Duel

On this episode of Unwonk all about duels, we learn when you should put your seconds first, that insurance companies have been hated for longer than you think, and how to deal with a fellow coffee house customer who smells bad.

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Episode Transcript

UNWONK PODCAST – EPISODE 21: Duel

Hi, friend. This is a rough transcript of this episode of Unwonk. What’s that mean? It means that we’re just pasting the original script for the show plus unvetted transcripts of any interviews. So, you’re likely to see content that maybe didn’t make the final cut, maybe not see some content that was in the episode but not the original script, and run across a few typos.

As with everything on Unwonk, the transcript below is for general informational purposes only – this is not legal advice – if you need to have a legal question answered, please seek legit legal representation. 

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On this episode of Unwonk, we learn when you should put your seconds first, that insurance companies have been hated for longer than you think, and how to deal with a fellow coffee house customer who smells bad.

This is Unwonk. Answering all of the questions in the world with relevant and useful information. If you would like to submit a question, visit our site at Unwonk.com.

When you’re there, you can also find where to follow us on twitter, facebook, and all the social things. And make sure to tell your friends about us – there’s buttons for doing that right on the page for this episode at our website.

You can also check out our ask a lawyer column in deadspin by clicking on the banner at our site.

Even though the general information on this podcast is provided by actual attorneys, you’d be an idiot to think it is actual legal advice, and you’d also be the type of person who vote for your nation to leave the EU and then immediately afterwards Google the phrase “What is the EU.”

And now, today’s question:

Dear Unwonk,

I know that shooting someone is illegal, but what if they consent to it? Kind of like two people settling an argument in a duel scenario. Actually, now that I think about it, I’m talking about a duel. Are duels legal – seems like if everyone consents, having a private shoot-out shouldn’t be illegal.

Peter – Albuquerque, New Mexico

Hi Pete. I like how you kind of walked yourself through that question.  

So, before getting into this one, I’d like to point out that you’re using the if-it’s-private-and-between-consenting-adults-it-should-be-legal line of reasoning. And I don’t disagree with that in a lot of cases – except for those flash mob pillow fights in parks – that’s just infantile. You’ll see from our discussion today, though, that dueling isn’t about justice. It’s about the fallacy of honor and pride. Entirely different.

Before you start dusting off your set of dueling pistols, let’s discuss a relatively case from your state, New Mexico.

Thursday evening, April 13, 1989 – that’s so long ago that it was 6 months before the Simpsons premiered. A gentleman named Randy Johnson had just settled into a relaxing evening of TV at home. He heard a commotion outside, got up from his worn recliner, and went to check it out. Through his window, he saw his neighbor, Jerry Romero, in a heated argument with a fellow named Ricky Salazar, who had his car parked in front of Jerry’s place. They were shouting and gesturing at each other. Ricky stomped back towards his car and Jerry dashed into his house. Randy Johnson figured the excitement was over and went back to watch TV – it was, after all, Thursday night in 1989 and he probably didn’t want to risk missing any of Cheers, the Cosby Show or whatever else was on Must See TV that night. Though, we know, of course, that he could not have been watching the Simpsons at this point.

Just as Randy Johnson was back to enjoying TV – maybe an episode of A Different World –  he heard rapid gunfire and saw muzzle flashes from both Jerry’s house and Ricky’s car. Salazar sped away. After all the commotion, Randy Johnson, exasperated at this point, gave up on watching anything, especially the new episode of Dear John he’d been looking forward to all week.

Turns out, both Jerry and Ricky were wounded and taken to the hospital. Neither would admit to the police that the other had been shooting. This is odd, because snitching at this point would technically be OK since they were each already literally getting stitches. Each told the police that a mysterious third party did the shooting.

Without further evidence, the state convicted both Jerry and Ricky for the criminal offense of dueling. Duelling. In 1989.

