I recently stumbled upon an article about David S. Terry, a 19th-century California judge. He was an intriguing figure, so I looked to see if there were any books written about him. There were four non-fiction texts. One, written when he was only thirty-three years old, is titled ‘Trial by the Committee of Vigilance’ (1856). This book is essentially a court transcript which details a particularly harrowing chapter in Terry’s life, which I will cover. Then there are three biographical texts. ‘Life of David S. Terry’ (1892) was published just a few years after he died by Alexander E. Wagstaff, an acquaintance of his. I read this one in full. The author claims to be writing an ‘impartial and vivid history’ of Judge Terry, and despite the author being politically and ideologically opposed to Terry, I think he more or less achieves an impartial telling, which is certainly impressive by today’s standards. Finally, there is ‘David S. Terry: The Romantic Story of a Great Texan’ (1934) and ‘David S. Terry of California: Dueling Judge’ (1956), which are the most recent treatments.

                There is nothing more contemporary than the 1950s, and I think there is a good reason for this. There is little redeeming in the life of David S. Terry. He was a violent, murderous, racist, pro-slavery Confederate, and these are not incidental details; they define his character and life. Despite these obvious character defects, he was elected as an Associate Justice of the Supreme Court of California, serving from 1855 to 1857, and then as Chief Justice of California from 1857 to 1859. I’m compelled to write about him not despite the fact that he was a bastard, but because he was.

                David S. Terry was born on March 8, 1823, in Russellville, Kentucky. At that time, there were only 23 states within this 47-year-old union. When David was only two years old, his parents separated, which was a rare occurrence in the early 19th century. His biographer, Wagstaff, commenting on the state of his parents’ marriage, says that his father “…contracted habits which led to a separation.” In other words, he was conducting affairs, and his mother, Sarah, uncharacteristically for the time, decided she would do something about it. So, she moved with her children, and her slaves, to Houston, Texas. There she managed a cotton plantation in the hopes of establishing, or re-establishing, some financial security. In 1835 when they made the move, Texas was still technically part of Mexico; it became independent in 1836, and then subsequently joined the union in 1845. This tumultuous period for Texas was David S. Terry’s childhood.

Sarah died only a year after they moved to Texas. Benjamin Franklin Terry, her oldest child at age 14, took charge of the plantation alongside David, who was 12. In that same year, 1836, both Benjamin and David served as soldiers under Sam Houston at the Battle of San Jacinto; David had just turned 13. This was Texas’s first meaningful engagement with Mexico after their defeat at the Battle of the Alamo. They screamed, “Remember the Alamo,” as they launched their devastating surprise attack against the Mexican forces, securing their victory.

Both Benjamin and David are both noted for their large stature. David reached the height of 6 feet 2 inches, which is tall for the average American male today (5' 9"), and certainly taller than the average male in the early 19th century, which was just over an inch less. David’s brother, Benjamin Franklin Terry (1821–1861) was a prominent Confederate officer who raised and commanded the 8th Texas Cavalry Regiment, known as Terry's Texas Rangers, during the American Civil War. He was a slave owner and planter in Texas. Ultimately, he was killed in the regiment's first action at the Battle of Rowlett's Station.

                David S. Terry can be characterized as a very serious, intelligent, and imposing individual, and given that he grew up on a plantation on what can be classified as the United States’s frontier, this is the combination that largely explains the man that he was and everything else that followed. I think it’s often informative to establish what an individual’s religious views are. David is described by his biographer as a fervent, church-going Baptist (which I can’t imagine is that unusual for an early 19th century Texan); beyond that religion doesn’t appear to have a significant bearing upon his life (by which I mean, it is never explicitly referenced).

                Despite his lack of formal education, his raw intelligence carried him far; he learned the law and in 1845 was admitted to the bar in Galveston. What being “admitted” entailed in 1845 comprised of the following: he was led into what we might presume was a smoke-filled room with leather armchairs, at which point he was asked “Young man, do you know the price of a dish of oysters?” He stated that he did, and with that, the meeting was adjourned, and he was admitted to the Texas bar. He then opened his first legal office in Galveston.

