Personal Trial by Combat

I hope to show a close analogy between the personal trial by combat legalized throughout Europe for many hundreds of years (now legal nowhere, practically abandoned in all civilized countries), and international trial by combat, still existing throughout the world. Describing conditions before the middle ages, George Nielson, in his "Trial by Combat," says:

"Nothing was too high for it, nothing too low. It would establish the virtue of a queen, test the veracity of a witness, or re argue the decision of a judge; it would hang a traitor, a murderer, or a thief; it would settle a disputed point of succession, give a widow her dower, or prove a questioned charter. From such high arguments as these, it descended with equal ease to discuss debts of every kind and of whatever amount, and a French monarch earned a title as a reformer when he disallowed it where the principal sum in plea was under five sous."

This legalized method of trial was used prior to any historical record, but Gundobald, King of Burgundy, in 501, established the law permanently in his kingdom, where it was continued for over eleven hundred years. Replying to the remonstrances of one of his bishops, he said: "Is it not true that the event both of national wars and private combats is directed by the judgment of God? And does not Providence award the victory to the juster cause?"

Of a later period, Nielson says:

"When the fourteenth century began, the duel had ceased to be in any real sense a living proper part of law. On the continent and in the British Isles it was alive a thousand years and more after the enactment of Gundobald."

The incident of David and Goliath was quoted by some as a divine authorization of trial by combat.

Throughout Europe, England, and even America, it was a personal privilege of men of honor, until the middle of the nineteenth century, when, to the great honor of America, be it said, the good sense, intelligence and courageous action of the American people caused its abolition.

Some claimed the unlegalized continuance of it to be necessary because of the non-justiciable questions of honor raised between disputants; also this method of trial was not available to common people, but only to what were known as gentlemen and so-called men of honor.

Until the first part of the 19th century judges on the bench, lawyers in court, and other public functionaries, supposed to belong to that small class of people "of honor" wore swords, wigs and knee breeches when officiating, after the manner of barons, squires and knights errant of the mediÆval ages.

As examples of personal trial by combat, I select the four most famous duels fought in America during the fore part of the last century:

Burr-Hamilton, 1804; Baron-Decatur, 1820; Graves-Cilley, 1838, and Terry-Broderick, 1859.

Burr, Baron, Graves and Terry were the challengers, and all were skilled professional duellists, and each killed his antagonist.

At the time of their duel, Burr and Hamilton were among the foremost men of the country, Burr being Vice-President, and Hamilton perhaps the most influential politician. Burr was forty-eight and Hamilton forty-seven, conspicuous and able from boyhood. They served together on General Washington's staff when mere youths, although Washington soon found it necessary to relieve Burr. He retained Hamilton, and later made him one of his cabinet.

Though both were from New York, they headed opposite political parties. Hamilton's influence defeated Burr's appointment as brigadier general in 1789, and also his hope of securing a foreign mission. When Burr and Jefferson were candidates for the Presidency in 1800, Hamilton threw his influence against Burr and Jefferson was elected.

During these fifteen years of political rivalry Hamilton said many severe things of Burr. Rendered desperate by his successive disappointments, Burr forced a quarrel on "a trivial bit of hearsay" in a letter of a Dr. Cooper. This went the rounds of the press, stating Hamilton had said he had a "despicable" opinion of Burr. Burr sent his friend Van Ness with a letter demanding Hamilton admit or deny having expressed such an opinion. Hamilton declined to submit to such a vague and sweeping inquiry, while stating his readiness to avow or disavow any specific statement, closing his letter with the formula used by those who expected to accept a challenge if tendered. After further correspondence Burr sent Hamilton a formal challenge, which was accepted. Hamilton wrote a statement for publication after the meeting, announcing his religious and moral opposition to duelling. He stated he had no malice toward Burr, and accepted the challenge only because of the imperious custom which would destroy his public usefulness if he declined. He added that he did not wish to kill Burr, and intended to reserve his first fire in the hope that it would induce a reconciliation. If it did not, he might perhaps reserve his second fire. This declaration, of course, was unknown to the public or to Burr. In a note to his wife and six children he beseeched their forgiveness, declaring he was forced to accept by public sentiment.

