The Last Legal Gunfight in America: A Duel Between a Senator and a Supreme Court Justice in 1859 that Helped End Slavery

 

        The count begins one...two...

But before the count of three is reached United States Senator from California David C. Broderick’s Belgian made .58 caliber pistol misfires harmlessly into the dirt at his feet.

Standing ten paces away from Broderick is former California State Supreme Court Justice, and one time close personal friend of Broderick’s, David S. Terry.

Despite the mishap Broderick continues to stand tall.  On the count of three Terry doesn’t flinch and instantly pulls the trigger.

Terry has taken aim directly at Broderick’s chest and when he fires the bullet instantly enters the Senator’s lungs.

Weeks later at his trial Terry will claim that he, “only intended to graze him with a flesh wound,” but most who witnessed the duel will claim under oath that Supreme Court Justice Terry shot with intent to kill.

The mortally wounded David C. Broderick is rushed to a waterfront house on San Francisco’s Black Point Beach.  For three days he will linger in and out of consciousness suffering from internal bleeding and bouts of delirium.  In the days leading up to his death Senator Broderick will mutter, over and over again that, “They killed me because I am opposed to the extension of slavery and a corrupt administration.”

David C. Broderick

It is September 13, 1859 and the relationship between the two men, members of the same political party who have known one another for years has soured over differing views on the issue of slavery.  

Terry has accused Broderick and his anti-slavery views of causing a rift in the Democratic Party and thereby preventing him from winning re-election to the Supreme Court bench.  Broderick, in turn, now asserts that pro-slavery democrats, notably Terry himself, have been slandering his name in public, and in the press, and preventing his political career from moving forward.

At one time David C. Broderick when making reference to Justice Terry had referred to him as, “the only honest man on the Supreme bench,” but in the months leading up to the Broderick-Terry duel on the banks of Lake Merced just outside San Francisco, the last “legal” duel fought in the United States, both men have hurled pitiless insults and slanders at one another.

Broderick went so far as to state as recorded in an article entitled “Famous American Duels” written by Cyrus Townsend Brady for Munsey’s Magazine in 1906, “I see that Terry has been abusing me.  I now take back the remark I once made that he is the only honest judge in the Supreme Court.  I was only his friend when he was in need of friends.”

When Terry attempted to be renominated by the Democratic Party for his place on the California Supreme Court, Broderick who believed almost to the point of paranoia that pro-slavery elements within his own party were hell-bent on preventing his political advancement, blocked Terry’s nomination ostensibly because he disagreed with Terry’s position that Kansas should be admitted to the Union as a slave state.

David S. Terry

Incensed, in June of 1859, Terry gave a speech to Democratic Party delegates in Sacramento in which he, quite paradoxically, accused the delegates of blindly following their, “abolitionist slave master Broderick.”

Two days after the speech Broderick heard about the remarks that Terry had made about him in Sacramento through a mutual acquaintance by the name of Mr. D.W. Perley.  Upon hearing what Terry had said about him Broderick accused him of being a, “Scoundrel and an ingrate,” and after Broderick lost his bid for re-election to the United States Senate, a loss he most assuredly blamed on David S. Terry, he wrote a letter to Terry challenging him to a duel of honor.

In the letter dated September 8, 1859, written in Oakland, California, Broderick demanded, “a retraction of your remarks,” referencing the speech that Terry had made about him in Sacramento in June of that year and he had the letter hand delivered to Terry by his own attorney.

For two days attorney’s for the two men shuttled letters back and forth between Oakland and San Francisco working out the minute details of how, when and where the last legal duel of honor in the United States would take place.

At first, the duel was set for the morning of the 12th of September 1859  but when word leaked out regarding where the duel would take place such a large crowd gathered that both Broderick and Terry were promptly arrested by the local sheriff.

However, upon their release both men agreed that the next day the duel would take place.

Eventually a secluded ravine, desolate and several miles outside the city center of San Francisco at that time, on the banks of Lake Merced was agreed upon by both parties as the site for the duel and 9 in the morning was chosen as the time.

Interestingly, though the impending duel made front page news in all the San Francisco newspapers, on the morning of September 13, 1859, for the second time around, the sheriff and the police were nowhere to be found.

Many observers thought that Terry, being the younger, more agile man, and the supposed better shot was the prohibitive favorite.  On the 12th of September 1859 the San Francisco Morning Call reported, “It is generally understood that Justice Terry is a first rate shot but it is doubtful whether he is as unerring with the pistol as Senator Broderick.”

But as Cyrus Townsend reports in the same article from 1906 referenced earlier, “both pistols had hair triggers,” but, “Broderick’s seconds being inexperienced were unaware of the nature of the weapons.”