                From 1846 the Mexican-American War was waged. Terry (now aged twenty-three) joined the future president Zachary Taylor as a mounted Texas ranger in the battle of Monterrey. We don’t have any of the specifics as to his role in the battle, but given the limited numbers of American combatants, it’s reasonable to assume he took an active role in the engagement, in which Taylor captured the city of Monterrey after intense urban combat. The victory was achieved through a combination of frontal assaults and house-to-house fighting. Apparently, Texas rangers were known for the bowie knives that they carried, and Terry consequently became infamous for the bowie knife that he carried for the rest of this life.

                In 1849, Terry joined the California Gold Rush, becoming part of the massive influx of prospectors and settlers to the region. This migration significantly accelerated California's economic growth and led to its rapid transition to statehood which ultimately took place in 1850. Initially, Terry tried his luck as a prospector, but when this did not prove successful, he returned to his background in law, and also turned his attention to politics. He ran for mayor of Stockton, California, on the Whig ticket but was defeated. After the fact he claimed to be relieved that he had been defeated, stating that he probably wouldn’t have been a good mayor anyway. During this early period in California, Terry found himself involved in numerous disputes and altercations, including acting as a second in a notable duel. Although laws prohibiting dueling were starting to be enacted around this time, there were, as we shall see, still various duels that still took place throughout the 1850s in California.

                In the Denver Republican newspaper, August 15, 1889 (the day after Terry died), a story is recounted of an incident from June 1853 when Terry was thirty years old. The setting was the District Court in Stockton:

                “…in walked David S. Terry, a picturesque-looking individual… on this occasion he was without coat or cravat, and on his feet were slippers but no stockings. From under his vest protruded… (his) pistol… On his other hip opposite the pistol was a wicked-looking bowie knife. Terry, on taking his seat at the table, placed his foot on top of the same and commenced cross-questioning the witness. The witness was a consumptive-looking fellow… Terry (asked him) 'What's your name?' The poor fellow replied, in a feeble voice, 'Williams, sir.' 'Have you ever been indicted in this court?' 'Yes, sir; and you caused me to be indicted, but the indictment was nolle prossed.' (meaning it was dismissed). 'What's that you say?' said Terry. 'Answer my question and nothing else.'”

                A few remarks later, Terry was standing over the witness with his knife drawn, having discerned some slight against him. Terry was subsequently restrained by the other men present, or so goes the account.

                Whether this story is true or apocryphal is unclear, as it comes to us third or fourth hand. It does, however, provide a flavor of the man Terry was at this time. His own sense of self-honor or pride led to these periodic outbursts of pure rage and mania. What is so strange, reading about his life from our contemporary vantage, is the degree to which his behavior was tolerated by society. One might imagine that if a prosecutorial lawyer's best argumentative tools were the literal weapons that he carries into the courtroom, he would make for a poor lawyer. But despite this, he was indeed respected and ultimately did achieve the highest possible position within the highest court in the state. Time and age, it seems, did not have a moderating effect on his behavior; he perhaps most infamously killed someone as chief justice – then an attempted murder in his last moments.

                In 1852 Terry married Cornelia Runnels, the daughter of a Mississippi cotton planter. She improved Terry’s social standing, and became a respected woman in California. They had five children together: Frank (named after his brother), Samuel, David (named after himself), Clinton, and Jefferson (named after Jefferson Davis, the president of the Confederate States). Most met with unfortunate ends; Clinton H. Terry was the exception who became a San Francisco-based engineer.

