Dueling: Law Versus Custom

Two combatants meet on a matter of honor. They’re both nauseous with fear. A dispute that seemed so important a few days before seems a poor cause to kill or be killed. But for both, killing or dying is preferable to disgrace.

Two seconds stand by. They’re supposed to be the voices of reason at a clearly unreasonable proceeding, calming influences at an occasion that could have been avoid if the principals had been sufficiently calm.

A surgeon surveys the scene. He may shorting be tallying the butcher’s bill.

The concept of dueling is at least a century out of date. Yet the idea still has emotional resonance. In fact, a former governor of Georgia, Zell Miller, commented that he wished he “lived in the day where you could challenge a person to a duel . . . ” during a particularly unpleasant television interview.

The duel is a staple of historical fiction. Both Horatio Hornblower and Henry Flashman chanced death on the field of honor.

Dueling was, of course, not confined to the pages of novels. The death toll associated with the custom included America’s first secretary of the treasury, Alexander Hamilton. One of Georgia’s signers of the Declaration of Independence, Button Gwinnett, died as a result of a wound received in a duel.

A number of dueling guides were used by gentlemen. They included the Irish Code Duello and the Code of Honor, written by John Lyde Wilson, a former South Carolina governor.

In a dispute between gentlemen, a duel was not a foregone conclusion. An aggrieved party was ordinarily expected to seek satisfaction by peaceful conciliation before sending a challenge.

The second was an indispensable player in the martial drama. He was more than a mere attendant on the dueling ground. The second was the disputant’s advisor and spokesman. He was a free agent and not bound to simply execute his principal’s wishes, but expected to exercise independent judgment on behalf of his friend’s honor and life. A second was, for example, required to refuse to deliver a note demanding satisfaction if it contained “improper or insulting words . . . .” He was, in practice, his principal’s attorney-at-lawlessness.

Georgia’s 1816 criminal code explicitly prohibited dueling. Similar provisions remained on the books almost continuously until 1969. These laws punished challenging another to a duel, delivering a challenge or otherwise acting as a second, and actually fighting a duel. Moreover, they required every public peace officer to prevent dueling under pain of removal from office.

Posting was the enforcement mechanism of the dueling culture. If an individual failed to comport himself as a gentleman-duelist, the opposing party could denounce him in writing and publish the denunciation in a prominent public place. If a person, for example, refused a challenge or demanded un-chivalrous conditions of combat, his foeman could reduce the terms of the underlying dispute to writing, describe the non- or malfeasance, declare the miscreant a coward and no gentleman and cause copies of the statement to be displayed, or posted, throughout the neighborhood. The laws against dueling also prohibited the practice of posting a man as a coward for not accepting a challenge or not fighting a duel.

The custom of dueling proved easy to prohibit but difficult to suppress. So long as he acted honorably and (of course) did not die, a duelist was likely to befit socially from participating. If he won, he was vindicated. If he lost, he was generally regarded with respect and sympathy. Moreover, many duels lacked a clear winner and looser. Accepted practice tended to minimize lethality. For example, Governor Wilson’s guide designated a smooth bore, flintlock pistol with a relatively short barrel as the standard dueling weapon. It was inaccurate and its firing mechanism tended to be unreliable, particularly in damp weather. Some combatants even deloped: they deliberately missed. Dueling could become a pageant of honor rather than true combat.

It could even be argued that organized dueling was relatively civilized. It limited the scope of violent quarrels to the essential participants. Dueling could prevent blood feuds where each injury begat an avenger and each avenger inflicted new injury. This sort of uncontrolled violence could decimate whole families.

Dueling-related offenses disappeared from Georgia law books decades ago. Fighting a duel is, however, still explicitly prohibited under the federal Uniform Code of Military Justice.

            References:

1816 Ga. Laws page 142, div. 9, §§ 4-9 (prohibiting dueling).

1833 Ga. Laws page 143, div. 9, §§ 4-8 (prohibiting dueling).

Thomas R. R. Cobb, 2 A Digest of the Statute Laws of the State of Georgia 811-12 (1851) (prohibiting dueling).

