carried on with increasing violence, between the advocates and opponents of slavery? This is a fearful question, which time only

can answer.

2. As to Aliens. We have an immense vacant territory, which is fertile beyond example, and sold so cheap that almost every man is able to buy it. To the foreigner, therefore, we hold out every temptation to quit the crowded settlements of the Old World, and seek ease and abundance here. Upon his first arrival, we extend to him the privilege of a freeholder; and in five years, by taking the proper steps, we admit him to all the privileges of an American citizen. The natural consequence is, that Europe is annually pouring her thousands into our rushing stream of population. They come for the most part uneducated, at least in the great lessons of republicanism; and who can tell what is to be the ultimate consequence to our institutions? Will they always be safe in the hands of a population, so large a portion of whom are not born and bred to understand and love them, and who owe to them at best only a divided allegiance? Would not a longer probation for citizenship have been wiser in the first instance? Is it now too late to make the experiment? These are questions of deep moment, upon which all of us should have our minds definitively made up.

3. As to Indians. The condition of the Indians is a cause of sorrow rather than apprehension. Whose fault is it, that the original occupants of the American soil are dwindling away by their contact with civilization? Would a different policy have left them in as good a condition as that in which the Europeans first found them? Can any thing be done now to save them from that utter extinction, towards which they seem to be fast hastening? I state these questions, because they are of deep and mournful import. Our country must one day answer them to the enlightened world; and it is our individual duty to examine them with care, that we may form our own opinions understandingly.

4. As to Married Women. On this subject reform is loudly called for. There is no foundation, in reason or expediency, for the absolute and slavish subjection of the wife to the husband, which forms the foundation of her present legal relations. The law ought to furnish some means by which, in case of emergency, she can protect herself from the utter ruin in which he now has the power to involve her. Were woman, in point of fact, the abject thing which the law in theory considers her to be when married, she would not be worthy of the companionship of man. But I have before enlarged sufficiently upon this topic.

5. As to Debtor and Creditor. Humanity requires that the person of a debtor should not be at the mercy of his creditor; and the law has in most places met this demand, by abolishing or qualifying imprisonment for debt. But on the other hand, justice requires that all a debtor's property should be scrupulously subjected to the payment of his debts; and that every facility should be furnished to the creditor for securing payment when there is property out of

which to make it. This cannot be done, unless the utmost precaution be taken to prevent insolvent debtors from concealing their means of payment; and in this respect, our law stands greatly in need of modification.

§ 263. Proposed Changes in the Law of Property. In the law of property there are also some topics of strong interest to the friend of reform; among which are the following:

1. As to the Public Domain. This is in every point of view a subject of deep anxiety. The first difficulty is to determine upon the best scheme for disposing of it; and upon this opinions are widely different. Another more serious difficulty may grow out of the exclusive claims advanced by some of the States, to the portions situated within their respective limits, in violation of the fundamental condition, upon which the whole was ceded to the United States. But the gravest question relates to the rapid formation of new States, which are extending the limits of the Union far beyond what was originally contemplated. Whether the effect of this extension will be to make us the greatest nation on the face of the globe, or to break our Union asunder by its own increasing weight, is an awful problem, which a few generations must determine one way or the other.

2. As to the Law of Remainders. We have seen that this immense fabric has been built upon reasons which no longer exist. It is perhaps well to allow men to make future limitations of their property, within the boundaries prescribed by the statute against perpetuities; and if so, it is certainly desirable that this should be done in the most simple and certain manner; whereas, the present law of remainders is, beyond any other branch of law, complicated and uncertain. Now a single enactment would, in a great measure, remove this objection. It is only necessary to apply to remainders created by deed, the present doctrines of executory devises, or, in other words, to give to deeds the same capacity of future operations that wills already have, and to this there can be no inherent objection. The main prop of the present fabric, as we have heretofore seen, is the particular estate which precedes the remainder. By the reform proposed, this prop being withdrawn, the fabric itself would be dispensed with. While at the same time, the object of creating remainders would be equally well attained, and in a far simpler manner.

3. As to Mortgages. We have seen that the design of a mortgage is to give the mortgagee a lien upon the property of the mortgagor, to secure the payment of a debt; but that when the time arrives, if the debt is not paid, the mortgagee can sue for the debt, bring ejectment for the land, and foreclose the mortgage in chancery, all at the same time, or either first, at his option. Now, this makes the nature of a mortgage much more complicated than its object requires it to be; while it gives the mortgagee the power of unnecessarily harassing the mortgagor. If the form of a mortgage were changed so as to give it no other effect than that of a

common lien, the law would be greatly simplified without injury to either party. The mortgagee's security would be equally good, his remedy even more speedy, and the rights of the mortgagor would be equally well protected. Whereas, at present, owing to the fact that the equitable construction put upon a mortgage, is entirely different from its original legal effect, the law of mortgages is greatly wanting in symmetry and simplicity. (a)

4. As to Descents. In prescribing the rules by which property shall descend, the law proposes to effectuate the presumed wishes of the deceased. On this ground, as we have seen, it makes ancestral property descend in the blood of the ancestor from whom it came, though in so doing it should pass into hands very remote from the last owner. The expediency of this arrangement may perhaps be doubted; but I mention it here, to show how much regard the law professes to pay to the presumed wishes of the deceased. And now, I ask, why it does not carry the principle through the whole law of descent? We have seen that husband and wife are the very last persons to inherit to each other, being postponed to the most remote relative that can be found. This certainly cannot be the presumed wish of the deceased in any supposable case. Next to children, and perhaps equally with them, the husband or wife should be provided for on the principle assumed; and it seems to me that the law ought to be so changed as to make this provision. (b) I would further suggest, that the rule in Shelley's case ought to be abolished, with respect to deeds as well as wills. It professes to be a rule of construction designed to effectuate the intentions of those who make settlements of property; and yet no one can doubt that in nine cases out of ten, it directly frustrates their intentions, by attaching to their language a meaning not deducible from its natural import. It gives a feesimple where a life-estate only was intended; and thus cuts off the heirs from the limitation expressly made for them. They may perchance take by descent; but it is only a chance, and not that certainty which must have been intended by the person making the settlement.

