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THE GOOD ADVOCATE.
A rather remarkable character
appears in a book written by the Rev. Thomas Fuller about 1630, called “The Holy State and the Profane State.” The “character” is entitled The Good Advocate." It is worth reproducing on account of its accurate and astute delineation of the characteristics which should even now be possessed by every practising barrister who desires to deserve the appellation which Fuller adopts.
This writer of nearly 300 years ago was a great Cavalier parson, an English divine and historian and a Cambridge graduate. His “Holy State ” as depicted in his book, exists in family and public life, and he gives rules of conduct and model characters for the various professions, which are marked by quaint utterances and odd conceits.
The Good Advocate is thus described :
He is one that will not plead that cause wherein his tongue must be confuted by his conscience. It is the praise of the Spanish soldier, that (whilst all other nations are mercenary, and for money will serve on any side), he will never fight against his own king: nor will our advocate against the sovereigne truth plainly appearing to his conscience.
1. He not only hears, but examines his client, and pincheth the cause where he fears it is foundered. For many clients in telling their case, rather plead than relate it, so that the advocate hears not the true state of it till opened by the adverse party. Surely the lawyer that fills himself with instructions, will travel longest in the cause without tiring. Others, that are so quick in searching, seldome search to the quick; and those miraculous apprehensions who understand more than all, before the client hath told half, runne without their errand, and will return without their answer.
2. If the matter be doubtful, he will onely warrant his own diligence. Yet some keep an assurance-office in their chamber, and will warrant any cause brought unto them, as knowing that if they fail, they lose nothing but what long since was lost,—their credit.
3. He makes not a Trojan-siege of a suit, but seeks to bring it to a set battel in a speedy trial. Yet sometimes suits are continued by their difficulty, the potencie and stomach of the parties, without any default of the lawyer. Thus have there depended suits in Gloucestershire, betwixt the heirs of the Lord Berkeley and Sir Thomas Talbot, Viscount Lisle, ever since the reign of King Edward the Fourth, untill now lately they were finally compounded.
4. He is faithfull to the side that first retains him. Not like Demosthenes, who secretly wrote one oration for Phormio, and another in the same matter for Apoliodorus, his adversary.
5. In pleading, he shoots fairly at the head of the cause, and having fastened, no frowns nor favours shall make him let go his hold. Not snatching aside here and there, to no purpose, speaking little in much, as it was said of Anaximenes, “ That he had a flood of words, , and a drop of reason.” His boldness riseth or falleth as he apprehends the goodnesse or badnesse of his cause.
6. He joys not to be retained in such a cause, where all the right in question is but a drop blown up with malice to be a bubble. Wherefore, in such triviall matters he perswades his client to sound a retreat, and make a composition.
7. When his name is up, his industry is not down, thinking to plead not by his study, but his credit. Commonly physicians, like beer, are best when they are old, and lawyers, like bread, when they are young and new. But our advocate grows not lazie; and if a leading case be out of the road of his practice, he will take pains to trace it thorow his books, and prick the footsteps thereof wheresoever he finds it.
8. He is more carefull to deserve, than greedy to take fees. He accounts the very pleading of a poore widow's honest cause sufficient fees, as conceiving himself then the King of Heaven's advocate, bound ex officio to prosecute it. And, although some may say, that such a lawyer may even go live in Cornwall, where it is observed that few of that profession hitherto have grown to any livelihood, yet shall he (besides those two felicities of common lawyers, that they seldome die either without heirs or making a will), find God's blessing on his provisions and posterity.
We will respite him a while till he becomes a judge, and then we will give an example of both together.
F. E. HODGINS. Toronto.
THE CANADIAN BAR
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Lord Haldane, in delivering the judgment of the Judicial Committee of the Privy Council in the case of The Toronto Electric Commissioners v. Snyder et al, which involved the constitutional validity of the Lemieux Act, devoted much time to the consideration of Russell v. The Queen, and gave a final blow to the authority of that case as a constitutional precedent. There the Board upheld The Canada Temperance Act, which established a system of prohibition for the Dominion, to be brought into operation in counties and cities by special machinery; but less than two years afterwards the Board also, in Hodge v. The Queen, gave its approval to an Act providing for a provincial licensing system. Since that time Russell v. The Queen has not been followed, but it has nevertheless remained to be a source of uncertainty and confusion.
