NOTE AND COMMENT. The extraordinarily large number of members of the legal profession who were in the field as candidates during the recent elections in England gave occasion to the newspapers to revive the timeworn complaint that too many lawyers are allowed to find their way into Parliament, the implication being that they seek to shape legislation in order that they may live and thrive. Those who have made a study of the history of legislatures in English-speaking countries know how baseless is this insinuation. In the service of the State full many a lawyer has thrown away his chances for professional success-indeed our. legislative chambers throughout the world are haunted by the memories of their unrequited labours. It is not too much to say that the larger part of the political liberty we enjoy today was won by our great seventeenth century lawyers. In the reign of James I, Sir Edward Coke expressed the patriotic aspiration of his class when he said in the Commons: "I am as tender of the privileges of this House as of my life, and they are the heartstrings of the Commonwealth." We commend that fine saying to Earl Balfour who, in one of his public addresses some years ago, sought to dismiss Coke from our esteem by alluding to him as "an eminently disagreeable personage. The disagreeable question is thus forced upon us, Will the noble lord be able to equate the longevity of his reputation for invaluable public service to that of the "eminently disagreeable" Coke? The part played by lawyers such as Hamilton and Jay in framing and securing the adoption of the Constitution of the United States is the glory of the American Bar. And regarding the extent to which Canada has been served by the public spirit of her lawyers, there are men amongst us still short of anecdotage to whom the mere mention of The British North America Act, 1867, is an evocation of memories of Sir John A. Macdonald and Sir Georges Etienne Cartier. In short, the unique contribution that the British people have been permitted to make to civilization is a workable system of representative government, and it has been chiefly fashioned and maintained by lawyers. Hence, notwithstanding the criticism so frequently heard from ill-natured persons that members of the Bar hunger and thirst after politics rather than righteousness, the electors persistently return them to Parliament in large numbers. Surely in this fact lies an affirmation of the soundness of De Tocqueville's view, expressed nearly a century ago, namely, that "The people in democratic states do not mistrust the members of the legal profession, because it is well known that they are interested in serving the popular cause; and it listens to them without irritation, because it does not attribute to them any sinister designs." How hard it is for those without special training in law-making to acquit themselves with success in the legislative sphere is demonstrated in a most interesting and instructive article by the Honourable Mr. Justice Rivard, of the Quebec Court of King's Bench, in the December number of La Revue du Droit. The title of the article is De la technique législative, and, after quoting Bentham's counsel as to the care with which the language of the law should be weighed, the learned writer says: "La confection des lois comporte deux séries d'opérations successives: l'une, pour l'élaboration du concept juridique; l'autre, pour son expression. Il faut que, d'abord, le législateur se fasse une idée exacte de ce qu'il entend prohiber, ordonner ou permettre, qu'il prenne une vue très nette de cette notion légale, de sa mise en oeuvre et de son application aux réalités sociales; puis, une fois en possession de la règle qu'il veut établir, le législateur doit l'énoncer, 'l'incorporer extérieurement, en un instrument capable d'organiser pratiquement la vie.' From a subsequent portion of the article we quote the following: "On a dit justement: 'Pour écrire les lois, il faut savoir le droit, la logique et la langue.' Pour la seule formation du concept juridique, que de vertus singulières, et que de connaissances! Pénétration et discernement, prudence et sagacité, habileté dans le maniement des idées, sens de l'ordre, goût de la justice... Il faut encore à celui qui doit concevoir la loi des idées exactes sur la nature de sa mission et du pouvoir législatif, sur les principes d'où procède le droit positif et sur le caractère juridique des activités soumises à son empire. Comment, sans la connaissance de l'histoire du droit, sans l'expérience des hommes et celle des affaires, sans une vue tant soit peu étendue des principales législations étrangères, comment prétendre à la science et à l'art de la législation?" While the attainment of uniformity of law in this country is an important point de mire of the Canadian Bar Association, yet it is essentially an enterprise which must be hastened slowly. Indeed we are disposed to think that we shall not have a full measure of unity of law until we have a real national consciousness born of a unified community of peoples in Canada-something which may require great constructive statesmanship and a long period of years for its consummation. Uniformity would not come by one master-stroke of legislation, had we a legislature constitutionally competent to enact it. When it comes it will be the result of economic determinism. When the masters of industry and finance find our present disparate systems of law unsuited to their requirements then the lawyers will be asked to formulate a new and uniform system. This was the history of Roman law. Speaking of that law in the time of Caesar. Mommsen says: "The lively commerce between Romans and non-Romans had long ago developed in Rome an international private law (jus gentium), that is to say, a body of maxims especially relating to commercial matters, according to which Roman judges pronounced judgment when a cause could not be decided either according to their own or any other national code, and they were compelled -setting aside the peculiarities of Roman, Hellenic, Phoenician and other law-to revert to the common perceptions of right underlying all commercial dealings. The formation of the newer law proceeded on this basis." Then, too, we have in the code of rules relating to contracts of carriage by sea known as the "Hague Rules, 1921," a modern instance of the part played by business men in harmonizing the laws of commerce. Speaking generally, it may be said that these rules embody the practical ideas of merchants, bankers and marine underwriters. The duty of Canadian lawyers at the present time is to forward the interests of uniformity by a comparative study of the two systems of law prevailing in this country. This would be a patriotic endeavour worthy of the Canadian Bar, an endeavour that will have a wonderful influence in determining the character of our future laws. Again, the law schools of the Dominion provide a valuable medium for the furtherance of uniformity. The study of Comparative Law ought to have a large place in their activities, for it is conceivable that ignorance of one or the other of our two legal systems is just as much of a practical impediment to the working of the spirit of nationality as ignorance of the language spoken by a great portion of our people is a sentimental barrier to that spirit. Other countries, with far less intimate need for it than we have, are now busily promoting this study. France has placed it on the curricula of all the faculties of law in her universities, and much attention is being given to it in England and the United States. In the Castoria case (The Centaur Co. v. American Druggists' Syndicate1, recently decided in the Superior Court of Quebec by Archibald, C.J., it was held that a trade-mark for a medicinal preparation registered in Canada does not become inoperative and void by reason of the expiry of a patent for the preparation in the United States, although by reason of the expiry of such patent the right to manufacture the preparation under the name by which it was described. in the patent was open to the people of the United States. The learned judge discussed but declined to follow the English case of Linoleum Mfg. Co. v. Nairn2. In that case it was held by Fry, J. that where the inventor of a new floor-cloth has given it a special name and takes out a patent for his invention, he is not entitled to the exclusive use of that name after the expiration of the patent. In the American case of Holzapfel's Compositions Company v. Rahtjen's American Composition Company the Supreme Court of the United States laid down the following doctrine respecting the right of a person to the exclusive use of the name of an invented article for which he had obtained a patent [in that case for "Rahtjen's Composition"] after the expiry of the patent: 1 "If any one had desired to use this paint and had called for it in the market, he would necessarily have been compelled to describe it as 'Rahtjen's Composition,' as there was no other name for the article, and though in England while the patent lasted no one but the patentee or his licensees could manufacture the article, yet the description would still have been 'Rahtjen's Composition;' but when the patent expired the exclusive 1 1922, 68 D. L. R. 84. (1878) 7 Ch. D. 834. |