convicted of a murder committed early in 1889. The judgment of conviction was affirmed by the unanimous decision of the Court of Appeals on the 21st day of March, 1890. He was sentenced to death under chapter 489 of the Laws of 1888, which substituted death by electricity as the penalty for murder in the place of hanging. His counsel claimed that that act was unconstitutional because it prescribed a "cruel and unusual" punishment for the crime of murder. He therefore applied to the county judge of Cayuga county at Auburn, in which county Kemmler was confined in State prison, for a writ of habeas corpus, which was granted. Upon the return of the writ his counsel offered to prove that the infliction of the penalty named in the sentence, namely, death by the application of electricity, was a cruel and unusual punishment within the meaning of the Constitution. A referee was appointed by the county judge and a mass of testimony was given upon this subject. The testimony was reported to the county judge by the referee, and after an argument before him, that judge dismissed the writ and remanded the relator to the custody of the warden of the prison. From this decision of the county judge an appeal was taken to the General Term in the Fifth Department, and the decision of the county judge was unanimously affirmed by the three justices of the General Term, Mr. Justice Dwight writing a very able and couclusive opinion. 27 N. Y. St. Rep. 966. An appeal from this decision was taken to the Court of Appeals, and on the 21st day of March, 1890, the decision of the General Term was unanimously affirmed by the seven judges of the Court of Appeals, Judge O'Brien writing the opinion. 30 N. Y. St. Rep. 203.

No application was made to the Supreme Court of the United States for a writ of error in order to review the judgment of the Court of Appeals by that tribunal.

Kemmler was thereupon sentenced to be executed by electricity during the week beginning April 28, 1890, and preparations were made for inflicting upon him the death penalty by the mode prescribed by the law of 1888.

But on the 29th day of April, 1890, Judge Wallace, of the Circuit Court of the United States, granted a writ of habeas corpus addressed to the warden and agent of Auburn prison requiring him to have the body of Kemmler before the Circuit Court of the United States to be held at Canandaigua on the third Tuesday of June next. In consequence of the issuing of this writ, the execution of Kemmler under the final judgment of the Court of Oyer and Terminer, which had been affirmed by the highest court of the State, is postponed by a Circuit judge of the United States for a period of at least about two months.

It is believed that such an interference as this, by a Federal judge with the 'execution of the final judg ment of a State court in a capital case has never before occurred.

The pretext for this interference is that the judgment of the State court is in violation of the Constitution of the United States, because it prescribes a cruel and unusual punishment for the crime of murder of which Kemmler has been adjudged guilty. Two questions naturally present themselves among others with reference to this proceeding: (1) Had the United States Circuit Court judge jurisdiction to grant the writ in this case? (2) If so, was there any reason for granting it, or ought it, in his discretion to have been refused?

As to the first question, the jurisdiction of the court is supposed to depend upon the provisions of chapter 13 of title 13 of the Revised Statutes of the United States which give to the Supreme, Circuit and District Courts of the United States, and the several justices and judges thereof, power to issue writs of habeas corpus for the purpose of an inquiry into the cause of

restraint of liberty, but also provide that it shall in no case extend to a prisoner in jail, unless (among other things) he is in custody in violation of the Constitution or a law or a treaty of the United States. Under these provisions of the Revised Statutes it has been held by the Supreme Court of the United States that the Circuit Courts of the United States have jurisdiction on habeas corpus to discharge from custody a person who is restrained of his liberty in violation of the Constitution of the United States, but who is held under State process for trial on an indictment charging him with an offense against the laws of the State, and that such power may be exercised even after conviction in a State court. But the court in the same case holds that the Circuit Court of the United States has a discretion to refuse the writ. The statute requires the court or a judge to award the writ "unless it appears from the petition itself that the party is not entitled thereto." U. S. R. S., § 755.

See Ex parte Royall, 117 U. S. 241, in which the order of the Circuit Court dismissing the petition for a habeas corpus was affirmed upon the ground that "it does not appear that the Circuit Court might not in its discretion and consistently with law and justice have denied the applications for the writ at the time they were made." Page 254.