Jerry appealed. And he won, and his conviction was overturned. He won because what happened between him and Ricky was not a duel, after all. Under New Mexico law, duels had been against the law since prior to statehood. However, as the court found in Jerry’s appeal, the word “duel” itself wasn’t actually defined. The court also found that – not surprisingly – there was a dearth of modern cases on dueling, since most states had banned them throughout the 1800’s and the practice generally fell out of favor.

What it did find, however, was that a duel is different from a regular fight because it is the result of design. Quoting another case, the court said:

A duel has none of the elements of sudden heat and passion. On the contrary, it is a combat, fought in cold blood, and under rules prescribing the utmost formality and decorum. One of the strongest arguments in favor of the dueling system was the fact that it tended to eliminate sudden and bloody encounters between angry combatants; that the code of necessity gave time for passion to subside and sober reason to return; that it gave opportunity for the intervention of friends, and it was said that this of itself operated to prevent bloodshed.

The appeals court thought that Jerry and Ricky arguing and then immediately jumping into rapid gunfire probably didn’t quite qualify as a formal agreement.

That case that the court quoted, by the way, was from 1913 – pretty far time-stretch to get some language on what a duel is.

In that case, Lester walked into Baker’s shop and asked Baker if he had killed his dog. Baker said he did, but it was an accident. So kind of a hit and run situation. At that point, Lester – having found the killer of his dog – proceeded to curse and verbally abuse Baker, applying to him several vile and vulgar epithets. Baker happened to be sitting down at the time, and Lester told Baker that if Baker moved, Lester would kill him. Baker – still seated – then told Lester that he was unarmed, but that if Lester would kindly put down Lester’s gun Baker would whip him with his fists, which proposition was not accepted by Lester, who continued to abuse Baker with vile and vulgar epithets. Baker then said, “If you will let me get to my cash drawer, I will shoot it out with you; get 16 steps apart and shoot it out.” it was evident to Baker that Lester had a gun, and Lester would use it, if necessary. Lester finally permitted Baker to get up from the chair and go towards his cash drawer. Before reaching the cash drawer, however, Baker drew a pistol from his coat and turned towards Lester – but Lester shot and killed Baker. Lester, it turns out, was a pretty quick draw. Like all good cases, Baker v. Supreme Lodge of the Knights of Phythias – decided in the Supreme Court of Mississippi, January 20, 1913 – was not a case about a duel, it was an insurance case where the underwriter didn’t want to pay out, so it was sued by Baker’s widow.  Apparently the Knights of Phythias don’t like paying out big when it comes to potential duels – and if not a duel – a sneaky thing like pulling a gun out of your coat pocket for a sucker shot. Turns out, being a dick is not a covered act under the Knights of Phythias policy.

Anyway, let’s go back to the more recent past to our friends Jerry and Ricky. When the court referred rules and duelling, it wasn’t kidding. Duelling had always been subject to a very formal set of rules, known as a code duello. In the 1700s’ through the mid 1800’s the Irish code duello was widely adopted in the US. In the mid-1800’s, even when states had starting passing laws against duelling, The governor of South Carolina, John Lyde Wilson, published a new set of dueling rules called: The Code of Honor – Rules for the Government of Principals and Seconds in Duelling. It’s a slender volume – about 25 pages – but pretty specific about the rules of duelling.

Why do we need rules? Why the formality? Why is duelling illegal if there are rules?

It’s the same reason vigilantism is outlawed. Yes, we live in a society of rules and laws, but those rules and laws are to be enforced in a courtroom. If someone does you wrong – say sullies your name with vile and vulgar epithets – you go to court. In reality, a duel is a childish form of vigilantism, buried under the swatch and facade of honor and dignity.

Many of the founding fathers were aghast that the duel made its way to America from Europe. Benjamin Franklin, for example, found it barbaric:

It is astonishing that the murderous practice of dueling … should continue so long in vogue. They decide nothing. A man says something, which a man tells him is a lie—they fight; but which ever is killed, the point in dispute remains unsettled”

In classic Ben Franklin style, he of course has a clever story to back this up:

A Gentleman in a Coffee house desired another to sit further from him.