The Code of Georgia of 1933 §§ 26-5201 – 26-5205 (prohibiting dueling).

1968 Ga. Laws page 1249, § 2 (repealing prohibition on dueling).

10 U.S.C. § 914 (article 114 of the Uniform Code of Military Justice, prohibiting dueling).

John Lyde Wilson, The Code of Honor or Rules for the Government of Principals and Seconds in Dueling (1858) available at Google Books (including Governor Wilson’s rules, the Clonmell code, and the Galway articles).

Did They Write the Law Just for this Guy?

In the early hours of July 22, the University of Georgia police arrested Jon Taylor for felony aggravated assault. Mr. Taylor, a football player for the university, allegedly choked his girlfriend with his hands in a domestic dispute.

Under a law that took effect on July 1 of this year, assault “[w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation . . .” constitutes felony aggravated assault. It seems that Mr. Taylor was charged under this new provision.

The courts have had less than a month to interpret this new statute, so it remains an open question whether an “object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation” includes an assailant’s hands.

If Mr. Taylor is found guilty of aggravated assault by strangulation, he may write himself into Georgia’s legal history by challenging his conviction in the appellate courts.

Reference:

2014 Ga. Laws page ____, § 1 (H.B. 911/Act 576 of the 2014 Georgia General Assembly) (aggravated assault by strangulation); available at http://www.legis.

ga.gov/Legislation/en-US/display/20132014/HB/911.

Plea Bargains and Criminal Legislation (A Race to the Top or the Bottom?)

One of the defining characteristics of the American criminal justice system is plea-bargaining.

A plea bargain is an agreement between an official prosecuting attorney (acting on behalf of the government) and a criminal defendant (often with the assistance on his attorney). The defendant is formally charged with a criminal offense. Rather than pleading not guilty and demanding a trial, the defendant may agree to plea guilty in exchange for prosecution’s recommendation that a particular penalty be imposed. This agreed-upon penalty will invariably be less than the legal maximum. In the alternative, the prosecutor may agree to dismiss a serious charge if the defendant agrees to plead guilty to a lesser charge. These agreements, however, have no affect unless the judge approves them.

For example, a defendant is arrested and indicted for burglary. The maximum penalty is 20 years imprisonment. The prosecutor agrees to recommend a penalty of two years incarceration in exchange for the defendant’s guilty plea.

In the federal court system, 95 percent of formal criminal charges are disposed of by guilty pleas (rather than trials). The vast majority of the guilty pleas stem from plea bargains. Similar proportions exist in most state court systems.

The plea bargain is a necessary expedient in the American criminal justice system. In America’s antecedent, eighteenth century England, criminal trials were rapid (almost summary) proceedings: they routinely took less than an hour. Two centuries of procedural evolution have made jury trials ponderous affairs. Utilizing the nation’s current court facilities and staffs, it is inconceivable that every formal charge be tried, much less with a jury. Thus, the procedural expedient of plea-bargaining is a necessity for both the courts and the prosecution. It is also a benefit for the defendant: she can exchange the unpredictability of a trial for the relative certainty of a mutually acceptable deal.

There are, however, unintended consequences. Arguable, the most dangerous is the perception that everyone who is changed is, in fact, guilty and that police and prosecuting attorneys always prevail. The high incidence of convictions stemming from guilty pleas can create the belief that fighting the government in court is a forlorn proposition. While this is not true, the general shortage of trials reduces opportunities for the courts to check overreach by both law enforcement and prosecuting attorneys.

Another adverse result of plea-bargaining is its perverse affects on criminal legislation. When a legislative body prescribes the penalty for a crime, it should consider a number of factors, including proportionality and the need to deter offenses as well as to incapacitate and rehabilitate offenders.

