arrested as a fugitive slave, and he was taken into custody by the Sacramento chief of police, who however refused to deliver him over to his master. Stovall immediately sued out a writ of habeas corpus for his possession, and the matter came up for adjudication before the supreme court. The decision and opinion of that tribunal was rendered by Peter H. Burnett, formerly governor, who had been appointed a justice of that court by Governor Johnson in 1857 and filled the office until October, 1858.

It was, perhaps, pretty well known beforehand what kind of a view Burnett, as a southern man with strong southern sympathies, would be likely to take of the case. He believed in slavery and on every occasion, when the question of its propriety arose, advocated it. But, when he came to give reasons for restoring Archy to his master, he found difficulties and, in saying too much, said some very ridiculous things. After plainly and distinctly. deciding that Stovall could not sustain the character of either a transient traveler or visitor and under the general law was not entitled to Archy, he yet held that there were circumstances connected with the particular case that might exempt him from the operation of the rules laid down. One of these circumstances appears to have been that Stovall was "a young man" who was "traveling for his health;" another was that he was "short of means upon his arrival" in California, and still another that this. was the "first case that had occurred under the existing law." "This is the first case," continued the justice, “and under the circumstances we are not disposed to rigidly enforce the rule for the first time. But in reference to all future cases, it is our purpose to enforce the rules laid down strictly according to their true intent and spirit;" and he ordered Archy to be turned over to his master. Joseph G. Baldwin, the author and wit, who succeeded Burnett upon the supreme bench, characterized the decision as "giving the law to the north and the nigger to the south" and subsequently, in one of his happy moments, prepared a humorous abstract or syllabus of the case, in which he said it decided that the constitution does not apply to young men traveling for their health; that it does not apply for the first time, and that the decisions of the supreme court are not to be taken as precedents. It may be added that Archy, after being delivered 1 Ex parte Archy, 9 Cal. 147; Hittell's San Francisco, 270, 271.

over to Stovall, was taken to San Francisco for the purpose of being sent back to Mississippi; but his San Francisco friends sued out a new writ of habeas corpus—this time for his liberation instead of for his re-delivery into slavery. He was taken before Judge Thomas W. Freelon of the county court of San Francisco; but, while the case was pending before him, Stovall saw fit to swear to a new affidavit, which did not correspond very well with the one he had sworn to in Sacramento. In the latter he made oath that Archy had escaped from him in the state of Mississippi and procured a warrant from George Pen Johnston, United States commissioner, for his arrest as a fugitive slave from Mississippi. Upon this state of facts, and at the request of Stovall's attorneys, James H. Hardy and George F. James, Archy was discharged by Freelon. But he was immediately afterwards re-arrested and taken before George Pen Johnston, who on April 14, 1858, after very full consideration, decided that Archy was in no proper sense a fugitive slave from Mississippi and thereupon discharged him finally-much to Archy's own relief and to the satisfaction of the larger part of the community.'

The tragedy, which has been referred to as one of the results of the agitation of the slavery question and the ill-feeling engendered and bad blood caused thereby, was the fatal duel between William I. Ferguson, senator from Sacramento county, and George Pen Johnston, clerk of the United States circuit court at San Francisco and the same United States commissioner who had discharged Archy as has been related. Johnston was of southern blood, a chivalry partisan and a friend and supporter of Gwin. Ferguson was a Missourian by birth, an anti-Lecompton Democrat and a friend and supporter of Broderick. But they were personal friends; both scholarly men; both lively and fond of society; both disposed to conviviality, and both very general favorites among their acquaintances. When in particularly happy train, Johnston would often astonish his friends with reciting poetry; he for instance could recite Scott's Lady of the Lake almost from beginning to end; while Ferguson, on like occasions, would usually indulge his humor in a rollicking song,

Daily Evening Bulletin, March 17, 1858; Daily Alta California, April 15,

from the burden of which he got to be called "Ipse-doodle.' But as their evil geniuses would have it, on the evening of August 19, 1858, while in a crowded drinking saloon in San Francisco where talk ran high, they got into a quarrel about certain statements, charged by Johnston to have been made by Ferguson at a recent political convention held at Sacramento. Ferguson denied the charges with perhaps more warmth than was necessary; and the result was that Johnston challenged him to mortal combat. Under ordinary circumstances the quarrel would have been fixed up; but things had already arrived at such a pass that blood alone, and it would seem anti-Lecompton blood alone, could satisfy the demand. It was soon arranged that the quarrel, ridiculous as it was, should be fought out on a little level ground on the easterly side of Angel Island at five o'clock on the afternoon of August 21, 1858.

