NFORD LIBRARY Seventeenth Annual Meeting OF THE Pennsylvania Bar Association BEDFORD SPRINGS, PA., Tuesday, June 27, 1911. The Seventeenth Annual Meeting of the Pennsylvania Bar Association was called to order at the Bedford Springs Hotel at 2 o'clock p. m., President EDWIN W. SMITH in the chair. FIRST DAY, AFTERNOON SESSION THE PRESIDENT: Gentlemen of the Pennsylvania Bar Association and Guests: The Seventeenth annual session is now open. The first thing on the program is the President's Address. I have chosen as my subject "Law and the Function of Legislation"—an ambitious subject; but I did not know how ambitious until I commenced to write it. PRESIDENT'S ADDRESS What is law? If I asked you this question and should wait for an answer, likely to your lips would spring the Blackstone definition: "Municipal law is a rule of civil conduct prescribed by the supreme power in a State, commanding what is right, and prohibiting what is wrong." If you thought the question was asked seriously, you would not speak, for you would remember that every commentator has criticised this definition as inadequate. Of it, Bentham said: "On the subject of Law Municipal, he sets out as a man ought with the definition of the phrase itself; an important and fundamental phrase, which stood highly in need of a definition, but never so much as since our author has defined it." Sir Frederick Pollock has said: "The greater have been a lawyer's opportunities of knowledge, and the more time he has given to the study of legal principles, the greater will be his hesitation in face of the apparently simple question, what is law?" Nor is it merely a question of inadequate definition. It is also a matter of impossibility of close description. There has been no agreement among the writers as to what this thing is. Reading leads us irresistibly to the feeling that many of our masters, who have paid the debt to the profession by writing a book, have been sadly inaccurate in their historical knowledge and in their philosophical deductions. We should not too readily hold the thought that we are passing through new phases in the development of law. England's history shows, a hundred years ago, legislation much like that which is presented to us now. Yet seriously there never was a time when it was more important that we should know what law is and what its purpose; never a time when there was such futile belief that statutory law can remedy all our ills; never such attempts as now to make changes in existing political, commercial and social conditions by legislation. The happiness and prosperity of a people largely depend upon the capacity of its laws to meet its needs, and it must be understood that the importance of the growth of law is supreme. There is but one thing worse than a restriction of law, which prevents community development, and that is an expansion, which attempts to control all the phases of life and man's activity, destroying the freedom of contract and the independence of the individual. Maine says, in his "Ancient Law," speaking of progressive societies: "With respect to them it may be laid down that social necessities and social opinion are always more or less in advance of law. We may come indefinitely near to the closing of this gap between them, but it has a perpetual tendency to re-open. Law is stable; the societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed." We cannot understand what statutes can do for us, and what they cannot, unless we know what it is that has breathed vitality into law, and what kind it is which has lived. It seemes that there are three well-recognized sources of our law: briefly, natural law-command or prohibition -customs of the people. Most writers have acknowledged these sources as existing in the formation of every system, yet have differed radically as to their relative importance. There are those who insist that there is a natural law, independent of and before human relations, to which every man-made law must conform or be abhorrent; those who insist that every proper law is a command or prohibition of king, legislature, or other sovereign; those who say that all law has, or should have, for its origin the customs of the people, and that all our ideas of right and wrong, justice and morality, are but conventional. Not all those who have discussed the origin of law have expressed themselves consistently and logically in support of any theory as to any one source. All, to a greater or less degree, concede that historically the origin of law is confusing; all who are not mere theorists admit that, as it exists, it is complex and cannot be adjusted to a scientific scheme. Those, indeed, who have endeavored to explain it by any simple single hypothesis have been forced, sooner or later, into some absurdity. You will recall Blackstone's sonorous passage: "This will of his Maker is called the law of nature. For as God, when He created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion, so, when He created man, and endued him Montesquieu says: "Particular intelligent beings may have laws of their own making, but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently, possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle, all the radii were not equal. We must therefore acknowledge relations of justice antecedent to the positive law by which they are established." It was to this fundamental law that Blackstone referred, saying: "Hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law, that they tell us that the law is the perfection of reason, that it always intended to conform thereto, and |