money. She had many of her meals and spent many a night with him at the Palace. She gave a musicale for him at the Grand and he had her and some friends for week ends at his country mansion, Belmont. She even attended, she said (though Sharon denied it), the great reception he gave for the wedding of his daughter to a titled Englishman, Sir Thomas Hesketh. “I used to go everywhere with Mr. Sharon.” she testified later, “He scarcely went anywhere that I did not go with him—either riding or driving, or attending to business, that he did not take me with him.”
Thus for a year or a little more. Then he began to accuse her of revealing his business secrets and private affairs, even of stealing his papers. Once, according to Althea, he demanded that she sign a paper that she was not Mrs. Sharon; he offered her the usual $500 a month if she would. She denied his accusations, declined his offer, and refused to sign his paper. But finally she took $7,500 in cash and personal notes payable to “Miss Hill,” and gave him a receipt and some sort of release of claims. Then he had the manager of the Grand give her a notice to vacate her room. When she delayed the hour of her going, Sharon had the room door taken off its hinges and the carpets taken up. She then decided to avoid the further indignity of being thrown out.
For a time she stayed at the home of Martha Wilson, “a poor, nervous little Negro woman” whom she had employed as a seamstress and from whose restaurant she had been used to having her breakfasts. Later she moved to a house in a more fashionable neighborhood and asked a Negro woman who was known as Mammie Pleasant to furnish it for her. As described later by a federal judge, Mammie Pleasant was “a shrewd old Negress of considerable means, who has lived in San Francisco many years, and is engaged in furnishing and fitting up houses and rooms, and caring for women and girls who need a mammie or a manager, as the case may be.” For some reason—it may be that Mammie had once been a slave girl of Althea’s family in Missouri—it was to this protectress that Althea confided the story of her “marriage” to Senator Sharon.
It was said (but Althea denied it) that Mammie persuaded her to try voodoo charms on Sharon to win back his affection. Allegedly Mammie showed her how to put black powder around his chair and white powder between the sheets of his bed and advised her to take one of Sharon’s socks and one of his shirts and bury them under a corpse in a newly made grave. Whether with or without voodoo, Althea was back in favor with the Senator for a time in 1882, but not for long. In the summer of 1883, Mammie took her with her precious declaration of marriage, to Mammie’s lawyer, George Tyler. Tyler needed and called in more eminent cocounsel. Among them was David Terry, a former chief justice of California. With him Althea seems to have made a genuine hit.
Terry was a tall, strong, fighting man from Texas. Although he was over sixty when he met Althea, he had all the quickness and penchant for wild passions of a much younger man. He claimed to adhere to the chivalry and the code of honor of the old South; and no man had ever safely challenged his readiness or his ability to defend his code—at law or with his bowie knife. He had fought in the Mexican War and, like Sharon, had come to California with the forty-niners. He settled in Stockton, became a leader of the Know-Nothing party, and in the early fifties was elected a state supreme court judge. In San Francisco, he was drawn into a fracas with the Vigilance Committee and wounded one of the vigilantes. The committee demanded that he resign from the bench, but he refused. Within a year the court’s chief justice died, and Terry succeeded to the post.
In 1859 he challenged Senator David Broderick—then the political leader of the state—to a duel on a point of personal honor. Terry won the duel and killed Broderick, but witnesses claimed he had fired before the count. Terry’s friends and defenders insisted that Broderick had fired first, accidentally or otherwise. Whatever the truth, the incident made Terry a sort of California Aaron Burr; he left the state, joined the Confederate Army when the Civil War began, and rose to the command of a brigade. After the war and a brief sojourn in Mexico, he returned to Stockton and resumed his practice of law and politics; but he never regained a position of real leadership, except as a sort of elder statesman for the malcontents.
Now, in the summer of 1883, he joined George Tyler in the case of Sarah Althea Hill.
