BANCROFT 
 LIBRARY; 
 
 <> 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
THE 
 
 TERRY-BRODERICK DUEL 
 
 WRITTEN BY 
 
 HON. JOHN CURREY, 
 
 FORMERLY CHIEF JUSTICE OF THE SUPREME COURT OF CALIFORNIA. 
 
 ALSO THE 
 
 O I* ATI O N 
 
 OF 
 
 COLONEL EDWARD D. BAKER 
 
 OVER THE DEAD BODY OF DAVID C. BRODERICK, 
 
 SEPTEMBER 18, 1859. 
 
 WASHINGTON, D. O. : 
 
 GIBSON BROS., PKINTEHS AND BOOKBINDEBS. 
 1896. 
 
THE 
 
 TERRY-BRODERICK DUEL. 
 
 WRITTEN BY 
 
 HON. JOHN (3URREY. 
 
 FORMERLY CHIEF JUSTICE OF THE SUPREME COURT OF CALIFORNIA. 
 
 ALSO THE 
 
 O R ATI O N 
 
 OF 
 
 COLONEL EDWARD D. BAKER 
 
 OVER THE DEAD BODY OF DAVID C. BRODERICK, 
 SEPTEMBER 18, 1859. 
 
 WASHINGTON, D. C. I 
 
 GIBSON BROS., PRINTERS AND BOOKBINDERS. 
 1896. 
 
X 
 
4 
 
 BANCROFT 
 
 LIBRARY 
 
 THE TERRY-BRODERICK DUEL. 
 
 It is now more than thirty years since the world-renowned 
 duel between David S. Terry and David C. Broderick 
 transpired, in which the latter fell mortally wounded. Be 
 fore proceeding with a detailed account of this terrible 
 tragedy and the immediate circumstances and causes which 
 led up to it, it is proper to notice the condition of society 
 in California in the earlier days and the political state of 
 affairs during the first decade of the state's history. 
 
 During the year 1849, and for a few years thereafter, 
 there was a large immigration to California from nearly all 
 the states of the Union. They were mostly young men 
 under forty years of age, who came seeking fortunes in this 
 new and promising land. Many were ambitious for political 
 distinction and regarded California as a promising field 
 for political enterprise. Of the latter class, the southern 
 states furnished the larger proportion, and they came 
 fully impressed with the belief that they were the superiors 
 of the northern men in the qualities of gentlemen born to 
 rule, and therefore the party leaders and directors of politi 
 cal affairs were to be found mainly in the ranks of these 
 southern gentlemen, some of whom before coming to Cali 
 fornia had held public positions of honor. They believed in 
 slavery as a beneficent institution, and for the most part re 
 garded the "Code of Honor" as an appropriate means for 
 the settlement of personal grievances. They considered a 
 southern man greatly superior to one of northern birth and 
 education, in prowess and courage and in the skilful use of 
 deadly weapons, and consequently there were many duels, first 
 and last, in a considerable number of which a northern man was 
 
one of the combatants, who, notwithstanding his northern 
 origin and education, manifested a courage and skill which 
 more than astonished his hot-headed adversary. The ex 
 perience of a few years taught this presuming class of 
 southern young men that latitude and longitude were not 
 safe criteria for the determination of courage and skill. 
 They soon learned that whether born and reared in the 
 highlands of the North or on the plantations of the South, 
 " A man's a man for a' that." 
 
 It is just to say of the immigration from the south, that 
 many were gentlemen of high educational attainments and of 
 refined and cultured manners. In social life they were at 
 tractive and genial companions, considerate of the opinions 
 of others. This class of gentlemen was quite unlike the pre 
 tentious and boasting middle-rank and low-grade chivalry, 
 who were wont to carry upon their persons pistols and 
 knives, with which, for even slight affronts, they professed 
 themselves disposed " to blow the top of your head off." 
 
 Mr. Broderick came to California from New York early in 
 1849 and took up his residence in San Francisco. He was 
 ambitious and inclined to political life. He was a stone 
 cutter by trade, which he followed as his vocation during 
 his early manhood. In his habits he was not prone to any 
 of the popular vices of the day. In these respects he main 
 tained his integrity during all his residence in California. 
 He was a man of strong natural ability, and possessed an 
 indomitable will and the power of drawing men to him as a 
 leader. He was elected to the Senate of the first legislature 
 of California, and during its second session was the presiding 
 officer of the body of which he was a member, as the Lieu 
 tenant Governor had succeeded to the office of Governor, 
 made vacant by the resignation of Peter H, Burnett, who 
 had served as Governor only half of the term for which he 
 was elected. 
 
 Dr. William M. Gwiu, who came to California in 1849, 
 was a southern man by birth, residence, and education. His 
 
5 
 
 sympathies were with the people of his native south, and 
 with their " peculiar institution " of slavery. He was a man 
 of vigorous intellectual force, and was in the early days of 
 California the leader of his party. The first legislature of 
 the state elected him an United States Senator, and in cast 
 ing lots for terms, he drew that which expired in March, 
 1855. His position as a Senator added to his strength as 
 leader of the Democratic party. His influence was exercised 
 for the advancement of his friends to the offices of federal 
 patronage, and, in the disposition of them, men of southern 
 birth and education, all other things being equal, were pre 
 ferred. To be eligible to office, either federal or state, it 
 was essential, as a general rule, to be sound on the question 
 of slavery, according to the standards of Senator Gwin and 
 his southern allies. This was carried to such an extent 
 during the administrations of Pierce and Buchanan, that the 
 Custom House at San Francisco came to be known as 
 the " Virginia Poor House." 
 
 Mr. Broderick's power as a leader steadily increased. His 
 following comprised people from every part of the Union, 
 though its principal strength was from the states north of 
 " Mason and Dixon's line." As his power grew, the oppo 
 sition of Senator Gwin and his southern followers and pro- 
 slavery allies from northern states increased and strengthened 
 until it became furious ; but Broderick was equal to the 
 emergency, and his following grew stronger and stronger and 
 as earnest and vehement as that of its adversaries. 
 
 In the summer of 1853, at the Democratic state conven 
 tion held at Benicia for the nomination of a state ticket, the 
 two factions of the party measured swords. The southern 
 wing, which was called the Chivalry, was led by several of 
 Senator Gwin's lieutenants, scarcely inferior in political 
 generalship to himself. Broderick was there in person and 
 conducted the fight against his opponents with great adroit 
 ness as well as boldness. His ticket was nominated, with 
 John Bigler, a native of Pennsvlvania, then Governor of the 
 
state, at its head. This ticket was elected, and Broderick 
 was then regarded by the majority of the Democratic party 
 as its leader in the state, though the Gwin or Chivalry wing 
 yielded an unwilling acquiescence. 
 
 At the session of the legislature assembled at Beuicia 
 early in 1854, Broderick and some of his friends attempted 
 to force on the election of a United States Senator to suc 
 ceed Dr. Gwin, whose term was to expire in March, 1855- 
 This movement was regarded by many of Broderick's friends, 
 and others, as an injudicious and reprehensible step, as it 
 was an attempt to do by that legislature a duty which 
 properly appertained to the legislature to be chosen at the 
 next election. The attempt failed. 
 
 The legislature which assembled at Sacramento, the new 
 capital of the state, in 1855, made an ineffectual effort to 
 elect a Senator. No one candidate could obtain a majority. 
 The same thing occurred again at the legislature which con 
 vened in 1856. This was the " Know-Nothing " legislature, 
 composed of Democrats, and Whigs whose organization had 
 at that time become virtually extinct. 
 
 The Know-Nothing party grew and became dominant in 
 the state in 1855. It was composed largely of the Chivalry 
 branch of the Democratic party, and Whigs who had become 
 scattered for want of a fold in which to gather them in united 
 force. 
 
 By means of the Know-Nothing organization, the oppor 
 tunity came to the Chivalry to overthrow Broderick and 
 his close followers. David S. Terry, a resident of Stockton, 
 was a strong pro-slavery Democrat. He "had resided in 
 Texas from his early boyhood until he came to California in 
 1849. He abandoned his party and became a leading Kuow- 
 Nothing, and was nominated at its state convention in 1855 
 for Justice of the Supreme Court, to till out the term of 
 Alexander Wells, then deceased. He and all others on his 
 ticket were elected, and he entered upon his office on the 
 first of January, 1856. 
 
The Know-Nothing party was short-lived, for in the fall 
 of 1856 the Democratic party, then under the leadership of 
 Broderick, gained the ascendency, and elected a legislature 
 strongly Democratic. At its session in January, 1857, 
 Broderick was elected United States Senator for the term to 
 commence on the 4th of March of that year. There was 
 also the partly unexpired term, which commenced on the 4th 
 of March, 1855, to be filled, and Dr. Gwin and Milton S. 
 Latham were aspirants for the position. The struggle be 
 tween them for it waxed strong and bitter. Each sought the 
 aid and influence of Broderick, who at the time had them at 
 his feet. Broderick preferred Dr. Gwin, and he was elected. 
 He humbly acknowledged his indebtedness to Broderick for 
 his timely and effectual assistance. This was done in a com 
 munication over his own name, addressed to the people of 
 California, after he was elected. 
 
 While this Senatorial struggle was in progress, there was 
 going on in the territory of Kansas one even more vital to 
 the cause of Civil Liberty. It was a contest between the 
 free-state men of that territory and the pro-slavery people 
 of Missouri and other southern states, who had gone there, 
 some of them with their slaves, believing that this species 
 of property, according to the doctrine of the Dred Scott de 
 cision, stood protected by the national constitution, and 
 was as secure in their possession as any other kind of 
 property, so long as Kansas might remain a territorial gov 
 ernment, and always, unless the people, in their sovereign 
 capacity, should, in the adoption of a state constitution, 
 declare slavery to be unlawful within its borders. 
 
