I wrote recently about a Kentucky law that required all "first responders" to take an oath swearing that they had never fought in a duel, causing me to wonder whether there had been a problem with first responders showing up and deciding to settle their own differences before helping the victims. As a number of readers informed me, this greatly understates the importance of dueling in Kentucky law.
The anti-dueling oath is actually a part of the Kentucky Constitution, Section 228 of which requires all officers of the state, and all members of the bar, to take an oath swearing that they "have not fought a duel with deadly weapons within this State nor out of it [which should cover all the possibilities], nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God." So the oath was in the first-responder legislation because it is constitutionally required.
And I should have known that those spoilsports would ban future dueling too. Section 239 not only makes dueling illegal, but also provides that duelers "shall be deprived of the right to hold any office of honor or profit in this Commonwealth." Since attorneys hold an "office of profit" and — depending on the attorney — honor, this applies to them too. A number of Kentucky attorneys wrote to tell me that they, too, had to swear they had never dueled.
These provisions have been in the constitution since 1849. They were added because existing anti-dueling laws had simply not worked, such was the hunger for single combat. According to the article "Kentucky and the Code Duello," the sort of people who felt the need to duel also tended to be those who ran for office (i.e., "gentlemen") so the sections above were intended to try to stop them by threatening their political career if they dueled.
Since many of these people were also lawyers, of course they found a way around this. They chose to interpret "duel" as an armed proceeding that followed the formalized rules of ye Code Duello (formal challenges, choice of weapons, etc.). So they just quit following the rules:
Known as the de facto duel, this method of fighting constituted nothing but a free-for-all brawl. Opponents did not bother with the niceties of issuing a challenge or worrying about protocol. They would simply begin shooting or stabbing at their foe with bloodthirsty abandon.
I would guess that "bloodthirsty abandon" was probably not what the drafters intended.
As that suggests, anti-dueling laws did little if anything to stop dueling in Kentucky or anywhere else. One law review article on the topic of dueling concludes that dueling was common at least in the South until social norms changed, which (not surprisingly roughly) coincided with the South losing a ginormous de facto duel with the North. The last reported anti-dueling prosecution was in New Mexico in 1990, but that conviction was thrown out, apparently on the grounds that two guys getting guns and shooting each other is not necessarily a "duel." State v. Romero, 801 P.2d 681 (N.M. Ct. App. 1990). The no-dueling oath, it appears, is just a relic of a simpler time when attorneys were wont to shoot and stab each other with bloodthirsty abandon, rather than choking each other to death with legalese. Where's the honor in that?
Link: Ron D. Bryant, Kentucky and the Code Duello (2005) (Kentucky Secretary of State's website).
Link: Wells, The End of the Affair? Anti-Dueling Laws and Social Norms in Antebellum America, 54 Vand. L. Rev. 1805 (2001) ("Clearly, the Civil War killed the duel.").