The Traditional Element in the Law Its Advantages.-On the other side, what are the advantages of this traditional body of law when we come to use it as juridical material for the future? I think there are three that stand out quite as prominently as the difficulties of which I have just spoken.

And I think the one that deserves to be put first as one studies legal history is that the traditional element is our great safeguard against the shaping of the law by class interests. We read very commonly in the periodicals and in the observations of economists and sociologists and organs of class interest to the contrary, but I undertake to say that legal history completely vindicates our tribunals of that charge. The habit of referring all questions to principle, the settled habit of looking at the particular case, not by itself, but as a type of a universal question, the endeavor to make the law conform constantly to ideals or right and justice, have always stood between tribunals and the pressure of class interest. One has only to see how the English mediaeval courts barred entails, cut off the tying-up of the estates of the English nobles in the face of the statute de donis, and in the face of the overwhelming interest of the dominant class in mediaeval society; he has only to see how the English courts to-day in the Osborne and the Taff Vale cases have stood out for principle and reason and system in law against a Parliament dominated by the representatives of organized labor, to see that neither the great in position nor the great in numbers have been able to swerve the traditional element of the law from the path marked out by science, by system, by logic. That then I should put as the great advantage.

But second only to that is the advantage that the rules which make up the traditional element of a legal system represent actual experience in the adjudication of concrete causes. They are made inductively, from actual cases; they are not made deductively, by deduction from an abstract

principle, to meet the exigencies of an unknown future.

Third I should put as an advantage of the traditional element of the law that it peculiarly combines certainty and flexibility in the administration of justice. It admits of flexibility because it deals with cases one at a time as they arise. It admits of certainty because it proceeds by a logical technique which enables you, given the premises, to determine the results in cases as they arise with a reasonable certainty.

Growth of Law by Means of Tradition Not Legislation.-For these reasons then I take it in all the growing periods of law and legal history, the growth has taken place, not through legislation, but through the traditional element of the law. The classical stage of the Roman law in the third century was a stage of development of the law by the Roman jurists through a theory of natural law, not through legislation; the making over of English law through the court of chancery was the work of lawyers and judges, not of Parliament; the making over of English law in the eighteenth century through the law merchant was achieved by Lord Mansfield and his colleagues in the courts, not by Parliament; the making over of the common law of England into a law for America in the nineteenth century was was the work, not of American legislatures, but of American courts.

If we turn to the imperative element of the law, the first thing that comes to our notice is that that is relatively a new feature of legal system. Conscious, deliberate, intentional lawmaking is something relatively modern. The beginnings of legislation are not attempts at conscious lawmaking. They are simply attempts at formulating what has been the law already. For a long time the actual making of the law goes forward subconsciously. Perhaps the beginnings of legislation are to be seen in cases where two tribes or two peoples, which formerly had diverse cus

toms, unite and try to state the common custom of the whole. There it becomes necessary to pick and to choose and to harmonize; an example may be seen in Alfred's law. He had to harmonize, as well as collect and put into one body of law, the law of the different nations or states which made up his Anglo-Saxon kingdom. And he tells us he did consciously amend and select, but he says, "I durst not set down aught of mine own." He made nothing. So men begin simply by picking and choosing and possibly amending. Then, at a later stage, when men are still not prepared to deliberately state or deliberately change, they find they can change, without the appearance of change, by altering the written record. It is not, however, until a relatively late date, it is not until the maturity of the law, that we find the lawmaker deliberately making something new and establishing it as something that has been made consciously for the first time.

Two Theories of the Nature and Origin of Law. Along with these two elements. in a developed system of law we find not unnaturally two theories as to the nature and origin of law. On the one hand we find a theory that law is something which can be found but cannot be made, something which expresses the principles of right and justice which are discovered, but something that must rest upon reason, upon conformity to right and justice, not upon authority. That is the Germanic tradition; that is the mediaeval tradition; it is the common law tradition in which you and I have been trained. On the other hand, there is what might be called the political tradition, the conception of law as something that is and may be made consciously, as something which rests upon the authority of the state, as something which is simply the expressed will of the sovereign. That is the Roman tradition, although it would be more just to speak of it as the Byzantine tradition; it is the tradition of the student of political science:

it is, I suppose, the theory of the American legislator to-day.