And in a late case it has been said by the Supreme Court that it is not required to exercise the power conferred upon it by sections 751 to 753 of the Revised Statutes to inquire upon writ of habeas corpus into the cause of the restraint of the liberty of any person who is in custody in violation of the Constitution of the United States, if it appears upon the petitioner's own showing, that if brought into court and the cause of his commitment inquired into, he would be remanded to prison. Ex parte Terry, 128 U. S. 289.

And the same doctrine substantially was held in the Case of Spies, the Chicago anarchist.

It appears therefore that the Circuit Court of the United States had jurisdiction to issue the writ so far as it was alleged that Kemmler was restrained of his liberty in violation of the Constitution of the United States. The writ however as allowed in this case, accomplished more than any writ heretofore issued. It, in effect, was a reprieve of a prisoner upon whom the final judgment of a State court has inflicted the death penalty, by a judge of another and a totally different jurisdiction. This resulted from the fact that instead of being returnable forthwith, it commanded the warden to produce Kemmler two months after the warrant issued under the judgment of the State court required him to be executed. If this precedent is sustained, any Circuit or District judge of the United States in any State in the Union, can upon the eve of the execution of a murderer give him a new lease of life by issuing a writ of habeas corpus returnable at a future date. Possibly the Revised Statutes above quoted give to a Federal judge this extraordinary power, as an incident to his power to inquire into a restraint of liberty alleged to be in violation of the Constitution or a law of the United States. But if such power exists, it evidently ought to be exercised only in cases where it is clear that it is necessary to prevent a plain violation of the Constitutition or laws of the United States.

Second, this brings us to the question whether, assuming the power to issue the writ, it ought to have been issued. If upon the petition itself it is apparent that there was no violation of the United States Constitution to be apprehended in the execution of the judgment of the State court, then certainly the writ should not have been issued.

Now what are the grounds upon which the writ is prayed for? Kemmler's petition alleges that the statute of 1888 is in conflict with the Constitution of the United States: (1) in that the punishment imposed

thereby is cruel and unusual; (2) in that thereby the said State abridges the privileges and immunities of him, the said Kemmler, to be exempt from cruel and unusual punishment for crime; (3) the petition also states that the statute is in conflict with the Constitution of the United States because the punishment imposed upon Kemmler deprives him of his life without due process of law in that "the judicial function of fixing the time of his death is thereby taken from the court and delegated to an executive officer, or some uncertain substitute upon some undefined and unaccountable cause."

The last criticism upon the law arises from the fact that the warrant indicates only the week within which the death penalty is to be inflicted, leaving the exact time within the week to the officer to whom the warrant is directed; but by the former law, it was only the day that was fixed by the judge; the sheriff, under that law, might fix any hour in the day he chose. It seems idle to say that the extension of the discretion of the officer so as to include a week instead of a day, is a violation of the Constitution of the United States. The penalty is fixed by the judgment of the court; the time of inflicting it, within a week, is fixed by the judgment of the court. The only discretion of the officer is precisely of the nature of the discretion always given him before, namely, to fix the exact time within the longer period fixed by the judgment when the execution is to occur.

The only provision of the United States Constitution relating to cruel and unusual punishments is the eighth amendment, which is as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

But it has been repeatedly decided by the Supreme Court of the United States that the provisions of this article apply to National and not to State legislation, and that by it, while Congress is prohibited from enacting any cruel and unusual punishments, there is no such prohibition as to State Legislatures. Pervear v. Commonwealth, 5 Wall. 475; Spies v. Illinois, 123 U. S. 131, 166.

The opinion in the case first above cited was by Chief Justice Chase; that in the Spies Case by Chief Justice Waite, who uses the following language, citing a great number of authorities thereto :

"That the first ten articles of amendment were not intended to limit the powers of the State governments in respect to their own people, but to operate on the National government alone, was decided more than half a century ago, and that decision has been steadily adhered to since."

It is evident therefore that there is nothing in the eighth amendment which justified this interference by a Federal judge with the judgment of the State court and the assumption by him of the prerogative of the State executive of granting a reprieve.

