or Tilford, who had surrendered and gone over entirely to the enemy. Both Gwin and Latham made pretentions to oratory, and they both attempted to deny Broderick's charges and to answer him; but what they said, compared to his anathemas, was like puny currents compared to an overwhelming and irresistible torrent of wrath and invective. He made many speeches in different parts of the state, including Placerville, Yreka, Shasta, Quincy, Santa Rosa and Sacramento; and everywhere he astonished his hearers with his extraordinary and unexpected command of the most powerful and effective Anglo-Saxon diction.'

It was said, and perhaps with some truth, that a certain socalled fire-eating element of the Lecompton, chivalry or slavery party determined that such a man should not live. He was too dangerous. The possibilities for him in the future were, too great. He must be got rid of in some way or other; and the usual method, except in the case of a man who could not be managed otherwise, was not exactly what was recognized as murder or assassination but differed from them very little in reality. The plan was to involve the intended victim in a quarrel and force him, by the strength of an almost irresistible public opinion, into a duel in which he could be, and was very certain to be, killed. There was of course always a pretense of fairness in the duels that have taken place in California, as there is always a pretense of fairness in a gambling game; but it is very doubtful whether there ever was a fair duel any more than a fair gamble. They have at least always, or very nearly always, resulted in favor of the fire-eating class; and the natural deduction is that they have been more or less managed and manipulated according to pre-arranged plans. It was expected that Gwin or some other of those who had been so terribly excoriated would be the one to call Broderick out; and it was known that he would answer. He had in 1852 fought a duel with Caleb B. Smith, occasioned by offensive language used by him towards Smith's father, and was only saved on that occasion by the ball from Smith's pistol striking a watch in his fob-pocket and glancing off. He had also recognized the code by promoting a duel at San Francisco in 1852 between city alderman John Cotter and 1 Davis' Political Conventions, 108; O'Meara, 205-213.

John Nugent, editor of the San Francisco Herald newspaper, for charges of corruption in reference to the purchase of the Jenny Lind theater for a city hall, in which scheme Broderick had taken an active part, and also another duel in 1854 between Charles A. Washburn, editor of the Alta California newspaper, and Benjamin F. Washington for galling personal strictures made against the latter by the former at Broderick's inspiration. Gwin had also fought a duel with Joseph W. McCorkle and recognized the code-in fine as a southerner and in public life he could not do otherwise than submit himself to the general customs of his associates. But it was from an entirely different quarter that the demand, or at least the first demand, upon Broderick was to come.1

David S. Terry, chief justice of the supreme court and the same who in 1856 had driven his bowie-knife into the neck of Sterling A. Hopkins and come near paying for it with his own neck at the hands of the vigilance committee, had been a candidate in the Lecompton Democratic state convention in June, 1859, for renomination to the supreme bench. As a candidate he had been invited before the convention to define his position; and he had taken occasion to characterize the anti-Lecompton party as "a miserable remnant of a faction sailing under false colors, trying to obtain votes under false pretenses. They have no distinction 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, forsooth, 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 Democratic principles-who now is not disunited from the Democratic party-has no affiliation with them, no feeling in common with them. Perhaps, Mr. President and gentlemen, I am mistaken in describing their right to claim. Douglas as their leader. Perhaps they do sail under the flag of Douglas; but it is the banner of the black Douglass, whose name is Frederick-not Stephen." A few days afterwards, June 26,

1O'Meara, 215-218.

while at the breakfast table of the International Hotel in San Francisco-at which sat, besides himself, Abia A. Selover and his wife and several other persons, including an attorney of British birth named Duncan W. Perley, formerly of Stockton and intimate with Terry-Broderick exclaimed, addressing Perley, "I see your friend Terry has been abusing me at Sacramento." Perley asked what he meant, when Broderick replied: "The miserable wretch, after being kicked out of the convention, went down there and made a speech abusing me. I have defended him at times when all others deserted him. I paid and supported three newspapers to defend him during the vigilance committee days; and this is all the gratitude I get from the miserable wretch for the favors I have conferred on him. I have hitherto spoken of him as an honest man-as the only honest man on the bench of a miserable, corrupt supreme court; but now I find I was mistaken. I take it all back. He is just as bad as the others.'

