Judge: Burr, Hamilton and the Ohio Constitution


David Hejmanowski - Contributing Columnist



“Aaron Burr esquire not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil, feloniously Wilfully and of his malice aforethought did make an assault upon Alexander Hamilton.”

— Indictment of Aaron Burr

“There is a contention of a singular nature between the two States of New York and New Jersey. The subject in dispute is which shall have the honor of hanging the Vice President.”

— Aaron Burr, Letter to his daughter

It was already the most famous duel in American history before Lin-Manuel Miranda’s Broadway musical about it started taking home Tony Awards left and right. But the recent resurgence of interest in the life of Alexander Hamilton means that his fatal duel with Aaron Burr has been solidified in the minds of Americans. What is not so obvious is the impact it had on American law.

To be clear, dueling was illegal almost everywhere in the United States at the time that Burr and Hamilton drew pistols in July of 1804. In fact, Burr and Hamilton chose their dueling spot, Weehauken, New Jersey, precisely because they believed that New York was more aggressive in enforcing its law against dueling than New Jersey was.

Some duels were tolerated, or even openly accepted, in that era because they were fought between wealthy landholders. Law Librarian Robert Brammer noted in a 2016 post on the Library of Congress’ blog (who knew the Library of Congress had a blog?) that the rare books collection at the Library includes an 1847 volume titled, “Code of Honor: or, the 39 articles showing the manner in which the duel is to be conducted; with amusing anecdotes.” The author is identified only as ‘a Southron’.

As Brammer writes, “To receive a challenge to duel was actually a confirmation by the person issuing the challenge that they considered you a gentleman. If they had not, they probably would have just attacked you with a whip or a cane.” Even attempting to avoid a challenged duel could be problematic. Article 21 illustrates that there are some instances where offering an apology is unacceptable because it would be interpreted as cowardice, stating that “no apology can be made while a challenge is present, a previous withdrawal of the challenge being necessary for that purpose, otherwise, the apology would seem to have been extorted by fear.”

Despite their choice of New Jersey, Burr did not escape the law after the duel ended in Hamilton’s death. Both New York and New Jersey indicted Burr for murder. The New York indictment was defective since the crime took place in New Jersey and the New Jersey complaint was eventually quashed after prominent New Jersey officials petitioned on Burr’s behalf, writing to the Governor that “most civilized nations” did not prosecute dueling deaths as murder.

When a sitting Vice-President shoots and kills a former Secretary of the Treasury, people take notice. And the death of Alexander Hamilton spurred a wave of anti-dueling sentiment that found its way into law, including into the Ohio Constitution. Article XV, Section 5 of the Ohio Constitution of 1851 stated, “No person who shall hereafter fight a duel, assist in the same as second, or send, accept, or knowingly carry a challenge therefor, shall hold office in this state.”

The Ohio provision was repealed in 20th Century constitutional amendments, but several states still have similar provisions in their state constitutions. Public officials in Kentucky still swear an oath when they take office that says that they have not been in a duel. One lawmaker in Oregon proposed a law earlier this year that would have rescinded their constitutional prohibition on dueling. The legislator who proposed the bill said he was doing it to show how outdated some provisions were.

Ohio may not have a specific anti-dueling constitutional provision anymore, but that doesn’t mean that duels are legal. Firearm statutes, assault provisions, attempted murder, murder, conspiracy and numerous other criminal provisions are fully applicable to any dueling situation. A specific provision simply isn’t necessary anymore, when the underlying behavior is already illegal. Aaron Burr would not have fared so well in modern America.

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David Hejmanowski

Contributing Columnist

David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.

David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.