liberty is worth nothing without order; the individual is of no force without society.

It is curious to notice that one of the first laws passed in Jefferson's administration kept Marshall off his seat for a year; and then there is the other curious fact that Marshall's first dccision, when the court met again, was the famous judgment in Marbury v. Madison.

These two men were like intellectual athletes, standing eye to eye, face to face, foot to foot.

Out of the life wrestle of the principles illustrated by each has come our inheritance. If this nation is to last it must be because we have learned that individual liberty and social order are the twin pillars in the temple of popular government.

PAPER

BY

JAMES P. HARRISON,

OF THE DANVILLE BAR.

SUGGESTED CHANGES IN OUR JUDICIAL SYSTEM.

A Constitutional Convention should not be long deferred in Virginia. The recent failure to secure the requisite decision in favor of such a Convention by a majority of the qualified electors was due, not so much to the fact that our people did not wish a new Constitution, as to their apprehension that just at that time partizan politics might have played too prominent a part in the Convention, and conservative citizens preferred our present Constitution rather than risk getting a worse from such a body as it was feared would be chosen to compose the Convention. Moreover, in the main our present Constitution, considering its source, has proven a marvel of excellence, and needs not much more than such amendments as by its provisions can emanate from the General Assembly. However, believing such a Convention should be, and indeed soon will be called, and that the Bar is peculiarly responsible to our people in such matters, and deeming it unwise to defer due consideration of desirable changes until the warmth of discussion may warp our judgments, it has seemed to me opportune at this time to suggest to you certain changes, constitutional and legislative, in our judicial system. Herein we lawyers live and move, and have our being, and for its faults we are most to blame, as by its excellences we become most benefitted.

I had hoped to present to you a thorough comparison of our present system with what we have had in Virginia aforetime, and also to compare ours with those of our sister States, but I found myself unequal to the task, both from want of ability and of time, and because in my remote locality I could not get access to adequate library resources. Besides, the excellent papers of R. G. H. Kean in 1889, of Waller R. Staples in 1894, and of Francis H. McGuire in 1895 (Alas! all three now numbered amongst our most honored dead), in a measure covered this ground, and yet I trust a thorough and philosophic presentation of the subject may be made next year by an older and abler man than myself; and here I would nominate for this duty that learned lawyer who having won such high fame as a professor in one of our great law schools has just been elected to a chair in our State University, than whom no man better qualified for this great work can be named.

I shall simply give you these suggestions which follow, leaving them to excite the discussion which I hope will provoke a thorough consideration by us of this most important subject.

I court your criticism. I pretend to no other merit than the honest expression of my own conclusions from twenty-two years of practise in our courts, and not from the theories of a mere student.

I assume acquaintance on your part with our system. I shall not cite from statutes, text books, or reported cases, nor pretend to learning I do not possess. I prefer to tell the practical story of my experience and give you such suggestions of change as that experience has led me to believe best to be adopted. The following are pertinent to all courts and all judges:

First. A constitutional amendment should be secured absolutely prohibiting any judge of any court of record from ever practising law during his term of office.

Judges of our county courts all practise their profession in the Circuit Courts of their own counties, and freely in all other

courts. Some judges of our corporation courts do likewise. The obvious objections to this most obnoxious feature in our system all admit, and the excuse is that their inadequate salaries compel these judges to supplement the paltry pay by practising law, and that until adequate salaries are paid we must submit to such judges as thus combine these incompatible offices.

No judge should be placed in the position of having to hold a court where his client may be a litigant. No client should be tempted to employ as counsel in one court the lawyer who as judge must decide his case in another court. The mere possibility of such a thing is offensive, and the evils of this prevalent practise in Virginia need no expression. It is a false public economy which, for a reduction of salaries, sacrifices a competent and irreproachable judiciary, and compels any of our judges to combine the wholly incompatible offices of sitting upon a Bench and practising at a Bar.

Second. The Constitution should clearly provide that every judge when elected shall hold office for the full term prescribed by law.

Mr. Kean in his excellent paper read before this Association in 1889 says on this subject:

"The late Court of Appeals decided in four separate cases that all judicial elections were for a full term. The present (1889) court has decided that elections to fill vacancies are only for the unexpired fraction of a term. The next court may recur to the opinion of the former court. The uncertainty is in every way undesirable." (Report of First Annual Meeting of the Virginia State Bar Association, p. 148.)

Our present court has had no such case before it. Doubtless most of us concur with the able dissenting opinion of Judge Lewis in Burks v. Hinton (77 Va. Rep., p. 41). Yet some may agree with the majority of the court. Certainly all of us must agree with Mr. Kean, "this uncertainty is very undesirable."

If we must submit to the construction given by Burks v. Hinton we cannot doubt the unwisdom of having the terms of all judges of any class of courts end at the same time. This leads to dragging the Bench into the quagmire of politics, and gives to partizans under their base principle, To the victors belong the spoils,' the incentive to wholesale changes of the judges, so that we may in the future, as alas! we have done in the past, find our courts with hardly a judge on any bench of judicial experience, or what is worse have lawyers made judges, not from fitness of mind or character, but because of a vote for a successful party.

The Constitution should be so amended as to obviate this, and to prescribe plainly that every judge, whether elected at the final and full expiration of a term or when his predecessor has been cut short of his rightful term, should be elected for the full term prescribed by law. If this were so, then, without resort to the plan suggested by Mr. Kean in 1889, and approved by Mr. Parker in 1897, gradually we would have, by the chances of death, or resignation, or removals, the terms of all judges of all courts expiring at various times, and instead of electing all the judges of any class of our courts at one time by the same General Assembly, leading to the gross evils of combinations, wire pulling, and clever party handling, we would not only avoid this and secure better judges, but we would escape the great evil of having an entirely new and inexperienced Bench at any time.

I agree with Mr. Kean that the election of judges by the General Assembly is preferable to the election of judges by the people, but I do not so agree if the present construction is to stand. I suggest, then, that as soon as practicable, even before a Convention, an amendment to the Constitution be secured making it plain that every judge when elected to his high office shall be for the full term thereof. I should prefer to recur indeed to the life tenure for all judges, certainly dum bene gesserint.