Let us notice where that theory comes from and it will aid us in appraising it. We speak of it as Roman. It is not Roman. The populus Romanus, when it legislated, did not conceive for a moment that it made something that rested simply upon authority. The Roman people conceived that they declared that they were discovering and declaring; and it was not until the great political change, from the period of Diocletian on, when the political theory of the Roman empire was that the will of the Emperor had the force of law, that men conceived of law as simply the will of the sovereign. That conception of law, as the expressed will of the sovereign, was handed down to mediaeval Europe through Justinian's codification. It was taken up by the great publicists of seventeenth century France, who saw in the French King the living type of the Byzantine Emperor, and wrote their books on public law accordingly. They made the conception of law as the will of the sovereign the very center of their theories. The eighteenth century transferred this idea from the sovereign King to the sovereign people. Thus it came full blown to America and has taken form with us in the theory of law as will and will alone; in the theory of law as the will of the people or the people's representatives, so that the words, "Be It Enacted," can support and justify anything which follows.

Conflict Between the "Universal" and "Political" Theories As to the Origin of Law. With these two theories of lawmaking in actual operation in the community, I need not say to you inevitable conflict arises between the lawyer's theory and the political theory. The lawyer thinks of law as something which on the whole is found but not made; he thinks of law as the expression of principles, as having its sanction, or rather the basis of its authority, in reason and principle; and whenever he finds anything that runs con

trary to these, he hesitates to admit that it is or can be law. The people, on the other hand, think of law as something which can be made; as something which they do make. They think of rules and principles as significant only as they bear upon them the stamp of the popular will. So that, while the lawyer, with his eye upon universal principle, often thinks he is administering the law, the layman with his eye upon the letter of the law, thinks that he is undoing the law; and if the lawyer is moved to stigmatize everything that does not conform to his theory as lawlessness, the people are quite as apt to stigmatize what does not comport with their theory as usurpation. We must remember that the popular theory, the political theory of law, is as firmly rooted in the minds of the public as the legal theory is in our minds. The layman learns this theory at school; he hears it from the stump, from the Fourth of July platform, from Chautauqua platforms; he reads it in the press, he seldom hears it questioned. The consequence is our law presents continually a clash between these theories, and we are called upon to ask ourselves, is one or the other of them absolutely right or absolutely wrong, or, is there truth in both of them, and must we recognize this truth and perceive a just relation between the finding of law and the making of law?

The "Social" Theory as Offering a Solution. I must hasten to a conclusion. I would simply venture to suggest an outline of what I conceive must be done here. I think we must abandon both of these absolute theories. The important thing is not the agency that makes the rule, but the end which the rule subserves. The important thing is the securing of the great interests which the law exists to secure. The important thing is the serving of the human ends for which legal systems are set up. Some of these interests are better secured by the authoritative declaration of rules in advance; some of them can only

be secured by experience of the rules which will secure them.

Lord St. Leonards, in commenting on English legislation of the English reform movement, was fond of putting a statute like this, which he said Parliament might enact at any time, "Be It Enacted That the King's loyal subjects may and they are hereby empowered to go forth upon any and all the public roads, streets and highways of the Kingdom in the month of April without umbrellas without getting wet."

We laugh at that statute, but there is much in judicial law-making that is quite as out of touch with this throbbing, living world in which law is to be applied. The point in each case is, we must keep our eye, not upon an abstraction, but upon the end for which that abstraction is framed. And so, in conclusion, I would say the task of the lawyer, of the judge, of the jurist in twentieth century America, is to make law-making and law-finding-yes, and the interpretation and the application of legal rules-take more account, and more intelligent account, of the social facts from which law proceeds and to which it is to be applied. It is the task of the legal scientist of to-day to bring home to the legislator the limitations upon legislative law-making. It is his task also to bring home to the judge the possibilities of judicial finding of the law, for, if—and it is true-the judicial law-maker has a more limited field than the legislative law-maker, it is none the less true that he has great possibilities in that capacity, as such names as Kent and Marshall and Mansfield and many that I might repeat bear daily wit

ness.