This duel, which as will be seen by a comparison of dates was more than a year prior to that between Broderick and Terry, was perhaps the most foolish and absurd in every respect that ever occurred between men of any prominence in the state. The principals had always been friends; and there was no reason for a quarrel between them. But each seems to have allowed himself to be egged on by irresponsible backers; and the result was the final meeting agreed upon. The parties were to fight with dueling pistols and to commence at ten paces distance from each other; and, if the first fire was ineffective, the distance was to be shortened ten feet. The parties met as agreed upon; and fired at each other without result. The distance was then reduced by ten feet and a second fire took place, but still without result. There was even a third fire without either being hit. At this, it is said, Johnston demanded either an apology or a fourth fire; and upon the refusal of the former the latter took place. At this Ferguson was hit in the right thigh and Johnston in the left wrist. Thereupon the principals expressed themselves as entirely satisfied; they shook hands, and then returned to San Francisco to enjoy the distinction of having vindicated their characters and, by allowing themselves to run the risk of being killed at a tricky game, entitle themselves to be called honorable and brave men. Johnston's hurt amounted to noth

ing; but Ferguson's was mortal. He was removed to the Union Hotel, Broderick's head-quarters in San Francisco, where he lingered, growing worse and worse, until September 14, when it was found necessary to amputate his right leg; and he died under the operation.'

Ferguson, after his death, was regarded by a large portion of the community as a victim. It was recalled that he had been not only an exceedingly urbane man, but a man of much force. Particularly as chairman of the judiciary committee of the senate in 1856, he had manifested very marked ability. On the other hand there was a very general demand that Johnston should be punished. He had been the advocate, while an assemblyman from San Francisco in the legislature of 1855, of an amendment to the law against dueling, increasing the limit of the punishment from imprisonment in the state prison for five years to imprisonment for seven years and adding various civil liabilities; and it was thought no more than proper, as he had been one of the first to violate his own law, that he should suffer the penalty. He was subsequently prosecuted; but his trial, like all other prosecutions of the kind, proved to be a farce. Though the constitution and the laws were against dueling, public opinion. had not yet arrived at that unanimity on the subject, which it has since reached. It was said, however, and probably with some truth, that Johnston suffered more from sorrow and regret for the death of Ferguson than he would have suffered from any punishment the law could have inflicted upon him. No one ever suspected that Terry, after the still more famous duel of the next year, regretted the killing of Broderick; but Johnston was a man of much more tender and sensitive feeling than Terry. While the latter continued to be rough and aggressive until he was shot down by a United States marshal for an assault upon Justice Stephen J. Field of the United States supreme court on August 14, 1889, it was remarked that Johnston became a very different man from what he had been before. He was no longer gay or full of good humor or fond of having a good time. From the time of the duel, he lived a very quiet life, devoting 1Daily Alta California, August 22 and September 15, 1858. 2 Hittell's Gen. Laws, 1444, 1551.

himself chiefly to journalism and never attempting to again assume any prominent position in public affairs. He continued to live in San Francisco and died there on March 4, 1884.1

The senate of 1859, on the first Friday after its meeting, adjourned over until the next Monday out of respect to the memory of Ferguson, who if he had lived would have sat in it. But the political complexion of the senate that year and particularly that of the assembly was even more decidedly Buchanan, administration, Lecompton, chivalry or pro-slavery—for it might have been called any or all of those names-than it had been in 1858, when, as will be recollected, Weller and his associates came in on what may be termed an anti-Broderick tidal wave in the Democratic party. The issue had at last been made whether slavery or freedom was to rule, whether northern men were to continue to be subservient to the south or assert their rights and privileges; and the great majority of the Democratic party in California, including Weller and his associates but excluding Broderick and his supporters, were on the southern side. The situation was well shown by the vote on certain resolutions introduced by William Holden on January 21, 1859. These resolutions set forth by way of preamble that the legislature of 1858 had instructed the United States senators to support the policy of the administration in regard to the admission of Kansas under the Lecompton constitution, and that Broderick had not only disregarded those instructions but charged that they misrepresented the wishes of the people of California:-therefore, resolved that the legislature of a state is the immediate constituency of a United States senator; that such constituency had a right to instruct a United States senator; that in case of such instruction there was no other honorable course for such senator but obedience or resignation; that Broderick had neither obeyed nor resigned, and that the language he used towards the chief executive in a speech in the senate of the United States on March 22, 1858, was not only undignified and disrespectful but alike insulting to the nation and humiliating to the people. These resolutions were adopted in the senate by a vote of twenty-three to nine, three declining to vote, and in the assembly by fifty-three 'Davis' Political Conventions, 634.