Why so?, asks the gentlemen being asked to move, presumably waiting for his pour over

“Because Sir you stink”

The stinky man is offended. “That is an affront and you must fight me”

The first gentlemen responds, “I will fight you if you insist upon it; but I do not see how that will mend the matter, for if you kill me I shall stink too, and if I kill you, you will stink if possible worse than you do at present.”

Franklin’s point stands: The only thing a duel addresses is someone’s ego. The problem it meant to address survives the death of one of the two people who could have done something about it.

Now, back to those rules for the government of principals and seconds in a duel. A principal is one of the two people who will be settling something between them. A second is a friend of one of those people who’s in charge of administering the rules of the duel. The predecessor to this role in Europe – the person who makes sure the rules are followed – was called the Stickler. The second is essentially the principal’s representative, consigliere, and negotiator.

In his introduction to his duelling code of honor, Governor Wilson makes it seem like he also hates dueling. But he thinks that duelling is inevitable. He points to animals and plants as defending themselves against encroachments. It’s in our nature, apparently. He goes on, “It will be persisted in as long as manly independence, and a lofty personal pride, in all that dignifies and ennobles the human character, shall continue to exist.” His argument is that this is going to happen despite laws against it, despite all we can do to make everyone virtuous and to treat people better so duelling wouldn’t happen. He further says that 99 out of 100 duels don’t go very well because the seconds don’t know what they’re doing. So his code of conduct is the key to remedy all of those ignorant seconds.

Let’s look at what makes a proper duel from a different perspective. To do that, we can refer to the 1836 handbook called “The Art of Duelling,” authored by someone known under the pseudonym “A Traveller”.

Let’s talk gear.

Reading the Art of Duelling’s chapter on pistol selection is kind of like reading a post in an internet forum where a noob has just asked for advice on selecting equipment of some kind. Like you’re looking to buy a new gadget, know nothing about it, so you post a simple query on a well-known enthusiast site for that gadget, unleashing the floodgates of every gadget obsessed nerd on the internet. A Traveller insists on a pistol with a 10-inch barrel, more octogon shaped than round, at least 2/8ths of an inch thick, with two sites, carefully adjusted, and so on. Gets kind of wonky. I can see A Traveller doing duelling pistol unboxing videos if he was around today. It’s very important – he notes – that you not use sites made of silver – they are apt, when the sun glances upon them, to dazzle and deceive the eye. Use blue steel instead. He was not – to my knowlege – aware of male models back in 1836. He then goes into great detail on how to clean and load the pistol.

Practice, Practice, Practice

You can’t just wait around your whole life to be insulted by someone and then challenge them to a duel. You need to practice and be ready. The Art of Duelling says to find a place in your neighborhood where you can shoot at some wafers from 15 to 20 yards. And never take more than 2 to 3 seconds to aim from the time you present your pistol – you need to be a quick draw.

What’s really important, says A Traveller, is to make sure you’re accustomed to getting shot at without feeling nervous or uneasy. How? The book describes the making of a contraption of a wooden figure of a man that will fire a pistol at you when you raise your pistol to fire at the dummy. “No man can imagine, until he makes the experiment, exactly what his feelings will be when stationed in front of an antagonist. However courageous, however accustomed to face danger – still it is impossible to avoid a slight degree of uneasiness.” Especially, he notes, when it’s your first duel.

How do we stand in a duel? Make yourself as flat as possible – reduce body surface. And here’s a tip: “If aiming at a man…mark well one of the gilt buttons on his coat. A person can never fire with accuracy unless he aims at some small object.” If you try to just hit “a man,” you’re going to miss. But if you strive to hit a button, you’ve got a good chance of hitting the man wearing the jacket that the button is attached to.

The Chances

A traveler describes a conversation between him and a friend who was on the way to a duel:

“What has occurred my dear fellow?” said a Traveller.

“Oh! Nothing-nothing,” said his friend. “But I am going out.”

“Out where?”