5. As to Conveyances. The simplicity which prevails in the transfer of personalty is perhaps all that can be desired; but it would be a great improvement, if there were some specific provision, as to what shall constitute a contract of sale. In like manner, our conveyances of realty are so much more simple and expeditious than the ancient common-law conveyances, that we have little room for complaint But the inexcusable redundancy and surplusage of deeds, is an abuse which ought not to be tolerated. The mere statement of this proposition must carry conviction of its truth.

6. As to Contracts. The principal objection to the present law

(a) This evil is now remedied by the Code.

(b) This alteration has been made. See the last note to Lecture XXIX.

of contracts is found in the distinction between sealed and unsealed contracts. Abolish this, and the law of contracts would be as simple as could be desired. I am unable to conceive of a single argument in favor of continuing the use of private seals. They perpetuate a thousand distinctions without any corresponding benefits. Perhaps another improvement would be, to extend the doctrines of negotiability to a greater number of contracts. At all events, there is no reasonable foundation for the present doctrine that contracts in general cannot be assigned. They can be assigned in equity, and indirectly in law; and why not remove the restraint entirely? I can perceive no evil which would counterbalance the benefit of simplicity. Credit and traffic are now so widely extended, that such restraints are often very serious inconveniences.

§ 264. Proposed Changes in the Law of Crimes. In the law of crimes, the grand improvement has already been made by superseding the common law, in the definition of crimes and punishments. Our criminal enactments are pre-eminently characterized by simplicity and humanity. But even here, some improvements may be suggested.

1. As to Definitions. The present system is to make the definitions of crimes as specific as possible. This has been illustrated by the examples of perjury, forgery, burglary, arson, and the like. Now, the danger in such cases is, that some particulars will be omitted; whereas, there could be no danger in using general terms sufficiently comprehensive to include all possible particulars. And the brevity thereby attained would be an additional motive for the change.

2. As to Punishments. Whether capital punishment ought to be abolished, and solitary imprisonment for life substituted in its place, is a question of great interest, which I shall not here discuss. All agree, however, that if executions are to continue, they ought to take place in secret. In like manner, public opinion is strongly inclining in favor of solitary, instead of promiscuous, confinement. But the abolition of fines seems to be the reformation most required, as well on the ground of their inequality as their inefficiency. If they do not actually encourage crimes, they certainly do very little to prevent them; and they look too much like a sale of criminal license. Lastly, the repetition of offences ought to be provided against by increased penalties. When an offender repeats an offence, this is proof that the former punishment was not sufficient; and the law should be imperative, in increasing the punishment.

$265. Proposed Changes in the Law of Procedure. In the law of procedure there is abundant room for improvement, particularly in common-law proceedings; for as to chancery and criminal proceedings, they are perhaps as simple and certain as we can expect to make them. The only prominent objection is to their length and redundancy, a common fault of all judicial proceed

ings; but the English forms have been so much pruned and corrected even in this respect, that we ought to congratulate ourselves, rather than find fault. Our common-law proceedings, however, are complicated, burdensome, and unwieldy, beyond all reason. The leading improvements suggested are as follows:

1. As to the Forms of Action. (a) We now have three distinct actions of contract; while in reason there can be no imaginable necessity for more than one. Indeed, by abolishing seals, as before suggested, the action of covenant would at once be dispensed with; and then debt and assumpsit could be readily consolidated. Again, there are five distinct actions of tort, while there can be no occasion for more than two; one to recover the specific thing, as in replevin, and the other to recover damages for injury or detention. Again, though we have gained much by extending the scope of ejectment, so as to supply the place of all real actions, yet that action would itself be greatly improved by striking out all the fictions, and adapting the language of the proceedings to the object they are now intended to effect. By these three measures, the law of remedies would be immensely simplified; but this is not the limit of improvement. The grandest step of all would be, to adopt the forms of chancery proceedings in all civil cases, leaving the principles of law as they now are. These forms are as simple and rational as we can ever hope to devise; and they are abundantly adequate to all civil remedies.

2. As to the Pleadings. To say nothing of the style and language of pleading, which are wholly destitute of neatness and elegance, there is a still more substantial objection to the present system. I refer to the wide prevalence of general pleadings as distinguished from special. The object of all pleading is to apprise each party accurately of the grounds assumed by the other. Special pleading effects this; general pleading does not. The common counts and general issues convey no intimation of the matters to be relied on at the trial. They may be convenient for counsel, but the ends of justice would be far better attained by requiring each party to disclose his case fully.

3. As to Evidence. The object of all the rules of evidence should be to establish the truth; and, in order to effect this object, and thus to complete justice between the parties, it is necessary to obtain all the light which can be had from every available source. Against false swearing, we have the restraints of moral and religious obligation, and the penalties of perjury; moreover, the jurors are competent to determine whether, under all the circumstances, a witness is to be believed or not. Is there, then, any occasion for allowing the question of competency to be raised? I can see no good end that it answers. On the contrary, I believe that in the average of cases, the ends of justice would be far

(a) These reforms have all been effected by the Code.