Crimescribe

The duel between US Senator David Broderick and David Terry, former Chief Justice of the California Supreme Court is a rollicking tale of friendship-turned-feud; politics, pistols, slavery and slander. Their duel on 13 September 1859 would have made a terrific historical novel or movie and still might.

Duels over political disagreements, personal enmity and often a combination of both were nothing unusual in the United States. On 11 July 1804 Vice-President Aaron Burr met former Treasury Secretary Alexander Hamilton in a pistol duel outside Weehawken, New Jersey. The culmination of long-standing political and personal animosity, it cost Hamilton his life.

Hamilton, who hadn’t wanted to fight in the first place and was opposed to dueling generally, died the next day having been shot through the spine. By a bitter irony Hamilton’s son had died in a duel two years before.  Burr, knowing this, had chosen to fight his own duel in the same spot. Having killed Hamilton, Burr fled abroad to avoid prosecution and didn’t return for some time. The duel proved to be a Pyrrhic victory forever blighting Burr’s career and legacy.

Two years later on 30 May 1806 future President Andrew Jackson met lawyer and expert duelist Charles Dickinson near Adairville, Kentucky over several mutual insults. The duel was fought in Adairville, just over the state line, because dueling was outlawed in Tennessee.

A gambler might have put their money on veteran duelist Dickinson and lost. Although both men were shot in the chest and seriously wounded it was Dickinson who died. Jackson recovered, going on to serve as the seventh President of the United States from March 1829 to March 1837.

The site of Broderick and Terry’s final confrontation is now listed among California’s historical landmarks. Near today’s Lake Merced Association clubhouse lies a marker stone. Not far from the stone are two obelisks marking where Broderick and Terry fought their final battle on that warm September day in 1859. Their pistols, sold at auction in San Francisco on 25 November 1998, netted $34,500.

The Civil War began on 12 April 1861 when Confederate artillery fired on South Carolina’s Fort Sumter It lasted until the final skirmish at Palmito Ranch, Texas on 12-13 April 1865. By then some 600,000 Americans had died, the Confederacy destroyed and the nation itself changed forever.

The decade preceding Fort Sumter had seen Americans themselves divided along increasingly bitter and entrenched lines. With increased division came increased bloodshed, particularly in Kansas and Missouri even before the war had started. The splits were political, economic and all too often personal. The Broderick-Terry duel was a microcosm of the greater divide that would later lead to Americans killing each other on a scale unseen and unimagined before or since. Like its predecessor of 1776 the new United States would be birthed in blood.

Broderick and Terry had once been the firmest of friends. The issue of slavery destroyed that friendship leaving only bitterness and hate. Both active within the Democratic Party, their divide was at first a simple one. Terry was pro-slavery and Broderick wasn’t. Their political and social conflict became progressively more personal until they finally resolved it with a bullet.

California had only become a state in 1850, entering the Union as a ‘free state.’ The Gold Rush had brought both foreigners and American-born ‘49’ers’ looking to make their fortunes and the American-born contingent were sharply divided on the issue. The ‘free soil’ faction (mostly Northerners) opposed slavery and campaigned against it. The ‘Chivs’ were transplanted Southerners, many fervently believing slave states should be able to secede from the Union to preserve slavery and the Southern way of life.

Just to inflame matters further the ‘free soil’ faction included freed African-Americans prospecting on their own account and enslaved ones forced to prospect on behalf of their owners. With California entering the Union as a free state the Chivs saw it as an imposition. The ‘free soilers’ saw California’s stance on slavery as vague, unclear and not going far enough.

They might technically be free in California, but African-Americans and Native Americans weren’t allowed to testify against whites in courts of law and were still regarded as second-class citizens. The original state constitution’s vagueness also allowed conflicting interpretations of what the rules actually were. It was a classic compromise. Intended to satisfy everybody, the reality pleased nobody. It did little but increase the divisions and tension it was intended to soothe.

By 1859 the issue of slavery gripped California as much as anywhere else. Pro and anti-slavery factions divided the state’s political landscape and not always along party lines. Despite their friendship and both being Democrats, Broderick and Terry could never heal their own split on the issue. It would be the catalyst for a feud that destroyed their friendship and a duel costing Broderick his life.