With the rise plea-bargaining, a new temptation was created: legislators can strengthen the prosecution’s negotiating position by raising the maximum penalties for criminal offenses. (This is particularly attractive to legislators bent on validating their law and order credentials.) A defendant is simply more likely to agree to three years in prison if the maximum sentence for the crime charged is 20 years rather than five. Plea-bargaining encourages legislators to increase penalties.

Georgia’s criminal laws provide examples of this phenomenon. Under the state’s first penal code (enacted in 1811), the maximum penalty for rape was 16 years imprisonment. Today, rape can be punished by life imprisonment. The 1811 penal code established a penalty of no more than 12 years imprisonment for burglary. It carries a potential sentence of up to 25 years incarceration under current law.

If there is an overreliance of plea-bargaining, the appropriate remedy remains an open question. Under the present circumstances, simply prohibiting the practice is unreasonable. The realities of the criminal justice system necessitate plea-bargaining.

As late as the end of the nineteenth century, it was possible for an individual who abjured violence and theft to ordinarily avoid criminal prosecution. The twentieth century brought legal developments increasing the number of criminals. These included the prohibition of alcohol, the restriction of drugs, and the regulation of motor vehicles. A person could, as a result, be hailed into court despite the fact that he was neither violent nor a thief.

The need for plea-bargaining could be decreased by reducing the volume of prosecutions. Diminishing the number of criminal offenses could in turn, reduce the volume of prosecutions.

Some acts and omissions simply must remain on the books as crimes. Those offenses that involve neither moral turpitude nor great danger to the public should, however, be designated as petty offenses. (A petty offense is a violation punishable by confinement for six months or less.) There is no right to a slow and costly jury trial in petty offense prosecutions. When the government’s resources are not threatened by the potential for a jury trial and the defendant is not threatened by a long period of confinement, both parties will be less likely to enter into a plea bargain.

References:

1811 Ga. Laws page 26, §§ 57, 58, 60 (burglary and rape).

Official Code of Ga. Ann. §§ 16-6-1, 16-7-1 (2014) (burglary and rape).

Baldwin v. New York, 399 U.S. 66 (1970) (explaining the petty offense exception to the right to a jury trial).

Bureau of Justice Assistance, U.S. Dept. of Justice, Plea and Charge Bargain: Research Summary 1 (2011), available at https://www.bja.gov/Publications/ PleaBargainingResearchSummary.pdf (indicating that 95 percent of criminal cases were disposed of by guilty pleas in 2003).

John H. Langbein, The Origins of Adversary Criminal Trial 16-17 (2003) (describing the speed of eighteenth century English criminal jury trials).

Carrying Guns in Church: Commanded, Prohibited, and Permitted

My adopted home state of Georgia has recently entered the national (and, dare I say, international) news for its new gun laws. In the wake of a recent spate of tragic mass shootings, many states have enacted more restrictive firearms laws. Georgia has, in a contrarian spirit, liberalized its weapons regulations.

Georgia House Bill 60 will take effect on July 1, 2014. It is a 29 page bill and addresses many issues. One of H.B. 60’s most interesting features is that it allows individuals with weapons carry licenses to carry pistols, rifles, and shotguns in a place of worship with the permission the governing body or authority of the place of worship. The board of trusties of a congregational church could, for example, authorize people with the appropriate licenses to carry guns while in the sanctuary. Arms could then be brought into the sacred precincts at the discretion of the appropriate ecclesiastical leaders.

While this may shock, it is not without precedent. In Georgia’s late colonial period, an act of February 27, 1770 required most adult white males to carry a gun or pair of pistols to church and take their weapons to their pews. Moreover, church wardens and other religious officials were required to enforce this requirement by conducting inspections on Christmas and Easter and twelve other times each year. This law remained in effect for decades after independence.

Colonial Georgia was a veritable community-at-arms. It was established as a military buffer between the prosperous Carolina colonies and the ever-menacing Spanish in Florida. The colonists were expected to do their part in the defense of the crown’s possessions.