In September, Althea made a public disclosure of her claim that she was Sharon’s wife, and on her behalf William Nielson, a journalist, had him arrested for adultery with another woman. Her claim of marriage was a sensation. Sharon vehemently denied it, said it was blackmail, and vowed he would spend all his millions in defense before she would get a penny. His lawyers filed suit in the federal court, alleging that Althea’s precious marriage document was a fraud and a forgery and asking that the court compel her to give it up and cancel it. She replied with a suit in the state court at San Francisco, asking for a divorce and a property settlement. For over six years the two suits went from court to court and from hearing to hearing, and brought forth some twenty published judicial opinions, three of them by the United States Supreme Court.
The trial of Althea’s divorce suit began in March of 1884, without a jury, before Judge Jeremiah Sullivan of the superior court of San Francisco. It continued, off and on, until September. In court, Althea told her story with a goodly number of embellishments, many of them rather transparently false. She produced a sheaf of notes from Sharon written in the fall and winter of 1880, all to “Dear Allie” and all to the general purport of “come up and see me.” One, toward Christmas, said, “Come over and join me in a nice bottle of champagne, and let us be gay before Christmas. If you don’t come over and take part in the bottle, I may hurt myself.” Also she had a number of letters written in 1881 to “My dear Wife.” Sharon replied that the “My dear Wife” had been forged. In any event, the letters were quite innocent of love, or of any domestic intimacies other than this sort of thing: “My Dear Wife: Inclosed send you … the balance, two hundred and fifty [dollars] which I hope will make you very happy. … Yours, S. April 1st.”
Sharon, however, produced a number of letters from Althea that were intimate and that delighted the readers of the San Francisco newspapers. Althea wrote this one, for instance, when Sharon was insisting that she get out of the Grand and leave him alone:
My Dear Mr. Sharon: I cannot see how you can have any one treat me so—I, who have always been so good and kind to you—the carpet is all taken up in my hall—the door is taken off and away—and it does seem to me terrible that it is you who would have done it. … Oh, senator, dear senator, don’t treat me so—whilst everyone else is so happy for Christmas, don’t try to make mine miserable—remember this time last year—you have always been so good, you don’t act so—now let me see you and talk to you—let me come … & be to me the same Senator again—don’t be cross to me—please don’t—you know you are all I have in the world … I know it is not in your nature to be so hard to one that has been so much to you—don’t be unjust—Say I may see you.
Another, which tame to be known as the “Us Girls” or “Egg and Champagne” letter, had been written when they had made up and were temporarily pals again in the summer of 1882:
My Dear Senator: Won’t you try and find out what springs those were you were trying to think of today, that you said Mr. Main went to, and let me know tomorrow when I see you? And don’t I wish you would make up your mind and go down to them with Nellie and I, wherever they be, on Friday or Saturday. We all could have nice times out hunting and walking or driving those lovely days, in the country. The jaunt or little recreation would do you worlds of good, and us girls would take the best of care of you, and mind you in everything. … I am crazy to see Nell try and swallow an egg in champagne . I have not told her of the feat I accomplished in that line, but I am just waiting in hopes of seeing her some day go through the performance. As I told you today. I am out to Nellie’s mother’s for a few days. 824 Ellis Street. What a lovely evening this is, and how I wish you would surprise us two little lone birds by coming out and taking us for a moonlight drive. … 'Twould do you good to get out of that stupid old hotel for a little while, and we’d do our best to make you forget all your business cares and go home feeling happy. A.
Sharon’s lawyers did not find it difficult to underline the unwifelike quality of those letters. And even her own testimony made it easy to say that Althea had done other unwifely things. At one time she had hidden in Sharon’s room to see him and another woman undress and go to bed together—it was a good joke. At another time she had hidden her friend Nellie behind Sharon’s bureau while Althea and the Senator went to bed together. Althea had hoped that Nellie would overhear Sharon call her “wife”; but apparently her hope was not fulfilled.
Althea’s supporting witnesses were not particularly impressive. Her two Negro friends testified that as early as 1881 she had showed them the declaration of marriage, but “poor, nervous little” Martha was most befuddled on cross-examination, and besides, she couldn’t read. Mammie, on the other hand, was almost too positive about the whole thing. She proudly admitted to having made Althea’s “fight” her own, and to having advanced her $5,000. Althea claimed also to have told an uncle about her marriage to Sharon, but the uncle was not called as a witness, nor did she call her other available relatives to her aid. It is altogether probable that they were glad to be left out of the mess. A girl named Vesta Snow testified for her, but Vesta’s reputation was of the doubtful kind. And so it went with all of Althea’s witnesses.
