MARCH MEETING, 1926
A Stated Meeting of the Society was held at the house of the American Academy of Arts and Sciences, No. 28 Newbury Street, Boston, on Thursday, March 25, 1926, at three o’clock in the afternoon, the President, Samuel Eliot Morison, Ph.D., in the chair.
The Records of the last Stated Meeting were read and approved.
The Corresponding Secretary reported that letters had been received from Mr. Charles Knowles Bolton, Mr. Arthur Howland Buffinton, and Mr. Charles Eliot Goodspeed, accepting Resident Membership, and from Mr. Charles Evans and Mr. Henry Crocker Kittredge, accepting Corresponding Membership.
Mr. Evarts B. Greene read a paper on:
THE CODE OF HONOR IN COLONIAL AND REVOLUTIONARY TIMES, WITH SPECIAL REFERENCE TO NEW ENGLAND
In September, 1827, the American Quarterly Review, of Philadelphia, published a notice of Jonah Barrington’s Sketches of His Own Times, commenting at length on portions of that book which related to duelling. Incidentally the reviewer made some caustic remarks about “American fire eaters,” and referred specifically to Tennessee, Kentucky, Georgia, and South Carolina as bearing the “palm of gentility” in this respect “among the States of our Union.” These references to the duel as a mark of barbarism fell under the eye of John Lyde Wilson, a former Governor of South Carolina, who happened also to be an expert on the code. In a pamphlet entitled The Code of Honor; or Rules for the Government of Principals and Seconds (Charleston, 1838; 2d ed., 1858), Wilson defended duelling, under proper regulations, against its critics generally, and more specifically against the writer of the review article in question. He resented this Northern criticism of Southern manners and concentrated his fire upon the New Englanders. “I am very sure,” he wrote, “that the citizens of the States, so disrespectfully spoken of, would feel a deep humiliation to be compelled to exchange their urbanity of deportment for the uncouth incivility of the people of Massachusetts. Look at their public journals and you will find them, very generally, teeming with abuse of private character which would not be countenanced here. The idea of New England as a school for manners is about as fanciful as Bolingbroke’s ‘idea of a patriot king.’ I like their fortiter in re, but utterly eschew their suaviter in modo.”774
Wilson’s opinion of New England manners was not, of course, unique among the South Carolinians of his own day, or those of earlier generations, and illustrates one significant phase of American sectionalism. From another point of view, the subject has a certain interest for students of present-day American society. In the case of duelling, as in the modern instance of prohibition, we have a striking illustration of conflict between social convention and the law of the land.
On the eve of the American Revolution, the duel was unquestionably illegal whether in England or America. In the fourth volume of his Commentaries, published in 1769, Blackstone lays down the law on this subject in unmistakable terms. After discussing malice as an essential element in the crime of murder, he goes on to say: “This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder; thinking it their duty, as gentlemen, and claiming it as their right to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power either divine or human, but in direct contradiction to the laws both of God and man: and therefore the law has justly fixed the crime and punishment of murder, on them, and on their seconds also.” Even though the duel might not result in any injury, it was nevertheless punishable, as an affray, by fine or imprisonment.775
Unequivocal as the law was, Blackstone had no illusions as to the possibility of its enforcement under existing conditions. It requires, he wrote, “such a degree of passive valour, to combat the dread of even undeserved contempt, arising from the false notions of honour too generally received in Europe, that the strongest prohibitions and penalties of the law will never be entirely effective to eradicate this unhappy custom; till a method be found of compelling the aggressor to make some other satisfaction to the affronted party, which the world shall esteem equally reputable as that which is now given at the hazard of the life and fortune, as well of the person insulted, as of him who hath given the insult.”
Three years after the publication of Blackstone’s volume, the ethical problem of the duel was discussed to the apparent satisfaction of all concerned in a well-known conversation recorded in Boswell’s Life of Johnson. The question was raised by Boswell himself. Old General Oglethorpe was quite clear in his own mind: “Undoubtedly a man has a right to defend his honour.” Johnson reached essentially the same conclusion though by a different process. He argued that in a “highly polished society” an “affront” was “a serious injury;” to protect one’s self from such an injury by the recognized method was essentially an act of self-defence and it was “never unlawful to fight in self-defence.”776
It is well known that duelling was extremely prevalent during this period of British history, not only among officers in the military and naval service, but among civilians in public life, including such important personages as Fox, Shelburne, and Pitt. In a parliamentary debate of 1780, immediately following a duel in which Shelburne had been wounded by a party opponent, a vigorous protest was made against challenges on account of statements made in the course of parliamentary debate. They were said to have become so numerous as to endanger the most vital of parliamentary privileges — freedom of speech on the floor of the House.777
In the comparatively unsophisticated society of the English continental colonies, with its very limited representation of the English gentry, the code of honor naturally received less recognition than in the Old World. Though a few duels were fought before the Revolution, in New England as well as in the colonies to the southward, they seem to have taken place most frequently among officers in the royal service, who were, as a class, less influenced by local public opinion than the ordinary colonial, and more responsive to European conventions.
Duelling is commonly thought of as especially prevalent in the South; but careful studies of the subject show that appeals to the code were very rare in colonial Virginia, and there are cases on record which indicate public disapproval of the practice.778 In North Carolina, Governor George Burrington was charged with having sent two challenges. One of them is mentioned, with other acts of violence, in an indictment for breach of the peace. In 1765, Lieutenant Whitechurch was killed in a duel with the master of the Sloop Viper, and the coroner’s jury gave a verdict of wilful murder; but on trial he was apparently acquitted.779 South Carolina had some conspicuous cases of duelling. In 1761, the colonel of a British regiment was challenged by an officer of the provincial militia; the encounter took place, but without bloodshed. Ten years later the Postmaster General of the Southern District of North America, Peter Delany, was killed in a Charleston duel. The well-known merchant and politician, Henry Laurens, disliked the practice; but he did, on occasion, accept a challenge. In the one recorded case of an actual encounter (1775), he refused to fire on his opponent, and in a letter reporting the affair warned his son John against following his example: “My dear son, You know my opinion you know my abhorrence of Duels. I can say no more than this to dissuade you from such folly such madness as your Father, by the combined powers of Envy and Malice … has been driven into.” Georgia, the youngest of the colonies and a quasi-military province, had a few such encounters, chiefly among officers during the Anglo-Spanish War.780 In general, however, it seems fair to say that the duel was not a conspicuous feature of Southern colonial society.781
Though New England Puritan opinion, like that of the dissenters and Evangelicals in England, was hostile to the code of honor,782 Massachusetts had, under its provincial charter, more conspicuous cases of duelling than Virginia during the corresponding period. After the institution of royal government, civil and military officials, accustomed to the conventions of fashionable English society, came to the colony in considerable numbers and indulged in various practices objectionable to their Puritan neighbors. Sewall’s Diary records three duels fought in Boston between 1695 and 1718; most of those engaged were either more or less temporary residents or comparatively recent arrivals. The first of these affairs took place on Boston Common, August 17, 1695, one of the participants being a certain Captain Cole. Sewall reported that the Lieutenant-governor had “spoken to Mr. Cook to bind them over to the sessions;”783 he does not tell us what action, if any, was subsequently taken in the matter. The second encounter was more serious and in this case we are able to compare Sewall’s attitude with that of another contemporary, Thomas Lechmere.