As the 1850’s wore on the divide only deepened. It also became steadily more rancorous and in 1857 the Broderick-Terry feud reached new heights. As Chief Justice of the California Supreme Court the pro-slavery Terry enjoyed huge influence in the state’s legal system. Elected as a US Senator in 1856, abolitionist Broderick’s influence was equally potent.

Both were high-profile public figures. They were also bitterly divided over slavery and their feud became not only deeply personal, but highly public. Both were perfectly prepared to insult and denigrate each other in a time when calmness and moderation might have been more sensible

Terry was known for his hot temper, violent actions and willingness to harbor grudges. Elected as a Justice of California’s Supreme Court in November 1855 he held the post until September 1859. In 1856 Terry had been dispatched to San Francisco when the State of California declared the city to be in a state of insurrection.

Given Terry’s temper he was an odd choice as a negotiator. When captured by armed insurrectionists Terry promptly stabbed one of them. He was never charged for knifing Sterling Hopkins, a member of San Francisco’s Committee of Vigilance.

That didn’t see him removed from the Supreme Court. Regarded as  having acted in self-defense, Terry wasn’t even charged. In 1857 he’d moved higher up the bench, becoming Chief Justice. He was far from happy when the Democrats shifted their nomination on 25 June 1859, opting to back Warner Cope as candidate for Chief Justice over the incumbent Terry.

Always quick to anger, Terry blamed Broderick. It was Broderick’s agitating against the Democrats’ pro-slavery faction that caused the party to refuse him the re-nomination,. Broderick’s voting against the adoption of the Lecompton Constitution in Kansas (a pro-slavery constitution that would have made Kansas effectively a slave state) also enraged the ardently pro-slavery Terry.

Broderick in turn saw Terry as an ingrate, a man Broderick had supported even when few others would. Just as Terry blamed Broderick for not being re-nominated as Chief Justice, Broderick saw Terry as committing a personal betrayal. Neither was prepared to moderate their political dispute or their increasing personal loathing for the other. Both were prepared to inflame things still further, knowing the possible consequences.

At a Democrat convention in Sacramento in June 1859 Terry (skilled at fiery rhetoric but not always prudently using it) made an inflammatory speech. In it he directly accused Broderick of engineering his loss. According to Terry, convention delegates opposing the Lecompton Constitution were doing so on Broderick’s orders. They were:

“The personal followers of one man, the personal chattels of a single individual whom they are ashamed of. They belong heart and soul, body and breeches, to Senator David S. Broderick. They are yet ashamed to acknowledge their masters, and are calling themselves, forsooth, Douglas Democrats… Perhaps they do sail under the flag of Douglas, but it is the banner of the black Douglas whose name is Frederick not Stephen.”

Terry’s use of the word ‘master’ was at best inflammatory, implying that the ardently anti-slavery Broderick didn’t mind cracking his own whip when it suited him. There was also a tacit suggestion that Broderick’s position might instill not fairness, but black supremacy. By suggesting that Broderick and his supporters were secret supporters of African-American abolitionist Frederick Douglas instead of white Senator Stephen Douglas (chief opponent of the Lecompton Constitution) he was also questioning Broderick’s integrity and honesty. It didn’t help that Terry, who was there to secure re-nomination to the post of Chief Justice, was still passed over.   

It was far from the first insult Terry had thrown Broderick’s way. Broderick promptly responded in kind, again calling Terry an ingrate and questioning Terry’s own honesty and integrity. At the Intercontinental Hotel on 26 April Broderick raged in front of a group of bystanders over Terry’s speech. According to D. W. Perley, a friend of Terry’s who was present at the time, Broderick fumed:

“The damned miserable wretch, after being kicked out of the convention, went down there and made a speech abusing me. I have defended him at times when all others deserted him. I paid and supported three newspapers to defend him during the Vigilance Committee days and this is all the gratitude I get from the damned miserable wretch for the favors I have conferred on him.”

Still enraged, Broderick went even further according to Perley:

“I have hitherto spoken of him as an honest man – as the only honest man on the bench of a miserably corrupt court – but now I find I was mistaken. I take it all back. He’s just as bad as the others.”