.58 Caliber Dueling Pistols 

This inexperience on the part of Broderick and his seconds, plus their unfamiliarity with dueling in general, may in the end, have led to the misfire that plagued David C. Broderick and indirectly resulted in his death.  It is quite probable that with dueling having almost entirely fallen out of custom in the United States by 1859 that Broderick may have fired into the ground on purpose and never actually expected his old friend Terry to shoot back with intent to kill.

Apparently, Chief Justice Terry was known for having a hot temper and was no stranger to dueling over questions of honor.  Leading up to the American Civil War it was not unheard of, though becoming less and less common, for southern gentlemen to challenge one another to duels when one side or the other felt insulted, though, unlike in the cause of the Broderick-Terry Duel, most all duels in the United States by the middle of the 1800’s no longer actually took place and were usually resolved through letters of apology and handshakes that ensured a problem could be settled without either gentleman losing face or having to actually fire a weapon.

But in 1859 tempers on all sides over the issue of slavery were running hot, and in the case of David S. Terry, obviously, there was no backing down whatsoever to save face.

At 9:00 in the morning, in a shallow ravine, with 80 spectators looking on, the men flipped a coin to decide on which side each would stand.

Broderick won the toss and chose to stand in the more advantageous position of having his back to the sun.

“Gentlemen,” said Mr. David Colton as the two men took position, “Are you ready?”

Terry answered, “Ready!” almost instantly.  But for several seconds Broderick stuttered and remained silent.  Witnesses reported that he appeared tense and rigid with anxiety.  Finally, Broderick muttered an almost inaudible, “Ready.”

“Ready...One…,” and Broderick’s arm tensed and he unexpectedly pulled the trigger and fired his pistol into the ground.

Terry waited for the count of two and then fired!  His bullet tore a hole in Broderick’s coat and then the Senator’s left leg, followed by his right gave way, and he collapsed to the ground in a heap with a tiny stream of blood oozing from the corner of his mouth.

House where Senator Broderick Died

The death of Senator Broderick caused an uproar in the city of San Francisco.  Citizens of the city simply couldn’t believe that a gentleman, a man of honor, a State Supreme Court Justice no less, in the person of David S. Terry would actually go through with killing an old acquaintance in a duel at ten paces in that day and age.

Senator Broderick’s funeral was held in Portsmouth Square in San Francisco on September 18, 1859 and was attended by upwards of 25,000 people making it the largest public gathering in the history of the state of California up to that point.

Outrage over Broderick’s death in a pointless duel was so great that it completely changed the nature of politics in the state of California.  California, which up to that point had like Kansas been almost evenly split between proponents of abolition and so-called “chivalrists” or southern sympathizers, almost overnight, became firmly anti-slavery and rallied completely behind the Union cause during the American Civil War.

A warrant was issued for Justice Terry’s immediate arrest.

But when two San Francisco detectives arrived on horseback at Terry’s residence to arrest him, he pointed a shotgun out his window and ordered them to, “Halt!”

Terry said that he would not surrender to authorities in San Francisco because he was certain that he would not receive a fair trial in the city and that he feared violence in the form of rioting might ensue if he were taken into custody there.

Eventually, it was agreed that the two detectives would not arrest Terry at his home if he promised to turn himself into authorities in nearby Oakland where he believed he would receive a more fair trial.

The case against Terry was dismissed when the presiding Judge  James Hardy of Marin County California deemed that he could not charge a man with capital murder for having killed someone in an agreed upon duel between two gentlemen where both men were fully aware of the risks that they were taking.

Though, initially, the state’s case against Terry was dismissed, a few months later a grand jury this time in San Mateo County, California, once again tried to indict the former Supreme Court Justice for murder, but by then not only had Terry left the state entirely for the more friendly confines of the American deep south, but this case also was quickly dismissed once objections were raised over trying Terry twice for the same crime.

As a direct result of the Broderick-Terry Duel of 1859 most states passed legislation with enhanced penalties against dueling and ensured that were anyone to be killed as a result of dueling their opponent could be charged with capital murder for having killed them.

Not only did the Broderick-Terry Duel of 1859 lead to making dueling illegal in the United States, but it also helped act as a catalyst for abolishing slavery.  Senator David C. Broderick was portrayed as a martyr to the abolitionist cause and did much to help galvanize northern “free-states” behind the anti-slavery movement in the weeks and months leading up to the Civil War.

Site of the Broderick-Terry Duel

Today, the site of the Broderick-Terry Duel is a registered historical landmark in the state of California and markers have been erected in the form of stone obelisks representing where each man stood on that fateful morning of September 13, 1859 and engaged in the last legal gunfight in the history of the United States of America.