trains. There was no proof of negligence on the part of the company in employing the section master, and hence the two cases named seem to sustain the different department limitations to the extent that they go.

So also in the case of the R. & D. R. R. Co. v. Norment, 84 Va., 167, the court held that a car overhauler is not a fellow-servant with an engineer of a shifting engine. In this case Judge Richardson, speaking for a majority of the court, says (page 176):

"At the time of the injury, Norment was not of the same grade or same line of duty as Teller, the engineer, or as Robinson, the conductor of the shifting engine; nor was he under the orders of either of them. He was under the orders of Newcome, the foreman of overhaulers and greasers. Teller and Robinson were in the transportation department of the company, and subject to the orders of West, the master of transportation. So, Norment was not a co-employee with Teller and Robinson in the sense which relieves the employer of liability for an injury done to one employee by the negligence of his co-employees."

In this case, therefore, the court further recognizes the different department limitation. It is difficult to reconcile the doctrine laid down in the last case cited, and probably some other cases cited also, with the very recent case of N. & W. R. R. Co. v. Donelly's Adm'r, supra, in which it is held that the fellow-servant doctrine is not limited either to employees decided of the same grade or to those in the same department of service (16 Va. L. J., 214, Syl. No. 2). This case last named (N. & W. R. R. Co. v. Donelly) follows the current of authority, and it is founded in reason and upon principle as above shown. Moreover, it contains the latest expression, upon this important question, of the Supreme Court of Appeals of Virginia.

Departments are arbitrary creations that vary in accordance with the convenience of the service and the conceptions of the master. They may be one thing to-day and another thing tomorrow, as no two masters may classify in the same manner, and hence the difficulty in defining a department, or the term "department," with reference to its use in determining who are fellowservants, in cases in which the different department limitation is sought to be applied. If the term "department" cannot, in ordi

nary use, be specially defined, it is manifest that the different department limitation cannot be uniform in its application, and it is, therefore, unsound somewhere.

In what I have written, I have made no reference to the policy of the law, as this is a matter for the consideration of the Legislature, with which I am not now dealing, but I have sought to reach the principles involved in the questions considered.

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If these principles are founded in reason, and if, as Lord Coke says: Reason is the life of the law, nay, the common law itself is nothing else but reason," it would seem to follow that they should be preserved and maintained, both by the bar and the courts, rather than be frittered away and substituted by matters of sentiment only.

PAPER

READ BY

JOHN W. RIELY.

CRIMINAL LAWS AND THEIR ADMINISTRATION.

The origin of civil society has been the theme of much earnest and ingenious speculation. Various theories have been advanced by political writers. Some refer it to paternal authority; some say that the desire of mutual security induced its formation; others claim that it is the result of a social contract; and others still attribute it to the subjection of the weak by the ambitious and the strong. But, whatever may be its true origin, it has been well said, by an eminent writer, that "in the institution of societies, mankind, in all probability, thought rather of redressing the evils which they had experienced, than of procuring the several advantages resulting from laws, from commerce, from the arts and sciences, and from all those other improvements so frequently mentioned in history." Self-preservation is the first law of nature; but the existence of the right is far from being always recognized by its successful maintenance. The weak are unable to resist the strong and defend their persons and their property. Personal safety and the protection of the right of property find their security only in social union.

Government is a necessary constituent of civil society. It is the instrument by which civil society regulates its affairs and redresses its wrongs.

It is the propensity of man in the state of nature to encroach on the rights of others and to give vent and license to passion. Usurpation had to be curbed and violence repressed. Rules for the preservation of society and the regulation of the conduct of

its members were therefore necessary. But rules only would be inefficacious. Some motive was necessary to cause mankind to observe them. No motive is so efficient as punishment. The dread of its evils will deter and restrain man when nothing else will avail. Hence, penalties were affixed to the rules or laws deemed necessary for the government of society and inflicted on offenders for their infraction. Thus criminal laws are co-eval with the formation of civil society. They are essential to its purposes, its existence and preservation. "Without government or without law there can be no civil society."

more severe.

It is the common interest of all the members of society that crimes be not committed; but as their complete prevention may not be expected, the great aim of criminal laws should be to diminish crime to the lowest possible limit. Offenses are of greater or less degree, and right and reason require that they be differently punished. The degree of punishment ought to be proportioned to the end of inflicting it-the prevention of the like or other crime in the future by the criminal, his repentance and reformation, and the determent of others from the commission of crime by his example. If the punishment is so moderate as to be despised by the criminal, it will be ineffectual, and should be made If severer than necessary, the crime will go unpunished, and its rigor should be abated. The just sense of mankind revolts against punishment, either by the individual or by government, if it extends beyond reason and partakes of revenge. That is the abuse of the right to punish. It is said, that when the forgery of bank-notes was made a capital felony in England, it was in vain that the charge was proved. Juries would not condemn men to the gallows for an offense of which the punishment was out of all proportion to the crime; but when the law was changed and secondary punishments were substituted for the penalty of death, a forger stood no better chance of acquittal than any other criminal. other criminal. And we know that in our own day, public sentiment compelled the Legislature to repeal the penalty of death for the offense of horse-stealing.'

Upon the law-makers, therefore, devolves a most important and delicate duty. It is theirs to select judiciously such evils as are of

1 Acts 1865-66, p. 88, ch. 22; Acts 1871-72, p. 13, ch. 16, sec. 2.

sufficient importance and quality to be declared offenses, and then to adjust so wisely the penalty to each as to correct and reform the criminal and take away "the sweets of the crime by the bitterness of the punishment." Thus will they create in the citizen a sense of security to his person. Thus will they allay his apprehension as to the rights of property. Thus will they secure the welfare of society and promote the internal peace and safety of the State.

Previous to the recent revision of the statute law of Virginia as it is now contained in the Code of 1887, there had been several revisions of its criminal statutes alone since the late war between the States. Each of these revisions was made by the Legislature itself, while in session, and not by persons specially selected for the purpose, as has been the custom when there has been a general revision, at the same time, of both the civil and criminal statutes.

The war had resulted in the liberation of the negro slaves, and the abolition of all distinction in law between white persons and negroes. This necessitated the repeal of all statutes relating specially to offenses committed by or in respect to slaves and free negroes, and also the repeal of all statutes discriminating against them or making any distinction in our Criminal Procedure, in the method of trial and the character or the nature of the punishment for offences committed by the different races. The repeal of these laws was one of the first acts of the Legislature after the war.1

The next step was a complete and careful revision of the entire Criminal Procedure." This, however, did not include any part of the Criminal Law itself. The principal and most prominent result of this revision was the disappearance of the famous Examining Courts, which had so long been an established institution and honored tribunal of the Commonwealth, and the adoption in its stead of a simpler, less expensive, and more speedy proceeding for examining offenders before putting them upon trial, but shorn of much of its power and authority.

A decade later there was a general revision of the entire body of the Criminal Law and Criminal Procedure. It was well done;

1 Acts 1865-66, p. 84, ch. 17.

2 Acts 1866-67, pp. 915-46, ch. 118.

3 Acts 1877-78, pp. 279-380, ch. 311.