The provision in the United States Constitution providing that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States is to be found in the fourteenth amendment, which was adopted in 1888.

But of what privilege or immunity is Kemmler deprived by the judgment against him? The petition says it is the privilege to be exempt from cruel and unusual punishment for crime; but that is not the privilege and immunity of which the fourteenth amendment speaks. Kemmler has been adjudged guilty of murder, and by the judgment of the State court having jurisdiction, the death penalty has been imposed upon him. Is there any pretense that in this respect, the treatment of Kemmler has been any different from that which would be imposed by the law of the State of New York upon any other convicted

murderer? The object of the fourteenth amendment was to prevent any one citizen of the United States being deprived of any privilege or immunity which the law confers upon other citizens under the same circumstances. It is aimed against unfair discrimina. tion. There is no pretense that the judgment against Kemmler was not obtained by "due process of law." There is no pretense that he has not had "the equal protection of the laws." Indeed the reference to the fourteenth amendment adds nothing to the prior reference to the eighth amendment. The fourteenth amendment does not provide that the first ten amendments of the Constitution should apply to State Leg islatures as well as to Congress. It seems therefore that the granting of this writ by Judge Wallace was unnecessary, and that even if he had power by such action to postpone and possibly defeat the execution of the judgment of the State court, there was no ground presented to him for such action, which in any way justifies it. The petition itself showed that it would be his plain duty to remand the prisoner if brought before him upon the writ.

Again, the judgment of the Court of Appeals affirm ing the decision of the Supreme Court and of the county judge was reviewable by the Supreme Court of the United States, if such judgment sustained a conviction which violated the Constitution of the United States. It is true that the question discussed by the Court of Appeals was whether the law of 1888 violated the provision in the State Constitution against cruel and unusual punishments; but the judgment of the Court of Appeals necessarily involved an adjudication that the State statute was not a violation of the United States Constitution, because if it had been such a violation, it was the duty of the Court of Appeals to have reversed the decision appealed from. In other words, a decision sustaining the law was in effect a decision that it was not a violation of the United States Constitution, which is the supreme law of the land; and even though that question may not have been discussed in that court, still the decision could have been carried up by writ of error to the Supreme Court of the United States, and reviewed there. This was expressly held by the Supreme Court in the case of the Chicago Life Ins. Co. v. Needles, 113 U. S. 574, and in subsequent cases. We have therefore this case: The prisoner's counsel neglected to apply for the writ of error by which the Supreme Court of the United States could have reviewed the decision of the Court of Appeals. They wait until the very week which by law is fixed for the execution of Kemmler, and then apply to a United States Circuit judge who, by an unprecedented exercise of power, grants a writ by which the solemn judgment of the State court inflicting death upon a convicted murderer is practically nullified.

It seems to the writer very unfortunate that a judge of the standing and eminence, and conceded ability and integrity of Judge Wallace, should have been led into the error of exercising in such a manner a power, the existence of which, so far as it interferes with the infliction of the death penalty under a State law is questionable, by an act which, in the exercise of a wise discretion, he should have abstained from performing.

The decision of the Court of Appeals was rendered on the 21st day of March. The counsel for Kemmler who (by whomsoever employed) had shown great zeal and spared no expense in endeavoring to defeat the judgment of the court, had had over a month within which he might have applied to the Supreme Court of the United States, in session at Washington, for a writ of error. In the case of the Chicago anarchists this was done. The counsel for the criminals applied to a justice of the United States Supreme Court for a writ of error. Mr. Justice Harlan, to whom the application

was made, directed the counsel to present the matter to the court in open session. This was done. An argument was had in open court before the whole bench upon the application for a writ of error. This was denied upon the ground that the record showed that no Federal question was presented upon which the ruling of the State court was not so plainly right, as not to require argument. Counsel for the anarchists in that case, like the counsel for Kemmler in this, relied upon the fourteenth amendment as limiting State power in the same manner and to the same extent as the first ten amendments had limited Federal power; but this claim was not sustained by the court. See Spies v. Illinois, 123 U. S. 131.

