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

, IN m ~ commit
teo was punishable as felony under the 81 section of
an ACT passed IN 1905, which act was in full force and
operation when Scott committee the offence But an
""u pdsSed IN chTuary, 1917 in which the Sd
'on OF Inc act OF 1908, re enacted totien ceyjs
""u therefore changing neither the offence nor punish
'neh. IL contained section b, which so much OF the
Ct ~ loo5 as was within the provision of the law OF
lol was repeated but without any provision for often
ces coiiirIttod under it, This act Of 1914 went into
cuec on the lst of April iGi after Scot; had commit
ted the offence but Lef3r. has {,j1i
- Dh 'his case the question arose whether Scott was
ao'e 10 any prosecution punishment under the sta
uc' hat he committed the act, was established by
! inc 'cruict OF Iury and the Judgment of the Circuit
Cuuf'. ~ no moment Of time had the legal character
ei'nef OF the offence o. punishment been changed the
iiS law helng only Te-cnaCtion of the former. Yet
INC Court unanimously determined that Tic act of 1905
'0"S |ePeaied and ot continued by the act of 10
.o mar no punishment comld be indicted for the
Co''i''eu prior TO the LIST April 1917. This decision
eo'e settled that the e2GcijOi of penal statute
with repeating clause repeal of the Original i4,c
ana protection against all punishment for offences
committed against IT,
INC application OF these principles will evince tbat
gar 1outhat can IN no mode whatever be disqualified
y reason OF the Cd section of the act against duel
| ling.
i he Sd section of the act of goth January, 1870 TO
suppress dnelilng, which contained the test oath was
rense" IN toto ritter Mr. Douthat's offence and there
iore II now IN force cannot operate rctrospecyey in
! toned j'' NV
! Z q
act oil January, l8l0--I Rev. Code, ~. But on be
''h January, 1917" was passed an act TO reduce into
one tc several acts prescribing The oath OF fidelity and
! The oaths OF public officers.
This law was, as protested TO he onlv , con,o,;
OF various existing laws into one act Arnoro. others
II re-enacted the Sd section of the anti dncInr law
adopting the very oath by reference to it, 1t contain
ca Il clause repeating ''a acts. clauses and ro,,s 1
acts containing any thing within the pcrye,y of thu,
act' as did the law alluded &c in Scotr. case A. II,
.'"t case 'oo' Ne Legislature thought proper 10
"'he any provision for The offences within the operation
OF the re enacted section, which had occurred, before
the re-enactmont The test oath then under tin, doci
sloh OF the General Court, is force moi BIZ cyfe of
rs 0''a'f enactment IN 1910, but only by virtue of lis
and cannot be fp!iod 10 offences commit
'eu uc'uTe 'e re enactment, without direct cun,ec,,
oil me decision OF the highest Criminal Court arrrava
/ YEA 0y violation OF The sacred principle which for
oiIs all expos aco application OF criminal law
but TINS Is not all! From the Sd April 1915 to The
IS. January 1870 there lar requiring any test
oath whatever II was wholly disoensfd with; has
oeeh :ie"h that after the act Of 7ih January 1915
"eht INTO eject to wit is! April 1878 the test oath
was 10 nfce oniy ny virtue of that act Rev Code
II That law continued in force until 3Ist Decorn
Der; ioid' q" Thai day Assembly was passed
winch suspended many, and amone Others, the act of
January Ith, prescribed oaths, I'll the ,t January 1890.
80 mat IN the interval before mentioned no test cad,
whatever existed. - 49, ~
II IS true that the I'd section of this latter provides
'',' acts and parts of acts coming within the pcrview
OF the suspended act shoui continue in force nh Isl of
January, 1890, if the suspended acts bad no; been
passed. ''' 'o'''
Bot this provision did not eqni;naie acts Which, had
once cetSe" 10 eNs' (the laws repeating ia, having
gone no actual operation, but designed TO CONT
nue. TIC operation c such acts, as isoud Eqrc been
rePeaie'' had not tie repeating law itself been sus.
! pended.
This result may possibly have been accidental Iris
more respectful 10 the Legislature 10 believe if was
toreseen, that shocked by the unparalleled aour RI the
test oath they Intentionally left chasfn in IFS oDcro
..p ana thereby designed, without weakening the mo
raj influence of tue law by an express harden of ali
previous offenders. TO confer them general amnesty
by The operation of the legal principle so shortly be-
'ore announced by tie General Court. But the legal
ehect Is lie same whether the amnesty eanscd in The
! benignIty or rcmlssness of the Legislature
This section has been lie subject of peculiar culopv
he GueIipg law IS said 10 excel all other penal laws IN
this, that 1T executes itself; that tie test oath ccctuay
precutee9li evasion arising either the secrecy Of
cution.
That the device is in our criminal Icgi.Iation
certain-its policy al least doubtful That II holds
oot the strongest temptation to evade the punishment
by adding perjury to the original offence every one wl
concedc, who has attended TO the dernoralzing effect of
The political aud religious test oaths adopted in other
countries.
How far it be reconoabIc with the terms and snirit
OF the bill OF nights merits the Comsdcratc refcc
ton Of every friend of constitutional law The bill Of
rights declares. That in all criminal prosecutions =
man hath the right to demand the cause and notice of
his accusaon 10 be confronted with tie accuscrs and
v. n
out whose unanimous conrent he c0lnof he ,I c,Iil
t." Iis TIE peculiar boast of this section that II dis
penscs with all those embarrassing and froubIcsor?c
forms which our ancestors wcaklr as il would secn)
believed 50 essential 10 pubic and private security
to make them worthy Of Il constitutional adoption and
cousccralion. BY this section lbc off Ddcr may bc
found guilty, and punished without cri1qi1ai posecu
f'on without being informed Of the cause and notice
Of the accusation, without being confronted with accu
ser or witness, without trial by jury, without the unan-
/ u.Jus consent Of his peers.
The bill odshts provides, that "no man. in criminal ca
ses' can he compelled give evidence against himself
IS the peculiar excellence and merit Of this section tina
1t dos no' in terms, compel man to give evidence
against himself" bot W aud cunning device his
very silence, his refusal to take oath Of innocence s
equal to confessions aud operates conclusive evidence Of
guilt and subjects him. without other formally to Instant
punishment
I The value Of bill OF rights. consists wholly i'm this
pocaims and consecatcs first prcigies: rccrs them,
at once familiar and dear the people; Instincts adon
shes and controu TIE functouares Of the government
and thus guards public liberty. But what ayas bill! of
rights if IFS most important provisions may he openly
enncd or lnsdiousy evodcd by devices however cunning
or pfetext however specous Experience had proved