It is true the legislative law-maker makes a rule only for the causes of the future. Therefore, he may make new premises; he may shape his premises and develop them as he will. The judicial finder of the law, on the other hand, finds a rule to apply to the transactions of the past, and the social interests which require certainty in the administration of justice pre

clude him from doing more than to take the given premises and develop them by a scientific technique. But this does not absolve the legislative law-maker from seeking for principles or guiding himself by theories. Nor does it absolve the judicial finder of the law from shaping those principles and using that technique to further the social ends for which law exists. So the task of the legal science of to-day is to bring home to the judicial lawmaker that he is one of the great builders of the law, and that he has that responsibility of building the law as much to-day as Mansfield had it in the eighteenth century or Coke in the seventeenth; to bring home to all law-makers, legislative and judicial, the responsibility of seeing to it that the laws conform to the social facts to which they are to be applied, a responsibility which rests heavily upon everyone who is called upon to make rules for the administration of justice.

The property was afterwards leased to one Louin, who entered into a contract with appellee Ziller, whereby Ziller secured the privilege of using said billboard. The billboard was fastened to posts and was about 21⁄2 feet from the sidewalk. Appellant, while walking along the sidewalk holding an umbrella over him to protect him from the rain, was struck by the billboard, which was blown over across the sidewalk, and received the injuries sued for. The suit was brought against the city of Meridian and Ziller jointly, being an action in tort for damages for personal injuries, plaintiff claiming that the accident was caused by the negligence of Ziller in maintaining an insecure and unsafe billboard, and that the city was liable for permitting Ziller to maintain a dangerous billboard in close proximity to the sidewalk.

The city of Meridian gave notice under a plea of general issue that it would show that the billboard was located on private property, and was not apparently dangerous to pedestrians, and that no complaint had been made of its being insecure, and that it was not a nuisance, and that it was not imminently and obviously dangerous, and that the city was without authority to abate it as a nuisance, and that the city was therefore not liable.

Ziller defended upon the grounds that he had only leased the privilege of posting signs on the billboard which did not belong to him, was not erected by him, and was not his land or land leased by him, and that nothing he had done had made the billboard less secure.

After the plaintiff had introduced his evidence, there was a peremptory instruction for defendants, and plaintiff appeals.

HOLDEN, J. This is an apeal from the Circuit Court of Lauderdale county. The appellant, Claude L. Dahmer, plaintiff in the court below, sued the city of Meridian and Fred R. Ziller for damages for personal injuries, on account of a billboard being blown over on him while walking on the sidewalk. After the plaintiff had introduced all his evidence, and rested, the court, on request of the defendants, granted a peremptory instruction to the jury to find for the defendants, from which action of the court the plaintiff appeals here.

[1, 2] First: The testimony introduced by the plaintiff in the lower court makes this case, on the facts, so similar to the case of Reynolds v. Van Beuren, 155 N. Y. 120, 49 N. E. 763, 42 L. R. A. 129, that we refer to the facts stated in that case, and hold here that the rule announced there is sound and reasonable, and we adopt it as the law in the case before us. If the appellant is entitled to any redress for the

personal injuries received by him, it seems clear to us that he should have proceeded against the lessee in possesion of the property, and not against the appellees.

Second: The record discloses no testimony tending to show that the city of Meridian was guilty of any negligence whatever. The billboard which fell upon appellant was on private property, and, if we concede that the city had authority, and that it was its duty to abate an obvious danger on private premises, this was not an obvious danger to pedestrians using the sidewalk of the city. The city had no notice whatever that the billboard was defective or dangerous; on the other hand, it appeared to be reasonably safe. Temby V. City of Ishpeming, 146 Mich. 20, 108 N. W. 1114; City of Meridian v. Crook, 69 South. 182, L. R. A. 1916A, 482. Affirmed.

