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The Congressional Research Service (CRS) has provided expert, non-partisan analysis of legal and policy issues for Congress for over a century. Now, in an attempt to expand access to its resources, it has made one of its products available through Congress.gov—the Constitution of the United States of America: Analysis and Interpretation (Constitution Annotated). The Constitution Annotated, which provides a summary of U.S. Constitutional provisions and the leading U.S. Supreme Court decisions that interpret them, is available online. This presentation will provide an overview of the features and navigation of the Constitution Annotated available via Congress.gov. Presented by Barbara Bavis, bibliographic and research instruction librarian. Barbara holds a BA in history from Duke University, a JD from the University of North Carolina School of Law, and a Master of Science in Library and Information Science with a specialization in law librarianship from Catholic University. Register here.

Tuesday, July 20, 1:00 p.m. EDT

This webinar provides information about the Law Library’s wide range of online resources, as well as our print collections. This webinar will be taught by Margaret Wood, a senior legal reference librarian. Margaret holds a BA in history from Oberlin College and a Master of Science in Library Science from Catholic University. Register here.

The Bench Bar Committee will be hosting a Judges' Panel via Zoom on Friday, October 8, 2021. We will not be scheduling an in-person conference this year, based on your feedback from our BBC survey.

The Bench Bar Committee is planning an in-person Bench Bar Conference on Friday, October 7, 2022.

The Franklin County Law Library and Franklin County Bar Association have changed the operating policy for our office. Please see below. You are no longer required to wear a mask if you are fully vaccinated. Also, we will begin scheduling in-person CLEs and offering hybrid virtual/in-person committee meetings.

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Please visit www.franklinbar.org/find to learn more about the legal research tools that are available for you to use from home.

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Conference room 1 will be available for members and non-member attorneys.

Unified Judicial System Language Access Plan Evaluation — Spring 2021 (surveygoldcloud.com)

There are no changes to the physical location, only the mailing address.

The law firm Zullinger-Davis-Trinh has updated its website and email addresses.

The new website is www.zdtlaw.com

Email addresses for the attorneys are now:

Suzanne Trinh   strinh@zdtlaw.com

Rachel Schreck rschreck@zdtlaw.com

Joel Zullinger    jzullinger@zdtlaw.com

Shortly before dawn, on September 13, 1859, a group of some seventy men gather in a secluded hollow on the outskirts of San Francisco. Two tall and grim-faced men stand facing each other across a small clearing as they wait for the dawn. Both are noted politicians and until recently were good friends. A friend of each, acting as their seconds, are in deep conversation, between the two men. They intermittently speak to the two men, to see if their dawn confrontation can be avoided. Their efforts are in vain, and both men are resolved to see this matter to its bitter conclusion. A box containing two ornate, smoothbore, .58 caliber pistols, and all the accoutrement necessary to make them lethal is produced. The box, owned by one of the men, is meant for only one purpose: to settle questions of honor. A coin is flipped, and the owner of the box is allowed to choose his preferred pistol. He knows something the other man does not; that one of the pistols has a hair trigger and is prone to accidental discharge. He chooses the other pistol from the box. He knows these guns well and has practiced with them for over a year. His opponent has never handled this type of gun. Both men take their positions ten yards apart, facing each other. The rules, agreed to in advance by their seconds, stipulate that each man will fire on the count of three. Both men are tense as they await the countdown. The silent onlookers hear one of the seconds count, but he only reaches “one” before the loud crack of a pistol rends the stillness. The hair trigger has lived up to its reputation, and the pistol fires into the ground well short of the other man. This man must now stand still and receive the fire of his opponent, with no way to defend himself. His name is Senator David C. Broderick, and he is about to die. His opponent, David S. Terry, aims coolly at Broderick’s chest and squeezes the trigger. Broderick convulses as the large caliber ball enters his chest, and falls to the ground, one of the last victims of the curious institution of dueling in America.