 The people of California had not then become generally 
 interested in the free-state and pro-slavery contest of Kan 
 sas. In the latter part of the year, a convention of pro- 
 slavery delegates met at the town of Lecompton, in Kansas, 
 for the purpose of framing a constitution for the prospective 
 state, a work which the convention performed, taking care 
 to provide for the establishment of slavery as a permanent 
 
8 
 
 institution of the state. This provision of the proposed 
 constitution was alone submitted to the electors of the terri 
 tory for their adoption or rejection ; but by another pro 
 vision of the same instrument, the owners of slaves then in 
 the territory were confirmed in their right in and to them, 
 in the state of Kansas, even though the provision submitted 
 might be rejected. The free-state men demanded a sub 
 mission of the entire instrument, to be passed on by the 
 electors of the territory, which being denied, they refused to 
 participate in the election. The result was that the ques 
 tion submitted was adopted by a large majority of a very 
 small vote cast. 
 
 President Buchanan had promised the people that any 
 constitution which might be formed for Kansas as a state 
 should be submitted to them for their adoption or rejection ; 
 but upon the reception of the Lecompton constitution he 
 repudiated his pledge made to the people, and on the 2d 
 of February, 1858, transmitted the instrument to Congress, 
 accompanied by a special message urging the speedy ad 
 mission of Kansas as a state of the Union under the Le 
 compton constitution, although, as he in effect expressed it, 
 the instrument had not been fully submitted to the people 
 for their adoption or rejection. Against admission under 
 the proposed constitution, there arose in both houses of 
 Congress a strong opposition, led by Senator Douglas, of 
 Illinois, with whom was Senator Broderick, who was an 
 uncompromising opponent of the measure. Senator Gwin 
 exerted all his strength in support of it, and from that 
 time the California Senators became bitter enemies. The 
 immediate result was that Broderick fell under the ban 
 of the administration, while Dr. Gwin came into increased 
 favor with the President, whose sympathies were more than 
 cordial with those in Congress who were laboring to make 
 Kansas a slave state. Thenceforth the federal patronage 
 for California was administered by Senator Gwin. 
 
 While the question of the admission of Kansas under the 
 
Lecompton constitution was convulsing Congress, the whole 
 country became intensely agitated on the subject, and the 
 people of California soon arrayed themselves on the one side 
 or the other of the disturbing question. Those who were 
 strongly pro-slavery were first in the arena of the conflict ; 
 those opposed to the extension of slavery were not much 
 behind, and the indifferent waited to see the turn of events 
 before choosing sides. The Republicans, then a party of 
 nascent growth in California, were to a man opposed to the 
 Lecompton fraud, and the friends of Senator Broderick were 
 for the most part equally so, but fully three-fifths of the 
 people of the state were either in favor of the extension of 
 slavery, or indifferent respecting the question. 
 
 In the summer of 1858 the Democratic party met at Sac 
 ramento and divided forces on the question of the admission 
 of Kansas as a state under the Lecompton constitution, and 
 questions cognate to the subject. The party from that time 
 became two-winged, and each held its convention and nom 
 inated candidates for Justice of the Supreme Court and 
 State Controller, the only two offices to be filled by the 
 election of that year. 
 
 The administration wing was denominated the " Lecomp 
 ton " party, and the opposition wing was called the " anti- 
 Lecompton " party ; some called it the " Douglas " party. 
 With the anti-Lecompton wing of the Democracy, the Re 
 publicans united on the candidate for Justice of the Supreme 
 Court ; but, notwithstanding this, the Lecompton wing carried 
 the election by a fair though not large majority. 
 
 The California Senators were in their places during the 
 winter of 1858-'9, and each devoted his influence on the side 
 of the question he espoused. 
 
 The leaders of the Lecompton party in California were 
 unscrupulous as to the means which might be employed to 
 make Kansas a slave state. They were for slavery, and hated 
 those who boldly confronted them. They hated Broderick, 
 for his part in the struggle, with malignant personal hatred, 
 
10 
 
 and no one of these pro-slavery leaders was more bitterly 
 hostile to Broderick than was Terry, who had declared him 
 self not only the friend of slavery extension, but also of re 
 opening the African slave trade. 
 
 In June, 1859, the two wings of the Democracy met in 
 state conventions at Sacramento to place in nomination each 
 a full ticket for state officers. The anti-Lecompton wing 
 was the first to make its nominations. At that time the 
 California Senators had returned home, and were preparing 
 to enter upon the approaching campaign. Judge Terry was 
 placed before the Lecompton convention for the office of 
 Justice of the Supreme Court, as his own successor, but he 
 failed to receive the nomination. It fell to the lot of one of 
 his competitors. The nominations having been completed, 
 there was held in the hall or place of the convention, on the 
 evening of the 24th of June, a meeting to ratify the nomina 
 tions made. At that meeting Terry was called upon to 
 speak, and he responded in a vehement speech, in which 
 he inveighed coarsely and insultingly against the anti- 
 Lecompton party, of which Broderick was a member and 
 the leader in the state, and against Broderick personally. 
 The particularly offensive part of his speech is here given. 
 He said : 
 
 " Who have we opposed to us ? A party based on no prin 
 ciples except the abusing of one section of the countrv and 
 the aggrandizement of another ; a party which has no exist 
 ence in fifteen states of the confederacy ; a party whose 
 principles never can prevail among freemen who love jus 
 tice and are willing to do justice. "What other? A miser 
 able remnant of a faction, sailing under false colors, trying 
 to obtain votes under false pretences. They have no dis 
 tinction they are entitled to. They are the 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 David C. Broderick. They are yet ashamed to 
 acknowledge their master, and are calling themselves, for- 
 
11 
 
 sooth, Douglas Democrats, when* it is known well known 
 to them as to us that the gallant Senator from Illinois, 
 whose voice has always been heard in the advocacy of Dem 
 ocratic principles, has no affiliation with them, no feeling in 
 common with them. 
 
 "Perhaps, Mr. President and gentlemen, I am mistaken in 
 denying their right to claim Douglas as their leader ; per 
 haps they do sail under the flag of a Douglas ; but it is the 
 banner of the black Douglas, whose name is Frederick, not 
 Stephen." 
 
 These were the words of the. Chief Justice of the Supreme 
 Court of the state, the dignity of whose position, his friends 
 have claimed, weighed heavily upon him. 
 
 The speech was reported in the " Sacramento Union," a 
 newspaper of wide circulation, on the morning of the follow 
 ing day, from which it appeared that it was received by 
 the large audience with great applause and vociferous 
 cheering. 
 
 This speech was the first immediate, overt offence which 
 led to the Terry-Broderick duel, a fact which cannot be 
 gainsaid by any one capable of drawing just conclusions 
 from given causes, though Terry's friends and admirers have 
 carefully avoided giving any importance to it as an offence, 
 one of whom has gone so far as to justify and excuse it, as 
 clearly within the pale of legitimate debate, and in no sense 
 censurable as a reflection against Broderick. 
 
 On the morning of the 26th of June, Broderick, while at 
 the breakfast table of the International Hotel, in San Fran 
 cisco, read the speech of Terry as it appeared in the 
 " Union " of the 25th. He was disturbed and angered, and 
 spoke of it to a friend next him at the table, about which 
 there were seated a few other persons. He remarked that 
 while Terry was incarcerated by the Vigilance Committee, 
 he had paid two hundred dollars a week to support a news 
 paper to defend him, and, continuing, said : " I have said I 
 
12 
 
 considered him the only honest man on the Supreme Bench, 
 but I now take it ;ill back." 
 
 Mr. D. W. Perley, a former law partner of Terry, hap 
 pened to be at the table, and resented the words of Broder- 
 ick, who cut him short with some curt remark which Perley 
 deemed offensive to himself. Perley then published his 
 version of what Broderick said, which he endeavored after 
 wards to have some of those present corroborate, but met 
 with a denial by them of the truth of his story. Perley him 
 self challenged Broderick to a duel, which the latter declined, 
 saying, at the time, that he would not allow himself to be 
 drawn into an affair of the kind while the campaign then 
 inaugurated should continue, in which it was his purpose to 
 take a part. 
 
 Both Mr. Broderick and Dr. Gwin took the stump, and 
 the war of crimination and recrimination between them was 
 bitter in the extreme, and it was so to a considerable degree 
 between the leaders of the two wings of the Democratic 
 party, though there were exceptions to this mode of political 
 warfare. 
 
 The election was on the 7th of September, at which the 
 Lecompton party won a decisive victory. Throughout the 
 campaign the air was full of imprecations and threats against 
 Broderick. It was believed by his enemies that his death 
 was a political necessity, and that it must be accomplished, 
 if not by the first duel, then by another or others to follow. 
 It is believed that Broderick himself was conscious of the 
 dangers that awaited him, and well understood the reasons 
 for the malignity of his enemies, for, while languishing on 
 his dying bed, he is reported to have said : " They have 
 killed me because I was opposed to the extension of slavery, 
 and a corrupt administration." 
 
 Col. Edward D. Baker was with Mr. Broderick much of 
 the time during his extreme suffering, and probably heard 
 these words as they were uttered ; for, in his great and grand 
 funeral oration over the dead body of his fallen friend, he 
 
13 
 
 repeated the dying words of Mr. Broderick, and as he con 
 tinued he said : " Let no man suppose that the death of 
 the eminent citizen of whom I speak was caused by any 
 other reason than that to which his own words assigned it. 
 It had been long foreshadowed. It was predicted by his 
 friends. It was threatened by his enemies. It was the 
 consequence of intense hatred. It was a political ne 
 cessity, poorly veiled beneath the guise of a private 
 quarrel." 
 
 While hope was entertained that Mr. Broderick might 
 recover, a correspondent of the " Alta California " news 
 paper, under date of September 15th, after saying he had 
 always been his bitter enemy, continuing, said : " I have 
 feelings in common with mankind, and I disapprove of this 
 man's being hunted like a dog. If he survives, other duels 
 stare him in the face." And then he appealed to the good 
 people of the community to join him in a protest "positively 
 forbidding him to accept any further challenges, which will 
 surely come should he be raised from his bed of death." 
 These utterances of the funeral orator and the "Alta's" cor 
 respondent were but the general expressions of the people 
 throughout the land, who believed Mr. Broderick had fallen 
 the victim of cruel malice a sacrifice to the political neces 
 sities of the time. 
 