They met at Weehawken, N. J., July 11, 1804. At the signal Burr fired, Hamilton sprang convulsively upon his toes, reeled—at which moment he involuntarily discharged his pistol—and then fell forward upon his face and remained motionless. His ball rustled the branches seven feet above the head of his antagonist and four feet wide of him. Hearing it, Burr looked up to see it had severed a twig. Seeing Hamilton falling, he advanced with a manner and gesture expressive of regret, but, urged from the field by his friends, without speaking he turned about and withdrew.

Public indignation in New York became violent. The grand jury found a true bill against Burr and the Vice-President of the United States fled the jurisdiction of his State.

During his remaining thirty-two years, he gradually lost the confidence of his countrymen. With no hope of achieving former ambitions, he formed the ill-fated expedition in the West known as Burr's Conspiracy, planning to abandon or dismember his own country and make a conquest in Mexico. He died in 1836 at the age of eighty, despised throughout the United States.

Baron and Decatur

Baron and Decatur were both advocates of the duello.

While in command of the U. S. Frigate Chesapeake off Hampton Roads, in time of peace, Baron was hailed by Captain S. P. Humphreys, commanding the British Frigate Leopard, and ordered to lie to and deliver over alleged deserters on board the Chesapeake. His brother officers accused him of failing to make preparations to defend his frigate when he was attacked and compelled to surrender to Captain Humphreys.

Baron called for a court of inquiry. Decatur was a member of the subsequent court martial, although junior to Baron. Before the court martial was sworn, Decatur advised Baron that he felt prejudiced against him and feared he could not do him justice, suggesting Baron exercise his right to object to being tried by him. Baron declined, and Decatur reluctantly sat on the court, which suspended Baron for five years. This he took much to heart, making frequent applications for reinstatement. One of these applications passed through Decatur's hands. When he could not recommend Baron's reinstatement, Baron took offense and threatened a challenge. Decatur replied that he felt no animosity toward Baron, but had made his endorsement through a conscientious conviction of duty. He hoped Baron would not resort to extremes, but, if he did, would feel bound to accommodate him. Baron responded with a formal challenge, which Decatur accepted.

Just before they were placed in position, Baron remarked, "Commodore Decatur, I hope when we meet in another world we will be better friends."

Decatur promptly replied, "I have never been your enemy."

The distance was ten paces. Both were excellent shots, and firing simultaneously, both fell, Baron seriously, and Decatur fatally wounded.

Baron lived thirty years, becoming the senior officer of the navy, but he never wholly reinstated himself in the good opinion of either his brother officers or the people of his country.

Graves and Cilley

Graves and Cilley were congressmen from Kentucky and Maine, respectively. Cilley, in debate in the House, reflected on the character of Mr. Webb, editor of the New York Courier and Inquirer, who sent a note by his friend Graves demanding an explanation. Not wanting a controversy with Webb, Cilley declined to receive the note, expressing his high respect for Graves. According, however, to the duellists' hair-line theory of honor, Cilley's refusal to receive the note from Graves implied a reflection upon the latter and after some correspondence Graves sent a challenge to Cilley, which he accepted.

They met on the road to Marlborough, Maryland, Graves attended by Mr. Wise, his second, and Cilley by his friend, Mr. Jones. The weapons were rifles, the distance about 92 yards. They exchanged two shots without effect. After each shot efforts were made to reach an accommodation, thwarted by Graves and his seconds. After the second, Graves said, "I must have another shot," and asked Wise to prevent a prolongation of the affair by proposing closer quarters, if they missed repeatedly. But at the third shot, Cilley dropped his rifle, cried, "I am shot," put both hands to his wound, fell, and in two or three minutes expired, shot through the body.

The committee of seven appointed by the House of Representatives to investigate this affair reported that early on the day on which Cilley met his unfortunate end, James Watson Webb, Daniel Jackson, and William H. Morell agreed to arm, repair to Cilley's rooms and force him to fight Webb with pistols on the spot, or pledge his word to give Webb a meeting before he did Graves. If Cilley would do neither, they agreed to shatter his right arm.