           In western culture, the concept of physical combat to settle disagreements is an old one, stemming back into Medieval Europe. It was brought to North America by English settlers in the early 17^th century. The first known American duel took place in 1621, just a year after the arrival of the Pilgrims in what is today Massachusetts. The custom grew in popularity through the first three decades of the 19^th century before beginning to fall out of favor in the years leading up to the American Civil War. While dueling was present in all regions of the United States, regional sentiments varied greatly. It was least popular in New England, where a man could safely decline a challenge with little consequence. It was most popular in the South and frontier areas of the country. Southerners in particular were obsessed with honor and dueling, which made it nearly impossible for someone to decline a challenge. Refusal to take up a challenge would lead a man to be ostracized within most Southern communities. I say “man” because while it was not unheard of for women to duel in Europe, it was in America. It was not uncommon for skilled a duelist to intentionally give offense to a rival in the hope they would be challenged and be able to force a duel.

           Early American society demanded a martial bearing and strength from men. This is unsurprising considering the warlike beginnings of the Thirteen Colonies and the early United States. For a man of substance and standing to appear weak and cowardly could be a significant problem. While dueling had its detractors, the prevailing view saw it as better to hazard death than dishonor. Dueling, while practiced to some degree by all levels of society, was at its core a gentlemen’s remedy. This was seen in the highly ritualized ways duels were fought. A formal challenge must be made in order to start the process, sometimes in person but usually through an intermediary known as a second. Despite the violent possible outcome of duels, they were not generally designed to end in bloodshed.

Challenges were often issued in highly coded and ritualized language that gave much room to claim a misunderstanding or allow for compromise. Once a challenge was issued, the challenged man would appoint a second who would try to resolve the mater with the other second. Often times a face-saving apology was possible or the challenger would claim they had not meant to issue a challenge and matters would be resolved. If a solution could not be found the seconds would meet to agree on terms. By tradition, the challenged man could choose the weapons, the location, and the time of the duel. Early American duels were generally fought with swords, but pistols became the dominant weapon as time went on. Stranger weapons do arise and conditions for duels could be quite complicated and peculiar. At the height of dueling popularity most men of means owned an expensive set of dueling pistols and were well advised to be familiar with their use.

Up to the day of the duel the seconds continued to intercede with the duelists to satisfy honor and avoid the duel. If this were impossible the parties would appear at the agreed place. Even in situations where neither side would yield, all hope was not lost. It was the willingness to expose oneself to danger that was prized in a duel; not the killing or maiming of an opponent at least form a societal prospective. Duelists could fire into the ground or the air as a showing that they did not wish to kill their opponent. While this could be prearranged there was not a guarantee that your opponent would follow suit. Once you fired you had to stay in position and receive your opponent’s fire if they were inclined to aim at you. Even when both combatants desired to kill each other in earnest it was not always easy. The smooth bore pistols traditionally used were rather inaccurate, many men were not skilled shots, and the adrenaline of facing death in such a manner made it difficult to aim. After both men had fired, regardless of their intent, the seconds would inquire if honor had been satisfied. The challenger could declare that their honor had been satisfied without any fear of being thought a coward. The challenged man would generally be happy to agree. Even if the challenger were not satisfied the challenged man could offer a suitable if often vague apology that if accepted would settle the matter. Such concessions were easier to make and more likely to be accepted after shots had been fired. If the parties were still at loggerheads or the duel was motivated by genuine hate, the pistols would be reloaded, and another round of firing would ensue. Only the most aggrieved duelist tended to continue after the first shot.  If the men were determined, though, this could go on for many rounds. It was not rare for several rounds of shot to be traded before the duel ended one way or another.

           While dueling was relatively common, it was also illegal in many parts of the United States. It was not uncommon to cross state lines to a jurisdiction where dueling was legal. More often dueling would be held in remote locations where steps would be taken to give plausible deniability to the duelists if questions were asked. Even in jurisdictions where dueling was illegal it was not often prosecuted, although this became more frequent as time went on. Considering that duels were often fought between leaders of communities and other notables it was difficult to police effectively.