“Where?” his friend whined. “Look at that letter on the table. I have accepted the challenge, and want your pistols. Oh! My poor wife! And the Damned Equitable won’t pay a rap of my insurance. What a cursed fool I am!”

A Traveller went to calm his friend. “Psha! Psha!” He actually wrote that – he said psha psha. “Listen to me, and compose yourself. You say you are going out – true. But that is on reason you should be shot. Only one man out of fourteen that go out receives the coup di couer; Therefore you have considerable odds in your favor.

The coup di couer, by the way, is the name for the fatal shot in a duel.

What can we take away from this exchange?

First, shitty insurance companies existed long before the 1900’s case we talked about earlier. Damned Equitable. Second, a one in 14 shot of dying was considered acceptable. The odds of dying in an airplane crash are 1 in a million, and I sometimes can barely bring myself to board the craft.

A Traveller further states that the odds of being hit but not killed are about 1 in 6. And that there are many parts of the body through which a ball may penetrate without proving mortal. “Some of my acquaintances now living have received shots through the lungs and spleen. One has been shot twice through the head; and although minus many of his teeth, and part of his jaw, he still survives, and enjoys good health.” So when something goes wrong in that guys life, he can say, “Well, at least I have my health, most of my brain tissue, some teeth and a partial jaw.” <Optimistic shrug>

But how do we get to a duel in the first place?

With a challenge. In writing.

Here’s an example A Traveler provides, it’s a letter to a lawyer challenging him to a duel – the challenger was cross-examined by the lawyer at a trial and felt insulted:

Sir,

You are renowned for great activity with your tongue-

Wait. Stop. This is a duel challenge. Can we get that 80s montage music in here from Episode 5?

Sir,

You are renowned for great activity with your tongue, and justly so, as circumstances that have occurred today render evident. I am celebrated for my activity with another weapon, equally annoying and destructive; and if you would oblige me by appointing a time and place, it would afford me the greatest gratification to give you a specimen of my proficiency.

Note that the challenger had been insulted that very day. Indignity in the UK wins over procrastination any day. And, to be blunt, “specimen of my proficiency” sounds like how a polite 19th century english rapper would refer to his own penis.

Under US rules – according to the code of honor – if negotiations fail to resolve the problem, the challenge has no option but to accept the challenge.

The Second

Alright. So, who’s going to deliver this message? That’s where the second comes in. And A Traveller devotes a lot of words to the selection of the second:

A man cannot be too careful in selecting the individual who is intrusted with his cartel. He should run over the names of his friends, and endeavour to obtain the services of a staid, cool, calculating old fellow; if possible, one who has seen some few shots exchanged: but I should advise his never choosing an Irishman on any account, as nine out of ten of those I have had the pleasure of forming an acquaintance with, both abroad and in this country, have such an innate love of fighting, they cannot bring an affair to an amicable adjustment.

That’s right. He said that. Not only did he say that. There’s a footnote about it:

By this remark I beg it will be understood, I do not intend any reflection upon the Irish character: on the contrary, many of my intimate associates are Irishmen, and I believe the oppressed sons of Erin to be the most generous, open-hearted, and truly courageous people on the face of the globe.

That’s right. He said that. He’s got Irish friends. It’s cool. Note, he’s not calling Irish people violent. No, he’s just saying that they love to fight. There’s a distinction there. I think. I do like also that he had math to back him up 9 out of 10 Irishmen.

As for your second. You need to be 100% honest with him on everything that led up to the challenge. If you’re the one being challenged, you need to put pride aside and let your second know all the facts.

Because your second is the one who does all the communicating – the principals never speak. He’s the go-between. The level-headed friend. The whole game here is geared towards a cooler head prevailing – because the seconds are the ones who are trying to see if the principles can negotiate this without resorting to the actual duel.

If that fails, on the day of the duel, the second is the one that makes sure the pistols are clean and working. He makes sure the duel grounds are well-selected. Trust me, you don’t want some jank-ass parking lot behind a Waffle House. According to A Traveller, two things are important here: make sure there’s no sun in the face – keeping in mind that early morning is usually best – and choose a spot where the other person will have a hedge or something similar behind him. It’s apparently easier to hit a target in contrast against the background.

