[Oscar T. Shuck, David S. Terry, from Bench and Bar in California; History, Anecdotes, Reminiscences (1889)]

 

CHAPTER XXI.

David S. Terry of Stockton—A Life Cast Amid Stirring Scenes—In the Texan Army Under Sam Houston—At Monterey Under Taylor—Chief Justice of the Supreme Court—Arrest and Imprisonment by the Great Vigilance Committee—The Duel With United States Senator, David C. Broderick—Graphic Narrative of the Historic Encounter By an Eye-Witness—In the Confederate Army—A Command Under Maximilian in Mexico Declined—References to D. W. Parley. J. Neely Johnson, Henry Edgerton, Volney E. Howard, B. P. Hammond, Samuel H. Brooks, Calhoun Benham, Thomas Hayes, Joseph C. McKibben, David D. Colton and Leonidas Haskell.

            Whoso attempts to follow this remarkable man through the tempest-vexed voyage of his life will be cast ofttimes between Scylla and Charybdis; and may esteem himself fortunate if he escape the perils of the pursuit. With a purpose to close the ear to the voices of prejudice and passion, and to do exact justice alike to the living and the dead, he may yet set his sail with trepidation.

            David Smith Terry was born in Todd county, Kentucky, March 8, 1823. His ancestors migrated many generations ago from Ireland and Scotland to the State of Virginia. One of the family, Nat. Terry, was a famous Colonel in the American revolutionary army. He was taken prisoner by the British, and suffered a long and cruel imprisonment in Charleston. Being exchanged, he participated in many important engagements, and at the siege of Yorktown. David Smith, Judge Terry's maternal grandfather, after whom he was named, was also a revolutionary hero. He refused to release his father's brother, to whom he was strongly bound by ties of affection, and whom he had taken prisoner at King Mountain.

            Our friend's father was a cotton planter in Kentucky, and afterward in Mississippi. Removing to Texas before the acquisition of that vast empire by the United States, he died there, immediately after his arrival, in 1835. The widow died a year later.

            The following glimpse of David S. Terry's boyhood days is caught from a letter penned to his wife in a painful crisis many years ago. It was published in the Sun of July 2, 1856, and the occasion will appear hereafter:

            "By the death of my mother, I was left, at the age of thirteen years, to my own guardianship, my only counselor, who had influence with me, being my brother, who was but two years older than myself. From that age I counted myself a man, and associated with men—aye, and played a man's part in the struggle which secured the independence of Texas.

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Acknowledging no control upon my actions, I could not sink from the soldier into the schoolboy; so, what education I have acquired—above what a boy of twelve years gathers at common schools—I acquired by reading at home all the books I owned or could borrow, during the time I was not engaged on the frontier."

            The adventurous youth served in the Texan army under Sam Houston, taking part in the battle of San Jacinto. When Texan independence had been achieved, he commenced the study of law at Houston, and was there admitted to the bar. When war opened between the United States and Mexico, he was among the first to enlist; he was with Taylor "at Monterey, where we won the day."

            In 1849 he led a company of Texans across the plains to California, having, en route, two fights with Indians, who killed only one of his men, and who were made to deeply lament having formed his acquaintance. His first pursuit in California was mining in Calaveras county; this he followed for a few months only, and, before the annus mirabilis had passed into history, he was in active law practice at Stockton, where, after the lapse of thirty-eight years, he may be found to-day ! But the interim—how vast !

            In 1850 he was defeated for Mayor of Stockton by Samuel Purdy, who afterwards became Lieutenant-Governor. In the same year he formed a law partnership with D. W. Perley, which continued until 1855. In the fall of the latter year he was elected, on the Native American ticket, a Justice of the Supreme Court for the short term—four years—Hon. Hugh C. Murray being elected at the same time, by the same party, Supreme Court Justice for the long term—six years. He took his seat on the Supreme Bench in January, 1856. His decisions are reported in volumes five to fourteen, inclusive, of the California Reports. They are terse, logical and generally sound. A strong state's rights opinion of his will be found in the ninth volume—Warner vs. the Steamer Uncle Sam. On the death of Chief Justice Murray, which occurred on September 18, 1857, Judge Terry became Chief Justice.