                Terry’s political life in California is tied up with the rise of the Know-Nothing Party. This party arose off the back of some conspiratorial thinking at the time, namely, that Catholics under the direction of the Pope in Rome were planning on seizing control of the country. In part, this was in response to the influx of Catholics immigrating from Ireland (which was in the throes of the Irish Potato Famine) and Germany. The movement emerged from a secret society, ‘The Order of the Star-Spangled Banner’. This is where the term “Know-Nothing” comes from; when its members were asked about the society, they would respond that they knew nothing. The Know-Nothing Party was also called the “Native American Party”. The “natives”, or “nativists” were not American Indians, as we would presuppose today, but rather Anglo protestants. This conservative populist movement believed in limiting immigration, particularly of Catholics, and had a common man and anti-elitist bent; as such, it was a movement which appealed to Terry.

                The Know-Nothings rose in response to the turbulence within the Democratic Party in California, turbulence that was largely caused by the ambitions and mercenary tactics of David C. Broderick in his dogged attempt to secure one of California’s senate seats. Broderick was born in Washington, D.C., and had run a failed campaign to become the U.S. Representative for New York’s 5th congressional district in 1846. The allure of the political opportunities during the California Gold Rush prompted his move westward in 1849. Once in California, he rose up the political ranks quickly, serving as Acting Lieutenant Governor of California in 1851, and then was “elected” as one of the U.S. Senators for California in 1857. He was elected by the state legislature, as popular elections had not yet been established in California.

                In 1855 Terry become widely known as a potential candidate for the Associate Justice position. His affiliation with the Know-Nothing Party, and his desire for political reform, were well known. It’s of course difficult to know what was motivating Terry at the time, but his peers held him in high regard believing that he sought public office with integrity and in a professional spirit. The issue of slavery was a highly contentious issue at the time. Broderick was an anti-slavery Democrat, while Terry supported slavery. There was widespread anti-slavery sentiment in the state, largely because slavery was seen as a threat to the economic opportunities of ordinary miners trying to exploit the Gold Rush. In terms of public opinion, the issue was not so much a moral problem with the institution of slavery, it was far more economic in nature; slavery represented an existential threat to ordinary American’s livelihoods. This accounts for the compromise that led to California being admitted to the Union in 1850 as a free state, as such, prohibiting slavery.

                Terry was elected Associate Justice of California. Soon after, he began his conflict with the Vigilance Committee; they were a group of concerned citizens who decided to take the law into their own hands during a period of perceived rampant lawlessness. Such groups arose in California in response to the rapid influx of people during the Gold Rush, leading to significant social upheaval and crime. The Vigilance Committee engaged in actions such as arresting, banishing, and even executing individuals without formal legal authority. In response to their activities, Terry traveled to San Francisco to confront the committee. This confrontation deteriorated into a street fight, during which Terry stabbed Sterling A. Hopkins in self-defense. He was one of the Vigilance Committee’s enforcers who was on his way to make an illegal arrest. News spread; the Vigilance Committee responded. Within an hour, four thousand armed men had mobilized and surrounded the Armory where Terry and his supporters had taken refuge. Eventually Terry negotiated his own surrender and was arrested by the Committee.

                Over the next two weeks Hopkins’ life hung in the balance. It seemed prudent to assume that he would die, and so Terry, knowing that the Vigilance Committee would respond in kind, believed his own death was impending, and so he wrote a farewell letter to his wife. He penned his last defiant stance, “I was taught to believe that it was the duty of every American to support the Constitution of this country; to regard it as a sacred instrument, not to be violated in the least provision, and if necessary, to die in its defense.”