When Perley related Broderick’s remarks to Terry himself, Terry was outraged. The hot-tempered former Chief Justice found this latest insult intolerable. He simply couldn’t tolerate taking insults despite being prepared to offer them.

Unable to swallow Broderick’s latest insult, Terry decided only one solution remained. If he was to preserve his name as a gentleman he would have to challenge Broderick to fight a duel. If Broderick wanted to preserve his own name and reputation he would have to accept.

Terry was hot-tempered and known to harbor grudges. He was also a Southern gentleman and familiar with dueling. Descended from the medieval custom of trial by combat in which a defendant’s guilt or innocence was decided by fighting their accuser, dueling still occurred in Europe.

Its customs and rules had been brought from Europe by colonists and dueling itself was an established custom even before the United States existed as an independent nation. Though less common in the North and East, dueling wasn’t confined to the South by any means. The duel between Aaron Burr and Alexander Hamilton, for instance, was fought in New Jersey. By 1859 it was Southern gentlemen who dueled and died most often.

Born in Russelville, Kentucky in 1823, Terry was a transplanted Southerner. Like many Southerners he brought Southern customs with him, dueling and a commitment to slavery being two of them. To many Southern gentlemen being insulted or having their morals questioned was cause to issue a challenge. It was expected that no self-respecting gentleman would refuse to duel no matter what the circumstances. Terry made the challenge believing that Broderick, as a gentleman and public figure, had no choice but to fight him.

Dueling had its own strict rules and traditions governing how duels should be arranged and fought, beginning with how a challenge should be issued. Imported from Europe where there were a multitude of rulebooks such as the ‘Codo Duello,’ these rules were strictly enforced. They dictated that a challenge should be verbal or preferably in writing. Terry sent Broderick a letter dated 8 September 1859. Referring to Broderick’s remarks as related by Mr. Perley, Terry insisted Broderick’s remarks were sufficiently offensive to warrant a duel and demanded Broderick retract them:

‘Oakland, September 8, 1859.

Hon. D. C. Broderick—Sir: Some two months since, at the public table of the International Hotel, in San Francisco, you saw fit to indulge in certain remarks concerning me, which were offensive in their nature. Before I had heard of the circumstance, your note of 20th of June, addressed to Mr. D. W. Perley, in which you declared that you would not respond to any call of a personal character during the political canvass just concluded, had been published.

I have, therefore, not been permitted to take any notice of those remarks until the expiration of the limit fixed by yourself. I now take the earliest opportunity to require of you a retraction of those remarks. This note will be handed to you by my friend, Calhoun Benham, Esq., who is acquainted with its contents, and will receive your reply. D. S. Terry.’

Broderick in turn refused, disingenuously demanding clarification of exactly what Terry had found so offensive. He doubtless knew perfectly well what had enraged Terry, the two men having known each other and been friends for so long. With that in mind Broderick may have been stalling, hoping the notoriously hot-headed Terry would calm down. This was highly unlikely, retracting a challenge being almost as frowned upon as refusing one.

Terry did nothing of the kind. He refused to let the insults drop and didn’t retract his challenge, either. Knowing a duel was now virtually inevitable Broderick suggested that it was for Terry to decide whether the remarks were sufficiently offensive to warrant a duel. When Terry insisted they were there was no going back. The Broderick-Terry duel was on.

The feud between the two had been public knowledge for some time and neither had made any secret of it. Their duel was no more discreet. It was so public a matter that the San Francisco Morning Call reported on it days beforehand:

“It is generally understood that Judge Terry is a first-rate shot, but is doubtful whether he is as unerring with the pistol as Senator Broderick. This gentleman, recently, in practicing in a gallery, fired two hundred shots at the usual distance, and plumped the mark every time. As he is also a man of firmer nerve than his opponent, we may look this morning for unpleasant news.”

The city of San Francisco had outlawed duels by a city ordinance, stopping the first duel before it even started. Despite Broderick and Terry agreeing a time and place between themselves a large group of spectators had gathered. So had San Francisco’s police with orders to prevent Broderick and Terry from fighting. With that in mind and knowing it wasn’t illegal outside city limits, Broderick and Terry agreed another date and place. The date would be 13 September, the place a ravine near Lake Merced just outside San Francisco’s southern boundary.

