Since the publication of the great work of Savigny on the 'History of the Roman Law during the Middle Ages," no intelligent scholar has accepted the notion once so prevalent, that the Roman law ceased to be a living force from the fall of the Empire until the discovery of the celebrated manuscript of the Pandects at Amalfi. Receiving a Christian stamp from Theodosius and Justinian, it was the code of the Greek Empire till the downfall of Constantinople, and was the written law to a greater or less extent, of that vast range of municipalities which, with various fortunes and mutations, survived the barbarian invasions, and retained their vitality and organization until the complete formation of the state system of modern Europe, transferred their powers and franchises to the Monarch, the Diet, the States General and the Parliament. During all this period the clergy formed a constituent part of the municipal magistracy. The morality, which the law, as administered in the mediæval municipalities, continually absorbed into itself, was that of the time. It was Christian in its general features, though often grievously corrupted.

The simple traditional codes of the German tribes were formed under the moral guide of a rude heathenism. But they were not reduced to writing until the introduction of Christianity. A careful examination of these codes reveals a singular admixture of laws, with exhortations to moral and religious duties which do not seem to be legislation properly so called, but Homilies. The laws proper have relations to the duties of the clergy, monks and nuns, to religious observances and doctrines; to diplomacy and administration. In the homiletic portions above referred to, quotations are made from Scripture, and throughout the codes the influence of Christian ideas is manifest to the most superficial observer. But while ecclesiastical enactments prescribing religious observances and doctrines are strangely intermingled with civil and criminal law, there is no trace of the recognition of the Jewish or Christian Scriptures as forming in any real sense a constituent part of any one of the barbarian codes, apart from those passages which are quoted or imitated in the laws themselves and which are made binding by physical penalties. Even where the Jewish law, affecting specific crimes, is quoted, it would seem to be done for no defined legal purpose. In the same documents and for the same crimes laws are given which prescribe processes and penalties entirely different from the Jewish. This, as well as other considerations which will occur to every one in any degree familiar with barbarian law, leads to the general conclusion that, while for the barbarian codes, Christianity and Judaism were alike prolific sources of legal ideas and principles, neither system was recognized to be law, proprio vigore in the sense of Sir Matthew Hale's dictum, nor in the sense in which the Pentateuch among the Jews, or the Koran among the Mohammedans, were authoritative codes of public and private law. This will be found to be the case even in the Visigothic laws, in which clerical'influence was the most predominant.

After the development of the canon law into a system, and the claims of the clerical order to be governed by its provisions were admitted, a new element was introduced into the legal system of Europe. Generally speaking, it may be said that three systems of law were administered in most countries of continental Europe at the same time and in the same locality. The Romanized population in the cities were governed by those fragments of the Roman law, which survived all changes and modifications of the civil order due to the barbarian conquests. The barbarians themselves recognized the authority of their traditional codes, which, though modified by the influence of the priesthood who had reduced them to writing, still retained the rude character which rendered them unfit for any

society which had attained civilization. The clergy were responsible to the Cauon law and its Episcopal administrators. This code may be described as the ecclesiastical echo of the Roman civil law. It was marked by the same despotic tendencies; its mode of trial was inquisitorial; it assumed that the power of legislation, administration and execution resided in the Pope and his representatives. "What pleases the Prince has the force of law," was a principle common to both codes; it furnished the magazine of forces through which the clerical order constantly sought to appropriate the entire control of mediæval society. The clergy, as the only scholars in an age of ignorance, united in themselves the knowledge and influence of the clerical and legal professions. They were the natural expounders of the Canons, and were the only masters of the sources of information on all questions arising under the Roman civil code. They were the confessors and conscience-keepers of the barbarian kings. They wielded an overpowering influence in all national and local councils, and were generally present as assessors in all courts for the administration of justice. William of Malmsbury's pithy statement, "Nullus clericus nisi causidicus," was almost universally true. In such a state of things, the introduction of Christian notions and ideas into all civil administration would have been rapid, had it not been hindered by the rude and semi-barbarous customs of the tribes who were the supreme rulers of Europe.