Judge Sullivan, a distinguished Catholic, concluded that Althea had lied in some particulars; but on the essential points he believed her—Sharon had signed a legally binding declaration of marriage with her and had called her “wife.” If Sharon had not meant the declaration to be real, he had seduced her by trickery. Althea was of good family, and had been educated in a convent; Sharon himself had said that her character was “unblemished.” So the Judge was sympathetic when her counsel spoke of her as “an ungathered rose” who had become “the rose of Sharon.” He granted Althea a divorce and $2,500 a month alimony. Said Althea: “I am so happy, I feel just like a young kitten that has been brought into the house and set before the fire.” Sharon promptly appealed from the decree, and at the same time pressed his petition in the federal court to have the declaration of marriage adjudged a forgery and cancelled.
Althea’s lawyers made every possible objection to the jurisdiction of the federal court to hear Sharon’s case, but they were overruled by the federal judge; an official examiner was appointed to take the testimony of the witnesses and to report to the court. The examination took six months. Sharon and his lawyers spared no effort or expense. They hired the most celebrated experts to examine the declaration of marriage and to testify against its authenticity. They persuaded some of Althea’s erstwhile companions to come into court and bear witness against her. They even persuaded one lawyer to testify (over the vehement objections of her trial attorneys that the testimony was a violation of the lawyer-client privilege) that she had once asked his legal advice about what proof she needed to sue Sharon for breach of promise of marriage.
Althea responded to all this by letting loose her spirit and her temper in an onslaught of contempt and derision the like of which has seldom been witnessed in our courts. She sneered at the lawyers, the witnesses, and the examiner, and took to carrying a pistol in the courtroom.
One day, while Sharon’s lawyers, William M. Stewart and Oliver P. Evans, were questioning a witness, Althea, ignoring them, sat reading a deposition made about her by a woman acquaintance. The deposition was unfriendly, and Althea did not like it. First she muttered, then she shouted for the proceedings to halt. The examiner remonstrated, but that only fanned her indignation. “When I see this testimony, I feel like taking that man Stewart out and cowhiding him,” she shouted.
I will shoot him yet; that very man sitting there. To think he would put up a woman to come here and deliberately lie about me like that. I will shoot him as sure as you live; the man that is sitting right there; and I shall have that woman, Mrs. Smith, arrested for this, and make her prove it. I say no jury will convict me for shooting a man that will bring a woman here to tell such things on me. They have never dared, when they put me on the stand, to ask me a question against my character yet—never dared. If they have got so much against it, why didn’t they dare ask me some questions when I was on the stand?
Several times the presiding officer sought to end her tirade, but she refused to be silenced. “They shall not slander me,” she said. “I can hit a four-bit piece nine times out of ten.” She drew a pistol from her satchel and dangled it in her right hand, pointing it idly in the direction of Evans, assuring him all the while that she was not going to “shoot you just now, unless you would like to be shot and think you deserve it.” When her fury was fully slaked she allowed the examiner to take the pistol from her. He made a special report of her conduct to the federal judges.
Enter now upon this fevered scene the third and most prominent of the California gentlemen whose lives were entangled with that of Althea Hill. Stephen J. Field, associate justice of the United States Supreme Court, was then on circuit in California, and the report of Althea’s pistol-waving came to him and Circuit Judge Lorenzo Sawyer. In those days Supreme Court justices were required to hear cases on circuit when the full court was not in session in Washington. Field’s circuit included California, and there he went each summer to assist Judge Sawyer and the district court judges, Mathew Deady and George Sabin. Field was one of the nation’s most remarkable and self-confident jurists. In his legal and moral principles he was an assertive doctrinaire, his mind seldom in doubt, his actions never hesitant, and his manner so often offensive that he had acquired a number of enemies. Nevertheless, as a judge he was widely admired, and his appointment to the Supreme Court had been applauded all over the country. Like Terry and Sharon, Field had come to California with the forty-niners and had learned the value of courage and firearms. He had written California’s first civil code, and in 1859 he had succeeded Terry as chief justice of California. Abraham Lincoln had appointed him to the Supreme Court in 1863, and there he was to sit for thirty-four years and seven months, longer than any other justice in the history of the Court.