In the Liquor Prohibition Appeal (1896) A.C. at page 362, Lord Watson, referring to the Russell case, observes that “Neither the Dominion nor the Provinces were represented in the argument. It arose between a private prosecutor and a person who had been convicted.” Subsequently, during the argument of the John Deere Plow Co. v. Wharton & Duck,' Lord Haldane said, with reference to the above remark: “It is plain that Lord Watson did not believe in the judgment of the Board in Russell v. The Queen, and you will see right
through the case, and you will see in earlier cases, he was endeavouring to find a foundation for the decision in The Canada Temperance Act of another kind."
Again, during the argyment in the Great West Saddlery Co. v. The King," Lord Haldane remarked: “I think I may say—I had a long experience in these cases in those days—that it was a tacit rule, a convention between judges and counsel, that Russell v. The Queen was not to be cited, and we did not cite Russell v. The Queen.”
In 1922 Mr. E. R. Cameron, K.C., Registrar of the Supreme Court, published a book on “Canadian Companies and the Judicial Committee,” in the introduction to which he reviews the authorities, pointing out that the doctrine of overlapping powers was founded upon the theory that sections 91 and 92 of the B. N. A. Act are not mutually exclusive, a theory invented to harmonize Russell v. The Queen and Hodge v. The Queen; and he suggests an amendment of the Act to remedy the confusion. .“ The respect which all feel for the members of the Judicial Committee as at present constituted,” says Mr. Cameron, “must not prevent us, through delicacy, denouncing a judgment of their predecessors which for forty years has blocked national progress; a judgment which, like Banquo's ghost, confronts the Judicial Committee every time it is called upon to interpret some phase of the Canadian Constitution.”
The objectionable decision having now been disposed of as based upon special facts and not laying down any general rule, the opinion expressed by Lord Watson in the Liquor Prohibition. Appeal (1896) 1.C. 496, that “Some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion and to justify the Parliament of Canada in passing laws for their regulation or abolition in the interests of the Dominion,” is no longer of any weight except where a national emergency can be predicated, and formidable difficulties are placed in the way of at least one movement which has lately been heard of.
The Secretary of the Dominion Alliance has announced that the prohibitionist forces are to be organized for a descent upon Ottawa, where they will ask for nation-wide prohibition, that is, legislation forbidding the manufacture, sale and importation of intoxicating liquor. It would appear, however, that, unless they can show the existence of “some extraordinary peril to the national life of Canada as a whole, such as the cases arising out of a war,” Parliament has no jurisdiction to interfere with manufacture and sale, and consequently that the prohibitionists will be obliged to confine their efforts
• (1921) 2 A. C. 91.
to missionary work in those recalcitrant provinces which have adopted systems of government control.
R. W. S.
INDUSTRIAL DISPUTES Act.-When the judgment of the Privy Council pronouncing the Industrial Disputes Act ultra vires the Dominion Parliament, was published in Canada, a prominent labour leader in Montreal gave a long interview to a local paper in which he said: “While not desiring to criticize the gentlemen of the Privy Council who, no doubt, rendered their decision in accordance with their peculiar interpretation, if we are to have these various interpretations placed upon the language of the British North America Act, it may eventually be advisable to scrap the British North America Act.”
Some days later a well-known member of Parliament addressed a public meeting in the same city, and, according to the press, “advocated the abolition of the Senate, as this body was able to throttle any measure brought forward by the representatives of the people. This, he said, led to the question of the British North America Act, and he solemnly stated that that measure would have to be scrapped if Canada was to survive.”
It may be that those who are anxious to scrap the Constitution when any established authority does something with which they do not agree, have ready at hand substitutes of their own which would satisfy everybody, settle all vexed questions and leave no room for differences of interpretation. In the absence of any such remarkable achievement, we may well be content with the Constitution framed by the great men whose labours brought about Confederation, making alterations from time to time with caution in the light of experience and as changing circumstances may seem to require.
There are advantages and disadvantages in every system, but our Constitution is entitled to much of the praise bestowed by Bryce upon the Constitution of the United States, and for the same reason. It is a rigid Constitution, that is, a fundamental law “which takes rank above the ordinary laws and cannot be changed by the ordinary legislative authority.” Of the American Constitution Bryce says that it “has rendered, and renders now, inestimable services. It opposes obstacles to rash and hasty change. It secures time for deliberation. It forces the people to think seriously before they alter it or pardon a transgression of it . . It does still more than this. It forms the mind and temper of the people. It trains them to habits of legality. It strengthens their conservative instincts, their sense of the value of stability and permanence in political arrangements."