Finding Cilley was not at his lodgings, they went to Bladensburg, where it was said the duel was to take place. It was agreed that Webb would approach Cilley, claim the quarrel, insist on fighting him and assure him if he aimed at Graves, Webb would shoot him. Not finding the party at Bladensburg, they returned to the city to await the result of the duel. A statement drawn up by Webb, signed by Jackson and Morell, and published in the New York Courier and Inquirer, says: "It is unnecessary to add what would have been the course of Colonel Webb if Mr. Graves, instead of Mr. Cilley, had been injured. Suffice it to say that it was sanctioned by us and, however much we deplore it, we could not doubt but the extraordinary position in which he would have been placed would have warranted the course determined upon." It is difficult to imagine what is here darkly shadowed, if it be not that, had Cilley survived the encounter with Graves, and had the latter suffered it, it would then have been Cilley's fate to have encountered an assassin.

A prominent politician, Graves never fully recovered from his countrymen's universal condemnation of the killing of Cilley, who had tried in every honorable way to avoid the meeting. He did not die in as great disgrace as other duellists, but the affair marred his career.

Terry and Broderick

Terry was an advocate of the duello. Broderick had previously fought with a Mr. Smith.

Terry from Texas, Broderick from New York, went to California as Forty-Niners.

Both rose to prominence in politics. Terry became Chief Justice of the State, and Broderick a senator in Congress. Later they became political adversaries, Terry pro-slavery and Broderick anti-slavery.

While at breakfast in a San Francisco hotel, Broderick read an address Terry had delivered in Sacramento. Angered by something Terry had said, he remarked to a friend, "I have said that I considered him the only honest man on the supreme bench, but now I take it all back." A Mr. Perley, an English subject, asked Broderick if he meant Terry. Being answered "yes" he at once resented the reflection on Terry. Broderick cut him short with some curt remark, whereupon Perley challenged Broderick, but the latter declined because of the political canvass then in progress. On September 7, 1859, Broderick's party was overwhelmingly defeated, and he emerged from the contest dispirited and in ill health. As soon as Terry knew the result of the election, he tendered his resignation as chief justice and sent Broderick a note by his friend Benham, demanding a retraction of the remarks overheard by Perley. Admitting the words, Broderick observed Terry was "the best judge as to whether this language affords good grounds for offense." Terry sent a formal challenge by Benham, which Broderick accepted, and on September 13th they met.

Terry had passed a comfortable night, but Broderick's friends had taken him to a house where he got little rest, and he came on the field unrefreshed and without even a cup of coffee. The pistols had very delicate hair triggers, and Terry had practiced with them. They were strange to Broderick, and he had difficulty in handling them. When, according to the custom, the seconds searched both, McKibben, Broderick's second, merely touched Terry's vest. But Benham manipulated his hands up and down Broderick's person as though he thought to discover a coat of mail. This annoyed Broderick at a time when he needed to be calm. When word was given, Broderick fired and missed. Then Terry took deliberate aim and Broderick fell, fatally wounded.

The day of Broderick's funeral public sentiment changed suddenly in the late senator's favor, and against Terry. He lost standing in his party, and although a great lawyer and a universally popular man, became something of an outcast in California. He was indicted, but the case was transferred to another court and dismissed.

His end was violent. He had harbored resentment against Stephen J. Field, Associate Justice of the United States Supreme Court, for a certain decision unfavorable to Terry's wife, widely known as Sarah Althea Hill, and also because he had not hesitated to send both Terry and his wife to jail for resisting and assaulting a United States marshal in open court. Field's friends were informed that Terry threatened violence, and when Field returned to California after Terry's release from jail he was accompanied by a deputy marshal as body guard. Terry sought Field, entered a restaurant where Field was seated, walked directly back of him and struck the venerable justice in the face. Nagle, the body guard, shot Terry, who died instantly.

These four duels are mentioned here because they involved citizens of the highest prominence. They proved clearly to the American people that King Gundobald's law that "Providence awards the victory to the juster cause" was wholly untenable.

After the Burr-Hamilton affair severe laws were passed against duelling; but the influence and power of its advocates rendered it difficult to get an indictment from a grand jury or a conviction from a petit jury. After the Terry-Broderick duel, however, it became easy, and so many convictions were obtained that this mode of trial was permanently banished from America. Today no one could give better evidence of unrighteous and murderous intentions than to challenge another to trial by combat.

It should not be difficult to draw an analogy between this barbarous and cruel method of trying so-called non-justiciable cases and that of the great and powerful nations, which make the same false claim that differences between them are non-justiciable and only to be settled by trial by combat.

If, as the world has decided, questions of honor between individuals are justiciable, it must also be true that no question of honor between nations is non-justiciable.

National Trial by Combat