that the term 'minerals' includes every substance which can be got from underneath the earth for the purpose of profit. The terms of this definition are wide enough to include the boat, but I am not aware that the term 'minerals' has ever been held to include any thing except that which is part of the natural soil. Unquestionably coal is deemed in law a part of the natural soil, without regard to what geologists may show to have been its origin. In law the natural processes by which the trees of a forest have become coal are not investigated, the result only is considered. But the boat has not become petrified or fossilized; it always has been distinguishable from the natural soil itself. If therefore I were required to decide the question I should hold that it is not a mineral. In support of the contention that it ought to be deemed in law as part of the soil in which it was embedded, reference was made to the principle embodied in the maxim, quicquid plantatur, or as it is sometimes stated (see Broom's Legal Maxims, 6th ed., p. 376, n., and the judgment in Climie v. Wood, 18 L. T. Rep. (N. S.) 609; L. Rep., 3 Exch. 257), ficatur solo, solo cedit. This principle is an absolute rule of law not depending on intention; for instance, if a man digs in the land of another and permanently fixes in the soil stones or bricks or the like as the foundation of a house, the stones or bricks become the property of the owner of the soil, whatever may have been the intention of the person who so placed them there, and even against his declared intention that they should remain his property. Nor does it appear to me to be material that the things should have been placed there by the hand of man; it would seem to be sufficient if they have become permanently fixed in the soil by the operation of natural causes. In support of the contention that the boat always remained a chattel, it was or may be urged that though embedded in the soil, it always was distinguishable from the soil itself, and preserved its original character of a chattel, which it certainly now is. Not long ago there was discovered, in the course of making excavations in Hampshire, a jar containing Roman coins, not gold or silver coins, and therefore not falling within the Royal prerogative of treasure trove; apparently the coins formed the small change of the treasure of a Roman legion. Could it be said that the jar or the coins were part of the soil within the principle referred to? Similarly a short time since there was found beneath the soil (I believe in Devonshire) a Roman lamp of ingenious construction made of lead, and in excellent state of preservation. A similar question may be asked of the lamp. But, as I have said, it is not necessary to decide these or the like interesting questions in the present case. The first question which does actually arise in this case is whether the boat belonged to the plaintiff at the time of the granting of the lease. I hold that it did, whether it ought to be regarded as a mineral, or as part of the soil within the maxim above cited, or as a chattel. If it was a mineral or part of the soil in the sense above indicated, then it clearly be

longed to the owners of the inheritance as part of the inheritance itself. But if it ought to be regarded as a chattel, I hold the property in the chattel was vested in the plaintiff for the following reasons: Being entitled to the inheritance under the settlement of 1856, and in lawful possession, he was in possession of the ground, not merely of the surface, but of every thing that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. The principle of the decision of the court in Reg. v. Rowe (Bell's C. C. 93) appears to me to apply. There the question was whether the property in some iron lying at the bottom of a canal was well laid in the indictment in the canal company. The water had been taken out for the purpose of cleaning the canal, and the prisoner was indicted for stealing the iron which had been dropped into the canal by the owner. The court held that the canal company had a sufficient property in and possession of the iron to support the indictment. If the fact of the iron having been left on the surface of the ground covered by water was sufficient to give in law possession of the chattel to the person in possession of the land, it appears to follow à fortiori that the facts of this case justify me in holding that the plaintiff was in possession of the boat. For the boat was embedded in the land; a mere trespasser could not have taken possession of it, he could only have come at it by further acts of trespass involving spoil and waste of the inheritance. Blades v. Higgs, 12 L. T. Rep. (N. S.) 615; 11 H. of L. Cas. 621; and Holmes' Common Law, title Possession,' p. 223. The plaintiff then being in the possession of the chattel it follows that the property in the chattel was vested in him. Obviously the right of the original owner could not be established; it had for centuries been lost or barred, even supposing that the property had not been abandoned when the boat was first left on the spot where it was found. The plaintiff then had a lawful possession, good against all the world, and therefore the property in the boat. In my opinion it makes no difference in these circumstances that the plaintiff was not aware of the existence of the boat."