The main source from which morality was absorbed into the law was the Canons. It is just to say that the civilizing force of the Roman jurisprudence came into modern Europe to a great extent through the clergy and the Canon law. It should be borne in mind, however, that the Canon law, as a code, was never adopted as a whole, by any European nation, not even by the States of the Church. In all Concordats the negotiations have turned upon the extent to which the Canon law should be adopted in civil administration. One fundamental object of the Papal see in its diplomacy, has been to secure the introduction of a greater and greater amount of the provisions, doctrines and principles of the Canon law into the civil codes, so that they might be enforced by physical pains and penalties through the civil arm.

In no country was the secular and ecclesiastical administration more completely confounded than in England. Christianized by missionaries direct from Rome, it was under the control of the Papacy when in other European countries clergy and laity were resisting the encroachments of the Roman see. As a result of the control held by the clergy over the civil authorities, both in legislation and the administration of justice, they were not anxious for separate jurisdiction. Clerical influence in England is specially shown by the introduction of wills, and of written titles to landed property, and the use of the oath in the Anglo-Saxon system of practice. By reason of their extreme docility in the hands of the clergy, the Saxon kingdoms avoided the evil of a separate legal system for the church and the state.

ported to be agreed to by the delegates of the United States of America, and are entitled " Articles of Confederation and Perpetual Union between the States."

The Constitutional Convention of 1787 was not a very harmonious body; dissensions among the members becoming at one time so violent as to threaten its dissolution without any form of constitution being agreed upon. Two of the delegates from the State of New York (Yates and Lansing) left the Convention before its close, and Alexander Hamilton alone affixed his name to the Constitution on behalf of that State. He at once devoted his great abilities to urging its ratification.

The form submitted to the States was adopted by the Convention upon a compromise being effected between the delegates of the Eastern and those of the Southern States. Pinckney, one of the delegates from South Carolina, is reported as saying that his constituents were prejudiced against the Eastern States, and 'that "he had himself prejudices against the Eastern States before he came here, but would acknowledge that he found them as liberal and candid as any men whatever." 5 Elliot's Debates, p. 489.

The provision that slaves should be counted in allowing representation in addition to the provisions protecting the slave trade for a limited period and the provision for delivery of fugitive slaves, secured the consent of the Southern delegates to the Union. "Without this indulgence" (the counting of slaves in allowing representation), Hamilton is reported as saying in the New York Convention, "no union could possibly have been formed." Hamilton's Works, edited by John C. Hamilton, ed. of 1850, vol. 11, p. 434.

In framing the Constitution the use of the words "slave" and " "slavery was studiously avoided, at the expense of some circumlocution and almost at the risk of ambiguity. Const., art. 1, § 2, sub-div. 3; § 9, sub-div. 1. Neither word occurs prior to the thirteenth amendment, by which amendment slavery was abolished.

From the draft of a constitution prepared by Hamilton it is clear that he would have favored a more consolidated form of government than that which was adopted. (See the draft in Hamilton's Works, edition cited above, vol. II, p. 395. But State feeling was too strong to allow the adoption of a Constitution which would have reduced the States to little more than governmental departments with governors appointed by the United States. The Legal Tender cases may perhaps cause regret that the provision of Hamilton's draft limiting the number of justices of the United States Supreme Court was not adopted.

ter referred to above.) The Chief Justice, in Fletcher v. Peck, 6 Cranch, 87, observes: "Whatever respect may have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State." Such expressions could hardly have been employed by Mr. Jefferson or by any statesman of his school.

A certain difference may perhaps be thought to be perceptible between the tone of the three last amendments and that of the previous portions of the Constitution. The last amendments appear somewhat more than the previous portions like the enactments of a supreme central authority. It may not be thought too bold to surmise that an acute critic, unacquainted with the history of the United States, might, on reading the whole instrument, conjecture from the tone or form of expression of the thirteenth amendment, that since the adoption of the previous amendments some great event had occurred in the history of the Union. C. W. S.

MANDAMUS NOT REMEDY FOR ABUSE OF JUDICIAL POWER BY CITY OFFICERS.

NEW YORK COURT OF APPEALS, SEPTEMBER 19, 1879. PEOPLE EX REL. FRANCIS V. COMMON COUNCIL OF TROY.

