The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1877-02-02

INTERESTING OPINION DELIVERED BY
JUDGE STAPLES IN THE RoYALL QUO
WARRANTO CAsE-s0ME HISTORY OF
DUELLlNG LAWS AND NOTED ENGLISH
CAsE-TAXATIoN OF THE BUILDINGS AT
THE GRANITE woRKs-THE NATION YER
sUs THE STATE.
In the Supreme Court OF Appeals yester-
day Judge Staples delivered the unanimous
opinion Of the Judges in the case OF Royal
Us. Thomas. The Commemorative attor-
ney for the county Of Henrico sued out q
writ OF quo ,rarrdnto against W. L. Royal,
alleging THAT the latter was disqualified
to hold Office under the Government OF
Virginia by reason Of having engaged as
second in duel fought in that county [by
Mordecai and Nc Cartyl in the year 1873.
The defendant did not in express terms
deny the charge, but he ayowed that he had
never been conuicted Of being engaged in
duel. To this answer the Commonwealth
demurred, and the demurrer was sustained
by the Circuit Court. The defendant not
desiring to put in any further answer, judg-
ment was rendered against him OF amotion
from his Office of notary public. To that
Judgment he obtained writ OF error from
one OF the judges OF the Supreme Court.
THE GROUND OF DEFENCE.
"The ground taken by the defendant"
says Judge Staples, els that the provision
in the Virginia Constitution upon the sub
iect of dueling is not self-executing, and
that conviction founded upon indictment
and trial according to the forms OF the
criminal law is necessary before the dis
qualification for Office attaches under the
Government of the State.
"The principal authority relied on in
support OF this position is the case OF the
Commonw ealth Us. Jones, decided by the
Supreme Court of Kentucky, and reported
in 14th American Law Register, n. 7. 374,
and also in 10th Bush.
"It was there held that the clause in the
kentucky Constitution imposing the dis
qualification for office for the offence of
duelling Is not self-executing, except so far
as it prevents those who cannot or will not
take the requisite oath for entering upon
Office. A citizen willing, however, to take
such oath cannot be proceeded against for
usurpation of such office until he has been
first indicted, tried, and convicted OF the
disqualifying offence"
Judge Staples maintained that the phrase
ology of the Kentucky Constitution is ma
terialIy different from ours, and he reviewed
q case which came before the Kentucky
Contested-E Election Board, from all OF which
he concluded "that even in Kentucky there
is such conflict of authority in respect to
the true Interpretation of the constitutional
provision lon this subject as depriyes the
decision relied on by the defendant OF the
weight Of being considered even persuasive
authority"
THE VIRGINIA PROVISION.
"The provision in the Virginia Constitu-
ton is as follows: 'No person who while
citizen Of this State has since the adoption
of this Constitution fought duel with
deadly weapon, sent or accepted q challenge
to fight duel with deadly weapon, either
within or beyond the boundaries OF this
State, or knowingly conveyed challenge, or
aided or assisted in any manner IN lighting
a duel, shall be allowed to vote or hold any
office Of honor, profit, or trust under this
Constitution
Judge Staples thought that this provision
was prospective in its operations. Any
how, the Legislature in '69-'70 passed an
act carving out the provisions Of the Con-
stitution aud giving it prospective opera
ton, and canphatically declaring that no
person offending against the act "shall be
capable OF being rejected or appointed to or
of holdihg any office OF honor OF profit
under the Commonwealth"
"It will be perceived that the language
both OF our Constitution and statute IS very
diffevat from that Of the Kentucky OoDsti-
tuition.
~ES is perfectly apparent" Judge Staples
declares, "that the trainers of the Coustitu-
ton and OF the statute designed that the dis
ability to hold Office should attach upon the
commission Of the offence, and mot upon
Judgment OF conviction. He pointed out
t,sat in other portions OF the Constitution
where the trainers designed to refer to
-sconviction " they used that word. "Per-
sons convicted of bribery" &C., &C., shall
be disqualified, and for infamous offences
conviction is required before dlsqualitica-
| ton.
DUELLINxs I1sT0RY.
The Judge here gave very able and in
teresting history ci duelling both in this
country and Europe, showing that where
duels had been fairly fought, according TO
the code OF honor, convictions were found
| to be almost impossible, :and universal eX-
perience demonstrated that "the practice
OF duelling could not tberestrained by penal
laws" and hence the provisions Of the va
rious Constitutions of this State and Of the
statutes aimed a, political disqualification,
giving ga twe-feld remedy-one criminal,
the other purely CIVIL"
| After referring to various cases, and
showing that the men most likely to prac-
tice the duello were those who it was sup
posed would most dislike to incur political
disqualification, Judge Staples said:
"The Legislature has repealed the test
oath. Let the courts now decide that the
disqualification for office cannot attach until
there is conviction, and we shall have ex.
hibited something ut least like the revival
of duelling.
"But let us see where the argument leaves
us. Ii man kills his adversary in duel
it is murder in all concerned. II the juries
and the Judges obey the law it Is hanging
by the neck, or at least confinement In the
penitentiary. OF what avail is our boasted
disability applied to persons thus. situated.
This is the necessary result, unless we sup
pose jury can be found to convict Just
enough to disquahfy, but not quite
sufficient to seriously discommode the
OF us understand the great differ
ence in the position Of one when on trial
for his life upon charge of murder and
Wneu CHc " pTocecucu 1saiHsI ioi uSuA ping
an Office. Upon thetr Of criminal cause
il reasonable doubt ean be raised by the
evidence, or by the ingenuity OF counsel,
that doubt is decisive for an acquittal. 9 AS
has been well said, verdict OF not guilty
means no more than that the guilt OF the
accused has not been demonstrated in the
precise, specific, and named forms pre-
scribed by law"
FAMOUS DUEL.
"Most professional men are familiar with