 While the campaign was in its furious progress, some of 
 Broderick's most pronounced adversaries said he must be 
 killed, and others, more prudent in speech, ventured the 
 prediction that he would not long survive the day of the 
 election, and to this end they looked to Terry as the person 
 best suited to do effective work. He. they supposed, had 
 a pretext, if not a sufficient cause, to call upon Broder 
 ick for reparation on account of what he had said at the 
 breakfast table. 
 
 This was the condition of things until the election was 
 over, whereupon Terry, accompanied by his friends Dr. 
 Ash and Dr. Aylette, on the 8th of September, the day after 
 
14 
 
 the election, proceeded by stage from Stockton to Oakland, 
 having with him the pistols which were afterwards used in 
 the duel. There they were placed in charge of a Texas friend 
 of Terry, and thence they were taken to the field of the con 
 flict which followed. 
 
 On the day of his arrival at Oakland, Terry addressed to 
 Broderick, from that place, a letter, in which he said : 
 
 "Some two months ago, at the public table of the Inter 
 national Hotel in San Francisco, you saw fit to indulge in 
 certain remarks concerning me, which were offensive in their 
 nature * * "". I now take the earliest opportunity to 
 require of you a retraction of those remarks." 
 
 To this letter Broderick promptly made answer, saying : 
 " Your note of September 8th reached me through the hands 
 of Calhoun Benham, Esq. The remarks made by me in the 
 conversation referred to may be the subject of future mis 
 representation, and, for obvious reasons, I have to desire 
 you to state what the remarks were that you designate in 
 your note as offensive, and of which you require of me a re 
 traction." 
 
 On the 9th of September Terry answered Broderick's let 
 ter, and, complying with his request, he said : " In reply to 
 your note of this date, I have to say that the offensive re 
 marks which I alluded to in my communication of yesterday 
 are as follows : ' I have heretofore considered and spoken of 
 him (myself) as the only honest man on the Supreme Court 
 Bench, but I now take it all back.' Thus by implication re 
 flecting on my personal and official integrity. This is the 
 substance of your remarks as reported to me. The precise 
 terms, however, in which the implication was made is not im 
 portant to the question. You yourself can best remember 
 the terms in which you spoke of me on the occasion re 
 ferred to. What I require is the retraction of any words 
 which were used, calculated to reflect on my character as an 
 officer or a gentleman." 
 
 On the evening of the same day, Broderick replied to 
 
15 
 
 Terry's second letter, acknowledging its receipt, and then 
 said : " The remarks used by me were occasioned by cer 
 tain offensive allusions of yours concerning me, made in the 
 convention at Sacramento, and reported in the ' Union ' of 
 June 25th. Upon the topic alluded to in your note of this 
 date, my language, so far as my memory serves me, was as 
 follows : ' During Judge Terry's incarceration by the Vigi 
 lance Committee, I paid two hundred dollars a week to sup 
 port a newspaper in his (your) defence. I have also stated 
 heretofore that I consider him (Judge Terry) the only honest 
 man on the Supreme Court Bench, but I now take it all 
 back.' You are the best judge as to whether this language 
 affords good ground for offence." 
 
 To this second letter of Broderick, Terry, on September 
 10th, answered as follows : 
 
 " Some months ago you used language concerning me, 
 offensive in its nature. I waited the lapse of a period of 
 time, fixed by yourself, before I asked reparation therefor at 
 your hands. You replied, asking for a specification of the 
 language used which I regarded as offensive. In another 
 letter I gave the required specification and reiterated my de 
 mand for retraction. To this last letter you reply acknowl 
 edging the use of the offensive language imputed to you, 
 and not making the retraction required. This course on 
 your part leaves me no alternative but to demand the satis 
 faction usual among gentlemen, which I accordingly do. 
 Mr. Benham will make the necessary arrangements." 
 
 In reply to this letter tendering a challenge, Broderick 
 acknowledged its receipt, and then said : " In response to 
 the same, I will refer you to my friend Hon. J. C. McKibben, 
 who will make the necessary arrangements demanded in 
 your letter." 
 
 Here ended the epistolary correspondence, the substance 
 of which is herein set forth, as found at length in the volume 
 of Maj. Ben. C. Truman, entitled " The Field of Honor," and 
 
16 
 
 in the work of Mr. James O'Meara, entitled " Broderick and 
 Gwin." 
 
 It is here to be noticed that the parties agreed as to the 
 language used by Broderick respecting Terry, which he 
 regarded as offensive in its nature. It is also to be noticed 
 that the latter did not credit the story of his friend Perley, 
 as to what Broderick had said at the breakfast table. Yet 
 Mr. O'Meara, after all this, adopts Perley 's version of what 
 was said there, and deduces therefrom his conclusions 
 that Broderick's remarks were extremely harsh and offen 
 sive. 
 
 Terrv's friends have always carefully ignored the fact, that 
 his speech before the convention of his party was to be 
 considered as forming any part of the coutrovers}^ They 
 assume that the remarks made by Broderick were the first 
 offence, and have given to them an interpretation which is 
 strained to mean that Broderick's words were an imputation 
 against the judicial integrity of Judge Terry, which could 
 be atoned for only by abject and craven humiliation, or by 
 blood. 
 
 Mr. O'Meara says, in the 25th chapter of his book, that 
 " the provocation which he (Broderick) had from Terry's 
 remarks in the Lecompton convention was not of a character 
 to justify a personal replication. Terry's language was 
 directed mainly against the party of which Broderick was 
 the acknowledged leader, and incidentally his relation to 
 that party was mentioned, but it was simply and exclusively 
 political ; public mention and characterization, clearly within 
 the limits of ordinary and fair debate or allusion, and with 
 out the ingredient or tinge of personality. At worst it in 
 no wise reflected upon the character or upon the political 
 standing of Mr. Broderick, in point of integrity or honor. 
 But Mr. Broderick's language concerning Judge Terry was 
 very harsh very offensive in a personal sense ; and in 
 respect to the exalted position he occupied as Chief Justice 
 of the Supreme Court of the state, it was intolerable to one 
 
17 
 
 who, in such position, was inspired with a just sense of the 
 great dignity of the station itself, and a proper appreciation 
 of the high duty which he owed to his associates on the 
 bench, and the spirit which was due in upholding and vin 
 dicating the unsullied majesty of the law in its loftiest temple 
 of the state." 
 
 This grandiloquent exaltation of the Chief Justice, who, 
 disturbed in his dignified repose, went forth, in kindled 
 wrath, to vindicate the unsullied majesty of the law in its 
 loftiest temple, bates the breath. Were it not that this 
 admiring disciple of the angered Chief Justice is known to 
 be as deeply devoted to his hero as was Crito to his revered 
 Socrates, it might be well suspected that his laudations 
 were but the ebullitions of caustic sarcasm and grim 
 irony. 
 
 This specimen passage from the work of Mr. O'Meara is 
 but a sample of the labored efforts, from the beginning, to 
 place Terry in the attitude of the righteous defender of 
 personal and judicial honor, against the assault of one who 
 had the temerity to assail, yet not the manliness to make 
 reparation for his wrong. These efforts have consisted in 
 the expressio falsi persisted in, and the supressio veri care 
 fully observed, so that the impression has gained ground, to 
 some extent, that Broderick was the first offender, and, as 
 such, was in honor bound to make reparation ; failing to do 
 which when called upon, justly exposed him to the challenge 
 tendered him, and justly doomed him a sacrifice upon his 
 own altar. 
 
 To understand the merits of the controversy between the 
 parties, the order of events should be carefully observed, 
 from which it appears that Terry was the first to give offence. 
 In his speech quoted, he charged Broderick and his party 
 as being dishonest, " sailing under false colors and trying to 
 obtain votes under false pretences ; " and, in ribald and 
 scornful terms, he denominated the anti-Lecompton wing of 
 the Democratic* party as the " personal chattels of a single 
 
18 
 
 individual, whom they were ashamed of," as belonging 
 " heart ami soul, body and breeches, to David C. Broderick," 
 and " yet ashamed to acknowledge their master." 
 
 These were the words, not of a blackguard in private life, 
 but of the Chief Justice of the Supreme Court of the state. 
 They not only applied to the individuals of the party of 
 which Broderick was the leader, but to him personally, in a 
 most offensive sense, as a master of whom his followers 
 were ashamed, and as one whom they contemned and de 
 spised. 
 
 In the correspondence between the parties, it appears that 
 Broderick referred Terry to the latter's speech as the cause or 
 occasion of his own remarks respecting him, and referred 
 him to the record of that speech in the " Sacramento Union " 
 of June 25th, the consideration of which Judge Terry chose 
 to disregard. Thus it appears that the evidence touching 
 this branch of the controversy between the friends of Terry 
 and the friends of Broderick is of the nature of record 
 evidence, importing absolute verity. Upon this evidence the 
 questions arise : 
 
 First : Which of the parties was the first to give offence ? 
 
 Second : Which of the parties was in honor bound to 
 apologize and make reparation to the other ? 
 
 These questions being answered, the ultimate proposition 
 is, Was there any just ground or excuse for the challenge 
 given by Terry to Broderick, even according to the prin 
 ciples of the Code of Honor, which the advocates of that 
 system for the settlement of personal quarrels maintain 
 are in accord with the principles of honor, justice, and 
 equity ? 
 
 The particularly dramatic, as well as the terribly tragic, 
 pail of the affair, miscalled an " affair of honor," remains to 
 be told. 
 
 At the time the correspondence between the parties was 
 opened, the physical condition of Broderick was most un 
 favorable for the barbarous business upon which he was called 
 
19 
 
 to enter, and which he accepted. This was owing to the ex 
 traordinary mental and physical strain to which he had been 
 subjected in the Senate, and during the political campaign 
 then recently closed. On the other hand, Terry seemed well 
 prepared by assiduous training for the work which he had 
 had in anticipation for more than two months. 
 
