written and signed by the testator is good, although there is no subscribing witness. In Louisiana the like provision exists; and it is to be observed, that the preceding remarks are in general inapplicable to this state, whose jurisprudence being founded on the civil law, the forms of conveyances, whether they be donations inter vivos, or donations causâ mortis, are regulated in general conformity to the rule of that law.

2. As to commercial law. From mutual comity, from the natural tendency of maritime usages to assimilation, and from mutual convenience, if not necessity, it may reasonably be expected, that the maritime law will gradually approximate to a high degree of uniformity throughout the commercial world. This is indeed in every view exceedingly desirable. Europe is already by a silent but steady course fast approaching to that state, in which the same commercial principles will constitute a part of the public law of all its sovereignties. The unwritten commercial law of England at this moment differs in no very important particulars from the positive codes of France and Holland. Spain, Portugal, and the Italian States, the Hanseatic Confederacy, and the powers of the North, have adopted a considerable part of the same system; and the general disposition in the maritime states to acknowledge the superiority of the courts and code of England leaves little doubt, that their own local usages will soon yield to her more enlightened doctrines. What a magnificent spectacle will it be to witness the establishment of such a beautiful system of juridical ethics; to realize, not the oppressive schemes of holy alliances in a general conspiracy against the rights of mankind, but the universal empire of juridical reason, mingling with the concerns of commerce throughout the world, and imparting its beneficent light to the dark regions of the poles, and the soft and luxurious climates of the tropics. Then, indeed, would be realized the splendid visions of Cicero, dreaming over the majestic fragments of his perfect republic, and Hooker's sublime personification of the law would stand forth almost as embodied truth, for all things in heaven and earth would do her homage, the very least as feeling her care, and the greatest as not exempted from her power.'

The commercial law of the Atlantic states has indeed already attained to a very striking similarity in its elements. Upon the subject of insurance there is no known difference founded on local usages or statutes. If the law be differently adminis

tered, it is not, because there is any intention to deviate from the general doctrines of that law, but because the nature and extent of those doctrines have been differently understood. In all the states the same law prevails as to contracts of shipping and affreightment. In most of the states bills of exchange and promissory notes are negotiable, and rest upon the principles, which since the statute of Anne have won their way into the common law. Virginia affords the most striking exception to this remark; for, there, a limited negotiability only is recognised by law, and parties, who are remote endorsers, have no remedy against remote endorsers except by a suit in equity. Massachusetts, as far as I know, stands alone in her local usage of denying days of grace to promissory notes, unless expressed on the face of the contract. And it is seriously wished, that by a legislative act we might fairly get rid of this anomaly, which has not a single ground either of convenience or policy, or antiquity to recommend it.* There are some few other dissonances from the general commercial law, which have existence in some of the states, but it would serve no important purpose to explain them at this time.

3. As to remedies, it would be endless to point out the coincidences and differences between the various states. Remedies are necessarily modified by the wants and manners of the community, and processes, which from habit are thought useful and convenient in one state of society, are rejected as burthensome and injurious in another. In several of the New England states the attachment of real and personal property is allowed upon mesne process, not merely to coerce the appearance of the defendant, but to secure a final satisfaction of the judgment, if the plaintiff recovers in the suit. This process, except so far as it belongs to foreign attachments (analogous to our trustee process), is utterly unknown elsewhere, and the existence of it among ourselves is contemplated with surprise and regret, by those, who are accustomed to the general processes of the common law. It is thought a hardship, that any person should be liable to be stripped of his property, before it is ascertained judicially, that a good cause of action exists against him, and the danger of abuse has been dwelt

* Since this address was delivered, a statute has been passed in Massachusetts, providing that grace shall be allowed on all promissory notes, orders, and drafts, payable at a future day certain, in which there is not an express stipulation to the contrary. St. Mass. 1824, c. 130.

upon with much emphasis and force. And yet perhaps the annals of no country present fewer instances of abuse, than those of the New England states, which allow this mode of proceeding. Personal arrests are rare here, even when property is not to be found; and it is not perhaps hazarding too much to assert, that the writ of capias has subjected more persons to wrongful imprisonment, than the unjust attachment of property has to serious loss and inconvenience. Yet it cannot be denied, that the latter process is liable to great abuses, and that our exemption from them has resulted principally from the sound discretion and integrity of the Bar. And it is most desirable, that some summary practice, analogous to that of discharging on common bail, should be authorized by the legislature, so that fraud and circumvention and oppression may find it more difficult to obtain undue advantages, and compel undue compromises under the influence of this dreaded process.