The charter of the city of Troy requires the common council to "designate not to exceed four newspapers having the largest circulation in the city in which the city advertising shall be done." Held, that the power to determine the question of circulation is vested in the common council, and mandamus will not lie to compel that body to designate a particular paper even though it may be clear that such paper has the largest circulation. Held, also, that even if the common council violated its duty and designated four newspapers not having the largest circulation, the appointment of such papers could not be vacated in a proceeding to which they were not parties.

In any case the most that could be done would be to require the common council to designate the four papers actually having the largest circulation, and that would not be done after the time for which the designation was made had expired.

PPEAL from an order of the General and Special Terms of the Supreme Court granting the application of the relator for a mandamus to compel the common council to designate the Troy Times as one of the official journals of the city in accordance with the requirement of the charter which provides for the designation of only papers having the largest circulation. The facts appear in the opinion.

RAPALLO, J. By section three of title two of the charter of the city of Troy the common council is required to "designate not to exceed four newspapers having the largest circulation in the city in which the city advertising shall be done only on the order of the common council." No mode of ascertaining which papers having the largest circulation is pointed out by the statutes, and consequently the question is left open as one of fact to be determined by the common council.

The body at a regular meeting held on the 12th of March, 1878, designated as official newspapers for the then ensuing year four newspapers published in the

Whig, the Trojan-Observer, and the Troy Evening Standard. The proceedings of the meeting at which their designation was made are set forth in the moving papers, on this application, but they do not disclose what evidence the common council then had before it of the extent of the circulation of the various newspapers, except that after the designation of papers had been made an affidavit of one of the relators was presented, stating that he was one of the proprietors of the Troy Daily Times, which paper had the largest circulation of any newspaper published in said city; that deponent believed it had the largest circulation of any newspaper published in said city, but was positive it was one of the four newspapers published in said city having the largest circulation in said city. With this affidavit a written communication from the relators was presented to the common council, calling attention to the before cited provision of the charter, and asking as matter of right that the Troy Daily Times be designated as one of the official papers of the city. A motion to reconsider the desiguation was made after the presentation of these papers, but failed, and the relators thereupon applied to the Supreme Court for a peremptory mandamus requiring the common council to designate theirs as one of the official newspapers. Their application was based upon the minutes of the proceedings before set forth and upon the minutes of the proceedings of the common council of the preceding year, which showed that at a meeting held on the 5th of April, 1877, a report of a committee on printing was received, setting forth the circulation in January, February and March, 1877, of various papers in the city of Troy. As this report related to the year 1877, it cannot be regarded as controlling the action of the common council of 1878. The application was further supported by an affidavit of the proprietor of the Trojan-Observer, that he did not know what the circulation of that paper was for the two months prior to March 13, 1878; that it was issued once a week; that he did not know that its circulation was to exceed 2,000 copies. An affidavit of the manager of the Evening Standard, a daily paper, that its circulation was between 2,100 and 2,500 copies per day on and before March 12, 1878. An affidavit of a clerk of the proprietor of the Troy Morning Whig that the average circulation of that paper for the three months prior to the 12th of March, 1878, did not exceed 2,000 copies. An affidavit of the proprietor of the Troy Daily Press that its average daily circulation during the three months next preceding March 13, 1878, was at least more than 1,800 copies, and an affidavit of one of the relators that their paper, the Troy Daily Times, had, on the 12th of March, 1878, and for more than three months previous thereto, an average daily circulation in said city of upward of 3,000, and that its total daily circulation exceeded 6,000, and that as he was informed and believed, the four newspapers designated by the common council were not the four having the largest circulation in said city. An affidavit of the clerk of the common council that at the meeting at which the designation was made no evidence was before the common council as to the circulation in said city of any of the newspapers published and circulated therein, except the before- mentioned affidavit presented on behalf of the Troy Daily Times, and that the common council refused to refer it to the city attorney to ascertain which were the four papers having the largest circulation, and no committee was appointed to ascertain that fact. An affidavit of one of the proprietors of a weekly newspaper, called the Troy Northern Budget, was also read, stating that on and prior to the 12th of March, 1878, it had an average circulation in said city at each issue of 6,000 and upward, and was one of the four newspapers published in said city having the largest circulation therein, and that, as he believed, the four newspapers designated

