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Los Angeles | L.A. THEN AND NOW

One 19th Century Jurist Lacked Prudence

February 15, 2004|Cecilia Rasmussen | Times Staff Writer

California has had 27 chief justices of the state Supreme Court -- and perhaps one of them should have spent more time in prison than on the bench.

In the 19th century, California was not just a place of casual violence; it was the site of more fatal duels than anyplace else in the nation. In one of them, the state's chief justice killed a U.S. senator.

David Smith Terry didn't exactly come to the bench with a judicial temperament. A former Texas Ranger, he arrived in California during the Gold Rush but found his fortune in a law office. His history as a lawyer included stabbing a litigant in court.

In 1855, he won a state Supreme Court seat, an elective position in that era. That was also the year he stabbed an abolitionist leader during a street confrontation over slavery. Terry was imprisoned briefly, but because his victim survived, he was soon freed.

For The Record
Los Angeles Times Wednesday February 18, 2004 Home Edition Main News Part A Page 2 National Desk 1 inches; 41 words Type of Material: Correction
Then and Now -- The Then and Now column in Sunday's California section about state Chief Justice David Smith Terry incorrectly stated that Terry fought for Texas' independence. He fought in the Mexican American War to defend U.S. claims on Texas.
For The Record
Los Angeles Times Sunday February 22, 2004 Home Edition Main News Part A Page 2 National Desk 1 inches; 43 words Type of Material: Correction
Then and Now -- The Then and Now column in the Feb. 15 California section about state Chief Justice David Smith Terry incorrectly stated that Terry fought for Texas' independence. He fought in the Mexican American War to defend U.S. claims on Texas.

Two years later, he was elevated to the post of chief justice, but the slavery issue still enraged him. In 1859, he removed his robes to fight a duel. After the Civil War began, he took the Confederate side and left California to fight at the battle of Chickamauga, in Georgia.

Then, with the war over and the matter of slavery in California decided, he returned to the state to a prosperous law career and more scandal.

Born in Kentucky in 1823, Terry later moved with his family to Texas. In 1847, he took what was already a shoot-first style to the Texas Rangers, fighting for Texas' independence under the command of "Old Rough 'n' Ready," future President Zachary Taylor.

Terry studied law and passed the bar in Galveston, answering the only question put to him: "Do you know the price of a dish of oysters?" He did -- and bought oysters and whiskey for his examiners.

In 1849, at age 26, he was a powerfully built and physically imposing young man of 6 feet 3 when he and 20 other former Rangers -- along with a few of Terry's slaves -- went west to the California gold fields.

Like so many successful '49ers, he found his fortune, not in mining, but in business -- as a crafty lawyer in Stockton.

His violent courtroom manner and hair-trigger temper made his reputation as a man not to be trifled with. When a San Francisco scandal sheet offended him in print, he beat up the editor and was fined $300. (Stabbing a litigant in court brought him a fine of $50.)

California's new Constitution, drawn up in 1849, included an anti-slavery provision, something Terry tried to change. When his firebrand speeches failed to sway the debate, he tried to split California in half, one pro-slavery, the other free.

In 1855, with the help of the pro-slavery Know-Nothing and Whig parties, he was elected a state Supreme Court justice as a Democrat. By then, San Francisco's anti-slavery civic leaders had had their fill of Terry and his cohorts. They formed the city's Vigilance Committee, which chose its targets in secret -- and Terry was one of them.

In a continuation of a series of skirmishes in San Francisco, Terry and his fellow Southerners were heading toward the state armory when Vigilance Committee members intercepted them. In the brawl, Terry stabbed committee leader Sterling Hopkins through the neck.

During Terry's 25-day trial in the vigilantes' court, he contended that he had "merely resented an insult and defended my own life." He was found guilty of assault and resisting an officer but was released because Hopkins lived.

The Vigilance Committee ordered him banished from the state, but that was never enforced.

In spite of public contempt, Terry resumed his seat on the bench. In 1857, Chief Justice Hugh J. Murray died, leaving Terry the most senior justice and then chief.

Terry's own seat was taken by an anti-slavery Democrat, Stephen J. Field, of whom Terry later said contemptuously: "There is no man living who could give a better reason for a wrong decision than Field."

In September 1859, Terry locked horns with anti-slavery U.S. Sen. David C. Broderick, which led to the state's most celebrated "affair of honor."

For Terry to remain on the bench, he had to be nominated for reelection, but the Democratic Convention refused. He blamed Broderick, who then called Terry an "ingrate."

"I have said that I consider Terry the only honest man on the Supreme Bench, but I now take it all back," Broderick boomed in an angry voice to a group of friends.

Broderick's remarks were relayed to Terry, and the duel was set.

Although duels were commonplace in California, viewed by some as a gentlemanly way of resolving disputes, newspaper editorials across the state had, as early as 1852, denounced the practice as "irrational and barbarous."

On that September morning, Terry wrote out his resignation, took off his court robes and met Broderick at 6:45 a.m. at the appointed place, "a beautiful ravine" in San Mateo.

Terry won the coin toss, so his dueling pistols were used. Both pistols had hair-triggers. Terry had practiced with them; Broderick had not.

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