an unconstitutional statute upon the statute book that is one.

Under our form of government the three departments-legislative, executive and judicial-are and of right ought to be entirely distinct, and their powers ought never to be confused and confounded. By this statute the Legislature undertook to require of the Supreme Court of Appeals work which was distinctly legislative in its character, and it was neither the duty nor the right of that court to undertake to fulfill this unconstitutional requirement attempted to be imposed upon them by the Legislature in violation of the plain letter as well as by the spirit of our Constitution. By what power known to our Constitution or our laws had the Legislature of Virginia the right or the power to require the Supreme Court of the State to prepare resolutions or a bill to be submitted to that Legislature, to be acted upon by them-to be enacted or rejected by them, as they saw fit? In effect it would simply be an attempt of the Legislature to make the Supreme Court of Appeals a committee, or sub-committee, of the Legislature to prepare a bill or bills to be reported to the Legislature for its consideration. There is no such power in the Legislature. The safeguard of the liberties of our people is an independent judiciary.

Mr. President, the danger of this day is that of centralization—of putting power in the hands of a few men who may form a body heretofore unknown to our law, combining the powers of the legislative, executive and judicial departments. Shall we have a committee of three-one member called the legislative, one the executive, and one the judiciary department of the government-who, acting together, shall first make the law and then construe it and declare what is the law, and then execute the law as enacted and construed by themselves? If so, the result will be, not a complete and perfect system of laws, but such confusion that no one will know what the law is, or how it will be interpreted, or how it will be enforced. Sir, I may be called too oldfashioned a man; but these principles were born in me, and have been carefully cultivated and cherished, and I hope the day will never come when they will be less strong than they are now.

Furthermore, consider this question in regard to the power of the Legislature to require the Court of Appeals to prepare a bill of this kind. With all respect to our present Court of Appeals, both personally and officially, I have this to say: That no court ought to be allowed to draw an act or prepare a Code or prepare rules of pleading which they themselves will have to pass upon. Upon this floor there are most distinguished representatives of one of the most distinguished

shone with legal luminaries. When Judge Tucker sat upon

judges in Virginia, a man who was an ornament to the Court of Appeals of Virginia in the days when it I need hardly call the name of Tucker. that bench and illustrated in his character as a judge an example of eminent learning and distinguished ability which we might all strive to emulate, the Legislature of Virginia undertook to place upon the judges of that court duties which had not been required when they were elected and took their oaths of office. When that act of the Legislature, attempting to impose those duties upon the judges, was passed upon by the court, Judge Tucker pronounced an opinion, now embodied in our reports, which in itself is a monument to his fame, of which any judge who ever sat upon the bench might well be proud.

Sir, with these things in my heart and in my memory, it makes me tremble to see precipitate and ill-considered legislation undertake to abolish or radically reform those things which the wisdom our fathers have proved and found to be worthy to be regarded as ancient landmarks of our law.

This is nothing new. State after State has made these experiments, and some of them have realized how costly they were. One eminent Justice of the Supreme Court of the United States has been referred to as advocating these alleged law reforms. I need not call your attention to the fact, of record in the Supreme Court of the United States, that ought to have more weight than the extra-judicial opinion of one of the Justices, not given upon the bench. You all know to what I allude. I refer to the case from Texas, in which complaint and answer thereto had been filed, and amended complaint and amended answers thereto, and so on, almost ad infinitum; and a mass of testimony taken, which made a most voluminous record, and protracted litigation years and years, until all the parties died out of it; and when it came on to be heard in the Supreme Court of the United States, the court unanimously animadverted upon the state of that record and upon the rules of pleading and practice, and said it was a shame to any administration of justice for such a burden to be imposed upon the courts, which were compelled to sift a confused mass of pleading and evidence when all the issues properly in the case might have been properly tried upon a declaration containing the common counts in assumpsit, a plea of non-assumpsit and issue, with the evidence taken before a jury upon that issue, which could easily have been tried at one session of the trial court, and the entire matter litigated between the parties could have been determined between sunrise and sunset of the same day.