were not the four having the largest circulation in said city. In opposition to the application affidavits were read as follows: An affidavit of the president of the common council setting forth the political character of the newspapers published in the city. That the Troy Northern Budget was published only on Sunday, and that the papers designated on the 12th of March, 1878, had accepted the appointment and published the city advertising ever since. A further affidavit of R. A. Parmenter was read descriptive of the various newspapers published in the city, from which it appears that the Troy Daily Times was an afternoon paper issued in two editions, at 2:30 o'clock and 4:30 o'clock each week day, and the Troy Northern Budget was issued every Sunday morning; that the four papers designated by the common council on the 12th of March, 1878, each claimed to be an official paper, and the city advertising had since that time been published in these papers.

On this evidence the court of Special Term awarded a peremptory mandamus commanding the common council at its next regular meeting to designate the Troy Daily Times as one of the official papers of the city of Troy. Under the charter it was the duty of the common council to designate not to exceed four newspapers. It was, therefore, discretionary with it whether to designate more than one. The Troy Daily Times claims the legal right to be designated, alleging that it was the duty of the common council to designate the paper or papers having the largest circulation in the city, and that it answers that description, its daily circulation'in the city being upward of 3,000, while that of neither of the papers designated reaches that figure, that of the Evening Standard being placed in the affidavits at 2,100 to 2,500, the Morning Whig at 2,000, the Daily Press at 1,800 and upward, and as to the Observer, a Sunday paper, its proprietor stating he could not state what its circulation in the city was, and did not know that it exceeded 2,000. The Northern Budget, another Sunday paper not designated, claimed a circulation at each issue of 6,000. In answer to this evidence it appeared that the Troy Daily Times issued two afternoon editions, and as it was not claimed that it circulated 3,000 copies of each edition, the presumption is that the 3,000 copies claimed to be circulated in the city were the aggregate of the two editions.

Assuming, however, that the evidence is sufficient to establish that the Troy Daily Times had the largest circulation in the city, and that the common council erred or violated its duty in not designating it as one of the official papers, the case presents questions of importance and of no small difficulty. The first is whether the legislative direction to the common council to designate the papers having the largest circulation vests in those papers a legal right to be employed which can be enforced by mandamus at their instance, or whether it is a provision intended for the benefit, not of the newspapers, but of the public, to secure the most extensive and efficient advertising, and for a willful violation of which duty the common council are answerable to the public by indictment or otherwise, and not to the newspapers. For an injury inflicted upon an individual by neglect or violation of a public duty, the officer may be responsible both to the public and to the individual injured, and in case of the neglect of a duty enjoined by law for the protection of persons or property of individuals its performance may in general be compelled by mandamus at the instance of any person interested. But there is great room for doubt whether a statutory provision, directing a municipal corporation to employ a designated class of labor in order that the service may be well performed, vests in the persons answering the designation a legal right to be employed and gives them a standing in court to compel the municipal body to em

ploy them. But passing that, the further question remains whether, when the duty of selecting the person to be employed is enjoined by law upon the public body, and the question whether they possess the necessary qualifications is one of fact to be determined by it, no particular mode of determining the fact being provided by law, and the public body has exercised this power and made the selection, its action can be reviewed by mandamus, and it can be compelled by that proceeding to appoint particular persons on their allegation that in fact they and not the persons actually selected possess the prescribed qualifications.

The office of the writ of mandamus is in general to compel the performance of mere ministerial acts prescribed by law. It may also be addressed to subordinate judicial tribunals to compel them to exercise their functions, but never to require them to decide in a particular manner. It is not like a writ of error or appeal, a remedy for erroneous decisions. Judges of Oneida Common Pleas v. People, 18 Wend, 92 to 99, and cases cited. This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment. The character of the duty, and not of the body or officer, determines how far performance of the duty may be imposed by mandamus. When a subordinate body is vested with power to determine a question of fact the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it may be made to appear what the decision ought to be. This principle was applied to an answer in Howland v. Eldredge, 43 N. Y. 457, 461, and is there recognized as an established and universal rule.

