1877 "persons convicted of bribery in any election, embezJanuary Term. zlement of public funds, treason or felony." It is also provided elsewhere that persons convicted of perjury or subornation of perjury, shall be incapable of holdThomas. ing office. Royall V. 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 the 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 conduct--the pride of character, the fear of humiliation, and the love of distinction." 1877. January Term. Royall V. 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 Thomas. 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 coufirms 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 priu January Term. Royall V. 1877. cipal or seconds, especially where death ensued. Universal experience has demonstrated the truth of the observation that the practice of dueling could not be restrained by penal laws. Fully comprehending the Thomas. difficulties of the situation, the legislature of 1810 addressed itself to the subject. The preamble to the act then passed (the very first ever enacted in the state) commences: "Whereas experience has evinced that the existing remedy for the suppression of the barbarous custom of dueling is inadequate to the purpose, and the progress and consequences of the evil have become so destructive as to require an effort on the part of the legislature to arrest a vice, the result of ignorance and barbarism, justified neither by the precepts of morality nor by the dictates of reason; for remedy whereof, be it enacted:" The first section then announces the penalty of death by hanging upon all who engage in a duel resulting in death, principals, seconds, aiders and abettors. 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. 1877. They were wholly independent of each other. The January The first section prescribed the punishment of death for 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 VOL. XXVIII-18 Term. Royall V. Thomas. Royall V. Thomas. 1877. succeeding laws on the subject, are the merest mockeJanuary Term. ries. The juries have heretofore set at defiance the penal laws relating to dueling, is it supposed they will be more inclined to hang offenders by the neck, or to put them in the penitentiary, when it comes to be understood this is the only way to exclude them from office. The legislature has repealed the test oath. Let the courts now decide that the disqualification for office cannot attach until there is a conviction, and we shall have contributed something at least to the revival of the ancient practice of dueling. If a But let us see where the argument leads us. 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 when 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 |