Traditionally duels required both combatants to have a ‘second.’ Usually a friend, seconds provided moral support and acted as go-betweens arranging the time, place and manner of duel to be fought. They might try to calm a situation and secure a peaceful resolution leading to a duel being called off. If one combatant broke the rules his opponent’s seconds might protest or even fight themselves. Though rare, it wasn’t unknown for duelists and their seconds to fight en masse especially in sword duels.

Being a matter of honour duels were usually fought with an umpire on hand to arbitrate disputes and see that everyone present kept to the agreed rules. Their role sometimes required more than just a polite reminder. If a combatant broke the rules the umpire might remind them first, but might also kill them if their breach was enough to warrant it. Dueling was certainly a dangerous business for those actually fighting, but it could be equally dangerous for anyone else involved.

In European duels the challenged combatant traditionally had the choice of weapons, usually long-bladed knives, swords or pistols. The Broderick-Terry duel’s weapons were decided by the toss of a coin. Winning the coin toss Terry chose his pair of .58-caliber pistols with hair triggers.

Though both men were expert shots Broderick was unfamiliar with the chosen pistols. He also had little time to get acquainted with them. Broderick’s unfamiliarity cost him his life. An account of the duel published by Munsey’s Magazine in August 1905 also noted a difference between the two pistols giving Terry a decisive and, many might think, unfair advantage:

‘Both pistols had hair triggers, but Broderick’s was more delicately set than Terry’s, so much so that a jar might discharge it. Broderick’s seconds were inexperienced men, and no-one realized the importance of this difference.”

It’s since been suggested that Terry chose the pair of pistols brought by his own second knowing the difference between the two triggers. It’s never been proved, but suggestions have been made that the pistols were marked so Terry knew not to take the more sensitive of the two. If so, Terry and his seconds committed one of the gravest possible breaches of dueling etiquette. It would mean their affair of honor had been decided in a most dishonorable way.

Compared to standard pistols of the time dueling pistols were a different weapon entirely. Usually custom-made and supplied in boxed pairs, dueling pistols were designed both for accuracy and with far lighter triggers than their standard counterparts. They were also more expensive than the pistols normally used by officers or gentlemen for everyday uses like combat or target shooting.

Their quality and price made them accessible only to the wealthy, prosperous gentleman duelist who had need of them. Standard pistols were relatively blunt instruments by comparison, dueling pistols were custom-made killing weapons serving no other purpose. Ownership of dueling pistols was both a sign of a gentleman’s social status and a tacit warning. It said to other gentlemen:

‘Be warned. Provoke me or those close to me and I’ll challenge you. Then I’ll kill you.’

David Broderick was about to find that out and pay dearly for the knowledge. Frustrated in their first attempt by a city ordinance, spectators and police, the former friends would meet again near Lake Merced on 13 September for the last time.

What has been called America’s last notable duel was about to be fought.

Frustrated on 12 September the two agreed to meet again the next day. It probably hadn’t escaped Broderick’s notice that he was fighting a duel on the unluckiest day of the month. Granted, 13 September 1859 was a Tuesday rather than a Friday, but it probably did nothing to settle his nerves. That there were approximately eighty witnesses probably didn’t help either.

As the duelists and their seconds arrived it was obvious that Broderick was feeling the strain. Pensive and uptight, he paced around unable to keep still. Terry, on the other hand, was very calm considering the risk he was taking. Whether he was calm because he had an unfair advantage and knew it will never be known.

The Broderick-Terry duel broke with tradition by not having an umpire. Instead David Colton was in charge. Colton, a friend of Broderick’s, was also his second. It was Colton who checked Broderick’s pistol and Colton who called both men to their marks. For less serious disputes pistol duels could be fought at distances of as much as thirty or even forty paces. If combatants preferred to observe tradition rather than actually fight they might even aim to miss, preserving honour without causing bloodshed. So bitter was their enmity that Broderick and Terry decided to fight at closer quarters.

Both intent on dueling to the death they would fire at only ten paces.

With their weapons chosen and checked, the pair answered Colton’s call. Another coin toss had been won by Broderick allowing him the right to choose positions. Broderick chose to stand with his back to the sun. If he thought it gave him an edge Broderick was to be fatally disappointed. Taking the spots now marked by the two obelisks they waited for permission to fire. There was no going back.