The duty of selecting the newspapers having the largest circulation in the city being imposed upon the common council, the power to determine as a matter of fact which papers have the largest circulation is necessarily vested in that body. The most that can be done by mandamus is to compel the common council to determine the question and designate the papers with reference to statutory requirement, but I apprehend that it was not the province of the court to determine the question of fact in the first instance and direct what particular paper or papers should be designated. This view was taken by the General Term in the First Department of the case of The People v. Brennan, 39 Barb. 651. The mayor and comptroller of the city of New York were empowered by law to designate four papers having the largest daily circulation. The mayor and comptroller differed as to the papers to be designated, the comptroller insisting that the papers should be those having the largest daily circulation within the city, and the mayor contending

requiring the comptroller to unite with the mayor in designating the four papers having the largest daily circulation generally. In the present case the evidence seems to have been quite satisfactory to the court that the relator's paper should be one of those designated, but if it was within the power of the court in this case to order the common council how to decide, or to designate any particular paper, it would be equally in the power to do so in cases involving nicely balanced and difficult questions, and the duty of designating official papers for every city in the State could be transferred from the officers charged by law with that duty to the courts of justice.

If the common council have willfully violated or disregarded a duty enjoined upon them by law, they should be responsible in some form. But aside from the legal questions which have been considered, there are serious practical difficulties in the way of applying the particular remedies given by the order appealed from. The four papers designated have acted under their appointment. They are not parties to this proceeding, and their appointment would not be vacated by any judgment rendered herein. There would in that case be five official papers, when the law authorizes only four. It would be difficult to say that the claims of the papers appointed by the common council for services rendered could be successfully resisted by the city on the ground of any invalidity in their appointment. The effect of the mandamus would be to compel the appointment of a fifth paper without disturbing that of the other four. A very clear case should be made out to induce the court to subject the city to the additional expense, and we do not find the right of the relators to a mandamus so plain as to justify this course. We think that the view of the General Term in the First Department is the correct one, and that the most that should be done in such a case by mandamus would be on a proper application and satisfactory proof that the statutory direction had been disregarded, to command the common council to meet and designate not exceeding four papers having the largest circulation in the city of Troy. But a mandamus in that form would not be appropriate now, as the year has elapsed for which the designation should have been made.

The order of the General and Special Terms should be reversed and the application denied, without costs. All concur, except Andrews, J., absent.

ICE ALREADY FORMED PERSONAL PROPERTY.

SUPREME COURT OF MICHIGAN, JULY, 1879.

HIGGINS V. KUSTERER.

C., who was the owner of land covered by a pond, sold to H. the ice already formed in the pond. Held, a sale of personalty, not of realty.

proof showing which papers had the largest general daily circulation, a peremptory mandamus was, on the relation of the mayor, granted at Special Term, requiring the comptroller to unite with the relator in designating four papers named in the writ. The General Term agreed in this construction put upon the statute by the mayor, but said that, as the determination which four papers had the largest daily circulation involved an adjudication upon the question of fact, they did not see upon what principle a mandamus could issue, commanding the comptroller to unite in the designation of certain papers named in the writ. That the court could by mandamus compel the mayor or comptroller to meet and act in the matter, but not to act in a particular manner. The order was accordingly modified so as to direct the issuing of a mandamus

The facts appear in the opinion.

CAMPBELL, C. J. Higgins recovered below a judgment against Kusterer for the value of a quantity of ice. Kusterer claims that title never passed to Higgins, and that the property was lawfully acquired by himself from one Loder, who cut it on a pond belonging to one Coats and sold it to defendant.

The facts are briefly these: The ice in question was formed upon water which had spread over a spot of low ground partly belonging to Hendrick Coats, forming a basin, the land being dry in summer, and in the rest of the year overflowed from a small brook leading into it. After the ice formed, and in February, 1878, Coats, by a parol bargain, sold all the ice in his part of the basin to Higgins, for fifty cents. The parties at the time stood near by, in view of the ice, and the

quantity sold was pointed out, and the money paid. The ice was then all uncut.

