Academic journal article Vanderbilt Law Review

The End of the Affair? Anit-Dueling Laws and Social Norms in Antebellum America

Academic journal article Vanderbilt Law Review

The End of the Affair? Anit-Dueling Laws and Social Norms in Antebellum America

Article excerpt

I. INTRODUCTION

Jonathan Cilley and William Graves fought their duel in the early afternoon of February 23, 1838.1 The two faced off near the Anacostia River bridge leading out of Washington, D.C., having IMAGE FORMULA4

agreed in advance to duel with rifles at a distance of eighty paces.2 Shortly before three o'clock, they stood opposite one another, and at the signal, they exchanged shots, Cilley firing first.3 Both men missed. The men who accompanied them to the duel-their seconds-tried to work out the disagreement that led the men to the dueling-ground, but to no avail.4 For a second time, both stood and exchanged fire; for a second time, both missed. Now, Cilley was ready to end the duel, but by this time Graves was enraged and insisted on another exchange.5 The two men's seconds backed away again, the signal was given again, and the men exchanged fire once more. This time, Cilley dropped to the ground, shot dead.6

The duel and its result quickly attracted national attention, for the two duelists were not just gentlemen skirmishing over a private slight, but United States Congressmen-Cilley from Maine, Graves from Kentucky.7 So were six of the witnesses at the duel.8 The outcry grew when Graves and the other Congressmen were not immediately expelled from Congress, but instead merely made the subject of an investigation?

As word of the duel and its outcome spread, Congress was bombarded with petitions demanding that it pass a law banning dueling in the District of Columbia, even though dueling was already illegal under the common law.10 Within two weeks of Cilley's death, Senator Samuel Prentiss of Maine put before the Senate a bill "[T]o prohibit the giving or accepting within the District of Columbia of a challenge to fight a duel."11 The bill would make sendIMAGE FORMULA6

ing a challenge a felony punishable by five years imprisonment, and would make killing an opponent in a duel murder.12

On the Senate floor, however, the bill met a mixed response. Senators from Northern states, where dueling had largely died out, strongly supported the ban.13 Southern senators, however, representing the region where dueling still flourished, voiced doubts. A few simply did not believe dueling should be outlawed. Arkansas Senator Ambrose Sevier argued that dueling was often necessary, and that "nine out of every ten [duels] were fought for causes that could not be got over any other way."14

Even Senators who professed to abhor dueling argued that the law would do little good. Anti-dueling laws were on the books in all states, but often ignored. Public opinion supported dueling, and until this changed the law would be a dead letter. "What community, . . ." asked Missouri Sen. Lewis Linn, "would pronounce a man either a murder[er] or a felon, who might chance to kill another in a fair fight?"15 William Preston of South Carolina agreed, pointing out that the reason the common law had not stopped dueling was "a state of public opinion . . . which was averse to the stern execution of the law applicable to dueling."16 Seeking a middle ground, a few Senators suggested weakening the proposed law's penalties, arguing that a less punitive measure stood a better chance of being enforced; but their proposals were not accepted.17

The last Senator to speak on the bill was Henry Clay of Kentucky, who acknowledged that the law would likely have little effect. Dueling was ill gal everywhere, yet it was not the law that decided whether mea: 1%eled, but public sentiment.18 In the North, where public opinion opposed dueling, men did not duel; in the South, where dueling was the norm, men dueled, or else risked "having the finger of scorn pointed at them."19 Clay nonetheless supported the bill, chiefly because he hoped it might alter the "state IMAGE FORMULA9

of the public mind" on dueling. …

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