           In modern times it is easy to lookback at this practice with horror or to assume that only criminals and social deviants fought in duels. A list of historical duelists puts the lie to this notion. Several U.S. Presidents fought in duals or were challenged to them. Andrew Jackson is known to have fought numerous duels and to have killed at least one man for insulting his wife. George Washington apologized to a man who had knocked him to the ground with a club during an argument to avoid a duel prior to the Revolution. Abraham Lincoln barely avoided a duel with calvary sabers prior to his presidential run. James Monroe almost fought a duel with Alexander Hamilton, before Hamilton’s then-friend Aaron Burr, was able to reconcile the two men. Burr was Vice President of the United States when he later famously killed Alexander Hamilton in a duel. The list of notable duelists includes: generals, commodores, congressmen, senators, Supreme Court Justices, and many more. Broderick was a U.S. Senator from California, and Terry resigned as the Chief Justice of the California Supreme Court immediately before the duel. These were major power players in California at the time of their duel.

David S. Terry was a native-born Kentuckian who was born on March 8, 1823. He was a physical man, famous for his impressive strength and aggressive nature. He was known to carry a bowie knife with him at all times. Terry moved to Texas as a child and lived there into adulthood. In 1849, he moved to California and read for the law. He became a successful litigator and was nominated by the California Know Nothing Party to fill an expiring California Supreme Court seat. He would become active in Democratic politics while on the court. Terry was a pro slavery Democrat who supported the expansion of slavery to California and other territories. In an odd situation far too complicated to describe in detail here, a portion of California around San Francisco was declared to be in a state of insurrection in 1856. Terry was sent to negotiate with the insurrectionists, known as the San Francisco Committee of Vigilance, who attempted to kidnap him at gunpoint. He stabbed one of the kidnappers to death before he was overpowered. He was tried and convicted by the insurrectionists for murder but ultimately released. While on the Supreme Court Terry had become good friends with Broderick. While he was imprisoned, his friend Broderick brought all of his considerable influence to bear in securing his release. Following his release, Terry was named as Chief Justice of the California Supreme Court on September 18, 1857. Terry had been the second in a friend’s duel in which no one was killed and had nearly fought another duel seven years before. He had accused another man of being a criminal on the run from justice. The duel was avoided when it was proved that this statement was in fact true.

           Like many friendships during this period Terry and Broderick’s was riven by the question of slavery. Their feud is a good example of the divisions that would destroy the Democrat Party as a national force in the 1860 presidential election. Free soil Northern Democrats like Broderick were no longer willing to support slave owners’ desire for expansion into the territories. Southern Democrats like Terry favored the expansion of slavery into the territories. The expansion of slavery was important to them for economic reasons but most importantly to keep the balance of power in the U.S. Senate that protected slavery. Always before their shared interests could overcome this difficulty but as the country became increasingly polarized, the Democratic party shattered. This came to a head for Terry and Broderick at the 1859 California State Democratic Convention. Terry was up for re-election and expected his friend’s support. Broderick was in effective control of the convention. Because of Terry’s stance on the expansion of slavery, Broderick threw his support behind another candidate and Terry lost his chance at re-election. Broderick does not seem to have warned Terry in advance and Terry felt personally betrayed. Terry made a fiery speech at the convention, condemning Broderick and essentially saying that he owned all of the representatives as though they were his slaves. Two days later an angry Broderick was overheard insulting Terry. He is quoted as saying “I have said that I considered him the only honest man on the supreme bench, but I now take it all back” and Terry was called a “damned miserable ingrate” for not appreciating his efforts to free him from the murder charges years earlier.

           Terry had a friend ask Broderick about the comments, but Broderick declined to respond while running for re-election. The friend, incidentally, also challenged Broderick to a duel over the comments but Broderick ignored him because he was beneath his station. Terry waited to challenge Broderick until the bitterly contested senatorial campaign had ended. Broderick would lose the election and received a letter from Terry the next day. The letter is reproduced below.