About two weeks thereafter John Loder, knowing that Higgins had purchased and claimed the ice, and having been warned thereof by Coats, offered Coats five dollars for the ice, which Coats accepted, and Loder cut it and sold it to Kusterer, who had made a previous verbal contract with Loder for it. Higgins was present when the ice was loaded on Kusterer's sleigh, and forbade the loading and removal, on the ground that he had purchased it from Coats. Kusterer referred the matter to Coats, who said he had sold it to Loder.

The only question presented is whether Higgins was owner of the ice.

The case was argued very ably and very fully, and the whole subject of the nature of ice as property was discussed in all its bearings. We do not, however, propose to consider any question not arising in the case.

The record is free from any complications which might arise under the circumstances. There are no conflicting purchasers in good faith without notice. Loder and Kusterer had full notice of the claims of Higgins before they expended any money. The sale to Higgins was not a sale of such ice as might from time to time be formed on the pond, but of ice which was there already, and which if not cut would disappear with the coming of mild weather and have no further existence. It was not like crops or fruit connected with the soil by roots or trees, through which they gained nourishment before maturity. It was only the product of running water, a portion of which became fixed by freezing, and if not removed in that condition would lose its identity by melting. In its frozen condition it drew nothing from the land, and got no more support from it than a log floating on the water would have had.

Its only value consists in its disposable quality as capable of removal from the water while solid, and of storage where it might be kept in its solid state, which could not be preserved without such removal. If left where it was found it would disappear entirely.

While we think there can be no doubt that the original title to ice must be in the possessor of the water where it is formed, and while it would pass with that possession, yet it seems absurd to hold that a production which can have no use or value except as it is taken away from the water, and which may at any time be removed from the freehold by the moving of the water, or lose existence entirely by melting, should be classed as realty instead of personalty, when the owner of the freehold chooses to sell it by itself. When once severed no skill can join it again to the realty. It has no more organic connection with the estate than any thing else that floats upon the water. Any breakage may sweep it down the stream and thus cut off the property of the freeholder. It has less prominence than any crop that is raised upon the land, and its detention in any particular spot is liable to be broken by many accidents. It must be gathered while fixed in place, or not at all, and can only be kept in existence by cold weather. In the present case the peculiar situation of the pond rendered it likely that the ice could not float away until nearly destroyed, but it could not be preserved from the other risks and incidents of its precarious existence. Any storm or shock might in a moment convert it into floating masses which no ingenuity of black-letter metaphysics could annex to the freehold.

It does not seem to us that it would be profitable to attempt to determine such a case as the present by applying the inconsistent and sometimes almost whimsical rules that have been devised concerning the legal character of crops and emblements. Ice has not been much dealt with as property until very modern times, and no settled body of legal rules has been agreed upon

concerning it. So far as the principles of the common law go, they usually, if not universally, treated nothing movable as realty unless either permanently or organically connected with the land. The tendency of modern authority, especially in regard to modern fixtures, has been to treat such property according to its purposes and uses, as far as possible.

The ephemeral character of ice renders it incapable of any permanent or beneficial use as part of the soil, and it is only valuable when removed from its original place. Its connection, if its position in the water can be called a connection, is neither organic nor lasting. Its removal or disappearance can take nothing from the land. It can only be used and sold as personalty, and its only use tends to its immediate destruction. We think that it should be dealt with in law according to its uses in fact, and that any sale of ice ready formed, as a distinct commodity, should be held a sale of personalty, whether in the water or out of the wa

A and B were respectively owners of two houses which adjoined each other, A using his house as a public house. Both the houses were formerly in the possession of P. When A's house was conveyed to P it was not used as a public house, and there was no evidence to show when it was first used for that purpose. After the death of P his devisees conveyed the house now in A's possession to his predecessors in title, the house now in B's possession having been previously conveyed to his predecessors in title. For more than forty years a signboard with the name of A's public house on it had been fixed to the wall of B's house. B having taken down the signboard, held, that, it having been there for so many years, it must be presumed that it was placed there by virtue of some easement granted to A's predecessors in title, there being no evidence to the contrary, and an injunction was granted restraining B from moving it. It is not necessary that there should be a physical connection between the dominant tenement and the easement.