Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1826-01-10

my The facts are ascerained, and lie within narrow
compass: ~ "
III me year 1917, he challenged person TO icbt 2
ue'' contrary 10 the provisions of the Act of Assem-
bly,, entitled ''An Act TO suppress dneliino y M 80
secuuon OF that offence has ever been instituted In
e year 1873, being resident freeholdcr of the county
" ChafIes city, lie was elected by the lawful voters OF
ut county 10 represent them, and has been duly re-
turned rs ~ member of the House of DELEGATES
On these facts doubt has arisen whether Mr. Dom
that can exercise the legislative Office towlcl he has
Den eiected, Is doubt arises from tue provisions of
the act passed on the Goth January 1910 entitled an ao,
10 suppress duengn By one of those royisions IN,
capacity 10 hold be elected oce, is denounced
against all who should challenge another as Mr. Dou-
That has done; and by another, oath is prescribed,
winch NV Douthat declines 10 take in the terms pre-
scnbed by the act; unless it be certified that he takes
sara oath having reference to date, subsequent TO the
passage of the anii-duelling law.
The solution OF this doubt should be sought only in
tue discovery and application OF legal princnlcs-Ap
PeaS TO the preudces and feelings of the advocates or
thc opponents Of the dueliiug law NAV serve I'm nnamo
passions, and 10 excite enthusiasm, out they cannot aid
the intelligence OF either He who sincerely wishes in
a'''n truth, will be content to acquire it, by the eau
uous and regular process OF dispassionate argument
ana logical deduction In this spirit only, will this in
qury be conducted.
Whatever claims the anti duclling law ma, have to
public support and its general scope and tendency is
approved by the wise and gooG) wamest advocates
o"uno' dcsrc mai ~ should rlur PHI the sacrifice Of
every principle OF criminal law, hitherto rcvcrcd as es
n-f,lt
appled 10 every other criminal enactment That the
law IS eminent'y penal W i'll conce who re
uec's That The ohence of sending challenge under
Whatever circumstances of aggravaOn and with what
ever naignUy oil purpose, the rank of the low
est public offences known 10 the law II vas before
slc statute and still continues be- common law mix
de"tcHm0"i' onIy--lhe statute has increased the pun
lshmen. but has not changed the character of tho oe
Iencc' or raised to the bad eninence of (eloaY-
Get for this risdemeancur absolute and pcrneuai
reimbursement is, with un. aTaelctl leour superadded
!" 'he common Law punishment OF fine and ilnprison
meni an nticiion surely amcng the most severe which
IN republic, C!!Izcn endure and which Tie law
mas not affixed 10 the most atroc0us clonies-'rhe RI
gour OF Tue punishment ought indeed 10 defeat the
operation OF the law or induce those who ae to admin
iser I'll, To olanch from their duty. Nor is alluded t
for that purpose. But surely its extreme scverit,
1t no claim 10 exemption from the influence Of those
principles Which have been cOnsecraed bv nsaoc nnb
nc op'nion and law as applicable TO all other pe,ai en-
ACu"ents lis provisions must be interpreted by the
Same rules aud It's penalties enforced by the same
means which the general lazy requires TO be observed
IN the construction and application OF all other pcnal
statutes And if il deyises modes for cnforcipo,
the penalties, thoza modes must themselves be sub
ordinate 10 the general rules Of criminal law so far as
the Legislature has not dispensed with them This and
TINS oniy IS asked, and neither reason nor morality nor
law can WITHHOLD the concession.
The objections 10 MIR Douthai's claim TO hold his
scat arise wholly from the ed and Sd sections Of to m
t-dneliing act Other statutory provisions there are
none; an no one viii pretend that BY virtue of any
O"'""t cue 'IiCit. tnC3p2CIY for Office rCSltS
TIE offence imputed 10 him. 1t is confidently believed
That neither of these sections oppose any obstacle TO
his Qualification and an attempt will now be made TO
establish tins lnlon. by a separate examination of
these clauses and b, the application of known and ac
know lodged principles of criminal law
BY the 81 section of the act il was declared s.Tbat
If any person shall challenge another to fight duel
with any weapon or in manner whatever the probable
issue OF which may, or might result in tie death OF
the challenger or challenged, such person shall be- inca
pabie Of holding being elected to any post Of profit
trust or cmoiumont, civil military under the Govern
mcnt OF this Commonwealth" 1st Revised Code 5G3
IL will hereafter be shown, that il is by virtue of This
and oy the operation OF oeF sccfion of the law that
pcanacitv for Office can be imposed on Mr. Donlhat
But without assuming this be true at present vet in
considering The effect and operation of the 81 section
Ii believes Us for moment to forget that any other scr
ton IS applicable to the In another place the op
Grafton of the Sd section imposing the oath III be ey
ami0cd.
" hat effect then has This Cd section on Mr. Dou;bats
case: In 1911 he gave challenge in violation of this
aw did he thereby and is lie nor under the in
capacity, denounced by this section as punishment for
that act2
Persons infatuated to precipate conclusions would
probably answer the inquiry promptly and confidently
III he affirmative: and il is frankly conceded that sucL
conclusion you'd be Just if il be true as n lcoal min
ciP!c, that the punishment denounced against the of.
fence attached the n5oncai lrns committed: or that Mr.
D0n,i'ai IS 'pso Jacio dsq'iifed under the section
nor tat II IS dSrcF{dncd by undoubed evidence or by
ms own admission that he had done the forbidden act
such, 1t IS believed, the operation of the sta
iute Cn the contrary. will be insisted that the dis
qualification did nat attach to Mr. D. on me commission
o Tie offence and nerer hereafter niact because
NC Is a6soyed by law from the cGerce itself ard conse-
4ueniIy from every punishment either under the sta.
tute or common law, 10 which its commission exposed
him.
That MIR. D. by sending the challenge violated the
law, and thereby became obnoxious 10 IFS PENALTIES uai
he was Fqb/c TO be punished by acapqci TO hold or he
cec'ed 70 ONCE IS unreservedy admitted But this
not the irne point Of inquiry. The real question is did
the punishment instantly attach without trial or rdo
ment, 50 that he thcncefor became disqualified and i6
capable 10 hold Office?
The slightest recollection of PRINCIPLES. or of nrac.
ticc, must determine this matter. In the nature Of
things criminal legislation is general, abstract and
prospective. IL Promulgates the prohibition and the
sanction to ccorce IL but it docs not and cannot do
sienae Inc individual whom the punishment NAV
fall The application Of the law, to the individual of.
fender, is jpiicial, not legislative function Trial
and conviction must prccede punishment. 1t is not
then tic commission OF the offence but the judgment
Of the tribunal competent to try which atiaccs the
penalty TO be individual offender. Until that judgment
be pronounced, the offender cannot be punished whc-