1

Perley asked, "Mr. Broderick, who is it you speak of as a 'wretch'?" Broderick replied, "Terry." Perley said he would inform Terry of the language used about him. Broderick retorted, "Do so; I wish you to do so; I am responsible for it." Perley rejoined, "You would not dare to use this language to him." Broderick's only response was a sneering repetition of Perley's words, “would not dare?" At this Perley, who thought he saw an opportunity of placing himself in a position of great prominence by taking up the Terry and especially the chivalry fight against Broderick, professing to be highly incensed with Broderick's sneer, exclaimed, "No sir, you would not dare to do it and you know you would not dare to do it; and you shall not use it to me concerning him. I shall hold you personally responsible for the language of insult and menace you have used." Perley immediately went off to hunt up a friend who would consent to represent him in carrying a challenge to Broderick. Several declined; but he finally prevailed upon Samuel H. Brooks to bear his message, at the same time stating that subsequent proceedings on his part would be conducted by E. J. C. Kewen, then temporarily absent. To this Broderick replied, in an exceedingly caustic letter, to the effect that he 1O'Meara, 218-220.

could not accept a challenge from Perley, for the reason among others of difference in relative position between them-Perley having shortly before made oath that he was a subject of Great Britain, so that, not being a citizen of the United States, the giving or accepting of a challenge could not affect his political rights. "For many years," continued Broderick, "and up to the time of my elevation to the position I now occupy, it was well known that I would not have avoided any issue of the character proposed." And again he said, "If compelled to accept a challenge, it could only be with a gentleman holding a position equally elevated and responsible; and there are no circumstances which could induce me even to do this during the pendency of the present canvass." 1

The election took place on Wednesday, September 7. The Lecompton or administration party carried the state by a heavy majority and elected their entire ticket. The anti-Lecompton and Republican parties were totally routed. It looked as if the slave power were entirely triumphant; and that there was no use any longer trying to stem its advance. But as a matter of fact this was its last victory in the state; for before another election came on the civil war broke out, which wiped it from the face of the land and consigned its advocates and apologists and particularly those of northern birth and education to a political death that knew no resurrection. But notwithstanding the result and apparent destruction of Broderick and his party, the old passion and malignancy engendered in the conflict remained. It seemed to have been determined that if possible Broderick should be put out of the way; and matters had so shaped themselves that it fell to Terry to undertake the job. Broderick himself was of course by no means guiltless. He had provoked a challenge from Terry and could not complain that Terry did not hesitate or delay in sending it. As a matter of fact Terry lost no time. On the very next day after the election, he left his residence in Sacramento and proceeded to Oakland, whence he addressed a hostile message to Broderick and sent it by the hands of Calhoun Benham. Broderick the same day answered, saying that the remarks that had been made by him might be the subject of 1O'Meara, 220-222.

future misrepresentation and he desired Terry to designate those that he regarded as offensive. Terry the next day replied that the precise terms were not important; but what he complained of was language reflecting on his personal and official integrity and particularly what had been said about his honesty on the supreme bench. Broderick rejoined on the evening of the same day, saying that his remarks were occasioned by offensive allusions to himself made by Terry at Sacramento. He admitted that under the provocation referred to he had said of Terry substantially what had been attributed to him; and he added that Terry was the best judge as to whether the language afforded any good ground of offense. Terry at once sent back word that Broderick's answer left him no other alternative but to demand the satisfaction usual among gentlemen, which he accordingly did. In this last note Terry also said that Benham. would make the necessary arrangements on his part; and the next morning Broderick named as his friend Joseph C. McKibben.'

prepare for the hostile Thomas Hayes of San was chosen to assist

Little or nothing was now left but to meeting and bring the parties together. Francisco, who had been county clerk, Benham on behalf of Terry and David D. Colton was similarly chosen to assist McKibben on the part of Broderick. As the challenged party, Broderick had the choice of weapons and terms of combat; and his seconds for him chose dueling pistols; the principals to stand ten paces apart, facing each other; the pistols to be held with muzzles vertically downwards; and the words to be, "Gentlemen, are you ready?" and, upon each replying "Ready," the word "Fire" should be given, to be followed by the words "One-two." Neither party was to raise his pistol before the word "Fire," nor to discharge it after the word "two.” The place of meeting was to be near a farm-house occupied by William Higgins at the most southerly end of Laguna de la Merced in San Mateo county, and the time half past five o'clock on Monday morning, September 12, 1859. Objections were made by Terry's seconds to the place of meeting and also to the omission of the word "three" after the word "two;" but, upon

1O'Meara, 225-232.