Under US rules, the second also holds a pistol. If the other principal fires out of line, the second is allowed to shoot him. And if the second’s principal gets shot because the other principal fired out of line, the second is required to shoot the other principal

Getting Ready

The night before, it’s important to take the principal’s mind off things. At least, that’s A Traveller’s advice to get you

“That his mind may not dwell upon the affair, he ought to invite a few friends to dinner, and laugh away the evening over a bottle of port; or, if fond of cards play a rubber of whist.”  

A rubber of whist is when you the best of three of a card game called whist. I had to look that up. I haven’t seen any iPhone apps for whist, so I assume it’s a shitty game not worth playing. Also, avoid drinking too much booze and don’t eat food that creates bile.

And make sure to get to bed early: A Traveller recommends Sir Walter Raleigh’s novels, if you’re a fan of the romantic, or Lord Byron’s Childe Harold’s Pilgrimage, if you delight in the sublime, and read until you drop asleep.

And on waking up the morning of, A Traveler has advice there for your morning psych-up:

Let him drink the coffee, and take a biscuit with it. Then, in washing his face, attend to bathing his eyes well with cold water. If in the habit of wearing flannel next the skin, he should omit putting it on. Wounds have often become dangerous from parts of the flannel clothing being carried into them, particularly in warm climates. I do not advise his taking more than a biscuit and cup of coffee. To eat a hearty breakfast is wrong; I am not one of those who subscribe to the Italian opinion, that nothing can be well done by an Englishman unless his stomach is full of roast beef. The digestive organs are seldom prepared for the reception of food at such an unnatural hour as six or seven.

Didn’t people back then get up really early, anyway? What’s with this disdain for 6 am? And is flannel still as dangerous as it was in the 1800’s? Should I be worried about my flannel pajamas? And exactly how much beef were the British eating back then? And why did the Italians think that British people sucked at things unless they had all that beef? So many loose ends here.

Oh, he also says not to tell your spouse and children about the whole duel thing. It’s just gonna stress everyone out. So just leave a note or something to be opened if you die.

The morning of, the second should make sure that the pistol case is stocked and ready. As Traveller says, “instances have occurred more than once, of the pistols being left behind in the confusion of starting, subjecting the parties, of course, to much inconvenience and ridicule.” If you thought forgetting your keycard for work in the morning was embarrassing, try having an awkward exchange between principle and second in front of your opponent. “Wait, you don’t have them?” “No. You’re the principal, it’s your duel. I was in charge of picking up donuts.”

If the principal starts getting nervous on the way – or if he’s not getting psyched enough – the recommended course of action is a bottle of soda water with some brandy.

Arriving at the scene – no matter what – the principal is to get off his horse or exit the carriage, light a cigar, and walk around cooly. Check your opponent for any nervousness – don’t show any of your own. Once the principals are in place – the seconds and each side’s surgeon – oh yeah, don’t forget to bring a surgeon – should move back at least 8 yards. As between the principals, duels were usually fought at 10 to 14 paces – a pace being about 3 feet.

The Signal and the Shot

 

You’ve got to get the signal right. How else are you going to mortally wound your frenemy with honor and dignity because he said something about your grandma  . A Traveller prefers the signal be a dropped handkerchief after each principal indicates he’s ready. Another system is alternating shots, with the challenger firing first.

Now, once you’re in it, you might want to consider the reality of your mortality. If you so choose to stop the duel and admit fault, you delope. This means that you fire your gun into the ground or air. If you do this, it’s over. You give up. And the other party can’t fire again even if you refuse to admit fault to whatever you’re duelling about in the first place. It’s still disputed whether Alexander Hamilton deloped in his duel with Aaron Burr, which is the only time I’m going to mention those two guys. Also, we understand there’s a song about duelling in the musical Hamilton, but we couldn’t afford tickets, so no insight there.