 Both were men of great physical strength, and both of 
 strong mental force ; but neither of them was of high educa 
 tional attainments, nor of much culture. Broderick was 
 known as a man of positive traits and giant will. He was a 
 natural leader of men. Terry was known as a man of strong 
 prejudices and bitter animosities. He believed in enforcing 
 obedience to his will by force of arms. He was a natural 
 and typical leader of the particular class to which he be 
 longed. He believed in the Code as an appropriate means 
 for the settlement of private quarrels. Broderick recognized 
 its obligations, in deference to the prevailing sentiment of 
 the time. 
 
 In Terry's first letter to Broderick he said at its close : 
 " This note will be handed you by my friend Calhoun Ben- 
 ham, Esq., who is acquainted with its contents and will re 
 ceive your reply." Benham delivered the letter on the 
 evening of the day of its date, when Broderick remarked 
 that he would give it attention the next day. Benham urged 
 more prompt action, and from that time the correspondence 
 proceeded at double-quick speed until its conclusion. On 
 the part of Terry and Benham, the object seemed to be to 
 keep Broderick under whip and spur until the work in hand 
 should be fully accomplished. Terry's letter, tendering a 
 challenge, was delivered by Benham to Broderrck about one 
 o'clock in the morning of the 10th of September. To effect 
 the service of the challenge at this dead hour of the night, 
 Benham waited on Broderick's friends at the Union Hotel, 
 on Kearney Street, opposite Portsmouth Square, in San 
 Francisco. Broderick was then at the house of his friend 
 Leonidas Haskell, at Black Point, a full mile and a half 
 
20 
 
 ;i\\;iv, whi'iv In* had gone to obtain a comfortable rest for 
 the night. Benham, by persistent urging, induced Broder- 
 ick's polite and accommodating friends to have him aroused 
 from his sleep, for the purpose of coming to the city on busi 
 ness of urgent importance. Broderick was accordingly in 
 formed of the necessity of his immediate appearance at the 
 place appointed, and came over the hills to the city. On 
 his way down Jackson Street, near Stockton Street, he was 
 met by Benham, who delivered to him Terry's challenge. 
 Broderick soon reached the hotel and there found his friends 
 waiting his coming. He was vexed and annoyed in that they 
 had allowed him to be disturbed and broken of his rest, of 
 which he was sadly in need. By his letter accepting the 
 challenge, Broderick stated the hour when it was received 
 by him to be one o'clock in the morning. 
 
 The challenge having been given and accepted, a time and 
 place were appointed for the hostile meeting. The 12th of 
 September was the day named. The place designated was 
 in San Mateo County, near the boundary line between that 
 county and San Francisco, not far from Laguna de Merced. 
 The principals, with their seconds, surgeons, and friends, were 
 on the ground at an early hour in the morning. The Chief 
 of Police of San Francisco, armed with -a warrant, duly en 
 dorsed by a Magistrate of San Mateo, appeared in due time 
 and placed the principals under arrest. They appeared be 
 fore the Police Court on the same day, and, being discharged, 
 arranged for a meeting on the following day. They met 
 early in the morning on the 13th of the same month, at a 
 spot near the place of their meeting the day before. The 
 respective principals' were accompanied by their seconds, 
 surgeons, and friends, and others curious to witness the con 
 flict, amounting in all to about seventy. 
 
 Terry's seconds were Calhoun Benham, Thomas Hayes, 
 and Samuel H. Brooks. Broderick's seconds were Joseph 
 C. McKibben, David D. Colton, and Leonidas Haskell. Terry 
 and his seconds brought with them the " Jo Beard pistols," 
 
21 
 
 which at that time were called the " Aylette pistols." At 
 the same time, there appeared on the ground a gunsmith 
 of San Francisco, with a pair of duelling pistols, his own 
 property. 
 
 The gunsmith had been employed, by the mutual agree 
 ment of the parties, as armorer for the occasion. Mr. 
 O'Meara and also Mr. Samuel H. Brooks, in his account of 
 the duel, recently published in a San Francisco newspaper, 
 speak of "Natchez," whose real name was Andrew J. Taylor, 
 as the armorer who was on the ground of the hostile meet 
 ing. In this they are both in error. The armorer's name 
 was Bernard Legardo. At that time Natchez had been 
 dead nearly a year. 
 
 It is not true, as Mr. O'Meara says, that Broderick's sec 
 onds brought with them a pair of duelling pistols. They had 
 agreed with Terry's seconds upon the armorer, and they 
 relied upon him for suitable duelling pistols. 
 
 In the preliminary arrangements of the parties, they cast 
 lots for the choice of pistols. The choice fell to the side of 
 Terry, who chose the " Aylette pistols," and his seconds 
 selected the one of the pair which they desired for his use, 
 and handed the other to the seconds of Broderick. The 
 armorer, Legardo, examined them and pronounced them in 
 good order, except that they were too light and delicate on 
 the triggers, of which fact he informed all the seconds, and 
 told one of the seconds of Terry that the one for Broderick 
 was lighter than the other. The armorer so testified at the 
 Coroner's inquest upon the dead body of Mr. Broderick, 
 and he further testified that the pistol for Broderick's use 
 was so delicate that it would explode by a sudden jar or 
 jerk. The armorer asked McKibben why he did not force 
 on his principal his (the armorer's) pistols, to which McKib 
 ben replied that Terry had won the choice of weapons. The 
 armorer then loaded the pistol to be used by Broderick, 
 and Mr. Brooks loaded the one selected for Terry, which 
 was delivered to him, and the one for Broderick was deliv- 
 
22 
 
 ered to him. who, upon receiving it, anxiously examined it, 
 turning it about, scrutinizing it and measuring its stock with 
 his hand. 
 
 In Mr. Oscar T. Shuck's sketch of David S. Terry, in the 
 " Bench and Bar in California," he gives the statement of an 
 eye-witness to the bloody affair, written only a short time 
 thereafter. This eye-witness said : " Mr. Broderick seemed 
 to know the importance of the issue, and seemed nerved to 
 meet it. Up to the time the pistol was handed him, he 
 appeared the cooler and more collected of the two. But 
 after examining the pistol he seemed to become uneasy. He 
 betrayed nothing like lack of courage, but in measuring the 
 stock of the pistol with the conformation of his hand, he 
 presented to the observer an unsatisfied appearance. This 
 was shown by more than one movement." And the same wit 
 ness said : " All agreed that his personal bravery was patent. 
 There was no weakening, but there was an anxious solicitude 
 in his deportment that placed him at a great disadvantage." 
 Even after the words, "Gentlemen, are you ready? "were 
 pronounced, and Terry had responded, " Keady," Broderick 
 spent several seconds in examining the stock of his pistol, 
 which did not seem to fit his hand, and then he answered, 
 " Ready," with a nod to his second, General Colton, who had 
 announced in the beginning, "Gentlemen, are you ready? " 
 and then followed the words, " Fire one two," in the 
 measured strokes of the cathedral clock. Broderick fired 
 first, as the word " one " was pronounced. Terry's shot 
 followed at the point of time the word " two " was com 
 menced utterance. Broderick's shot was spent in the ground 
 some four or five yards in advance of him, in a direct line 
 between him and his adversary. Terry's shot took effect in 
 Broderick's right breast, producing a mortal wound, from 
 which he died three days afterwards. 
 
 Upon receiving the pistol selected for him and loaded for 
 use by his friend Brooks, Terry seemed composed, resting 
 it upon his left hand as he held it with the other. He ex- 
 
23 
 
 hibited no concern as to its stock, formation, or shooting 
 qualities. Until it was definitively settled that he had 
 secured for his use the pistol of stronger trigger, the same 
 witness said, " he seemed agitated, and measured the ground 
 in his direction with an uneasy and anxious tread." But 
 with his chosen pistol in hand, and the extremely delicate 
 and dangerous one in the hands of his opponent, he took 
 his position with firmness and composure, watching every 
 movement and expression of his adversary. 
 
 In Mr. Brooks's account of the duel, he speaks of the 
 appearance of the antagonists, after they had taken their re 
 spective positions, as follows : " At that time Terry appeared 
 very cool, but Broderick showed signs of nervousness. When 
 Colton said, ' Are you ready ? ' Terry replied promptly and 
 clearly, ' Ready.' Broderick delayed a few moments, while 
 he raised and lowered his pistol arm, seemingly as if it was 
 cramped. Then he answered, ' Beady.' " This statement 
 corroborates the accounts of others as to the character of 
 the weapons, and Broderick's inability to suit his hand to 
 the pistol which he was to use. 
 
 From the beginning of the correspondence until Broderick 
 fell mortally wounded, the conduct of the Terry party was 
 distinguished by an intensely earnest and fiercely aggres 
 sive spirit, which showed them bent on winning the fight, at 
 all hazards. The deportment of Terry's seconds on the 
 ground was determined, bold, and confident, which was in 
 marked contrast with the respectful and deferential deport 
 ment of Broderick's friends, in the presence of their adver 
 saries. 
 
 When the respective principals had taken their positions, 
 as yet unarmed, they were each subjected to the* customary 
 examination of their persons for concealed armor. McKib- 
 ben's office was to examine Terry, and that of Benham was to 
 examine Broderick. Each of these seconds proceeded to 
 the examination. McKibben approached Terry in a gentle 
 and respectful manner, pressed the back of his hand against 
 
24 
 
 thelatter's breast, and then fell back with a courtly bow and a 
 wave of his hand. At the same time, Benham was manipu 
 lating and searching Broderick up and down his person, as 
 if he verily believed he had upon him an impenetrable coat 
 of mail. Broderick was greatly disturbed by Benham's con 
 duct, and indignantly said to a friend near him that Benham 
 had treated him as an officer with a search warrant would 
 search a thief for stolen property. The contrast between 
 the conduct of McKibbeu and that of Benham was so marked 
 as to attract the notice of those present. Broderick's friends 
 felt indignant as they saw him thus openly insulted, and 
 those of them still living well remember it to this day. The 
 examination of Broderick's person being finished, Benham 
 stepped to the position of his principal and, covering the 
 side of his mouth with his hand, whispered in Terry's ear, 
 which the latter seemingly acknowledged with an approving 
 smile. 
 
