26 Am. Rep. 335 | Va. | 1877
delivered the opinion of the court.
The principal authority relied on in support of this position is the case of the Commonwealth v. Jones, decided by the supreme court of Kentucky, and reported in 14 Am. Law Reg., N. S., 374, and also in 10 Bush 725.
It was there held that the clause in the Kentucky constitution imposing the disqualification for office for the offence of dueling is not self-executing, except so far as it prevents those who cannot or will not take the requisite oath from entering upon office. A citizen willing, however, to take Buch oath cannot be proceeded against for usurpation of such office until he has been first indicted, tried and convicted of the •disqualifying offence. This case seems to be a strong
In the case of Cochran v. Jones, involving the same question, “the board, for the determination of contested elections” arrived at a very different conclusion upon the same clause of the Kentucky constitution, holding that the political disability resulted from the commission of the offence, and is in nowise dependent upon a previous criminal conviction. This, board consists of the governor of the state, the secretary of the state, the attorney general, the state treasurer, and the auditor general. See 14 Am. L. Keg., N. S., page 222. In the previous case of Morgan v. Vance, 4 Bush 330, the supreme court of that state held, that “ so far as the constitution prescribes disqualification upon acts and not upon judgment of conviction, the constitution, as the supreme law of' the land, executes itself without any extraneous aid by way of legislation; nor can its requirements be defeated.” It will thus be seen that even in Kentucky there is such conflict of opinion in respect to the true interpretation of the constitutional provision in question as deprives the decision relied on by the defendant of the weight of being considered even persuasive authority.
The provision in the Virginia constitution is as fol
In the class of infamous and degrading offences, it would seem a conviction is required as a prerequisite, to the .political disability. But with respect to the violation of the anti-dueling law, and other laws which are not supposed to involve so great a degree of moral turpitude, a different rule is established. If in this latter class of offences it had been the purpose to prescribe a conviction as the test of disqualification, it would have been easy to do so by a single change in the form of the expression. If we recur to the statute of 1810, and to tbe subsequent laws on the subject of dueling, and if we compare these enactments with other statutes prescribing a conviction as a test of disqualification, the conclusion is inevitable that the purpose was not to require a conviction as a test of disqualification in cases of dueling; but to leave it as a question of eligibility to the tribunals clothed with authority to decide contested elections or to try titles, to offices.
This design of the framers of our law is founded upon the most satisfactory reasons, and upon considerations of the soundest public policy. As was said by Judge Baldwin in Moseley v. Moss, 6 Gratt. 534, 539, “Dueling received no indulgence whatever from the common law, which treated its conventionals and its chivalry as solemn mockeries, and its violence and bloodshed as the results of deliberate malice. But these denunciations were resisted by long cherished prejudices of society, which appealed with dreadful success to some of the strongest principles of human
It is said by a learned author, that in the reign of George the Third about one hundred and seventy duels were fought, of which not less than seventy resulted fatally, but in no instance was a conviction ever obtained when the duel was fairly fought according to the terms of the code of honor. The British parliament passed the most stringent laws on the subject in aid of the common law; but they were wholly ineffectual to arrest the practice, or even to moderate its excesses. The defect was not in the laws, but in the tribunals to administer them. A writer of great distinction (Mr. Starkie), in a report made to parliament on this subject, said: “Experience leads to the conclusion that the practice of dueling is not controllable by merely penal laws.” Universal observation confirms the truth of this statement.
Notwithstanding the severity of the criminal law, the juries were determined to acquit, and their verdicts were winked at by the judges, and received with acclamations by a sympathizing public. It is recorded of a trial which occurred in 1792 in England, the learned judge went so far as to tell the jury, that although an acquittal might trench upon the rigid rules of law, yet the verdict would be lovely in the sight of God. Such was the state of public sentiment and administration of criminal law in England. Deriving our customs, laws, literature and fashions from that country, it was natural we should imitate them in a practice which, according to prevalent opinion, encouraged forbearance, generosity of sentiment, and manliness of conduct in society.
The long series of our judicial annals in Virginia show but few cases, if any, of conviction of either prin
The second section imposes the disability to hold office upon any person sending or accepting a challenge, whatever be the result of the duel.
And the third section prescribes the expurgatory or test oath to be taken by any person elected or appointed to any office or post under the government of Virginia.
A slight examination of these provisions, and of the causes which led to their adoption, will satisfy every one that the design of the legislature was to provide a ' two-fold remedy, the one criminal, and the other purely civil in its nature. By the one, the offender was punished as a felon—by the other, he was excluded from every position of honor or profit under the government of Virginia. These two remedies had no necessary connection one with the other.