In McDonald v. Mayor, etc., New Jersey Court of Chancery, Jan. 12, 1887, it was held that the whole of a public street in a city is for the use of the public at large; and the occupation of such street for a market is a public and a private nuisance, and a city granting licenses to use a public street as a market may be enjoined from using, or authorizing or taking pay for the use of such street for that purpose. The chancellor said: "The annoyance complained of is loud noises and offensive smells. The noise is of the stamping of horses' feet, the rumbling of wagons, the rattling of chains and harness, the shouting of men to their horses and to each other, the throwing of barrels and boxes from the wagons to and upon the sidewalk, the hawking and the hum and bustle of the crowd of purchasers The noises seriously disturb the sleep of the com

or guardian? What is the rule of liability for a negligent fire communicated by the wind to distant premises? Are preferential assignments proper? Where goods are bought on credit, title not to pass until payment, can the purchaser give title to another? Has an innkeeper a lien on the goods of a third person in possession of the guest? What contracts made on Sunday are valid? Is an infant estopped by his fraudulent representation that he was of age, in an action for the fraud? Is a sale without delivery conclusively or only presumptively fraudulent as against creditors? These questions are all uncertain, and differently decided in different States. And so I might "go on forever," like Tennyson's "Brook."

B. Fluctuating. There is no telling how long the law will stay as it is. The judges may alter it at pleasure, and are altering it all the time. It varies with their moods and caprices. The law may depend on an attack of dyspepsia. Everybody knows that the maxim "stare decisis" is a delusion. Look at the table of cases overruled, etc. First, the judges distinguish a case; next they limit it; next they criticise it; then they doubt it; then they deny it; and at length, familiarity having bred contempt, they overrule it. Like the influence of vice -they first endure, then pity, then embrace."

C. Inconvenient.-Granting that the law is all written and unchangeable, still it is vastly inconvenient to have to go over thousands of volumes to find it, even down to the latest number of the last week's periodicals. Mr. Moak deems it essential to have sixteen thousand law books at his hand. Our State Library has twice as many. More than fifteen hundred have been published in this country in two years. It would be very desirable to put the meat of the law in one statute book just for convenience's sake.

D. Expensive. So many books are expensive. It is expensive to employ lawyers to search them. It is expensive to enforce the common law. It is particularly expensive to start out in a case with good law, and have it converted to bad law in the course of the litigation.

E. Without authority.- Nobody dreams of questioning the authority of a statute, nor of inquiring by how large a majority it was enacted. But any case is open to question. Especially so when decided by a divided court, as so many are, and where the dissenting opinions are published. Many a case is decided by a majority of one judge in the ultimate court, and against the unanimous opinion of all the lower judges. Four judges frequently lay down the law against seven, and even more, in cases where several general terms are reversed. The lawyers will never cease struggling against such authorities without authority.

principles already laid down in these myriads of volumes, and actually have the "gall" to tell him that we refuse because to comply would render it more difficult to change the law! We might as well deny the Bible to the citizen and send him to the priest for his religion. In Code States and countries the citizen knows much more of the law. Law is not made for the convenience or enrichment of lawyers, but for the regulation of the citizen. Therefore give him an abstract of it in small space, and when it is to be altered let it be done by the proper law-making power, and not by the law administrators.

3. The Constitution contemplates and intends codification. Those wild gentlemen who attribute the corruption of judges to codification tell us that the Constitution does not command codification. What then? Was it jesting when it said the commissioners should report codes "for adoption?" Three branches of our law have been codified in compliance with this injunction. The fourth and most important ought to be.

4. Codification would reduce the volume of reports. It is a noteworthy fact that in the Code States reports are much fewer and opinions much shorter than in common-law States.

5. The American Bar Association, by a decisive majority, have resolved that so far as its principles are concerned the common law should be reduced to the form of a statute.

II.

General codification is practicable.

1. Because the most civilized nations of the

world have been successfully governed by codes, and excepting the English, are yet so governed.

2. Because some of our States are so governed -Louisiana, Georgia, California, Dakota.

3. Because the spirit of the age is in favor of codification. Witness England, where they are reducing the laws to codes as fast as possible. There is comparatively little of the common law left there; nearly every thing is in statutes.

4. Because much of our own law is already in statutes; even much of the common law has been enacted in statutes.

5. Because our three codes work admirably. The Code of Civil Procedure, as it existed before Mr. Throop's monstrous revision, was the greatest legal blessing ever granted to mankind; has been copied in twenty States, and led England to abolish chancery and adopt a similar system.