 Some time after all this, Benham acknowledged to a friend 
 of Broderick, who took exception to his conduct and mode 
 of examination, that it was not courteous, but excused himself 
 on the ground that his principal's life was in his keeping, 
 and he was bound to do whatever was necessary to protect 
 him. 
 
 It cannot be reasonably claimed that there could be any 
 advantage on the side of Terry in that he had the choice of 
 pistols, provided they were ordinary duelling pistols and in 
 all respects alike, and equally unknown to both parties. 
 
 It is said by those who have seen these Aylette pistols, 
 that in stock or breech construction they are unlike ordinary 
 duelling pistols, and the manner in which Broderick scruti 
 nized and handled the one given him, and his efforts to fit 
 his hand to it, was evidence that he was wholly unacquainted 
 with it. On the other hand, the manner of Terry in respect 
 to the pistol provided for his service, and his quiet uncon 
 cern as to it and its shooting qualities, was evidence that he 
 was acquainted with both of them. 
 
25 
 
 The facts and circumstances already detailed, together 
 with others to follow, establish to a moral certainty Terry's 
 familiar knowledge of the weapons selected for the purpose 
 of the duel, and also Broderick's entire ignorance respecting 
 them, until the one provided for him was placed in his 
 hands. 
 
 It is susceptible of proof that, only a short time before 
 the Terry-Broderick duel was fought, Terry and Dr. Aylette 
 repaired to the place of a farmer in San Joaquin County, 
 where they practised shooting at a mark with the pistols in 
 question. 
 
 Charles C. Knox, for many years a business man in Sacra 
 mento, states that Terry had in his possession the same pistols 
 while a Justice of the Supreme Court, at the state capitol, 
 and he further says that a few days before the Terry-Brod 
 erick duel, he was at Haywards, in Alameda County, and 
 while there the stage coach arrived on its way from Stockton 
 to Oakland, with Terry, Dr. Ash, and Dr. Aylette as pas 
 sengers. At Haywards they were met by a large number 
 of their friends, who had come in several carriages from 
 Oakland, to whom Terry and his travelling companions exhib 
 ited the Aylette pistols, .and then they were given in charge 
 of some one or more of their Oakland friends. Mr. Knox 
 says Mr. Ha} r ward, the landlord of the place bearing his 
 name, asked him : " What is up that brings together such a 
 lot of Chivs ? " 
 
 Dr. Washington M. Ryer, a practising physician at Stock 
 ton in early times, says Terry was in the habit of practising 
 with the Aylette pistols at his place in Stockton, in 1857. 
 
 Terry's friend, Mr. O'Meara, states that Terry, " in prepar 
 ing for the affair, procured at Stockton the duelling pistols 
 owned by Jo Beard, ex- Clerk of the Supreme Court, then in 
 the possession of Dr. Dan Aylette," with which he made 
 " two shots, hitting each time below the target. He tried 
 them no more." Here Mr. O'Meara admits that Terry prac 
 tised with the pistols, but limits his practice to two shots no 
 
more. How he became so exactly informed be does not 
 explain. He speaks with the positive directness of one who 
 knows, as the Fidus Achates of Judge Terry in all bis wan 
 derings his watchful attendant in all his secluded retreats. 
 
 Opposed to this array of facts and circumstances is the 
 statement of Mr. Brooks, in his account of the Terry-Brod- 
 erick duel, in which he says : " The pistols selected were of 
 the duelling pattern and belonged to Dr. Aylette. Terry 
 was no better acquainted with them than was Broderick." 
 How Mr. Brooks is able to state so positively that Terry 
 was no better acquainted with them than was Broderick, it 
 is not easy to understand. He states what it is impossible 
 for him to know. It is certain that the testimony of wit 
 nesses to facts which they know, is of more value than the 
 statement of one who merely denies, without knowledge of 
 the matter of which he speaks. 
 
 The evidence already produced more than tends to show 
 that Terry was well acquainted with the Aylette pistols, by 
 frequent use of them before they were brought into requi 
 sition on the field of the conflict. Upon this point it 
 may be said the evidence is substantially conclusive. 
 
 From what the gunsmith testified before the Coroner's 
 jury, there is no doubt respecting the dangerous character 
 of the weapons, and especially of the one appointed to the 
 lot of Broderick. 
 
 This account of the gunsmith was confirmed by what Mr. 
 Broderick said on his dying bed, as appears further on. 
 
 Mr. O'Meara says the pistols in question had been used, 
 before the Terry-Broderick duel, in " several affairs of 
 honor ; " that they " were so exactly alike in every respect, 
 that no difference had ever been discovered in their shoot 
 ing qualities. They had hair-triggers, evenly and equally 
 adjusted." The phrase " their shooting qualities " is ambig 
 uous. That their hair-triggers were evenly and equally 
 adjusted is not sustained by the established facts. It is 
 
quite certain they were not evenly and equally adjusted on 
 the morning when used by the two principals. 
 
 The next day after the duel transpired, the pistol which 
 fell to the lot of Broderick came into the possession of the 
 Captain of the Detective force of the police department of 
 San Francisco, who experimented with it for the purpose of 
 testing its alleged trigger infirmity. By a simple experiment, 
 he demonstrated its extremely dangerous character in the 
 hands of any one unaware of its eccentricity. With the 
 hammer of the lock set, he caused it to spring by blowing 
 vigorously from his mouth against the trigger. The success 
 of the experiment was known at the time, and can now be 
 proved by the Captain himself, who is still in the possession 
 and enjoyment of a strong and retentive memory. 
 
 The peculiar and dangerous qualities of the respective 
 weapons had been known for several years before, by those 
 acquainted with them. 
 
 A few years before his death, Jo Beard, who at one time 
 owned these pistols, told his friend Frederick H. Water 
 man, now residing in San Francisco, that there was some 
 thing peculiar about these pistols that they were not alike 
 that one of them was tricky, but the other was a lucky 
 pistol that always killed. Jo Beard was a personal friend 
 of Terry, in full sympathy with his pro-slavery views. 
 
 The same pistols were used in the duel between Dr. Wash 
 ington M. Kyer and Dr. George Langdon, which occurred 
 at Stockton, in 1857. Dr. Langdon, the challenged party, 
 chose the Aylette pistols for the conflict. Each took one of 
 them for the purpose of preparing in advance for the duel. 
 Dr. Langdon selected for his use the weapon of stronger 
 trigger. Dr. Kyer was then ignorant of the difference 
 between them. In practising with the one that came to his 
 hands he discovered its tricky character, but, with all his 
 care in guarding against its eccentric characteristics, he was 
 unable to fully overcome it. Afterwards, on the field, he said 
 that, with all his caution, he was not able to bring his pistol 
 
to a horizontal position before it became discharged. At the 
 third round he succeeded in raising it as high as the knee 
 of his adversary, in which his third shot took effect and so 
 ended that duel. Dr. Ryer says that during the exchange 
 of shots, the bullets from the pistol of Dr. Langdon whizzed 
 unpleasantly past his ear, thus showing that the latter's 
 pistol was not afflicted with the infirmity peculiar to his 
 own. 
 
 Dr. Langdon was one of what was known at that day as 
 the " Stockton Gang," at the head of which stood Terry as 
 its acknowledged leader. 
 
 It is a significant fact that, in the cases in which the Ay- 
 lette pistols were called into requisition, the one of stronger 
 trigger was always found in the hands of the Terry school 
 of duellists. Terry secured it in the duel which proved so 
 fatal to Broderick, and Dr. Langdon secured it in the duel 
 with Dr. Ryer. 
 
 Elliot J. Moore, for the last forty years a resident of San 
 Francisco, a lawyer of highly reputable standing, and in early 
 times a State Senator of admittted intelligence and integrity, 
 was an intimate friend of Broderick, and was with him when 
 the duel took place. He remembers the incidents of that 
 bloody affair with a vividness which the lapse of time can 
 never efface. He says that when the seconds of the respec 
 tive principals, and others with them, were huddled together 
 selecting pistols, he and Broderick were together some dis 
 tance away. When Broderick became apprised of th^e fact 
 that Terry's seconds had brought to the ground a pair of 
 duelling pistols, and that the seconds of the two principals 
 were then engaged in casting lots for the choice of weapons, 
 he seemed uneasy and expressed himself as not being able 
 to understand how it was that the armorer, selected by 
 mutual consent of the parties, and then standing apart, was 
 not consulted but seemed to be entirely ignored. Broderick 
 had supposed the armorer was to provide the weapons for 
 the occasion. He complained of the inefficiency of his 
 
29 
 
 seconds, who, he had become convinced, were not the 
 equals of the seconds of his adversary. He spoke of them 
 as children, and expressed apprehensions lest they might 
 unwittingly "trade away his life." 
 
 It is evident that Broderick was not aware of Terry's ac 
 quaintance by practice with the pistols prior to the duel. 
 The outspoken suspicions on the subject were withheld from 
 him when on his dying bed. His experience with the weapon 
 placed in his hands was to him a surprise and disappointment; 
 for, while conscious that he could not recover, he told his 
 friend Moore that he did not touch the trigger of the pistol 
 as he raised it, but that the sudden movement in raising it 
 caused it to explode before it .was brought to a level. 
 
 Jo Beard's confession, the gunsmith's testimony, Dr. 
 Eyer's statement, Broderick's dying declaration, and the 
 Detective Captain's experiment, well establish the anomalous 
 trigger qualities of the weapons, especially as to the one 
 assigned to Broderick. In addition to this direct proof are 
 the circumstances of the production and selection by Terry 
 and his friends of their favorite and cherished weapons, and 
 their extreme care to secure the safer one for his use. 
 