But we are now speaking of the discretion of the judge. The counsel for the convicted murderer in this case had suffered over a month to elapse within which he might have made an application to the Supreme Court for a writ of error. If he had done so with reasonable diligence, no one can doubt that the question would have been decided by that high tribunal, one way or the other, long before the time fixed for the execution of Kemmler. Probably but few will doubt that the decision of the United States Supreme Court would have been the same as in the Spies Case, and that the writ would have been refused. But this is immaterial. The point is that the murderer's counsel refrained to act until after the commencement of the week within which the execution was commanded by the judgment of the State court, and then induced a United States Circuit judge to graut a writ of habeas corpus, not returnable immediately, but by means of which the execution of the murderer was necessarily postponed for two months. It would seem that in a case where the constitutional point involved had been decided adversely to the murderer, first, by a county judge, second, by three New York Supreme Court justices, and third, by seven New York Court of Appeals judges, it would not have occurred to a single United States Circuit judge that it was his duty to overrule or to assume the power to overrule the unanimous opinion of these eleven State judges, when it had been and was in the power of the prisoner's counsel to make application to the highest tribunal in the land and to invoke its opinion as to the correctness of the views of the eleven State judges. If the judge had felt that regard for human life (although the life of a convicted murderer) required him to issue the writ, why should it not have been made returnable forthwith, or at an early day? Other judicial engagements, however importaut, might have been disregarded in order to make the proceeding less subversive of the administration of justice by the State courts.

But what is the effect of all this? Can Kemmler, notwithstanding this action of Judge Wallace, in case he is remanded to the custody of the warden of the State prison, be afterward executed and the judgment of the State court be carried out? There seems to be no

in the administration of criminal law, and to create an unnecessary conflict between the courts of the State and the nation. Such proceedings as have been had in this case, based upon the most frivolous objections to the constitutionality of a law, do much to bring contempt upon the administration of justice and thereby to encourage crime. Perhaps however the final decision of Kemmler's case may be such as hereafter to prevent the possibility of a similar "cruel and unusual" prolongation of a convict's misery and such causeless delay of justice. It is immaterial whether these proceedings have been instituted in the interest of Kemmler or of some corporation. They are not in the interest of justice, nor do they give evidence of any bona fide purpose of protecting constitutional rights. Had such purpose prompted these efforts, the application would have been made as in the Spies Case, to the United States Supreme Court, and have been made promptly after the Court of Appeals decision. The course of the judge amounts to the assumption by him of the power of reprieve, which belongs ouly to the State executive, and of the power never heretofore claimed by any Federal judge, except upon writ of error, to interfere with and postpone the execution of the judgment of a State court in a capital case. It is a course which, however eminent the judge may be who adopts it, cannot too severely be condemned by all citizens who believe that the courts of the State and of the United States ought not to interfere with each other's judgments or jurisdiction except in cases where the power is unquestionable and the necessity plain. ALBANY, May 2, 1890.

H.

CONSTITUTIONAL LAW-POWER OF FEDERAL GOVERNMENT TO PROTECT ITS JUDGES-JURISDICTION.

UNITED STATES SUPREME COURT, APRIL 14, 1890.

CUNNINGHAM V. NEAGLE.

Where reasonable ground existed for apprehension of deadly violence on the part of T. toward an associate justice of the United States on his way to hold a circuit in a State, and the attorney-general of the United States in consequence instructed the United States marshal of that district to take proper measures to protect his person, and the marshal deputed N. a special deputy to attend and guard him on his journey, and T. made a violent attack on the justice's person, at a railway station in that State, in the course of his journey to hold such court, and N., after warning T. to desist and notifying him that he was an officer, and T. not desisting, but being apparently about to repeat his attack or draw a weapon, N. shot and killed him, held, that the Federal Circuit Court had jurisdiction and authority to discharge N. on habeas corpus from detention by the State authorities.

Criminal Procedure as amended in 1888. Ample provision is there made whenever for any reason other than the insanity or pregnancy of a defendant sentenced to the punishment of death, he has not been executed pursuant to the sentence at the time specified thereby, and the sentence or judgment inflicting the punishment stands in full force, for the resentencing and execution of the convict.

