except as defined by statute; Connecticut retains them. New York allows preferences in insolvency assignments; Connecticut treats all general creditors alike." In New York a notarial seal, especially from over the border, must be proved as such; in Connecticut the seal proves itself. “A deed in New York must have a seal, but only one witness; in Connecticut a scroll will answer for a seal, but two witnesses are While in the conduct of a suit at law Connecticut allows an initial attachment on the service of process in all cases; in New York the rule is to wait until final judgment before touching the debtor's property."

necessary.

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So the validity and effect of mortgages, a matter constantly overleaping State boundaries, varies widely. In Minnesota, Kansas and other States the mortgage investor has "no advantage whatever over an ordinary judgment creditor except a kind of priority of attachment; and in some respects has not even so much advantage, as he has practically no remedy whatever against the debtor, but only against the property mortgaged. Of this he cannot even get possession for more than a year after default, during which time the borrower enjoys the fruits of the mortgaged property, while the lender has to pay all taxes and insurance, and in the meantime the property itself goes to rack and ruin because nobody can safely pay for repairs." The law of Massachusetts is in sharp contrast, "the lender being allowed to sell the property by a few weeks' notice in any newspaper-a notice which may well never reach the eye of the borrower—and without redemption. Thus it happens that a citizen of Massachusetts who lends money on mortgage may suppose he is getting the full security of the property besides a personal liability; while a citizen of Minnesota who borrows money on mortgage knows very well that he is giving no personal security and that of the property only after much delay and expense to the lender.”

As to the effect and necessity of a seal, under the old law of conservative statutes, generally followed in New England, all deeds must be sealed or they will be of no validity; in Tennessee and thirteen other States the use of private seals has been abolished entirely; while in California and other Pacific States a seal is not required, but imports consideration.

Marriage laws vary on the one side from the extreme of the "so-called common law marriage, or Scotch marriage," termed "marriage by consent, marriage de facto, or as the extreme conservatives would call it, marriage which is not marriage at all," to those holding marriage “a sacrament, a state or a finality." A like variability exists in the various statutes fixing the age of legal capacity for marriage; while in divorce there is every varying shade of provision, from South Carolina, that grants no divorces whatever, and New York, standing alone in granting absolute divorce only for adultery, to those States, chiefly in the West, facilitating what has been termed migratory or "carpet-bag divorce," easily obtained by transient visitors through various forms of procedure easily lending themselves to collusion. In forty-nine States and Terri

tories of the Union, divorce is granted for adultery; in forty-nine for extreme cruelty, of which seven are limited divorces; in forty-nine for continuous desertion, of which four are limited divorces; while failure to support the wife is a cause of divorce in many of the States and a fertile field of collusive proceedings.

A like diversity exists in criminal law, there being great inequality in the punishment of the same crimes in the different States. The death penalty, which is in force for murder in all States except three, is in some applied even for perjury, arson, robbery, or mayhem. The maximum penalty for counterfeiting varies from three years' imprisonment in Delaware to imprisonment for life in Massachusetts and other States; and for perjury from five years in New Hampshire and other States, to death in Missouri, if the perjurer designed to effect the death of an innocent person; while in Delaware it is so lightly regarded as to be punishable only by a fine.

NEED FOR UNIFORMITY.

While, however, on the one hand, diversity of State legislation has been constantly increasing, on the other, the growth of commerce and the multiplied means of communication between the different States, strengthening the ties that bind our entire people into closer unity, have made the diversity of legislation, especially in general matters relating to contracts, commerce and the like, whose effect is not limited to the borders of one State, and for which there are no local reasons requiring difference, a matter of constantly increasing inconvenience, annoyance and expense. "The continuing diversity of the laws of the various States and Territories on the subject in question causes constant and gross waste of capital by suitors and of skilled labor by bench and bar; occasions long delays, which are substantial denials of justice; facilitates various admitted immoralities, and issues in uncertainty of law, which Burke aptly described as 'the essence of tyranny.'

A committee of the American Bar Association has admirably said: "The constantly increasing interstate trade and traffic, interstate migration and a wonderful development of the means of inter-communication, fuse and unite all interests and all localities. Variance, dissonance, contradiction, and any unnecessary diversity in the fifty subdivisions of the one American people in the general laws affecting the one people in their business and social relations, cannot but produce perplexity, uncertainty and damage. Such diversity, always an annoyance, is always a nuisance. It is harmful and injudicious in the same way, in kind if not in degree, as it would be for us to have fifty different languages, or fifty different metric systems. The business man may well ask, Why should not the meaning and effect of a promissory note, a bill of lading or guaranty, be as certain and definite and practically identical in all the States as the meaning of words in an American dictionary, and for the same reason, the common convenience of all? Obviously, the vast volume of inter

*

state trade and commerce and business dealings of all kinds growing in range and complexity to enormous proportions, is entitled to the protection and advantage of substantially uniform laws. * * This whole matter * * * is a practical, common-sense question of comity, made certain of the easy avoidance of useless annoyances by common consent, in a word, of good neighborhood, and of good neighborhood between the members of the same family."

The true scope of the movement towards uniformity in legislation, together with its reasonable limitations, has been well stated as follows: "It is highly proper, in the interest of human freedom, that the several States alone have the power to pass laws on other matters of private right; that each community can carry into effect its own views as to what is fair or humane, and what is against good manners and public policy; and there is no desire among right-minded men that the field of congressional jurisdiction should be widened or that the field of State legislation should be narrowed. But undoubtedly there are many subjects on which the laws of several States differ from each other, either broadly or in some slight detail, to the great detriment and inconvenience of those whose business interests outrun their immediate State line; and these differences are in most cases accidental; that is, they do not flow from a difference in sentiment or policy. * * * If Georgia and six other States require the attestation of three witnesses to a will, while thirty-seven other States are satisfied with the signatures of two witnesses, and Pennsylvania requires no attestation at all, there is no sentiment at the bottom of all this, no question of good policy. One law on these subjects is pretty much as good as the other, but the co-existence of both laws often leads to a failure of justice. A testator owning lands in Georgia makes his will in Ohio, before two witnesses, and the devisee of the Georgia land is thrown out."

