Wednesday, March 28, 2007

Murder and the expansion of presidential power

Case law can sometimes, make that often, be dense and too complicated for words. It is always fascinating, though, how often the back story to a boring, highly technical case can itself be riveting, and illuminate the case holdings.

The case known as In re Neagle, decided by the Supreme Court in 1890, is one such example, although little known. It asks and answers the question as to what degree the president can take actions not specifically provided him by Congress?

The Constitution tells us that the president has a duty to “take care that the laws be faithfully executed” but doesn’t use one extra word to tell us what that means. Other presidential powers (commander and chief, the appointment and pardon powers) are pretty specific, but this duty is about as vague as you can get.

On its face, the clause appears to mean that the president must make sure that the laws which were expressly passed are enforced, presumably through his officers, and nothing else.

It was a full century after the Constitution was ratified before the Supreme Court of the United States, which determines Constitutional questions, took up and decided the question. They gave us an answer which involves interpreting the Constitution as well as various statutes and legal concepts. Fear not. Little of that stuff here. We will instead look at the fascinating murder story underlying the case, and the exciting career of one unusual and highly excitable judge, David Smith Terry.

In order to get some perspective on this rather wild story which took place in the 1880s, we have to go back many decades earlier, before the civil war was fought, when Terry was one of the Associate Justices of the California Supreme Court. Terry, a former Texas Ranger who fought in the Mexican-American War came to California in 1849 and was appointed to sit on the State’s high court in 1855.

The next year he found himself in San Francisco at the head of the Law and Order party, the virulent enemies of the San Francisco Committee of Vigilance, which had been formed in 1851 and then again in 1856, in order to combat the complete lawlessness of the area and the powerlessness of the government to stop it. It was quite powerful and operated out of its own fort.

Both sides were essentially lawless as viewed from our tamer times. San Francisco was so out of control, when the Governor ordered Major General William T. Sherman (the Civil War General for whom the WWII tank was later named), who was then head of the State militia, to stop the insurrection, Sherman determined that he lacked the means to do so and resigned.

Shortly thereafter, the Committee’s strong arm, one Sterling Hopkins, tracked down a man, Maloney, in order to arrest him to be tried by the Committee. Terry and some other Law and Order men were present when Hopkins found him, and scared him off at gunpoint. Hopkins gathered armed support and caught up with Terry & Co., who were wisely fleeing the scene.

Although Hopkins was successful in wrestling Terry’s pistol from him, Terry pulled out his Bowie knife and plunged it into Hopkins’ neck. Terry, with Maloney and others, then fled to a friendly armory, but were forced to surrender by Committee troops, which surrounded it. The Judge was marched off to Fort Vigilante where he was held for murder.

Fortunately for Terry (and the rest of our story) Hopkins lived, thanks to the Herculean efforts of a Committee physician, Dr. Beverly Cole. In fact, despite his near death experience, Hopkins was back working again a few weeks later. Terry, who was, still a Supreme Court Justice, was forced to undergo a 5 week long trial as a prisoner of the Vigilance Committee. As Hopkins lived, Terry could not be convicted of murder. Nor could the Committee successfully banish a Supreme Court Justice from the State. They had to let him go (obviously, today he would be found guilty of lesser charges, but try and ignore that).

This caused such anger that Terry had to be spirited out of San Francisco at night by the Committee, as he otherwise would have been lynched (an odd case of vigilantes protecting a prisoner from other vigilantes). To be fair, The Vigilante Committee had to worry about the reaction of the rest of the State if they convicting and executed a State judge. Terry fled and returned to Sacramento, where he was hailed as a hero.

In fact, the very next year, Terry was made Chief Justice of the Court. That didn’t last long, as he resigned from the court in 1859 to challenge U.S. David Broderick to a duel. A few years earlier, when California was trying to enter the Union, the usual Slave State/Free Soil debate raged. Terry, an archetypical Southern man, was on the Slave State side, and David Broderick on the opposite. When Broderick’s side won, California entered the Union as a free state, and Broderick was elected Senator.