            An extraordinary adventure marked the first year of his judicial tenure. It was the year of the great Vigilance Committee. He was an open foe to that organization, and believed it should be suppressed by the military power of the State and nation. Governor J. Neely Johnson, by proclamation, declared the city of San Francisco in a state of insurrection, but was overwhelmed by the force of adverse public opinion all through the State. His applications to General Wool and to President Pierce for federal military aid to disperse the Committee were denied. Some state arms had been shipped from Sacramento on a schooner to be used by state troops in San Francisco, but a party of Vigilantes, under J. L. Durkee (he still lives) seized the vessel in the strait between San Pablo and San Francisco bays. The Committee, in

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investigating the matter of this shipment of arms, desired to take the evidence of one Reuben Maloney who was believed to know all about it, and who, being a strong enemy of the Committee, refused to attend and testify. It was determined to take him by force, and S. A. Hopkins, Vigilance Sergeant, and two men, were ordered to that duty. They found Maloney in a room with Judge Terry and a friend. The Judge told them that they should not make the arrest in his presence. Hopkins withdrew with his men, and procured reinforcements. Returning in quest of Maloney, he met him on the street, proceeding to the State Armory, accompanied by Judge Terry and friends, armed with guns. The arrest being resisted, Hopkins seized Judge Terry's gun, and the Judge instantly stabbed him in the neck, inflicting a terrible wound. The Judge was promptly overpowered, disarmed, and was incarcerated in "Fort Gunnybags." He was held a close prisoner for seven weeks, and, after undergoing a long trial, during which he took down himself the evidence of witnesses, he was released, owing to the recovery of Hopkins and the prospect of an early voluntary disbandment of the Committee.

            I have it from a citizen who was prominent in the councils of the Committee, that Judge Terry's life hung upon that of Hopkins. Some urged his execution without regard to Hopkins' fate, and, strange to say, among these radicals was one who has been in responsible official station in this city for a great part of the time since that exciting juncture.

            It was during this imprisonment that Judge Terry wrote to his wife the letter from which an extract has been given, and from which I desire now to make a further quotation:

            If I felt guilty of any crime I would not falter, but upon this point I am invulnerable. I know that I acted not from any feeling of malice towards any human being, but solely from a regard to a sacred principle—from the desire to prevent the consummation, in my presence, of an act which, though it may have been attempted from good motives, and would certainly have worked no injury to the community, as the man sought to be removed was a bad man—was, nevertheless, a violation of the constitution of this State, which I had sworn to support, as well as the constitution of the United States, to secure the blessings of which to their posterity both of my grandfathers fought and bled, and toiled and suffered.

            I was educated to believe that it is the duty of every American to support the constitution of this country ; to regard it as a sacred instrument, not to be violated in the least provision ; and, if necessary, to die in its defense. The meanest criminal is, under that provision, guaranteed the same rights as the noblest citizen, and cannot, without a violation of its provisions, be deprived of his liberty except by legal process. It was at this holy principle, and the obligations of my oath, I looked, and not at the demerits of the man—whom I know to be a bad man ; and I believe even those who are my self-constituted judges will do me the justice to think I would not defend that man for his own sake.

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            While Judge Terry was in confinement, the Texas Legislature adopted a memorial to Congress asking that body to interfere in his behalf. Hon. M. H. McAllister, Judge of the United States Circuit Court refused to issue a writ of habeas corpus for the prisoner, being "unwilling to provoke the animosity of the people."

            The California Democracy, which up to the year 1859 had always been violently disturbed by faction, in that year split absolutely in two. David C Broderick led the Douglas or anti-Lecompton wing, while David S. Terry was a warm supporter of the administration of President Buchanan. On the 24th of June, 1859, in a political speech before the Administration State Convention at Sacramento, Judge Terry, then Chief Justice of the Supreme Court, alluded to the opposing wing of the party as "a miserable remnant of a faction sailing under false colors, trying to obtain votes under false pretences." "They have no distinction," he proceeded ; "they are entitled to none. They are the followers of one man—the personal chattels of a single individual whom they are ashamed of. They belong, body and soul, to David C. Broderick. They are yet ashamed to acknowledge their master, and are calling themselves, forsooth, Douglas Democrats," etc.