                There were various efforts being made to negotiate the release of Judge Terry, including one attempt by Captain David Farragut who threatened to have the USS John Adams fire upon the city if Judge Terry were not to be released. It seems that the Vigilance Committee delegates were more afraid of the baying mob calling for Terry’s head than the threat of cannon fire, lest Hopkins die and Terry cheat the gallows. Hopkins, however, did not die. The Committee determined nonetheless that Terry was still guilty of assault with a deadly weapon, but their appetite to discharge any sort of sentence was dulled by the frigate’s presence, and so having been incarcerated for just over one month, Terry was released. He was conveyed to the John Adams, and then transferred to a steamer bound for Sacramento. There he stayed at the Orleans Hotel, where he and his compatriots cheered, made speeches, and celebrated that Terry was once again a free man, all thanks to Hopkins’ resilient constitution (as a sidenote: the USS John Adams was built in Charleston, SC in 1799; she served in the Quasi-War with France (1798-1800), First Barbary War (1801-1805), War of 1812, and from 1815-1845 she suppressed piracy in the West Indies, Mexican-American War; in the Civil War she served in the Union blockade of South Carolina’s ports, and participated in the Harriet Tudman-led raid on Combahee Ferry which freed 700 enslaved people [Tudman was a freedwoman, a famous “conductor” on the Underground Railroad, and the first woman to lead a major military operation in the United States]. John Adams was decommissioned in 1865, sold to the British in 1867, and subsequently was used as living quarters for the Hong Kong police, until she burned down and was lost in 1884).

                Judge Terry rose in prominence in the California judiciary, serving from October 1855 until September 12, 1859. He was noted for his impartiality, fearless nature, and direct manner, avoiding pomp and display. His decisions were short, pointed, and easy to understand, emphasizing the importance of both judicial and extra-judicial opinions. He participated in significant cases, including those involving Federal court jurisdiction and state power, aligning with strict constitutional constructionists (meaning he believed in interpreting the Constitution according to its intent, or original meaning). His contributions to the Supreme Court of the State were recognized for their enduring value and clarity.

                The Fugitive Slave Law of 1850 required free states such as the newly admitted California to return escaped slaves to their slavers. Article IV, Section 2, Clause 3 of the Constitution reads: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This clause was rendered obsolete in 1865 with the ratification of the 13th Amendment, which abolished involuntary servitude (except as a punishment for a crime). The Fugitive Slave Law caused a sharp division between pro-slavery and anti-slavery factions in California. Anti-slavery objections to the law were primarily moral in nature, viewing it obviously as a reprehensible institution, but there was also a legal argument, namely that the law challenged the individual sovereignty of free states. Why should a state contradict their own laws in favor of federal law?

                John C. Frémont was one prominent individual who opposed the spread of slavery West. He was an early explorer and cartographer of the region. This is when the region was under Mexican control. Frémont’s arrival coincided with increasing tensions between American settlers and Mexican authorities. The Mexican-American War of 1846 led to the Bear Flag Revolt, when a group of American rebels in the Sacramento Valley seized a Mexican garrison and raised their own flag, a crudely drawn bear and a star. Frémont supported these efforts, becoming a prominent figure in California’s efforts towards independence. He was ultimately promoted to the rank of lieutenant colonel, capturing towns and regions throughout California. When the war ended in 1848 Mexico ceded California and much of the western United States as we know it today.

                For the 1856 presidential election, Frémont was selected as the first presidential candidate for the new Republican Party, running against the pro-slavery Democrat, James Buchanan. The Republicans campaigned under the slogan, “Free Soil, Free Men, Frémont.” Frémont believed that free states should disregard the Fugitive Slave Law. He lost to James Buchanan who became America’s 15th president; a president who most historians agree was the worst in history. By 1856, the Know-Nothing party was in its final throes; despite this they did manage to carry the state of Maryland. Terry had, however, changed his allegiance to the Democrat party.

                The aforementioned David C. Broderick capitalized on the success of the Democrat party and became a senator of California in 1857. Broderick represented an anti-slavery faction within the party, which he brought the Democratic party in California at large into alignment with. Terry and Broderick, despite their great political difference, did have warm regard and mutual admiration for each other at first. This would quickly sour; the strength of the anti-Democratic party’s influence resulted (as far as Terry was concerned) in him not being re-elected to his supreme court position. As a result, Terry gave a speech (which was published in the paper) which decried the Democratic party and Broderick’s authoritarian approach as a senator, remarks which Broderick took great offense over. Broderick used offensive language to describe Terry, declaring him “a miserable wretch”; this was seen as very shocking to those who heard his remarks, on account of Terry being the chief justice of the Supreme court (his term in office had not yet come to an end). Word of his remarks quickly got back to Terry, setting the stage for the duel.

