The enquirer. [volume] (Richmond, Va.) 1804-1815, 1810-12-04

naes, Ia consideration Of which, chat character Is
there holden to attach, difference may prosably
exist in this country, in this particular, nor is Il
necessary 20 consider the operation of the act Ms
relative to the attorney general and his debufies
and other Attornies for the cosnronw wealth, who
are all elected and appointed to their several
ofices, and receive an annual sslary for their ser
wees Even admitting. therefore, that attornes
are, IN some sense, aud In some degree, officees
oftheir sevefai courts, AZ they are held to be in
England, the question still recurs, are they off
GERS within the meaning of the act to suppress
doe'ling.
However laudable the object Of the act to
suppress duelling may be. il is stir highly Pc.
MAJ law, and must be construed strictly Ii
IS unusually penal, if not tyrannc in compei.
ling person to stipulate upon oath, by the 81.
section, not only in relation to his past conduct,
and present resolution, but also for the future
state OF his mind and his future conduct. with
resp ect TO the offence in question: under all pos
sinie circumstances stipulation which many
conscientious persons. however prepared to take
the oath, as It regards the time present, might
we'll he state to enter into THUS promising
that tins act is highly and unusually penal, will
UNDER the influence ofthc rules for constituting
penal statutes proceed to apply it to the case BE-
fore us
a" msNt'B 4 construction upon this act, we
must have an eye to every part of it ;-----we
must particularly have reference to the Cd sec.
ton as well as the 81 they both relate to precise
~ the sane offence, 1.-THE giving or accepting
challenge, )snd go to the disability of the same
persons only they differ only in this. that
the last clause goes beyond the former i'm reouir
ing pledge that the persons therein contem
plated will never, IN future To engaged in duel.
ling -
The Cd section declares that person accent.
ing challenge, &c. shall be incapable of hokdine
or oeing elected to any post of profit tr,ist or
emolument civil or military under the government
Of this conynsea,uealth II relates as Sclf "a ner
sons notr IN Office as to those to be eieefea there
'o' ana we are to consrue those of the former
class, designated under the term holding as
standing on common foundation with the latter
.. e thai the former must have been elected, as
wen as That the Latter mus, of necessity be -ee-
ffd. This part of the clause, in both its branch.
es, excludes attornies at law, who, have endea
vored to 1hew, are neither elected nor appoin
ted tn ONCE, but are merely permitted to prac-
tise, by those who are constituted nv law ;ndyas
OF their character and qualifications respectively
Again, this clause only extends to those who hold
post of profit, of trust or emoiument. civil ar
military, snder the gov't. of this cotsmos,realtb
- Admitting, twh: ch Is the most that can be
granted,) that attornies are to be considered AZ
officers, they are only considered. even N
England as have before said, as officers Their
respective coarfs Il BAG. 287)-they do no, there
iore come up TO the desiderasun, Of this act 80
they are not officers under the government of ri.
consnaon~eahh- There is no just ground on
Wh.ci' we can erect by implication or construc.
ton, INTO governmental officers, those who. ia
England, are not exalted to that character. and
who' IN the only books and doctrines handed to
us on the subject from that country are held at
most To be mere subordinate officers of their
lreSpectioe coarts-But IL attornies could be even
considered as officers of the Cover ment. thew
hold off, r.
the government; Cor, in other words = ku.yat;se
grce i)--otherwise they would have been exciu
geo IRON seat IN the Legislature by the oroyi-
siohs of-the constitution (which has never been
done nor attempted in relation to mere sttorniex
toMeverit may be as to those who are /" appoin.
tea 10 prosecute for the common wealth and re
ceive salary therefor - This section there
iore, relating only TO persons " eiected'' TO of
nee winch attornies ara not to persons who
are officers under ,he government of the common
UedHh' IN which predeameat attarn,es as M,
stand or to persons holding lucrative Offices.
! wh'ci mas never been consIdsred as being the 81
tuation OF mere attornes at law, however
gaInfui their practice may be--does not extend
| TO persons OF that character
The phraseology oftbe 81 section varies. some.
what from that of the 90 bur it 10 nnly a y.-.s
ton IN ypords, not in substance The ofsce or
Piace @n'ch 1t contempiates is oae which equal
~ sequires an " appointment !" and IN TO be an
Office or place " Under the commonwealth. >, and
not under an individual court OF Justice -
These eriteTia exclude attornies at law. as com
pieteiy as those contained in the former clause
under varied form of expression addition
to this, the words Of the oath itself prescribed
by this clause, "during my continuance IN Of
nee, seem to indicate those public Offices which
are held by commission or appointment, and are
wont aud proper to be resigned they do not m,
turaily apply to a function which is never re.
signed or formally given up, which it is the right
OF one CITIZEN to exercise at the request and for
the benefit of another, and in respect to which
The regulating hand ofthe legislature has only in
! terPosed, for the salutary purposes before men.
toned '47-'-7 $500
This construction of the duelling act in this
particular is both supported, as aforesaid, by the
cotemporaneous and continued construction by
both houses of assembly, admitting attornies to
! a seat M the legislature, notwithstanding the
provisions or the 18th section of the constitution
excluding thereirom those who hold lucrative
orlces; and by the construction upon the act of
Dec l778 CHI. 81, Il Rev Code p. 4O) and that
OF January 1893 II Rev. Code 1927 disabling
CERTAIN Officers oil the general government from
hoiding offices under the government of this
commonwealth BY the last of those acts. IL /.
enacted, that all persons holding or accepting
: any othce or place, any commission or an
pointmeht 1hGtSoeve,, civil or military, unde
the authority OF the United States whether a,y
pay or emolunent be attached thereto. or not''
shaii be incapable of being elected DOR of hold.
ing any office legislative, exc cutiye or indcial
OF any other office, place or abboinfrneat o trust
or profit, under the govcrnm, ut OF this common
wealth" Altho' these words are updou5tedIy
AZ extensive as those occurring an ,tr J.at,..1.