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.

McDougall

“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

Jack O’Connell

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.

 

Capitol Ghost Stories

Standing in the well-lit hallway outside the Governor’s office, you wouldn’t necessarily think that the State Capitol has a scary past. The friendly Highway Patrol officers pose for photos with visitors and the county displays offer cheerful reminders of the diversity of California’s people and places.

There is also a less known history of murders and hauntings. Being the week of Halloween, it seemed like a good time to look back.

Memorial at the former Stockton Asylum

One story close to home is that of Reuben Clark, the architect who designed the State Capitol. A series of delays in the construction led to mounting costs and pressure on Clark, which eventually drove him insane. He died at the Stockton Insane Asylum in 1866, never having recovered from his time at the Capitol. State Senator Jehu Berry, while helping write the current California State Constitution, was “taken with a mania” and confined at Stockton for “his own and the public safety.”

Almost 4,500 people were eventually buried in the Stockton Asylum‘s cemetery, of which only 1,619 were moved when the new cemetery opened. That means that there may still be nearly 3,000 bodies beneath the lake at CSU Stanislaus at Stockton (including Mr. Clark). Well, less than 3,000 since bodies are occasionally found.
[See also: Students wary of ghost at former Stockton Developmental Center]

On April 14, 1927, lobbyist Harry Hill shot and killed Capitol staffer Marybelle Wallace in a murder-suicide just outside of the elevators on the fourth floor of the State Capitol (historic side). Although initially friendly, Wallace had started avoiding Hill after he suddenly proposed to her. She planned to flee Sacramento to escape Hill, but on what was to be her last day at the Capitol, he found and shot her when she again refused his advances. The first person to arrive at the murder scene was Senate Minute Clerk Harold J. Powers (who would later serve as Senate President pro Tem and Lieutenant Governor). Wallace is buried at Calvary Cemetery in Los Angeles.

Coincidentally, the day that Wallace had planned to escape (April 15th) was the 67th anniversary of another murder at the State Capitol. On April 15th, 1860, Assemblyman John C. Bell was stabbed to death on the Assembly Floor by a colleague during a fight over a redistricting bill.

Outside of the Capitol, truck driver Mike Bowers committed suicide by crashing his fully-loaded semi-truck into the south side of the Capitol on January 16th, 2001. The crash caused millions of dollars in damage and, together with the 9/11 attacks, led to the increased security presence at the Capitol today.

There was also the Ghost of Assemblyman Chalmers, an 1870s Assemblyman who died of starvation after his wife chained him to a wall in their basement. For several decades, this building (the Vineyard House in Coloma) has reportedly been haunted by the ghost of Chalmers. There were the murder victims of the State Legislature, most notably John Yule and Lloyd Magruder (who was murdered in his sleep by men he had hired to protect himself).

Poster for Dark Shadows (a 2012 Warner Bros. movie)There was also Assemblyman Barnabas Collins of Butte County, whose name was used for the main character (a vampire) in the TV show and horror-comedy movie “Dark Shadows” (released in 2012). From all indications, the grave was undisturbed and he remains in the ground.

Ghost stories and the paranormal aren’t only limited to the Legislature. On May 28, 1934, Virginia Johnson, the daughter of State Treasurer Charles G. Johnson, was found soaked in kerosene and set on fire in a garage a few blocks from their home in Sacramento. Sacramento police determined that Virginia’s death was a suicide, although her father told newspapers that convinced that she had been hunted down and killed by a “murderous fiend”.

In 2009, “paranormal investigator” Nancy Bradley visited the Capitol and reported on her findings. Even more recently, in 2013, the unruly ghost of a certain former legislator appeared on Twitter, dispensing wisecracks and occasional advice like

and

So what’s the weirdest thing you’ve seen at the Capitol?

Detangling Confusing Names

One of the most wicked mistakes you can make while doing research is confusing two people with similar names. Some people with similar names are easy to differentiate; for example the two Edmund G. Browns. Although they had similar names and held some of the same offices (Governor and Attorney General), the father and son went by very different names “Pat” and “Jerry“, which made them easy for most to tell apart.

Others are not so easy.

A Frank Jordan or Two

A father/son combo who also held high office but who didn’t use different nicknames were the two Frank Jordans who served as Secretary of State. The first, Frank C. Jordan served as Secretary of State from 1911 until his death in 1940. The second, Frank M. Jordan served from 1943 until his death in 1970.

The Bob Wilsons of San Diego

Bob Wilson, a Republican, represented San Diego in Congress from 1953 until he retired in 1980. In the 1980 election, the local State Senator, Bob Wilson, who was a Democrat, ran for the open seat. Not enough voters took the bait and the Republican held the seat. As a side note, State Senator Bob Wilson first arrived in the state legislature in 1972, when he won the special election created by the resignation of Pete Wilson.

The Bill Campbells in the Legislature

William P. “Bill” Campbell represented Los Angeles in the Assembly between 1965 and 1976, and in the Senate between 1976 and 1992. He was elected Senate Minority Leader between 1979 and 1983.

In 1996, William J. “Bill” Campbell was elected to the Assembly from Orange County, serving three terms before terming out in 2002. Bill Campbell was elected Assembly Minority Leader in 2000-2001. There was also a Bob Campbell in the Assembly from 1980 to 1996 and a Tom Campbell in the State Senate from 1993 to 1995.

Howser you gonna spell that?

This was the story of three men named Fred who, in the 1940s, served on the Supreme Court, as Lieutenant Governor, and as Attorney General.

Fred N. Howser served two terms in the Assembly (1941-1944) and as Attorney General (1947-1950). Frederick F. Houser (served three terms in the Assembly, 1931-32, 1939-1942) and as Lieutenant Governor (1943-46). Frederick W. Houser served two terms in the Assembly (1903-1906) and a member of the California Supreme Court (1937-1942). Supreme Court Justice Houser was the father of Lieutenant Governor Houser, but not related to the Attorney General.

Senators Jack and Jim

John James Hollister Sr. (he went by “Jim”) served two terms in the State Senate (1925-28 and 1937-40). John James Hollister Jr. (who went by the name “Jack”) served a little over two terms in the Senate (1955-1961).

Those East Bay George Millers

Want to drive over the Carquinez Strait between Benicia and Martinez? There are two bridges that carry cars over the water, the George Miller Jr. Memorial Bridge heading south and the Congressman George Miller Benicia–Martinez Bridge heading north. In this case, the George Miller Jr. is actually the father of George Miller.

George P. Miller was elected to the State Assembly from 1937 to 1940. In 1944, he was elected to his first term in Congress. George P. Miller‘s congressional campaign was run by George Miller Jr. (no relation) who was the Chairman of the Contra Costa County Democratic Central Committee. Two years later, George Miller Jr. was elected to the State Assembly and, in 1948, to the State Senate where he served until he died in 1969. When George Miller Jr. died in office, his son George Miller ran for the vacant Senate seat but lost. In 1972, Congressman Miller lost the Democratic Primary to Pete Stark. In 1974, after a redistricting, Stark changed Congressional districts and George Miller won the seat, which he held until retiring in 2014.

Name recognition is great in elections, but sometimes they sure do make things confusing for historians.