On February 15, 1711–12, Lieutenants James Douglas and James Alexander fought a duel, again on the Common, “near the new Burying place.” Alexander was fatally wounded and died the following day. A warrant was issued for Douglas, who managed, however, to escape — apparently to Nova Scotia. Sewall was much concerned about this case and the difficulty which he experienced in securing proper action against Douglas. An effort was also made to prevent undue public interest in Alexander’s funeral. A letter, Sewall says, was written to the Governor, “to regulate the funeral of Lt. Alexander and prevent its being Great.”784
In striking contrast with Sewall’s treatment of the incident is the account given of it by Thomas Lechmere, a comparative new-comer in the colony, though he had married into the Winthrop family. In a letter to his brother-in-law, the same Winthrop with whom he was, a few years later, to become involved in one of the most famous of early New England lawsuits, Lechmere tells the story in a lighthearted fashion: “On Friday, the moon being in the Dragon’s Taill (an ill omen), wee had something to do in Boston Common — two of our sparks (officers), Messrs. Douglas and Alexander had a mind to shew their manhood. Alexander (like the Great of old) gave the challenge. Douglas in honour could not refuse it, so very loveingly tooke their departure from Boston into the Common, there they bravely gave the word draw, out they pulled spado, to it they went, and manfully engaged each other, and like two brave heroes gave each other a mortal wound.… This being the substance of the story or tragedy, I could not but acquaint you as a lover and admirer of such Hectors.”785
The third duel mentioned by Sewall has attracted less attention. This was fought on the Common, and the parties this time were Captain Thomas Smart and Mr. John Boydell. Boydell, who had come to New England two years earlier as private secretary to Governor Shute, was at the time of the duel, Register of Probate. He was subsequently post-master in Boston, and in general a conspicuous citizen of the town. The encounter took place on December 16, 1718, and a week later the case came up in the Superior Court, where both parties were sentenced to pay a fine, to be imprisoned for twenty-four hours, and to find sureties for their good behavior. “Mr. Sheriff Winslow had them to Prison. Clock struck Four when the sentence was passed.”786
So far the action taken against duellists seems to have been based on common law, in the absence of any specific statutory provision. The Smart-Boydell case has special interest, however, because it was almost immediately followed by legislation. In June, 1719, the Council, of which Sewall was a member, sent down to the House of Representatives a bill against duelling, which was promptly enacted on June 16, 1719. The preamble indicates that there may have been more cases than have commonly been supposed: “Of late years,” there had been in the province “several duels and dangerous encounters and quarrels … to the great dishonour of Almighty God, in defiance of the laws of nature and Nations, contrary to the peace of our Sovereign Lord, the King, and the precious life of Man.”787 Under the new law, participants in a duel with dangerous weapons, “although death doth not thereby ensue,” were subject to fine, not exceeding £100, imprisonment not exceeding six months, or corporal punishment; “any or all” of these penalties might be inflicted at the discretion of the Court, “as the nature and circumstances of the fact and persons may require.” The parties were also obliged to find sureties for their good behavior during a period to be determined by the Court.
So the law stood at the time of the most famous of the Massachusetts colonial duels, that of Henry Phillips with Benjamin Woodbridge. The facts in this case have been often stated and may be summed up very briefly. The encounter took place near the powder house in Boston on July 3, 1728. Woodbridge was killed and the survivor, Phillips, escaped to France, where he died about a year later. The case has a peculiar interest on several accounts — the important social connections of the participants, the indications of considerable sympathy with Phillips in influential circles, and the official proceedings which followed.788
Henry Phillips, the older of the two duellists, was a young man of about twenty-two, of a representative Boston family, he and his brother, Gillam, being successors to the book business of their father, Samuel Phillips. The recent marriage of his brother to a sister of Peter Faneuil had, however, brought him into contact with a family of different traditions, and it was with Faneuil’s assistance that young Phillips was able to make his escape. Woodbridge also represented a combination of New England antecedents with associations outside the Puritan colony. His father, a New Englander by birth, had gone to Barbadoes, where he became a magistrate; but his son came to Boston and went into business with Jonathan Sewall.