 Terry's friend, Mr. O'Meara, states the fact to be that the 
 respective parties mutually agreed upon the employment 
 of the gunsmith as armorer for the Terry-Broderick 
 duel. Of this fact there seems no reason for doubt. 
 But on the ground, the armorer was required to stand aside, 
 except that he was allowed to examine the pistols chosen, 
 and to load the one handed over by Terry's seconds for 
 Broderick's use. 
 
 Col. William W. Gift was a Democrat, reared in Tennessee 
 under the immediate influence of General Andrew Jackson. 
 He was widely known in California for his peculiar and 
 forcible modes of expressing his opinions. Immediately 
 after Broderick was shot down, he gave vent to his indigna 
 tion, and denounced in strong language the management of 
 the Terry party in their introduction and selection of the 
 
30 
 
 pistols in question for the purposes of the duel. He declared 
 that Terry had told him that he himself owned the pistols. 
 Col. Gift was a believer in the Code, but regarded it as a 
 system which required fair and equal dealing between 
 parties engaged in " affairs of honor." 
 
 The facts and circumstances of the choosing of the Aylette 
 pistols, and the selecting of the safer one for Terry and the 
 dangerous one for Broderick, as the same became known, 
 caused it to be suspected and believed by the people that 
 Broderick had fallen the victim of a foul conspiracy that 
 a tricky pistol had been placed in his grasp, untutored to its 
 eccentricity, in order to make sure of his discomfiture in an 
 unequal wager of battle. 
 
 Indicative of the general suspicions, the following inquiries 
 were publicly made, which are quoted as showing the gen 
 eral belief that then prevailed. 
 
 " Why was the duel fought with Judge Terry's pistols ? " 
 
 ".Did Broderick or his seconds know they were the 
 property of Judge Terry ? " 
 
 " Was either of the pistols so arranged as to go off with 
 the lesser jar or shake without touching the trigger ? If so, 
 was either Mr. Broderick or his seconds aware of it ? " 
 
 "By whom were the pistols selected, or were they fur 
 nished by the armorer as his property ? " 
 
 "Did not Judge Terry practise with these pistols within 
 forty-eight hours of the time of Mr. Broderick's being shot ? " 
 
 These inquiries were made in the " Alta," followed by a 
 suggestion in the nature of a request, in these words : " Direct 
 answers to these questions by the proper parties will prove 
 what are now said to be the facts, false or true." At this 
 time Mr. Broderick was no more. 
 
 Terry and his friends did not deign to answer these ques 
 tions. McKibben and -Colton had already said, in noticing 
 an article in the San Francisco " Herald " to the effect that one 
 of the weapons was easier on the trigger than the other: 
 " Had we believed there was any unfairness, there could 
 
31 
 
 have been DO meeting." But the armorer testified at the 
 Coroner's inquest that the pistols were extremely light and 
 delicate on the trigger, and that he so informed all the sec 
 onds when he examined them on the ground, and that he 
 told one of Terry's seconds that the one designed for Brod- 
 erick was lighter than the other. 
 
 The belief which so greatly obtained immediately after 
 Broderick was shot, that he had fallen the victim of foul 
 play, has remained with those best informed on the subject 
 even to the present time, and on all occasions when the op 
 portunity occurred to give expression to such belief, it has 
 been manifested in a pronounced manner. An instance of 
 the kind occurred at the presidential election in 1880, when 
 Terry was a Democratic candidate for presidential elector. 
 At the election in November of that year, all the Democratic 
 candidates were chosen except Terry, who fell behind and 
 was defeated, by a respectable majority, by Henry Edgerton, 
 one of the Kepublican nominees for elector, who, in the 
 state electoral college, cast his vote for Garfield and Arthur. 
 Edgerton was an anti-Lecompton Democrat in 1859, and 
 was well known among the friends of Broderick to have been 
 in sympathy with him. The friends of Broderick remain 
 ing in the Democratic party, remembering him as their leader 
 and how he came to his untimely end, would not tolerate 
 Terry as worthy to express, as an elector, their choice for 
 the offices of President and Vice-President of the United 
 States. 
 
 It appears beyond question that Terry possessed a great 
 and undue advantage over Broderick in respect to the 
 weapons used. He had had long and familiar acquaintance 
 with them, while, as to their peculiar qualities, Broderick 
 was an entire stranger. 
 
 It has been claimed by some that Broderick was more 
 expert in the use of duelling pistols than was Terry. If 
 this be true, the result of the hostile meeting, so fatal to 
 
32 
 
 Broderick, must be accounted for on the hypothesis of 
 some undue advantage on the side of Terry. 
 
 The claim that Broderick was more skilful and expert in 
 the use of duelling pistols than was Terry, cannot be affirmed 
 by those acquainted with the two men. Terry was known 
 to be familiar with, and ready in the use of, such weapons. 
 Besides this, the training of his life had made him familiar 
 with duelling weapons. The advantages of an experience 
 in the use of arms were clearly on his side. 
 
 The environments of the early lives of the respective 
 parties were entirely different. The one had spent his 
 youth and early manhood in New York, where the use of 
 pistols in duelling conflicts was unknown. The other had 
 spent his early life in Texas, famous for scenes of violence 
 and blood. His early opportunities gave him a general ex 
 perience in affairs of violence which had not been afforded 
 to Broderick. 
 
 To this comparative difference Col. Baker, in his eloquent 
 oration at Broderick's funeral, made allusion. He said : 
 " The Code of Honor is a delusion and a snare. It palters 
 with the hope of a true courage, and binds it at the feet of 
 crafty and cruel skill. It surrounds its victim with the 
 pomp and grace of a procession, but leaves him bleeding on 
 the altar. It substitutes cold and deliberate preparation for 
 courageous and manly impulse, and arms the one to disarm 
 the other. It may prevent fraud among practised duellists, 
 who should be forever without its pale, but it makes the 
 mere ' trick of the weapon ' superior to the noblest cause 
 and truest courage. Its pretence of equality is a lie ; it is 
 equal in till the form, it is unequal in all the substance. The 
 habitude of arms the early training the frontier life the 
 border war the sectional custom the life of leisure, all 
 these are advantages which no negotiations can neutralize, 
 and which no courage can overcome." 
 
 Here it is to be noticed that the orator's mind was im 
 pressed with the prevailing suspicions and beliefs, as he 
 
33 
 
 spoke of " cruel and crafty skill " of the " substitution of 
 cold and deliberate preparation for courageous and manly 
 impulse " and the " ' mere trick of the weapon ' superior to 
 the noblest cause and truest courage." 
 
 The usual answer given to the suggestion that Broderick 
 was overreached and defrauded in respect to the weapons 
 selected for the duel has been, that his seconds must be 
 presumed to have guarded against any undue advantage in 
 favor of his adversary. This, at most, is only a presumption 
 which is disputable. The facts and circumstances seem to 
 overthrow any such presumption. They ought to have 
 guarded against any such advantage. But their failure to 
 do so cannot be tolerated as a justification or excuse for 
 bringing on the ground weapons of the dangerous character 
 of the Aylette pistols, with which Terry was familiar, and 
 Broderick wholly ignorant. The selection of those pistols 
 was taking an undue advantage of Broderick, which was 
 intensified by the selection of the stronger one for Terry 
 and the weaker one for Broderick. 
 
 Mr. Broderick was entitled to fair dealing. His seconds 
 ought to have been on the alert, and guarded their principal 
 against the very things which happened so greatly to the 
 advantage of Terry, and to the disadvantage of Broderick, 
 but they failed to do so. Were they overmatched and out 
 done by the seconds of Terry ? It is quite manifest they 
 were. They were inexperienced in matters of the kind, and 
 evidently supposed the affair in hand an " affair of honor." 
 They ought to have been on the alert and attended to what 
 the gunsmith told them as to the dangerous character of the 
 weapons, and thus been able to defeat the strategic circum 
 ventions of their principal's adversaries. This opportunity 
 was lost, and as a consequence all was lost. They probably 
 were without suspicion of Terry's advantage, until it was too 
 late to repair the loss to their principal. 
 
 It has been stated in several of the published accounts of 
 the Terry-Broderick duel, that McKibben snapped one of 
 
34: 
 
 the Aylette pistols with an air of satisfaction ; but this is 
 not supported by the testimony of the living witnesses. If 
 he did, then which of the pistols did he snap with a satis 
 fied air? If he did snap one of them, is it proof that 
 the pistol delivered to Broderick for use was not extremely 
 light, and dangerously set ? The armorer said it was, and so 
 light that it would explode by a sudden jar or jerk ; and Mr. 
 Broderick declared on his dying bed that, without his touch 
 ing the trigger, it did explode as he suddenly raised it. 
 
 In Maj. Ben. C. Truman's account of the duel, it is said, 
 in speaking of the managing friends of the respective prin 
 cipals, " As to the niceties of affairs of honor, the gentle 
 men who assisted Terry were much superior to Broderick's 
 friends ; " and in speaking of their bearing and conduct on 
 the field, it is further said, " The Terry party was cool and 
 collected, as became old hands at the business. Mr. Brod 
 erick's friends were apparently nervous and hesitating." 
 Their nervous and disturbed condition may account for their 
 consenting to the negotiations by which the Aylette pistols 
 were allowed to be introduced for choice, and for their failure, 
 after such pistols were chosen by Terry, to attend to the 
 warning of the gunsmith that they were too light for the 
 purposes of the duel, and also for their failure to discover 
 that the one selected by Terry's seconds for him was the 
 stronger and safer of the two, and that the one handed over 
 for Broderick's use was so light and delicate as to be dis 
 charged by a sudden jar or jerk. 
 
 The evidence as to the dangerous character of the weapons 
 and the more dangerous character of the one used by Brod 
 erick, is the sworn testimony of the gunsmith, Legardo, at 
 the Coroner's inquest, which has never been contradicted. 
 
 The evidence relating to the point under consideration 
 is both direct and circumstantial, and from it the conclu 
 sion follows in logical sequence. 
 