NOTE-Municipal Liability from Insecure Billboard Injuring Street Passer.-There seems a difference in the cases of overhanging signs or other objects suspended above a street and where injury arises from a wall or other structure on the premises of an abutting owner and near the street causing injury to passers-by. And this difference lies frequently in the statutory duty of a city in the keeping of streets safe and in its power to abate, summarily, nuisances.

In Temby v. Ishpeming, 140 Mich. 146, 103 N. W. 588, 69 L. R. A. 618, 112 Am. St. Rep. 392, it was held that a city is not liable for injuries to a pedestrian on the street from the fall of a billboard insecurely placed near the edge of the street, under a statute requiring it to keep its streets reasonably safe and fit for travel.

It was claimed there was liability for a nuisance, which the city ought to have abated.

It was said: "This court has never gone so far as to hold that the statute requires the city to protect a traveler against dangers which result entirely from the use made of abutting premises by their owners and which cannot be avoided by barriers or some other effective mode of construction of the highway. It may be reasonably said that a highway is not reasonably safe which has no barriers separating it from a pit or cellar on adjoining premises, and in such a case the liability rests not on a failure to abate a nuisance but an inadequate highway. * * * If nuisances exist on private premises, it is, in most cases, necessary that legal proceedings be instituted to abate them, and we are of the opinion that meantime the city cannot be held liable for the consequence of their maintenance. Redress in such cases must be had against the owner." This case came before the court again and the former ruling was reaffirmed. Same v. Same, 146 Mich. 20, 108 N. W. 1114.

In Cason v. Ottumwa, 102 Iowa 99, 71 N. W. 192, a billboard which rested on the sidewalk was blown down, and citing a prior case, it was said that keeping a street safe did not mean merely its surface, but to what was in control of the city where there is danger to those on the street.

This case assumes control by the city of the billboard because of where it was placed.

In Oak Harbor v. Kallagher, 52 Ohio St. 183, 39 N. E. 144, a billboard was built on the line between the adjoining property and the street, but not interfering with street travel, was not a nuisance, it being constructed in a good, substantial manner. Where an unprecedented windstorm came up and it fell, there was no liability by the city.

In Shippey v. Kansas City, 254 Mo. 1, 162 S. W. 137, a billboard standing right at the edge of the sidewalk, fell on plaintiff. There was strong evidence that the city had actual notice that it was dangerous from being rotten. It was said: "The rule of liability for negligence in cases like this is the same as for defects in the sidewalk itself."

Along the same line of reasoning may be said to be the case of Langan v. Atchison, 35 Kan. 318, 57 Am. Rep. 165, but that shows close proximity of a billboard to the sidewalk.

It seems to us that where the billboard is definitely away from the street, that it would seem to be a trespass on private premises for the city to exercise any control thereover, there is no duty to protect a pedestrian on the street, unless the billboard is such a nuisance that the city should cause it to be abated. As to what would be such an urgency would be different in one state of case than in another. If it stood immediately on the edge of a sidewalk of a much traveled street, the urgency would be greater than if it stood back from the street or on a street upon which there was not so very great travel. And then the presumption of notice would arise more readily in the one case than in the other. We do not think, however, that the rule of liability is as stated in the Shippey case, supra, but rather as in the Temby case.

ITEMS OF PROFESSIONAL

INTEREST.

C.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS' ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

Divorce

QUESTION, No. 100.

Arrangement to sue in distant state upon existing cause not recognized in present domicile if carefully conditioned, not disapproved by majority, but wholly disapproved by minority.

Husband and wife, residents of this state, are not living together; the husband having actually and by express declaration deserted the wife. There is no ground known to the wife on which she could obtain a divorce in New York. Let it be assumed that facts existing at the time of the desertion will give ample grounds for divorce at the instance of the wife in several other states. There has been absolutely no collusion in bringing such facts into existence. The husband, who actively desires a divorce, and his attorney, have requested