In August, 1885, when Althea first came before him, Field was just under seventy years of age, and with his full beard, bald and lofty dome, broad forehead, long nose, dark eyes, and stern visage, he looked like a judge out of the Old Testament. In fact, he was the son of a Connecticut minister. Two of his brothers had followed their father into the church; a third, Cyrus Field, had laid the Atlantic cable; a fourth, David Dudley Field, was a great New York lawyer who did much to improve American civil procedure but who was also involved with Jay Gould and Jim Fiske in the Erie Railroad scandals. At one time Justice Field aspired to the Democratic nomination for the Presidency, but he had too many political enemies.
Justice Field was not one to tolerate Althea’s theatrics. He and Judge Sawyer promptly ordered the marshal to see to it that in the future she would come into the examiner’s presence unarmed. When one of her lawyers, George Tyler, suggested that a gun was sometimes necessary for protection in court, Justice Field gave him a lecture: “Any man, counsel or witness, who comes into a court of justice armed, ought to be punished, and if he is a member of the bar, he ought to be suspended or removed permanently. That is the doctrine that ought to be inculcated from the bench everywhere. So far as I have the power, I will enforce it.”
Tyler protested, “Where witnesses do come armed—”
“Then report the fact to the court; that is the proper way.”
“That will not stop a bullet.”
Judge Sawyer spoke up: “Then arrest the parties in advance, and put them under bonds, or apply to the court to have them examined and disarmed before permitting them to enter the court. The laws are very severe.”
Tyler again demurred. “The laws are very severe, but it is harder on the man that gets the bullet.”
Justice Field answered him, “I don’t mean to say that there may not be times in the history of a country, in certain communities, when everybody is armed. That was the case in the early days of California, when people travelled armed; but at this time, when the law is supposed to be supreme, when all good men are supposed to obey it, and where counselors are sworn to obey the law and to see it properly administered, the carrying of arms into a court cannot for a moment be tolerated.”
That was Field’s first encounter with Althea. David Terry was not involved. Some weeks later the taking of the testimony was at last completed, and 1,723 pages of it were sent to Circuit Judge Sawyer and District Judge Deady, Justice Field having by then returned to Washington. Terry then made the argument for Althea, but to no avail. The two judges concluded that the declaration of marriage was a forgery; they ordered Althea to surrender the declaration for cancellation, and perpetually enjoined her from alleging its validity or from making any use of it to support any “right claimed under it.” In addition, Judge Deady gave her a gratuitous moral lecture:
… [As] the world goes and is, the sin of incontinence in a man is compatible with the virtue of veracity, while in the case of a woman, common opinion is otherwise.…
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.
Justice Field was again on the California circuit that summer, and along with Judges Sawyer and Sabin he heard the petition to revive the federal order. The judges brushed Terry’s arguments aside, and in a unanimous opinion read by Field they revived the order against Althea.
While Justice Field was reading his opinion, Althea and Terry sat at the attorneys’ table directly in front of the bench. Althea fidgeted nervously with her satchel. Suddenly she stood up and addressed the bench: “Judge, are you going to take the responsibility of ordering me to deliver up that marriage contract?”
Coldly, Justice Field looked down upon her and said, “Be seated, madam.”
Defiantly, she kept on. “How much did Newlands [Sharon’s son-in-law] pay you for this decision?”
Field spoke to the marshal. “Remove that woman from the courtroom. The court will deal with her hereafter.”
She sat down. “I won’t go out and you can’t put me out.” Then, as the marshal strode up to her, she sprang up and struck him in the face with both hands. “You dirty scrub! You dare not remove me from this courtroom.”