                Duels in California at this time were frowned upon and seen as barbarous. They were particularly disparaged by the political class, and yet it was they who deployed them most readily. This was quite literally the wild west; in a world of honor culture with an anemic judiciary, dueling was a last resort in upholding one’s own personal dignity, to find satisfaction.

                On one side we had Broderick. In New York when push came to shove, he relied upon his own physical strength above any weaponry prowess; guns and knives were deployed less often by northern gentlemen. Despite this, since his arrival in California in 1849 he had been honing his skills, and by the time of the duel he was considered a very capable gunslinger. Broderick was reguarded as a fearless leader, ready to surmount any obstacle as brave men should – or so went 19th century sentiment. There was also the perception that northerners were not made as robustly as their counterparts, on account of southern honor culture, rural lifestyle, and wars. This played into a belief that Broderick, a northerner, had more to prove, and needed to be particularly fearless.

                On the other hand, we have Terry, fiery and fierce, prone to his fits of rage. He was a highly skilled marksman and knifeman who had been fighting on the frontlines of wars since the age of 13. ‘Shoot first and ask questions later’ is a tired cliché, but for Terry it is apt; he acted in such a way that suggested he had nothing to lose, even though he obviously had everything to lose.

                Terry, upon hearing of Broderick’s remarks, saw it as an attack upon his character and integrity. This led Terry to write to Broderick in September 1859 to demand an apology and a retraction. Broderick responded refusing to retract his words. Terry sent a second letter again demanding an apology, and again Broderick responded with a no; it was apparent that a dual was to be arranged. Broderick now knew he could not back down even if he wanted to. To do so would appear cowardly. The duel was arranged, the time and place were chosen, and dueling pistols selected: Belgian .58 caliber pistols. Various mediation attempts were made to stop the duel, but Broderick believed his shooting ability would win him the duel.

                On the morning of, police intervened, and arrested both men. They were taken before a judge who determined no crime had been committed, and so they were both released. The duel was then re-arranged for the next day. They both successfully made it to the duel this time. Both men were calm and composed. The pistols were loaded and handed to Terry and Broderick. “Ready!” They took their ten paces and turned; Broderick fired off his shot first, it hit the ground just nine feet in front of him. Then Terry fired. Broderick fell back and onto the ground, and was attended to by a doctor who was on stand-by, who determined that the gunshot wound was not fatal. The duel was concluded and both men left the dueling field alive. Broderick was shot at 7am on Tuesday morning on September 13th 1859. Over the course of the week his conditioned deteriorated, and on the Friday morning the senator for California died.

            Broderick was seen as a hero, a martyr for the anti-slavery cause, an accolade which would be somewhat overshadowed by John Brown’s execution a few months later, and then of course by Abraham Lincoln’s martyrdom for the cause at the culmination of the Civil War.

                After the duel, Terry would be tied up in legal disputation until he was finally acquitted of Broderick’s murder in September 1860. His involvement in this duel is the most notable episode in Terry’s life, so I’m going to cut my article short here. I may do a part two if people are keen. After his acquittal he would return to Texas, where he fought for the Confederate Army during the Civil War which broke out in April 1861. He later returned to California, resuming his legal practice and participating in politics, notably contributing to the state's 1879 Constitution. In the 1880s, he became involved in a contentious legal battle involving his second wife, Sarah Althea Hill, which culminated in a violent altercation with U.S. Supreme Court Justice Stephen J. Field. Terry was ultimately shot and killed by Deputy U.S. Marshal David Neagle on August 14, 1889, while attempting to assault Justice Field.