Colton, as agreed by both men, made the final call.

“Gentlemen, are you ready?”

Both were ready, although Broderick was by far he more nervous. Colton began the count.

“One…”

Both grasped their weapons, preparing to raise them. At the agreed count of three both men would aim and fire in their own time. If both men missed then they would either reload and fire again or declare the duel over.

‘BANG!”

Broderick’s pistol, by far the more sensitive of the two, discharged harmlessly into the ground in front of Terry. According to the rules of dueling and a gentleman’s code of honor Broderick had no choice but to stand absolutely still while Terry returned fire. If Terry missed Broderick then he might still live.

A .58-caliber lead ball at only ten paces would be fatal if it hit Broderick’s head or torso. If it hit an arm or leg then amputation was the most likely option, assuming Broderick didn’t die of blood loss, shock or gangrene. Standing still, Broderick could only watch as Terry raised his pistol, took careful aim and fired.

‘BANG!’

Broderick stumbled then slumped onto his back, the ball having ripped into his right lung. As Broderick lay in the arms of his second Terry looked on convinced his opponent wasn’t seriously hurt. Broderick, in fact, was dying. As he lay coughing blood and unable to stand Broderick remarked simply:

“The blood blinded me.”

Broderick died three days later and immediately became a martyr to America’s abolitionist movement. He was only thirty-nine years old. Some 25000 people attended his funeral in Portsmouth Square. Terry walked away from the duel unharmed and seemingly unconcerned. He was later acquitted of murder.

The duel and acquittal did nothing to calm Terry’s temper, something that later caused his own downfall. While Broderick became a martyr for the abolitionist movement Terry became even more determined to preserve slavery. Leaving California for Texas he joined the 8^th Texas cavalry raised by his brother Benjamin. He later became Colonel of the 37^th Texas Cavalry and left for Mexico after the Civil War ended.

Returning to California in 1870 Terry re-entered state politics only to find his notoriety still worked against him. Marrying Sarah Hill in 1886 Terry was embroiled in a lawsuit against his wife’s alleged ex-husband, former US Senator William Sharon. Sharon denied ever having married her and she lost both the case and the appeal. The appeal was decided by a former friend of Broderick’s, US Supreme Court Justice Stephen Field.

When the ruling went against them both Terry and Hill went berserk. When Marshal Franks tried to restrain Hill her husband Terry intervened and a brawl ensued. One spectator, David Neagle, helped strip Terry of the Bowie knife he habitually carried before the pair were jailed. They spent much of their time in jail threatening the Marshal and when Field next visited California he arrived with a bodyguard appointed by US Attorney-General William Miller.

On 14 August 1889 Terry, aggressive to the end, bumped into Justice Field on a train near Lathrop, California. Terry, still harboring a grudge, first berated Field and then slapped him across the face. If Terry was hoping to force another duel he was to be very disappointed and almost immediately dead.

Justice Field was travelling with a bodyguard familiar to Terry and Hill, none other than Deputy US Marshal David Neagle. Neagle, a former deputy Sheriff and town marshal in Tombstone, Arizona, had been deputized by Attorney-General Miller. He was experienced, conscientious, quick on the draw, willing to shoot if necessary and did exactly that.

As Terry continued berating Field and then struck him Neagle whipped out his revolver. A  slug immediately tore into Terry’s body. Terry’s aggressive nature and habitual disrespect for others had finally been his undoing. He was later buried at the Stockton Rural Cemetery in California.

Neagle was arrested by California authorities on a murder charge, but the Federal Government had other ideas. They challenged his arrest with a writ of habeas corpus winning Neagle’s release. Like the Broderick-Terry duel the Neagle case also had far-reaching consequences. In 1890 a Supreme Court ruling confirmed  that the US Attorney-General had the right to appoint bodyguards for Supreme Court Justices. The court also ruled that those bodyguards answered to Federal authority, not that of any state.

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The story of the ‘last notable duel in California’ can be found in my second book ‘Murders, Mysteries and Misdemeanors in Northern California.’ My first book ‘Murders, Mysteries and Misdemeanors in New York‘ is also currently on sale.