The contemporary documents indicate two different kinds of reaction to this tragic incident. There was, on the one hand, considerable sympathy with Phillips, as shown by a certificate signed in October, 1728, by eighty-eight persons, including besides the Faneuils, Lieutenant-governor Wentworth of New Hampshire, a number of officials in the royal service, several merchants, and a few clergymen. Among these divines was Timothy Cutler, the new Episcopal rector of Christ Church. The signers testified to Phillips’s “affable, courteous, and peaceable behaviour.”789 The prominence of official personages in this list is significant. On the other hand, it is evident that, in religious circles, the incident caused a profound shock; not only because of the tragic outcome of the duel, but because it seemed not unrelated to a general relaxation, among the youth of Boston, of the old Puritan standards. This point of view comes out strongly in the sermon preached by Joseph Sewall about two weeks after the duel, and subsequently printed with a preface signed by the “United Ministers of Boston.”790
The signers, including such men as Benjamin Colman, Thomas Prince, and Charles Chauncy, were deeply moved, that “any of the sons of New England, who have been born and educated in this land of light, should be so forsaken of God, and given up to their lusts and passions, as to engage in a bloody and fatal Duel.” Sewall’s discourse, like the preface, makes the tragedy the occasion for pointing out the danger of various forms of dissipation. Sewall also called for new legislation. “This hainous Sin of Duelling” should be “branded with the greatest disgrace and ignominy;” “some further and more effectual mark of disgrace” should be fixed upon either giving or accepting a challenge.791
The official proceedings were in line with the sentiments expressed by the ministers. Lieutenant-governor Dummer issued, on the day after the duel, a proclamation reciting the “barbarous murder” of Woodbridge. About a month later, the grand jury, under instructions from the Attorney-General, brought in an indictment for murder. Phillips was beyond the reach of the court, but before the summer ended the General Court enacted a new and more drastic statute.792
The striking feature of the new law was the effort to attach a special stigma to this particular offense. The penalty for either the challenger or the acceptor of a challenge, whether the duel were actually fought or not, and also for all who encouraged such encounters, was to be of an ignominious kind. The offender was to be “carried publicly in a cart to the gallows, with a rope about his neck, and sit on the gallows for the space of one hour.” This public exposure was to be followed by imprisonment for twelve months, and the giving of sureties for good behavior during a further period of twelve months. If the duel proved fatal, the survivor, on conviction and execution, “as is by law provided for wilful murder,” was denied a “Christian burial,” the body was to be “buried without a coffin, with a stake drove through the body.”793 The same rule was also to be applied to the body of the person killed.794
I have not found such strenuous legislation in any of the other colonies, though Pennsylvania passed a comparatively mild measure against duelling as early as 1700, penalizing both the principals to the extent of a fine of £20, or three months’ imprisonment at hard labor.795 The Virginia colonial statutes contain no enactment on this subject; and duelling, so far as it came up at all in the courts, seems to have been dealt with on the more general ground of a breach of the peace. In 1730, for instance, the records of the County Court of Princess Anne County show the arrest of Rodolphus Malbone (or Melborne) on the complaint of Solomon White, whom he had challenged “with sword and piston.” The complaint included, however, “other misbehaviour.” The defendant in this case was to be kept in custody until he gave bond for future good behavior.796
It was natural enough that the Revolutionary era should be marked by a considerable increase in duelling. The intercolonial wars of the middle eighteenth century, and the subsequent maintenance of royal forces on the continent, on a larger scale than in previous years, brought the youth of the seaboard towns into closer contact with the military, who were accustomed to the prevailing European standards in such matters.797 A considerable number of young men who had gone abroad, as, for instance, South Carolinians trained at the Inns of Court, had come under similar influences during this period. As the war proceeded, the corps of officers in the Continental army not only increased in numbers, but was brought under strong pressure to maintain the conventional standards of an officer and a gentleman. This, of course, applied not only to duelling, but to other matters of etiquette. The letters and other personal records of the time show that the New England officers were sharply criticized for their supposed shortcomings in this respect. It must be remembered also that a considerable number of the officers of the American army came to it from European services, both British and Continental, and that the military life in general made men peculiarly sensitive to imputations involving their personal courage.
The outbreak of hostilities led to the enactment of military codes by the revolutionary governments, beginning with the Massachusetts articles of 1775, and duelling was one of the subjects dealt with. The natural starting point for this revolutionary legislation was the British code, to which many of the officers were already accustomed, and of which a new edition had been issued in 1774. In these “Rules and Articles” for the government of the royal forces at home and abroad, Section VII was devoted to “Quarrels and Sending Challenges.” The first article of that section was directed against provocative “Speeches or Gestures” by officers or soldiers. The second forbade the sending of a challenge to any officer or soldier,798 on penalty of being cashiered, in the case of an officer, or suffering corporal punishment, in the case of a private, at the discretion of a court-martial. The third article extended the same penalties to “seconds, promoters, and carriers of challenges,” and to any officer who should “knowingly and willingly suffer any person whatsoever to go forth to fight a duel.”
It is to be observed that the acceptor of a challenge was not penalized by this code; but the last article may be considered as expressing a kind of pious aspiration. Not only was it made an offense, punishable as in the case of a challenge, for one officer or soldier to upbraid another for declining a duel, but there was a further attempt to protect persons challenged against undue pressure: “We hereby acquit and Discharge all Officers and Soldiers of any Disgrace or Opinion of Disadvantage which might arise from their having refused to accept of challenges, as they will only have acted in obedience to Our Orders, and done their duty as good soldiers, who subject themselves to Discipline.”799
The first Continental “Articles of War” adopted by Congress June 30, 1775, like the Massachusetts articles of the same year, dealt with duelling on the same general lines as the British code but more briefly.800 The code, as a whole, was not considered adequate by the army authorities and William Tudor, the Advocate-General, prepared a paper proposing certain changes desired by the Commander-in-chief. On June 14, 1776, the whole subject was referred to the “Committee on Spies,” in which New England was represented by John Adams, New York by Robert R. Livingston, Pennsylvania by James Wilson, Virginia by Jefferson, and South Carolina by Edward Rutledge. It was a strong lawyers’ committee; but, if we may judge from Adams’s autobiography, he took the laboring oar in the discussion. The upshot of the debate was the adoption, almost, as Adams said, totidem verbis, of the British articles, including those dealing with the duel (Section VII). As in the British code the acceptor of a challenge was not penalized; but it was made a punishable offense to upbraid a fellow officer or soldier for declining a duel, such refusal of a challenge being held to be in the line of duty and wholly honorable. Adams emphasized the difficulty of getting support for a code sufficiently drastic, and observed that there was considerable debate; but he does not touch on the specific point of duelling.801
As a matter of fact, there was some discussion, more or less serious, of Section VII relating to duels. The most definite allusion I have been able to find is in an intimate letter of Edward Rutledge to Robert R. Livingston, written in August, 1776, while the “Articles” were under discussion. This is in reply to a letter of Livingston complaining of the poor quality of certain officers. It is evident also from the general correspondence of leading South Carolina and New York members during this period that they were especially unfriendly toward the New Englanders. After reporting to Livingston that it had been agreed to adopt the British articles, Rutledge remarked: “I know not how we shall so soon purge the Army of the Men you mention, as by prevailing upon them to resent their own quarrels. To show you how exactly we concurred in sentiment upon this subject … and before I received your letter, I proposed to strike out that Article which prevents the sending of challenges, and pressed it as a measure that would tend to make their officers Gentlemen, or at least induce them to act as such whilst in Company with Gentlemen; Stone [a Maryland member] seconded and supported the Motion; but we could not carry the Point. I believe we must leave it to time.”802
Of some interest in this connection, and as an illustration of the South Carolina point of view, is a letter written, in November, 1775, by Thomas Lynch of that state, to Washington, then with the army in New England. He notes the adoption of some amendments to the code of 1775, and goes on: “You will enforce them. You will not suffer your officers to sweep the Parade with the skirts of their Coats or bottoms of their Trousers, to cheat or to mess with their men … in short being now paid they must do their duty and look as well as act like Gentlemen … Do not bate them an Ace my Dear General, but depend on every support of your friends here.”803
In short, Congress went on record in favor of regulating duelling to precisely the same extent as in the contemporary British Code; but there was some sentiment among the members distinctly more favorable to duelling as a means of maintaining a proper spirit among the officers.
A more difficult problem, not yet fully worked out, is that of determining the actual extent of duelling in the Continental army, and the opinion of the corps of officers as a whole. It would seem, however, that the practice was more general than has sometimes been thought.804 There are frequent references to duels in Thacher’s Journal, in Graydon’s Memoirs, and scattered through the correspondence of the time. Mrs. Richard Montgomery, for instance, writes to her friend, Mrs. Jay, in September, 1780, of the death of the latter’s cousin, William Alexander Livingston, in a duel, and continues: “There was buried at the same time in like circumstances, a Mr. Peyton from Virginia.… You may judge how fashionable dueling has grown when we have had five in one week.” Mrs. Montgomery adds her own personal opinion: “this dueling is a very foolish way of putting ones self out of the world.”805
Some encounters are well known, like those growing out of the Conway Cabal and Washington’s difficulties with Charles Lee. Formal expressions of opinion on the propriety of duelling per se are hard to find; but it would seem that the prohibitions contained in the articles of war were not taken too seriously even in quarters close to the Commander-in-chief. The most notable example of this is the duel between Colonel John Laurens and General Charles Lee, growing out of the latter’s injurious remarks about Washington. Both Laurens, the challenger, and Alexander Hamilton, his second, were members of Washington’s military family. The account of the duel signed by the two seconds and printed in the Lodge edition of Hamilton, is one of the most business-like records of such a transaction on record, showing familiarity with, and respect for, the etiquette required in “affairs of honor.”806
Apparently Washington himself was guarded in his utterances on this subject, but three incidents may be mentioned as throwing more or less light on his attitude. One is the case of General Lachlan McIntosh of Georgia, who killed Button Gwinnett, signer of the Declaration of Independence, in a duel in which the latter was the challenger. To allay feeling in Georgia, McIntosh was transferred to another post, but Washington seems to have retained a high regard for him.807 When, in 1778, Lafayette challenged the Earl of Carlisle, the British peace commissioner, Washington did not approve; but he dealt with the matter in a quite practical, semi-humorous fashion. He suggested that Lafayette’s chivalric ideas, however well adapted to the social conditions of the past, were getting out of date; that Carlisle was not likely to accept the challenge; and that the challenger might only be subjecting himself to ridicule. Even if Carlisle did accept, Washington argued, “chance is often as much concerned in deciding these matters as bravery; and always more than the justice of the cause.” The matter ended with Carlisle’s decisive refusal to take the matter seriously.808
A third case, involving General Nathanael Greene, arose just after the close of the war. Greene, having been challenged by a former junior officer of his own command, who resented an official reprimand administered by the general, referred the point of honor to Washington, who gave his opinion against acceptance, but on professional grounds rather than on the general ethical issue. “I give it as my decided opinion,” Washington wrote, “that your honor and reputation will not only stand perfectly acquitted for the non-acceptance of his challenge, but that your prudence and judgment would have been condemnable for accepting of it, in the eyes of the world; — because, if a commanding officer is responsible to private calls for the discharge of public duty, he has a dagger always at his breast.… In a word he is no longer a free agent in office, as there are few military decision which are not offensive to one party or the other.”809
Since Greene was the most distinguished New England officer in the American army, his own state of mind on this subject is worth considering. His Quaker antecedents did not keep him out of the army and they did not prevent his accepting, in some degree at least, the principles of the code of honor. Early in the war, he learned of an impending duel between two of his junior officers and, though the affair never actually came off, Greene was perplexed as to his own course. He recognized that duelling was “against all laws, both civil and military,” but felt the delicacy of the situation as one involving personal honor and regretted that he had not been left in ignorance about it.810 In the post-war case, already mentioned, which he discussed with Washington, Greene expressly declared his readiness to accept the challenge if that were necessary to comply with the conventions of his profession. “If,” he wrote, “I thought my honor or reputation would suffer in the opinion of the world, and more especially with the military gentlemen, I value life too little to hesitate a moment to accept the challenge.”811
If we take the corps of officers as a whole, the New Englanders appear to have been less amenable to the code of honor than their Southern associates. Hugh Graydon noted in his Memoirs that the code of honor was pretty generally accepted among the Southern officers of the Continental army. After mentioning the reputation of the Marylanders for smartness of dress and the “hottest blood” in the Union, he goes on to speak of the men from the states farther South and remarks: “Among all these, the point of honor was maintained.”812 In South Carolina and Georgia there were duels involving general officers of high repute — that between General Robert Howe and Christopher Gadsden in the former, and the McLachlan-Gwinnett affair, already mentioned, in the latter.813 As an example of matter-of-course treatment of a duel, a letter written in 1782, by Major John Armstrong of North Carolina to his superior, General Sumner, is of interest. Explaining his possible delay in reporting for service, he writes quite casually, that he “had the misfortune to be wounded in a duel” with a fellow officer.814
Undoubtedly similar feeling existed among the Middle-state officers. Hamilton’s service as a second in the Laurens-Lee duel has been mentioned. His general attitude is also suggested by his correspondence with Dr. William Gordon of Jamaica Plain, Congregational minister and historian of the Revolution, whom he took to task for circulating an injurious rumor. To Hamilton’s request for Gordon’s authority for the objectionable statement, the latter replied that he would give it if Hamilton would engage “neither to give nor accept a challenge, to cause it to be given or accepted, nor to engage in any encounter that may produce a duel.” Hamilton’s comment on this was: “Pleasant terms enough. I am first to be calumniated, and then, if my calumniator takes it into his head, I am to bear a cudgelling from him with Christian patience and forbearance; for the terms required, if pursued to their consequences come to this.”815 The Cadwallader-Conway duel of 1778 is an instance of a conspicuous Middle-state officer who met his opponent on the field of honor.816
Some of the New England officers reacted strongly against the growing influence of the fashionable code. James Thacher, the Massachusetts army surgeon, who also served for a time with a Virginia regiment, records a considerable number of army duels and indicates his own disapproval of the practice. Of one case in which two officers had exchanged shots, but fortunately without bloodshed, he remarks that they were credited with having “established their claim to the title of gentlemen of honor,” though the encounter was unnecessary except to prove that they possessed “malice enough in their hearts to commit a murderous deed.” He feared, too, that the example of superior officers was likely to have “great influence with those of inferior rank.”817 After another duel, in which one of the principals was killed, Thacher commented on the shocking lack of feeling displayed by the wounded survivor, whom he was called on to attend professionally. He stigmatized another victorious duellist as a murderer. “Is there,” he asks, “no remedy for this fashionable folly?”818
Some duels were fought reluctantly because the person challenged was subjected to strong social pressure. Thacher tells of one officer who was goaded into fighting because “his brother-officers treated him with contempt, and threatened to hoot him out of camp.”819 This was in 1778. In 1780 he mentions a captain, killed by his opponent, who felt compelled to fight “contrary to his nature and his principles.”820 Greene was not the only New England officer to accept the prevailing conventions. Reference has already been made to two junior officers of his command whose threatened duel caused him some anxiety; of these two, one was a lieutenant lately discharged from a Massachusetts regiment and the other was the captain of a Rhode Island company.821
One of the fatal duels mentioned by Thacher in his Journal took place between two Massachusetts officers in New York in 1782. In this case, an effort was made to secure the punishment of the survivor who had provoked the encounter. The colonel of the regiment was called on to deliver the offending officer to the civil authority, but apparently gave the sheriff no effective support, with the result that the latter retired without his prisoner.822
Though no attempt has been made to enumerate all cases of duelling in the Revolutionary army, it may fairly be inferred from the material here given that in the American as in the British army, the articles of war were not effectively supported by the social conventions of the corps of officers; also that the sending and acceptance of a challenge, under proper conditions, was taken as the natural course by officers whose character and standing were such as to make them fairly representative of their group. A statement in John Drayton’s biographical sketch of his father, Chief Justice William H. Drayton, is of interest as indicating the conventional attitude toward army duels. In Judge Drayton’s letter declining a challenge, he is said to have given as one of his reasons “that although custom had sanctioned duelling with the military it had not done so with the judiciary.”823
It is possible to deal only very briefly with certain indications of civilian opinion outside of army circles. In view of the English debates of 1780 regarding the relation of the duel to parliamentary privilege, it is interesting to note a statement on that subject by a member of the Continental Congress. In a letter to Schuyler, June 19, 1777, William Duer of New York reports a stormy interview with General Gates about the pending Gates-Schuyler controversy. “Perhaps,” Duer wrote, “he [Gates] may take it into his head to call me out … Should this be the case, I am determined not to shelter myself under Priviledge, being convinced of the necessity there is to act with spirit, to enable me to discharge with Fidelity the Trust reposed in me.”824 There was an incipient affair of honor between Thomas Burke, a strenuous member of Congress from North Carolina, and General John Sullivan, as a result of Burke’s remarks in Congress on Sullivan’s conduct at the battle of the Brandywine. In letters to his second, and to Sullivan, Burke complained of Sullivan’s failure to arrange a meeting.825
On the other hand, the war period and the early years of the peace furnish some striking examples of civilian hostility to the fashionable code. In 1775 Thomas Paine reviewed sympathetically, in the Pennsylvania Magazine, a pamphlet entitled Cursory Reflections on the Single Combat or Modern Duel, Addressed to Gentlemen in Every Class of Life, which held that the sending of a challenge should be treated as a felony and killing in a duel as murder, unless it could be shown that the person killed was the aggressor. Paine declared that duelling was “generally allowed” to be “Gothic and absurd,” though there were also “advocates for it on principle.”826 Franklin wrote from Passy in 1784 to an English correspondent, expressing his astonishment that the “murderous Practice of duelling … should continue so long in vogue. Formerly, when Duels were used to determine Lawsuits, from an opinion that Providence would in every instance favour Truth and Right with Victory, they were excusable. At present they decide nothing.”827
Jefferson’s attitude in 1779 is indicated in his proposed Virginia code and reminds one of the Massachusetts law of 1728 in pursuing the offender after death: “Whoever committeth murder by way of duel, shall suffer death by hanging; and if he were the challenger, his body, after death, shall be gibbeted.” The removal of the body from the gibbet was made a misdemeanor and the proper officer was to see that it was replaced. Jefferson raised the question whether the estates of both parties to a duel should not be forfeited. “The deceased,” he argued, “is equally guilty with a suicide.” A quarter-century later, writing as President about an impending duel in the Randolph family, he took the same attitude toward the “absurd and immoral settlement of differences by duel.”828
Jefferson’s proposal was not then accepted by the Virginians, but there is an interesting expression of Southern opinion on the subject in certain North Carolina proceedings of the years 1787 to 1789. In 1787, the state Senate received a petition from one John Bradley, who had killed his antagonist in a duel, pleading extenuating circumstances. The committee to which the petition was referred presented a report recommending a pardon, and this recommendation was adopted by the legislature. The committee found that Bradley had “done everything in his power to avoid the fatal conflict,” but that his opponent had “persisted with utmost implacability.” While recommending clemency the committee took pains to add their condemnation of duelling in general and their desire that the action proposed should not be taken as a precedent. “We are extremely unwilling,” they said, “to hold out an exemption from punishment to such persons as voluntarily engage in this wicked kind of Contest.” Thereupon the Governor issued a pardon to Bradley. The Superior Court of Wilmington district refused to accept the pardon, when pleaded to an indictment in that court, and the matter again came before the legislature, which passed a private act giving him a full pardon and barring any further prosecution.829 This North Carolina statement may be compared with that of Chief Justice William Henry Drayton of South Carolina, in 1779, as summarized by his son — that custom had sanctioned duelling in the army but not for the judiciary, and that for him to accept the challenge he had received from General Lee “would in the eyes of the world, appear as a public outrage on government, society, and common decency.”830
In the Northern states, the Revolutionary era was marked by some new statutes against duelling. In 1779, Pennsylvania substituted for the colonial law of 1700 more drastic penal clauses. A challenger was subject to a fine of £500, or imprisonment for twelve months, and also to permanent disqualification for any office of profit and honor. The same penalties were applicable to the acceptor or the carrier of a challenge.831 In 1786, however, the law was considerably modified. The penalty of twelve-months imprisonment or a fine was retained for the challenger but the amount of the fine was reduced to £100, and a distinction was now made between the challenger and other participants. The penalties of the latter, including the acceptor or carrier of a challenge, and the seconds, were just half of those prescribed for the former. Furthermore the penalty of permanent disqualification for office was omitted.832
As in colonial times, Massachusetts took the lead in spectacular legislation. In 1784 the legislature enacted a new law with the following preamble, which suggests that duels had been sufficiently numerous to cause some anxiety: “Whereas divers persons, from the want of a due regard to the life of man, and in contempt of the authority and government of the Supreme Giver and Disposer of life, a regard to which is essentially necessary to the preservation and happiness of a republic, and in violation of the wise and righteous laws of civil society, have voluntarily and maliciously engaged in the detestable and infamous practice of duelling, whereby upon false notions of honor, that result from a want of moral sense and human feeling, many lives have been lost, and many families have been brought to distress and ruin.”