It matters little whether this wretched murderer shall live or die; but it is of importance that the laws of the State should be executed, and it is unfortunate that where a murderer has been convicted and the penalty imposed by law has been adjudged against him, the ingenuity of counsel upon pretexts so flimsy and unfounded, should be able to prevail upon a Federal judge to interfere with the due course of justice and to introduce a new element of uncertainty

for the Northern District of California.

MILLER, J. This is an appeal by Cunningham, sheriff of the county of San Joaquin, in the State of California, from a judgment of the Circuit Court of the United States for the Northern District of California, discharging David Neagle from the custody of said sheriff, who held him a prisoner on a charge of murder.

On the 16th day of August, 1889, there was presented to Judge Sawyer, the Circuit judge of the United States for the Ninth Circuit, embracing the Northern District of California, a petition signed David Neagle, deputy United States marshal, by A. L. Farish on his behalf. This petition represented that the said Farish was a deputy marshal duly appointed for the Northern District of California by J. C. Franks, who was the marshal of that district. It further alleged that

David Neagle was, at the time of the occurrences recited in the petition and at the time of filing it, a duly appointed and acting deputy United States marshal for the same district. It then proceeded to state that said Neagle was imprisoned, confined and restrained of his liberty in the county jail in San Joaquin county, in the State of California, by Thomas Cunningham, sheriff of said county, upon a charge of murder, under a warrant of arrest, a copy of which was annexed to the petition. The warrant was as follows:

"IN THE JUSTICE'S COURT OF STOCKTON TOWNSHIP. "STATE OF CALIFORNIA,

County of San Joaquin,}

88.:

"The People of the State of California to any sheriff, constable, marshal or policeman of said State or of the county of San Joaquin :

"Information on oath having been this day laid before me by Sarah A. Terry that the crime of murder, a felony, has been committed within said county of San Joaquin on the 14th day of August, A. D. 1889, in this, that one David S. Terry, a human being then and there being, was willfully, unlawfully, feloniously, and with malice aforethought shot, killed and murdered, and accusing Stephen J. Field and David Neagle thereof: You are therefore commanded forthwith to arrest the above-named Stephen J. Field and David Neagle and bring them before me, at my office, in the city of Stockton, or, in case of my absence or inability to act, before the nearest and most accessible magistrate in the county.

"Dated at Stockton this 14th day of August, A. D. 1889.

"H. V. J. SWAIN,

"Justice of the Peace.

Justice of the Peace." The petition then recites the circumstances of a recontre between said Neagle and David S. Terry, in which the latter was instantly killed by two shots from a revolver in the hands of the former. The circumstances of this encounter and of what led to it will be considered with more particularity hereafter. The main allegation of this petition is that Neagle, as United States deputy marshal, acting under the orders of Marshal Frauks, and in pursuance of instructions from the attorney-general of the United States, had, in consequence of an anticipated attempt at violence on the part of Terry against the Honorable Stephen J. Field, a justice of the Supreme Court of the United States been in attendance upon said justice, and was sitting by his side at a breakfast table when a murderous assault was made by Terry on Judge Field, and in defense of the life of the judge the homicide was committed for which Neagle was held by Cunningham. The allegation is very distinct that Justice Field was engaged in the discharge of his duties as Circuit justice of the United States for that Circuit, having held court at Los Angeles, one of the places at which the court is by law held, and, having left that court, was on his way to San Francisco for the purpose of holding the Circuit Court at that place. The allegation is also very full that Neagle was directed by Marshal Franks to accompany him for the purpose of protecting him, and that these orders of Franks were given in anticipation of the assault which actually occurred. It is also stated, in more general terms, that Marshal Neagle, in killing Terry under the circumstances, was in the discharge of his duty as an officer of the United States, and was not therefore guilty of a murder, and that his imprisonment under the warrant held by Sheriff Cun

ningham is in violation of the laws and Constitution of the United States, and that he is in custody for an act done in pursuance of the laws of the United States. This petition being sworn to by Farish and presented to Judge Sawyer, he made the following order:

"Let a writ of habeas corpus issue in pursuance of the prayer of the within petition, returnable before the United States Circuit Court for the Northeru District of California. "SAWYER, Circuit Judge.”