Terry rose to his full height beside her. “No man shall touch my wife. Get a written order.” When the marshal replied, “Judge, stand back; no written order is required,” Terry struck him in the mouth with all his might. A general melee followed, in which a swearing Terry and a scratching Althea were subdued and taken from the courtroom. In one of the scuffles a bowie knife was wrested from Terry’s hand. A loaded pistol was removed from Althea’s satchel.
The court promptly adjudged them both guilty of contempt and ordered them to prison, Terry for six months and Althea for one. On September 17 the Terrys filed a petition to revoke the order, but Justice Field denied it. He wrote:
… Why did the petitioner come into court with a deadly weapon concealed on his person? He knew that as a citizen he was violating the law which forbids the carrying of concealed weapons, and as an officer of the court—and all attorneys are such officers—was committing an outrage upon professional propriety, and rendering himself liable to be disbarred. … Therefore, considering the enormity of the offenses committed, and the position the petitioner once held in this state which aggravates [the offences] … the court … cannot grant the prayer of the petitioner; and it is accordingly denied.
The Terrys appealed twice to the U.S. Supreme Court—from the revival of the order on Althea to surrender her marriage contract, and from the order imprisoning them for contempt. They lost each appeal. Then the California supreme court—with a majority of newly elected judges—finally decided that Judge Sullivan’s original decree in Althea’s favor was not supported by the evidence. The state and the federal courts were at last agreed that she was a perjurer, a forger, and a fallen woman. The only court now left to her was public opinion.
To this she and Terry made prompt appeal. Terry wrote a series of long letters to the San Francisco Call, attacking the honesty of the judges and especially of Field. He reviewed Field’s career, emphasizing some old scandals and concluding, “He has always been a corporation lawyer, and a corporation judge, and as such no man can be honest.” In conversations, Terry called the judges “all a lot of cowardly curs” and he would “see some of them in their graves yet.” Once he said he would horsewhip Field, and “if [he] resents it, I will kill him.” Several times Althea said she would kill both Justice Field and Judge Sawyer, and she did not attach any conditions to her threat.
These and other wild statements were duly reported in the papers, and reached the eyes and ears of Washington officials. Field’s friends advised him to keep out of the California circuit the next summer, but he was too proud a man to take such advice. He was still the same Stephen Field who had come to California in the gold-camp days and had published Reminiscences of Early Days in California, filled with tales of his own bravery. “Shoot and be damned!” he had once told someone who had threatened him. Now that he was a Supreme Court justice he was no less defiant. The Attorney General, however, advised the local United States marshal in California to furnish him a bodyguard; and the marshal appointed David Neagle.
Denouement came on the fourteenth of August, 1889. The afternoon before, Field, accompanied by Neagle, took the train for San Francisco from Los Angeles, where Field had been hearing a case on circuit. Their route went through Fresno, where the Terrys were living. There, in the middle of the night, Neagle saw David Terry and his wife board the train. He told Field. “Very well,” the Justice said, “I hope they will have a good sleep.” But Neagle slept no more that night. He told the conductor that he was apprehensive of trouble, and asked that a warning be sent to the officer at the station in Lathrop, where the train would stop for breakfast in the morning. Just before they reached Lathrop, Neagle suggested to Field that he could get a good breakfast at the buffet on board the train. But the judge did not realize what he was driving at, and said he preferred to have his breakfast at the table in the station. Neagle replied, “I will go with you.” They were among the first to be seated.
Shortly afterward Terry came in, and Althea followed a few feet behind. When she saw Field, she turned on her heel and rushed back to the train for her satchel. While she was gone her husband chose a table and sat down, whereupon the manager went up to him and said, “Mrs. Terry has gone out to the car for some purpose. I fear she will create a disturbance.” Terry replied, “I think it very likely. You had better watch her and prevent her coming in.” When the manager left to do so, Terry himself rose from the table, went around back of Field, stopped quickly, and slapped the Justice viciously on both sides of his face. Neagle sprang to his feet, calling out, “Stop! Stop! I am an officer.” But Terry gave him what Neagle later recalled as “the most malignant expression of hate and passion I have ever seen in my life” and made as if to reach for his bowie knife. Instantly Neagle raised his pistol and fired twice. Terry fell to the floor—dead. Field had not risen from his chair.