There had been many insults traded back and forth by the Broderick and Terry during the contest. Eventually, it led to a duel. It was a highly publicized affair and naturally, people flocked to see it. It actually had to be moved outside of town to accommodate everyone.

Terry won the right to choose weapons. He selected hair trigger pistols. He let Broderick shoot first. Not practiced with the weapon, he discharged it prematurely with his mere touch, the bullet hitting the dirt in front of Terry. The former Chief Justice slowly raised his pistol and shot Broderick dead.

Terry was charged with murder for the second time, this time officially, but was acquitted. Broderick’s revenge, if you could call it that, came nearly three decades later, and very indirectly.

Terry had been replaced as the Chief Judge of the court by Steven J. Fields, who was a good friend of Broderick. He went on to become a United States Supreme Court Justice during the Civil War. During the 19th century, the Supreme Court Justices still “rode circuit,” which means they traveled the country to sit as lower court judges for part of the year.

In the 1880s, Terry represented a woman named Sarah Althea Hill in a highly publicized Hill claimed she had documentary proof that William Sharon, a wealthy man, was married to her. Sharon denied they had been married and brought suit to have the document declared a forgery. denied that they were, in fact, ever married. Hill offered written proof which was determined to be a forgery. Before the trial was even over, Mr. Sharon died, and his son, Fred, took over the case as executor of his father’s estate (shades of Anna Nicole Smith).

In the meantime, to make things interesting, Terry and Hill had fallen in love and married. When the appeal came up to be heard at the U.S. Circuit Court, Justice Field sat with two other judges while traveling on circuit in 1888 and upheld the decision in favor of Fred Sharon against Sarah Hill. Justice Field read the opinion of the court and madness ensued.

While he was still reading the opinion Hill, now Mrs.Terry, demanded to know whether she would be required to give up the marriage contract to be cancelled. Justice Field told her to sit down. After going through that brilliant repartee twice, Mrs. Terry stated “in a very excited and violent manner” that Justice Field had been bought, and asked him how much he had gotten.

Judges don’t particularly like to be talked to that way, and he directed the Marshall, John Franks to remove her. She said she wasn’t going and nobody could make her. When Franks took her physically, David Terry jumped up, said “No one touches my wife” or something like that and punched Franks in the mouth, knocking out his tooth. While he was trying to take his bowie-knife out from under his coat when a number of men grabbed him and pinned him to the floor.

Marshall Franks finally succeeded in getting Mrs. Terry out of the court. Proving her mettle, she had been trying to open her purse, which was later found to contain a revolver. When they finally let Terry up to follow his wife, he again tried to draw his knife and this time succeeded, only to be grabbed by a deputy U.S. Marshall whose name was David Teagle. Teagle and some other men overcame Terry and took the knife. Maybe the most amazing part of the whole story is that they didn’t take it from him the first time.

They didn’t get away with it and were held in contempt. Hill, who was exceedingly disrespectful but also went for her gun, got one month. Terry got six months, probably for landing the punch. They were also both indicted. Nor were they remorseful. On the way to and in prison, Mrs. Terry repeatedly said she would kill Fields and another judge. Terry was a lot nicer about it. He merely threatened to horse whip Fields and only said he’d kill him if he resented it. Actually, I take back my previous comment about the Marshals letting Terry keep his knife after the first time he brandished it, because they apparently gave it back to him, as the Terry’s showed it to another prisoner while in jail.

Later, in an interview with a newspaperman that Terry set up, he accused Field of lying about him, and that if he did not retract it when he saw him again, he would slap his face and pull his nose. Nose pulling sounds rather harmless, but actually was the cause of at least one famous duel I know of back in the eighteenth century involving another future Supreme Court Justice, Brockholst Livingston.

