Dueling in California (A Legal History)

The delegates who met in Monterey in 1849 to draft California’s first constitution debated the need to limit dueling during the convention. Noting that the formality associated with dueling primarily made it a practice of political elites, delegate William Gwin began to push for the penalty to be (rather than a prison term), a permanent ban on voting or holding elected or appointed office.

Delegates Louis Dent and Henry Larkin argued against a ban on dueling, arguing that disenfranchising men because of duels did a disservice to the candidates and the voters who might want to elect them.

“No clause that you can introduce in the Constitution will prevent a man from fighting a duel, if it be in defense of his honor. There are few men who will not risk their lives when their honor is at stake.” – Delegate Louis Dent, 1849 Constitutional Convention

“You allow the most corrupt man to hold office; but you wish to say, that because an honorable man is compelled to defend his honor and engage in a duel that he cannot hold the office of Constable, or Justice of the Peace, or any other office in this State. I am no apologist for duels, but I believe the people are capable of selecting the men that should represent them, from the highest to the lowest position in this State. A man should not be disenfranchised because he defends his honor, or the honor of his wife and family…” – Delegate Henry Larkin, 1849 Constitutional Convention

Alternatively, Gwin and McDougall argued that the ban would divert the desire to fight duels in other directions.

“If you deprive a citizen of this State from holding any office of trust or profit within the gift of the people, for fighting a duel in defence of his pride or honor, that pride and that sense of honor will seek revenge in some other way if he does not choose to be disenfranchised.” – Delegate John McDougall, 1849 Constitutional Convention

“I want a man when he fights a duel with a citizen of California, or aids or abets in a duel, to be forever prohibited from holding office here.” – Delegate William M. Gwin, 1849 Constitutional Convention

Eventually, the ban of dueling was incorporated into California’s first Constitution as Article XI, Section 2:

“Any citizen of this State who shall, after the adoption of this Constitution, fight a duel with deadly weapons, or send, or accept a challenge to fight a duel with deadly weapons, either within this State or out of it; or who shall act as second, or knowingly aid or assist in any manner those thus offending, shall not be allowed to hold any office of profit, or to enjoy the right of suffrage under this Constitution.”

The law proved difficult to enforce, with officeholders frequently traveling to secluded areas to fight for their honor. The the Denver-Gilbert Duel (1852) was held near in a field along the road between Sacramento and Auburn, while the Broderick-Terry Duel (1859) was held near a farm at Lake Merced (south of San Francisco).

The unenforceability of the Constitution’s ban became so widely noticeable that Governor Latham mentioned it in his Message to the Legislature on his first day in office in 1860. It’s worth noting that he would resign five days later after being appointed by the Legislature to fill the U.S. Senate vacancy created by Broderick‘s death in the 1859 duel.

“It is folly to cumber the statute book with laws which cannot be executed, and therefore, public opinion alone must furnish the remedy. So, too, in regard to dueling; many valuable lives have been sacrificed in this State under what (I think) has been mis-called the “code of honor.” So long, however, as the majority of the community sanction a resort to this mode of settling difficulties, so long they will continue to occur… The law prohibiting dueling has not been enforced, and therefore remains a dead letter upon the statute-book.” – Milton Latham (“Message from the Governor”, 1860 Assembly Journal, page 59)

The start of the Civil War would bring a new surge of political violence and duels, including the Murder of Assemblyman John C. Bell (1860), the Terry-Worthington Duel (1861), and the Piercy-Showalter Duel (1861). Interestingly, this flare-up in violence both proved the law ineffective, ending attempts to legislate dueling out of existence, while at the same time burning out California politician’s desire to duel.