 The great and fatal mistake of Broderick's seconds, was 
 in submitting to a negotiation which opened the door to the 
 
35 
 
 selection of any pistols not provided by the armorer, upon 
 whom the respective parties had mutually agreed for the 
 purpose. The arrangement to that effect operated to set 
 aside the agreement mutually entered into to employ the 
 gunsmith, Legardo, for the office of armorer. The death of 
 Mr. Broderick, it is believed by many, was the consequence 
 of this fatal mistake. 
 
 By persistent asseverations, made in the face of the evi 
 dence to the contrary, the duel has been represented as fair 
 and equal in all respects, and Broderick's seconds have con 
 tributed their full share to so represent it. Perhaps they 
 thought so ; but Broderick's friends have ever, with great 
 unanimity, thought otherwise. 
 
 The personal treatment of Broderick from the beginning to 
 the end by his antagonist and his second, Benham, in arous 
 ing him from his sleep at the house of his friend at the dead 
 hour of the night, and the mode and manner of the exami 
 nation of his person on the field of the conflict, seemed 
 designed to worry and wear him out, and to unnerve and 
 unfit him for the ordeal in prospect. Added to such treat 
 ment, the introduction on the ground of the Aylette pistols, 
 and their selection and distribution for the work in hand, 
 made sure of Broderick's discomfiture and death. 
 
 All the facts and circumstances considered, the following 
 questions are propounded : 
 
 Was there any just or sufficient cause, under the Code, for 
 the challenge by Terry to Broderick ? 
 
 Which of the two was the first to give offence to the other, 
 and which was bound in honor to make apology and repara 
 tion to the other ? 
 
 Were the Aylette pistols proper duelling weapons for the 
 purposes of the Terry-Broderick duel ? 
 
 Were they unsafe #nd dangerous weapons in the hands of 
 a stranger to their peculiar characteristics ? 
 
 Was Terry familiar with them, by actual experience, within 
 a short time before the duel ? 
 
36 
 
 Was Broderick acquainted with them, or was he entirely 
 ignorant respecting their peculiar qualities ? 
 
 Did Terry secure for his use the safer pistol of the two, 
 knowing the character of both ? 
 
 Was the pistol given to Broderick for his use a particu 
 larly dangerous weapon, and were Terry and his aiding 
 friends aware of such fact ? 
 
 Were Terry's friends aware of the facts and circumstances 
 relating to the character of the pistols, and of the difference 
 between them ? 
 
 Were the facts in respect to Terry's acquaintance with 
 and experimental knowledge of the pistols, concealed by him 
 and his friends from Broderick and his friends ? 
 
 Truthful answers to these questions will constitute a true 
 verdict according to the evidence, on which judgment must 
 be pronounced, declaring who was responsible for the un 
 timely death of David C. Broderick who answerable for 
 the deep damnation of his taking off. 
 
 SAN FRANCISCO, , 1890. 
 
ORATION 
 
 OF 
 
 COLONEL EDWARD D. BAKER 
 
 OVEK THE DEAD BODY OF 
 
 DAVID C. BRODERICK, 
 
 A SENATOR OF THE UNITED STATES, 
 
 DELIVERED ON SEPTEMBER 18TH, 1859, 
 
David C. Broderick was shot in a duel on the thirteenth of 
 September, 1859, and died three days thereafter, on the six 
 teenth. The challenging party was David S. Terry, who, five 
 days prior to the meeting, resigned his office as Chief-Justice 
 of California having then but a few weeks to serve. The 
 funeral service was held in the plaza of San Francisco, on 
 Sunday the eighteenth, when Colonel Baker, standing by the 
 open coffin, delivered the following address. It was heard by 
 a very large concourse of people and produced a great effect. 
 It is now reprinted in the hope of preserving a worthy memo 
 rial of two eminent persons Senator Broderick and Colonel 
 Edward D. Baker, some time Senator from Oregon, and an 
 early victim of the causeless Rebellion. 
 
CITIZENS OF CALIFORNIA: A Senator lies dead in our 
 midst. He is wrapped in a bloody shroud, and we, to whom 
 his toils and cares were given, are about to bear him to the 
 place appointed for all the living. It is not fit that such a 
 man should pass to the tomb unheralded ; it is not fit that 
 such a life should steal away unnoticed to its close ; it is 
 not fit that such a death should call forth no rebuke, or be 
 surrounded by no public lamentation. It is this conviction 
 which impels the gathering of this assemblage. We are 
 here of every station and pursuit, of every creed and char 
 acter, each in his capacity of citizen, to swell the mournful 
 tribute which the majesty of the people offers to the unre- 
 plying dead. He lies to-day surrounded by little of funeral 
 pomp. No banners droop above the bier ; no melancholy 
 music floats upon the reluctant air. The hopes of high 
 hearted friends droop like the fading flowers upon his breast, 
 and the struggling sigh compels the tear in eyes that 
 seldom weep. Around him are those who have known him 
 best and loved him longest ; who have shared the triumph 
 and endured the defeat. Near him are the gravest and 
 noblest of the State, possessed by a grief at once earnest 
 and sincere ; while beyond, the masses of the people, whom 
 he loved and for whom his life was given, gather like a 
 thunder-cloud of swelling and indignant grief. In such a 
 presence, fellow-citizens, let us linger for a moment at the 
 portals of the tomb, whose shadowy arches vibrate to the 
 public heart, to speak a few brief words of the man, of his 
 life, and of his death. 
 
 Mr. Broderick was born in the District of Columbia in 
 1819 ; he was of Irish descent and of respectable though 
 obscure parentage ; he had little of early advantages, and 
 never summoned to his aid a complete and finished educa 
 tion. His boyhood as, indeed, his early manhood was 
 passed in the City of New York, and the loss of his father 
 
42 
 
 early stimulated him to the efforts which maintained his 
 surviving mother and brother, and served also to fix and 
 form his character even in his boyhood. His love for his 
 mother was his first and most distinctive trait of character ; 
 and when his brother died an early and sudden death 
 the shock gave a serious and reflective cast to his habits 
 and his thoughts, which marked them to the last hour of 
 his life. 
 
 He was always filled with pride and energy and ambi 
 tion ; his pride was in the manliness and force of his char 
 acter, and no man had more reason. His energy was 
 manifest in the most resolute struggles with poverty and 
 obscurity, and his ambition impelled him to seek a foremost 
 place in the great race for honorable power. Up to the 
 time of his arrival in California, his life had been passed 
 amid events incident to such a character. Fearless, self- 
 reliant, open in his enmities, warm in his friendships, 
 wedded to his opinion, and marching directly to his purpose 
 through and over all opposition, his career was chequered 
 with success and defeat. But even in defeat his energies 
 were strengthened and his character developed. When he 
 reached these shores his keen observation taught him at 
 once that he trod a broad field, and that a higher career 
 was before him. He had no false pride sprung from a 
 people and of a race whose vocation was labor, he toiled 
 with his own hands and sprang at a bound from the work 
 shop to the legislative hall. From that hour there congre 
 gated around him and against him the elements of success 
 and defeat. Strong friendships, bitter enmities, high praise, 
 malignant calumnies ; but he trod with a free and a proud 
 step that onward path which has led him to glory and the 
 grave. 
 
 It would be idle for me at this hour, and in this place, to 
 speak of all that history with unmitigated praise ; it will be 
 idle for his enemies hereafter to deny his claim to noble 
 virtues and high purposes. When, in the Legislature, he 
 
43 
 
 boldly denounced the special legislation which is the curse 
 of a new country, he proved his courage and his rectitude. 
 When he opposed the various and sometimes successful 
 schemes to strike out the salutary provisions of the consti 
 tution which guarded free labor, he was true to all the better 
 instincts of his life. When, prompted by his ambition and 
 the admiration of his friends, he first sought a seat in the 
 Senate of the United States, he sought the highest of all 
 positions by legitimate effort, and failed with honor. It is 
 mv duty to say that, in my judgment, when, at a later period, 
 he sought to anticipate the Senatorial election, he committed 
 an error, which, I think, he lived to regret. It would have 
 been a violation of the true principles of representative gov 
 ernment, which no reason, public or private, could justify, 
 and could never have met the permanent approval of good 
 and wise men. Yet, while I say this over his bier, let me 
 remind you of the temptation to such an error, of the plans 
 and the reasons which prompted it, of the many good pur 
 poses it was intended to effect. And if ambition, "the last 
 infirmity of noble minds," led him for a moment from the 
 better path, let me remind you how nobly he retained it. UBRAR/ 
 
 It is impossible to speak, within the limits of this address, 
 of the events of that session of the Legislature at which he 
 was elected to the Senate of the United States ; but some 
 things should not be passed in silence here. The contest 
 between himself and the present Senator had been bitter 
 and personal. He had triumphed ; he had been wonderfully 
 sustained by his friends, and stood confessedly " the first in 
 honor and the first in place." He yielded to an appeal made 
 to his magnanimity by his foe. If he judged unwisely, he 
 has paid the forfeit well. Never in the history of political * 
 warfare has any man been so pursued. Never has malignity 
 so exhausted itself. Fellow-citizens, the man who lies before 
 you was your Senator. From the moment of his election, 
 his character has been maligned, his motives attacked, his 
 courage impeached, his patriotism assailed. It has been a 
 