If you do get hit remember one thing: don’t show panic – you’ve only just been shot with a lead ball – and go see your surgeon. Your reputation depends on it. Suck it up, and be honorable.

Under Governor Wilson’s US rules, when a principal gets hit in any way, the duel is over.  When nobody gets hit after both have fired, the seconds are required to step in to see if either principal wants to continue, the subtext being that it should be enough that each risked mortality to stand up for his own honor. However, if one of the seconds says that the insult was too deep to stop just yet, it continues.

A Traveller concludes The Art of Duelling with several stories about various duels. The best one is the story of De Bergue – an Englishman living in Paris – and Alie – a celebrated duellist who boasted of having fought 33 duels, many fatal (obviously not to him).

So Alie asks to borrow some money from De Bergue. De Bergue sends his servant to Alie with the money and, not being an idiot, conditions the loan on a written acknowledgement from Alie that he received the money – more from a view that the money was safely received rather than any suspicion on Alie’s honesty.

Alie – being explosively French – took great offense to this and immediately dispatched a friend to demand an explanation from De Bergue for the tenacity to require a receipt. De Bergue – in a strangely un-British move – refused to apologize, considering the request unobjectionable.

And upon those grounds, the two met the next morning at Alie’s challenge to have a duel. Alie was a known master fencer, so De Bergue insisted on pistols. After some quibbling, De Bergue let Alie choose his pistol and take the first fire. Remember, this was Alie, a master dueller and quite possibly an unpleasant person. I mean, you go through life and have one duel, doesn’t make you a bad person. But you have 33 duels? Maybe you’re the asshole.

Anyway, Alie fired and grazed De Bergue’s cheek. De Bergue at that point told his second that maybe he should delope and call it a day. De Bergue then found out from his second that it was a dual to the death. Nice time to learn that bit of information. Remember – this is a duel to the death about someone asking for a simple receipt just the day before. De Bergue sighed, leveled his pistol, and fired – the bullet entered Alie’s brain an inch above the ear. He died instantly, and without speaking a word. Which is odd, because you’d think a 33 duel champion wouldn’t exactly be the silent type. No matter 33 out of 34 isn’t a bad record, except, of course, for not living to brag about it.

This discussion barely touched on the rules of engagement for delivering challenges, who a second may accept challenges from, disputing the content of correspondence on the topic, and so on. There were so many codes and manuals back then, it was hard to keep track of which code would apply to what duel.

The Code of Honor, as well, lists out degrees of severity for insults. Being drunk, for example, is not an excuse for an insult, but could be a mitigating factor.

So, Peter, the point is duels are stupid. They are dumb ego-charged mortality sessions for fragile and drama prone people hiding behind the a set of false principles cloaked in honor. And there are, in fact, laws against them.  And, further, they illuminate two important things (i) the opportunity to act like an adult and (ii) understanding that our laws have meaning, and if you have a real actionable issue, there is recourse for that.

So, next time your honor is challenged, you need to do the modern day right thing, which is to put down the duelling pistol and find satisfaction by igniting some good old-fashion blistering flamewars on social media for all the world to see. It’s just more honorable that way.

Thanks for listening to this episode of Unwonk.

If you enjoyed this episode, you’d be awesome if shared it – and to make it easier, just go to unwonk.com/duel and click on social sharing button of your choice. 

And don’t forget check out our Deadspin column by clicking on the link at our website.

On the next episode, we learn:

  • Which types of ice sculpture are banned at weddings in Iowa;
  • The giant burrito scandal that took down the Guiness Book of World Records judge in charge of measuring the largest of foods;
  • That time I bought a blue backpack and then noticed once I was 12 blocks away that it was actually a periwinkle backpack and had to go all the way back to the store to return it, kind of embarrassed about the fact that I was embarrassed about wearing a periwinkle backpack. I mean, I’m an adult; and
  • Why the word periwinkle sounds like its color more than any other color word sounds like its color.