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Articles / Legal History / 2008 - 2009

Legal History

The Poet Lawyers
(February 2008)

Looking into the origins of the words carved over the entrance to the Parliament Building in Ottawa – “The wholesome sea is at her gates/ Her gates both east and west” – the Globe & Mail reported recently that they were written about 1920 by one J.A. Ritchie, who was described by anthologist John Robert Colombo as “an Ottawa barrister and poetaster.”

“Poetaster,” by the way, is an old word meaning “a petty or paltry poet.” Historiaster, its equivalent for history writers, is mercifully extinct. There seems to be no equivalent for lawyer.

What is it, I wondered, with all the lawyer poets? And who was this J.A. Ritchie, barrister, who got his verses on the doors of parliament? With some help from Paul Leatherdale at the Law Society archives, Ritchie proved easy to trace.

John Almon Ritchie, K.C. (1863-1935) was no petty or paltry lawyer, it turns out. He practised in Ottawa from 1890, was crown attorney for Carleton and then a Carleton County judge. He was the son of Sir William J. Ritchie, Chief Justice of Canada 1879-92, and therefore part of the vast clan of Ritchie lawyers and judges that ran from John Ritchie, 18th century judge at Annapolis Royal, N.S., to Roland Ritchie, justice of the Supreme Court of Canada 1959-84. Altogether an embarras de Ritchies, as Roland’s brother, the diplomat and diarist Charles Ritchie, once said in another context.

In his day John Almon Ritchie seems to have been better known as playwright and poet than as lawyer. A Who’s Who of the time credits him with “some meritorious verse” and several plays produced on the American stage. But a quick run-through in Google and Abebooks suggests none of it survives. His literary immortality depends entirely on the stone carver who put him over the doors of parliament.

Something similar happened to another lawyer-judge, Robert Stanley Weir (1859-1926) of Montreal. Weir was a prolific author of verse, but his name survives only because one hundred years ago this year he wrote the English lyrics to O Canada. The French lyrics, written in 1880, were by another judge, Quebec’s A-B Routhier.

Another contemporary of Ritchie and Weir was E. Douglas Armour, Toronto lawyer and bencher, who made a specialty of converting complex legal documents into iambic verse. “Poetaster” might just apply here, but there’s some weird kind of achievement in lines like these, published as Law Lyrics by Canada Law Book in 1918:

The said Smith and his heirs also make this concession/
That Brown and his heirs shall have quiet possession/
Of all that the herein before described land/
And that free and clear of all claim and demand,/
Gift, grant, bargain, sale, jointure, dower and rent/
Entail, statute, trust, execution, extent….

And so on, for hundreds of lines.

There is also at least one great poet among the lawyers. Frank Scott, longtime professor of law at McGill and distinguished civil libertarian, was also F.R. Scott, pioneer of the modernist movement in Canadian poetry and one of the major Canadian poets of the twentieth century.

Scott generally kept his legal scholarship separate from his poetry, but in 1959, after defending D.H. Lawrence’s Canadian publisher on a prosecution for obscenity in the Quebec Court of Appeal, he did dash off:

I went to bat for the Lady Chatte,/
Dressed in my bib and gown./
The judges three glared down at me/
The priests patrolled the town.

The old Law Society Gazette – not the communications vehicle the Law Society now puts out, but the small volumes edited from the 1960s to the 1990s by John Honsberger and illustrated by Kenneth Jarvis – used to publish lawyers’ poetry.

What do lawyer poets do nowadays? Maybe they have no time.

©Christopher Moore Editorial Ltd 2008

Blackstone, the Man Behind the Tome
(April 2009)

Do lawyers still read Blackstone’s famous Commentaries? Not much.

In fact, you might say they never did. That’s not what his influence depended on, judging by a new biography of William Blackstone.

Its author, Wilfrid Prest, is one of the great historians of English law and English lawyers, despite spending his academic career in Australia, on the other side of the world from his subject and his sources. He has built this biography on intricate research and stays close to the man, not the book. He admires Blackstone, but doesn’t disguise what a curious figure the author of Commentaries on the Laws of England was.

Blackstone (1723-1770) was a lawyer who hardly practised. A law professor when there were no law professors. And an orphan boy from a London shop who became a knight, a judge, and a wealthy country gentleman, mostly on the strength of that one book.

Blackstone might have become a poet, an architect, or even a university administrator. He dabbled successfully in them all. As a scholarship boy at Oxford, he managed the finances of his college and put the university press on its feet as an academic publishing house. Neither achievement made him very popular among his colleagues – academic politics were vicious even then.