            The words quoted gave offense to Broderick, who, when he read them the next morning at the breakfast table of his hotel in San Francisco, remarked that he "had considered and spoken of Judge Terry as the only honest man on the Supreme bench, but he took it back." This was said in angry tones addressed to a friend sitting by him, but was heard by D. W. Perley, Judge Terry's former law partner, who was at the table, and who, after informing Broderick that he would call him to account for the words used, left the room. The same day Perley sent a hostile note to the Senator, who replied, somewhat oddly, that "he could not, at the present time, afford to descend to a violation of the constitution and the state laws." He said further, "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."

            On the day after the election, Judge Terry resigned his seat on the Supreme bench, repaired to San Francisco, and sent a note to Broderick, demanding a retraction of the words given above. Broderick asked that he set forth the language objected to. This was done. Broderick then wrote the words as he remembered them, but substantially as he had been reported, made no retraction, and added that Judge Terry could decide whether the language was offensive. Judge Terry thereupon sent through Colonel Calhoun Benham, a premptory call to the "field of honor." It was accepted, the duel was fought, Broderick was mortally wounded at the first fire and died three

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days later, and his death opened a mighty gulf of hate between Northern and Southern men in California.

            Judge T. H. Rearden, in a sketch of Broderick, written for my book, "Representative Men," 1870, observed : "The train of events which seemed to make the death of the Senator the irresistible necessity of the tragedy, pointed to Dr. Gwin rather than to Judge Terry, as his veritable opponent. It was not on the same plane with Terry that Broderick's acts were projected. The offense rankling between them was an episode rather than the absorbing emotion, and the frightful unities of the drama would seem to have been better met, had Gwin rather than Terry pointed the pistol that finished the career of our hero."

            As twenty-eight years have elapsed since the famous duel occurred, and as our State numbers among its population many thousands of intelligent young people, even voters, who were not then born, it will be appropriate to give an account of the meeting, and I can do no better than use that which appeared in a city paper at the time, a graphic and dispassionate statement by an enlightened and sharp sighted eyewitness. It will follow this sketch.

            In the narrative it is denied that Judge Terry made a loud remark as Broderick fell. It was widely reported that he said: "The shot is not mortal ; I have struck two inches too far to the right." A remark was also by somebody gratuitously put on Broderick's dying lips, universally believed and circulated all over the country—this: "They have killed me because I was opposed to the extension of slavery and a corrupt administration." Our historian, Hittell, declares that the fallen man said nothing of the kind.

            In 1862, Judge Terry went to the Southern States, passing through Mexico, and joined the Confederate army. After serving awhile on the staff of Gen. Bragg, he organized a regiment in Texas, which he commanded in several battles. At the close of the war he commanded a brigade, a separate command. He was rigid in discipline, and severely punished raiding. An officer sent to inspect the condition of the troops in his department eulogized Terry's discipline. A brother of Judge Terry's, Colonel Terry, of the Texas Rangers, was killed at Green river.

            When the war closed he went to Mexico. Maximilian offered him a high military command, which he declined, and devoted himself to cotton raising for two years, but with no success. Then, in 1869, he returned to California. After a short stay at White Pine, Nevada, he settled down, in 1870, in his old town, Stockton, where he has since continuously resided.

            He was a member of the last Constitutional Convention, serving as chairman of the Committee on the Legislative Department, and as a member of the Committee on Judiciary. He was author of the clause declaring the responsibility of bank directors to depositors. He took the stump in support of the new constitution; declined a nomination for Supreme Judge on the

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ticket of the New Constitution party. He was a candidate for presidential elector on the Democratic ticket in 1880, and was the only nominee on that ticket defeated, the vote being close, and he falling behind, owing, it is supposed, to his name being scratched by old friends of Broderick. He asks for nothing, but freely contributes time and money to his party.

