Chapter IX

TERRY'S PETITION 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 petitioned 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 petitioner's wife, the said Sarah A. Terry, first
arose from her seat, and before she uttered a word, your
petitioner 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 petitioner's wife be removed from the
court-room your petitioner 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 assaulted
himself, and had in his presence violently, and as he believed
unnecessarily, assaulted the petitioner's wife.

"Your petitioner 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 assault or attempt to
assault 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 petitioner
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 petitioner 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
petitioner immediately released hold of the knife to some one
standing by.

"In none of these transactions did your petitioner 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 assaulted 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 assaulted in his presence."

It will be observed that Terry, in his petition, 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 passing upon Terry's petition, 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 repetition, 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 petition 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 assaulted 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 assaulting 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 petition the court said:

"There is nothing in his petition 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 petition 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 petition. But in order to be effective, and
perhaps successful, I wish to feel assured and be able to give
the assurance 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 assertion 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 Saturday last in which
I told him if I was released I would seek no personal
satisfaction for what had passed. 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 assault upon the marshal and defiance of the court were caused by his righteous indignation at assaults 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 petition duly verified by his oath, and then stated the petition for release above quoted. Yet in a communication published in the _San Francisco Examiner_ of October 22d he solemnly declared that this very petition 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.