Everyone expected there to be an attack on Field when he returned to California in 1889, and the papers echoed this. This caused concern among the U.S. Marshals and after a series of letters between the Marshal Franks, the U.S. Attorney General and the U.S. Attorney. From these letters it is learned that Mrs. Terry once, even before this uproar, verbally accosted another judge involved in the case on a train, while her husband sat there smiling, and that on a daily basis, in connection with the criminal case, would insult the Marshals and the U.S. Attorney.

As a result of these letters, the Attorney General directed Marshal Franks to assign Field a deputy to guard him at $5 a day when he returned. He selected David Neagle, who had been so handy in disarming Terry at the rumble in the courthouse.

The judge had to travel from San Francisco to L.A. and then back. On the way back the Terrys got on the train at Fresno. Neagle learned of it and asked the conductor to wire ahead to where they were going to stop for breakfast for extra help. Unfortunately, when they stopped, there was no extra help available.

Neagle tried to get the judge to eat on the train, but he refused. They went to the dining room at the station and were given assigned seats. Soon after the Terrys came in and saw Fields. Mrs. Terry turned on her heel and went back to the train to get her satchel containing her revolver (no silly gun control laws here). Terry took a seat. Before his wife returned, he got up, circled behind the judge and slapped him from behind once on each side of his face.

At this point, Neagle, who claims he had been watching Terry the whole time (so, you ask, why did he let him strike the Judge twice?) jumped up and said “Stop, stop. I am an officer” and brandished the gun he had been holding in his hand. Neagle thought Terry recognized him. Perhaps as a reflex his hand went inside his coat, just as he did in the courthouse, to pull out his bowie-knife. Neagle fired twice. Terry sank down and quickly died.

Mrs. Terry entered and ran to her husband. She asked the onlookers to attack Field and Neagle, accusing them of conspiring to kill her husband, and claiming truthfully that he had no weapon. Her satchel was taken from her and the gun discovered.

Ironically, Sarah Hill, who had threatened Fields life, and seemed certain to kill him if she had gotten the chance, was believed enough that both Neagle and Field were arrested. However, the case against Field was dismissed. Sarah was eventually institutionalized for the rest of her life.

The United States sought to have their man freed and not surprisingly, California did not want to go along, feeling they had the right to control the situation without interference from the federal government. A legal battle arose out of this dispute, which ended up in the nation’s highest court where Justice Field had sat for over a quarter of a century.

One of the main questions in the Supreme Court (obviously, Justice Field had to sit this one out) was whether the president, without any authority from Congress, could authorize a bodyguard for Justice Field while he wasn’t actually sitting on the bench, but was in between courts. In other words, it was argued by California that when Field’s wasn’t sitting on a bench acting as a judge, he was not enforcing the law, and the appointment of a bodyguard who protected him even while he was not on the bench was unconstitutional. Therefore, Teagle could get no protection from his federal status.

Nowadays, the answer, “yes, obviously the president can protect a judge” seems intuitive. It wasn’t obvious at the time. The fact that this was controversial and litigated is a good example of how presidential power had grown over time. One Justice even dissented, which couldn’t have made Field too happy.

The Court read the president’s duty to take care that the laws were faithfully executed very broadly. As very often happens in Constitutional cases, the court seemed to argue that what they thought should be in the Constitution, had to be in the Constitution whether or not it was actually there.


In this case, there seems little doubt that had not the bodyguard been appointed, Justice Fields would have been killed when Sarah Hill returned with her gun, and it seems inconceivable that the executive department could not protect him, whether or not he was sitting in court at the time.

Legally, the important thing is, that this was a major step in confirming expansive presidential power, as, although President Benjamin Harrison actually had nothing to do with the whole matter, the Attorney General was seen as acting at his behest. Certainly, the power can be abused and is not unlimited, as many presidents, including our present one, have learned. But that is for another day.

And besides all that legal mumbo jumbo, it’s just a great story, which is why it’s posted here.

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .