THE LAW OF DUELING. From the beginning of the nineteenth century the practice of dueling had been common throughout America, the North, even, not being exempt, as witness the fatal encounter between Aaron Burr and Alexander Hamilton. North Carolina had, in 1802, (Rev. Stat., Ch. 34, sec. 3) made it a crime to send a challenge or fight a duel or to aid or abet in doing either; but, according to the strict letter of the law, it would be no crime to send a challenge from without the State or to fight a duel on the soil of another State, and in all the duels fought in this section great care was taken to go across the State line into either South Carolina or Tennessee. No effort, apparently, was ever made to punish those who as principals, seconds or surgeons had participated in such encounters, it having been considered that the law of North Carolina had not been violated unless the duel had actually been fought on its soil. No duel was fought within the State; but in the Erwin-Baxter and the Hilliard-Hyman duels, the challenges had most probably been sent and accepted in Buncombe county. However, as such matters were of a secret and confidential nature, it is likely that no evidence of such challenges was ever presented to a grand jury of that county, as, if it had been, true bills would doubtless have been returned against those charged with having sent or accepted the challenges. For dueling was never approved by the common people of this section, and its practice was confined strictly to a small class of professional men and politicians. The quarrels of farmers, merchants and others were settled in the good old fist and skull, or rough and tumble, style, in which knives and pistols were never used. Section two of Article XIV of the Constitution of North Carolina of 1868 gave dueling its death blow forever; for, while there is nothing more sacred than a politician's honor, prior to 1868 nothing had been found that could prevent him from fighting duels for its preservation; whereas, the moment he discovered that unless he found some other means of protecting it he would have to forego the honor of holding office in North Carolina, he immediately and forthwith discovered a way!

THE JACKSON-AVERY DUEL. At some time prior to the admission of Tennessee into the Union Andrew Jackson and Waightstill Avery, lawyers, fought a duel on "the hill on the south side of Jonesboro, Tenn. It seems to have been arranged that neither party desired to injure the other, and both fired into the air, pistols being the weapons used. John Adair was Avery's second, Jackson's being unknown.

"There are two versions as to the cause of the duel, the first being that Jackson had ridiculed Avery's pet authority-Bacon's Abridgment-and Avery, in his retort, had grown, as he afterward admitted, too sarcastic, intimating that Jackson had much to learn before he would be competent to criticise any law book whatever. Jackson sprang to his feet and cried: 'I may not know as much law as there is in Bacon's Abridgment, but I know enough not to take illegal fees.' Avery at once demanded whether he meant to charge him with taking illegal fees, and Jackson answered 'I do sir,' meaning to add that he had done so because of his ignorance of the latest law fixing a schedule of fees. But Avery had not waited for him to finish his sentence and hissed in Jackson's teeth 'It's as false as hell.' Then Jackson had challenged Avery and Avery had accepted the challenge. When they had arrived on the ground and exchanged shots, they shook hands; after which Jackson took from under his arm a package which he presented to Avery, saying that he knew that if he had hit Avery and had not killed him the greatest comfort he could have would be Bacon's Abridgment.' When the parcel was opened it contained, cut to the exact size of a law book, a piece of well cured bacon.

"The other version is that Avery promised to produce Bacon's Abridgrnent in court the following morning and that Jackson had gone to Avery's room and removing the book had substituted a piece of bacon in its stead in Avery's green bag. When Avery opened this bag in court the next day and the bacon fell out, he was so incensed that he challenged Jackson at once. The challenge had been accepted and shots exchanged, whereupon each had expressed himself as satisfied and the matter ended."<a href="#1" class="toolTip" title="Footnote: 1

From "Dropped Stitches," Ch. VIII.">[1]

COL. F. A. OLDS’ ACCOUNT. In Harper’s Weekly for December 31, 1904, is an account of this duel which had and still has the approval of Hon. Alfonzo C. Avery, oldest descendant then living of Hon. Waightstill Avery. It contains the challenge, which follows:

August 12, 1788.
When a man’s feelings & character are injured he ought to seek a speedy redress; you recd a few lines from me yesterday & undoubtedly you understand me. My character you have Injured; and further you have insulted me in the presence of a court and a large audience. I therefore call upon you as a gentleman to give me satisfaction for the same. I further call upon you to give me an answer immediately without Equivocation and I hope you can do without dinner until the business is done; for it is consistent with the character of a gentleman when he Injures a man to make speedy reparation, therefore I hope you will not fail in meeting me this day from yr Hbl. St.
Col. Avery.

“P.S.—This Evening after court is adjourned.”

THE FACTS OF THE CASE. These were told to Judge A. C. Avery by his father Col. Isaac T. Avery, who was the only son of Waightstill Avery. “When the latter practiced law in Mecklenburg, N. C., he and young Jackson were well acquainted. Avery was elected in 1777 the first attorney general of North Carolina. He afterwards married a lady who lived near Newberne, in Jones county, and soon after this marriage resigned and settled in Jones, becoming colonel of that county’s regiment of militia. His command was not in active service during the Revolution, except in some occasional troubles with the Tories, until it was called out when Lord Cornwallis invaded North Carolina…. He secured the passage of a bill creating the county of Washington, which embraced the whole State of Tennessee, and then became the leading member of the bar at Jonesboro, which was the county seat. At the close of the Revolutionary War Andrew Jackson went to Burke county and applied to Waightstill Avery to take him as a boarder at his country home and instruct him as a law student. Col. Avery told him he had just moved to the place, and had built nothing but cabins, and could not grant his request. Jackson went to Salisbury, studied law there [under Judge Spruce McCay], and settled at Jonesboro, until the new county of Davidson (with Nashville as the county seat) was established…. Just before the challenge to fight was sent by Jackson, Avery appeared in some laws at Jonesboro as opposing counsel to Jackson, and ridiculed the position taken by Jackson, who had preceded him in argument. Jackson considered the argument insulting and sent him the challenge. Col. Avery was raised a Puritan. He graduated at Princeton with the highest honors in 1766, and remained there a year as a tutor, under the celebrated Jonathan Edwards and the famous Dr. Witherspoon, who signed the Declaration of Independence as a representative of New Jersey. Avery was a Presbyterian and opposed on principle to dueling, but he so far yielded to the imperious custom of the time as to accept the challenge and go to the field, with Colonel, afterwards Governor, Adair of Kentucky as his second. After the usual preliminaries he allowed Jackson to shoot at him, but did not return the fire. There-upon, having shown that he was not afraid to be shot at, Avery walked up to young Jackson and delivered a lecture to him, very much in the style a father would use in lecturing a son. Avery was very calm, and his talk to the brave young man who had fired at him was full of good sense, dispassionate and high in tone, and was heard with great attention by the seconds of both parties, who agreed that the trouble must go no further, but should end at this point, and so then and there a reconciliation was effected between these two brave spirits. Col. Avery took the challenge home and filed it, as he was accustomed to file all his letters and papers, endorsing it ‘Challenge from Andrew Jackson.'”

THE VANCE-CARSON DUEL. To the late Silas McDowell of Macon county we are indebted for many facts concerning the duel between Dr. Robert Brank Vance of Buncombe and Hon. Samuel P. Carson of Burke. Mr. McDowell was the friend of both these gentlemen; and, although he waited forty-nine years after the duel had been fought, and himself was in his eighty-first year before committing his recollection of that lamentable event to paper, it must be accepted as the most authentic, because the only, account now available of that affair. Hon. A. C. Avery of Morganton, in an article published in the North Carolina Review (Raleigh) for March, 1913, has supplemented this statement with many important facts bearing on the principals and seconds concerned; and from these two statements the following facts have been carefully compiled:

SAMUEL P. CARSON. He was the son of Col. John Carson and of his wife, who, before her marriage to him, had been the widow of the late Gen. Joseph McDowell of Pleasant Gardens, N. C. He, like his father, was a Democrat, and was young, handsome, eloquent, magnetic, blessed with a charming voice, delighting in all the pleasures and Opportunities of a healthful, vigorous physique. He was educated at the “Old Field Schools” of the neighborhood till he reached his nineteenth year, when he was taken into the family of his half brother, Joseph M. Carson, where he was taught grammar and directed in a course of reading with an eye to political advancement; and before he was 22 years of age he represented the county of Burke in the legislature, defeating his kinsman James R. McDowell for that place. He was born about the year 1797, and was about four years younger than Dr. Vance. Even when a boy he was a great favorite not only with people of his own walk in life, but was worshipped by the negroes on his father’s plantation. His mother was a Methodist and young Samuel was a great favorite at camp meetings where his deep-toned and harmonious voice led in their congregational singing. He was also popular with ladies.

GEN. ALNEY BURGIN. He was Carson’s second, and was a social and political leader of Burke county, having several times been elected to the legislature. He preserved the challenge which Mr. Carson sent by him to Dr. Vance. This challenge had been written by Carson at Pleasant Gardens and was dated September 12, 1827, taken to Jonesboro, Tenn., and sent from there in order to avoid a violation of the law of North Carolina regarding dueling; for he states in the challenge: “I will do no act in violation of the laws of my State; but as you have boasted that you had flung the gauntlet before me, which in point of fact is not true; for, in the language of chivalry, to fling the gauntlet is to challenge-to throw down the iron glove;…. but, if you are serious, make good your boast; throw the gauntlet upon neutral ground; then, if not accepted, boast your victory.” He notified Dr. Vance that he would pass through Asheville to meet friends in East Tennessee, where he would spend a week at Jonesboro, and expected to receive an answer by way of Old Fort, near which place Gen. Burgin lived. His son, Joseph McD. Burgin, was the father of Mrs. Locke Craig, the wife of the present governor.

HON. WARREN DAVIS. This gentleman was a South Carolinian, a cousin of John C. Calhoun, a member of Congress, a man of decided ability, and “thoroughly conversant with the intricate rules of the Code Duello.” He was called in by Mr. Carson as an additional second because Gen. Burgin was not well versed in the punctuho of the duello, and Davis “was expected in the arrangements for the encounter and any correspondence that might ensue, to protect Carson.”

ROBERT BRANK VANCE. He was born in Burke county about 1793, and was the son of David Vance, who, after serving as an ensign under Washington, married the daughter of Peter Brank, who lived about a mile from Morganton, and fought as captain of a company in McDowell’s regiment at Ramseur’s Mill, Cowpens and Kings Mountain, while uncle, Robert Brank, for whom Dr. Vance was named, had the reputation of being one of the most daring soldiers in his company. Young Vance was a fine scholar as a school boy; but, owing to an affliction which had settled in his left leg that member had been shortened about six inches and retarded his physical development that when fully grown he was only five feet and five inches in height. His face, how ever, was handsome, and his “mind was of no common order.” His family were Presbyterians and he attended the Newton academy near Asheville, afterwards graduating from an unnamed medical school and commencing the practice of medicine in Asheville in 1818. But, having drawn a five-thousand dollar prize in a lottery, and his father having willed him a large portion of his estate, Dr. Vance purchased a fine library and retired from practice three years after opening his office. He was encouraged by his friends, and especially by young Samuel P. Carson, then in the legislature from Burke, to oppose Felix Walker, whose popularity then “was in the descending node,” for Congress, but declined to do so till 1823, when he ran for Congress and was elected by a majority of one vote. It was said that when he appeared in Congress John Randolph of Roanoke, struck by his diminutive size and physical deformity, remarked, “Surely that little man has come to apply for a pension.” But Vance soon convinced the strong men of the house “that Aesop’s mind could be hid but not long, under an Aesop’s form, and at the close of the term he had the respect of every distinguished man in the house.” The most important measure before the session was an appropriation of $250,000–” and many townships of land” for Gen. Lafayette; and for this measure Vance voted.

FRIENDS BECOME POLITICAL RIVALS. In 1825 Samuel P. Carson and Dr. Vance were opposing candidates for Congress, and Carson was elected; but in 1827 Dr. Vance invited some of his friends to meet at Asheville, and announced that he would oppose Carson’s re-election, and would insist on his defeat because he had voted for an appropriation of $25,000 to the citizens of Alexandria, Virginia, which had been recently destroyed by fire. To this meeting Silas McDowell was invited, but his opposition to Vance’s idea that Carson could be defeated because of this vote displeased all of Vance’s friends, but not Vance himself., Vance and Carson accordingly were opposing candidates in 1827, and at the first meeting at Asheville Carson spoke first; but, in reviewing his course in Congress, he omitted to refer to his vote for the appropriation for the citizens of Alexandria. When Dr. Vance spoke he called attention to the fact that Carson had not referred to that vote, whereupon Carson answered that the City had been destroyed by fire and its citizens left homeless and destitute; and that Vance himself, if he had been in Carson’s place, would have voted likewise, because “I think he has a heart.” Vance retorted that if those who had applauded Carson’s statement “could admire, as some seem to do, the heart promptings that send a man’s benevolent hand into some other man’s pocket than his own, all I have to say about it is–I can’t.” Upon this Carson answered that “until Vance should withdraw the charge that he had put his hand into another’s pocket to save his own,” they could be friends no longer; and proceeded to charge Vance with inconsistency as he himself had voted when in congress for the larger donation to Lafayette. Thereupon Vance charged Carson with being a demagogue, and when Carson replied that but for~ Vance’s diminutive size he would hold him to account for his “vile utterances,” Vance ret6rted “You are a coward and fear to do it.” This closed the debate.

THE CASUS BELLI. According to Mr. McDowell, Carson’s failure to challenge Vance, after having been publicly called a coward, confirmed Vance in his belief that he would not fight; this idea of Carson’s cowardice having been suggested in the first instance by Carson’s refusal to accept a challenge from Hugh M. Stokes, a lawyer, and a son of Gen. Mumford Stokes of Wilkes, on the alleged ground that young Stokes had forfeited his right to recognition as a gentleman because of his intemperate indulgence in strong drink. A second meeting of Vance’s friends was soon held at Asheville, but from it Silas McDowell was excluded. There it was determined that Vance should attack the character of Carson’s father “on a floating tradition that, after the defeat of our army at Camden, Carson, with many other hitherto patriotic citizens of North Carolina, had applied to Cornwallis, while near Charlotte, to protect their property. The tradition went so far as to include many of the patriotic men of Mecklenburg county. Up to this day that tradition is an historic doubt.” But Judge Avery points out that Col. John Carson had been elected by the people of Burke to attend the convention held at Fayetteville for the Constitution of 1787 of the United States, as a sufficient refutation of the charge as applied to him. But, at the next joint debate, which was at Morganton, Vance used these words: “The Bible tells us that ‘because the fathers have eaten sour grapes, their sons’ teeth have been set on edge.”… My father never ate sour grapes and my competitor’s father did. …In the time of the Revolutionary War my father, Col. Vance, stood up to fight, while my competitor’s father, Col. Carson, skulked, and took British protection.”

THE INSULT IS RESENTED. All of Samuel P. Carson’s brothers were present when this statement was made ” and made a move as though they would attack Vance, when prominent citizens interfered and the excitement calmed down.” The election resulted in Vance’s defeat, three to one, Vance getting only 2,419 votes. Afterwards, “Col. Carson wrote Vance an ill-natured and abusive letter, to which Vance sent the brief reply…. ‘I can have no altercation with a man of your age; and, if I have aggrieved you, you certainly have some of your chivalrous sons that will protect you from insult.’ A few days thereafter Gen. Alney Burgin came to Asheville … to enquire which of Colonel Carson’s sons Vance alluded to in his lines to his father,” and Vance replied “Sam knows well enough I meant him.” Then the challenge was delivered and accepted.

THE DUEL. It was agreed that three weeks should elapse before the duel, which was to be fought at Saluda Gap, on the line between North and South Carolina, on the Greenville turnpike. Gen. Franklin Patton was Vance’s second and Dr. George Phillips his surgeon, while Dr. Shuflin was Carson’s surgeon. “A few special friends attended as spectators, and, though invited by both gentlemen,” Mr. McDowell did not go. Davy Crockett, who, according to Dr. Sondley, in “Asheville’s Centenary,” had married -a Miss Patton, of Swannanoa, is said to have been present as a friend of Carson’s. The distance was ten paces and the firing was to be done between the words “Fire, One, Two, Three,” with rising or falling pistols. Vance chose the rising and Carson the falling mode; and at the word “Fire,” Carson sent a ball entirely through Vance’s body, entering one and a half inches above the point of the hip and lodging in the skin on the opposite side. It does not appear that Vance fired at all. Vance died the next day, thirty-two hours after having received his wound, at a hotel on the road, probably Davis’s.

CONTRITION. When he saw that Vance had been wounded Carson expressed a wish to speak to him, but was led away; and before his death Vance expressed regret that Carson had not been permitted to speak with him, and stated that he had “not the first unkind feeling for him.” Vance also told Gen. Burgin that he had fallen where he had always wished to die” on the field of honor.” He was buried at the family grave-yard on Reems creek.

CARSON’S SUBSEQUENT CAREER. Mr. Carson went on to Congress after the duel, was elected a delegate to the State convention of 1835, moved to Texas and became Secretary of State in David G. Burnett’s cabinet, never returning to North Carolina. The result of this duel is said to have embittered his life. Mr. McDowell hints at an attachment for, Miss Donaldson, the pretty niece of Andrew Jackson; but Carson died unmarried.

PREMONITION. It is quite evident that Vance expected to be killed; for he made his will (dated November 3, 1827) in which he referred to the approaching duel, and after his death it was admitted to probate, though, when the court house was destroyed in the spring of 1865, the record book contaning it was destroyed. Fortunately, however, a certified copy had been obtained prior to the fire, which copy is still in existence.<a href="#2" class="toolTip" title="Footnote: 2

It was probated in January, 1828, and the certified copy was made March 11, 1848.">[2] Judge Avery also states that Dr. Vance stopped at his father's house on his way to the dueling ground "and though almost everyone knew what was about to occur, no allusion was made to it by the family in conversation with their guest. The impression was made on some of the family that Vance seemed sad. Though recklessly fearless, it was natural that he should seem depressed in view of the prospect that he or Carson, or both, would probably be killed."

VANCE'S MOTIVE. Although Mr. McDowell had been "excluded" from the second conference between Vance and his friends at Asheville, he and Dr. Vance lodged at the same house at Morganton, and he said: "When Vance to our room … I remarked to him, 'Doctor, you have this day sounded the death knell over yours or Carson's grave perhaps both.' To this Vance answered: is no fight in Carson. I wish he would fight and kill me. Do you wish to know why? I will tell you: My life has no future prospect. All before me is deep, dark gloom, my way to Congress being closed forever, and to fall back upon my profession or former resources of enjoyment makes me shudder to think of. Understand me, McDowell, I have no wish to kill or injure Carson; but I do wish for him to kill me, as, perhaps, it would save me from self-slaughter."' Would such a statement have been made except to a trusted friend and under the sacred seal of friendship?

COL. JOHN CARSON 'S IMPLACABILITY. Judge Avery tells that, after the Morganton insult, Col. Carson forego his privilege of challenging Vance only upon the promise of his six sons that if "Samuel Carson should first challenge Vance, and, if he should fall, then the oldest son, Joseph McDowell Carson, should challenge him, and if every one of the six should fall in separate encounters with Vance the old Colonel should be at liberty to wipe, out the insult to the family by meeting Vance on the field of honor." He adds: "Vance was not only mistaken in expecting a back down, but in fact he was provoking a difficulty with six cool and courageous men, everyone of whom was a crack marksman." But that was not all. Judge Avery further states that Warren Davis, Carson's second, refused to "act as his second unless he would promise to do his best or use his utmost skill to hit Vance." Dr. Vance must have known who Davis was and why he had been brought from South Carolina, as well as of the marksmanship of the six Carsons; and that he had deliberately offered a deadly insult to the venerable head of an old and distinguished family because he believed that Samuel P. Carson would not fight is almost incredible. That Dr. Vance should wish to be killed by his boyhood's friend is even more unbelievable. But, whatever his motive, criticism of his conduct was silenced above his open grave; for he went to his death with a courage that was sublime; and for more than three quarters of a century censure has remained dumb, "with a finger on her lips and a meaning in her eyes."

JUDGE AVERY'S ACCOUNT. In his "Historic Homes of North Carolina" (in the N. C. Booklet, Vol. IV, No.3) the late Hon. A. C. Avery recorded the fact that on the night after the debate between Vance and Carson at Morganton, Samuel P. Carson, his six brothers and his father agreed that if the father would not challenge Vance Samuel would do so, and if he fell each son in succession should challenge Vance till he should be killed. In the event that all the seven Carson sons should fall, then, Col. Carson, the father would send a challenge. It is also stated that Carson went to Tennessee to send the challenge in order not to violate the law of this state; and that David Crockett was one of Carson's friends at the duel. Just before taking his position on the field Carson told Warren Davis that he (Carson) could hit Vance where ever he chose, but preferred not to inflict a mortal wound. Thereupon, Davis said: "Vance will try to kill you, and if he receives only a flesh wound, he will demand another shot, which will mean another chance to kill you. I will not act for you unless you promise to do your best to kill him." Carson promised, and Vance fell mortally wounded, Carson lamenting that the demands of an imperious custom had forced him to wreck his own peace of mind in order to save the honor of his family. In 1835 Carson was elected to the Constitutional Convention of that year. He emigrated to Texas in 1836, was a member of the Constitutional Convention of 1836 in that State, and Sam Houston made him secretary of State. Carson was active in securing the annexation of Texas. The Biographical Congressional Directory, 1911, says that Carson "after his retirement from Congress moved to Arkansas; died in Hot Springs, Ark., in November, 1840" (p.532). The same work (p.1076) says that Vance "moved to Nashville, Nash county, where he held several local positions." All of which is wrong. It does not give the date of his birth or of his death.

THE CLINGMAN-YANCEY DUEL.<a href="#3" class="toolTip" title="Footnote: 3

Hon. J. H. Wheeler's "Reminiscences."">[3] "Although kind, social and friendly in his private intercourse, Gen. Thomas L. Clingman's character is not of that negative kind so concisely described by Dr. Johnson of one 'who never had generosity enough to acquire a friend, or spirit enough to provoke an enemy.' Whenever the rights of his State and his personal honor were infringed, he was prompt and ready to repel the assailant. He has followed the advice of Polonius to his son:

'Beware of entrance
Into a quarrel; but being in,
So bear thyself that thy opposer
Will beware of thee.'

"In 1845, Hon. William Yancey, of Alabama, well known in his day as 'a rabid fire eater,' 'attempted some liberty with General Clingman. A challenge ensued. Huger, of South Carolina, was Yancey's friend; and Charles Lee Jones, of Washington City, was the friend of Clingman. They fought at Bladensburg [Maryland].

"Mr. Jones, the second of General Clingman, in his graphic description of this duel, published in theCapital, states:

"After the principles had been posted, Mr Huger, who had won the giving of the word, asked, "Are you ready? FIRE !"

"'Mr Clingman, who had remained perfectly cool, fired, missing his adversary, but drawing his fire, in the ground, considerably out of line the bullet scattering dust and gravel upon the person of Mr. Clingman. After this fire the difficulty was adjusted.'

"Hon. Kenneth Rayner, the colleague of Mr. Clingman in Congress, who was on the ground, states that 'he had never seen more composure and firmness in danger than was manifested by Mr. Clingman on this occasion.' On seeing his friend covered by the dust and gravel, and standing at his post unmoved he thought he was mortally wounded. He rushed to him and asked him if he was hurt. 'He has thrown some dirt on my new coat,' he replied…. On other occasions, as with Hon. Edward Stanley and others, Gen. Clingman has evidenced a proper regard for his own honor by repelling the insults of others."

ERWIN-BAXTEE DUEL. At some time between 1851 and 1857 the late Major Marcus Erwin and the late Judge John Baxter fought a duel with pistols at Saluda Gap on the Greenville, South Carolina, turnpike. Judge Baxter was shot in the knuckle of the right hand, the ball ranging up and along the right arm to the shoulder. It was not a serious wound, but disabled its recipient for a second shot. It was claimed by Baxter's friends that he was opposed to dueling, and had not fired to hit Erwin. Erwin's friends retorted that if his right arm had not been pointing toward Erwin when Erwin's bullet struck Baxter's knuckle, the ball would not have ranged up it to his shoulder.<a href="#4" class="toolTip" title="Footnote: 4

Hon. A. C. Avery to J. P. A., Dec.12, 1912. ">[4] The late Dr. Edward Jones of Hendersonville was Erwin's second and the late Dr. W. L. Hilhard was Erwin's surgeon. Terrill W. Taylor was Baxter's second and Dr. W. D. Whitted his surgeon.<a href="#5" class="toolTip" title="Footnote: 5

Dr. T. A. Allen of Hendersonville writes, November 12, 1912, that Dr. W. D. Whitted was Baxter's surgeon and T W. Taylor may have been his second but Col. Wm. M. Davies, a distinguished teacher of law at Asheville, was a boy in Hendersonville at the time, and insists that John D. Hyman was Baxter's second. It is difficult to state positively who the second was.">[5]

RESULT OF A POLITICAL QUARREL. It is agreed that the cause of this duel was politics pure and simple; but the special offence alleged has been forgotten. Judge A. C. Avery writes:

My recollection is--in fact, I know--that the duel was fought just south of our State line at Saluda gap. According to my best recollection it occurred in 1852, soon after Gen. Clingman and others had followed Calhoun in opposing the compromise measure of 1851 and had been put beyond the pale of the Whig party, on that account. Marcus Erwin was editing a Democratic paper established shortly before that time in Asheville. My impression is that the name of the paper was the News. I know it was sent to me at the Bingham School. My impression is that Erwin had written some very strong articles or editorials advocating the doctrine of State's Rights. Mr. Baxter, who then lived in Hendersonville, wrote a communication to the Whig paper in which he criticised Mr. Erwin, calling him the 'Fire-eating Editor of the News' (if that was the name of the paper); and in answer to him Mr. Erwin wrote a very caustic criticism of Mr Baxter, in which he said, enclosing the article, in substance, that Mr. Baxter had called him a frie-eater; but that, while he did not devour that element, Mr. Baxter would find him ready and willing to face it. This editorial, as I recollect it, called forth a challenge from Baxter, which was accepted and Mr. Erwin selected Saluda as the place for the duel. Judge Avery thinks Dr. Jones was Erwin's second and Dr. Whitted of Hendersonville was Baxter's surgeon, but could not recall Baxter's second."<a href="#6" class="toolTip" title="Footnote: 6

Letter from Judge Avery to J. P. A.">[6]

"But Dr. J. S. T. Baird, who remembers seeing Judge Baxter at court while the Doctor was its clerk, between 1853 and 1857, with his hand bandaged from the effects of the wound, scouts the idea that Baxter sent the challenge. Elias Gibbs, who now (1912) lives near Hendersonville, was sitting talking to Mr. Baxter when the challenge came. Col. Baxter read the challenge, showed it to him, then tore it into scraps and threw them on the floor. He accepted, and with his second Terrell Taylor, father of Mrs. Joseph Bryson, went on horse-back to South Carolina line, fearing the law in his own state. His (Baxter' wife's suspicions became aroused after he left, so, she with a number of slaves gathered the torn fragruents together and read them, discovering her husband's whereabouts. Col. Baxter was tinged with Quakerism, was a very conscientious and honorable man. When it came to fighting the duel, a large crowd of citizens had learned of it, and were present. Col. Baxter did not wish to show the white feather by not standing up, but without any intention of injuring his opponent, shot at his feet. "<a href="#7" class="toolTip" title="Footnote: 7

Mrs. Mattie S. Candler's "History of Henderson County," 1912. As Judge Avery heard of it while he was at Biogham's school and graduated there in 1857. it is clear that the duel was not prior to that date.">[7]

Major Erwin was, by many, considered the "brainiest" man in the State; while Mr. Baxter afterwards moved to Tennessee where he was made United States circuit judge, and served with distinction till his death.

THE HYMAN-HILLIARD DUEL. In the Summer of 1855 John D. Hyman, editor of the Spectator said in his paper the mail service was not as efficiently conducted as when been under the management of the Whigs. Dr. W. L. Hilliard, now deceased, was then the postmaster, and a partner of the late Dr. J. F. E. Hardy.<a href="#8" class="toolTip" title="Footnote: 8

Dr. Hilliard was born in Georgia in 1823. He practiced medicine in Asheville nearly forty years, and stood in the froot rank. He was a surgeon in the Confederate army from May 1861, to August 1863, when he took charge of a hospital in Asheville. After the war he resumed practice, and died in 1800. From Dr. G. S. Teonent's "Medicine in Buncombe," 1906.">[8] Besides this, both were Democrats. Dr. Hilliard sent Dr. Hardy to Col. Hyman with a polite request for a retraction and apology, which were refused. Thereupon a challenge to mortal combat followed which was promptly accepted, rifles designated as the weapons, and Paint Rock on the Tennessee line agreed on as the place of meeting.

Dr. Hilliard had married the year before Miss Margaret Love, a daughter of Col. J. R. Love, and was living over the drug store of Dr. Thomas C. Lester in a brick building, the on the site now occupied by the Falk Music Store. Between this and what is now Aston street, then a mere lane, Mr. James Patton. In the rear of Dr. Hilliard's apartments were his barn and stable, with a single exit, that on Main street. The post office was just above his house on that street. Capt. James P. Sawyer, or Captain Frank M. Miller, was the clerk in charge.

Now, Col. Hyman and his party had left the day before the duel was to be fought; but Drs. Hilliard and Hardy and Col. David Coleman, Dr. Hilliard's second, knew that the authorities had been informed of the contemplated duel and that they would be arrested if they should openly attempt leave town. So they waited till nightfall, when they had the plank from the rear wall of the stable removed and slipped their horses out into the lane that is now Aston street. They were afraid also that if they followed the most direct route to Paint Rock, that down the eastern bank of the French Broad, they might be arrested. Consequently, they crossed the French Broad at Smith's Bridge and went down the left-hand side of the river. But it is forty miles to Paint Rock, and ride as hard as they could through the dark night, dawn was breaking when they reached the bridge at Warm Springs. As the duel was fixed for sunrise the Hyman party began to fear that the doctor had been arrested, but Col. John A. Fagg, who lived at Paint Rock, said that he knew Hilliard and that they need have no apprehensions.

According to the recollection of Francis Marion Wells, now 91 (1912) years old, and living on Grass creek, Madison county, within less than one mile from where the duel was fought, the Hyman party arrived at Paint Rock the day before that on which the duel was to be fought. People living in the neighborhood began to suspect the truth, and the authorities of Cocks county, Tennessee, were notified. So that when the Hilliard party reached the scene early on the morning of the day set for the duel, from forty to fifty men had assembled to see what might occur. Among these were peace officers of North Carolina. The belligerants, realizing that a duel in the circumstances would most likely be interfered with by the authorities of North Carolina or Tennessee, announced publicly that the effort to have the encounter take place had been abandoned and all parties started on their return to Asheville. This seemed to have accomplished its purpose, for no one followed. But when Hot Springs was reached the parties merely crossed to the left or western bank of the French Broad, not for the purpose of ascending the river to Asheville, but of descending it to the Tennessee line by a road leading to the mouth of Wolf creek. As they passed Mr. Wells' house he noted particularly the men who were present: They were John D. Hyman and John Baxter, his second, and Dr. Charles Candler, his surgeon. With Dr. W. L. Hilliard was his second, Marcus Erwin,<a href="#9" class="toolTip" title="Footnote: 9

Dr. W. D. Hilliard, Dr. W. L. Hilliard's son, and Theo. F. Davidson, however, agree in saying that Col. David Coleman was Dr. W. L. Hilliard's second.">[9] and Dr. J. F. E. Hardy, his surgeon. Col. John A. Fagg was along to show the way. The duel was fought with rifles at fifty paces just about 100 yards over the North Carolina line. Dr. Candler told Wells that he weighed the powder and lead that went into each rifle. The road on which the duel was fought is partly grown up now coming into the new road in a slightly oblique direction from the gap of the little ridge. The spot is about one and a half miles west of the French Broad river. As the party returned Col. John Baxter shouted to Squire Wells as he passed: "Nobody hurt," which proved to be true. Only one shot was exchanged, a second shot not having been demanded. There is a tradition that but for the fact that Col. Fagg cried "Halt!" as the commands to fire were being given, Hyman would probably have killed Hilliard, as the latter fired first, his striking the ground near Hyman's feet. Also that Hyman's bullet clipped a button from Hilliard's coat.

A ONE-SIDED DUEL ACROSS THE STATE LINE. All unconsciously two men of Cherokee county imitated famous duelists of former years by standing in one State and killing a man in another:

On the 11th day of July, 1892, William Hall and John Dockery were on the "State line between North Carolina and Tennessee. They had a warrant for the arrest of Andrew Bryson whom they soon descried coming up the ridge in front of them. They hid behind a large oak tree until Bryson came within gunshot range, when Hall told him to surrender. Bryson was then just over the line and in Tennessee, whereas Hall and Dockery were in North Carolina. Instead of surrendering, Bryson started to draw his gun, when he was shot and killed. The case was tried and the defendants found guilty at the spring term, 1893, of the Superior court of Cherokee County.<a href="#10" class="toolTip" title="Footnote: 10

114 N. C. Reports, p.909">[10] A new trial was granted by the Supreme court at the February term of 1894, on the ground that at common law there could be no conviction unless the men who were killed were within the jurisdiction of the court at the time the shot were fired.<a href="#11" class="toolTip" title="Footnote: 11

115 N. C. Reports, p.811">[11]
The defendants were re-tried and acquitted. The legislature at its next session passed a statute making such an act murder.<a href="#12" class="toolTip" title="Footnote: 12

Chapter 169, Laws of 1885">[12]


  1. From "Dropped Stitches," Ch. VIII.
  2. It was probated in January, 1828, and the certified copy was made March 11, 1848.
  3. Hon. J. H. Wheeler's "Reminiscences."
  4. Hon. A. C. Avery to J. P. A., Dec.12, 1912.
  5. Dr. T. A. Allen of Hendersonville writes, November 12, 1912, that Dr. W. D. Whitted was Baxter's surgeon and T W. Taylor may have been his second but Col. Wm. M. Davies, a distinguished teacher of law at Asheville, was a boy in Hendersonville at the time, and insists that John D. Hyman was Baxter's second. It is difficult to state positively who the second was.
  6. Letter from Judge Avery to J. P. A.
  7. Mrs. Mattie S. Candler's "History of Henderson County," 1912. As Judge Avery heard of it while he was at Biogham's school and graduated there in 1857. it is clear that the duel was not prior to that date.
  8. Dr. Hilliard was born in Georgia in 1823. He practiced medicine in Asheville nearly forty years, and stood in the froot rank. He was a surgeon in the Confederate army from May 1861, to August 1863, when he took charge of a hospital in Asheville. After the war he resumed practice, and died in 1800. From Dr. G. S. Teonent's "Medicine in Buncombe," 1906.
  9. Dr. W. D. Hilliard, Dr. W. L. Hilliard's son, and Theo. F. Davidson, however, agree in saying that Col. David Coleman was Dr. W. L. Hilliard's second.
  10. 114 N. C. Reports, p.909
  11. 115 N. C. Reports, p.811.
  12. Chapter 169, Laws of 1885.