In general, the new law followed the colonial statute of 1728–29 in attempting to attach a special stigma to this particular offense. The clause requiring the offender, in an encounter which did not prove fatal, to sit on the gallows with a rope around his neck, and that providing for the ignominious burial of both parties to a fatal duel, were retained in substance. The act of 1784, however, permitted the substitution of a public whipping for the imprisonment required by the older statute. It also took account of the rising medical fraternity by allowing, as an alternative to dishonorable burial of the guilty survivor of a fatal duel, the delivery of his body “to any surgeon or surgeons to be dissected and anatomized.” The new act also made not only the principals but all who aided or abetted them in such encounters liable to disqualification from office, for a term of three years. Any or all of these penalties were to be inflicted at the discretion of the Court.833
Connecticut and Rhode Island also passed specific acts on duelling during this period; but they lacked the picturesque phraseology and spectacular features of the Massachusetts law. The Connecticut act of 1779 fixed a fine of $3000 and perpetual disqualification for the holding of any office of honor or profit. In case of failure to pay the fine the penalty was to be imprisonment for one year. These penalties applied equally to all participants, including seconds; but the challenger was also required to find sufficient sureties for his “Good-behaviour during Life.”834 The Rhode Island law combined fine and imprisonment, not exceeding $500 and six months respectively, for all participants or persons aiding or abetting such encounters. No political disabilities were attached.835 New Hampshire dealt with duelling in the militia by an act of September 19, 1776, but does not seem to have enacted any civil legislation on the subject.836 In general, then, New England public opinion, so far as it was expressed by the state legislatures of this period, was emphatically against the duel.
So matters stood at the close of the Revolution. The subsequent development of duelling reached a tragic climax in the Burr-Hamilton meeting of 1804, which was followed by vigorous protests, both North and South, and the passage of new legislation in states which had not previously acted. That, however, is another story which lies outside the plan of this paper.
It may be pointed out in conclusion that further research, especially in court records, would probably throw additional light on the attitude of public authorities and public opinion toward the so-called Code of Honor. Meantime it seems clear that later developments in this particular phase of the conflict between law and social convention can best be understood by keeping in mind this background of colonial and Revolutionary experience.
Mr. Kenneth B. Murdock read a paper on
COTTON MATHER AND THE RECTORSHIP OF YALE COLLEGE
I have recently acquired a letter, written from Boston, October 1, 1722, by Joseph Green, later minister at Barnstable, to Stephen Williams, then minister at Long Meadow.
Joseph Green was twenty-one years old when the letter was written. He had graduated from Harvard two years before, and in 1722 seems to have been a student in Boston, and an attendant at the Second Church, to membership in which he was admitted in December of that year.837
Stephen Williams, to whom the letter was addressed, was ordained minister of the church at Long Meadow in 1716, and was still in office there in 1722. He had graduated from Harvard in 1713. In connection with what follows, it is worth noting that his mother was Eunice Mather, daughter of Eleazar Mather, niece of Increase Mather, and cousin of Cotton Mather.838
The interest of the letter arises from the fact that in it Green, in Boston, tried to give to Williams, in Long Meadow, a complete recital of the interesting news of the day. In so doing he mentions several matters by no means without historical or antiquarian significance. The document demands attention particularly, however, because it declares that Cotton Mather was offered, and for a time considered accepting, the rectorship (or presidency) of Yale College. The same statement is made in the New England Courant for October 1, 1722, but it seems that no one writing on Mather or on Yale has called attention to it.839 This is not to be wondered at, since few would be likely to consider the Courant at this time as a trustworthy source of information about the Mathers. But now that the Courant’s assertion is supported by a parallel statement in a letter written by one who was, as appears below, certainly in a position to know whereof he spoke, it demands consideration. If it is true that Mather was once called to Yale, it is a fact of distinct importance both in regard to him and in regard to the history of the college in New Haven, and there now seem to be good reasons for believing that he was thus called. Certainly he was, if Green’s letter is to be relied upon. The reasons for believing that it is to be trusted, and that the statement it contains in regard to Mather and Yale, and the similar item in the Courant, are accurate, will be given in detail below. The complete text of the letter is:
For the Revd Mr Stephen Williams Paster of ye Church of Christ att Long-meadow in Springfield Q D C These ꝑ Mr Mirrick.840
Boston Octor ye. 1st. 1722
I am very Glad to hear of your welfare by Mr Mirrick & offer you humble thanks for your favour manifested in yr letter; I should heartily have embraced the opportunities you mention had Circumstances allowed of it; I then the more joyfully & willingly improve this to tender my Respects unto you, & to informe you of my welfare att this time (thro’ ye continued goodness of ye God of our lives). If I have anything worthy of your hearing, take it in a very few words. The last week there was a fast solemnized att ye old North Church. (for ye ministers of ye town have agreed to do ye like in all their Churches) for ye effusion of ye Spirit of God upon ye rising Generation, & ye reviving dying religion in the Town & Country;841 in ye forenoon prayed Mr Wadsworth & Mr Walter Senr in ye afternoon Mr Colman842 & ye old Dr843 (whose face we beheld as ye face of [an] Angel) ye young844 preached all day from Matt 9. 18. where by Daughtr he sd might be meant Religion & on that Topick he preceed’d in his discourse P.M. he informed us of ye astonishing success of ye Gospel in a small place, a Golden Spott (as he called it) in (as I since learn by Credible information) some part of ye lower Saxony, which he said he wished he might have leave to publish, which is so large an account that not less than 28 Sheetts of paper contain it as sent to him; on fryday last was ye delightfull exercise of singing performed att ye New Brick Church, Mr Colman pr- from Rev. 5. 9. and they sung a new song &c ye Singing was managed only by ye masters of it, vizt men & women, seated in the front Gallery on purpose for it; they sang four times, all which were performed with a great dexterity and pleasancy;845 …
There is a certain Gent. (by name More) come over to N. Engld. to survey & descry the nature & use of our Plants seeds & all our vegetables, & to send them over to the King & Royal Society by whom he is sent over, who indeed seems to be a man of great ingenuity, who has been over the greatest part of ye world on that very Errand, & tells me that he finds very many things here that are very choice & that will bring a vast advantage to the Country, wt he finds here that is not to be found there, he sends over to them, he has brought over several hundred sorts of seed never known in this Country, & intends to try our Soil with them, if he could gett a suitable Spott of Ground of some hundred acres. I suppose you’l see him in yr parts for he intends to go all over the Country; for ye King has ordered ye Government to assist him with what shall be tho’t necessary for his viaticum thro’ ye Country.846 ….