6. Because no code once adopted was ever repealed.

III.

The proposed code is desirable.

1. Because it is the work of three of the greatest lawyers of our State. It was eight years in preparation. It has been twenty-two years before the Legislature and the public, and subjected to un

near right, and as unobjectionable, as we can hope ever to have a code on the start. No code can ever

The following are the principal objections: 1. Foremost, the lawyers don't want it. Answer: The people do. And at least a third of the lawyers do, and this class is increasing constantly. Twenty lawyers in the Assembly voted for it against fourteen. The New York city clique, headed by Mr. Carter and Prof. Dwight, and Mr. J. Bleecker Miller, oppose it, and I have Mr. Moak's authority for saying that it is mainly because they don't like Mr. Field. Anybody who has heard Mr. Carter knows that. If Prof. Dwight, the great "dissenter" of the commission of appeals, had written it-violent presumption! - the same clique would bow down and adore it. But neither a few lawyers in New York city nor the eleven thousand of the State, have a right to say that the citizen shall not have a book of the laws.

2. It would impair the "elasticity" and "flexibility" of the law. Answer: If they mean it would repair its uncertainty and that is really what they mean -I grant it. But how do these blowers of hot and cold reconcile "elasticity" with "stare decisis?" They say it would make a "cast-iron" rule. So does every statute, and yet they actually complain that statutes give rise to necessity for construction! A code must be distinguished from a digest. It is a skeleton of principles, not a statement of details. Principles should be "cast-iron." Proper “flexibility" applies only to the application of them. Cases should be relegated to their proper position of illustrations, not sources, of the law.

3. It would give rise to necessity for construction. Answer: True, but it would remove the inquiry from the domain of principles to the field of mere interpretation. Instead of construing a principle from thousands of books we should interpret the language of a statute in one. It would get set

zen of a State which expends untold millions every year on tobacco and rum!

5. The Legislature would "tinker" it. Answer: They couldn't "tinker" it a tenth part so much as the judges now "tinker" the law. But it is no excuse for not doing right that others may do wrong. Besides, a standing commission on code revision might and ought to be appointed, to prevent "tinkering."

6. Two governors vetoed it. Answer: Governor Robinson vetoed it because it changed the laws in important particulars - dower, for instance. These objections have been removed. Governor Cornell vetoed it, I believe, because the bill was not to have it go into effect until a commission should have revised and amended it, and he did not approve of laws passed in such form.

FINALLY.

The question is simply this: Are five or six thousand lawyers to defeat the expressed will of five millions of people, including certainly four or five thousand lawyers? That is the plain honest Eng

lish of the matter. I make my living by reporting and explaining the common law. Probably it is for my interest to have the present state of things continue. But the lawyers, including myself, will always have enough to do without thriving on the misfortunes of the public, growing out of our confused, obscure, ever-changing laws. Lawyers have always opposed every legal reform. The first piece of legal writing I ever did was a thesis thirty years ago, in favor of admitting parties to testify for themselves terrible heresy! How that was fought! How the Code of Procedure was resisted!" Jack Code," Mr. Evarts called it. Mr. Carter says this Code is "not worth a dime novel." Mr. Hare, in his new work on contracts, says "codification is liable to err by enacting principles into rules." I should say that is a laudable error. In contrast with these learned gentlemen I cite Lord Justice James, who recently spoke of Blackstone as "the somewhat indiscrimate eulogist of every peculiarity and anomaly in our system of laws."

I call on the Legislature and the profession to rise above petty, personal, temporary interests, and do the thing that is right, for by the right and never by the wrong may man thrive.

IRVING BRowne.

REMARKS OF MR. WILLIAM W. COOK BEFORE THE SENATE JUDICIARY COMMITTEE, ON THE CIVIL CODE.

ANY of the principles of corporation law are so old, well-established and unquestioned that they are found only in the old reports and decisions. That these principles may be embodied in a code cannot be questioned. The question which faces us is whether these principles should be embodied in a code, and whether this code states those principles clearly and accurately. The most practical way of answering this question is to study the code itself.

Take for example section 543. It provides that