The remedy for trying land titles in all the states in the Union, except Louisiana and some of the New England states, is the English action of ejectment. It is scarcely modified even in its slightest forms, and John Doe and Richard Roe are the familiar guests, hospites antiqui et constantes, of the courts on the picturesque banks of the Hudson, the broad expanse of the Delaware and Chesapeake, the sunny regions of the South, and the fertile vales and majestic rivers of the West. In Louisiana, the civil law governs all judicial proceedings, and administers all remedies in personam and in rem. And I cannot help paying my humble homage to the excellence of this code, which, adapting its remedies to the exigency of the case, gives complete relief without trammelling itself with prescribed forms, which often perplex and sometimes defeat the ends of justice. In one or two of the adjoining states, the old anomalous proceeding, known as a plea in ejectment, still prevails. The use of writs of entry for the trial of land titles is, I believe unknown, except in Massachusetts, Maine, and New Hampshire. Whether we have derived any important benefit from the revival of the old forms of proceeding in real actions is a question, upon which wise men and sound lawyers may probably disagree. If we have disembarrassed them of some troublesome appendages and some artificial niceties, and rendered them more attractive by the simplicity of their structure; still it must be confessed, that they are not easily moulded to 3

VOL. I.NO. I.

all the uses, which modern conveyances and devises render convenient and necessary. The abandonment of these forms in England from a general sense of their inadequacy to the purposes of justice, and the adoption there, as well as in most of the American states, of the action of ejectment, which has been ascertained by experience to be a perfect and convenient remedy, do certainly carry a weight of authority against our own practice, which, if it be not difficult to resist, it would at least be safe to follow.

4. As to the structure of land titles, there is a considerable diversity in the states, and in several of them a great departure from the simplicity and certainty of those derived under the common law. I am not aware, that in any part of New England any serious difficulties are to be found on this subject, all titles having had their origin in separate grants derived directly from the government or confirmed by it, and having the usual formalities and certainty of grants of the Crown at common law, or of grants by private legislative acts. The only questions, which have been much litigated, are those of boundary, which may and do ordinarily arise under grants between private persons, and of these there have been few of any considerable magnitude. Far different has been the course of proceeding in some other parts of the Union. Titles there have originated in general laws, under which any person might appropriate the property of the state by following the regulations pointed out by certain statutable provisions. These provisions are very complex, and embrace a variety of stages of title, in each of which the purchaser is obliged to observe great precision, or his rights may be postponed to a puisne holder or claimant. As, therefore, the titles stand upon general laws, and by taking steps to acquire them inchoate rights are obtained, or priorities secured, before the titles are consummated by grants from the government, many very difficult questions have grown up as to the nature, extent, validity, and priority of conflicting titles. A regular grant or patent from the government is no security against other claimants, although it should happen to be prior in point of date to all others. It is liable to be overreached and defeated, sometimes at law and sometimes in equity, according to the local jurisprudence, by` prior inchoate rights or equitable claims, whether arising under pre-emptions, or settlements, or entries, or other matters, which have been held to confer upon an adverse claimant a

legal preference. These remarks apply with considerable force to the land laws of Pennsylvania, Maryland, North Carolina, and Tennessee. But it is in Virginia, and more especially in Kentucky, which derives its titles under the Virginia land laws, that they are realized in their fullest extent. The system of land titles in Kentucky is indeed one of the most abstruse branches of local jurisprudence, built up on artificial principles, singularly acute and metaphysical, and quite as curious and intricate, as some of the higher doctrines of contingent remainders and executory devises. It affords an illustrious example of human infirmity and human ingenuity of human infirmity in the legislative supposition, that the great statute, on which it rests, was so certain as in a great measure to preclude future litigation; of human ingenuity in overcoming obstacles apparently insurmountable, by devising approximations to certainty in descriptions strangely vague and inaccurate, thus preserving the legislative intention, and yet promoting the great purposes of justice. The vice of the original system consisted in enabling any persons to appropriate the lands of the state by entries and descriptions of their own, without any previous survey under public authority, and without any such boundaries as were precise, permanent, and unquestionable; and the issuing of grants upon such entries without any inquiry as to the true nature, description, and survey of the lands, and without any attempt to prevent duplicate grants of the same property. If we consider, that Kentucky was at this time a wilderness traversed principally by hunters; that many places must have been but very imperfectly known even to them, and must have received different appellations from occasional and disconnected visitants; if we consider, that the lands were rich, and the spirit of speculation was pushed to a most extravagant extent, and that the spirit of fraud, as is but too common followed close upon the heels of speculation; if we consider the infinite diversity, which under such circumstances must unavoidably exist in the descriptions of the appropriated tracts of land, arising from ignorance, or carelessness, or innocent mistake, or fraud, or personal rashness; we ought not to be surprised at the fact, that the best part of Kentucky is oppressed by conflicting titles, and that in many instances there are three layers of them lapping on or covering each other. The statute, to which I have alluded, required, that the description in the original entry should be so