Blackstone got himself called to the bar, but he wasn’t good in court or at getting and keeping clients. It was the law as an object of study that really interested Blackstone. So he went back to Oxford and more or less invented the role of the law professor.

In the 18th century and long after, the English idea of the common law was that it had grown up strong without ever having any basic rules or principles. The common law was celebrated as a vast accretion of statutes and precedents and procedures that defied all systems. English lawyers agreed you could only learn it by doing it – by articling.

That being the case, there was no curriculum to base a law school on. And no law professors. So Blackstone began offering unofficial lectures in law. He did quite nicely charging fees for them.

Blackstone’s feat of genius was in managing to make a system out of the unsystematic common law. Look, he said in effect, law isn’t that complicated, I can give you the gist of it. The lectures in which he did that became the basis of the Commentaries on the Laws of England. Blackstone and his book became famous because they did a really good job of explaining the gist of the English common law.

It was not lawyers who needed this elaborate Common Law for Dummies version of the law. Lawyers still learned on the job, working through all kinds of complexities not covered in Blackstone’s Commentaries.

The Englishmen who really appreciated the Commentaries were non-lawyers: the property owners, justices of the peace, politicians, “men of business.” They got just enough law, simply explained, out of Blackstone to suffice for their needs, and they made Blackstone synonymous with the law of the land.

Blackstone even prospered in the American colonies and states despite his conservative views and reverence for monarchy. Frontier Americans who did not have lawyers to give them the fundamentals of common law got them from Blackstone’s book instead. Even in the 1830s, Abraham Lincoln was thinking he would be a blacksmith -- until someone gave him the Commentaries. He read them, said, “I can do this,” and went on to the tougher stuff.

Blackstone, meanwhile, seemed for a while at risk of falling into the awkward situation law schools have sometimes faced. What he taught wasn’t practical for working lawyers, but might be seen as too practical to get respect as true scholarship.

In the end he overcame that. Even lawyers came to agree than no one knew the whole legal territory better than Blackstone did. Like Bora Laskin and a few other law professors since, he successfully parlayed that reputation into a judgeship and the knighthood that went with it.

©Christopher Moore Editorial Ltd 2009

Women at Law School, One Day in 1977
(May 2009)

A recent legal history collection I have been reading includes an oral history built from interviews with forty-five women lawyers, most of whom graduated from law school in Ontario in the 1970s. These women have since become judges, academics, law firm partners, politicians, senior civil servants, benchers, even an ambassador.

Back then, they were law students -- at a time when barely one law student in ten was a woman. The story is how those women dealt with that.

The central event occurred at a class in the bar admission course at Osgoode Hall in November 1977. The topic was how to hire law office staff. The instructor, the distinguished real estate lawyer Albert Strauss, was entertaining the class by handing out typical help-wanted ads:

“Beautiful, young and confidential secretary [wanted],” they read. “Unless very beautiful, you should be able to take short-hand.… You should be a whiz at making good coffee.” Included were pointers on getting staff to work for free.

Some of the women going to the class had primed themselves for a confrontation. They “peppered” the instructor with denunciations of the sexist and exploitative course materials. They seized the microphone to protest. They demanded an apology. They walked out, throwing the course materials away.

The instructor and, apparently, most of the male students struck back. There was hissing and laughter. There were bra jokes. Words like “hysterical,” “destructive,” and “sarcastic” were flung out with dismissive contempt. “If these people are going to be lawyers, well, good luck to them.”

The essay is by Constance Backhouse, now a professor and a bencher but also one of that class of 1977, and at this point she enters the story herself. As protest and counterattack raged around the classroom, she writes, “Diana Majury and I decided to call the press.” The whole thing hit the front page of The Globe and Mail, and the women claimed a small victory.

Backhouse’s essay has the first-person vividness that eyewitness account, oral history, and memoir can provide. But it has the stats to demonstrate the change those women were taking part in.

After being fewer than five per cent of Ontario law students for decades, women would increase their proportion to almost 30 per cent between 1970 and 1980. It was, Backhouse’s interviewees agree, “a revolution in numbers.”

In 1977 women students were still a minority in a sexist profession, but they were achieving “a critical mass.” Most of them had no (or few) lawyers in their families. They came from less prosperous families than male law students. The opportunity for professional careers seemed entirely new. Most came to law school already holding feminist views. “We were the new wave.”

Backhouse calls them a “turbulent, insubordinate, ambitious, free-wheeling cohort of women.” What happened when they hit law school? “All of the interviewees, even those who came to law school a decade or more after the earliest entrants in the group, reported sexism, racism, and homophobia ran rampant.” As one of them says, “few women today have the same experience we did of sitting in a room with our mouths hanging open at the level of sexism being displayed.”