            He has generally been fully occupied with professional duties, and has now a large practice in the counties of San Joaquin, Merced, Stanislaus, Fresno, Tulare and Kern. He was employed in all the extensive litigation affecting water rights in Fresno and Tulare. He is the principal counsel for the defense in capital cases through the six counties named. The case of young Granice, convicted of murder in the second degree, in killing Madden, in Merced county, will be remembered. Madden was editor of the Express. Granice was twice convicted and was in the State Prison, under a sentence of thirty years, when Judge Terry secured his freedom on a technicality. The prisoner was indicted for manslaughter, and being convicted, the Supreme Court granted him a new trial. Again placed upon trial on the same indictment, and the evidence being all in, the District Attorney, in conformity to the Code, moved that the jury be discharged and the prisoner remanded, to await indictment for a higher crime, the testimony going to show that the charge should be murder. This was done. The prisoner was afterwards indicted for murder, and was convicted of murder in the second degree, and sentenced as stated. The Supreme Court held that the discharge of the fury was equivalent to an acquittal.

            The prominent lines of Judge Terry's character are unmistakable and well known to a broad acquaintance. He has great aggressiveness and undaunted firmness of purpose. He never quails, even before a raking fire. A man of strong friendships, it quite naturally follows that he has also strong prejudices; but he is easily placated, and in the path of mercy a little child could lead him. He is generous. His nephew and partner, who was long an inmate of his home, and who has given me a glimpse of his private life, speaks of him in terms of tenderness. His political foeman, Henry Edgerton, stated to me his belief that it would be an impossibility for David S. Terry to do an act of dishonor. His charities have been many but never ostentatious; in this respect his left hand has not known what his right hand has done. He is very impressive and effective before juries, but in his addresses in the courtroom, as elsewhere, as, also in conversation, he never attempts ornament, but rather disdains it. His speech is plain, but uttered with the force of frankness, the eloquence of a chaste simplicity, and the precision that is the birthright of a masculine intellect. False pride, shuffling and cant he opposes with the full impulse and momentum of his nature. He is of giant physical stature. Standing six feet three inches in height, with Atlantean shoulders and sinews, a weight of 225 pounds, finely

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preserved, and looking ten years younger than his real years, Nature seems to stand up and point to him, "and say to all the world, This is a man!"

            The Judge married, in 1852, Miss Cornelia Runnels, a niece of Hiram Runnels, an early Governor of Mississippi, who was a warm adherent of Andrew Jackson. (Runnels once fought a duel with Volney E. Howard, who afterwards became a resident of Los Angeles. General Howard's life was saved by a buckle on his suspender, which turned his adversary's bullet.)

            The lady just named was one of the most remarkable women this country has produced. Her fortitude in the face of inconstant fortune often evoked the applause of her husband's foes. Circumstances making it impracticable for her to accompany him when he drew his sword for the "lost cause," she followed on a steamer to San Blas, and thence pushed on overland through Mexico to Texas. Twice on the way she was robbed by bandits, but each time the robbers were apprehended by Mexican officers, and her property was restored to her. On the journey her infant babe died, and she carried it for two days on horseback before she found a spot to give it Christian sepulture. She joined her husband in Texas, and, with the exception of this brief separation, was his constant companion through all the vicissitudes of his eventful life, until her death a few years ago.

            A son of our subject, who had attained considerable reputation at the bar, died at Stockton, April 1, 1885, while still a young man. He had been a member of the legislature, District Attorney of his county, and Grand Chancellor of the Knights of Pythias.

            On January 7, 1886, at Stockton, Judge Terry married again, the lady being the plaintiff in the celebrated case of Sharon vs. Sharon, in which he had been her counsel. She had won her case in the Superior Court, and it was pending on appeal, but Mr. Sharon had died on November 13, 1885.

            I now give the narrative alluded to, of the great duel. A few sentences of explanation, in parentheses, are my own:

THE BRODERICK-TERRY DUEL.