I hope that the suggestion will never be made in Virginia that a man's home is not his castle. May that maxim of the common law forever survive, together with the well established and recognized modes of enforcing it. At this day if a man, in your absence, takes possession of your freehold, and you return and find him there, and you, being a man of law, of course will not expect to put him out by force of arms, but by a simple action of unlawful entry and detainer, or an action of ejectment, if you be put to that; and by these short and simple legal proceedings you will be very promptly restored by the verdict of a jury of your countrymen, and the judgment of the court thereupon, to the possession of the freehold from which you have been unlawfully ousted. What would be the result under this alleged reformed and improved code of procedure, in which you will have to go and tell your tale in the simple language in which the little boy running to his grandmother complains to her of the wrong and injury done him by his play-fellow, who, in his turn, comes and pours forth the Iliad of his woes in the simple language of the people; whereupon the complainant makes his further and amended complaint, followed by a further and amended answer; and so on until the most that can be hoped is that your grandchildren may some day be restored to the possession of the home of their fathers, subject, however, to the charge of the heavy bills of costs taxed during the many years of the pendency of the so-called reformed litigation. It is a fair illustration, sir, of the code of procedure in every country that ever has adopted such a code; a highly drawn and somewhat exaggerated one, but still it is an illustration which has sometimes been unhappily realized in actual experience. Under our system of pleading and practice, properly administered, a case involving thousands and thousands of dollars can be speedily tried, in which the record makes only a few printed pages, in which every point at issue in the case will be brought to the attention of the appellate court; when every point will be brought fully home to the knowledge of the jury and the judge in the trial court by a lawyer who knew his profession properly, in a simple statement not occupying more than half an hour. Compare that with the immense records that come up to the Supreme Court of the United States under writs of error at common law from the courts in the States which have the alleged improved code of procedure! Shall we throw away the inheritance that has come down from our forefathers? Shall we remove from the foundations which they laid deep and strong, and attempt to build upon the shifting sands of modern expedients and experiments as yet untried

by us, and which may be tried at a fearful cost to this Commonwealth and the parties litigating in her courts of justice?

The only people who will be benefited by such a system as this are the clerks of the courts and the clerks in the lawyers' offices. Their fees will be four or five times as large under such a system as they are now under our present system. Is that for the benefit of the administration of justice? Is that in the interest of the people? Sir, all these officers will wax fat upon the fees wrung from unfortunate litigants for filing and copying complaints and answers, amended and further complaints, and amended and further answers under this new and much vaunted code. I hope every son of Virginia and every member of the profession will think deeply before he takes a step forward that may be a fatal step in the dark into a chasm whose depth is unknown and is yet unrealized.

Mr. President, the illustration which you gave in regard to that case of the maiden property of a wife who lost it by her marriage with an improvident husband, may have been a case of individual hardship, but cases of individual hardship should not modify wise laws made for the greatest good of the greatest number, and which the experience of ages has shown to be for the general welfare when wisely and impartially administered. That husband could have made his will and left to his wife the property he derived from her; so also that boy of his could have done the same thing, and the making of a proper will by either of them would have saved to the wife her estate, in full conformity to our noble system of law.

Mr. Duke: He did make his will and did not give his step-mother anything.

The President: I did not say he died intestate.

Mr. Lyons: Then the sins of the father were visited upon the children, or rather upon his wife. Because John Smith was hung or not hung, as the case may be, through some defect in the administration of justice in his particular case, is no reason why we should repeal the statutes against murder or abolish capital punishment. If the husband who got possession of the wife's maiden property by his marriage to her had done his duty as a husband and a man, at an expense of from ten to twenty-five dollars probably, he could have had his will properly drawn and secured to her after his death the restoration to her of the property which he derived from her.

Sir, I have as great reverence for the constitution and laws of this Commonwealth as ever was instilled into the hearts of the Israelites for the Mosaic law. I do not think we have any more right to lay rash and irreverent hands upon the wise and wholesome laws ordained by our forefathers than they had to abolish or amend the enactments of the Mosaic code.

Sir, we have lived for many years under our present system of laws. Twelve months longer under that system can do no great harm; but, on the contrary, I hope that we may all grow wiser and better, so that when we come up here next year we may consider deliberately these important questions, all of which will, I hope, be now referred to an appropriate committee, with instructions to report thereon at our next annual meeting.

Mr. Duke: I offer, as a substitute for the report of the Committee on Legislation and Law Reform, a simple resolution which covers the whole ground, as follows:

Resolved, That a committee of three be appointed, whose duty it shall be to prepare and submit to the next Legislature a Code of Civil Procedure for this State, based upon the Code of Procedure of New York.

Camm Patteson! I offer an amendment to that resolution, that there be one member from each Congressional district of the State, making, with our chairman, eleven in all. That will be a committee representing all parts of the State.

In my opinion the time has come in Virginia when law reform is a matter of imperative necessity. It is an undoubted fact that we are more than a quarter of a century behind the times. In England a most thorough law reform was made more than twenty years ago, and it has been extraordinarily successful in actual practice. The objection made that there would be a difficulty of combining the systems of common law and equity pleadings, has been thoroughly met in England by that portion of the act which declares that, in all cases where there is a conflict between the common law and equity, the principles of equity shall prevail. In any code of civil procedure which we may adopt in Virginia, this same principle ought to be embodied. I will briefly call the attention of this body to two suggestions made by our President, Judge Robertson. One was that suggestion which he declared ought to be incorporated into our code, allowing husbands and wives to testify for or against each other in certain cases. Another was the suggestion that parties ought to be allowed to testify where the other parties have