Some of this seems like a story from another age. Feminism, after all, was hardly new in 1977. Women, feminist messages, and anti-sexism were familiar aspects of university life a decade before this incident. What is most startling, perhaps, from this and other accounts of women in law in the 1970s is how late and how retrograde the profession of law was in these matters.

Backhouse’s essay in just one in a new collection called The Promise and Perils of Law. Jim Phillips studies embattled Halifax lawyers in the 1780s. Susan Lewthwaite and Hamar Foster each look at the risks of “cause lawyering” early in the 20th century. Eric Adams considers an establishment Toronto lawyer who campaigned for an American-style bill of rights -- in reaction to big-government excesses in the wartime 1940s.

So the topic of Backhouse’s essay, barely thirty years old, is one of the most recent in the anthology. Not all history happened a long time ago.

Constance Backhouse’s essay is in The Promise and Perils of Law, edited by her and Wesley Pue, published by Irwin Law in May 2009 and based on a 2007 conference at Osgoode Hall supported by the Law Society of Upper Canada. (Full disclosure: I have a piece in it myself.)

©Christopher Moore Editorial Ltd 2009

Rand on Rights
(October 2009)

Part of the interest of William Kaplan’s legal histories is that, as a writer, he’s a lawyer. Two of his books read like defence briefs for public figures (Leo Landreville and Brian Mulroney), to whom wrongdoing was imputed. As a writer-lawyer, Kaplan is sometimes a writer-judge too, issuing bold verdicts and obiter dicta. Subject of his work whom he finds wanting are not just wrong, they are “dupes” or “idiots,” their views “cant” or “received wisdom.”

Kaplan’s new book is Canadian Maverick: the Life and Times of Ivan C. Rand. Supreme Court Justice Rand was the nemesis of Leo Landreville, the Ontario judge who fell under suspicion for taking cash gifts in awkward circumstances. In Bad Judgment, his book defending Landreville, Kaplan made Rand the villain -- setting up a certain tension between biographer and subject, one might say.

But Landreville was only a blip in the long career of New Brunswick-born Rand. He was a New Brunswick lawyer, a politician, a Supreme Court of Canada judge 1943-59, and an influential royal commissioner. Kaplan follows Rand all through his long career, alternately admiring and appalled. The strongest part of the book may be his examination of Rand at the Supreme Court.

Kaplan’s Rand was at once a seething mass of nasty personal bigotries -- and the judge who brought justiciable rights into the purview of Canada’s top courts.

Nineteenth century Canadians had believed the true guarantors of their rights were feisty, independent legislatures, ready and able to hold governments to account. But today legislatures like that are hard to find. Canadians have learned to look not to politics, but to the law and the Charter for protection of their rights.

Kaplan demonstrates that Rand made a vital contribution to a new way of looking at rights. Jehovah’s Witnesses oppressed by a Catholic government looked to the courts for redress. So did Japanese-Canadians oppressed by a racist government and Jews harassed by race-based legal agreements.

But what was there about rights in Canadian constitutional law, traditionally concerned with little more than federal-provincial squabbles? It was Ivan Rand, Kaplan argues, who created a Canadian jurisprudence about rights in Saumur, Roncarelli, and the other now classic cases.

It started with the old political sense of rights. The Canadian constitution required parliamentary democracy, Rand found – and parliamentary democracy could not work without freedom of speech, of assembly. What was new was Rand’s demonstration that lawyers could argue for these rights, the “implied Bill of Rights,” and courts could enforce them.

The Charter era is far removed from Ivan Rand’s rights decisions of the 1950s; the shift from rights politics to rights law has been enormous. But Kaplan reminds lawyers and readers of the importance of that initial step.

Where did Rand – a big railroad lawyer before he went to the Supreme Court – get his ideas? Kaplan argues the decisive factor was his years at Harvard Law. Other Canadians went to Harvard without becoming rights crusaders, but rights were part of law there, when Canadian law hardly cared.

There’s a good deal more in Kaplan’s biography: the “Rand formula” for union-shop labour organization, Rand’s foibles as a law school dean, and a recap of the Landreville wrangle.

Not afraid of being a judge in his own cause, Kaplan suggests his legal biography stands out against the “uncritical” and “largely celebratory” books he says everyone else writes. Read it and see.

William Kaplan’s Canadian Maverick: The Life and Times of Ivan C. Rand was published in October 2009 by University of Toronto Press and the Osgoode Society for Canadian Legal History.

©Christopher Moore Editorial Ltd 2009

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