SAN FRANCISCO, Sept. 14, 1859.

            MR. EDITOR : I accept the medium (kindly offered) which your columns afford, to place on record a clear, comprehensible and unadorned statement of the late unfortunate "meeting" between the Hon. David C. Broderick and Chief Justice Terry. I will premise that I was on the ground as a spectator. I knew nothing of the preliminaries, and was so ignorant in this respect, that up to the moment the adversaries took position on the field I was unaware of the distance determined upon, and was impressed that the principals were to wheel and fire. With this exordium I presume your readers will perfectly understand that my statement is one of fact, given under the conviction that I am performing a high and solemn duty.

            At six o'clock (on the morning of September 13, 1859), a large party of gentlemen

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in buggies and other conveyance, arrived near Mr. Davis' ranch, about one mile and a half to the south of the southernmost extremity of Lake Merced. At this point, all having indefinite notions of the place of meeting, they were met by a carriage returning, containing two partisans of Mr. Terry, who seemed to have been searching unsuccessfully for the rendezvous, and to have given it up. The whole procession was about to return to town, when Dr. Hammond (Dr. William Hammond) in a gig, was seen to approach in the direction in which we had come. Knowing that the doctor was one of Mr. Terry's physicians, we felt satisfied that the place of meeting could not be far distant. We determined to follow the doctor, and therefore all wheeled conveyances. The doctor hesitated when he saw that he was acting as cicerone for a procession of duel-ground hunters, and I descended from my wagon to approach him, under the misapprehension that the doctor was Major Hammond, former Collector of the Port, (now, and ever since A. D. 1878, President of the San Francisco Board of Police Commissioners). The close resemblance of the brothers will make this faux pas excusable. In order to pass off the mistake with a flourish, I approached the retiring parties and made some seasonable inquiry. The malignant feeling of some men against Mr. Broderick can be imagined, when, during the conversation, one of the two occupants of the coach expressed a wish that he would be carried from the field a corpse. Of course, so diabolical a hope, given in uncouth terms, could only emanate from a source lost to all virtuous feeling or manly consideration.

            The doctor proceeded, and the crowd followed. In a few minutes we arrived at Davis' ranch, where our leader stopped. The whole procession hitched up their animals, and I approached the bluff ranchero, who was feeding his cattle, in order to gain some information.

            In answer to my inquiries, he said that no carriages had passed his house during the morning except the one we had overhauled. At this moment a very curious conversation took place between Mr. Davis—who was dressed in a cotton blouse and equipped with a large sized pitchfork—and an individual who had evidently driven all night in search of the field.

            "Have you any whiskey in your house?" inquired the newcomer.

            "I have not," answered the ranchero.

            "It might be serviceable on this occasion," said the other.

            "Whiskey is only serviceable or of use on proper occasions; this is not one, and therefore, if I had it, I would not produce it."

            About this time several vehicles came flying through the pass, and stopped at a place some distance beyond where we were. I soon became satisfied that these men were the important ones of the occasion. Mr. McKibben, (Joseph C. McKibben, ex-Member of Congress—see page 15) ex-Sheriff Colton, (David D. Colton, father-in-law of Mr. Crittenden Thornton, and since deceased), Senator Broderick and one or two personal friends descended from their vehicles. Judge Terry, who was accompanied by Calhoun Benham and Colonel Thomas Hayes, of San Francisco, as seconds, S. H. Brooks, State Controller-elect, as field counselor (now United States Treasurer at San Francisco) and Dr. Aylette as surgeon and general adviser—for the doctor is said to be a most experienced duelist—thereupon arrived, and all jumped from their conveyances.

            The field, the entrance to which is a few hundred yards south of Davis' house, was entered through a gap between two hills. A fence had to be jumped before reaching the grounds. The dell where the duel was fought was surrounded by hills and undulating ground. Egress can be had from it—as far as I noticed—only by two level outlets, viz: through the opening leading to Davis' ranch, and directly south from the ground itself, up a gulch. How far this gulch runs I know not, but it appears to me to connect with

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a ravine encircling the easternmost hill, forming the amphitheater where the tragedy was enacted.