 

A New Home in the California Penal Code

The Legislature eventually expanded the ban on dueling, but chose to put the language into statute (rather than the Constitution) this time. The new code, found in Chapter VII of Title VIII of the Penal Code (drafted in 1872), was a massive expansion, made it a crime;

• To send or accept a challenge to fight a duel (up to 1 year in jail or prison and a lifelong ban on voting and holding public office)
• To fight a duel (up to 1 year in jail or prison and a lifelong ban on voting and holding public office
• To fight a duel from which someone dies within a year (2-4 years in prison)
• To act as a second in a duel, or knowingly aid or assist in any manner (banned from public office and voting)
• To criticize a person for not fighting a duel (a misdemeanor)
• To criticize a person for not sending or accepting a duel (a misdemeanor)
• To leave the state for the purpose of fighting a duel.
• For judges and sheriffs not trying to prevent a duel or arrest those preparing to duel ($1,000 fine)

 

The bills were amended only slightly in 1873-74 and again in 1880.

 

The Long Overdue Repeal

In 1994, Assemblyman Jack O’Connell introduced what is frequently called “clean-up legislation” to repeal a number of “obsolete laws.” Among the laws repealed by O’Connell’s bill (AB 3326 of 1994) were the Penal Code sections banning dueling and the Civil Code sections used to financially punish successful duelists. The bill passed both houses without a single NO vote and was signed into law by Governor Pete Wilson on July 20, 1994.

• Penal Code, Section 225. A duel is any combat with deadly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel.
• Penal Code, Section 226. Every person guilty of fighting any duel, from which death ensues within a year and a day, is punishable by imprisonment in the state prison for two, three or four years.
• Penal Code, Section 227. Every person who fights a duel, or who sends or accepts a challenge to fight a duel is punishable by imprisonment in the state prison, or in the county jail not exceeding one year.
• Penal Code, Section 228. Any citizen of this State who shall fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapons, either within this State or out of it, or who shall act as second, those thus offending, shall not be allowed to hold any office of profit, or to enjoy the right of suffrage, and shall be declared so disqualified in the judgment, upon conviction.
• Penal Code, Section 229. Every person who posts or publishes another for not fighting a duel, or for not sending or accepting a challenge to fight a duel, or who uses any reproachful or contemptuous language, verbal, written, or printed, to or concerning another, for not sending or accepting a challenge to fight a duel, or with intent to provoke a duel, is guilty of a misdemeanor.
• Penal Code, Section 230. Every judge, sheriff, or other officer bound to preserve the public peace, who has knowledge of the intention on the part of any person to fight a duel, and who does not exert his official authority to arrest the party and prevent the duel, is punishable by fine not exceeding one thousand dollars ($1,000).
• Penal Code, Section 231. Every person who leaves this State with intent to evade any of the provisions of this Chapter, and to commit any act out of this State such as is prohibited by this Chapter, and who does any act, although out of this State, which would be punishable by such provisions if committed within this State, is punishable in the same manner as he would have been in case such act had been committed within this State.
• Penal Code, Section 232. Any person who fights a duel, or sends or accepts a challenge to fight a duel, either within this state or out of it, or who shall act as a second, or knowingly aid or assist in any manner those thus offending, shall not be allowed to hold any office of profit, or to enjoy the right of suffrage.
• Penal Code, Section 779. When an inhabitant or resident of this State, by previous appointment or engagement, fights a duel or is concerned as second therein, out of the jurisdiction of this State, and in the duel a wound is inflicted upon a person, whereof he dies in this State, the jurisdiction of the offense is in the county where the death happens.
• Penal Code, Section 780. When an inhabitant of this State leaves the same for the purpose of evading the operation of the provisions of the Code relating to dueling and challenges to fight, with the intent or for the purpose of doing any of the acts prohibited therein, the jurisdiction is in the county of which the offender was an inhabitant when the offense was committed.
• Civil Code, Section 3347. If any person slays or permanently disables another person in a duel in this state, the slayer must provide for the maintenance of the surviving spouse or spouse of the person slain or permanently disabled, and for the minor children, in such manner and at such cost, either by aggregate compensation in damages to each, or by a monthly, quarterly, or annual allowance, to be determined by the court.
• Civil Code, Section 3348. If any person slays or permanently disables another person in a duel in this State, the slayer is liable for and must pay all debts of the person slain or permanently disabled.