Mr Boylstone is just upon Sailing for England, Holland, West Indies & the Straits (I suppose) I have bought out of his fine Collection of books so many as amount to about 14 Pounds, wh I hope will be serviceable unto me in my Studies847 —
Mr Hall (your Classmate) is just on ye point of marriage wth Mrs Eliza Pitts Daughter to Mr — Pitts ye mercht a Gentleman of a large Estate. Mr Gee, I suppose, is before now married to Mrs Sarah Rogers of Piscataqua848
But among these Circumstances of Joy, I would just relate a solemn disaster that occurred to one of your Brothers Classmates vizt Mr Thos Fish & his intended wife & mother, upon their voyage to Boston to buy their wedding Cloaths, I mean their sudden destruction & transport to the Eternal world; a violent Storm of wind arose & as they say divided ye vessel into two parts or more, ye men of ye vessel indeed wth some difficulty saved their own lives, but these sunk immediately; Our life is soon cult off & we fly away!849
As to ye Apostacy of Some of ye [?] of New-England & yr Conversion (if you will allow the terms) to the Church of England, we haue with admiration Surprize & Astonishment heard many things about it;850 what the Event of this will be God only knows Mr Chaunceys Conversion was to me the most surprizing of all;851 Mr Harris is far from Countenancing of their proceedings (as they say) & protests much against them wt ye Grounds of his so doing are persons guess variously, some phaps think it is to Cull Favour with the dissenters or something like that &c but others (ꝑhaps more probably) think that he is afraid yt Mr Cutler will get ye ascendant over him, for we suppose that Mr Cutlers parts & profound learning meeting in New England Converts will advance him to be a dignitary in the Church, suppose a Bishop in this part of America.852 Dr Mather has an invitation to ye Rector-Ship there, but whether he will go we are uncertain, but as to my own part I am full of hopes he will not, I believe the Contumelies and unworthy treatmt he has mett with in Boston would facilitate his parting with it,853 but the Church & his good Father will never part with him I hope; — the Gentlemen of ye Chh of England have procured land att the north End of the Town for & are about to erect a Church there,854 some of ye New brick have subscribed towards it, which (as some say) is reserved for Mr Cutler,855 or (as others say) for Mr Usher856 your brothers Classmate, who is now going over to take the Gown; the Lord be mercifull to our young Clergy & keep us in his Truth and Fear oh pray pray for us; I would be glad to have your thoughts with your judicious remarks related to me by your (always very much) desired Pen — Dear Sr If I can procure any books upon the Topick you mention in my Searches and researches after them according to your desire I shall use my utmost endeavour to send them to you. Thus, Sr, I have given you an account of what att present occurs to me, what I still meet with I shall not fail to Com̃unicate unto you as opportunity serves, & in the interim (always beseeching your Prayers to Almighty God for me, that I may be qualified for his Service & if it may be his will improved in it) I am in all due regards your humble Servt
P.S. Forgett not to present all due regards to Mrs Wms Mr Brewer857 as a father & to his wife & family (how Danll manages I should be glad to hear) to Mr·Hopkins,858 and all that trouble them selves so far as to enquire after me —
P.S. All Service in ye world to Mr Dwight,859 wth desires of Strength under & Success in his Herculean labours among you; wt Content he gives I should be glad to hear.
Old Dr Mather is apprehended to be near his great & last Change, it is feared he will not live this week out; & truly, Sr, it is a time of sickness in our Town att this present time —
Wt you wrote concerning ye Torys & nonjurours I wd pray you to explain in your next for truly Sr transcendit Captum, ye writing thro’ Haste (I suppose) is not (by me att least) legible. Sr yours to serve
Green’s assertion that Cotton Mather was, on or before October 1, 1722, asked to become Rector of Yale, to succeed Timothy Cutler, is the most interesting point in this letter. It seems worth while, therefore, to try to decide just how much weight should be given to it.
There is, of course, no inherent improbability in the statement. Mather’s interest in Yale is well known, and his activities in its behalf prior to 1722 have been recorded by his biographers. Nor is there any evidence to show that the forces which defeated his ambition to become President of Harvard were similarly active at Yale. He seems to have been on good terms with the authorities of the younger college, and that they should call upon him, after Cutler’s defection — particularly at a time when fears were felt for the orthodoxy of Yale — would be natural enough, in view of his wide fame as a scholar, and as a champion of traditional Congregationalism.
Green’s statement, however well it accords with probability, lacks any support save for the entry in the Courant for the day on which his letter was written. Sewall says nothing of Mather’s having been called to the rectorship of Yale; Mather’s own diary and that of his father, for 1722, are not known to exist, and I know of no contemporary document which mentions the matter. Nor do the Yale records refer to it.