            Immediately upon the arrival of both principals and their seconds, which was almost instantaneous, Mr. Broderick proceeded up the gap and occupied his side of the field. Mr. Terry and his friends did the same. The armorer, with the cases of pistols, took position at the northern point of a triangle formed by Broderick on the east, Terry on the west and the armorer on the north. The empocketed plain in which the affair occurred permitted of about sufficient level ground for the requirements of the occasion.

            When all hands arrived on the ground, I counted (not a particular count) seventy one men, including principals, present. Mr. Terry's seconds and advisers were constantly with him. I noticed particularly that when Benham and Aylette were attending to "outside" matters, Brooks kept close to his friend, and conversed with him in a lively tone. On the other hand, Mr. Broderick seemed to be absorbed with matters disconnected with the issue, and was talking earnestly with Mr. Haskell, (Leonidas Haskell, a wool dealer, and politician of influence, in whose dwelling at Black Point, Broderick died), and a gentleman whose name I am unacquainted with. During this time Mr. Broderick was cool and self-possessed. His antagonist seemed agitated, and measured the ground in his direction with an uneasy and anxious tread. The seconds approached the armorer, examined the weapons, turned several times, and pointed to the white marks that had been placed on the field to establish the distances. Mr. McKibben, in examining the pistols, snapped a cap, with an air of satisfaction. He seemed to look as if the pistol suited him. Some conversation was had. Mr. Benham (or Aylette, I am not certain which) approached Terry, said something to him, in reply to which Terry seemed to smile, and became more calm than before. As the affair was approaching the crisis, every eye was turned on the combatants.

            Mr. Broderick's friends held a short and earnest conversation, and retired. Mr. Brooks did the same with Mr. Terry, and moved to one side. An official expression notified the combatants to take their respective positions. The distance was marked white, and appeared to an observer murderously close. In fact, more than one man present uttered the ejaculation that it was downright murder to allow men to shoot at each other at so short a distance. The principals, however, took their positions. Mr. Broderick divested himself first of a dark brown paletot, and cast his eye along the ground separating him from Mr. Terry.

            At this moment I took pains to closely scan the countenances of both combatants. Mr. Terry's lips were compressed, his countenance darkly sallow, and his whole appearance betrayed that of a man without fear, as well as without religious constraint. Wan and attenuated, he stood a stolid monument on the field of strife. Mr. Broderick could not have been distinguished by the stranger as a principal. With his hands folded behind him he held earnest conversation with Mr. Haskell. He would occasionally turn, scan the crowd and rest his eye upon some recognized countenance. The muscles of his face were strong, and his visage unrelaxed in every particular. His lips, when not conversing, were compressed, and his whole bearing was that of a man who was about to meet a great issue, and who was firmly prepared for it.

            Having digressed somewhat, in order to give my readers a full account of what occurred, I return to the principals and their seconds at the point where I left them.

            Messrs. Broderick and Terry, being divested of their overcoats, were told by Mr. Benham to take their positions. The seconds then arranged about the weapons—how this was done is unknown to others—and Mr. Benham, taking a pistol, proceeded to Judge Terry, and placed it in his hand. The latter took the pistol in his left hand, passed it behind him, connected both hands, stood for a moment in that position, and

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then rested his weapon on his left hand in front. Mr. Broderick, on being handed his pistol, anxiously examined it, and at intervals measured with his eye the ground between himself and his adversary. He seemed to take much pains in examining the pistol. At length he braced himself up and took his position. A frock coat which he wore seemed to trouble him somewhat, and he endeavored more than once to bring the front tails closer together. Had a pin been offered him at this moment, I believe he would have used it. Terry, in the meantime, with the barrel of his weapon resting on his left arm, held his eyes fixed on the figure of his antagonist. Before the word was given, Mr. Benham approached Senator Broderick, who had handed his watch, money, etc., to Mr. McKibben, and felt his clothes, and examined with his hands the body of the principal. A nod of satisfaction showed that he had found nothing concealed beneath his vestments. Mr. McKibben then went towards Judge Terry. The latter handed to his second, Mr. Benham, a watch, pocket articles and a quantity of money. Mr. Benham received the watch, but the money, with a flourish, he scattered over the ground. Mr. McKibben then examined the person of Judge Terry, expressed himself satisfied, and took position to the right of Mr. Broderick, and immediately opposite Mr. Colton. The seconds of Judge Terry occupied similar positions, with Mr. Benham on a line with Mr. McKibben, and Mr. Hayes on a line with Mr. Colton—all the parties forming a sexangle.