Just then Althea rushed back to the room, an open satchel in her hand. The manager stopped her, grabbed the satchel, and took from it a loaded revolver. Then she became hysterical, calling out for vengeance and denouncing everybody as murderers.
Field and Neagle identified themselves; but Lathrop was near Terry’s old home, Stockton, and Althea was surrounded by his friends. On examination it appeared that Terry had been unarmed. Despite Justice Field’s protests, a sheriff took Neagle to the county jail at Stockton, and Field had to proceed to San Francisco alone. The affair was an immediate sensation and the idea gained currency that Field and his man had deliberately provoked Terry’s assault so as to have an excuse to kill him. At Stockton Althea swore out a warrant for the arrest of both Field and Neagle for the murder of David Terry.
The arrest of a Supreme Court justice on such a charge was not a matter to be treated lightly. The sheriff apologized, but Field was unperturbed. His words were copybook material: “Proceed with your duty; I am ready. An officer should always do his duty. I recognize your authority, sir, and submit to the arrest. I am, sir, in your custody.” He was not long in jeopardy. Habeas corpus proceedings were begun, but before they could be acted upon, the governor of California ordered Field to be freed from the arrest, lest his prosecution on Althea’s charge become a “burning disgrace” to the state.
Neagle, however, was in real trouble. He had undeniably killed Terry, and whether a jury in Terry’s home county would ever believe Neagle’s claim of justifiable homicide was at least doubtful. He was forced to apply to the federal court for a writ of habeas corpus, and there was serious question whether the federal court had any right to free him. The legal answer depended upon whether Neagle had been acting “in pursuance of a law of the United States,” and admittedly there was no specific statute that provided for him to act as Field’s bodyguard. Moreover, there were those who felt that because of the personal hostility of the federal judges to the Terrys it would be a grave mistake for the federal court to assert control of the case. They argued that the determination of Neagle’s guilt or innocence should be left to the local authorities of the state of California. But the federal court, Judge Sawyer presiding, overruled all objections and ordered Neagle’s release. The state’s attorneys appealed to the United States Supreme Court.
Field did not sit on the case, but he got Joseph Choate, then the country’s most famous advocate, to represent Neagle. In 1890, in the last, the longest, and the most unprecedented of the Supreme Court’s opinions concerning Althea, a majority of the justices held that, in protecting their brother Field against threats of violence, Neagle had been acting “in pursuance of a law of the United States,” and it was not necessary to find a specific statute. The majority opinion was written by Justice Samuel Freeman Miller:
In the view we take … any duty of the marshal to be derived from the general scope of his duties under the laws of the United States is ‘a law’ within the meaning of this phrase. It would be a great reproach to the system of government of the United States … if there is to be found within the domain of its powers no means of protecting the judges … from the malice and hatred of those upon whom their judgments may operate unfavorably … If a person in the situation of Judge Field could have no other guarantee of his personal safety, while engaged in the conscientious discharge of a disagreeable duty, than the fact that if he was murdered his murderer would be subject to the laws of a State and by those laws could be punished, the security would be very insufficient.
Justice L.Q.C. Lamar and Chief Justice Melville Fuller joined in a long dissenting opinion, the crux of which was:
… [We] think that there was nothing whatever in fact of an official character in the transaction … and the courts of the United States have … no jurisdiction whatever in the premises … [we] cannot permit ourselves to doubt that the authorities of the State of California are competent and willing to do justice; and even if the appellee [Neagle] had been indicted and had gone to trial upon this record, God and his country would have given him a good deliverance.
So Neagle was released. Field presented him with a gold watch inscribed “as a token of appreciation of his courage and fidelity to duty under circumstances of great peril.”
David Terry’s friends and partisans continued to see the whole matter in a different light. They wrote articles and pamphlets further presenting Althea’s version of the story and attacking Justice Field and the courts. But for Althea, that was all; her cases were over and done with. After a time she had nothing left, not even her mind. In 1892 Mammie Pleasant, still her friend and protectress, had her committed to an asylum for the insane, and there she lived until her death, some forty-five years later.