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MOVEMENT TOWARDS UNIFORMITY.

Before the year 1889 some effort towards securing uniformity had been made by the American Bar Association, but with little avail. In that year, however, the President of the Bar Association of Tennessee, Major L. B. McFarland, forcibly called attention to the want of uniformity in the laws of the several States in the matter of deeds and wills, marriage and divorce, and like questions not involving diverse local interests, and the discouraging effect of this diversity to material development and legal accuracy, and on his suggestion the Association instructed its delegates to the American and National Bar Associations, to urge the passage of a resolution recommending a convention of representatives from all the States to frame a system of uniform laws on these and kindred subjects to be submitted to the several legislatures; as the result of which Col. W. A. Collier, one of the delegates to the American Bar Association, at its meeting in 1889, brought President McFarland's sug

gestions to the attention of that Association and submitted a resolution, which was adopted, "recognizing the desirability of uniformity of laws in the several States, especially those relating to marriage and divorce and distribution of property, acknowledgments of deeds, execution and probate of wills," and directing the President to appoint a committee of one from each State, who should meet and compare and consider the laws of the different States relating to these subjects and prepare and report recommendations and measures to bring about the desired result; a Committee on Uniform State Laws having been appointed that year and annually thereafter until it was recently made one of the standing committees of the Association. In 1890 this committee reported that the State of New York had passed an act authorizing the appointment of three commissioners for the promotion of uniformity of legislation in the United States, who were authorized to examine the subjects of marriage and divorce, notarial certificates and other subjects, and to ascertain the best means to effect an assimilation and uniformity in the laws of the States; and, in 1891, that commissioners on uniformity of legislation had been appointed by six States, and further, that by correspondence with judges and lawyers throughout the United States they had found a substantial agreement of opinion that the desired uniformity could be best secured by legislative action in the States, and that the most urgent need of uniformity was "in matters affecting directly the business common to and co-extensive with the whole country," such as the enforcement of contracts, the formalities and proof of legal instruments, and that sudden and radical changes in the laws of divorce, descent and distribution would meet with great difficulty, and be more likely to be adopted, if at all, “after the general advantages of uniformity in commercial matters had been demonstrated by experience." This report lays down the broad lines upon which all subsequent work has been conducted.

In subsequent years this committee has reported from year to year the appointment by State after State of Commissioners on Uniformity of Legislation, until now thirty-seven States and Territories-of whom Tennessee is not yet one-have appointed State Boards of Commissioners. The boards consist usually of three commissioners from each State, appointed generally for five years, with authority to confer with commissioners of other States and recommend the form of bills to bring about uniformity of law in the execution and proof of deeds and wills and other subjects where uniformity seems practicable and desirable. None of these commissioners receive a salary. They hold an annual National Conference during the same weeks and at the same place as the American Bar Association, with the natural result that the work on uniformity of legislation has recently been mainly done by the conference of the commissioners rather than by the committee of the Association. These commissioners are appointed directly by the States themselves, in the exercise of their own law-making power; and the commissioners have no powers except that of investigation and conference, reporting their conclusions

to the legislatures for such subsequent exercise of their law-making power as they may then deem proper.

Fourteen annual conferences of the commissioners have been held; the first at Saratoga, in 1892; the last at St. Louis, in 1904. At the first conference, short sections were recommended in reference to negotiable instruments, but for the first few years after its organization the conference confined its recommendations to forms for written instruments of title, a standard of weights and measures, the legalization of foreign wills and the abolition of days of grace; the commissioners believing that until a majority of the States had joined in the movement it was useless to recommend uniform laws except upon the simplest matters, as to whose utility there could be no possible question. A simple statute suggested by the conference making a last will and testament executed outside of any State in the mode prescribed by the law either of the State where it is executed or the State where the testator lived, has been adopted by most of the States of the Union, while a similar statute recommended by the conference, that any will duly proven in the State where the testator lives may be duly admitted to probate in any other State by filing an exemplified copy, is already the law of a majority of the States.

However, in 1896, after more than half the States had appointed commissioners, and after a year's careful study by various committees* the conference recommended a Uniform Negotiable Instruments Act. The immense importance of this act to the great business community was soon recognized; and it has now been successively adopted by twenty-one States, one District, and one Territory, beginning with New York in 1897 and ending with Montana and Idaho in 1903; having been adopted by Tennessee in 1899. The success that has attended this act has been of the greatest encouragement and given renewed vigor to the entire movement.

In the matter of divorce the conference has recommended a uniform law in reference to divorce procedure, intended to prevent the procurement of migratory divorces, through fictitious residence in distant States, by preventing a divorce in any State for any cause arising prior to the residence of petitioner in such State, which was not a ground for divorce in the State where the cause arose, requiring at least one year's actual residence in a State before application is made for a divorce, and providing for bona fide notice of the proceedings to the opposite party in cases where the same is possible.

The conference will next consider a uniform act on sales, prepared by Prof. Samuel Williston, of the Harvard Law School, and a uniform act on partnership, which is to be drafted by Prof. J. B. Ames, Dean of the Harvard Law School.

It is to be profoundly regretted that Tennessee, which had so honorable part in giving impetus, in 1889, to the movement for uniformity, is not represented at these conferences by a State Board of Commissioners, and in order that Tennessee may actively join her sister States in the beneficent work of uniform and harmonious legislation, facilitating the