In Brooks v. Calloway, 12 Leigh 466, Judge Allen said: “The effect of these statutes has been most beneficial; the practice has been repressed.” But who ■can fail to see how utterly valueless is all this legislation if the disabilities depend upon a previous criminal conviction. If no man can be excluded from •office for violating the constitution until a jury can be .found to convict, and a court to sentence him to an infamous punishment, the statute of 1810, and all the
But let us see where the argument leads us. If a. man kills his adversary in a duel it is murder in all concerned. If the juries and the judges obey the law it is hanging by the neck, or at the least confinement'in. the penitentiary. Of what avail is our boasted disability applied to men thus situated. This is the necessary result, unless we suppose a jury can be found to convict just enough to disqualify, but not .quite sufficient seriously to discommode the offender.
But this is not all. All of us understand the great difference in the position of one wThen on trial for his-life upon a charge of murder and when he is proceeded against for usurping an office. Upon the trial of a criminal cause, if ’a reasonable doubt can be-raised by the evidence, or by the ingenuity of counsel,, that doubt is decisive for an acquittal. As has been well said, “A verdict of not guilty means no more-than that the guilt of the accused has not been demonstrated in the precise, specific and narrow forms, prescribed by law.” Most professional men are familiar with the trial of the Earl of Cardigan, before the House of Lords, for shooting at Capt. Tuckett in a duel. The combat took place near a mill, and was witnessed by the miller, his wife and daughter, who.
It is to be further remembered that with respect to-a very large number of offices in this state, their terms would necessarily expire before a conviction can be obtained. If the offender succeeds in getting possession of the office, the commonwealth is bound to submit to the intrusion until she can institute proceedings of a criminal nature, and await until the tardy steps of criminal justice have demonstrated his guilt.
But there is still another -view suggested to the court by a distinguished member of this bar. Under the provision of our constitution already cited, if a citizen of Virginia goes to a distant state and there engages in a duel, he is thereby disqualified to hold office here, although he left the state without an intention of fighting a duel. How is his disqualification to appear? Certainly not by a conviction, because the offence can only be punished here criminally when the-
These considerations, I think, are quite sufficient to show that the framers of our laws could never have designed to make a criminal conviction in this class of offences necessary to the ascertainment of the -civil and political disability. Their failure to do so, as we perceive, was not accidental, but the result of deliberate purpose—a determination to eradicate an evil which was annually destroying some of the best men of the state. The offices are made for the benefit of the people. It is competent for them to prescribe such qualifications as they see fit. Ho man has an indefeasible right to an office. If the sovereign power of the state requires a conviction in one case as the ground of disability, and dispenses with it in another case, whatever be the motive, it furnishes no just cause of complaint.
Under the former constitution no minister of any religious denomination was capable of being elected a member of the legislature, and no foreign born citizen was eligible to the office of governor of the commonwealth. Might it not be said, with great propriety, that this was in effect a punishment of a large and respectable class of men who might justly complain of an arbitrary exclusion. But no one can ever imagine that these disqualifications, or whatever else they may be termed, could only be established by some judicial proceeding involving a trial by jury
The constitution provides that the governor, lieutenant governor, judges, and all others offending against the state by mal-administration, corruption, or other high crimes and misdemeanors, may be impeached before the senate and removed from office. Dueling being a high crime, especially where death ensues, is, of course, just cause of removal. If the accused is convicted, he is not only removed from office, but he is forever disqualified to hold any other office under the state. Will it be contended that in such case a previous conviction is essential to the success of the impeachment. So far from it, the very clause in question provides that the party removed from office by the Senate shall, nevertheless, be subject to indictment, trial, judgment and punishment, according to law, thus showing a judgment of ouster may precede the trial under an indictment. If there is any value in the doctrine as laid down by the Kentucky court, it would be in cases of impeachment. The accused is punished by perpetual disqualification, without trial by jury, and by a body of men, many of whom are elected without any reference whatever to-judicial capacity and attainment. And the present constitution goes a step further, authorizing the remo
My opinion therefore is, whether the proceedings be to try the title of an incumbent, or to adjudicate the claims of an applicant for an office, it is legal and proper to establish the disability imposed by the constitution in cases of dueling by any competent and satisfactory evidence. The judgment of ' the circuit ■court, for the reasons stated, must be affirmed.
So far as the defendent is concerned, the question •decided is perhaps of but little importance to him, as it is understood he is embraced within the amnesty act passed by the present legislature. Whether that act includes all persons in the state under disability by reason of a violation of the anti-dueling statutes is not known. At all events the question is a grave one, likely
In regard to the point raised by the attorney general, that the writ of quo warranto is no longer in use in this •state, if ever in use here, but has been superseded by the information in the nature of a quo warranto; we have not deemed it necessary to express any opinion. The writ in this ease was sued out by an officer of the commonwealth, was not objected to by the defendant, ■and is not now objected to by him. It was agreed by the parties in the court below to waive all formal pleadings, and to submit the whole matter to the court. Under such circumstances the court is not inclined to dismiss the whole proceeding from its inception, because the complaint is called a writ of quo warranto rather than an information.
Judgment aeeirmed.