It is possible, of course, that the whole affair rests simply on an unfounded rumor which may have circulated in Boston in 1722, but this does not seem probable. For one thing, Green elsewhere seems to be an accurate witness. Even at two centuries’ distance most of his statements can still be verified, and those which cannot — for example, some of his remarks about More — cannot to-day be shown to have been untrue. In the second place, if the story about Mather was false, it is hardly possible that Green would have been misled by it. He was writing to a connection of the Mathers, and he was himself a disciple of Cotton Mather, a member of his church, and one upon whom the busy divine looked with affectionate interest.860 The Courant might have accepted mere hearsay and printed it as fact; Green is not likely to have done so when it would have been easy for him to ascertain the truth. Nor is there a reasonable possibility that he took the story from the Courant without verification. Friends of the Mathers were not apt to be friends of the Courant, and if they read it at all must have read it with more suspicion than faith. Indeed, there is some reason to believe that Green had not seen the October 1 issue of the Courant, when he wrote to Williams, for in that issue was not only an account of Fish’s death but the names of those who were drowned with him. Green calls them simply “his intended wife & mother” and does not give their names. Moreover he adds details to the news account, and his “they say” suggests that he gleaned the story not from print but from conversation. On the face of it Green seems qualified to speak with authority, and there is more reason to believe him than to doubt him, if there are no serious difficulties in the way of belief.
That Sewall does not mention the matter need not be considered a difficulty. Sewall did not mention other matters of which he must have known, and in this case he was probably not so well informed as Green. Sewall’s friendship for the Mathers was concentrated chiefly on Increase; Cotton more than once rubbed the old justice the wrong way. Certainly there is no reason to suppose that Cotton Mather ever made a confidant of Samuel Sewall. If Yale did call Mather, his parishioners, his pupils, and his close friends were those who would hear of it. They would be those to whom Green referred by “we” when he said “whether he will go we are uncertain.” The number of those who were aware of the offer made to Mather, if it was made, was probably small. Someone who was well informed may have let the Courant share the secret, but it is in no way surprising that, save for the Courant entry and the Green letter, no other record of the affair, if it ever had reality, has come down to us.
More serious at first sight, as an objection to believing that what Green and the Courant said is true, is the absence of any confirmation in the Yale records. But on October 1, 1722, before which date Mather is said to have been asked to succeed Cutler in the Rectorship, Cutler was still Rector, his resignation not having been accepted. Therefore no official offer of his chair to Mather could possibly have been made. This by no means implies that no offer was made, but simply that such an offer must have been informal in character. It was quite clear on September 13 when Timothy Cutler presented to the Trustees of Yale a declaration of his conversion to Episcopalianism, that he could not much longer continue to hold his office. It was therefore obvious that a successor would soon be needed, and, although final action on the matter was postponed until October 17, no Trustee can have doubted that he must begin to consider candidates for the rectorship. If one or more of the Trustees thus considering chose to write Mather to inquire whether he would accept the office, when Cutler’s resignation took effect, the basis for Green’s story would exist. No official offer could be made before October 17; that an offer unofficial in character, but none the less valid, should have been tendered to Mather prior to October 1 is certainly possible.861 He learned by a letter from Stamford, dated September 25, “It must be acknowledged to the divine goodness, that all the trustees then present [on September 13] (and of the whole number wanted only three … ) shewed themselves constant to your principles.”862 They were not only constant to Mather’s principles but prompt to turn to him when troubles threatened Yale. On September 25 John Davenport and Stephen Buckingham wrote from Stamford jointly to Cotton and Increase Mather telling of Cutler’s defection,863 and on October 2 the Reverend Joseph Moss of Derby, Connecticut, wrote to Cotton Mather asking his advice and help, and the Rev. Joseph Webb sent to him from Fairfield on the same day a letter saying, “I cannot but hope some measures will be concerted by yourselves in this juncture for the preservation of the good old cause.”864
Of these men, Davenport, Buckingham, and Webb were trustees of Yale, but no one of them says anything of Mather’s having been asked to become Rector. Indeed, Buckingham and Davenport, whose letter is the earliest in date, suggest that Mather may not have heard of Cutler’s change of heart. Mather, however, on the day when the letter was written already knew about the affair.865 There were eight trustees besides Webb, Buckingham, and Davenport, and one or more of them, believing that Cutler was not likely to be continued in office and that Mather would be a good successor, may have secured the consent of most of their fellow trustees and have written Mather asking whether he would take the rectorship. Davenport, Buckingham, and Webb may not have been consulted, or if they were, may not have been sure whether or not the offer had been communicated to Mather, and so not have wished to refer to it in writing him.
The important point is that the absence of any reference to the matter in the letter of September 25 from Buckingham and Davenport and in Webb’s letter of October 2 in no way militates against a belief that Mather was offered the rectorship, since some communication of the news from New Haven had reached his father and him at least by the 25th, and since this communication may well have contained the offer in question, even though the fact of its having been sent was not certainly known to Davenport and Buckingham and Webb when they wrote later. The offer must have been informal and tentative, but granting this there is no reason for refusing to believe that it was made — or, indeed, that if Mather had accepted it, it would have been made formal at the next meeting of the trustees. And the Green letter and the Courant entry supply what seems to be independent testimony to the effect that the offer was made, and reached Mather a few days before October 1, 1722.
Finally, then, it appears that we have the evidence of a good witness and a friend of Mather to the effect that in September, 1722, he was offered the rectorship of Yale, and that we have also a newspaper item to the same effect. There appears to be no valid objection in the way of accepting the evidence as true. If it is accepted, it sheds new light on the biography of Cotton Mather and on his relation to his times. If he was called to Yale, it was an honor and should be numbered among his laurels. If he was ambitious to become President of Harvard, and sorely disappointed when his hopes were defeated, it must have been some consolation to realize that at Yale, for which, as the home of Congregational orthodoxy, he had tried to do much, his learning and his strength were recognized. He could hardly have left Boston and his aged father, nor would he, probably, have given up his church, by which he was loved, even though some Bostonians not in his congregation treated him, as he felt, unworthily. If he was asked to go to Yale, it shows that his fame was not confined to Boston, though his unpopularity to a great extent was. Most important, perhaps, it demonstrates that, by 1722, Cotton Mather cannot have been, as is sometimes suggested, a man whose reputation was past and whose popularity was outworn, but that he was, instead, one whose abilities outweighed his defects in the eyes of his contemporaries. Surely none but such a one could have been considered a worthy leader for an institution in the destinies of which every New Englander interested in higher education felt an interest, and to which, rather than to Harvard, many of them looked for the preservation of what seemed to them to be the best ideals and traditions of the Puritan colonies.