Cheryl Anne Stapp
Affair of Honor
Dueling was outlawed in California at its pre-statehood Constitutional Convention in the fall of 1849. However, the penalty imposed for violation of this constitutional clause was hardly a meaningful deterrent to men whose primary intent was to quickly find a fortune in gold and return home—which was most of the population. Besides, everyone knew that dueling had been practiced in Europe and the United States for centuries. For many years, Californians set on fighting a duel paid little heed to mere legalese.
In fact, the new Constitution had only been in effect for five months when a duel took place in Stockton, on the morning of April 13, 1850, to settle a difficulty between Mr. Perley, an attorney, and Mr. Marshall, the defendant in Perley’s client’s lawsuit. At twelve paces, the first shot cut a big hole in Marshall’s hat, and the second shot mangled Perley’s coat sleeve. Both wanted to fire again, but their seconds called a halt to the contest by insisting that sufficient damage had been done. The Constitutional penalty for dueling, which banned participants from holding civil office and voting, had evidently not dissuaded either combatant, knowledgeable about the law or not, from the field of honor.
In nineteenth century America, a gentleman’s honor was held to be sacrosanct. Real or imagined insults to that honor could result in a demand by the affronted party for “satisfaction” from the offender, in the form of a duel. The other could then accept or refuse the challenge, though declining was problematic because doing so might give the appearance of cowardice.
Once accepted, a duel had its own traditional rules. Both principals chose trusted representatives as their “seconds,” with no further direct communication between the principals allowed until the dispute was settled. The seconds’ first duty was to act as a go-between in an attempt to dissuade both men from dueling altogether (so long as their own man’s honor wasn’t compromised). But if this failed, the seconds came to an agreement on terms that would hopefully limit the chances of a fatal outcome. They ensured the chosen locale gave no unfair advantage to either party, arranged for doctors to be present, and refereed the actual fight. In most cases, the challenged party had the choice of weapons.
According to the pre-agreed terms, the duel would be fought either to first blood, in which case the duel ended as soon as one man was even slightly wounded; or until one man was so severely wounded as to be unable to continue; or to the death of either participant, despite the fact that in 1851 the state upgraded the penalty to one year in prison, for murder, if one participant died. In pistol duels, the rules specified that each party would fire one shot. If neither man was hit and the challenger said he was satisfied, the duel was over. If the challenger was not satisfied, the duel could continue until one was wounded or killed. Even so, in the accepted guidelines for affairs of honor, it was considered barbaric to allow more than three exchanges of fire.
The first fatality occurred in the confrontation between George Dibble and Jim Lundy at a Yuba River mining camp, in late 1851. A few days prior, the two had argued over a trivial matter but—fueled by whiskey—tempers boiled over until both were hurling verbal insults at the other, and Dibble challenged Lundy to a duel. On Saturday, November 1, at fifteen paces, and after the signal was given, Lundy fired his Colt revolver. Dibble, who had arrogantly declared he would let Lundy fire first and then shoot him, dropped his gun hand. “Are you satisfied?” asked his second. Dibble opened his coat to show where a ball had passed through his body and out the other side. Refusing all help, he staggered off about 120 yards and died. Lundy, and both men’s seconds, were arrested. After two hung-jury trials, all charges were dismissed the following February.
Two years later, newsmen were braying in print that dueling had become an epidemic in California. “Last week a duel was either fought or threatened nearly every day,” wailed one editor. “It should be a source of mortification to all right thinking men … to apparently sanction the barbarous practice of adjusting disputes … by a resort to the use of deadly weapons. It is out of place in a civilized country, and should be suppressed by the strong arm of public opinion.”
Nonetheless, the practice continued and the death toll climbed. In 1855, the legislature passed an amendment imposing stiffer punishments. If convicted, combatants faced prison terms of three to seven years if one party was killed outright, or died with one year as a direct result of the duel. New penalties for seconds and spectators, though of lesser import, were spelled out in the second and third sections of the amendment.
It didn’t stop anyone. Men dueled—and died—over political differences, over women, over cheating at cards, over perceived slights to their character. The law proved difficult to enforce as duelists grew cagier, holding the event in out-of-the-way places where jurisdiction was unsure. In court, prominent men and their sharp-thinking attorneys found ways to avoid prosecution. United States Circuit Court Clerk George Penn Johnston, for one—whose opponent state senator William Irwin Ferguson died of his bullet wound soon after their 1858 duel—was acquitted on a technicality.
The most famous face-off in California is the Terry-Broderick duel in 1859. Both men were Democrats, though on opposite sides of a political party which had split into two adversarial camps over slavery, the very issue now coming to a head between northern and southern interests in the nation’s capital.
David S. Terry, ex-Chief Justice of the California Supreme Court, was a Kentucky-born, pro-slavery agitator. David C. Broderick, the New York born, influential United States Senator from California—was an abolitionist. When Judge Terry gave vent to barbed remarks about the anti-slavery faction of the party Broderick responded with barbs of his own, accusing Terry of corruption. More insults followed; Terry challenged Broderick to a duel to “satisfy his offended honor.” The date and place chosen was September 13, at a secluded spot outside of San Francisco near Lake Merced. Each side brought weapons to the dueling ground, which was mobbed with up to eighty onlookers and members of the press before the principals even took their positions.
Terry won the coin toss for choice of weapons and selected the ones his side had brought, Belgian .58 caliber pistols with hair triggers. Broderick was a skilled marksman, but Terry had practiced beforehand with the Belgian pistols. Broderick, unaccustomed to guns with a light touch, fired too fast, sending his shot into the ground. Terry took careful aim and shot Broderick in the lung. He died three days later. To Broderick’s followers, the duel had been nothing less than an outright assassination. David Terry was charged with murder but never prosecuted because Judge James Hardy, a political ally, dismissed the case when it got to his courtroom. (Judge Hardy was impeached in 1862 for, among other things, corrupt misconduct at the Terry trial.)
The start of the Civil War in 1861 brought a new surge of political violence and duels in California. In the early 1870s the legislature enacted extensive revisions to the ban on dueling, this time putting the language into a statute of the Penal Code rather than as another constitutional amendment.
At around the same time, social mores began to change. Those who had once casually condoned a face-off with deadly weapons now saw it as an antiquated, senseless method of settling disputes, and found other ways to uphold their honor instead of risking their lives. By and by California’s anti-dueling laws became obsolete. They were repealed in 1994.