The writ was accordingly issued and delivered to Cunningham, who made the following return: "COUNTY OF SAN JOAQUIN, State of California: "SHERIFF'S OFFICE.

"To the honorable Circuit Court of the United States for the Northern District of California:

"I hereby certify and return that before the coming to me of the annexed writ of habeas corpus the said David Neagle was committed to my custody, and is detained by me by virtue of a warrant issued out of the Justice's Court of Stockton township, State of California, county of San Joaquin, and by the indorsement made upon said warrant. Copy of said warrant and endorsement is annexed hereto and made a part of this return. Nevertheless, I have the body of the said David Neagle before the honorable court, as I am in the said writ commanded. "August 17, 1889.

"THOS. CUNNINGHAM, Sheriff San Joaquin County, California." Various pleadings and amended pleadings were made which do not tend much to the elucidation of the matter before us. Cunningham filed a demurrer to the petition for the writ of habeas corpus and Neagle filed a traverse to the return of the sheriff, which was accompanied by exhibits, the substance of which will be hereafter considered when the case comes to be examined upon its facts.

The hearing in the Circuit Court was had before Circuit Judge Sawyer and District Judge Sabin. The sheriff, Cunningham, was represented by G. A. Johnson, attorney-general of the State of Californin, and other counsel. A large body of testimony, documen tary and otherwise, was submitted to the court, on which, after a full consideration of the subject, the court made the following order:

"IN THE MATTER OF DAVID NEAGLE, ON HABEAS CORPUS.

"In the above-entitled matter, the court having heard the testimony introduced on behalf of the peti tioner, none having been offered for the respondent, and also the arguments of the counsel for petitioner and respondent, and it appearing to the court that the allegations of the petitioner in his amended answer or traverse to the return of the sheriff of San Joaquiu county, respondent herein, are true, and that the prisoner is in custody for an act done in pursuance of a law of the United States, and in custody in violation of the Constitution and laws of the United States, it is therefore ordered that petitioner be, and he is hereby, discharged from custody."

From that order an appeal was allowed which brings the case to this court, accompanied by a voluminous record of all the matters which were before the court on the hearing.

If it be true, as stated in this order of the court dis charging the prisoner, that he was held in custody for an act done in pursuance of a law of the United States, and in custody in violation of the Constitution and laws of the United States," there does not seem to be any doubt that, under the statute on that subject, he was properly discharged by the Circuit Court.

Section 753 of the Revised Statutes reads as follows: "The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreigu State, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission, or order, or sanction of any foreign State, or under color thereof, the validity aud effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify."

And section 761 declares that when by the writ of habeas corpus the petitioner is brought up for a hearing the "court or justice or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require." This of course means that if he is held in custody in violation of the Constitution or a law of the United States, or for an act done or omitted in pursuance of a law of the United States, he must be discharged.

By the law as it existed at the time of the enactment of the Revised Statutes, an appeal could be taken to the Circuit Court from any court of justice or judge inferior to the Circuit Court in a certain class of habeas corpus cases. But there was no appeal to the Supreme Court in any case except where the prisoner was the subject or citizen of a foreign State, and was committed or confined under the authority or law of the United States or of any State, on account of any act done or omitted to be done under the commission or authority of a foreign State, the validity of which depended upon the law of nations. But afterward by the act of Congress of March 3, 1885, 23 Stat. 437, this was extended by amendment as follows:

"That section seven hundred and sixty-four of the Revised Statutes be amended so that the same shall read as follows: From the final decision of such Circuit Court an appeal may be taken to the Supreme Court in the cases described in the preceding section.'"

The preceding section here referred to is section 763, and is the one on which the prisoner relies for his discharge from custody in this case.