Notice the carefully worded language. It is difficult to read in this letter the seething anger of a betrayed friend who is issuing a challenge that could end in death. Perhaps Terry expected some accommodation could be reached and that there might still be hope for their friendship. Broderick and Terry exchanged several letters through their seconds to clarify what remarks were found offensive, had they actually been said, and whether Broderick meant them to give offense. Broderick acknowledged the comments, refused to retract them, and left it up to Terry to decide if the words gave offense. Terry felt he had no choice but to demand satisfaction and the seconds met to agree on terms. Terry resigned from the remainder of his term as Chief Justice shortly after the duel was agreed upon.

The original duel was scheduled to be fought on September 11, 1859, but the police intervened and arrested both men. Both men and their seconds appeared and took their positions pistols in hand. The police stopped the duel before any shots could be fired. A judge threw out the charges because neither man had actually broken the law at the point the police interceded. Preparing to fight a duel was apparently not against the law in California. The duel was rescheduled for the 13^th and would be held as described above. Terry at first thought he had only wounded Broderick, but the bullet had hit a lung. An enraged friend of Broderick in the crowd, drew a pistol and had to be subdued from trying to shoot Terry. Broderick clung to life for three agonizing days before expiring. His final words were “[t]hey killed me because I am opposed to the extension of slavery and a corrupt administration.” That same day the detectives that had stopped the first duel sought and received a warrant for Terry’s arrest. Upon arriving at Terry’s home, the two detectives were met by Terry, two friends, and the sheriff, all of whom were pointing shotguns at them. Terry was afraid he could not receive a fair trial. He told the detectives he would turn himself in three days later in Oakland. With few other appealing options, the detectives trusted his word and left. Terry honored his word and turned himself in as promised.

Terry was put on trial for murder. He received a change of venue, and the case was transferred to Marion County, California since Broderick’s influence in the San Francisco area all but guaranteed his murderer would not have received a fair trial in its original location. He was released on $10,000 bail pending trial. For reasons that are difficult to determine, the charges against Terry were dismissed. I could not find a detailed description of his trial. A grand jury in San Mateo County later indicted him but those charges were dismissed on double jeopardy grounds. Terry would suffer no official sanction for his actions, but he was ostracized following the duel.

Terry would go on to lead a colorful and violent life. He fought for the Confederacy in the Civil War. He was wounded and obtained the rank of brigadier general. Following the Civil War, he returned to the practice of law and began a long-standing feud with U.S. Supreme Court Justice Steven J. Fields. Justice Fields presided, in 1888, over a case involving Terry’s second wife related to an estate belonging to her first husband. When the judge ruled against her, she began threatening the Judge, tried to draw a revolver, and had to be physically removed from the courtroom. When court staff tried to force his wife to leave, Terry drew his bowie knife and threatened several people before being overpowered when a Deputy U.S. Marshal shoved a loaded pistol in his face. Terry was sentenced to six months in jail for contempt of court. On August 14, 1889, after his release from prison, Terry confronted the Justice on a train and was shot to death by that same Deputy U.S. Marshal, acting as the Justice’s bodyguard. Terry had unwisely slapped the Justice in the face and was reaching into his jacket, the U.S. Marshal believed for his bowie knife, when the fatal shot was fired. It seems a fitting end for a career filled with violence.

Broderick’s legacy is also worthy of comment. He became a martyr for Free Soil Democrats and Abolitionists alike. Broderick’s death was another in the long list of events that raised factional tension and would ultimately lead to the Civil War. His portrait was hung prominently during the 1860 Republican National Convention. His death contributed to the powerful California Democratic party split in the 1860 presidential election. Abraham Lincoln carried the state by only 734 votes in the election of 1860. This was despite the Northern and Southern Democratic candidates combing for 34,703 more votes than Lincoln. While not decisive, California’s four electoral votes were important in the four-way split election of 1860. Following Broderick’s death, dueling largely died out in America. A few duels would be fought in Confederate States during the war but the desire to die for honor seems to have been sated by the bloodletting of the Civil War.