            The parties thus placed were left for about five seconds; Mr. Broderick, in the meantime, as before stated, examining his weapon. Mr. Benham produced a number of papers and read from one the conditions of the duel. The word fell to Mr. Colton, Broderick's second. He advised the parties, with an example, how he should call it. He said: "Gentlemen, I will give the word as follows: Gentlemen, are you ready ? When both have answered ready, I will say, fire, one, two, with a pause between each word." Mr. Benham, for the benefit of his principal, repeated the word. The arrangement seemed to be perfectly understood, and all parties assumed their positions; Mr. McKibben uncovering his head.

            We have before said that 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 his pistol with the conformation of his hand, he presented to the observer an unsatisfied appearance. This was shown by more than one movement. His right leg—the fore one—sank below a bracing attitude, seeming as if he was fighting on downhill ground. It was the general expression of all within my hearing that Mr. Broderick's position, either from his constitutional nervousness, or from a want of confidence in the equality of the chances between the two combatants, was unfavorable to his success. 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 great disadvantage.

            At precisely fifteen minutes to seven o'clock, as the sun was endeavoring to force his smiling beams through a succession of clouds that were passing south over the head of Mr. Broderick—the solemn moment on which all were satisfied a life depended—Mr. Benham gave a rapid glance to the sky, detected something to the disadvantage of his principal, and approached the latter, who wore a large, rather stiff-brimmed wool hat, and had drawn the front of it over his eyes. After Judge Terry's second had caught his eye, the front was turned up. Mr. Colton then, in a clear and distinct voice, called out the word. He made considerable pause between each announcement—a pause that can be compared to the time elapsing between the strokes of the cathedral clock bell, perhaps not so great.

            When Mr. Colton asked, "Gentlemen are you ready ?" Mr. Terry instantly replied

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'Ready," without moving or relaxing a muscle. Mr. Broderick, however, as I said before, spent several seconds in examining the stock of his pistol, which did not seem to fit his hand. When, at length, he answered "Ready," he did so with a gesture, nodding his head and inclining his body towards Mr. Colton. Between the words "Fire !—one two," both parties shot. Mr. Broderick fired first, and at about the last enunciation required to convey the word "one." Mr. Terry shot in a space of time afterwards which it would require in music for a quaver. The word "two" was scarcely started upon when the Judge fired. Mr. Broderick's shot was spent in the ground some four or five yards in advance of him. Judge Terry's took effect in Broderick's right breast, above the nipple.

            Immediately upon receiving his antagonist's fire, Mr. Broderick raised his right arm still grasping the pistol. It was the impression that he had been shot in the shoulder. His arm was contracted, and he made a spasmodic effort to brace himself up. The leaden messenger, however, had gone to a more sensitive and vital spot. After endeavoring to summon the will to resist the pressure that was bearing him down, the head dropped in a recumbent position over the right shoulder, the knees bent outwardly, and at length, gently and calmly as a child retiring to rest, he eased to the earth, pressing his right breast with the hand still holding the pistol, and lying on his left side.

            Judge Terry, in the meantime, maintained his position, keeping his eye constantly in the direction of the fallen man. In a few moments he was told that his antagonist could not rise, and he thereupon left the field. It has been said he made a loud remark when Broderick fell. He did not. Whatever he said to his second was not heard by the spectators.

            I now close this extended and detailed account. I give it as a statement of facts, in the order in which I saw them, hoping that I might thereby correct erroneous impressions, and give all an opportunity of judging, from the events that occurred.