4A 
 
 system tending to one end, and the end is here. What was 
 bis crime ? Keview his history consider his public acts 
 weigh his private character and before the grave encloses 
 him forever, judge between him and his enemies. As a man 
 to be judged in his private relations, who was his superior ? 
 It was his boast and amid the general license of a new 
 country it was a proud one that his most scrutinizing enemy 
 could fix no single act of immorality upon him. Temperate, 
 decorous, self-restrained, he had passed through all the 
 excitements of California unstained. No man could charge 
 him with broken faith or violated trust. Of habits simple 
 and inexpensive, he had no lust of gain. He overreached 
 no man's weakness in a bargain, and withheld no man his 
 just due. Never, in the history of the State, has there been 
 a citizen who has borne public relations more stainless in 
 all respects than he. But it is not by this standard he is to 
 be judged. He was a public man, and his memory demands 
 a public judgment. What was his public crime? The 
 answer is in his own words : " They have killed me because 
 I was opposed to the extension of slavery and a corrupt Ad 
 ministration." Fellow-citizens, they are remarkable words, 
 uttered at a very remarkable moment ; they involve the 
 history of his Senatorial career, and of its sad and bloody 
 termination. When Mr. Broderick entered the Senate he 
 had been elected at the beginning of a Presidential term, as 
 a friend of the President-elect, having undoubtedly been one 
 of his most influential supporters. There were unquestion 
 ably some things in the exercise of the appointing power 
 which he could have wished otherwise ; but he had every 
 reason with the Administration which could be supposed to 
 weigh with a man in his position. He had heartily main 
 tained the doctrine of popular sovereignty as set forth in 
 the Cincinnati platform, and he never wavered in its support 
 till the day of his death. But when in his judgment the 
 President betrayed his obligations to the party and the 
 country when, in the whole series of acts in relation to 
 
45 
 
 Kansas, he proved recreant to his pledges and instructions ; 
 when the whole power of the Administration was brought to 
 bear upon the legislative branch of the Government in order 
 to force slavery upon an unwilling people, then in the high 
 performance of his .duty as a Senator, he rebuked the Ad 
 ministration by his voice and his vote, and stood by his 
 principles. It is true he adopted no half-way measures. 
 He threw the whole weight of his character into the ranks 
 of the opposition ; he endeavored to rouse the people to an 
 indignant sense of the iniquitous tyranny of the Federal 
 power, and kindling with the contest, became its fiercest and 
 firmest opponent. 
 
 Fellow-citizens, whatever may have been your political 
 predilections, it is impossible to repress your admiration as 
 you review the conduct of the man who lies hushed in death 
 before you. You read in his history a glorious imitation of 
 the great popular leaders who opposed the despotic influ 
 ence of power in other lands and in our own. When John 
 Hampden died at Chalgrove Field he sealed his devotion to 
 popular liberty with his blood. The eloquence of Fox found 
 the sources of its inspiration in his love of the people. 
 When Senators conspired against Tiberius Gracchus and 
 the Tribune of the people fell beneath their daggers, it was 
 power that prompted the crime and demanded the sacrifice. 
 Who can doubt if your Senator had surrendered his free 
 thoughts and bent in submission to the rule of the Admin 
 istration who can doubt that instead of resting on a bloody 
 bier, he would this day have been reposing in the inglorious 
 felicitude of Presidential sunshine ? 
 
 Fellow-citizens, let no man suppose that the death of the 
 eminent citizen of whom I speak was caused by any other 
 reason than that to which his own words assign it. It had 
 been long foreshadowed. It was predicted by his friends ; 
 it was threatened by his enemies ; it was the consequence of 
 intense political hatred. His death was a political necessity, 
 poorly veiled under the guise of a private quarrel. Here, in 
 
4:6 
 
 his own State, among those who witnessed the late canvass, 
 who knew the contending leaders among those who knew 
 the antagonists on the bloody ground, here the public con 
 viction is so thoroughly settled that nothing need be said. 
 Tested by the correspondence itself, there was no cause in 
 morals, in honor, in taste, by any code by the custom of any 
 civilized land, there was no cause for blood. Let me repeat the 
 story ; it is as brief as it is fatal : A judge of the Supreme 
 Court descends into a political convention it is just, however, 
 to say that the occasion was to return thanks to his friends 
 for an unsuccessful support ; in a speech bitter and personal 
 he stigmatized Senator Broderick and all his friends in 
 words of contemptuous insult. When Mr. Broderick saw 
 that speech he retorted, saying, in substance, that he had 
 heretofore spoken of Judge Terry as an honest man, but 
 that he now took it back. When inquired of, he admitted 
 that he had so said, and connected his words with Judge 
 Terry's speech as prompting them. So far as Judge Terry 
 personally was concerned, this was the cause of mortal com 
 bat ; there was no other. In the contest which has just 
 terminated in the State, Mr. Broderick had taken a leading 
 part ; he had been engaged in controversies very personal 
 in their nature, because the subjects of public discussion 
 had involved the character and conduct of many public and 
 distinguished men. But Judge Terry was not one of these. 
 He was no contestant ; his conduct was not in issue ; he 
 had been mentioned but once incidentally in reply to his 
 own attack and, except as it might be found in his peculiar 
 traits or peculiar fitness, there was no reason to suppose 
 that he would seek any man's blood. When William of 
 Nassau, the deliverer of Holland, died in the presence of his 
 wife and children, the hand that struck the blow was not 
 nerved by private vengeance. When the fourth Henry 
 passed unharmed amid the dangers of the field of Ivry, to 
 perish in the streets of his capital by the hand of a fanatic, 
 he did not seek to avenge a private grief. An exaggerated 
 
47 
 
 sense of personal honor a weak mind with choleric pas 
 sions, intense sectional prejudice, united with great confi 
 dence in the use of arms these sometimes serve to stimulate 
 the instruments which accomplish the deepest and deadliest 
 purpose. 
 
 Fellow-citizens ! one year ago I performed a duty such as 
 I perform to-day over the remains of Senator Ferguson, 
 who died as Broderick died, tangled in the meshes of the 
 code of honor. To-day there is another and more eminent 
 sacrifice. To-day I renew my protest ; to-day I utter yours. 
 The code of honor is a delusion and a snare ; it palters with 
 the hope of a true courage, and binds it at the feet of crafty 
 and cruel skill. It surrounds its victim with the pomp and 
 grace of the procession, but leaves him bleeding on the 
 altar. It substitutes cold and deliberate preparation for 
 courageous and manly impulse, and arms the one to disarm 
 the other ; it may prevent fraud between practised duellists 
 who should be forever without its pale, but it makes the 
 mere " trick of the weapon " superior to the noblest cause 
 and the truest courage. Its pretence of equality is a lie ; it 
 is equal in all the form, it is unequal in all the substance the 
 habitude of arms, the early training, the frontier life, the 
 border war, the sectional custom, the life of leisure all 
 these are advantages which no negotiations can neutralize, 
 and which no courage can overcome. But, fellow-citizens, 
 the protest is not only spoken in your words and mine it 
 is written in indelible characters ; it is written in the blood of 
 Gilbert, in the blood of Ferguson, in the blood of Broderick, 
 and the inscription will not altogether fade. With the ad 
 ministration of the code in this particular case I am not 
 here to deal. Amid passionate grief let us strive to be just. 
 I give no currency to rumors of which personally I know 
 nothing ; there are other tribunals to which they may well 
 be referred, and this is not one of them ; but I am here to 
 say that whatever in the code of honor or out of it demands 
 or allows a deadly combat, where there is not in all things 
 
48 
 
 entire and certain equality, is a prostitution of the name, is 
 an evasion of the substance, and is a shield blazoned with 
 the name of chivalry to cover the malignity of murder. 
 
 And now the shadows turn toward the East, and we 
 prepare to bear these poor remains to their silent resting- 
 place. Let us not seek to repress the generous pride 
 which prompts a recital of noble deeds and manly vir 
 tues. He rose unaided and alone ; he began his career 
 without family or fortune, in the face of difficulties ; he 
 inherited poverty and obscurity ; he died a Senator in 
 Congress, having written his name in the history of 
 the great struggle for the rights of the people against the 
 despotism of organization and the corruption of power. He 
 leaves in the hearts of his friends the tenderest and the 
 proudest recollections. He was honest, faithful, earnest, 
 sincere, generous, and brave ; he felt in all the great crises 
 of his life that he was a leader in the ranks, and for the rights 
 of the masses of men, and he could not falter. When he re 
 turned from that fatal field, while the dark wing of the 
 archangel of death was casting its shadows upon his brow, 
 his greatest anxiety was as to the performance of his duty. 
 He felt that all his strength and all his life belonged to the 
 cause to which he had devoted them. " Baker," said he and 
 to me they were his last words " Baker, when I was struck, 
 I tried to stand firm, but the blow blinded me, and I could 
 not." I trust that it is no shame to my manhood that tears 
 blinded me as he said it. Of his last hours I have no heart 
 to speak. He was the last of his race ; there was no kindred 
 hand to smooth his couch, or wipe the death-damps from his 
 brow ; but around that dying bed strong men, the friends of 
 early manhood, the devoted adherents of later life, bowed in 
 irrepressible grief, and lifted up their voices and wept. 
 
 But, fellow-citizens, the voice of lamentation is not uttered 
 by private friendship alone the blow that struck his manly 
 breast has touched the heart of a people, and as the sad 
 tidings spread a general gloom prevails. Who now can 
 
49 
 
 speak for California ? Who can be the interpreter of the 
 wants of the Pacific coast ? Who can appeal to the com 
 munities of the Atlantic, who love free labor ? Who can 
 speak for the masses of men, with a passionate love for the 
 classes from whence he sprung ? Who can defy the blan 
 dishments of power, the indolence of office, the corruption 
 of administrations ? What hopes are buried with him in 
 the grave ? 
 
 "Ah ! who that gallant spirit shall resume, 
 Leap from Eurotas' bank and call us from the tomb ? " 
 
 But the last word must be spoken, and the imperious man 
 date of death must be fulfilled. Thus, O brave heart, we 
 bear thee to thy rest ! Thus, surrounded by tens of thou 
 sands, we leave thee to the equal grave. As in life no other 
 voice among us so rang its trumpet-blast upon the ear of 
 freemen, so in death its echoes will reverberate amid our 
 mountains and valleys, until truth and valor cease to appeal 
 to the human heart. 
 
 " His love of truth too warm, too strong, 
 
 For hope or fear to chain or chill, 
 His hate of tyranny and wrong 
 
 Burn in the breasts he kindled still." 
 
 Good friend ! true hero ! hail and farewell.