It will be observed that in both the provisions of the Revised Statutes and of this latter act of Congress the mode of review, whether by the Circuit Court of the judgment of an inferior court or justice or judge, or by this court of the judgment of a Circuit Court, the word "appeal," and not writ of error, is used, and as Congress has always used these words with a clear understanding of what is meant by them, namely, that by a writ of error only questions of law are brought up for review, as in actions at common law, while by an appeal, except when specially provided otherwise, the entire case on both law and facts is to be reconsidered, there seems to be little doubt that, so far as it is essential to a proper decision of this case, the appeal requires us to examine into the evidence brought to sustain or defeat the right of the petitioner to his discharge.

The history of the incidents which led to the tragic event of the killing of Terry by the prisoner Neagle had its origin in a suit brought by William Sharon of Nevada in the Circuit Court of the United States for the District of California against Sarah Althea Hill, alleged to be a citizen of California, for the purpose of obtaining a decree adjudging a certain instrument in

writing, possessed and exhibited by her, purporting to be a declaration of marriage between them, uuder the Code of California, to be a forgery, and to have it set aside and annulled. This suit, which was commenced October 3, 1883, was finally heard before Judge Sawyer, the Circuit judge for that Circuit, and Judge Deady, United States district judge for Oregon, who had been duly appointed to assist in holding the Circuit Court for the District of California. The hearing was on September 29, 1885, and on the 15th of January, 1886, a decree was rendered granting the prayer of the bill. In that decree it was declared that the instrument purporting to be a declaration of marriage, set out and described in the bill of complaint, "was not signed or executed at any time by William Sharon, the complainant; that it is not genuine; that it is false, counterfeited, fabricated, forged and fraudulent, and, as such, is utterly null and void. And it is further ordered and decreed that the respondent, Sarah Althea Hill, deliver up and deposit with the clerk of the court said instrument, to be indorsed cancelled,' and that the clerk write across it cancelled' and sign his name and affix his seal thereto."

The rendition of this decree was accompanied by two opinions, the principal one being written by Judge Deady and a concurring one by Judge Sawyer. They were very full in their statement of the fraud and forgery practiced by Miss Hill, and stated that it was also accompanied by perjury. And inasmuch as Mr. Sharon had died between the hearing of the argument of the case on the 29th of September, 1885, and the time of rendering this decision, January 15, 1886, an order was made setting forth that fact, and declaring that the decree was entered as of the date of the bearing, nunc pro tunc.

Nothing was done under this decree. The defendant, Sarah Althea Hill, did not deliver up the instrument to the clerk to be cancelled, but she continued to insist upon its use in the State court. Under these circumstances Frederick W. Sharon, as the executor of the will of his father, William Sharon, filed in the Circuit Court for the Northern District of California, on March 12, 1888, a bill of revivor, stating the circumstances of the decree, the death of his father, and that the decree had not been performed; alleging also the intermarriage of Miss Hill with David S. Terry, of the city of Stockton in California, and making the said Terry and wife parties to this bill of revivor. The defendants both demurred and answered, resisting the prayer of the plaintiff, and denying that the petitioner was entitled to any relief.

This case was argued in the Circuit Court before Field, Circuit justice, Sawyer, Circuit judge, and Sabin, district judge. While the matter was held under advisement, Judge Sawyer, on returning from Los Angeles, in the Southern District of California, where he had been holding court, found himself on the train as it left Fresno, which is understood to have been the residence of Terry and wife, in a car in which he noticed that Mr. and Mrs. Terry were in a section behind him, on the same side. On this trip from Fresno to San Francisco Mrs. Terry grossly insulted Judge Sawyer, and had her husband change seats so as to sit directly in front of the Judge, while she passed him with insolent remarks, and pulled his hair with a vicious jerk, and then, in an excited manner, taking her seat by her husband's side, said: "I will give him a taste of what he will get by and by. Let him render this decision if he dares "-the decision being the one already mentioned, then under advisement. Terry then made some remark about too many witnesses being in the car, adding that "the best thing to do with him would be to take him out into the bay and drown him." These incidents were witnessed by two gentlemen who knew all the parties, and whose testimony is found in the record before us.