The colony’s relations with local Indians was initially good. Free Indians in amity with the government of the colony were accorded the same rights was whites and their interests were aggressively protected. Nevertheless, the specter of Indian attacks loomed in the imaginations of colonists and stimulated preparedness.

When Georgia was first established, slavery was prohibited. The colony was envisioned as a second-chance for the worthy poor. Unpaid slaves would be unwholesome competition to free people to who had nothing to offer but their labor. Ultimately, the colonists succumbed to the temptation to treat their bothers and sisters as chattels and the founding purposes of Georgia were subverted. With slavery came the fear of servile insurrection.  This was a practical incentive for remaining armed at all times.

One hundred years later, the foreign menace became a distant memory. The last of the Indian nations had been removed in the Trail of Tears. And the slaves had been legally freed. The original motivations for armed vigilance were removed.

In 1870, the Georgia General Assembly passed “[a]n Act to preserve the peace and harmony of the people of this State . . . . ” This act prohibited the carrying of deadly weapons in “any place of public worship” as well as any court, polling place, or other public gathering, but not “militia muster-grounds.” Violations were punishable by incarceration for up to 20 days.

This was a radical change of policy and is not attributable exclusively to the disappearance of existential threats to the state. It was a product of the development of new modes of worship.

Colonial-era church services were usually orderly and sober affairs and congregants were almost exclusively locals. Guns did not constitute any special hazard at these calm, community-centered affairs. After all, almost everyone knew everyone else. And everyone certainly knew his place.

Following independence, new practices arose: the revival and the camp meeting. In contrast to restrained church services, these gatherings were emotional experiences and often drew visitors from far and near. Communities could mix in broad fellowship. Popular preachers tried to attract religions tourists. In fact, a revival attended only by regular congregants would be an abject failure. With the potential for ecstatic frenzy and presence of strangers, the possession of weapons at revivals and camp meetings seemed an invitation to misadventure.

Georgia has maintained an explicit prohibition on carrying firearms in either places of worship or churches almost continually since 1870. (From 1969 until 1976, statute prohibited carrying weapons at public gatherings in general, without mentioning either churches or places of worship.) Very shortly, this will change. The scents of gunpowder and incense may mix.

I am reminded of a tale of dubious provenance. A parish priest became frustrated with his flock’s violent tendencies. On the way to and from mass, rival factions of his rustic congregation would brawl, using everything from knives and clubs to broad swords and battleaxes. The priest decreed a ban of all weapons from the sanctuary. Mass-goers would be forced to leave their weapons at home. They could not leave them outside the church, unattended, for fear of theft. A peace of God would be imposed, at least on Sundays and holy days. Or so the pastor thought.

The quarrelsome congregants arrived at an expedient: they had the village blacksmith fashion giant iron rosaries. They would beat each other with the chains (weighted with large iron beads, one for each ave and pater) and stab their enemies with sharpened crucifixes. Sacramentals were turned to decidedly unholy proposes.

Men and women bent on violence will do violence. Stripping them of their regular implements only stimulates their creativity.

(I gladly acknowledge that the title of this post was inspired by Chapter 18 of the book Jewish Wisdom by Rabbi Joseph Telushkin.)

References:

19 The Colonial Records of the State of Georgia, pt. 1, at 137-40 (1911) (act of February 27, 1770).

Robert & George Watkins, A Digest of the Laws of the State of Georgia 157-58 (1800) (indicating the continued effectiveness of the act of February 27, 1770).

1870 Ga. Laws page 421.

1968 Ga. Laws page 1249, § 1 (enacting Code section 26-2902).

1976 Ga. Laws page 1430, § 2.

2010 Ga. Laws page 963, § 1-3.

2014 Ga. Laws page ____, § 1-5; available at http://www.legis.ga.gov/ Legislation/en-US/display/20132014/HB/60 (House Bill 60 of the 2013-2014 Georgia General Assembly).

(While these references are hardly exhaustive, they should be sufficient to enable an interested reader to verify, or disprove, my conclusions.)